Carr v R [2009] NSWSC 995

New South Wales Supreme Court

CITATION : Carr v R [2009] NSWSC 995

HEARING DATE(S) : 10 September 2009

JUDGMENT DATE : 21 September 2009

JURISDICTION : Criminal

JUDGMENT OF : McClellan CJatCL

DECISION : 1. The offender is convicted of the offence of murder. 2. The offender is sentenced to a non-parole period of 12 years to commence on 25 September 2008 and expire on 24 September 2020 with an additional term of 4 years to commence on 25 September 2020 and expire on 24 September 2024. The first day the offender will be eligible to be released to parole is 24 September 2020.

CATCHWORDS : CRIMINAL LAW - sentence - murder - guilty plea - Aboriginal offender - single stab wound - case falls below the mid range of objective seriousness

CATEGORY : Sentence

Andrews v R (2007) NSWCCA 68 CASES CITED : Ceissman v R (2001) 119 A Crim R 535 R v Fernando (1992) 76 A Crim R 58

PARTIES : Andrew Wayne Carr (Offender) The Crown

FILE NUMBER(S) : SC 2007/4280

COUNSEL : M Higgins (Offender) R Hoenig (Crown)

SOLICITORS : N Velcic & Associates (Offender) Director of Public Prosecutions (Crown)

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

McCLELLAN CJ at CL

MONDAY, 21 SEPTEMBER 2009

2007/4280 CARR, Andrew Wayne

JUDGMENT 1 HIS HONOUR: The offender has pleaded guilty to one count of murder. The offence occurred on 21 May 2008. It carries a maximum penalty of life imprisonment. There is a standard non-parole period of 20 years. 2 On the day of the offence the offender and a friend called Thomas Smith aka Thomas Dargan met in Redfern. Throughout the day they drank some alcohol and smoked "ice" (methylamphetamine hydrochloride) on 4 separate occasions and consumed some cannabis. According to Thomas Smith the offender may have consumed about $500 worth of "ice", $400 worth of cannabis and a bottle of Bourbon. However, it is not possible to make a reliable determination of the actual amounts consumed, although they could properly be described as not insignificant. 3 In the evening the offender and Thomas Smith went to a party at a house at 11 Vine Street in Redfern. There were numerous other people at the party including the deceased, William Campbell. 4 Sometime between 10.30 pm and midnight the offender and the deceased had a heated argument in the kitchen of the house. During that argument the offender took a knife resembling a steak knife from a kitchen drawer. Another person at the house tried to convince the offender not to take the knife and said "put the knife down, don't stab him." Other persons also urged the offender to put the knife down. 5 Sometime later the deceased went outside and called upon the offender to come out to fight. The offender was described by one witness as being in the kitchen and "schizzing out trying to look for a knife." The offender then armed with a knife which he had taken from the kitchen ran outside to the front of the house and said "who wants a go?" One witness described the offender as he jumped the back fence as "going out schiz." 6 At the time the offender was leaving the house Thomas Smith and a friend of the deceased were punching each other in the street. The deceased was holding a metal scooter above his head as a weapon and was ready to swing it. There is a suggestion that the deceased may have been using the scooter to stop members of the crowd joining the fight against his friend. The offender ran towards the deceased and yelled "that's a dog act you know." Members of the crowd were calling out encouraging those fighting. The offender then "rushed" the deceased and stabbed him. At the time he was stabbed it is unclear whether the deceased had put the scooter down. The stabbing comprised a single wound to the right hand side of the deceased's chest. The deceased fell to the ground moments after he was stabbed. Some of the other persons present called for the assistance of ambulance officers but although they arrived they were unable to save the deceased. He was pronounced dead at the hospital. 7 Following the stabbing the offender ran away. However, at around 11.25 am the following day, the offender voluntarily attended the Parramatta police station. A short time later he was arrested for murder. He declined to participate in an interview. 8 It is the Crown case that by stabbing the deceased the offender committed an unlawful act which was done with the intention to inflict grievous bodily harm. 9 I am satisfied to the relevant standard that the offender's actions were impulsive, unplanned and were committed at a time when he was affected by the methylamphetamine which he had ingested. The offence resulted from a single stab wound. The offender did not have the intention to kill but intended to inflict grievous bodily harm. 10 The offender is an Aboriginal and identifies with the Aboriginal community living in an area known as "the block" at Redfern. At the time of the offence he was aged 18 years 7 weeks. He is the only child to his parents but has five half siblings. His mother was brought up in Sydney but most of her family were from the north coast of New South Wales. Although the offender spent his early life in Sydney he has also lived at Kempsey, Lismore and Walgett. 11 The offender attended school until the end of primary school. His mother succumbed to substance abuse and he became a State ward and was placed in foster care. He has lived on the streets from time to time from the age of 8. He first came to the attention of the authorities at the age of 10 when he stole food and clothes. The offender has been in juvenile justice centres from the age of 15 including Baxter, Kariong, Reiby, in the Riverina and at Grafton. He had learning difficulties at school and has limited reading skills. Although he had formed one relationship his girlfriend terminated it after his arrest. 12 The offender was examined by Dr Olav Nielssen, psychiatrist who found him to be suffering from a "conduct disorder" primarily because of his criminal convictions from the age of 10 which have resulted in long periods in custody. He was diagnosed as a person who engages in substance abuse and who has a craving for drugs. 13 The offender was also examined by Professor Starmer, a consultant pharmacologist. Professor Starmer describes a particularly severe form of methylamphetamine abuse referred to as a "speed run" in which the user repeatedly administers the drug over a number of days. Apparently tolerance develops quickly and the dose needs to be progressively increased. Towards the end of "the run" dysphoria and in some cases psychosis may develop. There is the possibility that the user may become violent and dangerous. When examined by Dr Nielssen the offender reported persecutory beliefs after periods of continuous use of amphetamine in the past. It is the opinion of both Professor Starmer and Dr Nielssen that the ingestion of amphetamine by the offender would have been likely to have increased his fear and perception of threat which contributed to the response he made to the deceased. However, Dr Nielssen does not believe that apart from some damage to his brain from the abuse of alcohol and other solvents in childhood the offender has a mental illness or underlying mental disease or condition. 14 The offender has a criminal record which includes offences of violence including common assault and assaulting a law enforcement officer, not police. He also has convictions for motorcar offences including taking and driving a conveyance and driving in a manner dangerous. The offender acknowledged that at the time of the offence he was on conditional release for an offence of stealing property in a dwelling. Although the driving offences are of no significance in relation to the present matter, the other offences, and in particular the fact that he was on conditional release at the time of the offence is. 15 The present offence was committed two months into a six month period of supervision. In submissions his counsel acknowledged that reference to his record indicated that the offender has displayed an attitude of disobedience to the law. It was accepted that he should be sentenced on the basis that the commission of the offence while on conditional liberty is an aggravating factor. 16 The offender pleaded guilty but only on the first day of his trial. However, the plea was entered in a context where he voluntarily admitted to the police that he was responsible for the death. The delay was at least in part due to the necessity for the defence to have him psychiatrically examined and give advice as to the options available to him. Although he voluntarily admitted that he was responsible for the death there were many witnesses to the event and his detection would have been inevitable. I will provide a discount of 15% for his plea of guilty. 17 The offender has not given evidence before me. Although he has expressed regret about the fight to Dr Nielssen I have little evidence that he is remorseful. 18 Although the offender has pleaded guilty the standard non-parole period is relevant as a "guide post". The Crown conceded that the case falls below the mid range of objective seriousness. By reason of the fact that the offence was a single, impulsive stab wound inflicted without the intention of killing the victim I am satisfied that this concession was correctly made. 19 However, determination of the objective seriousness of the offence must recognise that the offence involved the actual use of a weapon. There was also a child present, who was 16 years of age, and saw the stabbing occur. To my mind the offence was moderately below the mid range of objective seriousness. 20 I have already referred to the fact that the offender was aged 18 at the time of the offence. It is apparent that although he had reached that age he is immature and has many difficulties. The deprivations of his childhood and lack of parental guidance have put him on a path where he lacks the skills which are necessary to function as a responsible member of the community. His substance abuse is significant and there is a danger that it may completely overwhelm his life. 21 The offender's counsel submitted that because the offender is an Aboriginal I should adopt the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58. Although the offender's upbringing was seriously inadequate he has not suffered the deprivations which Wood J identified. In Ceissman v R (2001) 119 A Crim R 535 Wood CJ at CL made plain that Fernando was not a decision justifying special leniency merely because of the aboriginality of the offender. Sentencing principles are non discriminatory and are to be applied to all offenders irrespective of their particular racial or ethnic group (see Andrews v R (2007) NSWCCA 68 per McClellan CJ at CL at [21]). 22 The victim's mother, Ms Vivienne (Kate) Campbell has provided a victim impact statement. She gives a moving account of the terrible loss which she has felt from her son's death. It has affected all members of the family. On behalf of the court I express my deepest sympathy for those who have suffered through this loss. I have had regard to the statement in the manner provided by the relevant legislation. 23 The sentencing of the offender is made complex by reason of his youth and the role of illegal drugs in his behaviour and its impact upon him at the time of the offence. However, the decision to ingest illegal drugs was voluntarily made and accordingly cannot be considered as a mitigating factor when sentencing. 24 I am mindful of the fact that the offender is a young person. Although there must be considerable doubt as to whether he will be able to retrieve his life and upon release assume a responsible place in the community I do not believe all hope has been lost. Dr Nielssen is of the opinion that he has not yet come to understand the nature and extent of his drug abuse problems and is uncertain whether he will ever achieve an understanding of these issues. If he does not it will be most unlikely that he is able to turn his life around. Nevertheless I find that there remains some prospect of his rehabilitation. 25 Because the offence was committed while he was on conditional liberty which expired on 24 September 2008 I propose to date his sentence from 25 September of that year. The sentence I have in mind will prospectively allow a period of four years for his release on parole. Although the offender will require careful supervision and assistance on his release from custody this should provide an appropriate period to allow for the necessary adjustments to be made.