R v Willetts and Gurney [2009] NSWSC 1201 | Case summary

SENTENCE 1 HER HONOUR : Both prisoners pleaded guilty on 27 October 2009 to murdering Frederick Doldissen at Broken Hill on 21 March 2008. The offence of murder carries a maximum penalty of life imprisonment and attracts a standard non parole period of 20 years. The prisoner Willetts also pleaded guilty to a charge of damaging property by fire pursuant to s 195(1)(b) of the Crimes Act 1900. That offence carries a maximum penalty of 10 years imprisonment. 2 The prisoners stand to be sentenced on the basis of an agreed statement of facts which is part of Exhibit A. The basis of the charge of murder, had the matter gone to trial, was that the prisoners were participating in a joint criminal enterprise, namely an assault upon the victim, with the intention to kill him or inflict serious injury. In the alternative, the Crown alleged that the prisoners were participating in a joint criminal enterprise, namely to rob the victim whilst armed and in company, and the victim was fatally wounded either immediately before, or at the time of, or immediately after the robbery. This latter basis is known in the law as felony murder. It does not require the formation of an intention to inflict serious bodily injury or to kill. 3 In the light of the circumstances surrounding the death of the victim, in particular the number, location and severity of the wounds on his body, I have reached the conclusion that the prisoners were engaged in a joint criminal enterprise to kill the victim, and that that agreement was formed immediately prior to the fatal assault upon him. The fact that the prisoners may have gone to the victim's premises with the intention of robbing him is not inconsistent with the subsequent formation of an agreement to kill. 4 The victim was known to both of the prisoners as a drug dealer in Broken Hill. On the night of 20 March 2008, Gurney went to the victim's home to purchase amphetamines. Having used the drugs, he returned to the victim's home and expressed his dissatisfaction with their quality. He asked the victim for the return of his money or the supply of better quality drugs. The victim refused. Gurney's hostility toward the victim was fuelled by this encounter and by Gurney's long association with the victim, whom he had known since Gurney's teenage years. Gurney claimed to have been sexually assaulted by the victim as a child. Later that night, Gurney communicated this to the prisoner Willetts, together with the allegation that the victim had sexually assaulted a childhood friend of Gurney's, who later committed suicide. 5 Gurney arrived at Willetts' home, which was a short distance from the victim's home, at about 10pm. The prisoner Willetts was living with Mr James and his wife. Also present at the home was Willetts' half brother Mr Harvey. Over the course of the evening and into the early hours of the next day, Willetts, Gurney and Harvey drank a quantity of bourbon. Gurney engaged in some sword play with a weapon belonging to Willetts. At some stage there was a discussion about obtaining amphetamines. The prisoners persuaded a female acquaintance to come to the house, picked them up and drive them to a Shell service station ATM so that Gurney could withdraw money to purchase drugs. Harvey left the premises shortly after 4:12 am with his wife. 6 Gurney ultimately withdrew $300 in cash from two ATMs in Broken Hill. The prisoners obtained $300 worth of amphetamines from their female acquaintance, who drove the prisoners to Willetts' home and left shortly before 4:30am. 7 Some time after 4:15 am and before 6:45 am on 21 March 2008, the prisoners walked to the victim's home and jointly inflicted a series of wounds upon him, one of which consisted of a stab wound to the left of centre of the lower chest area that passed through the anterior chest wall into the chest cavity, through the left ventricle of the heart, and into the posterior chest wall. This wound caused immediate and heavy blood loss, rendering it unlikely that the victim could have remained conscious for more than five minutes after the infliction of this wound. This wound and another wound which consisted of the amputation of the victim's penis were most likely inflicted using a knife. The remaining six wounds were slash type wounds inflicted by a weapon such as a sword. Those wounds were :- i) to the upper outer left arm which penetrated through to the underlying muscle, ii) to the left wrist, which penetrated through to the tendons and muscles, iii) to the outer aspect of the upper left thigh area, that extended through to underlying muscle, iv) to the outer aspect of the lower left leg, that penetrated to the underlying muscle and caused deep cuts in the fibula and tibia (including a fracture to the fibula). This wound was likely inflicted after the victim had fallen to the ground. v) to the right chest wall area, causing the lateral fourth, fifth and sixth ribs on the right-hand side to fracture. vi) to the outer aspect of the right lower leg that penetrated through to the femur. This wound was also inflicted after the victim had fallen to the ground. 8 In addition, there were a number of facial injuries, such as lacerations to the lower lip, an associated fracture of the teeth, and wounds to the left cheek area. The injuries to the face were consistent with the application of blunt force from a wooden axe handle, later found at Willetts' home. 9 It appears that the assault upon the victim commenced in the front yard of the premises. A quantity of the victim's blood was smeared on three motor vehicles in the front yard. A large pool of the victim's blood was also found on the front porch of the house. These factors point to the infliction of both the facial wounds and some of the slash type wounds before the victim was dragged into the house, where further wounding occurred, notably the fatal wound to the chest and at least wounds iv) and vi) above. The prisoner Gurney also severed the victim's penis, following a conversation with the victim wherein the victim made threats of a sexual nature to Gurney's family. The victim was left on the floor between the lounge room and the kitchen, while the prisoners searched the victim's home for valuable items. 10 After stealing a quantity of personal items and property, the prisoners left the scene. Shortly before 7am the fire brigade was called to the property which was well alight. The victim's badly burnt body was discovered by fire brigade officers in the kitchen/lounge room area. The Crown does not submit that the prisoners were responsible for the fire at the premises. 11 Both of the prisoners took bags containing the stolen property to Willetts' home. Thereafter, Willetts took steps to destroy and/or conceal the weapons used to murder the victim. He enlisted the help of a male acquaintance to dispose of the sword used in the assault, together with another sword belonging to Willetts. Both swords were cut into pieces, using a borrowed angle grinder, and buried in a concrete pour at a building site, where they were later recovered by police. The knife and the personal property stolen from the victim were burnt and buried by Willetts in a creek bed on the Silverton road. Willetts later took police to this location. These facts are the basis of the additional charge to which Willetts has pleaded guilty. 12 Following the arrest of both offenders, the victim's blood was matched to staining on items of clothing and footwear belonging to each of them. 13 As will be self-evident from this account, the objective gravity of the offence of murder is of a high order. It must be stated unequivocally at the outset that the taking of a human life remains the paramount consideration. As the victim impact statements of 3 of the victim's 11 children attest, the victim was a loved father who contributed in meaningful ways to the lives of his daughters. This offence deprived his children and grandchildren of an important family member. It is not to the point that the inherent worth of the victim's life is thought by the offenders, and perhaps by some in the community, to have been forfeited by his alleged conduct towards Mr Gurney and others. The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law's denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how abhorrent the behaviour of those sought to be summarily punished. 14 Given the contents of the reports prepared upon Mr Gurney's behalf (Exs 1, 2, 3 and 4), and his responsibility for severing the victim's penis, I accept that the sexual assaults upon him described in those reports probably took place. Whilst Mr Gurney never reported the assaults to anyone in authority, there is sufficient evidence of his disclosure of sexual assaults at the hands of the victim to a health professional in 2004 and 2005 to establish that fact to the requisite standard : see R v Swan [2006] NSWCCA 47. To the extent that this constituted a partial, perhaps primary, motive for the assault upon the victim, the other motive being dissatisfaction with the quality of the drugs supplied by the victim, it is relevant to Mr Gurney's moral culpability for the offence and to the question of personal deterrence. It may also be relevant to an assessment of his prospects of rehabilitation, but in my view it has no bearing on the need for general deterrence to be reflected in the sentence to be imposed. There is no suggestion that Mr Gurney's capacity to appreciate the consequences of his conduct was in any way impaired. 15 On any view, this was a sustained and vicious attack, committed while both of the prisoners were on conditional liberty. The victim, a 61 year old man, was met with the combined force of two armed men, each approximately half his age. The confrontation occurred in the early hours of the morning. It seems likely that the victim was called out from his home into the front yard. The sword was obviously struck repeatedly at the victim with considerable force, given the depth of the wounds. The fatal wound indicates that the knife was literally plunged into the victim's chest, at a time when the victim had already lost a considerable amount of blood and was obviously completely at the mercy of the offenders. As I have already noted, the brutality of the assault, and its continuation after the victim was prone on the floor, is eloquent of an intention to kill. The gratuitous cruelty meted out to the victim by genital disfigurement aggravates the gravity of the offence. 16 The prisoners went to the premises armed, suggesting that they anticipated the use of violence towards the victim, extending beyond the need to simply defend themselves if the victim should prove aggressive. I am of the view that they had resolved to punish the victim to some extent, together with extracting whatever "compensation" they could for the poor quality of the victim's drugs, but that the agreement to kill him did not crystallize until the assault commenced. Both of the prisoners were significantly disinhibited by their consumption of drugs and alcohol, but this in no way operates to excuse their actions. Once the assault began, they each gave full expression to their own anger, albeit the genesis of that anger was different in each case. For these reasons, I would not be prepared to find that the murder was premeditated. Rather, it was a spontaneous understanding between the prisoners that the victim should die for the wrongs they believed he had committed. 17 The Crown submits that the objective features of the offence and those subjective features that are causally connected to the commission of the offence, namely a diagnosis in Mr Gurney's case of post traumatic stress disorder arising from sexual abuse as a child and the lesser role played by Mr Willetts in the infliction of the wounds upon the victim, place this offence in the high range of objective gravity, close to a worst case. The submission from the prisoners' counsel is that the objective gravity of the offence is no higher than mid range. My assessment of the offence is that it falls between those two positions, that is, markedly above the mid range for offences of this type, although not approaching the worst case. Without the contribution of Mr Gurney's psychological condition to the commission of the offence, to which I shall return, and the relatively spontaneous nature of the offence, I would agree with the Crown's submission. Mr Willetts had no such personal motive, but it is accepted that he did not engage in the mutilation of the victim's genitalia. 18 Given this assessment and the prisoners' pleas of guilty, the standard non parole period, whilst remaining a guidepost or check for the purposes of determining the non parole period to be imposed, ought not diminish the significance of the maximum penalty in this case. 19 I would assess the objective gravity of the offence under s 192 of the Crimes Act as relatively low. It was committed by Mr Willetts as part of his attempts to destroy the evidence of the principal offence. In that regard, it forms part of the objective circumstances surrounding the murder. The Crown does not submit that any additional penalty is warranted for this offence. 20 The extent of the discount to be afforded to the prisoners for the utilitarian value of their pleas of guilty is a matter of some controversy. It may be accepted that the timing of the plea and the complexity of the case are the paramount considerations, but both of the prisoners claimed that there were cogent reasons for the failure to enter pleas at the earliest opportunity, that is, at or immediately after committal. 21 In Mr Gurney's case, it is said that he had always indicated that a plea of guilty would be entered and that he would provide assistance to the Crown, but whether the plea would be to manslaughter, on the grounds of substantial impairment, or to murder was an issue he could not resolve until all the psychiatric reports were received. Thus, he confirmed a plea of guilty to murder and the provision of assistance on 2 October 2009. It is also submitted that this communication in open court exercised some indeterminate influence over Mr Willetts' decision to change his plea of not guilty, entered on 4 August 2009, to one of guilty of murder. Mr Willetts' change of heart was foreshadowed on 9 October 2009. 22 In Mr Willetts' case, it is said that his solicitors were refused legal aid for the purposes of briefing from the private bar on the basis that a public defender was briefed in the matter. This appears in a letter of 9 September 2009. However, on 23 September 2009 the Public Defender informed Mr Willetts' solicitor that a brief in the matter could not be accepted. It was only then that Mr Clarke, who now represents Mr Willetts, was briefed to appear. In those circumstances, it is submitted that Mr Willetts was compromised in his ability to enter a plea of guilty at any earlier time. That said, Mr Willetts has been represented by the same firm of solicitors since his committal. 23 It is often impossible for the Court to draw reliable conclusions with respect to the reasons for the entry of a plea of guilty at a particular time. In some cases it may be purely speculative, in others there may be evidence upon which a conclusion may be based. The submissions by the prisoners on this issue overlook the fact that until the Court is assured of a plea of guilty, the Crown must proceed on the basis that the matter will go to trial. That necessarily involves the expenditure of public monies and the retention of a lengthy trial date at a remote sittings. That is why the emphasis in the nomination of a discount lies on the fact of the plea and when it occurs relative to the start of the trial. That is the only measure that allows the Court to determine to what extent the plea has saved the community the expense and inconvenience of a trial. 24 In this case, the utilitarian value of the pleas of guilty is more than token. The pleas were communicated to the Court and to the Crown sufficiently in advance of the trial date to allow witnesses to be called off and other resources to be saved. The trial was likely to be of 4 to 6 weeks duration, given that the Crown case depended to some extent upon a quantity of forensic evidence. In these circumstances, I would discount the sentence to be imposed upon Mr Willetts by 15%. 25 Mr Gurney stands in a somewhat different position, in so far as he offered to provide assistance to the Crown and his willingness to co-operate with the authorities prompted to some extent the change of plea by Mr Willetts. The Crown maintains that Mr Gurney's interview with police on 16 October 2009 would have been of limited assistance in the trial against Mr Willetts, and that Mr Willetts had already made admissions as to his involvement in the offence. Nonetheless, Mr Gurney is entitled to some recognition for that offer of assistance. In his case, I would discount the sentence to be imposed by an aggregate discount of 20%. Any greater discount would, in my opinion, result in a sentence that is disproportionate to the gravity of the offence. 26 I turn to the subjective features of each of the offenders. Before doing so, I note that neither prisoner expressed genuine remorse, beyond statements to others that suggest regret for the consequences of their actions, rather than contrition. 27 The prisoner Gurney is presently 29 years of age. He was born in Broken Hill and lived with his parents and older brother in a supportive family environment, completing secondary school to year 10 and then completing a four-year TAFE course whilst apprenticed as a diesel mechanic with the RTA. When he left that employment he was abusing illicit drugs, principally cannabis and amphetamines, the latter intravenously from the age of 18. He formed a relationship with a woman who overdosed, which prompted the prisoner's transfer to Melbourne where he lived with his brother and worked for Telstra. He formed another relationship in Melbourne. When he returned to Broken Hill, his then partner and their child, now 5, went with him. He had a number of jobs repairing machinery. His drug abuse continued to escalate to a point where he attended a detox centre in Adelaide. The prisoner appeared to develop psychotic symptoms, which resulted in his admission to Glenside Psychiatric Hospital in that city. 28 Unsurprisingly, the prisoner's drug abuse coupled with excessive consumption of alcohol resulted in sleeping difficulties. A benzodiazepine was prescribed and added to the prisoner's cocktail of drugs. Ultimately, the prisoner's waking and sleeping moments were almost entirely drug regulated. The memories of sexual abuse, both by the victim and other males, contributed to a heightened anxiety around adult males. Since entering prison and ceasing his drug abuse, the prisoner's health has improved, both mentally and physically. 29 Dr Quadrio made a number of psychiatric diagnoses, including chronic/complex post-traumatic stress disorder, drug-related psychotic episodes, a personality disorder of mixed type, poly substance abuse/dependence and hypoactive sexual disorder/post-traumatic disorder. The post-traumatic stress disorder is thought to be an outcome of childhood sexual abuse, which leads directly to personality disorganisation and associated substance abuse. Dr Quadrio's opinion is that the prisoner was in a chronic state of mental disturbance arising out of these conditions at the time of the offence. 30 All of these conditions, together with the consumption of amphetamines, alcohol and Serepax on the night of the offence contributed to its commission. The prisoner's behavioural instability, intense anger and aggression found full expression in the assault against the victim. Whilst this disordered state was not sufficient to constitute substantial impairment for the purposes of reducing the offence from murder to manslaughter, it reflects on the prisoner's culpability for the offence. In short, the prisoner was not able to exercise the judgement and self-control of a reasonable person. 31 The prisoner's criminal history is also consistent with the type of offences committed whilst affected by drugs. It begins in 1999 with a number of public order offences and continues in 2000 and 2001 with offences related to the damage of property and assaults. Similar offences in relation to assaults and destruction of property occurred in 2002 and 2006. In 2006 the prisoner received an 18 month suspended sentence for an offence of maliciously inflict grievous bodily harm. That bond was breached and the prisoner was called up and sentenced on the 22nd of September 2008. In the result, the prisoner is presently serving an aggregate sentence for a series of offences, that sentence dating from 1 April 2008 and expiring on 29 December 2009. Some measure of concurrency will be allowed in order to accommodate the principle of totality. 32 Despite the prisoner's abuse of drugs and alcohol, he appears to function within the average range. He has been receiving counselling within the prison system and has reported a marked improvement in his concentration and mood. He is taking a relatively high dose of antipsychotic medication as determined by his treating psychiatrist. The prisoner's long-term abstinence from drugs and alcohol remains problematic but there are indications that the prisoner has finally gained some insight into the effects of his substance abuse. I regard his prospects of rehabilitation as guarded, but there is no issue with respect to future dangerousness in my view, principally because the prisoner's lengthy incarceration will facilitate long-term treatment. It follows that I do not regard specific deterrence as a prominent factor in the sentencing exercise. 33 The prisoner Willetts is presently 37 years of age. Mr Willetts was adopted at birth by a loving and supportive family and lived in the Emu plains area for most of his adult life. His parents gave birth to a sister approximately 3 years after Mr Willetts was adopted. When Mr Willetts was 13 years of age, his father died of a heart attack, an event which the prisoner witnessed whilst at home alone with his sister. His father's death deeply affected the prisoner, according to his sister who gave evidence in the course of these proceedings. 34 The support and stability provided by that family is evidenced by the prisoner's stable school and work history. He completed year 10 and a fitter/machinist apprenticeship before commencing a lengthy employment history. He was always able to find employment and was generally a well adjusted individual, but for his experimentation with amphetamines and opiates from the age of 18. The prisoner began using amphetamines on a regular basis from the age of 20, that consumption escalating to a habit of up to 3g a day prior to the offence. The prisoner's mother and sister noticed significant changes in his personality during these years. 35 At the age of 28, seemingly as a result of a comment by a relative, the prisoner discovered that he was adopted. According to his sister, the prisoner was profoundly affected by this disclosure. Within a matter of weeks he received contact from his birth mother and travelled to Broken Hill to spend time with his family. He established a positive relationship with his birth mother and siblings and obtained employment with a local mining company in Broken Hill. However, ultimately he was dismissed from that employment due to testing positive twice to illicit drugs. The prisoner's birth mother has since passed away. The prisoner met his birth father on two occasions only. 36 The prisoner's health is compromised by a genetic condition which manifests itself in very high blood pressure. The condition requires complex medication. The prisoner was hospitalised in Mildura in February 2008 for a number of days following presentation with a severe headache, severe hypertension and blurred vision. Justice Health records indicate that the prisoner's medical regime is being maintained. 37 The prisoner has a five-year-old daughter from a previous relationship. He has regular contact with his daughter and has maintained a supportive relationship with his ex-partner. That relationship was characterised by mutual illicit drug use and domestic violence. The prisoner enjoys the continuing support of his adoptive family. 38 A report under the hand of Nicole Johnson, a consultant psychologist (Exhibit 5), indicates that the prisoner was difficult to interview in that his conversation was limited and his affect "incongruent with some of the emotionally distressing content of what was being discussed." The prisoner has no apparent cognitive deficits or personality disorder. He has been seen by a psychiatrist whilst in custody in Wellington and was prescribed antidepressant medication. 39 Ms Johnson was unable to determine whether the prisoner was experiencing symptoms of depression and anxiety at the time of the offence. There is no doubt that the prisoner was heavily affected by amphetamines and that his long-term substance abuse affected his ability to function generally. The prisoner also reported that his heavy consumption of alcohol on that night was uncharacteristic. The evidence from the prisoner's sister however appears to support the conclusion that the prisoner's behaviour changed for the worse in the months and years following the discovery of his adoption. In these circumstances, it appears to me to be a reasonable conclusion that the prisoner was suffering from depression at the time of the offence. However, I am not persuaded that such a condition compromised the prisoner's capacity to form rational judgements to a significant extent. 40 The prisoner's criminal history commences in 1999. He came to notice initially through the commission of driving offences. It is significant that the first recorded convictions for assault occur in Broken Hill in 2005. Other convictions for assault and drug offences followed in 2007. The prisoner has never served a sentence of imprisonment. This was the basis for a submission that the Court should find special circumstances, but the structure of the sentence to be imposed allows for a sufficiently lengthy period of conditional liberty. 41 The prisoner has been in protective custody at his own request. The prisoner Gurney also potentially faces some form of protection if his willingness to give evidence against his co-offender becomes known in the prison system. There was no evidence before me capable of establishing that either prisoner would suffer harsher conditions of incarceration than the general prison population, to the extent that their sentences would necessarily be more onerous. I do not regard the status of either prisoner to warrant a reduction in the sentence that is otherwise appropriate to the commission of these offences. 42 Mr Willetts' prospects of rehabilitation are difficult to assess in the light of his reluctance to come to terms with his conduct. One can hope that he will acquire insight over time. He is sufficiently intelligent to re-assess his life and resolve to cease drug abuse, particularly given his risk of high blood pressure. I do not regard him as a vehicle for specific deterrence. 43 Taking all of these matters into account, I propose to sentence as follows :- Ryan Gurney, you are convicted of the murder of Frederick Doldissen. You are sentenced to a non parole period of 18 years, to date from 23 March 2009, expiring 22 March 2027, with a balance of term of 6 years, expiring 22 March 2033. You are eligible for release on 23 March 2027. 44 Aaron Willetts, you are convicted of the murder of Frederick Doldissen. You are sentenced to a non parole period of 19 years, to date from 22 March 2008, expiring 21 March 2027, with a balance of term of 6 years and 6 months, expiring 21 September 2033. You are eligible for release on 22 March 2027.

R v Willetts and Gurney

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