Supreme Court New South Wales

• Medium Neutral Citation: R v Dean [2013] NSWSC 1027
• Hearing dates: 27, 30 May, 4, 5, 6 and 17 June 2013
• Decision date: 01 August 2013
• Jurisdiction: Common Law - Criminal
• Before: Latham J

Decision

On counts 1 to 11 inclusive on the indictment, convicted of the murders of Dorothy Sterling, Dorothy Wu, Alma Smith, Lola Bennett, Ella Wood, Urbana Alipio, Caesar Galea, Doris Becke, Reginald Willaim Green, Verna Webeck and Neeltje Valkay. On each count, you are sentenced to life imprisonment, commencing 18 November 2011.

On counts 12 to 19 inclusive on the indictment, convicted of recklessly causing grievous bodily harm to Marina Alegado, Emmanuela Cachia, Marisa Iaconis, Lesley Trimmer, Romulo Feliciano, Thelma Hodgson-Budd, Anello D'Urso and Bithanta Muneshwar. On counts 12, 13, 14 and 15, sentenced to eight (8) years imprisonment to date from 18 November 2011, expiring 17 November 2019, with a non parole period of six (6) years expiring 17 November 2017. On counts 16, 17, 18 and 19, you are sentenced to eight (8) years imprisonment to date from 18 November 2015, expiring 17 November 2023, with a non parole period of six (6) years expiring 17 November 2021.

On each count of Larceny as a Clerk, convicted and sentenced to a fixed term of five (5) years to date from 18 November 2011, expiring 17 November 2016.

• Catchwords: CRIMINAL LAW – Sentence– murder – reckless indifference – worst case category - life imprisonment – application of s 61(1) Crimes (Sentencing Procedure) Act 1999; CRIMINAL LAW – Sentence – recklessly cause grievous bodily harm – worst case category; CRIMINAL LAW– Sentence – larceny as a clerk – theft of prescription drugs
• Legislation Cited: Crimes Act 1900
• Cases Cited: Adanguidi v R [2006] NSWCCA 404; Apps v R [2006] NSWCCA 290; Blackwell v R [2001] NSWCCA 93; DPP v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1; Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120; Porter v R [2008] NSWCCA 145; R v Ainsworth (1994) 76 A Crim R 127; R v Grant [2002] NSWCCA 243; 131 A Crim R 523; R v Grant [2002] NSWCCA 245; R v Harris [2000] NSWCCA 469 ; 121 A Crim R 342; R v Henry (1999) 46 NSWLR 346; R v Holton [2004] NSWCCA 214; R v Israil [2002] NSWCCA 255; R v Merritt [2004] NSWCCA 19 ; 146 A Crim R 309; R v Villa [2005] NSWCCA 4; Subramaniam v R [2013] NSWCCA 159; Tiknius v R [2001] NSWCCA 215
• Category: Sentence
• Parties: Regina - (Crown); Roger Dean - (Offender)
• Representation: Counsel; M Tedeschi QC - (Crown); M Ierace SC - (Offender); Solicitors; Solicitor for Public Prosecutions - (Crown); Legal Aid NSW - (Offender)
• File Number(s): 2011/370574

SENTENCE

1 The offender, Roger Dean, pleaded guilty on 27 May 2013 to eleven counts of murder (s 18 Crimes Act 1900), by way of reckless indifference to human life, and eight counts of recklessly cause grievous bodily harm (s 35(2) Crimes Act). All the offences arose out of a fire, deliberately lit by the offender, at the Quakers Hill Nursing Home in the early hours of 18 November 2011. As a result of that fire, three people died at the scene and a further eight died in hospital after suffering the effects of burns and/or smoke inhalation. Eight people seriously injured from burns and/or smoke inhalation survived the conflagration.

2 The offence of murder carries a maximum penalty of life imprisonment and a standard non parole period of twenty years. The offence of recklessly cause grievous bodily harm carries a maximum penalty of ten years imprisonment and a standard non parole period of four years. These penalties prescribed by the legislature signal the gravity with which the offences are regarded and constitute significant factors in the exercise of the sentencing discretion. The basis of the murder offences in this case is also a significant factor, in that the offender did not form an intention to kill or to inflict grievous bodily harm upon the victims. The impact of that factor upon the sentencing exercise is a matter to which I return later in these remarks.

3 The pleas of guilty came after the resolution of an application by the offender for a trial by judge alone. The application was opposed by the Crown and dismissed on 22 May 2013. The trial was to commence on 27 May 2013. Notwithstanding the relatively late entry of the pleas, the offender's acknowledgment of his guilt averted a lengthy and potentially complex trial. Reliance is placed upon the offender's acknowledgment of his responsibility for the deaths by his offer to plead to manslaughter at an early stage. It is also noted that a real issue as to the cause of death of one of the victims has been effectively waived by the offender's pleas. There is accordingly a measure of utilitarian value in those pleas which I would assess at 15%.

4 Independently of the pleas of guilty, there is some evidence of remorse expressed by the offender to his consulting psychiatrists, to the police and to his immediate friends.

5 The offender also stands to be sentenced on two counts of larceny as a clerk to which he pleaded guilty in the Local Court on 11 October 2012. That offence (s 156 Crimes Act) carries a maximum penalty of ten years imprisonment.

The Circumstances of the Offending

6 The offender was employed between May 1997 and July 2007 as a registered nurse in various nursing positions with New South Wales Health. He commenced employment at the Quakers Hill nursing home as a registered nurse in early September 2011. He worked night shifts on Wednesday and Thursday nights. The offender was also studying law externally through Macquarie University and was close to completing his degree.

7 The nursing home is an aged care facility catering for up to 100 high care residents requiring full assistance with daily living activities. The home consists of 35 separate rooms each containing a number of beds. The building is a large "H" shape and divided into two wings, A wing and B wing. Those wings were further divided into four sections, namely A1, A2, B1 and B2. The rooms in sections A1 (8 rooms), B1 (6 rooms) and most of B2 (6 rooms) each contained four beds. One room in B2 was a double room. A2 has a mix of single (8) and double (2) rooms. As at 18 November 2011 there were 89 residents.

8 The external doors including the main entrance to the nursing home were kept closed. Admission required a pin number entry on a keypad. The day code was available to staff and some relatives. At 8 pm each night, the code changed for security reasons and the night code was available only to members of staff.

9 There were 16 CCTV cameras installed internally and externally around the nursing home. The cameras were motion activated and on each occasion that the camera was activated or deactivated, the time was recorded on the CCTV hard drive. The offender knew the location of these cameras and knew that there was no security camera inside the treatment room where the drugs and the drug register were kept.

10 In the event of fire and within 15 seconds of the installed thermal or smoke detectors being activated, the fire alarm system would send a message via telephone lines to the contracted security firm and the emergency services. Simultaneously it caused the five fire doors to close. The fire doors separated the nursing home into five zones, namely the central foyer area and the four wings. The fire doors did not lock and access could be gained through them by pushing them after which they would automatically swing closed.

11 On 6 September 2011 a fire station officer delivered a training course entitled "Fire Safety in Healthcare Facilities" to staff at the nursing home. The offender attended that course which included a walk around the nursing home indicating the location of all installed fire fighting equipment and the fire and smoke doors, as well is the differences between them and how they function. There was also an explanation as to the purpose of the fire indicator panel and the emergency warning system.

12 The drugs of addiction known as Schedule 8 drugs (S8) were stored and dispensed in accordance with strict protocols. The S8 drugs were stored in the treatment room in the central part of B wing between B1 and B2. The room was not used as a treatment room and the door was kept locked. The S8 drugs were kept in a locked cupboard. The door to the room could only be opened by a key on a blue lanyard while the cupboard could only be opened by a key on a red lanyard. The night shift registered nurse was in possession of both keys, but the protocol required both the registered nurse and an assistant nurse to be present in order to dispense the S8 drugs. Each time an S8 drug was dispensed, a drug register kept for that purpose was completed with the details of the patient's name, the date, the time, the type of drug and the quantity. Both the registered nurse and the assistant nurse who were booking out the S8 drugs were required to sign the drug register. Each day the two registered nurses on the afternoon shift were required to conduct an audit of those drugs.

13 At about 8pm on 16 November 2011, an audit of the S8 drugs was carried out by the nursing staff on duty. All drugs were accounted for.

14 The offender was in charge of the night shift as the registered nurse on the nights of 16 to 17 November and 17 to 18 November 2011. On 16 November 2011, the offender started his shift at 10:30pm. Between that time and the end of his shift at 7 am on 17 November, the offender stole 237 Endone tablets and one Kapanol tablet from the treatment room. Both were S8 drugs that were commonly used as pain medication. These drugs and the drugs register are the subject of the larceny offences. The offender locked himself inside the treatment room for substantial periods of time in order to remove the drugs from their blister packs. The offender attempted to mask this activity by placing sticky tape around the blister packs on the trolley.

15 Before leaving the nursing home at the end of his shift, the offender left a note for the facility manager, offering to provide staff clinical supervision sessions to more junior staff.

16 On 17 November 2011 at about 7:30 pm the nursing staff conducting the audit of the S8 medications discovered that medication was missing. The clinical manager was contacted. She travelled to the nursing home and conducted a re-audit of the S8 drugs, confirming the missing drugs. At about 10 pm she rang the Quakers Hill police station to report the theft of the drugs.

17 At 10:23 pm on 17 November the offender started his shift. During the briefing on the handover of the shift, the offender was told of the missing drugs. Shortly after midnight, two police officers attended the nursing home and were met by the offender who took them to the manager's office in the central administration area.

18 The police commenced a preliminary investigation into the theft of the drugs but left after 17 minutes in order to attend to an unrelated urgent incident. While waiting for their return, the manager viewed the CCTV footage from the previous night shift and noted that the offender entered the treatment room on a number of occasions.

19 The clinical manager left the nursing home at 3:43 am, leaving the manager's office locked. There were only two keys to the manager's office, one kept by the clinical manager and the other kept by the facility manager. The audit documents and computer records relating to the theft and the complaints to police were inside the manager's office. It remained locked until it was opened by a police officer after the fire.

20 At about 4:35am, the offender requested two assistant nurses in B wing, near the treatment room, to leave the floor. They declined on the basis that they had already had a break. The offender then approached two other assistant nurses in A wing and insisted that they take a break. They did so, leaving the offender alone on the ward.

21 At 4:51am the offender walked through the foyer and entered A2 wing, where there were no CCTV cameras. Shortly before 4:53 am, the offender set fire to a bed in room 19 in A2 wing using a cigarette lighter which had been left in the kitchen by a staff member. At 4:53 am the fire sensors detected the fire in room 19 and activated the alarm. The alarm caused the siren to activate within the nursing home and an automatic message was sent to the Fire Brigade. All the fire doors throughout the nursing home closed and activated the fire alarm panel in the foyer.

22 As the fire door closed, the offender walked from A2 wing towards the A1 wing entrance. Between 4:53 am and 5:02 am the offender lit a second fire on the sheet of an unoccupied bed in room 3 in A1 wing, using the same cigarette lighter, knowing that the fire alarm had been triggered by the first fire. Two occupants of this room were immobile and incapable of moving from their beds without assistance. The offender then disposed of the cigarette lighter in a sanitary bin in the A1 wing bathroom.

23 At 4:59 am the first Fire Brigade officers arrived at the nursing home. The officers were directed by staff to the fire in room 19 in A2 wing. They extinguished that fire. They were not aware of the second fire in A1 wing until shortly after 5am.

24 Meanwhile, a resident in room 4 of A1 wing walked to the door of her room that leads to the hallway on hearing the fire alarm. The patient could not see or smell smoke so she returned to her bed. The offender came to her and said "Come on darling, we've got to get out, we've got to evacuate." The patient objected but the offender started to walk her from the room and up the hallway towards the front door. The patient looked into room 3 where the second fire lit by the offender had taken hold in an unoccupied bed. The patient broke free from the offender and ran into the room saying "We've got to get them out, we've got to get them out." The offender grabbed her and started moving her from the room saying "Don't worry Helen just leave them. We've got to get out. People are on their way to get them."

25 At 5:02 am the offender came out of A1 wing. He then moved between the A wing foyer and B wing. In B wing he assisted in the evacuation of some of the residents. He did not tell any Fire Brigade officer or anyone else of the second fire that he had lit in A1 wing.

26 At 5:04 am fire brigade officers entered A1 wing but were unable to determine the seat of the fire because of the intensity of the heat and the degree of black smoke. They could hear residents calling for help.

27 At 5:08 am the offender was outside the front entrance doors being directed by firemen to move away from the entrance area. Over the next 10 minutes he remained outside, moving residents away from the entrance to the building.

28 At 5:15 am Fire Brigade officers discovered the second fire in room 3 of A1 wing. It was already partially breaching the roof of the nursing home. It had been burning for at least 13 minutes.

29 Between 5:20 am and 6:10 am, the offender made three concerted efforts to enter the nursing home through the front doors. On each occasion he was rebuffed by a Fire Brigade officer or police officer. On the last occasion the offender said to a Fire Brigade officer "I need to go inside to get the drug books, I need to get in there." The offender showed a Fire Brigade officer the two lanyards that operated locks to the treatment room and the cabinet. The offender was given permission to enter the building and retrieve the drug books.

30 The offender accompanied two fire fighters into the building and went with them to the treatment room. He gave the keys to one of the officers, explained the location of the cabinet and described the two books. He said "We need them. We need to get these out."

31 The offender remained in the corridor away from the treatment room and outside the scope of the CCTV cameras. When the Fire officers were unable to open the door they invited the offender to assist. The offender appeared reluctant and complained that he was an asthmatic. He ultimately approached and unlocked the door to the treatment room, entered the room and unlocked the S8 drug cabinet. He removed two drug register books, put them into a yellow shoulder bag and left the building. He said "I need to go home, I need to get Ventolin. I live close by and I really need my Ventolin."

32 As the offender was leaving the nursing home, a reporter ran in front of the offender and began filming him. He asked what was happening. Other cameramen came over and there followed a brief interview. In part the offender said "Hi, I am Roger, I am one of the nurses, just there was a fire and I just quickly just did what I can get everyone out and the smoke is just overwhelming, but we got a lot of people out so that's the main thing." In this interview, the offender is coherent, alert and responsive.

33 The offender then travelled on foot to his home in Walker Street Quakers Hill. The offender tore up the two S8 registers, placed the remains in a grey plastic shopping bag and then was driven by his flatmate (also his former partner), Mr French, to the vicinity of Douglas Road Quakers Hill. The offender formerly worked at the cheesecake shop in Douglas Road, operated by Mr French. The offender disposed of the grey plastic shopping bag and its contents in a dumpster bin and then returned to the nursing home.

34 At about noon, the offender was taken by ambulance to Mt Druitt Hospital. His condition was noted as "presented with sooty residue on his face and clothes, pale skin, and generally distressed."

35 At about 2 pm the offender was taken from Mt Druitt Hospital to Mt Druitt police station where he made a written statement. In that statement he described his movements throughout the evening but made no admissions. At about 7:15 pm he was told by police that he was regarded as a suspect.

36 Between 6:47 pm and 8:15 pm the offender made a number of calls and sent a number of text messages that were intercepted pursuant to a warrant. In those calls the offender spoke to Mr French and informed him of the police investigation and the fact that he was regarded as a suspect. The offender also requested to speak to two friends, Mr and Mrs Reid, who came to the police station and spoke to the offender privately. The offender admitted to them that he had lit the fires, although he said nothing about being under the influence of drugs. Mr and Mrs Reid gave evidence that the offender did not appear to them to be affected by drugs.

37 Shortly after 7:50 pm the offender was arrested and cautioned. At 9:50 pm the offender entered into a record of interview in which he admitted lighting the fires. The interview extends over two hours and consists of about 350 questions. The offender provided lucid, rationale responses to all of these questions, including informing the police that he had taken an antidepressant, an antacid and a blood pressure tablet just before the interview. The offender agreed that he had requested to speak to two friends before the interview, that he had been given that opportunity and that he understood that he was under no obligation to speak further with police.

38 The offender provided a quite detailed account of his movements throughout the night and the order of events. He was provided with a map of the nursing home and indicated the rooms on the map where he lit the fires. His explanation for lighting the fires was that he had been having quite severe nightmares, he had been suffering from depression for two years and he had attempted suicide "by taking a lot of medication all at once". He had turned to the church and he believed that Satan had urged him to light the fires.

39 The offender was asked what medications he had taken. He nominated Aropax, then Lovan and Seroquel. He said he had only been taking Lovan before the night of the fires. He provided the name of his treating doctor.

40 He did not think either of the fires would burn out of control and he made no attempt to extinguish them. He described the lighter and how he came to take it from the kitchen and place it in his left pocket. He agreed that he knew of the missing drugs. The offender denied that he had lit the fires in retaliation for dissatisfaction on the part of some staff members over the offender's method of distributing medication.

41 Notwithstanding the content of the police interview, the offender now admits that his intention in lighting the fires was to create a distraction to deflect management from further enquiring into the theft of the medication. Moreover, the offender also maintains that he only thought to retrieve the S8 registers from the treatment room after the attendance of the fire fighters and that he destroyed the registers to remove evidence of the missing drugs.

42 Following the execution of a search warrant on the offender's home in the afternoon of 21 November 2011, a quantity of drugs, including some of the stolen Endone tablets, were found in a large box in a kitchen cupboard. Two small canisters in the kitchen pantry, labelled "Roger's Doctor Prescribed Medication", contained further Endone tablets stolen from the nursing home. Another white medication canister labelled "Kalma", bearing the prescription details of the offender, was found in a clear box labelled "Roger's prescription medicines" in the kitchen pantry. It also contained some of the stolen Endone and the Kapanol tablet. In all, 203 whole Endone tablets, 28 part Endone tablets and one Kapanol capsule were recovered.

The Impact of the Offences on the Families of the Victims

43 It would be unsurprising if the community at large considered the untimely death of very elderly people as a tragedy of lesser proportions than the wrongful deaths of younger, more productive citizens. That understandable reaction would be quickly dispelled by hearing the victim impact statements, all of which were profoundly moving in terms of the extremely far reaching consequences of each death upon members of the family, and in terms of the lasting guilt and sense of responsibility felt by close relatives of the victims who had chosen the nursing home as a place of care and safety.

44 Each relative of each murder victim expressed a profound sense of loss, not just for the victim's life, but for the lost connections with family, the lost opportunities for extended family gatherings and the telling and retelling of family stories that give everyone a sense of the past, a sense of place and a sense of self.

45 The pain and terror experienced by all the victims must have been horrific. For those who were unable to move independently and who faced the prospect of being burned alive, or suffocated by smoke, a worse fate is difficult to imagine. The family members of the victims who lingered on in hospital, only to die days or weeks later, endured the distress of watching their loved ones succumb to burns and respiratory failure.

46 Those who lived no doubt have a compromised quality of life because of their injuries. One of these victims required skin grafts and surgery, a number were intubated because of the effects of smoke inhalation and all of them suffered complications such as infections, myocardial injury, pneumonia and renal failure.

47 The far reaching and substantial impact of the offences is recognised through the provision of the victim impact statements, although they cannot influence this Court in the imposition of an appropriate sentence. The departure point for the purposes of every sentence for murder is the loss of a human life, every one as valuable as the next. Nevertheless, particularly in a case such as the present, it is important to be reminded of the real dimensions of that loss and the serious injuries caused to eight other people.

The Objective Gravity of the Offending

48 In assessing the objective gravity of the offending in this case, three factors play an important role - the number of victims, the offender's motive in lighting the fires and the mental element of the offences, namely recklessness. These are by no means the only objective factors. No single factor or group of factors is necessarily determinative. Many of the objective factors are inter-related. Ultimately, it is the combination of all of them that informs the extent of the offender's criminality.

49 I adhere to what I said in Subramaniam v R [2013] NSWCCA 159 at [57] (Emmett JA and Simpson J agreeing) namely :-

For my part, attributes personal to the applicant (in particular, her mental state at the time of offending) more appropriately belong to an assessment of moral culpability. Such personal attributes ought be distinguished from the objective features of the offences, namely, the acts and the fault element constituting the offences. I acknowledge what Price J said (Allsop JA and Campbell J agreeing) in Williams v R [2012] NSWCCA 172 at [40] to [42], about the scope of the expression "the nature of the offending" in so far as it may not be correct to confine it to the ingredients of an offence. I would agree with Price J that the partial defence of provocation is properly considered as an aspect of objective gravity, not least because it qualifies the fault element of an offence.

50 This Court has held in Porter v R [2008] NSWCCA 145, per Johnson J at [81] (Bell JA and McCallum J agreeing) and in Tiknius v R [2001] NSWCCA 215 per Johnson J at [43] (Tobias AJA and Hall J agreeing) that motive is relevant to an assessment of the objective gravity of an offence, although both decisions pre-dated Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120. However, there is nothing in Muldrock that would exclude motive from "the nature of the offending".

51 In any event, the motive in this case is intimately connected with the commission of the larceny offences. The objective gravity of those two offences arises out of the offender's abuse of his position of trust in order to satisfy an addiction to prescription drugs that he could no longer afford. The fact of that addiction does not operate to excuse or justify the theft of the drugs and the drugs register. The larceny offences demonstrate objective gravity of a significant order.

52 I turn to a consideration of the mental element in the murder offences.

53 In R v Ainsworth (1994) 76 A Crim R 127, Gleeson CJ (Carruthers and Bruce JJ agreeing) pointed out that "whilst each case has to be considered on its own facts, there is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder involving one of the other categories of malice referred to in the statutory definition of murder."

54 Wood CJ at CL (Spigelman CJ and Kirby J agreeing) in R v Grant [2002] NSWCCA 243 at [72] ;131 A Crim R 523 referred to Brennan J's judgment in Boughey v The Queen in support of the proposition that a murder committed with "indifference to human life, has been regarded in this country as no less heinous than that which arises out of intent to kill or to cause grievous bodily harm". Two qualifications to that sentiment ought be noted. Brennan J was in dissent in Boughey and Wood CJ at CL was addressing the question whether the appellant was entitled to a direction on intoxication under s 428C of the Crimes Act 1900 for the purposes of proof of murder by reckless indifference.

55 In R v Holton [2004] NSWCCA 214 at [59] Grove J (Smart AJ agreeing) noted that :-

There is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder resulting from specific intention: R v Ainsworth 1994 76 A Crim R 127, but so to say inheres recognition that murder by reckless indifference is not necessarily as culpable as other forms. Each case must be considered on its own facts.

56 Hulme J in the same case remarked at [20] and [21] :-

For example, all other things being equal - which they rarely are - the presence of an intention to kill is generally regarded as involving greater criminality than the presence of an intent to do merely grievous bodily harm. On a similar basis, I would regard an intent to kill as involving greater criminality than reckless indifference to human life.

But that is to talk in generalities.

57 In Apps v R [2006] NSWCCA 290, Simpson J (Hunt AJA and Whealy J agreeing) expressed the view at [49] that an intention to kill, as distinct from an intention to inflict grievous bodily harm or reckless indifference to human life, tended to greater objective seriousness. However, her Honour also observed that the mental element alone does not establish whether an offence falls above the mid range of objective seriousness.

58 All of these authorities, with the possible exception of Grant, support the unsurprising conclusion that the offender's reckless indifference is objectively less serious than had he formed an intention to kill or inflict serious injury on the residents of the nursing home. That is one factor among many. The specific circumstances of this case require closer analysis.

59 The offender's recklessness for the purposes of the s 35(2) offences required (at the relevant time) foresight of the possibility of really serious injury : Blackwell v R [2001] NSWCCA 93. That is a lower threshold than the species of recklessness required for murder, and the only mental element for s 35(2) offences. Subject to that qualification, the following objective factors are relevant to both the murder and recklessly cause grievous bodily harm offences.

60 They are :-

(i) The offender lit two fires in different locations in the nursing home, at night when the residents were asleep.

(ii) The victims of the murder offences were vulnerable, in that they ranged in age between 73 and 97 years of age, and were in the high dependency wing of the nursing home.

(iii) The victims of the recklessly cause grievous bodily harm offences were vulnerable, in that they ranged in age between 45 and 85 years of age and were in the high dependency wing of the nursing home.

(iv) All of the victims were under the care and control of the offender as the Registered Nurse in charge of the nursing home at the time.

(v) The offender lit the second fire after the fire alarm had activated and in a room that he knew to be occupied by elderly, immobile residents.

(vi) The offender consciously desisted from assisting the immobile residents in room 3 of A1 wing to escape from the fire, despite the protestations of another resident.

(vii) There was a degree of planning and pre-meditation, commencing after the departure of the manager (approximately 3:45am) and evidenced by the direction to the assistant nurses to leave the wards in both B wing and A wing, obtaining the cigarette lighter from the kitchen, and lighting the first fire in A2 wing where there were no CCTV cameras.

(viii) The offender allowed, by his silence, the second fire to take hold over a period of approximately 15 minutes, before fire brigade officers could identify the seat of that fire.

(ix) The offender consciously endangered the lives of the occupants of the nursing home in order to avoid the consequences of his theft of drugs from the treatment room.

61 With respect to this last factor, motive, it is common ground that the genesis of the offender's decision to light the fires was evading detection for the theft of the drugs. Whether that motive extended to an expectation or hope that the fires would destroy the evidence of the theft, contained within the treatment room, or whether it only extended to the creation of a diversion is a matter of some dispute.

62 There is much force in the Crown's submission that the offender's assertion to police, that he only intended to create a minor fire, ought be rejected. There was evidence from Dr Diamond, psychiatrist, that the offender had initially considered lighting a laundry bag in an unoccupied area of the nursing home, but that he rejected that course because it would not create enough of a distraction. The offender then proceeded to light the fires in the respective wings. Had the offender wished to create a small fire, there were at least two avenues open to him on his own admission. One was to content himself with lighting the laundry bag, another was to stop after the first fire was lit in A2 wing.

63 The offender is not an unintelligent man. He had the benefit of the knowledge he acquired as part of the fire safety training course. He knew that his conviction for the theft of the drugs would spell the end of any career in nursing and law. He knew, by virtue of his legal training, that without evidence of the drugs audit, the theft could not be proved to the requisite standard. He must have known that a minor distraction occasioned by a minor fire would not divert the authorities from ultimately pursuing a matter as serious as the theft of drugs.

64 The combination of these factors persuade me beyond reasonable doubt that the offender meant to start a fire of substantial proportions that would either destroy the incriminating evidence in the treatment room (whether by fire or water damage), or create sufficient chaos to allow him to gain access to the treatment room in order to remove that evidence. In the result, he was able to achieve the second of these aims. It follows that I also reject the claim that he did not think to gain access to the treatment room until after the arrival of the fire brigade officers. The fact that the offender did not use an accelerant does not in my view undermine this finding.

65 The offender's senior counsel submitted that the offender's long-term drug addiction explains the somewhat illogical account by the offender, namely that he intended to create a small fire to distract or divert the management from investigating the theft of the drugs. This submission assumes the veracity and reliability of the offender's answers in his interview with police.

66 I am unable to accept that the offender has been entirely honest and reliable in his account of the offences, partly because that account offends common sense in some respects and partly because the offender's personality disorder predisposes the offender to act in his own interests to the exclusion of all others.

67 The offender's narcissism, its causal relationship to the offences and the impact of the offender's prescription drug addiction on the quality of his decision-making are canvassed further below.

68 The rather singular circumstances of this case impose a degree of artificiality in an assessment of the objective gravity of each of the murder and s 35(2) offences. Where, as here, an offender simultaneously causes the death of many people and recklessly causes serious injury to several others by a discrete act, the objective gravity of each offence is informed by the objective gravity of the combination of offences : Adanguidi v R [2006] NSWCCA 404 at [32].

69 In my view, the murders and s 35(2) offences fall into the worst case category. I am of the view that such an assessment is warranted notwithstanding that the murders were committed by way of reckless indifference to human life. It remains to consider the offender's subjective circumstances and his culpability for the offences in order to determine the appropriate penalty.

The Offender's Subjective Circumstances

70 The offender was 35 years of age at the time of the offences and is presently 37. He was born in Vietnam and was brought to Australia as an infant by his mother, together with three siblings, as refugees. The offender's father reportedly died whilst attempting to flee at a later time.

71 The offender is homosexual. He recognised his sexual orientation at an early age. He was often socially isolated at school and subjected to bullying. He has had very little contact with his siblings throughout his life and has had a difficult relationship with his mother. In his mid teens he was reportedly sexually abused by two adult men, one incident involving violence. He had an open homosexual relationship at the age of 18 which appears to have instigated the rift between the offender and his mother.

72 Despite these hardships, the offender graduated in 1996 from the University of Sydney with a bachelor of nursing degree. By 2004 he was working at the St George Hospital and the St John of God Hospital at Burwood. In 2004 he commenced a law degree at Macquarie University.

73 The maintenance of his nursing commitments and his university studies have predisposed the offender to difficult work relationships involving disputes with fellow staff. It is also reasonable to assume that the offender's shiftwork and study resulted in poor sleeping patterns, which in turn exacerbated the offender's misuse of prescription medications.

74 The offender has no criminal history.

75 The offender has been diagnosed with a poly substance abuse disorder, which is now in remission. The offender commenced taking benzodiazepines for a long-standing irritable bowel syndrome, although by 2007 he was ingesting that drug for sedative purposes rather than for the purpose for which it was prescribed. In March 2008 a friend of the offender's committed suicide. The offender was particularly distressed by the suicide and escalated his misuse of prescription drugs from that time.

76 From late 2006 until the time of the offences, the offender lived with Mr French. Mr French gave evidence of his observations of the offender's developing addiction to prescription medication. The offender was hoarding medications in the kitchen pantry in two Tupperware containers. The pantry also contained a bundle of 65 prescriptions.

77 The offender obtained these prescriptions by "doctor shopping", that is moving from doctor to doctor, as soon as one expressed a reluctance to continue to prescribe drugs to the offender. By the beginning of 2011, the offender was reportedly taking about 15 tablets per day, including sleeping tablets in the morning if he was working a night shift that night.

78 Mr French described the offender's behaviour as "odd" in the second half of 2011. There were occasions when the offender would telephone Mr French, apparently unaware that he had phoned him shortly before. The offender also visited Mr French at his shop and occasionally returned approximately 45 minutes later, unaware of his earlier visit. The offender purchased a number of items for which he had no need, for example crutches. The latter purchase in particular was supported by the statement of a pharmacy assistant, who remembered the offender's purchase of a set of children's crutches, that clearly did not fit him, during 2011.

79 In December 2010, the offender purchased a quantity of jewellery from a street sales person and later professed having no recollection of the purchase. He was also overheard ordering textbooks, yet later having no recollection of the conversation and the order. Mr French witnessed the offender apparently sleepwalking. At some stage the offender attempted to fit a latch to his bedroom door so that Mr French might lock him in at night. Mr French also reported telephone conversations with the offender, wherein he would report being at a shopping centre without any knowledge of how he came to be there.

80 At the time of the offences, the offender had approximately 43 different prescription drugs at his home. Exhibit 3 on sentence lists the number of occasions between June 2004 and November 2011 on which doctors were consulted by the offender and the drugs prescribed on those occasions. They include sleeping tablets, anti anxiety medication, anti depressants, pain killers, anti psychotic medication, antihistamines, antibiotics, decongestants, penicillin and medications for irritable bowel syndrome, nausea, high blood pressure, and asthma.

81 On 17 November 2011, a number of persons, including a receptionist and a massage therapist at the Rouse Hill Wellness Centre, and staff at the nursing home, noticed a white deposit on the offender's lips coupled with an erratic and fast pattern of speech.

82 The combination of this evidence establishes that the offender probably attended work on the night of the offences whilst affected by prescription medications. However, the degree of any impairment to the offender's decision-making processes remains an area of dispute.

The Offender's Culpability : Prescription Drugs

83 The offender provided a very long list of medications to his legal advisors for the purposes of his application to be tried by judge alone. It was claimed that the offender had been consuming a vast array of prescription drugs, in excess of what is now disclosed by Exhibits 3 and 4. That claim is not pressed for the purposes of sentence, but a report from Dr Judith Perl and a report under the hand of Dr Diamond in the Crown case on sentence addressed this issue.

84 Dr Perl notes that there is a significant discrepancy between the offender's statements to police about his medication on the day before and of the offences, the medications disclosed by the Justice Health records and the offender's instructions to Dr Christie. Dr Perl agreed that, insofar as the offender's claims to Dr Christie concerning the identity and quantity of drugs ingested could be accepted, the potential effects of such drugs included hallucinations, memory impairment, bizarre behaviour, clouded reasoning and diminished clarity of thought and insight. However, Dr Perl concluded that had the offender in fact ingested the drugs and doses indicated on the 16 and 17 November 2011, the offender would at the very least have been profoundly impaired in his cognitive and motor functions, but more likely in a stupor or coma. Dr Perl factored into this opinion the offender's tolerance to such drugs. Dr Perl's conclusion with respect to the white deposit around the offender's mouth and his erratic behaviour on 17 November was that these symptoms were consistent with dehydration and sleep deprivation.

85 Dr Perl 's review of the material in the Crown case lead her to the conclusion that the offender displayed no significant unsteadiness on his feet, sleepiness, coordination problems or any physical impairment during his shift on 17 November and into the morning of 18 November. The offender displayed no obvious impairment in his reasoning, communication skills or physical function during the Channel 10 interview immediately outside the nursing home. Dr Perl notes the lucid and relatively complex typed memorandum of 17 November to the offender's supervisor, in which the offender offered to run clinical supervision for other staff. Furthermore, the offender's behaviour in the course of his shift, including repeated entry into the treatment room, the steps taken to disguise the theft of the drugs and to provide the offender with the opportunity to light the fires, do not support any impairment of his cognitive or motor functioning. Neither the contents of the police interview, the police custody records or the Justice Health records indicate any obvious impairment or any obvious signs of significant benzodiazepine and opiates withdrawal.

86 Dr Diamond reviewed the same material as Dr Perl and concluded that :-

regardless of which account is accepted as the correct one, in all instances the quantity of medication purported to have been consumed is not consistent with the observable ( visual records) or the witness statements about the [offender] at those times. My view is that the observed behaviour and communication is not consistent with the drugtaking history given by the [offender]. ......

... [All] the material relevant to his behaviour demonstrates that the [offender] shows no sign of intoxication on any of the visual material. Particularly the prolonged visual record of the ERISP on 18 November 2011 shows purposeful, rational, attentive, considered interaction in the course of an interview lasting over 90 min. There is also no evidence to suggest at that stage, less than 24 hours after the fires were lit, the [offender] showed evidence of ongoing intoxication or evidence of withdrawal from addictive substances. The CCTV record demonstrates focused, purposeful communication and activity.

.........................................................................

Regardless of any tolerance to the medications involved, the quantity described would, in my opinion and experience, have caused any individual to have demonstrated overt signs of intoxication both physically in terms of motor functioning, fine balance, clumsiness and motor coordination, and also in cognitive functioning in being able to concentrate, form memory, carry out coordinated instructions and duties and to appear coherent to those with whom he interacted.

..........................................................................

One can also clearly establish that at the time of the offence the [offender] was capable of conducting himself appropriately, forming judgments and interpreting his environment without any significant impairment to his mental functioning.

87 Having regard to this evidence, I do not accept that the offender's culpability for the offences is attenuated by his ingestion of prescription or non prescription drugs in the days and hours immediately preceding the commencement of his shift on 17 November. I do not cavil with the diagnosis of poly substance abuse that applied at the time of offending, but regardless of the quantity of prescription drugs in the offender's possession, he clearly had not ingested drugs that relevantly affected his capacity to form judgments and make calculated decisions.

The Offender's Culpability : Personality Disorder

88 Dr Diamond's report provides an alternative basis upon which the offender's culpability for the offences ought be assessed.

89 Dr Diamond rejects any diagnosis of a psychiatric illness or antisocial personality disorder. According to Dr Diamond, the offender displays personal characteristics that are consistent with a Mixed Type Personality Disorder with narcissistic traits and histrionic traits. The offender's unusually strong desire to please people and ingratiate himself into their lives is to be contrasted with a sense of entitlement, assumption of superiority, disregard for the needs of others and dismissal of censure or criticism. The offender's response to censure or criticism is anger and belligerence, despite a general desire to avoid conflict.

90 The psychiatrists who saw the offender after his admission to custody also noticed the offender's sense of entitlement, indifference to the needs of others, grandiosity and refusal to take advice and instruction. The offender has in the past attempted to self manage his emotional needs rather than seek professional assistance. That occurred against the backdrop of his professional qualifications and experience as a clinical nurse specialist in a psychiatric and mental health service that had close links with drug and alcohol services. Dr Diamond refers to evidence indicating the offender's ability to ingratiate himself and to manipulate people to accept his dysfunctional conduct, even in the absence of substance abuse.

91 In summary, Dr Diamond concluded that the offender's decision-making was impaired by this underlying personality disorder. In that respect, there is a causal connection between the offending and the offender's psychiatric condition. It remains to consider whether and to what extent the offender's mental disorder affects the exercise of the sentencing discretion.

92 A convenient summary of the potential impact of mental illness (which includes a personality disorder) upon sentencing appears in DPP v De La Rosa [2010] NSWCCA 194 at [177] ; 205 A Crim R 1 :-

Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

93 As to the last of these principles, Dr Diamond expressed the view that the offender was unlikely to re-offend to the same magnitude, largely on the basis that the offender is an intelligent man who is capable of learning from past experiences and is also likely to remain drug-free. The offender nonetheless represents a medium level risk of re-offending in some respects because of the intransigence of his personality disorder and its narcissistic features.

94 The offender's senior counsel submitted that the offender's mental condition diminishes his moral culpability for the offences and reduces the appropriateness of the offender as a vehicle for general deterrence. Each of these factors, or the combination of them, is capable of reducing the sentence that would otherwise be imposed.

95 As to these submissions, it is pertinent to note the following from Dr Diamond's report :-

There is no evidence, in my opinion, to substantiate a view that the [offender] had impaired capacity to foresee the probability of death when he lit the fires. ..................... The thought processes that he revealed when describing his fire lighting and intentions, demonstrates that there was no impairment of capacity to think through the intention and consequence of his plan.

The impairment that is in evidence, is the extent to which he was preoccupied with his own predicament involving police investigation, probable criminal charges involving the theft of Endone and in addition, the consequences that this would have upon his nursing career as a registered nurse. The failure to balance his immediate needs against those of the vulnerable people that he placed at risk by lighting fires is, in my opinion, the pathological entity. It arises from his personality disorder and long-standing flawed ability to conduct himself with maturity and forethought as evidenced in many other impulsive decision making actions in the past. The reckless indifference to human life exhibited by the offender by lighting the fires does not, in my opinion, arise because of diminished capacity to make decisions and carry them out. It arises from his personality disorder and not from an impairment of thinking or capacity to think clearly. (italics not in original)

96 In the course of his evidence with respect to this part of his report, Dr Diamond stated that "the overriding determinative of the behaviour to light the fires, to conduct himself in a self-serving way, to address the problems he faced at that time and to graphically, to place his personal needs over and above those people for whom he was responsible as a senior nurse on duty in a nursing home ... [emanated] from the underlying personality disorder" and not from "an aberration of thinking".

97 In R v Israil [2002] NSWCCA 255, Spigelman CJ (Simpson and Blanch JJ agreeing) explained that the relevant causal link between a mental illness and an offence, in the sense that the mental illness "explained" the offence, was constituted by an "inability [on the part of an offender] to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions". It is those factors which ultimately impact on the level of culpability of the offender.

98 Chief Justice Spigelman went on to register his agreement with Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [254], that "almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."

99 In the circumstances of this case, there is nothing to support the conclusion that the offender was unable to appreciate, or to appreciate fully, the wrongfulness of his actions, or to make reasonable judgments. The relevant causal connection between the offender's personality disorder (narcissism) and the deliberate decision to light two fires and leave them unattended is the dominance of his own immediate needs over the needs of anyone else, even if they included vulnerable patients under his charge.

100 In that sense, it may be said that the offender's capacity to control his emotions was compromised by his personality disorder and thus, his decision-making gave primacy to his own needs. However, in my view, that relatively limited impairment, particularly when considered against the scale of the offender's reckless indifference, the enormity of the harm which resulted and the objective criminality of the offender's conduct, carries limited weight in reducing the offender's culpability to any material degree. Similarly, it does not render the offender as an inappropriate vehicle for general deterrence.

101 For completeness, I note that the offender's senior counsel placed considerable emphasis on the fact that the offender's culpability consisted of the foresight, at the time that he lit the fires, of the "real chance" that residents of the nursing home would die and/or receive serious injuries. I pause to note that there is, in my view, no relevant distinction between the references to a foresight of the "real chance" of death and the "probability" of death or the "probable result" in Boughey v The Queen (1986) 161 CLR 10 at [18] and in R v Grant [2002] NSWCCA 245 at [33]. It was submitted that his recklessness in that regard renders him less culpable than if he had formed an intention to kill or to inflict really serious injury.

102 For the reasons that I have already given in relation to the objective gravity of the offences, I do not accept that the offender is less culpable on that basis, either alone or in combination with his personality disorder.

Worst Case and Section 61(1) Crimes (Sentencing Procedure) Act 1999

103 Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 relevantly provides :-

A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

104 The legislature has preserved by the operation of s 21(1) of the same Act a discretion to impose a determinate sentence notwithstanding s 61(1). Such a discretion may operate where an offender's subjective circumstances justify a lesser sentence, notwithstanding that the criteria under s 61(1) are met. This approach has been described as a "two step" one, in that an assessment of the culpability of an offender is first undertaken having regard to "the circumstances surrounding or causally connected with the offence, leaving aside matters such as remorse, pleas of guilty, prospects of rehabilitation and the like." : R v Harris [2000] NSWCCA 469 ; 121 A Crim R 342 at [60]. Then and only then does a consideration of the offender's subjective case arise.

105 However, an alternative avenue for the imposition of a life sentence is available under the common law : Harris at [79] to [87]. Whatever the legitimacy of a two step approach under s 61(1) since Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120, the imposition of a life sentence for a worst case under the common law is still the product of an instinctive synthesis of all the relevant sentencing factors.

106 The exercise mandated by s 61(1) may be undertaken notwithstanding the absence of one or more of the statutory indicia. The presence and significance of any combination of the criteria may still lead to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life : R v Merritt [2004] NSWCCA 19 ; 146 A Crim R 309.

107 Whether pursuant to s 61(1) or under the common law, a life sentence for the murder offences is required in the circumstances of this case. It is simply not possible, in my view, to adequately reflect the culpability of the offender for the deaths of eleven vulnerable people, for whose care he was responsible, by any lesser penalty. The features of the offending with respect to the murders warrant the description "heinous", "atrocious" and "greatly reprehensible" : Harris at [85]. At least three of the criteria, that is the community interest in punishment, retribution, and deterrence, are present in this case.

108 The number of deaths alone is sufficient to elevate these offences into the worst case category : R v Baker NSWCCA 20 September 1995 (unreported). That is particularly the case where a number of murders occur as part of one episode of criminality : R v Villa [2005] NSWCCA 4. The fact that these murders arise out of the offender's reckless indifference rather than an intention to kill or inflict grievous bodily harm does not detract from these principles.

109 The depth of the offender's remorse, such as it was expressed to others and not to the Court, is difficult to gauge, principally because the offender's capacity for insight into his offending is compromised by his personality disorder. That lack of insight and gross preoccupation with his own interests may abate with time and maturity. However, the evidence of Dr Diamond established that the offender remained deceptive and self serving in his responses to others (including Dr Westmore) even after being taken into custody for the offences and during the preparation of his case for trial. The offender's early acknowledgment to Mr French that he would take the consequences of his "bargain with the devil" was, in Dr Diamond's opinion, said at a time when the offender was "working out how [to face up to what had happened] and what might be in his best interests."

110 Dr Diamond also noted that individuals with a personality disorder often improve in a highly controlled environment such as prison, but do not do so well in an uncontrolled environment where they are free to manipulate others. The offender's underlying personality will not change. In this respects, the offender's prospects of rehabilitation are speculative. That said, I am satisfied that the offender is not at risk of committing serious offences in the future.

111 It is against this background that the late entry of the pleas of guilty ought be viewed. Putting to one side the utilitarian value of the pleas, they indicate a realisation on the offender's part that there was overwhelming and damning evidence of his reckless indifference whilst in a lucid and rational state, rather than any significant degree of remorse.

112 The subjective circumstances, including the fact that the offender lacks a criminal history and is just approaching middle age, do not persuade me that the discretion to impose a lesser sentence ought be exercised. I acknowledge that the offender's treatment in custody, principally at the hands of other inmates, has been degrading and distressing to the offender. His reputation in gaol has necessitated protection from the general prison population. However, I would anticipate some improvement in his custodial conditions following his classification and by the passage of time.

Sentence

113 Roger Dean, on counts 1 to 11 inclusive on the indictment, you are convicted of the murders of Dorothy Sterling, Dorothy Wu, Alma Smith, Lola Bennett, Ella Wood, Urbana Alipio, Caesar Galea, Doris Becke, Reginald Willaim Green, Verna Webeck and Neeltje Valkay. On each count, you are sentenced to life imprisonment, commencing 18 November 2011.

114 On counts 12 to 19 inclusive on the indictment, you are convicted of recklessly causing grievous bodily harm to Marina Alegado, Emmanuela Cachia, Marisa Iaconis, Lesley Trimmer, Romulo Feliciano, Thelma Hodgson-Budd, Anello D'Urso and Bithanta Muneshwar. On counts 12, 13, 14 and 15, you are sentenced to eight (8) years imprisonment to date from 18 November 2011, expiring 17 November 2019, with a non parole period of six (6) years expiring 17 November 2017. On counts 16, 17, 18 and 19, you are sentenced to eight (8) years imprisonment to date from 18 November 2015, expiring 17 November 2023, with a non parole period of six (6) years expiring 17 November 2021.

115 On each count of Larceny as a Clerk, you are convicted and sentenced to a fixed term of five (5) years to date from 18 November 2011, expiring 17 November 2016.

Decision last updated: 01 August 2013