R v Percy, Arnold, Isaacs, Sulman [2005] NSWSC 1244 | Case summary

1 HER HONOUR: I propose dealing with the offenders in turn commencing with Mr Percy, then Ms Arnold, Ms Isaacs then Mr Sulman. 2 In the late afternoon of the 11 September 2003 Grant Whitney, who was known to the offenders, Shane Percy, Vicki Arnold, Gillian Isaacs and Jason Sulman, was invited to Ms Isaac's home by Ms Isaac in the knowledge he would be assaulted by Shane Percy. At some point after Mr Whitney arrived he was struck repeatedly to the head and body with an implement (most likely a pool cue) resulting in his death. Mr Percy bound Mr Whitney's wrists behind his back with electrical ties and gaffer tape, bound his ankles, wrapped the body in a sheet and placed it in the boot of a vehicle and dumped it at a truck stop at Lucas Heights. 3 This callous and brutal act on Mr Percy's part was apparently motivated by revenge for two incidents - one was an entirely mistaken belief that Mr Whitney had "raped" Ms Arnold's 15 year old daughter. The other was Mr Whitney's theft of certain items from Mr Percy and Ms Arnold's home. Whatever Mr Whitney's faults, they could never justify the treatment he received at the hands of Mr Percy. Mr Percy was assisted in his attempts to avoid responsibility for the killing by Ms Arnold, Ms Isaacs and Mr Sulman. Ms Arnold and Ms Isaacs also played a role in the circumstances leading up to Mr Whitney's death. 4 I have had regard to the Victim Impact Statement read in the course of the proceedings by the victim's mother and tendered by the Crown. The taking of a human life in any circumstances is always tragic. Where a mother, a sister and extended family members are affected by such a senseless and sudden loss of a loved one it is fitting that the Courts, the community and the offenders hear their grief and acknowledge it. 5 I turn to the factual basis for sentence, being an agreed Statement of Facts which is part of exhibit A. Shane Percy had been in a de facto relationship with Vicki Arnold for approximately 5 years prior to September 2003. They had one son and a daughter, "A". These four persons resided at 47 Mulga Road, Oatley, and had done so for approximately 2 years prior to that time. In September 2003 Gillian Isaacs had been in a de facto relationship with Jason Sulman for 18 months. They resided in Roberts Avenue Mortdale. The home was owned by Ms Isaacs. 6 In September 2003 these four adult offenders were friends. "A" had a strong relationship with Ms Isaacs, referring to her as Aunty Gill. 7 Grant Errol Whitney was employed as a truck driver for Fruit Wheels Proprietary Limited at Flemington Markets. It was common practice for Mr Whitney to take the company vehicle, usually a white Prime Mover, home and park the vehicle near his place of residence when not at work. 8 Sometime in July 2003 Mr Whitney was introduced to Mr Percy and Ms Arnold through a mutual friend. At that time Mr Whitney was residing with another family in the East Hills area. Some time in mid July 2003 Mr Whitney moved into 47 Mulga Road, Oatley, and utilised the downstairs room of the premises sleeping on a modular lounge. He parked his work vehicle near the premises. 9 From about August 2003 Mr Whitney and "A" commenced to send text messages to each other on their mobile phones. "A" frequently signed off her messages with "love A" and "A XOXO". 10 Late in the evening of 2 September 2003 "A" and Mr Whitney were at the Mulgoa Road address. On the 3 September 2003 "A" sent a text message to Mr Whitney's mobile phone which read "Grant, what happened last night was the wrong thing to do. If MM and Shane find out we are both fukd. I think you should forget about it. K. c ya, A". Shortly after this "A" disclosed to a number of witnesses that Mr Whitney had sent her text messages of a sexual nature. 11 It was drawn to the attention of the four adult offenders that some form of sexual relationship between A and Mr Whitney had either been engaged in or had been attempted by Mr Whitney. 12 In early September 2003 Mr Percy and Ms Arnold made clear to Whitney that he was not wanted at their home and Mr Whitney left their premises. Shortly after this occurred Mr Whitney broke back into the premises and stole a number of items, including the underwear of "A", some of her jewellery, some panel beating tools, a sawn off shotgun and a quantity of illegal drugs. 13 Ms Arnold and Mr Percy then made a number of enquiries with a view to locating Mr Whitney. Ms Arnold and Mr Percy expressed irritation to a number of witnesses about the difficulty of locating Mr Whitney. At 1.19am on 11 September 2003 "A" sent a text message to Mr Whitney's mobile phone in derogatory terms, including the following: "1st u try and crack onto me then u break into our fukn house". 14 At 4.37p.m on 11 September 2003 Ms Isaac's mobile phone sent a text message to Mr Whitney's mobile phone which read: "Park your truck down the road in case those cunts somehow spot it". At 6.11p.m on 11 September Ms Isaacs' mobile phone sent a further text message to Mr Whitney's mobile phone which read: "U bringing veges with you? If not am out and about and will pick up. Tried ringing but your phone switched off. U still coming or what? Gill. Get truck msg". At 6.26 p.m on 11 September Ms Isaacs' mobile phone sent a further text message to Mr Whitney's mobile phone which read: "Answer your bloody phone man!". 15 Some time in the afternoon of the 11 September the four offenders were in the home of Ms Isaacs at Roberts Avenue Mortdale. Some time after 6.30 pm Mr Whitney parked his work vehicle, a white prime mover, in Hearne Street Mortdale, a distance of approximately 700-1000 metres from Ms Isaacs' premises. He then walked to her premises. At about this time Ms Isaacs travelled to Westfield Shopping Centre at Hurstville. She did this because she knew that Mr Whitney was going to be assaulted at her house and she left with the intention of providing herself with an alibi. 16 After arriving at Ms Isaacs' premises Mr Whitney was assaulted by Mr Percy who subsequently struck Mr Whitney to the head and the body with a form of implement such as a pool cue. Mr Whitney sustained injuries to his head and body. Mr Percy bound Mr Whitney's wrists behind his back with electrical ties and gaffer tape. His ankles were also bound with gaffer tape. As a result of his injuries Mr Whitney died. 17 The autopsy findings included many skin tears, bruises and grazes particularly over the head, upper and lower limbs, bruising beneath the skin surface of the head, trunk and limbs, excess fluid in the lungs with probably inhaled blood and probable past needle puncture points in the elbow folds. A number of wounds on the body showed a so called "tram track" appearance consistent with blows caused by contact with a rod like implement. Brain examination showed small areas of bleeding. Microscopic examination showed lung congestion and changes consistent with inhaled blood. Although less severe than most lethal head injuries it is most probable that the cause of death was the combination of impaired consciousness associated with blunt force head injury with aspiration of blood and/or compromise of the airway. 18 Mr Percy placed the body of Mr Whitney in a sheet and placed it in the boot of a vehicle. He then drove to a truck rest stop on New Illawarra Road Lucas heights and dumped Mr Whitney's body. He then returned to Mortdale. Mr Percy disposed of the sheet in an industrial bin. Mr Whitney's body was discovered by a motorist at about 4.20am on 12 September 2003. 19 From 22 October 2003 the mobile phones of all the offenders were the subject of lawfully obtained telephone intercepts. On 22 October the police executed a search warrant at 47 Mulga Road Oatley. 20 On 23 October Mr Sulman and Ms Isaacs had a conversation on their mobile telephones which was intercepted by police. In this call Ms Isaacs informed Mr Sulman that she had purchased hydrogen peroxide and said that she would mop the floor with it and use an eye dropper and "do all inbetween". Mr Sulman then provided an accurate description of the area in the poolroom where Ms Isaacs should use the hydrogen peroxide. The location is the exact area where Mr Whitney was killed and lost a substantial amount of blood. The intention of Ms Isaacs and Mr Sulman in this regard was to clean the crime scene with a view to obstructing a police forensic examination. 21 On 6 November 2003 Ms Isaacs provided police with an interview. On the same day police executed a search warrant on Ms Isaacs' home. DNA was obtained from the blood present in the pool room and found to match the DNA of Mr Whitney. The floor boards also exhibited signs that they had recently been washed with an unknown substance. On 20 January 2004 Mr Sulman was interviewed by the police. At one point he said that if there was any blood present it would be from Ms Isaacs' son who had cut his foot some time prior to September 2003. 22 In February 2004 police arrested all four offenders. Mr Percy, Ms Isaacs and Mr Sulman formally declined to comment. Ms Arnold was interviewed by police. 23 Shane Percy stands to be sentenced for manslaughter on the basis that he assaulted Mr Whitney but did not intend to cause grievous bodily harm. That offence carries a maximum penalty of 25 years imprisonment. The objective gravity of Mr Percy's offending behaviour is significant in the light of the evidence suggesting that the victim was lured to the Isaacs' household so that Mr Percy might take his revenge on behalf of Ms Arnold. Moreover, binding the hands and feet of the victim and the disposal of the body displays a contempt towards him of cruel proportions. Mr Percy clearly regarded Mr Whitney's life of so little value, he accorded him treatment usually reserved for dumb animals. 24 Despite Mr Webb of counsel's submission that there was no basis upon which an inference could be drawn that the assault was planned, I find beyond reasonable doubt it was and that Mr Percy had been pre-occupied for some time with visiting his own peculiar form of justice on Mr Whitney. 25 The post mortem report gives some insight into the extent of the assaults upon the victim - in recounting the details which I have in the body of the Agreed Statement of Facts I am conscious of the basis upon which the Crown accepted the plea of guilty to manslaughter. Nonetheless this was not a fleeting assault. 26 At the forefront of this sentencing exercise is the recognition of a long standing principle that the felonious taking of a human life is a most serious offence in the criminal calendar. See The Queen v Hill (1981) 3 A Crim R 397. Manslaughter is, however, an offence which involves an excessively wide variety of circumstances calling for a range of penalties and sometimes non penal outcomes, with the consequence that it is difficult to obtain any assistance from reference to Judicial Commission statistics or from other cases. (Per Wood J in Regina v Woodland [2001] NSWSC 416.) That said, the sentence appropriate to this offence, viewed against the circumstances and the role of the offender, falls, in my view, well above the mid range for offences of manslaughter. 27 Turning to the offender's subjective circumstances; he is presently 36 years of age. His childhood was far from satisfactory. He was placed in a home at the age of 3 when his violent alcoholic father separated from his mother. When his mother remarried he was returned to her care and began to enjoy a secure and supportive family environment. When that marriage ended 11 years later the offender's behaviour deteriorated, leading to his first contact with the Children's Court at the age of 18. Mr Percy enjoys a close relationship with his stepfather, his mother's third husband, his older natural brother and a younger stepbrother. Mr Percy completed Year 10 and acquired TAFE qualifications as a tiler. He has maintained consistent employment and maintains a strong work ethic. He reports a history of alcohol and drug abuse dating from his early teens. He has abused cannabis and amphetamines. At the time of the offence Mr Percy was a long term user of "base", a concentrated amphetamine which he smoked. 28 The combination of amphetamine and alcohol had a significant impact on Mr Percy's behaviour, both generally and on the day of the offence. He has no mental illness but was diagnosed at 14 years of age with Attention Deficit Hyperactivity Disorder or ADHD and clearly has a history of aggression and reckless conduct giving rise to his criminal history, albeit that history consists almost entirely of motor vehicle offences and property offences. To that extent the instant offence is uncharacteristic. Both Dr Nielssen and Mr Taylor (see Exhibits 1P and 2P) assess his rehabilitation prospects as reasonable to promising, provided he abstains from further drug and alcohol abuse. He has completed a Drug and Alcohol course since coming into custody and appears to have developed insight into his propensity to violent behaviour. It is noteworthy his relationship with a co-offender, Ms Arnold, is a stable one of 8 years duration and the couple's six year old son is of central importance. The offender is, by all accounts, a loving and protective parent to that son and to Ms Arnold's daughter. 29 I accept that the offender is genuinely contrite; whilst he did not give evidence, the Court was provided with a letter from the offender which expresses remorse in credible terms. (See Exhibit 8P). That remorse must, however, be viewed against the background of a lengthy police investigation into Mr Whitney's death during which this offender remained focussed on moving himself and his family to the mid north coast of New South Wales and putting the matter behind him. 30 The plea of guilty came in the week before the trial was to commence. The community and the Court were saved the expense and inconvenience of a 6 to 8 weeks trial. The utilitarian value of the plea cannot be gainsaid, however, nor can it be artificially inflated by the fact that the Crown's offer of manslaughter crystallised at that late stage. Utilitarian considerations are what drives the measure of the discount when all is said and done. Accordingly, I propose applying a discount of 15 per cent to the sentence I would have otherwise imposed. 31 Mr Percy is entitled to a finding of special circumstances. His criminal history discloses no more than short fixed terms of imprisonment and this will represent his first lengthy period of custody in middle age. Taking these matters into account I propose to sentence Mr Percy as follows: Mr Percy would you please stand - On the offence of manslaughter you are sentenced to a non-parole period of 5 years to date from 4 August 2004 to expire on 3 August 2009. The balance of the term of the sentence is 4 years expiring on 3 August 2013. The first date upon which you are eligible for release to parole is 3 August 2009. Sit down Mr Percy. 32 Vicky Arnold stands to be sentenced for the offences of both Accessory Before and After The Fact of Manslaughter. Each offence carries a maximum penalty of 25 years. The Crown case against her for the purposes of the Accessory Before The Fact offence consists of her support of and encouragement to her partner Mr Percy in exacting revenge upon Mr Whitney for his sexual advances toward her daughter and theft of items from their home. This offender made a number of unsuccessful phone calls to the victim between 7 and 9 September 2003 in an effort to discover his whereabouts. Given Mr Whitney's awareness of Mr Percy and Ms Arnold's hostility toward him, it became necessary to enlist Ms Isaacs' help in locating Mr Whitney and securing his presence at a location where he would be assaulted. I am satisfied that Ms Arnold played a part in orchestrating these events. 33 After the victim's death the offender contacted a prospective witness to ensure the motive for the assault on Mr Whitney would not be revealed to police. Ms Arnold similarly constrained her daughter. 34 The objective gravity of each offence is of a high order. The offender sustained her pursuit of Mr Whitney until he was punished, according to her own precept of justice, albeit the extent of the punishment meted out to the victim was not within her contemplation. Matters having gone seriously awry, the offender persisted for some months after the victim's death in her attempts to escape responsibility for her actions. 35 Whilst her evidence before me contained expressions of remorse, it is clear her remorse had its origins in her arrest. For almost 5 months after the victim's death Ms Arnold appears to have suffered so little remorse that she was prepared to brazen it out, even in the face of a search warrant executed at her home on 22 October 2003. 36 With some hesitation I accept that her remorse is now genuine and that the full significance of what she has done has dawned upon her. That remorse has only materialised since 3 June 2005 when the matter came before the Court for the second time. The offender's plea on the 26 April 2005 prompted the preparation of a presentence report dated 27 May 2005 in which the offender gave an entirely exculpatory version of events which, if accepted, is inconsistent with her plea to the charge of Accessory Before The Fact. 37 A similarly sanitized account of the offender's role appears in Mr Taylor's report of 23 May 2005. (Exhibit 4 VA at page 5). These aspects of those reports, as I understand it, are not pressed. 38 Her criminal history is, superficially, of little significance. However, of some concern is a conviction in May of 1998 for assault occasioning actual bodily harm, which appears to have arisen out of similar circumstances, that is, Ms Arnold prevailing on another person to assault someone who was harassing her. A sentence of Community Service was imposed but not completed until mid 2001. 39 On any view Ms Arnold had an appalling early life and it is to her credit she was able to establish a stable home environment for her own children until the present offences. The offender was born in New Zealand, the youngest of four children. She is now 41. Her father, a violent alcoholic, assaulted her mother who also abused alcohol. Her parents separated when she was five. Her mother fell into a new relationship with a sexually abusive partner who gratified himself at Ms Arnold's expense when she was between 8 and 10 years of age. After a period of time living with her maternal grandmother, she returned to her mother but was largely neglected. A short stint in a juvenile institution was followed by residence with an older sister until Ms Arnold was sixteen. In her late teens she came to Australia. She had her daughter "A" during a relationship of 8 years duration which ended shortly before the commencement of her relationship with Mr Percy. Their son, now 6, is in the care of his grandparents and regularly visits the offender. Not surprisingly she is finding the separation from him very hard. 40 Some insight into Ms Arnold's reaction to the prospect her daughter and Mr Whitney might have engaged in sexual conduct lies in Ms Arnold's history of sexual abuse at the hands of older men. Ms Arnold acknowledged at no stage did she receive an account from her daughter as to what had occurred between herself and Mr Whitney. "A" had confided in a very limited respect to Ms Isaacs that something improper had occurred. Ms Arnold appears to have jumped to her own conclusions and condemned Mr Whitney without further ado. I accept that Mr Whitney had made sexual overtures toward "A" but the evidence does not bear out anything more. Mr Whitney ought to have known better but Ms Arnold's inability to deal with Mr Whitney in any other fashion suggests that she has never satisfactorily resolved her own experiences. In that respect some limited mitigation of the offences is warranted. 41 Ms Arnold has no mental illness, personality disorder or substance abuse issues. She is of average intellectual ability and her prospects of rehabilitation are assessed as good. She is entitled to a finding of special circumstances on the basis that this is her first custodial penalty.

44 Gillian Isaacs stands to be sentenced for offences of Accessory After The Fact and Accessory Before The Fact of Manslaughter. Each offence carries a maximum penalty of 25 years imprisonment. As recounted by the Agreed Facts in this matter this offender called Mr Whitney a number of times on the afternoon of 11 September 2003 with the purpose of securing his presence at her home where he was to be assaulted by Mr Percy. This offender was complicit with Ms Arnold and Mr Percy in that Ms Arnold's daughter "A" had confided in Ms Isaacs to the extent that Mr Whitney had sexually propositioned her, although details of the contact between them were never provided. Ms Isaacs had told Ms Arnold of that conversation. Ms Isaacs knew Ms Arnold and Mr Percy wanted to punish Mr Whitney for his alleged behaviour and she facilitated the meeting on 11 September 2003. While this offender in her evidence sought to resile from any active part in causing the victim to come to her home, Mr Conomos of counsel accepted that she is to be sentenced on the basis of the agreed facts. 45 After the victim's death this offender cleaned the room where the victim had been beaten by applying peroxide to the floor in an attempt to remove all traces of blood. That conduct founds the charge of Accessory After The Fact of Manslaughter. 46 The most baffling aspect of this offender's serious criminality for the purposes of the offences she has committed is her reputation in her community for unselfish concern and dedication toward those in need. An impressive array of witnesses gave evidence of many occasions when this offender provided on-going practical support and advice to friends, neighbours, acquaintances and colleagues who were struggling with their own personal problems and family pressures. How one so capable of compassion for others could collude in the infliction of harm on a person who bore her no ill will is a puzzle. 47 Like Ms Arnold, Ms Isaacs' early life was marked by sexual abuse at the hands of her grandfather who the family visited on weekends. Otherwise her family life was stable and supportive and remains so but for an older sister who has ceased contact. Ms Isaacs is presently 41 years of age. Her first two significant relationships both ended tragically. Her first partner of 5 years was killed in a motor cycle accident in 1983. They had one child, and a son from her partner's previous relationship. At 22 years of age the offender began another relationship which was violent and ended in separation. There were three children from this relationship who are all presently in the care of the friends of the offender. Shortly after separation in 2002 her partner committed suicide. According to the pre sentence report this event triggered the offender's amphetamine use which had ceased by the time of her arrest. 48 The offender's relationship with her co-offender, Mr Sulman, is stable and happy. They plan to marry. Her prospects of rehabilitation would appear sound. She has been participating in weekly group counselling sessions since January 2005 . She has no criminal convictions. She was, until her conviction for the present offence, a Justice of the Peace. 49 Ms Isaacs' pleas of guilty came on the first day of the trial. I propose applying a discount of 15 per cent. Ms Isaacs expressed remorse for the death of Mr Whitney in the course of her evidence on sentence. I accept that she is now remorseful, although her minimisation of her culpability attenuates that remorse. Her role in these sorry events falls below that of Ms Arnold. 50 I accept Ms Isaac was, to a certain extent, drawn into the more conflict ridden lives of Mr Percy and Ms Arnold, especially for the time that she offered them the hospitality of her home in the week leading up to the assault. 51 She is entitled to a finding of special circumstances on the basis that this is her first custodial sentence. I regard a head sentence of 2 years as appropriate to the circumstances of each of the offences. Some small measure of accumulation is warranted in order to reflect the totality of her criminality. 52 Accordingly, I propose to sentence as follows: Please stand Ms Isaacs - On the charge of Accessory Before the Fact of Manslaughter you are convicted. I impose a non parole period of 12 months to date from 5 February 2004 to expire 4 February 2005. The balance of the term shall be 12 months to expire 4 February 2006. On the charge of Accessory after the fact you are convicted. I impose a non-parole period of 13 months to date from 5 August 2004 and to expire on 4 September 2005. The balance of the term shall be 11 months expiring on 4 August 2006. You are eligible for release on 4 September 2005. You may take a seat. 53 Jason Sulman stands to be sentenced for a charge of Accessory After The Fact of Manslaughter carrying a maximum penalty of 25 years imprisonment. This offender gave instructions to Ms Isaacs on 23 October 2003 as to the precise area in the room where Ms Isaacs should clean to remove all traces of the victim's blood. The inference to be drawn from that conversation is that Mr Sulman knew where Mr Whitney was assaulted and that he was a party to an attempt to hinder the police investigation into the victim's death, bearing in mind that police had searched Mr Percy and Ms Arnold's premises the previous day and had been met with denials of any knowledge of Mr Whitney's fate. 54 The offender's involvement even to this extent demonstrated a degree of complicity in the events following Mr Whitney's death which is difficult to comprehend in an otherwise productive, blameless life. Mr Sulman has no prior convictions. He has always embraced his responsibilities as an employee, as a partner and as a father figure to Ms Isaacs' children. He is presently 35 years of age. His up bringing was unstable and unhappy. His parents separated when he was four, his mother remarrying four years later. Mr Sulman formed a close attachment to his stepfather despite experiencing sexual abuse at the hands of his stepfather's brother between the ages of 8 and 10. He did not, however, disclose that abuse. His relationship with his mother and a brother is strained. He no longer has contact with his stepfather, his mother's second marriage having ended some time ago. Mr Sulman has been married twice. Both relationships were relatively brief. The offender's alcohol consumption has been heavy since his early 20s. He was abusing amphetamines in the six months before his arrest. This coincides with Ms Isaacs' introduction to amphetamines allegedly by Mr Percy and Ms Arnold. He did not consider his substance abuse problematic but has recently changed his thinking. 55 The offender has expressed remorse for the victim's death and his failure to contact police at an earlier time. There is no reason to doubt his intention to resume his relationship with Ms Isaacs and his stable employment upon his release. I regard his prospects of rehabilitation as good. 56 His criminality falls below that of Ms Isaacs although a custodial sentence was always recognised as the only appropriate penalty in the circumstances. His plea of guilty came on the date fixed for trial. The same discount of 15 percent applies to his sentencing exercise. He has served part of his remand in protective custody, a fact which has rendered his incarceration more onerous. 57 In all the circumstances I propose to impose the following sentence: - Mr Sulman would you please stand. On the charge of Accessory After the Fact you are convicted. I impose a non-parole period of 19 months to date from 5 February 2004 and to expire on 4 September 2005, the balance of the term expiring on 4 February 2006. You are eligible for release on 4 September 2005. You may be seated. Mr Webb in respect of your client on the offence of Manslaughter he is convicted.

R v Percy, Arnold, Isaacs, Sulman

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