R v BURNES

[9]

HER HONOUR: 1 On 3 April 2007 the offender, Ryan Barry Burnes, pleaded guilty in the Local Court to the murder of Andrew John Heavens (the deceased). The offence was committed at about 10.15 pm on 2 May 2003 within the grounds at Callan Park at Rozelle. The maximum penalty for this offence is life imprisonment. 2 The sentence proceedings commenced before me on 8 June 2007 and were adjourned to 14 June for submissions. 3 The evidence tendered by the Crown on sentence consisted of an Agreed Statement of Facts and the offender's criminal history, together with various materials from the Crown brief of evidence including several witness statements, photographs from the crime scene, a listening device transcript and two ERISP transcripts (each of which extended over many hours), a ballistics report and a Report of Death to Coroner. 4 The Crown also called evidence from Detective Senior Constable Glen Morfoot. His evidence was principally directed to detailing the course of the police investigation into the murder of the deceased - an investigation that commenced with the finding of the body in May 2003, and, as the investigation progressed, also involved an investigation into a drug supply business in which the deceased was involved at the time of his death. The investigation was ongoing from May 2003 but did not result in any arrests until 16 August 2006 when this offender was arrested and charged with murder after making full admissions to police in a record of interview conducted that day. On 20 September 2006 the co offender Scott Alan May was arrested and also charged with the deceased's murder. 5 The evidence from Detective Senior Constable Glen Morfoot enabled me to have an appreciation of the extent to which the Crown relies upon the evidence of this offender in the case it brings against May. I am satisfied that without the evidence of this offender, the Crown case against May would be significantly weakened to the extent that he would be unlikely to be committed for trial. I am fortified in this view because, notwithstanding the fact that police had reason to suspect that May was implicated in the murder, there was insufficient evidence to support a charge until this offender nominated May as the person who solicited him to kill the deceased. 6 The offender has signed an undertaking dated 8 June 2007 to give evidence against May in accordance with three statements he has given to police following his arrest. In his evidence, the offender expressly disavowed a further account he gave to police in an induced statement in January this year where he claimed that he shot the deceased in self-defence and that May had not asked him to kill but had merely given him the gun in the event that it might be needed if the deceased could not be persuaded to co-operate with May's plans for the drug business. In the course of his evidence before me, the offender confirmed his willingness to give evidence for the Crown in both the pending committal proceedings against May and any subsequent trial, including any appeal and retrial. I will return to consider the extent to which this past assistance, and the offer of future assistance, discounts the sentence that would otherwise be imposed on this offender for murder later in this judgment.

[10]

The finding of the body 7 The body of the deceased was located in Callan Park, Rozelle at about 7:15 am on 3 May 2003 by a passer-by. He was found lying on his back in open grasslands about 200 metres west of the Balmain Road entrance to Callan Park. Police received a 000 call on 2 May 2003 from a person living close by who reported hearing first a single gun shot and then two gunshots in quick succession at about 10.15pm. 8 There were three bullet holes in the deceased's upper torso. An unspecified amount of cash and two M&M packets, each containing a number of balloons of heroin, were located on the body. The deceased was wearing a black money belt around his waist underneath his clothing. There was no money inside the belt. The photographs reveal that the deceased was shot while smoking a cigarette as the burnt remains of the cigarette are visible between the fingers of his hand. 9 Three fired cartridge casings from a .45 calibre weapon were found in close proximity to the body together with one projectile. Further examination of the crime scene revealed two projectiles buried in the ground beneath the body. This evidence established that the deceased was murdered where he was found, and that he was shot once in the upper chest area causing him to fall to the ground and then shot twice in the chest area while he was lying on the ground. 10 The offender's account to police as to the weapon he used and the execution style killing he employed is consistent with the witness who placed the call to 000 after hearing three gunshots and with the forensic and ballistic evidence. In addition, the information volunteered by the offender when he was interviewed by police in August 2006 in describing the gun he used adds objective weight to the reliability of his account since it was not public knowledge that the weapon used to kill the deceased was a .45 calibre weapon. 11 On 4 May 2003, a post-mortem examination conducted by Forensic pathologist, Dr Paul Botterill, determined that the cause of death was the direct result of three gun shot wounds to the upper chest. While no other cause of death was identified, a toxicology and serology report submitted as part of the Report to the Coroner confirmed the presence of morphine in significant quantities in the blood and bile of the deceased together with methadone and cannabis. The business of supplying heroin 12 In the course of the investigation the de facto partner of the deceased informed police that at the time of his death in May 2003, and for some time before that date, the deceased was involved in the supply of heroin in the inner city area of Sydney. Other evidence indicated he was a heroin-user. She told police about the established arrangements in place between the deceased and May in the operation of their drug business. 13 There is no evidence that this offender had any financial stake in that business. While there is evidence that he was a drug user, and that he and May had used drugs together since they were boys, there is no evidence that he was supplied drugs by May at any time relative to the murder or by the deceased at any time. I am satisfied however, that even though the offender had not met the deceased before the night he killed him, he was aware that May was in the business of drug supply and that the deceased and May were involved together in that enterprise. 14 The established arrangements between the deceased and May for the distribution of heroin at the time of his murder were that the deceased would purchase heroin in wholesale amounts of an ounce from May and provide May with payment of $8000 per ounce 'up-front'. The deceased would then mix the heroin purchased from May with a cutting agent, package it into capsules or balloons and deliver these amounts to two runners who worked for him. The runners would then distribute the heroin to customers on the street or elsewhere. The deceased provided the runners with two mobile telephones. The various SIM cards used in the mobile telephones by the runners contained the telephone numbers of the customers. This enabled the runners to contact the customers or the customers to contact the runners. The runners would then either deliver the heroin or the customers would collect it at a designated collection point. After the heroin had been distributed the runners would account back to the deceased and he would recover the telephones and SIM cards.

[11]

15 The deceased's de facto partner also told police that around April 2003, May was finding it difficult to obtain heroin from his suppliers, and that this drug shortage continued for about three weeks. It is not clear whether the deceased obtained heroin from another source in the interim. She also told police that the deceased had told her that he had been fighting with May at about this time about the SIM cards that were being used to establish communication links with customers. May apparently claimed that the SIM cards belonged to him because he had given the deceased a "start" in the business. After several heated exchanges, May apparently offered a compromise which involved the two men splitting the various SIM cards with May being given sole access to one of the deceased's runners. She understood that the deceased rejected that compromise. The deceased was reportedly of the opinion that May was beginning to realise that he could be cut out of the business altogether given that the deceased had the SIM cards and the runners working for him and needed only to purchase his own wholesale quantities of the drug before being a principal in his own right. 16 One of the deceased's runners, a person known only as N, gave a statement to police to the effect that approximately one and a half weeks prior to his death, the deceased was seen with May and another man named Sean Rafferty. N also told police that about a week prior to the shooting he was approached by Rafferty who offered him the opportunity to distribute heroin for an increased wage which he accepted. 17 N told police that on 1 May 2003, he met with Rafferty and was given a new telephone as a means of contacting customers. He was told that the drug supply business was to be conducted in the same way the deceased had conducted it, that is, with the runner returning the mobile telephone to Rafferty at the end of the day. He was due to commence work for Rafferty on 2 May 2003. On that day, N also met with the deceased and was given two mobile telephones and two M&M containers containing heroin valued at $4000. He said he told the deceased that it would be his last day working for him. N also informed police that whilst he was distributing heroin for the deceased that day he handed out pieces of paper to the deceased's customers with the new telephone number provided to him by Rafferty. 18 The deceased's de-facto partner last saw the deceased at about 4 pm on 2 May 2003. She observed him to carry a large amount of money in a black money belt, a mobile telephone, and a Nintendo Game Boy Advance. She understood he was to meet with May later that day. 19 Telephone records indicate that there was telephone contact between Rafferty and May at 7:26 pm (and also later that night around 9 pm) and between the deceased and May at 7:41 pm. At about 8 pm the deceased called his de-facto and informed her that he was on his way to the Union Hotel, Newtown, and would be home late as May could not meet him for a couple of hours. Between 8:30 pm and 9 pm one of the deceased's customers spoke to him on the telephone to try to arrange to meet with him. During the course of this conversation the deceased stated that he was going to Newtown and that he had to meet his "boss" at some stage of the night. 20 Telephone records also indicate that at 9:04 pm on 2 May 2003 the deceased made a telephone call to May. At this time the deceased's call signal was recorded by telephone towers at Newtown and at Petersham - consistent with him moving towards the Leichhardt/Rozelle area - while May's phone was being used in the Balmain area. At 9.45 pm telephone records show a call placed by the deceased to May, this time with the tower at Leichhardt recording the call. This was the last call placed or received by the deceased.

[12]

Evidence leading to the prisoner being charged with the deceased's murder 21 On 16 August 2006, over three years after the murder, and in the course of a lengthy interview extending over many hours, the offender admitted to police that he shot the deceased three times in the upper body in the grounds of Callan Park. He said that two days before the shooting he was asked by May whether he would be prepared to kill someone who was presenting May with problems. He agreed he would. He said he was collected from his home in Waterloo by May at about 9 pm on the night of the murder and, after May picked up the deceased outside Market Town at Leichhardt, the three men drove to Callan Park. En route to Leichhardt the offender was given the gun by May which he placed in his pants. 22 It was agreed between May and the offender at that time that if May said "I am going to the car to get my wallet", the offender was to draw the gun and shoot to kill. He didn't speak to the deceased in the car although he was casually introduced to him. After parking the car the deceased and May walked ahead of him into the park. He said that at first May and the deceased appeared to be talking without rancour but that as they walked deeper into the park their voices became raised. He said that he was not listening to what was being said but rather was waiting to see whether May would give the pre-arranged signal. When May announced that he was going to the car to get his wallet, and walked off towards the car ostensibly to get it, the offender recalls that the deceased lit a cigarette and engaged in small talk with him. Within minutes he drew the gun and shot the deceased at point blank range. It is not clear where May was at the time the shots were fired but he did say to the offender, once he was in the car, "you done well … I knew you'd do it…..". 23 May and the offender left the scene in May's car taking the deceased's scooter and the Game Boy that he was carrying when he was killed. This necessarily involved the offender riffling through the pockets of the deceased. He disposed of the scooter a day or so later, fearing that it may associate him with the murder. The Game Boy was pawned to buy drugs. 24 He told police that the events of the night were surreal in his memory and, that while he could recall the sequence of events from picking up the deceased at Market Town to shooting him in the grounds at Callan Park, he could not readily explain why he participated other than that he felt he had to follow through with what was expected of him. He said he felt like "it wasn't really happening". He told police that May didn't tell him why he was being asked to kill the deceased and that he didn't ask for an explanation. He said that while he took the $4000 May gave him, being half of what the deceased put in the glove box of the car before going into the park, he said he didn't ask for any money and didn't touch it for a week after the shooting. He said that from the time that the deceased was picked up by May and driven to Callan Park, to the time that he fired the three shots into the body of the deceased, everything happened very quickly. He admitted that he armed himself in the car before picking up the deceased and that when he took the gun from the front of his pants and fired it, he did so with the intention of shooting to kill. He said that he was in a disturbed state of mind. He said that he had been using a lot of cocaine at the time of the murder. He told police that he felt sick and that when he arrived home a short time later he locked himself in the bathroom for five hours. He said he knew he was "going straight to hell (because) once you do something like that there's no comin' back from it". Further admissions were also made in written statements dated 16, 30 and 31 August 2006. 25 In January 2007, the offender participated in an induced record of interview in preparation for an induced statement. In the course of that interview he volunteered to police, for the first time, that he had been working for May in his drug business for some time leading up to the murder and thereafter, however he neither sold nor supplied heroin. His job was to watch Rafferty to ensure that he did not undercut May's profit by either failing to account for all the heroin sold or by packaging it in such a way that he had more to sell than was agreed. It is not clear whether he was paid to do this. He also told police in the induced interview that he well knew that the deceased was one of May's primary customers, having graduated from being a user to a successful supplier of heroin in a short time.

[13]

The offender's motivation 26 While I accept the joint submission that the offender should be sentenced on the basis that he shot the deceased at the request of May, and that he used a gun that May supplied for that purpose, his motives for doing what was asked of him and his attitude to the shooting, both at the time and in the intervening years, has to be reviewed in the context of all the evidence that has been tendered on sentence. In each of four statements from an informant, in the covertly recorded conversations of the offender and that informant in February 2006, and even in the three statements and records of interview that the offender has since participated in with police, he has described his motivation for agreeing to do what May asked of him and his attitude to the killing in different ways. In some important respects these accounts are at variance with the approach that both the Crown and the offender invite me to adopt for sentencing purposes. Since the murder was on any view of the facts premeditated and executed by the offender on command, resolving questions such as whether the offender killed for a fee and the amount of money he was given or promised, or whether he was subject to the influence of drugs at the time of the killing or even whether he was later troubled by a guilty conscience may not, in the result, weigh very heavily in sentencing terms. That said, the discrepancies in his various accounts on these and other matters cannot simply be ignored. At the very least they may impact on an assessment of the level of objective criminality that attaches to his conduct and they may give some insight into whether the contrition he now expresses is genuine. 27 He was not taken in his evidence to the discrepancies in his accounts by either the Crown Prosecutor or his own counsel so as to enable me to assess the reliability and truthfulness of any explanation he may have been able to offer, and neither counsel addressed me on the way I should resolve these conflicts in the evidence. The discrepancies were, however, addressed at least in part in the records of interview with police in August 2006 and January 2007 and it is from this source only that I am left to reconcile the differences in his various accounts. This is not satisfactory. This Court has said on more than one occasion that if voluminous material is to be tendered on sentence in addition to an agreed statement of facts, it should generally accord with the agreed facts. If the tender of the material is to serve any other purpose, the sentencing judge should be told what the purpose of the tender is and be assisted with an explanation as to how the agreed facts and other evidential material might be reconciled if they are in conflict. It is not enough to tender the material and simply leave it to the sentencing judge to wade through it and to determine its relevance to the issues that arise on sentence. If the evidence is not to be read and used for sentencing purposes there is no proper basis for it to be tendered (see R v Barri [2004] NSWCCA 221 at [58] and R v Falls [2004] NSWCCA 335 at [29]).

[14]

Resolving the discrepancies in the offender's accounts 28 Between March 2005 and February 2006 police were provided with information from an associate of the offender on an ongoing basis. This informant detailed many conversations where the offender is said to have both boasted of his of responsibility for 'the Callan Park murder' and complained about having been promised $40,000 by May for the killing which he did not ultimately receive. He also told the informant that he was offered the money to kill the deceased for his 'drug run'. The informant and the offender were known to police to be regular drug users and for this reason, I can only assume, they approached the reliability of this information with some caution. On 12 February 2006, however, a conversation between the offender and the informant was recorded pursuant to a warrant issued under the Listening Devices Act 1984. With the active encouragement of the police this conversation took place in the grounds of Callan Park while the informant and the offender passed through the grounds to fish from a location near the Iron Cove Bridge. In this conversation the offender described in lurid terms how he shot the deceased, and, importantly, where in the park grounds the shooting took place. He also boasted of his bravado and the enjoyment he experienced when shooting to kill. What follows is an extract from that recording. It is representative of the offender's attitude as reported by the informant over the preceding twelve months: Track 11 Prisoner: Alan Heavens … (pause) … and there, that's … first-walked … Source: How the fuck did youse get him down here, what did he think was goin' on, a deal, or something'? Prisoner: Thought he was gonna, thought he was gonna buy … (pause) … You know what I'm spewing up about the most? He gave us the eight grand for the gear before we went for a walk… Source: Did youse have him with ya? Prisoner: Yeah. We picked him up from Market town and took him down … he knew somethin' was goin' on 'cause he's kept offerin' me cigarette, bein' nice to me and that… Scottie's turned around, the signal was, um, 'I've gotta go to get my wallet,' alright, and that's for 'no,' alright, if he said, but he didn't say that, he started walking up the street, so that was the go… … Source: Yeah. Prisoner: … I'm behind … I had the safety on … I pulled it up like that, clicked the safety off, he's heard the click, he's gone to turn around like that, 'boom' through here, he's went down and he's gasping, he's trying to say somethin' but I don't remember what he said and then fucken I've just walked over the top of him and just fucken 'boom,' 'boom.' ( at this point the offender is said to have leaned froward and shaped his two fingers as if holding a gun )

[17]

Prisoner: I don't care if they get me bro'. I don't care, as long as I take out four or five of 'em with me you know what I mean? ... You know that about me buzz, I, I, … I don't care man. I love, I love it bro'. I do it bro'. I do. That's … 'cause I'm proud of it. Who else could do that shit and get away with it? 29 This segment and other segments of the recorded conversation with the informant were played to the offender in the record of interview with police upon his arrest in August 2006. It would appear that it was when he was confronted with the content of the recording that he resolved to make full admissions. Up until that point of time he was feigning a lack of memory of the incident without making any blanket denials of responsibility. Self evidently, were I persuaded that the attitude he displayed in the extract of the listening device was genuine, and that he stood to gain directly from the deceased's death, even if he was unpaid in the result, the murder would be in the most objectively serious category. I am not satisfied that I can confidently come to that conclusion. I am conscious of the necessity for fairness to be the touchstone in the finding of facts for sentence and I am also conscious of the approach I must take in accordance with established authority in finding those facts (see R v O' Neill [1979] 2 NSWLR 582 at 589). In my view there is no unfairness to the Crown in my acceptance of a view of the facts that are in the offender's favour so far as his motivations and expressed attitude are concerned given the way that the Crown has approached the sentencing exercise. 30 In discharge of their duty of fairness to the offender the police gave him the opportunity to explain why he said these things to the informant. I have carefully read the explanation he gave to police in that interview, and the induced record of interview in January 2007. I am satisfied that the offender has endeavoured to truthfully account to police for what he said to the informant and that he was in fact under the influence of drugs at the time. I am of this view because, although the audio version of the listening device was not tendered, he pointed out to police how his locution when speaking to the informant showed his disordered thinking and the influence of the drugs he had taken. I am also satisfied, although not without some residue of doubt, that far from his bravado being genuine, it was likely to have been a mechanism he adopted in an effort to deal with his shame and his unresolved guilt in having murdered a person he didn't know and for reasons he was never really clear about. He told police that after the murder he was left to deal with what he had done without any support from May, the person on whose behalf he had killed. He said that May refused to talk with him about it and progressively distanced himself from the offender in the weeks and months that followed.

[19]

The assessment of objective criminality 34 In light of the findings of fact that I have made, when viewed objectively, the murder is in my opinion just outside the worst category of case. It was a murder planned by one and executed by another in cold blood and in a milieu of drug dealing where financial motivations dominated. However, the fact that this offender killed at the request of and ultimately on the command of the person who had the primary motive to kill, operates to distinguish his criminality from that of his co-offender. That offender is in the worst category of case. 35 The fact that the deceased was a drug dealer and a drug user has no bearing at all on the way I must approach the punishment of the man who killed him. No life is any more valuable than another. Equally, no killing of another is ever regarded by the law as more or less serious because of the personal circumstances of the deceased or what others think of that person, or for that matter because that person's contribution to community life is either commendable, on the one hand, or harmful on the other. Life itself is what the law and the community prize above all else. This is reflected in the fact that life imprisonment is the maximum penalty for murder. 36 In the Victim Impact Statement read to the Court by the deceased's mother, Mrs Heaven, she described the deceased as a loving and treasured son and a valuable member of a close-knit family. She acknowledged that he had difficult times in his life (no doubt a reference to his drug addiction over many years) but she told the Court that her support for her only son did not waver. I accept that the report of his death, and the three years intervening before this offender detailed the circumstances in which it occurred, have left a permanent scar on her emotional life and have impacted on her ability to work in her chosen and valued calling as a school counsellor. I extend my sympathies to her and her family for their loss. 37 In the final paragraph of her statement, Mrs Heaven appealed to me to deliver justice for her son. It is important that I make it clear that this sentencing exercise is not directed to that end. This sentencing exercise is primarily directed to imposing a sentence of imprisonment on this offender that will, in my assessment, meet what the community can and should expect of a system of justice that is as responsive to the community it serves as it must be to the established principles of law that have developed to give consistency to its expression. It may not be easy for the family of the deceased to accept that a life taken will not be paid for with a life in prison, but that is not the law. Although life imprisonment is a punishment that is available to be imposed for murder (see s 61 of the Crimes (Sentencing Procedure) Act 1999, there is also power under the law to impose a lesser sentence (see s 21 of the Crimes (Sentencing Procedure) Act). 38 The Crown Prosecutor, who represents the community in these proceedings, has submitted that a lesser sentence should be imposed in this case. That concession is made primarily because of the role this offender played in the murder and the assistance he has given and promises to continue to give to bring the principal offender to justice. In my view that is a concession properly made although, as I will make clear shortly, a lengthy period of imprisonment will be imposed nevertheless.

[20]

The weight of subjective considerations 39 There is much in the offender's subjective circumstances that gives me an insight as to how and why he would behave as inhumanely as he did on 2 May 2003 where his criminal antecedents do not suggest he is a violent or brutal man. While his subjective circumstances would not of themselves detract from a long period of imprisonment, even life imprisonment, in my assessment his behaviour since at least August 2006 also weighs against the imposition of a life sentence. He has not only acknowledged his guilt and ultimately entered a plea of guilty to murder, in his dealings with police he has revealed himself as a man who has been struggling with his conscience. He has ultimately found the appropriate expression for it. While the killing of the deceased was in every sense cold blooded he was unable to live with himself as a killer. The extract of the conversation with the informant I referred to earlier is testimony to that fact. A man without conscience would have put the death out of his mind. Ironically, it was his inability to put the killing behind him that unmasked him as the murderer. Were it not for his surfacing conscience the murder may well have gone unsolved and the murderer unpunished. 40 The offender tendered two reports prepared by Dr Bruce Westmore, a forensic psychiatrist, dated 22 March 2007 and 3 May 2007 and a character reference written by Marina Tyler. His mother also gave some evidence on her son's behalf. 41 The prisoner was born in Sydney on 30 June 1980. He is currently 26 years of age. He has a four year old son and a two year old daughter and, until the date of his arrest, was living in a long-term de facto relationship with the children's mother. 42 He was raised by his own mother as a sole parent. His mother and father separated when he was six months old after which he had no contact with his father. He had no father figure in his formative years. He has no siblings. When the offender was eight years of age, his mother left him in the care of her former partner, Marina Tyler. The following is taken from Ms Tyler's written reference that was tendered in sentencing proceedings: "As a young man he was very likeable and caring and always ready to be of assistance to us when possible.

[22]

A. Around the age of eight and nine, some separation anxiety. He was very lonely, a lost sort of child, and always willing to want to please others. His biggest thing was to be someone's best friend. 44 At the age of twelve, the offender moved to Redfern and back into his mother's care. It was also at this time that the offender became involved in street gangs and started using cannabis. After some encounters with juvenile justice facilities he eventually found his way into a special educational unit for children. He was diagnosed with ADHD and a possible bipolar disorder. 45 The offender met May when he was aged thirteen at Edgeware Behavioural School in Surry Hills. This school was associated with a special educational unit. Evidence of the prisoner's relationship with May was given by the prisoner's mother and Dr Westmore. The offender's mother stated in her evidence that: "From day one, I never liked the association. I did not think anything good would come from it. If one of them was in trouble, both of them were together. It was a matter one would say jump, and Ryan would say - how high. We often fought over this, about this association with Scott and others. Ryan was a tall, strong boy. He has never harmed or hurt me. He would come in one door and go out the other. If Scott rang, out Ryan would go. For a while I could never work out the relationship. Ryan seemed to think of Scott as a brother he never had." 46 She gave further evidence that she lost contact with her son as a teenager and often for significant periods. She also came to realise that he was using drugs. The offender was aged fourteen at the time. He left school after completing year eight. He has worked intermittently since then. His dominant skill is in carpentry although he has no trade certificate. 47 Dr Westmore reports that the offender progressed from cannabis to harder drugs such as cocaine, amphetamines, ice and heroin from a young age. His criminal record reflects the extent of his drug dependence with a variety of offences involving possession of drugs and a spread of offences of dishonesty which I consider likely to have been committed to support his drug habit.

[23]

Relevant sentencing principles 48 In R v MA (2004) 145 A Crim R434, the Court of Criminal Appeal characterised the operation of s 3A of the Crimes (Sentencing Procedure) Act as a codification and elaboration of the purposes of criminal punishment, which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465 at 476 : [S]entencing is not purely a logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. 49 In Markarian v R (2005) 215 ALR 213, while the High Court declined to declare that the instinctive approach to sentencing represented the law in Australia, in the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ, their Honours said that the approach that sentencing courts should take is to weigh all relevant factors bearing upon sentence in reaching the conclusion as to the particular penalty that should be imposed giving each of them the weight that is merited in the particular circumstances. Their Honours also acknowledged that although the adding and subtracting of quantified figures in months or years from a notional starting point should not be the approach of a sentencing court, in order to ensure transparency in the reasoning employed to arrive at a given sentence, an arithmetical approach may be warranted in some cases. In cases where there is a discount for future assistance it is essential that there be some reference to the way in which the discount translates arithmetically in order to make patent to the prisoner the consequences, under the Criminal Appeal Act 1912, should his offer of assistance be withdrawn (see generally R v Halls and Halls (2002) 127 A Crim R 209 and R v Waqa (No2) (2005) 156 A Crim R 454). 50 I have considered the operation of s 21A of the Crimes (Sentencing Procedure) Act but, I do not propose in sentencing this offender to deal with the listed mitigating and aggravating factors seriatim. I will instead deal with only the most significant factors since it seems to me that it is an interplay of these factors that will dictate a sentence that meets the manifold purposes of punishment in this case.

[24]

Intoxication and mental illness 51 Dr Westmore's reports and his review of hospital records support a finding that the offender has had significant psychological problems in the past including periods of drug-induced psychoses. He has had multiple admissions to psychiatric hospitals over the last four years, both before and after the murder. While in custody in 1999 he was housed in Ward D at Long Bay Prison. There was a differential diagnosis at these times of a psychotic illness either drug-induced or by reason of underlying schizophrenia. He is currently being prescribed anti-psychotic medication. 52 It is clear from the material before me that the offender has had a compromised capacity to cope with the stressors of life and to make educated life choices for many years by reason of either long term drug abuse, mental illness or a combination of both. In response to a question asked by me the offender said he had shared between a gram to two grams of cocaine with his partner the day of the murder and that at the time of the offence he was feeling the "effects" of cocaine amongst "other drugs" including "pot and a few pills, like benzos". On repeated occasions in the interviews with police the offender referred to his drug use at the time and the fact that under their influence he felt invincible. I am satisfied that he was not seeking to exaggerate his drug use to justify his actions on the night of the murder, but was endeavouring to explain what he did that night and to describe the extent of his disordered thinking. In recounting the brutal facts of the killing he at no time sought to deflect responsibility for his actions or to underplay the magnitude of his actions in first shooting the deceased in the chest and then firing two more shots into his body when he was on the ground. 53 Against this history, the issue of whether the offender was intoxicated at the time of the offence needs to be addressed for sentencing purposes. Dr Westmore also gave evidence that the offender's thought patterns were "disturbed" and that "[h]is mental state would have made him more susceptible to manipulation by his co-offender": Q. Is it your opinion that although this offence couldn't be said to have been committed in a situation where this offender was suffering from a drug induced psychosis, from the history you were given he may well have been suffering from certain aspects of thought disorder at the time of the offence?

[27]

A. That even of itself does not exclude that possibility but it does suggest he was not so intoxicated with drugs he was organically confused. 54 While not irrelevant to the sentencing exercise, I do not consider that the use of drugs on the day of the murder mitigates this offender's criminal responsibility. Neither am I of the view that it is an aggravating factor (Coleman v R (1990) 47 A Crim R 306). I do however take into account the fact that he suffered from a mental illness at the time of the murder, a condition likely, in Dr Westmore's opinion, to be exacerbated by long term and persistent drug abuse, and that this condition rendered him both vulnerable to manipulation by his co-offender and impeded his capacity for clear and reasoned thought. While I cannot ignore the fact that his mental condition in Dr Westmore's view played a contextual part in the offending, I am also of the view that the weight it should be given in the sentencing exercise is such that it will only marginally moderate his sentence. This is not a case where it can be said that the illness from which he suffers displaces the need for general deterrence in the sense that it is not in the interest of the community that this offender be the medium for making an example to others (see R v Israil [2002] NSWCCA 255 at [18] and [22] see also R v Z [2006] NSWCCA 342 per Adams J at [41]-[57]). The sentence imposed on this offender must signal in the strongest possible terms that to intentionally kill or seriously harm those who it is thought are competitors or rivals, or those who are thought to have somehow acted dishonourably, or even with outright animosity, will be met with heavy sentences. 55 I have no doubt that May prevailed upon the offender to kill the deceased well knowing that he could achieve his objectives via the agency of a person who he knew would not refuse to do what he was too cowardly to do himself. That however does little to reduce this offender's responsibility for what I consider to be his conscious and voluntary act in arming himself and shooting to kill on command. I am left in no doubt that he had a full appreciation of the wrongfulness of what he was asked to do even if he was in the moment ill-equipped to resist what had been asked of him.

[34]

59 I have decided to assess the utilitarian value of the plea and the offender's assistance to the authorities and to arrive at a compound or composite discount. This is in recognition of the fact that there is a significant overlap between the factors inherent in both, namely contrition, and a willingness to cooperate, together with the fact that in so doing he is putting himself in the position where he will need protection in a segregated part of the prison structure for a substantial part of the sentence he is to serve. Evidence has been led to support the fact and extent of the disadvantage that he will suffer as a result. I take that into account. 60 Consistent with what this Court has said in SZ v R [2007] NSWCCA 19, it will only be in the exceptional case where a composite discount will exceed 50 per cent. I do not regard this case as exceptional. The offender pleaded guilty to murder in April of this year, that is four years after the murder and seven months after admitting to it upon his arrest. Although the plea is of significant utilitarian value I do not regard it as a plea entered at the earliest time. It would seem that the offender's induced statement of January of this year, when he sought to qualify his responsibility for the death of the deceased by suggesting that he fired the gun because he thought the deceased was himself reaching for a weapon and, where he excluded the role that May played in the murder altogether must have delayed the plea being entered. I make no judgment adverse to him about his motives at that time. They may be understandable. The assistance to the authorities the offender now commits to giving however is very considerable. As I have said, without this offender's commitment to giving evidence against May there would likely be no case against him. The decision to give evidence against the man who he believed to be his brother and only friend has all the hallmarks of the offender coming to a lasting recognition that his loyalty to this man was misplaced.

R v BURNES - [2007] NSWSC 298 - NSWSC 2007 case summary — Zoe

At a glance

Court

Decision date

Before

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Judgment (37 paragraphs)

Parties

Cases Cited (7)

Cited By (3)