R v NEAVE [2012] NSWSC 229

Supreme Court New South Wales

Medium Neutral Citation: R v NEAVE [2012] NSWSC 229 Hearing dates: 27, 28, 29 February, 1, 2, 5, 6, 7, 8, 9, 12, 13, 14 March 2012 Decision date: 14 March 2012 Jurisdiction: Common Law - Criminal Before: RS Hulme J Decision: I sentence you to imprisonment for a non-parole period of 13 years commencing on 26 September 2010 together with a balance of term of 4 years. I record as the date upon which it appears to the Court that you shall first become eligible for parole, 26 September 2023. Catchwords: Murder - sentence - substantial impairment by abnormality of mind Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Faehndrich [2008] NSWSC 877 R v Zaro [2007] NSWSC 756 Veen v The Queen (No 2) (1987-1988) 164 CLR 465 Category: Sentence Parties: REGINA v JASON NEAVE Representation: C: P Barnett SC P: C Smith C: S Kavanagh O: Legal Aid Commission File Number(s): 2010/322380

SENTENCE 1RS HULME J: On 12 March last, the Prisoner was found guilty of murder. When arraigned, he had pleaded not guilty of murder but guilty of manslaughter but the Crown would not accept that plea in satisfaction of the indictment. The only substantial issue at his trial was whether he should be found guilty of manslaughter by reason of the partial defence of substantial impairment by abnormality of mind. At an evidentiary, level the substantial issue was whether, at the time he stabbed the deceased, his capacity to understand events, to judge whether his actions were right or wrong or to control himself was substantially impaired. 2It now falls to me to sentence the Prisoner. In the determination of the sentence, I am required to make findings of fact which are consistent with the jury's verdict. In doing so, any matters tending to aggravate the Prisoner's criminality must be found beyond reasonable doubt, but it is sufficient to find matters tending in mitigation on the balance of probabilities. 3The origin of events that led to the deceased's death was the formation of a relationship between her and the Prisoner which seems to have occurred in about mid-2009. There is no doubt that the relationship was a volatile one marked, while the two were residing at Doonside, by frequent separations. In the words of Mr Roberts who then lived next door, the Prisoner was "kicked out every few months". 4The Prisoner some few years before had purchased a house in Quirindi. He and the deceased decided to move there which they did in about May 2010. There is evidence that the relationship was satisfactory for a time but then deteriorated. There were arguments. Some seemed to have been about money including the failure of one or other to contribute to rent and household expenses and on the topic of whether the deceased was caring appropriately for her youngest daughter aged 14 or thereabouts. The Prisoner's mother, who impressed me as a credible and reliable witness, said that the deceased and the Prisoner argued over lots of small things. 5On 6 August 2010, the deceased moved out and went to live in other premises in Quirindi. 6That did not end the antipathy or what would seem to be mixed feelings one had for the other. There was evidence, which I accept, that the deceased would visit the Prisoner's next door neighbour in circumstances that the Prisoner could see her. On 3 September 2010, both attended at a local hotel where the Prisoner made a nuisance of himself in following the deceased around and made allegations against her to the publican. There is evidence suggesting that in turn the deceased may have belittled the Prisoner in ways there is no need to record. 7On Monday or Tuesday 20 or 21 September 2010, the Prisoner told his mother that the deceased had visited him on the previous night and they had slept together. When Mrs Neave asked why the Prisoner had let the deceased in, the Prisoner said that he was lonely. At about this time, the deceased's children were discussing the resumption of contact between the deceased and the Prisoner. It is apparent that they were not in favour. 8On Wednesday 22 September 2010, the Prisoner sounded stressed and agitated during the course of a phone call with his mother. In consequence, his parents drove from Stockton to Quirindi that afternoon and soon after their arrival at the Prisoner's premises, the deceased arrived. She left but was expected back later that day. 9On Thursday 23 September, his parents kept asking the Prisoner what he was going to do. He couldn't seem to say, became agitated at the requests and kept going off in his car, driving down the road and returning. According to Mrs Neave, the Prisoner didn't seem to know what was happening. During this visit, the Prisoner was pacing up and down and said that this was the only way he could get peace. They pressed him to go and see his doctor. 10The Prisoner did see his doctor that day and said that he was depressed. The doctor described the Prisoner as agitated and restless and thought that he would need counselling. The doctor doubled a dose of Lexapro, an anti-depressant, previously prescribed and also prescribed sleeping tablets. It is proper to recognise, though on the evidence impossible to decide, that the Prisoner's condition may have been contributed to by his using some of the Lexapro previously prescribed as an overdose and then having none to use. The state of the evidence is such that I cannot determine whether this overdose in fact occurred. 11On 24 September, the deceased and the Prisoner attended a local IGA store and bought some smokes and groceries. At around 4.40 pm and 5.00 pm on that day, the deceased and the Prisoner were seen sitting in the garage of the premises where the deceased was living, apparently drinking. 12The Prisoner spent the night of 24 September at the deceased's premises. According to the Prisoner, who provided details of events to an operator in a 000 call he made and on two occasions to questioning police officers, he and the deceased were having breakfast, each commenced to look at the mobile phone of the other and did not like either messages and/or pictures involving other people that they saw there. A fight commenced. In the course of it the Prisoner who, I accept had never been violent to the deceased before, punched her in the face. 13The Prisoner, who was angry, also took hold of a kitchen knife the deceased had taken from a set that the Prisoner had. The deceased attempted to grab the knife and sustained some cuts to her hand. The fight stopped, there would seem to have been discussion whilst both were on the lounge-room floor and the Prisoner agreed to take her to hospital to have the hand attended to. They set out on such a journey. 14Along the way, the Prisoner diverted and commenced to drive along Allnutt Street which further along becomes Borah Creek Road. The deceased took exception to this and pulled on the handbrake of the car which veered to the opposite side of the road, turned something of at least 90 degrees and stopped with its rear adjacent to a fence. 15The deceased tried to get out. The Prisoner told her to stay in the car, saying they would talk and then he would take her to the hospital. 16There, certainly outside, but probably also in the car, the Prisoner stabbed and otherwise assaulted the deceased and this despite her screaming and saying "Don't Jase". The pathologist, who gave as the cause of death multiple stab and incised wounds, counted 66 injuries to her body, including six to the front of her torso, 12 to the back of her torso and 13 knife wounds to her head and neck. Twenty-nine of the injuries were stab wounds and 23 were incised wounds. Two of the stab wounds caused substantial damage to the deceased's jugular vein and right carotid artery. Six entered one or other of her lungs. A number passed through rib bones, a circumstance that, according to the pathologist, indicated the use of significant force. 17The Prisoner then put the deceased back into the car, covering her with a blanket and drove further along Borah Creek Road to a waterhole or dam. He washed himself in the water, then drove home, placed the deceased's body in a large shed or garage and covered the body. 18Considered on their own, some of the Prisoner's answers to police officers and statements in his 000 call indicate that, when he set out on the journey purportedly to the hospital, the Prisoner intended to kill the deceased and then himself. Others suggest that he may have formed this intent and diverted from the route to the hospital after the deceased said that she wanted to go into the hospital on her own, a desire that led the Prisoner to think that she would "dob" him in. Other answers suggest that the attack on the deceased was principally because the Prisoner simply "lost it" in rage. One must acknowledge that in the emotional state - a matter about which I say more below - the Prisoner was probably in at the start of the journey, the employment of the handbrake and the actions of the car thereafter were liable to have been upsetting. 19Relevant in this connection is the fact that the evidence did not reveal any satisfactory explanation as to why the Prisoner took the knife on what was to be a journey to the hospital. That said, I am unable to form any conclusion as to which of the possibilities mentioned in the immediately preceding paragraph, or whether a combination of them, is most likely. A fortiori is this so if one is thought to aggravate the Prisoner's criminality and thus requires to be proved beyond reasonable doubt. 20At about noon on 25 September, the Prisoner was seen in the vicinity of his home by a number of people. He was observed, inter alia, to have been carrying a shopping bag including bottles and, it is to be inferred, from a retail outlet at least some hundreds of metres from his home. In these sightings he was observed to be walking normally and not breathless. 21On 26 September at about 8.00 or 9.00 am, the Prisoner rang his mother and informed her that he had killed the deceased and injured himself, adding "but it didn't work". At her suggestion he then rang 000 and informed the operator there that he had killed the deceased and stabbed himself. At about 9.30, police and then ambulances arrived at the Prisoner's home and he was taken, and in due course admitted, to hospital. Both at his home and at the hospital he was questioned by police and told them in substance what had occurred. I have used the words "in substance". At times, the Prisoner did not answer questions asked and not all of his answers are consistent but these form a small proportion of the interviews. 22The injuries that the Prisoner inflicted on himself were seven or eight small penetrating wounds to the front and left side of his chest and a four- centimetre laceration to the inside of his left elbow. It is to be inferred that one or more of the chest injuries resulted in a large pneumothorax that was discovered. It is likely also that one of those injuries also penetrated the Prisoner's heart albeit to a minor degree such that the penetration resealed itself. The pneumothorax was potentially fatal, liable to have led to a collapsed lung and compromising the heart's ability to pump blood. The recording of the 000 call evidences that during it the Prisoner was experiencing significant breathlessness. 23The Prisoner gave conflicting accounts of when these injuries were inflicted and the evidence, which includes a great deal of his blood in the shed and many signs of blood in his house, does not make it possible to fix the time with precision. However, his condition when seen in the middle of the day on 25 September leads to the view that any injuries inflicted prior to that time were minor and the substantial injuries were inflicted later on 25 September or early on 26 September. Bottles of bourbon and soft-drink in the bathroom of the Prisoner's residence suggest that he may have drunk some of the contents of these before attacking himself. 24The injury to his elbow would seem to have been inflicted by means of a pair of wire cutters that were found in the shed. There was a substantial amount of blood in so many areas there that the probability is that much of it came from the Prisoner and that at least some of his injuries were inflicted there. The number and nature of the injuries to him also suggest that the Prisoner's mind must have been in turmoil. 25As I have said, the substantial evidentiary issue in the Prisoner's trial was whether at the time he stabbed the deceased his capacity to understand events, to judge whether his actions were right or wrong or to control himself was substantially impaired. Professor Greenburg who was called by the Crown and Dr Nielssen called on behalf of the Prisoner both thought that the Prisoner had an abnormality of mind resulting from an underlying condition and, although each described a different condition, depression was a feature of both diagnoses. The significant difference between the doctors was whether the Prisoner's capacity in any relevant respect was in consequence impaired substantially. 26I am persuaded that it was. Both in his capacity to control himself and to understand events the Prisoner was substantially impaired at the relevant time. 27In this connection I preferred the evidence of Dr Nielssen to that of Professor Greenburg. Without intending in these reasons to attempt an exhaustive analysis of what each had to say, the assessment of the former seems to me to more accurately reflect the history and symptoms of the Prisoner and it seems clear that Professor Greenburg was to some significant extent influenced by his understanding of what was referred to in his re-examination as "evidence to the contrary". His summary of that evidence, or of information he may have received previously, and of the Prisoner's condition referred to in the second paragraph of page 6 of Exhibit Y was significantly inaccurate when compared with the evidence given, or in the case of Dr Roy, recounted in court and which I found persuasive. I am also influenced by the Prisoner's apparent difficulty, not to say incapacity, in dealing with prior relationship break-ups and the degree of stress another break-up with the deceased was likely to have imposed on him in the employment and financial circumstances he was then in and in the context of his Quirindi "dream". 28To expand on this last mentioned point, the Prisoner's life has been marred by depression. Between 1987 and 2009, he was treated regularly for this by his General Practitioner and for a time by a psychiatrist and counsellor. On 19 June 2010, he was assessed by a General Practitioner in Quirindi as suffering from a mild form of depression. He also has had, prior to the deceased coming on the scene, a substantial number of relationships with women that broke up. The evidence tends to indicate that, not uncommonly, these break-ups also led to the Prisoner having to cease his then employment. A deterioration of the quality of the Prisoner's work seems also to have followed his break-up with the deceased on 6 August. 29The inherent likelihood of the situation, supported by statements of the Prisoner, particularly in Exhibit U, and evidence from his mother indicates that the Prisoner had hopes for a good homelife with the deceased in Quirindi. He wanted more of a relationship but felt that the "deceased backed him into a corner", that he "had been used" and "betrayed". She was in his eyes, "manipulative" and "tried to make him feel bad". 30Of course, it is a necessary consequence of my conclusions on the topic of impairment and the jury's verdict that the impairment was not so substantial as to warrant the Prisoner's liability being reduced to manslaughter. 31Turning to other matters, the Prisoner was born in September 1969. He has one matter on his record - an assault committed in 1987 and for which he was fined $100. Being so long ago and, judged by the penalty, of a minor nature, the matter is of no significance for present purposes. The Crown did not suggest the contrary. The Prisoner has been in custody since 26 September 2010 and his sentence will accordingly date from then. 32The Prisoner left school early, in significant measure due to teasing or bullying. Nevertheless he has been generally employed throughout his life. 33There are a number of statutory provisions to which I must have regard. Section 19A of the Crimes Act 1900 provides as the maximum penalty for murder life imprisonment without the prospect of parole. Sections 54A et seq. of the Crimes (Sentencing Procedure) Act 1999 prescribe as the standard non-parole period for murder a term of 20 years and require the Court to fix that non-parole period unless there are reasons for departing from it. Section 5 of the last-mentioned Act prohibits the Court from sentencing an offender to imprisonment if any other penalty is appropriate and s.3A enumerates the purposes for which the Court may impose a sentence. 34In Veen v R (No 2) (1987-1988) 164 CLR 465 at 476 the High Court stated those purposes somewhat more concisely as including five factors "protection of society, "deterrence of the offender and of others who might be attempted to offend, retribution and reform. 35Section 21A of the Crimes (Sentencing Procedure) Act lists something over 30 aggravating or mitigating circumstances to which, if present, the Court is to have regard albeit that requirement is qualified by the terms of the section. In this case there are no aggravating factors to which I have not already referred. Significant mitigating factors are, as the Crown conceded, that the Prisoner had no significant record, was of good character, is unlikely to re-offend and has good prospects of rehabilitation. He made substantial pre-trial disclosure and provided assistance to the authorities in the way contemplated by s.21A(3)(m). His plea of guilty to manslaughter amounts to some acceptance of responsibility for his actions. 36The Crown submitted that the unlikelihood of the Prisoner re-offending has to be balanced by the degree of violence exhibited, combined with evidence that the Prisoner had not been taking medication that had been prescribed. However, while of course the degree of violence is, I do not regard this combination of matters to be of significance here. With the possible exception of his stated refusal to take sleeping tablets on or about 23 September and possible failure to take medication in the few weeks beforehand, the Prisoner seems to have sought or taken help when it was needed throughout his life. The horrendous events of 25 September 2010 and the enormous impact those events have had and will have on the Prisoner lead me the view that he is in the highest degree unlikely not to do as doctors advise in the future. 37Before I proceed further in these reasons, I should acknowledge that in the course of the sentencing proceedings the Crown tendered Victim Impact Statements by a daughter of the deceased, Melanie, two brothers of the deceased, Rodney Burton and Grant Gorringe, and the deceased's step-mother, Sandra Burton, attesting to the loss they and other members of the deceased's family have suffered in consequence of the Prisoner's crime. Such statements help to bring home the substantial impact offences such as the Prisoner's crime occasion. 38Retribution is one of the many aspects of punishment and particularly significant when a life has been taken. However, under laws that have been in existence for a long time now, the loss suffered by the deceased and her family cannot be replicated by any sentence I impose. I am also conscious that, unless I sentence the Prisoner to imprisonment for life, he will eventually be able to grow old in the community, an opportunity he denied the deceased. However, although obviously all murders involve the death of the victim, the Prisoner's offence was a long way from being among the worst of murders with which the Court has to deal and demonstrably a factor contributing to it was a congenital mental make-up for which he was not responsible. Long-standing sentencing principles mean that the sentence I impose must reflect where, in the scale of murders and murderers, the Prisoner and his offence fall. 39The matters to which I have referred lead me to the view that the Prisoner's offence fell within the middle of the range of objective seriousness. Although I am not persuaded that his offence involved any premeditation, it did involve an extraordinary degree of violence and must have imposed at least moments of horror and terror on the deceased. (I make it clear that in making this assessment I have not taken into account the Prisoner's motivation or mental state.) 40Longstanding authority has laid down that an offender whose offending is the result of mental illness is an inappropriate vehicle for great weight to be afforded to general deterrence. However, that is not to suggest that in the circumstances here general deterrence is to have no weight. Furthermore, given the extent to which the Prisoner's condition seems to be amenable to medication, I am not persuaded that his mental state will make imprisonment more burdensome for him. 41Given the Prisoner's, for all practical purposes, offence and violence free record prior to killing the deceased, personal deterrence, rehabilitation (via imprisonment) and the protection of the community also are of limited weight. There remains retribution which, as I have said, is particularly significant when a life has been taken. 42There remains also the question of the proportion that the non-parole period to be imposed should bear to the length of the total sentence. The Crown has submitted that there should not be a finding of special circumstances and, although this is the Prisoner's first time in custody, I agree. A finding of special circumstances should not be made simply to mitigate the effect of a sentence and the Prisoner's past does not indicate that he needs a longer than usual period on parole. Indeed I will make it marginally shorter. 43I should also acknowledge that in the formulation of these remarks and the sentence to be imposed I have derived assistance from what was said by Howie J in R v Zaro [2007] NSWSC 756 and by Price J in R v Faehndrich [2008] NSWSC 877. Of course, there are differences between those cases and this one and my decision is primarily based on the application of settled sentencing principles. 44In the result the conclusion I have reached is as follows. 45I sentence you to imprisonment for a non-parole period of 13 years commencing on 26 September 2010 together with a balance of term of 4 years. I record as the date upon which it appears to the Court that you shall first become eligible for parole, 26 September 2023. 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. Decision last updated: 15 March 2012