Supreme Court New South Wales Medium Neutral Citation: R v Dacey [2014] NSWSC 1452 Hearing dates: 24 October 2014 Decision date: 24 October 2014 Before: R A Hulme J Decision: Imprisonment for 7 years with a non-parole period of 5 years Catchwords: CRIMINAL LAW - sentence - grievous bodily harm with intent - judge alone trial - intention to inflict serious harm formed spontaneously - use of weapon elevates seriousness - objective seriousness slightly below mid-range - substantial criminal record - offender on parole when offence committed - personal deterrence and retribution emphasised - signs of remorse - three year delay in resolution of proceeding - long state of uncertainty - offer to plead guilty rejected by Crown - low prospects of rehabilitation Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Dacey, Ian; R v Dacey, Lee [2014] NSWSC 1201 Category: Sentence Parties: Regina Ian Dacey Representation: Counsel: Mr L Carr (Crown) Mr T Hoyle SC (Offender) Solicitors: Solicitor for Public Prosecutions Armstrongs Solicitors File Number(s): 2011/333188 Judgment 1R A HULME J: On 29 August 2014, the offender, Ian Dacey, was acquitted of a charge of murder but found guilty of causing grievous bodily harm with intent. His brother, Lee Dacey, was acquitted of both charges. At the election of the offender and his brother the trial was by judge alone: R v Dacey, Ian; R v Dacey, Lee [2014] NSWSC 1201. 2Causing grievous bodily harm with intent is an offence contrary to s 33 of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years. There is also prescribed under the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of 7 years. Facts 3The offender and his brother were in the company of the victim, Mr Peter Dent, at his home at Hamilton South on the afternoon of 9 August 2011. They consumed drugs together. They travelled with him in a taxi to the home of the offender's mother at Newcastle East in the early evening. The offender and his brother were described by the taxi driver as appearing to be under the influence of something. 4Mr Dent returned to his home at some stage during the evening. The offender and his brother returned there at about 2.30am. Mr Dent had acquired the drugs they had consumed the previous afternoon and they wanted him to get some more. However, Mr Dent told them that his supplier would not be available at such an early hour of the morning and they would have to wait. 5Mr Dent eventually left to get the drugs at about 5.30am and returned at about 6.00am. An argument developed; apparently Mr Dent refused to hand over the drugs until he was given the money. Lee Dacey claimed that he had already given him the money. (The amount involved was $350.) The offender was asleep but was woken by the argument and intervened. Mr Dent probably produced a knife and the offender suffered a cut to a hand. But Mr Dent was not winning the fight and he quickly fled to the lower level of his unit block where he called out to neighbours but to no avail. The offender and his brother pursued him and further assaulted him. The offender drew his knife and stabbed Mr Dent with the intention of causing him really serious bodily harm. There were six stab wounds in all (one may have been defensive) but only one, to the left side of the chest, was serious. 6The two brothers quickly left the scene. An ambulance was called and Mr Dent was taken to hospital where he received emergency treatment. 7It was ascertained that Mr Dent had suffered a left hemopneumothorax as a result of the stab wound to the left side of the chest. An intercostal catheter was inserted and about 400ml of blood was drained. Investigations were carried out to identify whether any further harm had been caused by the stabbing but the results were negative. 8Mr Dent was initially treated in the Emergency Department, then transferred to the High Dependency Unit and then, on the following day, transferred to a General Ward. He was making what appeared to be a relatively good recovery and was looking forward to being discharged to go home when he suddenly collapsed and died in the mid-afternoon of 14 August 2011. An issue in the trial was whether the Crown was able to prove beyond reasonable doubt that the stabbing had made a substantial or significant contribution to death occurring. There was competing expert medical opinion as to this and in the end I had a reasonable doubt; hence the acquittal of both men on the charge of murder. One matter that was not in dispute was that the offender's knife had done more than penetrate Mr Dent's left lung but had continued through into the pericardial sac and cut a small artery on the surface of his heart; a matter only detected upon autopsy examination. 9The offender was intoxicated to some extent at the time of the stabbing. He certainly was intoxicated by the manner in which he was staggering and stumbling about as captured on CCTV footage in the vicinity of Newcastle railway station at about 2.25am. He was still affected by drugs by about 7.00am when he and his brother arrived at the home of Rachel Caldwell in a nearby suburb after having left Mr Dent's home. But I concluded in my judgment at the trial that at the time of the stabbing he was unlikely to be experiencing any significant alteration of his faculties of perception and judgment at the relevant time and I had no doubt about his capacity to form an intention to achieve a desired result. 10I rejected the offender's claim to have acted in self-defence. He made such a claim in conversations with Corrective Services officers about 2 months after the event when he was on remand. There was no suggestion of it in various statements he made to others much closer in time to the event. He did not give evidence. Seriousness of the offence 11A significant, but not the only, factor in assessing the seriousness of an offence of inflicting grievous bodily harm with intent is the degree of harm caused. It can range from something serious but from which a victim recovers to something that might leave a victim permanently disabled or disfigured. In this case a potentially lethal weapon which was carried by the offender was used by him to inflict a number of wounds, one of which could very well have been fatal. However, the deceased was making a relatively good recovery in the days following the incident. 12The reason for the stabbing was trivial: there was an intense argument about a small quantity of drugs and a small amount of money. The intention to inflict serious harm upon the deceased was formed spontaneously and likely when the offender perceived that the deceased had a knife and was involved in a physical struggle with his brother. There was no pre-existing animosity between the offender and the deceased; indeed, the offender hardly knew Mr Dent. The use of a weapon is not a necessary aspect of this type of offence and so the fact that a weapon was used elevates the level of seriousness. 13The fact that the offender was affected by drugs is not a mitigating factor: s 21A(5AA) Crimes (Sentencing Procedure) Act. 14Having regard to all aspects relating to the objective seriousness of the offence I would assess it as falling slightly below the mid-range. Personal circumstances of the offender 15The offender was born in 1983 and so he was aged 27 at the time of the offence. 16He has a criminal record dating back to a drug possession offence in the Children's Court in 1999 when he was aged 15. He has been imprisoned on quite a number of occasions. His offences include car theft; driving whilst disqualified; stealing, including from people's houses; possessing illegal drugs; possessing a knife in public; stopping mail while armed with a dangerous weapon with intent to rob; assault; not stopping and driving recklessly during a police pursuit; and hindering the investigation of a serious offence. There have been good behaviour bonds with conditions designed to address his drug abuse issues which he has breached. 17The present offence was committed within 24 hours of the offender being released from gaol on parole. This presents a serious aggravating feature. It is notable as well that he has a history of breaching parole; in fact it seems that he has never completed a period of parole without breaching it. 18It is rather depressing to observe that the offender's custodial history shows that he has spent about two-thirds of the past 12 years or so in gaol. He has an internal disciplinary record that indicates he has remained involved with drugs; that record includes matters of failing urine testing and possessing drugs. 19The offender's criminal history not only denies to him the leniency that would otherwise be extended to a person without such a history but it also demonstrates that by committing the present offence he has a continuing attitude of disobedience to the law. This is so notwithstanding that the history includes only two prior offences involving violence. But the fact remains that the history is one of persistent offending. For this reason, considerations of personal deterrence and retribution warrant greater emphasis in the assessment of sentence. 20A report by Dr Bruce Westmore, forensic psychiatrist, was tendered. He had carried out a psychiatric evaluation of the offender by way of audio-visual link on 8 October 2014. 21The offender is now aged 31 and is the second of his parents' two sons. He was born and raised in Newcastle. His parents separated some years ago and he had not had contact with his father since he was aged 13. His mother had another partner at one stage but this man was physically violent, as his father had been as well. He told Dr Westmore that he was unhappy as a child. He left school in Year 6 and is semi-literate. 22The only work he has ever done was for about 4 or 5 months in 2007 when he was on work release. He said he did not know how to obtain a job. 23He started using illicit drugs at age 13 and has an extensive history of using cannabis, heroin, amphetamines and ice. He has used drugs intravenously. He attempted a residential rehabilitation program once in 2009 but was discharged for fighting. 24The offender's social network in the community includes people who continue to use drugs. He has very few stable social supports. He is not in a relationship, his mother is ill and his older brother is her carer. 25The offender reported having used a range of illicit drugs during the last three years whilst he has been in custody. He claims that he wants to stop using such drugs because he understands that if he continues to do so when next released he will not be able to stay with his mother. He did, however, speak about wanting to start using steroids to build himself up physically and made unrealistic claims about how he might go about getting a prescription from a doctor or a veterinarian surgeon. 26He also reported not having any support or assistance on previous occasions when released from prison and he spoke about the difficulties he has experienced in that regard. 27Dr Westmore was "almost certain" that the offender has become institutionalised. He told the doctor that he does not mind being in custody and that if he finds it too difficult or stressful out in the community, then he will simply return to prison. 28Dr Westmore made the clinical diagnoses of "probable specific learning disorder", "probable conduct disorder arising in adolescence", "substance use disorder (multiple substances)", and noted that the offender has likely suffered periods of depression in the past. He also considered him to have other issues including an intellectual disability in the mild to moderate range and a personality disorder. 29Dr Westmore concluded his report as follows: "There are clearly very significant concerns about Mr Dacey and his prognosis, both from a psychiatric and forensic perspective. I have grave concerns for him and his safety and if this young man is not provided with considerable extensive support and supervision on his release, then it is inevitable, in my view, that the will eventually return to using illicit drugs and once again come to the attention of law enforcement agencies." 30I will be asking that a copy of Dr Westmore's report accompany the papers. What he raises is highly relevant to the question of releasing the offender on parole after the non-parole period I will be imposing has expired. Other matters relevant to the assessment of sentence 31It was submitted, and I accept, that the offender has shown signs of remorse in statements he had made to others; in his offer to plead guilty to manslaughter or, later, to the offence for which he presently stands for sentence; and in that he has never sought to deny his responsibility for the injuries sustained by the deceased. I accept that there was co-operation in the conduct of the trial in that the issues were confined to those that potentially had merit (and one in fact did). 32It was submitted that the delay of three years between being charged and sentenced is a relevant matter. I have mentioned that the offender was charged on 19 October 2011. He was committed for trial on 4 October 2012. A trial commenced in May 2013 but aborted for some reason after about a week. A second trial was held in November-December 2013 but the jury were discharged without reaching a verdict. It was only after that trial that the Crown amended the indictment to add the alternative offence for which the offender is now being sentenced. I accept that he has been left in a state of uncertainty as to his fate for longer than is usually the case in defended criminal proceedings. This is particularly so when during this protracted period he was required to face trial on three occasions. 33The Crown Prosecutor confirmed that the offender had made an offer at the committal proceedings to plead guilty to manslaughter but the offer was rejected. He also confirmed that at some time after the second trial there was an offer to plead guilty to inflicting grievous bodily harm with intent but, again, the offer was rejected. It is at odds with the previous preparedness to plead guilty to either of those offences that the trial was defended on two bases, causation in relation the homicide and self-defence generally. Nevertheless, in accordance with established practice, the offender should be given credit in a situation where he is now to be sentenced for an offence to which the Crown has previously rejected an offer to plead guilty. I do not intend to arithmetically quantify the extent to which I will allow such credit. 34It was submitted that the offender will need to serve the remainder of his sentence in protective custody because of the fear of retribution at the hands of the deceased's brother. The evidence tendered today confirms that he has been in protective custody (at the lowest of the three levels of such custody) and the situation in relation to the deceased's brother is one of the reasons. Another reason is that he has been involved in assaults upon other inmates and making threats against other inmates. The evidence also indicates that following sentence the offender is more than likely to be classified to minimum security. Given there is no evidence that the offender has experienced, or will experience, more onerous custodial conditions, this aspect has no real relevance to the assessment of sentence. 35Mr Hoyle SC submitted that his client was a person who very much needed assistance with rehabilitation in relation to his entrenched addiction to drugs. He noted that the offender had a support network of his mother, brother and cousins who would assist him but also referred to Dr Westmore's concerns to which I have previously referred. I accept the doctor's recommendation that the offender requires extensive support and supervision when he is released from custody but much depends upon his resolve to rehabilitate at that time. At the moment, his rehabilitation prospects appear quite bleak. Possibly his mother's current ill health will provide a catalyst for change but that remains to be seen. Pre Sentence Custody 36The offender returned to custody on 3 October 2011. He was required to serve the balance of parole in respect of his previous sentences until 4 February 2012. He was also serving the non-parole period of new sentences that had been imposed on 4 October 2011. The non-parole component of those new sentences ran from 4 October 2011 until 3 April 2013. 37He was charged in respect of the present matter on 19 October 2011. 38The question is whether the sentence I impose today should be backdated to the date of arrest or be accumulated, partially or wholly, upon the non-parole period of those other sentences. 39The offences for which the offender was sentenced on 4 October 2011 must have been quite serious examples of their type, having regard to the length of the sentences imposed in the Local Court. They cannot be completely subsumed by the sentence I impose today. However, I must have regard to the principle of totality. I propose to partially accumulate, and will backdate the sentence to 4 October 2012. 40It was not submitted that I should make a finding of special circumstances and thereby reduce the proportion of the sentence represented by the non-parole period. I will, however, make such a finding. Nothing in the offender's subjective case calls for it but the accumulation by a year upon his other sentences warrants a reduction so that the usually proportions are maintained in the overall result. Family Victim Impact 41Ms Vicky Telfer provided a victim impact statement on behalf of her late brother. At a personal level it is the most important document I received in the proceedings. It provides a moving and eloquent account of the unimaginable despair and grief that has been suffered as a result of the tragedy that befell her family in August 2011. Given the constraints under which I am imposing sentence there are limits to the regard I may have to this in the assessment of sentence. But I wish to again publicly acknowledge what Ms Telfer has said and confirm that she, and all those who shared her loss, have my sincere condolences. Sentence 42Convicted. 43Sentenced to imprisonment comprising a non-parole period of 5 years with a balance of the term of the sentence of 2 years. 44The sentence will date from 4 October 2012 and the offender will become eligible for release on parole when the non-parole period expires on 3 October 2017. 45I direct that a copy of the report of Dr Bruce Westmore dated 10 October 2014 accompany the warrant. ********** 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: 05 November 2014