R v Cameron; R v Forward; R v Wilkinson

Supreme Court of NSW|2016-09-14|Before: Fagan J

Solicitors: Caroline Ervin (Regina) Peter Proctor (Cameron) Ryan Finch (Forward) Pawel Kulisiewicz (Wilkinson) File Number(s): 2015/075641; 2014/220843 (Cameron) 2015/059181; 2014/220833 (Wilkinson) 2015/061827 (Forward)

Judgment

Donald John Cameron and Stanley Robert Forward are before the court for sentence having pleaded guilty to a charge that they did murder Jacob Munro on 22 July 2014 at Schofields. David Ian Wilkinson has pleaded guilty to a count on the same indictment that he did receive, harbour, maintain and assist Cameron and Forward in the murder, contrary to s 349(1) Crimes Act 1900 (NSW). All three men have pleaded guilty to a further count, also on the same indictment, that on 27 July 2014 at Schofields they knowingly took part in the cultivation of 664 cannabis plants being not less than the large commercial quantity, contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985 (NSW).

Circumstances of the murder

Holder and Cameron were the principals of an enterprise of growing cannabis under hydroponic conditions on a property at Angus Road Schofields during the second half of 2013 and in 2014. There was a small house at the front of this block of land and a large steel shed at the rear. The shed and the residence were served by separate driveways. A large colour bond sheet metal fence surrounded the shed and restricted access to it and visibility of it. The fence separated the shed from the house.
In August 2013 Cameron put down a deposit for rental of the property. He entered into a two year lease from 1 September 2013. Between then and July 2014 cultivation of a substantial number of cannabis plants was undertaken in the shed. This commenced with Cameron and Zanker setting up and fitting out the shed. Zanker worked under Cameron's direction. I find beyond reasonable doubt that Cameron had the requisite know-how from his past experience with cannabis cropping: see [58]. He imparted his knowledge to Zanker and to the other workers in the business.
Forward was introduced to Cameron in late 2013 or early 2014 by a person through whom Forward was accustomed to purchase cannabis. Cameron agreed to engage him at $200 per day. From about late 2013 Forward worked 2 or 3 days per week, first on the setup of the infrastructure and then on maintaining and harvesting the crop. As plants came to be harvested he contributed to the work of "trimming". That is, cutting off leaves and preparing the plants for drying before sale. According to Forward, Cameron made periodic deliveries of the drug by car to a purchaser in Port Macquarie. About 8 to 10 pounds of dried cannabis were delivered at a time. On at least one occasion Cameron took Forward with him to Port Macquarie to introduce him to the buyer and to put him in a position to make delivery trips in future.
Wilkinson joined the operation from about March or April 2014. He was introduced by Holder. He did some construction work and some crop management and harvesting. Wilkinson had building skills and helped construct a second, upper level of cultivation rooms within the shed. He was provided with accommodation in the on-site residence and he was paid $500 per week. S also lived in the residence, which had three bedrooms.
Holder introduced Jacob Munro as a worker from about May 2014. Munro was at first permitted to live in the residence at the front of the property with Wilkinson and Zanker.
There was continual friction between Munro and Zanker during June 2014. Altercations between them were at times physical. In about late June 2014 there was an incident when Jacob Munro seized Zanker around the throat, pushed him through a makeshift thinly constructed wall of an upstairs room in the shed and held him over the edge. Cameron attempted to prevent the hostility between Zanker and Munro from flaring into violence by directing these two younger men to work in different parts of the operation. After the violent incident in late June 2014 Cameron asked Holder to cease employing Jacob Munro and to order him off the property.
I am satisfied beyond reasonable doubt that by this time Cameron believed Munro was highly unstable and unreliable. According to Forward, Cameron informed zanker and Wilkinson during June and July 2014, in Forward's presence, that he feared Munro would "bring heat to the crop". Cameron said that if Munro was simply fired there was a risk he might tell his friends about the crop and that they might "rob the place". Alternatively, the police would find out about the activity at Schofields through Munro's loose talk. I accept beyond reasonable doubt that Cameron held these fears. I infer, beyond reasonable doubt, that he spoke of these concerns to each of Forward, Wilkinson and Zanker in early July 2014.
Holder removed Jacob Munro from the Schofields site temporarily in early July 2014 and arranged accommodation for him in a caravan park at a Vineyard, about 25 minutes drive from the cannabis growing shed. Cameron urged Holder to keep Munro off the property and to pay him to keep quiet about the activities there. However Holder subsequently informed Cameron, Forward, Wilkinson and Zanker that he proposed to give Munro another chance.
Cameron has said in a record of interview that about one week after the significant fight between Zanker and Munro in late June 2014, Zanker informed Cameron that he and Forward were willing to kill Jacob Munro. He has said that Zanker repeated this offer more than once at around this time and on one occasion did so with Forward also present. Forward at that time asked Cameron "Do you mind if it is messy?" Cameron said that he did not mind.
That version of events conveys the impression that Zanker and Forward were the initiators of what became a concrete plan, hatched between them and Cameron, to kill Munro. On the other hand Forward has asserted in his record of interview that Cameron decided in early July 2014 that Munro had to be killed and, in effect, directed Forward that he should be the one to do it. Forward has said that he initially agreed, thinking that it would never happen but fearing to say no in case he should appear to be disloyal and become isolated as a potential risk to the group, thereby exposing himself to violent silencing measures.
Neither Cameron nor Forward gave evidence in the sentence proceedings. Without hearing each of them tested under cross-examination I cannot resolve their conflicting accounts of who initiated the plan to kill and whether Forward was enthusiastic or reluctant. However these differences are not critical to evaluating the culpability of Cameron and Forward, respectively.
Wilkinson heard Cameron, Forward and Zanker discussing that they would kill Munro. I am satisfied on the balance of probabilities that he did not take this literally and/or that he did not believe they that they would actually carry out such a plan. This is what Wilkinson had said in his interviews with police and, before that, in a letter he wrote on 12 January 2015. The letter was secreted in Wilkinson's house with the intention that it should be found in the event of his death. He said the same thing as to his state of knowledge of the homicide plans in a conversation with Cameron's wife at Casino on 13 January 2015. This conversation took place before his arrest on the charge of being an accessory to the murder and was detected by a listening device under warrant.
On Saturday, 12 July 2014 Cameron arranged with Zanker and Forward to drive the next day to a location near Bulahdelah which Cameron had identified on a map as a potentially suitable place to bury the body of Jacob Munro after he had been killed. Early on the morning of Sunday 13 July Cameron drove in his own motor vehicle to a hardware store at Rouse Hill and purchased two spades, a mattock and three pairs of gloves. He then drove to Schofields and collected Zanker, pursuant to the arrangement he had made with him by phone the night before. Cameron drove, with Zanker as passenger, north to Gorokan on Tuggerah Lake. There Forward joined them and they continued toward Bulahdelah. During the drive north the three discussed the location which Cameron had identified on the map as a suitable burial place.
Notably, Wilkinson did not accompany the other three on the grave digging venture. He wrote in the letter of 12 January 2015 to which reference has previously been made that Cameron, Forward and Zanker spoke amongst themselves in a jocular manner about having dug a grave for Munro. This was in the week before Munro was killed. I accept Wilkinson's claim that he did not believe they were serious or that they would put the grave to use. This conclusion is consistent with him not having believed that any of the talk between Cameron, Forward and Zanker about killing Munro was in earnest.
After passing through Bulahdelah township Cameron drove onto an unsealed road and stopped at a point along it where he thought the grave might be dug. The three men explored surrounding locations for about 20 minutes, agreed upon a place and proceeded to dig. At the end of this task Forward lay down in the grave briefly to ensure that it was of sufficient capacity to hold Jacob Munro's body. The open grave was then covered with branches and the three men returned to Sydney.
During the week following the grave digging of Sunday, 13 July 2014, Jacob Munro did not attend at the cannabis growing shed. On the evening of Monday 21 July 2014 Cameron learned that Munro would return to work the next day. At about 8:00 am on Tuesday, 22 July 2014 Cameron attended at the Vineyard caravan park where Jacob Munro was residing and met with him to drive him to the property at Schofields. On arrival there he let Munro into the shed, then went to the residence to wake Zanker. Forward arrived at the property at about this time. Wilkinson accompanied Cameron to the shed after Zanker had been woken. For about half an hour Cameron, Forward, Wilkinson and Jake Munro worked in the shed.
Wilkinson and Munro sat on chairs near a table in what was known as the trimming room. There was a door connecting this room to the larger area of the shed. The table had cannabis plants spread out on it. Wilkinson and Munro were engaged in trimming them, seated side-by-side on chairs with their backs up against a wall. Forward and Cameron were also in the trimming room engaged on this work for a short time. They then left the room, Cameron first and Forward shortly after him. Forward at this stage took up a knife which he had brought to the shed the day before and with which he intended to kill Munro.
I accept Wilkinson's account of the attack upon Munro which then took place, given in his record of interview and during a walk-through of the shed with homicide detectives. Wilkinson had not been expecting the attack. Forward ran back in to the trimming room, straight up to Munro and delivered a punching or thrusting knife blow to his neck. Forward then ran out of the room into the adjoining part of the shed. Munro, although he must have been severely wounded, got up from his chair and ran out of the trimming room after Forward. I infer that he was trying to escape from the shed. Forward seized him by his clothes and delivered more knife blows. They went to the floor, wrestling, with Munro trying to gain control of the knife. Cameron was present in this part of the shed whilst the struggle was going on.
Munro then collapsed onto a lounge chair which was located in the area where the attack by Forward upon Munro was continuing. Cameron applied a Taser to his head and delivered a burst of electric current. Forward grasped the handle of the knife in both hands and plunged it into Jacob Munro's upper body with great force as Munro was slumped on the couch. Munro did not move again. Forward's account of the attack in his record of interview is substantially to the same effect as that which I have summarised thus far from Wilkinson's description. I find beyond reasonable doubt that the parts played by Forward and Cameron were as related in this and the preceding paragraph.
After this Forward removed his own clothing and showered in a bathroom located within the shed. He changed into clean clothing and placed that which had been blood spattered during the attack in a black plastic bag for destruction later. Forward had sustained a deep cut to his right thumb and a laceration to a knuckle of his left hand whilst wielding the knife against Munro. These injuries were taped up in a temporary fashion. Cameron, Zanker and Wilkinson lifted Munro's body onto some plastic sheet, wrapped the body up and placed it in the boot of Cameron's motor vehicle.
The floor of the shed upon which Munro had been standing when he was stabbed and to which he fell was concrete. Zanker applied bleach to the bloodstained surface and Cameron mopped up after him. Zanker and Cameron went through the pockets of the deceased and removed his phones and wallet. The phones were turned off so that their location could not be traced. They were discarded into rubbish bins remote from the Schofields shed. The wallet was similarly disposed of.
Within half an hour to an hour after the deceased's body had been loaded into the boot of Cameron's car he drove it north to the prepared grave site near Bulahdelah. At Cameron's request Wilkinson accompanied him as a passenger. Forward drove toward the site in his own car with Zanker. By arrangement between Cameron and Forward, the latter drove ahead in case there should be any random breath testing patrols along the highway. The offenders agreed that if there were such patrols there was a better chance of Cameron not being stopped and having his car searched if Forward preceded him.
During the journey north Cameron stopped at a hardware store to purchase two bags of hydrated lime. Upon arrival at Bulahdelah township Forward parked his vehicle. He and Zanker then rode in Cameron's car for the last part of the journey to the burial location. Upon arrival there the covering of branches was taken off the grave. Wilkinson assisted Cameron to carry the body to the grave. Lime was placed in the bottom of the grave, the body was lowered in and more lime was spread over the top.
The grave was then backfilled by Cameron and Zanker. It was about 900 mm deep and approximately 15 m from the edge of the unsealed road. Forward did not take part in the burial but remained at the motor vehicle. His hand injuries would have prevented him from helping and he has said in his record of interview that he was shaken by what had taken place and felt unable to assist with the body. Wilkinson stood near the grave and observed the activities of Cameron and Zanker.
The black plastic sheeting in which the body had been wrapped and a bag of Forward's clothing were burned a few hundred metres from the burial site. All four men returned to Bulahdelah in Cameron's motor vehicle. Whilst they were together they agreed that they would tell Holder and anyone else who might ask that Jacob Munro had never turned up for work at the shed that day. At Bulahdelah Forward returned to his own car and with Zanker as passenger they drove to Wyong Hospital where Forward obtained treatment for the cuts to his hands. Cameron drove Wilkinson back to Schofields. Consistently with their plan Cameron sent text messages to Holder either on the Tuesday evening or within subsequent days stating that Munro had not arrived at work. Zanker returned to work at the shed the next day. Forward did not return at any time after the murder up until the property was raided by Drug Squad officers on 27 July 2014.

Motives

I find beyond reasonable doubt that Cameron's motive for his participation in the killing of Jacob Munro was primarily to avoid detection of the cannabis growing enterprise. He was unable to persuade Holder, who was his partner with equal authority in the illegal business, to dismiss Munro from the property and to pay him for his silence. Because of Munro's volatility in his conflict with Zanker, regardless of who was at fault in that conflict, Cameron perceived a risk that Munro would leave the cannabis growing business on bad terms and would leak information that could lead directly or indirectly to police detection. Cameron has admitted he was conscious of the likelihood that he would be sent to prison if he was detected in the activity. In this he was correct. In mid-2014, Cameron would have been acutely aware of his record, summarised at [58]. He was at the time on parole under a sentence imposed on the last occasion when he was caught growing cannabis, in 2009. He would have appreciated that if caught by police in the cultivation project upon which he was engaged in 2014 he would face many more years in prison.
I find beyond reasonable doubt that Forward had the same motive as Cameron. I accept, on the balance of probabilities, that he also had some apprehension that once he had discussed with Cameron the plan to kill Munro he felt some pressure to go through with it lest he be perceived as a risk to Cameron and Zanker. I find that Forward believed Cameron, at least, would be capable of violence towards himself if Cameron thought it necessary in order to keep Forward quiet.
It is not alleged by the Crown that Wilkinson shared the common purpose of the other three to kill Munro or that he was party to the plan in advance of Forward's attack upon the deceased on 22 July 2014. I find beyond reasonable doubt that his motives in assisting the others to cover up the crime included avoidance of detection of his own involvement in the hydroponic cannabis cropping enterprise.
In the intercepted conversation with Cameron's wife in January 2015 Wilkinson stated that after the event he had been in possession of the murder weapon with the intention of disposing it at his property in northern New South Wales. However the bag in which he held it was searched during the execution of a warrant at Schofields by the Drug Squad on 27 July 2014. The knife was at that time seized, its significance not having been appreciated by the Drug Squad officers.
I have accepted that Wilkinson was not aware that an attack upon Munro would really take place until it did, suddenly, in his presence on 22 July 2014. Once that had occurred he was faced with a difficult choice. He had just witnessed what his co-offenders were capable of. He was requested by Cameron to assist with transporting the body and burying it. Only by cooperating in this could he assure them of his involvement in the murder and hence that he was committed with them and not likely to speak to police. Hesitation on his part or any attempt to distance himself from the homicide would reveal him to the others as a risk. He may well have perceived that refusal to take part in the disposal of the body would expose him to elimination himself.
Wilkinson asserts that after the murder he wished to leave the cannabis growing project as soon as possible and that he had packed his bags by the time the Drug Squad raided the property on 27 July 2014. I am not satisfied beyond reasonable doubt that he intended to continue on at the cannabis cultivation shed, drawing his wage, or that his participation in disposing of the body can be seen as motivated to any extent by a cold desire to continue his illegal employment. I have accepted that his actions as an accessory were in part motivated by the wish to avoid detection for what he had already done at Schofields, up to 22 July 2014.

Objective seriousness of the murder

Murder is in every instance a most serious crime. The maximum penalty of life imprisonment and the long sentences which are commonly imposed reflect the high value which the law places upon human life. Several features of the killing of Jacob Munro increase its gravity and attract a relatively high sentence for each of Cameron and Forward. First, it was thoroughly premeditated, with a bush grave being dug over a week in advance of the killing. This was not a spontaneous, passionate or angry reaction to any situation. It was a coldly planned elimination. I find beyond reasonable doubt that the grave was not merely dug in order to be available for a possible contingency, which might never arise. Cameron and Forward were resolved upon Jacob Munro's death from the Sunday when they went to such considerable trouble to prepare the way for it.
Through his record of interview and by way of the history he recounted to his psychologist, Forward has asserted that he adhered to the plan with reluctance and out of apprehension for Cameron's reaction if he should withdraw. I cannot find on the balance of probabilities that his reservations were significant given that he had a full eight days after the grave was dug within which to reconsider before the knife attack was made. His conduct at the time speaks more forcefully than his words after the event. That a person of his age and background should be willing to be part of such a plan is surprising but on the evidence I cannot be satisfied that he was not willing.
Secondly, the purpose of the murder was to silence a potentially loose talking participant in the criminal cultivation activity. An abrasive, volatile and at times violent employee could, in the setting of a legitimate business, be worked around in any of a number of ways. His co-workers could continue to urge the principal who had hired him (Holder) to dismiss him. Alternatively they could make life so unpleasant for Munro as to drive him to resignation. They could leave the employment themselves. None of these solutions would work for the offenders because any of the alternatives would likely result in word getting out through Munro about the hydroponic cannabis operation. Jacob Munro was killed to enable the offenders to avoid detection of their illegal activity to date and, at least in Cameron's case, to enable continuation of the large-scale commercial production of the prohibited drug.
Thirdly, this may properly be regarded as a murder for financial gain from Cameron's point of view. Although he did not seek to take money or property directly from the victim, his purpose involved the continuance of the hydroponic cultivation enterprise and the derivation of unlawful profits from it. For the purpose of comparing the facts of this case with those upon which other murderers have been sentenced, this homicide was in principle similar to cases where a witness to an offence such as robbery has been murdered to help the murderer retain the proceeds of the original crime and avoid being brought to justice for it.
Fourthly, the murder was extremely brutal in the manner in which was carried out. A stabbing death such as this one is a savage, painful drawn out affair. It was particularly so because multiple blows were necessary to kill the victim. Jacob Munro died struggling for his life so far as he could whilst rendered largely helpless by the Taser shock administered by Cameron. With respect to Forward, I accept that the brutality and prolongation of the attack, involving 15 separate wounds, was not the product of innate savagery on his part but of his inexperience in violent struggles and his own fear and desperation once he had commenced.
Fifthly the offenders acted callously towards relatives and friends of the deceased. His elimination left them to wonder whether or not he had died and if so for what reason and in what circumstances. They were left with no last remains to grieve over, to inter or to cremate.
Sixthly, the murder was committed in company. By s 21A(2)(e) of the Crimes (Sentencing Procedure) Act this is an aggravating feature which I must take into account. Other statutory aggravating features listed in s 21A(2) have already been considered in these remarks or are inapplicable. Some of the statutory factors are inherent in the crime of murder and cannot be separately considered without double counting, for example par (b) of s 21A(2).
The degree of objective culpability for the offence differs between Cameron and Forward. Both took part in discussion of the plan from its first conception. Thereafter Cameron led and drove the implementation. He selected the method of disposing of the body and the site where the grave would be dug. He arranged with the others the grave digging trip. He bought the tools and led the expedition. He instructed Forward as to the day the murder was to take place and gave him the go-ahead. Cameron participated in the act of killing by immobilising the victim with electric current from the Taser whilst the younger man, Forward, did the heavy work of wielding the knife. Cameron directed operations with respect to transporting and concealing the body.
I am satisfied beyond reasonable doubt that the plan would not have been made and would not have proceeded to implementation without Cameron's assent, leadership and direction. He was one of two principals of the illegal enterprise which was to be protected by the killing. He was Forward's boss in that business. He was older than Forward and had authority over him. I am satisfied beyond reasonable doubt that the plan to kill could have been stopped by Cameron at any time.
For his part, Forward gave his assent to the plan and participated with his full share of the physical work. He helped dig the grave, he stabbed the victim and he took part in transporting the body by driving ahead to screen Cameron's car from police attention. So far as the evidence shows, he was the only one of the three who was prepared to carry out the final attack so that his involvement also was indispensable to the commission of the murder.
Aggravated as this murder was I do not consider it to have been in the worst category of particularly heinous homicides such as to demand imprisonment for life. Further, the ameliorating subjective circumstances of each of Cameron and Forward, to be mentioned shortly, and their entitlement to reduction of sentence under s 22 and other provisions of the Crimes (Sentencing Procedure) Act tell against life imprisonment.

Victim impact statement

In fixing sentence for Cameron and Forward for the murder I will have regard to a victim impact statement by the deceased's mother, Ms Deborah Hall, read to the Court on her behalf. Ms Hall has been devastated by the loss of her son and by the shocking circumstances of his death and burial. Her statement described the understandably deep effect the events have had on her other children. Ms Hall's statement concluded with a compassionate recognition of the effects of these crimes upon the families of the offenders, a profound demonstration of her own humanity and strength of character.

Objective seriousness of Wilkinson's accessory role

As for Wilkinson, it is fair to say that his assistance as an accessory after the fact was not strictly necessary to the implementation of the burial plan made by the others. It has been recognised that disposal of a body is a most serious manner of providing assistance to a murderer after the fact: R v Quach [2002] NSWSC 1205 at [11]. Obviously, circumstances of an offender's involvement in the disposal of a body may vary greatly from one case to the next. A survey of cases illustrating the range of circumstances was made by Buddin J in R v Cowen [2008] NSWSC 104.
Here, the disposal would have occurred in the way that it did with or without Wilkinson's cooperation. He added very little except to keep his silence about a murder which had been perpetrated in his presence without prior knowledge that it would occur and without any choice on his part as to being present. This is in contrast to the facts in R v Quach where the offender was the only person on hand to assist a murderer in disposing of the body of his victim and where concealment of the crime would not have been possible without the accessory's contribution.
Nevertheless Wilkinson's offence must attract a term of full-time custody. The significant consideration in this is the requirement for general deterrence, having regard to the policy of the law as referred to by Thomas J of the Supreme Court of Queensland in R v Hawken (1986) 27 A Crim R 32 at 38: "… it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide."

Arrest of the offenders for cannabis cultivation

At some time in July 2014 New South Wales police attached to the State Crime Command Drug Squad had commenced investigations into possible cultivation of cannabis at the Schofields property. On 27 July 2014 surveillance was conducted on the shed and on vehicles driving to it and from it. During that day a search warrant for the property was executed. Police found within the shed a sophisticated two level, multi-room cannabis plantation. Each room was walled with insulated plywood. Cultivation of cannabis plants was being enhanced by artificial lighting and an irrigation system. A large amount of chemical fertiliser was found within the shed. Cannabis plants at various stages of growth were located and there was a significant amount of harvested cannabis laid out on racks in the process of being dried.
Holder, Cameron and Wilkinson were arrested on charges of being knowingly concerned in the cultivation. Holder and Cameron have since that time remained in custody on this charge, bail refused. Wilkinson was released on bail soon after his arrest. Neither Forward nor Zanker was immediately arrested for his part in the cannabis cultivation. Forward had not returned to the Schofields shed by the date of the police raid which was only five days after the murder.
On 28 July 2014 an agronomist working with police identified in the Schofields shed 664 cannabis plants at various stages of growth, comprised of 598 plants in plastic pots and 66 plants in rockwool blocks on propagation trays. Police have estimated that all of the plants identified, when fully grown, could yield a crop with a maximum street value of $2.99 million.

Objective seriousness of the cannabis cultivation

As described at [5] - [9] and [51] the cannabis cultivation project at Schofields was highly organised and equipped for high-volume continuous production. Cameron's role as one of two partners who stood to reap the profits constituted an offence against s 23(2)(a) Drug Misuse and Trafficking Act in the mid range of gravity. One can envisage more serious offending against this section with more plants and more workers. For hydroponic cultivation the threshold for the large commercial quantity is 200 plants. Approximately 3½ times that number were being grown at Schofields in July 2014. This was cannabis production on at least a light industrial scale.
Cameron has not been separately charged with the periodic supplies, by way of delivery to Port Macquarie, as referred to at [7]. That aspect of the activity is taken into account only as indicating the commercial nature of the enterprise, the degree to which it was established and the recurrent nature of the planting, cultivation and harvesting. Cameron's offending is comparable to that which was considered in Licastro v R [2008] NSWCCA 131.
The offending by each of Forward and Wilkinson was of a very much lower order. They were mere employees at relatively low rates of remuneration. There is no evidence that they shared in profits. Forward's conduct was somewhat more serious than that of Wilkinson because he was involved over a longer period.
For each offender the aggravating factor referred to in par (n) of s 21A(2) Crimes (Sentencing Procedure) Act applies: the cannabis cultivation was a part of a planned and organised activity. Also, par (o) is engaged: the cultivation was for financial gain. This is an aggravating circumstance, not a feature inherent in the offence. Although the section infringed is concerned with a "large commercial quantity", it is not in every case that the plants falling within that statutory term are grown for profit. In some such cases it has been found that a large commercial quantity was grown for personal use but that was clearly not so at the Schofields shed.

Cameron's antecedents, subjective circumstances and plea

Cameron's criminal record shows that he has been a persistent offender with respect to the cultivation of cannabis and is entitled to no lenience on the cultivation charge to which he has now pleaded. The dates of his prior drug offences and the penalties he has received are as follows: 1. February 1996 (age 44): cultivate cannabis, periodic detention 9 months. 2. October 2002 (age 50): cultivate cannabis, imprisonment for 2 years non-parole period and 12 months balance of term; supply cannabis, imprisonment for 12 months to be served concurrently. 3. January 2003 (age 50): cultivate cannabis, imprisonment for 2 years non-parole period and 2 years balance of term. This offence was committed on 29 January 2003 whilst Cameron was on bail in respect of the October 2002 charges. The October 2002 and January 2003 matters were disposed of together, the imprisonment for the latter being made cumulative by 6 months upon the imprisonment for the former. 4. July 2009 (age 57): cultivate cannabis, imprisonment for 3 years and 6 months non-parole period and 1 year 9 months balance of term. A further offence of supplying cannabis was the subject of imprisonment for 12 months to be served concurrently.
This record demonstrates that Cameron has no regard for the law which prohibits the cultivation of prohibited plants. He may fairly be said to be defiant of it and incorrigible with respect to this form of offending. It has been mentioned that at the time of the cultivation offence for which he is now to be sentenced he was still on parole for the 2009 offences. I find that upon release from the imprisonment which is now to be imposed Cameron would be strongly inclined to return to cultivating cannabis except for the fact that he would not likely be physically able to do so having regard to the age at which release can be expected. On the other hand Cameron's record discloses no prior offences of violence or of anything relevant to the manner in which he should be dealt with for the murder. I consider it unlikely he would commit any further offence of violence.
Cameron did not give evidence in the sentence proceedings but there was tendered on his behalf a report of Dr Nielssen, psychiatrist, dated 17 August 2016. This contains the only evidence available to me of Cameron's personal background. The report includes reference to a summary of events provided by his wife. Cameron's parents separated when he was very young. For most of his childhood and early teens he was raised by grandparents who at times administered harsh physical punishments. He left school at 15 years of age and was employed in unskilled occupations until he joined the army. He served for a few years and was discharged in 1977 at age 25. Shortly afterwards he married. Cameron and his wife have a son and a daughter both now in their mid 30s. The marriage has held together notwithstanding his incarceration from time to time as summarised at [58].
Cameron has been a gambler. He has overused alcohol at times. He has not been a perpetual cannabis user. He claims to have been intoxicated by THC absorbed through his skin and through the air he breathed whilst he was working in the hydroponic shed at Schofields. I cannot accept that evidence or draw any conclusion as to whether he was drug affected at any time relevant to the murder. There is no expert opinion evidence before me capable of establishing that absorption of THC by the means which Cameron describes is possible.
All of Cameron's background personal circumstances, apart from his criminal record, are unremarkable and neutral in the exercise of the sentencing discretion. Dr Nielsen considers that Cameron is now affected by a depressive disorder which, again, is unremarkable and neutral to sentence. His arrest, incarceration and expectation of a long prison term are no doubt depressing influences.
According to Dr Nielssen's report Cameron told the doctor he did not think about the murder "until a few months after I was picked up" (on 27 July 2014, for the cannabis cultivation) but after that he was "tormented by memories and feelings of guilt about what happened". He said to Dr Nielssen: "I abhor violence. … I was a mess after [I] was arrested and I had to get it off my chest".
I accept these statements concerning the development of his reflections upon the murder. His volunteering of information about the crime to police, commencing in mid-December 2014, is consistent with and tends to corroborate them. The absence of any criminal record of violent offending or other evidence of past violent conduct is also consistent with his assertions to Dr Nielssen. Cameron has shown genuine remorse with respect to the murder.
Cameron pleaded guilty to both the murder and cannabis cultivation charges in the Local Court on 29 January 2016. He should have a 25% reduction of the sentences which would otherwise be appropriate.

Cameron's assistance to authorities

Following his arrest on 27 July 2014 on the charge of cultivating a large commercial quantity of cannabis plants, Cameron was refused bail. On 16 December 2014 he informed police through his solicitor that he wished to speak to them. When police contacted him he said he had information concerning Jacob Munro, whose disappearance police had been investigating since 27 July 2014. On that date Munro's girlfriend had reported him missing.
On 17 December 2014 Cameron took part in a record of interview with homicide detectives over one and a half hours. In this he described the stabbing of Munro by Forward as having taken place spontaneously and, from his point of view, unexpectedly on the morning of 22 July 2014. He volunteered that he had used the Taser but said this had been to subdue Munro in circumstances where he thought Munro was wielding the knife. He did not inform police that a grave for Munro had been dug over a week earlier. He admitted that he and Wilkinson drove the body to the burial site near Bulahdelah and that Forward and Zanker had also attended, in Forward's vehicle. However he suggested that the selection of the site was made only after the killing had occurred, without pre-planning.
On 19 December 2014 Cameron voluntarily attended the burial site with homicide detectives and participated in a walk-through. This was electronically recorded. He identified the area where he, Forward, Zanker and Wilkinson had buried the deceased's body. He directed police to an area about 500 m to the south where the plastic sheet in which Munro's body had been wrapped and clothing worn by Forward during the homicide were burned. It was during this walk-through that he first informed police that the grave had been dug days prior to the killing.
During 19 and 20 December 2014 New South Wales police forensic service officers exhumed the remains of the deceased from the grave. Post-mortem examination showed that he had been stabbed 15 times to the face, neck, back and chest. One stab wound had penetrated the deceased's heart.
On 29 January 2015 Cameron made a statement to police in which he retracted the falsehoods in his record of interview as summarised at [67]. His account in this statement included the planning in advance that had been undertaken between himself, Forward and Zanker, the selection of the burial site and the preparation of the grave more than a week before Munro was stabbed to death. The statement was adopted on 16 February 2015. On 29 January 2015, when providing information for the statement, Cameron marked up the transcript of the record of interview in which he had participated on 17 December 2014 to indicate portions which were untruthful or inaccurate.
For the purposes of s 23(2) Crimes (Sentencing Procedure) Act, I have considered a confidential exhibit which sets out the police view of the nature, utility, completeness and truthfulness of Cameron's assistance to authorities. I accept that without that assistance police would probably not have located the deceased's body. It is not said, by police or by Cameron, that the murder would not have been uncovered and solved without his help. Nevertheless I accept that the information he supplied greatly expedited the investigation. Relatively speaking, the provision of the information was timely. It enabled all co-offenders to be apprehended and charged. As a result of Cameron's assistance it has been necessary for him to be placed in protective custody and this restricts his access to programs within the correctional facility where he is located and otherwise isolates him during his imprisonment.
By reason of this assistance I will discount the sentence which otherwise I would have imposed on Cameron for the murder by 15%, in addition to the discount to which he is entitled for his plea of guilty. One factor which I have considered in arriving at this percentage is that the risks to which Cameron has exposed himself by his co-operation, in particular risks of harm by associates, are not nearly as great as in other cases where higher discounts for co-operation have been allowed. Cameron has also cooperated with police in relation to the cultivation charge but I do not consider that this warrants any discount to his sentence for that offence. The case against Cameron, Holder and Wilkinson with respect to the cannabis cultivation was overwhelming from the moment of their arrest at the site, without any input from Cameron. Wilkinson had already provided information against Zanker in relation to the activities at Schofields before Cameron spoke to police about that. So far as information from Cameron may have assisted in proving a case against Forward for his involvement in the cannabis enterprise, this is not of great significance in itself and is really an incidental outcome of the information provided in respect of the murder.

Forward's antecedents, subjective circumstances and plea

Forward has no record of convictions for any offence committed prior to the date of the murder. He is an intelligent person and was promising as a junior school pupil. His progress at school was impeded from an early stage by serious ill health. By the age of 14 years he had fallen far behind in physical development and was well below the 1st percentile for height for his age group. He was at that time diagnosed with Crohn's disease, an inflammatory disorder of the bowel. Treatment for this during his high school years and absences due to symptoms prevented him from achieving the intellectual and scholastic development of which he would have been capable.
Forward abused alcohol heavily from the age of 15. He became a heavy user of cannabis by age 17. His mother, although aware of the problem and very concerned about it, could not break him of the habit. He has used ecstasy, amphetamines and cocaine since he was 18. He left school without completing year 12. Thereafter he had only temporary, part-time, unskilled employment in retail up to the time when he commenced work at Schofields.
I accept on the balance of probabilities Forward's explanation of how he came to be involved with the cultivation enterprise, as given in his record of interview on 23 March 2016. He was unemployed in late 2013 and was using cannabis daily. He ran up a debt of about $2000 to his supplier. As a means of him earning income from which to pay off this debt, the supplier introduced him to Cameron who then employed him at the Schofields cultivation site. He had paid off the debt within about four or five weeks but then continued in the cultivation business, earning about $200 per day.
Forward has expressed to his psychiatrist remorse, recognition of the gravity of his wrongdoing and acceptance of responsibility, including sympathy for the family of the deceased. The psychiatrist considers that at the time of the murder "his reasoning process was likely impaired by substance intoxication (with greater impulsivity), and to a lesser extent the negative style of his depressive thinking". I accept that conclusion. It provides no significant reduction in culpability but, with respect to his decision to participate in the murder, it constitutes a partial explanation which leaves open significant prospect of rehabilitation provided he can abstain from substance abuse after his release.
I take into account that Forward is a young offender being sentenced to imprisonment for the first time so that amelioration of sentence is appropriate to afford an opportunity for rehabilitation. Another factor warranting mitigation of penalty is that Forward's ongoing suffering of the symptoms of Crohn's disease will make his time in custody particularly difficult. The Justice Health record of his treatment to date whilst on remand bears this out.
Forward was arrested on 27 February 2015 for the murder and at that time refused to take part in a record of interview. He offered a plea of guilty to murder on 4 December 2015 in the Local Court, when he was committed for sentence. His first appearance in the arraignment list in this Court was on 4 March 2016. On 23 March 2016 he took part in a record of interview with homicide detectives and gave an account of his involvement in the murder.
Forward had not been charged in connection with the cultivation of cannabis at Schofields up to the time of his arrest for the murder. That charge was first laid on 27 February 2015. He offered a plea of guilty to that, also, on 4 December 2015 in the Local Court. He should have a 25% reduction of whatever sentence would otherwise be imposed, under s 22 Crimes (Sentencing Procedure) Act.

Forward's assistance to authorities

For the purposes of s 23 Crimes (Sentencing Procedure) Act I have considered a confidential exhibit in which the officer in charge of the murder investigation has acknowledged the utility, truthfulness and completeness of information supplied by Forward in his record of interview of 23 March 2016. Forward is willing to give evidence against Zanker. It is primarily in relation to the prosecution of Zanker that Forward's evidence will be of utility although a strong case would exist against Zanker without Forward's assistance, upon evidence which can be given by Cameron and Wilkinson who provided their assistance to authorities earlier in time. It is nevertheless appropriate to allow some discount under s 23 with respect to sentence on the murder charge, in addition to the discount which he will receive for his plea of guilty in the Local Court. I consider an additional 5% to be appropriate.
There is no reason to discount Forward's sentence on the cultivation charge pursuant to s 23. Anything he may say about his own or any other person's involvement in that is well provable by the Crown independently of him. I accept that Forward will be at some risk of hostility from other inmates within the prison system by reason of his cooperation with authorities. He has not sought or accepted protective custody. I take into account that his co-operation in giving evidence is at a cost to himself of added stress which is adverse to the management of his bowel disease. It is the limited utility of his assistance which most influences the level of discount that can be allowed in his case.

Wilkinson's antecedents, subjective circumstances and plea

Wilkinson has a small number of minor offences on his record but none are relevant for present purposes. There is nothing in his record which would disentitle him from lenience if it can otherwise be extended.
Information concerning his personal history comes from a psychologist's report prepared for the purpose of sentence proceedings. He came to Australia with his family as a four-year-old. He was educated to the age of 15 years at which time his father died and he left school. Wilkinson worked in a variety of unskilled and semi trade occupations. He had an unstable marriage over 16 years which produced one son from whom he is estranged. Wilkinson's health is poor. He had bypass surgery in about 2013 to address coronary artery disease. He remains anxious and physically weakened as a result of this.
I consider it unlikely that Wilkinson would offend seriously again. He has expressed regret for his actions which I accept as genuine.
Wilkinson denied knowing that Munro was missing when asked about him by police on 3 September 2014. At that time Wilkinson provided a statement in which he admitted that he had worked at the crop site with Holder, Cameron, Zanker, Forward and Munro. On 28 October 2014 and 19 November 2014 Wilkinson was again spoken to by police and on both occasions claimed to have no information concerning the deceased's disappearance.
Wilkinson was arrested on 25 February 2015 on the charge of having been an accessory after the fact to the murder of Munro. Up until then he was on bail in relation to the cultivation charge. He has been in custody since 25 February 2015. He pleaded guilty to both charges in the local Court on 4 December 2015 and is entitled to a 25% reduction of his sentence for each offence on that account.

Wilkinson's assistance to authorities

At the time of his arrest on the accessory to murder charge Wilkinson indicated to police an area behind a set of drawers in his home. Police there located two envelopes, one addressed to Holder and the other to the Missing Persons Squad. Each of these envelopes contained a copy of the letter of 12 January 2015, referred to at [16], outlining the circumstances of the murder of Jacob Munro and the disposal of his body. Wilkinson stated that his intention in preparing and concealing these letters was that he believed if he died they would be found.
Following Wilkinson's arrest on 25 February 2015 on the charge of having been an accessory after the fact to the murder of Munro, Wilkinson gave police useful information in relation to the prosecution of Forward (who did not admit his involvement until 13 months later) and relevant to the prosecution of Zanker for murder. I accept that this information has been and will continue to be of significant utility to the Crown. I consider that a 10% discount under s 23 of the Crimes (Sentencing Procedure) Act is appropriate in relation to Wilkinson's sentence on the accessory to murder charge.
The assistance provided by Wilkinson in relation to the cannabis cultivation, as described in a confidential exhibit prepared by the officer in charge of the investigation, was given promptly, on 31 July 2014, and was substantial. Again a discount of 10%, additional to the 25% which he will receive for his early plea of guilty, is in my view appropriate in relation to penalty on the cannabis cultivation charge.

Cameron: sentence

Cameron has been in custody from his arrest up to today's date. To allow the time served to count the first of the sentences imposed on these charges will commence on 27 July 2014, the date of arrest. I consider that there should be some accumulation of the sentences for the two offences respectively because they are quite distinct in the nature of the criminality involved. Also, having regard to his egregious record with respect to cannabis cultivation his punishment for the current offence of that nature cannot be allowed merely to merge in his punishment for the murder.
Were it not for the 25% discount to which Cameron has become entitled by his plea to the cannabis cultivation charge I would have sentenced him to a non-parole period of 10 years and a balance of term of 3 years and 4 months. It is redundant to fix a balance of term. Following the expiration of his non-parole period for the cultivation he will remain in custody under his sentence for the murder charge. Despite the redundancy it appears I am obliged, by the operation of ss 44 and 45 Crimes (Sentencing Procedure) Act, to fix both a non-parole period and a balance of term.
In relation to the murder charge I find no special circumstances for the purposes of s 44 Crimes (Sentencing Procedure) Act which would warrant altering the statutory ratio between non-parole period and balance of term. The starting point, to which there must be applied the combined discount of 40% to which I consider Cameron entitled, would be a non-parole period of 30 years and a balance of term according to the statutory ratio.
Applying the discounts and taking into account all of the considerations I have mentioned, the offender is sentenced as follows: 1. For the offence of knowing concern in the cultivation of prohibited plants being not less than the large commercial quantity of such plants at Schofields on 27 July 2014 Donald John Cameron is sentenced to imprisonment for a non-parole period of 7 years and 6 months to commence on 27 July 2014 and to expire on 26 January 2022 and a balance of term of 2 years and 6 months to commence on 27 January 2022 and to expire on 26 July 2024. 2. For the murder of Jacob Munro at Schofields on 22 July 2014 Donald John Cameron is sentenced to imprisonment for a non-parole period of 18 years to commence on 27 July 2018 and to expire on 26 July 2036 and a balance of term of 6 years to commence on 27 July 2036 and to expire on 26 July 2042. 3. Donald John Cameron will be eligible for release on parole at the expiry of the non-parole period in respect of the offence of murder.

Forward: sentence

Stanley Robert Forward has been in custody from his arrest up to today's date. To allow the time served to count the sentences imposed upon him will commence on 27 February 2015, the date of arrest. The starting point for the cannabis cultivation charge, before the discount of 25% for his plea of guilty, would be an overall term of four years with a non-parole period and balance of term in the statutory proportion.
With respect to the sentence of Forward for murder I find special circumstances within the meaning of s 44 which warrant altering the ratio between the non-parole period and the balance of term. Forward's youth, his being in prison for the first time at such a young age, his medical condition and requirements for treatment, his prospects of rehabilitation and the potential benefit of an extended period of rehabilitation in the community after his release are factors which justify the variation. Because of the discount to which he is entitled on the sentence for this charge, the balance of term under parole which results from varying the statutory ratio does not become excessive. The starting point for his sentence before application of the 30% discount would be a non-parole period of 22 years and a balance of term of 8 years.
There are factors which distinguish the position of Forward from that of each of the other offenders with respect to accumulation. Because of his youth and the prospects of his rehabilitation it is important that the overall effective sentence, whilst adequately reflecting the gravity of his actions, should not be crushing. As he is to serve a significant term for the murder and as his criminality in the cannabis cultivation was in a subordinate capacity and of relatively low culpability, I consider it appropriate to fix the sentences on both charges to be served concurrently.
Allowing for the discounts to which he is entitled and giving due weight to all other considerations to which I have referred the offender is sentenced as follows: 1. For the offence of knowing concern in the cultivation of prohibited plants being not less than the large commercial quantity of such plants at Schofields on 27 July 2014 Stanley Robert Forward is sentenced to imprisonment for a non-parole period of 2 years and 3 months to commence on 27 February 2015 and to expire on 26 May 2017 and a balance of term of 9 months to commence 27 May 2017 and to expire 26 February 2018. 2. For the murder of Jacob Munro at Schofields on 22 July 2014 Stanley Robert Forward is sentenced to imprisonment for a non-parole period of 15 years and 5 months to commence on 27 February 2015 and to expire on 26 July 2030 and a balance of term of 5 years and 7 months to commence on 27 July 2030 and to expire on 26 February 2036. 3. Stanley Robert Forward will be eligible for release on parole at the expiry of the non-parole period in respect of the offence of murder.
Notwithstanding s 50 of the Crimes (Sentencing Procedure) Act I will not make an order for release of the offender at the expiration of his non-parole period in relation to the cannabis cultivation charge. To do so would create confusion for Corrective Services because he will at that time remain subject to the non-parole period in respect of the murder.

Wilkinson: sentence

David Ian Wilkinson has been in custody from his arrest up to today's date. To allow the time served to count the first sentence imposed will commence on 25 February 2015, the date of arrest. There must be some degree of accumulation between the sentences. I see no special circumstances warranting adjustment of the statutory ratio between non-parole period and balance of term, for the sentence on either count.
In respect of the cannabis cultivation, the starting point to which it is appropriate to apply a 35% discount by reason of Wilkinson's pleas of guilty and the other matters identified in these remarks would be an overall sentence of 3 years and 9 months. For the accessory to murder charge, where a 35% discount is also to be allowed, the starting point would be an overall sentence of 2 years and 4 months.
Upon application of the reductions in sentence to which I find him entitled, the offender is sentenced as follows: 1. For the offence of knowing concern in the cultivation of prohibited plants being not less than the large commercial quantity of such plants at Schofields on 27 July 2014 David Ian Wilkinson is sentenced to imprisonment for a non-parole period of 1 year and 10 months to commence on 25 February 2015 and to expire on 24 December 2016 and a balance of term of 7 months to commence on 25 December 2016 and to expire on 24 July 2017. 2. For the offence of being an accessory after the fact to the murder of Jacob Munro at Schofields on 22 July 2014 David Ian Wilkinson is sentenced to imprisonment for a non-parole period of 1 year and 2 months to commence on 25 November 2015 and to expire on 24 January 2017 and a balance of term of 4 months to commence on 25 January 2017 and to expire on 24 May 2017. 3. David Ian Wilkinson is to be released on parole at the expiry of the non-parole period of his sentence in respect of the offence of accessory after the fact to murder.
Notwithstanding s 50 of the Crimes (Sentencing Procedure) Act no order is made for release of the offender Wilkinson at the expiration of his non-parole period in relation to the cultivation of prohibited plants because he will at that time continue to serve a non-parole period in respect of the accessory to murder offence.

Crimes (High Risk Offenders) Act

Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) all three offenders are notified that the provisions of the Act apply to them and to the offending the subject of these proceedings.

Amendments 18 September 2017 - Publication restriction removed - judgment published. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2017

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