R v Terry Mark DONAI

Attorney General for NSW v Nationwide News Pty Limited Anor [2007] NSWCCA 307 Burrell v R [2007] NSWCCA 65 GAS v The Queen [2004] HCA 22; 217 CLR 198 Knight v R [2006] NSWCCA 292; 164 A Crim R 126 R v Benitez [2006] NSWCCA 21; 160 A Crim R 166 R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported) R v Donai (New South Wales Supreme Court, 2 October 2007, unreported) CASES CITED : R v Engert (1995) 84 A Crim R 67 R v Isaacs (1997) 41 NSWR 374 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v Mrish (Hidden J, Supreme Court of New South Wales, 13 December 1996, unreported) R v SLD [2003] NSWCCA 310; 58 NSWLR 589 R v Willard [2005] NSWSC 402 R v Yeo [2003] NSWSC 315 The Queen v Olbrich [1999] HCA 54; 199 CLR 270

PARTIES : Terry Mark Donai (Offender) The Crown

COUNSEL : C Jeffreys - Solicitor (Offender) M Cunneen SC (Crown)

SOLICITORS : C Jeffreys (Offender) Director of Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HER HONOUR: 1 On 8 January 2000, Pamela and William Weightman were murdered in their matrimonial home at 98 Abbington Crescent, Glen Alpine. At the time of their death their adopted son, David Weightman, resided with them. He was aged 20. He was the sole beneficiary under their will. The estate was substantial as the deceased had been owner/operators of a childcare centre at the time of their death and owned other unencumbered property including their home. David Weightman is currently serving a sentence of 28 years for the murder of his parents. 2 On 15 October 2007, Terry Mark Donai was convicted of their murder after trial. 3 It was not in dispute at the trial that after the Weightmans were killed their bodies were transported from their home in the family car - a Mitsubishi Magna - to Heathcote National Park where the car was pushed over an embankment running off Heathcote Road onto a fire service road in an attempt to simulate their death in a car accident. 4 What the offender put in issue at trial was his involvement in the murder of the Weightmans and his involvement in the disposition of their bodies after the murder in the manner described. The verdict of the jury resolves both issues against him. Despite the fact that no verdict was entered for the alternate charge of accessory after the fact to murder, I regard the offender's treatment of the body of the deceased as a relevant matter to be taken into account when assessing the objective seriousness of his offending (see R v Yeo [2003] NSWSC 315 at [36]).

5 On 9 January 2000, the Mitsubishi was found by a ranger 23 metres over the embankment in the National Park wedged against a tree. He saw William Weightman slumped in the footwell of the driver's seat and Pamela Weightman in the passenger seat. He believed them to be deceased and alerted the police. The police who attended the scene and removed the bodies from the car later reported to the Coroner that, in their view, there were no suspicious circumstances involved in the death of either the driver or the passenger. On post-mortem examination, the forensic pathologist, Dr Cala, confirmed that view and, on 30 May 2000, he reported to the Coroner that the cause of death of Mrs Weightman was the combined effects of blunt force injury and the aspiration of gastric contents, while the cause of death of Mr Weightman was the combined effects of positional asphyxia and the inhalation of gastric contents. In both cases death was said to be the result of a motor vehicle accident. No inquest was conducted. 6 On 20 January 2000, the deceased were cremated.

7 In June 2001, Strike Force Tenos was formed to reinvestigate the death of the Weightmans. It would seem that this was the direct result of rumours circulating in the community to the effect that David Weightman and the offender were involved in the death of his parents. It would also appear that the Weightmans' extended family, in particular Mrs Weightman's sister, Mrs Margaret Urwin, considered the explanation for their death in a car accident as unlikely in circumstances where Mr Weightman was a notoriously careful driver and where Mrs Weightman had, uncharacteristically, left her wedding ring at the house and the dishes unwashed before travelling at night with her husband. She gave evidence that their death did not "sit well" with her. 8 It was not until May 2003 almost two years later that police involved in Strike Force Tenos revisited the area where the Mitsubishi was found and re-examined the photographs taken at the time with a view to testing Dr Cala's opinion as to the cause of death. 9 The revised view of police after May 2003 was that the high probabilities favoured the Mitsubishi being manually manoeuvred off the embankment, as distinct from its descent being the result of the driver losing control of the vehicle on Heathcote Road. It was also their view that while some injury to the driver and passenger would be expected in the circumstances, because the point of impact was under low speed, it was improbable that a double fatality would have resulted. 10 Dr Cala's opinion as to cause of death was then re-examined by two forensic pathologists, Dr Allender and Dr Gall, each of whom came to the considered and independent view that Dr Cala was wrong. In summary, in their view, the cause of death in both cases was asphyxiation. The pattern of bruising and other injuries on the deceased (as reported upon by Dr Cala) was reported by the doctors as consistent with asphyxiating force being applied under pressure and with some resistance being exerted. This was particularly so in the case of Mr Weightman since his hyoid bone was fractured.

11 During the currency of the second police investigation, but before the revised forensic opinions were available, David Weightman was interviewed by police. He denied any involvement in his parents' death and denied making any statements attributing to him a desire that they be killed in order to secure access to his inheritance. 12 On 19 November 2002, as part of the same police investigation, the offender voluntarily participated in a record of interview with police. He denied any knowledge of, much less any complicity in, the murder of the Weightmans. 13 In light of the jury's verdict, there is no other conclusion open other than that in the answers he gave to questions asked of him in the interview, and in the information he volunteered to police, he was manipulative and duplicitous. I am satisfied that in that process he revealed himself to be a skilled and capable liar intent on concealing his guilt. He went so far as to express well-tempered indignation at being the subject of suspicion. The following extracts from the interview exemplify that conclusion: "Q. Do you know the names of the Weightmans? A. Ah, if you said it I'd know, I just can't remember now. Q. William? A. Yeah, I think that was the dad, yeah. Q. Pamela? A. Yeah, that's it. Q. Did you ever meet those two? A. Oh yeah, yeah. Q. When did you meet them? A. I met them, sort of like, Richard and I, we used to go over for a game of pool at Dave's place and, we were sort of like friends, his family were just beautiful people, fantastic, absolutely fantastic people. … Q. Could you just outline to me the conversation that you had with her surrounding his parents death? A. She said, Do you know Dave? I said, Yeah. She goes, Well, I heard that you and Dave killed them. I said, You've got to be joking. I said, His parents were just beautiful people. I mean, I cry if someone runs over a fuckin' blue tongue lizard, why would I kill a human. Q. What did you say to her at that time? A. I said, No way. Q. Right. A. Look my brother even knew, my brother and people in Campbelltown knew this a year before I did about these allegations, I mean it was pretty bloody devastating to find out all these people, all my friends that knew and I knew nothing.

Q. Did David ever discuss with you when you knew him about killing his parents? A. No, not at all. Q. What was the relationship like between David and his parents? A. What I could see fantastic, like a normal son and mother and father. Q. Was he close to his parents? A. Yeah. Q. Were his parents close to him? A. Yeah absolutely. Q. Did they provide for David well? A. Yeah, gave him everything he wanted. As far as I know." 14 When asked whether he wished to add anything at the conclusion of the interview he said the following: "A. Well, I just hope anything I said today can help you because um, things are a little bit suspicious, you know, it's not up to me to investigate the crime or anything like that, but things are suspicious. Q. Why, would you say that? A. Well, why are you here? Q. What's suspicious in your mind? A. The suspicion in my mind, Dave's got parents, they've got a business worth maybe in excess of $700,000, they've got a house in excess of half a million dollars, I mean, that could be a good reason to do something if he did do something, but that's your job to investigate and find out the circumstances." The answers given across the entire interview, together with the manner in which the offender conducted himself, are also material to the assessment I have been invited to make of the offender's mental state at the time of the murder. In my view, there is nothing in the interview that would suggest that the offender was giving other than careful and considered answers in a deliberate effort to positively mislead police. In particular, there is no indication of any of the clinical features of a psychiatric condition the subject of report by Dr Hampshire, in February 2003, some months later. The offender spoke of his work as a concreter, his responsibilities for the care of his son, his living arrangements at the time of the Weightmans' death (by what he described as a tragic accident) and that he associated with a select group of close friends. He told police that David Weightman was an acquaintance with whom he had no continuing connection. I will return to consider Dr Hampshire's report and its weight in the current proceedings later in this judgment. The evidence of Ms Byron, Ms Harrison and Ms Stoyles 15 Each of Ms Byrson, Ms Harrison and Ms Stoyles gave evidence at the offender's trial. Their evidence concerned observations of the offender before he was interviewed by police in November 2002. However, consistently with his attitude and demeanour at that time, there is nothing in their observations of him at an earlier point in time to suggest any psychiatric condition or mood disorder of the kind to which Dr Hampshire referred. Their independent observations of him reveal the offender as cynical, cool and calculated. 16 Ms Kaye Lea Byron was in a relationship with the offender from 1995 to approximately 1999. She understood that the offender and Weightman were friends and that the offender had done some work on the Weightmans' driveway before their death. Ms Byron recalled attending the Weightmans' funeral service and their wake with the offender. She was told that the Weightmans had been involved in a car accident. Some days after the funeral service she was taken by the offender, together with his son, to a location on Heathcote Road where the accident was said to have occurred. The offender told her that David Weightman had provided him with the precise location of the accident. Ms Byron recalled that at the crash site the offender searched for reasons as to how the car could have swerved off the road and ended up at the bottom of the embankment. He also made the observation that there were no skid marks on the road. 17 Ms Paula Harrison, who was a friend of Ms Byron's, was introduced to the offender at her café in Berridale. She gave evidence that in 2000 the offender visited her café with another adult man who she came to know as "David". She overheard a conversation they were having in relation to the death of the Weightmans. She recalled them saying that the Weightmans had been drugged and were killed by another vehicle. She also recalled the two of them discussing the couple's wealth in that they had lots of money and cars and owned a childcare centre. The offender also told her that David was giving him his late mother's car. Ms Harrison said that in this conversation the offender "had a smirk" and that the other man appeared to be expressing no signs of sympathy or remorse. There can be no doubt that the person "David" is David Weightman and that he and the offender were discussing the murder they had committed. 18 Ms Merilene Louise Stoyles was in a relationship with the offender between May 2000 and August 2000. She gave evidence in relation to various phone calls the offender made to David Weightman in an effort to recover money the offender told Ms Stoyles he had lent him so that he could help pay for his parents' funeral expenses. This was a blatant lie. It is clear from the evidence of the Urwins that they provided the money for the funeral expenses. The offender also approached Mr and Mrs Urwin for money on the pretext of having lent money to David Weightman to buy a motorbike that he was refusing to repay. I am satisfied that the money that the offender was pursuing David Weightman for, and the money he was seeking to extract from the Urwins, represented the payment that David Weightman had promised the offender in exchange for killing his parents.

19 On 1 February 2004, David Weightman confessed to Mrs Urwin that he had killed his parents. He named the offender as having participated in the murder with him. He confirmed this account to police and voluntarily participated in a record of interview the following day in which he detailed the circumstances in which he and the offender agreed that his parents would be murdered, the planning involved in achieving that objective, the method by which the murder was to be carried out and the means taken to conceal it. 20 In summary, he told police that the offender had proposed that his parents be killed (although he was by no means averse to the idea, being desirous of securing access to their estate) and that it was agreed that to facilitate their death by suffocation/asphyxiation he would first sedate them with tablets the offender would obtain for that purpose. He said that he made it clear to the offender that he did not want to perform any physical role in the killing. The use of the sedative was designed to both ensure that his parents would not suffer and that the offender would be able to asphyxiate his parents without his assistance. To this end, he told police, it was agreed that he would mix the sedative the offender would get for him in a cup of tea that he would offer to make for his parents on his arrival home on the evening designated for their killing and that the offender would soon thereafter enter the house and kill them. It was then agreed that his parents' death would be simulated by a car accident and plans were made, to that end, to move and dispose of the bodies. The offender was to be paid $17,000 for his assistance. 21 David Weightman participated in a "walk through" at his previous family home. The jury were made aware of this however the video recording of the "walk through" was not tendered in evidence. The Crown has not sought to tender it on sentence. David Weightman also took police to the area at Heathcote where he and the offender pushed his parents' car over the embankment. He confirmed to police that his parents were already deceased at that time. Only a portion of this video recording was tendered in the trial.

David Weightman's sentence proceedings 22 On 10 October 2005, David Weightman entered a plea of guilty to the murder of his parents. On 23 December 2005 he was sentenced by Hidden J to 28 years imprisonment with an effective non-parole period of 22 years. Although his Honour found that the murders were premeditated and committed for financial gain at a level of objective seriousness calling for condign punishment, his Honour discounted the sentence otherwise to be imposed by 30 per cent for the combined value of the plea of guilty and Weightman's assistance to the authorities. The assistance was constituted by Weightman admitting his own involvement in the death of his parents and agreeing to give evidence against this offender. His Honour also took into account Weightman's psychiatric condition as he presented at the time of sentence. Doctors Canaris and Allnut reported that the offender gave a history of polydrug abuse, and auditory and visual hallucinations from about the age of eighteen. Dr Canaris reported that the history was consistent with chronic schizophrenia. Dr Allnut was somewhat less specific in that he regarded Weightman as suffering from a chronic psychotic disorder such as schizophrenia or schizoaffective disorder. His Honour also accepted the Crown Prosecutor's concession that Weightman might have been in an early phase of the development of a mental illness at the time of the killings which took the case out of the category of murder calling for a life sentence pursuant to s 61(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). 23 David Weightman admitted in his evidence at the offender's trial that he had deliberately misled the physiatrists into accepting his false report of a history of psychotic episodes, and that he did so deliberately in an effort to reduce his sentence. Since the integrity of the doctors' diagnoses must necessarily be undermined as a consequence of Weightman's evidence, and, by necessary extension, that the leniency extended by his Honour on sentence was undeserved, nevertheless because of Weightman's plea of guilty, his assistance and prospects of rehabilitation as found by the sentencing judge, the principle of parity cannot have any legitimate application to the sentence of this offender. 24 On the application of the prosecuting authorities David Weightman's sentence proceeding and outcome were suppressed from publication. This was in order to allow the police to pursue an undercover operation, as part of Strike Force Tenos, with a view to having this offender reveal his complicity in the murder of the Weightmans on the pretext of being recruited as a member of an underworld gang who, he was led to believe, were a successful group of professional criminals, accomplished across a range of criminal activities including contract killing. I venture the view that this evidence-gathering technique was adopted because of concerns about David Weightman's evidence being uncorroborated given the passage of time since the killing, and where, because of the erroneous finding as to cause of death, any prospect of scientific evidence being collected from the crime scene had been lost.

The second arm of the police investigation 25 The arm of the second police investigation commenced in March 2004 and extended up until the date of the offender's arrest on 16 June 2006 when he revealed to the undercover operatives his involvement in the disposition of the bodies of Mr and Mrs Weightman after they had been killed, on his account, by David Weightman. 26 I described the technique employed by the undercover operation in R v Donai (New South Wales Supreme Court, 2 October 2007, unreported) in the following way: "…an undercover operative meets and befriends a suspect portraying himself (or herself) as an important member of a fictitious criminal organisation. The objective in so doing is to solicit the suspect's trust on the basis that once mutual trust was established the suspect would be introduced to the head of the organisation, the "Boss", as a suitable candidate for acceptance as a member of the criminal organisation with a view to being employed by it. "The technique" involves setting up a number of what are called 'criminal scenarios' calculated to allow the accused to prove that he or she is willing to commit criminal offences and can be trusted. The ultimate object of the strategy is to secure from the accused information about the crime of crimes he or she is suspected of having committed since 'the Boss' of the fictitious criminal organisation would demand absolute honesty and a frank revelation of past criminal conduct in exchange for membership of the organisation." To facilitate the execution of this "technique", between April 2004 and February 2006, police applied for and were granted several telephone interception warrants and five further listening device warrants. 27 Only a small part of the electronic material generated from the face-to-face and telephone contact between the offender and various undercover operatives over the course of the operation was tendered in evidence. In that evidence however the offender is made aware that the underworld "Boss" insists on being informed of all criminal conduct in which the offender has engaged in the past. This, he was told, was to ensure that there would be no unwanted or unmanageable police attention on him or his activities and as confirmation of his willingness and capacity to act criminally thus confirming his utility as a new recruit to the criminal organisation. I will have something more to say about this evidence later in this judgment since the offender's stated willingness in 2005 to kill again under contract is relevant to the criteria to be considered under s 61(1) of the Act.

The trial 28 On 17 September 2007, the offender pleaded not guilty to an indictment charging him with the murder of Pamela and William Weightman and, in the alternative, being an accessory after the fact to their murder. 29 On 15 October 2007, he was convicted by a jury of their murder. By their verdict, the jury must be taken to have rejected the offender's admission to the undercover operatives to being only an accessory after the fact to the murder of the Weightmans, and to have accepted David Weightman's evidence, to the criminal standard, that the offender was involved as a principal in their death together with being involved in the disposition of their bodies as part of the execution of their joint plan. 30 The offender did not give evidence at trial and has given no evidence in the sentence proceedings. He has at no time acknowledged his guilt or expressed any remorse.

The sentence proceedings 31 The sentence proceeding was originally listed for hearing on 30 November 2007. On that date it was adjourned as a result of an application by the New South Wales Commissioner of Police for leave to appeal against a judgment of the Court of Criminal Appeal confirming the correctness of an interlocutory ruling I had made in the course of the trial concerning the suppression of the evidence of the undercover operation to which I have earlier referred: see R v Donai (Supreme Court of New South Wales, Fullerton J, 2 October 2007, unreported); Attorney General for NSW v Nationwide News Pty Limited Anor [2007] NSWCCA 307. 32 The matter was re-listed for hearing on 29 February 2008. On that date Mr Flynn of counsel who had appeared at trial announced that his instructions had been withdrawn. The offender sought an adjournment to allow him to seek legal advice and to retain alternate lawyers. 33 On 14 March 2008, Mr Jeffreys appeared and sought a further adjournment to allow him time to familiarise himself with the evidence at trial and to confirm his instructions. The proceedings were adjourned for mention until 4 April 2008 and, on that date, I fixed the date for the sentence hearing as 16 May 2008. 34 On 4 April 2008, Mr Jeffreys informed me that detailed enquiries were to be made of the New South Wales Police Service in respect of a matter that would, or might, have a direct bearing on psychiatric evidence that was to be tendered before me on sentence. In the result there was no evidence forthcoming from the Police Service substantiating a complaint by the offender to having been sexually abused as a schoolboy. The matter was further adjourned to 23 April 2008. On that day the matter was again adjourned for mention until 1 May 2008 when I again confirmed 16 May 2008 as the date of the sentence hearing. 35 The evidence relied upon by the Crown on sentence consisted primarily of the evidence adduced at trial, in particular the evidence of David Weightman and the transcript of evidence of the undercover operation. The Crown also formally tendered the offender's criminal antecedents. I consider that in the circumstances they are irrelevant to this sentencing exercise. They relate to relatively minor matters in the scale of criminal offences relative to these offences. On the other hand, the offender does not receive the benefit of a prior unblemished criminal record, or prior good character, since he has admitted to undercover police that he had been involved in a range of criminal activities, albeit uncharged, over many years. 36 During the course of sentence proceedings Margaret Urwin and Alan Urwin read out victim impact statements that were also formally tendered. Mrs Urwin described her sister as an irreplaceable family member and her and her husband as valued citizens stolen from her. I am satisfied that this has occasioned her the deepest grief and has been productive of deep and enduring trauma which has shattered her family and caused a breakdown in her marriage. Her determination to salvage her faith in human kindness is a measure of her strength and her fortitude in the face of loss. On behalf of himself and his family, Mr Urwin, seeks emotional closure and asks this court to ensure that justice is done. This sentencing exercise is directed to imposing a sentence of imprisonment on this offender that will, in my assessment, meet what the community can and should expect from a system of justice that is as responsive to the community it serves as it is to the established principles of law that have developed to give consistency to its expression. I extend my sympathies to Mr and Mrs Urwin and their family. 37 Mr Jeffreys tendered the following material: (1) A report of Dr Hampshire dated 3 February 2003; (2) A report of Dr Hampshire dated 15 May 2008; (3) Four letters: (i) Neil Harrigan, Director of Centacare, to John Usher also a director of Centacare dated 21 July 1996; (ii) John Usher to Peter Donnan of the Catholic Education Office dated 23 August 1996; (iii) John Usher to Peter Donnan dated 15 January 1997; (iv) Anne Donai dated 16 July 2002. (4) A report of Dr Carne dated 27 November 2007; and (5) A statement of Rennie Georgia Kathleen employed by the NSW Police Services as Team Leader of the High Risk Records Repository and a statement of Senior Constable Sue-Anne Smith. 38 Dr Hampshire was not required to attend for cross-examination.

The facts upon which sentence is to be passed 39 In every case, whether after trial or after a plea of guilty has been entered, it is critical to the determination of an appropriate sentence that the sentencing judge finds the facts upon which sentence is to be passed and clearly identifies them so that the basis upon which sentence is passed is made manifest (see GAS v The Queen [2004] HCA 22; 217 CLR 198 at [30]). In some cases the facts are a matter of agreement between the parties or, after a jury verdict, the facts may be so patent from the evidence led at trial that the factual basis for sentence is not the subject of contest. 40 This case does not fall into either category. Therefore, in accordance with established principles, and consistently with the jury's verdict, I must set out my findings of the facts material to the sentencing exercise. I am mindful that the offender is to be given the benefit of any reasonable doubt I might have as to those facts (see R v Isaacs (1997) 41 NSWR 374). There can be no other category of case where the task of fact finding that falls to a sentencing judge has greater impact than one where the Crown submits that life sentences should be imposed. 41 Mr Jeffreys urged me to make factual findings that would serve to elevate the role that David Weightman played in the death of his parents. In particular, he submitted that I should not be satisfied beyond reasonable doubt that his client was the initiator or instigator of the plan to murder the Weightmans since David Weightman, according to the evidence, had been speaking freely of his interest in seeing his parents dead for some months prior to their ultimate demise, and some time prior to a close relationship developing with the offender. Mr Jeffreys submitted that David Weightman falsely attributed the role of instigator to this offender and that, consistently with the jury's verdict, it was open for me to find that the offender was merely present at the scene of the crime at Weightman's invitation and that he assisted him to kill for reward. In considering that question, Mr Jeffreys urged me to take into account David Weightman's conduct in his own sentence proceeding where he attracted undeserved leniency from a judge of this Court by his deliberate manipulation of the forensic process. 42 On the other hand, I am invited by the Crown to proceed to sentence on the basis that the evidence David Weightman gave at the trial was evidence upon which I could rely and that the offender was a person who took an opportunistic advantage of a misguided and vulnerable younger person in David Weightman in proposing and planning a murder for his own cynical financial ends. The Crown submitted that the chilling account given by David Weightman to the jury of his fervent wish to see his parents dead so that he could inherit their wealth and spend it without restriction (but that he was unable to kill them himself), coupled with his equally chilling desire that they should not suffer in the course of being murdered (or for one to survive the other), was ample evidence that he was honestly recounting the events leading up to the murder and the role the offender played in seeing the murder committed. The Crown submitted that I should find that David Weightman could never have committed the crime without the offender's willingness to do the killing and by offering his additional guarantees that it would be a success by planning the killing, providing the sedatives and styling the simulated car accident. 43 In circumstances where the offender has not given any account of his dealings with David Weightman leading up to the murder, much less any account of the role he was asked to play, and did in fact play, in the killing of David Weightman's parents, the only evidence bearing upon those particular matters is in the evidence of Weightman at trial. 44 I do not regard the fact that David Weightman had expressed a desire to others that his parents be killed as inconsistent with the account he gave of how it came to pass that the offender joined with him in bringing about that result. This is exemplified in the following extract. 45 David Weightman said that whilst on a trip with the offender to Jindabyne he had a conversation with the offender in relation to his parents' financial situation in the following terms: "Q. What did you say about to Terry about your parents? A. I said to Terry something about how they have got the preschool and they have got the two cars and the house. He was like, "Well, what happens if they die?" And I said, "Well, I get everything, being the only child". We sort of left it there. I mean, we sort of talked about it on the way back to Campbelltown, but it wasn't a major thing. It was a surface conversation. Q. When you say you talked about it on the way back to Campbelltown, what did you talk about? A. We talked about things like if they were to have died, not so much when we kill them, but if they were to have died, then what would you do with your share of the dosh, like what bike would you buy. Q. Who said that? A. It was Terry. Q. Can you remember the exact words he said in that context? A. I can't recall word for word. Q. Can you try to say, in the same words that he used as though you're Terry, what he said about the money and the bikes or what bike would you get? A. Sorry, yeah, it was brought up about a Hayabusa. Q. Would you kindly spell that? A. Gee, H-A-Y-A-B-U-Z-A. That's just a guess. But yeah, that was at the time the fastest bike in the world. It was a 1300. It does 340 kilometres. Yeah, it was the beez neez at the time. Q. What did Terry say about the Hayabusa? A. That he liked it. It is a big person's bike. I can certainly ride it, but, you know, my sort of frame, I am a little bit short, whereas his sort of frame would fit, and were just talking about that." 46 The evidence continued in the following manner: "Q. Mr Weightman, just returning to the conversation that you had with Terry Donai coming back up from Jindabyne after you stayed at his place, how did that conversation arise? Did you start it or did he? A. He started it. Q. Do you remember what he said? A. Yeah, it started with, "Oh, if your parents die, what would you get?" And my answer was, "Everything, being the only child". Q. And what did he say then? A. It was - it was just, I don't know, a bit of a look, and it was like, "Oh, so what have you got?" by me saying "Everything", that was a bit vague and I went into detail, "a business, the double-storey house in Glen Alpine, the two cars, the whole lot". Q. You said something about motorbikes or a motorbike, what was that? A. Yeah, well he said - he said, "What bike would I get?" I had my eye on the Ducati 996 - oh sorry, it was the Ducati 916 at the time. I mean they weren't cheap, they were about 25, 35,000. He started talking about the Hayabusa. It turned - it sort of went from there as in, "Oh, well, if something happened, if I took care of them, then, I would want payment of the Hayabusa". Q. Sorry who said that? A. Terry did." 47 David Weightman also gave evidence of talking to the offender on the same topic a couple of days before the murder. He said: "A. … "Yeah, I'll drug them and put them out, yeah"… Q. "I'll drug them" and? A. And like get rid of them, you know what I mean, like, I don't know exactly how, but he was saying that he'd drug them and I said - I said, "Okay". Well, that was - that was like the first step, by him saying, "I'll drug them"." 48 I am satisfied that despite David Weightman's obvious capacity to deceive doctors and the sentencing judge, his disclosure in the offender's trial that his intentions were to achieve selfish ends, with no apparent shame, is illustrative not of his capacity for showmanship or fine acting (as Mr Jeffreys submitted) but a demonstration of extraordinarily guile. It did nothing, however, in my view to diminish the force of his evidence implicating the offender. 49 I am satisfied, having regard to the evidence of David Weightman, that upon arrival at his parents' home at about 8:30pm on 8 January 2000, Weightman prepared two cups of tea surreptitiously adding a number of Serepax tablets. At this time the offender was outside the house effectively in hiding. The cup of tea that the co-offender made for his mother was either taken to her upstairs in the master bedroom where she was lying, or was given to her in the lounge room downstairs, which she then took upstairs. Weightman gave his father his cup of tea in the lounge room. He then went outside to where the offender was waiting to advise him of what he had done. I am satisfied that when the offender entered the house, leaving David Weightman outside, Pamela Weightman was lying on the bed in the master bedroom. The offender entered her bedroom and applied a pillow to her face under sustained pressure resulting in her asphyxiation. Given the toxicological report following autopsy she was unlikely to have been even mildly sedated when the offender fatally assaulted her. This is consistent with David Weightman's evidence that he heard "a bit of a scream" emanating from his parents' bedroom when he was outside the house. 50 Whilst it is not clear whether William Weightman heard his wife's scream, it would appear that he did not react to it. This may have been because of the sedative effect of the Serepax detected at post-mortem which was, in his case, within the therapeutic range. 51 I am satisfied that the offender then proceeded downstairs (leaving the deceased Pamela Weightman upstairs) to enlist David Weightman's assistance to kill his father since the method of killing proved more difficult than the offender had apparently hoped or expected. David Weightman gave the following account in his evidence at the offender's trial: "So I'm there having a cigarette and I've looked up and I've just heard a bit of a scream and next thing I know Terry comes downstairs, opens the door and he's all - he's all out of breath and he's sweating, I don't know, I - I guess you would say stinking like death, do you know what I mean? And he was like, "Gee, you know, that really took a lot out of me. I need a hand with your dad". And I went, "Oh shit" because - because I certainly didn't want to be involved and like I was - my heart was racing just because I heard my mum scream and that was the point I knew it had gone so far and I couldn't turn back from that, so…" 52 I am satisfied that the offender placed a pillow over William Weightman's face while David Weightman took hold of his father's legs and pinned him to the lounge. William Weightman struggled but was eventually subdued and asphyxiated. 53 Both men then carried the bodies of the deceased from the house to the garage where they were placed into the Mitsubishi. Pamela Weightman was placed in a seated position in the front passenger seat while William Weightman was placed across the backseat. The offender drove the car to the location off Heathcote Road where the bodies were to be left while David Weightman followed in his mother's white Hyundai coupe. 54 In the result, I am satisfied that the offender not only killed Pamela Weightman by his own hand and, together with David Weightman, killed her husband shortly thereafter, but that he performed a crucial role in transporting the deceased's bodies and positioning the body of William Weightman in the driver's foot well before the car was pushed over the embankment. I am satisfied that the offender and David Weightman then left the area together in the white coupe. There being no evidence to the contrary, I am satisfied they returned to the Weightman's home and had a beer before playing a game of pool.

Relevant principles 55 By reason of the fact that the offender was convicted of two counts of murder it is necessary for me to have regard to s 19A of the Crimes Act 1900 and ss 21 and 61 of the Crimes (Sentencing Procedure) Act. 56 Section 19A of the Crimes Act provides: "(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)." 57 Section 21 of the Crimes (Sentencing Procedure) Act provides: "(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. (2) If by any provision of an Act or statutory rule an offender is made liable to imprisonment for a specified term, a court may nevertheless impose a sentence of imprisonment for a lesser term." 58 Section 61 of that Act provides: "(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." 59 In Knight v R [2006] NSWCCA 292; 164 A Crim R 126, McClellan CJ at CL said the following 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] HCA 46; (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] HCA 14; (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] NSWCCA 19; (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." 60 The Crown submitted that it has discharged the burden of establishing that this case meets the criteria set out in s 61(1) of the Crimes (Sentencing Procedure) Act to the criminal standard: see The Queen v Olbrich [1999] HCA 54; 199 CLR 270. I acknowledge that, even were I satisfied that s 61(1) criteria have been met, I have a discretion pursuant to s 21(1) of the Act to impose a lesser sentence where an offender's subjective circumstances justify a lesser sentence than one of life imprisonment. 61 In R v Merritt [2004] NSWCCA 19; 59 NSWLR 557, Wood CJ at CL (Tobias JA and Hidden JA agreeing) held that the primary focus of s 61(1) is the extremity of the offender's culpability such that a sentence of life imprisonment is required to be imposed. If the culpability is so extreme that the community's interest in any combination of retribution, punishment, community protection and deterrence could only be met with the imposition of a life sentence then that sentence should be passed (subject only to the discretion to which I have referred). I also note that the absence of any one of the criteria is not determinative although it may make the conclusion that a life sentence is required more difficult. 62 In determining the extent of the offender's culpability in this case, in my view, each of the four statutory preconditions present some degree of extremity, although not to the same degree. The objective seriousness 63 The degree of criminality involved in the death of the Weightmans is, in my view, of a very high order. Two completely innocent people in loving union with each other and (in what they would have been forgiven for thinking was) a loving communion with their adopted son, were murdered cruelly and callously in their own home by the joint and concerted efforts of their son and this offender. This offender was a man who they had welcomed into their home as their son's friend and someone who they trusted sufficiently to employ to perform some home improvement work on their driveway in the week leading up to their death. He was paid for his work. It cannot be ignored for sentencing purposes that this offender not only killed once, with the responsibility for the death of Mrs Weightman literally fresh on his hands, before he killed without compunction a second time. The extent of this offender's blatant disregard for common decency and his patent disrespect for the integrity and sanctity of human life is breathtaking. It cannot be forgotten or underestimated for sentencing purposes that he agreed to kill two people for a sum of $17,000. I do not regard it as in anyway relevant that David Weightman did not ultimately pay the offender for the role he performed in killing his parents and disposing of their bodies notwithstanding his undertaking to do so. Whatever that may reveal about David Weightman, it does nothing to either aggravate the offender's culpability or mitigate it. It is simply one of the features of this case that is as disturbing as it is unfathomable. 64 That said, I am not satisfied that this case falls within the worst category of homicide or the most extreme case, although it falls very close to it. I am conscious in so saying that it is not simply because a worse case of contract killing can be envisaged but rather because this case, whilst premeditated and planned, was nevertheless unprofessional and, to an extent, amateurish. Were it not for the forensic ineptitude of some of the state officials who dealt with the deceased after their bodies were located on 9 January 2000, this offender (and his co-offender) would likely have been brought to justice much earlier. This would have at least saved the sustained pain and suffering that Mr and Mrs Urwin have suffered over the past eight and a half years, two people, who to their credit have maintained their resolve to see justice done. 65 It is clear that premeditation alone does not necessarily place a case in the worst category (see for example, R v Chetcuti, Court of Criminal Appeal, 24 December 1993, unreported, referred to in the case of Burrell v R [2007] NSWCCA 65 at [327]) neither for that matter neither does the fact that the motivation for killing was financial (see R v Willard [2005] NSWSC 402; R v Mrish, Hidden J, Supreme Court of New South Wales, 13 December 1996, unreported; and Chetcuti). In the case of Chetcuti for example, the sentencing judge was satisfied to the criminal standard that Mr Chetcuti abducted his ex-wife against her will, drove her to the Parramatta Lakes Reserve, hit her on the head several times with a heavy object intending to kill her and whilst she was unconscious but still alive placed three rocks weighing a total of about 11 kilograms inside her clothing to weigh her body down. He then put her weighted unconscious body in the water of an inlet at Parramatta Lakes. His motivation was not financial. His motivation was to prevent his ex-wife from pursuing an application against him in the Family Court which he feared might result in him losing some of his property. A determinate sentence was imposed. Although the case was decided, both at first instance and on appeal, prior to the passage of s 61(1) of the Act, it is nevertheless indicative of the fact that there are cases which are gross in the extreme in terms of the extent of premeditation and the motive behind the murder where the maximum penalty has not been imposed. I should acknowledge, however, as was noted by McClellan CJ at CL in Burrell that: "…there are other decisions of this Court which would point in a different direction. Contract killings have been found to fall in the worst category of case (see Cross , Grove J, unreported, 6 December 1996) where his Honour said that "a deliberate killing for payment would prima facie finds its place in the worst category of case with the potential for the imposition of the maximum penalty." Hunt CJ at CL in Kalejich (1997) 94 A Crim R 41 said that he agreed with this statement although recognising that there may be contract killings which in all of the circumstances would not attract the maximum penalty (at 52)." 66 The real question it seems to me is whether or not there is any basis for this offender being described as other than a killer under contract. I am satisfied that there is none. These offences were committed by the offender opportunistically and for money. Despite the fact that it was the deceased's son who was promoting the concept of killing his parents for their estate rather than this offender seeking him out or being engaged by him as a professional killer, I am satisfied that this offender proposed the method of killing and the means of its successful execution in the expectation that he would receive a reward and, as the evidence reveals, he took steps over many months after the death to extract what he regarded as due to him.

The evidence from the psychiatrist 67 In coming to a conclusion about the degree of objective criminality involved in the commission of an offence, the mental state of an offender is of relevance even where that mental state may not have been of the nature or of the degree that would have provided a defence at law. The appropriate principles to be applied have been defined in many cases. As McClellan CJ at CL observed in Knight at [40], mental illness may result in a sentence where less weight is given to specific or general deterrence (see R v Benitez [2006] NSWCCA 21; 160 A Crim R 166), it may also be relevant to a consideration of matters of retribution or the need for treatment outside the prison system (see R v Engert (1995) 84 A Crim R 67). In each case, however, the existence of a causal connection between the mental disorder and the commission of the offence is necessary. A mental illness may also be taken into account in appropriate cases where the mere fact of the imposition of a prison term may prove more onerous for a person suffering such an illness. 68 Mr Jeffreys submitted that, on the evidence in this case, I should be satisfied on the probabilities that at the time of the murder in January 2000 the offender was suffering from a permanent and underlying psychiatric condition which impaired his capacity for judgment, inclusive of his capacity to control his thoughts, feelings and behaviour. This was the opinion expressed by Dr Robert Hampshire in a report dated 15 May 2008, that is, almost eight and a half years after the offence. In that report doctor referred to an earlier report he prepared at the request of Marsdens Law Group in February 2003 in support of a civil claim for damages that the offender was considering bringing against the Catholic Education Department for breach of their duty to him as a schoolboy. 69 The 2008 report extracts the entirety of the 2003 report. It is relied upon by the doctor as basing his opinion as to the offender's current psychiatric condition and impaired capacities, a condition Dr Hampshire opines he suffered from at the time of what he describes as "the behaviours for which he is currently before the Courts". It is necessary then that I refer to that earlier report. 70 In February 2003, Dr Hampshire diagnosed the offender as suffering from a severe post traumatic stress disorder with secondary disorders all of which had their origins in his primary psychiatric condition. In the doctor's opinion, the disorder arose directly as a result of the offender being sexually abused whilst attending a Catholic school in Kingsgrove when he was 10 years of age. It is clear from the report that the offender reported to Dr Hampshire predatory behaviour by one of his teachers which involved him being sexually assaulted on a daily basis over a six-month period. It is also clear that it was not until conferring with Dr Hampshire in 2003 that he sought any clinical intervention. Indeed he made no complaint at all until 1996. He left the school in Kingsgrove and continued his schooling at Fort Street Primary School in Lewisham. His behaviour deteriorated to a point where a propensity for violence marked his schooling from that point and throughout his first year at Glebe High School. Halfway through his second year at High School he changed to St Mary's Cathedral School where although his behaviour improved he was unable to apply himself to his studies, finally leaving school in the middle of year nine. 71 The offender then goes on to report to Dr Hampshire being employed in the security industry and as a day labourer although various forms of antisocial behaviour continued to manifest themselves in the form of substance abuse and street fighting. He also reported various difficulties encountered in forming sustained sexual relationships and in his sexual performance generally. He reported that the sexual and physical abuse at the hands of his school master dominated his thinking patterns and, from around 30 years of age (2-3 years before the murder of the Weightmans), he was claiming daily flashbacks which manifested as panic attacks making him feel extremely anxious and fearful. He said they were occurring on a weekly basis although they had diminished in the years leading up to the preparation of the 2003 report. He also reported to doctor that around the age of 30 he was suffering a period of severe depression and that he recalls feeling suicidal and trying to overdose on pills. He said he lost his appetite, his libido and had an exacerbation of low levels of concentration and attention. Doctor also reported that his avoidance of friends and family was exacerbated by prolonged periods of disassociation including a global sense of fear that other people were out to get him, take advantage of him or use him. 72 In so far as his future intentions and perspectives were concerned in 2003, he told Dr Hampshire that he frequently isolated himself in the mountains, often on horseback or driving for hours to sit by a creek. He said, "I'm worried, but I just want a good future. Depends on how I tackle it. I must put my past behind me. I just can't focus". On clinical examination in 2003, doctor regarded his mood as depressed, paranoid, angry, sad and anxious. 73 Significantly of course, Dr Hampshire was not informed by the offender of the fact that he had murdered Mr and Mrs Weightman in January 2000 in perpetration of a plan by which he planned to benefit financially, or that he had been the subject of a police investigation after rumours surfaced suggestive of his involvement. 74 There is nothing in the 2003 report, in my view, that sheds any light at all on the offender's psychiatric state at the time of the murders such as to ameliorate the objective seriousness of his culpability for murder. While I have no basis for rejecting the offender's account to Dr Hampshire of having been sexually abused 25 years earlier, or concluding that he exaggerated ongoing psychiatric or psychological sequelae to mount a claim for damages, it cannot be overlooked that the offender has not attested to the truth of the matters reported to Dr Hampshire in the sentence proceedings, much less given any evidence enabling me to make an assessment of the impact of his past mistreatment on his conduct or state of mind at the time of the murders. 75 Dr Hampshire next saw the offender on 6 May 2008 almost 7 months after verdict. He was asked at that time (for entirely unexplained reasons) to examine him for the purpose of determining whether he had a defence under s 23A of the Crimes Act. Doctor offered the view that a defence was in fact available. He was apparently not told that a jury had convicted the offender in September 2007. Indeed it is not even clear from doctor's report that he was informed of the allegation that the offender had killed the Weightmans, much less the facts and circumstances of the killings as revealed by the evidence. 76 On clinical examination at the prison on 6 May 2008, Dr Hampshire found the offender as little changed from when he last saw him five years earlier. He described his mood as composed, insightful, somewhat introspective, brooding, resentful and sad, mood states which doctor seems to suggest arise as a result of his current situation. What "that situation" includes beyond being in custody, is not made clear. Doctor regards what he describes as the offender's pre-morbid personality structure such that, "the evidence surrounding the murder could have been viewed with more detail" were it known. Whatever Dr Hampshire might mean by those remarks, for my part, in the absence of Dr Hampshire being informed of the facts and circumstances surrounding the murder of Mr and Mrs Weightman, and, as importantly, the observed behaviour of the offender before the murder, at the time of the murder, and following the murder extending over some years, I am unable to give any weight to Dr Hampshire's diagnosis either in 2003 or in 2008 in the sentencing process. I do not regard either of his diagnoses as explaining or giving context to the offending for which the offender stands to be sentenced, or mitigating the level of culpability reflected in that offending. At no time does Dr Hampshire explain the basis for his opinion that the offender's capacity for judgment and self-control was impaired or how the post traumatic stress disorder, as the underlying psychiatric condition, had the effect of diminishing his culpability notwithstanding the fact that at the outset of the 2008 report he undertakes doing so. This is likely explained by the fact that either he was not informed of the circumstances in which the murders were committed and the role the offender played, or that he did not discuss those matters with the offender or, given the offender's continued silence, the offender refused to discuss these matters with the doctor much less acknowledge his guilt.

Risk to community and future dangerousness 77 While acknowledging the high level of criminal culpability in the conduct of the offender, Mr Jeffreys submitted that the sentencing criteria in s 61(1) of the Crimes (Sentencing Procedure) Act were not met and, further, that the sentencing objectives of retribution, punishment and deterrence could be satisfied by the imposition of a lengthy sentence but one which fell short of an imposition of a life sentence. Mr Jeffreys argued that this was particularly the case in circumstances where I would not be satisfied beyond reasonable doubt that the offender posed a continuing danger to the community such as to require its protection by his detention in custody for life. He submitted that this was so notwithstanding the fact that in 2005, in the course of the undercover operation, the offender admitted a willingness to kill again, albeit preferring that it be someone he didn't know and imposing the limitation that he would not kill a child. Mr Jeffreys asked me to find that the circumstances in which those remarks were made were such as to seriously undermine their reliability as an indicator of the offender's true future intentions or dangerousness. He submitted that the structure of the undercover operation and the offender's engagement with the undercover operatives over a lengthy period ran the risk of encouraging, if not soliciting, an overstatement of the offender's capacity to do what was asked of him because of the very substantial rewards that he was promised. He also submitted the reliability of what the offender agreed he would or might do should be viewed with some caution in circumstances where he was being psychologically manipulated by police officers and where the police officers were being advised by psychologists as to how to best position the offender to encourage him to make admissions against his interest. 78 I find the task of deciding whether or not the offender was speaking from a genuinely held belief as to his capacity, ability and willingness to kill people for money or whether he was simply endeavouring to match the expectations of others either out of vanity or out of some perceived sense of failure or inferiority, an immensely difficult one. Consistently with authority, however, I do not have to be satisfied of this matter beyond reasonable doubt (see R v SLD [2003] NSWCCA 310; 58 NSWLR 589). While I do not displace altogether the fact that this offender might pose a risk to the community by reason of him being apt to be persuaded to kill again, I am not satisfied that an assessment of that risk reaches that degree of potentiality that the protection of the community requires a life sentence. I am of the view that in circumstances where the Crown has not tendered any evidence that would enable me to assess the risk objectively (by, for example, a suitably trained professional being asked to view all the evidence inclusive of the offender's conversations with the undercover police and offer an opinion, if possible, as to his psychological profile) I have already noted that Dr Hampshire adds nothing by way of any elucidation on the question by reason of the fact that in his report he appears to have been told little, if anything, about the offender's behaviour in the course of the undercover operation that was mounted some years later. In these circumstances, any assessment by me as to future dangerousness would be speculative. I should add that it is not without some disquiet that I have come to that conclusion. However, having regard to the Crown's obligation to satisfy me that the community would be at risk were this man to be given anything other than a life sentence, and in circumstances where there is no expert evidence that compels that conclusion or indeed even informs that conclusion, I am unable to form a positive view that the risk is both real and measurable.

Retribution and deterrence 79 The community at large is however entitled to look to this Court for the imposition of a sentence which meets its legitimate desire for retribution when two of its community members have been senselessly and heartlessly killed as they approached the end of a productive and honest working life. It hardly needs emphasis from me that the community is entitled to have the sentence imposed on this offender produce the effect, if only in the abstract, of deterring others from taking life for the promise of financial reward.

Rehabilitation 80 In this case there is no evidence at all of this offender's attitude to his offending or his prospects of rehabilitation. For this reason, rehabilitation is not a matter I can take into account in his favour in the sentencing exercise. 81 In all the circumstances, having regard to the findings I have made as to the high degree of criminality involved in the offences for which the offender stands to be sentenced, offending which is very close to the worst case category of offences where a double murder was premeditated and motivated by greed, and having regard to the other criteria provided for in s 61(1) of the Act to which I have referred, I am satisfied that life sentences are required. I am further satisfied that there is no adequate basis, in the exercise of discretion, for any lesser sentence to be imposed. 82 Accordingly, on the two charges of murder, I sentence Terry Mark Donai to concurrent sentences of imprisonment for life, each to date from 16 June 2006. **********

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