Regina v DB [2010] NSWSC 812

New South Wales Supreme Court

CITATION : Regina v DB [2010] NSWSC 812

HEARING DATE(S) : 19, 20, 22/07/2010

JUDGMENT DATE : 22 July 2010

JUDGMENT OF : Barr AJ at 1

For the wounding of Mrs S with intent to murder her I sentence you to imprisonment for a fixed term of 12 years. The sentence will be taken to have commenced on 4 May 2009 and will expire on 3 May 2021. I have declined to set a non-parole period because the latter part of the sentence will be subsumed by the sentence I shall next impose. DECISION : For the murder of Mr S and taking into account the assault of JS I sentence you to imprisonment. I set a non-parole period of 12 years which will commence on 4 May 2013 and expire on 3 May 2025 and a balance of term of 8 years expiring on 3 May 2033. The first day on which you will become eligible for release to parole will be 3 May 2025. I direct that until you attain the age of 21 years you serve your sentence as a juvenile offender.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 32

CATEGORY : Sentence

PARTIES : Regina, DB

FILE NUMBER(S) : SC 2009/46440

COUNSEL : P Barnett SC - Crown J Manuell SC - Offender

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

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

BARR AJ

THURSDAY 22 JULY 2010

2009/46440 REGINA v DB

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, DB, pleaded guilty on arraignment in this Court to the following charges namely - 1. that on 4 May 2009 at Stockinbingal he murdered JVS, and 2. that at the same time and place he wounded TS with intent to murder her. 2 At the commencement of his sentence hearing the offender asked the Court to take into account under s 32 Crimes (Sentencing Procedure) Act 1999 when sentencing him on the first count that on 4 May 2009 at Stockinbingal he assaulted JS. 3 The facts upon which the offender is to be sentenced were agreed between the parties and a document was tendered, signed by the offender and setting them out. The account is as follows - The offender was born on 22 February 1993. At the time of the offences he was 16. He had been the boyfriend of JS, the then 15 year old daughter of the deceased since June 2007. She terminated this relationship around the end of 2008, early 2009. It appears this coincided with her changing schools. The offender did not cope well with the break down of the relationship, nor apparently with her speaking with a 14-year old boy, JP. For some time contact between the offender and JS virtually ceased. During this period JP spoke with JS indicating that he was receiving threatening phone messages from the offender. JS then spoke with the offender by phone. JS alleges that during this call the offender told her, "after he got JP he would get her as well". Also during this period the offender threatened to publish photographs he had in his phone of JS's breasts. In around April 2009 JS also formed a boyfriend/girlfriend relationship with a young man, WD. On Sunday night 3 rd of May 2009 there were some text messages sent between the mobile telephones of the offender and JS. Further, the offender tried on numerous occasions to contact JS in person on her phone. On one occasion JS spoke to the offender. Thereafter she indicated to her parents not to answer any further calls. Thereafter the landline at the house was manipulated to indicate the phone was engaged. Text records have been recovered, which indicate the offender was pre-occupied with JS seeing someone else. They also show the offender's increasing frustration with JS's failure to answer the phone. At 10:00:52 JS sent a text message to the offender which read " What are you going to do will. I think you should grow up." Thereafter the offender sent two final text messages, which read as follows: At 10:01:21 pm "Think you should answer my call" and 10:04:20 pm "It can be a surprise then." JS retired for the night shortly after receiving this last message. During the evening the offender also exchanged text messages with WD. The messages indicated concern on the offender's part that WD was seeing JS. In one of these messages the offender made reference to having videos of JS. The offender's last communication with WD was at 9.57 pm. The same evening the offender exchanged messages with PC, another young male. In one of these messages PC suggested that JS was engaging in sexual activity with WD. The offender's last communication with PC was at 9.30 pm. Sometime later during the night of 3 May 2009 the offender drove from his parent's home to the home of JS and her parents, situated at Stockinbingal. These two locations are approximately 50 kilometres apart. The offender arrived at approximately 4 am Monday the 4 th of May 2009. The offender parked his vehicle behind trees, which obscured the vehicle from the house. The offender left the car taking with him the carving knife, which belonged to the Wiltshire knife set kept in the kitchen of his parent's home. The offender entered the house by climbing onto a wheelie bin and cutting the wire fly screen on the outside of the kitchen window. The fly screen was slit down both sides and along the bottom, allowing it to flap open and the offender entered the house through the kitchen window. At the time the house was occupied by the deceased, his wife Mrs S, and their three female children; M (8 yo), R (12 yo) and JS. They were all asleep. The deceased was awoken (it appears upon hearing the offender inside the house) and confronted him. The offender inflicted a number of stab wounds upon the deceased with the knife he had brought from his parents' home. The stab wounds proved fatal and Mr S had passed away by the time of Police and Ambulance arrival at about 5.20 am. Mrs S had been raised by the sound of what she thought was her husband arguing with someone. As she walked from her bedroom she saw the offender hitting her husband. She backed up into the bedroom and crouched on the bed with her arms over her head trying to protect herself as the offender stabbed her with the knife about the head and shoulders. She kicked out at him and managed to run away from him out of the house and onto the front veranda. As she walked onto the veranda she was stabbed in the back by the offender, who had pursued her. She fell to the ground. The offender continued stabbing her. Some time later the children found their mother slumped on the front veranda. At some stage she asked her daughters to get her a blanket from inside. The children did this. It was when the Ambulance attended to treat the victim and moved the blanket that the knife used by the offender fell out onto the ground, and was secured by Police. Mrs S was conveyed by Ambulance to Cootamundra Hospital where she was examined by Dr Imke Hinze. She had sustained numerous stab wounds to her scalp, head, chest, shoulder, left leg, arms, hands and back. She had lost a substantial amount of blood and was subsequently transferred to Wagga Wagga Base Hospital where she underwent surgery for her condition which included a punctured lung and severed tendons in her hand. Full details of the nature and extent of her injuries are detailed in the statements of Dr Imke Hinze dated 15 May 2009 and Dr Andrew Cumberlege dated 7 April 2010. JS woke at 4.18 am as she could hear her mother screaming and persons running in the house. When JS came out of her bed room she could see the light was on in her mother and father's room. She saw her father lying on the floor in a pool of blood. She walked into the kitchen of the premises to try and get her mother's mobile phone. She saw the offender walk into the kitchen from the dining room. The offender said to her, "You caused this" JS saw the offender had a knife in his right hand and that the blade of the knife was red. The offender stated, "Bet you love me now." JS's younger sister M walked up the hallway at that time and stood beside her father, telling him to wake up. The offender pulled her mother's mobile phone out of JS's hand and then ripped the landline phone off the wall near the kitchen bench. He then walked over to JS and pushed her against the wall by pressing his body hard against her. The offender slapped JS hard across her face with his right hand before kissing her forcefully on the lips. JS could see the offender's face was covered in blood and her clothing was also covered in blood where the offender had leant his body against her. After this the offender stood in the pool of blood near JS's deceased father and said, "I'd like see you clean up this mess." The offender then pointed to M and said, "What are you going to explain to her?" JS could see the offender was holding the knife in his left hand as he walked through the house and out the front door. Throughout the incident the offender wore at least one blue surgical glove. When Ambulance officers arrived, the deceased was found lying face down in the hallway leading from the kitchen to the rear living area. They stated the deceased could not be saved and did not attempt to administer any treatment. The deceased had passed away as a result of the stab wounds inflicted by the offender. The offender was recognised by JS, her mother and M, all of whom were familiar with him. Police were later contacted by the mother of the offender, who stated her son had contacted her via telephone and said something, which made her think he had been involved in a car accident and someone was injured or killed. The offender's parents left their home and went to try and locate him. They found him driving his vehicle. The father caused the offender to stop and saw he was only wearing a pair of football shorts. There was blood throughout the car and blood stained clothing in the vehicle. The father conveyed the offender home in his vehicle and left his vehicle secured on the side of the road. During the trip the offender informed his parents he had gone to the S house, where he had entered the house by cutting the fly screen. He told them that he had stabbed the mother and the father, indicating he had killed them. Mrs B again called 000, this time asking for an ambulance to be sent to the S home, indicating that which her son had told her. A short time later the offender's mother again contacted Police stating her son was home and having a shower. Sgts Mulligan and McGann attended the offender's address. It was noted he had a blood stained left ear. Sgt McGann spoke with the offender concerning his welfare and cautioned him. The offender, who was seated next to his mother indicated he understood the caution. Shortly afterwards the offender stated, "He came at me with a knife and I got it off him. Then she came at me." He was then placed under arrest. He was treated by Ambulance at his home then conveyed by Police to hospital where he was treated for lacerations of his right hand and fingers. After this he was conveyed to the police station. The offender sought legal advice and declined to be interviewed by Police. Crime scene warrants were applied for and granted for the offender's vehicle, the father's vehicle, the house at Stockinbingal and the offender's home. Numerous exhibits were seized (including knife) and swabs taken. Fingerprint examinations were conducted. Pursuant to an application under the Crimes (Forensic Procedures) Act 2000, an order was made authorising the carrying out of various non-intimate forensic procedures on the offender including a buccal swab for DNA comparison. The DNA of the deceased and Mrs S were also obtained for comparison purposes. (i) The Deceased's residence: Swabs were taken from (inter alia) what appeared to be blood stains on a post on the front veranda, the security screen door frame, the gate beside the garage, the left side of the blade of the knife, and the right hand side of the knife handle. A swab was also taken from the inside area (index distal phalanx) of a bloodied and cut blue surgical glove located in the kitchen. (ii) The Offender: A swab was taken from what appeared to be a blood stain on the left ear of the offender. (iii) Offender's motor vehicle: Swabs were also taken from what appeared to be blood on a number of items of clothing found in the offender's motor vehicle allegedly worn at the time of the commission of the offence, and then discarded by him. These included a pair of jeans, a green jumper, and a left Adidas shoe. Subsequent DNA testing has linked the offender to the crime scene, the knife, the deceased and Mrs S. (i) The Deceased's residence: The swabs taken from the front veranda, front security screen door frame, and gate near the garage of the deceased's premises returned a positive when screened for blood. The swab from the gate returned a DNA match to the DNA profile of the offender. The swabs from the front veranda and the security screen returned a mixed result with the offender's profile being the major component, and Mrs S the minor. The stains on the knife also screened positive for blood, with the swab from the blade matching the DNA profile of Mrs S, and the swab from the handle returning a mixture, with the major component being Mrs S, and the minor component the offender. An identical DNA profile to that of the offender was found in the swab taken from the inside of the glove. (ii) Offender: the swab from the offender's ear screened positive for blood and returned a mixed DNA profile. The major component was the offender and minor component, the deceased. (iii) Offender's motor vehicle: The swabs taken from the various items of clothing screened positive for blood. DNA matching the profile of Mrs S was located in the swabs taken from two areas of the jeans. The DNA profile of both the deceased and Mrs S was located in swabs taken from separate areas of the jumper and shoe. (Blood matching the DNA profile of the offender was also found inside the vehicle; and a mixed profile of the deceased and Mrs S in a swab taken from the car's remote). The knife allegedly used is an identical brand and design to those remaining in the scabbard of kitchen knives located in the offender's home. One knife in that set is missing. An autopsy performed on the deceased indicates that the direct cause of death was "Multiple Stab Wounds to Neck and Trunk". Dr Johan Duflou, Forensic Pathologist reported "the deceased was found to have at least 20 stab wounds to the neck, chest and left arm, as well as a number of "defensive" type incised wounds to the left hand. These stab wounds had caused lethal injury to the throat, neck structures, lungs and heart, and had resulted in significant blood loss. A knife located at the scene could have caused the sharp force injuries identified." Full details of the nature and extent of each stab wound are recorded in the autopsy report of Dr Duflou dated 17 August 2009. 4 Mrs S suffered a collapse of the left lung and because of complications the lung was difficult to reinflate. She was in a great deal of pain. Infection set in and although the lung is once again useful, the lower lobe has been lost. The asthma Mrs S used to suffer has become worse and she is subject to chest infection. 5 Although Mrs S has recovered from the worst of the attack, she continues to experience some very unpleasant effects. The nerves and tendons of both hands were operated on, but two fingers of the right hand remain damaged with loss of feeling, limited movement and a resulting clumsiness and inability to perform fine movements. Mrs S is a teacher and needs to use the computer a lot, and these symptoms make that hard for her. She has unpleasant sensations resulting from nerve damage to the scalp. The pressure of clothing on her scarred trunk gives her pain. She continues to suffer pain on contact and in cold weather and at other times. She has to take drugs to help with the pain. She is badly scarred. 6 Mrs S and her children have fled the house they can no longer bear to live in. Mrs S finds it hard to sleep. Her three daughters, who witnessed the attack on her, have been badly affected. JS in particular is plagued with disturbing thoughts and memories. I think that Mrs S and her three daughters must all be suffering severe psychological injury which is likely to continue. It is to be hoped that they may benefit from professional help. 7 Mrs S prepared a statement for the Court in which she spoke of the love she and her children had for Mr S and how his loss and its circumstances have affected them. I know that Mrs S understands that the Court cannot take into account in sentencing the anguish that she and her children have suffered and will continue to suffer because of the loss of their husband and father. What the Court can do and does do is acknowledge their suffering and express its sympathy to them in their grief. 8 It is not immediately apparent why the offender acted as he did. Until the events out of which the charges arise, he was well regarded in his community. He was progressing well at school. He was keen on football and apparently possessed some talent for the game. He hoped to make a career of it. He had never committed any offence. 9 A large number of witnesses came forward, relatives, friends and those who taught and knew him at school. Not one could offer any explanation of the events. All were left without understanding of their cause. All considered the offender's acts quite out of character. 10 Plainly, though, there was a side of the offender that they did not know about. There were several incidents that showed that he was prepared to act unreasonably and vindictively if he could not get his own way. He became jealous when he thought that JS was paying attention to any other boy. He sent a text message to one such boy, telling him that he was "a dead man walking". He threatened JS that he would publish to the members of his football team a photograph of her breasts that he had taken on his mobile telephone. He threatened another boy, saying that he was going to beat up him and his brother. The boy was put in such fear that he sought help from JS. Her parents found out what was happening and communications passed between the adults of the three households concerned. Mrs S was concerned that the offender was trying to control JS and making unreasonably frequent demands to get in touch with her. She told the offender that she wanted the nonsense to stop and that he was to stop ringing and texting JS. Unfortunately, the offender's repeated attempts to speak to JS did not stop and members of the S household had to resort, in order to have some peace, to disabling the telephone. 11 It seems to me that the overwhelmingly relevant feature of the offender's character was his tendency to become vindictively jealous of others when he was denied what he wanted and his preparedness on such occasions to throw his weight around to control others and make them conform to his wishes. 12 I have set out earlier in these reasons a statement of facts on which the parties are agreed. The statement does not deal with every aspect of the evidence, however, and I shall have regard to all the evidence put before the Court. 13 The offender has made a number of statements about what he did on the occasion in question and why and about what Mr and Mrs S did. I have already referred to the first statement the offender made to the police, the effect of which was that Mr S came at him with a knife, that he got it off him, and that Mrs S then came at him. 14 At the request of his solicitor the offender saw Dr Westmore, psychiatrist, on 19 August 2009. The charges were still being managed in the Local Court at that time. The offender told Dr Westmore that he wanted to plead not guilty and when asked the basis for that said "Murder is planned out and premeditated". He discussed his relationship with JS, particularly its intermittent nature, and his concern about her seeing a boy I have mentioned. He denied threatening to bash that boy. The report continues- Master B said he then went to bed. At about 3 am he was tossing and turning. He said he started hearing "a voice" in his head telling him to go and see JS, to see if she was alright. He said JS had some type of ligament problem which caused her limbs to dislocate. He said in addition she had been depressed. [Both those things were true] He drove his car to JS's home. He said he knocked on the doors and windows, there was no response. He said he was about to leave when "a voice" in his head told him to go through the window to make sure that JS was alright. He went through the window. He said when inside the house, JS's father came at him, screaming and her father grabbed the knife that Master B had used to cut the gauze on the window. Master B said his right hand was cut. He stated "From there on I just blacked out a bit and lost control. I kept screaming, stop, wait." He said he and JS's father were fighting. He stated "He jumped on me and I kept stabbing." He said the fight continued. JS's mother then came into the room. He said he cut the phone line and dropped the knife. JS's mother picked up the knife and ran into her room. Master B said he was then going to leave the house but it was then that he saw JS's mother "coming at me with the knife. I kicked her in the stomach." He said they wrestled, he grabbed the knife. He said he was about to leave the house again JS's mother grabbed him "and I said to her, let me go or I'll stab you. She wouldn't let me go so I stabbed her in the back." He said JS's mother kept hitting him and "I stabbed her in the chest." He said he then heard a scream and he saw JS. He said they were screaming at each other. He told me he wiped his bloody hand on her face and said to her "This is great, look what has happened now." He said JS said that she hated him. She had a phone and said she was going to call the police. He took the phone from her. He said he then stated to JS "This is great, this is another mess to clean up, have fun." He said he was leaving the home JS's mother was outside screaming. He said he slapped her across the face to stop her screaming. The mother fell over some outside furniture. He then went to his motor vehicle. 15 On 12 July 2010 the offender saw Dr Westmore again, this time for a psychiatric examination. Dr Westmore asked him why it had happened and he replied, "to be honest, I am not sure". He said that jealousy, anger and frustration would have been part of it but that there would have been more to it. 16 The report continues - I asked him when he went to the house what he was thinking of doing. He said "First thing I wanted to check on JS, I wanted to have a chat too, sit down and talk to her." Of the knife he told me it had been in the back of his motor vehicle, he had used the knife previously to do electrical wiring. He said when he got to the house he tried to go through the back door but was not able to. He said he then remembered that the knife was in the vehicle and he used the knife to open a window to gain access to the property. I asked him why he had stabbed JS's mother and he said "I remember her coming out, it was me and Mr S fighting. I can remember stabbing Mr S. I can remember her (mother) grabbing the phone and I cut the cord." He said he then dropped the knife but JS's mother picked it up. She ran into a bedroom with the knife. He said he was intending to run out the front door but he saw JS's mother holding the knife and so he ran into the bedroom, kicked her in the stomach and he said he can remember grabbing the knife and stabbing JS's mother. 17 On 31 May 2010 the offender was interviewed by Dr Emma Collins, psychologist, and Dr Collins' report was put before the Court. Before Dr Collins the offender admitted threatening the two boys I have mentioned and acknowledged this threat to send photographs of JS's breasts to his friends. He told Dr Collins that his reason for entering the house was to see whether JS was alright. He said that he had a altercation with Mr S when he met him in the house and that that quickly escalated. He became angry when Mr S would not listen to him. He acknowledged the multiple stabbing of Mr and Mrs S. He did not repeat the claim that either Mr or Mrs S had commenced an attack on him. 18 The Court requested the provision of the mandatory Juvenile Justice Report and Ms Lynne Caton, Juvenile Justice Officer prepared such a report on 12 July 2010. The report came into evidence. It recorded that Ms Caton had interviewed the offender on 28 May and 1 June 2010. The offender discussed the relations between himself and JS and arguments about her seeing others. He acknowledged that the texting back and forth was out of control. The report continues thus - DB was unsure of the time he went to bed that evening although he stated it was late. DB woke with a start early hours of the morning and stated he felt a rush of fright and stated he felt sick in the stomach. DB at the time had a terrible feeling that JS may have hurt herself and he could not stand the thought that she was upset and alone. DB reacted by getting in his car and went to her home to try and check to make sure she was ok. DB reported that on the way he did think about what he was doing but he felt that it was more important to make sure she was alright. DB on arrival at the S home checked around the house to see if he could get in. He put the wheelie bin to JS's room to start with to see if he could see her. He then moved it to the kitchen window. DB then stated he went back to the car and returned with a knife that had been in his car as he and his father had been stripping wires while putting the sound system in the car (as para 8 in the 'Crown Statement' states 'he armed himself', DB reported he did not think of the knife in that manner nor was it for that purpose). DB put rubber gloves on as he was going to cut the screen and he did not want to leave prints as he just wanted to check on JS and leave. DB reported that the knife was to cut the fly screen to give him access. DB's intention was to enter the home, check that JS was ok and then to leave without anyone knowing. DB was met in the kitchen as he got through the window by Mr S, there was a flurry of punches and screams of abuse. DB remembers saying "stop, wait, stop wait" DB remembers the rush to fear he felt at the time and reported that he just tried to get Mr S to listen. DB reported Mr S grabbed the knife and was hitting DB repeatedly. DB then reported that he grabbed the knife back and he remembers stabbing Mr S in the shoulder as they were wrestling near the fridge. DB remembers Mr S tackling him down the two to three stairs during the struggle. Mrs S then grabbed for the phone and DB stated that he did lunged and cut the phone wires, as he did this he dropped the knife and Mrs S picked up the knife and ran into the bed room. DB remembers walking towards the front door to leave when Mrs S ran at him, DB then wrestled with Mrs S on the bed he recalls her tripping as she was running away from him. In the 'Crown Statement' it is stated that DB slapped JS across the face (para 22). Also in (para 23) that DB 'punched JS causing her to lose balance and stumble'. DB reported that he ran his hand down JS's face and that he has never hit or hurt JS physically in anyway. 19 The offender gave evidence and there were these questions and answers about the state of his recollection of events - Q. Now, do you agree that, given the events of that particular night, that your recollection of everything that happened could well be very patchy? A. Yes.