R v Humphries

Supreme Court of NSW|2012-04-20|Before: Hulme J, Mr J

Judgment 1HIS HONOUR: The offender, Ricky Leigh Humphries, has pleaded guilty to the manslaughter of Mr Saaid ("Sid") Zaiter at Chinderah on 16 December 2008. This offence is one that carries a maximum penalty of imprisonment for 25 years.

Facts 2According to the statement of facts, the principal offender was Rodney Boyd White. Mr White and Mr Zaiter were known to each other. Both were involved in the illicit drug trade and White purchased drugs from the deceased from time to time. 3White lived in a cabin in a caravan park at Chinderah with his girlfriend, Jessica Birkensleigh. In the days preceding 16 December 2008 they made preparations to vacate the cabin and move to Victoria. The Crown alleges that they intended to finance their new life in Victoria by setting up a drug deal with the deceased and then stealing the drugs from him. 4It was pursuant to this plan that arrangements were made for Mr Zaiter to meet Mr White at the cabin on 16 December. White and Birkensleigh stayed the night of 15 December at the home of a couple in Casino with whom they were friends, Stephen and Sarah Orams. In the late morning of 16 December Mr White asked Mr Orams to drive him to the cabin at Chinderah. He told Mr Orams that a drug deal was going to take place. On the way he asked that they stop in Lismore and pick up the offender. White said that the offender was going to give him a hand moving some things out of the cabin and was also to provide backup "in case this other fellow brings any mates with him". 5White had contacted the offender earlier on the morning of 16 December to enlist his help. The two had known each other for a few years. White was a friend of the offender's stepfather. There is no suggestion that the offender was aware of White's plan to steal Mr Zaiter's drugs, but he did understand that his role was to provide "backup". 6The three men arrived at the caravan park sometime between 10.30 and 11.00 am. White and the offender alighted and entered the caravan park whilst Orams drove to a location at the front of the park and waited. 7After about an hour, White walked out of the caravan park and spoke to Orams. At about this time, the deceased arrived in a Land Rover Discovery. White joined him in the vehicle and the pair drove into the caravan park to White's cabin. 8Sometime in the early afternoon, a resident of a nearby cabin heard the sounds of loud music, yelling and thumping coming from White's cabin. She said that it sounded like someone was having a fight. After a short time the noise stopped. 9Mr Orams received a text message to drive around to the back of the caravan park. There he saw Mr White and the offender walking out. White was carrying a bag like an overnight bag, which he placed in the boot of the car, a station wagon. Both men entered the car; White in the front passenger seat and the offender behind him. 10White said, "Let's go. Just don't speed." Mr Orams replied, "No worries. How did you go?" White replied, "Not good. I just bashed the cunt and I think he's dead." Orams replied, "Fuck off, you're joking." White looked at him and shook his head. Orams turned and looked at the offender who nodded his head in confirmation. Orams asked, "What have you done with him?" White replied, "I tied him up and put tape over his mouth in case he wakes up." Mr Orams observed that the offender was very quiet and kept to himself, not saying anything. It appeared to Orams that the offender was in a state of shock. 11Mr Orams drove White and the offender towards Murwillumbah. White contacted Todd Serone, described as being a "friend/associate" of White, and asked him to get a tow truck and pick up a car that was parked at the front of the cabin which was blocking traffic in the caravan park. White then telephoned another associate, Peter Elefsen, having obtained his number from the offender, and asked him to meet them on the road between Kyogle and Murwillumbah with a can of fuel. 12As the three men drove towards Kyogle there was very little conversation. The offender was described as being "virtually wordless". Mr Orams said that the offender was "extremely quiet and reserved and withdrawn, almost as though he were in a state of shock". 13After some time, White asked the offender whether he knew of anywhere a body could be disposed of without being found. The offender indicated that he knew of a couple of places, including a cliff with a large drop off. 14Eventually the three men met up with Elefsen on the road from Green Pigeon, where Elefsen lived, to the Murwillumbah-Kyogle road. At White's direction, Mr Orams took possession of Mr Elefsen's car and drove it home to Casino. Elefsen joined White and the offender in the station wagon and drove back towards Murwillumbah. Elefsen noted that the offender was sitting in the back of the car, not saying anything during the journey. 15White told Elefsen, "I've bashed this cunt and taken his car for payment. That's the car we're picking up." According to Elefsen, the offender was "like a stunned mullet in the back seat and didn't say anything". He too formed the opinion that the offender appeared to be in a state of shock. 16At a point along the Murwillumbah-Kyogle road the station wagon passed a tow truck with the deceased's Land Rover on the back. The tow truck was being driven by Mr Alan Waters, accompanied by Todd Serone. In order to attract their attention, White produced a small handgun and fired a shot out of the passenger side window. The two vehicles stopped. White got out and spoke to Serone. 17The station wagon and the tow truck were then driven to a disused quarry near the township of Wadeville. The deceased's car was taken off the tow truck and driven into the quarry. White and Serone searched it, pulling the trim from the inside of the doors from which blocks of "speed" were then removed. White then poured petrol over the car, petrol that had been brought by Elefsen. He then set fire to the car as Serone returned to the tow truck. Elefsen and the offender were standing some distance away from the car as this occurred. The three men then got back into the station wagon and drove back towards Murwillumbah. 18Elefsen stopped the car within the Murwillumbah township. The tow truck was already there. After a conversation between White and Serone, it was determined that Elefsen and the offender would go in the tow truck to the airport at Coolangatta in order to hire another car that could be used to retrieve the body of the deceased from the cabin. A car was hired and Serone, Elefsen and the offender then went to the cabin. 19The deceased was found in the cabin, lying on his side with his hands tied behind his back with black zip ties. There was tape, similar to gaffer tape, across his mouth and nose which made it impossible for him to breath. 20The offender cut out a square piece of carpet which had blood stains on it. Serone wrapped the body in a tarpaulin. Serone and the offender then picked up the body and carried it out to the hire car while Elefsen carried out the carpet. 21The hire car was driven to Murwillumbah and then on to Uki where White was waiting. Elefsen and the offender got into White's car and the two cars were then driven towards the Border Ranges. 22The cars stopped about 25 minutes later. The deceased's body was transferred to White's car. Serone then departed in the hire car. White, Elefsen and the offender proceeded towards the Border Ranges National Park. White stopped the car at the park entrance and, with the assistance of the other two men, the body was put down the side of a bank and covered with sticks and leaves. 23White had earlier secreted by the side of the road a black sports bag containing the drugs that he had stolen from the deceased. The three men returned to that location and White recovered the bag. He then announced that he wanted to move the body further into the bush because he believed that his DNA would be all over it. It was about 11.00 pm by this stage. White insisted that the others assist him in retrieving the body and taking it to an area known as The Pinnacle. 24The body was retrieved and taken to The Pinnacle. It was carried up to a viewing platform along the top of the mountain. The offender and Elefsen assisted White in unwrapping the body from the tarpaulin. White removed the cable ties and masking tape and then poured petrol over the body, ostensibly to destroy his DNA, before pushing the body over the edge. At various points along the journey away from The Pinnacle, items associated with the body were burnt. 25There was a gathering at the home of Peter Elefsen at Green Pigeon on the night of 17 December 2008. The offender spoke with Mr Elefsen alone at one point and the latter was later to recall: "Rick told me that he went over to the cabin to help Rob [a reference to White] move some furniture and to make sure the deal went alright. Rick told me there was going to be a drug deal. Rick said he was waiting in the cabin when Rob and the man [the deceased] come into the cabin. Rick was in the toilet and Rob and Zaiter were in the lounge room. Rob and Zaiter got in a scuffle in the lounge room. Rick came into the lounge room with a bat. Zaiter went to grab the bat from Rick. Rick hit Zaiter with the bat. Rick and Rob got Zaiter on the ground. Zaiter was still fighting Rick and Rob. Rob jumped onto Zaiter's chest, pinning his arms down with his knees. Rob then started punching Zaiter in the head until he stopped and it was all over. There was only Rick and Rob in the cabin when this all happened. Rick said that just before Rob jumped on Zaiter's chest, Zaiter said, 'Rodney, you won't get out of here alive'. Rick said that was the last thing that Zaiter said." 26It is agreed between the parties that the offender should be sentenced in accordance with the terms of that confession. 27The police investigation commenced on 17 December 2008. It was quickly concluded that the deceased may have been killed as a result of a drug deal. 28The offender was interviewed on two occasions on 15 September 2009 after his arrest. He was less than completely truthful in both interviews. He did not disclose his involvement in the events at the cabin, nor in the disposal of the body of the deceased. After the first interview he disclosed that he had a conversation with White about an area where a body could be disposed of. He informed White that anywhere in the Border Ranges was probably suitable. He maintained that he did not direct White to any location and said that at no time did he see a body. 29Rodney White and Jessica Birkensleigh were arrested on 4 September 2009 in Victoria. 30Peter Elefsen was arrested on 15 September 2009 but eventually co-operated with the police investigation. As a result of his information, police searched the cliff face of The Pinnacle. On 16 December 2009, the partial remains of the skeleton of the deceased were located. There was so little recovered that it was not possible for the precise mechanism of death to be determined. 31Todd Serone was arrested on 9 March 2010. 32On 30 April 2012 a jury returned verdicts of guilty in respect of White for murder; Serone for accessory after the fact to murder; and Birkensleigh for robbery (accessory before the fact). 33It is the agreed position of the parties that the offender's liability for manslaughter is established on the basis that he took part in an unlawful and dangerous act, namely an assault of the deceased by himself and White while he, the offender, was armed with a weapon. Further, it is agreed that this assault substantially contributed to the death of the deceased in that it caused him to fall to the ground, whereupon he was bashed, either to death, or into unconsciousness and thereafter suffocated by White. 34The Crown accepts that the offender did not intend to cause death or grievous bodily harm and did not, at the time of joining in the assault, foresee the possibility that White would form such an intention. Otherwise, the offender would be guilty of murder, which is not the case.

Seriousness of the offence 35Manslaughter is a crime that can be committed in a very wide range of circumstances. Further, there are a number of ways that a person can be responsible for manslaughter: there can be the commission of an unlawful and dangerous act, as here; or gross criminal negligence; or a charge of murder can be reduced to manslaughter when there is provocation, substantial impairment by abnormality of the mind or excessive self-defence. Also among the variables in determining seriousness are matters such as whether the offender acted alone, or in company; whether a weapon was used; or whether the violence used was planned, or foreseen as a possibility. 36Regardless of the way in which the offence is committed, or the legal basis for an offender's culpability, the starting point in assessing the seriousness of an offence of manslaughter is to recognise that at its heart is the unlawful taking of the life of a fellow human being. 37Mr Button SC, on behalf of the offender, acknowledged that manslaughter is a grave offence but he submitted that this case represents a less serious example of it. On the other hand, the Crown Prosecutor submitted that the case was, objectively, more serious than that and should be found to be at least in the middle of the range. 38Factors relevant to the assessment of the objective seriousness of the offence include that the offender was involved in the incident after accompanying White to the cabin knowing that a drug deal was proposed. Whilst he did not know of White's plan to rob the deceased of his drugs, he was aware that it was his role to act as a "backup" to Mr White in the event that there was any violence. 39The offence was committed jointly, in the manner set out above, but it is clearly the case that Mr White was the predominant assailant and it was he who initiated the violence. However, the offender armed himself with a weapon and joined in the attack. He struck the deceased with the bat and participated with White in bringing the deceased to the ground. 40Mr Button acknowledged that the offender's role in assisting in the disposal of the deceased's body might be taken into account in aggravation "to some degree". That acknowledgement was realistic because the circumstances in which the offender participated in the retrieval of the body from the cabin at Chinderah and then in the subsequent unceremonious dumping of it, first in one bushland location and then another, cannot be ignored. He is to be particularly condemned for his participation in the offering of the final indignity to the deceased in having his naked body pushed off a cliff into deep and rugged bushland. 41I do, however, accept that White was the primary participant and leader in these activities, and I also accept the descriptions of Mr Orams and Mr Elefsen that the offender was in shock, said little, and, it would seem, blindly followed White's lead. I will shortly be mentioning something about the offender's personality that is relevant to this conclusion. I also have the advantage of having presided over the trial of White and have observed him giving evidence. I have no doubt that he is a most belligerent, arrogant and manipulative person. 42Notwithstanding this secondary role played by the offender, participating in joint violence upon a lone man, with the use of a weapon, in circumstances in which the offender attended the scene to play the role of a backup in a drug deal puts the seriousness of the offence on a higher level than Mr Button's submission suggested. It is not as high as the Crown Prosecutor submitted, but not far from it.

Subjective features 43The evidence before me as to the offender's personal circumstances comprises a report by Ms Anna Robilliard, forensic psychologist; an affidavit by the offender; custody work records; vocational education certificates and records of other courses undertaken while in custody; and a number of testimonials. 44The offender was born in June 1983 and was 25 years old at the time of the offence. 45His mother and father separated before he was born. His father is Aboriginal and the offender describes having great pride in his cultural heritage. However, he has had no contact with his biological father, other than on one brief occasion when he was 11 years old. Although he is not interested in establishing contact with his father, he states in his affidavit that he is looking forward to meeting his father's other children and their families. 46Shortly after his parents' separation, the offender's mother began a relationship with Anthony Simmons. Together the family moved from Sydney to Findon Creek, just outside Kyogle, when the offender was 10 years old. The offender describes Mr Simmons as a great support and as a father-figure, and he has remained so even after he and the offender's mother separated in 2003. 47When the offender was 17 years old, he began a relationship with Yasmin Ford. Ms Ford fell pregnant when they were both still in high school and the offender left school in order to find work and support his son. The relationship broke down two years later, around the same time his mother and Mr Simmons were in the process of separating. 48Ms Robilliard records that the offender began smoking cannabis at this time to deal with emotional stress from the family breakdown. By the age of 24 he was using cannabis almost daily. Since then he has attempted to stop using cannabis with limited success. He has a minimal history of other illicit drug use. 49The offender has maintained regular contact with his son. For the past 7 years he has been in a relationship with Ms Kylie Roberts and has been involved in raising her two children. At the time of the offence, the offender was living in Lismore with his mother. He was acting as her carer after a head injury left her requiring care and assistance. His aunt has taken over this role following his incarceration. 50The offender has suffered a number of physical injuries, including in 2005 when he slipped and fell from a second storey deck while working and landed on his feet. X-rays showed that he had fractured both his heels. He complains that he has had trouble securing appropriate shoes while on remand and that the medication he has been prescribed does little to alleviate the persistent pain. 51The offender has been consistently employed since leaving school, save for a few of periods where he was unable to work due to injury. He has been employed as a labourer and in the construction industry, as well as working with a painter and in auto mechanic workshops. 52Whilst in custody at Parklea Correctional Centre, the offender spent two years employed in the internal maintenance department and has received positive reports from corrective services staff in relation to this work. He has also completed a number of vocational training programs and other courses while on remand. He told Ms Robilliard that he wants to complete his Higher School Certificate. 53Ms Robilliard reports that the offender has thought a great deal about the death of the deceased and has accepted his responsibility. In his affidavit, he states that he accepts "a person has died and I was involved in his death", and that "[h]is death is dreadful." He also said that it is the "first and last thing I think about each day", and "I am sure that people loved him, that he could have had kids that loved him... There are no words to describe how this makes me feel." 54I was not provided with the offender's criminal or custodial history. However, it was common ground that he has no prior criminal record and has not been the subject of any prison disciplinary charges whilst in custody. 55I received a number of testimonials from friends and members of the Kyogle community in support of the offender. They describe a polite individual with a mature attitude to his family responsibilities. The authors also speak of a variety of other positive qualities. 56Psychometric testing by Ms Robilliard revealed that the offender has a marked "dependent personality style". Her description of such a personality includes that the person is likely to be "extremely submissive and cooperative and likely to cover up any unpleasant emotions out of a fear of being abandoned or rejected". I have taken this into account in my assessment of the objective seriousness of the offence, it being clear to me that the offender was acting largely under the domination of the manipulative personality of Rodney White.

Plea of guilty 57The offence was committed on 16 December 2008 and the offender was arrested on 15 September 2009. A committal hearing did not take place until March 2011. It would seem that the delay was largely because the proceedings concerning the offender were joined with those concerning others, including White, Serone and Birkensleigh. The magistrate discharged him at the conclusion of the hearing in respect of charges of murder and manslaughter, but committed him for trial on a charge of being an accessory after the fact to murder. 58The Director of Public Prosecutions subsequently determined that proceedings for murder should be re-instituted by way of ex officio indictment. Counsel for the offender was made aware of which Crown Prosecutor was to be briefed in the matter at the end of September 2011. Discussions commenced in early November 2011 between counsel as to the possibility of the Crown accepting a plea of guilty to manslaughter. While these discussions were current, the offender was arraigned on 11 November 2011, pleaded not guilty to murder, and a trial date of 12 March 2012 was fixed. 59At the end of November 2011, counsel for the offender formally notified the Crown Prosecutor that the offender would plead guilty to manslaughter. A Deputy Director of Public Prosecutions responded on 10 February 2012 to the effect that such a plea would be accepted. The matter was listed before me as the trial judge on 24 February 2012, whereupon the plea was entered. 60Senior counsel for the offender submitted that the sentence should be reduced by 25 per cent on account of the utilitarian benefit of the plea of guilty. It was acknowledged that a plea entered after arraignment in this Court would very rarely attract such a reduction but the circumstances in this case were said to be exceptional. It could not be expected that the offender would plead guilty in the Local Court, particularly when the result of the proceedings there resulted in discharge. It was submitted that after the ex officio indictment was filed and once a Crown Prosecutor was brief, discussions soon followed which resulted in the plea being entered. 61The submissions for the offender put it in terms that it could not be expected that a person who has been discharged at committal to then plead guilty in the Local Court to the charge. That, of course, is correct. But it is quite different to the question whether the person, who now acknowledges that on 16 December 2008 he committed the offence of manslaughter, could have pleaded guilty at any time between being charged on 15 September 2009 and the conclusion of the committal proceedings on 16 March 2011. 62I will take into account that discussions that culminated in the plea took place in November 2011. It was no fault of the offender that the plea was not then entered until 24 February 2012. I propose to allow a reduction of sentence for the utilitarian benefit of the plea in the order of 15 per cent.

Other mitigating factors 63There are a number of other mitigating factors which I am required to take in to account in sentencing the offender. The absence of a prior criminal record and the content of the testimonials demonstrate that the offender has been a person of good character. 64Consistent with his plea of guilty, the offender has demonstrated that he has accepted responsibility for the death of the deceased and has shown real remorse. This is evident from his affidavit and his interview with Ms Robilliard. I have no reason to doubt the genuineness of these statements. 65It was submitted by counsel for the offender that his prospects for rehabilitation are very high. Ms Robilliard supports this conclusion, stating that the offender's "risk of reoffending is minimal." While it is difficult to predict future behaviour, the support he has from friends and community members, his commitment to family responsibilities, and his good behaviour and diligence at work while on remand lead me to find that his prospects of rehabilitation are good. 66It is now more than two and half years since the offender was arrested. Part of this delay is because of the fact that the proceedings concerning the offender were joined with, and to some extent dependent upon, the proceedings concerning other offenders. The sentence will be backdated to the date of the offender's arrest. Another way in which this delay is relevant is because it has meant that a significant period of the time in which the offender is mandatorily detained will have been as an unsentenced remand prisoner. He has not had the benefit of classification within the correctional environment that would have had the very real prospect that his custodial conditions would have been less onerous, particularly for an offender who has had no prior involvement with the criminal justice system. I will take this into account. 67I will also take into account that following the entry of the plea of guilty, the offender was transferred to Grafton Correctional Centre where he has been kept in more restricted custodial conditions.

Other sentencing considerations 68As the Crown Prosecutor submitted, general deterrence is an important consideration in sentencing in a case such as this. Those who are prepared to lend assistance to drug dealers doing drug deals, even if only in a secondary role as "backup" in case of trouble, must know that significant punishment awaits them upon detection. 69Personal deterrence also has a role to play but, given my findings as to the offender's good prospects of rehabilitation and unlikelihood of further offending, it is of minimal significance. 70Punishment, denunciation, recognition of the harm done and making the offender accountable for his actions are all relevant considerations, as also is the countervailing consideration of promoting the offender's rehabilitation. 71In the latter respect, I accept the submission by Mr Button that there are special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. After his first period in prison, the offender will need a longer period of parole supervision to assist his settlement back into community. The degree to which I can reduce the non-parole period is limited by the need to maintain appropriate proportionality with the seriousness of the offence. 72I was referred to a number of sentencing decisions, at first instance and on appeal, as well as to the sentencing statistics maintained by the Judicial Commission. I have found these to be of some utility, but this is limited by what I said in one of the cases to which I was referred, which was that there is no established pattern of sentencing for manslaughter committed in the circumstances of this case.

Sentence Convicted. Sentenced to imprisonment comprising a non-parole period of 3 years 9 months and a balance of the term of the sentence of 2 years 3 months. The sentence will date from 15 September 2009. The offender will be eligible for release on parole upon the expiration of the non-parole period on 14 June 2013. The total term of the sentence will expire on 14 September 2015. That is a total term of 6 years. Without the offender's plea of guilty, it would have been a sentence of 7 years.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2012

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