R v HOLCROFT [2010] NSWSC 1294 | Case summary

REMARKS ON SENTENCE 1 RS HULME J: On 27 April 2010 Benjamin Wayne Holcroft was convicted by a Jury of the murder of Danny Ralph on or about 29 March 2008. 2 Mr Holcroft now stands to be sentenced. I instruct myself that any conclusions at which I arrive in the process must be consistent with the verdict of the jury, that insofar as I make other findings adverse to the Prisoner I must be satisfied of them beyond reasonable doubt but that I am only required to be satisfied of matters in mitigation on the balance of probabilities. 3 Early on the morning of 29 March 2008, on a suspension bridge which crosses the Queanbeyan River and runs between Isabella Street and Trinculo Place, Queanbeyan, the deceased was beaten. It is likely that the deceased was on the bridge in the course of going to his more after a night out. 4 He was then thrown or dropped off the bridge into the river. After some earlier evidence indicating that he thought the deceased might have been killed by the blows he received, Dr Deflou, the pathologist who conducted the post mortem examination of the deceased came around to the conclusion that the deceased had died as the result of drowning. 5 On post mortem, the deceased was found to have suffered extensive bruising involving the entire scalp, subdural and subarachnoid haemorrhages which, while not large in quantity, occurred in multiple location, indicative of multiple movements of the head under the influence of appreciable force. There was very extensive bruising on all aspects of the face, a complex fracture on the right side of the jaw and a simpler fracture on the left side. There was a fracture of the sixth rib on the left side and bleeding within the scrotum probably due to a blow to the testicles. There were a number of regularly spaced linear imprints on five areas of the face. Although there were no comparative measurements of these and parallel grooving of the surface of the footway of the suspension bridge, it is likely they were caused by the face coming forcefully in contact with that surface. In addition there were a number of other more minor bruises and abrasions. 6 The beating which the deceased received was savage. The evidence persuades me that at an early stage, the deceased was assaulted at what was referred to as site 3 with an external force (or forces) being applied to a blood source about 800 millimetre above the footway causing impact splatter evident on both sides of the bridge. Sometime later a far more serious assault occurred at what was referred to as site 1, some 700 millimetres from site 3 (edge to edge). Multiple blood events occurred there to a source of blood on or just above the walkway, again resulting in substantial blood impact spatter. 7 After this the deceased was carried or dragged some four metres to site 2 from which position he was thrown or dropped over the bridge. 8 Having regard to the evidence of what happened at sites 3 and 1, I reject any suggestion that the deceased may have moved of his own volition to site 2. 9 The deceased also suffered a fracture of the body of the seventh neck vertebra, and bleeding in the pons section of the brain stem though Dr Deflou agreed that these injuries could have been caused in consequence of the deceased's decent from the bridge. 10 I am satisfied that the source of the blood that was apparent in the impact splatter was one or more parts of the deceased's head. It seems likely that the deceased was bent over or kneeling and not prone at the time of the events at site 3. 11 I am satisfied that at the time the splatter at site 1 occurred his head was on the walkway. 12 The unlikelihood of any assailant bending down so as to administer punches of that level leads to the conclusion that the cause of the splatter was a number of kicks to the head. A shoe print on the deceased's shirt provides further indication that a foot or feet were used in the assault. The extent of the blood spatter also satisfies me that the head was subjected to numerous blows. 13 Evidence tending to implicate the prisoner in Mr Ralph's death took a variety of forms. 14 At about 3.50 on the morning of 29 March he telephoned his sister asking to be picked up, and that she bring with her some clothes. They met soon after at a unit block occupied by one of her friends, and which is a short distance from the Trinculo Place end of the bridge. The prisoner said to his sister words to the effect, "I've been in a fight. I think I might have killed him." Then the prisoner said something his sister could not remember, followed by words to the effect, "When I went back he wasn't there." She then drove the prisoner some distance out of Queanbeyan where, after some conversation concerning DNA, he burnt the clothes he had been wearing. 15 The prisoner's handprint was found in blood on the bridge railing near site 2. His DNA was found near site 3. At the scene police also obtained impressions of shoe prints. Some of those prints matched, probably subject to a difference of one shoe size, a pair of shoes that were found in the prisoner's mother's car. There was evidence I found persuasive for the difference in shoe size. 16 Conversation in which the prisoner participated was the subject of surreptitious police surveillance. Police also obtained possession of letters that the prisoner had written from prison. 17 In combination, these two forms of evidence also contain admissions as to involvement in the deceased's death. 18 There was a deal of evidence suggestive of the presence of a third person at about the time Mr Ralph met his death, and who might have been responsible for throwing the deceased off the bridge. 19 In addition to what the prisoner said to his sister early on the morning of 29 March, this included evidence of a shoe print other than that belonging to the prisoner; evidence in the form of the absence of drag marks that suggested that the deceased was carried whilst on the bridge; evidence as to the nature of the blood residue on and about the railing at the place where the deceased was thrown or dropped over the bridge; statements in some of the surreptitiously recorded conversation between the prisoner and his mother; and statements in two letters he had written from prison and which were admitted into evidence to the effect that while he was involved in the events, he had not thrown the deceased off the bridge. 20 However, whether the prisoner had been involved in that last-mentioned activity was a topic which was expressly left to the jury and their verdict carries the implication that they decided against the prisoner. 21 Of course the mere fact, if it be the fact, that someone else engaged with the prisoner in the attack on the deceased threw the deceased off the bridge, would not necessarily mean that the prisoner was not guilty of murder, although that possibility was not left to the jury. 22 There was relatively little evidence which provided any indication of a motive for an attack of the nature of that which occurred. It seems that the deceased at some stage was in a relationship with the prisoner's mother, though no evidence to suggest that that relationship was recent. 23 In the letter that became exhibit AE in the trial, the prisoner wrote:- "I wish that fuckwit was killed years ago. We wouldn't have had any of these fears or worries about anything or having to watch our backs all the time and been able to live normal lives just like everyone else."

28 However, presented in the form these statements and others reproduced in documents tendered on sentence take, they are untestable and the prisoner clearly has an interest in minimising his involvement. 29 It is apparent from the surreptitiously recorded conversations that the prisoner was prepared to lie to help his cause, and in these circumstances I am not disposed to accept so much of the prisoner's count of events surrounding the deceased's death given to the author of the pre-sentence report as is self serving. 30 For similar reasons I am not prepared to rely on his statements to Dr Allnutt as to the circumstances of the offence. There is also great difficulty in reconciling a deal of what the prisoner told Dr Allnutt with the objective evidence apparent on the bridge. 31 While on the topic of statements by the prisoner, I should add reference to one in which the prisoner sought corrections to the pre-sentence report. In that statement the prisoner said he stomped on the deceased's ribs. 32 During the evening of 28 March and into the early morning of 29 March both the deceased and the prisoner spent a considerable amount of time in one or other of the Queanbeyan hotels, and although both seemed to have been at the Royal Hotel at the same time, there is no suggestion of any interaction between them that night prior to the events on the bridge. 33 A number of witnesses described the deceased as happy, or very happy, during the course of the evening. Photographs of the prisoner taken by CCTV cameras during the course of the evening, though of limited weight, do not suggest he was in an aggressive mood. 34 A further aspect of the evidence that bears on the commencements of events is the fact that the prisoner lived well away from the area served by the suspension bridge. There was no apparent reason for him to be near the bridge at 3 or 4 o'clock in the morning. The suggestion raised during the trial that he might have been attracted by the presence nearby of the local golf club, when regard is had to the closing times of that organisation, is very unpersuasive. 35 Turning to other matters, I am satisfied by statements that the prisoner made, and which were contained in evidence tendered in the trial, that the prisoner was very heavily affected by alcohol on the night. 36 The pre-sentence report indicates that the prisoner described himself to the author as a binge drinker, and tends to confirm that the prisoner had some problems with alcohol prior to his arrest. The report records that prior to the prisoner's arrest he had been in a relationship for some ten years, and although he had separated from his partner, the two person remained close. 37 The report also records that until his arrest the prisoner had had custody of his two children, had been in full-time employment, was completing his last year of a carpentry apprenticeship and was paying off the apartment in which he lived. 38 To the author of the report the prisoner stated that he did not kill the victim, did not throw him off the bridge and had left him on the Queanbeyan Bridge alive. Mr Holcroft also said during the interview, "I am sorry for what I have done." The author of the report later observed that it was uncertain whether this extended only to his current personal circumstances in custody, as no victim empathy was observed. 39 The prisoner was born in May 1983. He has a minor criminal record for offences in 2001, one of driving whilst disqualified and one of burglary, for which he was ordered to perform eighty hours community service. I regard those offences as of no significance for present purposes. 40 There was nothing in the evidence in the trial to suggest that prior to the attack on the deceased the prisoner had a history of violence. Indeed, in statements he made in the surreptitiously recorded conversations, and which I am disposed to accept, he asserted a history of not starting fights and drew attention to occasions when he might have been violent and was not. 41 There was tendered on the prisoner's behalf a report from a well-known psychiatrist, Dr Allnutt. On the basis of what the prisoner told him, Dr Allnutt recorded that the prisoner had been disruptive at school and had been suspended and eventually expelled for this, that he had been something of a loner and shy. A child assessment report of October 1993 recorded that the prisoner felt insecure and anxious, with reason to be. 42 It would seem that the prisoner had had multiple contacts with mental health services, originally in consequence of his disruptive behaviour, and later at least for depression. He reported to Dr Allnutt depression and avoidance of people. 43 Prior to the prisoner's arrest he was on Zoloft, a drug used to treat depression and social anxiety disorders. 44 The prisoner also reported that he had commenced drinking at age fourteen, and also commenced the use of cannabis, and that by the time of the offence he was drinking one bottle of vodka a day and smoking cannabis regularly. Both of these drugs helped the prisoner to feel better. 45 There was further evidence bearing on the history. The evidence at the trial of the prisoner's socialising on the night of the deceased's death and other statements by him indicate there were clearly limits to his avoidance of people. The child assessment report to which Dr Allnutt referred was eventually tendered. It confirmed, in spades, Dr Allnutt's summary of it. 46 At the time of seeing the prisoner in August of this year, Dr Allnutt concluded that the prisoner was manifesting residual symptoms of resolving chronic schizophrenia with mild paranoia. It is not necessary that I detail all of the matters that led Dr Allnutt to that conclusion, but I accept it. 47 Dr Allnutt went on to say that he thought that at the time of the offence the prisoner was suffering from symptoms of schizophrenia and depression, although the doctor found it was difficult to draw any firm conclusion about the contribution the prisoner's schizophrenia and depression might have made to the events. 48 The prisoner had provided to Dr Allnutt an account of those events. Aspects of that account are not easily reconcilable with the objective evidence on the bridge, and because of this, the state of intoxication that the prisoner was in, a fact liable to have affected his recollection, and my earlier expressed reservations as to the prisoner's reliability, I am not disposed to accept much of what the prisoner told Dr Allnutt in this regard. With one qualification to which I will come, I am also not persuaded that the prisoner's schizophrenia and depression had any significant part to play in the deceased's death. 49 For completeness, I should add that there is nothing in Dr Allnutt's report to suggest that any mental problems the prisoner may have are likely to make his incarceration harder than it would be for someone without mental problems. 50 I mention one other matter that is not in Dr Allnutt's report. That is the coincidence between the fact that the prisoner, in Dr Allnutt's view, suffers from schizophrenia and paranoia or symptoms, and secondly, the evidence that the prisoner regularly ingested cannabis. Experience in the Courts certainly suggests that the sooner people learn that cannabis may well be a cause or precipitating factor in the development of schizophrenia and paranoia, the better. 51 Against this background, I turn to the issues that fall for decision. 52 I am not persuaded that the prisoner had any intention to kill the deceased. Although the prisoner's presence at the bridge makes one wonder if there was some premeditation, at least of an attack on the deceased, there is no history making this likely, and if it was to occur, there had been plenty of time earlier than March 2008. In the result I am not persuaded that there was any premeditation. 53 Somehow an altercation commenced. The injuries to the deceased inflicted on the bridge indicate that in the course of it the prisoner, and possibly a co-offender, lost any reasonable degree of self control. On the basis of common experience, and the absence of the prisoner having a history of violence, it is likely that the lack of self control and violence were contributed to in significant measure by the amount of alcohol he had ingested. 54 I said above that with one qualification I was also not persuaded that the prisoner's schizophrenia and depression had any part to play in the deceased's death. Common experience is that often people who are depressed, or who have a variety of mental problems, and whether or not these constitute mental illnesses or disorders, do lose their temper more readily, and to a greater degree, than those who are better adjusted. To that extent it seems likely that the prisoner's problems probably had some part to play. Nevertheless, I have no doubt that the prisoner's intoxication played a much greater role in his loss of self control. 55 I should add that I do not regard the prisoner's intoxication as an aggravating or mitigating feature. 56 The absence of any history of violence while intoxicated leads me to the view that intoxication on this occasion should not be regarded as an aggravating circumstance, but the fact that alcohol is notoriously a factor that disinhibits or contributes to a loss of self control leads me to the view that it should not be regarded as mitigating. 57 Nor in the circumstances of this case and I prepared to find to the requisite standard that the throwing or dropping of the deceased off the bridge was with an intention to kill. Even at 3 or 4am the bridge remained a public thoroughfare, the deceased may have been unconscious, dead or apparently dead. I cannot exclude as a reasonable possibility that he was thrown or dropped off the bridge with a view to concealing, at least for a time, what had occurred, and that the only time when the prisoner had an intention to inflict grievous bodily harm was while the deceased was being beaten. My unwillingness to find a continuation of the intent is not of course an indication that the prisoner is not guilty of murder, as the jury found. (see Meli v The Queen (1954) 1 WLR p 228). 58 I am required by the Crimes (Sentencing Procedure) Act to address a number of matters. The only section to which I think it necessary to specifically refer is s 21A which lays down a number of aggravating and mitigating factors which are to be taken into account. Again, I do not find it necessary to refer to these seriatim. Some are inherent in the prisoner's offence. The only aggravating factor I feel it necessary to mention is that I am satisfied that the offence was committed in company, but in the circumstances I do not regard this as arguing for an increase in penalty. 59 So far as mitigating factors are concerned, the only ones to which I feel it necessary to refer are the following: I am not satisfied that the prisoner is remorseful, save and except for the impact on him and his family; Given that in his work and caring for his children, and relationship with their mother, the prisoner appears to have been displaying responsibility, the minor extent to which he had offended prior to March 2008 and the impact of his sentence, I think him unlikely to re-offend and to have good prospects of rehabilitation. 60 I should say that while the matters mentioned in this paragraph must be taken into account on sentence, they do not bear on the objective seriousness of the offence. 61 The same must be said of one other matter to be taken into account. The authorities indicate that considerations of general deterrence are liable to be ameliorated to a greater or less degree in the case of offender's suffering from a mental illness. I have taken this principle into account in determining upon the sentence I shall impose, but because Dr Allnutt's characterisation of it is in limited terms, the weight I have given to this factor is not great. 62 There was tendered in the proceedings a victim impact statement by Jason Ralph, a son of the deceased. That statement helps to bring home the substantial loss suffered not only by the direct victim of an offence such as the prisoner's, but also the loss suffered by friends and relatives left behind. That said, the significance to which I can afford this statement is defined by decisions such as The Queen v Previtera. 63 Section 19A of the Crimes Act renders a person who commits murder liable to imprisonment for life. 64 Section 54A of the Crimes (Sentencing Procedure) Act require that I set what is described as a standard non-parole period of twenty years imprisonment unless I determine that there are reasons for setting a different period. The standard non-parole period is what Parliament has said is appropriate for an offence falling into the middle range of objective seriousness. 65 Both of these provisions require that I make an assessment of the objective seriousness of the prisoner's offence. Although to those uninitiated in the criminal law, that may seem strange, given that, by definition, all murders involve the death of their victim, it is something sentencing requires. Reflection, however, will recognise that some murders are worse than others, for example, those of police officers in the course of their duty, those which are planned, some of children, and those involving gratuitous cruelty in addition to the death of the victim. 66 In my judgment, this case falls below the mid point in objective seriousness. It does not fall below by a large margin, but nevertheless a margin which justifies an appreciable reduction below the twenty year standard non-parole period. 67 Factors which in combination lead me to this conclusion are the absence of premeditation; that I am not satisfied there was an intention to kill; and the fact that the prisoner's mental condition, as I have found, probably played some part in his loss of self control. 68 That said, there is a major factor operating in the opposite direction. It is the extent of the attack on the deceased. There is an old saying, "You do not kick a man when he is down". Experience in this Court leads one to the view that the principle is more honoured in the breach than in the observance these days. 69 In this case the extent of the beating and kicking of the deceased was repulsive to any decent human being. 70 I was urged to find special circumstances on the basis that this will be the prisoner's first custodial sentence and because of his need for rehabilitation, referable to his mental illness and alcohol use. Having regard to the length of the balance of term which would ordinarily flow from a non-parole period of the length I intend to impose, I do not see any justification for finding special circumstances or extending the balance of term at the expense of the non-parole period on account of the prisoner's need for assistance with rehabilitation. 71 However, I do see in the fact this is his first custodial sentence justification for a finding of special circumstances, and on that account altering the relativity is envisaged by s 44 of the Crimes (Sentencing Procedure) Act and reducing the non-parole period. 72 However, there is yet another factor to which I intend to give effect. Given the length of the non-parole period I intend to impose, I do not see the need to impose a balance of term as long as one-third of the non-parole period. Nevertheless I make it clear that this reduction has had no effect on the length of the non-parole period I intend to impose. 73 The prisoner was arrested on 5 December 2008 and has been in custody since. Accordingly, his sentence should commence from the date of his arrest. 74 Stand up please Mr Holcroft. I sentence you to imprisonment for a non-parole period of seventeen years commencing on 5 December 2008, together with a further period of imprisonment of five years commencing on 5 December 2025. I record as the date upon which it appears to the Court that you will become eligible for parole 5 December 2025.

R v HOLCROFT

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Judgment (12 paragraphs)

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