R v Brenda Haines [2015] NSWSC 390

Supreme Court New South Wales

Medium Neutral Citation: R v Brenda Haines [2015] NSWSC 390 Hearing dates: 21 November 2014 Date of orders: 16 April 2015 Decision date: 16 April 2015 Jurisdiction: Common Law Before: R S Hulme AJ Decision: 1. The Prisoner is sentenced to imprisonment for a non-parole period of 12 years and 9 months from 3 March 2001, together with a further term of 4 years and 3 months. 2. The date upon which it appears to the Court that the Prisoner became eligible for parole is 3 December 2013. Catchwords: Criminal law – sentencing – murder – victim impact statement – period on bail in mental institution treated as custody Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Mailes [2004] NSWCCA 394 R v Mitchell [1999] NSWCCA 120 R v MJR (2002) 54 NSWLR 368 R v Wilson [2005] NSWCCA 112; 153 A Crim R 257 Category: Principal judgment Parties: Regina (Crown) Brenda Haines (Prisoner) Representation: Counsel: Mr E Balodis (Crown) Mr M Ierace SC (Prisoner) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Prisoner) File Number(s): 2001/2339

Judgment 1. The Prisoner stands for sentence for having, on 3 March 2001, murdered Haibo Wang to which offence she has pleaded guilty. The offence is one for which s 19A prescribes a maximum sentence of life imprisonment. There is no standard non-parole period, the date of the offence preceded the legislation prescribing such periods. 2. I instruct myself that insofar as I make findings adverse to the Prisoner, I must be satisfied of them beyond reasonable doubt, but that I am only required to be satisfied of matters in mitigation on the balance of probabilities. 3. The evidence as to the circumstances of the Prisoner's offence took the form of a statement of Agreed Facts. According to that document the Prisoner was in the Somerset Hotel. At about 1pm she entered a shop nearby conducted by the deceased. A passer-by, Mervyn Johns, heard raised voices and observed the deceased behind the counter and the Prisoner moving towards him. She had knocked over some items on the counter as she approached. The two appeared to be in an argument. The deceased turned towards Mr Johns and called for help. At the time the Prisoner was holding a knife and her arms were moving toward the deceased. His arms were up toward her in indications of resistance. 4. Mr Johns left the scene to seek help. When he returned the Prisoner was walking quickly from the shop in the direction of the Somerset Hotel. Persons at the Hotel saw her running from the direction of the shop. Mr Johns and these witnesses observed what seemed to be blood on her clothing. 5. Soon afterwards the deceased was found behind the shop's counter, unconscious and bleeding profusely from a stab wound to the chest. Shortly later he died. He had a defence wound to his right hand and a wound to his left forearm. 6. The knife used to kill the deceased was located by Police on the counter of the shop. It matched other knives in the shop and there is no evidence that it was taken to the shop by the Prisoner. Police found a palm print of the Prisoner, in blood, on a refrigerator door. 7. On leaving the shop the Prisoner had taken with her the deceased's watch and wallet. On arrest she declined to be interviewed and there is little evidence upon which to base any findings about her intent that led to the killing, the circumstances that led to the raised voices or the Prisoner's motivation in entering the shop. 8. Some evidence relevant to these matters is provided by the Prisoner's record. She was born in October 1965. A report to the Moree Childrens' Court indicates that she committed her first offence in 1975, breaking, entering and stealing. Between then and the year 2001, her record includes 4 counts of possessing or self-administration of a prohibited drug, 8 counts of assault including one of assault occasioning actual bodily harm, 10 of stealing or offences that involved stealing (including one of shoplifting) and 9 of receiving or having goods in custody and one of carrying a cutting weapon. On that last mentioned charge she received a sentence of 1 month's imprisonment. There was one offence of malicious wounding in 1989 but otherwise no offences of robbery or the like or involving significant violence. 9. Other evidence shows that, although she has given various accounts of when this started, she has a long and extensive history of use of multiple illegal drugs and that at the time of the offence was probably suffering from the effects of heavy use of methylamphetamine and cocaine. The evidence includes a number of accounts by her to that effect. A psychology report of 27 March 2013 from the Bunya Unit records that Ms Haines said she was "off my face on drugs" on the date of the murder. However, given the date of that report and other indications of inconsistent accounts by the Prisoner of her drug use, I am not persuaded that all of these accounts are reliable. Certainly, I am not prepared to find beyond reasonable doubt that, except as concluded by Dr Giuffrida, the Prisoner was affected by drugs at the time of the murder. 10. The prisoner's drug habit and record, and her departure with the deceased's wallet and watch raises the question whether her presence in the shop or threatening the deceased with a knife was with a view to stealing and while I do not think these possibilities can be excluded, I am not able to come to a conclusion to the appropriate standard about them. The stealing that occurred may have been opportunistic and the evidence is simply insufficient to enable a conclusion, particularly one beyond reasonable doubt, to be reached as to why she picked up the knife. 11. The Prisoner's decamping very soon after her attack on the deceased indicates that she was in possession of some of her faculties at that time and her stealing of the wallet and watch provides convincing evidence in the same direction. Nevertheless, I remain unable to conclude that there was any intention to kill, or significant premeditation in her offending on the day. It follows from her plea that I must approach the matter that she had an intention to at least inflict grievous bodily harm. 12. On the other hand there is nothing to suggest that the Prisoner was in, or threatened with, physical danger from the deceased or had any reasonable excuse for picking up the knife. The situation as observed by Mr Johns, which would seem to have been prior to injury to the deceased, when combined with the fact that the deceased suffered injuries other than the fatal wound, and the fact that the Prisoner seems to have persisted despite the deceased's call for help, leads to the conclusion that the Prisoner's attack was somewhat sustained. Evidence, particularly from Dr Giuffrida persuades me that she was suffering from a psychosis at the time at least largely caused by illegal drugs but possibly contributed to by an underlying vulnerability. 13. Subsequent to the Prisoner's arrest, on 14 February 2003 a jury found her unfit to be tried. In September 2003 the Mental Health Review Tribunal determined that she would not become fit to be tried within 12 months. Pursuant to a direction from the Attorney General a special hearing was conducted and at that hearing, which occurred in June 2004, a jury found that on the limited evidence then available the Prisoner committed the offence of murder. A claim of self-defence was rejected. On 11 June 2004 Miles AJ, in accordance with the relevant legislation, nominated as a limiting term, 17 years commencing on 3 March 2001. In arriving at that conclusion Miles AJ, as he was required to do, determined it in accordance with the normal principles of sentencing. 14. Although the exercise which I am conducting is to formally impose a sentence on the Prisoner, the scheme apparent on the face of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires that that sentence be no greater than the 17 years Miles AJ nominated. See R v Mitchell [1999] NSWCCA 120 at [29]; R v Mailes [2004] NSWCCA 394 at [32]. Normal sentencing practice requires that the sentence I impose be broken up into a non-parole period and a balance of term. I also take the view, subject to not imposing a sentence greater than the period determined by Miles AJ, I should approach the sentencing of the Prisoner, de novo, uninfluenced by what his Honour did – cf R v Wilson [2005] NSWCCA 112; 153 A Crim R 257. 15. Since her arrest Ms Haines has been under the supervision of the Mental Health Review Tribunal. She spent a number of years at Silverwater Womens' Correctional Centre, moving to the Forensic Hospital in July 2009. In December 2011 the Prisoner was moved to the less restrictive Bunya Unit of the Cumberland Hospital. On 13 April 2013, the Mental Health Review Tribunal formed the opinion that Ms Haines' mental state had improved to the extent that she had become fit to plead.