R v Dean Jones [2010] NSWSC 432

New South Wales Supreme Court

CITATION : R v Dean Jones [2010] NSWSC 432

HEARING DATE(S) : 6/04/10, 7/04/10, 8/04/10, 9/04/10, 6/05/10,

JUDGMENT DATE : 14 May 2010

JUDGMENT OF : Barr AJ at 1

DECISION : Set a non-parole period of 16 years, commencing on 20 June 2008 and expiring on 19 June 2024. The balance of the term is 5 years and 4 months, expiring on 19 October 2029.

CATEGORY : Sentence

PARTIES : Regina Dean Jones

FILE NUMBER(S) : SC 2009/7736

COUNSEL : Crown- A. Robertson Offender- G.Brady

SOLICITORS : Crown-Solicitor for Public Prosecutions. Offender-Philip Gibson, Nyman, Gibson, Stewart.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BARR AJ

FRIDAY, 14 MAY 2010

2009/7736 R v DEAN JONES

JUDGMENT- Remarks on sentence 1 HIS HONOUR: The offender, Dean Jones, has pleaded guilty to the murder on 20 June 2008 at Redfern of Giuseppe Miraglia. 2 At the time of the events giving rise to the charge the deceased, Giuseppe (Joseph) Miraglia, resided in a unit in Morehead Street, Redfern. The offender had moved in to live with him about 6 months previously. The deceased was then 56 years old and was not in good health. The offender was 37 years old. Both men used Methadone and other drugs. On Thursday, 19 June the deceased and the offender went to a pharmacy where the deceased bought 50 Valium tablets. The offender paid for them. On the following morning they went to another pharmacy and the deceased obtained his regular dose of Methadone and two days' supply of Biodone Forte. The two returned to the unit. At some time during that day they quarrelled and the deceased accused the offender of stealing his Valium. The deceased was holding a kitchen knife at the time but there is no suggestion that he attacked the offender with it. The offender attacked the deceased and gave him a savage beating. The deceased's injuries were later noted at a post mortem examination. There were numerous surface abrasions, contusions and lacerations, two intradermal bruises, one to the posterior left shoulder and one to the upper left paracentral back, in keeping with footwear impression marks. The pathologist considered it likely that they could have been caused when the deceased was upright. There were widespread multi-focal fresh subcutaneous haemorrhages. There were extensive soft tissue injuries to the head and neck. There were fractures to the maxilla. The upper denture was broken and four teeth were missing, driven into the plate. There was fresh subdural haemorrhage and multi-focal subarachnoid haemorrhage. There were cerebral contusions. The septum pellucidum was lacerated and there was mild defuse axonal injury. There were abrasions and bruising to the neck, a fractured hyoid bone and larynx and an extension fracture of the cervical spine. There was a possible sharp force injury to the left lateral chest wall. There were ten rib fractures. There were bruises to the back of the right hand and a minor probably sharp force injury to the tip of the left middle finger. The pathologist was of the opinion that the injuries would have bled fairly heavily. 3 The pathologist was of the view that the direct cause of death was multiple injuries, but that there was a significant condition of Methadone toxicity that contributed to the death. The pathologist also noted from medical records that the deceased was thought to have epilepsy which he claimed stemmed from a fall from a horse when he was in his teens. He also had a history of hypertension, type 2 diabetes mellitus, asthma and psoriasis. He was taking a number of medications. Earlier in the same year he had a leg ulcer, which was presumed to be secondary to his diabetes. He also had a history of chronic hepatitis C viral infection and rectal cancer, which was treated in hospital in 1991. 4 The pathologist noted signs of previous head injuries and brain damage, possibly as a consequence of previously compromised cerebral blood flow or oxygenation. Other findings included moderate to severe coronary artery disease, emphysema, cirrhosis of the liver and scarring of the pancreas. Serological studies revealed evidence of hepatitis C viral infection, a recognised cause of cirrhosis of the liver. 5 Toxicological testing revealed the presence of a relatively high level of Methadone and the presence of Diazepam, a metabolite of Methadone, as well as Cannabis metabolites. The pathologist concluded that while it was difficult reliably to quantify the likely effects of the drugs present in the deceased's system, it was likely that the compromising effect of Methadone toxicity would have played a contributory part in death. He also noted that it was unlikely that the deceased would have had the capacity to undertake serious physical activity after sustaining the injuries. 6 After beating the deceased the offender put him into the shower and tried to clean up the bloodstains which had been spattered on the walls. At 8.44pm he telephoned the emergency number and told the operator that his flatmate had come home covered in blood and that he could not get any sense out of him. He said that someone had bashed him. He told the operator that the deceased was beyond cardio-pulmonary resuscitation, that he had come home about an hour earlier, that he had put him in the shower and that when he went to check on him he was not moving. He said that it looked as though he had been hit with a weapon and referred to a mark on the deceased's stomach where it looked as though he had been cut by a knife or something. 7 At about 9pm police officers arrived at the unit. The offender was still speaking to the emergency operator. He directed the officers to the shower and they found the body of the deceased in the bath tub, naked. The body was wet and there was water in the bath. There was blood on the deceased's head and face. The body was cold and stiff. Ambulance officers arrived shortly afterwards and confirmed that the deceased was dead. 8 The offender's right hand was swollen and the little finger of the left hand was bent backwards. The police arrested him. 9 There were no bloodstains in the stairwells or outside the unit, but inside there were blood spatters extending throughout the unit, mostly on the walls of each room and on the ceiling of the bedroom and the bathroom. There was also blood spatter on the external surface of the front door. The officers noted signs that someone had tried to clean up the blood. Swabs were taken from various parts of the unit. 10 The offender was interviewed in the early hours of 21 June 2008. He told the interrogating police that he had been in Sydney for 6 months and that he had been on Methadone, but that he had got off it. He had needed a place to stay and the deceased had put him up. He said that the deceased was selling him his Methadone and that he had got a bit of a habit. He said that the deceased came home. He, the offender, opened the door and the deceased's head had been mangled. He asked him what had happened and the deceased said that he had been bashed. He said that he picked him up and put him on the lounge. He told him to have a shower. They had a cup of tea. He put him in the shower. He, the offender, had a shot and then one or two hours later went to the bathroom. The deceased was there. The offender telephoned for the ambulance, threw water on him and gave him mouth-to-mouth resuscitation and chest massage. 11 He told the officers that on the Thursday night the deceased had obtained 50 Valium tablets and had given the offender 5 of them. He told the police about the visit to the chemist on Friday for Methadone. He said that he had injected some of that. He had noticed a big gouge on the deceased's left side and thought that someone had cut him with a knife. He denied trying to clean up blood before the police arrived. He said that the swelling on his right hand resulted from an altercation that had happened about two weeks previously. He said that he had never fought with the deceased over Methadone. 12 Dr McGregor examined the offender at Rozelle Hospital later that morning. She concluded that he was opiate dependent, had anti-social traits and that there was no evidence of psychosis or major affective disorder. She noted that he was not mentally ill or mentally disordered. He was returned to police custody. He was examined by Dr Phillip Sharp and told him that he had injected 60 to 70 mgs of Methadone per day. Samples of the offender's blood were taken and the analysis showed the presence of Delta-9-THC acid, Diazepam, Methadone, Nordiazepam, Oxazepam and Temazepam. This led to the conclusion that the offender had recently consumed Diazepam, a sedative available under the trade name Valium, and Cannabis. 13 On 17 July 2008 the offender told police officers that he had lied to them. He was interviewed a second time. He said that he would like to withdraw the statement he had made as he had been afraid and under the influence of drugs, and that he would like to tell the truth and issue another statement. He said that he and the deceased had attended the Methadone clinic to obtain the deceased's drugs and had returned home and used those drugs, that he had fallen asleep and that the altercation had taken place when he awoke. He said that they had an argument and a fight, a physical fight, and he realised that the deceased had died. He said that the fight had occurred within the unit and that there were punches. 14 The facts that I have related are taken from the document entitled 'Agreed Statement of Facts', Exhibit A in the Crown case on sentence, signed by Counsel for the parties and by the offender. The document came into existence after a protracted series of events. The trial of the offender over which I was to preside was fixed to begin on 6 April 2010 but the jury were not empanelled because Counsel wished the Court to rule on objections raised to the tender of two substantial bodies of evidence. The first, described as relationship evidence, was from a number of witnesses who described events involving the deceased and the offender or both of them during the period of a few weeks immediately before the day of the deceased's death. The second was of things said by the offender to investigating police officers and of the results of medical examinations and consequent medical opinion of the offender's state of health at relevant times. After I announced that both bodies of evidence would be admitted, Counsel for the offender requested an adjournment. That was granted and upon resumption the offender pleaded guilty. So the jury were dispensed with and the evidence to which I have referred was not tendered. Instead, when the sentencing hearing began, the Crown tendered the Agreed Statement of Facts to which I have referred. It incorporates and summarises some of the things said by the offender to investigating police officers from time to time. However, it omits what I have described as relationship evidence. I wish to make clear that the only facts the Court can take into account in sentencing are those set forth in the Agreed Statement of Facts and otherwise tendered on sentence. I have put out of mind any other material tendered before the offender pleaded guilty to the charge. 15 There is no evidence about the relations between the offender and the deceased that might suggest why the offender should attack the deceased as he did. They had shared the deceased's unit for about 6 months. They had been in each other's company for some hours before the attack. They had obtained drugs together. They had consumed and were affected by them at the time of the attack. Nothing about the nature of the drugs the offender had taken seems likely to have made him more likely to launch the attack. 16 It was submitted on behalf of the offender that the Court should find that he was provoked by the deceased's accusation, given that he was holding a kitchen knife at the time. Such was the condition of the deceased's health that someone like the offender, who had resided with him for some time, must have been aware of it. The deceased was considerably older and weaker than the offender. He was suffering from a number of medical complaints, and although the offender may not have known the detail of all of them, it must have been obvious to him that the deceased was not at all a well man. If he had been at all concerned about the kitchen knife, the offender could easily have taken it off the deceased. While I can understand that the offender may have been indignant about being accused of stealing something he had paid for, indignation alone could not explain such a savage and sustained attack with hands and feet. The fact that blood was spattered so widely through the unit shows that the attack was determined and sustained. The objective signs show that only the deceased sustained injury. The injuries to the offender's hands are explained by his own attack. The attack was not a fight, as the offender described it in his second statement to the police. The deceased must have been quite unable to defend himself and the offender must have realised it. 17 Nor does the evidence about the drugs the offender had consumed explain why he would attack with such savagery. I conclude that, nettled by the deceased's words, the offender simply lost his temper. The provocation was slight. 18 The offender's criminal record shows that he has a long association with drugs and violence. He has been dealt with leniently for assaults, offensive conduct and menacing and intimidating behaviour over the years. In 2005, having been found guilty of affray, he was ordered as a condition of a bond to accept the supervision of the Probation and Parole Service and accept all reasonable directions of its officers concerning anger management, among other things. His record disentitles him to leniency. 19 The offence was more serious because it was committed whilst the offender was subject to a two year bond, imposed on 13 August 2007, to be of good behaviour. 20 It was submitted by the Crown that the offence was more serious because the attack was made in the deceased's home. I do not accept that submission, however, because the offender did not enter the deceased's home for the purpose of committing an offence. It was not a trespass of that kind. The unit was the offender's home as well. 21 I accept that the Crown could not prove any intent to kill. I sentence the offender upon a finding that his intent was to do really serious injury to the deceased. I accept also that the toxicity of the Methadone the deceased had consumed, for which the offender was not responsible, contributed to his death. 22 The offence was not planned but was committed because the offender failed to control his anger. 23 It was submitted on behalf of the offender that he is entitled to consideration for entering his plea of guilty. That is so, but there are reasons why the plea attracts only a modest allowance. First, it did not emerge until what would have been the fourth day of the trial. Moreover, this was the second trial fixed. The matter first came before this Court on 10 July 2009 and at the request of Counsel then representing the offender, he was not arraigned because, as Counsel said, the defence was awaiting a psychiatric report. The matter was adjourned to 4 September 2009 and the trial was fixed to commence on 23 November 2009. On 20 November 2009 the offender's solicitor and barrister withdrew from the case. The trial was aborted and a new trial date had to be fixed. That was 6 April 2010, and I will not repeat the events that happened when the trial was called on. 24 A plea of guilty may be regarded as evidence of contrition, but the offender's plea is no evidence of contrition. It was entered in the face of a strong Crown case and only after an unsuccessful attempt on the part of the defence to keep out a body of damaging evidence. The Crown case was very strong because the objective evidence showed that the deceased must have received the injuries in the unit and that the offender was the only other person resident there. 25 Even when the offender told the police that he wanted to make another statement he was not fully forthcoming about what had happened and, as I have said, at least inaccurately told the officers that what had happened was a fight. 26 I do not think that the offender is remorseful. 27 The Court is to consider the value to the community of the plea of guilty, nevertheless, because of the benefits resulting from savings of court time and of the need for witnesses to give evidence. Because of the history of this matter, not much court time has been saved by the plea of guilty. The Crown had to prepare the trial for hearing last September and it had to be aborted at the eleventh hour. In the same way, the Crown had to prepare the trial for hearing on this second occasion and the plea of guilty emerged as late as I have described. There has still been some saving of time, of course, and that entitles the offender to a modest consideration, and that he will have. 28 I do not regard the fact that the offender had consumed Valium, cannabis and Methadone as aggravating or mitigating his criminality. He was well used to the effects of such drugs and may have been tolerant to them. Their effect did not disinhibit him mentally or physically from attempting to remove the blood stains scattered throughout the unit or from getting in touch, as he had to in the end, with the emergency services and trumping up a story about the deceased coming home injured. 29 The offence was the more serious because the deceased died from the offender's brutal, severe and sustained attack on him when he was unable to defend himself. At the same time the offender was subject to the condition in the bond to be of good behaviour. 30 I am unable to find that the offender has good prospects of rehabilitation. 31 Other matters entitle him to leniency. The specific intent of the offence was not to kill but to do really serious bodily injury. The attack was unplanned, and in response to very slight provocation. Methadone toxicity also contributed to the death of the deceased. There is also the plea of guilty, which came very late. 32 I have come to the view that this offence falls a little below the mid-range of seriousness for an offence of its kind. In fixing a non-parole period I shall take that finding into account, having in mind the standard non-parole period of twenty years' imprisonment. 33 It was submitted on behalf of the offender that the Court should vary the prima facie relationship between the non-parole period and the balance of sentence during which the offender would be eligible for release to parole. Two matters were pointed to as justifying that approach, namely the length of the sentence itself and the need of the offender for supervision after release to ensure appropriate psychological treatment and a drug free lifestyle. 34 I do not regard the length of the sentence which I must impose as itself requiring an adjustment of the proportions between non-parole and parole periods. 35 The offender has been in trouble with drugs for a long time. The first court record of any drug offence dates from June 1998. Since then there have been quite a number. Over the years the offender has been given the benefit of bonds on several occasions. Some of them bore conditions directed towards drug rehabilitation. As the facts of the present case show, the problem continues unabated. 36 The offender is now 39 years of age and may be assumed to have been unable since his arrest on 20 June 2008 to obtain drugs. Obviously, he will need a good deal of support during his time in gaol to change his attitude towards drugs and to control his behaviour when things do not go his way. As well as that, he will need the assistance of professional overseers when released to parole to help him stay away from the drugs that will then presumably become available once again and to cope with the situations he will face afresh in the community, Even so, it should not be supposed that nothing can be done to anticipate and tackle these problems during the non-parole period. It seems to me that if he participates in the programs which will be made available to him while he serves his sentence, the offender will be released with the psychological preparedness and professional support sufficient to ward off the dangers that may arise in the community. In my opinion the time that I propose to allow for parole will be sufficient for effective supervision, provided the offender approaches his problems in a realistic way. 37 There is a further reason why I think it inappropriate to adjust the relationship between non-parole and parole periods, and that is that the non-parole period that I shall fix is the minimum that I think the law permits. Any longer period of time for parole therefore, could be achieved only be extending the total term of the sentence, and that is something the Court may not do. 38 The family and friends of the deceased have been badly hurt by his death and by the way in which he died. Their suffering will continue. A victim impact statement was read by the deceased's daughter, Ms Johanna Bianca Miraglia, saying something of the resulting hurt. I do not doubt that it has been explained to Ms Miraglia and to the other members of the deceased's family that the Court is not permitted to take those matters into account in imposing sentence on the offender. Nevertheless, I should like them to understand that the Court extends its sympathy to them in their loss. 39 Dean Jones, you are sentenced for the murder of Giuseppe Miraglia to imprisonment. I set a non-parole period of 16 years, which will be taken to have commenced on the date of your arrest, 20 June 2008 and which will expire on 19 June 2024. The balance of the term of the sentence will be 5 years and four months, commencing on 20 June 2024 and expiring on 19 October 2029. The first day on which you will be eligible for release to parole will be 19 June 2024. **********