R v Donald Paul YUKE [2010] NSWSC 754

New South Wales Supreme Court

CITATION : R v Donald Paul YUKE [2010] NSWSC 754

HEARING DATE(S) : 6-8 July 2010

JUDGMENT DATE : 8 July 2010

JUDGMENT OF : Barr AJ at 1

DECISION : The offender is sentenced to imprisonment with a non-parole period of 14 years which commenced on 29 March 2008 and which will expire on 28 March 2022 and a balance of term of 10 years expiring on 28 March 2032. The first date upon which he will become eligible for release to parole will be 28 March 2022.

CATEGORY : Sentence

PARTIES : Regina, Donald Paul Yuke

FILE NUMBER(S) : SC 2009/10527

COUNSEL : C McPherson - Crown C Bruce - Offender

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

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

BARR AJ

LISMORE: THURSDAY 8 JULY 2010

2009/10527 REGINA v Donald Paul YUKE

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Donald Paul Yuke, has been found guilty by the jury of the murder of Lorraine Bolt. 2 The deceased resided with her children at a house at Alstonville. She and the offender had been in an intimate relationship for a few years and the offender used to stay at her house from time to time. He was present at the house on 28 March 2008. The offender habitually drank alcohol to excess. By early evening, both had had a good deal of alcohol to drink and they began to squabble. The offender left the house and went to a sports reserve on the opposite side of the street, where a substantial number of other people had congregated. Most of them were young and most, it seems, were drinking alcohol. During the course of the evening the offender returned to the deceased's house and then to the reserve. On one occasion he took a large knife from the deceased's kitchen and had it with him at the reserve. There was an occasion, and perhaps more than one occasion, when the deceased came out of the house and remonstrated publicly with the offender. She accused him of infidelity and he responded in like manner. She offered to fight him. He responded similarly. At 10.30 pm police officers, who had received complaints about the noise coming from the sports reserve, arrived, intending to disperse the group. I am satisfied that by that time the offender was very badly affected by alcohol. His speech was so bad that some could not understand him at all. He was unable to stand, walk or sit properly. Some of the young people asked the police officers for help to carry the offender across the street. An attempt to lift and carry him was abandoned, however, when his helpers realised that he had the knife. The police were unaware of that and left, having required the group to leave the area. Police returned to the sports reserve about an hour later but saw nobody to speak to. I am satisfied that by that time the offender must have returned to the deceased's house with the knife. I am satisfied that at a time which cannot be precisely stated but which was probably not long either side of midnight, the offender stabbed the deceased with the kitchen knife. It was a large and heavy instrument, having a blade sharp on one edge and tapering to a point, about 40 mm wide at the base and 200 mm long. Death resulted from a single blow, delivered with moderate and perhaps greater force, directed to a point about 40 mm below the tip of the right shoulder. The knife entered there and passed through the muscles of the armpit, severing the brachial artery and vein, entered the chest cavity by fracturing and passing through the fourth rib on the right side, passed through the lower lobe of the right lung, passed out of the lung at the rear and cut through the lower part of the eighth rib, coming to rest a little to the right of the spine. The track of the wound was 180 mm long. The entrance wound was 50 mm long gaping to 20 mm wide. The blow was delivered either with the right hand from behind or to the right of the deceased or with the left hand from in front. Defence injuries to the deceased's right thumb and index finger make it more likely that it was a frontal attack. Such was the loss of blood resulting from the severance of blood vessels and damage to the lung and other tissue that the deceased must have lost consciousness after only a few minutes. She would have died after 15 minutes or a little more, 3 At about 3.30 am on the same night patrolling police officers encountered the offender in the street. He told them that the deceased had stabbed herself about 15 or 20 minutes earlier and that he wished to summon medical help. He showed the officers where the deceased's body was, lying across the bed in her room. One of the officers noted that the left arm appeared rigid. The police called for help and an ambulance officer attended. He was satisfied that the deceased was dead and, like the police officer, noted rigidity in an arm. He said that that was a sign of the onset of rigor mortis. I accept the evidence of Dr Cala, the pathologist called by the Crown, that the long muscles of the arm which must have been affected would be likely to begin to stiffen about 3 hours after death. Dr Cala's evidence satisfies me about the approximate time of death that I have mentioned. It also satisfies me that the offender was untruthful in the account he gave to the police officers about the time of the stabbing. 4 The offender was arrested on the same morning. 5 In January 2009, before he was committed to this Court for trial, the offender offered to plead guilty to the manslaughter of the deceased, but the Crown declined to accept the offer of the plea in discharge of the indictment. The respective attitudes of the parties were maintained in this Court. Consistently with the offer, the offender on arraignment pleaded not guilty of murder but guilty of manslaughter. Also consistently with the offer, he made formal admissions, effectively that he had stabbed the deceased and that the stabbing had caused her death. The issue raised for the jury's consideration was as a result narrow, namely whether the offender had the intention when he stabbed the deceased to kill her or inflict grievous bodily harm. Although evidence in the Crown case was taken over five days, a significant part of that time was accounted for by the unavailability of witnesses and a difficulty that attended a member of the jury. If things had fallen out more fortunately, the evidence would have been completed in three days or a little more. The offender's attitude, and the cooperative way in which Mr Bruce of Senior Counsel conducted the case on his behalf, resulted in a substantial shortening of the trial, and I shall recognise that fact in the sentence I impose. 6 Ordinarily a jury might be expected to infer from the infliction of a wound of the kind I have described with a knife of the kind I have described that an attacker did so with intent at least to do grievous bodily harm. The evidence pointed to by the defence as possibly raising a reasonable doubt about that went to the effect on the offender of the alcohol he had drunk. His case was that he was so heavily intoxicated that he did not form the requisite intent. The verdict shows that the evidence was insufficient to raise a reasonable doubt about that. 7 The offender was born on 22 October 1977, so he was 30 years old when he committed the offence and is 32 years old now. He was born in Lismore and has spent his life in the district. He had a difficult family life as a child. His mother died of alcohol abuse when he was 9 or 10 years old and he spent time with foster families. His father was in work, but the two were separated from one another. The offender was diagnosed with epilepsy as a child and treated. He left school at 13 or 14 years of age and started drinking and smoking cannabis. By his mid teens he was drinking a cask of wine a day. He began using heroin and speed later in his teens. His criminal record began in the Children's Court when he was 12 years old, and there is a long series of convictions for offences generally committed by those out of control with alcohol and other drugs: property offences, public nuisance offences, driving offences and some offences involving violence. He has served a large number of gaol sentences but none having a custodial component of more than 9 months. All his offences have been dealt with in the Local Court. The most serious seem to have been stalking and intimidating, breaching an apprehended violence order, being armed with intent to commit an offence and having been on a number of occasions in possession of knives or other cutting instruments. His most recent offence before the present one was for shoplifting and he served a sentence of imprisonment for one month, expiring on 19 January 2008. 8 The offender has never been dealt with on indictment before, however, and the offence for which he must now be sentenced is in my view quite unlike any he has committed before, I do not think in the end that his record is an aggravating factor, though it does not entitle him to leniency. 9 I have mentioned something about the difficult family life the offender had as a child. Ordinarily such matters would not be given weight in the sentencing of a man well into his thirties. This case is different, however, and I think it necessary to take into account in imposing sentence all the circumstances that have borne on the offender's life and his ability to conduct himself in the community up to the present time. First, he has a substantial intellectual deficit. Upon examination and testing by Dr Pulman, Clinical and Forensic Neuropsychologist, he returned a full scale IQ of 62, which was described as extremely low and falling in the first percentile. Dr Pulman concluded her opinion in these words - The results of current neuropsychological assessment indicate that Mr Yuke's overall level of intellectual functioning falls within the Extremely Low range and at the 1 st percentile, i.e. 99% of the normal population would perform better than Mr Yuke on this test. On the basis of his level of intellectual functioning, Mr Yuke meets criteria for having a mild intellectual disability (i.e. Full Scale IQ < 70). The results also indicate that Mr Yuke's attention and concentration is poor. In particular, his working memory (the ability to hold information in mind for further processing) falls at the 0.3 percentile and is significantly lower than other aspects of his cognitive functioning. This finding suggests that Mr Yuke would have great difficulty following conversations and instructions in any great detail. He is likely to appear forgetful and require frequent repetition of information. Mr Yuke's ability to recall short passages of information is well below the level predicted on the basis of his level of intellectual functioning. It is likely that his history of chronic alcohol abuse is a contributing factor to his poor auditory memory skills. Furthermore, assessment of his executive functioning or higher order reasoning skills suggest these are also extremely poor. Mr Yuke demonstrated difficulties with planning, judgment and problem solving. His conceptual abilities appear limited. Despite Mr Yuke's overall low level of intellectual functioning it is likely that his history of chronic alcohol abuse and epilepsy has contributed to his poor verbal memory and executive abilities. Due to his poor reasoning skills his ability to plan ahead and to think through the consequences of his actions is likely to be reduced. The intoxicating effects of alcohol are likely to further exacerbate his limited abilities in these areas. 10 Having observed that age equivalents based on IQ results for persons over 16 years of age should be treated with some degree of caution, Dr Pulman offered that as a guideline to the offender's level of functioning, his age equivalent was 10 years. 11 The offender was also seen by Ms Sheila Gray, a social worker who is at present an authorised clinician for the clinic of the New South Wales Children's Court and who reports to that court in care proceedings. Ms Gray reported that the offender recognised that his use of lighter fluid, marijuana, amphetamines, magic mushrooms and ecstasy, beginning at age 13 and developing to the intravenous use of heroin, had "mucked me up". By age 22 he was inhaling paint thinners. He told Ms Gray that in those days he would crush anything up and inject it, though his preference was for heroin. His use of illicit drugs decreased early in his twenties when he resumed a relationship with a partner who was not a drug user. 12 However, his use of alcohol never seems to have abated. During the trial there was evidence that when asked he said that he drank every day. 13 Ms Gray comments on the drugs the offender now takes under prescription, namely Seroquel, an anti-psychotic medication, and Epilum, for epileptic seizures. There have been reports over the years of repeated head-banging and of what has been said to be delusional thinking. There has never been any psychiatric assessment and Ms Gray thinks that the delusions may have been associated with alcohol withdrawal symptoms. 14 The impression I have is that it has only been when the offender has been in prison that he has been able to keep off alcohol. 15 In her report of 28 June 2010 Ms Gray said this - The impact of parental substance misuse, results in parental unavailability in terms of parental emotional availability for children and supervision and guidance of the children's behaviour. An absence of sufficient scaffolding results in children developing insufficient adaptive responses to developmental challenges. This results in the development of restricted problem solving skills, a tendency for children to develop social strategies of interaction which involve aggression or isolation. The description provided by Donald Yuke of his early family life indicates a developmental context characterised by emotional neglect and an absence of emotional regulation and externally reinforced boundaries to behaviour. Donald Yuke emphasised his perception of responsibility towards his younger siblings and his expression of frustration at being unable to fulfil their expectations. This notwithstanding, it is apparent that at the age of twelve the accumulative pressures upon Donald Yuke were such that he expressed significant distress. He stated in interviews that he did not want to be alive and this reflects the degree to which he was overwhelmed by perceived pressures. The onset of his alcohol misuse at the age of twelve, and then his substance misuse at the age of thirteen presented him with a maladaptive response to alleviate his own emotional suffering. His extensive and chaotic use of illicit substances and noxious chemicals appear to have effectively excluded him from mainstream daily routines and attainments punctuated through school attendance. It appears from my assessment at this time that the anchors provided for his social support were significantly provided by adults external to his family. It is apparent that Donald Yuke has a persistent offending history which is disrupted by his adolescent and adult life. This history has resulted in his criminalisation and incarceration on a regular basis and as a result of this, given the frequency of his incarceration, Donald Yuke has developed toleration for the regimes entailed in prison life. In many respects this has provided him with an alternative environment to which he has become emotionally accustomed. In response to this, it appears that Donald Yuke has experienced increasing difficulties in negotiating the pressures entailed in adult life outside of prison. In addition to this, Donald Yuke's reduced intellectual functioning has been impaired further by his chronic history of substance misuse. The scale of his substance misuse has been sustained throughout his adult life. This has impacted adversely upon his interpersonal problem solving skills, his social skills and his capacity for discrimination. His primary focus in organising his time throughout his adult life appears to have been motivated by his desire to sustain a level of intoxication and inebriation sufficient to suppress and impair his cognitive functions. As a result, this sustained level of inebriation has itself developed into a chronic dependency which has been the basis for criminal behaviour in order to finance his continued substance misuse. 16 To my mind the overwhelming features of the offender's subjective case are his severe intellectual deficit, making it very difficult for him to learn, and his hopelessness in the face of available alcohol. 17 There is hope, however. His father, Mr Donald Lovelock, has always supported him and will continue to do so. He has visited the offender in custody. He has written a letter to the Court. He has been in Court every day of the trial. He will continue to assist and support the offender however he can. 18 The offender's sister, Margaret Yuke, has written a letter to the Court. She has spoken of the difficulties that they had when they were children and says that the offender is a good man. She says that he feels sorry for what has happened, and I accept that. 19 The offender has an interest in painting, and a number of his finished works were tendered on sentence. His work seems to be of a high order. As his father and sister say, the offender wants to continue to keep doing his painting and to sell his work. 20 A letter was written to the Court by Mr Ridley Bell on behalf of himself and his wife. Mr and Mrs Bell are volunteer members of the Lismore Soup Kitchen and know the offender well. He has been attending that establishment for years. In the letter Mr Bell says, and I accept, that in a structured situation the offender's behaviour is stable and he is sociable. It is not so, however, when he lacks structure. In expressing that view Mr Bell shares the concern expressed by Ms Gray about the offender's ability to function in a responsible way in the community alone and unsupported. Mr and Mrs Bell, who seem to me to be very fine people, have visited the offender in gaol and will continue to support him. 21 The offender's act which caused the death of the deceased was a single blow with the kitchen knife. He was heavily intoxicated at the time. The position of the entry point of the knife does not commend itself as one at which an attacker would aim if intending to kill. I am satisfied beyond reasonable doubt that the offender intended to do the deceased grievous bodily harm. 22 In the circumstances I have described the offender's intellectual deficit makes it necessary to give less weight than in an ordinary case to the need for general and personal deterrence. 23 I am satisfied on the evidence of Mr Lovelock, Ms Margaret Yuke and Mr and Mrs Bell that the offender is remorseful. 24 In view of the offender's long and consistent pattern of offending and of his inability to stay away from alcohol, it might have been thought that his prospects of rehabilitation were poor. There is, however, the remarkable body of support that I have mentioned and the hope that, encouraged by those around him and pursuing the painting that he does so well, the offender may yet learn to live a useful life. 25 An affidavit of the offender was read on sentence. He has been in custody since his arrest on 29 March 2008. He says that he has been held in either Limited Association or Non-Association because of the nature of his offence and because he has an indigenous background. He says that other inmates of an indigenous background have threatened or assaulted him and that he has reported the threats. The implication is that the threats are a further reason why his association with other inmates should be limited. He says something about the conditions in which he has been kept and a resulting limitation of access to drug and alcohol counselling, education programmes and work opportunities. I accept that that has been the offender's experience so far and take it into account. However, I do not expect that that state of affairs will continue for long once these proceedings are over and the offender settles down to serve his sentence. 26 I note the offender's intent to seek drug and alcohol counselling and pursue courses and work opportunities. I note his intention to seek help on his eventual release, including psychiatric help and I think that those matters augur well.