R v Hearne

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SENTENCE: 1 HIS HONOUR: The prisoner Murray Walter Hearne has been indicted on two charges: a) The murder on 28 February 1998 of Constable Peter Forsyth; and b) The malicious wounding of Constable Jason Semple on 27 February 1998, with intent to do him grievous bodily harm. 2 To those charges, for which the maximum available penalties under ss 18 and 33 of the Crimes Act respectively are penal servitude for life and penal servitude for twenty five years, the prisoner has pleaded guilty. He is now to be sentenced accordingly. 3 The evidence tendered before me discloses that on the evening of Friday 27 February 1998, the prisoner and his half brother Scott Van Meurs met his half sister Tiffany Thorne and another girl, Cassandra Wee, near the Ultimo Community Centre. It had been their intention to attend a dance at the Centre but when they learned that it had been cancelled at the last moment due to rain, they decided to go on into the City. After filling in time at an amusement centre and at a snooker parlour, they returned to the Centre where they expected to be picked up by the father of Tiffany Thorne. 4 While waiting for Mr Thorne on the corner of Bulwarra Road and William Henry Street, the prisoner tried unsuccessfully to sell a tablet, which was said to be Ecstasy, to some young girls. At about 11.20pm the prisoner and his companions observed Constables Forsyth, Semple and Neville, who were off duty police, walking towards them. Each of these police officers had been drinking for about an hour and a half at the Lord Wolsley Hotel in Bulwarra Road. Constable Forsyth was dressed in a T shirt, shorts and joggers. Constable Semple was still wearing his police trousers and boots but he had replaced his shirt with a T shirt. Constable Neville was wearing a light coloured shirt and jeans. Before leaving the hotel Constables Neville and Semple had drunk four schooners each of beer, some of which were light. Constable Forsyth had drunk five schooners the last of which was a light beer. Patrons and bar staff said that none of these men had misbehaved themselves while at the hotel or had given any signs of being affected to any significant degree by alcohol. Blood alcohol concentrations tested late that night, following the injuries which two of the officers sustained, would generally support that assessment. 5 Constable Forsyth in fact lived with his wife and two children in Hackett Street, a short distance from the Community Centre and the hotel. He and the other officers had decided to walk a little further down William Henry Street to look into another hotel in that street. 6 Tiffany Thorne gave a wolf whistle when she saw these men. At the prisoner's request, Scott Van Meurs yelled out to them, "Do you want to buy an E". Constable Neville said that he called him over and asked him what he had. He replied, "I've got one E left". Constable Neville asked where it was and Van Meurs then asked him, "Are you cops". Constable Neville again asked where the tablet was. Van Meurs said that his brother had it and after saying that it would cost $40 he called over the prisoner. Constable Semple gave a slightly different version to the effect that when Van Meurs came over Constable Neville said to him, "You're a bloody idiot mate, do you always come and ask people this?" Additionally he said that the question from Van Meurs as to whether they were police followed the inquiry where the Ecstasy was, as well as the advice that Van Meurs' brother had it. He said that the reply by Constable Neville to Van Meurs' question was, "Listen, I've got money, mate", an observation which Constable Neville did not recall making. 7 When the prisoner joined them Constable Neville said that he was asked, either by Constable Forsyth or by Constable Semple, what he had. He produced a small clear resealable plastic bag containing a tablet. Constable Semple's recollection was that there was a conversation with the prisoner along those lines but he thought that it was Constable Neville who had asked him what he had. Constable Neville said that he asked the prisoner where he had obtained the tablet, to which he received the reply, "Blacktown". When asked from whom he obtained it the prisoner replied, "A friend, Ahmed". This conversation Constable Semple and Neville both said occurred in the vicinity of a recessed doorway, or alcove. 8 Constable Neville said that while he was having the conversation, Constable Forsyth had taken the prisoner by the right arm and chest and had pushed him into the recess up against the door. Constable Forsyth, he said, asked him, "Do you know who we are?" Constable Semple said that both the prisoner and Van Meurs were manoeuvred into this alcove and that he and Constable Forsyth ended up facing the prisoner while Constable Neville stood directly in front of Van Meurs. He recalled Constable Forsyth prefacing the question mentioned by Constable Neville with the words, "You'se are bloody idiots." When the question was put which he thought was, "You know who we are, don't you", he noticed the prisoner looked down at his police boots and uniform trousers. 9 Constable Neville turned his attention at this stage to Van Meurs because he attempted to run away. He seized Van Meurs by the arm and asked him if he had identification. Van Meurs asked, "Are you cops", to which Constable Neville said he replied, "Yes". Van Meurs reached into his pocket and pulled out what appeared to be some bank notes. At this stage they were a metre or so away from the prisoner and the other police. Whilst Constable Neville was talking to Van Meurs he said that he heard Constable Forsyth instruct the prisoner to sit down. Constable Neville said that he gave Van Meurs a similar instruction. Before those instructions were given Constable Semple had a recollection of Constable Forsyth saying, "You are drug dealers. I live in this street, I've got kids that live in this street". 10 He noticed the prisoner sit down on his haunches. When the prisoner was asked for his identification Constable Semple said that he stood and he began to rifle through his bum bag. Constable Semple said that he then became aggressive and said, "I'm going, I'm out of here". Both Constable Semple and Forsyth grabbed him by the upper body and pushed him back against the door. He was told that he was not going anywhere. He began to struggle with Constables Forsyth and Semple who tried to contain him. It was at this stage that Constable Semple said that he felt blows to his chest and stomach. He stumbled back, pulled up his T shirt and saw blood pouring from his chest and stomach. He yelled out, "Pete, he's got a knife". 11 Constable Neville said that he noticed the prisoner grappling with Constables Forsyth and Semple and that he heard Constable Semple's warning about the knife. He then seized the prisoner from behind around the upper arms and threw him towards the street. The prisoner, he said, stood his ground for a short time and then ran away. 12 In the meantime Van Meurs had already taken off and was heading in a westerly direction down William Henry Street in front of the prisoner. Constable Neville pursued the prisoner a short distance but then returned to assist the other officers after he heard Constable Semple call out, "I'm leaking". It was realised at about the same time, that Constable Forsyth had also been stabbed because he had collapsed face forward. 13 Ambulance and police officers responded quickly to a triple O call and both officers were conveyed to Royal Prince Alfred Hospital after treatment at the scene. Although the precise sequence of blows is not known it is now evident that, during the grappling described by Constables Neville and Semple, the prisoner stabbed Constable Forsyth through the heart and Constable Semple once in the abdomen and once in the chest. Constable Forsyth died from the wounds to his heart shortly after midnight. Constable Semple was successfully treated for his wounds which included lacerations to his anterior stomach wall, to his liver and to his left epigastric artery. 14 After running for some distance from the scene of the stabbing, the prisoner stopped near a car park. He informed his companions that he had stabbed the men and he showed them the knife which had blood on the blade. Tiffany Thorne said in an interview that was tendered that, when she observed that she had to tell someone what had happened, the prisoner replied that he would kill her if she did. Some residents in the area did hear words consistent with that threat spoken by a male person in the street. A phone call was made to Mr Thorne by Tiffany advising that the prisoner and Scott Van Meurs had been the victims of an attempted robbery and had been beaten up. They arranged to meet Mr Thorne at Central Railway. While waiting for him the prisoner changed into different clothes which he had in a back pack. He later informed Mr Thorne that he had fought off the men who had attacked them and that he and Scott had escaped. Mr Thorne drove the girls to their home in Lilyfield and then drove the prisoner and Van Meurs to their home at Blacktown. 15 The prisoner telephoned his girlfriend, Alvina Narayan, and then went to her flat at Chipping Norton where he spent the rest of the night and some of the next day. During the morning following the incident, he informed her that he had stabbed someone, although it was again his account that three men had jumped him and were going to kill him and his younger brother. He made no mention of any attempt to sell drugs or of any police officer being involved in the incident. Miss Narayan dropped the prisoner off at Parramatta Railway Station later that morning and he then caught the train back to Blacktown. He informed Mr Van Meurs senior that he and Scott had walked over to speak to three men who had gone aggro, had pushed Scott up against the wall and had pushed him to the ground. He said that they informed him, "We're going to bash the shit out of you, no, we're going to kill you". He claimed to have head butted one man and smacked the other over the face before they made good an escape. 16 On 1 March he said to another girl, Casey-Lee Baxter, whom he met at the Quix Service Station, that the person who had stabbed the police would be "pretty popular in gaol." When she asked what he meant, he replied, "Well the prisoners are going to admire him for killing a cop". A day or so later she said that he told her that he had stabbed the police officers, and had sterilised the knife which he had hidden at his girlfriend's house. He also showed her several newspaper clippings concerning the murder that he had placed into an A4 art book. In her presence Scott Van Meurs and the prisoner discussed running away together. 17 On 2 March the prisoner informed a young student, AB, who knew Scott Van Meurs and his younger brother Tony, that he had tried to sell a drug to police and that he had stabbed the two officers involved. Later that day Mr Van Meurs senior began to question the prisoner about the stabbing of the police which was receiving extensive media coverage. The prisoner denied any involvement in it, and said that the incident in which he and Scott had been involved had occurred around the corner from the location where the police had been stabbed. 18 On 2 March, acting on information, the police commenced physical and electronic surveillance of the prisoner. He and Scott Van Meurs were followed that day to a Blacktown disposal store where the prisoner was seen to purchase a folding lock knife. Phone calls to and from his home were the subject of lawful interception from this time. The prisoner was heard in the course of conversations over this service to acknowledge that it was he who had stabbed the two officers. He was also heard to express concerns about police identifying him and about others who knew of his involvement talking about him. In a conversation with Tiffany Thorne he threatened to have killed anyone who "dobbed him in". 19 On the evening of 2 March the prisoner moved to his girlfriend's flat at Chipping Norton. When later that evening Scott Van Meurs became aware of police surveillance outside their home in Blacktown, he telephoned the prisoner at the flat and cautioned him. In a number of phone calls they discussed preparations for leaving Sydney. These preparations including procuring or stealing a motor vehicle and assembling the necessary clothes and other items for such a departure. 20 In the early hours of 3 March, Scott Van Meurs' father became aware, from a conversation with his son Tony, that the prisoner had stabbed the police and that he and Scott were planning flight. He telephoned the prisoner at his girlfriend's flat and asked him if he had anything to do with the stabbings. The prisoner admitted being responsible but said that the police had been drunk and had threatened to kill him and Scott. He said that after he was threatened and kicked, he pulled out his knife and stabbed the men. In a series of telephone calls Mr Van Meurs attempted to persuade him to surrender himself to police. He warned him that he intended telephoning police and the prisoner's father. He followed this up by placing those calls. The prisoner then spoke to his father in Victoria and was advised by him to telephone the newspapers and to give them his story. In response to this advice the prisoner telephoned the Daily Telegraph and spoke to Mr Barclay Crawford. 21 In a statement prepared from the notes which he made, Mr Crawford recalls the following salient details: "Mr Hearne said, according to these notes, "My father had told me to tell you this, the police started this, they bashed me and my brother, they kicked me in the ribs and the back of the legs, my brother is still bruised. I could smell beer on them. They say that these police are lovers of kids but it's all bullshit. The police made me stab them, they just turned on me..." Mr Crawford said, "What did you talk to them, that is the police, about". The prisoner said, "You know, it's about, I can't really remember". Mr Crawford said, "Well you must have talked about something, try and remember". The prisoner said, "Ah, just things about the weather, how it was raining". Mr Crawford said, "What made them turn on you, you must have done something or said something?" The prisoner said, "Nothing, nothing, they just snapped". Mr Crawford asked, "What happened then"? The prisoner replied, "They were drunk, they kicked me in the ribs and pushed both me and Scotty into a corner down on the ground". Mr Crawford asked, "Did they tell you they were cops", to which the prisoner replied, "No, not once. They just said, Let's get them, let's kill them". Mr Crawford asked, "OK, what happened then". The prisoner replied, "I thought I was going to die because the cops said they were going to kill me, so I pulled my knife out".

Mr Crawford asked "Well, didn't the police see the knife", to which the prisoner replied "No, because we were sitting down. So I pulled it out." Mr Crawford, "Where did you stab him"? The prisoner replied, "He came at me again and I stabbed him once. Then he came at me again and I stabbed him, I don't know how many times". Mr Crawford observed, "But you stabbed the other one too, didn't you?" The prisoner said, "The other one came in and I stabbed him". When asked how many times, the prisoner replied, "I don't know, I don't know. It happened so quick. I just stabbed him and stabbed him". 22 When asked what kind of a knife he had used, the prisoner replied, "A buck knife". He was then asked, "What happened after you stabbed the second guy", to which the prisoner replied, "Scottie kicked the third guy in the balls and I punched him in the head". 23 He was specifically asked in this conversation whether any offer had been made to sell drugs to the police. He answered in the negative. 24 At about 5am on 3 March 1997 whilst still on the telephone to Mr Crawford, the prisoner was arrested by police and later charged. When an attempt was made to interview him he exercised his right to remain silent. A search of the prisoner's home and of his girlfriend's flat turned up the bum bag that he had been wearing and the art book but not the knife that had been used. 25 A post mortem examination of Constable Forsyth revealed that the stab wound track that had brought about his death had divided it into two paths. This was consistent, Dr Du Flou said, with the knife having been plunged into the body twice without it having been fully removed between thrusts, or with the deceased pulling back after moving on to the knife and then moving back on to it again. 26 The wounds which Constable Semple sustained were clearly the result of separate blows showing that he was struck twice. 27 The knife used in the stabbings has never been recovered. The tablet that was offered for sale as an Ecstasy tablet was however found on the roadway near where the stabbing occurred. Analysis showed that it was not in fact Ecstasy but a drug of the amphetamine group similar to that substance. 28 Contrary to the version of events that was initially given to Messrs Crawford, Thorne and Van Meurs senior, it is now accepted that the prisoner did attempt to sell to the police the tablet which was passed off as Ecstasy. It is also accepted that it was he who stabbed the two police officers. 29 I have gone into this evidence in perhaps more detail than might otherwise have been necessary, because there are two critical factual issues of relevance that require determination. They are (a) whether the prisoner intended to kill Constable Forsyth or intended only to cause him really serious bodily harm; and (b) whether he knew that Constables Forsyth and Semple were police at the time that they were stabbed. As a matter of law any reasonable doubt on these issues needs to be resolved in favour of the prisoner: O'Neill (1979) 2 NSW LR 582 at 588, Olbrich, NSW CCA 6 July 1998, and Storey (1997) 89 A Crim R 519. 30 The first issue can be readily decided. The plea in relation to the charge concerning Constable Semple has been accepted upon the basis that the prisoner's intention was to cause him grievous bodily harm rather than to kill. I am unable upon the evidence, and in the absence of any admission of an intention to kill Constable Forsyth, to reach any different conclusion as to the prisoner's state of mind in relation to the charge of murder. Clearly the prisoner used the knife to make good an escape from the situation in which he found himself. Equally clearly he intended at least to inflict sufficient bodily harm to achieve that purpose. While the location of the injury, on one view, might suggest an intention to kill, the reality is that in a night time struggle involving men who were moving, it is impossible to be satisfied beyond reasonable doubt that the prisoner deliberately aimed the knife at Constable Forsyth's heart. It is equally impossible to reach any firm conclusion as to the angle at which Constable Forsyth's torso stood in relation to the prisoner when he was stabbed. Accordingly I find that the state of mind of the prisoner for the offence of murder was that involving an intention to inflict grievous bodily harm. 31 I observe however that this finding does not mean that the offence was other than one of a most serious kind. As will be emphasised later, the carriage of knives is not acceptable to the community and their use to inflict bodily harm or death inevitably involves objective criminality of a very high degree. 32 I turn then to the important issue as to whether the prisoner knew that the persons he was stabbing were police officers. It may be assumed that he did not know that they held such office at the time when the tablet was offered to them. Had he known that to be the case, then he most certainly would not have tried to sell them a substance which he believed to be a drug. 33 The critical question is whether there was anything in the behaviour or words spoken by the police, over the relatively short period between the time that he was first spoken to and the time that he began his escape, to bring home to him the fact that they were police. It is common ground that at no stage did any of the police officers produce their police warrant cards or badges or pronounce formal words of arrest or caution. It is also the fact that in none of the telephone calls that were intercepted, or in the pre arrest conversations recounted by friends and associates of the prisoner, or in the recent conversation between the prisoner and another prisoner that was lawfully recorded pursuant to a listening device warrant, did he expressly admit or even suggest that he knew, before stabbing Constables Semple and Forsyth, that they were police. Indeed, in all of the accounts, save for one possibly equivocal conversation with a young person, AB, he protested that he did not know that they were police until the following morning. 34 I turn first to that conversation which was recounted by the witness AB. According to him it included an observation by the prisoner to the following effect, "Me and Scott tried to sell a drug to a police officer but we did not know he was a police officer. It got out of control then". That final sentence is possibly indicative of the fact that the incident got out of control once the prisoner realised that he had offered a drug to a police officer. But that is not the only inference available and it would not by itself be enough to support a finding that he did know the man to be a police officer at that time. 35 Of somewhat greater significance is the evidence of Cassandra Wee who said that, when the prisoner caught up with the girls after the incident, he had remarked, "They threw away the tablet that cost forty dollars. We started throwing punches at each other. I pulled out my knife and stabbed all three". After recalling that Scott Van Meurs had said, "I thought they were going to hit me, but I was lucky enough I didn't get hit", she continued that the prisoner said, "They all said they had kids younger than us. They showed the badges, they were undercover cops. We started throwing punches at each other. That's when I pulled out the knife and stabbed them". 36 She was cross examined to suggest that she had been in error in recounting this part of the conversation, and that she had reconstructed it from the subsequent intensive media coverage, which had given great prominence to the fact that the persons killed and injured had been off duty police who had identified themselves as such by showing their badges, and had been endeavouring to effect an arrest. In the course of that cross examination she acknowledged that until she was interviewed on 3 March she had not wholly told the truth. She also acknowledged having read the account of the incident in the Telegraph on the Saturday morning after it occurred, as well as the coverage in the Sun Herald on the following Sunday. In those articles she agreed that it had been asserted that the three officers had identified themselves as police, had produced their badges and were only doing their job. She agreed that she had also seen news broadcasts on television in which similar information had been conveyed before speaking to police on 3 March and again on 12 March. 37 She remained firm in her recollection that the prisoner had told her, when he caught up with them, that the persons he had stabbed were police but she did concede that it was possible that her recollection concerning badges being shown may have been mixed up with what she had learned from the media. 38 The other circumstances relied upon by the Crown, as pointing towards a conclusion that having realised that he had offered a drug to police, the prisoner used the knife to escape arrest, turns upon the evidence of Constables Semple and Neville. In particular they relate to the evidence which they variously gave to the effect that, in the immediate presence of the prisoner, Constable Neville confirmed to Van Meurs that they were police, that each of the prisoner and Van Meurs were asked to provide identification, that Constable Forsyth asked the prisoner whether he realised who they were and that each was restrained and instructed to behave in a way that was more consistent with their being under arrest than it was for them being under attack. 39 The Crown relies also on the fact, as the prisoner conceded, that he had been very economical with the truth between the time of the offences and his arrest, having told deliberate lies to Mr Van Meurs senior and to others concerning the events of this night. This does reflect adversely on his credibility as a witness as does his post arrest conduct. Additionally, the Crown relies upon the fact that in some versions given, the prisoner asserted that the men had chased them or tried to rob them or were going to kill them, and that in one of the intercepted conversations he can be heard reminding Scott Van Meurs of some of those matters in a way that could be understood as an encouragement to him to give a similar version, if interviewed by police. 40 The opposite proposition was pursued by reference to the evidence given by the prisoner, and by reference to the statements provided by Scott Van Meurs. Together these were suggestive of a somewhat more aggressive response by the three police officers when they were offered the drugs, being conduct which would have been inconsistent with a proper discharge of police duties. In this regard, Van Meurs and the prisoner each said that the tablet was taken from the prisoner by Constable Forsyth and thrown to the gutter, that they were told that was a waste of $40 and they were additionally told that they were "Fucking drug dealers and the scum of the earth and that they should be bashed or killed". They also suggested that the prisoner was struck in the ribs and the back of the knee when he was backed into the alcove and forced to the ground. 41 The prisoner acknowledged, in his evidence, that he had asked Scott Van Meurs to offer the men the ecstasy tablet and added that when he was called over and before speaking to them, Scott Van Meurs had said to him that he had inquired whether they were police because they had been asking so many questions. Van Meurs, the prisoner acknowledged, had told him that they were not police. This evidence does indicate that the possibility of the three men being police was at least alive in their minds. It was the prisoner's account, however, that he did not realise that they were police until he listened to the news the following morning. The prisoner said, in his evidence, that he did not have any dislike for police, that he respected their authority and that he acted in the way he did only out of fear that he or his brother would be bashed. He said that he would never have pulled the knife had he thought that the men were police as he feared that they would, in that event, have been likely to shoot him. 42 I can accept so much of his answer as suggested the prisoner had not in the past shown any general dislike for police, and had been a person who did respect their authority. I cannot, however, accept the rest of this account and particularly the last portion. It is not something that he said to anybody else at the time, and it is more indicative of an ex post facto invention than it is of the fact. 43 The prisoner said that he had kept the scrap book or art book only so that he could keep up to date with the progress of the investigations, particularly so that he could become aware of any police interest in him. Further he said that he had thrown the knife, which was used in the stabbings, into a rubbish bin near the Parramatta Railway Station and had purchased a replacement knife for the purpose of placing police off the scent if he was interviewed since forensic investigations of that weapon would eliminate it as the murder weapon. 44 The two girls, Cassandra Wee and Tiffany Thorne, did not claim to see or hear precisely what occurred between the prisoner and the three men as they were some little distance away across the road. They did however say that they saw the men struggling or fighting, an observation that does not carry the matter any further as it is common ground that there was something of a struggle towards the end. 45 It is true that in the various post incident conversations that were attributed to the prisoner by other witnesses or that were electronically intercepted, he had adhered to a consistent core version that he and Van Meurs were attacked by the three men after they had offered the ecstasy tablet for sale, that he did not know that they were police until the next day, and that he acted in the way that he did in order to protect himself and Scott Van Meurs. 46 His pleas of guilty, I expressly note, were entered not upon the basis of a concession that he had lied in giving this account, but rather upon the basis that his response was excessive and was not such as would ground a defence of self defence or a defence or provocation. 47 I do not consider that much weight can be placed on the interviews with Scott Van Meurs or Tiffany Thorne. Each had an interest to serve, each has been shown to have lied and each had a motive to paint matters in a more favourable light for their half brother, the prisoner. 48 The credibility of the prisoner is affected by his lies, particularly as to the offer of a drug and as to the whereabouts of the knife, a lie which he has continued even recently when speaking to a fellow prisoner. It is also affected by his immediate post offence conduct including his plans for flight and the threat that he made in relation to people giving him up. It is further diminished by the patently absurd explanation that he gave concerning the manner in which he found the knife came to be in an open position when he removed it from his bum bag to the effect that it was either already open in the bag, or that it became caught and opened itself when it was removed. 49 Each of Constables Semple and Neville gave evidence as to the events leading up to the stabbings. They impressed me as witnesses of truth and I do not accept that they were drunk or that they or Constable Forsyth threatened or punched or kicked either the prisoner or Van Meurs in the manner which those persons described. I have no doubt that they used some force to restrain each man, particularly when they tried to break away. They were lawfully entitled to do this and I am satisfied that all of them acted properly in the execution of their duty in endeavouring to make an arrest. 50 The problem however, as I see it, is that the time that elapsed between the production of the tablet and the stabbings was very short and on Constable Neville's account he initially avoided the question whether he and his companions were police. While it is obvious from that question, and from the prisoner's evidence, that he and his brother held some suspicions in this regard, no warrant cards or badges were produced and no formal words of arrest or caution were used. Further, none of the three police officers were so dressed as to suggest positively that they held that office. A question in the terms such as, "You know who we are, don't you", while inviting the possible inference that they were police, was not conclusive of that fact. Cassandra Wee's evidence risks having been tainted by what she later learned and I am inclined to discount it for that reason, particularly as some of the remarks, for example, those concerning the production of the badges must be incorrect. 51 The evidence that does carry more weight is that concerning the fact that identification was requested, and the description of the way in which the two men were stopped and restrained, that being consistent with police action. However, I cannot be satisfied beyond reasonable doubt that the prisoner knew that Constable Neville had told Van Meurs that they were police, particularly as Constable Semple said that he did not hear that being said. 52 In all those circumstances, I am not prepared to find that the prisoner had actual knowledge that the three men were police. He did however know that he had been detained because of his attempts to sell a tablet of Ecstasy to three men and he did realise that he was potentially in some sort of trouble because of it. It was in those circumstances I am satisfied that he used the knife, not because he feared being bashed or kicked, but because he wanted to escape the possibility of trouble arising in connection with the offer of supply. The precise nature of that trouble was probably not fully apparent to him at the time. 53 It may be finally accepted, in relation to the assessment of the objective criminality of the prisoner, that his actions were impulsive rather than premeditated. Had it been established beyond reasonable doubt that the prisoner knew Constables Forsyth and Semple were in fact police officers and also that they were acting in the execution of their duty at the time of the offences, then this would have brought the case into the worst category, justifying the maximum penalty of penal servitude for life or something approaching it. 54 As has been repeatedly observed by the Court of Criminal Appeal, police who are subjected to violence in the course of their duties are entitled to the full protection of the law, and offenders who are involved in crimes of that kind must expect condign punishment: see the decisions of the Court of Criminal Appeal in Crump 7 February 1995, Nasif 10 March 1995, and Rees 22 September 1995. In Adams, (1999) NSW SC 144, I stated my conclusion, to which I adhere in this case, that similar considerations apply to those who inflict violence upon off duty police so long as the selection of the victim or the infliction of violence or the level of violence applied, can properly be said to relate to that office and not be purely coincidental with it. 55 Although I am not satisfied beyond reasonable doubt that the prisoner in this case had the knowledge that would attract an application of these decisions, the offences still fall within the upper range of seriousness viewed objectively. Those who carry and use knives can expect very little by way of mercy when they appear for sentence, see the decisions of the Court of Criminal Appeal in Rothapfel 4 August 1992, Watt 2 April 1997, and Bell 29 September 1997. 56 There exists, in this case, the need for a sentence that not only imposes a significant element of personal punishment and retribution but additionally, and for the reasons explained in Rushby, (1997) 1NSWLR 594 at 597, carries with it, as a strong message of general deterrence, that this community simply cannot and will not condone the carrying or use of knives. To carry a knife, which in many instances will itself involve an offence, inevitably attracts a risk that it will be used. I would be failing my duty if I were to be weakly merciful in sentencing the present prisoner who has used a knife with the deadly consequences for one victim and the serious consequences for another that I have described. 57 I turn then to the subjective circumstances, the detail of which emerged from the evidence of the prisoner and his father, from a series of character references provided on his behalf for sentencing purposes, from a pre-sentence report and from a report from a psychiatrist, Dr Westmore. Together they serve to show that the prisoner was born on 4 May 1979 and was accordingly three months short of his 19th birthday at the time of the offences. His prior criminal history was of little moment comprising entries for theft which have been dealt with by fine or equivalent, by a bond, or by orders of compensation without any convictions having been recorded. So far as evidence was led either through witnesses, or in the form of statements, to suggest that the prisoner had engaged in more extensive or serious criminal activities in the past, I propose to disregard that as incorrect, and as having been motivated by a desire on the part of the prisoner to impress his peers as a person to be reckoned with. 58 He is the eldest of three children and his parents divorced when he was three years of age. He lived thereafter with his father and had little contact with his mother. Although his father was strict the prisoner has described his formative years as generally happy and supportive. He left school where he was a relatively poor performer at the age of 16, during Year 9. Letters from his primary and secondary school teachers show that he presented as a boy who was well behaved and polite, non-aggressive and co-operative and protective of his siblings, although somewhat withdrawn and lonely. After leaving school he has been mostly unemployed, although he has held down some short term labouring jobs, including employment for a time with a removalist company. 59 He had some history since the age of 14 years of illicit drug use including cannabis, LSD, Ecstasy and cocaine, both while living in Wodonga with his father and later when he came to live with his step-father, Mr Van Meurs, at Blacktown, at the age of 17 years. This move, it was established through the evidence of the prisoner and his father, occurred after he had been present when a friend stabbed two other young men in a fight in Wodonga. The prisoner had left town with this person but later returned to assist police by providing a statement and agreeing to give evidence in a trial of the offender. He moved to Sydney, he said, because of the fear of reprisal from the victims and also because of his desire to obtain work. 60 The prisoner was accustomed to carrying a knife on his person but only, he said, when going fishing, which seemed to be his principal interest in life, when working in the removalist job, or when out with his siblings. The evidence points positively to the conclusion, notwithstanding his assertion to the contrary, that he was somewhat obsessed by knives. At the time of the offences that bring him before the court he did, in fact, own five knives, the one used in the killing of Constable Forsyth and the wounding of Constable Semple, a filleting knife, a tool knife, an army knife and another folding knife which remained in his fishing tackle box. He had previously owned another knife, which had been presented during an incident at a swimming pool in a block of town houses or home units in Blacktown, a month or so before the matter that now brings him before the court. On this occasion he was present when a younger brother became involved in a fight with another boy. When the father of that boy intervened to break it up, the prisoner presented and threatened him with the knife at close quarters. It was the prisoner's account that he believed this man had a hammer in his hand which he might use to harm his brother. 61 I also observe that, in about December 1997, the prisoner had been present in the Blacktown Shopping Centre with a group of youths, including a brother, when the brother was threatened with a knife by some Lebanese boys. Although no fight ensued, the incident was reported to the police and as a consequence of it the prisoner decided to arm himself with a knife. The prisoner said, in fact, that arising out of his concerns for the safety of himself and his siblings in Sydney, it was his practice to carry a knife when he was in their company. 62 The various knives that he kept, he agreed, were regularly cleaned and sharpened by him. It was his practice to carry such weapon, as was the case on the night of the offences, in a bum bag. Although reluctant to admit that he always had a knife with him, this is precisely what he said to Mr Crawford. It was also said to several young persons who provided statements that were tendered in evidence, to the effect that whenever they saw him, he seemed to have a knife on him, and that he often spoke of knives and produced and played with them in public. It was the fact that both his father and Mr Van Meurs had expressed concern about this habit, and had expressly cautioned him on more than one occasion not to carry a knife on his person or to use it for any improper purpose. In all those circumstances, I disbelieve the evidence of the prisoner concerning the extent of his interest in knives and regard it as an attempt to paint himself in a more favourable light. I am not, however, permitted to use this evidence as propensity or tendency that might show that he was by nature aggressive, or that he carried a knife about looking for trouble or for an opportunity to use it. At most the evidence shows that he was accustomed to carrying knives on his person, that he had observed at first hand and had been warned of the dangers associated with their use, and that he was prepared, if the occasion arose, at least to threaten someone with one. He acknowledged as much by his admission, that he entertained fears for the safety of himself and his siblings, and that it was for that reason that he carried a knife generally when he was with them, and on this occasion in particular. 63 As I have observed, it is an inevitable risk for a person who carries a knife for this reason, which is presented as a threat, that the situation will escalate to the point where it is used. 64 Mr Hearne and Mr Van Meurs senior each confirmed that the prisoner had been a quiet and well mannered person who is generally polite, considerate and protective towards his two full siblings and six half siblings. Other friends and relatives confirmed this picture of him and added that he had a healthy interest in sports, particularly soccer and fishing, that he had respect for authority and that he was loyal to his family and supportive of them. In general, they expressed the view that the offences were out of character for him. I accept this assessment. 65 The prisoner has used his time in custody so far to further his education. It is his intention to complete his studies to Year 12 and then to undertake a business course and a fitness instructor's course, each of which will apparently be available to him while in custody. When he was first taken into custody he was severely depressed and suicidal but it appears that this was overcome after a stay in the prison hospital, so there is no longer any cause for concern in that regard. 66 A report from Dr Westmore confirms that to be the case. Dr Westmore additionally found no signs of psychiatric illness, nor any evidence of an anti-social personality disorder, or for that matter, of any other significant personality disorder or difficulty that might carry with it a risk of recidivism. The prisoner has impressed both the author of the pre-sentence report and Dr Westmore as to being genuinely remorseful as to his actions. I accept from his evidence and from the evidence and material supplied by those who have assessed him or otherwise known him, that this is now the case. 67 I am also assisted in coming to this conclusion by the apparent spontaneous expression of regret that appears in the transcript of the conversation with the other prisoner that was recorded recently. There is no reason to suppose that the prisoner knew or suspected that this conversation was being monitored, or that he saw any advantage in presenting a false appearance of remorse to a fellow prisoner. 68 I am not, however, persuaded that this remorse was always present. Nor am I persuaded that his remorse was entirely for the widow and family of Constable Forsyth or for Constable Semple. Initially the prisoner behaved in a way that suggested that he was quite unconcerned for what he had done, and considered himself to be a likely hero in certain quarters for the stabbing of two police officers. The lack of remorse or any appreciation of the enormity of these offences, at that time, is indicated by his response in lying about the incident, in disposing of the knife, in planning flight, in keeping a very neat art book of media cuttings and in purchasing a replacement knife. Whether that knife was acquired for the purposes of having it available as a weapon or for the purposes of putting the police off the scent if he was spoken to, does not seem to me to matter. The picture over the period between the offences and the time of arrest is one of a person who was untroubled by his acts, who was functioning deliberately and calmly, and was doing everything he could to escape justice and whose concern was only for himself. That position, I am persuaded, has changed significantly since he has been in custody and since he has been forced to confront the reality of his actions. 69 I accept that he is now genuinely remorseful for what he has done. I am also satisfied that he remains very sorry for himself. In the light of these various conclusions I am of the view, subject entirely to the attitude that he takes to the opportunities for further education and training that are available in prison, and subject to the influences to which he becomes subject, that his chances of recidivism are relatively low and his prospects of rehabilitation are generally favourable. He will be sentenced on that basis. 70 Before proceeding to sentence I note that I have read the victim impact statement provided by the widow of Constable Forsyth, by his elder brother, Michael Forsyth, and by Constables Semple and Neville. They have been tendered pursuant to section 23C of the Criminal Procedure Act 1986, but in a case involving murder their use is strictly proscribed for the reasons enunciated in Previtera, (1998) 94 ACR 76, Bollen 99 A Crim R 510, and Dang, (1999) NSW CCA 42. Specifically I state that I am not permitted by law, and I have not relied upon their contents, in order to asses the extent of the prisoner's objective criminality or in order to determine what should be the appropriate sentence. I wish to make reference to them only so far as I regard it proper for their contents to be place on to public record, but in so doing I note that it is all but impossible for me to adequately reproduce the despair, the anger and the loss that their authors have described. 71 In the case of Constables Semple and Neville, the statements eloquently record the traumatic and powerful consequences to Constable Semple in receiving serious stab wounds, and the consequences for each of them in observing a colleague killed while attempting to execute his office, albeit while off duty. It is, in fact, a tribute to their courage and personal strength that they have each continued to serve as police officers. 72 In the case of Michael Forsyth, the statement similarly describes the sad consequences for a brother and a mother losing a person of whom they were justifiably proud and with whom they were very close. 73 The statement from Jacqui Forsyth, in unequivocal terms, describes the depth of the loss which she and her two young children have suffered. She has said that the life of her family was full while Constable Forsyth was alive but that all their hopes, dreams and life plans have now been shattered. The distress and feelings she describes are palpable and her loss may be accepted as tragic. 74 Beyond those brief observations which, as I have observed do not even begin to give justice to the depth of feelings described, I cannot venture lest I stray into a forbidden use of the statements. 75 I return then to the exercise in sentencing that will complete these reasons. I record that the prisoner is entitled to the benefit of his pleas of guilty and I propose to take that into account in his favour when determining an appropriate sentence. This, however, is a case where the plea was entered at the last moment rather than at an early stage of the proceedings. While it can still be taken as expressing a degree of contrition, and while it has a utilitarian value in saving the community the time and cost of a criminal trial, the value of a late plea as a mitigating circumstance is diminished, see Winchester, 58 ACR 345 at 350 and 351, Bishop, NSW CCA 23 September 1986, and El Karhani, 21 NSWLR 370 at 382. 76 The age of the prisoner is also a matter which needs to be taken into account in that there is a public interest, in the case of a young offender, in imposing a sentence that preserves a proper opportunity and encouragement for rehabilitation. The considerations of punishment and general deterrence, it has been accepted, should be regarded as subordinate to the need to foster the interests of rehabilitation in the case of a young offender, see Wilkie, NSW CCA 2 July 1982, Tran, NSW CCA 109, and GDP, 53 A Crim R 112. However, the significance of this factor diminishes the nearer the offender is to adulthood: Nguyen, NSW CCA 14 April 1994, as it does when the offender conducts himself like an adult and commits a particularly serious crime: Tran, and see also Townsend & Cooper, NSW CCA 14 February 1995. The present is a case where these principles apply to reduce, although not entirely to exclude, any leniency that can be extended on account of the prisoner's youth. 77 The two offences were part of a single episode, and regard must be had to that fact in framing the sentences so as to ensure that, in the aggregate, it is just and appropriate to reflect the total criminality involved, see Ross, NSW CCA 3 April 1991, Holder & Johnston, (1983) 3NSWLR 245, and Mill, (1988) 166 CLR 59. It is a matter for discretion as to whether the sentences should be imposed cumulatively or concurrently, Vickers & Fearon, NSW CCA 17 October 1996, and Ross. The relevant principle was adequately expressed by King CJ in Attorney-General (SA) v Tichy, (1982) 30 SA SR 84, where his Honour said at 85: "The essential thing to be borne in mind is that if the sentences are made consecutive that there be no over-lapping of the factors brought into account in determining the length of each sentence. Similarly, if sentences are made concurrent, the gravity of the total criminal conduct must be reflected in the leading sentence." 78 I observe that as appears to be now required by Pearce, 1998 HCA 57, I am required to separately state what would otherwise be the separate sentences for each offence. In that regard I indicate that I would regard as an appropriate sentence for the murder, if it stood alone, to have been one involving a minimum term in the order of eighteen years, with an additional term of five years, and an appropriate sentence for the malicious wounding, had it stood alone, to be one involving a minimum term in the order of six years, with an additional term of two years. It is against that background that I will sentence the prisoner. 79 I have come to the conclusion that the proper course is to order that the sentences be served concurrently, and that in order to give proper effect to the totality of the criminality involved, it is appropriate to deal with the offence of malicious wounding by a fixed term that will be absorbed in the sentence for the offence of murder and to extend the latter sentence beyond that which I would otherwise regard as appropriate had it stood alone or had the matter been dealt with on a basis of accumulation. In the light of those principles and my assessment of the objective and subjective circumstances I will proceed to sentence. Stand up please, Mr Hearne. 80 Murray Walter Edward Hearne, for the offence of the malicious wounding, to which you have pleaded guilty, I sentence you to a fixed term of penal servitude for six years to date from 3 March 1998, that being the date on which you were first taken into custody. For the offence of murder, to which you have pleaded guilty, I sentence you to a minimum term of penal servitude for twenty years, such sentence to be served concurrently with the sentence I have just pronounced, that is to commence from 3 March 1998 and to expire on 2 March 2018. I further sentence you to an additional term of penal servitude for seven years to commence upon expiry of the minimum term. The earliest date on which you will be eligible for release on parole will accordingly be 2 March 2018. 81 I specify, for the purpose of section 6(3) of the Sentencing Act, that the reasons for imposing a fixed term for the offence of malicious wounding, relates to the circumstance that the two offences were part of a single episode, and to the further circumstance that the sentence for murder must necessarily exceed that for the offence of malicious wounding so that the latter will be totally absorbed in the former. In those circumstances there is no reason for an additional term. 82 Finally, I observe that the age of the prisoner, the possibility that by reason of his youth he may spend some time in protection, and the lengthy period of imprisonment that he must serve, as well as the desirability of a lengthy period of supervision post-release so as to facilitate his eventual return to society, do constitute special circumstances within section 5(7) of the Sentencing Act, and would permit a departure from the prima facie proportion between the minimum and additional terms. However, in this case, I do not consider that a minimum term less than that I have determined is proper and properly reflect the objective and subjective criminality of the prisoner. The additional term which I have rounded up to seven years, and which I have adjudged appropriate, provides in my view an adequate period for post-release supervision. I accordingly see no reason for, or utility in, any adjustment of the minimum and additional terms save for the minor extent to which the additional term of seven years exceeds one-third of the minimum term of twenty years. I observe in this regard that any further extension of the additional term beyond seven years might, in fact, work an unfairness to the prisoner since it should not be overlooked that any breach of parole, during an additional term, may lead to the return of the prisoner for the remainder of the additional term.

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