Objective seriousness of the offence
- An important factor in determining the appropriate sentence is to make an assessment of the objective seriousness of the offence. [7] I consider the present offence to be one of grave seriousness. It involved repeated acts of extreme violence and ferocity causing catastrophic injury. The victim was completely vulnerable and must have endured great pain.
- I am satisfied beyond reasonable doubt that the offender intended to kill the victim. The fact that the sandwich press had been placed inside a pillowcase indicates a degree of planning. The only reasonable inference from the agreed facts is that when the Corrective Services officers first attended the cell the offender deliberately paused and pretended nothing was wrong so as to be able to complete his attack. Although the offender told police that the deceased had previously threatened him, it is clear from his subsequent description of his actions that the attack was unprovoked, the offender striking at a time when the victim was in his own bed. It was a cold-blooded, calculated killing.
- The Crown submitted that there are a number of aggravating factors. First, it was noted that the offence involved violence and the use of a weapon, being the sandwich press. [8] While that is true, those are common and often necessary features of the offence of murder. It may be doubted whether the use of a weapon of itself is to be regarded as an aggravating factor in the present case. However, it is relevant to have regard to the considerable degree of violence employed in the use of that weapon.
- The Crown also relied on the fact that the offender has a record of previous convictions for serious personal violence offences and is being sentenced for a further serious personal violence offence. [9] I will return to consider the significance of the offender's prior convictions.
- Finally, the Crown relied on the fact that the victim was vulnerable by virtue of his custodial status. [10] That is a significant factor in the present case. By reason of being locked in a cell with the offender and in the apparent absence of any warning or reason for the attack, Mr Townsend was completely vulnerable.
- The Crown submitted that in all the circumstances the offence warrants the imposition of the maximum penalty of imprisonment for life. Senior counsel for the offender accepted that it would be open to the Court to reach that conclusion.
- In determining that issue, the Court is bound by the provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999, which provides:
"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."
- Notwithstanding the apparently mandatory language of that section, there remains a discretion under s 21(1) of the Act to impose a lesser sentence where that is justified by the offender's subjective circumstances. [11] It is necessary to give separate consideration to the exercise of that discretion.
- The onus of satisfying the Court that a case falls within s 61(1) rests on the Crown. The standard of such proof is beyond reasonable doubt. [12] The section requires the Court to consider the community interest in four objectives: retribution, punishment, community protection and deterrence. The test looks to the combined effect of such of those four objectives as arise in the particular case. The fact that one or some of those objectives could be met through a lesser sentence does not mean that the Court cannot be satisfied in terms of the section.
- Putting aside for one moment the fact that the offender is already serving two life sentences, the community interest in protection is overwhelming in the present case. Before the 2009 offences, the offender had no criminal convictions. He has now murdered four people. He is of course not to be subjected to fresh punishment for the earlier offences but their circumstances can be taken into account to inform an assessment of the danger he poses to the community. [13]
- The calculation with which the three previous murders were carried out is described in my earlier judgment. The offender methodically killed first his wife, then each of his two grandchildren, then the family dog. When his daughter, a serving police officer, returned from night shift the following day he pretended nothing was wrong and made her a cup of tea before attacking her from behind with an axe as she discovered the dead bodies of her children, who had been neatly placed back in their beds after being killed by their grandfather. He later gave police a chillingly matter-of-fact account of those acts.
- The circumstances of the present offence bear an eerie similarity to those events. The offender's capacity to pretend nothing was wrong when Corrective Services officers attended the cell is reminiscent of his brazen deception of his daughter when she arrived home to the house in which he had killed her mother and her two children. He was planning to kill her as well; it was only her physical strength and her police training that saved her. She suffered horrific injuries requiring surgery.
- The offender's glib description of his conduct on each occasion shows not the least remorse and indeed indicates that he is incapable of remorse. He describes acts of murder as if he were explaining how to change a tyre. Of the deceased in the present case, the offender said, "I'm not, tell you the truth I'm not bloody sorry because he's an arsehole."
- The offender appears to acknowledge that he is dangerous. As already noted, he said he "works in cold rage" and that his mind "works without you even having to think about it", adding "so I reckon cold rage is bloody dangerous."
- The conclusion that, even as an old man, the offender poses an intractable threat of unprovoked, deadly violence is inescapable. There is no evidence to establish that his offending is caused or contributed to by any mental illness. On the contrary, Dr Sally McSwiggan, Consultant Neuropsychologist, expressed the opinion that his presentation in a recent evaluation suggests long-standing personality traits rather than any disorder of organic or psychiatric origin.
- As the offender is already serving two life sentences, it might be argued that the interest in protection of the community could not require the imposition of a third life sentence. In my view, however, the proper approach in accordance with the principles stated by the High Court in Pearce [14] is to make a discrete assessment of the offender's dangerousness at this point with a view to determining the appropriate, proportionate sentence for the present offence regardless of the fact that, for separate reasons, he is already ineligible for parole.
- In contending for the imposition of a life sentence, the Crown also relied on the community interest in retribution, punishment and general deterrence. It was common ground that specific deterrence has no effective role to play in sentencing this offender, for obvious reasons.
- As to retribution and punishment, the offence is certainly one of considerable seriousness, for the reasons already stated.
- As to general deterrence, the Crown relied on the remarks of Johnson J in the case of R v Kaewklom (No 3) [15] concerning offences committed in custody, as follows:
"Courts in this State have emphasised that considerations of deterrence are of particular importance in sentencing for offences of violence which occur within the prison system. It is the obligation of the courts to do their best to maintain proper order and discipline in prisons by punishing, with appropriate severity, violent crimes committed within the prison system. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending, and inmates serving their sentences are entitled to as much protection as the courts can afford them." (citations omitted)
- Those remarks have some force in the present case.
- I am satisfied beyond reasonable doubt that the interests identified in s 61(1) of the Crimes (Sentencing Procedure) Act, taken in combination, can only be met through the imposition of a life sentence in this case. It remains necessary to consider whether to exercise the discretion to reduce that penalty as allowed under s 21(1) of the Act.
- I am required in that context to have regard to the offender's guilty plea. [16] The plea was not entered at the earliest opportunity but that is explained by the fact that it was considered necessary by those advising the offender to investigate his fitness to plead. The plea has some utilitarian value. However, I do not think it indicates remorse. For the reasons already stated, I am satisfied that the offender is not the least bit remorseful.
- A plea of guilty does not preclude the conclusion that a life sentence should be imposed. It is recognised both under the statute and at common law that there may be cases in which the subjective circumstances will not displace the appropriateness of a life sentence. [17] In light of the seriousness of the present offence and the offender's complete lack of remorse, I have decided not to reduce the sentence on the strength of his guilty plea.
- The offender was 77 years of age when he committed the present offence and is now 78 years of age. A person of that age might ordinarily be considered unlikely to re-offend and to be entitled to some measure of leniency. However, the unusual circumstances of the present offence require rejection of that proposition in the case of this offender.
- As to his mental state, the offender relied on the report of Dr McSwiggan dated 10 March 2018. She expressed the opinion that he suffers from Mild Neurocognitive Disorder. However, she stated that the results of testing in 2008, 2009, 2015 and 2018 do not suggest a progressive decline suggestive of "an underlying subclinical dementing syndrome". Rather, Dr McSwiggan attributed the offender's manner of presentation to his personality, stating:
"In my professional opinion, Mr Walsh presented in a similar manner during the current evaluation as that reported in 2008 suggesting long standing Personality Traits rather than a disorder of organic or psychiatric origin."
- The offender also provided evidence of his physical condition. Before his arrest in 2008 he had a pronounced limp as a result of hip replacement surgery; he also had three titanium screws in his right shoulder due to separate surgery and is blind in one eye as a result of radiotherapy treatment also received before his arrest. He now also suffers from partial deafness. In 2016, he was himself the victim of a serious assault in prison as a result of which he suffered a traumatic pneumothorax, facial fractures and pain.
- The offender does not suggest that Justice Health is unable to manage any of those conditions. My consideration of the subjective case has not persuaded me to impose a lesser sentence than imprisonment for life. I am satisfied beyond reasonable doubt that a life sentence is the appropriate sentence in this case.
- John Walsh, please stand. For the murder of Frank Townsend, you are convicted and sentenced to imprisonment for life.