New South Wales Supreme Court CITATION : R v Mark Anthony COLLON [2008] NSWSC 174 HEARING DATE(S) : 18 and 22 February 2008 JUDGMENT DATE : 7 March 2008 JUDGMENT OF : Mathews AJ DECISION : Sentenced to a term of imprisonment consisting of a non-parole period of 14 years and six months, commencing 27 October 2006 and expiring on 26 April 2021. Balance of term of imprisonment six years and six months, commencing 27 April 2021 and expiring 26 October 2027. Earliest date eligible for release is 26 April 2021. CATCHWORDS : CRIMINAL LAW - murder by stabbing - plea of guilty - mid range of objective seriousness - prior criminal record - mitigating factor of youth - finding of special circumstances PARTIES : Regina Mark Anthony COLLON FILE NUMBER(S) : SC 2007/3374 COUNSEL : Mr J Crespo (Crown) Mr P Winch (Accused) SOLICITORS : S Kavanagh (Crown) SE O'Connor (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MATHEWS AJ 7 March 2008 2007/3374 R v Mark Anthony COLLON REMARKS ON SENTENCE 1 HER HONOUR: On 18 February 2008 Mark Anthony Collon pleaded guilty to a charge that on 27 October 2006 he murdered Daryl Ogden. 2 The background of the matter is as follows: In October 2006 the offender, who was then 21 years old, shared a home unit in Redfern with the deceased, then aged 24. The unit was owned by the Department of Housing and subcontracted to the South Sydney Youth Service. The offender had lived there since late 2005, through the services of an organisation called Open Family Australia, which provides assistance and accommodation to homeless people. The deceased moved into the unit in August 2006. The two of them did not get on well together. They had a number of differences, mainly about domestic matters. Both of them told officers from Open Family Australia that they did not want to continue staying in the unit. Various attempts were made to resolve the issues between them. Meetings were arranged for 25 and 26 October 2006. The deceased attended these appointments but the offender failed to attend. The deceased was apparently apprehensive about the offender's behaviour. He told a friend that he placed his bar fridge across his bedroom at night so that the offender could not come in. 3 On the morning of 27 October 2006 a third meeting was scheduled between the offender and the deceased. Yet again the deceased arrived at the meeting but the offender failed to attend. Later that day the offender was telephoned and told that his non-attendance meant that he might be asked to leave the unit. That evening, between 7.00 and 7.30, the occupant of a neighbouring unit heard yelling. At 7.26 that evening the offender made a 000 call to ambulance emergency. He said "I just stabbed a guy, man." A little later the operator asked if the patient was conscious, he said "I fucking killed him." Later when asked to put pressure on the patient's bleeding he said "I can't, I slit his throat. I stabbed him first." 4 The tape of these calls was played in court during the sentencing proceedings. They showed that the offender was extremely stressed at the time and on the verge of panicking. Indeed the telephone operator had to get him to moderate his rapid breathing. During the course of the call the ambulance officers arrived at the premises. The offender sent them upstairs saying "I've stabbed him, he's dead." 5 The police arrived very shortly afterwards. At that time the offender was seated at the entrance to the block of units, rocking backwards and forwards, covered in blood, with tears running down his face. He was making a humming noise. He told the police that he had started sniffing butane at about 9.00 or 10.00 that morning and had been drinking wine from 2.00 pm. He said "Daryl came home about 7.30pm and we had a fight. Daryl had stolen a pack of my cigarettes and damaged my bedroom door. Daryl also accused me of taking his play station too. I went into the kitchen and grabbed a long carving knife and then I stabbed him in the eye then cut his throat." 6 The offender was taken to Redfern Police Station where an ERISP was conducted later that night. The offender told police that he and the deceased had an argument which degenerated into a fight. He, the offender, was the first to throw a punch. After a short time he, the offender, went into the kitchen, took a long carving knife and went back into the deceased's bedroom where he stabbed him "in a few places", he was not sure precisely where. Police later went to the unit where they found two knives in the kitchen sink, a large one and a smaller one. The larger knife had obvious signs of blood on the blade. A pair of scissors was found in the deceased's bedroom with blood on both blades. All three items tested positive for blood which had the same DNA profile as that of the deceased. 7 A post mortem examination was conducted on the deceased by Dr Paul Morrow. The significant wounds included: · A stab wound to the right side of the neck that passed downwards through the structures of the side of the neck. · A stab wound to the left side of the back that entered the left pleural cavity and the upper lobe of the left lung. · A large incised wound that passed across the neck. · In addition there were 15 superficial wounds to the head and neck, at least 4 wounds to the hands and 8 relatively superficial wounds to the deceased's back. 8 I turn now to discuss the offender's personal background. This comes from several psychiatric and psychological reports, but principally from the report of Dr Rosalie Wilcox, forensic psychiatrist, dated 17 December 2007. 9 The offender is 22 years old, having been born on 16 September 1985. The offender had an extremely disturbed and disrupted childhood. When he was 3 or 4 years old his mother left the family home leaving the offender and his older brother in their father's care. For the next two years or so the offender lived with his paternal grandparents. Then his father remarried and he and his brother returned to live with their father and step-mother. It is apparent that the offender suffered a great deal of physical and mental abuse at the hands of both his father and his step-mother. The first official notification of child abuse occurred in 1992 when he was 7 years old. Many more followed. At the age of 10 the offender was placed into Glenfield Park Special School for children with behavioural problems and learning difficulties. At about that time he was diagnosed with Attention Deficit Disorder and placed on medication. When he was 12 years old his father, saying that he was unable to control him, handed him over to the care of DOCS and he was made a State ward. He has had minimal contact with his father since then. He was put into various placements but foster care was always unsuccessful, with the offender generally running away after a relatively short time. He spent a great deal of time on the streets, saying that he preferred this type of existence. 10 Starting at about the age of 12 the offender has been a consistent substance abuser. He has regularly sniffed significant quantities of butane and has been a binge drinker. He has also been a marijuana user, which he described as his drug of choice. However his principal drug has been butane, because it was cheap and easily available. The offender's schooling was extremely disrupted. He had no secondary schooling and has acquired no further skills since then. 11 The offender has an extremely long criminal history. The material before me does not reveal the full extent of his various attendances before the Children's Court. However the documents do indicate the following offences. As early as August 1998, when he was not yet 13, he was charged with assaulting a police officer in the execution of his duty, and malicious damage to property. In February of the following year he committed several assaults. At that time he was approximately thirteen and a half years old. He was described as already having a "lengthy criminal history." Very significantly, there have been two previous incidents in which he has threatened to use a knife: once in March 1999 and again in May 2003 when he was placed under a Control Order for 12 months in relation to two charges of robbery being armed with an offensive weapon, namely a knife. 12 Dr Wilcox had access to documentation from Juvenile Justice. She noted that there were 98 pages that related to the offender's prior contact with the police. There were multiple reports of the offender's poor impulse control and both threats and acts of violence. 13 Dr Wilcox did not consider that the offender continued to suffer from Attention Deficit Hyperactivity Disorder. She noted that it was generally a condition of childhood or adolescence. She diagnosed him as primarily suffering from poly-substance abuse/dependence. She said "I believe his poor impulse control; difficulty controlling his temper and his aggressive outburst can be explained on the basis of his impaired personality with the progression of his conduct disorder of childhood to an Anti-social Personality Disorder." 14 As to the offender's state of mind at the time of this offence, Dr Wilcox considered that his capacity to control his actions was impaired by an abnormality of mind. That abnormality in turn arose from a combination of his anti-social personality disorder, his substance abuse and his borderline mild intellectual disability. 15 The offender professed to have no memory of the killing itself. Dr Wilcox did not consider that he suffered an alcoholic blackout at the time. Either he was dissembling about this matter or he had deliberately tried to erase the matter from his memory. 16 Dr Jonathon Carne, forensic psychiatrist, assessed the offender at Long Bay Gaol on 22 August 2007. In his report dated 24 August 2007 he expressed the view that the offender suffered from a number of psychiatric disorders. These included Attention Deficit Hyperactivity Disorder and mild intellectual disability characterised by, amongst other things, poor organisation, increased impulsivity and significant poly-drug abuse problem. At the time of the offence he considered that the offender's mental functioning was further impaired by acute intoxication. In a subsequent report dated 18 February 2008, after reviewing more documentation about the case, Dr Carne expressed the view that the offender was not suffering from a psychopathic personality disorder. He set out a recommended treatment plan for him, the first step being that he abstain from all recreational drugs. 17 Counsel for the Crown and the offender both provided detailed written submissions. The following aggravating factors in relation to the offence, as opposed to the offender, were relied upon by the Crown and not disputed by Mr Winch, who appeared for the offender. First that the offence involved the actual use of a weapon and secondly that the offence was committed in the home of the victim. 18 I regard the first of these factors as by far the most significant. Not only did the offence involve the use of one weapon, but the forensic evidence clearly shows that two separate knives and a pair of scissors must have been wielded by the offender against the deceased. The number and extent of the injuries revealed in the autopsy report bear testament to the ferocity of this attack. Because of this factor, the Crown has submitted that this offence falls well above the mid-range of objective seriousness for the offence of murder. 19 I accept that the ferocity and violence of the attack upon the deceased is a serious aggravating factor, as is the fact that no less than three weapons were used. On the other hand, the killing itself was neither planned nor premeditated. There was a background of friction between the two men, but the evidence reveals no previous serious violence between them. The sequence of events which all parties accept as the most likely is this: After the deceased arrived home on the evening of 27th, the offender took a knife intending to threaten him with it. At some point in the confrontation between them, the offender lost control of himself and launched into his ferocious attack on the deceased. He nevertheless had enough self-awareness, and consciousness of the horror of the consequences of his actions, to make the 000 call shortly afterwards. 20 Given the lack of planning involved, I do not consider that the objective seriousness of this offence is as high as the Crown would put it. In my view it is in the mid-range of seriousness for the offence of murder. 21 I turn to consider the aggravating or mitigating factors relating to the offender himself. The most important of the potential aggravating factors is the offender's long record of prior convictions, some of them involving offences of violence. However all of these were committed when the offender was still subject to the jurisdiction of the Children's Court. He has no serious convictions at all as an adult. Mr Winch submits that in these circumstances his criminal history is insufficient to raise considerations of retribution, deterrence or protection of society. The Crown submits that issues of specific deterrence need to be taken into account on sentence. 22 It is very difficult to take account of matters such as specific deterrence or danger to the public in relation to an offender who is going to spend a very long time in custody, given the nature of the offence he has committed. 23 The offender is still only 22 years old. By the time he is eligible for parole he will be in his mid to late thirties. It is appears that his pattern of offending has been closely linked to his substance abuse. It certainly was on this occasion. When he becomes intoxicated, he loses his already–impaired ability to control his impulses. Therefore, it seems to me, his rehabilitation is likely to be strongly linked with whether he can be freed of his alcohol and drug dependence. 24 It follows from all this that although the offender's prior record is clearly a material factor, I do not propose to use it as a substantial aggravating factor in relation to the sentence I am about to impose. It is certainly relevant to the issue of special circumstances. 25 As to mitigating factors, Mr Winch submits that the offender has shown remorse, through his 000 call, his plea of guilty and also through evidence which he gave in the sentencing proceedings when he expressed his feelings of guilt for his actions. I accept that there is a degree of remorse and I take that into account. Much more significant is the offender's plea of guilty. Submissions have been made by both parties as to the timing of this plea, whether it was made at a reasonably early opportunity and the extent of its utilitarian value. I do not propose to go through these in detail. In realistic terms, the plea was made fairly late in the day. In my view a discount of 15% is appropriate. 26 The youth of the offender is a further significant matter to be taken into account. Although this offence is a gravely serious one – the most serious offence in the criminal calendar – rehabilitation is still a very important consideration in relation to a person of his age. In this regard, I repeat my belief that, if the offender can be cured of his alcohol and drug dependence, there is a real chance that he will not re-offend in any serious way. The offender has, as Dr Carne pointed out, suffered a lifetime of physical and emotional abuse, inconsistent and erratic parenting and role models, and alienation from mainstream society. These factors contributed, in Dr Carne's opinion, to the offender's behaviour and state of mind at the time of this offence. 27 All of this is, in my view, highly relevant on sentencing, particularly given the youth of the offender. If the offender receives appropriate counselling and educational programmes, initially in a custodial setting and later in the community, he might have a real chance, despite his dysfunctional background, of becoming a functioning member of the community. 28 A very moving Victim Impact Statement was read in court on behalf of the deceased's mother Debbie Ogden. The court expresses its condolences to the deceased's family. I take the Impact Statement into account in the manner provided in the legislation. 29 The maximum penalty for murder is life imprisonment. The standard non-parole period is imprisonment for 20 years. However this has no direct application in relation to an offender who has pleaded guilty. Rather it is to be used as a guide in assessing the sentence which is appropriate to all the circumstances of the case. 30 I have no difficulty in finding that special circumstances exist in this case given the offender's highly deprived and dysfunctional upbringing and his need for long term assistance in order to enable him to integrate effectively into the community – particularly in relation to his alcohol and drug dependence. However the length of the overall sentence I must impose means that the offender will already have a significant period on parole, even under the statutory proportions. Therefore, the adjustment on account of special circumstances will be a relatively minor one. 31 The offender has been in custody since 27 October 2006 and his sentence is to commence on that date. 32 Mark Anthony Collon for the murder of Daryl Ogden, I sentence you to a term of imprisonment consisting of a non-parole period of 14 years and 6 months commencing on 27 October 2006 and expiring on 26 April 2021. The balance of your term of imprisonment will be 6 years and 6 months commencing on 27 April 2021 and expiring on 26 October 2027. The earliest date upon which you will be eligible for release on parole will be 26 April 2021. ********** 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. 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