R v Ryan Christopher WILLIAMS [2011] NSWSC 583 | Case summary

Matters relevant to the determination of the sentence 32I have born all of these considerations in mind in arriving at a sentence. I accept the submission that the offender has a strong subjective case. Objectively, however, that this is a very serious offence may not be doubted. This may not be overlooked in the sentence imposed. Ultimately, the sentence imposed must not be unreasonably disproportionate to the nature and circumstances of this offence. Aggravating factors 33The Crown's case was that the aggravating factor necessary to be taken into account was the offender's use of a weapon. That was accepted for the offender. The submission is plainly correct, even though, as Buddin J observed in R v Day [2010] NSWSC 983 at [19], 'most murders are committed by a person using a weapon.' 34In this case, not only was Ms Wilkinson strangled, which has been described as 'a horrible way to die' (see Versluys v R [2008] NSWCCA 76), she was repeatedly struck with a shovel. Those blows finally caused her death, with the asphyxiation contributing. The offender told police that she was already dead when he struck her. That belief appears to have been wrong, but the evidence certainly suggests that she was, by then, unconscious. She was patently defenceless. Given what the autopsy report reveals as to the brutality with which she was repeatedly struck with the shovel, that the use of this weapon was an aggravating factor may not be doubted. 35The other aggravating factors specified in the Act do not arise for consideration in this case. Mitigating factors 36That the offence was not planned, was accepted by the Crown. That the offender has no prior criminal record is also a matter to be taken into account. On confession the offender provided certain assistance which must also be taken into account when consideration is given to other mitigating matters which arise for consideration in sentencing. 37The offender is entitled to a discount for having pleaded guilty to the charge. His plea was first entered in the Local Court and adhered to in this Court. The Crown conceded that in the circumstances, it is within my discretion to grant the offender a discount of at or close to 25% for the utilitarian value of his plea of guilty, in accordance with the Court of Criminal Appeal's judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. 38The purpose of such a utilitarian discount was there explained by the Chief Justice as reflecting the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses, especially victims, who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. These benefits must be identified by a trial judge when sentencing, in order to provide an incentive to offenders to enter such a plea, so that such benefits will, in fact, be derived (see R v Thomson; R v Houlton at [115] to [123]). 39In this case I am satisfied that given the offender's early plea, he must have a discount of 25% on this account. 40That the offender has accepted responsibility for his actions in committing this offence, must be accepted. That was evidenced by his confession to investigating police officers; by the assistance which he then provided; by his plea; and by what he later told his mother and Dr Westmore. Whether additional leniency is available on account of the offender's demonstrated remorse for the offence must also be considered. 41As the Crown accepted, while he initially denied knowledge of Ms Wilkinson's whereabouts and over several days took a number of steps designed to conceal her death and his responsibility for that death, his confession and subsequent co-operation with the police reflected that remorse over what he had done, while initially absent, came to grow. 42The trigger for the confession was plainly the police pursuing its investigation and taking steps to search one of his cars. His father's presence at that point led to his consent to the car he was driving on the night he murdered Ms Wilkinson being investigated; his confession; and the recovery of Ms Wilkinson's body. This must also all be taken into account. 43While there was not in this case sworn evidence of remorse given by the offender, which was capable of being tested, I am satisfied that the evidence of the offender's conduct when he confessed, as well as what he later told his mother and Dr Westmore, shows that he has not only accepted responsibility for his actions, he has also acknowledged the injury which he has caused Ms Wilkinson and her family (see Alvares v R; Farache v R [2011] NSWCCA 33). That remorse must also be taken into account and given proper weight in the sentencing process. 44There is also evidence, including Dr Westmore's opinion, which supports the view that the offender has good prospects of rehabilitation, particularly having regard to his age, his conduct while in custody, his existing qualifications and intentions to purse further studies and the ongoing support which he has from his family. That evidence must, however, be considered together with the evidence that he has not taken effective steps to deal with what appears to be a serious, longstanding problem with drugs and alcohol. 45As I said, the evidence shows that the offender has a strong subjective case. There is evidence that he was previously of good character. However, the evidence of his significant long term use of illicit drugs must also be taken into account. That reduces the weight which may be given to the evidence of good character (see Aoun v R [2007] NSWCCA 292 at [23]). 46That the offender is unlikely to reoffend, is in my view not a conclusion which may readily be reached. I note Dr Westmore's opinion that the offender's risk to the community is probably low. Nevertheless, given the evidence as to the circumstances in which he came to murder Ms Wilkinson and dispose of her body; the extreme nature of his violence, which Dr Westmore considered to be unexpected and unpredictable; and the absence of any evidence from the offender, that he is not likely to re-offend in future is, in my view, not a matter about which it is possible to be confident. 47It is also necessary to consider the evidence that the offender had consumed both cannabis and alcohol before he committed the offence. The offender gave no evidence himself about what he consumed, but there is various evidence as to how much alcohol he had consumed and conflicting evidence as to how it affected him. The offender told Dr Westmore that he had been heavily intoxicated and that he would not have lost control in the same way, if he had not used alcohol and drugs that night. 48On his account to Dr Westmore and Dr Pulman, consuming alcohol and drugs to excess was not unusual, to the contrary, it was habitual. There was daily alcohol intake, as well as regular binge drinking and drug taking on weekends. By way of contrast, his mother's evidence was that she had seen the offender intoxicated, but he was careful not to drive when affected by alcohol and that his consumption of alcohol had never created any problems for his work attendance or performance. She was not aware of his drug consumption. That evidence was consistent with his driving record. 49On his account to Dr Pulman, in the past the offender had engaged in a number of fights, but he had no other history of violence, particularly no history of drug or alcohol fuelled violence towards his friends or family. Despite his account of regular binge drinking and substance abuse, the offender had no driving offences or any other criminal record. It thus appears that the offender had considerable ability to control his conduct, even when drinking to excess and taking illicit drugs. 50The offender gave conflicting accounts as to how much he had drunk and how he was affected, when he killed Ms Wilkinson. There was also other evidence which shed light on these matters, which must be considered. 51The offender told Dr Westmore that he commenced drinking when he finished work at 3.15pm. There is evidence that he left the pub at 10.04pm and went home by taxi. From exchanges of text messages between the offender and Ms Wilkinson, it seems that they must have met after the last text which Ms Wilkinson sent him at 10.38pm. He told Dr Westmore that he killed Ms Wilkinson between 10.30pm and 11.00pm. 52An account of the amount of alcohol the offender had consumed was given to police by a friend in 2009. He said that they had drunk eight beers and then the offender had drunk double scotch on ice and had taken some mixed drinks away with him from the pub. The offender told Dr Westmore in December 2010 that he had been an alcoholic for years, he had drunk a large bottle of Jack Daniels that night, as well as twelve schooners and had smoked a $20 packet of cannabis; he had been drinking pretty heavily all week and that night he 'really wrote himself off'. 53On 22 September 2009, the offender told police in a recorded interview that he had 'just had a few' that night; on 24 September, before he confessed, he told his father that he could not remember a period of two hours on the night of the murder; later he told police that he was 'really pissed' and that he 'can't really remember much about Friday night'. When he confessed later that day, he made no reference to his alcohol consumption. 54It is apparent from his confession and subsequent actions in assisting the police, that whatever his level of intoxication was that night, he had a memory of what he had done to Ms Wilkinson. 55Another friend who spoke to the offender at about 10.30pm on the night he killed Ms Wilkinson, later described him to police as being 'pretty pissed'. The taxi driver told the police that when he drove the offender at about 10.00pm, that he did not appear intoxicated. When his father saw him at their home at 1.30am, he described him as 'very out of sorts'. The offender told his father the next day, when asked why he was so weird the previous night, that he fell asleep in his ute and when he woke up he realised 'I'd shit myself'. That was untrue. The offender had gone home, to clean up and to hide the clothes he and Ms Wilkinson had been wearing. 56The offender arrived at his girlfriend's house at about 2.00am. His girlfriend told police that she had often seen him drunk, but would not have described him as drunk when he came home that night and later, that she thought he was 'completely sober'. 57As Hidden J observed in R v Shepherd [2007] NSWSC 1416 at [59] 'it is the experience of this Court, that, not infrequently, elaborate steps are taken to cover up a killing which was spontaneous.' The evidence of the extensive steps taken by the offender to conceal Ms Wilkinson's murder, were consistent with his girlfriend's and father's descriptions of his state. That he would have been capable of doing all that he did that night, if heavily intoxicated and drug affected as he later told Dr Westmore he was, seems most unlikely. 58Not only did he drive, both before and after Ms Wilkinson's murder, contrary to his usual habit when drinking to excess, he undressed Ms Wilkinson's body; he buried her body at night on the bank of a lagoon some distance from his home; he concealed the burial site in such a way that even when he later took the police to the site, it was not apparent that the ground had been disturbed; he went home and hid Ms Wilkinson's clothes and his own; and he cleaned himself sufficiently, so that when he encountered his father, what he had done was not obvious. He then showered and drove to his girlfriend's house. He was able to conceive and act on a plan to conceal his knowledge of Ms Wilkinson's death and the whereabouts of her body, by disposing of her mobile phone and sending a text to her phone and attempting to ring her, after her death. That night he was also able to successfully interact with both his father and his girlfriend, without revealing to them that he was either heavily intoxicated or drug affected, or what he had done to Ms Wilkinson. He retained a memory of what he had done and was able to effectively conceal his actions that night and during the following days. 59In all, the offender was able to maintain remarkable control over his faculties and his conduct, given the state he told Dr Westmore he was in, when he murdered Ms Wilkinson. The offender also told Dr Westmore that he freaked out and panicked, after he realised he had killed Ms Wilkinson and that was when he tried to get rid of her. While what he then did was consistent with that account, it was not consistent with the level of intoxication the offender described to Dr Westmore. 60Also to be considered is what the offender told the police in September 2009 when he confessed. Then he said that strangling Ms Wilkinson had started out as 'a joke', but he could not stop and that he hit her with the shovel, after he thought that she was dead. This account does not appear to be consistent with what he later told Dr Westmore in 2010, namely that he had strangled Ms Wilkinson in an act of blind rage, in response to what she had said about the miscarriage a week earlier, that behaviour being the result of his alcohol and drug consumption. Because the offender gave no evidence, the two accounts remain untested. 61Alcohol and drug consumption of itself cannot mitigate the seriousness of an offence, but it may explain the context in which it occurred (see R v Fletcher-Jones (1994) 75 A Crim R 381). In XY v R [2007] NSWCCA 72 at [29] it was observed that '[a] person's self control may be severely diminished by excessive alcohol although a memory of the event remains.' In R v Gordon (1994) 71 A Crim R 459 at 467, Hunt CJ at CL explained that in some circumstances 'intoxication will mitigate the offence because the offender has by reason of that intoxication acted out of character.' 62It must be accepted that the evidence established that the offender killing Ms Wilkinson was entirely out of character. It may also be accepted that the alcohol and drugs which he had consumed that night, affected his judgment. Of itself, however, the offender's drug and alcohol consumption, whatever it might have been, cannot mitigate the seriousness of this offence. 63It is also necessary to deal with the question of provocation. The offender bears the burden of proof, on the balance of probabilities. The Crown's case was that the evidence could not satisfy the Court that Ms Wilkinson provoked the offender. The offender's case was that it would be accepted that provocation was established, as the result of a combination of the offender's increased sensitivity to Ms Wilkinson's remarks, given his earlier loss of a child and the recent loss as the result of the miscarriage; the nature of the comments themselves; and the effects of alcohol and cannabis on his judgment. 64On the evidence I am not persuaded that provocation was established. 65I have already dealt with the question of the alcohol and drugs which the offender had consumed and their effects. 66As I have already noted, the offender has given two quite different accounts of how he came to murder Ms Wilkinson. It was only when he spoke to Dr Westmore, that he gave any account of remarks made by Ms Wilkinson, which provoked his 'blind rage', causing him to strangle her. His earlier account was that the strangling began as a joke. Because the offender gave no evidence, his differing accounts were not tested. 67The offender also told Dr Westmore that Ms Wilkinson was a nice girl, who he first met when she was 15 or 16 and that their sexual relationship began when she was 18. It later ended mutually when he had another girlfriend and Ms Wilkinson then entered a relationship with one of his friends. They had no ongoing sexual relationship. She had rung him that night and asked him if he wanted a drink, he had picked her up and they had driven around for a bit and had then pulled over at the river and talked. 68It was only in this account which he gave to Dr Westmore, that the offender mentioned discussing the miscarriage and Ms Wilkinson saying to him that it was a good thing that the baby had died and a good thing that it had happened. In my assessment, if Ms Wilkinson made such remarks, even accepting that the offender was upset by the miscarriage and the earlier loss of another baby, the offender's reaction was grossly disproportionate, notwithstanding the drugs and alcohol which he had consumed. 69How Ms Wilkinson came to know about the miscarriage is not known. Presumably it was the offender who told Ms Wilkinson of the recent miscarriage. On the evidence, the offender's girlfriend and Ms Wilkinson were not close. There is no suggestion that anyone else knew of the miscarriage, other than the treating doctor. The offender's mother did not know of the miscarriage, or that the offender was upset as a result, even though they had dinner together a few days later. The offender did not drink that night, while they were together and they discussed only normal, everyday things. Neither the offender or his girlfriend told her of the miscarriage, or that the offender was upset. The offender's mother was also not aware of the birth and death of the child of his earlier relationship, or that it was something which had ever troubled him. 70There is little else that is known about the interaction between the offender and Ms Wilkinson that night. That Ms Wilkinson was aware that the offender was not only distressed about the miscarriage, but also about the death of his other prematurely born baby some years earlier, is not apparent. Even assuming that she was aware of this and that she then made what was an insensitive, or even a very cruel remark about the miscarriage, that the offender's response was 'so far out of any reasonable proportion to the behaviour of the victim' that there was no mitigation arising, must in my view be accepted (see R v Mendez [2002] NSWCCA 415 at [16].) 71Even accepting that his judgment was adversely affected by what he had consumed, the untested, contradictory and incomplete accounts of what caused the offender to strangle Ms Wilkinson and then to beat her to death with a shovel cannot, in my assessment, 'constitute evidence of provocation such as to amount to mitigation', (see Shaw v R [2008] NSWCCA 58 at [26]). 72It follows that the offender must be sentenced on the basis that his offence was not premeditated and that it was out of character. I can, however, make no positive finding in his favour as to what caused him to kill Ms Wilkinson, or that the killing was provoked by Ms Wilkinson. The evidence does not permit any firm finding as to what it was that triggered his attack, other than that it was spontaneous. Standard non-parole period 73As I have said, the offence of murder, which carries a maximum penalty of life imprisonment, attracts the operation of s 54A of the Act, which provides for a standard non-parole period of 20 years for a mid-range offence of murder. This standard non-parole period does not apply after a plea, but it must still be kept in mind as 'a reference point, or benchmark' in sentencing, as must the maximum penalty (see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [122]). 74In considering where in the range this offence falls, I have paid regard to the principles discussed in R v Way ; R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575; MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93; R v McEvoy [2010] NSWCCA 110; Mulato v R [2006] NSWCCA 282; and R v AZ [2011] NSWCCA 43. For the offender it was urged that particular regard would be paid to what Kirby J observed in MLP v The Queen at [33]. 75In Nguyen v The Queen; ATCN v The Queen; Nguyen v The Queen; Huynh v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267 at [143], it was observed that '[a]n intention to kill and premeditation are usual elements in a murder of mid range objective seriousness'. On the evidence that there was an intention to kill in this case was established, but premeditation was not. 76In Versluys v R it was observed at [34] that: "It may be accepted that a murder which is not premeditated would usually be less serious than one which involves planning. However murder is a crime which can be committed under a very wide range of circumstances and the absence of premeditation does not dictate a finding that the objective seriousness of the particular offence falls below the mid range." 77While this murder was not premeditated, in determining the objective seriousness of this offence proper account must be taken of all the evidence as to the circumstances of the offence, including how Ms Wilkinson's death was caused. That this was a most brutal killing may not be overlooked in assessing the objective seriousness of the offence and the range within which it falls. 78Having weighed the various aggravating and mitigating matters which must be taken into account in assessing the objective seriousness of the offence, I am satisfied that the evidence does not permit a conclusion that this offence fell below the mid-range of seriousness, even though it was not premeditated. I have concluded that this offence falls at just above the mid-range of such offences. 79In determining sentence, consideration must be given to that conclusion, as well as to the offender's subjective case and the mitigating matters which are relevant to sentence. They include my conclusion that the offender is entitled to a 25% utilitarian discount; his remorse and prospects of rehabilitation; and his confession and co-operation with the authorities. 80I am not of the view that there should be a finding of special circumstances warranting a reduction in the proportion of the sentence to be represented by the non-parole period, because this is the offender's first time in custody. I have taken his lack of prior record into account in determining the sentence and am of the view that the usual statutory ratio will provide an appropriate period of supervision on parole. In my view, any lesser period of imprisonment would not be sufficient to reflect necessary considerations of deterrence and retribution. Comparable cases 81For the offender it was submitted that some, albeit limited guidance would be provided by statistics available from the Judicial Commission, which showed only nine cases with comparable characteristics to those in this case. The result was a mid-range non-parole period of 15 years. 82Attention was also drawn to what were submitted to be comparable offences considered in decisions such as R v Borg [2010] NSWSC 951; R v Kwon (2010) NSWSC 671; R v D ay; R v Shepherd and Regina v Prior [2002] NSWSC 56 (where no standard non-parole period applied). It was submitted that they involved comparable factual circumstances, which had been assessed as falling below the mid-range of objective seriousness. 83These decisions were of some assistance to what I have to determine, but each dealt with differing circumstances to those which arise for consideration in this case. The sentencing discretion which I must exercise in this case, must have reference to the evidence which has here been led on sentence. Custody 84I do accept that account must also be taken of the fact that the offender has been in continuous custody since 24 September 2009. It is appropriate to commence the sentence imposed on the offender from that date.

R v Ryan Christopher WILLIAMS

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