R v POSKART [2001] NSWSC 189 | Case summary

1 HIS HONOUR: These remarks relate to an application, dated 20 July 1997, by John Zvigniew Poskart pursuant to Section 13A of the Sentencing Act 1989 for the substitution of minimum and additional terms of imprisonment in lieu of a life sentence. That sentence was imposed on 15 December 1989 by Campbell J in the Supreme Court following the Applicant's conviction by a jury for the murder of one, Robert Caelli. 2 Facts as found by Campbell J were that the Applicant worked from time to time as a driver and guard for Mr Caelli, who on the evidence before his Honour was a drug dealer. The Applicant and perhaps one other decided that Mr Caelli should be killed. Discussion on the topic occurred over at least a few days. On 8 July 1986, Mr Caelli was tricked into accompanying the Applicant and 2 others on a car trip to carry out a fake drug deal. On the way the car diverted to a relatively lonely spot and there Mr Caelli was shot at least 3 times with a shot gun. It was not established that the Applicant fired the shots but, as Campbell J remarked, the jury must have been satisfied that the Applicant was criminally responsible for the firing of the shots. Campbell J also recorded in his remarks on sentence that the Applicant procured the theft of the car used and for this offence imposed a concurrent sentence of a fixed term of 2 years. 3 The circumstances were described in the Court of Criminal Appeal which, on 28 February 1992, dismissed the Applicant's appeal against conviction as a "gangland execution". I mention, though given the Applicant's conviction for murder it has no relevance, that other persons who appear to have been co-offenders in the murder were either acquitted or convicted of manslaughter. 4 In his remarks on sentence Campbell J made no finding as to the motive for the killing although the Court of Criminal Appeal said that "it seems that a conclusion had been reached that (Mr Caelli) was an informer although to, by, for or upon whom was not altogether clear". Having regard to the terms in which this statement is expressed I do not believe I would be justified in regarding that as a finding beyond reasonable doubt. Nor is there any other information which would enable me to make any finding to the criminal standard as to the motive for the killing. 5 Campbell J did however make the following findings:- "The Prisoner is 36 years old, an associate of criminals and addicted to drugs. He is divorced and has two children. From material put to me by Mr Kelly and not disputed, it appears that the Prisoner had a very difficult childhood and home life in a home where there was alcoholism and violence. He is not able to read or write although he was able to overcome that handicap to the extent that he at one time operated, how successfully does not appear, a model agency through a proprietary company. The Prisoner was released on a twelve month good behaviour bond in 1967 on a charge of break enter and steal, and after that apart from driving offences his record remained clear until 22 September 1989 when he was convicted of being an accessory after the fact to murder and sentenced to eight years penal servitude with a non parole period of four and a half years, the sentence and non parole period to date from 7 July 1988. The Prisoner was arrested on the present charges on 7 July 1988 and the Crown has indicated that it accepts that the present sentences should date from or be regarded as having commenced from that date. 6 The offence of being an accessory had been committed between 21 March and 30 April 1988. Studdert J who sentenced the Applicant for this offence found it more probable than not that the Applicant was "influenced, such influence falling short of duress, to do what he did, by fear of the (murderer)." A letter from the Department of Corrective Services said that, taking remissions into account, the 8 and 4½ year terms of the sentence imposed by Studdert J expired on 3 August 1993 and 25 May 1991 respectively. 7 A little more detail of the Applicant's youth should be mentioned. The Applicant was not called and the evidence is not nearly as detailed as it might have been although there was no dispute concerning the evidence that there was. It was largely contained in the report of Mr Flockton. There seem to have been regular bashings between his parents with his mother being hit around the face and head. He himself was "belted until I was pissing myself with fear" and when he sought to escape underneath the house, that being the safest place he could find, his father would continue to hit him by reaching into the area with a long stick. Finally, his mother killed his father. To Mr Flockton the Applicant recounted a story of coming home from school after his father had been killed, I infer just after, and speaking to his mother quite calmly while both were seated on a lounge. 8 Matters reported on during the course of the Applicant's incarceration include the following. He was classified A2 between 23 January 1990 and 4 December 1995 when he was reclassified B. 9 When interviewed for the purposes of original classification, the Applicant asserted he was innocent of the murder and was appealing against his conviction. He was reported as having been distressed about his sentence and he was placed in the psychiatric ward for some time for suicidal ideation. Although no formal testing was completed, the Applicant presented as reasonably intelligent but having a literacy problem and needing remedial education in that regard. There was a recommendation that he have "D & A counselling to address long term amphetamine use". 10 In May 1993 it was reported that he had not then fully come to terms with his imprisonment. In May 1994 he was attending stress management classes but having difficulties. 11 Reports as to his behaviour and attitude indicate that throughout his time in prison both have been, subject to a couple of matters I specifically mention, consistently good. In one report he is described as a "model prisoner ". 12 For much of his time in prison the Applicant seems to have been "employed". He was for a time a sweeper, he seems to have spent some years in a tailor shop and for 3 years on an oval in relation to which he was reported as having done a "sterling job". He also worked in a laundry. He also seems to have established a reputation for leatherwork. 13 In April 1997 an assessment committee recommended a program be designed to address the Applicant's behaviour in relation to drugs and violence. In July 1997, the Applicant was recorded as keen to participate in such a program, albeit somewhat nervous about being involved in group work. While he attended some, he failed to attend a number of counselling sessions in the first half of 1998. 14 A report by a Mr Flockton of the Riverina Psychology Services dated 28 September 1998 records, inter alia, that:- "(The Applicant) recognises that his drug use is "what's destroyed my life totally". There does not appear to be significant improvement in Mr Poskart's psychological state during the period of his detention, although this opinion is qualified by not having seen him prior to his conviction… Mr Poskart continues to deny being primarily responsible for the murder for which he has been convicted. He does confirm his presence at the scene of Caelli's death however his recounting of the incident on present interview is consistent with that contained in his original statement. Mr Poskart displays an ability to reflect on his life at the time of the incident and on previous experience. However of note is the absence of any obvious emotional response despite what would be typically considered to be violent and disturbing details. This would be consistent with "psychic numbing" and diagnosis of post-traumatic stress disorder and/or major depression, as is suggested in formal clinical assessment. … He says he continually resists access to a range of substances available at Junee Correctional Centre… While it is possible on Mr Poskart's report that he has abstained from drug use, it is likely pre-existing personality influences leading to his original drug use have not at this time been addressed during the course of his detention. This results in him experiencing persistent and pervasive anxiety resulting in his reliance on a general pattern of avoidant behaviour in order to reduce the risk of further use. … It is possible predispositional personality factors and Mr Poskart's limited progress in being able to deal with these during the course of his detention increase the likelihood of him being attracted to negative sub-cultural influences on any possible release. Such risk makes it imperative that he has access to a prolonged period of psychological counselling and direct attention towards multiple drug dependency in order to reduce the risk of further re-offending. … The diagnosis of post traumatic stress disorder would fit with multiple exposure to psychologically threatening events, including initially the family environment in which he lived as a child and being subject to what he reports as extreme physical abuse and witnessing similar behaviour between his parents. It is likely that being witness to the death of Stephen Green continues to provoke recurrent thoughts, recollections and extreme hyper-arousal consistent with diagnostic requirements for a trauma induced disorder. It is likely major depression is now chronic and further significantly impairs his general level of psycho-social adjustment, particularly given the realities of the institutional environment. Mr Poskart's prognosis in the short to medium term is significantly guarded. He will require intensive psychological counselling… (and) access to drug and alcohol counselling… On a more positive note, Mr Poskart impresses with a genuine willingness to deal with what remains significant impact associated with early life experiences and events leading to his conviction for the murder of Craig Caelli." 15 However, another psychologist at the Junee Correctional Centre, a Ms Haywood reported that by August 1999, the Applicant had completed a "Normalisation; Education; Treatment and Training Program, his participation being to a high standard and thereafter supported other participants in the program, performing this role "admirably, demonstrating responsibility and maturity and a high level of commitment". His personal and social adjustments were reported as having improved significantly as had his ability to cope with difficulties. 16 Ms Haywood's report dated 3 April 2000 goes on to say that the Applicant asserts full responsibility for his actions regarding his offences and for his somewhat dubious "underworld" lifestyle that was a feature of his life. The author recorded her belief that the Applicant was genuine in his desire and struggle to remain "clean" while in gaol. 17 In that regard it should be recorded that in July 1999, he was suspected of trafficking contraband while working under minimal supervision. His only recorded offence while in gaol was on 19 September 1999, when he had drugs in his urine. I was told from the bar table that this was cannabis. Based on what the Applicant told Mr Flockton, there was another occasion when he had one shot of heroin after which he collapsed. He told Mr Flockton that he was very disappointed with himself but, inspired by the incident, took steps resulting in the supplier, another inmate being transferred to another gaol. 18 He also provided information to the police and to the Wood Royal Commission although it is not apparent whether this information was of any use. There is one report which records that an investigation based on what the Applicant had said was completely unproductive. 19 Whatever the reason, the Applicant however seems to have received death threats and has spent virtually the whole of the time he has been in prison in strict protection. Numerous authorities in this Court recognise that that is a harsher form of imprisonment than that experienced by the general prison population. 20 It should also be mentioned that the Applicant also indicated at one time a willingness to give evidence against at least one other person who was charged with involvement in Mr Caelli's death. However, the terms of the Applicant's statement directed to that end are so significantly different from the findings implicit in the Applicant's conviction and those made by Campbell J that I do not regard the Applicant as entitled to any credit in that regard. 21 Those are the facts against which this application falls to be determined. However, a victim impact statement from Mr Caelli's mother, written on behalf of members of his family, should be acknowledged. The authorities - see R v Previtera (1997) 94 A Crim R 76 at 85, Bollen v R (1998) 99 A Crim R 510 at 529 - limit the use to which such a statement can be put but one cannot doubt that a traumatic death such as was suffered by Mr Caelli is calculated to have a devastating effect on close family members left behind. 22 It was not suggested by the Crown that this was a case where re-determination at this time was or might be inappropriate. Nor is rejection of the application a course which, having regard to the principles applicable, appeals to me. 23 Clearly the Applicant's offence, premeditated, with an intent to kill and unaccompanied by any mitigating circumstances, was a murder which falls well into the upper range of seriousness of such offences. The cold blooded nature of it, following upon the Applicant's experience of the murder to which he was an accessory, leads to the inescapable conclusion that the Applicant must have had little, if any, respect for human life. Furthermore, the Applicant is not entitled to the discount normally given for a plea. 24 In that regard it is important to bear in mind that in cases where they are present, significant allowance is generally made for a plea of guilty the absence of premeditation and the absence of an intent to kill. Yet the sentence must still reflect the objective gravity of the killing of another human being. If that approach is, as the authorities establish, proper, it is essential that in cases not exhibiting these features, the sentences properly reflect the fact. 25 It may be accepted that, very probably, the Applicant's upbringing was a contributing factor to this attitude to life but nevertheless, the requirements of personal deterrence, general deterrence, protection of society and retribution would, in 1989 have made a very heavy sentence obligatory. The Prisoner's behaviour and attitude in prison, now over an extended period, his recognition of the consequences of drug use, his obvious attempts to avoid drugs in prison - only one dirty urine sample in 10 years is an appreciably better record than one often sees - and the report of Ms Haywood lead to the conclusion that the first of these factors does not now have the weight it would have had in 1989. Although the Crown Prosecutor submitted to the contrary, probably the same can be said of the third factor but the significance of the others remains undiminished. No civilised society can tolerate any of its citizens appointing themselves judge, jury and executioner. Thus the sentence must still in my view remain heavy. 26 I have thus far largely approached the matter as an ordinary sentencing exercise - c.f. Purdey (1992) 65 A Crim R 441at 444. However, Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 requires that there be some additional factors taken into account. So far as presently relevant they are:- (a) Reports by, inter alia, the Serious Offenders Review Council, (b) the need to preserve the safety of the community, (c) the age of the Applicant, both at the time of the offence and now, "(d) in the case of an offender sentenced before 12 January 1990 (the date on which section 463 of the Crimes Act 1900 was repealed by section 5 of the Prisons (Serious Offenders Review Board) Amendment Act 1989), the fact that the sentencing court: (i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900; and (ii) would have been aware of the practice relating to the issue of such licences; and (e) any other relevant matter. 27 The first 3 of these matters are encompassed or reflected in what I have said above. For the reasons given by Hunt CJ at CL in Purdey (at 444) the matters in paragraph (d) are of no significance in this case. Campbell J recorded in his remarks on sentence, "Mr Kelly of Counsel who appeared for the Prisoner has correctly not submitted that there is any basis for applying the proviso to s19 of the Crimes Act and accordingly there is but one sentence that I can pronounce". That last conclusion followed from the terms of s19 and hence knowledge of that Applicant's eligibility to be released on licence and the practice in that regard was irrelevant. 28 Nevertheless, I do regard that eligibility and practice as an "other relevant matter" within paragraph (e) although at the same time sharing the view expressed in Purdey that the statistics reflecting that practice provide far less assistance than do the sentences being imposed by the Court since s19A of the Crimes Act came into operation. There was no specific evidence as to the practice placed before me although the frequency with which they have been placed before the Court in the past make them a matter of which judicial notice can be taken. Although there will undoubtedly have been some variation in statistics from time to time, it is probably sufficient to have regard to those quoted in Clarke (1990) 48 A Crim R 100 at 104. Of two groups of prisoners released between October 1981 and October 1987 and a further group still in gaol in July 1989, it was said:- "The mean length of time served before their first release on licence by 161 prisoners was 11.7 years (minimum of 3, maximum of 34 years), and 149 (92.5%) prisoners had served 15 years or less. Of the 238 lifers still in prison, 32 (13.4%) have been in prison more than 12 years and 13 (5.5%) for more than 15 years." 29 The conclusion at which I have arrived is that the appropriate sentence for the Applicant's murder offence is 23 years with a non-parole period of 17 years. But for the factors favourable to him and to which I have referred, both the full, and to a greater degree, the non-parole terms would have been appreciably higher. 30 S3 of Schedule 1 to the Crimes (Sentencing Procedure) Act also requires that regard be had to "all offences, wherever and whenever committed, of which the offender has been convicted". The ten year gap in convictions referred to by Studdert J leads me to regard offences before that time as of no present significance. Given that the car stealing offence dealt with by Campbell J was integrally connected with the criminality involved in the Applicant's murder offence and the magnitude of the sentence which must be imposed for the latter, it is not inappropriate for the sentence in respect of the car stealing to be wholly concurrent with that imposed for the murder. However, I do not take the same view in respect of the earlier offence of being an accessory after the fact to the earlier murder. As Studdert J said when sentencing the Applicant for that offence:- "The crime of accessory after the fact in respect of which the jury has found Poskart guilty is in a grave category of offence. The legislature has seen fit to impose a maximum penalty for this category of offence, penal servitude for life. Now, of course, the crime of murder is of the gravest class of offence against the person and the law is concerned that any conduct aimed at preventing the detection and punishment of a murderer is to be deterred. So it is that the penalty for conviction as an accessory after the fact has the maximum penalty which I have indicated." 31 Although the principle of totality would not lead to simple accumulation of the sentence for murder with the sentence (8 years penal servitude with a non-parole period of 4½ years) imposed by Studdert J, (or with the lesser terms expiring on 3 August 1993 and 25 May 1991 to which the Department of Corrective Services referred), the seriousness of the offence dealt with by Studdert J argues for some accumulation of the sentences. 32 It is appropriate to recognise the extent to which both of the offences, murder and accessory after the fact to murder have common features at least in their assault on the essential elements to any civilised society. Because of this, it seems to me that in the circumstances of this case, one can give to the principal of totality a somewhat greater operation than I would generally accord to it. According to the letter from the Department of Corrective Services, the effective term required to be served for the offence of accessory was a little under 2 years and 11 months (7 July 1988 to 25 May 1991). In the light of the matters to which I have referred it seems to me it will be sufficient to add to the full and non-parole terms of the sentence I would otherwise have imposed for the offence of murder alone, a further period of 18 months imprisonment. 33 It would appear that the draughtsman of S5 of Schedule 1 to the Crimes (Sentencing Procedure) Act took no notice of the criticism by Hunt CJ at CL in Purdey (at 446) of the earlier provision for s5 provides:- (1) A non-parole period arising from a determination referred to in clause 4(1) is taken to have commenced on the date on which the sentence commenced or, if the offender was remanded in custody for the offence, the date on which the first such remand commenced. (2) If the Supreme Court sets a specified term for an existing life sentence, the existing life sentence is taken to have been replaced by a sentence of imprisonment for the term so specified. 34 At least implicitly, the full term must also commence on the date fixed by ss5(1). Thus, if the Applicant's punishment is to reflect both the offence of his murder of Mr Caelli and his offence of being an accessory, the sentence for Mr Caelli's murder must be increased beyond what it otherwise would be. That is what was done in Purdey and, notwithstanding it may offend normal principles of sentencing, is permissible when regard is had to the statutory provisions governing the re-determination of life sentences - see my discussion of the topic in R v Attard & Sharah [2000] NSWSC 511. 35 Accordingly the order I make is:-

Last Modified: 04/19/2001 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.

R v POSKART

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (1)

Cited By (1)