R v Harvey [2007] NSWSC 871

New South Wales Supreme Court

CITATION : R v Harvey [2007] NSWSC 871

HEARING DATE(S) : 18/06/2007, 06/07/2007

JUDGMENT DATE : 10 August 2007

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to a term of imprisonment made up of a non-parole period of 10 years and a balance of term of 6 years. The sentence is to commence from 4 March 2006 and he is eligible to be considered for release to parole on 3 March 2016.

CATCHWORDS : Criminal Law - Sentence for Murder after plea where the offender is a young man with severe mental illness - relevance of standard non-parole period in such a case.

PARTIES : Regina v Jonathan Nathaniel Harvey

FILE NUMBER(S) : SC 2006/2148

COUNSEL : M. Grogan - Crown B. Rigg - Offender

SOLICITORS : S. Kavanagh - Crown S. O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

FRIDAY 10 AUGUST 2007

2006/2148 REGINA v JONATHAN NATHANIEL HARVEY

REMARKS ON SENTENCE 1 HIS HONOUR: On 18 June 2007 the offender was arraigned before me on an indictment containing one count of murder and pleaded guilty. The matter had been listed for trial on that date but the Court and the Crown had earlier been advised of the offender's intention to plead guilty on that date. The deceased was a young man of 19 years of age and a friend of the offender. He was killed on 3 March 2006. At the time of the killing the offender was aged 18. 2 The matter proceeded before me by the tender of an agreed statement of facts. The only additional material relied upon by the Crown was a copy of the autopsy report. The following is a somewhat abbreviated form of the facts placed before me. 3 The offender and the deceased had known one another for a period of about 6 months prior to the killing. On a number of occasions the offender had visited the deceased's residence at Kellyville. The deceased's parents knew him as 'Johno'. On the night of 2 March 2006, at approximately 7.30pm, the offender arrived at the deceased's home after having telephoned prior to his arrival. The two men left the house together and walked to the 'Village Centre' shops in Kellyville where they were seen in a car park sometime shortly before 8.00pm. 4 At about that time the deceased telephoned a friend, Neil Woodhouse, and asked whether he and his mate 'Johnny' could come to his house to consume alcohol. Mr Woodhouse had previously met the offender through the deceased on one prior occasion. They arranged to meet at the Woolworths Supermarket in Kellyville and did so at about 8.30pm. The deceased gave Mr Woodhouse $5.00 and he then purchased a 4 litre cask of wine from a bottle shop nearby. 5 The three men then walked to the Woodhouse residence. Upon arriving there at about 9.00pm, they went into the garage and commenced to drink the wine that had been purchased. According to Mr Woodhouse, over a period of approximately one hour the offender drank about seven glasses of wine, the deceased drank three or four glasses of wine and he had two half glasses. 6 At about 11pm, when the offender and the deceased were leaving the garage, an argument broke out between them. It is not clear what was the cause of the disagreement but they commenced swearing at each other. The argument culminated in the deceased throwing a punch at the offender and they then punched at each other in a violent manner moving onto the roadway as they did so. 7 Mr Woodhouse eventually intervened and pulled them apart. They seemed to calm down and walked off together down the road as Mr Woodhouse returned to his home. However as he entered the house he heard the offender and the deceased yelling at one another. This continued for about ten minutes. Being concerned about what had happened earlier, Mr Woodhouse called the police. At 11.12pm he called the deceased's mobile phone and spoke to him. The deceased told Mr Woodhouse that everything was all right. 8 At about 11.45pm the offender arrived at the doorstep of the home of people named McNamara a short distance from both Mr Woodhouse's home and a vacant block where the body of the deceased was later found. At the McNamara residence the offender spoke to two persons present there. He was at that time bleeding from the nose and had blood on his mouth and chin. He asked for some cannabis but was told that they did not have any. He then requested 40c to make a phone call. He was given 50c and a cigarette and he then left the premises walking in the direction of Windsor Road, Kellyville, and away from where the body of the deceased was apparently lying. 9 At about 7.40am the next morning persons living next to a vacant block of land saw the body of the deceased lying face down in the block. They called for an ambulance. They also alerted persons walking nearby who entered the block of land and found the deceased lying prone between two mounds of earth made up of large rocks, dirt and rubble. 10 The deceased was wearing blue denim jeans, a red t-shirt and sneakers. He had blood and two small holes at the back of his head. His arms were extended above his head and his t-shirt was pulled up exposing his torso. There was blood, dirt and loose hair on the top of his hands. There were drag marks found extending from the footpath to where the deceased's body was found. The deceased had injuries to his face and chest and grazes on the inner edges of his elbows, consistent with the drag marks being caused by the deceased's head and elbows. There was a mobile phone in his jeans pocket and under the body was a piece of timber about 600mm long, 70mm wide and 50mm thick. 11 An examination of the mobile phone taken from the deceased established that he was the subscriber. It contained a text message that read "Cal Jonno…" and set out the offender's mobile phone number. The message had been sent on 2 March 2006 at 6.58pm. Examination of the phone showed that on that date there were 18 unanswered calls from the offender to the deceased. The first call was at 10.27am and the last at 7.36pm just prior to the offender arriving at the deceased's residence. The last call received by the deceased on his mobile phone was from Mr Woodhouse at 11.12pm. 12 At 12.05am on 4 March 2006 police executed a search warrant at the offender's residence. He was not at the premises, however his mother told police that he had attempted to commit suicide and had been admitted to hospital. Police contacted Auburn Hospital and confirmed that the offender was there and had undergone surgery for an injury to his arm. He had been admitted with a "long deep laceration" to the left forearm and a laceration to the left wrist. There was also a laceration to his lower lip. He was diagnosed on 11 March while being treated at the hospital as suffering from paranoid schizophrenia. 13 Arrangements were made for a police guard to be placed on the offender at the hospital. At 12.05pm that day police guarding the offender told him that detectives would be arriving soon. The accused asked what they wanted. The police told the offender that they wanted to talk to him regarding what had happened to the deceased. The offender said, "I killed him, he's dead". When asked what he meant, the offender said, "We had a fight, he was carrying on. I tried to choke him. He kept coming at me when I went to walk away…We went to Coles or Woolworths to use the phone…I just remember leaving the shops with James and going near some big dirt mounds. I don't know what happened. I was walking behind him and I just hit him in the back of his head with a piece of wood and I think a rock…I dragged him along the ground". 14 The offender was taken to Flemington Police Station where he declined to be formally interviewed by police. Later a Detective spoke to him about the notes taken of the conversation that the offender had with police while in hospital. The offender generally agreed with what was contained in the notes. 15 A post mortem examination of the deceased concluded that the cause of death was head injury with a chest injury a possible contributing factor. There were abrasions to the deceased's face, a large area of bruising to the forehead and a complex injury over the occiput of the head with a depressed fracture. 16 The offender has a history of suffering from serious mental illness. He was admitted to Westmead hospital in June 2004 as a suicide risk. On 3 July he agreed to be discharged into the care of his mother and to be referred to a community mental health team. 17 The Hills Community Health Centre held a file for the offender, indicating contact from July 2004 up until his arrest. During this period the offender had spoken to a counsellor and a number of different psychiatrists and psychiatric registrars. Anti-psychotic medications were prescribed from time to time. 18 From July to December of 2004 the offender contacted a counsellor, Ms Kemp, from the Centre on eight separate occasions. In July 2004 he reported that he had been "behaving weird" and that he was very depressed. He complained that he frequently became angry and aggressive with people and sometimes did not immediately recognise his friends. He referred to his father's anger, aggression and violence towards him. He had been "trying to repair [his] relationship with Mum but was concerned that he hasn't been able to control his temper outburst when he so wants to change." 19 In September 2004 the offender spoke to Ms Kemp twice. On the first occasion, 19 September, he stated that he was feeling pretty bad and that the voices continued to worry him. He said that he had stopped taking his medication as it did not seem to be helping. An appointment was made for him to see a psychiatrist on 27 September. On the second occasion, 24 September, he advised Ms Kemp that he was very depressed. He complained that the voices in his head were persistent and constant, with no relief. On 27 September the offender met with a psychiatrist and was prescribed new anti-psychotic medication. 20 In October 2004 the offender advised Ms Kemp that he was sleeping about 14 hours a day, and thought it was due to the medication. He was reviewed by the psychiatrist on 11 October and some improvement was noted. On 22 November he reported that he had ceased taking his medication and complained that he wasn't getting any better. 21 In December 2004 he reported to Ms Kemp that he had no enjoyable activities. He said he liked to get 'smashed' but this gets him into trouble. He reported having difficulties participating in conversations and that he had withdrawn so as to avoid having to talk to people. He said that he had been "trying to change his attitude 180 degrees to how it has been the last 12 months". 22 In January 2005 the offender told Ms Kemp that he felt that he had to change his attitude to people but that it was difficult when he was paranoid and hearing voices all day long. He agreed to go back on to medication. On 7 February he asked Ms Kemp about anti-depressants but was unwilling to agree to an appointment to see a psychiatrist. 23 There is no report of treatment between June and November 2005 although there was some contact with Ms Kemp. In October 2005 Ms Kemp spoke to a psychiatrist who was treating the offender and was told that he was taking medication. On 28 November the offender had an appointment with Ms Kemp and a psychiatric registrar at the Centre. He reported that he had run out of his medication and indicated that he did not want to continue its use because of weight gain. He was still suffering from auditory hallucinations that were distressing him and he appeared angry, frustrated and irritable. He acknowledged use of speed and expressed unwillingness to give it up. He asked about group treatment to help to deal with his distressing thoughts and voices. 24 There is no further note of any treatment or contact with the Centre thereafter although Ms Kemp had contact with a Juvenile Justice worker who indicated that the offender was unwilling to seek treatment and remained hostile and suspicious. 25 Dr Westmore, a forensic psychiatrist, examined the offender for the purposes of these proceedings on three occasions between May 2006 and March 2007. His diagnosis is that the offender suffers from a chronic, treatment resistant schizophrenic illness. It is probable that the illness has been severely aggravated by the offender's substance abuse problems. The doctor concluded that no defence of mental illness was available because he could not find a connection between the offender's mental illness and the act causing death. 26 The offender claimed to Dr Westmore to have been experiencing paranoia and hearing voices for a "long time." When asked what the voices say to him, the offender said that they tell him to do things such as "drink beer". He recalled that once when his dog became unleashed and he was running to catch the dog, the voices were telling him to kill the dog. 27 In giving a history of the incident leading to the killing to Dr Westmore, the offender said "I was in the car park, Neil went in to get the alcohol [and] I went into Woolworths to get something to eat. When I went in there I heard in my head what they were saying out in the car park, 'what are you doing sticking around with this dickhead.' When I walked back out again, it looked like nothing had been said before." 28 When asked about the time spent in the garage, the offender said that they were "sitting around having a drink". When questioned about how he was feeling at the time, he replied, "I wasn't too happy, that's all I remember." When asked what the argument he had with the deceased was about, the offender said, "They said something about the chip sandwiches that I asked to make when I went around to his house. They were laughing about it." The offender indicated that this made him angry and that he "wasn't in a happy mood to start with." 29 When questioned about the fight that the offender had with the deceased, he said, "No, there wasn't an argument. He said my name and I turned around and he hit me in the head." The offender claimed that this was an unprovoked attack. He stated that he had problems recalling detailed memories about the incident. 30 In relation to the act of self-harm that occurred after the offence, he said that he had been planning to kill himself for about two weeks prior to the incident with the deceased. He could not remember if he had inflicted injuries upon himself because he was upset about what had occurred with the deceased. When asked whether he had been feeling paranoid in the weeks prior to the offence, the offender responded by stating, "I wasn't very paranoid, I was hearing voices and seeing people." He stated that he thought that people wanted to get back at him for things he had previously done. 31 The offender told Dr Westmore that he had previously seen a psychiatrist at the Hills Community Centre for a schizophrenic episode. He recalled that he had been "hearing loud voices outside my ears, delusional thoughts." This had initially lasted for about two months. He said that the voices were both male and female and both internal and external. He said that the medication with which he had been treated at the time had assisted. He said "They reckon it turned into delusions after that" as he had begun believing "that people were talking about me and that I could read their minds." 32 The offender stated that he did not think that he had been on any medication at the time of the killing and that he did not think that he had been hearing voices on that particular day. However, he had been taking speed for about three days prior to the offence and said that "I don't normally hear anything when I'm on speed." The offender stated, "I was hearing voices before that for a couple of weeks telling me to kill myself. I was in the drug court and it got worse after that. I was punching myself in the head, hitting myself over the head with poles." 33 When Dr Westmore saw him in March of this year, the offender was taking anti-psychotic medication that was apparently assisting his condition. However he was still complaining of hearing voices, although this had been reduced by the medication and he still believed people were reading his mind. He had no thoughts of self-harm and his appetite and sleep patterns were normal. 34 At the time of the offence the offender was unemployed and living with his mother in Kellyville. His parents separated when he was aged 14 and he has not had any contact with his father for approximately 4 years. He is the youngest of three children. He left home when he was aged 16 years but returned there to live a few months prior to the offence. He left school in Year 10 and has mainly been employed since then as a labourer. The offender started to use drugs at the age 15. He has a history of using a wide range of illicit substances including cannabis, amphetamines, heroin and ice, although cannabis and amphetamines were the principle drug of abuse. 35 He has a minor criminal record having been dealt with in the Youth Drug Court on 17 November 2005 and placed on probation for 7 months for offences of dishonesty and violence against a police officer. While in custody on remand for the present offence he was found to be mentally ill and transferred to a hospital on a number of occasions, the last being in June 2006. 36 The offender's mother gave evidence before me. She related the history of the offender particularly from the time it first came to notice that he was suffering from a mental illness at the age of 16 and the change to his personality and lifestyle that followed. She explained that he had difficulty taking medication because of its effect upon his energy levels and its interference with his artistic skills. She has visited him in custody and was aware of difficulties that he had experienced because of a change to his medication. She believes that at the present time he has some insight into his illness and in particular the auditory hallucinations from which he suffers. He also appears calmer and less aggressive. 37 Dr Westmore concluded that the offender was mentally ill at, or about, the time of the killing. There is no evidence of a direct relationship between the illness and the killing at least in a temporal sense such that a defence of mental illness was available to him, particularly as he had the onus of proof. He is a poor historian of the events and his thoughts at the time of the killing. However it is clear that as a result of his mental illness he was prone to unfocused anger, irritability, and suspicion. I have little doubt that these symptoms played a significant role in the events leading up to the killing and that on the night the accused had been hearing voices which fuelled his anger towards the deceased because he falsely believed that the other two men had been talking about him and laughing at him. 38 This is clearly a case where the offender's mental illness is a very significant factor in determining the sentence to be imposed upon him for the murder of the deceased. It is a very tragic case and it presents a very difficult sentencing exercise. The deceased was a young man who simply happened to be the focus of the offender's mental illness on this particular night. There is not the slightest evidence of any ill feeling between the two prior to the night of the killing and, had the offender not been suffering from a mental illness, it is highly unlikely in the extreme that had any incident occurred between them that it would have resulted in any serious injury to either man let alone the death of the deceased. There is no evidence as to what triggered their violence to one another after they left Mr Woodhouse's residence but it is clear that they were both participants in fairly violent fisticuffs at that time. The offender apparently suffered some injuries that were obvious later including at least a bleeding nose and a split lip. It is difficult to know what injuries the deceased suffered in the first bout of fighting and what injuries were inflicted at the time he was killed. 39 It can be concluded however that the deceased was struck violently to the back of the head with a piece of timber and that the offender must have intended at least grievous bodily harm of a very significant kind having regard to the weapon used and the seat of the injuries to the back of the skull. There is little doubt that the offender dragged the deceased from the place of the attack by the legs into the vacant lot where he left him. The severity of the injuries inflicted upon the deceased was, as I have indicated, indirectly a result of the symptoms of the offender's mental illness. 40 In my opinion there is significant lessening of the offender's criminal culpability because of his mental illness in that it made him prone to anger, suspicion and subject to auditory hallucinations leading him to misunderstand events surrounding him. There is no evidence that the ingestion by the offender of any illegal drug contributed to his violence on this particular evening. The evidence seems to suggest that his use of amphetamine rather assisted him find relief from the constant voices in his head that so distressed him. Unfortunately it is one of the common symptoms of schizophrenia that persons suffering from the illness will have difficulty complying with medication because of the often paranoid views that they hold about the effects of the medication on their well-being. It is clear that violence exhibited to the deceased arising from the offender's mental illness was turned on himself a short time later for whatever reason. But it seems obvious that physical aggression to others was not a usual consequence of his failure to take medication or a symptom of his mental illness. 41 As well as reducing his moral culpability for the killing the offender's mental illness is relevant in other ways. It lessens the need for general deterrence in this particular case. It does not seem to me to be very relevant that the offender had been using drugs or that this might have been connected with the problems that resulted in his parents separating when he was aged about 14. A failure to take medication might raise questions about personal deterrence and dangerousness but I do not believe that at this stage I should treat him as a potential danger to the community such that there should be an element of preventative detention reflected in the sentence. 42 It is difficult to make any real conclusion about his prospects of rehabilitation. At the present time they might be good because of the insight he has gained into the illness and the need for medication. But he is living in a situation where there is a regulated regime including medication and psychiatric assistance. That would be difficult to replicate outside of custody. Further it will be some years before the offender will be able to be considered for release into the community and no doubt one of the consideration when that stage is reached will be the history of his reaction to treatment and medication during the period of his sentence and what can be done to ensure his continued use of medication when he is returned to the community. 43 In view of his young age at the time he developed the illness and other problems that he faced as a result of the trauma of his upbringing, it would not seem to be a fair evaluation of his prospects for treatment of his illness to consider how he coped with it in the period leading up to the killing. Many young persons in the community have trouble at that age dealing with the problems of life particularly where there has been emotional upheaval in the family without also having to cope with a mental illness that resulted in distressing hallucinations and paranoid thoughts. There is some effect of his illness on the harshness of his custodial situation but it does not seem to me to be very significant in this particular case. 44 Murder is an offence for which a standard non-parole period of 20 years is prescribed. The standard non-parole period is to be imposed in relation to an offence which is considered to be of mid-range of seriousness where the offender was convicted after trial. It may seem curious to non-lawyers that an offence of murder can have levels of seriousness. It is of course one of the most serious offences that we have in the criminal calendar. So far as the parents and loved ones of the deceased are concerned, it must be difficult for them to think that a court would find the murder of their loved one as less serious than the murder of some other person. To the parents and loved ones of the deceased it must be curious that a court can rank murders according to various factors as it is required to do by the legislation. However, the Court is required to determine where a particular murder lies in the range of murders that may be encompassed within the offence and come to a view about the significance of the standard non-parole period as a guide to what the sentence should be. 45 The standard non-parole period, as I have said, for murder is twenty years. That is a standard non-parole period that applies strictly where a person has been convicted after trial. However, it remains a significant guidepost in the consideration to the sentence to be imposed according to the criminal culpability of the offender. It seems to me, as well as I am able to do, that the current offence is one that is well below the mid-range of seriousness of an offence of its kind notwithstanding the use of a weapon. The offender's youth and mental illness are both factors which required that there be a significant reduction from the standard non-parole period as well as a discount for the plea of guilty of 15 per cent. Even if the offender were not mentally ill, the court is always concerned to take into account the youth of an offender and the importance of rehabilitation in deriving the appropriate sentence. But where the offender is both a very young person and mentally ill and has been the subject of that mental illness for a relatively short period of time before the offence, the offence is very significantly reduced in its seriousness, as is the need for punishment of the offender in order to vindicate the death of the deceased. 46 This seems to me to be a case where I ought to find special circumstances because of his youth and his psychiatric illness which would further reduce the non-parole period away from the standard. Both of these matters I have already taken into account in determining the seriousness of the offence as against a midrange of seriousness of an offence of its kind, but it is important in this case that the offender have some encouragement to continue taking his medication and to show to the Parole Authority that he can live in the community without further risk to others by reason of his psychiatric illness. 47 I have already indicated that this is a very tragic matter because a young life has been lost for no real reason other than the effect upon the offender of his mental illness. The statements made by the deceased's mother and father show clearly the impact of this killing on their lives. But the law is that I cannot take their particular loss and the effect of the killing upon them into account to increase the sentence to be imposed upon the offender. I sincerely hope they can understand that the Court cannot impose upon a mentally ill and young offender a sentence that would have been appropriate for someone, for example, who had bludgeoned their son to death for spite, thuggery, robbery or any other sane but criminal reason. This is even though it does not ease their pain or loss to know that it was a senseless killing very much as a result of the offender's disordered mind. 48 It is not the Court's function to try to settle the score as it were where an offence has resulted in the death of another human being whoever that person might be. One often hears complaints that the sentence did not represent the value of the life of the deceased. But if you think about it, it never can. How does one value the life of a young man in the eyes of his family and friends when he has so much potential which has been cut short by the act of another? Retribution is only one of the many aspects of punishment even though it is a very significant one when the court is dealing with an offence where a human life has been taken. The Court understands and truly sympathises with the loss occasioned to the deceased's friends and family. But it cannot hope to replicate that loss in the punishment it inflicts on another young man, particularly one with a severe mental illness which contributed to the offence, and it cannot attempt to do so. 49 The need for retribution or punishment is much diminished where, as here, the culpability of the offender for the killing of the deceased is reduced because the offender suffers from a mental illness that contributed to the killing even though not amounting to a defence of mental illness or a defence of substantial impairment. I accept that I am not sentencing the offender as if he had been convicted of manslaughter but yet in a case such as this the standard non-parole period has much less relevance than it might have been given had the offender not been a very young man suffering a very significant mental illness at the time of killing. 50 Although the offender apparently used a weapon to inflict the injuries that killed the deceased, there is no suggestion other than that it was an object close at hand at the time he determined to use it. There is no planning in the offence and it arose out of some incident between the two men at the time of the killing. There are no other aggravating factors. The Crown quite fairly accepted that the offence was one below midrange and, as I have already indicated, I think that it is well below. 51 I also take into account that imprisonment will be more harsh for the offender by reason of his mental illness. His medication deprives him of much of the few facilities that the gaol environment provides and it is more than likely that he will spend some of his time in the prison hospital as a result of his continuing mental illness. 52 I accept that the standard non-parole period is a guide to the sentence I should impose but, as I have already indicated, in this case it has a very limited role to play because of the offender's youth, his immaturity in dealing with his mental illness and the severity of his mental illness. Although I am setting a minimum period for his incarceration, there is no certainty at all that he will be released at that time because of the seriousness of his illness and the risk that it may pose to others if the offender decided again not to take his medication. As I have indicated, he will have to convince the authorities that he should be released by the way in which he has complied with his medication and treatment in custody. But I will give him the earliest possible opportunity to earn his release commensurate with the fact that he did commit the crime of murder on another young human being. I have reduced the minimum sentence he must serve to produce a longer than normal period on parole to enable supervision and regulation of his treatment over a long period where he will be at risk of being returned to custody for non-compliance. The total sentence without applying the discount of 15 per cent for the plea of guilty would have been imprisonment for about 19 years. I should indicate that the non-parole period that I am about to impose is in my view probably the very least that could be imposed for an offence of murder. However, it seems to me to be appropriate in this case to give the offender the opportunity to earn release and to set a long term of parole with which he has to comply if he wishes to stay in the community. 53 I sentence the offender to a term of imprisonment made up of a non-parole period of 10 years and a balance of term of 6 years. The sentence is to commence from 4 March 2006 and he is eligible to be considered for release to parole on 3 March 2016. **********