To each of these charges the offenders pleaded not guilty.
2 Following a trial which occupied some eleven weeks, during which time one juror was discharged for reasons of ill health, the jury of eleven persons returned verdicts of guilty on each charge in the indictment. The offenders were accordingly convicted.
3 On 16 and 17 May 2001 I heard submissions and received evidence on sentence. The offenders are for sentence today.
4 The facts upon which I must be satisfied on the criminal standard for the purposes of imposing sentence are the following.
5 On the afternoon of Friday 2 October 1998 the offender Wall and his de facto wife Renee Russell received a telephone call, in response to which they drove their Ford Falcon Sedan registered number NUR.593 to the home of one Paul Webb at 255 Pacific Highway, Belmont North. This motor vehicle was made available to the four offenders Hyland, Parry, Yates and Powick, who drove off in a southerly direction. The driver of the car was Powick. All four were wearing dark clothing.
6 Prior to its departure the boot of the car was loaded with a revolving pistol, a shortened shotgun and a baseball bat.
7 Shortly after midnight the Ford Falcon, driven by Powick with Hyland, Parry and Yates as passengers, was parked in the near vicinity of the dwelling house at 4 Levitt Street, Wyong. This residence had been owned by a Mr Brian Shearer, who was, on the evidence, a supplier of marijuana, and who had met his death in apparently unrelated events one week previously.
8 The deceased victim Alan Brown and his brother David, who were nephews of Brian Shearer, were present with a number of others in the house that night. Two young men, Daniel Harrison and Derryn King, were outside the front of the house when accosted by Hyland, Parry and Yates. Mr Harrison, who was threatened and struck with a baseball bat, escaped, however, Derryn King, who had been tackled to the ground by the offender Hyland, was forced into the house.
9 The offenders once inside the house were seen to be wearing dark clothing, and were disguised by wearing balaclavas. Nevertheless the evidence adduced from a number of witnesses, and certain distinctive features and clothing, make it plain to the relevant degree that the offender Parry was armed with the revolver, the offender Hyland was armed with the shortened shotgun, and the offender Yates was armed with the baseball bat.
10 The offender Yates was observed to be wearing a distinctive black Metallica T-shirt bearing a large snake emblem and the words "Don't tread on me". He was wearing this T-shirt some hours later when spoken to by police (albeit then worn inside out), and surrendered this garment to the questioning police officers.
11 The offender Parry wore his hair in a single long plait which extended down his back. The person so described was observed to be carrying the revolver.
12 The offender Hyland is of stockier build (as described) than both the offenders Parry and Yates. He was armed with the shortened shotgun which he pointed at the head of Derryn King from a distance of some two metres, and ordered him inside the house.
13 The events which transpired once the three offenders had forced their way into the house were horrific in the extreme. Some of the occupants were able to flee, leaving two women and three men at the mercy of the three offenders, who demanded to be told the whereabouts of $20,000 said to be owed by the late Brian Shearer.
14 Mr Paul Steengraver, one of the occupants, was struck on the head and wounded by a blow from the shortened shotgun. The gun was put to his knees and he was told that he would never walk again if he did not disclose the whereabouts of the money, of which he and the others remaining in the house had no knowledge. The shortened shotgun was placed in Mr Steengraver's buttocks and also in his mouth in the course of the threats to which he was subjected.
15 The baseball bat wielded by the offender Yates was used to administer blows to Mr Harrison, Mr King and Ms Coenradi on repeated occasions whilst they were at times under threat from the revolver held by the offender Parry, and at other times the shotgun held by the offender Hyland.
16 The evidence of the forensic pathologist Dr Oettle makes it plain that Alan Brown had been subjected to beating with the baseball bat prior to him being shot at close range to the side of his neck behind the left ear, the shot severing his spinal cord in what has aptly been described by counsel as an "execution style killing".
17 The offender Parry, together with the offender Yates, took Alan Brown into the main bedroom, where he was beaten and then shot. The only reasonable inference open on the evidence is that this brutal killing was carried out by the offender Parry in the presence of the offender Yates when the victim was unable to satisfy the demands of the offenders.
18 The offender Parry entered the second bedroom where Mr King, Ms Williams and Ms Coenradi had been ordered to lie on the bed, and held them under threat with the revolver whilst the offender Yates struck Mr King and Ms Coenradi a number of times with the baseball bat whilst demands were made for money.
19 The offender Parry placed the revolver under Mr King's chin, pulled him from the bed, and took him to the main bedroom where he exhibited the body of Alan Brown; asked him what it was and if he wanted to be "number two", in an effort to have Mr King tell him where "the money" was. The offender Parry at pistol point escorted Mr King back to the second bedroom, where he was again struck with the baseball bat by the offender Yates.
20 A conversation took place between the offenders in which the question "what will we do with these (three people)" brought a response to the effect that they were to be shot, as one of the occupants had already been shot. Ms Williams, who with Ms Coenradi and Mr King had been ordered to lie on the bed, turned her face to the wall expecting to be fatally shot. The three offenders left the house, the offender Parry having pointed the revolver at Mr King, saying "we will be back".
21 The three offenders entered the Ford Falcon in which the offender Powick was waiting, and left the scene of the home invasion and murder, heading north along the Pacific Highway. Mr Jody Kiriona, who lived nearby, and whose aid had been enlisted by one of the occupants who had fled from the house, followed the getaway car for some ten kilometres, pausing only to request a group of bystanders to call the police.
22 In a location where the Pacific Highway passes through thick bushland near San Remo, Mr Kiriona flashed his headlights at the Ford Falcon, which pulled over to the side of the road. The three offenders Parry, Hyland and Yates decamped. Mr Kiriona detained the offender Powick, enlisting the aid of a passing taxi driver to direct police to the location.
23 The apprehension of the offender Powick and the detention of the car were highly significant events. The car contained certain items, including two balaclavas, and bore a blood stain which, when combined with items discovered in the invaded house, furnished DNA evidence of great cogency, and virtually ensured the conviction of the offenders Parry, Hyland and Yates once their identity had been established. One cannot but commend in the highest terms the courageous actions of Mr Kiriona, without whose intervention, which resulted in the arrest of the offender Powick and the detention of the getaway car, the Crown case would have been gravely, perhaps fatally, impeded.
24 The knowledge which the offender Powick had as to the purpose of the armed invasion by the balaclava-clad co-offenders, including the possible use of these arms to wound, together with his role as driver of the getaway car, was the basis of his conviction as a principal in the second degree on the charge of house invasion in circumstances of special aggravation. Following his arrest in the early hours of Saturday 3 October 1998 the offender Powick undertook an ERISP with Detective Sergeant Wrice (now Chief Inspector) and Senior Constable Bailey, in which he agreed to have his hands scientifically examined for gunshot residue but declined to answer questions about his involvement in events in the absence of legal representation.
25 On 7 October 1998 the offender Powick undertook a second ERISP with the same police officers, on this occasion specifically declining legal representation. The ERISP comprised of some five hundred questions, the answers to which, on the evidence adduced in the trial, may properly be described as encompassing a tissue of lies, and deliberate misdescriptions of the co-offenders Hyland, Parry and Yates, their names, appearance, ages and background were clearly intended to assist those co-offenders by impeding, misleading and deflecting investigating police officers in their inquiries. Upon the basis of this assistance to the co-offenders the offender Powick was convicted of being an accessory, after the fact, to the murder of Alan Brown.
26 On the morning of Saturday 3 October 1998 the offender Wall received a visit from Mr Paul Webb, the Sergeant at Arms of the Life and Death Motorcycle Club, of which the offenders Parry and Hyland were members and the offender Yates was a nominee. Thereafter the offender Wall met a long term friend, Ms Karen Sproule, whom he informed that his car had been used in a murder. He sought assistance from Ms Sproule and her boyfriend, Mr Stephen Lester, to establish an alibi for the time when he and Ms Renee Russell had handed their car over to the four co-offenders.
27 A false alibi was concocted by the two couples embarking on a camping trip to Gloucester on Saturday 3 October 1998 and thereafter upon their return to the Newcastle area, on Sunday 4 October 1998, the offender Wall, having spoken with the offender Yates, falsely reporting to police that the camping trip had commenced on Friday 2 October and that whilst away the Ford Falcon had been stolen.
28 The offender Wall undertook an ERISP in which he adopted his false statement, and falsely denied knowing the offenders Yates and Powick. The assistance afforded to the co-offenders by his false statement distancing himself from them and endeavouring to break the chain of identification between the co-offenders and himself, was the basis of his conviction for accessory after the fact to murder.
29 The assistance sought and obtained from Ms Sproule and Mr Lester in the form of false statements in support of the false alibi was the basis for the offender Wall's conviction for intent to pervert the course of justice.
30 In helpful written submissions the Crown has enunciated certain of the principles relevant to the punishment of offenders against the law, which I take into account. These include:
Deterrence : The duty of the Court to ensure that the sentences imposed will operate in a deterrent manner, as a powerful factor in preventing the commission of crimes similar in nature by like minded individuals in the future, and to act as a deterrent to the individual offender himself.
Rehabilitation : An important factor to be taken into consideration, recognising the mutual interest which the community, in common with the offender, has in the restoration of the latter to a useful and lawful existence in appropriate cases.
Retribution : The taking of vengeance for the harm inflicted by the offender is to be considered as an important aspect of sentencing. R v Rushby (1977) 1 NSWLR 594 at 598. Not only should the community be satisfied the offender has been given his just deserts, but also those left behind are entitled to feel that justice has been done. R v Purdy (1992) A Crim.R 441 at 445. Importantly, the sentence must accord with the general moral sense of the community who are aware of the facts as found by the Court and who have taken the opportunity to consider the penalty imposed in that light, as well as any subjective factors in favour of the offender.
31 There remain also considerations of totality of criminality and parity of sentence in cases involving multiple charges against multiple offenders, as in the present case.
32 An offender convicted of murder in contravention of s.19A of the The Crimes Act 1900 is liable to penal servitude for life. S.19A(2) provides that a person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life.
33 The Crown submits that the murder of Alan Brown, accompanied as it was by a high degree of cold blooded callousness, is fairly to be described as an atrocious and gravely wicked act in which the degree of brutality exhibited by all three offenders in the execution of an innocent man out of vengeance when they did not get their own way, falls within the worst category of cases.
34 The imposition of the maximum penalty for any offence is a sentencing option reserved for cases which can properly be characterised as falling within the worst category of cases for which that penalty is prescribed; Ibbs v The Queen (1987) 163 CLR 447 at 451-452; R v Holden and Johnstone (1983) 3 NSWLR 245 and see also R v Vusumuzi Twala NSWCCA 4 November 1994 unreported. However, that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness; Veen v The Queen (No.2) (1987-1988) 164 CLR 465 at 478.
35 In R v Harris (2000) NSWCCA 469 Wood CJ at CL, with whom Giles JA and B. James J agreed, said this:
"84 The features required for qualification in the 'worst case category' were defined in Twala NSWCCA 4 November 1994, where it was said:
'in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed) ...'
85 'Heinousness' has been described as follows:
'The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one.' R v Reginald Keith Arhurell (Hunt CJ at CL unreported 3 October 1997)."
36 s.61 of the Crimes (Sentencing Procedure) Act 1999 relevantly provides:
"(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.
(2) ...
(3) Nothing in subsection (1) affects section 21(1)."
37 In reaching a determination as to "worst case category" it is appropriate to consider the whole of the criminal activity which took place at the time of the murder; R v Garforth (NSWCCA 23 May 1994 unreported).
38 The brutal and callous execution style killing of the victim, aggravated by the beating with a baseball bat to which he was subjected, and the further aggravating features of the home invasion with assaults, ill treatment and terrorising of the occupants, including the throwing of the victim Alan Brown against the sitting room wall from the couch where he was seated, amounts to a vicious killing unmitigated by any suggestion of provocation, self defence or other extenuating circumstances, and in my view justifies the categorization of this murder as being in the worst class of such cases.
39 Having said that, I am nevertheless not persuaded that in the terms of s.61(1) 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 the maximum sentence.
40 S.21 of the Crimes (Sentencing Procedure) Act 1999, which provides:
"If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term."