R v Wallace

COUNSEL: D. Arnott SC - Crown S. Odgers SC - Responent

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/2208

SULLY J BELL J HOEBEN J

1 This is a Crown Appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The appeal concerns a sentence of imprisonment passed upon the respondent, Mr. Wallace, by James J of this Court on 8 September 2006. 2 Between 20 March 2006 and 5 April 2006 the respondent stood trial before James J and a jury of twelve upon an indictment charging that on or about 19 November 2003 he had murdered one Zoe Zou. The statutory maximum penalty upon conviction of the crime of murder is one of imprisonment for life. 3 On 20 March 2006 the respondent, having been duly indicted, pleaded not guilty of the crime of murder but guilty of the crime of manslaughter. The Crown refused to accept the plea to manslaughter and the respondent was tried, accordingly, on the charge of murder. 4 It was not controversial at the trial that the respondent had shot Zoe Zou; and that at the time of his having shot her he had the intent either to kill her or to inflict upon her grievous bodily harm. The only live issue at the trial was one of provocation. 5 The jury found the respondent guilty as charged. It must follow that the jury was satisfied that the Crown had eliminated any reasonable possibility of provocative conduct on the part of the victim such as would justify reducing the criminal culpability of the respondent from the level appropriate to the crime of murder to the level appropriate to the crime of manslaughter. 6 In due course James J sentenced the respondent to imprisonment for a non-parole period of 14 years with a balance of term of 6 years. It is this sentence against which the Crown now appeals upon the basis that the sentence is manifestly inadequate. The Relevant Facts 7 It is convenient to take these, at least initially, from the written submissions of the Crown. The relevant material will be found at paragraphs 5 through 19 of the written submissions: "5. The deceased lived in an apartment block called Quay Apartments. In 1998 she met Mr. Timothy Titheradge, a wealthy man who had business interests in Sydney and a rural property near Goulburn. Mr. Titheradge had for many years had a relationship with a woman, named Caroline, with whom he had children. 6. After the deceased and Mr. Titheradge met, a relationship developed between them which continued without interruption to the time of Ms Zou's death. Mr. Titheradge divided his time between living with Caroline in Goulburn and visiting Ms Zou in Sydney. Each of the women were aware of the existence of Mr. Titheradge's relationship with the other woman. 7. In October 2002 Ms Zou had a daughter to Mr. Titheradge. Just prior to the baby being born Mr. Titheradge married Caroline. Ms Zou was seriously distressed and upset by this. After the birth Mr. Titheradge entered into a financial arrangement with Ms Zou for the support of the baby. 8. In May or June 2002 the respondent met the deceased. Not long before the respondent met her, he had been released on parole after the expiration of the minimum term of a long prison sentence. He and the deceased developed some kind of relationship. The respondent claimed they had a sexual relationship but his Honour was unable to determine this issue. 9. The deceased was last seen alive (apart from by the respondent) by a neighbour at about 6.00 p.m. on 18 November 2003. The deceased failed to meet Mr. Titheradge at her apartment on the night of 19 November 2003. Shortly before midnight the deceased's baby was found in a pram near Manly Hospital. Mr. Titheradge identified the baby on 20 November 2003. 10. In the following days a still photograph from the closed circuit television film of 17 November 2003 of the deceased, the baby and the respondent was widely published by the media and was seen by the respondent. 11. On 25 November 2003 the respondent contacted a former prisoner he knew (referred to at the trial as MJS) and told him that "the triads had knocked her (the deceased)" and that he was frightened of "the Asians" who were pursuing him. He asked MJS to help him get rid of the deceased's car. MJS agreed to do so. The respondent and MJS incinerated the deceased's car. 12. The respondent eventually came forward and agreed to be interviewed by Police. On 28 November 2003 the respondent told police that he had last seen the deceased on 17 November and that on 18 November he had returned her car by parking it in a street near the apartment block with the key left in the exhaust pipe. 13. MJS saw reports in the media of the disappearance of the deceased and of her car. MJS contacted the Police and agreed to be fitted with a listening device to record conversations he would have with the respondent. An undercover Police officer using the pseudonym "Mark" also had conversations with the respondent which were recorded. 14. In the recorded conversations, which took place between 4 December 2003 and 25 March 2004, there was lengthy discussion about fabricating false alibis for the respondent. During these conversations Mark conveyed to the respondent pieces of information about the Police investigation that he said he obtained from careless or corrupt police officers. 15. On 25 March 2004 Police staged a mock arrest of MJS. This prompted the making of arrangements between the respondent and MJS to retrieve the body of the deceased and dispose of it out to sea. 16. On 29 March 2003 under police surveillance MJS travelled with the respondent to a location exactly 40 kilometres from the commencement of the Bells Line of Road. The respondent took tools and recovered out of the bushland the skeletal remains of the deceased. On the return journey towards Sydney, police arrested the respondent and MJS. 17. The skeletal remains were examined by forensic pathologist, Dr. Ellis. There was no issue at the trial that the remains were those of the deceased. Dr. Ellis noted a round hole at the back of the skull which he considered was an entry wound from a gunshot which had been the cause of death and a depressed fracture on one side of the skull which Dr. Ellis considered had been caused by another bullet glancing the skull. He could not determine which of the two shots was fired first. 18. His Honour found that the shot that killed the deceased was fired with the intent on the part of the respondent to kill the deceased. The respondent then concealed her body in dense bushland and noted the location. 19. At the trial the respondent gave evidence of the circumstances of the killing. His Honour did not accept the respondent's version of events due to the respondent's general lack of credibility and the implausibility of the version he gave."

The Crown Submissions 8 Two essential propositions are advanced by the Crown in support of the appeal. They are:

[1] that James J erred in his Honour's finding that the respondent's crime was properly to be assessed as in the mid-range of objective seriousness for the purposes of the standard non-parole period of imprisonment for 20 years as provided by sections 54A and 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) ; and

[2] that his Honour erred in his approach to the application in the instant case of section 21A of that Act.

The Relevant Reasoning of James J 9 The remarks on sentence provide a careful, thorough and detailed examination of the relevant facts; and both express and explain completely clear findings as to relevant matters of fact. It is not necessary for present purposes to canvass the entirety of that material. It will suffice to take as a starting point the observations made by his Honour in paragraphs 48 and 80 of the remarks on sentence. Those paragraphs state: "48. The skeletal remains of Zoe Zou and the evidence of Dr. Ellis clearly establish that Zoe Zou was killed by being shot with a projectile which entered the back of her head. I find that this shot was fired with an intent on the part of the prisoner to kill Zoe Zou. Another shot was fired which glanced past Zoe Zou's skull. Dr. Ellis could not determine which of the two shots was fired first. After killing Zoe Zou, the prisoner concealed her body in dense bushland and precisely noted the location of the spot. I will refer to the facts that I have just stated as 'the bare facts of the killing'. ………………………………………………………………. 80. The conclusion I have reached about the objective facts of the killing is that I am left with no more than what I have described as the bare facts of the killing." 10 Those findings and conclusions, read fairly in the context of which they form a part, are in my respectful opinion, clearly and persuasively reasoned. I see no basis upon which this Court would be entitled now to conclude that those findings and conclusions were not reasonably open to his Honour. 11 His Honour, having arrived at those factual conclusions, was bound then to proceed in the way explained by this Court, (Spigelman CJ, Wood CJ at CL and Simpson J), in R v Way (2004) 60 NSWLR 168 at 191, 192. The relevant exposition of principle is: "117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?". 118 That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). 119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. 120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Crimes (Sentencing Procedure) Act 1999. 122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount. 123 The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range. 124 The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45], cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect." 12 The factor which is described at paragraph 118(i) of the decision in Way was resolved by his Honour as follows: "110. It seems to me that the prisoner's offence, on the limited facts the state of the evidence has permitted me to find, is approximately in the middle of the range of objective seriousness for offences of murder."

In my opinion, that conclusion was amply open to his Honour. 13 The next relevant step in the reasoning of James J was to consider the matters to which reference is made in paragraph 118(ii) of the judgment in Way. The relevant material is found in paragraphs 94 through 103 of the remarks on sentence: " Section 21A of the Crimes (Sentencing Procedure) Act 94. Of the factors set out in subsection (2) of s21A of the Crimes (Sentencing Procedure) Act , most of those which are present are either elements of, or necessarily inherent in, a crime of murder and do not operate as aggravating factors. The offence was committed while the prisoner was on parole. The only offences of which the prisoner has previously been convicted are the drug offences I have already referred to, which are offences of a different type from the present offence, and I do not regard them as an aggravating factor. 95 As to paragraph (h) of s21A(2), Zoe Zou was of Asian origin but there is nothing to suggest that the offence was motivated by hatred for or prejudice against Asians. 96 As to paragraph (l) Zoe Zou was a female but she was not vulnerable within paragraph (l). 97 Of the mitigating factors set out in subsection (3) of s21A, the only factors which I am satisfied are present are that the prisoner, if only because of his age, is unlikely to re-offend and that he gave a limited degree of assistance to law enforcement authorities by his plea of guilty to manslaughter. I have declined to find that the offence was planned but nor am I able to find that the offence was not planned. 98 It was submitted by counsel for the prisoner that I should find that the prisoner has shown contrition by pleading guilty to manslaughter and by expressing contrition in his evidence at the trial. I do not consider that I should find that the prisoner has shown any contrition. Numerous things that he said during the recorded conversations between January and March 2004 are inconsistent with the prisoner experiencing any contrition. 99 The paragraphs of subsections (2) and (3) of s21A of the Crimes (Sentencing Procedure) Act do not exhaustively state all of the factors which it may be necessary to take into account in sentencing an offender. The concluding words of section 21A(1) provide that other matters may be taken into account which are required or permitted to be taken into account under any Act of Parliament or any rule of law. Protective Custody 100 A factor not expressly mentioned in s21A(3), which counsel for the prisoner submitted and counsel for the Crown accepted, that I have to take into account in mitigation in sentencing the prisoner is that he has already served and will continue to serve his sentence in conditions of custody which are more onerous, and much more onerous, than the conditions of custody to which prisoners in the general prison population are subject. I have already referred to the prisoner's classifications and to the prisoner's conditions of custody and to the continuous risk of harassment and physical injury to which the prisoner is subject. 101 In a number of recent cases the Court of Criminal Appeal has drawn attention to the difficulty of predicting in what conditions of custody a prisoner will serve his sentence and to the existence within the Correctional System of different regimes of custody, all of which are described as protective custody but some of which are in fact fairly benign. 102 However, in the present case, a prediction can be confidently made that the prisoner will serve the whole of his sentence in conditions of custody which are much harsher than those for prisoners in the general prison population. The conditions in which the prisoner has already served approximately the first two and a half years of his sentence assist in making such a prediction and demonstrate that the part of the sentence already served should be regarded as having been equivalent to a longer period served in more usual conditions of custody." 14 His Honour, having considered the matters to which reference is made in paragraph 118(i) and (ii) of Way, had then to ask the question to which reference is made in paragraph 117 of that judgment: that is to say, the question: "Are there reasons for not imposing the standard non-parole period?". His Honour, if minded to answer that question affirmatively, was required by the statute itself to explain what such reasons were: section 54 B(4). This his Honour did, as follows, in paragraphs 111 and 112 of the remarks on sentence: "111 I have, however, concluded that I should set a non-parole period that is shorter than the standard non-parole period. My reasons for setting a shorter non-parole period include the factors within s21A(3) of the Crimes (Sentencing Procedure) Act which I have found but principally the much more onerous than usual conditions of custody in which the prisoner has commenced serving and will continue to serve his sentence. 112 Under s54B(3) of the Crimes (Sentencing Procedure) Act the reasons for which a sentencing court may set a non-parole period that is longer or shorter than the standard non-parole period are limited to the reasons referred to in s21A of the Act. Although the conditions of custody in which the prisoner is likely to serve a sentence are not expressly referred to in s21A, they are, in my opinion, capable of being a reason "referred to" in s21A, as falling within the concluding words of subsection (1) of s21A as a matter "required or permitted to be taken into account under any rule of law." 15 The present appeal puts in issue the adequacy of that reasoning. In that connection I would make the following observations:

[1] As his Honour correctly points out in paragraph 94 of the remarks on sentence, the murder committed by the respondent was committed at a time when he was at liberty on parole. It is true, as his Honour points out, that the offences in connection with which the respondent was thus at liberty were not other offences of murder. They were, however, by no means insignificant offences.

In July 1990 the respondent was convicted of three offences of possession of prohibited imports. The prohibited imports were, in all three cases, drugs which the respondent had stolen from a drug registry of the Australian Federal Police and at a time when he himself was an officer of the Australian Federal Police. Three concurrent sentences of imprisonment were passed upon the respondent in respect of those offences. The third in sequence, and the longest of them, was a sentence of imprisonment for a minimum term of 12 years commencing on 26 September 1989; with an additional term of 4 years commencing on 26 September 2001.

There are numerous, and long-standing, decisions of this Court holding in the clearest terms that the commission of an offence while the offender is on any form of conditional liberty is an aggravating feature of that offence. I am content to accept for the purposes of deciding the present appeal that such aggravation "…….. will be more severe in circumstances where a similar offence is committed while a person in on conditional liberty" : per McClellan CJ at CL, (James and Buddin JJ concurring), in Chaplin v The Queen (2006) 160 A Crim R 85 at paragraph 27. It does not seem to me to follow that it is sound in principle to say that the culpability of an offence is not aggravated by the consideration that it has been committed while the offender was on conditional liberty of whatsoever kind, simply because it happens that the antecedent offences are different in kind from the later offence for which sentence is to be passed. In my view the correct principle is, simply, that a person who is released to parole is not so granted conditional liberty upon the basis that he will not commit in the future similar offences to the offences in respect of which he is being admitted to parole. It is a condition of parole that the parolee will be of good behaviour, simply and comprehensively, while at liberty on parole. It is one thing to say that the nature of the later offence, when compared with the nature of the antecedent offence, might justify a non-revocation of the parole. It does not at all follow, in my opinion, that the sentence properly to be passed in connection with the later offence should not take into account the aggravation of that offence by reason of its having been committed in breach of parole, the justification for such an approach being nothing more than that there is not a generic coincidence between the nature of the earlier offence and the nature of the later offence.

His Honour's conclusion in the present case that this respondent's offence of murder was not aggravated by reason of the fact that it had been committed while the respondent was on parole, is, with all respect to his Honour, wrong in principle.

[2] As to the matters canvassed in paragraph 97 of the remarks on sentence, it seems to me that the finding that the respondent is unlikely to re-offend, "if only because of his age" , is, with respect, ambiguous. The respondent was aged 55 years when he stood for sentence. The effect of the sentence passed upon him by his Honour is that the respondent will be aged some 67 years should he be released in fact to parole at the expiration of the non-parole period fixed by his Honour. If his Honour was meaning to convey the view that it was unlikely that a parolee aged 67 years was likely to re-offend by committing another murder, then I would not be prepared to hold that such a conclusion was not available to his Honour. I would be, however, a good deal more dubious about a broader proposition that the respondent, as a parolee aged 67 years, would be unlikely, only because of that age, to re-offend at all. I do not believe, however, that the present appeal either stands or falls upon so contained a point.

[3] I would make, with respect, much the same kind of comment about his Honour's observations in paragraph 97 about what his Honour describes a s the respondent's "…… limited degree of assistance to law enforcement authorities by his plea of guilty to manslaughter" . One of the mitigating factors for which provision is made in section 21A(3) of the Crimes (Sentencing Procedure) Act is: "(m) Assistance by the offender to law enforcement authorities (as provided by section 23)."

Section 23(1) of that Act speaks of "…… the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence". " I apprehend that upon a strict reading of those provisions there is room for the view that the plea of guilty to the offence of manslaughter which was offered on the first day of the trial offered some procedural assistance to the Crown; but I apprehend, also, that in the circumstances of this case any benefit to the respondent in terms of the application to his case of sections 54A and 54B, could only have been, on a correctly principled approach, minimal.

[4] As is apparent from what is said by his Honour in paragraphs 100 through 103 of the remarks on sentence, his Honour gave great weight to the factor of the harsh conditions in which the respondent can be expected to spend the whole of his time in prison. What those conditions of incarceration entail in real terms is sketched out clearly and compellingly in paragraphs 87 through 93 of the remarks on sentence: "87. In December 1993 the prisoner was attacked by other prisoners and placed in protective custody. 88. In May 1999 the prisoner was attacked by a group of Vietnamese prisoners, armed with a hammer and an iron bar. His skull was fractured and he was unconscious for some hours. In consequence of this attack the prisoner has suffered severe headaches, loss of balance, impaired memory, blurred vision and tinnitus in both ears. In 2002 he was medically assessed as having suffered a fifteen percent permanent impairment of brain function as a result of the attack. 89 The prisoner brought a claim for compensation for the injuries he had suffered in the 1999 assault and this claim was eventually settled in about March 2003 for a gross amount of approximately $300,000. 90 The prisoner was released from custody on parole, soon after completing serving the minimum term of his longest sentence. He was on parole at the time of committing the present offence. 91 Since he was taken into custody for the present offence the prisoner has been classified as a "non association" "extreme high security inmate". He is housed in a special management unit in a cell approximately sixteen feet by six feet with a small rear yard. Because of staff shortages, the door to the backyard is often locked. The prisoner's access to a telephone is limited to one call a day. All telephone calls are monitored and any outgoing mail is opened and read. All meals for a day are delivered within a period of six hours. The prisoner has no access to facilities for keeping or cooking food. The prisoner has no access to the prison oval, the prison gymnasium, TAFE courses or the general prison library. The prisoner has only limited access to the prison barber and prison medical staff. He has no opportunity for social interaction with other inmates. When he is escorted anywhere, he is required to wear orange overalls, double handcuffs and leg chains. 92 I accept that the prisoner is a former Federal Police officer and a former Corrective Services officer who worked for the Internal Investigation Unit, is the object of hatred by many prisoners and of dislike by many prison officers. He is at serious risk of harassment or physical injury, including serious physical injury. 93 In his report Dr. Giuffrida diagnosed the prisoner as having organic brain injury including frontal lobe syndrome, a personality disorder with a range of traits characteristic of both a borderline and an anti-social personality disorder and a number of physical symptoms associated with the serious head injury he suffered in 1999."

There is, in my opinion, no gainsaying that such conditions of imprisonment are in high degree pervasively harsh. James J put great store upon that consideration. In my respectful opinion his Honour was correct to do so. 16 I have come to the conclusion that, notwithstanding the criticisms which I have made of, in particular, various of the things said in paragraphs 94 and 97 of the remarks on sentence, it was well open to a sentencing Judge to find, as James J did, that a fair, sensible and practical application of the Way guidelines to the particular facts and circumstances of this respondent's case justified a departure from the passing of a sentence, the non-parole component of which was imprisonment for the standard non-parole period of 20 years. 17 James J gave effect to that proposition by reducing the respondent's non-parole period from the standard non-parole level of 20 years to 14 years. I am unpersuaded that such measure of departure from the standard non-parole period manifests appellable error. The killing itself must surely be regarded, especially given the findings of the jury on the only live issue at trial, as having been cold-blooded and, therefore, of high objective culpability. I think, however, that the respondent's conditions of imprisonment, as established by clear and convincing evidence placed before James J, are so harsh, and the threat of serious physical violence is so real and constant, that James J was entitled to take the view that a non-parole period of 14 years and a balance of term of 6 years, struck a sentencing balance which did not make the mistake, not infrequently encountered in public discourse on the topic of sentencing in criminal cases, of confusing vindication with vindictiveness.

Conclusions and Orders 18 As I have explained earlier herein, I am of the opinion that there are aspects of James J's reasoning which are, as I respectfully think, incorrect. I am, however, unpersuaded that the end result at which his Honour arrived manifests, in the sense and to the degree that the relevant law requires, appellable error. 19 In my opinion the Crown appeal should be dismissed. 20 BELL J: I agree with Sully J. 21 HOEBEN J: I agree with Sully J.

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.