R v Spicer

Supreme Court of NSW|2015-04-17|Before: Harrison J

REMARKS ON SENTENCE

HIS HONOUR: The deceased Katherine Foreman died at her home in the early hours of 27 October 2011, when the upstairs bedroom in which she was sleeping was set alight. The fire engulfed the home and the deceased was later found lying on the landing at the top of the stairs. It is not in dispute that petrol was poured inside the bedroom and ignited.
Bernard Justin Spicer was indicted upon a charge alleging that on 27 October 2011 at Corrimal in the State of New South Wales he did murder Katherine Foreman. A jury found Mr Spicer guilty of the murder of the deceased on 5 December 2014 following a trial in Sydney that commenced on 17 November 2014. A plea of guilty to an additional charge of break, enter and commit an indictable offence had earlier been rejected by the Crown.
The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period. Similarly, I am not required to make an assessment of whether or not the offence is within the mid-range of objective seriousness (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [25]). The relevant statutory provisions generally, and the provisions of ss 54B(2) and (3) and 21A of the Crimes (Sentencing Procedure) Act 1999 in particular, require an approach to sentencing in which all of the relevant factors are identified, and a judgment is reached as to the appropriate sentence having regard to such factors (see Muldrock at [26], citing Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]). The standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27] and [31]).

Factual findings

I acknowledge that my fact-finding role is that described in Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587. I am required to find the facts material to the sentence. To the extent that my findings are based on facts led at the trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. A judge's finding of facts upon which the sentence is based is, "both on what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].

General background

The deceased was a solicitor who practised in and around Wollongong. She lived at 6 Doncaster Street, Corrimal. Wendy Evans is a former employee of the Department of Attorney-General and Justice and worked at various Local Courts over the years preceding the death of the deceased. Ms Evans met the deceased in 2008 through her work. They became friends in about November 2010.
Bradley Rawlinson and the deceased had been in an intimate relationship on and off over a period of about four years prior to her death. They communicated regularly with each other during this time and were intimately involved even as late as the days preceding the death of the deceased. That relationship also to some extent coincided with or overlapped an intimate relationship that developed between Mr Rawlinson and Ms Evans and which was current at and following the death of the deceased.
For some time leading up to the death of the deceased Michelle Proud and Mr Spicer had been in a de facto relationship. Ms Evans and Ms Proud met and formed a friendship. It appears that Mr Spicer and Ms Evans' then partner had both been inmates of the same correctional centre in 2008.
In the period leading up to the events of 27 October 2011, Ms Evans contacted Ms Proud and asked her if she knew anyone who could bash the deceased. Although it has no direct bearing upon my deliberations in this matter, it is clear that Ms Evans did so at the request and on behalf of, or in consultation with, Mr Rawlinson. Mr Spicer later called Ms Evans and said that he would do it. It was agreed that Mr Spicer would be paid $3,000 for his assistance. It is apparent from telephone records that Ms Evans and Ms Proud and/or Mr Spicer made contact on 38 occasions between 14.18 on 25 October 2011 and 14.59 the following day. Ms Evans and Mr Rawlinson made contact on 54 occasions between 17.06 on 25 October 2011 and 00.07 on 27 October 2011.
At 11.43 on 26 October 2011, Mr Rawlinson withdrew $1,000 from a Commonwealth Bank automatic teller machine at Figtree. He deposited that amount into the TAB account of Peggy-Ann Case at 11.57. Ms Case is Mr Spicer's sister. Ms Case then received a call from Ms Proud telling her that "a friend" would deposit money in her account. At 12.33, Ms Case withdrew the money and gave it to Mr Spicer.
Ms Proud and Mr Spicer then booked to stay at the Oasis Motel in Windang, with Ms Evans' assistance. That motel was located about 20 minutes' drive from the deceased's home. The booking was made in Mr Spicer's name using Ms Proud's credit card.
Ms Evans drove Mr Spicer and Ms Proud and their children to the motel on the afternoon of 26 October 2011. She later left the motel and met Mr Rawlinson at the house at which she was then residing, and he provided her with two keys to the deceased's house. Ms Evans then returned to the motel and collected Mr Spicer.
At 00.40 on 27 October 2011, Ms Evans and Mr Spicer went to the K-Mart store in Figtree and purchased a 10-litre bucket, a water container and an aluminium torch. Mr Spicer paid cash for these items. They then went to two service stations. At the first of these they filled the water container with petrol. At the second they purchased a pack of firelighters and a cigarette lighter. From there Ms Evans and Mr Spicer made their way to the home of the deceased, passing the intersection of the Princes Highway and Bellambi Lane at Russell Vale heading north towards Woonona at 1.11. Three minutes later, that Hyundai car travelled through the same intersection heading south towards Corrimal. The car was then parked adjacent to a set of stairs that led directly up to Doncaster Street, Corrimal, about 25 metres from the deceased's home.
A neighbour of the deceased noticed this car at the base of the stairs at about 1.30 as she drove home from her work. She saw a male and a female get out. The neighbour continued driving to her house in Doncaster Street, from where she saw the same two people now standing at the top of the stairs leaning against a railing. These people were Ms Evans and Mr Spicer. At about 2.20, Ms Evans and Mr Spicer entered the deceased's house using the keys provided by Mr Rawlinson.
The deceased was at this time asleep in her bed. Mr Spicer proceeded to pour or to throw petrol from the bucket around the deceased's bedroom and possibly onto the bed where the deceased lay asleep. A firelighter was thrown into the bedroom. The petrol ignited immediately. They ran from the house. Fire consumed the bedroom within a very short time. Whilst fleeing from the house, Ms Evans dropped the two house keys. Mr Spicer picked up one of the keys and gave it to Ms Evans.
The Fire Brigade arrived at the house at about 2.35. The upper level of the house was by then well alight, with flames visible from the bedroom window and the roof. The fire was extinguished and the body of the deceased was located on the small landing at the top of the stairs leading to her bedroom. It was the Crown case that the deceased was awoken after the fire started and attempted to escape, but was overcome by fire and smoke. She collapsed and died just beyond the entrance to her bedroom.
Mr Spicer neither assisted the deceased nor called an ambulance or the Fire Brigade.
A crime scene was immediately established. The key to the deceased's home dropped by Ms Evans was found on the roadway outside the house. It fitted the front screen door. The house did not show any signs of forced entry.
An autopsy conducted by a forensic pathologist established that the deceased had inhaled smoke and soot, indicating that she had been alive and breathing during the fire. Petrol was detected on remnants of clothing worn by her.
On 8 November 2011 Ms Evans deposited $1,000 into Ms Case's TAB account at 15.07 and Mr Spicer withdrew it at 16.57.
At about 21.00 on 18 November 2011, Ms Evans spoke to Mr Spicer and Ms Proud. She asked them, "You got the other thousand, didn't you?" Mr Spicer responded, "Yeah".
On 25 November 2011 at 14.26 Ms Evans put $350 into Ms Case's TAB account. Ms Evans then sent a message to Mr Spicer and Ms Proud at 15.19 saying, "Sorry we just put 350 in now that's all we have."
Police seized the Hyundai motor vehicle on 14 December 2011.
The evidence at the trial included Mr Spicer's electronically recorded interview with the police. He originally maintained that he was uninvolved in the death of the deceased. However, when confronted with material suggesting that Ms Proud had told police the truth, he responded "This is fuckin' bullshit man. It wasn't supposed to happen." Mr Spicer then proceeded to give police an account of his involvement in the death of the deceased that included the following matters.
Mr Spicer said that Ms Evans rang him and said that she wanted to scare the deceased. He said that Ms Evans asked him if he knew anyone who would be willing to hurt the deceased. He said he did but that he did not want anything to do with it. He asked her, "What are you going to do?" and Ms Evans said to him, "Burn her car or something." He said "All right, whatever." He was then offered $3,000 "to do it".
Ms Evans told him that Mr Rawlinson would supply the keys to the deceased's house. Ms Evans said, "All you have to do is just run inside or whatever, throw a bucket of petrol down and light it." Mr Spicer said that he asked Ms Evans, "But what if Katie's there?" He said Ms Evans told him, "She won't be, I swear to you she's not going to be home." Mr Spicer told police that "all it was was just to scare the shit out of her."
Mr Spicer said that when Ms Evans and Mr Spicer drove to the deceased's home he "ran up the stairs, I threw a bucket of petrol on there." He said that Ms Evans threw a jiffy firelighter into the room and "the thing just exploded." When this happened he was still standing "up the hallway." They both then fled the house.
Mr Spicer said that the following day, which I take to have in fact been later the same day, he saw on the news that someone had been in the house. He said that he rang Ms Evans and told her she had just "fucked [him] over for life."
Mr Spicer said that they had entered the house with the use of keys. There was a vehicle in the driveway in front of the house. He said he could not see inside the deceased's bedroom as it was "pitch black in the whole house." He said he did not know if anybody was inside the bedroom. He said he had never been in the house before. He followed Ms Evans who led him up the stairs. Mr Spicer said that Ms Evans lit the firelighter "and threw it in there."
When he got to the top of the stairs he stood at the door. Mr Spicer said that he threw petrol into the room. He said that he did not know how far into the room it went as he could not see in. The petrol he threw was in a bucket and had been transferred from the container shortly beforehand at the front of the house. Mr Spicer said that when the petrol ignited "the explosion was deafening."
Mr Spicer told police that when he bought the petrol he thought that all he would be doing would be "to throw it over the car and that was it." He said that only changed when Ms Evans told him that there was a mobile phone in the bedroom that contained images of her in what amounted to a compromising pose, the inference being that the phone had to be destroyed.
Mr Spicer agreed that as they ran from the house he saw Ms Evans drop something and that he picked it up. It was one of the keys to the house. Mr Spicer said that he was paid to do this job and that he understood that the money came from Mr Rawlinson.
Mr Spicer was asked about Ms Evans. He said this: "Q232 Yeah. Have you spoken to Wendy since? A. Yeah, I've gone off me head at her too. Q233 Yeah? A. She fucked us over. Q234 What do you mean, she fucked you over? A. Well, she lied to us. Q235 About what? A. Everything. Q236 Well, give me an example of what she lied about. A. Well for starters she knew that chick was in that house. Q237 How do you know that? A. I don't know, but I know she knew that that chick was in the house. Why, why target, well put it this way, she said to me, the next day, when I did speak to her, I turned around and I said, 'Oh, what the fuck, what have you gone and done?'. Like I said, 'Now you've just fucked me'. And she turned around and she goes, 'Oh, I swear you won't get in trouble for this, nothing's going to happen to you rah, rah, rah'. And I said to Michelle, I said, 'I know, I'm in trouble now'. Like, it doesn't matter what you do, this shit always comes out. Like doesn't matter how many bull shit stories they make up. Q238 When you say they make up, who's they? A. Well they were trying to, I said to Wendy and that, I said, 'If I go down for this Wendy', I said, 'You're going to pay for it'. I said, 'I'm going to take you down with me'. Because it was her job, like she, you know what I mean. And she turned to me and she goes, 'I swear you're not going to get in trouble'. And, yeah, and then when I said to her, 'Oh, so now that Katie's dead, like, how do you feel'. And she goes, 'Oh, I can sleep now'. I said, 'Yeah, well, I'm glad youse can, 'cause I can't'."
Mr Spicer continued to insist throughout the interview that he did not know that the deceased would be at home that evening. He said that he did not light the fire but only threw the petrol.

Other evidence

Mr Spicer was later secretly recorded using a legally installed listening device having conversations in his home and in intercepted telephone calls following the fire but before his arrest. The text of these conversations would appear to indicate that Mr Spicer's most pressing concern was the payment of the balance of the money that was owed to him for his role in setting the fire. This is in contrast to what he later said to the police when interviewed on the day of his arrest. In none of these recorded conversations does Mr Spicer express surprise or alarm at the fact that the deceased was killed as the result of anything done by him. He did not suggest or complain that he had been misled by Ms Evans.

Intention

The Crown contended that I would be satisfied that Mr Spicer committed the offence with an intention to kill the deceased. That submission was supported by the (not altogether settled) proposition that an offence involving an intention to kill is generally more serious than one involving only an intention to inflict grievous bodily harm. I briefly examined the different possible views about this issue in R v Kristi Anne Abrahams [2013] NSWSC 952 at [25] - [27]. It seems to me that this is a case where there is little difference objectively between an intention to kill and an alternative liability for murder.
Accepting for present purposes that there may be little difference, either in this case or more generally, between the two possibilities, I am satisfied beyond reasonable doubt that Mr Spicer intended to kill the deceased. Much of what I have already referred to supports that conclusion. For example, the location and intensity of the fire is overwhelmingly supportive of the proposition that the fire was set with a view to killing the deceased. If the intention had been merely to cause serious bodily injury to the deceased, one might have expected either some other method of causing injury to have been used, such as direct physical assaults upon her as she lay in bed, or the setting of a fire in some location that may have caused injury to the deceased but permitted her to escape. The setting of a fire that must inevitably have led to an immediate conflagration within a small room with only one means of ingress or egress, is highly inconsistent with any other conclusion. That satisfies me beyond reasonable doubt that Mr Spicer intended to kill the deceased.
Even more significantly, however, would appear to be the total lack of any reference by Mr Spicer when communicating with others after the death of the deceased, to any surprise or dismay at the fact that what happened on 27 October 2011 actually caused her death, as opposed to something less. If the intention were not to kill the deceased, one would have expected that issue to figure prominently and consistently in what Mr Spicer said in conversations detected by listening devices or telephone intercepts before he was arrested or realised that they were being recorded. Quite to the contrary, Mr Spicer's conversations suggest that the death of the deceased was entirely anticipated. His unqualified post mortem demands for payment of the money that he was still owed are inconsistent with an intention only to scare the deceased.
Moreover, the difference between the two types of intention may in effect be academic. The circumstances of the killing, even accepting the formation by Mr Spicer of no more than an intention to cause serious bodily injury, are so dangerous and extreme, that there is arguably little scope for the imposition of a discernibly different sentence.
These matters are also relevant to submissions made on Mr Spicer's behalf that the basis of the jury's verdict could only be consistent with a finding of reckless indifference to human life. That was said to be because the evidence was not sufficient to establish beyond reasonable doubt that Mr Spicer had an intention to kill the deceased, as opposed to having a state of mind rising no higher than reckless indifference. A finding by me consistent with the jury's verdict that Mr Spicer had either an intention to kill or to cause grievous bodily harm could only be made if I were satisfied beyond reasonable doubt that Mr Spicer knew that the deceased was in the bedroom at the time he threw the petrol into her bedroom. That submission was supported by reference to Mr Spicer's ERISP answer that he "just knew that something was going to go wrong" and that he "had a gut feeling that something was going to go wrong."
However, in my view, that statement falls foul of a number of problems to which I have earlier referred. His concern that something would go wrong, or that Ms Evans had "fucked him for life" never emerged at any time or in any context of which there is evidence before he was apprehended. He is not once recorded before his arrest complaining that things had gone wrong, or that it had all turned out in a way quite different to what he expected, but is in contrast concerned regularly and at times quite aggressively to inquire about his outstanding remuneration. In that respect I specifically take Mr Spicer's intercepted offer on one occasion to accept less than he was owed to be an attempt to secure a quick payment rather than a reaction of surprise or remorse for the way things turned out.
Moreover, the deceased's car was parked in the driveway. It was the early hours of the morning. The petrol was not used to ignite her car, or some benign part of her residence permitting escape if she were present. The suggestion that the bedroom was targeted because there was a phone in that room is wholly inconsistent with Mr Spicer believing that the deceased was absent and satisfies me beyond reasonable doubt that Mr Spicer was aware of the deceased's presence in the room. If it were otherwise the deceased's apparently significant mobile phone could presumably have been located in what was a very small and (on this analysis) unoccupied room without the need to set it on fire. Mr Spicer could also at his leisure have entered the room to deposit the petrol as opposed to throwing it into the room from his asserted location at the doorway.
The jury's verdict is consistent with, although not limited to, them being satisfied that Mr Spicer knew that the deceased was present in her bedroom when he threw petrol into it. Mr Spicer emphasises that he did not know the deceased was present in the room and that the jury's verdict is equally consistent with satisfaction on their part that he acted with reckless indifference to whether or not she was. I consider that one further piece of evidence should be noted in this context. In his ERISP, Mr Spicer told the police that Ms Evans knew that the deceased was present. When asked how he knew that Ms Evans in fact was aware that the deceased was present, he responded, "I don't know, but I know she knew that that chick was in the house. Why, why target, well put it this way…". This was evidence before the jury which they were entitled to take into account in deciding whether or not Mr Spicer knew that the deceased was in the house. The italicised words, which appear inadvertently to have been spoken, and from which Mr Spicer somewhat clumsily but obviously sought to retreat, are in my view consistent with his appreciation that Ms Evans specifically wanted to attack ("target") the deceased's bedroom because she was there asleep on the night. Targeting the deceased's bedroom is precisely what Mr Spicer admitted he did.
I am in the circumstances satisfied beyond reasonable doubt that Mr Spicer was part of a joint criminal enterprise to kill the deceased. I am satisfied that he entered the deceased's home in the company of Ms Evans in the early hours of the morning as she slept and threw petrol into her bedroom. I am satisfied beyond reasonable doubt that Mr Spicer was aware that the deceased was there when he did so.
I was asked by the Crown to make a finding that Mr Spicer should be described as a "contract killer". I am not certain what such a finding would contribute to the present debate. By his own admission Mr Spicer agreed to be part of the enterprise, although he disputed its content, in return for the payment of $3,000. What amounts to a pejorative shorthand adjectival characterisation of the events seems to me to be less helpful than a full understanding of my findings beyond reasonable doubt about what Mr Spicer did and what he knew when he did it. It becomes unnecessary in these circumstances to deal with submissions put on behalf of Mr Spicer that I should not make the finding in question.
It was submitted on behalf of Mr Spicer that he should in effect be given some credit for the fact that his involvement was not simply for reward but inextricably linked to Ms Proud's friendship with Ms Evans. However, I entirely reject this submission. Mr Spicer's criminality, or the level of objective seriousness of his offending, is not diminished by the fact that the opportunity to commit the crime came to him through the friendship between his co-accused and his partner. The proposition has in my view only to be articulated to be rejected.
A related submission was based upon the fact that Mr Spicer's offending was linked to an opportunity, suggested by Ms Evans, for Mr Spicer's and Ms Proud's children simultaneously to have a short holiday by the seaside in Wollongong. It is accepted by me that Mr Spicer and Ms Proud lived in what could only be described as emotionally and economically impoverished conditions, and that their children were the unfortunate beneficiaries of these awful circumstances. As sympathetic as it is right to be with that fact, it is not possible to leverage the genuine concern that Mr Spicer may have had for his children as a means of minimising the consequences for him of his decision to commit a violent act upon the deceased. There is in my opinion neither a legally defensible nor morally justifiable basis for doing so.
A completely different submission made on Mr Spicer's behalf was that he was pressured or manipulated into agreeing to a change of plan at the last minute by Ms Evans. It was submitted that it was open to me to find that Ms Evans pressured or manipulated Mr Spicer to continue with the criminal enterprise even when the plan had changed. Mr Spicer contended that the plan had changed after he and his family had been taken to Wollongong where they were left without transport to return to Sydney or the means conveniently to do so. In the events that occurred, Ms Proud resorted to selling her children's toys in order to raise money for their train fares.
Mr Spicer told police in his ERISP that he had already taken the money to take part in the commission of the crime. He said that in those circumstances. "I didn't have much choice." He also said, "I didn't want to do it but I didn't want to pay the money back." He also claimed that Ms Evans had told him that "This bloke will just fuck us over" which he took to be a reference to Mr Rawlinson taking some action if they did not proceed. Mr Spicer also told the police that he suggested that they leave the execution of their plan until the following day as they had been seen by the neighbour but that Ms Evans told him, "No, it's got to be done now."
Ms Fleur Taylor, to whom some more detailed reference will later be made, is a psychologist who offered the professional opinion that Mr Spicer was "likely an individual who is susceptible to the manipulation and coercion of others in the community." Mr Spicer told police that he had been drinking all day and that he had used ice prior to the offence. He told Ms Taylor about this alcohol and drug use. She opined that this would likely have caused a disruption to his ability to make pro-social choices and may have increased his vulnerability to be coerced by his co-offenders.
It was submitted for Mr Spicer in these circumstances that his agreement with the change of plan due to pressure or manipulation was the probable explanation for his participation in the crime. It was contended that this also explained why Ms Proud was never aware that there was a plan to set the house on fire.
These submissions are all based upon the proposition that the plan changed. That suggestion is entirely based upon Mr Spicer's assertions to the police that it did. Mr Spicer has never given evidence, either at the trial or in the sentencing proceedings, so that his assertions have never been exposed to any forensic scrutiny or challenge. They must in my opinion be compared to the preparatory steps taken by him and Ms Evans in the hours leading up to the fire. The suggestion is that the original plan was to burn the deceased's car. It seems to me to be highly unlikely that the paraphernalia purchased in advance would have been necessary in order to set a vehicle alight. For example, the front of the deceased's premises was illuminated by a nearby streetlight. Notwithstanding that fact, it was for some reason necessary to purchase a torch. In my view that was entirely inconsistent with a plan to burn the car and entirely consistent with a plan to enter the unlit house.
Mr Spicer and Ms Evans also purchased not only a petrol container but a bucket as well. The bucket was quite deliberately filled with petrol in order to facilitate its distribution. That would not have been necessary if the plan were merely to destroy the deceased's car as there was unlimited access to it standing on the driveway in contrast to comparatively limited access to the deceased's bedroom through a single doorway. Mr Spicer also told the police that he had been told that the deceased and Mr Rawlinson were "going to out [sic] together all night", indicating that the need for a bucket in order quickly to disseminate the petrol over the car was not critical. The purchase of the bucket was in my view a deliberate strategy consistent with a plan to enter the house.
Mr Spicer also told the police that Ms Evans told him that Mr Rawlinson would supply the keys to the deceased's house. There would have been no need for the keys to the house in order to set fire to a car on the driveway. The need for the keys is highly, if not exclusively, consistent with a plan to enter the house.
Mr Spicer and Ms Evans also purchased a firelighter. However, it is not in my view possible to say that that item was not also consistent with a plan to burn the car.
In his ERISP Mr Spicer provided the following information: "Q334 And at any point did you stop and go I'm not going to do this? A. All night I was saying I didn't want to do it. Q335 But even when you were at the house, at Doncaster Street? A. When I was at the house I just ran in, didn't even think, didn't stop, just wanted to get out of there. Q336 Did you and Wendy speak about anything further just prior to going into the house? Did you speak about, once you left the house, what did you say to each other? A. I just told her to drive. Q337 Yeah. A. And I didn't speak to her all the way back to the motel"
A number of matters would appear to flow from this. Mr Spicer elsewhere indicated in his ERISP that at the time the petrol was purchased he thought the car was going to be torched. It was submitted on his behalf that this was consistent with a late change of plan or logically a change no earlier than the purchase of the petrol. However, if the original plan was to burn the car then Mr Spicer's reference to "all night I was saying I didn't want to do it" must have been a reference to the plan to burn the car and not the plan to enter the house. Mr Spicer was asked if there was any discussion about anything prior to entering the house but that question would appear not to have been answered by him. That is surprising if his contention is now that he was confronted with a late change of plan that he was unable to resist. It is also difficult to reconcile with his admission that when he was at the house he "just ran in, didn't even think." There was also somewhat curiously no conversation about this alleged critical and significant change of plan in the car on the journey back to the motel.
Perhaps most significantly, Mr Spicer told the police that Ms Evans originally described what he was recruited to do as, "all you have to do is just run inside or whatever, throw a bucket of petrol down and light it." That description is wholly inconsistent with, and is contradictory of, Mr Spicer's present submission that the original plan was merely to burn the car and that the plan changed.
I am satisfied beyond reasonable doubt that the original plan was to enter the house and set fire to the deceased's bedroom. I am similarly satisfied that there was no change of plan into the performance of which Mr Spicer was pressured or coerced. I am satisfied beyond reasonable doubt that Mr Spicer was not manipulated by Ms Evans to enter the house and set the fire.

Subjective circumstances

Ms Taylor interviewed Mr Spicer for the purposes of these proceedings. Her report dated 12 April 2015 was tendered without objection. Ms Taylor took a history from Mr Spicer that included the following matters.
Mr Spicer is the only child of his biological parents. He has one older maternal half-brother who lived with his maternal grandmother when they were growing up. He also has three younger half-brothers and a younger half-sister born to different fathers. Mr Spicer said he had a difficult childhood characterised by physical abuse, exposure to domestic violence and parental drug and alcohol use, as well as paternal abandonment, rejection and emotional neglect. He never knew who his father was and has had no contact with him at any time. He unsuccessfully attempted to locate his father. His lack of a paternal relationship has created difficulties for him.
Mr Spicer's mother entered into a relationship with his step father when he was a baby. They are still together. His step father was a violent man who abused alcohol daily. His step father's anger and aggression escalated when intoxicated and Mr Spicer became a witness to and the victim of regular physical violence. He also regularly witnessed his step father physically assaulting his mother. His attempts to intervene to protect her only meant that he became the victim of the same abuse. Mr Spicer's mother also regularly consumed alcohol to the point of intoxication. Each of his mother and step father were regular cannabis users.
Mr Spicer's parents were strict. They owned a farm and all the children were expected to work on it. Mr Spicer was accordingly relatively socially isolated during his childhood. As a result he regularly sneaked out of the house to spend time with his friends and would be beaten by his step father upon his return.
Mr Spicer went to live with his maternal grandparents for about a year when he was in his early teens. He had at that time been diagnosed with attention deficit hyperactivity disorder. His parents told him that they did not want to deal with his "attention seeking behaviours" or with him "constantly getting into trouble at school". He was placed on medication. His behaviour thereafter was characterised by dysregulation, deficits in managing his impulsive behaviour and diminished social skills.
Mr Spicer did not experience cognitive difficulties at school and attained average grades. He became easily bored and found it difficult to sit still. He was good at sport but was prevented by his step father from engaging in such activities in order to work on the family farm.
Mr Spicer was often in trouble at school and received multiple suspensions. He was expelled on one occasion for trying physically to assault a teacher who he considered had slighted his mother. He left school as soon as he was legally able to do so.
He entered the concreting industry at the age of 16 and remained in it for 15 years thereafter. He has worked in warehousing, has a forklift driver's licence and has worked on dairy farms. Most recently he started his own scrap metal business.
Mr Spicer has a long history of poly-substance abuse that commenced when he was 16 years old. He then began consuming alcohol which rapidly escalated. He drank regularly to the point of intoxication. This continued for about five years. For the last ten years Mr Spicer has been consuming speed and ice. He attended the Drug Court program in 2008 without success. Mr Spicer's drug use ceased about 15 months ago whilst incarcerated.
I am satisfied on the balance of probabilities that the preceding summary accurately reflects Mr Spicer's history and personal circumstances as he related them to Ms Taylor.
Mr Spicer also told Ms Taylor, entirely inconsistently with my finding, that he had no knowledge that the deceased was in her bedroom when he set it alight. He described himself as a "follower" in the offending behaviour and sought to minimise his role in the commission of the offence. Mr Spicer told Ms Taylor that he was motivated to engage in the offending behaviour as his co-offender was a friend of his partner and that he had no knowledge that the deceased was present at the time. Ms Taylor said that Mr Spicer was unable to provide any further insight into his motivation to engage in the offending behaviour, even taking into account his statements that he did not intend to harm anybody. He continually repeated that he could not understand why he had done what he did.
Notwithstanding his minimisation and defensiveness, Ms Taylor reported that Mr Spicer claimed to experience remorse related to his actions. He said that he learnt of the deceased's death the following morning when watching the news. He described feeling "sick to the stomach" and "devastated and horrified" that his actions had resulted in this outcome. Mr Spicer discussed the impact of his behaviour with Ms Taylor on not only the deceased but also in terms of the impact upon her family and friends. Mr Spicer acknowledged the grief that they must be experiencing.
Ms Taylor considered that Mr Spicer would benefit from involvement in a program such as the Violent Offenders Therapeutic Program. Ms Taylor expressed the opinion that Mr Spicer had a limited awareness and understanding of his negative emotional states and that it was possible that long term treatment and rehabilitation, focusing upon these issues and the skills required to manage them, may improve his prospects of rehabilitation.

Remorse

As already noted in a different context, Mr Spicer did not give evidence at the sentencing proceedings. It is in these circumstances difficult to be satisfied that he has or has expressed any genuine remorse for his actions. Expressions such as feeling sick to the stomach or being devastated and horrified are literally appropriate but are devoid of relevant content when merely communicated to a medical practitioner unsupported by direct evidence before me and untested. Formulaic recitations of good words by Mr Spicer are unconvincing, particularly when associated with the maintenance of a simultaneous denial or minimisation of his role in the death of the deceased. That approach can helpfully be contrasted with the approach taken by Ms Proud in corresponding circumstances.
If Mr Spicer were truly remorseful, it rather confounds common understanding for him to have declined a perfect opportunity to express it in his own words in the presence of the deceased's parents at the sentencing hearing. It seems to me to be all the more difficult to understand when the expression of what is said to be a genuine and sincerely felt emotion is simultaneously likely to advance at least my understanding of how Mr Spicer has felt following the death of the deceased. I remain troubled when I am asked to assume favourably to an accused person that he is truly remorseful, or in simple words, truly sorry, for what he has done, when the closest I am taken to hearing it comes from a second hand report of what a medical professional has managed to elicit during a clinical examination. The giving of direct evidence of remorse can also help to illuminate the distinction between true remorse and self-pity. Usually only one of those emotions is relevant for sentencing purposes.

Mitigating factors

It was not suggested on Mr Spicer's behalf that he could point to any statutory mitigating factors and none was otherwise conceded by the Crown.

Aggravating factors

It is not in dispute that this offence was committed in company and in the home of the deceased. It was also the result of significant, albeit crude and unsophisticated, planning. Mr Spicer also has a criminal record which includes convictions for offences of violence: Mr Spicer has two convictions for assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900, which fall within the definition of serious personal violence offences for the purposes of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.

Objective seriousness

It was properly and uncontroversially conceded by counsel for Mr Spicer that this is an objectively serious offence of murder and that his conduct was associated with a high level of criminal culpability. I am however not satisfied, contrary to the Crown's submissions, that it falls into the worst category of case. I was not satisfied of that in sentencing Mr Spicer's co-offenders and I could not make such a finding in this case without offending the parity principle unless there were features upon the basis of which to distinguish Mr Spicer's conduct. The Crown urged upon me that Mr Spicer committed this crime for reward. However, that reward was offered and paid by Mr Rawlinson upon whom I did not impose a life sentence.
I note specifically with respect to Mr Spicer's criminal record that it may not be used to increase the objective seriousness of an offence but rather that "retribution, deterrence, and protection of society may indicate a more severe sentence is warranted": see R v Johnson [2004] NSWCCA 76; R v Shankley [2003] NSWCCA 253. In the present circumstances, however, it seems that Mr Spicer's previous convictions for assault were the result of circumstances that arguably diminish their seriousness by casting them into an otherwise explicable, although not excusable, context.
In forming my opinion that this crime is objectively very serious, I have specifically taken account of at least the two following matters.
First, the circumstances of the deceased's death and the manner in which she died. The Crown referred in the sentencing proceedings for Mr Spicer's co-accused to the fact that the deceased was incinerated. Such a description is on one view very emotionally loaded. Unfortunately, it is completely accurate. The deceased was confronted with what was an inferno that exploded in the quiet of the night in the home where she lived. It was unexpected and inescapable. The fact that the deceased was found such a short distance from her bed suggests quite strongly that she was quickly overcome by heat and smoke. She died alone, with no possible chance of escape from the blaze and no apparent prospect of survival even if she had. In the scheme of human understanding, it is difficult to contemplate a more frightening and excruciating way to die.
Secondly, the fire that led to the death of the deceased was planned even if the level of planning was not particularly sophisticated. Mr Spicer and his co-accused executed a scheme to ensure that the deceased was killed. Her murder involved the premeditated purchase, from more than one location, of items guaranteed to start a fire that could not easily be avoided and that was highly likely to be fatal. This was not a case of a fire started in the downstairs laundry or even in the upstairs sitting room that might, in either instance, conceivably have offered the deceased a chance to escape. Whatever dispute there may be about whether petrol was poured on the floor around the deceased's bed or thrown into the bedroom from the doorway, the unavoidable fact is that it was done deliberately. The deceased's night clothing retained traces of petrol. Ms Evans, and in that sense also Mr Spicer, were provided with keys to the house so that they could enter it with ease. Moreover, the deceased's death did not occur spontaneously or reactively or to the surprise of anyone other than the deceased.
I wish to make it plain that in referring either generally or specifically to the level of planning involved in the commission of this offence, both in the context of an assessment of its objective seriousness, as well as an aggravating factor, I have only taken it into account once in forming my view about the proper sentence to impose.

Special circumstances

No submissions were made to me about special circumstances. Even accepting that there will be a requirement for Mr Spicer to receive counselling or other related therapy or treatment upon his release, his likely parole period will be more than adequate to meet any such needs.

Deterrence

The gratuitous nature of this crime calls for unambiguous condemnation.
In whatever way this offence is described, it is clear that it involves the recruitment of Mr Spicer for a fee to engage in the commission of a violent assault upon a person in the sanctity of her home. Such conduct is inimical to the maintenance of a civilised society and is worthy of denunciation in the strongest terms. The sentence that I intend to impose is formulated to take account of the need to make it clear to anybody similarly disposed that punishment for such an offence ought as far as possible to reflect the community's undiluted disapprobation of such conduct.
As I said when sentencing Mr Spicer's co-offenders, I remain even now completely puzzled about why the deceased was killed. She did nothing to anyone that set her apart from any but the most saintly and pious among us. Nothing that was said about the deceased that inspired such hatred for her was true or sufficient to justify what befell her even if it were. No one should be left in any doubt that scurrilous gossip and meaningless banter can never justify the taking of another person's life. I consider that there is a need generally to deter the commission of such evil conduct as the circumstances of this case have revealed.

Future dangerousness and rehabilitation

Ms Taylor has noted that Mr Spicer continues to maintain both that he was unaware that the deceased was at home on the morning in question and that he was in any event a "follower" in the events that occurred. As the Crown quite fairly emphasises, both assertions are in clear conflict with the jury's verdict. Mr Spicer's continuing maintenance of this position does not provide me with any confidence that he has any realistic insight into or appreciation of the gravity of his conduct. If one accepts the somewhat blunt and cumbersome proposition that an acceptance by an offender that he has committed the offence of which he has been convicted is a precondition to the commencement of any rehabilitative process, it seems that Mr Spicer has not yet started on that course.
I am unable to conclude that Mr Spicer has anything much beyond fair prospects of rehabilitation. It could hardly be said that the jury's verdict in this case was a surprise or that the evidence tendered by the Crown at trial was anything other than very strong indeed. I mention these things in order to emphasise that Mr Spicer's apparent refusal to acknowledge his guilt does not arise in circumstances where the maintenance of some arguably well-founded disappointment with the jury's decision might be expected.
I am wholly unable independently to predict Mr Spicer's future dangerousness beyond the extent to which it is a function of his prospects of rehabilitation.

Victim Impact Statements

I have specifically reconsidered and taken account of the victim impact statements from the parents of the deceased. I wish to make it clear, however, that I would have imposed the sentence that I intend to impose even if the statements from Mr and Mrs Foreman had not been provided to the court.

Police investigation

Before passing sentence upon Mr Spicer, I want to make some comments, as I did when sentencing his co-offenders, about the work of the police investigators whose unfortunate task it became to try to discover who may have killed the deceased. The evidence that was gathered for presentation to the jury in this case was nothing short of remarkable. The electronic surveillance and the recovery of vast amounts of phone and SMS records were critical to the just prosecution of these offences. Interviews were also conducted with many scores of witnesses from the community, as well as with many other technical experts, and a very comprehensive brief of evidence was assembled as a result. The deceased died on 27 October 2011. Arrests were made 55 days later. The criminal justice system is often inaccurately criticised as slow or unwieldy or even broken. These criticisms inevitably emanate from a limited or mischievous understanding of how that system operates. The efforts of the policemen and policewomen in this case cannot be faulted and are deserving of public recognition.

General

The deceased died in circumstances that were particularly callous and brutal. Her death was undeserved, avoidable and pointless. Mr Spicer permitted himself, for a pathetic reward, to become the instrument of others who bore her unexplained and inexplicable ill will. The deceased was obviously an energetic and talented lawyer, a loving daughter and a well-loved personality. The community in general and the deceased's relatives, friends and professional colleagues in particular, are the worse for her death.

Sentence

Mr Spicer was arrested on 21 December 2011. He has remained in custody referrable to this offence since then.
Bernard Justin Spicer, for the murder of Katherine Foreman you are convicted. I sentence you to a term of imprisonment of 32 years commencing on 21 December 2011 and expiring on 20 December 2043, with a non-parole period of 24 years expiring on 20 December 2035.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2015

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