New South Wales Supreme Court CITATION : R v Kenneth Noel WHITE [2009] NSWSC 809 HEARING DATE(S) : 11/05/09, 21/05/09, 29/06/09 JUDGMENT DATE : 20 August 2009 JUDGMENT OF : Hidden J DECISION : Sentence of 10 years, NPP 6 years. CATCHWORDS : CRIMINAL LAW - sentence - plea of guilty to manslaughter in satisfaction of indictment for murder - death by stabbing - substantial impairment LEGISLATION CITED : Crimes Act 1900 CATEGORY : Sentence PARTIES : REGINA (Crown) Kenneth Noel WHITE (Offender) FILE NUMBER(S) : SC 2008/8264 COUNSEL : C Maxwell QC (Crown) P D Young SC (Offender) SOLICITORS : S Kavanagh - Solicitor for Public Prosecutions (Crown) S E O'Connor - Legal Aid Commission (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HIDDEN J Thursday 20 August 2009 2008/8264 R v Kenneth Noel WHITE REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Kenneth Noel White, was indicted for the murder of Paul Richards at Kingswood on 10 December 2007. His plea of guilty to manslaughter was accepted by the Crown in satisfaction of the indictment. The plea was entered, and accepted, on the basis of substantial impairment by abnormality of mind: s 23A of the Crimes Act 1900. Facts 2 At the time of the killing the offender was living in a home unit on the Great Western Highway at Kingswood. The deceased lived in a home unit nearby. He had friends who lived in the same block of units as the offender and he was a frequent visitor to that unit complex. It is likely that the offender had at least seen the deceased before the killing and, perhaps, had come into contact with him. 3 At about 7.00am on Monday, 10 December 2007, the offender and the deceased came into contact, with tragic consequences, in the basement of the garage area of the offender's unit complex. There the offender stabbed the deceased a number of times, causing his death. The deceased made his way to the hallway outside a unit on the first residential level and called for help. The residents of that unit found him in the hallway, bleeding heavily and with a knife in his hand. Police and ambulance officers attended, but he died at the scene. 4 In the meantime, the offender had gone to a service station on the Great Western Highway not far from the units. He spoke to two shop attendants, asking for help and saying, "The guy's coming after me, he has stabbed me, he is coming to get me." He was observed to be covered in blood, from his face to his pants, and he was holding a bottle of beer and a set of keys. One of the attendants called emergency services. The offender said a number of other things to the operators before the police arrived. He said: "I have been having problems with this guy for the last couple of weeks and he's been pushing me around." "I've been stabbed." "He stabbed me, he's coming after me." [It happened] "in my garage" or "at my place." "The guy came with a knife to my place." "Someone is trying to get me, he's after me." "He reckons I've got his camera." "He's been around my place for two or three weeks. He's been bothering and troubling me. He comes and he pushes me." 5 One of the attendants asked the offender if he had hit the other man back. The offender replied, "No, I was just trying to save myself. I was putting my hands over my body and he was continuously hitting me." As he said this, he moved his hand up near the front of his face. 6 Police arrived at the service station at about 7.05am. Senior Constable Clancey spoke to the offender and recorded what he said to her. The offender gave a version to the effect that, after not sleeping for twenty-four hours and after drinking all night, he went that morning to his garage to get some food from the freezer. He was attacked in the garage and was punched in the mouth. His assailant came at him with a silver thing/a knife/a screwdriver, and stabbed him with it. He had to wrestle the man off, he got away and ran for his life. 7 He repeated this version over and over. He also said that he had seen the assailant a number of times previously, and he had been having trouble with him over the previous few weeks. He said that he knew that the man had been coming to the unit block to visit people at units 1 and 10, where he sold drugs. He said that every time he saw the man, he was "hassled" by him. 8 He said that when he was going down to the garage that morning, he saw the man at unit 1. The man followed him downstairs to the garage area and "started saying shit", which he ignored. Then he was hit to the head and the man started pushing him around. All of a sudden he was cut by the man, and the next thing the man was on top of him and he was trying to get him off. He said, "He was trying to get me in the neck, it was a screwdriver or a knife, a flathead screwdriver, I am not quite sure, I just know I blanked out." 9 The offender was treated by ambulance officers and taken to hospital. There he was treated for a 6.5cm wound to his left palm near the base of the thumb with 5 sutures, and for a 3cm wound to the front of the right thigh with 3 sutures. He had a swollen right cheek, with a fresh laceration and a fresh contusion on his left cheek. He had red marks on his left and right forearm and small scratches on his upper left and right hands. 10 At the hospital he repeated and added to his version of events a number of times. He added that the man had been following him for three weeks, and they had had an altercation at a Subway outlet three weeks previously. He said that he got a screwdriver mark on his leg and a cut to the hand. He said, "I blanked out for a lot of it, I can't really remember what happened till down the servo and I nearly passed out." In a further version, he said that he thought that the man was gay and was trying to rape him. He also said that the man had previously said that he was going to "punch me out", and the next time he was going to kill him. 11 He told hospital staff that he suffered from schizophrenia, that he was prescribed 20mgs of "diprexa" per day, but that he had not been taking as much and had been medicating himself. 12 Testing was conducted on the blood found on the offender's shirt and shoes, together with a swab of the blood on his head and of blood found on the handle of the knife held by the deceased. The DNA profile of all four items was consistent with that of the deceased. Fingerprint testing on the knife was unsuccessful. 13 On post-mortem examination, it was determined that the cause of death was a stab wound which penetrated the chest. Coronary artery atherosclerosis was detected, a condition possibly contributing to the death. There were multiple stab wounds to the body of the deceased, seven to the chest and abdominal areas and two to the back. The fatal wound to the chest had penetrated the right pleural cavity and extended to the right ventricle of the heart. The wound displayed evidence of repeated insertions within the same entry point, showing that the knife was inserted, withdrawn and inserted again on a number of occasions. 14 On searching the offender's unit, police found and seized multiple knives of various types, along with a number of swords and axes. One resident of the unit block told police that he had seen the offender in possession of a knife in a leather pouch, attached to a belt, about two weeks prior to the incident. Victim impact statement 15 I received a victim impact statement by the sister of the deceased, Ms Linda–Joye Lord. Ms Lord read the statement in court during the sentence proceedings, which cannot have been an easy task. It discloses that it was she who had to identify her brother's body. The statement is an eloquent expression of her outrage and grief, and of the enduring effects of this tragedy upon her immediate and extended family, including the deceased's daughter and step-daughter. 16 Sentencing the perpetrator of this crime is a complex task, involving the balance of competing considerations. I am well aware that no sentence I pass can cure the pain of those who have suffered such a loss. I can but hope that the completion of these sentence proceedings will make some contribution, however small, to their coming to terms with it. The members of Mr Richards' family, and all those affected by his tragic and untimely death, have my deepest sympathy. Subjective case 17 The offender was 21 years old at the time of the offence, and is now 23. He has no criminal history. He has been in custody since his arrest on the day of the offence, 10 December 2007. 18 He was brought up in the Penrith area. He has three brothers, and one of his older brothers, James White, provided a statement to the police. His background is sketched in that statement, together with the reports of two forensic psychiatrists, Dr Stephen Allnutt and Dr Olav Nielssen. It seems that James White and his wife have maintained contact with the offender while in custody and remain supportive of him. 19 His parents separated when he was 9 or 10 years old. When he was about 11 or 12, he was diagnosed with ADD and put on a course of medication. Because of his condition, he was taken out of a regional high school early in his period of secondary education and placed in a special school at Penrith. 20 In Year 9, when he was 14 years old, he was diagnosed with schizophrenia and placed on a different regime of medication. He left school at the end of that year. His brother observed that he interacted well with people when he took his medication but, if he did not take it, he became "very withdrawn and not real good with social interaction". Generally, his brother described him as a "real homebody", who pursued hobbies and watched television. He did not develop a circle of friends and, while he was attracted to women, he never had an intimate relationship. He had long been on a disability pension, and has never worked. 21 According to his brother, he became accustomed to his course of medication and, generally, took it as required. He sometimes had verbal arguments with members of the family but was never violent. However, he used cannabis and began to drink heavily from the age of 18. His brother noted that the alcohol "didn't mix well with his medication and medical condition". 22 There was an incident in March 2007 which, it seems, occurred because he had not been taking his medication and had been drinking. As his brother put it, he "smashed the house up and punched the walls" after an argument with his mother and a younger brother. This led to his admission to the psychiatric ward at Penrith Hospital, where he was observed to be remorseful about his behaviour. He was discharged the following day. 23 He moved in with his brother, James and his family at Cambridge Park for some months. His brother said that there were "no problems" during that period, and that he was controlling his drinking. His brother observed that he generally stayed in the flat and watched television, and did not have any visitors. He moved out in August 2007 and stayed in a group home at Werrington for some weeks, before moving to the flat at Kingswood. There he lived alone. 24 James and his family maintained contact with him. He told his brother that he had "a few conflicts" with people in the unit block, and he complained that there were "a heap of junkies that lived around him that yelled and screamed at all hours of the day". He also said that people "hung around in the car parks and streets around his unit and just yelled stuff out to him", but he did not "mention anything specific". 25 For some unknown reason, a resident of the unit next to his had mounted a surveillance camera which focused on his front door. There appears to be nothing to suggest that he was the target of surveillance. Nevertheless, towards the end of November 2007 his brother visited him and noticed that the camera had been removed, leaving a trailing wire. The offender said that he did not know where it had gone, but his brother noted that he had "a bit of a smirk on his face" and suspected that he had removed it. 26 James White said that the offender kept machetes, swords and knives in his unit. He mentioned specifically "medieval axes and a heap of pocket knives". He said that the offender did not take these out anywhere, and the effect of his statement is that he was a collector of items of this kind. The offender told Dr Allnutt and Dr Nielssen that they were a hobby and were merely "ornamental". 27 Generally, James observed that he continued to use cannabis and drink. At the conclusion of his statement he described the offender in this way: I don't think Kenneth is a violent person. He is pretty quiet and keeps to himself. … Kenneth is a bit of a coward. If someone raised their fist at him, he would more than likely back down. He is more likely to yell at someone than get physical with them. I have never seen him in a fight, so I don't know if he would fight back or not during a physical altercation. Psychiatric evidence 28 Both Dr Allnutt, engaged by the Crown, and Dr Nielssen, engaged for the defence, interviewed the offender in the later part of last year and Dr Nielssen saw him again in June of this year. I have four reports of Dr Allnutt and three of Dr Nielssen, and it is apparent that both of them have given the case careful consideration. In the event, there is substantial agreement between them and it is unnecessary to examine their reports in detail. 29 When interviewed by the two doctors last year, the offender gave each of them an account of the killing which was not entirely consistent and which did not adopt all of what he had told police on the day of the offence. To both doctors he denied having met the deceased before. He told Dr Allnutt that the deceased had approached him with a knife, that he thought he was going to die, that he wrestled the knife off the deceased, and that he himself was stabbed before he left the scene. 30 He told Dr Nielssen that the deceased had come into the garage and punched him without any provocation on his part, that the deceased was holding a knife, and that he thought he was a "junkie" who was trying to "roll" him. He added that after the deceased hit him he was not sure what happened, but that he must have taken the knife from him and stabbed him. It will be noted that he told both psychiatrists that it was the deceased who initially had the knife. To Dr Nielssen he denied owning the knife and said that he had never previously carried a knife, although he kept one in his fishing tackle box. 31 He gave both psychiatrists an account, to which I have referred in reciting the agreed facts, that he had been drinking through the night preceding the killing and had not slept. That account is consistent with evidence not only that he was holding a bottle of beer when he went to the service station after the killing, but also that police who attended his unit found a large number of empty beer bottles at different locations within it. Moreover, he told Dr Allnutt that he had not been in contact with mental health workers around that time, and he told Dr Nielssen that he had been off his medication for "a few months". This is borne out by Medicare records of his supply of medication. 32 The experiences he described to his brother after his move to the flat at Kingswood point to the consequent deterioration of his condition. In that regard, I accept that it was he who removed the surveillance camera. No doubt, his condition also explains his being seen in possession of a knife a couple of weeks before the offence. These matters are indicative of what Dr Nielssen described as the development of a "paranoid belief that he was under threat …" The doctor also saw this as the reason for the collection of weapons found in his flat, but it may be that they were merely the pursuit of a hobby and had no aggressive or protective purpose. 33 Both doctors confirmed the diagnosis of schizophrenia, and Dr Nielssen also diagnosed substance abuse disorder. When interviewed by both of them last year, the offender denied any psychotic symptoms at the time of the killing. However, both doctors considered that the various accounts of his actions which he gave on that day were the product of delusional beliefs. Dr Nielssen noted that it was "not uncommon for people with chronic schizophrenic illnesses accused of serious offences to adhere doggedly to implausible explanations of events …" However, when he saw the offender again in June of this year, he found him to be "a little more open to the likelihood that he may have been irrationally suspicious and affected by symptoms in the period leading up to the offence". 34 Both doctors concluded that the defence of substantial impairment by abnormality of mind was available. In a report of 24 April 2009, Dr Allnutt expressed the view that, due to "underlying propensity to irrational thinking" the offender might have been more prone to misinterpreting events and less concerned about whether his reactions were right or wrong. In a report of 7 May 2009, he expressed the conclusion that the offender was suffering "symptoms of a mental illness at the relevant time", and he favoured "the likelihood that the information he provided to police and other witnesses in the material time following the alleged offence related to thought processes that he was experiencing at the time …" 35 In a report of 6 May 2009, Dr Nielssen expressed his conclusion in this way: During the acute phase of the illness schizophrenia can give rise to an abnormality of mind that can have a significant impact on a person's perception of events, their capacity to judge right from wrong and their ability to control their actions. It is more probable than not that at the time of the offence Mr White was affected by persecutory beliefs that increased his perception of threat. The pattern of behaviour observed during his earlier acute episode suggests that he was also probably affected by irrational hostility that led to significant impairment in his capacity to judge right from wrong and to exercise self control. Mr White's consumption of alcohol would not exclude the defence of substantial impairment because of the severity of his underlying mental illness and the exaggerated effect of alcohol on a person in an acute episode of schizophrenia. 36 In their final reports, the two doctors considered whether the offender might pose a danger to the community upon his eventual release. Dr Allnutt considered static and dynamic risk factors, and thought that he "probably falls into a group of individuals who are at moderate risk of future recidivism". He went on to say that he needed to undertake a number of "rehabilitation tasks", which he specified as follows: ongoing consultation with a psychiatrist, with anti-psychotic medication; "psychoeducation"; referral for drug and alcohol rehabilitation and abstention from alcohol; vocational assistance; and social skills training. 37 Of course, the offender has been under treatment for his condition while in custody and has maintained a course of medication. He told Dr Nielssen that he understood the need for long-term treatment, and said that he was "willing to accept medication given by long acting injection after his eventual release". He also expressed a determination to stay away from drugs and alcohol. Dr Nielssen noted that his acute symptoms were controlled through consistent treatment with anti-psychotic medication, and considered that he had predominantly "negative" symptoms, being "impairment in motivation, organisation, spontaneity and capacity for abstract thinking". 38 As for the future, Dr Nielssen had this to say: With regards the risk of further offences, Mr White has mainly negative symptoms of schizophrenia, which are associated with a lower risk of serious violence. Moreover, he does not express any objection to treatment, including treatment by long acting injection. Mr White also has the strong support of his brother and sister-in-law, who have provided him with accommodation and helped him to obtain a Housing Department flat. His family seem likely to provide him with support after his release. He gave a spontaneous account of no longer needing to drink or abuse drugs, which is the main risk factor for further violence in patients with established schizophrenic illnesses. He seems to interpret advice in a literal way, which could translate to literal adherence to any parole conditions, such as the advice that he abstain from drinking and taking any kind of illicit drug. Ideally, people with severe forms of schizophrenia who are charged with serious violent offences should be returned to the community via the secure hospital system and have their care monitored by the Mental Health Review Tribunal. However, there is no reliable mechanism to arrange this, especially for a person who is stable in custody, and it will probably be left to a parole officer to check on adherence to treatment and other conditions. Hence I recommend a relatively long period of parole. Sentencing 39 What exactly were the circumstances of this tragic incident I cannot say. Clearly, there was some kind of altercation and a struggle between the two men. The offender's own injuries are testament to this. I think it likely that the knife which caused the fatal wounds was the offender's, although I cannot be certain of that either. Assuming that the knife found in the hand of the deceased was the weapon which caused his death, the fact that he had it does not necessarily mean that it was he who produced it. It could be that the offender had left it in his body when he departed, and the deceased had managed to remove it as he made his way to the first level of the units to seek help. 40 I find it unnecessary to resolve this question. Whatever might have been the provenance of the knife, the offender's attack upon the deceased displayed a high level of violence and this is a serious offence of its kind. Given the post-mortem findings, particularly the manner in which the fatal wound was inflicted, I am satisfied that he intended to kill the deceased. Mr Young SC, who appeared for him, did not submit the contrary. On the other hand, the attack was perpetrated by a man with no criminal record and no history of personal violence. It can be explained only by a considerable level of mental impairment arising from his psychiatric illness. 41 The Crown prosecutor questioned the degree of impairment, in the light of transcripts of some intercepted telephone calls made or received by the offender in custody early last year. Most of the conversations were with his brother, James but two were with another man. Put shortly, during these conversations the offender discussed his defence to the charge of murder which he then faced in an apparently rational way. He said that his case would be that the deceased attacked him, armed with a knife, that he feared for his life, that he managed to wrest the knife from the deceased and that he stabbed him in self defence. 42 However, these conversations were at a time when he had been stabilised on medication and, no doubt, he was in the process of formulating what Mr Young described as "a legally acceptable explanation" for his actions. In any event, what he said to police and other witnesses on the day of the killing amounted, for the most part, to an assertion of self defence. His state of mind is far better gleaned from what he said at that time and, in the light of the psychiatric evidence, that material supports the conclusion that his functioning was seriously disordered. 43 Nevertheless, in determining the extent of the leniency which this might earn him, it is necessary to consider whether he should have been aware of the possible effect upon his behaviour of drinking and neglecting his medication. On that question the Crown prosecutor properly raised the destructive incident in March 2007 to which I have referred, which appears to have been the product of the same two factors. However, while that incident was no doubt alarming for the members of the family in the house at the time, it did not involve personal violence. As I have said, there is no evidence of any violence in his background, let alone violence of the order which he meted out to the unfortunate deceased. It cannot fairly be said that he should have foreseen behaviour of this kind if he went off his medication and drank to excess. 44 That said, given that it was those factors that led to this killing, there remains the question of the extent to which the protection of society must play a part in the sentence which I pass. On the psychiatric evidence, this turns very much upon whether he could be trusted to maintain a course of treatment and abstain from alcohol and illicit drugs upon his release. The reports, particularly that of Dr Nielssen, leave me with some confidence that he would, although it would be important that he have the benefit of an extended period of liberty under supervision and the sanction of parole and that he continue to enjoy the support of his brother and sister-in-law. 45 Accordingly, the level of the offender's impairment calls for an appropriate measure of leniency. He has the benefit of his unblemished criminal history, and I think that his prospects of rehabilitation are reasonable. There is no evidence that he has expressed remorse for his crime, and that is not a matter which Mr Young raised on his behalf. The two psychiatrists took time to assess his case, and he pleaded guilty to manslaughter promptly after they furnished reports supporting the partial defence of substantial impairment. I shall recognise the utilitarian value of that plea by a 15% reduction of the sentence which would otherwise have been appropriate. I am satisfied that the process of achieving the offender's rehabilitation calls for a finding of special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. 46 But for the plea of guilty, I would have imposed a sentence of imprisonment for 12 years. A 15% reduction for the plea produces a term, in round figures, of 10 years. I shall fix a non-parole period of 6 years. 47 Kenneth Noel White, for the manslaughter of Paul Richards you are sentenced to imprisonment for a non-parole period of 6 years, commencing on 10 December 2007 and expiring on 9 December 2013, and a balance of term of 4 years, commencing on 10 December 2013 and expiring on 9 December 2017. ********** 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.