R v Wood

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Gordon Eric Wood, has been found guilty by a jury of the murder on or about 7 June 1995 of Caroline Byrne. The trial of the offender lasted for three months and involved a very large body of evidence. It is undesirable in these remarks for me to undertake any exhaustive review of the evidence. I propose to make only such findings of fact as are necessary for sentence and otherwise to consider only such evidence as is necessary to deal with counsel's submissions. 2 The offender and Ms Byrne met in 1991 and began living together in the following year. He was a trainer at a city gymnasium. After about six months Ms Byrne became dissatisfied with the kind of life the offender was living. She considered that he had no substantial career prospects and no interest in obtaining any. She brought the relationship to an end. The offender decided to try and get a job with prospects that would impress Ms Byrne, intending to win her affections again. He obtained a job as a chauffeur for a prominent stockbroker, Mr Rene Rivkin. His job was to manage Mr Rivkin's substantial fleet of motor vehicles, drive him and his guests to destinations, make bookings, pass messages and perform other like duties. 3 The offender and Ms Byrne resumed their relationship towards the end of 1993. They were regarded by friends and family as a normal, loving couple. By early 1995 the offender was very keen for them to be married. Ms Byrne was not ready for marriage, but that was not apparently because of any lack of regard for the offender. She told her sister that she expected that they would eventually marry. 4 Things changed. In February or March 1995 Ms Byrne told her gymnasium manager, Mr Georgiou, that her relations with the offender were not going well. She was not happy about the kinds of persons he was associating with or about his involvement in what she regarded as get-rich-quick schemes. She considered him possessive. She said that he used to lose his temper. She said that sometimes he became so angry that it was as though he wanted to kill her. In April or May 1995 she told Mr Georgiou that things were not getting any better. She said that she sometimes feared for her life. She said that the offender was possessive and subject to jealous fits. She wished to break off the relationship but could not do it cleanly. 5 Mr Rivkin had interests in a printing company called Offset Alpine Printing Company, which had instituted a scheme to buy back shares in itself from its shareholders. The manner in which the scheme had been instituted concerned officials of the Australian Stock Exchange. They thought that there might have been breaches of the Stock Exchange rules. They asked the Australian Securities Commission to hold an enquiry into the matter and the Commission decided that it would. It issued notices to that effect. Between 7 and 27 May 1995 Mr Rivkin travelled to Zurich and London to hold meetings with people about Offset Alpine Printing Company. He took the offender with him, but I am not satisfied that the offender acted other than as an assistant, performing the kinds of duties I have summarised. I do not think that he took part in any meetings or even knew whom Mr Rivkin was meeting. I do not think that he knew what Mr Rivkin's meetings were about. I do not think that he played any executive role. Later on, he described himself as the "bag man" on that visit. I think that that was probably true. 6 The offender returned to Australia on 27 May 1995 and Ms Byrne was delighted to have him home again. However, between then and the time of the death of Ms Byrne further signs of tension in the relationship emerged. Some of Ms Byrne's friends regarded the offender as obsessive. Sometimes the offender expressed his anger in telephone calls to Ms Byrne. Her father, Mr Tony Byrne, witnessed such a telephone call. Remarks made by Ms Byrne to her friends showed that she and the offender were having arguments. 7 About a week before Ms Byrne's death the offender and Ms Byrne were together at a city gymnasium. He was publicly abusing her. She was frightened and sobbing. That event took place within the sight and hearing of others using the gymnasium. 8 By the beginning of the week of her death, relations between Ms Byrne and the offender had deteriorated badly. On Monday 5 June Ms Byrne consulted her general practitioner, Dr Pan, and told her that she was feeling depressed. Dr Pan thought that she was depressed and referred her to a psychiatrist for a consultation. 9 On Tuesday 6 June, the day before her death, Ms Byrne attended a market at Parklea as part of a job she had just taken up with a deportment school. She departed at about 2.30pm that day, to all appearances intending to return on the next day as arranged with her employer. 10 During the same evening the offender asked his own general practitioner to certify Ms Byrne's absence from work on medical grounds. The medical practitioner, who had not seen Ms Byrne, refused to give a certificate. On the same evening the offender telephoned Ms Byrne's employer and told her that Ms Byrne was ill and would not be at work for some time. After 7:49pm on the same evening Ms Byrne's mobile telephone was switched off, and the message recording facility on the telephone was also switched off. The telephone was not used again until after Ms Byrne's death. 11 Other than in the accounts given by the offender, the next persons to see Ms Byrne after her departure from Parklea saw her, the offender and another man in company at Watsons Bay between about 11:00am and 1:00pm and again at about 3:00pm on Wednesday 7 June. 12 At about 8:00pm on the same evening Mr Doherty, a painter using a studio in Military Road, Watsons Bay, saw three people opposite his premises. He did not purport to identify them, but I think that the person he described as the first man was probably the offender and the person he described as the woman was probably Ms Byrne. The evidence does not enable me to make any finding about the identity of the second man. According to Mr Doherty the first man was loudly berating the woman, who was arguing back in strong terms. Such was the tone of the argument that Mr Doherty thought that the woman was drunk or affected by drugs. As an examination of Ms Byrne's body later showed, she could not at that time have been affected by alcohol or by any illegal drug, or by any substance that might have affected her speech. I think that the proper conclusion to draw is that Ms Byrne was at the time severely emotionally affected by disagreement with the offender. 13 Mr Doherty saw the three walk away in the direction of the park at The Gap, Watsons Bay. He continued working in his studio and at about 10.30pm heard the group again continuing to argue. He estimated that the argument lasted for an hour and ended with a woman's scream. It must have been Ms Byrne's scream. It must have happened as or immediately before she was thrown from the cliff top. 14 It was submitted by the Crown that three features aggravated the offender's criminality so as to require the imposition of a more severe sentence. The first was what was said to be the offender's financial motive for committing the murder. It was submitted that the offender had much to hope for in maintaining friendly relations with Mr Rivkin. Mr Rivkin was a wealthy man who was known to reward handsomely those who served him faithfully. As well as a good salary, the offender hoped to receive bonuses and gifts as others had done. However, Mr Rivkin was unlikely to be generous to anyone he considered disloyal. Already there had been one serious misunderstanding between Ms Byrne's father, Mr Tony Byrne and Mr Rivkin about the financing of the flat in which the offender and Ms Byrne lived. Mr Byrne had offered to put up a sum of money on conditions and the offender had told him that Mr Rivkin, who was also providing purchase money, agreed. Later on it became clear that Mr Rivkin did not agree, and Mr Byrne withdrew his offer since his conditions had not been met. That, the Crown submitted, was all the offender's fault. The result was that Mr Rivkin had been left with having to put in the whole of the purchase price of the unit. He had been so cross as to have said that if Mr Byrne were to attend the housewarming party he, Mr Rivkin, would not. As well as this, there were reports of threats by Mr Rivkin that there would be no job and no bonuses for the offender. 15 It was the Crown case that Ms Byrne had knowledge of Mr Rivkin's affairs which would hurt him if made public. For example, it was asserted that the offender had said that a fire that occurred at the premises of Offset Alpine Printing Company at the end of 1993 was a set-up. It was asserted that the offender had inside knowledge of the affairs of Offset Alpine Printing Company and had suggested to a number of persons that they ought to buy shares in the company, assuring them that the value of the shares was bound to rise, and that there were government people involved. 16 Before the Court could impose a more severe sentence on account of any financial motive of the offender it would have to be satisfied beyond reasonable doubt that that was his motive. Although there was a large body of evidence going to the question of motive, I am not satisfied beyond reasonable doubt that the offender's motive was financial. It is not convenient to review all the evidence that might bear on these matters. I shall mention only a few topics. 17 There is a good deal of evidence of the public display of anger and rudeness, but no direct evidence of what the offender and Ms Byrne were talking about on such occasions. Much of the material Ms Byrne is said to have known consisted of rumour, none of which was likely to bother Mr Rivkin. For example, it was put about that he had a sexual interest in the offender, but that was plainly untrue. When he was interviewed by the police, Mr Rivkin made clear that he did not know what Ms Byrne knew about his business or private affairs and had never told the offender that he thought that she knew too much. When he was asked whether there was any link between the fire and the relationship between the offender and Ms Byrne, Mr Rivkin said that there was no way there could have been any effect on the offender or his relationship with Ms Byrne. The offender was under no pressure because he had nothing to do with the fire and nothing to do with his, Mr Rivkin's, share trading. He scoffed at the idea that the offender had inside knowledge of the affairs of Offset Alpine Printing Company or the fire and said that he liked to pretend that he knew more than he did. He said that he would have told the offender to buy shares in Offset Alpine Printing Company because there was never any doubt that the insurer would meet the claim and that that was public knowledge. He said that he never discussed his business with Ms Byrne. 18 Although there had been reports of threats of a loss of job and loss of bonuses, the offender had kept his job. Mr Rivkin said that he felt let down over the purchase of the flat but doubted whether he ever said or implied to the offender he would lose his job. Although there had been talk of a suspicious fire, the insurer had settled the claim twelve months before these events. Although there were questions about the shareholding in Offset Alpine Printing Company, Mr Rivkin had not been at all worried about the ASC inquiry. Mr Rivkin and the offender had given their evidence by the time of these events, and there is no suggestion that either of them was suspected of having committed any offence or was likely to face proceedings. 19 It seems unlikely that Ms Byrne knew anything that could, should she choose to reveal it, hurt Mr Rivkin. Of course, the Court is concerned with the offender's perception of what might happen if a word were dropped out of place, but the evidence falls short of establishing beyond reasonable doubt that it was to safeguard his financial interests that the offender killed Ms Byrne. 20 I am satisfied that by the time the offender and Ms Byrne were having their argument opposite Mr Doherty's studio on the night of 7 June 1995 their differences were becoming irreconcilable and there was a real danger that tempers might become so heated that violence would follow. But the evidence fails to satisfy me what the argument was about. Allied with this difficulty is that of the anonymity of the second man. It is impossible to say what were his interests and contribution to the argument or what part, if any, he played in causing Ms Byrne's death. 21 The second aggravating feature was said to be that the murder occurred at a time when the offender had "substantially isolated" Ms Byrne from her family, friends and work colleagues. That is not a submission that I would accept. I would accept that the offender did isolate Ms Byrne, by his attempt to have his doctor provide a certificate and by informing Ms Byrne's employer that she was ill and would not be coming to work for some time. Ms Byrne's mobile telephone was also turned off. But the Crown did not submit to the jury that that isolation was contrived for the purpose of murder, but in an attempt at reconciliation. Evidence of events of the afternoon of 7 June does not suggest that Ms Byrne was then isolated. She was apparently free to come and go in public. Someone, presumably Ms Byrne, used her car to travel through the suburbs making purchases. By evening, Ms Byrne and the offender were in the presence of a third person, whose identity is unknown. 22 The third aggravating factor was said to be that this was an offence committed "in the context of a domestic relationship that had gone sour". I accept that that is a fair way of putting the circumstances surrounding the murder but I do not see it as an aggravating feature. It simply explains how the offender and Ms Byrne came into dissension. 23 There are mitigating features. The Crown acknowledged that there was no substantial premeditation. Mr Terracini submitted that there was no premeditation. The difference between the positions is subtle. I am satisfied that when the offender and Ms Byrne went to Watsons Bay their relations were affable. There was no thought of violence. I am satisfied that the violence that led to Ms Byrne's death erupted at the end of a long, noisy and serious argument which probably commenced during the evening, one cannot say where, and ended somewhere near the fence overlooking The Gap at Watsons Bay. The argument itself lasted well over an hour. I think that it could have been only at the very end of the argument that any intent was formed to kill. I think that there was no premeditation. The offence was committed in a rage. 24 The offender has no prior criminal convictions and is entitled to consideration for that. 25 It was acknowledged by Mr Terracini that there was no remorse. The offender's position is that he was wrongly convicted and that he intends to appeal. 26 There is one more mitigating feature. The offence took place in June 1995. The offender was not charged until 3 May 2006, eleven years later. The delay warrants explanation. The first year or so of delay was the responsibility of the offender. He falsely put it about that Ms Byrne had committed suicide and the police were inclined to accept that it was so. That explains why a fairly low level inquiry was carried out. Only a handful of statements was obtained. There was no reference to homicide detectives. 27 Early in 1996 the Coroner referred the matter to the Homicide Squad and a murder inquiry was instituted. The offender was interviewed in June 1996. He then knew that he was suspected of having murdered Ms Byrne. 28 Ms Byrne's body was recovered by two police officers. The evidence at trial of the senior of those officers was to the effect that he knew the place where the body had landed and from which he had recovered it. He identified the place for the jury. However, he had previously said things which were inconsistent with that evidence. After the Coroner referred the matter to the Homicide Squad a video film was made to be shown to the public. In part of it the junior officer descended to the foot of the cliff and pointed to a place. As she did so the senior officer recorded that his colleague was pointing to the place from which the body had been recovered. That place was different from the place which the senior officer maintained was the place from which the body had been recovered. It was the Crown case that this was an error. 29 The police qualified a physicist, Associate Professor Cross, who gave an opinion that, assuming that the body had landed in the place indicated in the video film, the most probable cause of death was suicide. According to the Crown case, it was not until early in 2004 that the senior police officer realised that Associate Professor Cross was referring to a place different from the one he had in mind. It was only after that that Associate Professor Cross was asked to give an opinion assuming the landing spot to be that which the senior officer maintained at trial was the correct one. Only then did Associate Professor Cross express the opinion that Ms Byrne died because she was thrown off the cliff. Not until that point was reached, it was submitted, would it have been reasonable to charge the accused with murder. 30 It seems to me that the offender cannot call in aid as mitigating the sentence the first year or so of delay, since that resulted directly from his own false assertion that Ms Byrne had committed suicide. However, the delay which occurred once there was a homicide investigation on foot was not attributable to the offender's false report or to any difficulties resulting from the fact that the case was a year old. On the contrary, it looks as though things moved as slowly as they did between 1996 and 2004 because the police had no firm idea of what their case was. The senior officer made a number of inconsistent statements in his evidence at trial about whether and when he realised that the junior officer was pointing to the wrong spot. His final position, which did not emerge until his re-examination, was that he realised when watching the film in the Coroner's Court on 25 November 1997 that his junior colleague had pointed to the wrong spot but did not tell anybody about it because he did not think that it was of any consequence. Moreover, even after Associate Professor Cross changed his opinion, it was two more years before the offender was charged. It seems to me that the resulting ten-year delay was the responsibility not of the offender but of the investigating authorities. Consequently, the sentence should be mitigated. 31 During the whole of the ten-year period the offender has been of good behaviour. He has already been punished to the extent of having this matter hanging over his head for the whole of that period. During the ten years he went to England, the country of his birth, to work. There was no flight, however, and he did not hide. He always indicated through his solicitor that he was willing to return to Australia if required and his solicitor informed the officer in charge of the investigation accordingly. Consistently with that indication, the offender volunteered, when told that he was to be charged, to return to Australia to face trial. For these reasons a considerable measure of understanding and flexibility of approach is called for. 32 It was not submitted that circumstances justified any adjustment of the prima facie relationship between non-parole and parole periods, and I do not think that they do. 33 The offender spent 30 days in custody in the United Kingdom before being brought to Australia to be charged. He entered bail when charged in Australia but I revoked bail upon the return of the jury's verdict on 21 November 2008. To allow for the two periods of custody I propose to order that the sentence commence on 21 October 2008. 34 I should make mention of Ms Byrne's father, Mr Tony Byrne, and of his children, Robert, Peter and Deanna Byrne. All gave evidence at the trial. They have all suffered enormously over the death of their daughter and sister and will continue to do so. Some inkling of their suffering may be gained from the victim impact statement which was read on behalf of Mr Tony Byrne. Although it may not take their suffering into account in imposing sentence, the Court can and does extend its sympathy to them in their loss. It is to be hoped that these proceedings will mark the beginning of the end of their suffering. 35 Gordon Eric Wood, I sentence you to imprisonment. I set a non-parole period of thirteen years, which will be taken to have commenced on 21 October 2008 and which will expire on 20 October 2021. The balance of the sentence will be four years and four months and will expire on 20 February 2026. The first day on which you will become eligible for release to parole will be 20 October 2021. ************

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.