R v HORE

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: The offender, Anthony John Hore, was found guilty by the jury of the murder on 19 March 2000 at Silverwater of Stephen Anthony Moore. At the time of the death of the deceased he, the offender, his co-offender Stanley James Fyffe and a man I shall call X were prisoners serving their sentences at the Silverwater correctional facility. All were housed in B wing. 2 B wing is one of a number of free-standing brick buildings arranged more or less on a north-south axis. It is the most southerly building and its main entrance is on its north side, facing other blocks. To the south of its southern side is a small yard, bounded to the south by a wire mesh fence behind which are tennis courts and the southern perimeter wall of the complex. The southern side of the wing comprises two walls of equal length which join in the centre in a concave right angle. The wings formed by the walls make the yard a secluded place. Another feature which makes for its seclusion is a flat awning supported on posts and attached to the walls. It is triangular and fits into the corner where the walls meet. It covers only part of the yard. Although the windows of some cells overlook the yard they do not for the most part afford any view of events happening under the awning. 3 In March 2000 inmates used to use the yard for sporting exercises of various kinds. Balls would be thrown and bounced. There was a punching bag hanging on a hook secured to the underside of the awning. Access from the northern side of B wing to the yard at the southern side could be gained by walking round the wing on the eastern or on the western side. 4 The wing lies in a minimum security part of the complex and for the most part inmates housed in it, as well as those housed elsewhere in the complex, had the free run of the wing. They could visit each other's cells. 5 The deceased shared cell 75 with William Bond. The offender occupied cell 72 alone. Fyffe shared cell 70 with William Charlton. X shared cell 71 with another inmate. 6 I am satisfied that at about 1.30 pm on the day the deceased was murdered Fyffe and X took a block of sandstone slightly larger than a football and weighing more than six kilograms from the front to the back of the wing. They left it near to or in the place where the deceased was killed in preparation for the attack on him. As they transported the block they threw it back and forth between themselves as though it were a football. They did so in order to divert suspicion from themselves by appearing to be involved in innocent play. 7 Shortly before the deceased was murdered another inmate saw three men walking together towards B wing from the direction of C wing. When they arrived at B wing they separated. Two of them walked around the eastern side of the wing and went towards the back, out of sight. The other went into the wing and emerged some two minutes later with the deceased. They were walking very closely together and talking in a friendly manner. They walked around the western side of B wing towards the back. 8 Later on the same three men, but not the deceased, re-emerged from the back of the wing, walking along, talking, laughing and patting each other. They continued on towards C wing. Shortly afterwards the deceased was found and the alarm was raised. 9 The witness recognised the men but could not name them. He described them in a way that fitted the descriptions of the offender, Fyffe and X. 10 A further inmate occupied cell 57, which was on the first floor overlooking the yard at the rear of the wing. He was half-seated, half-lying on his bed with his back to the wall in which the window was mounted. His attention was drawn to three or four thudding noises coming from the yard. Each thud was followed by a sound he described as "weird". The noises were unlike those that normally came from the yard. He raised himself on his bed, looked out of the window and saw two men walking away from the direction of the awning. He recognised them as inmates he had seen in the wing. He identified the offender by his nickname, Horse, and correctly stated that he occupied cell 72 alone. He gave a description consistent with the offender's. He identified Fyffe. His evidence was impressive. The jury accepted it. 11 Police took a pair of work boots from the offender's cell and sent them for testing. DNA was extracted from the boot tabs and from the interior of one of the boots, but test results showed no more than that several people had used them and that the offender could have done so. On the medial surface of the right boot the police found a pattern of circular red spots that looked like blood. Although the substance was not tested other than presumptively for blood, material taken from that part of the boot yielded DNA. According to Sergeant Jones, a police officer who has made a study of the topic, the spots were consistent in size and distribution with medium velocity blood impact spatter. Such spatter takes place when the object spattered is within one metre of a source of blood. The DNA, which came from only one person, was compared with DNA extracted from the blood of the deceased. The samples matched. The statistical chances of a match with the DNA of anyone but the deceased was reckoned at less than one in ten billion. 12 It was submitted on sentence, as at trial, that the Crown had not proved that the spots on the boot were blood. In my opinion all the circumstances combine to show that the spots were blood, that they were the deceased's blood and that they were on the offender's boot. If it were necessary for me to be satisfied beyond reasonable doubt about these matters I would be so satisfied. 13 The deceased's body was found lying in the yard under the awning. Near it were found the sandstone block and a half-brick, each bearing his blood. Hair adhered to the half-brick. Dr Hulewicz examined the body. There was no substantial injury to any part of the body other than the head. The hands, wrists and forearms bore abrasions that must have been sustained as the deceased tried to defend himself. There were minor abrasions and bruises to other parts of the body. Eighteen lacerations, abrasions and bruises were seen on the head. A triangular laceration to the forehead, three and a half centimetres by two and a half centimetres in size, was consistent with having been caused by a corner of the half-brick. The other injuries were consistent with having been caused by the sandstone block. 14 The injuries to the skull were of a kind ordinarily seen only when deceased persons have been injured by lateral skull impact in motor vehicle accidents or in falls from height. There was what Dr Hulewicz called a hinge fracture which passed horizontally from side to side across the base of the skull, from temporal bone to temporal bone, enabling the skull to be opened and closed. Several fracture lines radiated from that fracture into the front and the right of the skull. Two fracture lines extended from the great foramen into the right and left sides of the back of the skull. There was subdural haemorrhage over the base of the brain. The right lower jaw and the cheekbone were fractured. The left cheekbone was fractured. There was a comminuted fracture of the right side of the hard palate. 15 Dr Hulewicz thought that the injuries were caused either when the sandstone block was held and used to strike the deceased's head once or more than once or when it was dropped one or more times onto his head. 16 Photographs tendered in evidence show splashes of blood on the walls adjacent to the place where the deceased was killed. They show that at least one blow was delivered with great force after the deceased began bleeding. The splashes are low on the walls and show that the blood source was near ground level. This evidence and the evidence of what the inmate heard from cell 57 satisfies me that the sandstone block was dropped three or four times onto the head of the deceased as he lay on the concrete surface of the yard. I think that the thud that he heard was the sound of the block striking the skull of the deceased. The block would have rolled onto the concrete surface of the yard after hitting the skull, and the sound of its doing so may have been the sound the inmate could only describe as "weird". It is possible that before the block was dropped onto the deceased's head he was felled by a blow with the half-brick. 17 There is no evidence to show precisely when the offender entered the compact to kill the deceased, but he must have done so before he, Fyffe, X and the deceased walked to the back of the wing. He must then have known that the others had placed the sandstone block there. 18 There is no evidence of who used the half-brick or of who dropped the sandstone block onto the deceased's head. All that can be said about the offender is that he was present with the intention that the deceased should be killed and participated by either doing the act which caused death or by assisting in its commission or by encouraging another or others to do so. The condition of his boot shows that he was standing within one metre of the deceased's head when the block was dropped upon it. 19 There is no evidence to suggest why the offender participated in the murder of the deceased. 20 S 19A Crimes Act provides that a person who commits the crime of murder is liable to imprisonment for life and that a person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. The section also preserves the Court's discretion to impose a sentence of imprisonment for a specified term. 21 Subs 61(1) Crimes (Sentencing Procedure) Act provides that 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. By subs (3) nothing in subs (1) affects the discretion of the Court that arises under subs 21(1) to impose instead a sentence of imprisonment for a specified term. It is now settled that notwithstanding the terms of subs 61(1) the Court retains a discretion in any case whether to impose a sentence of imprisonment for life or for a specified term: R v Harris [2000] NSWCCA 469. 22 The offender was born on 20 November 1965 and was thirty-four years of age when he murdered the deceased. He is now thirty-six years old. He is powerful and well-built. During his early teenage years he was dealt with by the Children's Court for numerous offences of stealing. Between 1984 and 1986 he was convicted four times for stealing and like offences and robbery. In June 1987 he was released from prison on probation. On 14 December 1987 he went in the company of Ms Christine Rush and another to rob a man at his house in Newcastle. He took no weapon but as he entered the premises he picked up a spade and left it close at hand. They carried out the robbery as planned. The offender killed the victim with the spade. On 29 July 1988 he was sentenced to imprisonment for life. The judgment of the trial judge includes these passages - It must be said on your behalf that you appeared to show some vacillation in the early stages, as to whether to proceed with this projected robbery, and you required some encouragement from your co-offender before you went back and committed the offence. However, having embarked upon it, you did so with the greatest of savagery and violence, leading ultimately to the infliction of horrible injuries on that man. You tackled him, it seems, and he went to the ground. But he was still struggling, he was kicking at you, and this was too much for you. You grabbed the spade and, it would seem from the medical evidence, you struck him on four separate occasions with different parts of it. Two blows were to the head, one of them to the back of the head. Presumably that was inflicted with a corner of the spade, for it gouged out a portion of his skull. The last and final blow was with one side of the spade, and it penetrated deep into that man's face, approximately at eye level, going three and a half centimetres into the skull according to the medical evidence. A mere statement of that final injury indicates the force with which the blows must have been inflicted, and it is little wonder in the circumstances that the jury returned the verdict it did. It was an entirely uncalled-for, unwarranted attack on a defenceless man who had done nothing whatsoever to provoke it. Indeed, you said at the time that all you wanted to do was to stop him from kicking, he being already it seems on the ground at the time. 23 A concurrent sentence of fourteen years' penal servitude was imposed for robbery with striking. 24 The offender's case was that he had committed the offences because Rush nagged him into the robbery. In sentencing Rush on the same day the trial judge found that although there was evidence that Rush was an immature and dependent person she had not bent to the offender's will on that occasion. She was the instigator. 25 In August 1997 the offender applied to the Court under s 13A Sentencing Act for a redetermination of his life sentence. The term imposed for the robbery had already been translated under the provisions of the Sentencing Act to allow for remissions and had expired. Before the Court was a report dated 20 June 1996 from the Serious Offenders Review Council. It showed that the offender was still classified A2, which required that he be kept in a maximum security institution subject to electronic surveillance. According to the report, antisocial tendencies had begun from the start of his incarceration. Although a number of goals were achieved under a therapeutic programme at the special care unit at Long Bay, his behaviour had deteriorated when he was pressured to communicate more. He had threatened other inmates with knives. 26 In 1991 he was placed in segregation for skylarking and fighting with other prisoners. He had tried to commit suicide by hanging. By May 1993 there was a history of suicide attempts and he was assessed as emotional, lacking the ability effectively to handle any personal crisis. He and another prisoner had been standing over inmates for items of food. 27 In May 1993 he became involved in acts of vandalism and of standing over other inmates, again in the company of another prisoner. 28 In 1994 he incurred a number of misconduct reports. Weapons capable of inflicting serious harm were found in his cell. He was moved to another prison and went on a hunger strike and cut his arm with a razor blade. 29 He was treated for depression in January 1995. In February 1995 he pleaded guilty to assaulting two female prison officers. He was found to have committed theft. In December 1995 he was found unconscious in his cell, having apparently overdosed on heroin. 30 The report concluded with the opinion that he had made little progress in qualifying for release. His behaviour had been unstable, oscillating between episodes of self-harm and aggression with violence towards others. There were prospects of some progress to a lower security classification but time would be needed to effect any substantial and long-lasting change in his attitudes and behaviour. 31 In a supplementary report of 13 March 1997 the Council referred to an incident in June 1996 in which the offender threw a cup of hot water at a prison officer. He was charged with assault and sentenced in the Local Court to two months' imprisonment. The report concluded by stating that the offender's instability had continued. He would require ongoing support and psychological assistance over a long period if he were to develop to a point at which he would be ready to return into the community. 32 Evidence was called from Mr W J Taylor, a consulting psychologist. In the opinion of Mr Taylor, a sense of hope that he would ultimately be released would contribute to the offender's motivation to improve his own functioning. He pointed to the age of the offender and to the experience that the patterns of rule-breaking associated with antisocial personality disorder, which the offender was said to have, tended to diminish by the fourth decade of life. Mr Taylor saw signs of personality development. The Court accepted the evidence of Mr Taylor. 33 The judge hearing the application thought that there were a number of indicators suggesting that the offender was moving towards rehabilitation despite disciplinary problems that had occurred during his imprisonment. He accepted that the offender had made an effort to improve himself by way of education and had gained some insight into his own behaviour. His Honour considered that there were significant indications that the offender was better motivated to achieve a successful release into the community but thought that there was no serious prospect of that being achieved before the expiration of a further three years. His Honour set a minimum term of thirteen years expiring on 13 December 2000 and an additional term of seven years. 34 On 15 November 1998, about eleven months after the redetermination of his sentence, the offender was housed at Junee Correctional Centre. He went into the cell of another inmate, seized him by the throat and lifted him clear of the floor. His victim was a small man. He pushed him against the concrete wall of the cell and let go. The victim fell to the floor. As he did so the offender pushed his head against a desk or shelf, causing a deep laceration in the man's head. When the man was on the floor the offender kicked him a number of times in the lower back and hip. He left the cell and his victim. He told two other inmates that he thought that he had killed him. As a result of the assault the victim sustained a deep laceration to the left side of his head. His skull was visible under the laceration. He also sustained severe bruising. The offender was sentenced to twelve months' imprisonment for the malicious infliction of grievous bodily harm, accumulated on the minimum term of the redetermined sentence and expiring on 18 January 2001. 35 The offender did not give evidence on sentence. Counsel put before the Court a report of Dr Westmore, psychiatrist, dated 9 August 2002 and a report of Mr Diment, psychologist, dated 9 August 2002. Dr Westmore found the offender to be pleasant and co-operative, sitting quietly during the course of the assessment. He noted no psychotic features. He thought that the offender's early contact with the criminal justice system suggested that he had an antisocial personality disorder or traits of that type. He also qualified for the diagnosis of episodic alcohol abuse and polysubstance abuse. He thought that the incident in 1996 when the offender threw a cup of hot water at a prison officer and the assault on the fellow inmate of November 1998, together with the murder for which I must impose sentence, raised questions about the offender's developing personality, specifically whether or not his antisocial personality disorder was changing at all with the passage of time and life experiences. Dr Westmore observed that as a general statement personality is not a static phenomenon and that with advancing years individuals' personalities tend to mature, develop and in many ways settle. That, Dr Westmore says, is particularly true of individuals who demonstrate behavioural disturbances during their early life. He thought, notwithstanding the seriousness of the present matter and the two previous incidents, that it was probably reasonable to assume that the offender's personality had developed to a degree. He noted by way of example the completion of a number of courses and the fact that the offender had obtained further education. He accepted the offender's statement that he generally got on with other prisoners and prison officers and thought that that might suggest that personality characteristics were settling to a degree at least in some areas. 36 Dr Westmore asked the offender about the murder but the offender said that he had no idea about the events leading up to the charges. He said that he was innocent. There was some political significance in the fact that he had been charged, he said. He was being used as "a scapegoat". Dr Westmore was therefore unable to comment about regret or remorse. He thought that if the offender did commit the second homicide then there were grave prognostic indicators regarding his potential future behaviour. 37 The offender denied to Mr Diment as well that he had anything to do with the murder of the deceased. Mr Diment tested the offender, who scored in the minimal range for clinical anxiety and depression. He thought that he had a realistic, well integrated personality profile, which contrasted with psychiatric and psychological assessments carried out earlier in his life indicating antisocial personality disorder and labile mood and at different times to the point of depressive illness. He thought the offender coherent and composed, considering that he was about to be sentenced. He thought him open, personable and co-operative during the interview. He said that the offender regretted what happened to the victim but could not express remorse because he had not done it. 38 According to Mr Diment the assessment showed that with professional help the offender had "reversed" or improved his serious personality and behavioural characteristics evident earlier on. He noted that the offender had had a difficult upbringing with an absent or ineffectual father, bearing the brunt of his mother's alcohol problems at an important developmental stage in his life. He had been vulnerable to influence by Ms Rush when twenty-one years of age, with tragic consequences. He thought that the offender would benefit from further appropriate psychological assistance to consolidate gains. 39 I am unable to accept Mr Diment's conclusions. I am in no position to comment upon the manner in which psychological tests were administered to the offender, but I do not understand how a conclusion can be reached that the offender is now contented, composed, reasonable, reality-oriented and has a sense of self-worth, although slightly inhibited, as Mr Diment says, rather than continuing to display symptoms of antisocial personality disorder. I do not accept that he has reversed or improved his antisocial personality disorder or his behavioural characteristics. I think that Dr Westmore's observation is much nearer to the truth, namely that if it be accepted that the offender did murder the deceased, as it must, there are grave prognostic indicators for his future behaviour. 40 The offender is utterly without remorse. The murder of which he stands convicted is the latest in a series of violent attacks on other people, prison inmates, prison officers and members of the public. I see no prospect of his rehabilitation. I think that he is dangerous and that the community needs to be protected from him. 41 A serious feature of the murder is that it was carried out in a prison. It was a minimum security prison and the offender abused the freedom that his classification in that environment afforded him. It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them. 42 The murder of the deceased was an execution of the coolest kind. It was carefully planned. The deceased, a man of small build, was lured under some pretext to the place of execution. He was there swiftly and efficiently put down by three strong men. His injuries were horrific. The murder was an act of great depravity. The fact that it is not possible to say precisely why the offender committed the offence or what part he played does not remove his crime from the worst category of offences of murder. Neither does the fact that he was not involved in placing the instrument of execution at the place of execution. 43 In my opinion the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only through the imposition of a sentence of imprisonment for life. 44 Anthony John Hore, you are sentenced to imprisonment for life. Your sentence will be taken to have commenced on 19 January 2001. **********

Last Modified: 09/02/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.