R v Wilson

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HER HONOUR: The offender, Shannon Blake Wilson, appears for sentence following his plea of guilty to a charge that, on 15 October 1999, he murdered Kevin Earl Lester.

chronology 2 The murder of Mr Lester occurred in remote bushland near Nowra on 15 October 1999. I will shortly return to the circumstances. On 22 October 1999, being aware that he was the suspect in the murder, Mr Wilson presented himself at the Nowra Police Station. There he was interviewed and denied any involvement in Mr Lester's death. He gave a false account of his movements on 15 October. At the conclusion of that interview Mr Wilson was taken by police to the premises where he was then living. Those premises were searched. Mr Wilson then returned to the police station, where he was told that he was under arrest for murder. He was cautioned and further interviewed. On this occasion he made a number of admissions and gave an account of the events leading to and surrounding the murder. On 20 November 2000, after an inquiry conducted in accordance with Part 2 of the Mental Health (Criminal Procedure) Act 1990 ("the MH(CP) Act"), Mr Wilson was found unfit to be tried. On 21 June 2001 the Mental Health Review Tribunal ("the Tribunal") determined that Mr Wilson would not, in the twelve months following the finding of unfitness, become fit to be tried. Accordingly, in March 2002, a jury was empanelled for the purpose of the conduct of a special hearing pursuant to s19 of the MH(CP) Act. On 20 March 2002 the jury found, on the limited evidence available, that Mr Wilson had committed the offence of murder (see s22). On 22 March 2002, pursuant to s23 of the MH(CP) Act, Wood CJ at CL indicated that, if the special hearing had been a normal trial of criminal proceedings against a person fit to be tried for the offence of murder, he would have imposed a sentence of imprisonment, and nominated a limiting term of eighteen years in respect of the offence. Pursuant to s24 of the MH(CP) Act, he referred Mr Wilson to the Tribunal and ordered that, pending notification to the Court by the Tribunal of its determination of the matters which the Tribunal was, by s24(2), required to determine, Mr Wilson be detained at Silverwater Correctional Centre. 3 On 30 May 2002 the Tribunal determined, pursuant to s24(2), that Mr Wilson was not suffering from a mental illness, nor from a mental condition for which treatment was available in a hospital. 4 It seems that, on a date which is not disclosed on the evidence, but pursuant to s29(1) of the MH(CP) Act, the Tribunal notified the Attorney-General that it was of the opinion that Mr Wilson had become fit to be tried. Pursuant to s29(1)(a), the Attorney-General requested this Court to hold a further hearing as to Mr Wilson's fitness. That inquiry took place on 3 May 2004, Mr Wilson having elected, in accordance with s11A of the MH(CP) Act, that the question of his fitness to be tried be determined by a judge alone. Uncontested evidence was given by Dr Kipling Tason Walker, a psychiatrist, which satisfied me that Mr Wilson was fit to be tried, and I so determined. I fixed 5 May 2004 as the date on which a trial was to commence. On that date Mr Wilson entered the plea of guilty to the charge of murder. A sentencing hearing took place on 11 June, when I received evidence and heard submissions from the parties.

the objective circumstances 5 A statement of the facts of the offence was in evidence as exhibit A. While certain aspects remain unclear, the following emerges. 6 Mr Lester was a taxi driver. At about 12.30 pm on 15 October 1999, Mr Wilson, using the name "James", telephoned from Nowra Fair for a taxi. Mr Lester was allocated the job and picked up Mr Wilson. Mr Wilson initially asked to be taken to West Nowra and then to Thompson's Point. A map of the area, and photographs, show Thompson's Point to be an undeveloped bushland area, some of which is reserve, on the outskirts of Nowra. When Mr Lester asked Mr Wilson for the fare, Mr Wilson replied that he had no money. A fracas then developed between the two men, during the course of which Mr Wilson produced a knife with which he stabbed Mr Lester in the chest, causing Mr Lester's death. He then stole money from the taxi and from a wallet near Mr Lester's body and drove the taxi to another location, leaving Mr Lester on the ground, concealed among scrubby vegetation. He then returned, in the taxi, to the scene of the murder where he set fire to the vehicle, concealed the knife in the ground, and threw away the car keys. He began walking back towards West Nowra when he encountered a motorist whom he knew and who drove him into town. He gave her a false account of the circumstances that led to his being in that place. 7 Mr Lester's body was found the next day. On subsequent days the knife sheath, Mr Lester's wallet and his bag containing papers and other items were found. 8 By 22 October 1999 Mr Wilson had become aware that he may have been a suspect in the murder and attended at the police station, where he made the exculpatory interview to which I have already referred, followed by a further interview in which he admitted his involvement. He told the interviewing police that he didn't know why he had asked to be taken to Thompson's Point; that, at the time of calling the taxi, he had not intended to steal money or property, and had decided to do so only after the stabbing; that, after telling Mr Lester that he had no money, he had alighted from the taxi to run away, but that Mr Lester had grabbed him by the leg to stop him; that Mr Lester had put him (Mr Wilson) "on the ground"; that when he produced the knife, Mr Lester stepped back and then came forward; that he (Mr Wilson) began to put the knife down, but that Mr Lester came forward and grabbed him by the arm; that when he wielded the knife, his intention was to "sort of scratch him on the arm", but that Mr Lester turned around and moved his body into the way of the knife, causing the stab wound; that he attempted to help Mr Lester and stop the bleeding, but that Mr Lester pushed him away, and that he then ran away into the bushes; and that he then returned, looked for Mr Lester, found his body, rolled it over and attempted first aid before driving off in the taxi and then returning, and setting fire to the vehicle, throwing away the keys and wallet and the torch (presumably whatever it was that he had used to set the taxi alight) and concealing the knife. He said that he had burned the car in the hope that he might be able "to get away with everything" and leave no evidence. He admitted taking the coins and money from the wallet. He said he had then returned to where Mr Lester's body lay, in an attempt to help him. He said that he carried the knife for protection, specifically because local Aboriginals tried to steal his bike at night. 9 Mr Wilson gave evidence in the sentencing proceedings on 11 June 2004. By that time, he had been in custody, mostly at the Metropolitan Remand Centre, Silverwater, for more than four and a half years. He expressed remorse for his conduct and for Mr Lester's death. Despite a suggestion made to him in cross-examination that his regrets were attributable to his own custodial situation and not in relation to Mr Lester's death, I am satisfied that he is genuinely remorseful and contrite. There is evidence that, on the day of the murder, Mr Wilson was in need of money. One obvious and available inference is that he called for the taxi with the specific intention of directing the driver to take him to a remote location and there rob him. However, this was put to Mr Wilson in cross-examination. His answers to these questions were: "I didn't go out with a plan to do anything that day, that day was a normal day as I did every other day." "That is not correct. How could I do that when I didn't have a violent bone in my body?" 10 It was put to him that he had taken the knife for the purpose of robbery. He replied: "No, I've always carried a knife with me ever since I left home." 11 He explained having directed Mr Lester to take him to Thompson's Point in the following way: "Because that is where I usually go when I want to think, I want to get away from everything else." 12 In the light of this evidence, and of my impression of Mr Wilson, I am not able to be satisfied beyond reasonable doubt that he did, in advance of the events, formulate a plan to rob a taxi driver. In reaching this conclusion, I have in mind the absence of any history of violence, or indeed criminal conduct, on the part of Mr Wilson, his relatively low level of intelligence, and his family circumstances, all of which I will refer to shortly when I come to outline the subjective factors. It is at least reasonably possible that Mr Wilson, being under some financial pressure, did take the taxi to Thompson's Point in order to be alone with his worries. He told police that he had, on previous occasions, hired taxis when he had no money to pay the fare. 13 I am conscious that, objectively speaking, there is a suspicion that Mr Wilson had planned a robbery. However, that suspicion does not enable a finding beyond reasonable doubt to that effect. Accordingly, I am not able to act upon the basis that the murder was committed in the course of the commission of a felony which was premeditated or planned. I propose to sentence on the basis that, no later than the time he produced the knife, Mr Wilson intended to inflict grievous bodily harm on Mr Lester.

subjective circumstances 14 Mr Wilson was born on 13 December 1980. He was eighteen years of age at the time of the offence. His early history is recorded in a number of psychiatric and psychological reports. He is the second of four children of both of his parents, but one of ten surviving children of his mother, born to five different fathers. He grew up in Nowra, where he was born. His father left the home when Mr Wilson was about six years old and he thereafter had no contact with him for about ten years. There was then a short-lived reconciliation before the relationship broke down. From the age of about thirteen or fourteen Mr Wilson lived with another family, whom he came to regard as his own, although he has also maintained a close and protective allegiance to his natural mother and is reasonably close to one sister. His schooling finished part-way through year 8, with little educational attainment. Since leaving school he has had little paid employment but has undertaken some voluntary work in a pet shop and a bike shop. He began using alcohol and marijuana in his early to middle teen years. 15 Remarkably, when one considers his dysfunctional family life and background, Mr Wilson has no prior criminal convictions. 16 His intelligence is described as "compromised". In a report dated 6 September 2000, Dr Westmore, a psychiatrist, wrote that Mr Wilson: "is a troubled young man, he suffers from intellectual disability, educational poverty and currently depression." 17 The extent of depression may be gauged against Dr Westmore's assessment that, at the date of that report, Mr Wilson was not fit to be tried. Dr Westmore considered that he was unable to discuss the circumstances of the killing of Mr Lester in any sensible or extended way, or provide instructions for his defence, or for assessment of his mental state at the time of the killing. Dr Westmore recommended that Mr Wilson receive appropriate treatment. Dr Westmore again examined Mr Wilson on 4 October 2001 and then came to the view that, due to the intellectual disability and psychological problems, he remained unfit to be tried. Specifically, Dr Westmore considered that he would be unable to give evidence or respond to cross-examination. 18 Much the same kind of evaluation was made by Ms K Barrier, a psychologist, who assessed Mr Wilson in July 2000. She reported that Mr Wilson was suicidal. The psychological tests she administered revealed low educational levels, "undersocialisation", poor social adjustment, difficulty relating to others, marked affective and interpersonal instability, an uncertain sense of self and rapid mood changes, an introversive and borderline personality disorder, very poor concentration and feelings of self worth and a history of serious family problems. She described him as "anxious, lonely and socially apprehensive", timid and shy, highly self-deprecating with low expectations of relationships with family and peers. 19 As a consequence of the findings of Dr Westmore, Mr Wilson was found unfit to be tried and the special hearing to which I have already referred was held, he was found guilty, and has remained in custody since.

rehabilitation 20 Four and a half years in custody have worked what may fairly be described as a remarkable transformation. Mr Wilson has regularly seen a prison psychologist, Kylie Mackrell, who, like others, including Mr Wilson himself, deserves to be congratulated for the success of her efforts. Ms Anita Duffy, a psychologist, reported in June 2004 that on his initial incarceration he had in fact attempted suicide by drug overdose. Ms Duffy also administered psychological testing which revealed strongly depressive, avoidant and schizoid features and personality, and a negative (passive aggressive) trait. Ms Duffy also assessed him as suffering from post-traumatic stress disorder (resulting from the murder), anxiety and bi-polar disorder. 21 Ms Mackrell provided progressive reports dated 3 June 2003, 20 August 2003, and 3 June 2004. She reported that Mr Wilson has participated in a variety of educational programmes and has had employment whilst in custody. His literacy has improved significantly and he has taken up art and shown an interest in music. He has been awarded a number of certificates of achievement. Other reports from the prison confirm that he is well behaved and cooperative.

victim impact statements 22 Also in evidence before me were three victim impact statements made by, respectively, Mr Lester's widow, his son, and his daughter, Ms Catherine Edwards. Ms Edwards elected to read her statement in the court. Mrs Lester and Mr Lester jnr were content that I read their statements and this I did, and have done again in the course of preparing these remarks. Each statement in its own way brings home the great loss that the murder of Mr Lester involved and the tragedy that is occasioned by the loss of a human life. I can well understand that the victims of crime, and the friends and relatives of persons unlawfully killed, might, observing the sentencing process, believe that the objective gravity of a crime is submerged under considerations concerning the perpetrator. Indeed, Ms Edwards made such a suggestion in clear terms. While that perception is, perhaps, understandable, it is wrong. It is a fundamental tenet of sentencing practice that a prime consideration in the selection of a sentence is the recognition of the objective gravity of the crime in respect of which the sentence is to be imposed. In arriving at the sentence that I am about to impose, I have at all times borne in mind that a human life has been senselessly taken, and that this inevitably affects the lives of the victim's surviving family. That said, however, I cannot, for reasons that are well established, take into account the individual victim impact statements: see R v Previtera (1997) 94 A Crim R 76.

plea of guilty 23 Although Mr Wilson pleaded guilty to the offence four and a half years after it was committed, the Crown has conceded that he should be treated as having done so at the earliest available opportunity. Having regard to Mr Wilson's psychiatric history, recounted earlier in these remarks, that concession was obviously properly made. I propose, in accordance with the guideline judgment in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383, to discount the sentence I impose by 25% in recognition of the plea of guilty.

the sentence 24 Counsel for Mr Wilson urged that I adopt as a sentencing starting point the limiting term of eighteen years selected by Wood CJ at CL. This would then be subject to some mitigation, by reason of subjective circumstances and the plea of guilty. 25 On behalf of the Crown it was argued that the limiting term of eighteen years selected was rather lenient, when due regard is had to the objective circumstances. 26 I doubt whether it is appropriate to commence a consideration of the proper sentence by reference to the limiting term selected by Wood CJ at CL. There are a number of reasons for this. The evidence before his Honour was plainly, in a number of respects, different from the evidence that was before me. At the time his Honour selected that term there was little or no demonstrated rehabilitation. There was little or no evidence of subjective circumstances. The exercise in which his Honour was engaged was a different one, circumscribed by the limitations on the available evidence. In my opinion, my task is to sentence Mr Wilson on the evidence before me. This is not a circumstance analogous to sentencing after a second conviction that follows a successful appeal and new trial, where convention ordinarily requires that a sentence no longer than that originally imposed be fixed. In do not think the selection of the limiting term made by Wood CJ at CL should dictate or even guide my sentencing discretion, which is independent and is required to be exercised on the facts and circumstances exposed in the evidence before me. (That does not preclude my selection of a sentence of the same or similar length; it merely means that I should take my own route to the selection of the sentencing starting point.) 27 Nor do I accept the Crown's contentions on this issue. It is not for me to pass an opinion upon the adequacy or otherwise of a term specified by another judge, in circumstances markedly different to those before me: Wood CJ at CL expressly observed that the subjective circumstances, to the extent that they were elucidated before him, offered little by way of mitigation, other than relative youth and immaturity; and those considerations were qualified by the objective gravity of the crime. That is far from the case before me: I have been presented with extensive evidence of Mr Wilson's background, which I do treat as a mitigating circumstance; and of his successful efforts at rehabilitation, which is an even more substantial matter in mitigation of sentence. I am satisfied that the family history, his educational and intellectual poverty, and his youth are matters relevant to culpability. 28 Moreover, Wood CJ at CL selected the term of eighteen years as appropriate following a special hearing in which detailed evidence of the circumstances preceding, and surrounding, the offence were given, such that his Honour had no difficulty in concluding that the offence was properly characterised as "felony murder". On the evidence before me I am not, for reasons I have already given, in a position to make such a finding on the high standard of proof that would be necessary. 29 Because the offence pre-dates 1 February 2003, I am required to sentence Mr Wilson in accordance with the now repealed s44 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act"). That means that I must fix the term of the (head) sentence, and then fix a non-parole period, which, pursuant to sub-s(2), must be not less than three-quarters of the head sentence unless I decide that there are special circumstances for so doing (in which case I am required to state the reasons for that decision). The Crown very fairly and properly conceded that it is open to me to make a finding of special circumstances, the reasons for that being Mr Wilson's youth and positive rehabilitation. I am satisfied that, for those reasons, I should do so. In this context it is also appropriate to have regard to Mr Wilson's prior good character and that this is the first time he has been incarcerated. That circumstance is relevant both to the selection of the head sentence as well as to a finding of special circumstances, although I bear in mind that it should not be used in such a way as unduly to increase its impact and give an excessive benefit. 30 I have concluded that, when all competing factors are balanced, a starting point of eighteen years is by no means too lenient. In reaching that conclusion I have not overlooked the tragic loss of Mr Lester's life, or Mr Wilson's clear culpability; nor have I overlooked the specific protection the law seeks to afford to individuals who, by reason of their occupation, are particularly vulnerable to violent offenders; nor the sternness with which sentencing judges approach offences involving the use of knives. I have balanced those against Mr Wilson's seriously disadvantaged start in life, and his genuine and successful efforts towards rehabilitation. 31 There is an unusual combination of circumstances relevant to the sentencing exercise. On the one hand, Mr Wilson is entitled to, and will receive, the benefit of the four and a half years which he has put to good use in his rehabilitation. On the other, he is also entitled to, and will receive, the maximum benefit that comes to him as a result of his early plea of guilty. It is only on very rare occasions that a lengthy period of rehabilitation is combined with an early plea, but that is here the case. 32 I have concluded that, for the reasons I have outlined, but particularly having regard to the serious objective circumstances, including the vulnerability of Mr Lester, and the use of a knife, and also to those factors mitigating culpability, particularly Mr Wilson's age, his family background, his prior good character and his rehabilitation, the appropriate starting point is a head sentence of sixteen years. I propose to reduce that by 25%, to give a head sentence of twelve years. Absent special circumstance, s44 of the Sentencing Procedure Act would call for a non-parole period of nine years. I propose to reduce that by one year, giving a non-parole period of eight years. 33 I am well aware that this sentence may appear lenient, but I trust that those who would so consider it will read these remarks and understand the reasons that have led me to this result.

Shannon Blake Wilson: you are convicted of the crime of murder. You are sentenced to imprisonment for twelve years, commencing on 22 October 1999 with a non-parole period of eight years. The earliest date on which you will be eligible for release on parole is 21 October 2007.

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