R v Wright

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Thursday, 22 JUNE 2000 L 002/98 - R v Noel Andrew WRIGHT RE-DETERMINATION OF LIFE SENTENCE 1 HIS HONOUR: Following his conviction in the Supreme Court at Orange of the murder of Darren Andrew Haywood, the applicant, Noel Andrew Wright was on 1 March 1990 sentenced by Maxwell J, to penal servitude for life, and on 21 January 1998, he applied pursuant to s 13A Sentencing Act 1989 for an order determining a minimum term and an additional term in respect of such a sentence. On 3 April 2000 the Crimes (Sentencing Procedure) Act 1999 replaced the Sentencing Act 1989 and cl 21 of Schedule 2 of the latter Act requires that the application having been made but not determined before the commencement of that Act is to be determined in accordance with Schedule 1 of that Act. Schedule 1 substantially reproduces the provisions of the former s 13A, the only difference which is material for the present application being that whereas under s 13A, s 5(2) of the former Act, which provided that the additional term should not exceed one third of the minimum term unless the Court decided there were special circumstances, did not apply, the effect of cl 5(3) of Schedule 1 is that s 44(2) of the 1999 Act does apply, and the non-parole period must not be less than three quarters of the term of the re-determined sentence unless the Court decides there are special circumstances for it being less. The Crown neither supports nor opposes the application. 2 The applicant and the victim both lived in the Coonamble area and were well known to each other, although not close friends. On Friday, 25 November 1988, the applicant spoke with the victim at the Coonamble Golf Club and told him that he could get "twenty pound of head", i.e. marijuana, at $600 a pound, and arrangements were made for the two men to meet the following Friday, 2 December. 3 When they met on that day the victim showed the applicant $12,000 and the applicant told him that he would get back to him that night. They met again that evening when the applicant said that he had obtained the drugs, but would have to go out to the Pilliga scrub to pick them up. They set off in the victim's car about 20 minutes later, but during the journey the victim told the applicant that he suspected a set up, and preferred not to go out to the Pilliga scrub as previously agreed, and so arrangements were made between the two men for the applicant to take Haywood's car to pick up the drugs and then call him on his CB radio from a pre-arranged spot near the Walgett stock route about three kilometres north of Coonamble with an agreed message. When Haywood left his vehicle he took with him his .22 rifle leaving his 12 gauge shotgun behind in the vehicle. 4 On arrival at the Walgett stock route, the applicant called Haywood on the CB radio and gave him the pre-arranged message; and while waiting for Haywood to arrive he loaded two cartridges into Haywood's shotgun and cocked the weapon. Haywood travelled to the Walgett stock route in his father's utility which he pulled up behind his own car, and after alighting enquired of the applicant as to whether he had the marijuana. The applicant told him it was in his car, so Haywood walked towards it and when he was near the boot, the applicant shot him in the back. He fell to the ground and the applicant came up to where he was lying and from a distance of about half a metre discharged a second round of shot into his head. He then went over to the victim's father's utility, removed the bundle of cash from the lower compartment of a green box in the vehicle, as well as taking the victim's two wallets, picked up the victim's .22 rifle from the floor of the utility, walked back to where he was lying and shot him in the chest. He then threw both weapons into trees near the river bank after wiping them with a t-shirt in an endeavour to remove his fingerprints, and before leaving the scene he threw his victim's two wallets into the scrub. 5 After arriving home he counted the cash confirming that the amount was $12,000 and during the morning of that day, Saturday 3 December, 1988, accompanied at various stages by his wife, and on one occasion by his mother-in-law, he purchased clothing and a lounge suite for cash, and paid a deposit on a lay-by of various Christmas presents at local stores, while that afternoon he paid $3,000 in cash for the utility of a local acquaintance, Vincent Craig, informing Mr Craig that he had received $12,000 by selling "20 pounds of head" from a drug deal. 6 Prior to the murder, namely at about 2.15 pm on Friday, 2 December, the applicant attended Coonamble Police Station and informed Detective Sergeant Kennedy that he had information that Darren Haywood was in town and wanted to buy 20 pounds of marijuana at $600 a pound and he had seen a roll of money but did not think it was $12,000. He was told to keep his eyes open and notify the police with any further information. 7 When spoken to by police on 5 December, the applicant said that he had been spoken to by Haywood about 11.30 am on Friday, 2 December, when the latter asked whether he knew anyone who had drugs for sale, that he wanted to buy 20 pounds and had $12,000, that Haywood had showed him a 12 gauge shotgun which was under a blanket on the back seat of his vehicle and which he had "just for protection", and that at about 10.30 pm on the Friday evening Haywood asked him would he take a run with him out of town to see a few fellows for "some stuff", meaning drugs, but he declined. 8 He was questioned again on 8 December, and after initially denying any knowledge of the incident, he went on to say that he was present with Haywood at the murder scene when two men in a red Commodore drove up, asked where the "stuff" was and one of them had then shot the victim in the back. When asked about his and his wife's purchase of items on the following day he broke down and made admissions of having shot the victim three times at the murder scene, and subsequently he took part in a 9 page signed Record of Interview in which he made full admissions of the offence. The Record of Interview included the following questions and answers: Q. 36 When you got the gun out of Darren's car and loaded it what was your intention?

A. That's when I made up my mind and [sic] shoot him and take the money . . .

Q. 70 During the time that you discussed selling drugs to Hayward [sic] did you actually ever have any marijuana in your possession?

Q. 73 Did you ever have any intention of selling Darren Hayward [sic] a large quantity of marijuana?

Q. 74 What was your intention when you told Hayward [sic] that you have the drugs and for him to meet you out at the Walgett Stock Route?

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.

22 Noel Andrew Wright, for the murder of Darren Andrew Haywood, I re-sentence you to imprisonment for 22 years, which sentence will be deemed to have commenced on 9 December 1988 and I fix a non parole period of 15 years. The earliest date on which you will be eligible to be released on parole will be 8 December 2003. -----------------

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