Regina v Brian Andrew Kaiser; Regina v Jeremy Michael Hunt [2007] NSWSC 1362 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: The offenders, Brian Andrew Kaiser and Jeremy Michael Hunt, were committed to this Court on charges of having murdered the deceased, Shandele Macey, at Rutherford on 20 March 2006. On 13 April 2007 their trial and those of their co-accused were fixed to begin on 22 October 2007. On 6 July 2007 Kaiser pleaded not guilty and Hunt pleaded not guilty of murder but guilty of manslaughter. The Crown did not immediately respond to Hunt's plea, but on 10 October 2007 formally accepted the plea of guilty of manslaughter in discharge of the indictment against him. On the day fixed for the trial to begin, Kaiser pleaded not guilty of murder but guilty of manslaughter and the Crown accepted the plea in discharge of the indictment against him. 2 The deceased, Shandele Macey, lived at Rutherford with her partner Lee Stuckings. Mr Stuckings and Kaiser were truck drivers who worked for the same company and socialised together. Kaiser had met the deceased through his friendship with Mr Stuckings. Kaiser and the deceased were in a sexual relationship from time to time from about the middle of 2004. Kaiser was also supplying the deceased with amphetamines. The deceased tried to end the relationship with Kaiser but he wanted to continue it. Things became awkward. The deceased took out an apprehended violence order, and early in 2005 and again in 2006 there were court proceedings in which Kaiser was said to have breached the conditions of the order. As a result of these matters, and because the deceased had failed to pay him for amphetamines that he had sold her, Kaiser was resentful. Hunt was a close friend of Kaiser. Hunt lived with a co-offender, Ronald Garland, at Mayfield. Garland supplied amphetamines from the premises where they lived, some to Michelle Rocco, another co-offender. Hunt, Kaiser, Garland and Rocco all knew each other. 3 At about midnight on 8 March 2006, Kaiser and Hunt went to the home of the deceased and Mr Stuckings and tried to get in by jemmying a security door. Although they failed, they damaged a metal door and a wooden door. The deceased complained and Kaiser was arrested and charged with trespass and malicious damage. As a result, he was held in custody for a short time while bail was refused. Later on it emerged, following the interception of Hunt's telephone conversations, that he, too, was one of the attackers. 4 Following these events, Kaiser wanted revenge and asked Hunt to go to the house and deal with the deceased. He told him that this was to take place at about 1:00 am on 20 March 2006. Kaiser nominated that time because he knew that he could, by producing electronic work records, prove that he was at work at that time in a place well separated from Rutherford. Hunt agreed to do as he had been asked. He recruited Rocco to drive him there. Kaiser gave Hunt a lift in his truck to a service station on Sandgate Road. Kaiser left and went to work. Rocco met Hunt there. He got into the back seat of her car, carrying a .22 rifle in a bag. Rocco drove him to a place opposite the deceased's house. The deceased was in the front room. When she heard the sound of Rocco's car stopping, she got up, went to the window and began to part the blinds to look out. Hunt got out of the car, leaned across the roof of Rocco's vehicle and fired three shots at the house. The first shot struck the deceased in the neck and travelled to the lung. She died shortly afterwards. The second and third shots also hit the house. One of them passed through a window. 5 A statement of facts agreed between Kaiser and the Crown contained this passage - The offender [meaning Kaiser] was aware that this may involve the use of [a] firearm. 6 As soon as he had fired the shots, Hunt got back into Rocco's car and she drove off. They went back to the residence of Garland and stayed there. On the following evening Hunt threw the rifle from a bridge into the Hunter River. As news of the shooting was broadcast and the police investigated, Hunt, Kaiser and their co-offenders had many conversations by telephone. Hunt left Newcastle on 22 March 2006 and travelled to the northern part of the State. He returned to other premises in Newcastle on 25 March 2006, but fled again on 27 March 2006, just escaping a police raid. He was able to do that, I think, because of intelligence supplied to him by one of his co-offenders, probably Garland. Kaiser and Garland were arrested on 27 March 2006. Kaiser told the police something of the history of his relations with the deceased and about supplying her with drugs but denied any knowledge of the shooting. He denied setting up an alibi for the time of the shooting. Hunt was arrested at Coonamble on 29 March 2006. He denied any knowledge of the deceased or Mr Stuckings. He denied going to the house at Rutherford. He denied the shooting and any knowledge of it. 7 Kaiser was born on 4 March 1972. He was in no trouble with the law until he was twenty-eight years old, when he faced a number of consecutive charges of contravening apprehended domestic violence orders. I think that all those matters probably concerned the deceased. Since then he has committed a number of offences, but his record cannot be said to be a serious one. His record does not aggravate his criminality but it does not entitle him to leniency. A troublesome feature of it is that he has committed offences since the ones now under consideration. 8 A report of Mr P Ashkar, psychologist, was tendered. Some of the facts relayed in the report may be accepted. Kaiser had an apparently normal childhood, though he was badly affected when an elder brother died in a shooting accident. He appears to have had an unremarkable career in school to year ten, after which he entered upon an apprenticeship. He has an acceptable work record. He is of average intelligence. When he was eighteen years of age he began to use cannabis and by the age of twenty-three was admitted to hospital with cannabis-induced psychosis. He was diagnosed as suffering from bipolar disorder. Much the same thing happened again two years later and Kaiser underwent electroconvulsive therapy. Mr Ashkar's opinion is that the bipolar condition is now in remission. 9 Kaiser began using amphetamines daily in his early thirties. He has become dependent upon their use and needs professional help to reduce or curtail that dependency. He apparently accepts the need to do so and in February and March 2007 took part voluntarily in an outpatient program at Newcastle Hospital, with that intent. Obviously he has a long way to go. 10 Mr Ashkar tested Kaiser, using standard psychological tests, and concluded that there were indicators of borderline personality pathology, schizoid personality style, avoidant personality style, depressive personality style, dependant personality style and anti-social personality style. Although these indicators were present, they were not prominent. Summarising the practical effect of these results, Mr Ashkar opined that Kaiser had unstable affect, cognition and behaviour, thinking that was dichotomous and absolute, that he had little or no interest in other people, that he feared rejection and humiliation, that he considered himself inadequate and that he might have general disregard for social norms. Mr Ashkar mentioned impulsive and hedonistic behaviour and irritable and aggressive moods, as well as a reckless disregard for the safety of self and others. 11 I would without expert evidence have concluded from the facts that Kaiser was some such sort of man. He had developed a strong resentment of the deceased over a long time. He thought little of her and decided to punish her. He was persistent in his efforts to inflict punishment by way of revenge. He did not stop when he was caught and made to answer for the events of 8 March. 12 It would not be correct to say, however, that Kaiser acted out of any tendency to be impulsive or out of any disregard for his own safety. On the contrary, he planned his actions very carefully. He instructed Hunt precisely when the offence should be committed so as to ensure that he would have an alibi. He did so because he knew that suspicion for the assault would fall upon him. Far from being impulsive, far from being unconcerned about his own safety, he put into effect a series of careful plans designed to achieve his object, which was punishment for imagined past slights and for the non-payment of a drug debt. 13 There are some parts of Mr Ashkar's report that I am not prepared to accept, namely the uncritical repetition of Kaiser's self-serving statements, particularly an attempted justification for supplying the deceased with drugs, an assertion that he had no intention of causing the deceased physical harm which I thought inconsistent with the agreed facts, and a claim to take responsibility for and to express regret over his offending behaviour. I am satisfied that he is sorry that he was caught, and I am, of course, satisfied that he had no intention of having the deceased killed and that he regrets her death, but the evidence of remorse is otherwise unconvincing. After Hunt pleaded guilty he took part in a further interview with police and the Crown served a copy of the transcript on Kaiser. In the statement Hunt tried dishonestly to minimise the part played by Kaiser. Kaiser pleaded guilty just the same. Even so, I do not regard the late plea of guilty as any evidence of remorse, though it earns Kaiser a modest discount for its utilitarian value. 14 Given that Kaiser did not desire to bring about the death of the deceased, the proper formulation of his criminal liability is that he planned an assault upon her and entered into a joint enterprise with Hunt to put it into effect. He realised that Hunt might use a firearm in the assault and that by doing so he might kill the deceased in circumstances amounting to manslaughter. 15 The aggravating features of his offence are that it was carried out after careful planning and was persisted with after the failure of an earlier attempt to exact revenge. Its object was to exact revenge for perceived slights and either to enforce payment of or punish for non-payment of drug debts. I accept that there was no intent to kill. The use of a weapon was contemplated. 16 At the time of those events Kaiser was subject to a bond, imposed on 20 May 2005 and current for three years, to be of good behaviour for breach of an apprehended domestic violence order. He was also on bail for breaching an apprehended domestic violence order in February 2006 and for the offences of trespass and malicious injury to property arising from the attack made on the deceased's house on 8 March 2006. 17 The mitigating features are that there are some prospects of rehabilitation. Mr Ashkar rated them high, though he was not told that Kaiser had resorted to further criminal offences since the ones now under consideration. Following his arrest on 27 March 2006 he was granted bail. On 11 May 2007 he was charged with having taken and driven a conveyance without the consent of the owner and with assault occasioning actual bodily harm. He was given a five month suspended sentence in the Local Court. He was also dealt with for shoplifting, maliciously destroying or damaging property, possessing implements to enter a conveyance and larceny. On 8 June 2007 he was called up and sentenced to a number of periods of full-time imprisonment the total effect of which was five months' imprisonment commencing on 23 May 2007. I think that there are prospects of rehabilitation, but they are not high. 18 I conclude that there are substantial reasons for personal deterrence as well as the need to impose a sentence which would strongly deter others from settling their personal difficulties and dealing with drug debts by resorting to violence, especially by the use of firearms. 19 Kaiser has asked the Court to take into account under s32 Crimes (Sentencing Procedure) Act 1999 the offence that between 1 March 2004 and 1 March 2006 he supplied amphetamines to the deceased. 20 Kaiser has been in custody, bail refused, on these matters alone between 27 March 2006 and 16 June 2006 and from 23 October 2007 to the present, a total period of exactly four months. I shall backdate his sentence so as to commence on 29 July 2007. 21 It was submitted that circumstances are special enough to justify an increase in the period available for parole and a corresponding reduction in the non-parole period. It was pointed out that Kaiser is now thirty-six years old and suffers from bipolar disorder, at present in full remission. He has a serious dependency upon amphetamines and needs the intervention of professionals to help rid himself of it. Putting aside the sentences recently imposed in the Local Court, this will be Kaiser's first custodial sentence. 22 I do not think that these circumstances justify any reduction in the non-parole period. I am bound to impose a substantial period during which there will be no opportunity for parole. During that period the assistance Kaiser needs to overcome his drug dependency will be made available to him. If he puts his mind to it, he will be well on the way to ridding himself of his dependence on amphetamines by the time he qualifies for parole. 23 Because of the commencement date I have chosen, there will be a partial accumulation of this sentence upon the several sentences Kaiser served for subsequent offences, commencing on 23 May and ending on 22 October 2007. The accumulation is not long, however, and I do not intend to adjust the ratio between non-parole and parole periods on account of it. The ratio between the non-parole and parole periods of the sentence I shall impose will be approximately three to one. 24 Hunt was born on 30 May 1986. On 13 April 2004 he was caught carrying a cutting weapon and having stolen goods in his custody. He was dealt with in the Children's Court. In July of the same year he was found guilty of car stealing and possessing implements to do so and was sentenced to imprisonment. On appeal to the District Court, he obtained the benefit of a bond. He breached his bond and was ordered to serve a period of imprisonment. In November 2004 he was convicted of stealing a motor vehicle. In January 2006 he was arrested for breaking and entering and possessing house-breaking implements. He was dealt with for a number of such offences and sentenced to periods of imprisonment the effect of which was a period of 6 months commencing 3 April 2006 and expiring 2 October 2006. 25 It thus appears that Hunt has been held in custody on the present matter alone between 29 March 2006 and 2 April 2006 and from 3 October 2006 to the present time. To take account of these matters I shall order that his sentence shall be taken to have commenced on 28 September 2006. 26 On 26 September 2007, having decided to plead guilty, Hunt volunteered to take part in a further interview with investigating police officers. A transcript of what was said was served on the co-offenders before trial and tendered on Hunt's sentence. In the interview he gave an account of the events of the night of the 19 and 20 March 2006. He said that he had had a conversation with Kaiser in which they said - Should we go up there and have a talk to them and then a bit of a slap or something like that? 27 The reference was to the deceased and Mr Stuckings. The description continued. Hunt told the police that he had had a conversation with Rocco in the absence of Kaiser. Rocco asked him whether he had a gun. When Hunt said that he had, Rocco suggested that he fire shots at the house. The description of events continued, with Rocco driving Hunt to Rutherford without further conversation with Kaiser. The intention, I think, was to give the impression that Kaiser did not know that Hunt was carrying the rifle when he went to Rutherford. The Crown case was that Kaiser did know, and the officers asked Hunt about it. There were these questions and answers - Q176 When Brian dropped you off near that service station, you said that you were picked up by Michelle Rocco? A Yeah.

33 I am not satisfied that the additional interview given by Hunt to the police is evidence of remorse. During the interview he was prepared to admit his criminal involvement up to a point, but he had good reason to do so because there was a substantial case against him based on the incriminating conversations that he knew the police had overheard. Kaiser's alibi having been exposed as false, an important purpose of the interview, it seems to me, was to minimise the part he played. It may also have been Hunt's intention to exaggerate the criminality of Rocco, though it is unnecessary to make any finding about that. 34 The statement of facts agreed between Kaiser and the Crown, including the passage I have extracted, was tendered in Hunt's case. 35 I am satisfied that what Hunt said about Kaiser's lack of knowledge of the firearm was false and I do not think that he has been prepared to give a complete and frank account of the events. I do not think that he is remorseful. 36 The second use Mr Healey wished to make of the interview was as assisting the authorities. After the interview was served on the co-offenders each one pleaded guilty. The authorities were thereby assisted, it was submitted. 37 I do not accept that the interview was given with the intention of assisting the authorities or that it did assist the authorities. I do not infer from the subsequent pleas of guilty that any offender pleaded guilty in part because of the knowledge of the contents of the interview. Kaiser himself agreed to a statement of facts substantially different from what Hunt had said, so plainly it did not influence him. The account I have extracted appears to try to lay a substantial part of the blame on Rocco as the originator of the idea to use the rifle. Yet Rocco offered the plea, which the Crown accepted, to being an accessory after the fact of the manslaughter. 38 In my opinion Hunt has not established any entitlement to consideration for assistance to the authorities. 39 Mr Healey submitted that the sentence should be mitigated because of Hunt's history of the abuse of alcohol and because he had a good deal to drink on the night in question. Reports were tendered by Dr Olav Nielssen, psychiatrist and Mr W John Taylor, psychologist. Neither had treated Hunt. Both interviewed him for the purposes of the reports tendered. Dr Nielssen concluded that Hunt did not meet the criteria for the diagnosis of any psychiatric disorder other than alcohol abuse disorder. Hunt's mother told Dr Nielssen that she had been concerned about his drinking from the age of 13. That was a habit he had apparently learned from his father. I am satisfied that Hunt regularly drinks large quantities of alcohol and has developed a tolerance to that drug. I am prepared to accept that his history to the experts of having been raised in an abusive and dysfunctional family environment is accurate. Mr Taylor tested him and concluded that he was of at least average intellectual ability. He did not have any personality disorder or any significant emotional disturbance. Mr Taylor thought that he had inadequate impulse control. Dr Nielssen thought that he had a fairly immature and impulsive personality. 40 It was submitted by Mr Healey that the evidence showed that Hunt had a good deal to drink on the night of the shooting, so much so that he was under the influence of alcohol when he killed the deceased. I am prepared to accept that he had a good deal to drink because I think that he regularly resorted to the excessive consumption of alcohol. Mr Healey submitted that the effect of alcohol upon him, combined with the impulsivity spoken of by Dr Nielssen and Mr Taylor, mitigated his criminality. I do not agree. First, as he himself admitted, he has developed a tolerance to alcohol. He was capable of making detailed plans and carrying out intricate functions. He prepared for the journey to Rutherford by obtaining a rifle and putting it in a bag. He was able to manipulate the firing mechanism of the rifle. As he told a colleague on the telephone afterwards, he was careful to get out of the car before he fired the shots, lest the cartridges fell into the car, later incriminating him. Before using the cartridges he washed them in a fluid in order to remove any DNA he might have left on them. 41 Moreover, the shooting was hardly done on an impulse. This was a long-standing grudge between Kaiser and the deceased and Mr Stuckings, and one in which Hunt was prepared to involve himself. He had been with Kaiser to the deceased's house on 8 March 2006 and this was a second visit. It was no simple matter getting there. He had to get transport, he had to obtain his rifle and he and Rocco had to make the journey there, a distance of 26 kms. 42 I do not think that the offence was committed more readily or at all because Hunt had had alcohol to drink. He had plenty of time to plan and reflect before taking action. 43 Although there was no intent to kill or seriously injure the deceased and although there was no advertence to the probability that death would result if the shots were fired, the offence was objectively very serious. It was planned. Hunt cleaned the ammunition in order to avoid detection. He organised a driver. He carefully chose a time that would enable his co-offender Kaiser to establish an alibi. 44 Hunt was on conditional liberty at the time, being subject to four bonds to be of good behaviour for two years imposed on 18 October 2004. He was also wanted on a warrant for his failure to appear at court in answer to bail on 24 February 2006. 45 There are mitigating features. Hunt was nineteen years old. Although his record does not entitle him to leniency, it does not make for a longer sentence. 46 Although Hunt has not taken advantage of the opportunities for rehabilitation the Courts have allowed, but has continued to breach the terms of his bonds, there is some prospect of rehabilitation, and I accept the evidence of Dr Nielssen about that. It was submitted that his youth and his troubles with alcohol and the consequent need to come to grips with his addiction made it appropriate to allow an extended period of time on parole with a corresponding reduction in the non-parole period. I accept that there is a need for special attention to be given to alcohol counselling, but it is not to be supposed that that will not begin until Hunt obtains parole. I am obliged to impose a substantial non-parole period during which he may make an effort to overcome his dependence on alcohol. Courses for that purpose will be made available to him in the ordinary course of service of his sentence. It is unfortunate that he rejected the advice of the Probation and Parole officer to enter a course which would then have been made available to him, preferring to defer consideration of these matters until after sentence. I do not think that the need to deal with these matters justifies the increase of the non-parole period. 47 Because of the commencement date I have chosen, there will be a partial accumulation of this sentence upon the several sentences Hunt served for other offences, commencing on 3 April and ending on 2 October 2006. The period of accumulation is not long, however, and I do not intend to adjust the ratio between non-parole and parole periods on account of it. The ratio between non-parole and parole periods of the sentence I shall impose will be approximately three to one. 48 It is necessary to make some comparison between the roles played by Kaiser and Hunt and between the objective and subjective features of their respective cases. The aggravating features of Kaiser's case are that he was the instigator, planner and intended beneficiary of an offence carried out in furtherance of an existing course of criminal conduct, namely the long-time supply of drugs and otherwise for the purpose I have identified. He is a man of mature years. He committed the offence in breach of a bond and of conditions of bail. 49 He is dependent upon the use of amphetamines and has a substantial need to rid himself of his dependency. He has prospects of doing so and has already taken tentative steps. He has a good work history. He is remorseful about the death of the deceased but, I think, does not otherwise seriously regret having taken the action he took. 50 His bipolar disorder is in remission and there is nothing about his state of health that would make it more difficult for him to serve a sentence. 51 His record is not a bad one but the recent emergence of a number of offences of different kinds, including offences of dishonesty, throws doubt upon his prospects of rehabilitation. 52 Hunt is younger. He was willing to lend a hand to solve a problem not his own. He well knew how things stood between Kaiser and the deceased and why Kaiser wanted the deceased punished. He had no qualms about doing whatever he could. He armed himself with a rifle, loaded it and took particular care to avoid being caught. He decided to and did use the rifle. He employed a lethal weapon to carry out a highly dangerous act in furtherance, as he knew, of the enforcement of a drug debt and otherwise for Kaiser's purposes. He acted in breach of the conditions of several bonds and of conditions of bail. He is not remorseful. 53 There are prospects of rehabilitation if he can overcome his addiction to alcohol. 54 Both offenders are entitled to consideration for their pleas of guilty, Hunt more so than Kaiser because his plea, though it came late, was not made at the last minute. 55 Taking these several matters into account I have come to the conclusion that, leaving aside the offence that Kaiser has asked me to take into account and the slightly greater discount which should result from Hunt's earlier plea of guilty, the two sentences should be about the same. 56 Kaiser's acts of supply of amphetamine to the deceased were many. It is impossible to say how many individual supplies there were. They took place over a period of two years. Any supply separately charged would have attracted a maximum sentence of fifteen years' imprisonment. 57 It is appropriate to acknowledge the contents of the victim impact statements which were tendered on behalf of Mr John Robert Macey, the father of the deceased, and Mr Stuckings. The death of the deceased has caused them anguish and sorrow. The sympathy of the Court goes out to them. 58 Counsel put before the Court a number of cases dealing with manslaughter sentences, but I found them of little assistance. None dealt with any question of principle that was useful for present purposes. The facts were quite different from the significant facts in the cases here under consideration. Some were quite old. 59 Brian Andrew Kaiser, for the manslaughter of Shandele Macey, and taking into account the offence disclosed in the document you have signed pursuant to s32 Crimes (Sentencing Procedure) Act 1999 I sentence you to imprisonment. I fix a non-parole period of eight years and two months, commencing on 29 July 2007 and expiring on 28 September 2015 and a balance of term of two years and nine months, which will expire on 28 June 2018. The first day upon which you will be eligible to be considered for release on parole will be 28 September 2015. 60 Jeremy Michael Hunt, for the manslaughter of Shandele Macey I sentence you to imprisonment. I fix a non-parole period of six years and nine months, which will be taken to have commenced on 28 September 2006 and will expire on 27 June 2013, and a balance of term of two years and three months which will expire on 27 September 2015. The first day upon which you will become eligible to be considered for release on parole will be 27 June 2013.

Regina v Brian Andrew Kaiser; Regina v Jeremy Michael Hunt

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Judgment (14 paragraphs)

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