Facts
5 I have a lengthy statement of agreed facts, which I shall summarise in these remarks. The offender's father, Harry Scott, was a builder by trade and a longstanding friend of the deceased, Victor Elliot, who was a radiographer. In 1997 the two men decided to open a brothel in Chinderah, using factory premises owned by Mr Scott. It was to be known as the Stardust Club. They formed a company for that purpose. However, some weeks prior to the opening of the brothel Mr Scott died, and the offender inherited his share of the business.
6 I shall deal with the offender's family background later. At this stage it is sufficient to say that, after the death of his father, he looked upon Mr Elliot as a father figure and it seems that they got on well. They were equal partners in the business. However, their relationship soured after a woman named Dallas Cameron began work at the brothel as a receptionist. She took over the management of the brothel and also became involved in a relationship with Mr Elliot. By the middle of 1999, the offender had taken a particular disliking to her and their working relationship deteriorated. He told Mr Elliot that she should be sacked, to which he responded that he would leave the business if she was. In the end, it was agreed that Mr Elliot would sell his share in the business to the offender.
7 Due to lack of funds, the offender transferred his family home at Tweed Heads to Mr Elliot. Mr Elliot and Ms Cameron moved into that house around September 1999. The offender harboured a great deal of resentment against both of them, particularly because of the transfer of the home. On one occasion he said to a female friend, "I can't believe Vic [Mr Elliot] would take the house. He knows how important it is to me. Dad built the house and I have lived there since I was a kid. I thought Vic was meant to be looking after me."
8 In February 2000, Mr Elliot began the construction of a new brothel about 300 metres down the road from the Stardust Club. This angered the offender, as he understood that there was an agreement that Mr Elliot would not open a business in competition with his.
9 The principal offenders, Dayal Utz and Mike Grupe, had been in the Australian Army. The offender was a member of the Army Reserve, and he met Utz through that connection. They had been friends for many years and shared an interest in guns. He knew that Utz was a gun enthusiast. He had also been told early in 2000 that Utz had a friend and that they were available "to bash or fix up someone".
10 In a number of conversations, the offender told Utz that he was upset because Mr Elliot had set up a competing brothel, and Utz also became aware that Mr Elliot regularly carried significant amounts of cash and was likely to have a large amount of money concealed in the ceiling of his home. In April or May 2000, the offender asked Utz to intimidate and/or harm Mr Elliot. It was agreed that Utz would confront Mr Elliot and cause him some significant physical harm, in the hope that this would make Mr Elliot and Ms Cameron conduct their business more fairly to the offender. It was also agreed that Utz would rob Mr Elliot of his money for his own benefit.
11 At this time Utz had left the army and was living in southern Queensland, in the Tweed Heads area. He contacted Grupe, who lived in Townsville, to recruit him for the task. In mid-May 2000, the two met at a hotel in the Southport area, where they hatched a plan to intercept Mr Elliot at his brothel, force him into a vehicle and drive him to his home, where they would compel him at gunpoint to disclose where the money was.
12 Two days before the fatal incident the offender, Utz and Grupe met at the hotel where they were staying. The offender showed them a photo of Mr Elliot and provided them with a plan of the house. He gave Utz a .22 pistol, which he said had belonged to his father, for use during the robbery, although he did not supply ammunition for it. He also said that he knew he would be suspected of involvement in the robbery, and that he would be with his family at the time, so as to have an alibi.
13 Some months previously, before he left the army, Utz had been employed as a curator of an army museum in Townsville. Early in December 1999, he and Grupe stole a number of guns from the army museum, including 9 firearms capable of firing 7.62 calibre ammunition. They also stole a Nissan Patrol vehicle from the barracks where the museum was. Obviously, these events were well before the criminal enterprise with which I am concerned was planned, and why they stole those firearms and the vehicle is not relevant for present purposes. The significance of this, as will be seen, is that that vehicle and weapons capable of firing ammunition of that calibre were used at the time Mr Elliot was killed.
14 On the day of the killing, Utz and Grupe drove in the Nissan Patrol to the street where Mr Elliot's brothel was under construction. Each of them had an AK47, which I understand to be an automatic weapon, and they had a large amount of 7.62 calibre ammunition, suitable for it. Utz also had the .22 pistol which the offender had given him. It was loaded and equipped with a silencer. Both men were wearing balaclavas.
15 They waited until Mr Elliot got out of his own car to secure the gate to the construction site. Grupe drove the Patrol across the front of Mr Elliot's car, to stop him leaving. Utz got out of the vehicle and approached Mr Elliot, there was a struggle and Mr Elliot ran away. A witness saw Utz punch Mr Elliot, who was calling for help. Grupe got out of the vehicle. There was another struggle between Utz and Mr Elliot, during which Mr Elliot removed the balaclava Utz was wearing. Grupe later told police in an interview that it appeared to him that Utz shot Mr Elliot in the foot. Mr Elliot tried again to run away, so Grupe fired a round or "burst" at him to stop him. He told police that he did not intend to kill Mr Elliot, he just panicked.
16 Utz then shot Mr Elliot while he was lying on the ground. As Grupe described it, he went up to Mr Elliot and "executed him". Observations of a trail of blood by a crime scene officer, together with ballistics evidence, indicated that Mr Elliot had received a significant injury before moving to the area where he died, and that some 15 rounds of 7.62 ammunition were fired into his body while he was lying on his back on the ground. It is apparent that the .22 pistol was also fired, as 10 fired cartridge cases of that calibre were found.
17 Utz and Grupe drove away from the scene, and made their escape by taking back roads. Grupe left the Nissan Patrol in bushland, where he tried unsuccessfully to burn it.
18 Some time after the event, towards the end of 2000, Utz contacted the offender and sought compensation for what had occurred. He threatened the offender that if he did not pay, or if he revealed what had happened to the police or to anyone else, he and his wife and children would be killed. The offender agreed to pay Utz and Grupe $50,000, which he did by three instalments early in 2001.
19 If these events were not extraordinary enough, in March 2003 Grupe killed Utz in Queensland. The circumstances of that killing need not concern us. It is sufficient to say that Grupe shot Utz in the course of a violent incident, in which Utz allegedly held a knife to Grupe's throat. He was tried for murder in Queensland but was acquitted, as I understand it, on the basis of self-defence. The offender offered to pay his legal fees for that trial.
20 While Grupe was in custody awaiting trial, he was interviewed by New South Wales Police about the killing of Mr Elliot. Much of the facts as I have recited them are derived from what he told police in that interview. He pleaded guilty to the murder of Mr Elliot, and was sentenced by Berman AJ to imprisonment for 19 ½ years with a non-parole period of 14 ½ years: R v Grupe [2007] NSWSC 1303.
21 The offender stands for manslaughter on the basis that a reasonable person in his position, planning this enterprise to harm and intimidate Mr Elliot, would have realised that he was exposing him to an appreciable risk of serious injury. He did not intend, nor did he anticipate, that Mr Elliot would be shot at, let alone killed.
22 Although the facts which I have recited are agreed, there is some dispute between the parties about the inferences to be drawn from them. The offender supplied the .22 pistol to Utz for the purpose of the enterprise, and I am satisfied that he knew that Utz and Grupe might be armed with other firearms. Counsel for the offender, Mr Dalton SC, accepted as much. Of course, he expected any firearm to be used only to intimidate Mr Elliot and, as I have said, he did not anticipate that he might be shot.
23 The Crown prosecutor argued that it was part of the plan that Utz and Grupe be armed with automatic weapons, and that the offender knew they would be loaded. He relied on evidence, summarised in the facts, that on 18 May 2000, eight days before the killing, a gun shop at Horsley Park sent a case of 7.62 ammunition to Mr Utz at an address at Worongary in southern Queensland. That was the address of a gentleman who was a friend of the offender and who, apparently, also knew Utz. The offender had asked that gentleman to allow his address to be used, saying that Utz lived "over the border" and that it was necessary to have a Queensland address for the delivery.
24 The timing of that arrangement certainly excites a suspicion that the ammunition was being delivered for use in the criminal enterprise, and that the offender had it delivered to that address so as to distance himself from it. On the other hand, Mr Dalton noted that there was nothing clandestine about the delivery, that it was directed to Utz under his proper name and, indeed, that on 22 May Utz signed for the consignment upon its delivery by the transport company. It appears that Utz held a gun licence in Queensland, and Mr Dalton argued that it was for that reason that it was necessary to have a Queensland address for the delivery.
25 I am prepared to give the offender the benefit of the doubt on this matter. In the circumstances, it is a reasonable inference that the delivery was for Utz's own benefit, given his interest in firearms, and I am not satisfied that it was engineered by the offender for the purpose of the enterprise. That said, although I accept that the use of loaded weapons was not part of the plan, I am satisfied that the offender was conscious of the risk that Utz and Grupe might load the weapons which they carried. This also was accepted by Mr Dalton.