[2007] NSWCCA 51
Magnuson v R [2013] NSWCCA 50
Power v The Queen (1974) 131 CLR 623
Source
Original judgment source is linked above.
Catchwords
[2007] NSWCCA 51
Magnuson v R [2013] NSWCCA 50
Power v The Queen (1974) 131 CLR 623
Judgment (2 paragraphs)
[1]
Judgment
Introduction
On 4 November 2016, after a lengthy trial by judge alone, I found Robert John Adams (the offender) guilty of the murder of Mary Louise Wallace (the deceased), that offence having been committed on or about 24 September 1983.
The matter was stood over for receipt of evidence and submissions on sentence on 17 February 2017, and thereafter for imposition of sentence today.
The maximum penalty for the offence of murder, as at the date of the commission of the offence, was imprisonment for life, and it remains so today. It was agreed by both counsel - each of whom is very experienced in criminal law - that, as at September 1983, that sentence was a mandatory one for all murders. But they also agreed, for a number of reasons, that I should not approach my task as being nothing more than to impose a mandatory life sentence. Furthermore, they helpfully provided me with a detailed joint position as to how I should approach the whole question of sentencing for a murder committed in 1983. That is a topic that is not without its complications, and to which I shall return later in these remarks.
The maximum penalty as it existed in 1983 (and indeed as it exists today) speaks for itself with regard to the gravity with which the unlawful taking of the life of a fellow human being, in the most serious circumstances known to law, was and is assessed by Parliament, and the community that it represents.
The law of sentencing is clear that any matters of aggravation above and beyond the elements of the offence of which the offender has been found guilty must be proven to my satisfaction beyond reasonable doubt. Any matters reducing the culpability of the offender need only be proven on the balance of probabilities. Some matters, of course, may be unable to be determined by me. That is an observation that particularly applies to this matter, for a number of reasons.
Objective features
I turn first to discuss aspects of the offence itself.
In my reasons for verdict, I analysed the facts of the matter in great depth. The nub of that analysis was read out by me in open court; the judgment in its entirety appears on the internet; and it was also promulgated by various social media used by this Court. For all of those reasons, I accept the joint submission of counsel that my recounting today of the objective features of the offence can be quite brief.
In the early hours of Saturday 24 September 1983, the offender, then 31 years of age, offered the deceased, then aged 33, a lift home from a wine bar on the lower North Shore of Sydney. Each of them was very affected by alcohol; indeed, in the case of the deceased, she had been too drunk to stand. The offender had falsely claimed to friends and acquaintances of the deceased that he was a police officer, with the result that they were content for him to give the deceased a lift home, even though he was previously unknown to her and them.
As I explained in my reasons for verdict, I am satisfied beyond reasonable doubt of the following. With the deceased sitting in the front passenger seat of his motor vehicle, the offender drove it a relatively short distance away from the wine bar, and parked it. No one was around at that early hour. He then applied pressure to the windpipe of the deceased with his hands, in an effort to force her to engage in penile/vaginal sexual intercourse (intercourse) with him. Patently, by adopting that course, the offender, despite his drunkenness, well appreciated that the deceased was not consenting to intercourse with him. I am not satisfied that intercourse actually took place between the two of them, but, tragically, the result of that pressure was that the deceased, in her vulnerable intoxicated state, died of asphyxiation.
As I also explained in my reasons for verdict, the offender subsequently disposed of the deceased's body, she at one stage being stored in the boot of his motor vehicle. Over the next couple of days, the offender also took steps to remove, as best he could, any trace of the deceased from that vehicle.
One cannot be satisfied beyond reasonable doubt that the offence was planned. I say that because I consider that, if the deceased had readily consented to sexual contact with the offender, he would not have applied force to her person. Having said that, there is no doubt that, as at the date of the offence, the offender possessed a long-standing tendency to strangle young women if they rejected his sexual advances. The fatal act was a contingency that the offender believed was available to him as necessary.
It was made clear from the first day of the trial that the Crown case was based upon constructive murder (or felony murder, as it was called in 1983). The proposition that I accepted in returning a verdict of guilty was that the offender strangled the deceased with intent to have sexual intercourse with her without her consent, and that she died as a result. I therefore approach the matter on the basis that the Crown has not proven beyond reasonable doubt that, at the time of the act causing death, the offender intended to kill, or to inflict grievous bodily harm, or that he foresaw the probability of death. That is an important distinction between this matter and many offences of murder that have attracted the ultimate penalty, a topic to which I shall also return.
Objective seriousness of the offence
Of course, all murders are crimes of the utmost seriousness. Having said that, I am called upon to make an assessment of the gravity of this particular murder, in order to take into account, in a coherent way, the maximum penalty, amongst other things.
On the one hand, the death of the deceased was unintended. On the other hand, what was intended was an invasion of her sexual autonomy, and it was attempted by an act obviously dangerous to human life, made more dangerous by the level of intoxication of the deceased. And despite his own intoxication, I am satisfied that that danger was well apparent to the offender.
Because of her intoxication, I do not believe, thankfully, that the deceased suffered for very long before losing consciousness. Having said that, being strangled or suffocated to death must surely be a terrible way to die.
Whilst I appreciate the force of what defence counsel has said about the breadth of the concept of felony murder, this offence against a young woman in the prime of her life, simply for the sexual gratification of the offender, cannot be assessed as anything other than extremely grave.
Subjective features
I turn from a discussion of the offence to a discussion of the person who committed it.
The most important aspect of the proceedings on sentence is that no evidence whatsoever was placed before me in mitigation by defence counsel, except for confirmation from the Bar table that the offender was born in May 1952, and is therefore now aged 64. That has made my task more difficult: I know very little of the offender as he is now, and very little of what has occurred in his life between 1983 and today. Apart from his criminal record and custodial history, I have very little beyond what I can glean from the evidence in the trial, the vast bulk of which was focussed on events that occurred over three decades ago. Having stated that significant impediment to my understanding, I record the following subjective aspects of the matter.
Position of the offender
The trial was fully defended, and took some weeks. Of course, the offender is not to be punished in the slightest for pleading not guilty, exercising his right to silence, and calling upon the Crown to prove his guilt beyond reasonable doubt. Self-evidently, however, there can be no utilitarian discount.
Separately, neither before nor after the verdict has there been the slightest sign that the offender is remorseful for what he has done, or even accepts responsibility for it.
Criminal and custodial records
Turning to the criminal and custodial history of the offender, each of which was tendered on sentence by the Crown, it is noteworthy that he began to intersect with the criminal justice system as a boy in New Zealand, where (I infer) he was born. That includes being held in a detention centre for the serious offence of arson, and other offences against property, from the age of 14. One is tempted to infer that perhaps something went wrong in his life from an early age, and that perhaps his youthful offending was a reaction to material or emotional deprivation. Bereft of evidence, I can make no such finding on the balance of probabilities.
He subsequently committed further offences as an adult, both in New Zealand and in this country, some of them more serious than others.
By far the most important aspect of his criminal record is the fact that, in 1976, the offender pleaded guilty to the offence of rape, was convicted of it, and was sentenced to imprisonment by a judge of this Court. Again, I shall not detail the circumstances of the offence that he committed against the woman whom I have called Ellen Moon; it is dealt with at great length in my reasons for verdict. Suffice to say it was a brutal sexual assault upon a young woman that shared a number of features with the murder of the deceased. The most significant of those was the use of strangulation with intent to rape. In the case of Ms Moon, that intention was fulfilled.
The fact that, when he murdered the deceased by strangulation, the offender had already raped Ms Moon using strangulation, and had been imprisoned for it, inevitably means that personal deterrence, general deterrence, and denunciation must play elevated roles in the sentence that I shall impose.
Whilst speaking of the criminal antecedents of the offender, I interpolate to say that, with the agreement of both counsel, I have disregarded on sentence the evidence in the trial about the interactions of the offender with the woman known as Andrea Hyde, and with the woman known as Karen Brown.
To be weighed in favour of the offender with regard to his criminal record is the fact that, from 1984 until today, he has not been convicted of any offence (there are two very small exceptions to that, which I regard as irrelevant to my task). I accept the submission of defence counsel that that suggests that the offender has achieved a degree of rehabilitation over the past 30 years, and he deserves credit for that. Having said that, because I know virtually nothing of the life of the offender between 1983 and 2017, I approach his criminal record as demonstrating that he has successfully desisted from committing offences for many decades, but not much more than that.
Delay
Turning to the question of delay, defence counsel submitted that, in accordance with the well-established principle that was first expounded in R v Todd [1982] 2 NSWLR 517, the delay experienced by the offender in having this matter resolved should sound in mitigation. He pointed to the fact that the evidence in the trial showed that the offender was interviewed as a suspect as long ago as September 1983; that an inquest at which the offender was certainly a suspect was conducted in 2010; and that, on arrest in 2013, the offender spoke of the stress and distress that he had suffered over the years, as a result of having this matter hanging over his head.
There are a number of problems with that submission of defence counsel.
The first is that, apart from that fleeting reference in the recorded interview of 20 December 2013, I have no evidence as to how the offender has felt between September 1983 and today. It is surely quite possible that, between 1983 and 2010, he literally believed that he had gotten away with murder; I hasten to add that I make no positive finding either way in that regard. As well as that, in the interview of December 2013, the offender expressed his confidence that he would be acquitted of the charge of which he has been found guilty.
Secondly, I am satisfied beyond reasonable doubt that the offender lied to police in September 1983. He adopted, and expanded upon, those lies in his interview in 2013. He also took steps, as I have said, to remove any trace of the body of the deceased from his car.
In other words, the matter is not to be equated with a case in which the charging of a person is delayed, he or she exercises his or her right to silence, and thereafter puts the Crown to proof. On the other hand, it is true that the matter cannot be equated with a case in which the offender absconds, thereby frustrating the criminal justice system entirely. But nor can it be denied that the offender took active steps in order to escape justice, with the practical effect that justice has been delayed for decades. In other words, I consider that the delay in resolution of this matter is, to a large degree, attributable to the offender (to use the phrase adopted at [44] and [45] of the judgment of Bellew J (Meagher JA and Schmidt J agreeing) in the recent decision of Sabra v R [2015] NSWCCA 38).
Thirdly, with regard to what the offender said to the police about the stress of the pending allegation, in my reasons for verdict I have already rejected much of what he has said as lies. I have heard no corroborating evidence from any other person, whether partner, family member, friend, or medical professional, about the question of how the offender has felt. For those reasons, it is not easy to know where the truth lies about that topic.
Having taken time to reflect on the matter, and giving due weight to the related fact that the offender has not significantly intersected with the criminal justice system for over three decades, I have come to the view that my sentence should reflect, in favour of the offender, some of the delay that has occurred in resolving this allegation. But it should only do so to a limited degree.
Rehabilitation
I turn now to discuss the prospects of rehabilitation of the offender.
As I have said, he was aged 31 when he committed the murder, and is now aged 64. Defence counsel submitted that the age of the offender should be taken into account favourably, on the basis that a man of that age has excellent prospects of rehabilitation, and is very unlikely to reoffend. Separately, defence counsel disavowed reliance on any aspect of the past life of the offender, and submitted that his client should be sentenced by me simply as he is today.
As for the future, the most that one can glean from the evidence in the trial is as follows.
Decades ago, the offender was a worker, a heavy drinker, and seemingly a sociable person. In 1988 (according to the witness Ross Adams) he was living in Gladesville with the woman who would become his wife. When arrested in 2013, he was living in that pleasant Sydney suburb, and told police that he was living there with his spouse. Because of the absence of any subjective material on sentence tendered on his behalf, I know nothing of his current relationships, his family if any, his work history, or his current state of physical or mental health. In particular, in the absence of material about his individual life expectancy, I can do no more than rely upon common experience in that regard.
As I have said, in the absence of any other subjective material, I accept that the offender has rehabilitated himself sufficiently to avoid intersecting with the criminal justice system over the past many years. I am in no position to make any significant findings beyond that point, including as to whether his time in custody in the years ahead may be able to be used constructively by him.
Replication of past sentencing patterns
I turn now to the difficult question of replication of the sentencing pattern for murder in the distant past. Each counsel agreed that the judgment of Studdert J in R v Fleming [2007] NSWSC 673 provides a useful and correct analysis of that question, and I respectfully agree.
It was agreed that I should reflect on the sentences actually served by the majority of persons sentenced to a mandatory life sentence for murder in the 1970s and 1980s. The Crown conceded that, very often, a period of 10 to 12 years would be served in custody in those days, before an offender would be released on licence.
It was also agreed that I should consider the sentences imposed pursuant to the system of redetermination of life sentences in New South Wales that commenced in the early 1990s, and that would, in all likelihood, have applied to the offender if he had been sentenced for murder in 1984 or 1985, after hypothetical immediate detection. One can see from the table helpfully to be found in the remarks on sentence in R v Fleming that, speaking broadly, such sentences often featured a head sentence of between 18 and 25 years, and a non-parole period of between 15 and 18 years.
Each counsel also invited my attention to the sentence imposed in R v Fleming itself, upon an offender who had strangled and sexually assaulted a defenceless young woman in 1984, he having a previous conviction for one count of rape: a head sentence of imprisonment for 21 years, with a non-parole period of 16 years. I accept the joint submission that that sentence provides a measure of guidance.
It was agreed that the current regime of standard non-parole periods should have no application to this sentencing exercise, and I have disregarded it.
It was further agreed that the statutory ratio between the non-parole period and the head sentence became a part of sentencing in the late 1980s, and would have applied to the hypothetical re-determination of the hypothetical life sentence of the offender. In accordance with that joint position, I approach my task on the basis that, unless I am satisfied that special circumstances exist, the non-parole period of the sentence I impose should not be less than three quarters of the head sentence.
Finally, it was agreed that the sentence that I impose should commence on 11 June 2016, in order to reflect a discrete period of pre-sentence custody before the delivery of my verdict led to the offender being refused bail by me.
I accept all of those joint submissions. In particular, I accept the proposition that the current sentencing law of New South Wales is that I must do my best to replicate the sentence that would have been imposed on the offender at the time of the commission of the offence. I also accept that sentences for murder have increased over the past 30 years. Having said that, as was emphasised in Magnuson v R [2013] NSWCCA 50 at [88], a sentencing judge in 2017, even despite that process of replication, must strive to ensure that the non-parole period imposed remains an appropriate minimum term of imprisonment for the offence committed: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26, referred to in AJB v R (2007) 169 A Crim R 32; [2007] NSWCCA 51.
Various aspects
I turn to discuss briefly various discrete aspects of my task.
First, these remarks on sentence set out all of the aggravating and mitigating features of the matter that I have found to exist, and I shall not list them mechanistically.
Secondly, in light of the criminal record of the offender, the dearth of positive subjective material, the absence of evidence about his state of health, and the inevitable length of the parole period, this is not a matter in which I find that the statutory ratio should be varied.
Thirdly, in the unusual circumstances of this matter, I shall rely upon defence counsel to explain to the offender the regime whereby it is possible that he could continue to be held in prison, even beyond the complete expiry of his head sentence.
Life sentence?
I turn to discuss a further aspect of my task to which I have given careful thought.
The Crown Prosecutor raised for my consideration the imposition of a sentence of life imprisonment without possibility of parole, without urging it upon me. Defence counsel submitted that the ultimate sentence is not called for. My analysis of the issue is as follows.
As I have already said, this offence cannot be assessed as other than extremely grave. Having said that, it did not feature an intention to kill. Nor did the offender commit a multiple murder; nor was this a murder committed by a person who had murdered before. Nor was it a cold-blooded contract killing; nor a murder that featured some exceptionally heinous act of cruelty, torture or mutilation. Those are the characteristics that have almost always led to the imposition of the ultimate sentence since it became a part of the sentencing law of New South Wales over a quarter of a century ago.
In the circumstances, I am not satisfied that a determinate sentence would fail to reflect the gravity of what the offender has done: s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Having said that, it is inevitable that the sentence that I impose must feature a non-parole period that could lead to the offender dying in gaol.
Victim impact statements
Finally, I record that I received victim impact statements from the two sisters of the deceased, Ms Elizabeth McGirr and Ms Anne Fraser. It was agreed by counsel that I should approach all of that material in accordance with long-standing principle: R v Previtera (1997) 94 A Crim R 76, and I have done so.
Each of those persons spoke movingly of the pain that has been endured for decades as a result of the disappearance of the deceased. The evidence in the trial showed her to have been a young woman in the early summer of life: happy, sociable, popular, well-loved by many. That pain has been made worse by not knowing precisely how she died. Many years ago, their parents went to their graves without any resolution of the mystery of the loss of their daughter.
On behalf of the Supreme Court of New South Wales, I extend my condolences for those decades of suffering, which are not yet at an end. It is possible that the conclusion of these proceedings today will provide a measure of closure to many. Some retain the hope that, one day, the offender will reveal where the body of the deceased was secreted, so that her remains can be accorded a dignified burial. Regrettably, in all of the circumstances that I have recounted, I assess that hope as a forlorn one.
Imposition of sentence
Robert John Adams, you are convicted of the offence of murder.
I impose a non-parole period of 15 years, to date from 11 June 2016. That will be followed by a parole period of 5 years, which will expire on 10 June 2036.
The first date upon which the offender will become eligible for possible release to parole will be 10 June 2031.
To express my sentence another way, I have imposed a head sentence of imprisonment for 20 years with a non-parole period of 15 years, with a short backdate.
[2]
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Decision last updated: 03 March 2017