REGINA v Daniel Clayton SCOTT

R v Grupe [2007] NSWSC 1303 CASES CITED : R v Puta and Ors [2001] NSWSC 225 R v Fraser and Spencer [2007] NSWSC 1449 R v Jackson [2009] NSWSC 168

PARTIES : REGINA (Crown) Daniel Clayton SCOTT (Offender)

COUNSEL : Mr C Maxwell QC (Crown) Mr D Dalton SC (Offender)

SOLICITORS : S Kavanagh - Solicitor for Public Prosecutions (Crown) S C Joyner - Matouk Joyner Lawyers (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Daniel Clayton Scott, appeared before me for trial for his alleged involvement in the murder, and attempted abduction and armed robbery, of Victor Roderick Elliot in the north coast town of Chinderah on 26 May 2000. In the late afternoon of that day Mr Elliot was shot dead by two men wearing balaclavas. 2 The indictment contained three counts alleging that the offender was an accessory before the fact to:

(1) the murder of Mr Elliot; (2) the detainer of Mr Elliot with intent to hold him for advantage; and

(3) the armed assault of Mr Elliot with intent to rob him.

In each of the three counts the principal offenders were named as Mike Anthony Grupe and Dayal Utz. 3 The offender pleaded not guilty to the first and second counts. To the third count, accessory before the fact to armed assault with intent to rob, he pleaded guilty to accessory before the fact to assault with intent to rob simpliciter. That plea was not accepted by the Crown. A jury was empanelled. 4 However, the trial proceeded no further. Two days later, after discussions between counsel, he was re-arraigned. On the first count, accessory before the fact to murder, he pleaded not guilty but guilty of manslaughter. It was understood that this was a plea as accessory before the fact to that crime. He maintained his plea of not guilty to the second count, accessory before the fact to detaining for advantage. However, he pleaded guilty to the third count as it was framed, that is, accessory before the fact to armed assault with intent to rob. The Crown accepted those pleas in respect of the first and third counts in satisfaction of the indictment. He stands for sentence for those two offences.

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.

Victim impact statements 26 I received victim impact statements by Mr Elliot's daughter, his brother and his wife, Ms Cameron. I have regard to those statements in accordance with established authority. They are eloquent expressions of the grief and outrage of those unfortunate people at the violent death of Mr Elliot, and of the serious and enduring effects this tragedy has had upon their lives. I extend my deepest sympathy to each of them.

Subjective case 27 The offender was 26 years old at the time of the offences, and is now 37. He has no criminal record. He has been in custody since his arrest on 17 June 2008. 28 His background is sketched in a helpful psychological report of Ms Michelle Player. It was not an easy one. His mother suffered from schizophrenia and, while he described her as loving when she was stable, her behaviour was unpredictable, abusive and sometimes violent, and she tended to drink to excess, when she was psychotic. It seems, however, that his disturbed attachment to his mother may have strengthened his bond with his father, whom he described as "a rock". They had a consistently close relationship. 29 Nevertheless, his father worked long hours as a builder and relied upon the offender to help care for his mother. Her mental health deteriorated, placing strain on his parents' marriage. They separated when he was 11 years old, but continued to live together for another 5 or 6 years because his mother could not live independently. 30 Sadly, as I have said, his father died in 1997, when he, the offender, was 24 years old. The death was sudden, the result of a brain tumour diagnosed only 10 days previously. For a period thereafter, Mr Elliot was a source of support to him, and it was in those circumstances that he came to regard him as a father figure. 31 He had difficulty with reading and writing at school, and left at the end of year 9. He completed a carpentry apprenticeship and worked in the building trade with his father. That was his only work experience until, following his father's death, he found himself to be a joint proprietor of a brothel. That was obviously going to be a difficult position for such a young man, who was completely untrained for it. 32 He married in his early twenties. There were two children of the marriage, now aged 14 and 10. They separated in late 1999, and for the three years between 2000 and 2003 he avoided contact with his wife and children because of the threats which Utz had made against them. Since then, he has seen the children regularly and his former wife is supportive of him and of his ongoing relationship with the children. 33 He has been in another relationship for five years, which appears to be stable. His partner has an 8 year old daughter from a previous relationship, to whom he has been her main father figure. He has maintained contact with them since being in custody, he remains committed to them and he intends to resume living with them upon his release. 34 Ms Player noted his lack of criminal history and the absence of a history of aggressive behaviour, a fact which was confirmed in her telephone interview with his ex-wife. She saw the offences as aberrant. She described his expectation that, if all had gone according to plan, Mr Elliot would not pursue the development of his brothel as "naïve and short sighted". I agree, but the fact remains that it led to his involvement in serious criminality. 35 From her interview and her psychometric assessment, Ms Player did not detect any signs of mental illness and concluded that he was psychologically stable. Nevertheless, from the history she considered that his style of coping with his grief following his father's death and the stressors in his life thereafter was "emotionally avoidant", and she recommended psychological counselling to address these personal issues. 36 I received in evidence a number of certificates attesting to the offender's positive participation in vocational training while in custody. A letter and a certificate from a prison chaplain disclose that he has been involved in meditation and has completed what I understand to be a course of counselling in relation to grief and loss. From all this material it is apparent that he has been a well-behaved prisoner, who has taken up the rehabilitative opportunities available to him within the system. 37 Ms Player observed him to be "genuinely remorseful for his offending behaviour and the resultant death" of Mr Elliot. When he was interviewed by police about the matter, he denied any involvement in the killing and, as I have said, it was not until his trial began that he entered his pleas of guilty. This can be attributed, at least in part, to Utz's threat and his fear for the safety of his family and himself. It is not inconsistent with his being remorseful and having insight into the seriousness of his crimes, which I accept to be the case. 38 The pleas of guilty were offered to the Crown on the Friday before the Monday on which the trial was due to start. It followed discussions between counsel which commenced a few days earlier. The Crown prosecutor fairly acknowledged that they should be seen as "very close" to pleas of guilty on the first day of the trial. They are, of course, late pleas but they averted what would have been a long trial. I shall recognise their utilitarian value by a discount of sentence of 15%.

Sentencing 39 The manslaughter is clearly in the more serious category of offences of that kind. The offender was the instigator of an enterprise which was both unlawful and highly dangerous. As I have said, he knew there was a risk that Utz and Grupe might carry loaded firearms. While he did not anticipate that Mr Elliot would be deliberately shot, he must have been aware of the possibility of the involuntary discharge of a gun in the course of a violent incident. Obviously, Utz and Grupe were experienced in the use of firearms but that eventuality could not be ruled out. 40 The Crown prosecutor noted that the killing occurred in a public street, in circumstances demonstrating a lack of regard for public safety. That is so, but I would not sheet that home to the offender. The plan to intercept Mr Elliot as he left his brothel was hatched by Utz and Grupe, and I am not satisfied that the offender knew that that is how they intended to go about their task. 41 This was a planned criminal enterprise. The armed assault with intent to rob was the aggravated form of that offence under s 97(2) of the Crimes Act 1900, as Utz and Grupe were armed with what is defined in that Act as a dangerous weapon. Both offences were aggravated by the fact that they were committed in company, and the assault with intent to rob was further aggravated by the fact that the robbery was to be perpetrated in the victim's home. Both these aggravating factors were features of the offender's plan. 42 The plan was conceived primarily, although not wholly, for financial gain. That was obviously the purpose of the proposed robbery, although the offender himself was not to receive any of the proceeds of it. However, he was motivated by the desire to protect his business interest in his brothel from competition by Mr Elliot. That said, it was also the product of his animosity towards Mr Elliot and Ms Cameron. I have no doubt that he was emotionally wounded by what he saw as his betrayal by Mr Elliot, a man he had looked up to and who had supported him in difficult times. That, however, is something of a two-edged sword. It provides some explanation for his behaviour, but it is also disturbing that he would expose a man for whom he had had respect and affection to such dangerous and reprehensible criminal activity. 43 The Crown prosecutor submitted that there needed to be proportionality between the sentence for the manslaughter and the sentence imposed by Berman AJ upon Grupe for murder. In Grupe's case, his Honour arrived at a starting point of 30 years imprisonment. He reduced that by 35% in recognition of Grupe's early plea of guilty and the assistance which he had afforded in the investigation of the offender's involvement, so as to arrive at the sentence of 19 ½ years. The Crown prosecutor argued that I should have regard to that starting point, and that it would be inappropriate for my starting point to be less than half of that figure, that is, 15 years. 44 I would not approach the matter in that way. Although Grupe stood for sentence for his part in the same criminal episode, he faced a much more serious charge and his criminality was of a different order from that of the offender. It would not be appropriate to use Berman AJ's starting point as some kind of benchmark. I shall arrive at the appropriate sentence upon the basis of the material before me, having regard to prevailing standards of sentence for manslaughter. 45 The sentences I impose must reflect considerations of retribution and deterrence, although here general deterrence is clearly more important than deterrence of the offender himself. He is a man of prior good character, who has committed serious offences in unusual circumstances, but who retains support in the community and has the capacity to restore his reputation as a responsible and law-abiding citizen when he is released. I think that his prospects of rehabilitation are good. Indeed, I think it unlikely that he would re-offend. Nevertheless, his rehabilitation would be fostered by an appropriate period of conditional liberty upon his release, subject to supervision and the sanction of parole. 46 Mr Dalton referred me to three cases of sentence for manslaughter arising from a killing in the course of a criminal enterprise: R v Puta and Ors [2001] NSWSC 225, R v Fraser and Spencer [2007] NSWSC 1449 and R v Jackson [2009] NSWSC 168. The first two cases involved shootings. Puta and Ors was a decision of my own, while the other two cases were decisions of Howie J. It is not necessary to analyse them. I have had regard to them but, obviously, every sentencing exercise turns on its own facts and circumstances and little assistance can be gained from reference to a small number of other cases. It should be said, however, that there has been an increase in sentences for manslaughter in recent years. I would have to acknowledge that the sentences I passed in Puta and Ors in 2001 would not accord with contemporary sentencing standards. 47 I propose to pass a fixed term of imprisonment for the armed assault with intent to rob and a partly cumulative sentence with a non-parole period for the manslaughter. I shall fix a non-parole period slightly below the statutory proportion so as to preserve that proportion in the aggregate sentence. 48 But for the plea of guilty, I would have passed a fixed term of imprisonment for 6 years for the armed assault with intent to rob. A 15% reduction because of the plea produces a term, in round figures, of 5 years. That sentence will date from the day the offender was taken into custody, 17 June 2008. I would have imposed a sentence of 13 years imprisonment for the manslaughter but for the plea of guilty. A 15% reduction results, again in round figures, in a term of 11 years. I shall fix a non-parole period of 8 years. That sentence will date from 17 June 2009. The aggregate sentence, then, will be 12 years with a non-parole period of 9 years, dating from 17 June 2008. 49 Daniel Clayton Scott, for the offence of armed assault with intent to rob you are sentenced to a fixed term of imprisonment for 5 years, commencing on 17 June 2008 and expiring on 16 June 2013. I decline to set a non-parole period for that sentence because of the sentence I am about to pass. For the offence of manslaughter you are sentenced to a non-parole period of 8 years, to commence on 17 June 2009 and to expire on 16 June 2017, and a balance of term of 3 years, to commence on 17 June 2017 and to expire on 16 June 2020. Accordingly, you will be eligible for release on parole on 16 June 2017. The aggregate sentence will expire on 16 June 2020.

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