R v Holland

• 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 DOWD J: The prisoner stands for sentence after conviction on 17 March 2004 on a charge of Murder. It is necessary however, for me as sentencing Judge, to form my own view of the fact provided that view is consistent with the jury verdict (R v Pilley (1991) 56 A Crim R 202).

2 The murder occurred at a campsite on a riverbank in bushland not far from Bathurst. The victim of the murder, Shaun Ellul, and the prisoner had, some few days earlier, escaped from Bathurst Gaol in the company of a Toni Cordwell, one of the two women that had assisted the escape.

3 The parties then camped for some time on the riverbank where there was a growing antipathy between the victim and the prisoner. The prisoner had kept on his person a small paring knife with a blade approximately two to three inches long during the latter part of this period. There was a larger knife available. At a time when Cordwell and the two men were at the campsite, the victim became unhappy about the circumstances where they were living and started to complain.

4 The victim insulted Cordwell, who was in a relationship with the prisoner and was some years older than him, by saying words to the effect of "Shut your mouth, you silly old bitch", or "dirty old bitch", at which the prisoner then, with intent to kill the victim, inflicted multiple knife wounds on the victim. At least thirty two-cuts could be counted from the damage to the victim's shirt which were consistent with knife wounds. There were multiple knife wounds to the neck above the shirt line which can be inferred from the evidence of Cordwell and the injuries sustained.

5 The stabbing occurred over a ten to twenty minute period, during which time the prisoner forced the deceased victim to apologise to Cordwell. The infliction of the first wound was done in such a way that the victim was thereafter unable to defend himself, since from the first wound the victim was largely disabled. During the course of these events, the victim begged the prisoner not to do what he was doing and called out, to the hearing of Cordewll, "Stop". Cordwell saw the prisoner kicking the victim around the head or shoulder, after which the prisoner told the victim to apologise to Cordwell, which he did, saying "I am very very sorry for calling you a bitch". Cordwell then saw the prisoner lift the victim's head and slit his throat causing a twelve centimetre cut.

6 Shortly thereafter, the prisoner came to where Cordwell, who had a baby with her, was and told her that if the victim did not die within half an hour he would "finish him off". Cordwell heard the victim beg the prisoner not to hurt him and said "Please cut off my arm, just let me go to sleep and I'll die". The victim was then dragged by the prisoner into blackberry bushes where he was stabbed further by the prisoner, and Cordwell heard the prisoner say, "Just let me cut your arms off. Stay still, let me cut them off" and words to the effect of "He's a hard bastard to kill" and "Just die, you bastard, just die". During the course of the stabbing the prisoner said, "The bastard won't be talking now because I have cut out his tongue from the back of his throat".

7 Shortly thereafter the prisoner stabbed the neck of the victim, so that his hand appeared to be entering a large wound, and said "There's something hard there, there's something hard, I can't snap it it's so hard". Cordwell then returned close to where the victim and prisoner were and saw the accused stabbing the area of the victim's heart. 8 Although much of the time of the trial was taken up by endeavours by the accused to discredit the witness Cordwell, it was submitted by the Crown and supported by Mr Button, Counsel for the prisoner, that the jury clearly accepted her version of what occurred.

9 In making findings in relation to this matter of the attack and the ultimate death of the victim, it is desirable, in my view, that I set out the arguments used by Counsel in submissions as to the findings of fact on which to base the sentence.

10 The Crown, on sentence, has submitted that this offence is in the worst category of offence and that the provisions of s61(1) of the Crimes (Sentencing Procedure) Act 1999, ("the Act"), apply and therefore the prisoner should be sentenced to imprisonment for life. The Crown also relied on s21A of the Act, in terms of aggravating features to be taken into account on sentencing, and relied on the criminal antecedents of the accused.

11 In support of this, the Crown submitted that the prisoner acted with the intention to kill the deceased, that he inflicted the first wound without warning to the victim, and that the offence involved repeated assaults on the deceased marked with extreme violence. The repeated assaults included the infliction of a knife wound in the area of the victim's right mastoid process which disabled him, and, notwithstanding the begging by the victim, the prisoner continued to press his assault.

12 The Crown further submitted that the appropriate starting point to consider the appropriate penalty is to consider that the offence involved the felonious taking of a human life and that the sanctity of life is significant, (see R v Low (1991) 57 A Crim R 8). 13 The Crown, in submitting that s61(1) of the Act applies, said the Court should be satisfied that the level of culpability in the commission of the offence is so extreme that there is here a community interest in retribution, community protection and deterrence which can only be met by the imposition of life imprisonment. Section 61(1) is in the following terms (and I then set out s61(6) that does not apply to a person less than eighteen years of age): Section 61 - Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. […] (6) This section does not apply to a person who was less that eighteen years of age at the date of commission of the offence.

14 The Court is, of course, empowered to impose a lesser sentence. 15 The Crown submitted that the objective seriousness of the murder is very high and it would be in the worst category of offences of this kind. The Crown submitted further that to characterise such an offence as belonging to the 'worst case' category, it must be possible to point to particular features and to postulate the absence of facts mitigating the seriousness of the crime. 16 In R v Arthurell, NSWSC, unreported, 3 October 1997, Hunt CJ at CL, applying R v Harris (2000) 50 NSWLR 409, held that "heinous", when applied to such an offence, must mean "detestable, atrocious, hateful, odious, gravely reprehensible and extremely wicked". The Crown submitted that the test is a substantial one, and has been applied to multiple killings, to a single killing which is sex-related, a 'thrill killing' where there is extended suffering or extraordinary violence or where the offender was a continuing danger to the community (see R v Kalajzich (1997) 94 A Crim R 41 at 51). 17 The Crown then referred to a series of cases where the maximum penalty was imposed for murder, as set out in R v Penisini, R v Lagi, R v Taufahema [2003] NSWSC 892, per Wood CJ at CL at para 84. It is conceded however by the Crown, that comparison with individual cases is difficult, and the Crown acknowledges that a life imprisonment has very great significance. 18 The factors relied on by the Crown that brought this particular case within the worst case category are the following:

(1) that the prisoner used surprise to disable the victim and thus this was not fair, the victim being left with no chance of defending himself; (2) that this level of surprise suggested premeditation, which does not necessarily need to involve lengthy planning, and which is an inference available from the circumstances of the murder; (3) that there were a series of attacks on the deceased as he moved away from the location of the murder to where Cordwell and her baby were and then returned; (4) that the prisoner inflicted multiple stab wounds, considerably in excess of the thirty-two defects found in the victim's shirt. 19 The Crown further submitted that the extent of the wounds, together with the comments of the deceased victim, show that the prisoner inflicted a painful death upon the victim, and that it was a slow death over an extended period. During the course of this, and while in a position of total impotence, the victim was further humiliated with being forced to apologise to Cordwell. The Crown submitted that the extent of the period of the assault amounted to physical torture and mutilation of the victim, particularly in relation to the victim's neck, throat and tongue as described by Cordwell. 20 The Crown further relied on a total absence of mitigating factors. There was no basis for the violence and no insult that could justify the behaviour of the prisoner. 21 The Crown relied on the provisions of s21A of the Act to assess aggravating factors, these being: the use of violence and weapons, the fact that the prisoner had a record of previous convictions, and that the offence involved gratuitous cruelty. The injury and emotional harm caused by the offence was substantial. The Crown submitted that the offence being committed by the prisoner as an escaped prisoner is also an aggravating factor of the offence (see R v Miles [2002] NSWCCA 276 at para 8). 22 Mr Button, Counsel for the prisoner, conceded that the attack on the victim by the prisoner was extremely vicious and extended over a period of some minutes, and that the deceased suffered a slow and painful death over that period of time, but refuted the submission that the plan was premeditated. 23 It was put on behalf of the prisoner that the Court should not find that the attack was premeditated. In supporting this, it was argued that the attack occurred immediately after the victim spoke insultingly to Cordwell, who was then in a sexual relationship with the prisoner, and that there was a substantial absence of motive in the prosecution case. It was further submitted that if it were a planned attack, one would expect a more useful weapon than the paring knife that was in fact used, and that there was a larger knife at the campsite. It was further submitted that if murder were planned, it would not have been done in the presence of Cordwell, who had not been known to the prisoner for any length of time and could not necessarily be trusted to keep quiet. 24 Counsel for the prisoner conceded, in relation to the issue of sentence of natural life, that the gravity of the offence is obvious and self-evident and a lengthy sentence should be imposed, but that this is not a murder which calls for the imprisonment for the term of the natural life of the prisoner. It was submitted that all murders are heinous and this one had bad aspects to it, but it cannot be said to fall within s61 of the Act as it is not a multiple murder or contract killing and the prisoner had not previously been guilty of homicide. 25 Although it is acknowledged on behalf of the prisoner that his criminal record shows a propensity for violence, there is nothing, in my view, in the record that would give rise to the principles relating to taking that record into account in sentencing, as in Veen v R (No 2) (1988) 164 CLR 465. His Counsel points out that one offence for violence in the Orange Children's Court on 9 July 1998 resulted only in a control order of four days duration, indicating that it was not an extremely serious offence; that an offence of Aggravated Assault with Intent to Rob in February 1999 led to a non-parole period of nine months only; and that, other than the matter now under consideration, the offences disclosed in the prisoner's record, although not good, were not "remarkably bad", to use his Counsel's terms. 26 It was further submitted on behalf of the prisoner that a sentence of imprisonment for his natural life could well create an effective head sentence for over fifty years, and is thus unwarranted and disproportionate. 27 The Court must acknowledge that the actions taken by the prisoner were those of a person of youth who was, for his age, clearly immature and socially dysfunctional, as set out in the pre-sentence report to which I will later refer. 28 I consider that although it was a possibility that the prisoner, in retaining the knife used in the attack, retained it for the purpose of killing the victim, it was also possible that the knife was retained for self-protection or for giving the prisoner power over the victim or others if the need arose. I cannot be satisfied however, on the available evidence, to the requisite criminal standard, that the stabbing which led to the death of the victim was other than a spontaneous, although grossly disproportionate, reaction to the victim's insult to the prisoner's somewhat older girlfriend and thus not a premeditated act. 29 Absent premeditation and any other such factors, I do not consider, horrendous though the events are, that this is a matter coming within a level of culpability that the community interest in retribution, punishment, community protection and deterrence should be met through the imposition of life imprisonment. 30 Notwithstanding that finding, I have taken into account each of the matters put by the Crown, as summarised above, in assessing the seriousness of the offence and in considering an appropriate penalty. 31 I consider that in aggravation I should take into account that the offence involved the actual use of violence, although this must be tempered by the fact that most murders involve violence. The offence, however, did involve the use of a weapon. The prisoner has a record from previous convictions, although his record is not such as in my view that his previous convictions should be taken into account in the sentence to be imposed for this offence. 32 The most significant factor under s21A of the Act is that this offence involved, to an enormous extent, gratuitous cruelty. The actions of the prisoner over a long period of time involved actions in the nature of torture and totally unwarranted gratuitous cruelty, and indeed also inflicted terrifying emotional harm, as can be assessed in the comments of the victim as given by Cordwell in her evidence. The offence also involved a series of criminal acts. 33 In assessing the appropriate penalty, the Crown submitted that the Court should take into account the criminal record of the prisoner. The Crown, as I have said, pointed out that the prisoner's record commenced at age sixteen and that his first gaol sentence was for an offence of Aggravated Assault with Intent to Rob and Assault Police Occasioning Actual Bodily Harm, for which he received a two year and three months sentence with a minimum period of nine months on the first offence. The Crown pointed out that a Parole Board had cancelled a periodic detention order and that the prisoner had been returned to gaol. 34 The Crown further submitted that the criminal record of the prisoner is relevant as to whether the offence is an aberration or an indication of a continuing attitude of disobedience and of crime. I note the Crown's submission that in latter case, that may indicate that a more severe penalty is warranted in the interest of retribution, deterrence and protection of the community. 35 Notwithstanding these submissions, I consider that the events leading to the commission of the offence for which the prisoner stands for sentence are so horrendous that it is not necessary to take into account his criminal record as an aggravating factor. I do, however, rely on the gratuitous cruelty and the use of a weapon as aggravating factors in assessing both the non-parole period and the total sentence. 36 Turning to the subjective factors, the Court has been assisted by a short but clearly heartfelt personal reference by a man and woman who live on the land, who knew the prisoner and spoke well of the likeable nature of the prisoner and their shock at hearing of these offences. 37 The prisoner is a very sad man who has now only one relative who may possibly keep in touch, that being his sister. His sister was out of contact with him for some time, but she remains largely the only hope of outside contact while the prisoner is in full-time custody in an otherwise friendless existence without any other normal family contact. The pre-sentence report of the Probation and Parole Service said that the prisoner's life was one of constant upheaval, with his mother and stepfather travelling about on a seasonal basis from state to state, never allowing the prisoner to settle into a normal life. 38 There has not been any psychological intervention on behalf of the prisoner and it appears to me this is clearly necessary. 39 The prisoner has the younger sister, from his parents' first marriage, to which I have referred. His father died in July 2003 due to liver damage from alcohol abuse. The prisoner's father was an abusive father and his mother had to frequently hide the prisoner. Both of his parents had four children from later relationships. His mother had a series of relationships and tended to be dominating and interfering in the life of the prisoner. He remained with his father for some two years until his father was incarcerated. He then remained with his mother until an altercation with his mother's drunken fiance caused his mother to hit him and stab him in the hand. He left home and worked as a stable hand, but then lost that job because of his convictions. He lost an aspiration to become a jockey, which he held for some time. 40 The prisoner has a three year old son who resides with his former partner who had left him, after which the prisoner increased alcohol consumption and the use of illegal drugs. The prisoner's education ceased at year 7 after he left home. He had been enrolled in a number of schools. The prisoner has suffered from a period of drug and alcohol-related problems. 41 By virtue of his plea of 'not guilty', the prisoner has not shown any remorse for his actions, and his attempts during the trial to assign blame to Cordwell shows no remorse. 42 I turn now to the issue of sentencing, considering the factors set out above, which I take into account not only in the setting of the proposed head sentence but the setting of the non-parole period. 43 The purposes of sentencing are: denunciation of the offence, deterrence, (which in this case applied both to the prisoner and generally), the issue of rehabilitation or reform, and retribution. The application of these principles vary. I refer to the majority judgment of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R (No 2) supra, at 476: "[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 44 The protection of the community is a relevant factor for the prisoner. The prisoner has not shown that he has learned from opportunities of assistance previously given to him and, absent psychiatric and counselling care, it cannot be said that the he will not re-offend, although that is now going to be some time in the future. 45 The issue of general and special deterrence was set out by Street CJ in R v Rushby [1977] 1 NSWLR 594 at 597: "[O]ne of the main purposes of punishment… is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised communities, in all ages, that has been the main purposes of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment". 46 The youth and immaturity of the prisoner may well provide an opportunity, during the period of imprisonment and during any period on parole, to lead to some rehabilitation and, therefore, deterrence. Thus, I propose a period of parole in which the prisoner should be supervised and assisted by psychiatric treatment, as he should be psychiatrically treated during the non-parole period. 47 The non-parole period that I propose is intended to be the minimum period which, in the circumstances of this offence, is warranted (see Bugmy v R (1990) 169 CLR 525). 48 The Court, in imposing the head sentence and fixing the non-parole period, must show its denunciation of the crime committed and reflect the moral outrage of the community. 49 This offence was an horrific, painful, callous and horrendous series of events. Although triggered by a trivial insult to the prisoner's then girlfriend, the actions were aggravated by the circumstances which I have set out above and were committed at time when the prisoner had escaped from custody. The attitude displayed by the prisoner during the course of the killing of the victim has to be denounced by the seriousness of the penalty to be imposed. 50 I have read the victim impact statement by the victim's mother setting out the very serious effect that the death of the victim has had on her and the other members of her immediate family. The Court acknowledges the very serious pain and damage which the family has suffered. In sentencing, however, I have not taken those matters into account but would hope that the penalty which I propose to impose would in some way provide closure for the members of the family and to ease somewhat their pain and suffering. 51 I find beyond reasonable doubt that the death of the victim was caused by the vicious and violent act of stabbing by the prisoner, and that the act was carried out with the intention to kill the victim. 52 I find the prisoner guilty of the murder of Shaun Ellul. 53 The Court, in sentencing, must first fix a non-parole period for the sentence and then must fix the balance of the term of the sentence, which must be not greater than one-third of the non-parole period unless there are special circumstances for exceeding that one-third. 54 I have considered whether the Court should find special circumstances for having a longer parole period, in particular the very lonely time which the prisoner will have whilst in custody with only the uncertain hope of visits from his sister. I have also considered his immaturity and the prospects of rehabilitation in examining the question of the finding of such special circumstances. 55 I consider that the period during which the prisoner will be eligible for parole which I propose is sufficiently long to accommodate those needs, as best one is able to assess matters in the future, in light of the time that will elapse. 56 To assist in the granting of parole, a factor to be taken into account by parole authorities is that there is clearly a need for the prisoner to undertake psychiatric examination and counselling and treatment, as well as treatment for drug and alcohol abuse, during the non-parole period to enable him to better adjust to society and to ease his transition from his period in custody to release to the outside community. 57 During any period of release to parole, the prisoner should be under the supervision of the Probation and Parole Service and should undertake such psychiatric or other treatment as that service considers necessary to assist him during the period of parole to adjust to society. 58 Would the prisoner please stand. 59 You have been found guilty by a jury of the offence of Murder. I have found, as sentencing Judge, the elements of that offence made out as I have set out above. You are convicted of the offence of murder. The sentence that I propose will take into account the period which you have been in custody bail refused on this offence only. I have taken that as from 31 May 2003. 60 Because of the serious nature of this violent and vicious crime, I propose a total period of incarceration of thirty years, which comprises the period which I first set as a non-parole period of twenty-three years, that sentence to commence on 31 May 2003 and to conclude on 30 May 2026, from which time you will be eligible for release to parole. That release to parole is to be subject to the supervision of the Probation and Parole Service. I fix the balance of the term of the sentence at an additional period of seven years to commence on 31 May 2026 and to conclude on 30 May 2033. **********

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