R v DONAI, Terry Mark

Supreme Court of NSW|2012-06-28|Before: Hidden J, Fullerton J

REMARKS ON SENTENCE 1The offender, Terry Mark Donai, has been found guilty at trial of the murder of a married couple, Pamela and William Weightman, at their home at Glen Alpine on 8 January 2000. He stands for sentence for those crimes. 2His accomplice in the murders was the couple's adopted son, David Weightman. The investigation of the matter and the subsequent court proceedings have been protracted, but it is not necessary to examine that process. For present purposes, it is sufficient to say that David Weightman pleaded guilty to the murders in October 2005 and was sentenced by me on 23 December 2005: R v Weightman [2005] NSWSC 1354. The trial of the present offender before me was a retrial. He had been found guilty of the murders in a trial before Fullerton J in 2007, but those convictions were set aside by the Court of Criminal Appeal and a new trial was ordered: Donai v R [2011] NSWCCA 173. Following that earlier trial, Fullerton J had sentenced the offender to life imprisonment for each offence: R v Donai [2008] NSWSC 502. The course of the investigation and the history of the proceedings can be gleaned from her Honour's remarks on sentence and my own remarks in sentencing David Weightman.

3When I sentenced David Weightman I recounted the facts of the offences as they had been presented to me. Fullerton J recorded her findings of fact when she sentenced this offender after the first trial. However, for present purposes the facts emerge from the evidence of David Weightman in the trial over which I presided, and it is from that evidence that I must find the facts for the purpose of sentence. The jury's verdicts convey that they accepted David Weightman on essential matters, but it does not follow that I must accept the whole of his account. Certain aspects of it remain in dispute on the question of sentence, and I shall deal with that matter later. 4David Weightman was 20 years old at the time of the murders. His parents had adopted him in his infancy. They were well off, and he expected to be the beneficiary of a substantial estate when they died. The offender was 32 years old at the time of the offences. David Weightman had met him a few months previously and they had become friends. He became acquainted with Mr and Mrs Weightman shortly before the killings, when he undertook some stencilcreting work on the driveway at their home. 5According to David Weightman, a week or so before the murders he was talking to the offender about the estate he stood to inherit on the death of his parents. In a later conversation, he said, the offender told him that he would kill Mr and Mrs Weightman if David Weightman would provide him with the money to purchase a particular make of motorbike which he wanted. The price of that bike, an amount of $17,000, was to be his reward. None of this is conceded for the purpose of sentence. 6David Weightman gave evidence that it was the offender who determined how the killings were to be carried out and how their bodies were to be disposed of. This, he said, was done as they were travelling to the Weightmans' home on the night they were to be killed. He said that the offender had some tablets which he understood to be Serapax and which he, David Weightman, was to put in his parents' tea or coffee. Their having been sedated, the offender was to enter the house and asphyxiate them with a pillow. They would then be placed in a car and driven over an embankment, to make it look as though they had been killed in an accident. The use of sedatives, said David Weightman, was consistent with his having earlier told the offender that he did not want his parents to feel any pain. All this, also, is in dispute in the sentence proceedings. 7David Weightman's evidence was that, upon arriving at the house, he went inside while the offender remained outside. He made tea for his parents and put the tablets which the offender had given to him into it. His mother went upstairs to her bedroom, while his father remained on a couch in the lounge room. He went outside and told the offender that he had given them the drugs, and that his mother had gone upstairs. Here again, the evidence about drugging the tea is disputed. 8What then ensued, however, is not in dispute for the purpose of sentence. The offender entered the house. He went to the upstairs bedroom, where he asphyxiated Mrs Weightman with a pillow. She resisted and David Weightman, who was outside the house, heard her scream. The offender came outside, perspiring, and said to David Weightman, "That took a lot out of me, I'll need a hand with your dad." 9The two of them entered the house and went to the couch on which Mr Weightman was dozing. David Weightman held his father around the waist while the offender placed a pillow over his face. Mr Weightman put up a considerable struggle, shouting, "You bastards", and he fell to the floor. David Weightman held his arms down and lay across his father's chest to secure him while the offender asphyxiated him. This process took some minutes. 10Post-mortem examination of Mr Weightman revealed bilateral fractures of the thyroid cartilage. A medical witness gave evidence that this pointed to manual strangulation. The Crown prosecutor raised this matter in the sentence proceedings, but it was the evidence of David Weightman, and had been the Crown case, that his father was killed by suffocation. It seems to me that little turns upon this issue. Given the circumstances of the killing of Mr Weightman which I have described, the offender's culpability would be the same whether death was occasioned by strangulation, suffocation or both. 11The two of them carried the deceased out of the house and placed them into the father's car, a Mitsubishi Magna. The offender drove that car to an area off Heathcote Road, and David Weightman followed in his mother's Hyundai. There the body of Mr Weightman was moved from the rear of the Magna into the driver's seat, his wife's body being in the front passenger seat. David Weightman and the offender pushed the car over an embankment, and it came to rest against a tree on the slope below. 12David Weightman later inherited the estate, which was of a value of about $800,000. He enjoyed its fruits, realising the major assets and buying a home for himself.

13The offender is now 45 years old. He has a minor criminal history which is of no significance for present purposes. It should be noted, however, that there are no entries for offences of violence. He has been in custody since his arrest on 16 June 2006. 14His background is to be found in a psychiatric assessment of Dr Richard Furst and a statement by his mother, Anne Donai, who gave evidence at the trial and who was accepted by both parties to be a reliable witness. Subject to one matter to which I shall refer, his upbringing appears to have been unremarkable and he enjoyed a supportive family environment. He left school at the end of year 9 and, it seems, maintained a good employment record thereafter. 15He has been in several intimate relationships, the first producing a son, Shannon, who is now 24 years old, and the last producing another son, who is now 7. After the breakdown of the first relationship, he undertook the care of Shannon. He was observed by his mother and by a man for whom he worked, Mr Johns, to be a good father, caring and responsible. Shannon himself confirmed this in a short statement, in which he also recounted occasions on which the offender had gone out of his way to help others, including rescuing a little girl who had fallen into a river at a camp. His mother described him as "always ... compassionate and caring to others." She frankly acknowledged that she could not accept the jury's verdicts, describing the offences as "totally out of character for the person I know." 16The dark side of the offender's history is that, when he was about 9 years old, he was sexually abused by a teacher at his school for a 6 month period. On a later occasion, when he was about 11, he was also abused by a Catholic priest. He said nothing about this abuse until much later, when he was an adult. He approached the Catholic church to seek an investigation into this behaviour, apparently without success, but the matter was never reported to the police. 17His mother wrote of him that, when he was about 10 years old, "he seemed to change and lose his loving, easy nature. He seemed to close up and not trust in people." He displayed anxiety but the family could not get him "to explain his fears." She added that, despite this change in his disposition, she never saw him "show any violence, aggression or nastiness to anyone in her house or any neighbours." 18Dr Furst noted a history of low self-esteem and depression throughout the offender's late teens and early twenties. He described persistent flashbacks and intrusive memories of his abuse, and suffered chronic insomnia. These problems endured into his thirties. Over the years he had been on medication for depression and anxiety. He has remained on a course of medication since coming into custody, and has also been undergoing psychological counselling by Ms Penelope Walk. Also in evidence are progress reports by Ms Walk prepared in 2009. 19Dr Furst also noted a pattern of drinking and use of cannabis by the offender of sufficient significance to lead to a diagnosis of Substance Use Disorder. The doctor's primary diagnosis, from the history of sexual abuse and its enduring effects, was Post-Traumatic Stress Disorder. He recommended continuing drug and alcohol counselling and psychological therapy. 20The offender's conduct in custody has been satisfactory. He has been employed, and has undergone vocational training courses and courses in personal development. There is Torres Strait Islander blood in his background, and he has also worked as an Aboriginal delegate. Apart from the professional intervention of Ms Walk, he has had the benefit of counselling and support from a chaplain at the prison where he is currently held. 21Dr Furst saw the offender's prognosis as "positive." He saw his engagement in treatment "and other vocational training and work endeavours, family support, and efforts to support other indigenous inmates" as "positive factors when assessing his prospects of rehabilitation." In the light of the whole of the offender's history and his current mental state, the doctor thought it probable that he was at "low risk of future violence." 22I should make it clear that this psychiatric material is relevant to the offender's background and to his prospects of rehabilitation. It provides no explanation for his involvement in the present offences, and was not proffered as such.

23I received a victim impact statement by Mrs Weightman's sister, Margaret Irwin. I had also received a statement by her in sentencing David Weightman, as did Fullerton J when she sentenced the offender after the first trial. Mrs Irwin's recent statement, expressed forcefully and eloquently, is further testament to her grief and outrage at these terrible crimes, and to the serious and enduring effects they have had upon her and her family. I am particularly conscious of the agony she and the family must have suffered waiting so long for this offender to come to justice. Yet again, I express my deepest sympathy to Mrs Irwin and the family.

Sentencing 24The Crown prosecutor who prosecuted the offender did not appear in David Weightman's sentence proceedings. In the trial before me the offender was represented by Mr Ramage QC, instructed by Mr Phillip Green, solicitor. Neither of them had represented him in the first trial. 25The Crown prosecutor submitted that the gravity of these two murders was such as to call for the imposition of the maximum sentence, imprisonment for the offender's life. The primary focus of the arguments for the Crown and the offender was whether I should take that course, rather than impose determinate sentences. Both counsel took me to s 61 of the Crimes (Sentencing Procedure) Act 1999, and to authority bearing upon it. There is no need to set out that section or refer to those authorities. The principles are well known and do not call for restatement. A helpful summary of them, with reference to relevant legislation and authority, is to be found in the remarks on sentence of Fullerton J at [55] - [61], [65]. 26Undoubtedly, the criminality of these two offences is grave indeed. In the sanctity of their home Mr and Mrs Weightman were killed in a brutal manner. The exertion required of the offender to kill Mrs Weightman did not deter him from proceeding with the killing of her husband. He bore them no ill will. His motive can only have been financial gain. As to that matter I accept the evidence of David Weightman. In the event, the offender was never paid his reward but, of course, that is of no moment for present purposes. 27The other aspects of David Weightman's evidence which remain in dispute are more troubling. He first admitted his involvement in the killings under pressure, in the course of a confrontation with Mrs Irwin, who suspected as much. The possibility that he sought to sanitise his role in the killings during his interviews with the police and in his evidence cannot be ignored. In the trial before me Mr Ramage mounted a sustained attack upon his credibility, with a good deal of material to support it. 28I have recounted David Weightman's evidence that it was this offender who first raised the question of killing his parents and who formulated the plan to do so. Yet it was David Weightman who initiated the discussion about what he stood to gain by his parents' death, and there was evidence from other witnesses that on earlier occasions he had spoken of killing his parents to secure his inheritance. To what extent he was serious about that, and whether he would have done so without the intervention of the offender, I cannot say. I suspect that he was more involved in the planning of the killing of his parents than he has been prepared to disclose. However, even if that be so, it in no way reduces the offender's culpability. The fact remains that the killings were planned. 29As I have said, David Weightman's evidence that he drugged his parents with tablets supplied by the offender is also challenged. If he did attempt to do so, it was clearly ineffective. Both of them struggled before they died. Traces of drugs found in the blood of each of them on post-mortem examination were the subject of pharmacological evidence at the trial. It is unnecessary to examine that evidence in any detail. It is sufficient to say that the nature of the substances detected, and the quantity of them, would not have produced any significant sedative effect. 30The Crown prosecutor submitted that I should conclude that the offender provided David Weightman with tablets of some kind, knowing them to be ineffective, so as to make it appear that he was complying with his stipulation that his parents should not suffer as they were killed. I would not draw that conclusion, which I do not consider to be fairly available on the evidence. It is not apparent why the offender would not supply David Weightman with genuinely sedative drugs, because the sedation of his victims would undoubtedly have made his task easier. Mr Ramage, for his part, argued that I should reject this aspect of David Weightman's evidence and find that drugging his parents was not any part of the plan. I do not find it necessary to resolve this controversy in assessing the offender's culpability. The fact remains that he killed both of the deceased in the teeth of their resistance. Nor does it have any significant bearing upon the culpability of David Weightman himself, which, as will be seen, is a matter I also need to consider. 31Fullerton J determined that life sentences were called for because of the objective gravity of the offences, and the need for retribution and deterrence: [79] of her remarks. Unlike the proceedings before me, it seems that there was no evidence before her Honour of the offender's prospects of rehabilitation: [78], [80]. Nevertheless, she was not satisfied that the case fell "within the worst category of homicide or the most extreme case, although it falls very close to it." She noted that, while the killings were premeditated, the planning was "nevertheless unprofessional and, to an extent, amateurish": [64]. I agree with those findings but, for my part, they give me pause in considering whether the maximum sentence is called for. 32However that may be, an important factor in whether life sentences should be imposed is the manner in which I dealt with David Weightman. Fullerton J expressed the view (at [23] of her remarks) that no question of parity or relativity in the sentences passed upon the two offenders arose because of aspects of the material on sentence in David Weightman's case to which I shall refer, and a reading of her Honour's remarks conveys to me that the issue was not explored before her. It was before me, and it requires examination. 33Of course, I sentenced David Weightman upon the facts emerging from his untested account to police. Moreover, there was before me psychiatric evidence bearing upon his culpability which was unchallenged. It is now apparent that that evidence was misleading. In both trials of the present offender, David Weightman acknowledged that the history and the description of his symptoms which he had provided to the psychiatrists were fabricated. 34The psychiatric evidence, emanating from two respected forensic psychiatrists, conveyed a history of poly-drug abuse, and auditory and visual hallucinations, since he was about 18 years old. The doctors diagnosed him as suffering from schizophrenia or, at least, a disorder of that kind: [17] of my remarks. The Crown prosecutor then appearing accepted that he might have been in the early phase of development of a mental illness at the time of the killings, and that that factor took the case out of the worst category which might have called for life imprisonment. I saw that as a proper concession, although I added that the psychiatric evidence conveyed "that the effect of that condition on his criminal behaviour would have been minimal": [20]. 35I also accepted that he was affected by drugs to a degree at the time of the killings, and that the combination of his mental condition and his drug use impaired his judgment and made him more susceptible to the influence of his older accomplice. I was also prepared to accept that he was to some extent influenced by his accomplice, "who conceived the idea of killing his parents and formulated the plan to put it into effect." I observed, however, that these matters could not significantly mitigate the gravity of his crimes: [21]. 36I accepted, "for what it is worth," that he hoped that his parents would be unconscious when they were asphyxiated and would feel no pain: [26]. I also accepted that he was genuinely remorseful: [24]. 37I took into account his pleas of guilty, his co-operation with the police in the admissions he made and his assistance to the authorities, that is, his implication of the present offender and his willingness to give evidence against him. I reduced the sentences otherwise appropriate by 30% in recognition of those factors. But for them, I would have imposed sentences aggregating imprisonment for 40 years. Because of them, I imposed sentences aggregating 28 years with an effective non-parole period of 22 years: [29] - [30]. 38The Crown prosecutor in the present case submitted that these factors properly led to a very different approach to the sentence of David Weightman from that required of the present offender. In particular, she argued that the fact that my undiscounted starting point for David Weightman was an overall determinate sentence of 40 years should not stay my hand in imposing a sentence of life imprisonment upon this offender. While acknowledging that the leniency I extended to David Weightman was in part based upon his deception, she maintained an argument that his criminality was significantly less than that of the offender. She emphasised the fact that it was the offender who actually killed both the victims, and she asked me to accept that it was he who had hatched the plan to kill them and that his much younger co-offender had participated in the plan under his influence. 39Those last propositions I cannot accept. It was David Weightman who stood primarily to gain from these murders. I do not suggest, of course, that the gravity of murders committed for financial gain should be measured by the magnitude of the financial benefit sought. However, the substantial inheritance which David Weightman expected, and his enjoyment of it after his parents' death, convey to me that he was in no sense a reluctant participant in these crimes. I have expressed misgivings about his evidence that the plan to kill his parents was raised by the offender and developed by him. However, as I have said earlier, the extent to which each of them contributed to the development of the plan has little or no bearing upon the assessment of their culpability. Even if it be accepted that he wanted no part in the killing of his parents and hoped that they would suffer no pain, this does him little credit. The fact remains that he was prepared to stand by while the offender killed them and, in the event, to assist in the killing of his father. It is, of course, also of significance that the victims were his adoptive parents, who had cared and provided for him. 40As is sometimes the case, this was a joint criminal enterprise in which the objective gravity of the parties' conduct was much the same, notwithstanding differences in the nature and level of their participation. From the passages of my remarks on sentence in David Weightman's case, it is apparent that in determining his culpability I gave little weight to the psychiatric evidence concerning his mental state at the time of the killings, to my finding that he was to some extent influenced by the present offender, and to his desire that his parents should be unconscious and feel no pain when they were asphyxiated. My finding that he was remorseful is difficult to sustain in the light of his subsequent admission that his subjective case was to some extent the product of deception. I did take into account his youth, which was appropriate and which remains a factor entitling him to a measure of leniency which the offender cannot claim. 41Given David Weightman's youth, and the fact that my assessment of the undiscounted aggregate sentence he should face was influenced, albeit to a limited extent, by material now known to be false, the present offender could have no justifiable sense of grievance if I impose upon him a somewhat greater aggregate sentence. However, justice demands an appropriate relativity between his sentence and the undiscounted sentence I proposed for David Weightman. To sentence the offender to imprisonment for the rest of his life, when David Weightman faced at most a substantial determinate sentence, could not be justified. 42All that said, I am at a loss to understand how the offender could have committed such dreadful crimes, given his background and general good character. The nature of his offences raises a question as to his prospects of rehabilitation, notwithstanding Dr Furst's favourable assessment. Nevertheless, the matters raised in Dr Furst's report support the conclusion, albeit a guarded one, that those prospects are reasonable and that he does not pose a danger to society. In any event, he faces a very long prison term. The effect of the sentences I intend to pass is that he will not be eligible for release on parole until he is in his early 70s, and the aggregate sentence will not expire until his early 80s. 43As the offences were committed in 2000, they precede the introduction of the standard non-parole period for murder and that provision does not bear upon this sentencing exercise. Mr Ramage referred me to a number of sentence cases involving serious offences of murder, extending over much of the previous decade. Reference to roughly comparable cases can be a useful exercise but, given that each case turns on its own facts, it is of relatively little assistance. Whether the pattern of sentence for murder has changed since 2000 was not a matter examined in counsel's submissions. Because of the exceptional gravity of the offender's crimes, I doubt that any such examination would have been of any benefit. Given the length of the sentences which I must impose, I would not find special circumstances and depart from the statutory proportion between sentence and non-parole period. Mr Ramage did not submit that I should. 44Although the murders were committed in the course of the same criminal episode, the gravity of each of them is such that there must be a significant accumulation of sentence. The sentence for each offence will be imprisonment for 40 years with a non-parole period of 30 years, and the sentence on the second offence will be accumulated upon the first by 3 years. The aggregate sentence, then, will be 43 years, with an effective non-parole period of 33 years, dating from 16 June 2006. The relationship of the effective non-parole period to the aggregate sentence is a little more than the statutory proportion, but no lesser minimum term would be sufficient to mark the offender's criminality. He will be eligible for release on parole on 15 June 2039, and the aggregate sentence will expire on 15 June 2049. 45Terry Mark Donai, for the murder of Pamela Weightman you are sentenced to imprisonment for 40 years, commencing on 16 June 2006 and expiring on 15 June 2046, with a non-parole period of 30 years, expiring on 15 June 2036. For the murder of William Weightman you are sentenced to imprisonment for 40 years, commencing on 16 June 2009 and expiring on 15 June 2049, with a non-parole period of 30 years, expiring on 15 June 2039.

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