R v Edwards [2003] VSC 510

Supreme Court of Victoria|2003-12-16|Before: GILLARD J.

Keith Martin Edwards, the jury has found you guilty of the murder of Vincent Vassallo ("the deceased"). He died on 25 December 2001. It now falls on me to sentence you. My task is to determine the facts consistent with the jury's verdict, and applying the principles of law concerning sentence, determine in the exercise of my discretion, what is a proportionate and appropriate sentence in the circumstances.

In relation to the sentencing process, I note the observations of the Court of Appeal in R (1998) 1 VR 359 at 366, where four members of the court said:

"Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single "right" answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the 'instinctive synthesis' which takes into account the various purposes for which sentences are imposed - just punishment, deterrence rehabilitation, denunciation, protection of the community - and which pays due regard to the principles of totality, parity, parsimony and the like."

At the outset it is necessary for me to determine the relevant facts consistent with the verdict of the jury. It is a trite proposition that the verdict establishes that the jury were satisfied beyond reasonable doubt, of each of the elements constituting the crime of murder. You gave evidence at the trial. Your records of interviews with the police, which were recorded, were tendered in evidence.

In the interviews and also in evidence given at trial, you gave a version of the events immediately leading up to the shooting. You shot the deceased with a shotgun hitting him in the lower part of the face, killing him instantly. You claim the shooting was an accident. You did not contest the deceased was killed, that you caused his death by discharge of a shotgun and that the act which caused his death was conscious, voluntary and deliberate. However, you said that at the time when you shot him, you did not have the necessary intention. That is, the intention of killing him, or the intention of inflicting really serious injury upon him. It is in this sense that you describe the killing as an accident.

You were charged with his murder on 25 December 2001, and you have been in custody ever since. Your defence at trial concerns the fourth element of the charge of murder, namely the intent at the time you caused the death. It was your case that at that time, you did not have any intent to kill or inflict really serious injury upon the deceased.

By their verdict, the jury were satisfied that at the relevant time, namely when you caused the death, you did so either with the intention of killing the deceased or with the intention of inflicting really serious injury upon him. In my opinion, the jury's verdict was inevitable. The facts incontrovertibly led to the conclusion that the discharge of the gun was a conscious, voluntary and deliberate act, directed towards the face of the deceased. That conduct was not an accident. The inevitable and direct consequence of the act was serious injury. The facts speak for themselves. The result was intended and the evidence amply supports the jury's verdict.

The verdict establishes all the facts which constitute the elements of the crime of murder, but there may be other facts which are particularly relevant to the question of sentence, which are not necessarily inherent in the verdict which I must consider. These would include amongst others, issues of aggravation and mitigation: see R v Prokopiec (1987) 7 ACR 116[2] at 119.

A judge's sentencing task is stated by the Full Court in R v Harris (1961) VR 236[3]4. Justice Lowe said at p.236:

"The responsibility of awarding punishment once a jury has convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not of course form a view which conflicts with the verdict of the jury. But so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. He has presided at the trial, and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgment of the seriousness or other character of the offence."

See also R v Webb ([1971] VicRp 16; 1971) VR 147 at 152-3 [4], and R v Hill [1979] VicRp 33; (1979) VR 311 at 312 [5].

In carrying out my task as the Trial Judge, I am not bound to take the most lenient view of the facts: see R v Harris supra at p.237[6] and R v Hill supra at p.312[7]. As the judge presiding at this trial, I have had the opportunity of considering the evidence, including evidence given by you, and forming an opinion as to the credibility of witnesses and the facts.

The Crown tendered in evidence your records of interview. You were interviewed twice on the night of the killing. I emphasise that the primary evidence is what is heard on the interview, and what has been seen and heard on a videotaped version. In my view the transcript does not provide the whole picture. It is necessary to hear the tapes and view the videotape because your demeanour is important when considering your statement that the killing was an accident. The evidence, including of course what you told the jury, has raised a number of issues which are not inherent in the verdict which I have to consider and determine.

In reaching my conclusion, I accept that matters which are adverse to your interest, and which are not inherent in the verdict must be established beyond reasonable doubt. On the other hand if there are circumstances in your favour, it is sufficient if those circumstances are proven on the balance of probabilities: see R v Storey supra[8] and R v Albrich [1999] HCA 54; (1999) 199 CLR 270. [9]The principles have recently been re-affirmed by the High Court in R v Cheong (2002) 76 ALJR 133.[10]

Turning to the facts. You were born in England on 5 November 1948, and are now aged 55 years. You lived mainly in London until age 40 when you came to Sydney in 1988 where you lived for about 12 years. You are not a Australian citizen, but are a permanent resident. Whilst in Sydney you worked as a painter and decorator and became friendly with a young man, Larry De Luca, who was working in a back packers centre. You had a flat nearby. Mr De Luca returned to Mildura in 1998. You and he kept in contact by telephone, and in late 2001, Mr De Luca suggested you should come to Mildura. Apparently you were lonely in Sydney and finding it difficult to make ends meet.

You arrived in Mildura in early November 2001. Your friend arranged through a friend of his, Anthony Ljubicic, accommodation in a picker's hut situated on the property owned by Mr Ljubicic and his parents. You friend also arranged employment with Mr Ljubicic. You settled in and became friendly with Anthony Ljubicic. On Christmas Day 2001, you were at the picker's hut. Mr Ljubicic arrived during the afternoon with his brother, Johnnie, who suffers from a mental disability. Mr Lance De Luca also arrived. You all had a general discussion in the hut. Later that afternoon you shot the deceased.

In order to comprehend the events of that afternoon, it is necessary to go back in time. Situated about 50 metres from the picker's hut is a house which had been occupied by Colin Clarke and his family. Some few weeks before Christmas he left the property with the intention of going to Queensland. The deceased had a friend, Amanda Gottschutzke. She wished to rent the property. An approach was made to Mr Ljubicic. An arrangement was reached on or about 18 December, pursuant to which Amanda Gottschutzke, was to rent the property from 29 December.

On Christmas Day, Colin Clarke and his family unexpectedly returned some time around lunch time to reside in the home. Some time later the deceased ascertained that Mr Clarke had returned, and he came to the property to speak to Mr Clarke and later to Mr Ljubicic. At that time, you, your friend, Lance De Luca, Anthony Ljubicic and his brother, Johnnie, were in the picker's hut. Mr Vasallo arrived, and so did Colin Clarke. Mr De Luca and Mr Ljubicic went outside and had discussions with both men which resulted in Mr Ljubicic informing Mr Vassallo that he would return to his home and obtain $100 to repay Mr Vassallo, being the amount of the deposit of rent that had been paid on or about 18 December. Mr Clarke also left. At that time Mr Vassallo was outside the pickers' hut, as was Mr Lance De Luca. It is fairly clear that Mr Vassallo at one point was annoyed by the change in the lease arrangements and raised his voice when discussing the matter with Mr Ljubicic and Mr Clarke.

On the evening of 22 December, you had obtained possession of a double barrelled shot gun from Mr Ljubicic. You had four small dogs and you were concerned with the presence of brown snakes in the area. A chicken wire fence had been erected around part of the pickers' hut, but you were concerned that the snakes would pass through the wire. You asked for and obtained possession of the shotgun from Mr Ljubicic. On that evening you requested Mr Ljubicic to give you a written authority to demand unwanted visitors to leave the premises. At that time, Mr Ljubicic was about to depart from Mildura to avoid any contact with his girlfriend, Colleen Nairn. He had decided to end their relationship.

You assisted him in preparing the authority. In fact you dictated some of the words in the authority. He left that evening returning late on Christmas Eve. By Christmas Day you had formed the view that the deceased showed a lack of respect for Mr Ljubicic and further that he was a bully. I am satisfied you did not like him.

Returning to the events of Christmas Day, you told the jury that you heard a car leaving and thought the deceased had left. You say that you did not hear what had occurred when Mr Ljubicic and Mr Clarke were there. You waited a minute or two and then looked outside. You observed that Mr Ljubicic's car had gone, and then you saw the deceased's van and saw him walking up and down. You told the jury he appeared to be talking to himself and seemed to be saying, "This isn't Colleen's fault, this isn't Colleen's fault." You told the jury, he seemed to be winding himself up and getting annoyed. You stated the deceased saw you and said, "Hello, what do you want?" And you replied, "Are you all right?" You stated he then said, "Yeah, why?"

You told the jury that you formed the opinion he was getting annoyed, and you said to him, "Well, we'll be happy when you get off the property." You stated that he flipped at that, he really became aggressive and said, "You can't tell me what to fucking well do." You stated you were getting a bit scared at that point; it was passing through your mind that he was a bully and bullied others. You had heard he was a boxer. You thought you better get the authority to request him to leave the property. And you then said, "I became scared about the way he had spoken to me." So you thought you would get the gun and scare him off.

You went inside and instead of collecting the authority, you picked up the gun, came out of the hut, stepped over a low fence, and said to him, "Come on you, get off this property, move." You said that you took a few steps forward, and suddenly the deceased came towards you saying, "I don't give a fuck for you or your gun," and you then said, "Suddenly the gun discharged just like that, and I was just absolutely shocked. He flew backwards, like he sort of flew back like that, and I was absolutely shocked. I couldn't believe what had happened."

Mr De Luca was present at the time. You gave evidence that you were not aware that he was there. His version is different to yours. Mr De Luca said that after Mr Ljubicic and Mr Clarke left, he and Mr Vassallo were outside talking and waiting for Mr Ljubicic to return. Mr De Luca was sitting on a box. Whilst they were talking you came to the door. At that stage you were near the edge of the hut. Mr De Luca heard the deceased say, "Gooday, Keith." Mr Vassallo walked towards you and you said, words to the effect, "Get off of the property." Mr De Luca stated you had a gun in your hand. You held the gun in front facing forwards towards Mr Vassallo. Mr De Luca then said, "Yes, Keith, it's okay, leave him, he's just waiting for the money. It's okay, Keith." Mr De Luca heard you say again, "Get off the property." He said he heard the deceased say words, either, "No," or "Why should I?" And then there was the discharge of the firearm.

Mr De Luca said in cross-examination that he did not think there was any anger. He thought there was more a stand-off between you and the deceased. He believes the distance between the firearm and the deceased was about one to one and a half metres at the time of discharge, although he said he was not looking at you. He was trying not to focus on what he perceived to be an ugly situation. He does not support your version that the deceased was behaving in an aggressive manner towards you, and I have no hesitation in accepting his version. The evidence establishes that at the time when you discharged the gun, the deceased had his hand in his right pocket, and it would appear was reaching for a cigarette. You do not suggest that he was doing anything with his left hand.

Your conduct immediately after the shooting was that of a man who appeared calm and rational. However, I do accept that you were suffering shock. On the other hand, the conduct is hardly consistent with an unfortunate tragic accident, even taking into account you were suffering shock.

Mr Colin Clarke returned to his home immediately after the shooting and as he alighted from his vehicle, you came from around the corner of his home, went to him and gave him $50 for a car which you had bought off him, and Mr Clarke said, "Don't worry about that." And then you said, "I accidentally shot Vince." Mr Clarke asked whether you were sure, and you stated, "Yes." He asked you whether you had telephoned the police, and you said you had. He thought you were a bit shaken up. You then commenced to walk back towards the picker's hut with Mr Clarke, and he observed you place a sheet over the body. He then observed you to take a box and move in the direction of the row of vines near the picker's hut and deposit the box.

In your evidence you said that you collected up some private papers and books and articles on Egyptology, which you hoped to hand over to Mr Ljubicic. You later asked Mr Ljubicic to look after your dogs. Your whole conduct suggests a person resigned to going into police custody and finalising a number of outstanding matters. You have given evidence disputing some of the evidence given by Mr Clarke, and I reject your version. I accept his evidence.

The second person to have contact with you immediately after the incident was Mr Ljubicic. He observed you and Mr Clarke walking along the driveway, and you said to him that you'd shot Vince, and when he asked why, you said, "He was picking on me," or something like that. He said at that stage you appeared somewhat distraught, and he observed that from the sound of your voice. The police arrived fairly promptly and you told Senior Constable Mailes that, "I'm your man, I did it. It was a bloody accident. Do you want me to show you where the gun is?" The senior observed that you appeared to be pale and ill and looked shocked. You were then taken to the Mildura Police Station where you had a recorded interview, which commenced at 11 minutes past six. The interview concluded at 6.30, and at 1.17 the following morning, you were interviewed by Detective Sergeant Humphries of the Homicide Squad. The interview was videotaped.

The Crown case can be briefly summarised. It was asserted that the act of discharging the gun was a conscious voluntary and deliberate act. In order for you to fire the gun, you had to load it, retrieve it from your hut, remove the safety catch, and apply a 2.2 kilogram pressure to the front trigger, which fired the cartridge in the right chamber. The evidence clearly establishes it was a conscious, voluntary and deliberate act. You told the police that you pulled the trigger. There was no dispute concerning the act which caused the discharge. It was a willed act by you. You told the police that you were not really thinking at the time. There was no dispute that this element of the charge of murder was proven by the Crown. It was not contested at trial.

The Crown says that the facts speak for themselves. You fired in the direction of the deceased. It was clear by your willed act that you either intended to kill him, or at least intended to cause him really serious injury. It was the prosecution's case that you discharged the gun when the muzzle was either in contact with the face, or a very short distance away from it, not exceeding five millimetres. The Crown also says that you were antagonistic towards the deceased and that you disliked him. Also you thought that he showed a lack of respect for your boss, Mr Anthony Ljubicic, with whom you'd formed a friendship. You had observed what you described as bullying Mr Ljubicic. Your attitude to Mr Vassallo was said to form a motive for and an explanation of the shooting. The evidence that the muzzle of the gun was in contact or very close to the face of the deceased, was inconsistent with it being an accident.

There were three disputed questions of fact for determination of the trial. They are also relevant to the sentencing exercise. They were (i) whether you had disliked the deceased and had formed an antagonistic attitude towards him; (ii) The distance between the muzzle of the shotgun and the deceased's face at the time of discharge; (iii) Whether the shooting was an accident as you asserted.

In my opinion the evidence clearly establishes that you disliked Mr Vassallo. That you did have an antagonistic attitude towards him. I have no hesitation accepting the evidence of both Mr De Luca and Mr Anthony Ljubicic which established beyond reasonable doubt that you were antagonistic towards Mr Vassallo. Your dislike was grounded in your belief that Mr Vassallo bullied your friend, Anthony Ljubicic and showed him a distinct lack of respect, bearing in mind that from time to time he employed the deceased, and the deceased's lack of morals. Evidently he told you he had no qualms about having a sexual relationship with married women, and you disapproved of his conduct. Further, you'd had words with Colleen Nairn about her children, and this had been the subject of words between you and the deceased, who evidently was a friend of Ms Nairn's.

Secondly, I have no doubt that the muzzle of the gun was very close to the deceased's face at the time of discharge. The pathologist, Dr Robertson, gave evidence to that effect. She is a very experienced pathologist, who has investigated a substantial number of deaths caused by firearms. Senior Constable Pringle, a ballistics expert, agreed. He also has had considerable experience in this area. Both opined the view that the gun was either in contact with the face, or at a very close distance of no more than five millimetres.

They base their conclusion on the irrefutable evidence observed of the wound to the face. There was evidence of blackening around the circumference of the wound which was due to the heat discharge of the pellets combined with the carbon powders that came out of the barrel. Secondly, there was substantial evidence of gas tearing beyond the circumference of the entry point, and this is a well known phenomenon of the discharge of a shotgun close to the face, in that the gas discharges causes the skin to pull away from the entry point. Thirdly, Dr Robertson reconstructed the face as best she could, and this demonstrated an entry point. Finally, there was little dispersal of shot. A substantial number of pellets were found in and around the wound.

You did not explain what you meant by the word "accident". You repeated it a number of times to the police during the interviews. Accident in the context of this incident could relate to the act of discharging the gun and/or the intent you had at the relevant time. It is clear that you are not saying that you accidentally pulled the trigger. You were conscious. You were under no pressure from any physical or mental source, and you deliberately pulled the trigger. You stated you were not thinking at that time, but that does not make it an unwilled act. It follows that when you talk about accidents, you mean "accident" in the sense that you did not intend to kill or cause any serious injury.

In the light of the antagonism that obviously existed in your mind towards Mr Vassallo, the irrefutable evidence from the pathologist and the ballistics expert that the gun was discharged very close to the face, I have no doubt whatsoever it was not an accident. The jury concluded that you either intended to kill, or at least intended to cause really serious injury. Once it is accepted that it was a voluntary, deliberate and conscious act, given the evidence of antagonism, and what was observed in and around the wound, the expert evidence that was not contested in relation to observations made, and what one sees in a wound when gunshot is discharged close to the face, in my opinion the jury's verdict was inevitable.

All murders are serious. Some are more serious than others. At one end of the scale you have a killing brought about by poisoning of a victim over a prolonged period. Such actions are the consequences of careful thought and planning. Without doubt, probably one of the most serious forms of murder.

At the other end of the scale is the euthanasia killing. The question is the gravity of this murder.

The sentencing principles which guide a court are found in the common law and statute, particularly the Sentencing Act 1991. The sentence for murder is either life or imprisonment for such term as is fixed by the court. See s.3 of the Crimes Act 1958.

The purposes of criminal punishment are various, and include protection of society, deterrence of the offender and of others, retribution, denunciation and rehabilitation. The weight to be attached to each factor depends upon the particular circumstances of each case. In the end result, the punishment must fit the crime. In other words, the sentence must be appropriate, and proportionate to the gravity of the crime considered in the light of the objective circumstances. I am bound to consider the matters set out in s.5 of the Sentencing Act 1991, and carefully weigh all relevant matters.

The court must consider the nature and gravity of the offence, your degree of criminal culpability and responsibility, deterrence, denunciation of your conduct, any aggravating or mitigating factors, and also any other relevant circumstances. Remorse if present, is a relevant factor to take into account.

Taking into account the principles of sentencing, the relevant statutory provisions, the maximum sentence prescribed, and all other relevant circumstances, both aggravating and mitigating, the task "of a sentencing Judge is to pass such sentence as in all the circumstances relating to the offence and for the offender is that which he regards as an appropriate sentence." : see R v Young [1990] VicRp 84; (1990) VR 951 at 954 [11]. The Full Court said that:

"The purposes of the punishment are manifold" and hence, the task of a sentencing judge has never been regarded as capable of being confined without injustice within rigid formulae."

The High Court summarised the principles in Veen v R No.2 (1998) 164 CLR 456 at 476[12]. The court emphasised that sentencing was not a purely logical exercise, the difficulty in giving weight to each of the purposes of punishment, that the purposes overlap and sometimes the guide posts of sentencing point in different directions. In the end the punishment must fit the crime. The sentence must be commensurate with the seriousness of the crime.

As the High Court said in Orr v R [1989] HCA 33; (1989) 167 CLR 348 at 354 [13]:

"A basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances."

The starting point in the sentencing exercise is consideration and appraisal of the gravity of the offence. The seriousness of the crime is first measured by the maximum penalty imposed by the law, secondly, the circumstances. On any view, the commission of this crime was serious. The gravity of the offence is the starting point and the court is obliged not only to denounce your criminal conduct, but also take into account general deterrence.

The sentence must serve not only as a sufficient deterrent to you, but to others who are of a like mind, and further must provide protection for the public. One of the fundamental purposes of punishment is to protect society. Retribution is important. In addition the court must consider matters personal to you, your character, your history, your conduct, your future, and in particular your prospects of rehabilitation. Any mitigating factors concerning the offence are also relevant and of importance.

Section 5(2) of the Sentencing Act enumerates the matters that the court must have regard to. Guided by the principles, the court considers all relevant circumstances, including both aggravating and mitigating factors, and pronounces a sentence which is a result of the instinctive synthesis of those matters. That is the appropriate sentence. That does not mean that the process of reasoning is one of guesswork, but indicates the complex process involved in sentencing by which after considering all relevant matters, the court arrives at an appropriate sentence. It is not permissible in this State to reveal the undiscounted term of the imprisonment. I refer to R v Nagy (1992) 1 VR 637[14].

I do not believe that specific deterrence plays any part in this sentencing process. You have led according to the evidence, a blameless life to the age of 53 years, and I have no doubt you are intelligent enough to realise what you have done. By the time you are released you will be a much older, and hopefully wiser, person. However, general deterrence is important and cannot be overlooked and must be taken into account.

The jury's verdict does not determine whether you had the intent to kill or the intent to cause really serious injury. The evidence does suggest that you had an intention to kill or to discharge the gun so close to his face that death was the inevitable result. On the other hand, you described it as an accident, and the question does arise, whether it was an emotionally charged act of stupidity that went disastrously wrong. There were a number of pieces of evidence which tends to the conclusion that you intended to kill the deceased or discharge the gun towards his face.

There is the evidence which I accept that you disliked the deceased. You were increasingly antagonistic towards him and expressed as much to two close friends, Mr Ljubicic and Mr De Luca, that you did not like him because of his attitude towards your friend, Mr Anthony Ljubicic, in that he showed no respect to him. And, secondly, you thought he appeared to bully him. Your level of dislike is to some extent also supported by some of the evidence of Colleen Nairn and Amanda Gottschutzke. You did not like the fact that Amanda Gottschutzke was moving into the house near the hut because of her apparent friendship with the deceased.

Secondly, there's the evidence of what occurred immediately after the shooting. The evidence hardly supports your version that it was a horrible accident, even making allowance for shock. As I have already stated immediately after discharging the gun you took hold of Johnnie Ljubicic, removed him from the scene. You walked up to the house where Colin Clarke was drawing up in his motor car. You handed him the $50 as I have already said, and then told him you had shot the deceased. You then returned to the house, gathered up your books, intending to give them to Anthony Ljubicic. You say you then returned to the hut when you could not attract the attention of Mr Clarke. On the other hand, he gave evidence which I accept, that you appeared to be moving carrying a box down the row of vines. He did not see what was in the box.

Thirdly, after Mr Ljubicic returned, you approached him and asked him to look after your dogs. Accepting that there was a degree of shock at the time, your conduct was that of a man calmly considering the situation, realising you were about to go into custody and attending to your affairs. Although you told the first policeman on the scene it was an accident, nevertheless at no stage at the scene did you express any remorse for the victim.

The next category of evidence is what you said in your records of interview, and again I emphasise that the primary evidence is the audio tape of the first interview, and the video tape of the second interview. It is your voice and your tone of voice and the way you answered questions, which I take into account. Again your conduct in these records of interview is inconsistent with a horrible, unfortunate accident. Again you showed no remorse. Your first interview went for half an hour and you tentatively made suggestions leading to the conclusion that you may have some defence for what you did, such as provocation or self defence. You sought to put the deceased in a poor light, suggesting he was aggressive, and not only that, that he had some relationship with Ms Nairn.

Some six and three quarter hours later you were interviewed by the Homicide Squad, and by this time you had time to collect your thoughts and give consideration to what you were going to tell the Homicide Squad. Again we find evidence of you tentatively raising things that suggest you might have some defence. And, again, even though you express some thoughts about the terrible thing that happened, again you showed no remorse for the victim.

Your conduct demonstrates a person who was carefully thinking of what he was saying. Indeed, you were very alert. On at least two occasions you corrected the interviewer as to the facts. You also attempted to suggest aggression, indeed, ever increasing aggression, on the part of the deceased. You also sought to distance yourself from the deceased at the time when the gun was discharged. Your whole conduct that night, even allowing for the lateness of the hour and the shock of the incident, hardly portrays you as a person absolutely mortified by the unfortunate accident bringing about the death of another person.

I found Mr De Luca a sensitive person, and in my view an honest witness. He is a friend of yours. He did not support your statement that Mr Vassallo was acting aggressively, and further he says, and I accept his evidence that he attempted to placate you just prior to the discharge of the gun. In addition there is evidence that you gave that you went back inside and obtained possession of the gun and brought it out. It was a completely unnecessary act. If you felt any concern about Mr Vassallo, you could have gone back into your hut and shut the door. I am satisfied he was showing no signs of aggression towards you prior to coming outside.

And, finally, there is the overwhelming evidence of the pathologist and the ballistics expert which had the muzzle of the gun very close to the face of the deceased. You informed the police on Christmas night that you had the gun facing towards the deceased in a slightly upward motion. You told the jury in this court that you were swinging the gun from left to right, in no particular direction, and it just happened to go off.

In my view, what you told the jury was a lie. Further when you gave evidence you stated that you had thought more about the question of how far you were away at discharge, and you thought you were about six feet away when you fired the gun, rather than the ten feet you told the police on Christmas night. Either version is quite contradictory to the pathologist and the ballistics expert evidence which I accept. Whilst it may not necessarily have been in contact with the face, it's clear that the muzzle of the gun must have been very close to the face at the time of discharge. You aimed the gun at the face of the deceased. As I have already stated, I do not accept that he was acting aggressively towards you prior to the shooting. In my opinion, the facts lead to the conclusion beyond reasonable doubt that when you picked up that gun in your hut, and came outside, you intended to either kill Mr Vassallo or discharge the gun at him in such circumstances where the most probable result would be death.

This puts the murder in the more serious category. On the other hand, I am prepared to give you the benefit of the doubt that you did not plan his murder. I accept that you obtained the gun for the purpose of killing snakes. You did not obtain it from Mr Ljubicic with any intent to harm any person.

The evidence shows that you were fond of Mr Anthony Ljubicic, that you did not like Mr Vassallo and the way he treated him, and you felt sympathy for Mr Anthony Ljubicic. You believed that you had authority at the time to order any person off the property. Further you had the gun which gave you a degree of power. I think the act of shooting was the culmination of emotional build up which exploded in a stupid senseless act on your behalf.

I accept that although it was one of the more serious examples of murder, nevertheless it was the result of an emotional build up which led you to do something completely out of character. On the other hand, as I have already stated, I am satisfied beyond reasonable doubt that when you went back inside that hut after seeing Mr Vassallo outside the hut, you had formed the intent of discharging the shotgun at Mr Vassallo.

In reaching that conclusion I rely upon a number of pieces of evidence, which I very briefly summarise. First, the ever increasing level of antagonism. Secondly, the authority which you had, which gave you a sense of power. Thirdly, the steps necessary to discharge the gun. Fourthly, the evidence of experts which I prefer to any contrary evidence, of the closeness of the muzzle to the face. Fifthly, that when you went inside to retrieve the gun, you came outside and you approached the deceased in an aggressive way, ordering him off the property, and then discharging the gun. Events which would have taken less than two minutes.

The time between you getting over the fence and discharging the gun would have been measured in seconds. Sixthly, I accept the evidence of Mr De Luca, that the deceased was not acting in an aggressive manner in a physical sense towards you.

Seventhly, in my view, you were the one who was showing aggression and you were the one who was preparing to confront Mr Vassallo. Eighthly, what you told the police in your various interviews. In particular, I draw attention to Question 73 in Exhibit PR13, which is the video taped interview. You were asked about the slip of paper that had been written out for you, and you then said, "Yeah, yeah, yeah. I don't know - I don't know, sir. I don't know, it was - it was there to do with that with - yeah - but I just don't know, sir. I think - I just thought - well, this geezer's a bully, there's only one way to treat bullies, and that's don't even tolerate their performance, just off like you know, and I had that in my mind more than anything, so that's the only thing I can really think of." This was your explanation some seven hours after the event.

It does amply support that you were the one who was aggressive and prepared to confront Mr Vassallo and not the other way round. However, having said that, and whilst I conclude that you had formed the intent, and carried it out over a matter of minutes, I accept that this murder was the result of a mix of emotional factors which led you to do something completely out of character. I accept the evidence that you are reclusive, a degree eccentric, intelligent, and above all, a peaceful person, but on this day your emotions took control, albeit for a short period, and this led to this terrible tragedy.

Three Victim Impact Statements were tendered in evidence. One from the deceased de facto wife of many years, and two from daughters of the deceased. None of the facts stated in them were contested, although it was pointed out some of the material was not relevant. Of course, in considering these Victim Impact Statements, I will ignore material that is irrelevant. On the other hand, the relevant material shows graphically the emotional scarring caused by the killing, to these persons. You have through your counsel told the court that you have accepted the terrible effect the death has caused, and you are sorry for the grief you have caused the makers of the statements. I do take into account the impact statements in determining the appropriate sentence.

The sentencing process requires the court to not only take into account matters that are aggravating, but also to take into account matters personal to you, and any other mitigating factors. You are now aged 55 years, and the period of imprisonment will cover the twilight period of your life. You have led a blameless life to Christmas Day 2001. Remorse if present is a relevant factor. S.5(2) of the Sentencing Act 1991 provides that the court, "May have regard to the conduct of the offender on or in connection with the trial, as an indication of remorse, or lack of remorse on his or her part."

Remorse is a relevant factor to take into account, and that is remorse from the moment of the commission of the offence, to today, and if it is present, is relevant to the sentence. I, as I have already indicated, found your interviews on Christmas night somewhat surprising in light of what you had done, and your statement that it was an accident. Yet at no point did you express any sorrow for the victim who you had cruelly killed at the age of 52. Giving evidence again you did not give any indication of any remorse.

You said at trial that there was a degree of alleged aggression by the deceased just prior to the shooting, and you told the police as such. In my view that was a lie. You took every opportunity in the course of those interviews to criticise the deceased and make out that he was a potentially aggressive person. You also lied at trial that you were swinging the gun from side to side just prior to discharge, and also you were less than frank about the distance between the muzzle and the deceased's face at the time of discharge. Your attitude throughout is hardly consistent with an accident.

You were seen by a consultant psychologist, Mr Ian Joblin, who provided a report to this court. In that report, he expressed the following view:

"He did indicate however that he is 'totally remorseful', for the death of Mr Vassallo. Mr Edwards lamented that he did not have a better education to express how he feels about the death of Mr Vassallo. He did indicate his 'deeper sorrow'. I felt that his attitude included remorse. He does not seem to minimise the seriousness of the situation. He lamented that he was involved in such a violent offence and he indicated that he has led his life as a pacifist."

Mr Joblin also expressed a similar view in the last paragraph of his report.

You may be remorseful today, but I do not accept that you have shown any remorse prior to the jury's verdict. Your post-incident conduct, even making allowances for shock, your interviews with the police, especially the second one, and your evidence at trial all provide cogent evidence contrary to the suggestion of any remorse.

Having said that, I otherwise accept what Mr Joblin has written in his report, and in particular, I note his observations as to your intelligence. He described you as eccentric and reclusive, but he also noted that you had a good intellect. I have little doubt that you have no difficulty at all expressing your views, Mr Edwards, as indeed was so clearly demonstrated when you gave evidence in this court. I do not accept your suggestion to Mr Joblin that you did not have the necessary background to enable you to express remorse, and I do not find that you had any remorse prior to the jury's verdict.

Your counsel submitted there are a number of mitigating factors. It was submitted that there was no pre-planning of this senseless tragedy. It was a stupid act done on the spur of the moment in that it was all over in a matter of minutes. I do agree with the submission and it is a factor that I carefully take into account.

You have no prior convictions. You reached the age of 53 years without blemish, and you are a sensitive, quiet and retiring person. You had up to that point been of good character. I accept that you are not a violent person, and I do take these factors into account.

In addition your counsel emphasised your age, which is now 55. I do take that into account. The period of punishment will cover the later years of your life, and I agree with Mr Meredith that an older man in the gaol system does not fit the usual profile of a prisoner, which will not make prison life easy, if ever it could be.

I accept the specific deterrence is irrelevant, and I also accept that your prospects for rehabilitation are excellent. I have carefully considered all that your counsel has put to the court. I have also carefully considered the matters stated by the learned Crown Prosecutor.

After carefully weighing all relevant matters, I convict you on the count of murder in accordance with the verdict of the jury, and sentence you to a period of 19 years imprisonment.

It is now necessary to consider whether there should be a minimum period of imprisonment. Under s.11(1)B of the Sentencing Act 1991, the court is bound to fix a period during which the offender is not eligible to be released on parole, unless there are particular circumstances which make the fixing of such a period inappropriate. In my view the general rule should apply and I will fix a minimum period.

It must be borne in mind that the minimum period is part of the sentence and the court is concerned when fixing that period to determine what is the appropriate period that you should be imprisoned. I refer to the observations made by the Court of Appeal in R v Chan (1994) 76 ACR 252 at 255[15]. As the court said on that occasion there should not be too great a disparity between the sentence and non-parole period, however, the period is very much a matter of discretion for the Sentencing Judge.

"What is appropriate must depend very much on the circumstances of the case. The exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion." (1984) 154 CLR606 at 610[16].

"The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom when appropriate, once a prisoner has served the minimum time that a Judge determines, justice requires that he must serve, having regard to all the circumstances of his offence." (1984) 58 ALJR 367[17].

The same factors which are taken into account on the head sentence are also relevant, and have to be weighed carefully in fixing a minimum period. The weight which should be attached to each particular relevant matter depends upon the circumstances.

As a general rule, the factors are favourable to the prisoner are given more weight. That is mitagatory factors, the risk to the community upon release and rehabilitation: see the cases of Iddon & Crocker v R (1987) 32 ACR 315 at 325[18] and Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 at 530-2 and 536-8[19].

The task is not concerned primarily with your prospects of rehabilitation, but a balancing of the various interests of the community which of course does also include rehabilitation: See Krasnov & Anor v R (1995) 82 ACR 92 at 99[20]. As I have already said, your prospect for rehabilitation is excellent. Having carefully weighed the relevant matters it is my opinion that the minimum period during which you are not eligible to be released on parole is 15 years.

The Crown applies, pursuant to s.464ZF of the Crimes Act 1958, that the prisoner provide a sample in the form of a saliva sample. The application in fact is made by a member of the police, namely, Detective Sergeant Humphries. The application is not opposed and indeed as I understand it, it is consented to. The court has to be satisfied that such an order should be made. The first matter to consider is whether the prisoner has been found guilty of a forensic sample offence. That pre-requisite has been satisfied. Secondly, the type of sample required must be specified, and in this case, a saliva sample which is an intimate sample: see s.464(2) of the Crimes Act. Thirdly, the court must take into account the seriousness of the offence, and that in all the circumstances, the making of such an order is justified. I am prepared to make the order. The offence is extremely serious. The order is not opposed, and indeed consented to. In my view, the interests of the public require that the order be made. I am prepared to make the order.

In addition, you have been in custody for some period of time, namely from Christmas Day 2001, and it is necessary for me to make a declaration pursuant to s.18(4) of the Sentencing Act 1991. You have been in custody since that date and the period is 721 days, including 25 December 2001 and today's date.

(1) That Keith Martin Edwards be convicted of the offence of murder of Vincent Vassallo who died on 25 December 2001 in accordance with the verdict of the jury.

(2) That he be sentenced to a period of 19 years imprisonment.

(3) That the minimum period during which the prisoner is not eligible to be released on parole is 15 years.

(4) That the court declares pursuant to s.18(4) of the Sentencing Act 1991, that the period be reckoned as already served under the sentence is 721 days including today's date, and the records of the court should note that fact, and the fact that the declaration was made.

(5) That upon the application of Detective Sergeant Darren Humphries, I order pursuant to s.464ZF(2) of the Crimes Act 1958, that Keith Martin Edwards undergo a forensic procedure for the taking of saliva samples in accordance with sub-s.(30)A of Part III of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database.

Mr Edwards, I should inform you that the police have the right to use reasonable force to take that sample of saliva, and that if you were to oppose the obtaining of such a sample, reasonable force could be used. Of course if you consent to the procedure then it will not cause you any pain.

HIS HONOUR: Ms Pullen, the shotgun, I take it that that will be retained by the police?

MS PULLEN: Yes, that's so. I believe the appropriate abandonment form by the owner has been signed, that's Mr Ljubicic senior. The police will keep that in their custody as per the usual procedure.

HIS HONOUR: Yes, we will hold on to the exhibits for the period of appeal anyway. You will retain the shotgun? It will have to be retained for that period.

MS PULLEN: Absolutely, it's a question of - yes, thank you.

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Judgment (113 paragraphs)

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Cases Cited (8)