R v Norman; R v Olivieri

CATCHWORDS : CRIMINAL LAW: - Sentence - murder - two offenders - accessory before the fact and principal - accessory before the fact also sentenced for cheating and defrauding as a director - murder premeditated - planned by accessory before the fact and for his benefit - carried out by principal - no significant reward - whether maximum sentence called for - substantial determinate sentence in each case

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Harris (2000) 50 NSWLR 409 R v Chung [1999] NSWCCA 33 Aslett v R [2006] NSWCCA 360 R v Garforth (CCA, unreported 23 May 1994) CASES CITED : R v Fernando [1999] NSWCCA 66 R v Miles [2002] NSWCCA 276 R v Glasby (2000) 115 A Crim R 465 R v Kalajzich (1997) 94 A Crim R 41 R v Merritt (2004) 59 NSWLR 557

Regina ( Crown) PARTIES : Mark Edward Norman (offender) Regina (Crown) Tony Olivieri (offender)

M M Cunneen (Crown) COUNSEL : B Niven (offender Norman) M Austin with N Steel (offender Olivieri)

Solicitor for Public Prosecutions (Crown) SOLICITORS : O'Brien Lawyers (offender Norman) Legal Aid Commission (offender Olivieri)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

2005/2315 R v Mark Edward Norman 2005/2314 R v Tony Olivieri

REMARKS ON SENTENCE 1 HIDDEN J: The offenders, Mark Edward Norman and Tony Olivieri, stand for sentence, having both been found guilty at trial of the murder of Thomas Williams at Petersham on 6 April 2004. Mr Norman was also found guilty of a charge that in November and December 2003, as a director of a company, he cheated and defrauded Mr Williams in his dealings with that company. This is an offence under s176A of the Crimes Act, carrying a maximum sentence of imprisonment for ten years.

Facts 2 The facts of these offences can be stated shortly, but that is not to deny their gravity. The deceased, Mr Williams, was a solicitor, practising from an office in a detached building at his home at Petersham, where he lived with his wife and two young sons. Mr Norman, an accountant, was a director of a company which carried on an accountancy practice at Burwood. Mr Williams was a client of the practice, where his personal and professional tax returns were prepared. The two men had known each other for about ten years and they had been on friendly terms. 3 Early in November 2003, Mr Williams drew a number of cheques on the account of his solicitor's practice made out to the Taxation Office in amounts totalling roughly $83,500. These were delivered to Mr Norman's office at Burwood for the purpose of meeting outstanding tax liabilities. In fact, Mr Norman deposited them into a trust account, from which he withdrew the funds over a period of a few weeks thereafter for his own purposes. None of the money found its way to the Taxation Office. This gave rise to the charge of cheating and defrauding. 4 There is no need to go to the detail of what happened thereafter. It is sufficient to say that by the later part of March 2004 Mr Williams had discovered Mr Norman's fraud and had confronted him about it. It was fear of exposure that led Mr Norman to have Mr Williams killed. 5 It is at this point that Mr Olivieri enters the narrative. He had known Mr Norman for some years and they were friends. He was employed as a maintenance worker on a property in Queensland which was conducted as a racehorse stable, and in which Mr Norman had an interest with his brother. He was living on the property. It was he whom Mr Norman engaged to kill Mr Williams. 6 Mr Norman planned the killing with some care. It is not necessary to examine the detail of the planning, which emerged from the circumstantial case led against the two men. Suffice to say that Mr Norman arranged for Mr Williams to be in his office on the evening he was killed by making an appointment with him which he, Mr Norman, did not intend to keep. Mr Norman sought to distance himself from the killing by arranging a business meeting that same evening at Glenfield, well away from the Petersham area. 7 Mr Olivieri flew from Queensland to Sydney a couple of days before the killing, using a ticket in the name of Grant Norman, Mr Norman's nephew. He returned to Queensland a couple of days after the killing, this time on a ticket in the name of Mr Norman himself. Clearly, the purpose of this was to conceal the fact that he was in Sydney at the relevant time. 8 In the evening of 6 April Mr Olivieri entered Mr Williams' office and shot him four times. He sustained one bullet wound to the head and the others to his torso. His wife and children were home at the time. Mrs Williams heard the shots and ran to the office. She saw a man who must have been Mr Olivieri running from the scene, she found her husband, bleeding and close to death, on the office floor, and she raised the alarm. Mr Williams had died by the time ambulance officers arrived.

Victim impact statement 9 A victim impact statement by Mrs Williams was read to the court by Ms Bronwyn Gingis, a solicitor who had worked for her husband. It is an eloquent account of the serious and enduring effects of Mr Williams' untimely death upon her, her children, and the members of Mr Williams' own family. All of them have lost a loved one in violent circumstances, and Mrs Williams and her children have lost a supportive husband and father. The loss of his support is particularly distressing for Mrs Williams, who came to this country from Japan and has had to adapt to the Australian way of life. 10 I approach that statement in accordance with established authority. Mrs Williams, her children, and the members of Mr Williams' family have all suffered a tragic and senseless loss. They have my deepest sympathy.

Subjective cases 11 Mr Norman is now fifty years old. He has a brief and minor criminal history, which is old and which is of no present significance. He has been in continuous custody in respect of these charges since 17 August 2004. 12 His background is sketched in a psychological report of Mr Sam Borenstein. It is unremarkable and it is not necessary to recite it. He is a member of a large family and appears to have had a satisfactory upbringing. He is married with two adult sons. His wife, his sons, and his siblings are supportive of him. His work history portrays a man who is intelligent, resourceful and industrious. 13 The report provides no insight into his crimes, as he maintains his innocence of them. He denied having been in financial difficulty at the relevant time. Mr Borenstein detected no psychiatric or psychological disorder. 14 Mr Olivieri is now forty-nine years old. He has a fairly lengthy criminal record in New South Wales and Queensland, primarily for drug offences but also for some offences of dishonesty. He has served terms of imprisonment. That said, it contains no entry for violence and I consider it to be of little significance in the present sentencing exercise. He has been in custody in respect of the murder since 3 August 2004. 15 His background also is to be found in a psychological report, in his case by Mr Peter Champion. Like Mr Norman, his upbringing was unremarkable. He was educated to Higher School Certificate level and Mr Champion assessed him to be of average intelligence. He appears to have had a satisfactory employment record, in unskilled or semi-skilled positions. He had had a number of relationships with women, but was not in a relationship at the time of his arrest. He has no children. 16 His criminal record, beginning in his twenties, appears to have revolved around his drug abuse. For some years he was addicted to heroin, although he overcame that through a methadone program. However, he continued a long-standing use of cannabis to the time of his arrest. Given his criminal history, Mr Champion arrived at a provisional diagnosis of personality disorder with anti-social traits. Otherwise, the report discloses no psychiatric or psychological disorder. Like Mr Norman, he maintains his innocence and Mr Champion was unable to proffer any explanation for his involvement in the murder. As will be seen, such explanation as there is emerges from evidence at the trial.

Sentencing 17 Clearly, the murder is a particularly serious offence of its class. It was a premeditated killing, planned by Mr Norman and carried out by Mr Olivieri. On Mr Norman's part, it was not the product of animosity, grievance or vengeance. The man he had killed had been not only a client but also a friend, and his only motive was to conceal his involvement in a serious fraud. Although Mrs Williams gave evidence that she did not know him, he must have been aware that his victim would leave behind a wife and children. 18 While Mr Olivieri does not appear to have played any part in the planning of the murder, he was prepared to assassinate in cold blood a man he did not know and against whom he could not have borne any ill will. On the other hand, there is no evidence that he received any significant reward for his crime. The evidence establishes no more than that Mr Norman paid him some relatively modest amounts for expenses on a few occasions after the killing, but this appears to have been a pattern that had already been in place. 19 Obviously, the question arises whether the crime calls for the imposition of the maximum sentence, imprisonment for the term of the offenders' natural life. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 envisages the imposition of life imprisonment for murder if the sentencing 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". Although that sub-section is expressed in mandatory terms, it is subject to subs(3), which preserves the discretion to impose a determinate sentence conferred by s21(1). It is now settled that s61 is a statutory expression of the common law: R v Harris (2000) 50 NSWLR 409, per Wood CJ at CL at [79] ff. 20 In R v Chung [1999] NSWCCA 33 at [24] - [26], I had occasion to reflect on what has been described as the "terrible significance" of the life sentence. Sully J agreed with my observations, adding some of his own, at [2]-[4]. It is trite to say that the maximum sentence for any offence is reserved for cases falling within the worst category of that offence, but a particular offence might be placed in that category even though it is possible to envisage a worse case. However, life imprisonment in New South Wales is not like other maximum sentences because it means that the offender has no prospect of release, however distant. Resort to it should be truly exceptional. In many serious cases of murder a lengthy determinate sentence is appropriate and sufficient to meet the demands of retribution and deterrence. 21 A difficulty arises where the person standing for sentence, like these offenders, is at or near middle age. Clearly, the imposition of a determinate sentence which must extend beyond that person's reasonable life expectancy is pointless. On the other hand, I do not subscribe to an actuarial approach which holds that there is no effective difference between a life sentence and a determinate sentence which would not permit the offender's release before his or her advanced old age. A sentence which leaves a prospect of eventual release, if the offender lives long enough, is qualitatively different from one which offers no such prospect. 22 I have reviewed decisions of the Court of Criminal Appeal in which the Court affirmed a life sentence, or itself passed a life sentence on a Crown appeal. A number of those cases, including Harris, involved two or more murders. The fact that there were multiple offences was seen as relevant to the offenders' culpability and to bear upon the appropriateness of the life sentence: Harris at [94] - [95]. (That approach has recently been questioned by McClellan CJ at CL in Aslett v R [2006] NSWCCA 360 at [25], but that is not to the point for present purposes.) 23 For the most part, cases in which the life sentence was affirmed or imposed for one murder only were distressing killings associated with the sexual assault of the victim, such as R v Garforth (CCA, unreported 23 May 1994) and R v Fernando [1999] NSWCCA 66, or cases in which the offender had killed before, such as R v Miles [2002] NSWCCA 276. These were cases in which the victims (in the case of Garforth, a child) were subjected to sustained brutality, or the offenders were seen to pose a continuing danger to society, or both. 24 That said, my attention was drawn to one decision of the Court involving a contract killing: R v Glasby (2000) 115 A Crim R 465. In that case the offender had murdered a man, having been engaged to do so for a large sum of money by the man's wife. (As it happens, the deceased's wife was charged with the murder, presumably as an accessory before the fact, but her case did not proceed to trial because of the inadequacy of the evidence admissible against her: Public Trustee v Theissl [1999] NSWSC 708.) 25 Having been found guilty at trial, Sully J sentenced the offender to life imprisonment on the basis that he had been involved in a planned killing for reward, a killing "implemented with both care and persistence": see the Court's judgment at [134]. The Court declined to set the sentence aside, concluding that his Honour's finding was "well and truly available": [141]. Sully J's remarks on sentence of 11 June 1998 disclose that the offender had a very bad record, including armed robbery offences for which he had been sentenced to prison terms, and his Honour was pessimistic about his prospects of rehabilitation. 26 In Glasby the Court referred to the decision of Hunt CJ at CL in the notorious case of R v Kalajzich (1997) 94 A Crim R 41. That offender had been sentenced to life imprisonment prior to the enactment of s19A of the Crimes Act, which introduced imprisonment for the term of a person's natural life. The former Chief Judge was dealing with an application under s13A of the Sentencing Act, 1989, for redetermination of that life sentence. What is significant for present purposes is how his Honour approached a submission by the Crown that he should refuse the application and direct that the offender should never re-apply, on the basis that he should never be released. 27 That offender had been found guilty, as an accessory before the fact, of the murder of his wife. The headnote records that it was a contract killing, "pursued with considerable planning and great persistence and with no regard to the expense involved". The offender "had used his position of wealth to influence others to assist him in execution of his plans". Hunt CJ at CL rejected the Crown's submission, finding that to take that course would be to impose on the offender a more severe punishment than that which could have been imposed upon him when he was originally dealt with. He granted the application and fixed minimum and additional terms. 28 However, his Honour characterised the crime as falling into the worst category of murder and expressed the view that, if the offender had stood for sentence under s19A, a natural life sentence would have been appropriate. That said, his Honour recognised (at 52) that, while any contract killing carries with it the potential to attract the maximum sentence, not every case would call for it. That observation was cited, apparently with approval, by the Court in Glasby at [140]. 29 The murder of Mr Williams arose from the circumstances in which Mr Norman found himself and from his relationship with Mr Olivieri. There is nothing to suggest that either man is a continuing threat to society, and I think it most unlikely that either of them would re-offend in this way. Nevertheless, considerations of retribution, punishment and general deterrence loom large, and the combination of those considerations could be enough to warrant the imposition of the maximum sentence: R v Merritt (2004) 59 NSWLR 557, per Wood CJ at [41] - [54]. 30 Mr Norman's liability for the murder, of course, is as an accessory before the fact. That does not make him any less culpable than the principal, Mr Olivieri. Indeed, I consider him to be more so. It was for his benefit that Mr Williams was killed and I have no difficulty inferring that the planning of the murder was his. As I have said, there is no evidence of any significant payment to Mr Olivieri for carrying out the killing. In that sense, this was not a contract killing as that expression is normally understood. 31 It may seem extraordinary that Mr Olivieri would commit such a serious crime, arising from circumstances which did not affect him, without the promise of a substantial reward. However, I can act only on the evidence which I have. That evidence suggests that his relationship with Mr Norman was generally one of dependence, and the only conclusion I can reach is that he did Mr Norman's bidding out of some kind of misguided loyalty. It may be that his criminal history was part of the reason Mr Norman chose him for this dreadful task. 32 Whether this murder calls for the imposition of the maximum sentence is a difficult question, to which I have given anxious consideration. The question is complicated by my finding that the culpability of the two men is not the same. The cases to which I have referred demonstrate, as one would expect, that the life sentence has been seen to be appropriate in a wide variety of circumstances. The common thread, obviously, is that they were all seen to be particularly heinous crimes. However, a series of cases such as these can provide no more than general guidance to the exercise of discretion in the present case. Glasby and Kalajzich turned on their own facts and are of limited assistance. Every sentencing exercise is unique. 33 In all the circumstances, I am satisfied that the public interest in retribution and deterrence in the present case is met by the imposition of heavy determinate sentences. Those sentences must be such that the offenders will have no prospect of release until they are old men. The standard non-parole period for a murder in the middle range of objective seriousness is twenty years. Clearly, this murder is well above that level of seriousness. 34 The sentences I propose for the murder will reflect the different levels of culpability of the two offenders. Mr Norman's fraud offence is itself serious and, although it is clearly related to the murder, it calls for a partly cumulative sentence. I shall not fix a non-parole period in respect of that sentence because it will be overtaken by the non-parole period for the murder. 35 I do not find special circumstances in either case. Indeed, in each case the proportion between sentence and non-parole period will be higher than usual because non-parole periods lower than those which I propose would not be adequate to reflect the offenders' criminality. The sentences will still leave each offender with a substantial period of parole eligibility. In Mr Norman's case, because of the partial accumulation of the murder sentence upon the fraud sentence, the non-parole period will be a somewhat lesser proportion of the head sentence than in Mr Olivieri's case. 36 Mark Edward Norman, on the charge of cheating and defrauding as a director you are sentenced to imprisonment for three years, commencing on 17 August 2004 and expiring on 16 August 2007. I decline to set a non-parole period in respect of that sentence. On the charge of murder you are sentenced to imprisonment for thirty-five years, comprising a non-parole period of twenty-nine years, commencing on 17 August 2006 and expiring on 16 August 2035, and a balance of term of six years, commencing on 17 August 2035 and expiring on 16 August 2041. You will be eligible for release on parole on 16 August 2035, just short of your seventy-ninth birthday. 37 Tony Olivieri, on the charge of murder you are sentenced to imprisonment for thirty-three years, comprising a non-parole period of twenty-eight years, commencing on 3 August 2004 and expiring on 2 August 2032, and a balance of term of five years, commencing on 3 August 2032 and expiring on 2 August 2037. You will be eligible for release on parole on 2 August 2032, when you will be seventy-five years old.

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