R v Fletcher

Supreme Court of NSW|2020-09-29|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Legal Aid Commission File Number(s): 2018/390848

Judgment

HIS HONOUR: A person who I will be referring to by the pseudonym "Fletcher" has pleaded guilty and is to be sentenced for the murder of Mr Phillip Steele.
Phillip Steele was 60 years old and lived with his brothers, Gary and Trevor, in Lonus Avenue, Whitebridge, a southern suburb of Newcastle. Mr Steele was killed in their home in horrific circumstances in the early hours of Monday 17 December 2018.
Murder is punishable by a maximum penalty of imprisonment for life. There is also a standard non-parole period, which in the circumstances of this case is 20 years.

The offence

The three men arrived at Mr Steele's home at Whitebridge sometime before 2.30am (Monday 17 December 2018). After alighting from the car, the offender was given a piece of black fabric to cover his face and a pair of gloves to wear. All three men were disguised in this way. There was a baseball bat in the car that the offender took with him. [1] The three made their way to the rear of the house.
Phillip Steele occupied a bedroom at the front of the house. Gary Steele occupied another bedroom; he was unwell and he moved about with the aid of a walking frame. Trevor Steele had a bedroom and his own lounge area at the rear of the house.
Entry was first gained to the house by Garvey climbing through a window into Trevor Steele's bedroom. The offender said that he helped to position a chair for Garvey to climb up to the window. [2] It was at this point that the offender saw Garvey produce the "knife". (It is also referred to as a machete.)
It is an agreed fact that the offender was a party to a joint criminal enterprise with Garvey and Thompson to rob Mr Steele of drugs whilst armed with offensive weapons, namely a machete and a baseball bat. On seeing the machete at around the time of entry to the home, the offender contemplated the formation by Garvey of an intention to cause really serious harm (one of the mental states required for the offence of murder).
After Garvey had entered, Thompson climbed through the window, followed by the offender. The written submissions for the offender concede that a physical altercation inside the premises had commenced by the time the offender entered. [3] Trevor Steele fled further inside the house, pleading that the intruders not hurt him. He ran to Phillip's bedroom, yelling, "People are here, and they have knives". Phillip immediately woke, jumped out of bed and ran into the hallway. Trevor remained in Phillip's bedroom.
Phillip Steele grabbed Garvey around the neck and the two wrestled up and down the hallway. They ended up on the floor. Garvey stabbed Phillip multiple times with the machete and he was also struck multiple times with the baseball bat. The offender later told police that Garvey had called out "Can you help me up" and he and Thompson in turn struck the deceased with the bat. [4] In his oral evidence, the offender instead maintained that he was the one at all times who wielded the baseball bat; Thompson never had it in his possession. He said that he struck the deceased with the bat to the shoulder and back area three or four times. [5] (See more about this aspect of his account below.)
Trevor Steele was still in Phillip's bedroom. He felt someone trying to open the door but he held onto the handle to prevent anyone entering. He rang triple-0. He heard Phillip yelling out something and then things went silent.
Gary Steele had been woken by the noise at the beginning of the incident in Trevor's room. He located his walker and went out into the hallway. He saw two of the offenders trying to break into Phillip's bedroom; one of them was holding the machete and the other the baseball bat. One of the offenders asked Gary Steele how to get out. The three intruders then left through the rear window.

Aftermath

Gary Steele also rang triple-0. Trevor let himself out of Phillip's bedroom when he heard Gary's voice. The pair saw a large amount of blood throughout the house. They heard Phillip calling out for help. They found him in Trevor's lounge room lying on the floor, semi-conscious and bleeding heavily.
Gary and Trevor tried their best to administer first aid, including tying a tourniquet around a very large cut to Phillip's upper arm. The phone connection to triple-0 was still open and Phillip could be heard saying, "I never thought it would come to this. Not for a couple of thousand dollars". Trevor asked, "So was this over drugs" and he replied, "Yeah, drugs and me money".
Police and ambulance officers soon arrived. Phillip received treatment which continued on the way to John Hunter Hospital but, tragically, it was to no avail. An autopsy was conducted on 19 December 2018. The direct cause of death was multiple incised wounds with blood loss. There were 23 incised wounds and 28 separate areas of blunt force injuries noted. There is no evidence as to how much of the blunt force injury was caused by being hit with the baseball bat.
The three offenders fled but police were quickly on the scene. Thompson was driving and a police pursuit ensued. Ultimately, the police lost sight of the car and it was dumped in bushland at Charlestown. The three offenders fled on foot. Later that night the car was set on fire by the brother of Garvey's girlfriend at Garvey's request.
The offender fled through the bush and returned to his family home in Charlestown. He put his clothes in a plastic bag and sprayed them with some form of disinfectant because of the smell. Bloodstains on the clothing and his shoes were later found to contain the DNA profile of the deceased.
The offender was arrested at his home on 19 December 2018. He was taken to a police station and agreed to participate in a recorded interview. The agreed facts include that the offender was "cooperative with police and expressed remorse for his actions".

The offender's police interview

Counsel for the offender asked that the entire recording of the offender's police interview be played at the sentence hearing. It extended to almost two hours. Aside from the content, it is apparent that the offender appeared to be a very immature and unhealthy-looking young man. His demeanour was consistent with someone addicted to the drug methylamphetamine in the form of "ice". He also appeared undernourished and sleep-deprived.
Another benefit of viewing the recording was that the offender's remorse was plainly evident. The enormity of what he had involved himself in and the horrendous consequences for the family of the deceased had clearly dawned on him. He was asked in his evidence at the sentence hearing whether he was ashamed of what he had done and he replied, "ashamed is not the word"; he said he was "utterly disgusted". [6] This was evident from his demeanour in both the police interview and the witness box.

The offender's version

The broad theme of the account given in the offender's police interview was that he accepted an invitation by the co-offenders to enter the victim's home and steal property from him on an understanding that, while there might be intimidation, there would be no physical violence. However, as it became apparent to him that there might be violence, he felt he could not withdraw because of his fear of Garvey. He did not know Garvey well but knew something of his violent reputation, including that he had stabbed people in the past. He said, for example, "I'm pretty scared of him" and he did not think he could pull out because "I felt like [if] I pulled out … Jeremy would have got quite angry … and might have think … 'You're gunna dog on me'." [7]
Another aspect of the offender's version to the police was that he and Thompson shared possession of the baseball bat during the incident and that the offender had not used it to strike the deceased. He disclosed in his evidence at the sentencing hearing that he had not been truthful in this respect. He explained that what he told police was an attempt to downplay his role because he "didn't realise how much trouble [he] was actually in" and was "scared at that time of being completely honest". [8]
The criminal records of the two co-offenders were tendered although only that of Garvey was submitted to be relevant. I am prepared to accept what the offender has said about what he believed about Garvey's conduct in the past. Whether he was aware of what actually appears in the criminal history is not apparent so I do not see how that document assists.
Two expert reports that are before the Court include a claim by the offender that he was scared of his co-offender Garvey. He told Dr Furst, forensic psychiatrist, that "he's a scary bloke" and "I was worried about pulling out because of what he would've done to me". [9] He said something similar to Dr Seidler, forensic psychologist. [10]
He admitted to having had sole possession of the baseball bat. He took it from the car at Garvey's request, entered the house with it and used it to strike the deceased three or four times in order to force him to release his grip on Garvey. He denied striking with full force, and said that he stopped once the deceased let go of Garvey.
He denied a suggestion by the Crown Prosecutor that he was being untruthful in his evidence in order to "write [Thompson] out of the script". He claimed that he had realised he needed to "be honest with myself and just be completely truthful about what happened that night". [11]
He also admitted to helping Garvey position the chair used to climb into the house, despite telling police that Garvey had jumped through the window. [12] He agreed with the Crown Prosecutor that he chose to enter the house, armed with the bat, knowing that Garvey had drawn a blade and that the occupants were resisting. [13] He acknowledged that he had not actually been threatened; he wished that he had run away, but feared at the time that he would have been threatened had he declined to enter. [14]

Objective seriousness of the offence

The gravity of the crime of murder is self-evident and this is a serious example of its type.
The offender was one of three men who broke into Mr Steele's home in the early hours of the morning. The house was not only occupied by Mr Steele but also by his two brothers, one of whom was unwell and moved with the aid of a walking frame. The occupants were confronted with three intruders, each with the intimidating appearance of being disguised with gloves and facemasks, one of whom was armed with a knife or machete and another with a baseball bat.
This was no ordinary break and enter; it was a targeted home invasion with the objective of overcoming an older man for the purpose of robbery. It is the type of crime that strikes fear in people who value the sanctuary of their home.
On the evidence before me, the idea to carry out the home invasion was Garvey and Thompson's and the offender was invited to come along. His liability is on an extended joint criminal enterprise basis that arose at the very point of the invasion when he became aware that Garvey was armed with a machete/knife. The offender then foresaw the possible intentional infliction by Garvey of grievous bodily harm. It is significant that it was after seeing Garvey's weapon and realising what Garvey might do that the offender continued with his commitment to the enterprise and entered the premises.
The offender's evidence was that he initially agreed to participate when he understood that no harm was to come to anyone and no weapons were to be used aside from provoking fear. He claimed that when he realised there was more to it than that, including when he saw that Garvey was armed with a knife, he continued to be involved because he feared what Garvey might do to him. He understood that Garvey was a person prepared to use a weapon and who had stabbed people in the past. He agreed, however, that Garvey had not threatened him with violence if he did not participate. I take it that the offender continued to involve himself because he did not have the strength of will (and perhaps the maturity and good sense) to withdraw.
The assault upon the deceased was manifestly brutal. There were 23 incised wounds and 28 areas of blunt force injuries over the head, torso and limbs. The ferocity of the attack is graphically illustrated by the crime scene photographs showing blood shed across a large area of the house. I cannot be satisfied to the required standard that all of the blunt force injuries were inflicted by the offender with the baseball bat. There remains a possibility that some were sustained otherwise in the course of the attack, without it being possible to identify the cause with precision.
The Crown accepts the submission made by counsel for the offender that his role was significantly less than that of Garvey. That must be correct. The Crown also accepts a submission that the gravity of the offending for this offender is within the mid-range of seriousness. That accords with my own assessment.

Victim impact statements

Statements were provided by Ms Jayne McGuigan, Mr Philip Steele's sister, and Ms Christi Wallace, his daughter. The consequences for the family have been dire. The three brothers were living in the family home they grew up in and it is rightly said to have been a place in which they should have been safe. Instead, one was killed and the others were scarred by the trauma. Sadly, Gary Steele passed away just over a year ago.
Philip Steele is described as a man of honour and integrity, humble, genuine, sincere and loyal. He wanted his daughters to be happy and his love and pride for them was unconditional. I gather he felt the same for his grandchildren and would have for the great grandchildren who were on the way.
The murder of Mr Steele was completely senseless, and yet it has left his family and friends with interminable grief. I reiterate the sincere sympathy that I extend personally, and on behalf of the Court.

The offender's background and personal circumstances

In the defence case on sentence were tendered the reports of Dr Furst and Dr Seidler as well as affidavits of the offender, some family members, and the manager of a youth centre. The Crown tendered material relating to the offender's criminal history.
The offender was born in 1999, so he was aged 19 at the time of the offence and is 21 now.
He experienced considerable happiness in his family life as a child. The affidavit material includes descriptions of the close bond that the offender had with his father. As time went on, however, his father struggled with alcohol; his parents separated in 2009; and his father committed suicide in 2013. This spurred a sharp decline in the offender's mental health; he felt guilty, angry and depressed. He began regular cannabis use when he was 15, and regular methylamphetamine use from 16-17. He started binge drinking at 16-17. He took Xanax to feel relaxed.
There was a period in which the offender managed to abstain from drug use for about a year and a half. This seems to have been largely at the urging of his brother. Regrettably, there was a relapse in early 2018. The manager of the Eastlake Youth Centre said in her affidavit that at the end of that year "his drug use was out of control".
Dr Furst wrote that the offender: [15] "manifested symptoms and signs of depression, anger, oppositional and rebellious behaviour in his teens, in sharp contrast to his emotional state and behaviour in primary school. It would seem almost certain that his emotional and behavioural problems in his teens were triggered by the suicide of his father."
Dr Furst considered that the offender's drug addiction/substance use disorder was the primary reason for him attending the deceased's home on the night in question, apparently intending that he and the co-offenders would steal drugs. He opined that the offender accepted that his actions were wrong and accepted responsibility for his role.
There is a more detailed account of the offender's background in Dr Seidler's report. It includes that he was living with his father on a part-time basis after his parents had separated and that he was demonstrating escalating delinquent, resistant and defiant behaviour that his father found difficult to cope with. He did not speak with his father for a month or two prior to his father's death and he later blamed himself for not realising the deterioration in his father's mental health. There was also conflict between the offender and his mother who had formed a relationship with his stepfather.
Dr Seidler noted the offender's behavioural problems prior to his father's death but said there was a serious deterioration in his functioning after that time. In the immediate aftermath, he became intensely angry and preoccupied and was regularly in trouble for fighting, defiance, aggression and damaging property. He was suspended from school on numerous occasions and eventually expelled. The darkness of this time is described in detail in the offender's affidavit.
Dr Seidler expressed the view that the offender "has seemingly tried to use the tragedy of the victim's death to a positive end"; he had "reflected on his past behaviour and expressed a motivation to make changes in his life". She considered that he is "someone who could profit from rehabilitation programming", and her report includes a number of recommendations in that respect.
The offender's sister struggled with her own mental health following their parents' separation and then their father's suicide. This, and the impact of her behaviour upon the offender, is described in the affidavit material. The relationship between them has improved since his arrest.
The offender's criminal history commenced in the Children's Court with offences committed late in 2013, the year of his father's death. His multiple appearances in that jurisdiction were for a variety of offences including affray, assaulting an officer in the execution of duty, assault occasioning actual bodily harm, stalking or intimidating with intent to cause fear, assault occasioning actual bodily harm whilst in company and reckless wounding in company.
In the Local Court on 9 October 2018, the offender was placed on an intensive correction order for 9 months for an offence of affray. It was a condition that he be supervised by Community Corrections; perform some community service work; and attend upon the Lake Macquarie Mental Health Team and obey all directions as to counselling and treatment and take all medication as prescribed. Supervision by Community Corrections was suspended after it had been confirmed that the offender had attended upon the Lake Macquarie Community Mental Health Team. In the period to 20 December 2018, the offender had attended two out of four work opportunities in relation to the community service part of the order.
The intensive correction order was revoked by the State Parole Authority on 20 February 2019 and the offender was required to serve a term of 6 months 22 days from 19 December 2018 until 10 July 2019.
The fact that the offender was subject to this intensive correction order at the time of the offending is a significant aggravating feature. It also raises a question as to the extent by which the sentence should be backdated to take into account pre-sentence custody. He has been in custody since his arrest on 19 December 2018. Given I am regarding the breach of the order as an aggravating factor, and further offending appears to have been the sole reason for the revocation, it seems fair to backdate the sentence to the full extent.
The offender has ceased his drug use in custody, though he laments the interruption of Crystal Meth Anonymous meetings due to COVID-19. He recognises the importance of counselling to prevent another relapse. He has also accepted that there is a need to punish him. He professed a desire to engage in courses once he is sentenced in order to obtain skills for employment upon his release. He retains the support of his family.

Specific matters relevant to the assessment of sentence

Sentencing is a complex task. There is a need to denounce the offender's conduct, to recognise the harm he has done, to make him accountable and to ensure he is adequately punished. There is a need to deter him from future offending and to deter others. Home invasion style offences are a frightening concern to law-abiding citizens and general deterrence is of particular significance.
There is also a need to have regard to the potential for rehabilitating the offender. In addition, some specific mitigating factors apply in this case.
I am satisfied that the offender is genuinely remorseful. That is evident from his own account, his demeanour in the police interview as well as in the witness box, from his mother's evidence, and from the assessments of Drs Furst and Seidler.
I am also satisfied that he has reasonably good prospects of rehabilitation and of not reoffending. Much depends upon him maintaining the resolve he has expressed to remain abstinent from substance abuse. His prospects will be enhanced by him undertaking the types of programs discussed by the doctors.
The offender entered a plea of guilty when the case was still in the Local Court. Parliament has required that sentences be reduced by 25% because of the utilitarian benefit flowing from such an early plea.
The offender's undertaking to give evidence in the prosecution of the co-offenders also warrants a reduction of the sentence. It was timely assistance to the authorities, coming immediately after his arrest. He has been fearful of the possibility of retribution and concerned about the safety of his family, particularly his mother. His custodial arrangements have been managed to accommodate these concerns. There is no evidence of any restrictions to visits or the availability of programs, or other more onerous custodial conditions that have arisen because of those arrangements. However, being in gaol as a prosecution witness against alleged co-offenders likely engenders a sense of anxiety and stress.
It is possible, although speculative, that the inclusion of the offender's evidence in the brief served upon the alleged co-offenders may have been influential in Garvey deciding to plead guilty. The facts in relation to Garvey have not been agreed; in fact, there was a clear suggestion made by his counsel following the entry of the plea that there may remain significant disputes about the facts. The offender's undertaking to give evidence applies to proceedings against both of the alleged co-offenders. My assessment is that the reduction of his sentence should be entirely because of his undertaking to give assistance; his past assistance is of no value without him fulfilling his undertaking in the future. That reduction will be 15%.
The offender's custodial conditions being adversely affected by the COVID-19 restrictions was also the subject of submissions. The authorities referred to in the submissions are now a little dated; all involving discussion of then recently invoked restrictions and limitations in prisons in March-April 2020. The restrictions, and the resultant stress and anxiety, must be acknowledged but the practical reality is that COVID-19 has affected just about everyone in the community.
Absence of visits from family and friends is often discussed as a typical hardship resulting from COVID-19 restrictions. In this case, however, the offender is engaging in daily contact by telephone with his mother and has contact by AVL every two-three weeks. Previously, she attended personally every two-six weeks, depending on where he was being held. There are many in the community who have experienced other forms of disruption to family contact as a result of COVID-19 to a similar or worse extent.
I have considered all that has been put on the subject but am not satisfied that any particular mitigation is warranted because of COVID-19 restrictions.
Another submission was that the circumstances of the offender's decline in his teenage years which was related to his family circumstances was a matter that warranted mitigation. It was submitted that the significant trauma and upheaval resulting from the separation of his parents and the subsequent loss of his father was deserving of mitigation in a sense similar to that which applies where there has been childhood deprivation experienced by an indigenous person deriving from a dysfunctional upbringing.
Understanding the difficulties experienced by the offender in his teenage years is imperative to understanding who he is as a person and how he came to do the terrible things that he has done. Recourse to the jurisprudence of sentencing is unnecessary. The same can be said for the offender's relative youth; his lack of full maturity aids an understanding of his lifestyle choices generally. For example, it helps to explain his choice of associates and, in particular, it is relevant to why he did not deal with his asserted fears about the co-offender Garvey in a more appropriate way. All of these matters have been taken into account.
It was submitted that special circumstances should be found so as to justify a reduction in the non-parole component of the sentence. Matters suggested to be relevant were the prospect of serving the bulk of the sentence in some form of protective custody, youth, and the need for assistance upon release back into the community. I have considered the submissions, and note the lack of opposition from the Crown, but have determined that in the context of the sentence I propose there is insufficient justification for taking this course. I am also concerned that reducing the non-parole period would result in one that would be disproportionate to what is appropriate in all the circumstances.

Sentence

Convicted. Sentenced to imprisonment with a non-parole period of 11 years and 3 months and a balance of the term of the sentence of 3 years and 9 months. The sentence is to date from 19 December 2018. The offender will become eligible for release on parole when the non-parole period expires on 18 March 2030. That is a total sentence of 15 years. If not for the offender's plea of guilty and his assistance to authorities, it would have been a sentence of 25 years.

Endnotes

Tcpt p34.25
Tcpt p25.14
Written submissions at [4]
Police interview Q438-454
Tcpt p10.6
Tcpt p T9.42
Police interview Q267-273, Q799-803
Tcpt p34.33; p 22.26
Dr Furst report at pp3.10; 4.1
Dr Seidler report at [41]
Tcpt p10.2
Police interview Q340. Tcpt p25.41
Tcpt p25.20
Tcpt p25
Dr Furst report p5 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: 23 October 2020

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Judgment (13 paragraphs)

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