Mr G Wendler and Mr A S Cassels (on and from 11 April 2016) - Accused McNamara
[2]
Solicitors:
Director of Public Prosecutions NSW - Crown
Katsoolis and Co - Accused Rogerson
Kings Law Group (up to 4 April 2016) - Accused McNamara
AHA Taylor Lawyers (on and from 7 April 2016) - Accused McNamara
File Number(s): 2014/1574082014/156921
Publication restriction: Nil
[3]
INTRODUCTION
On 1 February 2016 Glen Patrick McNamara ("McNamara") and Roger Caleb Rogerson ("Rogerson") each pleaded not guilty to an indictment alleging:
1. the murder of Jamie Gao ("the deceased") on 20 May 2014 (Count 1); and
2. the supply, between 20 May 2014 and 24 May 2014, of a prohibited drug, namely 2.78 kilograms of methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug (Count 3).
Count 2 in the indictment was brought against Rogerson only and alleged, as an alternative to count 1, an offence of being an accessory after the fact to the murder (by McNamara) of the deceased.
On 15 June 2016, following a trial of some 4½ months, McNamara and Rogerson were each found guilty of counts 1 and 3 in the indictment.
The offence of murder carries a maximum penalty of life imprisonment, with a standard non-parole period of 20 years imprisonment. The offence of supplying a prohibited drug in an amount not less than the large commercial quantity also carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years imprisonment.
The Crown case, which the jury clearly accepted, was that the offenders had engaged in a joint criminal enterprise to kill the deceased, and to steal a large quantity of drugs from him for profit. Each offender denied the existence of, and any participation in, the joint criminal enterprise alleged by the Crown.
In summary, McNamara's case was that having met the deceased in the early part of 2014, the deceased informed him that he (the deceased) was in a position to provide information about the operation of Asian crime gangs. McNamara asserted that he had formed an intention to publish a book on that subject, and that all of his subsequent association with the deceased was to further that purpose.
McNamara and Rogerson were previously known to one another. According to McNamara, he was contacted by Rogerson in about April of 2014 and asked to go and look at some furniture in a storage unit. McNamara asserted that he later discussed with Rogerson the sale of that furniture.
McNamara said that at a subsequent meeting with the deceased at the Meridian Hotel at Hurstville, the deceased had informed him that he (the deceased) had been accused of stealing $130,000.00, and that his lawyers had advised him that Rogerson could assist him. According to McNamara, the deceased informed him in about mid-May 2014 that he was concerned that members of Asian crime gangs had been following him, and that as a consequence he had become fearful that such persons had also become aware of the fact that McNamara was in the process of writing a book about them.
McNamara said that the deceased confirmed these fears with him in a meeting on 19 May 2014. He said that at this meeting, the deceased had said that he would call McNamara the following morning to let him know, in effect, that he was safe. McNamara also stated that the deceased had said on that occasion that he (the deceased) was to meet with Rogerson on the following day. On McNamara's account, the deceased invited him to the meeting with Rogerson. McNamara maintained that he declined the invitation, and advised the deceased that he too should not go.
McNamara told the jury that on the morning of 20 May 2014 he spoke with Rogerson and informed him that he was worried about the deceased, and that in his (McNamara's) view, Rogerson should not go to any meeting. Later that day, McNamara travelled to Padstow. He said that this was in response to Rogerson telling him that he was to meet the deceased there. On McNamara's account, Rogerson told him to wait at McDonalds at Padstow, and that once Rogerson had finished his meeting with the deceased, he would "drop him back" to McNamara. According to McNamara, whilst waiting at that location, the deceased entered the rear of his vehicle, telling McNamara that Asian gang members had been chasing him all day, and advising him that on Rogerson's instructions, he was to drive to the premises of Rent-a-Space which were nearby. McNamara did so, and he and the deceased entered a storage unit, with Rogerson entering a short time thereafter.
According to McNamara, when Rogerson entered the storage unit he asked the deceased for "the gear", to which the deceased replied that he wanted "money first". The effect of McNamara's account was that such conversation, which was obviously about drugs, came as a complete surprise. McNamara said that after some further words were exchanged, the deceased produced a knife, following which Rogerson produced a gun and shot the deceased twice. According to McNamara, he was hiding under a table within the storage unit when this occurred. McNamara asserted that he questioned Rogerson about why he had shot the deceased, following which Rogerson threatened him with death, and threatened the safety of members of his family. Whilst McNamara conceded that he engaged in certain conduct over the ensuing days, he denied being a party to any joint criminal enterprise, and asserted that everything he did on and from the time at which the deceased was shot, was done under duress.
Rogerson, who admitted having known McNamara for some years, said that he and McNamara had spoken about his proposed book on the subject of Asian crime gangs. Rogerson said McNamara had later told him about meeting with the deceased, and had said that the deceased was providing him with information for the book.
Rogerson said that in early 2014 Michael Maguire, a friend of his, had told him that some office furniture was being moved to a storage facility at Rent-a-Space at Padstow. According to Rogerson, he told Maguire that he might be able to sell some of that furniture for him. He said that he went to the Rent-a-Space premises on 2 April 2014 for the purposes of looking at the furniture, and the storage facility. He said that he told McNamara about these items, and that McNamara had expressed some interest in them.
Rogerson said that on the afternoon of 18 May 2014, McNamara spoke to him about the deceased, saying that he was trying to arrange a meeting at McDonalds at Padstow, but that the storage unit at Rent-a-Space might be a safer place. According to Rogerson, McNamara phoned him on 19 May to tell him that things were "hotting up".
Rogerson stated that McNamara visited him at his home on 20 May 2014 at about 1.00pm. According to Rogerson, McNamara told him that he was to meet with the deceased at McDonalds at Padstow, but that because the deceased was being "hassled by the Triads" it may be necessary to use storage unit 803 at Rent-a-Space as a default meeting place. According to Rogerson, he acceded to McNamara's request to follow him to Arab Road, Padstow (where McDonalds was located) to "keep an eye out for suspicious cars with Chinese on board", and be the "second set of eyes".
Rogerson admitted going to Arab Road, and later going to Rent-a-Space. He said that upon entering storage unit 803, McNamara was already present, and the deceased lay dead on the floor. According to Rogerson, McNamara told him (inter alia) that the deceased had "pulled a gun" on him and that, in an ensuing struggle, the deceased had shot himself twice in the chest.
It will be apparent that the accounts of the offenders were diametrically opposed, with each effectively blaming the other. The jury's verdicts necessarily represent an acceptance of the joint criminal enterprise alleged by the Crown.
[4]
The making of findings of fact
For the purposes of determining sentence, I am required to make findings of fact in relation to the circumstances of the offending. Any findings that I make must be consistent with the jury's verdicts. In particular, I must accept such facts as are established by those verdicts, and I must not determine any factual issue in a way which is inconsistent with them: R v Isaacs (1997) 41 NSWLR 374. The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender(s). Each offender bears the onus of proving factual matters in mitigation, on the balance of probabilities.
There are numerous facts which are objectively established by the evidence, and which are not in dispute. However, I have heard lengthy submissions as to a number of other issues, in respect of which I have been urged by one or other of the parties to make particular factual findings. I have identified those issues where they arise on the evidence, and I have set out my findings in relation to them.
[5]
The deceased
The deceased was a 20 year old university student. Inherent in the Crown case was the fact that at the time of his death, the deceased was engaged in the supply of a substantial quantity of an illicit drug. Evidence was adduced by the Crown from friends and relatives of the deceased, which established that he regularly associated with persons who were similarly engaged in such supply.
In the period leading up to his death, the deceased spoke to his family and friends about a person named Glen, and about meeting Glen in relation to a "deal" which he said would be "massive", and would make him "rich". These were obvious references to McNamara, and to the proposed supply of a quantity of methylamphetamine.
On occasions, the deceased would leave the company of his friends to meet with McNamara, and would deliberately leave his phone behind when he did so. That was clearly a step taken by him to avoid detection. Although there was some evidence given in the trial which pointed to the possibility of McNamara having taught the deceased this technique, I am unable, particularly given the deceased's prior association with the drug trade and those involved in it, to be satisfied that McNamara in fact did so.
Bearing in mind the evidence of the deceased's obvious involvement in the supply of illicit drugs to the offenders, the written submissions filed by counsel for McNamara included the following (at [13]):
"Finally - and this submission should in no way be interpreted as suggesting the deceased deserved to be shot given his involvement in the illegal drug milieu - it is not irrelevant to observe that the deceased was criminally concerned with the supply of illegal drugs for profit. The evidence from his cousin was that the deceased had an expectation of a substantial windfall cash profit from the supply of the methylamphetamine to the offender(s). The deceased must have realised that his involvement with illegal drugs had real potential to end badly for him. The deceased must have realised that dealing in large quantities of illegal drugs valued at $100,000s could, and ultimately did, expose him to deadly violence."
As I observed in oral argument, I find that submission troubling. Having initially sought to support it, counsel for McNamara ultimately disavowed any reliance upon it. Counsel also stated that he did not intend the submission to "have any legal effect on the sentencing at all" and that it was intended to be a "passing observation".
The submission which was made was entirely irrelevant to any matter which bears upon the determination of an appropriate sentence. Notwithstanding the "disclaimer" as to one interpretation which might be ascribed to it, the submission is capable of being construed in a way which carries a thinly veiled suggestion that the deceased's involvement in the trafficking of illicit drugs should somehow lead to a conclusion that his life was of less worth. Any such proposition should be firmly rejected. The worth of a victim's life is not "graded" according to his or her background, and then somehow taken into account in determining an appropriate sentence. As Hunt CJ at CL stated in R v Previtera (1997) 94 A Crim R 76 at 86-87:
"The law already recognises, without specific evidence, the value which the community places upon human life, that is why unlawful homicide is regarded as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another".
Ultimately, counsel expressly conceded that even if it were accepted that the deceased had a realisation of the danger in which he had placed himself by acting as he did, that did not lessen the gravity of the offending of which McNamara had been found guilty. Given that concession, and given the fact that any reliance on the submission was ultimately disavowed, it is difficult to understand why the submission was made at all.
[6]
McNamara's introduction to the deceased
In 2012 Chun Lok Lam ("Lok") and Chun Kit Lam ("Kit") were each charged with supplying a prohibited drug. In 2014, they each pleaded guilty and were sentenced to terms of imprisonment. Adam Ly, a solicitor, acted for both Lok and Kit. Mr Ly retained Charles Moschoudis, a barrister, to appear for Lok.
At the time of being retained to appear for Lok, Mr Moschoudis had known Rogerson for some time. Through that connection, Rogerson had previously introduced Mr Moschoudis to McNamara. Mr Moschoudis had become aware at some point that McNamara carried on business as a private investigator, and he engaged McNamara to assist in the preparation of Lok's case. For that purpose, various conferences were held at which Mr Moschoudis, Mr Ly, Lok and McNamara were all in attendance. Importantly, the deceased, who was a friend of Lok, also attended some of those conferences in the capacity of an interpreter. It was in those circumstances that he and McNamara first became acquainted.
The initial association between McNamara and the deceased was therefore a completely lawful one. However, their subsequent contact between early March 2014 and 20 May 2014, was such that this initial lawful association was quickly transformed into one which was wholly unlawful.
McNamara's association with the deceased from March 2014 to May 2014
On the afternoon of 2 March 2014 an exchange of text messages took place between the deceased and McNamara, in the course of which the deceased advised McNamara that he had just returned from Hong Kong. A meeting was arranged to take place between them. I am satisfied that the deceased had travelled to Hong Kong to make arrangements to source the drugs which were to be supplied. McNamara conceded in his evidence before the jury that he was "curious" about what had happened in Hong Kong. I am satisfied that McNamara well knew the purpose of the deceased's trip to Hong Kong. His desire to meet with the deceased following the latter's return stemmed from something substantially greater than just idle curiosity.
The exchange of text messages between the deceased and McNamara on 2 March 2014 marked the commencement of a 2½ month period in which they not only contacted each other, but in which they met personally on no less than 27 occasions. Contrary to McNamara's assertions before the jury, I am satisfied that none of that contact, and none of those meetings, were associated in any way with McNamara conducting research with a view to publishing a book on the subject of Asian crime gangs. So much is clear for a number of reasons.
Firstly, there was an almost total absence of any contemporaneous notes of what had been discussed at the meetings between McNamara and the deceased. It is inconceivable that if McNamara was meeting with the deceased for the purpose of undertaking research for a proposed book, he would not have made some proper notes of what he was being told.
Secondly, and in circumstances where McNamara had available to him (as the result of his work as a private investigator) a number of modes of recording conversations, there was not a single electronic record of anything which had been discussed with the deceased, much less any form of draft manuscript for a proposed book.
Thirdly, McNamara's evidence before the jury was that he had approached a Ms Schultz from New Holland Publishing in the early part of 2014 about the proposed publication. That evidence was completely at odds with a recorded conversation that he had with his former wife on 16 May 2015, in the course of which he said that he had not spoken with Ms Schultz for "a couple of years". When confronted in cross-examination with that inconsistency, McNamara said that he had lied to his wife about his contact with Ms Schultz in order to protect his family "from having any knowledge of (his) dealings with Fiona Schultz in relation to the Triad books". However, in circumstances where he admitted that he had no intention of adopting a pseudonym for the purposes of the publication of the book, McNamara's family would inevitably have come to know about the book when it was ultimately released. The explanation for what he said to his former wife was nothing more than an answer of convenience, to try and explain what was clearly an untruth told to the jury.
Fourthly, and quite apart from these factors, the terms of some of the text messages which passed between McNamara and the deceased were completely at odds with the proposition that the discussions which were taking place between them were in the nature of research for a book. For example, on 8 March 2014, in the course of arranging a meeting, the deceased told McNamara that he did not have "good news". On 17 March 2014 McNamara sent the deceased a message consisting of no more than "??". When the deceased replied by telling McNamara that things were "still not ok", McNamara responded by urging the deceased to "be calm". Other messages which later passed between them were clearly in coded terms. McNamara came to refer to the deceased from time to time as "mum". The deceased referred to McNamara from time to time as "son". There were also clearly coded references to things such as "cleaning the house" and "spending some quality family time" in each other's company, in circumstances where McNamara and the deceased were obviously not related to each other.
The pattern of messages which passed between the deceased and McNamara also demonstrated that it was often McNamara who was responsible for initiating contact with the deceased, rather than the other way around. On numerous occasions, McNamara sent the deceased messages requesting, or suggesting, a meeting. On other occasions, he sent messages to the deceased such as "??" or asking "what's happening". The nature and extent of those requests and enquiries are wholly inconsistent with undertaking research for a book. They are however, completely consistent with McNamara wanting to be updated about arrangements for the supply of a large quantity of illicit drugs.
McNamara's assertion that he was meeting with the deceased for the purposes of researching a book was nothing more than an elaborate lie, in which he deliberately engaged in an attempt to give an air of legitimacy to what was, in reality, a nefarious association with the deceased. The extent of their overall contact, and the number of times they met personally, serve as an example of the degree of planning in which McNamara engaged in the period leading up to the deceased's death.
An issue arose in the sentence proceedings as to what finding(s) should be made as to Rogerson's knowledge of the fact and purpose of the contact and meetings which took place between the deceased and McNamara from early March 2014. The Crown submitted that I would be satisfied that Rogerson knew of such matters. The Crown placed particular significance in this regard upon the evidence of telephone contact between McNamara and Rogerson which had occurred at or about the time of some of the contact between McNamara and the deceased.
Counsel for Rogerson submitted that none of this evidence established Rogerson's knowledge of the fact and purpose of meetings which were taking place between McNamara and the deceased, and that any conclusion to the contrary would involve engaging in impermissible speculation. He submitted, in particular, that it was necessary to assess the evidence in the context of the fact that the offenders had been friends for some time, that Rogerson referred clients to McNamara, and that as a result, they were obviously in regular contact with one another for wholly legitimate purposes.
Exh. CU before the jury was a schedule setting out the time, date and content of the text messages which passed between McNamara and the deceased between 2 March 2014 and 20 May 2014. Exh. DE was a schedule of the time, date and duration of telephone contact (over a far longer period) between a number of relevant persons, including the two offenders. Taken together, that evidence establishes (inter alia) the following:
1. on 2 March 2014, following the deceased's return from Hong Kong, a series of text messages passed between he and McNamara, in the course of which they arranged to meet on 4 March 2014. The last of those text messages was sent at 6.11pm on 2 March 2014. At 6.50pm McNamara telephoned Rogerson and they had a conversation lasting almost 12 minutes;
2. on 8 March 2014 at 3.27pm, and in response to two earlier messages from McNamara attempting to arrange a meeting, the deceased responded by telling McNamara that he did not have "good news". Further text messages passed between them, culminating in McNamara sending a message to the deceased at 4.01pm saying "I'm here". Clearly, the deceased and McNamara met at about 4.00pm on that day. McNamara telephoned Rogerson and left a voice message at 4.44pm, a time consistent with the meeting with the deceased having concluded;
3. on 17 March 2014 at 4.04pm, McNamara sent the deceased a text message stating "??". The deceased responded one minute later, telling McNamara that things were "not ok", prompting McNamara to tell the deceased in a message sent at 5.09pm to "be calm". At 7.31pm that evening Rogerson called McNamara. McNamara called back at 7.42pm and they spoke for more than three minutes;
4. on 18 March 2014 at 5.59pm, McNamara again sent the deceased a text message stating "??". At 6.04pm McNamara called Rogerson and they spoke for 50 seconds. At 6.05pm the deceased replied by again telling McNamara that things were "still not ok". At 6.06pm Rogerson called McNamara, and they spoke for more than 8 minutes;
5. on 3 April 2014 commencing at 12.26pm, a series of text messages passed between McNamara and the deceased which culminated in a meeting being arranged to take place between 3.45pm and 4.00pm that afternoon. Rogerson telephoned McNamara at 1.00pm. At 3.43pm the deceased sent a message to McNamara saying that he was "here". McNamara responded at 3.47pm, saying that he would be "5 min". Photographs taken from CCTV footage taken at the Meridien Hotel show the deceased arriving at 3.50pm, and McNamara at 4.02pm. They are then seen to depart separately, the deceased at 4.30pm and McNamara at 4.32pm. The meeting having finished, McNamara called Rogerson at 4.33pm (i.e., 1 minute after leaving the hotel) and left a message for him. He called him again 2 minutes later at 4.35pm and left another message. He called him again 4 minutes later at 4.39pm, at which time they spoke for more than 5 minutes;
6. on 15 May 2014, only 5 days before the deceased's murder, an exchange of messages took place between McNamara and the deceased arranging a meeting for 3 pm on that day. At 2.22pm, Rogerson called McNamara. They spoke for 14 minutes and 29 seconds, the call concluding at 2.36pm. At 2.37pm, McNamara communicated his arrival to the deceased by sending him a message saying "here". The overwhelming inference is that McNamara and Rogerson spoke for a lengthy period immediately before the meeting between McNamara and the deceased. Following that meeting, Rogerson called McNamara at 7.11pm and again at 10.21pm;
7. on 17 May 2014 a series of text messages passed between the deceased and McNamara arranging a meeting for the following day, 18 May 2014. On that day at 12.30pm, McNamara sent a message to the deceased that he was "parking" and would be 5 min". At 1.21pm McNamara called Rogerson. He called him again at 1.30pm. Rogerson called McNamara at 5.55pm and they spoke for more than 2 minutes; and
8. on 19 May 2014, McNamara called Rogerson at 2.34pm and they spoke for more than 3 minutes. McNamara and the deceased later arranged to meet at the Meridien Hotel at 7.45pm. Photographs taken from CCTV footage confirm that they did so. McNamara left the hotel at 8.22pm and the deceased at 8.23pm.
As with the position at trial, the Crown case for the purpose of finding facts on sentence is a circumstantial one. However, whether it be for the purposes of determining guilt, or for the purposes of making factual findings on sentence, the approach to the assessment of a circumstantial case must, in my view, be the same: any determination must be made having regard to the whole of the evidence, not just isolated parts of it.
The juxtaposition of contact between McNamara and the deceased on the one hand, and between McNamara and Rogerson on the other, is telling in itself. It becomes even more so when it is considered as part of the overall circumstantial case brought by the Crown.
The contact between the offenders, in close proximity to contact between McNamara and the deceased, was not co-incidental. On the whole of the evidence, including the various matters to which I will come, I am satisfied that Rogerson knew of the fact and purpose of McNamara's meetings with the deceased, on and from the early part of March 2014.
[7]
Rent-a-Space storage unit 803
In 2014, Rent-a-Space Storage ("Rent-a-Space") had premises throughout Sydney, including a facility located at Davies Road, Padstow. The business of Rent-a-Space included the leasing of storage space to customers for a monthly fee. In 2014, the Rent-a-Space facility at Padstow was accessible by customers between the hours of 6.00am and 9.00pm, seven days per week.
When a customer wished to lease storage space from Rent-a-Space at Padstow, he or she entered into a written agreement. Upon the execution of such agreement, the customer was given a numerical code which, when correctly entered, would allow access through a security gate at the front of the premises, and into the area in which the storage units were located. Upon entering, the alarm for the particular storage unit would be disabled. The alarm would be reactivated upon the customer's exit from the premises.
Upon leasing a storage unit, a customer was given the option of securing the unit with his or her own padlock, or alternatively purchasing a padlock from Rent-a-Space for that purpose. The padlocks sold by Rent-a-Space each came with three keys.
On 21 February 2014 Michael Maguire ("Maguire"), who was a friend of Rogerson, entered into an agreement with Rent-a-Space to lease storage units 803 and 804 at the Padstow facility. Although there were separate entry doors, there was no internal dividing wall between the two storage units and I will refer to them collectively as "storage unit 803".
Maguire provided two statements to the police for the purposes of their investigation. He had passed away by the time of the commencement of the trial but with the consent of all parties, his statements were admitted into evidence.
In the first of his statements, Maguire explained that he had leased storage unit 803 following the expiration of the lease of premises from which he had previously conducted a business. He explained that he required space in which to store items of furniture which had previously been in use at his business premises. In the second of his two statements, Maguire said that a quantity of his office furniture had been moved into storage unit 803 on 24 February 2014.
Maguire said that approximately two weeks after renting storage unit 803, i.e. in the early part of March 2014, he met Rogerson at the Grandviews Bowling Club where they spoke about the storage of Maguire's furniture. He said he offered Rogerson the opportunity to go to storage unit 803 and look at the furniture in the event that he wanted a chair and printer for his home office. According to Maguire, Rogerson said he was "interested in having a look".
Three days later Maguire, Rogerson and a number of other persons met at the Grandviews Bowling Club. Maguire was in possession of the padlock keys for unit 803 which were inside a small white envelope, on the outside of which was written the security code for the front gate of Rent-a-Space. Maguire handed Rogerson the keys on that occasion. He said he could not recall how many keys were on the key ring but that he assumed that there were "about 6 or 8". He said that a couple of days later he saw Rogerson again, at which time Rogerson returned a number of keys to him, saying that "he didn't take anything as the office chair was unsuitable and he did not want the printer." From that point, Maguire retained possession of the keys which had been returned to him by Rogerson.
Significantly, Maguire told the police that at the time of leasing storage unit 803 he had purchased two padlocks from Rent-a-Space. As I have previously noted, each padlock sold by Rent-a-Space came with three keys. It follows that Maguire originally had a total of six keys. On 26 May 2014 police visited Maguire, at which time he handed over the keys to storage unit 803 which were then in his possession. A total of five keys, not six, were handed over to police.
I am satisfied that at the time of leasing storage unit 803, Maguire purchased two padlocks, for each of which he was given three keys, making a total of six. I am satisfied that he handed those six keys to Rogerson in or about early March 2014 but that Rogerson retained one of them, and handed back only five.
Rogerson had no legitimate reason to retain a key to storage unit 803. It contained Mr Maguire's office furniture, in respect of which Rogerson had told Maguire he had no interest. Rogerson did not tell Maguire that he had retained a key to storage unit 803 because he did not want Maguire to know that this was the case. Importantly, on the evidence of Maguire, all of these events occurred in about early March 2014. That coincided with the approximate time at which McNamara commenced meeting with the deceased. Rogerson's retention of a key to storage unit 803 constituted an important part of the planning in which he and McNamara engaged.
Visits to storage unit 803 by McNamara and Rogerson on 2 and 4 April 2014
At approximately 2.07pm on 2 April 2014, Rogerson's vehicle drove into the front area of Rent-a-Space.
On 4 April 2014 McNamara's vehicle, a blue Ford, was seen to enter the front of the Rent-a-Space premises and drive towards the front gate. He was followed by Rogerson driving his vehicle. Although the CCTV footage does not extend to depicting which offender gained access through the security gate there is a strong inference, from the respective positions of their vehicles when they entered the facility, that it was McNamara who entered first, and that he had the digital access code at the time.
The purchase of vehicle BV67PX
Paul Wheeler ("Wheeler") was the manager of a business known as "Outback Used Cars" which was located at Lethbridge Park. The business sold second hand motor vehicles, principally by advertising them on the internet. In about April 2014, Wheeler advertised a white Falcon station wagon Reg. No. BV67PX ("the white Falcon"). According to Wheeler, a person who was "possibly Aboriginal" and who identified himself as "Marvin", attended his premises on 27 April 2014 and expressed an interest in purchasing the white Falcon.
Wheeler's records state that the white Falcon was sold to a person named "Marvin James Turnbull", whose address was in Mt Druitt. Wheeler maintained that he sighted a copy of a driver's licence in that name, but said he did not take a copy of it. Police investigations revealed no trace of a Marvin James Turnbull. No person by that name lived at the nominated Mt Druitt address.
A receipt for the purported sale of the white Falcon for a sum of $2,000.00 to Marvin James Turnbull which was issued by Wheeler was ultimately found in McNamara's premises. However, it bore Rogerson's fingerprint on the back of it. The evidence before the jury established that the purchase price of $2,000.00 for the white Falcon was provided from monies withdrawn from a bank account operated by McNamara.
According to Wheeler he had, over a period of time, become acquainted through the conduct of his business with a person named Karl Bonnette ("Bonnette"). Bonnette is a friend of Rogerson. On 26 June 2014 Bonnette was spoken to by police about the purchase of the white Falcon from Wheeler. He denied knowing anything about it. Significantly, when the vehicle was seized by the police, a copy of a newspaper known as the "Hawkesbury Gazette" was found in it. Bonnette agreed that this was his local newspaper, but continued to deny having anything to do with the purchase of the white Falcon. In a recorded conversation on 27 June 2014, the day after police had spoken to Bonnette, Rogerson's wife informed Rogerson that Bonnette had made arrangements to see him (Rogerson) in custody on 28 June 2014, i.e. the following day.
The evidence establishes the following relevant telephone contact between 24 April 2014 and 27 April 2014:
24 April 2014
8:57:20 Bonnette called Wheeler
9:10:50 McNamara called Rogerson
10:49:38 Wheeler called Bonnette
11:35:51 Wheeler called Bonnette
11:52:14 Rogerson called McNamara
11:54:16 Bonnette called Rogerson
11:56:22 McNamara called Rogerson
11:56:27 Rogerson called Bonnette
11:56:58 McNamara called Rogerson
14:43:50 Rogerson called McNamara
17:58:54 Bonnette called Wheeler
25 April 2014
12:51:25 Wheeler called Bonnette
13:15:03 Bonnette called Rogerson
13:40:37 Rogerson called Bonnette
13:46:46 Bonnette called Wheeler
27 April 2014
12:39:56 Bonnette called Wheeler
14:41:06 Wheeler called Bonnette
14:41:46 Bonnette called Wheeler
14:59:07 Wheeler called Bonnette
Both Wheeler and Bonnette were taken to this evidence. Wheeler was prepared to concede that it was "possible" that he had spoken to Bonnette about the white Falcon. Bonnette continued to deny having anything to do with the vehicle at all.
As I have noted, Rogerson's fingerprint was found on the receipt for the sale of the white Falcon issued by Wheeler. Rogerson's explanation for the presence of his fingerprint on that document was that whilst travelling in the white Falcon to Kennards Hire on the afternoon of 20 May 2014 (an event to which I will come) it occurred to him, upon hearing a "whine from the diff", that the white Falcon may have been previously used as a taxi. Apparently wishing to satisfy his curiosity, Rogerson said that he opened the centre console of the vehicle looking for evidence of wiring which might have been consistent with such previous use. He asserted that whilst in the course of doing so he came into contact with a number of documents, one of which must have been the receipt.
Wheeler and Bonnette were largely, if not completely, untruthful in their respective accounts of the roles that they played in respect of what I am satisfied was the acquisition of the white Falcon by McNamara and Rogerson. The proposition that an indigenous looking, but otherwise unidentified, man by the name of "Marvin" suddenly appeared at Wheeler's premises enquiring about the purchase of the white Falcon was entirely fanciful. "Marvin James Turnbull" was a complete fiction, and the "receipt" for the sale which Wheeler created was a complete forgery.
Bonnette's repeated denial of having played a role in the acquisition of the white Falcon was equally fanciful. It flew in the face of the evidence of the telephone contact which I have previously set out. Moreover, the presence of Bonnette's local newspaper in the vehicle when it was seized by police was not a coincidence. It is also telling that within a very short time of being spoken to by the police about the white Falcon, Bonnette was due to see Rogerson in custody. The overwhelming inference is that he wanted to see Rogerson to speak with him about the white Falcon.
However what is even more far-fetched is Rogerson's explanation for the presence of his fingerprint on the receipt. Accepting that explanation for the purposes of testing its veracity, it is significant that the deceased was shot and killed only a short time before Rogerson said he handled the receipt. On Rogerson's own admission he had willingly assisted McNamara to drag the deceased's body out of storage unit 803 at Rent-a-Space and place it in the rear of the white Falcon, before helping to unload it in the basement car park of McNamara's premises. He then travelled to Kennards Hire with McNamara for the purposes of hiring a chain block to lift the deceased's body into McNamara's boat. It was during that trip to Kennards that he maintains that his fingerprint was inadvertently placed on the receipt.
When giving evidence before the jury, Rogerson described the period leading up to the trip to Kennards as a "very stressful time". The suggestion that in all of those circumstances, Rogerson became curious as to whether the white Falcon had once been used as a taxi, and that he then set about satisfying his curiosity by looking though the console, in the course of which he just happened to inadvertently touch the receipt, is frankly absurd. Rogerson's fingerprint was on the receipt because along with McNamara, he was instrumental in the acquisition, through Wheeler and Bonnette, of the white Falcon. The fact of such acquisition is supported by what can only be described as a flurry of telephone contact on 24, 25 and 27 April 2014.
The acquisition of the white Falcon represented an important step in the planning in which the offenders engaged. A vehicle which, in effect, was traceable to nobody was an indispensable instrument for two persons who were engaged in carrying out an agreement to kill a person, and steal drugs from him. Significantly, the white Falcon was a station wagon. It was therefore completely suitable for the purpose of conveying the body of a deceased person from one place to another.
[8]
The events of 19 May 2014
In May 2014 McNamara was the owner of a 4.5 metre boat. On or about 9 April 2014 he had entered into an agreement with Hunter Self-Storage ("HSS") to allow him to store the boat at the HSS premises at Caringbah. The monthly storage fee was $200.00. Although the initial agreement applied to the period from 9 April 2014 to 30 April 2014, the evidence was that the agreement was automatically renewed at the end of each month.
Shortly after 10.00am on 19 May 2014, McNamara removed the boat from storage, towing it with his blue Falcon back to his premises at Cronulla. He proceeded directly into the underground car park of the premises, where the boat remained until the morning of 21 May 2014, when it was removed for the purposes of disposing of the deceased's body at sea, before being returned to storage at HSS.
Rogerson attended storage unit 803 at about 3.12pm on 19 May 2014, and left at about 3.30pm. The CCTV footage from Rent-a-Space shows that having entered storage unit 803, Rogerson removed two office chairs and placed them into the rear of his vehicle before driving away. Rogerson told the jury that when he had gone to the storage unit in early April, he had observed some "nice leather" chairs which he thought he could use in his home office. He said that his purpose in attending storage unit 803 on 19 May was (inter alia) "to get a couple of chairs to replace the ones in (his) office". However prior to taking the chairs from the storage unit, Rogerson had taken no measurements, either of the area within his home in which he was proposing to place the chairs, or of the chairs themselves, so as to ensure that they would fit. Moreover, he had previously told Maguire that when he had initially looked at the furniture he did not take anything because (inter alia) "the office chair was unsuitable".
I do not accept Rogerson's explanation for his visit to storage unit 803 on 19 May, particularly in circumstances where on the morning of 22 May 2014 he returned the two chairs that he had taken. I am satisfied in all of the circumstances that Rogerson's attendance at the storage unit on 19 May had nothing to do with obtaining items of furniture for his home office, but everything to do with making more space in storage unit 803 for what was to occur on the following day.
The deceased's vehicle was seen to enter the drive way of Rent-a-Space at about 4.22pm on 19 May, before making a u-turn and leaving. Following an exchange of text messages, McNamara and the deceased met with each other at the Meridian Hotel at about 8.00pm that evening. The meeting lasted for approximately 20 minutes. I am satisfied that it was held for the purposes of confirming the supply of the methylamphetamine.
The events of the morning and early afternoon of 20 May 2014
At about 12.34am on 20 May 2014, following the meeting which had taken place on the previous evening, the deceased sent a message to McNamara in the following terms:
"Hey thanks for the drink today, much appreciated, maybe we can meet up again in our free time and hang out again".
McNamara responded at 6.42am by saying:
"No worries".
At about 11.35am that same morning, CCTV footage captured McNamara in Cronulla Mall, walking towards a public pay phone. That pay phone was used at 11.37am to contact the deceased's phone. I am satisfied that McNamara made that call to the deceased, that he did so for the purposes of confirming the supply of drugs which was to take place later that day, and that he did so from a public pay phone in an effort to ensure that the call could not be traced to him.
One minute later, at 11.38am, the deceased sent a text message to McNamara in the following terms:
"Hey it was great having a drink last night, but I'm not in the mood to study today. I was wondering if you wanted to grab lunch this afternoon."
McNamara replied at 11.53am:
"No. I'm sick. Food poisoning. Can't spend too much time away from the bathroom. I'll call you in a couple of days".
The deceased replied at 11.56am:
"Oh wow that sucks, I guess since I have nothing better to do ill just catch up on my studies and spend some time with the mrs. I hope you get well soon, we can have another drink when I finish my exams".
Those three messages were a complete ruse. McNamara was not ill at all, as evidenced not only by his demeanour on the CCTV footage but also by what occurred later that day. In sending a message to the deceased saying that he was ill, McNamara was engaging in a blatant attempt to create the false impression that he was not intending to meet with the deceased at any time on that day.
At 12.04pm McNamara drove the white Falcon into the basement car park of his premises at Cronulla. At 12.11pm, 18 minutes after telling the deceased that he was too ill to see him and could not leave the bathroom, McNamara drove the white Falcon out of the car park. Amongst the items in his possession at that time was a silver surfboard cover. For reasons to which I will come, that item assumes considerable significance.
At about 1.16pm McNamara and Rogerson arrived together at Rent-a-Space. Having entered the complex, they went to storage unit 803. McNamara opened the lock on the storage unit and both he and Rogerson went inside. McNamara was then seen to come outside and repeatedly move the shutter door to storage unit 803 up and down. Rogerson remained inside when he did so. Clearly, McNamara was ensuring that the shutter door would properly open and close, a clear indication that privacy was required. The offenders remained inside the storage unit for some minutes before coming out. McNamara secured the door of the shutter before leaving. I am satisfied that their visit to the storage unit on that occasion was to ensure that all was in readiness for what was about to follow.
[9]
The events at Arab Road, Padstow on the afternoon of 20 May 2014
It was approximately 1.30pm when the offenders left Rent-a-Space. A short time later, the white Falcon was seen to drive along Davies Road, Padstow towards Arab Road, closely followed by Rogerson's vehicle. What subsequently took place in Arab Road is demonstrative of the level of organisation, planning and co-ordination in which the offenders engaged.
At about 1.33pm McNamara drove the white Falcon along Arab Road before parking (facing Davies Road) outside a business known as Crow Martial Arts. Rogerson's vehicle entered Arab Road about 1 minute later. Before reaching the position at which McNamara had parked the white Falcon, Rogerson made a u-turn and parked his vehicle, facing away from Davies Road, in an available kerb side space outside a business known as Mick's Meats. Having done so, he remained in his car.
At about 1.38pm the deceased's vehicle, a white Nissan, entered Arab Road from Davies Road. McNamara and Rogerson were still in their respective vehicles, in the positions in which they had previously parked them. The deceased's vehicle drove along Arab Road, straight past Rogerson. Within a short time of the deceased's vehicle driving past, Rogerson moved his vehicle from its kerbside parking space, and drove immediately left into the driveway of Mick's Meats where there was a car park. He then manoeuvred his vehicle so that it remained within that car park, facing towards Davies Road, directly towards the position of the white Falcon. The deceased's vehicle then travelled back down Arab Road towards Davies Road, before making a u-turn and parking in the space left vacant by Rogerson just a short time before. Rogerson's vehicle remained in the Mick's Meats car park, facing in the direction of the deceased's vehicle.
Having viewed the CCTV footage of these events, I am satisfied that Rogerson could not have helped but see the deceased's vehicle as it drove immediately past him when he was parked in Arab Road. He gave evidence that the colour, make and model of the deceased's vehicle had been described to him by McNamara. It is clear that having seen the deceased's vehicle, Rogerson deliberately moved his own vehicle into the car park of Mick's Meats, so as to allow the deceased to park in Arab Road.
The deceased got out of his car carrying an item in his hand, and immediately made his way along Arab Road, towards the white Falcon. Rogerson remained in the car park of Mick's Meats, facing in the same direction as that in which the deceased was walking. That position gave Rogerson a direct line of sight to the path followed by the deceased. When the deceased reached the white Falcon he entered the rear passenger side, the door having been left ajar by McNamara to facilitate his entry. The white Falcon, driven by McNamara, then left Arab Road and proceeded to Rent-a-Space.
According to Rogerson, his presence in Arab Road was at McNamara's request, so that he (Rogerson) could act as a "second set of eyes" and "keep a lookout". Rogerson said that McNamara had asked him to "go up there and keep an eye out for suspicious cars … with Chinese on board". Remarkably however, according to Rogerson, no discussion ever took place with McNamara about what he was to actually do if such observations were made. Moreover, and bearing in mind his asserted purpose for his presence in Arab Road, Rogerson did not even wait for the deceased to reach the white Falcon before he drove away. Had Rogerson really been present in that vicinity for the purpose of keeping a lookout, be it for suspicious people or suspicious activities as they pertained to the deceased, he surely would have waited until the deceased had safely reached the security of the white Falcon before leaving.
By the time Rogerson commenced to turn into Arab Road from the Mick's Meats car park and drive away, two other men had exited from the deceased's vehicle and had remained standing next to it. It is clear that once he was satisfied that the deceased was on his way to the white Falcon, Rogerson drove away from Arab Road and made his way to Rent-a-Space. I am satisfied that part of the reason that Rogerson left Arab Road when he did was to ensure, as far as he could, that his presence was not detected by the two other persons who had exited the deceased's vehicle.
McNamara conveyed the deceased in the white Falcon from Arab Road to Rent-a-Space, arriving at about 1.42pm. He entered the access code at the front gate and drove the white Falcon to a position outside the entrance to storage unit 803. He then got out of the driver's side of the white Falcon, deliberately shielded the deceased, and ushered him into the storage unit.
At this time, McNamara was dressed in a grey "hoodie" and long dark tracksuit pants. He was also wearing sunglasses as well as a cap, over which the top part of the hoodie was stretched. McNamara admitted that he was wearing this clothing when he left Cronulla at about 12.11pm. He said that he had dressed in that way in an attempt to conceal his identity, because of a fear of the immediate presence of members of Asian crime gangs.
McNamara's mode of dress when leaving Cronulla at 12.11pm was somewhat different to what it had been a little more than 30 minutes earlier. Between 11.29am and 11.37am, McNamara was seen outside his premises, and then walking openly in Cronulla Mall, wearing sunglasses, shorts (as opposed to long tracksuit pants), a lighter coloured "hoodie" (which was not pulled up over his head) and no cap.
There was no evidence of any event which occurred between the time McNamara was in Cronulla Mall, and the time he left his apartment, which might explain his having developed a sudden fear of the immediate presence of members Asian crime gangs, and which was of such concern that it caused him to change his clothes. His manner of dress at Rent-a-Space at 1.42pm can also be usefully contrasted with his appearance at Kennards Hire a few hours later, at which time he wore a t-shirt, shorts (or perhaps rolled-up long pants), no hoodie, no cap, and no sunglasses.
I am satisfied that McNamara was dressed as he was at Rent-a-Space on the afternoon of 20 May 2014 to conceal his identity. However that was not because he was in fear of anyone. It was because he was engaged in serious criminal activity and was taking steps to avoid detection.
The deceased's shooting
McNamara and the deceased entered storage unit 803 at approximately 1.46pm. Rogerson entered 3 minutes and 19 seconds later. I am satisfied that the deceased was shot and killed, whilst in storage unit 803, at some time between about 1.46pm and about 2.18pm. Two particular factual issues as to what occurred in that period arise on the evidence.
The first is whether I can be satisfied, beyond reasonable doubt, which of the offenders shot the deceased. The Crown submitted that although there was some evidence which might point to Rogerson being responsible, the evidence was not sufficient to establish, beyond reasonable doubt, that this was the case. The Crown further submitted that even if such a finding could be reached, it would have little or no effect on my assessment of the respective liability of each offender, bearing in mind that on the Crown case as accepted by the jury, the deceased's killing was pursuant to a joint criminal enterprise.
Counsel for McNamara submitted that the expert evidence adduced at trial established a "firearm association" with Rogerson, and that this sustained an inference that it was Rogerson who had shot the deceased, within the confines of storage unit 803, with a .25 calibre hand gun.
Counsel for Rogerson essentially took the same position as that of the Crown, and submitted that the evidence was not sufficient to establish that Rogerson fired the fatal shots. He submitted, in particular, that although gunshot residue had been found on some of the items of clothing that Rogerson was wearing on 20 May, the expert evidence made it clear that there were a number of competing explanations for the presence of that residue, all of which were of equal weight.
Rogerson was seen at storage unit 803 on 20 May 2014 on two separate occasions. On each occasion he was wearing (inter alia) a multi coloured cap and a pair of black tracksuit pants. Evidence was given in the trial by Dr Stephanie Hales, a Forensic Chemist, that:
1. one particle characteristic of gunshot residue containing lead, antimony and barium, and two indicative particles containing lead and antimony, were detected on the hat; and
2. one particle characteristic of gunshot residue containing lead, antimony and barium was detected on the pants, along with two indicative particles containing lead and antimony on the pockets.
CCTV footage taken on the following day, 21 May 2014, showed Rogerson wearing a coloured polo shirt. That shirt was also tested for gunshot residue. Dr Hales reported that two particles characteristic of gunshot residue containing lead, antimony and barium, and one indicative particle containing lead and antimony, were detected on it.
Ultimately, Dr Hales concluded that the presence of these various particles on Rogerson's clothing supported "the proposition of a firearm association". She explained that the particles could have been deposited and retained, and could thus be accounted for, by one or all of the following:
1. Rogerson having fired a gun; and/or
2. Rogerson being in close proximity to a gun at the time that it was fired; and/or
3. Rogerson having come into contact with an object or surface that was contaminated with gunshot residue.
Importantly, in the course of giving evidence, Dr Hales expressly conceded that she was not in a position to say which of those three scenarios had resulted in particles being deposited. She also said that no one scenario was more likely than the other.
A further area of evidence which bears upon this issue is that of McNamara's daughter, Jessica. I have considered this evidence in more detail when addressing McNamara's assertion of duress. Ms McNamara gave evidence that on the afternoon of 20 May 2014, within the apartment at Cronulla in which she lived with her father and sister, she observed a "lump" in the pocket of Rogerson's pants which he was "tapping" at a time when referring to McNamara's "lovely girls". For reasons to which I will come, I found that aspect of Ms McNamara's evidence in the trial to be unreliable, as I did McNamara's evidence as to the same issue.
Items of McNamara's clothing which were tested did not reveal the presence of any gunshot residue. However, the weight of that evidence must be assessed having regard to the fact that the clothing that McNamara was seen wearing on 20 May 2014 was not recovered, and was seemingly disposed of.
It is also relevant that in the period leading up to the deceased's death, McNamara had undertaken searches on the internet of (inter alia) the terms "Baby Browning 0.25", "Baby Browning 0.25 single action" and "Baby Browning 0.25 technical". Expert evidence was given before the jury that a 0.25 calibre FN Baby Browning self-loading pistol was capable of having fired the two bullets which killed the deceased. However the evidence was that a great many other firearms had a similar capability. McNamara's explanation was that he was engaged in an investigation concerning guns, which rendered it necessary for him to undertake those searches.
The respective accounts of each offender about what occurred in storage unit 803 were diametrically opposed. Given all that had occurred up to that point, and given what followed, I am satisfied that neither account was truthful. The deceased was executed in cold blood, just as the offenders had planned. Clearly, one of them shot the deceased. There is an obvious suspicion, arising from the evidence of the presence of gunshot residue on his clothing, that it was Rogerson who did so. However in light of Dr Hales' evidence, I cannot be satisfied beyond reasonable doubt that this was the case. Whilst I am satisfied that the deceased was shot by one of the offenders whilst in storage unit 803, I am unable to determine which offender was responsible.
The second issue which arises from the circumstances in which the deceased was killed concerns the time at which the joint criminal enterprise which the jury found was established, was formed.
Counsel for McNamara submitted that it would be consistent with the verdicts of the jury to conclude that any agreement between the two offenders to kill the deceased "only crystallised in response to the unanticipated violent circumstances that occurred inside storage unit 803". Counsel submitted that I could not be satisfied beyond reasonable doubt that the offenders planned, from a point in time well before 20 May 2014, that in order to gain possession of the methylamphetamine, they would have to murder the deceased and dispose of his body, so as to ensure that he was never found. Counsel submitted that there was never any plan between the offenders to murder the deceased. Rather, it was submitted, the plan was to "rip" the drugs from the deceased, and that the deceased's killing "occurred as the result of an altercation between Rogerson and the deceased over possession of the methylamphetamine".
Counsel for Rogerson submitted that it would be consistent with the verdicts of the jury to conclude that Rogerson became a party to a joint criminal enterprise with McNamara for the supply of the drug at a point in time much closer to 20 May 2014, and that before that time "McNamara and the deceased were engaged in a separate joint criminal enterprise for the supply of the drug which commenced between them in about January or February 2014". Counsel for Rogerson submitted that the proposition advanced on behalf of McNamara that the joint criminal enterprise could have been formed as a result of the events in storage unit 803 had "some merit", although he made it clear that Rogerson did not accept McNamara's account of events as to what had occurred. Counsel submitted that there was "scope" for a finding that McNamara "solely formed an intention to cause grievous bodily harm to, or to kill the deceased, separate from Rogerson and prior to the formation of any joint criminal enterprise with Rogerson to kill the deceased".
In determining this issue, it is necessary to reiterate that it was the Crown's case from start to finish that the joint criminal enterprise in which the offenders engaged had, as its object, the killing of the deceased and the stealing of a quantity of drugs for profit. Evidently, that case was accepted by the jury. Moreover, for the reasons I have already expressed, I am satisfied that Rogerson was well aware of the fact of, and the reasons for, the meetings between McNamara and the deceased as early as about March 2014. This was not, on any view of it, a case where there were separate criminal enterprises which somehow "merged", as was submitted by counsel for Rogerson.
The proposition that it is open to me to find that any joint criminal enterprise to kill the deceased was formed in storage unit 803, and only a short time before the deceased was killed, has two particular difficulties. Firstly, the acceptance of such a proposition depends, to a greater or lesser extent, upon accepting parts of one or other of the accounts given by each offender. Having observed each offender giving evidence over a lengthy period of time, I formed the view that the evidence of each of them was unreliable in a number of respects, some of which I have already identified. Each of them had a propensity, particularly when being cross-examined, to answer questions in a way which was wholly or partly non-responsive, and in terms which appeared to be deliberately formulated to suit their own purposes.
Secondly, the proposition that the joint criminal enterprise to kill the deceased was formed only minutes before the fatal shots were fired is completely at odds with everything that had occurred up until that time, as well as everything that occurred subsequently. Whilst the evidence does not enable me to be precise as to the time of the formation of the joint criminal enterprise, I am satisfied that it was well before 20 May 2014, encompassing as it did the various preparatory steps to which I have referred, commencing with McNamara's meetings with the deceased in March 2014. For reasons to which I will come, the events which took place after the deceased's murder only serve to confirm that the joint criminal enterprise was formed well in advance of 20 May.
The transfer of the deceased's body to Cronulla
I have previously observed that when he left his premises at Cronulla in the white Falcon at 12.11pm on 20 May, McNamara was in possession of a silver surfboard cover. CCTV footage taken from Rent-a-Space shows McNamara retrieving that item from the white Falcon and taking it into storage unit 803 at approximately 2.09pm on 20 May. I am satisfied that following his death, the deceased's body was placed in that surfboard cover inside storage unit 803 before being dragged out by the two offenders at about 2.18pm and placed in the rear of the white Falcon.
McNamara told the jury that he had come into possession of the white Falcon on about 14 May 2014. That was untrue. Evidence before the jury showed the vehicle parked in Prince Street, Cronulla as early as 5 May 2014. Prince Street is between 200 and 300 metres from McNamara's premises. I am satisfied that the white Falcon was in McNamara's possession long before 14 May 2014.
McNamara also asserted that Rogerson had told him that he did not want to leave the white Falcon in Padstow. McNamara said that Rogerson had asked him if he could leave the vehicle at Cronulla. McNamara also said that he had asked Rogerson if he could use the white Falcon for the purposes of taking rubbish to the tip, and that Rogerson had agreed that he could do so.
Initially, it was McNamara's clear and unequivocal evidence that he had used the white Falcon to take items to the tip in the period leading up to 20 May 2014. He told the jury that he had done so because he did not wish to run the risk of damaging his blue Ford. He stated that there were various streets in and around Cronulla which were not subject to timed parking, and in which he had left the white Falcon when it was not otherwise being used. He nominated Prince Street (where the vehicle was photographed on 5 May) as one such area. In telling the jury that he had used the white Falcon to go to the tip, McNamara was quite specific, going so far as to explain to the jury the steps he took to park the vehicle when he returned.
It is apparent that when this evidence was given by McNamara in chief, the Crown undertook enquiries to ascertain whether the white Falcon had ever entered any rubbish tip located in the general vicinity of McNamara's home. Police obtained evidence which established that it had not. That evidence subsequently became part of the Crown case in reply. Importantly however, it would appear that McNamara became aware of the existence of that evidence at a time when he himself was still giving evidence. Subsequently, his position as to this issue changed markedly. He said that his previous evidence was a "mistake", and that he had not in fact used the white Falcon to take rubbish to the tip at all.
I am satisfied that McNamara's evidence that he had come into possession of the white Falcon for the purposes of taking rubbish to the tip, along with his evidence that he had in fact used the vehicle for that purpose, were deliberate untruths, told in an attempt to give an innocent explanation to the fact of his possession of that vehicle. The clear terms in which he had initially given his evidence were completely at odds with the proposition that he had somehow made a mistake.
According to McNamara, when he left his premises on 20 May 2014 in the white Falcon he was intending at some stage to go to the tip to dispose of rubbish. The rubbish consisted of two boxes and the silver surfboard cover, all of which, according to McNamara, was apparently able to be placed in the front passenger area of the vehicle. It follows that a station wagon was simply not necessary to carry out McNamara's stated intention of going to the tip on 20 May.
I am satisfied that this part of McNamara's account was also untrue. He did not, at any stage, intend to go to a tip on 20 May 2014. Specifically, he did not intend to dispose of the silver surfboard cover at a tip. If disposing of the surfboard cover was his true intention, that could easily have been undertaken by tearing it up and disposing of it at his home. I am satisfied that McNamara took the surfboard cover to Rent-a-Space on 20 May for the specific purpose of having something readily available, into which the deceased's body could be placed after he had been killed. The fact that he chose the white Falcon, a station wagon, to drive to Rent-a-Space that day was also no coincidence. It was planned.
Once the deceased's body had been removed from storage unit 803 and placed in the rear of the white Falcon, McNamara left Rent-a-Space at approximately 2.24pm. Rogerson left at about the same time, driving his own vehicle. The white Falcon arrived at McNamara's premises at about 3.03pm with the deceased's body in the back. On arrival, McNamara drove directly into the underground car park.
The choice of the underground car park as the location in which to place McNamara's boat, and later unload the body of the deceased from the white Falcon, was also an important part of the planning in which the offenders had engaged. The car park provided a covert location, at which there were no CCTV cameras, and where the deceased's body could be dealt with, as it were, in private. At 3.12pm, McNamara was photographed in the lift of the premises, in possession of a length (or lengths) of rope. At some point, a blue tarpaulin and ropes were used to wrap the deceased's body, which had remained in the surfboard cover. I am satisfied that both offenders participated in that process in the car park. At least some of the rope used to wrap the deceased's body came from Rogerson's vehicle.
As I have previously observed, McNamara had removed his boat from storage and placed it in the car park on the previous day. Whilst it is not clear precisely when, I am satisfied that at some time on the afternoon of 20 May after they had arrived back at Cronulla, the offenders came to realise that they would not be able to physically lift the deceased's body into the boat without some assistance. Accordingly, they went to Kennards Hire at Taren Point and hired a chain block for that purpose. The hiring fee was paid for by McNamara. At some point between the time that they returned from Kennards and the time at which they left Cronulla the following morning, they winched the deceased's body into McNamara's boat with the aid of the chain block.
The disposal of the deceased's body on 21 May 2014
At 7.28am on 21 May 2014, McNamara was seen driving his blue Ford out of the underground car park of his premises, towing his boat. The blue tarpaulin which had been wrapped around the body of the deceased was clearly visible in the boat as it left the car park. McNamara parked the blue Ford and the boat outside the front of his premises and went back inside for a short time.
McNamara and Rogerson were then seen in the lift of the premises at 7.32am. At that time McNamara was in possession of two fishing rods. The possession of those items was yet another act of subterfuge. McNamara and Rogerson were not about to go fishing. They were about to attend to the disposal of the deceased's body.
McNamara towed the boat to a ramp at Gray's Point, followed by Rogerson. The boat was placed into the water and I am satisfied that the deceased's body was thrown overboard at some time on the morning of 21 May 2014.
There is no question that McNamara was on the boat at that time. He said that Rogerson was present with him. Rogerson admitted that he followed McNamara to the boat ramp, but said that he watched McNamara drive the boat away and waited for him to return. He denied being present on the boat at any time. According to Rogerson, he was waiting for McNamara to return so that he could speak with him about cleaning up storage unit 803. He also said that being present at the boat ramp and waiting for McNamara gave him an opportunity to think about "the dreadful things" that had occurred in the preceding 24 hours.
There are a number of difficulties with this aspect of Rogerson's account. Firstly, unless he intended to be part of the act of disposing of the deceased's body, there was simply no reason for him to travel from his home in Padstow Heights, to McNamara's premises at Cronulla, and then from McNamara's premises to the boat ramp at Gray's Point. He had had overnight to reflect upon "the dreadful things" that had occurred. He had also had ample opportunity to speak with McNamara about cleaning storage unit 803. He did not have to travel to the boat ramp, and wait for McNamara to return, for the purposes of having either of those discussions.
It is also most unlikely that one person would have been physically capable of lifting the deceased's body up from the floor of the boat, disposing of it over the side, and tending to the boat at the same time. Disposing of the deceased's body was, in my view, a two person job.
I am satisfied that having killed the deceased and secured the drugs, both offenders disposed of his body at sea with the clear intention that it would never be recovered, and their offending never detected. I am satisfied that Rogerson was in McNamara's boat, and that he assisted in the disposal of the deceased's body.
Following that disposal, McNamara returned his boat to storage at HSS at about 11.03 am on 21 May 2014.
After McNamara had returned the boat to HSS he and Rogerson drove to Rent-a-Space, arriving at about 12.32pm. They left at about 1.10pm. It is evident that during that period storage unit 803 was cleaned, obviously to ensure that no trace of what had happened on the previous day was left.
[10]
The movements of McNamara's boat
It is appropriate at this point to address the evidence of the movements of McNamara's boat between 19 and 21 May 2014. Shortly put, the boat was removed from storage at HSS on 19 May 2014 and taken to Cronulla. On the afternoon of 20 May, the deceased's body was placed in the boat whilst it was in the underground car park of McNamara's premises. On the morning of 21 May the boat was used to dispose of the deceased's body. A short time later it was returned to HSS.
McNamara advanced a number of reasons for removing the boat from storage on 19 May 2014. Firstly, he said he wanted to take his daughter, Jessica, fishing before she left on an overseas holiday. His daughter gave evidence that she would regularly go fishing with her father and that she had done so on two or three occasions in 2014. She said that in 2014 she had booked to go on a holiday to Europe with a girlfriend. Although her evidence was a little confusing in this respect, it seems that she was due to leave Australia on Sunday 1 June 2014, and that she had planned to go fishing with her father on Saturday 31 May 2014.
Secondly, McNamara said that whenever the boat was in storage, he was not able to "potter around" with it. He cited, in particular, the inability to charge the battery of the boat when it was in storage, and the necessity to carry out that task by way of a "trickle charger" elsewhere. According to McNamara, trickle chargers were not offered by HSS to its customers.
Thirdly, he said that one of the tyres on the trailer was "a bit iffy" and he liked to check the tyre pressure.
Fourthly, he said he had noticed that the boat had an oil leak.
Finally, he said that he wished to measure the available space in the underground car park of his premises to determine if the boat could be stored there, rather than at HSS. He said that if this could be done, it would save him the cost of the monthly storage fee.
It was the submission of the Crown that the circumstances surrounding the removal, use and return of McNamara's boat between 19 and 21 May 2014 represented an important part of the planning associated with the joint criminal enterprise. Counsel for McNamara submitted that the movements of the boat had nothing to do with any such thing. He submitted that the boat became the vehicle for the disposal of the deceased's body purely because it was "fortuitously and coincidentally" available to be used for that purpose.
In assessing these competing submissions, and the evidence, it is necessary to make a number of observations.
Firstly, at the time that the boat was removed from storage, the proposed fishing trip by McNamara and his daughter was not due to take place for some 12 days. For that intended purpose at least, there was no need to remove the boat from storage so far in advance.
Secondly, it was also unnecessary for the boat to be removed from storage so far in advance for the purposes of determining whether or not it could fit in the available space within the underground car park of McNamara's premises. That exercise could have been undertaken just as easily at the time of the proposed fishing trip, 12 days later.
Thirdly, as far as the suggested oil leak is concerned, the boat was serviced by Neptune Marine on 7 April 2014, approximately 6 weeks before its removal from HSS on 19 May. Mr Ames from Neptune Marine gave evidence before the jury that he could not recall the presence of any oil leak at that time, nor could he recall any oil leak being drawn to his attention. He also confirmed that if an oil leak had been repaired, there would have been a reference to it on the invoice. The invoice for the service contained no such reference.
Fourthly, there was evidence that in close proximity to the position at which McNamara's boat had been stored at HSS there were double power points with extension leads. There was also evidence that HSS made chargers available to its customers for no fee. McNamara maintained that the availability of power points at HSS had "never entered his head" and that he was not aware of them. I do not accept his evidence in that regard. Moreover, the removal of a large boat from storage for the purposes of taking it to a charging device was a somewhat cumbersome way of going about things. There was nothing preventing a charger from being brought to the boat.
Fifthly, the evidence before the jury was that when it was taken into the underground car park of McNamara's premises of 19 May, the boat was placed in one of two available spaces. It follows that it must have been immediately evident to McNamara, upon his arrival at the car park on that day, that the available space was big enough to accommodate the boat. In circumstances where the boat was obviously able to fit in the space in the car park, it is impossible to reconcile McNamara's stated desire to save money in storage fees with the fact of his return of the boat to storage on 21 May. Moreover, when he returned the boat to storage, McNamara had still not taken his daughter fishing, which was one of his stated reasons for removing the boat from storage in the first place.
McNamara's removal of the boat from storage on 19 May 2014, the subsequent placing of the deceased's body in the boat on 20 May, the use of the boat on 21 May to dispose of the deceased's body, and the immediate return of the boat to storage after that disposal, were not matters of coincidence. This was not a case in which the boat was fortuitously available for the purposes for which it was ultimately used. Its removal, use and return formed a significant aspect of the planning associated with the joint criminal enterprise.
I am satisfied that it was removed specifically for the purpose for which it was ultimately used, namely to dispose of the deceased's body once he had been murdered.
[11]
The events of 22 May 2014
On the morning of 22 May 2014 McNamara went to K-Mart Sylvania where he purchased pillow cases, a spoon and a jug. He later returned the chain block to Kennards.
At approximately 11.11am on the same day Rogerson returned to Rent-a-Space in his own vehicle. Having pulled up outside storage unit 803, he unloaded the two office chairs that he had removed on 19 May and put them back in the storage unit. That, in my view, simply confirms that the two chairs had been removed on 19 May, not for Rogerson to use them at home, but to allow more room to allow for what had been planned to take place.
There is no doubt that at some point on 20 May 2014, 2.7 kilograms of methylamphetamine was secreted in the white Falcon. There is also no doubt that between that time, and the seizure of the white Falcon by police on 24 May 2014, McNamara physically handled those drugs. Although there is no evidence that Rogerson did so, I am satisfied that he was clearly aware of the fact of the presence of the drugs in the white Falcon, and was aware of McNamara's dealing with them.
There is some evidence pointing to McNamara having physically removed the drugs from the white Falcon and taken them into his premises at one point. However I cannot be satisfied beyond reasonable doubt that he did so. In any event, for the purposes of sentence, I do not regard that as a particularly material factor. Of more importance is the fact that McNamara handled the drugs and, I am satisfied, used the pillow cases that he had purchased at K-Mart for the purposes of repackaging them.
What is also clear is that in the days following the deceased's murder, both offenders were engaged in steps to make arrangements for the white Falcon to be towed from Cronulla to another location. Those attempts were made through a Mr Adam Borg ("Borg") who operated a towing business. Borg was a friend of Rogerson who gave evidence at the trial. Having observed him give evidence, I formed the view that in respect of at least some of the answers he gave, Borg was not being truthful, and was doing his best to protect Rogerson's interests.
The respective accounts of the offenders as to the nature, purpose and content of their contact with Borg at or about this time were again at odds with each other. However, a number of things are clear. Firstly, on 22 May 2014, Rogerson called Borg. Secondly, on 23 May 2014 three calls were made to Borg from a payphone in Cronulla which I am satisfied were made by McNamara. Thirdly, Borg called each of McNamara and Rogerson on the morning of 24 May 2014.
I am satisfied that all of those calls were related to arrangements, or attempted arrangements, to engage Borg to tow the white Falcon from Cronulla. However as events transpired, the police seized the white Falcon from the underground car park of McNamara's premises in the early hours of 24 May 2014. The methylamphetamine remained in the vehicle at that time.
It is evident that at some time later in the morning of 24 May, McNamara became aware that the white Falcon had been taken from the car park. He telephoned the building superintendent, Mr Edenton, and told him that he had "lost" his car. Rogerson was due to fly to Queensland on that day. McNamara went to the airport to speak with him late on the morning of 24 May 2014 before he left. I am satisfied that McNamara did so for the purposes of speaking to Rogerson about the white Falcon and to tell him that it had been taken from the car park. The two offenders had spoken to each other by telephone that morning. McNamara's attendance at the airport was clearly designed to allow he and Rogerson to speak without fear of the fact, or the contents, of any conversation being revealed.
What is also significant is that at 2.53pm on 24 May 2014, and again at 3.12pm on that day, a payphone in Caringbah was used to call Bonnette. I am satisfied that those calls were made by McNamara. By that time, he was obviously aware of the fact that the white Falcon had been seized. His purpose in ringing Bonnette was to alert him of that fact, given the role which had been played by Bonnette in the acquisition of the white Falcon.
McNamara was arrested by police on 25 May 2014. Rogerson returned to New South Wales from Queensland on 27 May 2014, at which time he was also arrested.
The deceased's body was found floating in the ocean off Shelly Beach, Cronulla on 26 May 2014. The blue tarpaulin was still wrapped around him and the silver surfboard cover was visible.
A post mortem examination of the deceased's body was carried out by Dr Kendall Bailey on 27 May 2014. That examination revealed two projectiles within the deceased's torso. Subsequent examination revealed two linear wound tracks or in other words, linear wounds which had penetrated through the body indicating the path of the projectiles.
[12]
THE OBJECTIVE SERIOUSNESS OF THE OFFENDING
In the circumstances that I have outlined, and in light of the findings that I have made, the joint criminal enterprise to which each offender was a party was extensive in its planning, brutal in its execution, and callous in its aftermath.
The number of meetings which took place between McNamara and the deceased, of which Rogerson was clearly aware, were designed to engender trust, in circumstances where the deceased had not even the slightest inkling of what was to happen to him. Obtaining a means of access to storage unit 803, acquiring a vehicle which was traceable to no-one and which was capable of carrying the body of a deceased person, co-ordinating activities, having available a receptacle into which to place the deceased's body when killed, and then having a boat available to dispose of the deceased's body at sea, were some, but not all, of the steps taken by the offenders in the course of the execution of the joint criminal enterprise. At all times, the offenders acted truly in company, a fact which was never more evident than on 20 May, both at Rent-a-Space and at Arab Road. The use of a weapon, the fact that the offences were committed in company, the fact that it was planned and the fact that it was committed for financial gain are all aggravating factors pursuant to s. 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act").
Even in circumstances where there is no direct evidence of what actually occurred in storage unit 803, it is clear that the offenders acted with complete disregard for the life of another human being. It is noteworthy that in the course of giving evidence before the jury, and in answer to a question in cross-examination, Rogerson said:
"I had no respect for the deceased as a person. … I had no respect for this person as a decent person. As far as I knew he was a drug dealer".
On Rogerson's evidence, he apparently had no respect for the deceased because the deceased was a drug dealer. However Rogerson has now been found guilty by a jury of murdering the deceased. That murder was carried out in order that Rogerson and McNamara could obtain possession of 2.78 kg of methylamphetamine. Despite Rogerson's stated disdain for drug dealers, he and McNamara murdered the deceased to become drug dealers themselves. Given those circumstances, and as the Crown submitted, Rogerson's stated lack of respect for the deceased because the deceased was a drug dealer is reflective of a position which is dripping with hypocrisy.
The disposal of the deceased's body at sea was both cruel and insensitive. It was done solely for the purpose of the offenders endeavouring to ensure that the deceased would never be found, rendering it all the more difficult for any responsibility to ever be attributed to either of them. It is also significant that the killing of the deceased was carried out so as to allow the offenders to profit by engaging in other serious criminal activity, namely the supply of a substantial quantity of a prohibited drug.
It follows from all of those factors that the offending surrounding the deceased's murder was of an exceptionally high degree of seriousness. Whether it falls into a worst case category, so as to warrant the imposition of a life sentence, is an issue to which I will come.
Whilst the focus of the submissions of all parties was necessarily upon the murder count, one cannot lose sight of the fact that the offence of supplying a prohibited drug of which the offenders were also found guilty was also an offence of the utmost seriousness. Methylamphetamine, in particular, is a blight on the community. Given the verdicts of the jury, the offenders killed the deceased to "rip off" 2.78 kilograms of that drug. Evidence tendered by the Crown on sentence (without objection) established that the potential wholesale value of the drug in this case was between $540,000.00 and $702,000.00. In terms of its sale in the form of "street deals", its potential value was between $9 million and $19 million.
There is no evidence which establishes how, or in what form, the offenders were going to supply the drug to others. However the value of the drug, be it a wholesale value or otherwise, was substantial. The only available conclusion is that in acting as they did, the offenders were overwhelmed by greed. They intended that their greed be satisfied by engaging in the commission of a serious offence, over and above murdering the deceased.
Viewed in this way, this was not just a case where the offending as a whole was motivated by the prospect of financial gain. It was a case in which that financial gain was to be realised by the participation in further serious criminal activity.
In my view, on the whole of the evidence, there is nothing at all to materially distinguish the respective roles played by each offender.
[13]
McNamara
In dealing with McNamara's case, the first issue which should be addressed is his reliance upon duress as a mitigating factor.
In his evidence before the jury, McNamara asserted that having shot the deceased dead, Rogerson immediately threatened to shoot him, and then threatened the safety of his daughters. It was McNamara's case that each and every act that he committed immediately following the death of the deceased, up until his arrest on 25 May 2014, was done under duress because he was in fear of Rogerson. Directions were given to the jury as to the necessity for the Crown to negative, beyond reasonable doubt, the proposition that McNamara was acting under duress. It is clear from the verdicts that the jury were satisfied that the Crown discharged its onus in that respect.
Section 21A(3)(d) of the Sentencing Act provides that it is a mitigating factor if an offender was acting under duress at the time of the offending. The onus of establishing duress for the purposes of mitigation is on the offender. However in the course of the hearing of submissions on sentence, a preliminary issue was raised as to whether, in light of the jury's verdicts, it remained open to McNamara to rely upon duress in that way.
The Crown submitted that because the jury had found McNamara guilty, there was "nothing left" in terms of duress upon which McNamara could rely. Counsel for Rogerson took a similar position. He submitted that the verdicts of the jury amounted to a rejection of "the duress defence as a reasonable possibility". He further submitted that even if it were open to McNamara to seek to rely on duress as a mitigating factor on sentence, I would not be satisfied on the evidence that any threats were made by Rogerson.
Counsel for McNamara submitted that notwithstanding the jury's verdicts it remained open to McNamara to rely upon duress as a mitigating factor for the purposes of sentence. He argued that any submission to the contrary misunderstood the difference between fact finding by a jury, and fact finding by a judge for the purposes of sentence. Counsel for McNamara made particular reference to the directions which had been given to the jury in respect of the issue of duress. He submitted that in light of the issues which the jury were required to consider, there were a number of possible conclusions which might have been reached, not all of which involved a complete rejection of the allegation that threats had been made.
The jury obviously rejected McNamara's attempted reliance on duress. However, the basis upon which they did so is not known. In that regard, there are a number of possibilities. Firstly, it may be that the jury concluded that no threats were made to McNamara at all. Secondly, it is possible that a conclusion was reached that threats were made, but that McNamara was not driven to act as he did because of a genuine belief that if he did not so act, he or a member of his family would be killed or injured. Thirdly, it is possible that the jury concluded that threats were made which engendered such genuine belief in McNamara, but that such threats would not have driven a reasonable person to act as McNamara did. Fourthly, it is possible that the jury concluded that McNamara was threatened, that he had genuine belief of the kind to which I have referred, that such belief was of a kind to drive a reasonable person to act as he did, but that he could have avoided the effects of any duress by escaping from the threats without damage to himself or members of his family. It follows that the jury's rejection of McNamara's reliance on duress does not necessarily mean that a conclusion was reached that no threats were made to him at all.
In these circumstances I do not accept the proposition that McNamara is now precluded from seeking to rely upon duress as a mitigating factor for the purposes of sentence. The relevance of non-exculpatory duress in mitigation of sentence may arise after trial and conviction, where duress has been a trial issue. The fact that the defence of duress has been rejected by the jury does not mean that threats or other conduct falling short of the defence cannot be taken into account on sentence: Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [37] per Johnson J (Tobias JA and Hall J agreeing) citing R v Olbach (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [69]-[70] per Spigelman CJ (Sully and R S Hulme JJ agreeing).
Whether McNamara has established, on the balance of probabilities, the fact of threats so as to be able to rely upon duress as a mitigating factor depends upon an assessment of the evidence. It is that issue to which I now turn.
McNamara's evidence before the jury was that whilst he and Rogerson were in storage unit 803 on 20 May 2014, immediately following the deceased being shot dead, Rogerson pointed the gun directly at him (McNamara), threatened him with death if he did not assist, and threatened the safety of his daughters. According to McNamara, Rogerson made reference to taking the deceased to McNamara's premises to see "(McNamara's) lovely girls". McNamara said that these words were said repeatedly by Rogerson in a menacing and aggressive tone, and that they led him to believe that Rogerson would harm him, and his daughters, if he did not do as Rogerson directed. On McNamara's case, there were numerous subsequent references by Rogerson to McNamara's "lovely girls", to the point where McNamara said that he told Rogerson:
"I've got the message, there's no need to involve my kids".
On McNamara's case, there was further threatening behaviour on the part of Rogerson at his (McNamara's) home on the evening of 20 May. His daughter, Jessica, gave evidence of Rogerson making repeated references to McNamara's "lovely lovely daughters", whilst simultaneously tapping the right side of his trousers in which she had observed what she described as a "lump". According to Ms McNamara, this caused her father to become "skittish". She also gave evidence of McNamara exhibiting what might be described as an uneasy demeanour when she was with him at dinner later that evening. McNamara himself also asserted that whilst Rogerson was present in his premises he saw what appeared to be an object in the pocket of Rogerson's pants, the shape of which was consistent with a gun.
Further, according to McNamara, at a time when he and Rogerson were returning to shore on his boat having disposed of the deceased's body, Rogerson fired two shots from a handgun which was in his possession, warning McNamara not to report what had occurred to the police. McNamara also gave evidence of an alleged threat of harm made by Rogerson at the airport on 24 May if Rogerson's instructions as to the disposal of the white Falcon were not followed.
McNamara also relied on evidence given by himself, his daughters, and his mother, that he had reported the threats to members of his family in the period immediately following his arrest.
Finally, there was evidence given in the trial that Paul Kenny, Rogerson's then solicitor, had visited Jessica McNamara following McNamara's arrest and had said to her (inter alia) that it was "not the Triads that (she had) to worry about, it was Roger". In the course of submissions, counsel for McNamara also relied upon this evidence to support McNamara's case on duress.
It was open to McNamara to go to the police immediately after he left Rent-a-Space on 20 May. Rather than pursue that option, he chose to return immediately to his home, with Rogerson following him. On the evidence, that was the very location at which he would have expected his daughters, who were said to be the subject of some of the alleged threats, to be present. There was no suggestion in the evidence that in the course of driving back to Cronulla from Rent-a-Space (a time at which he was not in Rogerson's presence) McNamara telephoned either of his daughters, or anyone else, to tell them what had occurred, or to warn them of any impending danger.
I have repeatedly viewed the CCTV footage from McNamara's premises taken on the afternoon of 20 May 2014 and thereafter, both in the course of the trial and since that time. It must be acknowledged that a person's outward demeanour in such footage is not necessarily a conclusive indicator of his or her frame of mind. However there is nothing in any of that footage, or in any of the photographs which were taken from it, which give any indications consistent with McNamara's claims of duress. Indeed at 6.24pm on the evening of 20 May 2014, at a time when McNamara claims that he was in fear of Rogerson because of the threats that he made to him only a matter of hours earlier, McNamara was seen at his premises getting into a lift with Rogerson in possession of a "six pack" of beer, the obvious inference being that they were proceeding to McNamara's apartment to share a drink.
There is also evidence of a recorded telephone conversation between McNamara and Rogerson on the morning of 24 May, at which time Rogerson was due to travel to Queensland. Again, whilst it is obviously not conclusive, there is nothing discernible from McNamara's voice which is consistent with being under the duress of Rogerson at the time.
It is also significant that after the deceased was killed, five days passed before McNamara was arrested. On McNamara's case, he was not party to any joint criminal enterprise, yet not once within that entire five day period did he approach anyone in authority to report what had occurred, or to specifically report the fact that he was acting under duress in (inter alia) disposing of the deceased's body.
Further, statements made by both McNamara and his daughter Jessica in recorded conversations following his arrest are, in my view, objectively at odds with an assertion of duress. For example, in a conversation recorded on 26 October 2014, Ms McNamara made reference to having spoken with "Anne", and to the fact that such conversation had resolved "so many concerns". The reference to "Anne" was clearly a reference to Anne Melocco, Rogerson's wife. Ms McNamara described herself and Ms Melocco as having a "united front" to "stick together". On the whole of the evidence, that might be viewed as being somewhat inconsistent with Ms McNamara's safety having been threatened by Ms Melocco's husband, in circumstances where she claimed to have seen a "lump" in his pocket.
Moreover, statements made by McNamara himself during the course of conversations whilst he was in custody are also at odds with the proposition that he was under duress as a result of threats from Rogerson during the period following the deceased's killing. In the same conversation with his daughter on 26 October 2014, and in the context of a discussion about a "witness coming forward", McNamara told his daughter that he had "told Roger" who had "nearly done a frigging somersault" at the news. That statement, and the tone in which it was delivered, were not suggestive of a relationship in which one party was in fear of the other.
In a later conversation with his daughter on 25 March 2015, McNamara made reference to the fact that he and "the old boy" were fine, that they were discussing the case "like two innocent people do", and that it was "good" because they "had a laugh". The reference to "the old boy" was clearly a reference to Rogerson. The relationship as described by McNamara which existed between them at that time was, in my view, inconsistent with the proposition that McNamara was ever in fear of him.
There is also evidence that on 22 May 2014, Rogerson, McNamara and a number of their friends gathered together for a drink at the Crown Hotel, Revesby. The CCTV footage taken from those premises depicts all of those present, including McNamara and Rogerson, socialising together. Whilst again I accept that such evidence is not conclusive, there is nothing in terms of McNamara's overt demeanour which would tend to support his claims of duress. Indeed, what is seen on that footage is very much to the contrary, in circumstances where Rogerson was one of those present.
McNamara also gave evidence before the jury that Rogerson had directed him to search the white Falcon, retrieve the drugs and bring them to him at the Crown Hotel, Revesby on that day. There is no doubt that the drugs were in the white Falcon at that time, and that McNamara had handled them. There is also no doubt that McNamara did not do as he said he was directed, and did not bring the drugs to Rogerson at the hotel. It follows that on McNamara's account, at the very time that he was said to be labouring under duress, he acted in complete defiance of the man of whom he maintained he was in fear, and who had threatened his safety, and the safety of his family.
Similarly, according to McNamara, Rogerson had given him directions to arrange for the white Falcon to be towed from Cronulla by Borg. McNamara claimed that in telephoning Borg, he was attempting to cancel a tow which had already been arranged by Rogerson. If that is accepted, it would follow that in the very period in which he claims that he was under duress because of threats made to him by Rogerson, McNamara again openly defied Rogerson's instructions.
Finally, and to the extent that Mr Kenny's evidence was relied upon in respect of this issue, I am satisfied that words to effect of those attributed to him by Ms McNamara were in fact said. However, I am not satisfied that they were said at the behest of Rogerson. Indeed, Mr Kenny's evidence before the jury was that Rogerson was not even aware of the fact that he (Mr Kenny) had visited Ms McNamara.
It is also significant that in the course being cross-examined, Ms McNamara agreed that one of the topics about which she spoke with her father in a conversation with him on 17 November 2014 was indeed Mr Kenny. She agreed that in the course of that conversation she referred to Mr Kenny as "the one that told me how I was gunna die". On no view of the evidence did Mr Kenny ever threaten Ms McNamara with death. Ms McNamara expressly conceded as much when questioned further. Whilst the entirety of the evidence tends against McNamara's claimed duress, this particular evidence provides a good example of Ms McNamara's unreliability, and her tendency to exaggerate.
For all of these reasons, I am not satisfied that duress is a mitigating factor in McNamara's case.
Subjectively, McNamara is presently 57 years of age. He has no previous convictions, which is a mitigating factor under s. 23(3)(e) of the Sentencing Act. He is divorced but maintains an amicable relationship with his former wife.
McNamara joined the NSW Police Force in 1974 and subsequently became a detective. In that capacity he was responsible for the investigation of serious crimes and in 1986 was seconded to (the then) National Crime Authority. From 1987, he worked as a detective in Darlinghurst and Kings Cross, and was involved in extensive undercover police work, in the course of which he exposed a number of police who were acting corruptly. As a consequence of those matters, he is said to have become the target of murder threats. He was diagnosed with post-traumatic stress disorder, and was placed into witness protection.
Although he left the NSW Police in 1990, he claims that he continued to receive psychiatric and psychological treatment for a number of years thereafter as a consequence of matters to which he was exposed whilst a member of the police force. Although there is no medical evidence before the court, it is apparent that McNamara is currently prescribed a number of separate forms of medication, including antidepressants.
Both of McNamara's daughters, Jessica and Lucy, along with his former wife Cheryl, provided written testimonials to the court. Jessica McNamara described her father as "compassionate, empathetic and kind". She made specific reference to the toll on her family generally, and her personally, as a consequence of McNamara's arrest, incarceration and conviction. She expressed a firm belief "that the allegations put forward about (her) father in no way represent actions that are possible in (her) father's nature". Whilst acknowledging the jury's verdicts, Ms McNamara stands firmly by her belief that her father is a person of a good nature and decent character. Whilst it would appear that Ms McNamara does not accept the jury's verdicts, I accept her evidence regarding McNamara's background, and his attention to his family.
Similar sentiments were expressed by McNamara's younger daughter, Lucy, who also gave evidence at the trial. She spoke of the support given to her by her father during her adolescence. She also spoke of the support which has continued to be provided to her by her father, notwithstanding his incarceration. She described the charges against him as being "the complete opposite of the man that raised (her)".
McNamara's former wife Cheryl described McNamara's character as being one of "high integrity, loyalty, honesty, commitment to justice and (commitment) to his family". She made specific reference to what she described as his "nil tolerance" of drug use which, she said, was well known amongst those who were acquainted with him. She attested to the supportive role played by McNamara in the upbringing of his daughters, as well as the circumstances in which, when a police officer, he took steps to expose corruption in which other officers had engaged. She described the allegations against McNamara as "completely out of character". Despite his conviction, she continues to support him as "a good man of the highest integrity, loyalty and honesty".
A number of other written testimonials were tendered from persons who have known McNamara for a long time, including his mother. Those persons variously attested to the positive contribution he has made to the community, his support for those close to him, and his commitment as a husband and father.
In light of all of this evidence, I accept that McNamara is a person of otherwise good character, which is a mitigating factor pursuant to s. 21A(3)(f) of the Sentencing Act. At the same time, it must be said that his commission of the offences of which the jury found him guilty represents a dramatic departure from that position.
It was put on behalf of McNamara that I should find that he is unlikely to re-offend, and that he has good prospects of rehabilitation, which are mitigating factors pursuant to s. 21A(3)(g) and (h) respectively of the Sentencing Act. In my view, there is no evidence to support either conclusion. Indeed, having regard to the Pre-Sentence report, it is clear that McNamara continues to claim his innocence. That is certainly not a matter of aggravation. However, it might be said that the prospects of rehabilitation depend, at least in part, upon an acceptance of the offending which gives rise to the need for rehabilitation.
The absence of evidence simply does not allow me to reach a finding in relation to either of these issues.
[14]
Rogerson
Rogerson is presently 75 years of age. He is also a former police officer. Tendered in his case on sentence were three medical reports of Dr Peter Malouf of 31 July 2014, 6 August 2014 and 4 May 2016, along with reports from the Department of Corrective Services. Dr Malouf has been treating Rogerson since July 2004. Although his reports make reference to Rogerson having been referred to a number of specialists over the years, the reports of those specialists have not been tendered. It is therefore not possible for me to confirm what, if any, diagnoses have been made by any of them. However, the report of 31 July 2014 of Dr Malouf makes reference to Rogerson suffering from:
generalised severe osteoarthritis;
hypertension;
gastro-oesophageal reflux;
gout;
diverticulitis.
In April 2012 Rogerson underwent a right knee replacement and in October of the same year he underwent surgery for a repair of an avulsion tear of the muscle in his left hip. In August 2012, apparently whilst on holidays in Queensland, he underwent gastroscopy, colonoscopy and a blood transfusion to address significant bleeding.
As at 2014, Rogerson was prescribed medication for hypertension, reflux, osteoarthritis and gout. He was also prescribed aspirin-like medication as a preventative measure in respect of myocardial infarction and stroke. There is evidence before me that special arrangements were required to be put in place for Rogerson's transportation to and from court during the trial. Those reports variously described him as being "aged and frail", having a "permanent disability" and suffering from "hip problems, osteoarthritis and mobility issues". Although there is no direct evidence, it was put to me, and I accept, that Rogerson is incarcerated in an area reserved for persons of advanced years.
In 1992 Rogerson was convicted of conspiring to pervert the course of justice and sentenced to a term of imprisonment. In 2001 he was convicted of managing a corporation, without leave of the court, within five years of his release from prison. He was released on a good behaviour bond for a period of 2 years. In 2005 he was convicted of giving false evidence and sentenced to a term of imprisonment. Those convictions are, of course, of a completely different nature to those presently under consideration. Rogerson has no criminal history of violent offending.
As is the case with McNamara, the evidence does not permit me to make any finding as to Rogerson's prospects of rehabilitation, or the likelihood of him offending again.
THE DETERMINATION OF AN APPROPRIATE SENTENCE
Submissions of the Crown
The Crown submitted that the offence of murder of which the offenders had been found guilty was in the worst category, and attracted the application of the provisions of s. 61(1) of the Sentencing Act. The Crown did not make that submission in respect of the supply count, although it was submitted that this was also highly serious offending.
Counsel for McNamara submitted that having regard to the terms of s. 61, only cases falling within the rubric of a "worst case" category should attract a life sentence. Counsel submitted that even if I were to accept the submissions of the Crown, and find that the joint criminal enterprise involved a planned murder in order to access dangerous illegal drugs for profit, those circumstances would not, of themselves, place the present offending within a worst case category. It was submitted that I should sentence both offenders on the basis that the offending was constituted by an illegal drug transaction which had "careered out of control and culminated in an improvised homicide." It was submitted that such a finding would not be inconsistent with the verdicts of the jury. For the reasons already expressed, that is not an accurate categorisation of the offending.
Counsel for Rogerson also submitted that s. 61 of the Sentencing Act had no application, and that I would not be satisfied that Rogerson's level of culpability in the commission of the offence of murder was so extreme as to justify the imposition of a life sentence. It was submitted that I would find that the commission of the offences was amateurish, unprofessional, poorly planned and poorly executed. It was further submitted that in light of Rogerson's age, the practical reality was that any sentence imposed would amount to a life sentence. In terms of the offence of murder, counsel submitted that Rogerson's offending fell below the mid-range of objective seriousness.
Consideration
Section 61(1) of the Sentencing Act is in the following terms:
61 Mandatory life sentences for certain offences
(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.
In Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292, McClellan CJ at CL made the following observations regarding the operation of s.61(1) (at [23]):
"Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles:
· the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452.
· it is not possible to prescribe a list of cases falling within the worst category - ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; R v Petroff (unreported, 12 November 1991 - Hunt CJ at CL).
· a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; R v Kalazich (1997) 94 A Crim R 41 at (50-1); R v Baker (unreported, CCA 20 September 1995); R v Garforth (unreported CCA 23 May 1994).
· in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.
· it is the combined effect of the four indicia in s 61(1) which is critical: R v Merritt (2004) 59 NSWLR 557.
· the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559."
I have canvassed, at length, the circumstances of the offending, and I have identified those matters which, in my view, characterise its objective seriousness. There are, in my view, no factors which mitigate the offending.
The extreme culpability contemplated by s. 61(1) has been held to be in accordance with the approach taken a common law: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [51] per Wood CJ at CL (Tobias JA and Hidden J agreeing). At common law, a worst case is characterised by being able to point to particular features which are heinous, and by reference to which it is possible to postulate the absence of any circumstances mitigating the offending (as opposed to circumstances mitigating the penalty to be imposed): R v Twala (NSWCCA, 4 November 1994, unreported) per Badgery-Parker J (Carruthers and Finlay JJ agreeing). In that sense, "heinous" means (inter alia) detestable or grossly reprehensible: R v Arthurell (SC(NSW) 3 October 1997, Hunt CJ at CL, unreported). However, as pointed out in Knight, it is the combined effect of the four indicia in s. 61(1) which is crucial to a determination of whether a life sentence ought be imposed.
Two of those indicia, retribution and punishment, may be conveniently considered together. The present offending involved a planned murder which had, as one of its objects, the possession of a substantial quantity of methylamphetamine for supply. The community has a legitimate expectation that the punishment for such offending will properly reflect the high level of criminality that has been displayed. The matters to which I have already referred, and which categorised the present offending, are in my view properly described as heinous.
As I have noted, it was submitted, at least on behalf of Rogerson, that the offending was "amateurish" and "unprofessional". In my view, there is nothing amateurish or unprofessional about (for example) acquiring a motor vehicle which could not be traced, or having a boat ready and available as a means of disposing of the body of a deceased person. Such matters reflect careful, rather than poor, planning. In my view, there was nothing amateurish or unprofessional about the offending. The fact that aspects of it were captured on CCTV footage demonstrates, not that the offending was amateurish and unprofessional, but that it was audacious.
What is also relevant in this context is the fact that the offenders murdered the deceased in order to engage in further offending, the commission of which would have brought them considerable financial gain. It has been observed that a deliberate killing for payment may find its way into the worst category of case, and thus have the potential for the imposition of the maximum penalty of life imprisonment: Burrell v R (2007) 190 A Crim R 148; [2007] NSWCCA 65 at [328] per McClellan CJ at CL (Sully and James JJ agreeing) and the authorities cited therein. In my view, there is no relevant distinction to be drawn between a deliberate killing for payment in the nature of what is often described as a "contract killing", and the circumstances of the present offending. On any view of it, the present offending was a form of deliberate killing for payment. The fact that the payment in the present case was to be derived by the offenders, not from monies received from a third party pursuant to a "contract", but rather by engaging in further serious criminal activity, does not, in my view, render the present offending any less serious.
A further consideration in the context of s. 61(1) is the necessity for the community to be protected against planned and violent offending of this nature. Unlike the position which arises from time to time in matters such as this, there is no medical or other evidence before me which goes directly to the question of whether either offender presents a further danger to the community upon release. In that regard, I am left to draw such inferences as might be available from the circumstances of the offending.
There are obviously a number of disturbing aspects of the offending, for which neither offender has expressed any remorse. Indeed, the Pre-Sentence report prepared on behalf of McNamara specifically states that he continues to "adamantly espouse his innocence". Absence of remorse is not an aggravating factor. However, there is no evidence at all which even remotely suggests that either offender has accepted the verdicts of the jury. That, along with the circumstances of the offending as I have outlined them, points towards both offenders representing a continuing danger to the community. However even if I did not come to that conclusion, its absence would not, of itself, prevent the application of s. 61(1): Merritt at [54].
I am also satisfied that deterrence, both general and specific, are of particular significance in this case. Any sentence to be imposed must be such as to deter the offenders, as well as others who might be minded to engage in acts of this nature for illegal monetary gain.
Further, both offenders are former police officers. That does not aggravate the offending as such, but it is a matter which, in my view, bears upon the question of deterrence. Aspects of their commission of these crimes reflect the fact the offenders put to use, for all the wrong reasons, knowledge and experience that they gained as a consequence of their investigation of criminal offences when they were members of the police force. It is necessary to impose a sentence which will deter any person in a similar position who might be minded to use knowledge and experience of that kind in a manner which is the antithesis of upholding the law.
The subjective features in McNamara's case are limited. They are even more so in the case of Rogerson. Mitigating factors are necessarily relevant to the determination of an appropriate sentence. However in the present case, they are of limited significance. The nature of the offending was, in my view, so grave that such subjective circumstances as are made out on the evidence should be disregarded: Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 at [34] citing R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [103].
In all of these circumstances it is my view that the provisions of s. 61(1) of the Sentencing Act are applicable, and that in respect of the murder count, a life sentence should be imposed in each case.
[15]
CONCLUSION
In respect of the offence of supplying a prohibited drug, the offender Glen Patrick McNamara is sentenced to a non-parole period of 9 years imprisonment commencing on 25 May 2014 and concluding on 24 May 2023 with an additional term of 3 years imprisonment commencing on 25 May 2023 and expiring on 24 May 2026.
In respect of the offence of the murder of Jamie Gao, the offender Glen Patrick McNamara is sentenced to life imprisonment commencing on 25 May 2014.
In respect of the offence of supplying a prohibited drug, the offender Roger Caleb Rogerson is sentenced to a non-parole period of 9 years imprisonment commencing on 27 May 2014 and concluding on 26 May 2023, with an additional term of 3 years imprisonment commencing on 27 May 2023 and expiring on 26 May 2026.
In respect of the offence of the murder of Jamie Gao, the offender Roger Caleb Rogerson is sentenced to life imprisonment commencing on 27 May 2014.
[16]
Amendments
05 September 2016 - Amendment made to representation
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Decision last updated: 05 September 2016