At the conclusion of the record of interview, the applicant was charged with the murder.
9 At about 8 am the next day he accompanied detectives to the murder scene where he indicated various locations where incidents concerning the subject offence had taken place and during the course of the walk around, the victim's two wallets were located. Subsequently, on 10 December, in the presence of his solicitor, the applicant took part in a further Record of Interview, in which he repudiated his previous admissions of having shot the victim three times and nominated Wayne Murray as the shooter, stating that although he was present at the murder scene, he had no involvement in the offence, although he did acknowledge receiving some of the cash proceeds of the offence from Murray.
10 At his trial, the applicant made an unsworn statement to the jury, substantially in accordance with his later Record of Interview of 10 December. He now accepts that he killed the deceased, and that the versions offered by him in the later Record of Interview and at his trial were untrue.
11 It is not easy on the evidence to determine when it was that the applicant determined to kill the victim. I am satisfied beyond reasonable doubt that he never had any marijuana, and probably from the time of the conversation on 25 November, but certainly from midday on 2 December, he intended to rob the victim of the $12,000, or whatever money he had; but at what time he determined to kill him is not so clear, although he must have anticipated that the victim would not give up $12,000 without a struggle and there was a real prospect of violence. His visit to the the police station on the afternoon of 2 December does not make a lot of sense if he was only trying to put the police off the scent in respect of an anticipated robbery because one would hardly expect Haywood, if he was merely robbed, to go and tell the police of such robbery without a very good explanation as to how he came to have $12,000 in cash on him at the time.
12 On the other hand, I am satisfied that the applicant was not a very sophisticated person and he did not have a gun with him until the victim declined to go out to the Pilliga scrub with him, and lent him his vehicle with the 12 gauge shot gun in it. Whilst I have considerable suspicion that the intention to kill was formulated and planned much earlier, I am only satisfied beyond reasonable doubt that it was determined on when he called the victim on the CB radio and asked him to meet him on the Walgett stock route (see Record of Interview Q & A 74).
13 Whenever the plan to kill the deceased was formulated, this was an unprovoked, cold-blooded killing for financial gain, without any extenuating circumstances. I accept that at the time, the applicant had been living in extreme poverty, unable to provide adequately for his wife and family, particularly as his wife was expecting their third child and he no doubt felt desperate in many ways; but even such desperation cannot excuse, minimise or even explain a cold-blooded killing such as this.
14 The applicant was born on 29 November 1961 and is now aged 38 years. He was one of seven children, with an Irish or Scottish father and his mother was part Aboriginal. He was raised at Baradine about forty miles from Coonamble but his father, who died in 1981, was abusive towards his wife, the applicant was picked on by his older siblings and told he was useless, and he appears to have been a loner from the beginning. Both parents drank to excess several times a week.
15 The applicant attended primary school in Coonamble, but hated it and claims he was ostracised and bullied by other students because he was poor and could never afford new clothes. At the time of the offence his literacy and numeracy skills were very low. The family moved to Coonamble when he was about 12 and when he was in high school he began truanting and committing offences, such as break and enters with other young males. Accordingly he was sent to a juvenile institution at Kurri Kurri when about 15 years.
16 On his release he commenced a relationship with a young girl who had been also released from such an institution, but the relationship ended when the girlfriend was sent away as a result of becoming pregnant to him. He was heavily abusing alcohol by the time he was 16 years old, but shortly afterwards commenced another relationship with another girlfriend. Two years later, when the girlfriend was 16, they had a son and they later married. When he married, the applicant ceased drinking alcohol and claims not to have drunk alcohol since. He described his relationship with his wife as tumultuous; like his parents they lived in poverty and he admitted being violent towards her.
17 He was in receipt of unemployment benefits from the age of 16 until the time of the murder but subsidised his pension by shooting kangaroos. The marriage produced two more children, both girls, the youngest after he committed the murder. He and his wife were divorced after he was incarcerated. Apart from the offences committed whilst a juvenile and convictions for stealing in 1983 and malicious damage to property in 1986, his only other convictions related to motor traffic offences and are irrelevant for the purposes of this application.
18 Following his conviction, the applicant was classified A2 and placed at Parklea Correctional Centre, being moved to Lithgow Correctional Centre on 15 January 1991 where he remained until 4 March 1996 when he was reclassified B and transferred to Bathurst. There have been no serious offences of violence recorded against him whilst he has been in custody, the only matters being damage to property in 1990 (when a riot took place at Parklea Gaol), some minor failures to comply with routine or directions in 1991, 1993 and 1995 and four offences of drugs (apparently cannabis) in urine in 1995 and 1996. All his reports whilst in gaol have been good and he is generally referred to as "not a problem". He appears to have mainly kept to himself and busied himself in acquiring literacy, numeracy and trade skills. He has completed a number of courses of this nature and has at times attended D&A and psychological counselling.
19 Dr Hugh Jolly, independent psychiatrist, and Fiona Innis, Correctional Centre psychologist, agree that he has a history of tending to avoid problems, a problem with self respect, being uncomfortable in social situations and experiencing problems in inter personal relationships, that he experiences suicidal ideation approximately twice a week, but that he appears genuinely remorseful for his crime and particularly guilty regarding the victim's family members. They agree that he appears to be taking responsibility for his actions and his responses to therapeutic intervention have been positive, reflecting a willingness to seek help. He has from time to time suffered from depression, but Dr Jolly considered this was by way of a personality disorder rather than a major mental illness. At one stage he attempted to justify the murder to himself and/or others by claiming that the victim was threatening his son sexually, but he has since disclosed that he did in fact kill the victim for the money and accepts responsibility for the offence.
20 His poor literacy skills at the time of the offence as well as his poverty led to his situation of social isolation with resultant depression. His efforts in securing trade, literacy and life coping skills have been very good and commendable, but both Dr Jolly and Ms Innis agree that in all the circumstances he will need considerable time, both on work release programs and after his release under supervision, to enable him to cope in the outside world. He remains in contact with his children and with one brother, but his mother has since died.
21 In view of his genuine remorse and acceptance of responsibility for his actions and his feelings of guilt and the fact that his prior record was free of crimes of violence, I consider it most unlikely that he would commit a similar offence in the future, although Dr Jolly does acknowledge that possibility. I am therefore satisfied that he should be given a fixed term sentence and a non-parole period fixed, but because of the need for an extended period of supervision after his release, which I am satisfied constitutes special circumstances I will fix a non-parole period which is less than three quarters of the full term. The applicant was first remanded in custody for the offence on 9 December 1988 and it is agreed that this should be the commencement date of the sentence (cl 5(1)) and that no adjustment should be made on account of his release on bail from 11 December 1988 to 28 February 1990.