Regina v Ide

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

1 HIS HONOUR: On 2 October 2003, Mervyn John Ide (whom I shall refer to as "the offender") was found guilty of the murder of his sister Karen Lee Fallon. I shall refer to Mrs Fallon as "the deceased". 2 Following the verdict of the jury the offender was thereupon convicted of the crime of murder. This offence carries with it a maximum penalty of imprisonment for life. 3 It now falls for me to pronounce sentence on the offender. 4 My first task is to find the facts relevant to sentence. The tragic events which culminated in the shooting and death of the deceased had their background in the dispute which emerged between brother and sister in about April 2001. Behind that dispute there existed until that time a normal rural family relationship. 5 The offender was the youngest of six children in the Ide family. He bore the same name as his father, Mervyn Ide Snr. There were four girls and two boys. The family owned rural property at Ulong out the back of Coffs Harbour. This, it appears, was a valuable rural property and was in two separate portions. The property operated in due course as a rural cattle-grazing property. The offender and his father were in partnership on the property running a cattle-grazing business. They had done so for a number of years. There was a close relationship between father and son. There is an abundance of evidence to suggest that Mervyn Ide Snr had told a number of people that he proposed to leave the Ulong property to his son and in relation to his daughters they were, upon his death, to have the proceeds of a number of insurance policies. The offender worked hard on the property with his father and it appears that his life was mainly led in the context of this rural rather isolated environment. The offender was not a successful student at school and left at an early age. His ability to read and write was quite limited. Nevertheless, he appears to have been a diligent worker on the family property and believed that his father had made a Will leaving the property to him. 6 In the period 1999 to 2000 Mervyn Ide Snr became ill. He was eventually confined to a nursing home in Maclean suffering increasingly serious dementia and Parkinson disease. He is still there to this day. In circumstances that were not explained in the evidence Mervyn Ide Snr gave a Power of Attorney in favour of his daughter Karen Fallon. This happened on 4 May 2000. The fact that the deceased held a Power of Attorney from her father did not present any problems initially. In April 2001, however, a local solicitor, Mr James, purporting to act on behalf of Mervyn Ide Snr, wrote a letter to the offender. Instructions in relation to the contents of this letter came from the deceased. The letter contained a number of complaints about the offender's dealings with the rural property and income from the partnership. It called upon the offender to answer the various areas of complaint promptly. The letter clearly had an adverse impact on the offender. He was plainly upset by the charges levelled against him by his sister. Shortly afterwards he rang the deceased and threatened both her and her husband. It is fair to say that the deceased did not take this threat too seriously and it was apparently seen as something of a laughing matter within the family. I am satisfied beyond reasonable doubt however, that the offender was in fact angered by his sister's actions and upset by the challenges which had been made to his dealings with the partnership. Mr Pankhurst, a local Stock and Station agent who knew the family well said the eventual sale of partnership assets was needed in order to cater for Mervyn Ide Senior's requirements during his failing years. The letter of 20 April 2001 made in effect, the same assertion. A notice of dissolution of partnership was in fact served by the solicitor Mr James on 16 May 2001. There was a somewhat subdued attempt to have an independent solicitor interview Mervyn Ide Snr but a Dr Hope certified that by now he was "totally unfit to make any decisions about his financial affairs". 7 On 29 June 2001 the offender replied to the solicitor's letter of 20 April 2002 by sending a letter directly to the deceased. This, in effect, sought to avoid the involvement of lawyers in the dispute and sought a meeting to resolve differences. Although this letter on its face had been written by the offender it had in fact been composed, typed and sent by a friend of his, a retired Westpac bank manager whose name was Mr Geoffrey Johnson. The latter provided advice to the offender from time to time in relation to business matters. This attempt to resolve informally the burgeoning dispute between brother and sister came to nothing. 8 Thereafter, things went from bad to worse between the offender and the deceased. The offender sought the intervention of the Equity Court after he had lodged caveats on the title of the rural property. This procedure proved to be unsuccessful and in October 2001, the offender, through his solicitors, Murray Backhouse Turner, was forced to uplift the caveats which had been lodged. The separate portion of the rural property known as "Henrys" was then sold by a private treaty between the deceased, acting under the Power of Attorney, and a neighbour, Mr Brown. It is clear that the offender was upset by this sale and, in particular, by the fact that he thought it had been sold at an under-value. On 6 November 2001, again pursuant to the Power of Attorney, the deceased sold 47 head of partnership cattle for over $23,000.00. On 9 November 2001 the Supreme Court appointed a Receiver to the dissolved partnership with a view to the seizure and realisation of partnership assets. Mr Chris Browning of Sims Lockwood was appointed to carry out the day to day tasks of the receivership duties. It was he who took steps to freeze the Banana Coast Credit Union account conducted by the offender. This was done on the basis that the account related to partnership monies, although it appears that there was a legitimate argument to support the proposition that non-partnership monies belonging to the offender were also in the account. The practical consequence of this action was that the offender was left without funds towards the end of 2001. The second step undertaken by Mr Browning was an attempt to inspect and value farm equipment such as the tractor, ute and truck which were used on a regular basis by the offender. It was plain that the offender saw these actions of the receiver, particularly if they were to lead to the ultimate sale of this equipment, as likely to deprive him of the means of carrying out his livelihood as a farmer and as a fencing contractor. 9 In January 2002 the offender learnt that a new Holden Rodeo utility had been bought in the name of his father and that this had been arranged by the deceased. She and her husband were the users of it. This event, particularly against the background of the freezing of the bank account and the threatened sale of his own farming equipment, was likely to have further inflamed the situation between brother and sister. In fact, about 23 or 24 January 2002, the offender had a conversation with Mr Bryson Walters. The offender told Mr Walters that his sister was making it very hard for him. He said that he looked like losing the property, the cattle were going to be sold and he said to Mr Walters "I'll get even with her … I will shoot the bitch" or words to that effect. 10 A good friend of the offender, Mr Serisier, gave evidence that he saw the offender on the evening of 17 February 2002. He described the offender as being in a depressed state and upset. The offender told him that his sister had said that day "she was going to take everything". Other witnesses spoke of the offender's mental state and condition at this point of time. 11 On 18 February 2002 arrangements had been made for a meeting out at the Ide property early on that morning. These arrangements were made between the deceased, Mr Browning on behalf of the receiver, and the Stock and Station agents who had been instructed to sell the balance of the partnership cattle still on the Ide property. The purpose of the meeting was to enable a mustering team to assemble there with a view to seizing the remaining cattle and taking them to town. I am satisfied that neither the offender nor his de-facto partner, who were on the property that morning, knew beforehand that these events were going to take place. The first that they knew of the arrangements was when they saw persons on horseback begin the mustering process in the back paddock. 12 The sequence of events which then ensued, culminating in the eventual shooting of the deceased, occurred quite rapidly. The musterers moved the cattle through the property with a view to placing the animals on the rural road nearby known as Seccombe's Lane. The offender's de-facto left the property with the children in their red Commodore sedan. This took her past the cattle yards on Seccombe Lane where Mr Browning, the deceased and a family friend, Neville Cavanagh were standing near the cattle yards. A little earlier that morning there had been a telephone conversation between Mr Browning and the offender. This had occurred when the deceased, Mr Browning and Mr Cavanagh were in a motor vehicle travelling across the paddocks to inspect the stock that was being mustered. During this conversation there had been an angry and heated exchange between Mr Browning and the offender which would have been heard by all in the vehicle. 13 After the offender's de-facto had driven past the cattle yards, the offender himself drove down to this position from the house on the property. When he reached the group near the cattle yards he stopped the vehicle and alighted. It was clear to all that he was both angry and upset. 14 There was then an aggressive exchange between the offender and Mr Browning relating particularly to the angry telephone conversation they had had earlier that morning. Mr Browning put his hands on the offender's chest and either pushed or held him at a distance while angry words were exchanged between them. The offender said "Tough guy, hey", returned to his vehicle and reversed back up the road with the wheels spinning markedly. Mr Cavanagh who was standing nearby during this exchange said that, although the offender first accelerated away in his car after the exchange, he then came back down the hill and pulled up beside the deceased. He said "You're going to fucking get it girl" and then pointed to Mr Cavanagh and said "You're going to fucking get it too". It was then that he reversed a second time back up the hill over the brow of the hill out of sight. Mr Browning however did not observe or hear these threatening remarks by the offender. 15 It was not possible for the offender to reverse very far up the road towards the entrance to the property. This was because the cattle were now moving down the hill with the musterers leading and guiding them. Mr Browning said that he saw the offender's vehicle stop reasonably close to the cattle and then drive back down towards him. In fact, the offender drove past him about 20 metres or so. When Mr Browning looked, he saw the barrel of a rifle protruding from the driver's window. At that point the vehicle was adjacent to where the deceased and Mr Cavanagh were standing, near two other parked vehicles. Mr Browning said the offender then turned the gun and aimed it towards him. He turned and dived under the fence into the stockyards and rolled out of sight. 16 According to Mr Cavanagh, the offender then came towards the Holden Rodeo, first advancing towards the deceased and then coming around the other side of the vehicle towards Mr Cavanagh. The deceased called "Don't Merv" and the offender continued to move from one side of the vehicle to the other. He moved back to the side where the deceased was by now standing, near the centre of the passenger's side of the Rodeo. She was crouching down in this location when Mr Cavanagh lost sight of her momentarily. Mr Cavanagh said the offender and deceased were at that moment about one and a half or two metres apart. He said the offender brought the rifle up, took careful aim and "just pulled the trigger". Only one shot was fired. The deceased clutched herself and said "The bastard shot me". She ran back towards the rear of the Rodeo and beyond it for a distance of about two or three metres. She collapsed to the ground. Mr Cavanagh went to attend her but realised from the position of the bullet that there was no chance of survival. An ambulance was called but the deceased had died very shortly after being shot through the heart. 17 The offender fled the scene in his motor vehicle and later that morning was arrested and taken into police custody. 18 Consistently with the jury's verdict, I am satisfied beyond reasonable doubt that, in general terms, the description given by Mr Cavanagh of the details of the actual shooting was accurate. That is to say, I am satisfied beyond reasonable doubt that the accused raised the rifle to his shoulder in the manner described by Mr Cavanagh, took careful aim and shot directly at the deceased who was only about two metres from him at that moment. I am satisfied beyond reasonable doubt that, at the moment of firing the rifle, he intended to kill his sister. 19 I am not satisfied beyond reasonable doubt however that the shooting was pre-mediated in the sense that it had been planned by the offender prior to the morning of 18 February 2002. Moreover, I am satisfied beyond reasonable doubt that the intention to actually shoot his sister was formed only when he drove back down the road a second time, with the rifle out the window pointed first at Mr Browning and then towards Mr Cavanagh and the deceased. While it is true that the offender had made threats to the deceased back in May 2001 and made threats about her to other people in the months following, including a threat or threats to shoot her, I am not satisfied beyond reasonable doubt that these were other than expressions of bravado or statements of angry frustration and exasperation arising from his perceptions of her actions as being unreasonable. Although his words on these occasions were consistent with an earlier intention to kill or cause serious harm by shooting, I am not satisfied beyond reasonable doubt that they should be categorised in that way in all the circumstances. I accept that the offender was an uneducated man, capable at times of very coarse language and coarse behaviour; and that his ability to communicate his feelings was limited by these features of his personality. There can be no doubt, as I have said, that the events of the morning of 18 February 2002 infuriated and angered him to the point when, armed with the rifle, he decided at that point of time to shoot his sister. 20 Again, consistently with the verdict of the jury, I am satisfied beyond reasonable doubt that the Crown has eliminated the reasonable possibility of provocation. Notwithstanding that the Crown has eliminated provocation, I nevertheless consider that it is permissible for me to examine the offender's conduct in the light of the circumstances I have briefly outlined in this summary of the facts leading up to the shooting of the deceased. It may be accepted that the offender, rightly or wrongly, had a perception that his sister was endeavouring to split up the farm, sell off the farm assets and, from his point of view, destroy his anticipated inheritance of the property in a way that was the very opposite of his father's stated intentions when he had been in good health. It is also plainly the situation that he saw her actions as likely to destroy his livelihood and impact on the financial situation of his family. At the time of the shooting he was clearly in a state of great anger and frustration which had been contributed to by his perception of the events of the preceding ten months, culminating in the heated events of that morning, 21 It is a tragic irony that the circumstances I have described plainly gave warning of an impending catastrophe which could have so easily been averted in any number of ways, had either of the participants to the dispute been appropriately counselled; or had there been an opportunity afforded to them to resolve their differences amicably. The deceased's life was tragically lost and the offender's life has been tragically wasted by this quite unnecessary culmination of violence at the end of an ever worsening and bitter family dispute. 22 I shall turn in a moment to consider the offender's subjective features and the submissions made generally to the level of criminality involved in the present offence. Before doing so however, it is necessary for me to refer to the Victim Impact Statement which I have been given. This is a statement from Rodney Fallon, the husband of the deceased. 23 The statement informs the Court of the very significant effect the tragic and unnecessary death of the deceased has had on Mr Fallon. It has clearly had an emotional, psychological and serious physical affect on is well being. It is to be hoped that the opportunity to express these very deeply felt matters of grief and loss may help Mr Fallon in some way to cope with the tragedy that has befallen him, and, for that matter, befallen the other members of the Ide family. 24 I should make it clear however, that the material was not admitted for the purpose of increasing the penalty otherwise appropriate to the crime and has not been taken into account or used by me to aggravate the severity of the crime. I have given consideration to the contents of Mr Fallon's statement but I do not consider that it is appropriate to have regard to the contents of the statement in determining what sentence should be passed. (See s 28(4)B of the Crimes (Sentencing Procedure) Act 1999; Previtera (1997) 94 ACR 76; Bollen (1998) 99 ACR 510). 25 I turn now to the offender's subjective circumstances. They may be very briefly stated. The offender is now 31 years of age. He has a partner, Jennifer Corbett who gave evidence in the trial and who has been present throughout the entirety of the proceedings. He has two children from this relationship. The family has now been evicted from the Ide rural property and is living with Ms Corbett's family. 26 The offender has no criminal history and is otherwise a person of good character. He appears to have been well regarded by a number of business people with whom he has worked over the years. These include Mr Serisier and Mr Johnson who gave evidence during the trial. There are references as well from local people such as Mr Trevor Pettman and Mr Richard Aston. The latter said in his reference: - "I have always found Merv to be an amiable, friendly and likeable sort of person who has a strong sense of family commitment and loves his children and is in my opinion a warm compassionate partner to his spouse. In my many dealings with Merv he has always been thoroughly honest, straightforward and told it as it was, although he had a bit of larrikinism in his personality in that he was outspoken, I found him a totally companionable type." 27 There are a further eight references which I have read and which describe the offender in similar positive terms. 28 I am also satisfied that the offender has shown remorse for his actions. Indeed, it would be quite unthinkable if a man who has shot his own sister in the circumstances I have described did not feel substantial remorse. The matter which lead me to this conclusion are these: first, the solicitor for the offender has given evidence that on the day when the jury returned its verdict she had a conversation with him in the interview cell at Grafton Police Station. He told her that he had wanted to say something publicly in court to the effect that he was sorry for killing his sister. Secondly, the offender has placed before me a letter which was dictated by him to the psychologist at the MMRC Ms Amie Hollands. It will be recalled that the offender has difficulty in reading and writing. The letter states: - "I take responsibility for my actions on the day and realise that I should not have taken the gun with me when feeling as emotional as I was at the time. I had a lot on my mind on this particular day and felt stressed out pretty bad, lots of things had come to a head. However, I did not intend on harming my sister in any way and would take it all back if I could. She is still my sister, we were close and I still love her and wish that this had never happened. I think of my sister every day and she is still in my heart. I feel great remorse for my actions, and realise that this should never have happened." 29 The offender signed his name to the letter which is dated 22 October 2003. 30 The Crown submitted that the offender's immediate response to Detective Snr Constable Atkinson on the morning of the shooting did not indicate the presence of remorse. During the relevant interview, he was asked by the police officer how he felt about what he did. His answer was: - "I am not happy about it, I suppose I shouldn't have done it but what do you do." 31 Notwithstanding the Crown's forceful submissions about this particular response, I remain satisfied that the offender is genuinely remorseful for his actions. His response to the police officer in the context in which that occurred, especially given the intense emotional state he was in at the time, does not dissuade me from the general satisfaction I feel in relation to this issue of remorse. The offender will have to live every day of his life with the knowledge that his own angry and impetuous actions deprived both himself, Mr Fallon and other members of the family of a valued family member. This will be a heavy and painful burden for him to bear. 32 Moreover, in one sense, I think the offender has by his actions acknowledged responsibility for the death of his sister. While it is true that he maintained a plea of "not guilty" to the murder charge, he apparently indicated through his solicitors at a very early stage that he would be prepared to plead guilty to manslaughter on the basis of provocation. The Crown, as it was entitled to do, did not accept the plea proffered on the basis I have described. During the trial itself, the offender pleaded guilty to manslaughter on the basis of a dangerous and unlawful act. Again the Crown did not accept this plea, made in front of the jury. The major issue at the trial itself was whether the offender was to be found guilty of murder or manslaughter, the issue being one of provocation. While these actions do not earn any discount for the offender in terms of s 22(1) of the Crimes (Sentencing Procedure) Act (1999), they are evidence of the fact that he has accepted responsibility for his sister's death and, in that sense, they reflect the presence of genuine remorse. 33 The difficult issue in the present sentencing process is to determine the overall level of criminality involved in the offender's actions and to determine his punishment accordingly. There can be no doubt that he has a strong subjective case. It needs to be recalled that murder has always been regarded as the most serious offence in the criminal calendar. Generally, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment including general deterrence. 34 Mr Bruce submitted that there was provocation in the present matter and that it was out of the ordinary in this case. For that reason, he argued that the Court should impose a sentence which reflected a low level of objective criminality. In that context he argued for a sentence substantially less than the "norm" for the offence of murder. Mr Harrison for the Crown suggested that the circumstances did not amount to provocation and that the offender had acted in a cold blooded and planned way to end his sister's life. He suggested that the level of criminality placed the offence in the upper level of the range rather than the lower. There is no dispute between the parties that the Court may act on the principle that, although the provocation of the victim or the mental state of the offender do not reach the level required to reduce murder to manslaughter, the circumstances of the offence may be taken into account as mitigating the objective severity of the conduct which, by the jury's verdict, amounts to murder (R v Peters [2002] NSWSC 1234 at para 79; R v Bell (1985) 2 NSWLR 466). 35 In my view, this principle has application in the present case. I accept that the offender's actions on the morning of 18 February 2002 occurred, as I said earlier, when the offender was in a state of extreme anger and frustration. This had been brought about by his perception of the events involved in the dispute between his sister and himself during the preceding ten months, culminating in the heated events of that morning. These unusual circumstances ignited an explosive mix of anger, frustration, disappointment and hostility in the offender and led to the decisions and actions for which he is now to be sentenced. I wish to make it clear that, in viewing the circumstances in this way, I am not being in any way critical of the deceased. I have heard only one side of the dispute which erupted between brother and sister and I am not in a position to pass judgment on the rights and wrongs of that dispute. It is with the consequences of the dispute that I am concerned, not its merits or demerits. 36 I am unable however to agree with the Crown's submission that the offender's actions were motivated by the prospect of financial gain. In fact, the offender's actions, if he had paused to think about it, could only have brought him financial ruin, as they indeed have. Moreover, although his concerns undoubtedly were with the land, the cattle, the farming implements and vehicles, the real dispute centred upon his perception of the loss of the inheritance and livelihood, that is those things he anticipated he would receive from his father. 37 Before passing sentence I should add that I have endeavoured to take into account all of the considerations set out in s 21A of the Crimes (Sentencing Procedure) Act 1999 and have given careful consideration to each of the matters dealt with in that section. These reasons encapsulate those factors, both aggravating and mitigating, mentioned in the legislation that I consider to be most relevant to the present sentencing procedure. 38 In relation to the charge of murder I have determined that a head sentence of 15 years would be an appropriate term of imprisonment. No submissions were made to me to suggest that I should find special circumstances so as to vary the statutory proportion between the head sentence and non-parole period (s 44(2) of the Crimes (Sentencing Procedure) Act 1999). In my view, there are no such special circumstances. The length of the sentence I propose to impose will bring about a result that the period of parole resulting from the maintenance of the usual proportion of the non-parole period to the total sentence will be sufficient for the offender's rehabilitation upon release without any further extension. Beyond this consideration, there are no other matters in the present circumstances which would justify a lesser non-parole period than one of three-quarters of the total sentence. I propose to back date the sentence to reflect the time the offender has been in custody. 39 Mervyn John Ide, in relation to the conviction on the charge of murder I sentence you to 15 years imprisonment. The sentence is taken to have commenced on 18 February 2002. I set a non-parole period of 11 years and three months to commence on 18 February 2002 and to expire on 17 May 2013. The offender will be eligible to be released on parole on that date, namely 17 May 2013. 40 In relation to the charge of assault on Neville Joseph Cavanagh, you are convicted and sentenced to imprisonment for six months. 41 In relation to the charge of assault on Christopher Browning, you are convicted and sentenced to imprisonment for six months. 42 Each sentence in relation to the assault convictions is to commence today, 28 November 2003. The sentences are to be served concurrently with each other and with the sentence for the murder conviction.

Last Modified: 12/08/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.