Regina v Collisson

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The prisoner, David Leonard Collisson was indicted on a charge of murdering Shahab Kargarian on 8 October 2000. The prisoner pleaded not guilty to the charge of murder and the trial proceeded before me in February 2002. On 26 February 2002 the jury convicted the prisoner of murder. He was then remanded in custody until 13 March 2002 for submissions on sentence. On that day I received evidence on sentence, heard submission from both counsel and adjourned the matter until today. 2 The maximum penalty for the crime of murder is life imprisonment. 3 I am required to find the facts relevant to sentencing. It is necessary that the facts I find be consistent with the jury's verdict. The facts I find relevant to sentencing must be, so far as they relate to findings of facts against the prisoner, be findings arrived at beyond reasonable doubt (Regina v Isaacs (1997) 41 NSWLR 347 at 378). The onus of proof going to matters of mitigation is on the prisoner who must establish such matters on the balance of probabilities (Regina v Olbrich (1998) 45 NSWLR 538 at 543). 4 The deceased and his girlfriend Shabnam Faiz had been boyfriend and girlfriend for about twelve months as at October 2000. She was then in Year 11 and a student at Pendle Hill High School. The deceased was at the time a student at St Pius X College at Chatswood. The two young people had arranged to meet in Chatswood and went for a drive in the deceased's father's Toyota Hilux. Early in the evening, they drove down to Manly and met friends and family and went for a walk along the beach. Later they purchased some food and drinks and returned to the car. They drove back in the direction of North Sydney. It appears the deceased decided that they should go down to Greenwich and find a location where they might obtain a good view of the city lights. It was their intention to consume their food and drinks in that location. 5 The deceased parked the Toyota Hilux in Greenwich Road about 100 metres north of the intersection of Greenwich Road and Landenburg Place. At this location there is a good view of the city lights. 6 The two young people left the vehicle and ate their food and consumed soft drinks while chatting and watching across to the city. They were there for about 10 to 20 minutes. Miss Faiz, whose evidence I accept, said she saw two men approaching from across the road diagonally from her left side. There was a taller man and a shorter man. The taller man came and asked for a lighter. The deceased said he did not have one. The taller man was carrying a big sports bag with a strap across his shoulder. He took a gun out of the sports bag and said to the deceased "Give me your wallet". The taller man then said "Give me your fucking wallet or I'll shoot you". The deceased replied "I don't have a wallet". The taller man then punched the deceased in the face. Miss Faiz said that she moved in between the two men and she was hit on the forearm by the taller man. She nearly fell backwards and the next thing she heard was gunshots. She screamed and saw Shahab holding his stomach. She ran to the car and got in on the passenger's side. She endeavoured to ring the police by dialling "000". She could see the deceased on the ground. She said the taller man was trying to open the driver's door and that he then moved to the rear of the car out of her line of sight. She then saw something which she believed to be the taller man running along the footpath. She then saw the two men running away in a southerly direction down Greenwich Road. Earlier she had said that when the taller man came across towards them at the start of the incident the smaller man was in the middle of the road but he moved back under a tree on the western side of the road. She was not able to remember seeing him at all after that until she saw the two men running away together down the hill. 7 Her description of the two men, although rather general, clearly drew a comparison between the two men. The man with the gun was bigger than the other man and he was taller. The shorter of the two men, she said, was of a very small build. 8 Miss Faiz had been trying to use her phone to call Emergency while she was in the car. After the two men had run away, she came out of the car and went over to the deceased to ask if he was alright, if he could move. After a short while, a young couple in a car came by. Miss Faiz was too frightened and distressed at this stage to make the phone call and gave her phone to the people in the car who called the police. 9 Police officers arrived within a few minutes. The first officers on the scene were Constable Russell and Constable Woodward. They arrived at approximately 12.55am. This was only a very short time after the emergency calls had been made and following which a police radio request had been made for officers to attend the scene urgently. 10 Constable Russell said that he saw the deceased lying on the roadway in the position shown in photographs 1, 2 and 3 in Exhibit "A". He ran to the deceased and checked his pulse. He was able to detect a very weak and irregular pulse. The deceased was still breathing but it was very slow and weak breathing. He died shortly afterwards. Two bullets had penetrated his body. He died as a consequence of a ruptured aorta brought about by one of those bullet. 11 Inspector Cushway had received a telephone call at about 12.50am and he arrived at the scene at Greenwich Road a short while later. There then commenced a very thorough and ultimately successful crime scene operation. First, Inspector Cushway established a crime scene area containing both an inner and outer perimeter. The inner perimeter was confined to the immediate crime scene and was set up to make sure that the integrity of the area near to where the deceased lay remained intact. The outer perimeter was established to keep onlookers and bystanders out. A police officer, Constable Urquhart, was given the specific responsibility of monitoring movements in and around the crime scene. He had the task of logging the movements of anybody who came into the perimeter and the reason for it. There were other police officers as well who were charged with the responsibility of checking the identity of any civilians who were moving in and around the crime scene. 12 The second matter attended to by Inspector Cushway was to take steps to, in effect, shut down the Peninsula. The purpose of this was to prevent movements in and out of the roads and waterways from the crime scene down to the southern point of the Peninsula and its surrounds. Police vessels were called in to patrol the waterways surrounding the foreshore around Greenwich Point and the road systems were sealed off at the northern end by police presence. The effect of this was to effectively barricade any exit points beyond the crime scene. The police had learnt that the two men involved in the incident had run away to the south. The only road exit in and out of Greenwich Point was via Greenwich Road. Once the barricade had been established, this enabled the police to concentrate their search on the area to the south side of the crime scene. 13 The initial part of this search was confined to a relatively limited area to the south of where the deceased's body lay. Inspector Cushway did not wish to extend the search too far at this initial stage. He had made arrangements to have a Dog Squad officer come to the scene with a police dog. In those circumstances he did not wish to contaminate in advance any possible scents or the like. This initial search was in the immediate area of Landenburg Place and there was also a search of vehicles within that immediate area. 14 Shortly afterwards Senior Constable Morris arrived with his dog and Inspector Cushway directed that he and other police officers search in a wider area further south down the Peninsula. The dog squad search commenced at about 1.30am on 8 October. The dog was given instructions to search for human scent. The search moved in a southerly direction through a number of blocks of units and down through Shell Park which is situated on the western side of Greenwich Road below Landenburg Place. A meticulous search was carried out along the bush tracks of Shell Park and then continued further south towards Greenwich Point. Senior Constable Morris was accompanied by Senior Sergeant Barry and Senior Constable Woodward. 15 At about 2.35am when the search had been going on for about an hour, the police officers found themselves near the intersection of Mitchell Road and Wallace Street, close to Leeman Reserve. This is a small park in Greenwich containing tennis courts and grassed recreational areas. Once the officers had passed the tennis court fence line, the police dog indicated that it had detected a human scent coming from the Reserve. There were steps leading from the street up into the Reserve. Senior Constable Morris ran up these steps into the park and shone his torch near where the dog had run. There were two men on the ground up against the tennis court fence line among some bushes and trees. Detective Senior Constable Woodward said that he gained the impression that the men were hiding. The police officers drew their pistols and ordered the two men to lie down on the ground in which position they were handcuffed. The two men were taken by separate vehicles to Chatswood Police Station. One of those men was the prisoner. The second was a Simon Bradley. There was no sign of the sports bag Miss Faiz had described. 16 After the two men had been taken away, the dog squad search continued but it was at this stage confined to the area immediately near where the two men had been located. 17 By the early morning, searches had been carried out in the various nature strip areas in the southern part of the Peninsula and in the front lawns and gardens of houses in the vicinity of Leeman Reserve had been searched. At about 9am, a considerable number of police officers were involved in what is called an extended line search. In this type of search, the officers stand quite close together, not necessarily shoulder to shoulder, but a short distance apart from each other. The officers then move slowly in an extended line "sweeping" the area to be searched. The police made an initial sweep right across the park and then a second sweep was conducted to cover the last part of the park namely the area to the west of it. During this second sweep, a female police officer, Constable Kiem, located a black and blue sports style bag which was under the lowest branch of a tree and in between two large rocks. It was located at about 9.42am. Immediately after the bag was found Inspector Lunney notified Detective Senior Constable Layton from the Crime Scene Unit. He arrived a short time later and took photographs of the bag, the location where it had been found and the items which were contained in it. These items included a partially inside out Asic black coloured sloppy joe. Inside the sloppy joe, there was a silver coloured Smith & Wesson 38 calibre revolver. In the cylinder, there were five fired cartridges and one live bullet. 18 Evidence was given by Senior Constable David Kirk from the Forensic Services Group. He said that the five fired cartridge cases were components of the 38 Smith & Wesson that had been examined and test fired. That is to say, they had been discharged from the very revolver which had been found wrapped in the sloppy joe in the sports bag concealed in the park. Most significantly, the forensic police officer was able to positively assert that the bullet which caused the death of the deceased had been discharged from the Smith & Wesson revolver that was found in the sports bag in Leeman Reserve. 19 Also in the bag were found a roll of silver gaffer tape and a roll of black gaffer tape. Fingerprints tests and DNA tests indisputably linked the prisoner to each of these objects. 20 The prisoner was the bigger and taller of the two men arrested in Leeman Reserve. The other man, Simon Bradley, was considerably shorter and of much smaller build. One of the objects taken from Mr Bradley was a mobile phone. A particularly successful part of the police investigation led the investigating police to Rooty Hill Railway Station from which area a phone call had been made on the mobile phone the previous evening. In turn, the police located film available on closed circuit TV monitors where images of the prisoner and Mr Bradley had been captured at the Railway Station. This was at approximately 9.32pm. The men were seen moving towards the city bound platform at Rooty Hill Station. The prisoner was carrying over his shoulder a bag very similar to the bag located in Leeman Reserve and was wearing a sloppy joe very similar to that in which, on the following morning, the Smith & Wesson revolver was found. 21 A number of residents in the Greenwich area gave evidence of having sighted either a man or two men after the shooting had occurred. The first of these was an Asian couple. They had seen a man in the common property area of their unit block shortly after the shooting. He was again seen, by the husband, in the street a number of minutes later. This man was positively identified as the prisoner. He was not carrying a bag at the time he was seen by the Asian couple. 22 A security guard, Mr Panni, who worked for Shell in a security office in Manns Avenue saw a man carrying a bag run down into Manns Avenue shortly after he had heard some shots. The description of this man was consistent with the appearance of Mr Bradley. He stopped running apparently when he noticed he was under observation and then walked quickly on in a southerly direction. 23 A couple out walking their dogs were passed by two men walking quite quickly at about 1.00am. These two men were walking south from the reserve area down to the southern most point of the Peninsula. Their descriptions bore a resemblance to the appearance of the prisoner and Mr Bradley. The shorter of the two men was walking behind the taller and carrying a bag. The taller of the two men was quite aggressive and quite confident in the remarks he made to the couple as he passed them. 24 A short time after 1.00am, Ms Molloy and Mr Towey saw two men traversing the southern part of the Peninsula moving in an easterly direction along George Street. The larger man sought directions as to public transport and possible means of leaving the Peninsula. Ms Molloy and Mr Towey saw the two men again a few minutes later when they re-emerged from a street further to the south east on the Peninsula. On this occasion, they observed that the larger man appeared to have changed his shirt since they had last seen him. A chambray shirt was found in the southern area of the Peninsula by police officers as was a cap. Ms Molloy positively identified the larger man, who had done all the talking as the prisoner. The smaller man was carrying a bag over his shoulder. 25 The police investigation brought to light a number of other important matters. First, gunshot residue testing showed that a particle had been located on the prisoner's T shirt containing barium and aluminium. Each of these substances was found, together with lead and antimony in the cartridge cases which had been tested. A firearm expert, Ms Bull, gave evidence that the presence of this indicative particle gave support to the proposition of a firearm source although she could not exclude an occupational or environmental source. It should be said as well that an indicative particle was located on clothing of Mr Bradley's which positively indicated a firearm source. Secondly, a partial shoe print was found in the dirt area where the deceased and Ms Faiz had been standing watching the city lights. This partial shoe print was made by a boot of the same size, shape and tread pattern as the boot the accused had been wearing on 8 October 2000. Thirdly, a latent thumbprint found on the handle of the driver's door of the white Toyota was established as being identical with the prisoner's left thumbprint. 26 Finally, a considerable number of telephone calls were made from Mr Bradley's mobile phone between 1.43am and 2.10am on 8 October. There were in fact eight calls with seven of these to Suzanne Stockham of Highfield Road, Quakers Hill. She was, as it appeared later, the prisoner's de facto wife. 27 In my view, having regard to this substantial body of circumstantial evidence there is little difficulty in determining the facts upon which the jury relied to convict the prisoner of murder. The central and critical issue in the trial was whether the Crown had established beyond reasonable doubt that it was the prisoner who shot the deceased on the roadway in Greenwich Road. The hypothesis advanced by the defence case was that it may have been Mr Bradley who shot the deceased. I am satisfied beyond reasonable doubt, consistently with the verdict of the jury, that it was the prisoner who shot and killed the deceased. In my opinion, the evidence that establishes that this is so is absolutely overwhelming. 28 The facts I have briefly stated not only establish the prisoner's guilt in relation to the offence. They demonstrate a number of features that are very important in the assessment of the gravity of the objective seriousness of the offence and the degree of criminal culpability involved. 29 Indeed, it should be said at this stage that the Crown has submitted that this is a case where the level of culpability is so extreme that the community interest in retribution, community protection and deterrence can only be met through the imposition of the maximum sentence. The maximum penalty provide for in the Crimes Act for the crime of murder is imprisonment for life (s 19A(1)). The Court may nevertheless impose a sentence of imprisonment for a specified term (Crimes (Sentencing Procedure) Act 1999 s 21(1)). 30 I should say immediately that I have given very careful consideration to the submission made by the Crown. I have come to the conclusion, however, that this is not a case in which I am satisfied, within the terms provided for in s 61 of the Crimes (Sentencing Procedure) Act that I should impose a maximum sentence. In coming to that decision I have taken into account that s 61(1) has not introduced a code that is narrower than the common law "worst case" category of cases (R v Harris (2000) NSWCCA 469 (paras 87-90). For that reason, I have given consideration to a number of decisions cited to me by the Crown in which the meaning of the expression "worst case" remain relevant. There are three reasons why I think that the killing in the present case does not fall within the "worst case" category and does not reach the level of culpability required under s 61(1). I shall state those reasons. 31 Before doing so however, I wish to make it clear that I consider that the level of culpability in the instant offence is nevertheless at a serious level indeed. This was, let there be no mistake, a very bad murder. 32 The three reasons are these. First, I accept that the shooting was not as the result of any carefully planned premeditation. True it is the prisoner had the gun in the bag over his shoulder but I do not find that he set out on the evening of 8 October with any necessary intention to kill or harm any person. Secondly, the circumstances that led to the killing were essentially, as has been submitted, a robbery that went wrong. There was clearly a confrontation of some kind between the prisoner and the deceased when the deceased was struck in the face. There was no more to it however than that; and the confrontation, such as it was, was on completely unequal terms. One man, the prisoner, was armed, large and aggressive. The other man was much younger, was unarmed; and no doubt concerned not only for himself but concerned to protect his young girlfriend as well. 33 The third matter of relevance to the these considerations is the fact that the prisoner comes before the Court as a 31 year old man with an absence of any significant prior history of violent conduct. There is nothing of relevance in his criminal antecedents of a violent kind apart from an unlawful assault in 1992. For this offence he was convicted and fined $150.00 in the Shepparton County Court on 2 March 1993. I consider that I am at least entitled to infer in the light of the absence of any previous significant history of the kind nominated, that the murder of deceased, dreadful though it was, represented an aberration from this man's usual pattern of conduct. 34 For those reasons I reject the Crown's call for the imposition of a life sentence. 35 The fact remains, however, as I have indicated, this was a killing that was objectively very serious indeed. First, it was occasioned by the use of a loaded firearm. The community rightly has an abhorrence in relation to the use of deadly weapons, often in random circumstances, which bring about the deaths of innocent citizens. Second, there was nothing disclosed in the evidence which would explain, justify or illuminate why it was that the prisoner open fire on the unfortunate deceased. The young man was unarmed and completely defenceless. Although there had been something in the nature of a scuffle and although Miss Faiz had attempted to step in between the two men, it was a completely one sided event. The deceased was struck, Miss Faiz was pushed aside and fell nearly to the ground. There is no evidence to suggest, at that point or immediately after it, the deceased offered any physical resistance to the prisoner. Rather from the nature of the wounds it appears that the deceased was turning away to avoid the shots. He was, according to acceptable expert opinion, more than a metre away from the deceased when he was struck by two of the bullets. The shots, or at least some of them were fired immediately after Miss Faiz screamed and started to run towards the car. 36 Thirdly, the evidence suggests that four or perhaps five shots were fired. In other words the prisoner kept firing at the deceased until he knew he had hit his mark. Two bullets penetrated the deceased's body, the second rupturing his aorta and killing him. The continued pattern of shooting is a chilling indicator of the plain intention the prisoner had at the time of firing, that is an intention to shoot until he had killed the victim. This matter is a very serious indicator of the objective seriousness of the offence. 37 Before turning to the subjective features of the prisoner's case, I should say at this stage that, pursuant to s 28(2) of the Crimes (Sentencing Procedure) Act 1999, I have received Victim Impact Statements from the deceased's mother and father. These statements speak movingly and tragically of the devastating and continuing effect upon themselves and members of their family of the tragic, costly and untimely loss of their son and brother. One could not but be moved by the very real statements that identify the effect of this tragedy on members of the Kargarian family. The Court extends to Mr & Mrs Kargarian and their children its sympathy, fully realising the futility of mere words at such a tragic time. It is to be hoped that the opportunity to express grief and loss through these statements may, at least, go some way towards helping them cope with the tragic loss of Shahab Kargarian. 38 I have come to the conclusion however, that in accordance with the principles in Previtera (1997) 94 A Crim R 76 and Bollen (1998) 99 A Crim R 510 that it is not appropriate to have regard to those statements in determining what sentence should be passed on the prisoner. 39 I turn now to consider the prisoner's subjective features. This is a case in which I have been given very little material from which I can gain an insight into the personality and character of the prisoner. Nor do I have any real insight into that which lay behind his actions on 8 October 2000. The prisoner has given no evidence before me during the sentence submissions nor has any one on his behalf. I have been provided with a report from Dr Bruce Westmore dated 30 October 2001 (Exhibit 1) which was prepared well before trial to determine fitness for trial. This report tells me that the prisoner is 31 years of age, that he has been divorced for six years and has a son from that marriage who is now eight years of age. He maintains a close relationship with his ex-wife. The second relationship is a de facto relationship that has been in place for some seven years and from that relationship there is a two year old son. 40 The prisoner is the middle of three children. He has sisters aged 33 and 22 and he has a very close relationship with all his family members. His parents separated when he was aged eight or nine. His mother is aged 53 and lives in Victoria. His father died at the age of 50. The prisoner himself was born in Sydney and grew up in the Hunter Valley and Victoria. He lived with his mother after his parents separated but saw his father regularly during his formative years and lived with his father in his late teenage years. He was educated to Year 10, was an above average scholar with many friends at school and good relationships with his teachers. He left school to join the Navy but returned to school for six months before completing those arrangements to join the Navy. He remained in the Navy for about four years. He was an Able Seaman who was honourably discharged. He worked as a car salesman and was employed up to General Manager level. He has always been employed and has never been dismissed from employment. 41 He has been in prison now effectively since the 8 October 2000. In prison he is visited by his ex-wife and current partner; by his mother, sister, two children and his partner's children and friends. 42 Exhibit 3 includes a number of records relating to his progress in prison. He has worked in a metal shop in the prison and he has been doing an apprenticeship. He is an Inmate Delegate on the Inmates Delegates' Committee meeting with the Governor to represent and discuss the needs of the inmates at the Centre. He has conducted himself well while in prison keeping out of any of the troubles that often occur in Corrective Centres. His inmate Work Performance Record is good. Reports from the Western Sydney Institute of TAFE confirm his enrolment in a number of modules consistent with his work in the Prison Metal Shop. He has completed a number of Courses while in prison including an Anger Management Course.

Submissions on Behalf of the Prisoner 43 Mr Russell has a made a number of submissions on behalf of the prisoner. First, he has pointed to statistics published by the Judicial Commission of New South Wales, these relating to sentences for males with no relevant prior convictions, a plea of Not Guilty and in the 21-30 year old age bracket. His submission was that 76% of these cases (between July 1994 and June 2001) were dealt with by a minimum term of 16 years or less. Secondly, Mr Russell prepared a chart from details of "Analogous Cases", that is where a death has occurred during the commission of a robbery. From the statistics and the chart he argued that the appropriate minimum term range is in the order of 10 to 15 years. While these statistics and comparisons are of assistance, it is nevertheless necessary to place the seriousness of this offence in its precise context. 44 Thirdly, Mr Russell has submitted that he is entitled to have special circumstances taken into account in the fixing of any non parole period (Crimes (Sentencing Procedure) Act 1999 s 44(2)). He emphasised two matters in his submissions. These were the prospects for rehabilitation and the presence of remorse. As to the first, Mr Russell submits that the prisoner has above average prospects of rehabilitation and would benefit more from supervision on parole than from incarceration. The second matter argued by Mr Russell suggests that the Court is entitled to find that the prisoner has evinced remorse for his actions and this maybe seen in the fact that he has undertaken a variety of training courses in an attempt to further his education. He has completed an Anger Management Course and has displayed a willingness to help others, through his work with young offenders who are also in custody. 45 While I accept that it is often the case that an underlying premise behind a finding of special circumstances is the prospect of rehabilitation (Moffitt (1990) 20 NSWLR 114) I consider that, having regard to the length of sentence I propose to impose, the period of parole that will result, if the usual proportion of the non parole period to the total sentence is maintained, will be sufficient for the prisoner's rehabilitation upon release without any further extension. 46 I regret to say that I can find no evidence of remorse and contrition in the prisoner regarding the death of the deceased. One matter that was drawn to my attention was that after I had left the Court on 26 February 2002, the prisoner addressed the parents of the deceased. According to counsel, the prisoner indicated from the dock that he was very sorry for what had occurred to their son but he insisted that he did not shoot him. 47 As I say, I did not hear the statement nor was I in a position to observe the demeanour of the prisoner when he made it. It seems to me that it was a self serving statement and provided very little evidence of true remorse. The prisoner has never acknowledged that he shot and killed Shahab Kargarian and there is no material before me which demonstrates remorse and contrition at all. The prisoner has simply failed to face up to and take responsibility for his actions. His progress in prison though, commendable does not satisfy me otherwise. 48 I have considered and given attention to all of Mr Russell's submissions on the prisoner's behalf. I have given attention especially to the prisoner's subjective circumstances; to the absence of any significant or relevant criminal history and to the impact a substantial sentence will have on his de facto wife and his and her children. It remains the case however that the sentence I pronounce must sufficiently recognise the high objective seriousness of the particular circumstances of the offence for which the prisoner has been convicted; and recognise the high level of culpability involved in his actions. 49 This was a cold blooded, callous and cruel shooting of a defenceless young man in circumstances where there was no warrant whatsoever for the prisoner's action. He determined to end this young man's life and kept firing until he had achieved his object. 50 The death of Shahab Kargarian was tragically needless. A valuable and cherished human life was snatched away in the pursuit of an attempted petty robbery. 51 The gravity of the offence and the degree of the prisoner's culpability having regard to the circumstances I have outlined are to be denounced and condemned by the length of the sentence that I must set. I do take into account however those matters in the prisoner's favour that I have set out earlier. 52 In my opinion there are no special circumstances in the present case. I have already indicated why this is so in relation to that aspect of the prisoner's claim to special circumstances based upon the need for the prisoner's rehabilitation on release. There are no other circumstances that I have been able to identify that would warrant the finding of special circumstances and hence justify a shorter than usual non parole period (Simpson [2001] NSWCCA 534). 53 I have concluded that I should impose a sentence of 24 years imprisonment. In setting a non parole period, I find, for the reasons that I have stated, there are no special circumstances for the non parole period to be less than three-quarters of the term of the sentence. The prisoner has been in custody since 8 October 2000. I propose to back date the sentence to take into account this time spent in custody. 54 David Leonard Collission, I sentence you to 24 years imprisonment. This sentence is to commence from 8 October 2000. I set a non parole period of 18 years commencing on 8 October 2000 and expiring on 7 October 2018. The prisoner will be eligible to be released on parole on that day.

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