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. Subjective Circumstances 1. Ms Haines is of Aboriginal heritage. She lived with her natural parents until she was about 6, these years being characterised by neglect and poor parental supervision and exposing her to violence including, though it is not suggested that the Prisoner witnessed it, the murder of her grandmother by her grandfather. Abuse of alcohol was another feature of the household. 2. The family moved from Moree to Sydney. A Mrs Harris met the family through a centre established to help Aboriginal children in inner Sydney. In an affidavit put before me she described the Prisoner's mother as often drunk, with almost no furniture and never food in the house. Mrs Harris said that the Prisoner and her siblings were pretty much left to their own devices and "There was nothing that these kids didn't see". Mrs Harris offered to look after one of the children and it turned out that child was the Prisoner who went to live with Mrs Harris' family in what seems to have been a foster arrangement. 3. When the Prisoner was aged 7 Mrs Harris sought psychiatric help for the Prisoner's temper tantrums but she was apparently not diagnosed with a psychiatric disorder. From time to time the Prisoner ran away from the Harris family and returned to her mother, not because she was subjected to any mistreatment but because she disliked her foster family's rules. Truanting from school seems to have been a feature of her life at that time and the, or at least one, attraction of her mother was the freedom that residing with her mother permitted. 4. Mrs Harris said that the Prisoner started high school with one of her own daughters but did not want to continue at school and ran away back to her own family. This seems to have been after completing Year 7 and at an age variously reported as 14 to 17. 5. On 7 February 1979 at Albion Street Childrens' Court the Prisoner was committed to the care of the Minister. Case conference notes of 15 March 1979 refer to the Prisoner being a constant absconder from Minali Receiving and Assessments Centre and from Helensburgh (where Mrs Harris) resided. 6. Case conference notes dated 15 March 1979 when the Prisoner was 13 record that: Whilst living at home Brenda has been continuously disruptive and has on numerous occasions left the home for several weeks without letting the family know where she is staying. She is often violent towards her brothers and sisters; will not attend school; and only takes notice of [blank] her older brother. 1. A school report of May 1979 records under the heading "Learning Interest": Brenda's moods determine the extent to which she will participate in any one lesson. These moods fluctuate markedly and on occasions vary from defiance and disinterest to reserved disinterest. 1. A report to the Moree Childrens' Court in February 1980 described the Prisoner as very unstable, disruptive and emotionally disturbed 2. Ms Haines lost one eye when she was young and in consequence of the eye being struck by a stone, and possibly a subsequent operation not executed skilfully. She has a glass eye by way of replacement but, as attested by her sister and Mrs Harris, has obviously been very embarrassed by the circumstance. Although it is not suggested that her eye is the only reason, in custody she has been observed to have a practice at meal times of sitting with her back to other inmates apparently staring at her reflection in a window. 3. The Prisoner was subjected to tests of her cognitive functioning and the result of some of the tests places her in, or at the bottom of, the first percentile. However, partly because of restraint operating on the testing, where some answers were guessed at or provided by another person, I remain to be persuaded that the suggested results are valid. 4. Relevant in that connection is the fact that if the extraordinarily low results were valid, I would have expected more support from, say, Mrs Harris or the deceased's sister than the latter's simple statement "[The Prisoner] has always needed support". Although between the Prisoner's childhood and the testing she has been a drug addict for many years, she clearly managed to function to some degree and well enough to acquire the criminal record she did and presumably support herself, whether by crime or otherwise. I accept that the Prisoners' cognitive function is significantly impaired but I am unwilling to go further. 5. The prisoner has never been employed. 6. In a report of 19 August 2009 a Forensic Psychologist reported to the effect that the Prisoner at that time was exhibiting aggression, low frustration tolerance and poor impulse control and remained at moderate to high risk of violence toward others. 7. It appears that Ms Haines has proved a diagnostic challenge to the numerous psychiatrists who have seen her since at least 1996. The best assessment seems to be that she suffers from an anti-social personality disorder and a paranoid personality disorder. At one stage the diagnosis was "Schizoaffective Disorder". For a time it was thought that Ms Haines had a mental illness defence available to her though ultimately that view has been resiled from. 8. The persistence of those caring for the Prisoner has however effected a significant improvement in her health. A report of 27 March 2013 observed that there had been a "dramatic improvement in her mental state". Another of 23 September 2013 recorded that for some years she had been free of psychotic symptoms. Having regard to the totality of the medical evidence put before me it seems not unlikely that much of this improvement is due to medication. At the same time I should record that in a report of Dr Ana-Louise Martin, a psychiatric registrar, of August 2009 it was observed that the Prisoner had a poor history of medication adherence and in a report of Dr Giuffreda of 23 September 2013 he said that if the Prisoner was conditionally released at some time in the future that "she would require a high level of supervision from one of the non-government organisations such as Richmond PRA". 9. A report from a Michael Brownlee of the Department of Family and Community Services was tendered. The report dealt with the existence of a Community Justice program focussed on providing support for people with an intellectual disability. In the report Mr Brownlee observes that Ms Haines would be significantly disadvantaged if she was released from custody without appropriate supports for her being in place. I should observe that, although that report would clearly be relevant to any determination of the terms of any parole, and whether parole should be granted, I do not see the report as bearing on either the length of sentence to be imposed or the length of the non-parole period I must fix. 10. Ms Haines maintains contact with her only child, aged about 30, one sister and her foster mother. Victim Impact Statements 1. During the hearing on sentence, Victim Impact Statements were read. They were by Li Ping Wang and Yilin Wang, respectively sister and daughter of the deceased. 2. Li Ping Wang speaks of the family's investment in the deceased and of his desire and efforts to provide a better life for himself and his family than was available to him in his birthplace, China. She goes on to say that her need to support the deceased's wider family led to the breakdown of her own marriage and of having to undertake two jobs to support the deceased's daughter and parents; she observes that the happy family was totally destroyed. 3. Yilin Wang speaks of her sadness and the opportunities lost in consequence of her father's death, of never being able to go to school events because her family could not afford them, that in consequence of the deceased's death her mother has had to undertake three jobs at cost to her health. Yilin talks also of the difficulty occasioned by members of the family having to deal with the deceased's affairs where they were unable to speak English and that the Prisoner, though only one person, has inflicted pain and grief on many. 4. Section 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW) includes the following: 1. If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. 2. … 3. If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. 4. A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community. 1. Almost invariably the violent death of a family member imposes suffering on near relatives. Nevertheless, I accept that it is appropriate to take the suffering evident in the Victim Impact Statements into account in determining the appropriate sentence and I will do so. Sentencing 1. The law is clear that the Prisoner is entitled to be sentenced in accordance with the sentencing standards current at the time of her offence. Although in some cases those sentencing standards are difficult to determine – see R v MJR (2002) 54 NSWLR 368, they are not so in this case. In 2001 I had been a judge in the Common Law Division for a number of years and was familiar with the relevant standards. While obviously the sentences varied from case to case, my recollection is that probably the most common sentence for murder at that time, absent a plea of guilty and absent particularly mitigating or aggravating circumstances, was a sentence of 18 years including a non-parole period of 14 years. I myself tended to take the view that this was unduly lenient and that 20 years with a non-parole period of 15 years was more appropriate. 2. The report by the NSW Judicial Commission, Sentenced Homicides in NSW 1994 – 2001, provides support for the 18 years total sentence. It does however indicate that the median non-parole period was one of 13½ years. 3. Factors to which weight must be given include the Prisoner's cognitive functioning and her upbringing. I have referred to these. However, it takes no great mental ability or education to know that one should not threaten people with knives, much less use such weapons against others. The Prisoner had been punished in the past for carrying a cutting instrument and, by 2001, had managed to attain the age of 36 years without, it would appear, inflicting significant personal violence. 4. One must recognise the assessments referring, for example, to the Prisoner's aggression, low frustration tolerance, poor impulse control, instability and emotional disturbance – characteristics I would attribute to her genes or upbringing. One may accept, as the High Court said in – Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43] that: The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 1. However, given her relative freedom from violent offences in the past, I am not persuaded that any impairment to her cognitive functioning, including the psychosis of which Dr Giuffrida spoke, operated to any substantial degree in mitigation, any more than her drug addiction did. And insofar as the Prisoner's upbringing is relevant, it must not be forgotten that between the ages of about 7 and 14 the Prisoner would seem to have had the advantage of what would seem to have been a normal structured home and a caring environment. 2. Of course, were one to take the view that innate or learned matters such as aggression, low frustration tolerance and poor impulse were substantial factors in the Prisoner's offending, one would need to reflect on the extent to which they had been overcome and how much they should be reflected in a need for personal deterrence and protection of the community. 3. The Prisoner is entitled to a discount for her plea. I accept that, given her mental condition, she could not have pleaded guilty prior to the finding that she was fit to be tried, an event which occurred on 4 November 2013 before Price J. However, from the expiration of a reasonable period thereafter she was able to plead guilty. 4. In fact what occurred was that on 7 March 2014 Ms Haines was arraigned and pleaded not guilty and a trial date of 26 May 2014 set. On 16 May 2014 that date was vacated - one may infer because Ms Haines wished to change her plea - and proceedings stood over for further arraignment on 4 July 2014. On that day before Johnson J, Ms Haines was again arraigned and pleaded guilty. The change was occasioned by the fact that the psychiatrist who had been retained on Ms Haines' behalf withdrew his opinion that Ms Haines had available to her the defence of mental illness. It is also appropriate to record that, as was said by Defence counsel without dissent from the Crown, it had been agreed between the prosecution and the defence that the trial would be by judge alone, that the evidence as to the circumstances of the offence would be by way of a statement of agreed facts, that it was expected that all that would otherwise be involved in the trial would be the testing of the evidence of two psychiatrists and the trial would take less than one week. 5. This chronology makes it apparent that Ms Haines did not plead guilty at the first reasonable opportunity after she became able to do so. Rather she did so only shortly before her trial was due to begin. One of the factors inspiring a discount for a plea of guilty is its utilitarian value and in the circumstance it would not be appropriate to allow her the normal maximum discount for her plea. Indeed that plea was almost at the last moment and while I would not adopt the minimum of the usual range for pleas of guilty, the allowance should be closer to that minimum than to the maximum. I propose to allow a discount of 15%. 6. It should also be mentioned that Ms Haines was on bail from 6 December 2013, conditional on her residing at the Bunya Unit of the Cumberland Hospital. Bail was continued up until 13 August 2014 when it was revoked apparently for breach of a condition. It is obviously concerning that, despite the help the Prisoner has received, she cannot or will not comply with limits imposed on her conduct. 7. Section 28(3) of the Mental Health (Forensic Provisions) Act provides: If, pursuant to other criminal proceedings referred to in subsection (1), an accused person is convicted of the offence or substantially the same offence as that which, at a special hearing, the person was found to have committed, the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods relating to the offence) are to be fully taken into account in determining any period of any sentence or the terms of any disposition consequent on the conviction. 1. However it was submitted that, particularly as the Bunya Unit is a secure mental health facility, the period on bail should be treated as the equivalent of a continuing period in custody. The Crown did not dissent from this contention and it is appropriate for me to acquiesce in it. 2. Regard must also be had to the terms of s 21A of the Crimes (Sentencing Procedure) Act. A number of the matters there listed are obviously relevant. A weapon was used, Ms Haines has a record of previous convictions, the victim was vulnerable, and the offence was not part of planned or organised criminal activity. I am not persuaded that Ms Haines has good prospects of rehabilitation; I simply do not know and much will depend on her continuing to take medication and to stay off illegal drugs. 3. The Prisoner did not provide any evidence of remorse. However in a report of Dr Giuffrida of 6 December 2006 he recorded that the Prisoner was constantly preoccupied with her offence and he gained the impression that she was traumatised and tormented by it. In light of that evidence it seems to me that the Prisoner is remorseful and the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act have been complied with. 4. Lest it be thought to have been forgotten, there was clearly co-operation on Ms Haines behalf in limiting the issues to be canvassed at the anticipated trial. However, I am not persuaded that the co-operation was of such significance as to merit any appreciable allowance for it. 5. I was asked to make a finding of special circumstances. It was submitted that there is advantage in the Prisoner being allowed for a period somewhat longer than otherwise would apply, to be permitted to live in the community "under the stick" of the total sentence not having expired. Attention was drawn to the fact that the Prisoner's mental condition had improved after she was moved from the mainstream prison population. 6. However, I am not persuaded that I should make any such finding. The frequency of knife attacks generally and vulnerability of persons such as shopkeepers to attack by knife wielding drug addicts is such as to make me disinclined to reduce the Prisoner's non-parole period from that which would flow from the ratio specified in s 44(2) of the Crimes (Sentencing Procedure) Act. The fact that, even with the benefits the prisoner derived from custody at the Bunya Unit, she was unable or unwilling to adhere to the conditions of her being there, also argues for not abbreviating her non-parole period. Furthermore, given the time that has elapsed since the Prisoner's arrest I am not persuaded that any reasonable reduction in the non-parole would benefit her. 7. What I have said at the beginning of the immediately preceding paragraph also goes to inform the sentence that, subject to a discount for the Prisoner's plea, I regard as appropriate. 8. I was asked by the Prisoner's counsel to make a recommendation to the Ageing, Disability and Home Care sub-section of the Department of Family and Community Services and other appropriate agencies that they progress without delay the process of preparing appropriate resources for Ms Haines ultimate use. There is no doubt that Ms Haines will need considerable support if she is not to relapse into drugs and crime and while the parole authorities may be able to influence things for a time, other help will certainly be needed. 9. In the result I sentence the Prisoner 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. 10. I record as the date upon which it appears to the Court that the Prisoner became eligible for parole, 3 December 2013. 11. I recommend to the Ageing, Disability and Home Care sub-section of the Department of Family and Community Services and other appropriate agencies that they progress without delay the process of preparing appropriate resources for Ms Haines' ultimate use. ********** 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: 16 April 2015