New South Wales Supreme Court CITATION : Regina v Phillip Raymond PARKES [2006] NSWSC 331 HEARING DATE(S) : 10/02/06, 13/03/06, 11/04/06 JUDGMENT DATE : 5 May 2006 JUDGMENT OF : James J at 1 DECISION : Non-parole period of 13 years commencing on 18/02/2005 and expiring on 17/02/2018. A balance of the term of 5 years. CATCHWORDS : CRIMINAL LAW - Sentence - murder - guilty plea - prisoner murdered his mother. LEGISLATION CITED : Crimes (Sentencing Procedure) Act CASES CITED : R v Way (2004) 60 NSWLR 168 PARTIES : Regina v Phillip Raymond PARKES FILE NUMBER(S) : SC 2005/1791 COUNSEL : J Bennett SC - Crown Ms L Flannery - Prisoner SOLICITORS : R Ianna - Solicitor Director of Public Prosecutions - Crown N Marshall - LAC - Prisoner IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J Friday 5 May 2006 2005/1791 REGINA v Phillip Raymond PARKES REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner Phillip Raymond Parkes pleaded guilty to one count of murder, that on 16 January 2005 at Collaroy he murdered Grace Winifred Parkes, who was his mother. 2 Proceedings for the sentencing of the prisoner were conducted before me on 10 February 2006, 13 March 2006 and 11 April 2006. 3 Documentary evidence in the proceedings on sentence included: (1) for the Crown - A statement of facts prepared by the Crown and four volumes of witness statements, transcripts of interviews, reports and other documents which had been obtained by the Crown, some individual documents in those volumes being made separate exhibits: (2) for the prisoner - Two reports about the prisoner by a psychiatrist Dr Michael Giuffrida, reports about the prisoner by other medical practitioners, a letter from one of the prisoner's children, a reference from his former employer, some documents about the prisoner from the Probation and Parole Service during a period in which the prisoner was on parole under an earlier sentence and some documents about the prisoner from the Department of Corrective Services during the period in which he has been in custody on remand for the present offence. 4 In the proceedings on sentence Dr Giuffrida and the prisoner gave oral evidence. 5 After the hearing on 13 March 2006 I received comprehensive written submissions from both the Crown prosecutor and counsel for the prisoner. 6 In the proceedings on sentence there was little or no challenge to the Crown's statement of facts, with the exception of the last part of the statement which was headed "The Accused", and the following statement of the background to the commission of the offence, of the facts of the offence and of events following the commission of the offence is derived from parts of the Crown's statement of facts which were unchallenged and which I consider I should accept, supplemented to some extent by other evidence in the proceedings on sentence which I consider that I should accept. Background, Facts of the Offence, Events after the Offence 7 The victim Mrs Parkes was born on 25 January 1921 and as at 16 January 2005 was approaching her eighty-fourth birthday. Her husband had died more than twenty years previously. Mrs Parkes and her husband had three children, Marilyn born in 1948, Russell born in 1951 and the prisoner born on 18 August 1956. 8 The prisoner's sister Marilyn married Warren James Barrett, by whom she had two children. Marilyn died of leukaemia in 1980. After her death Mr Barrett remarried. His second wife Shirley-Anne Barrett formed and maintained a close relationship with Mrs Parkes, who was, of course, the grandmother of her stepchildren. 9 Mrs Parkes had a number of serious health problems. She was an insulin dependent diabetic. She also suffered from hypertension, Paget's disease, Bells palsy, glaucoma, goitre, osteoporosis and osteoarthritis. She had had a number of operations on her eyes and had very limited vision. 10 In December 2004 Mrs Parkes contracted a viral infection in her eyes and was admitted to the Sydney Eye Hospital. She was discharged from the Eye Hospital on 24 December 2004. After her discharge she was in need of full-time care. 11 Since 2002 the prisoner had been employed as a bus driver for the Spastic Centre at Frenchs Forest, driving spastic persons from their homes to the Centre in the morning and then driving them home in the afternoon. When Mrs Parkes was discharged from the Eye Hospital on 24 December 2004, the prisoner was on annual leave from the Spastic Centre, being due to return to work on 17 January 2005. 12 While the prisoner was on his annual leave he stayed with his mother at her home at Collaroy Plateau (which was about ten minutes drive from his own home at Dee Why), assisting her with medical tests and the administering of her medication. He also did shopping and cooking and took his mother to medical appointments and to her bank. 13 Mrs Parkes' failing health and advanced years prompted discussion between family members about her future care. Mrs Parkes did not want to go into a nursing home and wanted to remain living in her own home. Her home was in need of repairs and renovations. 14 At the suggestion of Russell Parkes a facility was arranged with the Commonwealth Bank, whereby up to $120,000 could be borrowed as required, with the principal amount borrowed and interest thereon being payable out of Mrs Parkes' estate after her death. An ATM card and a cheque book for this loan account were issued by the Bank. As Mrs Parkes was incapable of herself operating on the loan account, the prisoner took control of the ATM card and became a signatory for the purpose of drawing cheques on the loan account. 15 At some time between 24 December 2004 and 16 January 2005 it was agreed between Mrs Parkes and the prisoner that the prisoner would resign from his employment and become Mrs Parkes' permanent full-time carer. It was part of the agreement that an amount could be withdrawn from Mrs Parkes' loan account to enable the prisoner to repay an outstanding loan on his car. 16 By mid-January 2005 Mrs Parkes' health had improved slightly. The prisoner went to his mother's house on Friday 14 January 2005 and Saturday 15 January 2005 but did not stay at his mother's house on the nights of those days. 17 On Sunday 16 January 2005 the prisoner arrived at his mother's house in the morning. He assisted her with her medical tests and the taking of her medication and prepared morning tea and lunch. He left his mother's house at about 1.30 pm and returned to his own house at Dee Why. Before he left, his mother told him that there was no need for him to hurry back, because she was expecting a friend to come to her house. 18 Mrs Parkes' friend arrived at Mrs Parkes' house at about 3 o'clock in the afternoon. Mrs Parkes and her friend talked about various things, including the arrangement that the prisoner would become a full-time carer for Mrs Parkes. 19 The prisoner returned to his mother's house between half past four and five o'clock in the afternoon. Mrs Parkes' friend was still there but she left shortly afterwards. 20 The prisoner helped Mrs Parkes with her medical tests. He prepared an evening meal for the two of them, which they ate. After the meal Mrs Parkes sat in the living room of the house, watching television. She was able, notwithstanding the impairment of her vision, to see something of what appeared on a television screen, provided she sat close enough to the television set. 21 The account of subsequent events given by the prisoner in a statement he made to police on 17 January 2005 and in a recorded interview by police on 21 January 2005 was that he left his mother's house at about 6.45 or 7 o'clock, leaving the front and back doors and the bedroom window open, that he went straight to his house, watched television and then went to bed and that the following morning he returned to his work at the Spastic Centre. 22 Subsequently, on 18 February 2005, the prisoner admitted that this account was untrue. A little later in these remarks I will set out what really happened on the evening of 16 January 2005. However, for the present, I will continue with a statement of events occurring on 17 January 2005 and subsequently. 23 On 17 January 2005 Shirley-Anne Barrett twice attempted to telephone Mrs Parkes but on each occasion her call was not answered. Mrs Barrett then telephoned the prisoner and told him that she had been unable to contact his mother on the telephone. The prisoner told Mrs Barrett that his mother had been planning to be at home all that day. Mrs Barrett decided to go to Mrs Parkes' house to check on Mrs Parkes. She was concerned that Mrs Parkes might be in a diabetic coma. 24 Mrs Barrett entered Mrs Parkes' house through the open front door. She found Mrs Parkes sitting on the lounge in the lounge room, with blood on her face, on her nightdress and on the lounge. She was dead. Clothes and other items were scattered in the two bedrooms in the house. A telephone had been unplugged. Mrs Barrett plugged in the telephone and telephoned the prisoner. She told him that his mother was dead and that she was covered in blood and the prisoner said that he would come immediately. Mrs Barrett made other telephone calls, including an emergency call for an ambulance. 25 Police who came to the premises at Collaroy observed a large amount of blood on Mrs Parkes' face and a number of open wounds on her forehead and on the top of her head and open wounds and some swelling on her right hand, consistent with defensive injuries. 26 On 18 January 2005 Dr Duflou, a forensic pathologist, performed an autopsy on Mrs Parkes' body. Dr Duflou found "evidence of extensive injury to the head, consistent with having been caused by a number of blows with a heavy object". In Dr Duflou's opinion, the presence of defensive injuries on Mrs Parkes' right hand suggested that for at least part of the assault on her she would have had at least some residual level of consciousness. 27 As I have already stated, on 17 January the prisoner made a statement to police and on 21 January 2005 he participated in an electronically recorded interview by police and in both the statement and the interview he gave the untrue version of events which I have already outlined. On 13 February 2005 the prisoner participated in a videoed "walk through" interview in which he demonstrated, consistently with the account he had given in the statement of 17 January and the interview of 21 January, what he said he had done on 16 and 17 January 2005. 28 After this interview had been conducted, the police officer in charge of the investigation into Mrs Parkes' death had a conversation with the prisoner. The police officer told the prisoner that the focus of the police investigation was on the prisoner, that police knew when and how Mrs Parkes had been killed and that the officer thought that the prisoner knew why she had been killed. The prisoner said that he would not be admitting anything until the results of forensic tests had been received. The prisoner told the police officer that he needed time in which to speak to his children and to get his affairs in order. He said that he would come to the police station the following week and tell police what had really happened. The police agreed to allow the prisoner the amount of time he asked for. 29 On 18 February 2005 the prisoner voluntarily went to Dee Why Police Station. He participated in an electronically recorded interview in which he admitted that some of the information he had given in his previous statement and interviews had been untrue and in which he admitted that he had killed his mother on 16 January 2005 by striking her on the head with a piece of discarded water pipe. There was no suggestion in the proceedings on sentence that I should not accept as being true, and I accept as being true, the answers given by the prisoner in this interview of 18 February 2005 concerning the commission of the crime and events following the commission of the crime. The following statement of facts about those matters is based on answers given by the prisoner in the interview of 18 February 2005. 30 On three or four occasions in the last couple of years up to 16 January 2005 the prisoner had had thoughts of killing his mother but he had not gone ahead with any planning to do so. 31 The prisoner's mother drove him "completely crazy". "She nags the shit out of me". His mother was always bringing up the same topics again and again, going over her childhood and the deaths of her husband and her daughter. The prisoner's mother treated the prisoner like a small child, while demanding that he be "the servant and the helper and the carer and the shopper and the cook". The prisoner's mother criticised the prisoner about his marriages and his lifestyle. 32 On the morning of 16 January 2005 the thought that that day might be the day on which he killed his mother occurred to the prisoner. The thought would not go away and kept coming back. 33 After arriving at his mother's house in the morning of 16 January, the prisoner noticed a discarded piece of pipe in the garden and the thought occurred to him that, if he hit his mother across the forehead with the pipe, he would be able to make it look like an accident. However, he concluded that such a plan would not work. 34 After the prisoner returned to his mother's house in the late afternoon of 16 January the prisoner looked at a jack in the boot of his car but decided that the jack would be too clumsy a weapon and that, if he used the jack to strike his mother, traces from the striking of his mother would be left on the jack. He also considered, and discarded, the idea of using a wheel brace in the boot of his car. 35 After the evening meal had been prepared and eaten and while his mother was watching television, the prisoner put on a pair of disposable gloves which were kept at his mother's house and which the prisoner used to put on, while putting drops in his mother's eyes, so as to prevent cross-infection. He put the gloves on, so that he would not leave any fingerprints. The prisoner then went into the garden and got the piece of water pipe he had noticed earlier. 36 After re-entering the house the prisoner spent a number of minutes pacing up and down in various places inside the house, with the piece of pipe in his hand. The prisoner then struck his mother across the forehead with the pipe. She put her hands up and the prisoner struck her a second time on the forehead. In a walk through interview conducted on 18 February the prisoner said that he struck his mother a third time on the forehead and I find that he struck his mother at least three times on the forehead. 37 The prisoner then left his mother and, to make it look as if there had been a robbery, ransacked the bedroom in the house and removed the money which had been in his mother's purse. 38 The prisoner could hear his mother talking, saying "This is not supposed to happen this way". The prisoner realised that his mother knew that it was he who had attacked her. She was wiping blood from her forehead with a tissue. 39 It occurred to the prisoner that, as a consequence of his mother suffering from Paget's disease, the bones in her skull might be thicker than normal. The prisoner told police "I didn't want her to suffer at that point". The prisoner then struck his mother a number of times on the top of her head with the pipe. He used as much force as he could muster. 40 The prisoner sat down inside the house for a few minutes. He could hear rattling noises from his mother's lungs. The prisoner left the house, knowing that his mother was still alive but that she would not live very long. He left a door partly ajar, so as to give the impression that a robbery had occurred. 41 The prisoner put into a plastic bag the piece of pipe he had used to strike his mother and the disposable gloves he had worn. In the walk through interview of 18 February 2005 the prisoner admitted that, in doing this, he was attempting to conceal articles which might provide evidence that he had assaulted his mother. The following morning the prisoner went to an area of bushland near the Spastic Centre, with which he was familiar, and threw away the piece of pipe, the two gloves and the plastic bag in three different places in the bushland. 42 During the interview on 18 February 2005 the prisoner told police that he had retrieved one of the gloves and he handed over that glove to the police. The interview was suspended while the prisoner went with police to the area of bushland. The prisoner indicated to police where he had thrown the various items and police succeeded in recovering the piece of pipe, the other glove and the plastic bag. 43 On the evening of 16 January 2005 the prisoner, after killing his mother, withdrew the sum of $800 from his mother's loan account by using an ATM. On 17 January 2005 he withdrew a further sum of $800 from the loan account and a sum of $350 from a bank account of Mrs Parkes'. Mrs Parkes had agreed to the first withdrawal of $800 being made, to enable the purchase of a lawn mower. However, Mrs Parkes had not agreed to the other withdrawals being made. The prisoner gave police the remaining unspent proceeds of these withdrawals. 44 On 17 January 2005 the prisoner deliberately conducted himself as if nothing had happened and he left it to Mrs Barrett to discover his mother's body. Further Subjective Circumstances of the Prisoner 45 In stating the background to the offence I have already referred to a number of the subjective circumstances of the prisoner. The further subjective circumstances I will now state have been derived from the prisoner's oral evidence in the proceedings on sentence and from the history given by the prisoner given to Dr Giuffrida, as recorded in Dr Giuffrida's reports, which the prisoner said in his oral evidence was true. The two sources of information are not always entirely consistent with each other, particularly with regard to dates. 46 In about 1980 the prisoner married his first wife, by whom he had three children, a son Sean born in November 1982, a daughter Vanamali born in January 1986 and a daughter Ramani born in November 1988. Ramani suffers from a mental disability. 47 The prisoner's first wife joined a Hare Krishna sect and the prisoner and his wife moved to a Hare Krishna commune. 48 The prisoner separated from his first wife in January 1993 and they were divorced the following year. The prisoner was awarded custody of the three children of the marriage. 49 After separating from his first wife the prisoner had a brief relationship with a woman living in Melbourne. However, the relationship failed after a couple of months. 50 In 1995 or 1996 the prisoner married his second wife. At some time after the marriage the prisoner and his second wife moved to Murwillumbah, where, although married, they lived in separate houses, because the prisoner's children and his second wife's children were not compatible. This marriage also failed and the prisoner and his second wife separated. 51 On 5 December 1996 and 21 February 1997 the prisoner committed robberies in banks, whilst armed with a rifle which was not loaded. On each occasion the prisoner carried a Molotov cocktail, which he ignited and threw, while he was inside the bank, causing a fire in the bank premises. The prisoner committed the robberies to get money to pay his debts and to support his children. 52 An unusual feature of each robbery was that the prisoner had dressed in women's clothing. In cross-examination in the proceedings on sentence the prisoner agreed that he had dressed in women's clothing as a disguise in order to mask his identity. 53 On each occasion money was demanded by the prisoner and given to him, the prisoner fled from the bank premises, discarded the women's clothing and drove away in a car which he had had fitted with Queensland number plates, which he had acquired from an illicit source. 54 Shortly after committing the second robbery the prisoner was arrested. For the armed robbery offences he was sentenced in the District Court to two fully concurrent sentences of imprisonment of seven years with non-parole periods of three and a half years commencing on 25 February 1997. He was also sentenced for two offences of maliciously damaging property by fire, which were made fully concurrent with parts of the sentences for armed robbery. 55 While the prisoner was in prison serving the sentences for armed robbery his son Sean lived with the prisoner's mother, his daughter Vanamali lived with the prisoner's brother Russell and his daughter Ramani was placed with carers by the Department of Community Services. 56 The prisoner was released from prison on parole at the expiration of the non-parole periods of the sentences. For the first three years of the period he was on parole the prisoner did not use illicit drugs. However, for the last six months of the period he was on parole, the prisoner was not required to attend at the office of the Probation and Parole Service and during this period of six months the prisoner resumed using cannabis, of which he had previously been a heavy user. He had first starting using cannabis at the age of fourteen. The prisoner told Dr Giuffrida at an interview in September 2005 that, after resuming using cannabis, he reached the stage of smoking forty cones of cannabis a day. In his oral evidence the prisoner explained that he smoked only cannabis leaf, which he was given free of charge by a friend, and not hydroponically cultivated cannabis. 57 In addition to using cannabis, the prisoner was snorting half a gram of amphetamine a week. Apart from illicit drugs, the prisoner had for many years been using large quantities of pain killers containing codeine. 58 In about 2002 the prisoner obtained employment as a greenkeeper at a golf club. From September 2002 to the time of the murder the prisoner was employed by the Spastic Centre Business Services at Frenchs Forest. His duties included transporting some of the Spastic Centre's employees each morning and each afternoon between their homes and the Centre. He was also responsible for the maintenance of the bus in which the employees were transported. The employees had physical and intellectual disabilities ranging from mild to profound. According to his employer, the prisoner was trusted, reliable and always dependable. The Prisoner's Mental State and Condition 59 The prisoner pleaded guilty to the charge of murder and did not raise any defence of mental illness or substantial impairment by abnormality of mind. However, although neither defence was raised, it was submitted on behalf of the prisoner in the proceedings on sentence that his mental state and condition were relevant to his sentencing. 60 As I indicated earlier in these remarks, the evidence in the proceedings on sentence included two reports by Dr Giuffrida and oral evidence by Dr Giuffrida. 61 The first report was dated 9 September 2005 and was based on an interview and examination of the prisoner on 5 September 2005, while the prisoner was in custody in a special programmes unit at the Long Bay Correctional Centre. The second report was dated 6 February 2006 and was based on an interview and examination which apparently took place on the same day, while the prisoner was in custody in an acute crisis unit at the Long Bay Correctional Centre. 62 Both of Dr Giuffrida's reports record a considerable amount of personal history of the prisoner which the prisoner had supplied to Dr Giuffrida. On the application of the Crown, I made a ruling, when Dr Giuffrida was giving evidence, that evidence of the prisoner's personal history which the prisoner had supplied to Dr Giuffrida would merely be evidence of part of the basis on which Dr Giuffrida had formed his opinions and would not be used as evidence of the truth of the history the prisoner had supplied. However, when the prisoner himself later gave evidence in the proceedings on sentence he said that the history which he had supplied to Dr Giuffrida and which Dr Giuffrida had recorded in his reports was, to the best of the prisoner's knowledge, true. 63 Dr Giuffrida's first report is a lengthy document of sixteen pages. I have taken all the report into account but will expressly refer to only certain parts of it. 64 In his first report Dr Giuffrida stated his opinion that it was clear from the history given by the prisoner that the prisoner had, from the age of twelve and throughout his life, had problems with gender identification, feeling more female than male. 65 In his first report Dr Giuffrida recorded that the prisoner had told him that he had started using cannabis at the age of fourteen, that his use of cannabis had gradually escalated, that before he was convicted of the armed robberies he had been smoking up to thirty cones of cannabis a day and that after serving the sentences for armed robbery his use of cannabis had increased to forty cones a day. Dr Giuffrida expressed the opinion that the prisoner's excessive use of cannabis, combined with some use of amphetamine, would almost certainly have caused serious problems with the prisoner's cognitive functioning and in particular his memory. 66 Dr Giuffrida considered it likely that the prisoner would have experienced auditory hallucinations "but on the history I could find little indication of paranoid feeling state or delusional beliefs accompanying the hallucinations, which is unusual". 67 In his first report Dr Giuffrida recorded that the prisoner had told him that he had suffered traumatic injuries to his back and had suffered from chronic arthritis in multiple joints, causing pain and stiffness. The prisoner had taken large quantities of over the counter painkillers containing codeine to relieve his pain and had also used cannabis for pain relief. 68 Dr Giuffrida recorded that the prisoner had suffered from severe depression for which he had sought medical assistance and for which anti-depressants had been prescribed. 69 There are a number of references in Dr Giuffrida's first report to claims by the prisoner that he had heard voices. The prisoner told Dr Giuffrida that by the end of 2001 he started to hear voices around him and that he sometimes attributed these voices to the television. 70 At page 7 of his first report Dr Giuffrida stated:- "He said over time the voices became more vivid and intense. On exploring his experience of voices or auditory hallucinations, Mr Parkes said that these in fact started he thought when he was 14 years old and from that time on they came and went intermittently. He found that they became more intense and more persistent in the last 10 years and with increasing amounts of cannabis and amphetamine in particular that they became 'louder and more pronounced'. I asked him about the nature of the voices. He said that there were a number of different voices but there was a male voice in particular which also occurred intensely on the day of his offence. He described this as an evil voice and attributed it to the devil. He said that on a number of occasions in the weeks or months prior to his offence that the voice became threatening and commanding and in response to this he left the house he said with a weapon with the thought of harming someone presumably in the street. He said the voices tend to occur when he was at home and seemed to come through the TV or the stereo. The voices were mostly outside his head but on occasions were inside his head. He said that the voice tormented him that he would die soon and at times commanded him to kill himself and to slash his wrists. He said that he continues to have these voices every night in his cell. ……. He said that he had continuing thoughts of harming and indeed killing his mother together with voices commanding him to do so throughout 2003 and 2004. This became more intense when he started looking after her directly and continuously in December 2004…." 71 At page 8 of his report Dr Giuffrida said:- "Mr Parkes told me that the thought of killing his mother only fully crystallised on Sunday 16 January 2005, the day of the offence. He said that he experienced a voice which he described as evil telling him that he was 'the instrument', of his mother's death. He said that he woke up with that voice and had it all day. He said that the voice told him that 'her time was up and she had to leave this world'. He said that he felt commanded and controlled by the voice to carry out the command". 72 In his first report Dr Giuffrida recounted that, since the prisoner had been in custody after his arrest in February 2005, the prisoner had been severely depressed and suicidal, cutting his wrists and swallowing razor blades. The prisoner had been kept in a safe cell, with all opportunities for self-harm removed. He had been seen by three psychiatrists, who had prescribed antidepressant and antipsychotic drugs. 73 On pages 11 and 12 of his first report Dr Giuffrida recorded his findings on an examination by him of the prisoner's mental state. Dr Giuffrida recorded that the prisoner was very despondent and that the prisoner said he continued to entertain suicidal thoughts. Dr Giuffrida continued:- "… He was able to speak to me for about two hours and responded readily to questions and spoke articulately with no impediment and with normal inflection and I could find no evidence of thought disorder at any time. He did not particularly dwell on any particular theme of his history, although the prevailing content as can be seen was one of sadness and failure throughout his life. There was certainly not at any point any indication of overvalued or paranoid delusional ideas. He did not in particular appear to experience any passivity delusions such as delusions of control or of external parties inserting or withdrawing thoughts from his mind. On the other hand he said that he continued to experience intermittently voices which appeared to come from outside him and mostly occurred in his cell at night and which in the past he had attributed to the television or stereo. I did not gain the impression at any stage that he was responding to auditory hallucinations in the course of the interview. He demonstrated a good deal of insight into the nature of his psychiatric disorder and indeed recognised that the auditory hallucinations were abnormal and that their commands in the past to kill his mother and or himself were grossly pathological. It seemed clear from his history that, although he stated that he had experienced such command auditory hallucinations, that he recognised that their commands were wrong and immoral and it seems clear that for a long period of time he resisted them. His description of the auditory hallucinations occurring in the context of heavy cannabis and amphetamine use did not sound entirely convincing, insofar as the auditory hallucinations routinely seen in amphetamine abuse are almost always of a threatening and persecutory nature and it is most unusual for hallucinations to be entirely of the command type in amphetamine and cannabis intoxication. A description of the voices coming from around him and his attribution to the television suggested of course an underlying psychotic illness such as schizophrenia, although I have to say that I was not entirely convinced that these were characteristic of a functional psychosis such as schizophrenia. Cognitively Mr Parkes appeared to be relatively intact considering his life long history of cannabis and other drug abuse and I would have expected there to have been greater cognitive impairment particularly in relation to memory. He had a very detailed memory of past events and was able to give these in a fairly precise chronological order so there was good organisation of his thinking. His concentration and attention throughout the interview was good". 74 On page 12 of his first report Dr Giuffrida expressed the opinion that central to the prisoner's psychopathology was a core gender identity disorder, that related to this was a gender identity dysphoria, that the prisoner had suffered a virtually life long dysthymic disorder of mood, including poor self esteem and feelings of hopelessness, that on a number of occasions in his life the prisoner had suffered from episodes of a major depressive disorder of a recurrent type and that the prisoner had an underlying avoidant personality disorder, leading to the prisoner being inhibited and socially withdrawn. Dr Giuffrida considered, and rejected, a diagnosis that the prisoner suffered from schizophrenia. However, he concluded that there had been an element of a drug induced psychosis leading up to and probably present at the time of the offence. 75 At pages 13 to 15 of his first report Dr Giuffrida reviewed and commented on some of the documents which had been supplied to him. With regard to transcripts of the police interviews of the prisoner, Dr Giuffrida commented that the prisoner had seemed to be able to understand questions put to him and to respond readily and coherently. Dr Giuffrida noted that, when interviewed by police in February 2005, the prisoner had not referred to experiencing auditory hallucinations and, in particular, command hallucinations ordering him to kill his mother. 76 On the final page of his first report Dr Giuffrida considered whether defences of mental illness or substantial impairment were available to the prisoner. 77 Dr Giuffrida did not consider that a defence of mental illness was available to the prisoner. 78 Dr Giuffrida was unconvinced that the prisoner was experiencing command hallucinations at the time of killing his mother, because it was unlikely that such command hallucinations would have existed in the absence of other psychotic signs, such as other hallucinations or delusional beliefs flowing from the hallucinations. In addition, even if the prisoner had experienced command hallucinations, on his own account he had experienced such hallucinations previously and had resisted them, so that it was difficult to accept that he did not know that what he was doing in killing his mother was wrong. Dr Giuffrida added:- "There is also the evidence of his interview with police which, if taken as fact, indicates or at least implies that his actions were consciously planned of his own volition rather than being driven by a command hallucination. There is the additional fact that he stated to police that he had hoped to make his mother's injuries look like an accident and/or that his mother had been subject to an aggravated break and enter resulting in her death, in view of his ripping the phone cord out of the wall and I presume the withdrawal of cash on her key card or credit card. This would rather suggest a conscious and planned attempt to avoid incrimination. For those reasons I cannot see that Mr Parkes would have a McNaughton's defence available to him." 79 With regard to availability of a defence of substantial impairment, Dr Giuffrida said:- "I believe there is considerable evidence for a finding of an abnormality of mind arising from an underlying condition in so far as Mr Parkes has a long standing, almost life long history of serious psychiatric conditions, the most significant of those being a serious gender identity disorder, recurrent episodes of major depression, one episode of which is very highly likely to have been present at the time of the offence together with a long and serious history of substance abuse and dependence which in all likelihood would have exacerbated his psychiatric symptoms generally and the episode of major depression in particular. In addition I think it is likely that at times in the context of serious intoxication with cannabis and amphetamines, that he developed auditory hallucinations, although I am unsatisfied that these were necessarily of a command type at the time of the offence. All of these conditions are long standing and indeed represent a pre-existing and underlying condition. It is my opinion that these abnormalities of mind affected Mr Parkes' capacity in the most general sense to understand events, although I do not think that there is any question that he did not understand the specific nature of his offence. Whilst I do not think that this abnormality of mind caused him to be totally devoid of the capacity to make a moral judgment in relation to the offence and did not deprive him entirely of that capacity, I believe that it caused some significant and probably substantial impairment of that capacity. On the other hand the concerns that I have expressed in relation to the McNaughton's defence would apply here". 80 The opinions expressed by Dr Giuffrida in his second report, all of which I have taken into account are generally in accordance with the opinions he expressed in his first report. 81 In February 2006, when Dr Giuffrida interviewed and examined the prisoner for his second report, the prisoner was being held in an acute crisis unit at the Correctional Centre, because of the risk of self-harm. The prisoner had made a further attempt at suicide. 82 On a mental state examination by Dr Giuffrida in February 2006 the prisoner presented much as he had on the previous examination in September 2005. 83 In his second report Dr Giuffrida said that his diagnoses of the prisoner remained as before. 84 In his second report Dr Giuffrida addressed the question of the level of risk the prisoner posed to others. Dr Giuffrida considered that the prisoner's violent offence against his mother was very specific to that particular relationship and the circumstances existing at the time of the offence. Dr Giuffrida noted that the prisoner had resided with his mother on and off for many years and had not on any other occasion been violent to her. There was no history of any violence by the prisoner against any of his partners or his children. Dr Giuffrida considered that, given the highly specific nature of the prisoner's violence in the offence against his mother, he would be only a low to moderate risk to others, "if the future risk factors could be managed with a focus on the relationship with anyone whom Mr Parkes lived with in the future". 85 In his oral evidence in chief Dr Giuffrida said that he had not, until the day on which he gave evidence, viewed the video recording of the walk through interview of the prisoner on 18 February 2005. Dr Giuffrida said that in the video the prisoner appeared remarkably similar to the way in which he had appeared on the two occasions on which Dr Giuffrida had interviewed and examined the prisoner. 86 Dr Giuffrida gave the following evidence:- "On the two occasions that I have seen him and on that video, he's always struck me as alert. He has been remarkably cognitively intact. He is able to give a detailed, coherent history with a good deal of detail, seemingly good recollection of recent and remote events. He's always been clearly despondent in his mood ….his affect has always been and throughout the interview consistently flat and very restricted in its range. So certainly has always appeared depressed, but on no occasion have I found him to show any formal signs of psychiatric illness in the sense there's never been a formal thought disorder, no evidence of any delusional ideas or has he ever appeared to be responding to auditory or other hallucinations…" 87 In his oral evidence Dr Giuffrida drew a distinction between a person being currently and temporarily intoxicated by an intoxicating substance and a person suffering from long term psychotogenic effects of using the substance. At a particular time the prisoner might not have been currently intoxicated by a substance but he might have been suffering from the long term psychotogenic effects of using the substance. 88 In cross-examination Dr Giuffrida said that the prisoner was shown in the video of the walk through interview of 18 February as functioning "pretty well" and better than Dr Giuffrida would have expected. Dr Giuffrida opined that the prisoner had developed a high level of tolerance to cannabis. 89 In his oral evidence Dr Giuffrida expressed the opinion that the prisoner had found coping with his own life a struggle and that the burden of looking after his mother had pushed him beyond his capacity. Dr Giuffrida agreed that the experience of looking after his mother for a few weeks had given the prisoner an insight into what the future had in store for him. 90 In his own evidence in chief the prisoner said that it had distressed him to leave his employment with the Spastic Centre and to know that he would have to look after his mother on a full-time basis. 91 It was submitted on behalf of the prisoner that I should find that at the time of committing the offence the prisoner was subject to abnormal mental conditions. It was submitted that I should accept Dr Giuffrida's opinions about the mental conditions affecting the prisoner and should find that these mental conditions had, to some extent, impaired the prisoner's capacity to control himself when he found himself facing a future as his mother's full-time carer, his capacity to appreciate the nature and seriousness of what he was proposing to do and his capacity to judge whether what he was proposing to do was right or wrong. 92 I will now make findings about the prisoner's general mental condition and about his mental state at and about the time of committing the offence. I accept Dr Giuffrida's evidence that the prisoner has a longstanding gender identity disorder, a related gender identity dysphoria, a virtually life long dysthymic disorder of mood including poor self esteem and feelings of hopelessness, that he has suffered from episodes of a major depressive disorder and that he has an underlying avoidant personality disorder leading to the prisoner being inhibited and socially withdrawn. I accept that since being imprisoned the prisoner has been suicidal. 93 The prisoner does not suffer from schizophrenia and does not suffer from any psychotic illness. 94 For many years the prisoner has abused cannabis. However, for at least some time before the offence was committed the prisoner was smoking cannabis leaf and not cannabis heads and he had developed a high level of tolerance to cannabis. He had resumed using cannabis after he had been abstinent while he was in prison for the armed robbery offences and then while he was being supervised on parole. He was not intoxicated by cannabis at the time of committing the offence. 95 I do not consider that at the time of committing the offence the prisoner's capacity to function was impaired to any significant extent by the long-term effects of abusing cannabis. 96 Particularly when interviewed by Dr Giuffrida in September 2005 and February 2006 the prisoner claimed that he heard voices, that is that he had auditory hallucinations and that he had had an hallucination of a voice commanding him to kill his mother. 97 There is no reference to the prisoner hearing voices in his interviews by police on 21 January 2005 and 13 February 2005, although this could be regarded as unsurprising, because in each of these interviews the prisoner was seeking to convey that he had had nothing to do with his mother's death. However, I consider it significant that there is little reference by the prisoner to hearing voices in the lengthy interviews of the prisoner on 18 February 2005, in which the prisoner disclosed that he had killed his mother. 98 In these interviews the prisoner spoke, almost exclusively, in terms of thoughts occurring to him, not of voices telling him something. The only reference to a voice or voices in these interviews, to which I was directed by counsel or which I have been able to discover for myself, is an answer at p 22 of the transcript of the walk through interview on 18 February 2005, where the prisoner said that "A voice in my head was saying 'enough is enough'". 99 There are brief references to the prisoner reporting hearing voices in Department of Corrective Services documents in February and March 2005. 100 Dr Giuffrida was of the opinion that the prisoner was not responding to any auditory command hallucination when he killed his mother and I accept Dr Giuffrida's opinion. Indeed, counsel for the prisoner did not make any submission to the contrary. Furthermore, I do not consider that the prisoner was suffering from an auditory hallucination of any kind at the time he killed his mother. I am prepared to accept that at some other times he might have had auditory hallucinations. 101 I accept Dr Giuffrida's evidence that the prisoner showed no sign of psychotic illness or of delusions or of disordered thinking and that he was cognitively intact, with a good memory. 102 Dr Giuffrida expressed the opinion in his first report that the prisoner's capacity to understand events "in the most general sense" had been affected by his mental disorders, although there could be no question but that he understood the specific nature of his offence. Dr Giuffrida also expressed the opinion in his first report that the prisoner's capacity to make a moral judgment had been impaired by the same mental disorders. 103 Having regard, in particular, to the prisoner's evidence in the interviews of 18 February 2005 about the steps taken by him in preparing to commit the offence, the steps taken by him in the actual committing of the offence and the steps taken by him in attempting to conceal his responsibility for the offence, and to concessions made by Dr Giuffrida in his oral evidence, I do not consider that the prisoner's capacity to understand events or to judge whether his actions were right or wrong was in any way impaired by his mental disorders. I do accept that the prisoner's mental disorders did, to some extent, impair his capacity to control himself when he found himself facing a future as his mother's full-time carer. 104 The prisoner's mental disorders have already made, and will continue to make, imprisonment more onerous for him than it is for a normal person. Factors Generally 105 The maximum sentence for murder is imprisonment for the life of the offender. However, a sentence of life imprisonment is reserved for the worst class of case and it was not suggested by the Crown that the present offence merited a life sentence. 106 The standard non-parole period under Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act for the offence of murder is twenty years. However, as the prisoner pleaded guilty to the offence, the standard non-parole period is not applicable R v Way (2004) 60 NSWLR 168 at 184-185 (68-71). However, the standard non-parole period still has relevance as a point of reference. I consider that the offence was at least in the middle of the range of objective seriousness for offences of murder. 107 I summarise some of the more salient objective facts of the offence as follows. 108 The victim of the offence, the prisoner's mother, was eighty-four years old and suffered from a number of serious health problems. She was largely dependent on the prisoner. 109 The prisoner killed his mother by striking her a number of times on the head with a piece of pipe, using considerable force. A short interval of time elapsed between the prisoner first striking the victim on her forehead and then striking the victim on the top of her head. The prisoner clearly had an intention to kill his mother. 110 The prisoner killed his mother, because he found her conduct towards him intensely irritating and frustrating and because he found the prospect of continuing to care for her unendurable. I accept that his capacity to endure that prospect was lessened to some extent by the longstanding personality disorders to which he was subject. 111 The prisoner did not kill his mother in response to any auditory hallucination. His capacity to understand what he was doing and to judge that it was morally wrong was not impaired by any mental state of the prisoner. 112 The offence was premeditated in that prior to 16 January 2005 the prisoner had sometimes thought of killing his mother and from early in the morning of 16 January 2005 he had been thinking of killing her. 113 There was a moderate degree of planning in that the prisoner first considered, and then rejected, using a car jack or a wheel brace as a murder weapon and then selected a discarded piece of pipe as the weapon he would use. The prisoner put on gloves which were at the premises, so as to avoid leaving his finger prints on the piece of pipe. 114 After committing the offence the prisoner took a number of steps in an endeavour to conceal his responsibility for the killing, including disposing of the murder weapon and the gloves he had worn. 115 I have already referred to a number of factors which are aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act, such as (k) that the offender abused a position of trust or a position analogous to a position of trust, (l) that the victim was vulnerable and (n) that there was some planning. Many of the aggravating factors listed in s 21A(2) are elements of, or inherent in, an offence of murder. Although there were two separate assaults, I would not find that there was gratuitous cruelty, over and above the cruelty necessarily inherent in the committing of the offence. I do not regard the prisoner's record of previous convictions as an aggravating factor. 116 A number of mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act are present. 117 The prisoner pleaded guilty to the offence. The prisoner did not immediately admit his guilt and admitted his guilt, only after he had been told by a police officer that he was the principal suspect. The plea of guilty was, however, an early plea of guilty and I would allow a discount of 20 per cent for the utilitarian value of the plea of guilty. 118 The Crown disputed that the prisoner had shown any contrition. It is true that the regret the prisoner expressed was for the effect of the crime on his children and the other members of his family, rather than contrition for the killing of his mother. I will, however, allow a small discount for contrition. 119 Counsel for the prisoner submitted that I should allow the prisoner a discount for assistance provided by the prisoner to law enforcement authorities in the investigation of his mother's death. Between 17 January 2005 and 13 February 2005 the prisoner did the opposite of assisting the authorities, lying to police in the statement of 17 January 2005 and in the two long interviews by police. However, on 18 February 2005 the prisoner made full, truthful admissions to police, he retrieved and handed over to police one of the gloves he had worn, he participated in a walk through interview and he showed police where he had thrown the other glove, the murder weapon and the plastic bag in which he had carried the weapon and the gloves from his mother's home. Having been shown by the prisoner where he had thrown those items, the police were able to recover them. 120 It is true that the prisoner provided such assistance, only after he had been told by police that he was the principal suspect. However, although police understandably regarded the prisoner as the principal suspect, it might have been difficult to prove the prisoner's guilt, in the absence of any admission by him. The prisoner had disposed of the murder weapon. As the prisoner had been living in his mother's house any traces of the prisoner's DNA on items in the house might well have been open to an innocent explanation. The prisoner told the police officer in charge of the investigation that he would not say anything until the results of forensic tests had been received, but he would then appear to have admitted his guilt, without having received the results of those tests. 121 I consider that I should allow some discount for the prisoner's assistance. 122 Apart from the two convictions for armed robbery and the convictions for the associated offences of maliciously damaging property by fire (and one traffic offence), the prisoner has no previous criminal history. I take into account the prisoner's service to the Spastic Centre. 123 I accept Dr Giuffrida's opinion that, for the reasons stated by Dr Giuffrida, the prisoner presents only a low to moderate risk of harm to others in the community. 124 I accept that the prisoner has been in some form of protective custody since March 2005, that he is suicidal, that it is likely that he will remain in some form of protective custody for the term of his sentence and that he will find prison life more onerous than do prisoners in the general prison population. 125 I find special circumstances in the prisoner's mental disorders and his need for treatment for these disorders. 126 The sentence I pronounce will commence from 18 February 2005, when the prisoner was taken into custody. 127 For the offence of murdering Grace Winifred Parkes, I sentence you to a term of imprisonment. I set a non-parole period of thirteen years commencing on 18 February 2005 and expiring on 17 February 2018. I set a balance of the term of five years. The earliest date on which you will be eligible to be released on parole will be 17 February 2018. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.