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[2012] NSWSC 1573
Supreme Court of NSW
2012-12-14
Hulme J, Mr J, Mr P, Gregory J
Original judgment source is linked above.
Judgment 1HIS HONOUR: Rodney Boyd White was found guilty by a jury on 30 April 2012 at the end of a seven week trial at Lismore. The essence of the prosecution case against him was that he had robbed and killed a drug dealer. 2Mr White was tried jointly with Jessica Birkensleigh, who was found guilty of being an accessory before the fact to robbery, and Todd Serone, who was found guilty of being an accessory after the fact to murder. Another man, Ricky Humphries, had earlier pleaded guilty to manslaughter.
Facts 3Whilst the evidence in the trial was quite complex, the facts may be succinctly stated as follows. 4The deceased, Saaid ("Sid") Zaiter, was a person who White described in his evidence as "a big [drug] dealer on the Gold Coast". On Tuesday 16 December 2008 Mr White lured Mr Zaiter to Mr White's cabin in a caravan park at Chinderah on the pretext of doing a deal with some buyers from Melbourne. Within that cabin Mr White assaulted him to the point of rendering him unconscious (at least). He then bound him with cable ties and taped over his mouth and nose (this was a disputed issue but I am satisfied of it beyond reasonable doubt) so that if Mr Zaiter was not dead already, he soon would be. 5Mr White had duped a man named Orams into driving him to the caravan park and waiting for him in the car outside. He had also enlisted Mr Humphries to come along for support. When White returned to the car he was asked by Mr Orams how it went and he replied, "Not very good, I've just bashed the cunt and I think he's dead". Mr Orams asked, "What have you done with him?" to which White replied that he had tied him up and put tape around his mouth in case he woke up. He was not being completely truthful. 6In the ensuing hours White oversaw the transporting of Mr Zaiter's car to a clearing just off the Murwillumbah-Kyogle Road at Barkers Vale where packages of drugs were retrieved from it before it was torched. He also arranged for Serone and others to collect the body from the cabin at Chinderah. Ultimately the body was taken to Pinnacle lookout in the Border Ranges National Park where Mr Zaiter was unceremoniously stripped naked and thrown off into the bush. 7White later made jokes about the killing of Mr Zaiter. A witness said that he referred to Mr Zaiter as "the bushman" because that was where his body was, and he also referred to him as having reached "the pinnacle of his life". 8White, and his girlfriend, Jessica Birkensleigh, hurriedly left the Northern Rivers region and travelled to Victoria. There they established a new life for themselves which was funded by the proceeds of the drugs that had been stolen from Mr Zaiter. 9A long and difficult police investigation eventually established what had occurred. Mr Zaiter's remains, 12 bones, were located a year after the murder. They would probably never have been found but for the co-operation with the authorities of one of the people Mr White had enlisted to help recover the drugs from Mr Zaiter's car and then to dispose of the body. 10Mr White disputed significant aspects of the Crown case but did not deny that he had killed Mr Zaiter. His version was that he had acted in self-defence, a claim the jury obviously rejected. He also disputed the contention that he had stolen some three pounds of speed from Mr Zaiter. The jury found Ms Birkensleigh guilty of being an accessory before robbery, so they were clearly satisfied that the robbery by White of Mr Zaiter had been proved beyond reasonable doubt. Whether the quantity stolen was as much as three pounds seems to me to be unnecessary to resolve. It is clear enough that the quantity was not insignificant; police identified expenditure by White and Birkensleigh in Victoria amounting to some $130,000. I am satisfied that whatever was the quantity of drugs stolen from the deceased, it must have been substantial.
Seriousness of the offence 11A number of matters must be taken into account in assessing the seriousness of the murder. Although disputed, I am satisfied that there was an intention to kill Mr Zaiter. I have earlier indicated that I am satisfied that once he was rendered unconscious he was bound and gagged so that if he was not already dead he would suffocate. 12The acts causing death were either a severe bashing, or a combination of such a bashing and suffocation. Either way, there was considerable violence. 13The robbery and incapacitation of Mr Zaiter was obviously planned. Mr White and Ms Birkensleigh were in the process of packing up in order to move to Victoria. It was the Crown case that they planned to finance their new life there with drugs that would be stolen from Mr Zaiter. The plan involved luring Mr Zaiter to the caravan park. The cable ties used to bind Mr Zaiter's hands and feet, and the tape placed over his mouth and nose were purchased by Ms Birkensleigh at White's direction the previous afternoon. After Mr White left the cabin, he sent a text message to Ms Birkensleigh which included "job's done". 14Obviously Mr White had planned to inflict significant violence upon Mr Zaiter with a view to incapacitating him in order to enable the theft of his drugs. Mr White's motive was greed. But whether the killing of Mr Zaiter, as distinct from the robbery, was premeditated is problematic. Whilst I believe it might have been, I cannot make that finding upon the criminal standard of proof. 15The disposal of the body is an aggravating feature. First it was dumped in bushland beside a bush road and covered with sticks and branches. Later, White decided that he should do something more about it because his DNA might be on the body. Fuel was purchased before the body was retrieved and taken further into the wilderness. The body was then stripped naked and the tape and cable ties removed. Fuel was then poured over it, ostensibly to remove any traces of White's DNA. There was then the final indignity of the body being pushed over the cliff. 16This is a serious case of murder. The offender's moral culpability is at a high level. The fact that Mr Zaiter was a drug dealer does not diminish its seriousness and, I hasten to add, no-one has suggested otherwise. That fact does not reduce the significance of purposes of sentencing such as punishment, deterrence, denunciation and making the offender accountable for his actions.
The offender's personal circumstances 17Mr White was born in Melbourne in 1966, and so was aged 42 at the time of the offence and is now 46. 18He has a criminal record in three states which includes convictions for assaults, stealing, receiving stolen property, possession of drugs, burglary, being armed so as to cause fear, threatening violence by the discharge of firearms or by some other act, and having weapons without a licence. These convictions span the period 1994 to 2002. He has been sentenced to imprisonment before. It means that he is denied the leniency that might otherwise have been extended to a person without such a record. 19Mr White was seen on 5 December 2012 by Mr Tim Watson-Munro, psychologist, for the purpose of preparing a report for sentencing. Arranging for a psychological assessment for this purpose has been the cause of the delay in the sentence proceedings. 20The history taken by Mr Watson-Munro included that Mr White's parents separated when he was aged 4. He enjoys a positive relationship with two sisters as well as his mother. 21He suffered from dyslexia. His upbringing and education were disrupted by constant moves between his parents' and grandparents' homes throughout Victoria, New South Wales and Western Australia. He claimed to have attended a dozen different primary schools as well as eight secondary schools. He left during Year 8 at the age of 14. I have no doubt these events would have significantly impaired Mr White's psychological development in his important formative years. 22Mr White worked for ten years for his father in a security door manufacturing business operated on the Sunshine Coast of Queensland. He later operated his own business manufacturing and selling security doors and vertical blinds in Victoria and Queensland. There followed a period of working in a panel beating business at Southport before he opened chocolate shops in Byron Bay and Broadbeach. Those businesses closed in 2007 and he told Mr Watson-Munro that he then became involved in buying and selling motor bikes. There was no reference to involvement in drug dealing; something he admitted in the course of his evidence at the trial. 23The history set out by Mr Watson-Munro included that Mr White had experienced three serious relationships, the last ending in about 2007 or 2008. He has a number of children. 24There are reported to be a number of physical and psychological health issues. I do not intend to downplay their significance to his general well-being but none appear to me to be particularly relevant to the assessment of sentence. 25There is also a history of significant drug abuse involving amphetamines, cannabis, cocaine and "ice" (which I take to mean crystal methamphetamine). It is said that from the age of 10 Mr White found cannabis provided an escape. He is also said to have been admitted to psychiatric hospitals because of breakdowns caused by drug use. The history also includes abuse of alcohol and prescribed medications. 26The history includes matters such as him experiencing "ongoing stresses during the course of his last de facto relationship claiming that his partner was a stripper who was very paranoid and demanding of him. This added to his sense of anxiety and emotional isolation". There is also a claim that "Mr White became quite tearful stating that he has lost all which he has worked for during his life and that he feels additionally abandoned by the lack of support from former friends and family". 27I find matters such as this a little difficult to accept, given the strong impression I obtained during the course of the trial, and which I have recorded in sentencing others, that Mr White "was a devious and manipulative man": R v Serone [2012] NSWSC 1232 at [27]. I also recorded in sentencing Ricky Humphries that I had no doubt that Mr White was "a most belligerent, arrogant and manipulative person": R v Humphries [2012] NSWSC 419 at [41]. I made that assessment with the benefit of having observed him throughout the trial and having heard him giving evidence. I remain of that view. It is confirmed by a number of matters including the manner in which Mr White enlisted others to do his bidding in carrying out the robbery of Mr Zaiter, recovering the drugs from Mr Zaiter's car, and disposing of his body. Clearly, Mr White is a very self-centred individual. It was submitted that the insight provided by Mr Watson-Munro's report warranted some amelioration of my conclusion on this aspect. I have given consideration to that submission but, in the end, do not accept it. 28This view I have formed about Mr White's personality does not mean that any greater penalty should be imposed upon him. It does mean that I have considerable circumspection in accepting some of the claims advanced by him in the sentencing context. 29Mr Watson-Munro's report includes that Mr White has symptoms of depression and anxiety for a variety of reasons. It is said, "his depression has been galvanised by the fact that the deceased was one of his 'best mates'. He stated that he had been friends with him for 18 years and he feels a great deal for their family." I cannot accept that for the reasons just indicated. 30Then, Mr Watson-Munro refers to a self-reporting questionnaire he administered to Mr White which he said "confirms a diagnosis of Major Depression according to DSM-IV TR criteria". At the conclusion of the report he purports to diagnose not only Major Depression but also Anxiety Disorder and Polysubstance Abuse Disorder, now in remission. I have earlier noted that Mr Watson-Munro is a psychologist, not a psychiatrist. Moreover, there is no reference to him having administered any tests, as the authors of other psychological reports often tendered in sentence proceedings do, to confirm the validity of the offender's responses to the self-reporting questionnaire concerning depression.
Assessment of sentence 31I have earlier mentioned how serious the crime is the offender has committed. It must be taken into account in the overall assessment that the maximum penalty is one of imprisonment for life and that there is prescribed a standard non-parole period of 20 years. 32I have mentioned some of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1900 (NSW). Another of those purposes is rehabilitation. One would hope with the passage of a significant period of time and advancing age that rehabilitation would flow; but forecasting that, and the likelihood of re-offending, at this point is otherwise difficult. 33I am not persuaded that there is any genuine remorse. It seems to me that Mr White feels sorry for himself and what he has lost and that is the extent of it. 34Credit must be allowed for a degree of co-operation with the Crown in the manner in which the trial was conducted. The defence of Mr White was conducted upon the basis that he accepted responsibility for the death of Mr Zaiter and it was conceded in counsel's closing address to the jury that a verdict of guilty of manslaughter was well open. 35Mr White has been in custody since the date of his arrest on 4 September 2009 and so his sentence should be back-dated until then.
Victim impact statement 36A victim impact statement was provided by Ms Suzee Nader, the niece of the deceased, and it was read by Ms Joanne Nader. Once again I acknowledge the immense grief and loss that the family have suffered and I reiterate the condolences I have previously extended to Ms Nader and all who have been affected by the tragic brutality of the murder of their loved one.
Sentence 37Convicted. 38Sentenced to imprisonment comprising a non-parole period of 24 years and a balance of the term of the sentence of 8 years. 39The sentence will date from 4 September 2009. The offender will become eligible for release upon parole after the expiration of the non-parole period on 3 September 2033. The total term of the sentence will expire on 3 September 2041.
Amendments 15 December 2012 - Typo in sentence Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2012
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