REGINA v. MARCHANT & CRAWT [2003] NSWSC 958

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

REGINA v. LEITH WARD MARCHANT REGINA v. JOHN WILLIAM CRAWT

1 HIS HONOUR: Each of the offenders, John William Crawt and Leith Ward Marchant, have pleaded guilty before me to one charge that on 5 August 2002 at Lane Cove in the State of New South Wales they did murder Nathan Treganna. 2 In respect of each of those pleas of guilty, I have convicted the offenders. The offender Marchant pleaded guilty on 22 September 2003. The offender Crawt pleaded guilty on 30 September 2003. On 23 September 2003, I published my reasons for having concluded on 22 September, as I had earlier indicated, that I would not exclude certain evidence sought to be tendered in the Crown case. That judgment had been given at the conclusion of two days hearing during which two days I had received oral submissions and extensive written submissions provided to me previously with a large bulk of material also earlier provided to me. 3 That bulk of material in particular consisted of a large quantity of transcript of many conversations that had been recorded by reason of warrants issued under the Listening Devices Act 1984 between each of the offenders whilst they were detained in custody. 4 In addition by consent, I had been provided with material from the bar table setting out the background of the matter, and with a brief summary of the Crown case. Much of the material related not so much to the commission of the offence directly as being an historical recital of what had occurred, but to discussions between each of the offenders concerning what steps should be taken by them lest they might be brought to justice for the offence. 5 Part of the matters so discussed included a scheme referred to in that brief summary and which is referred to in my judgment of 23 September, of providing to the police an account of Marchant having committed the killing when Crawt was not present and complicit in it. The scheme was propounded, referred to at paragraph 30 of that judgment, to protect Crawt against the exigency of his being thought to be a participant directly in the actual killing. The scheme sought that Crawt be released from gaol and somehow arrange to liberate Marchant. 6 When the matter of the admissibility of the evidence had been sufficiently indicated, the offender Marchant offered the plea of guilty. The offender Crawt later pleaded guilty and still later sought that I take into account three additional offences set out on a Form One. 7 Those offences comprise, firstly, an offence that at Blacktown on 7 August 2002, the offender Crawt took and drove a motor vehicle without the consent of the person in possession of the motor vehicle, one Trevor McGuinness. The offence of take and drive a motor vehicle is an offence under s.154A(1)(b) of the Crimes Act 1900. Secondly, that at Neutral Bay on the same date, the offender Crawt being armed with a dangerous weapon, namely a self-loading .32 calibre pistol, did rob Mr. Archer of a quantity of Nike merchandise, the property of Spoil Sports Clothing, an offence under s.97(2) of the Crimes Act 1900. The third was said to have been committed on 10 August 2002 at Londonderry. That offence was said to have been constituted by the offender Crawt assaulting one Hassan Madjoub with intent to rob him whilst armed with a Browning semi-automatic pistol. That is an offence under s.97(1) of the Crimes Act 1900. 8 The offence under s.97(1) is punishable by a maximum sentence of 20 years. The aggravated form of that offence under s.97(2) is punishable by a maximum of 25 years. The aggravated form of the offence arises when a person is armed with a dangerous weapon. The offence under s.97(1) arises when a person is armed with an offensive weapon or is in company. 9 "Dangerous weapon" is defined in s.4 of the Crimes Act 1900 as meaning a firearm within the meaning of the Firearms Act 1996 or a prohibited weapon within the Weapons Prohibition Act 1998 or speargun. Plainly, the Browning semi-automatic pistol referred to in the third of those offences would be capable of being considered to be a dangerous weapon. But I do not apprehend that offence as set out on the schedule refers to that circumstance of aggravation. 10 The second offence referred to on the schedule, plainly by reference to s.97(2) being expressly referred to, does. It refers to the weapon as a self-loading .32 calibre pistol. As I understand the facts in this case, it is exactly the same weapon as is referred to in the third offence charged on the schedule. That weapon is said to have been the weapon used, as it will appear later in these reasons, when Marchant shot the deceased. 11 Whatever be the reason for distinguishing between the second offence in the schedule and the third offence in the schedule, it is nonetheless clear that each offence is punishable by a most substantial maximum penalty. 12 The offence under s.154C, an offence which is popularly referred to as carjacking, renders an offender liable to a maximum sentence of imprisonment of 10 years, unless a circumstance of aggravation is made out. 13 That offence is aggravated if the offender is in company or is armed with an offensive weapon. The offence is made out also, that is to say the principal offence, if the offender assaults another person with intent to take the motor vehicle. In this case the facts that have been put before me satisfactorily establish all of those three things, that is to say the assault, the use of an offensive weapon (indeed the same gun as the other offences refer to) and the offence being committed in company. 14 However, none of those matters are asserted in the form one against the offender Crawt. Where matters of more seriousness or aggravation are not set out in the Form One document, I will not proceed to treat the offences as including them. Consequently, I will consider the last matter only on the basis that the offender Crawt would have become liable to a maximum sentence, if proceeded against on indictment charging the offence in the way in which the matter has been pleaded in the schedule to 10 years, and put aside any question of robbery, assault, kidnapping or the use of an offensive weapon when considering the facts to which my attention has been drawn as constituting the acts amounting to that offence. 15 I accept that I should take into account these offences as set out on the schedule in the case of the offender Crawt and take them into account in his sentencing for the offence of murder charged on the indictment to which he has pleaded guilty. I therefore sign the certificate provided for by the Crimes (Sentencing Procedure) Act 1999 dating it today. 16 The Crimes (Sentencing Procedure) Act 1999 provides in respect of those matters by s.33(3), that if the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. It is clear that in taking those offences into account, the court falls under a duty to pass, in respect of them, a component of the sentence on the principal offence which would reflect, to some degree, the substantial nature of those offences and their gravity. The court is required to have regard to the totality of criminality involved. This means that the sentence that would be passed must, of necessity, be greater than it would have been had it been passed only for the principal offence. It does mean also, however, that the sentence component referable to the offences taken into account would, of itself, reflect greater mitigation than would have been appropriate to a mere plea of guilty to charges of those offences in an indictment. The adoption of this course is such as to show a degree of contrition evidenced by the accused's willingness, as it used to be expressed, "to clear the slate" and although regard must still be had to personal deterrence and retribution, nonetheless it is appropriate to have regard to the encouragement that a mitigated sentence reflected in the component of the overall sentence to be imposed would afford to the accused and to others to use this procedure. 17 In summary then on this topic, the sentence imposed upon the offender Crawt for the murder will have to include a significant additional component arising out of his having admitted the offences and asking they be taken into account. It should not include any additional component reflecting any additional criminality over and above the facts of the offences as they have been pleaded in the form one schedule before me and that additional component should not be to the same extent as it would have been had the offences been the subject of pleas entered to charges on the indictment charging them but less. The offender Crawt will receive the benefit of those matters. 18 I turn then to the murder offence. The primary facts are not contested, although the parties contend for different conclusions from them. It was accepted to be sufficient for the purposes of passing sentence that I refer to the primary facts as I had in ruling on the admissibility question. In the judgment of 23 September 2003, I set out at paragraphs 6 to 14 a summary taken from the Crown's brief summary of those facts:- "Generally the Crown case is that Treganna was interested in buying or selling stolen jewellery and had, through others, made contact with the accused, who were apparently persons likely to have stolen jewellery for sale. It is the Crown case that prior to his death the deceased told friends he was going to buy stolen jewellery from people he was going to meet that night and in particular referred to "Leif and his mates at North Ryde". He also made reference to Lane Cove. He also mentioned a person, Malcolm Appleby, in connection with this sale or purchase of jewellery.

He had made these statements on the Monday 5 August 2002. At 7.40 am the following day his body was found in the Lane Cove National Park near a kiosk adjacent to the Lane Cove River only a short distance from Ryde. He had been shot twice to the head. There was a gunshot abrasion to the right neck and a bullet had passed through his right hand. Three fired cartridge cases were found near the body. His property with the exception of his mobile phone had been stolen, although his motorcycle helmet was found near his body. About 400 metres away his motorcycle was found. The deceased was robbed of his wallet, bum bag, backpack and possibly other things.

It appears that, utilising his conversations with his friends, the last time they had seen him and his mobile phone records, the shooting occurred between 7.47 pm and 8.14 pm on the Monday evening.

The accused that Monday was in company with Malcolm Appleby and Kate Shanks at various places. Kate Shanks will give evidence that she heard both of the accused talk about robbing the deceased. Malcolm Appleby tried to talk them out of it. It is possible to establish whether by direct evidence or by inference that Appleby was involved in the original arrangement for the meeting between Treganna and the accused.

On the evening of Monday 5 August 2002 Miss Shanks noticed that Crawt and Marchant had left her house and in particular had taken a car which Appleby and Crawt usually drove. Kate Shanks and Alison Renton will, apparently, give evidence of Malcolm Appleby's presence in their presence that evening. Appleby's presence with Renton obtaining videos at one stage during the evening is also attested to by ATM records and the video shop records.

Crawt and Marchant returned together to Shanks' house. Shortly thereafter Shanks and Marchant drove Crawt home in Appleby's car. Subsequently when Marchant returned to her house Marchant told Shanks that he had "done something tonight which he was not proud of". It is not clear to me as to whether that conversation will be tendered in evidence against Crawt. If it is to be so tendered against Crawt, I take it that it will be tendered for the purpose of establishing some knowledge in Shanks that Marchant had asserted he had done something of which he was not proud. This becomes important when one comes to turn to that area of the evidence to which objection is taken and what I will refer to as the plan.

Marchant stayed at Shanks' home that night for a portion of the time. Appleby and Renton returned home. Shanks and Marchant were leaving the house at about that time so that Marchant could telephone his mother, and after the phone call Shanks and Marchant returned to the house. Appleby did not want Marchant to stay. Shanks and Appleby drove Marchant to his mother's home at Londonderry. Shanks and Appleby then returned to Shanks' house.

Nathan Treganna's mobile phone showed a number of calls during the afternoon and early evening of Monday 5 August between Crawt's phone and that of Appleby, between Crawt's phone and that of Treganna and between Treganna and Appleby.

Records of calls made on Crawt's phone not only show four calls made to Treganna but also show two calls made in the Ryde cell area, one was to Leith Marchant's mother's house where Leith Marchant was living and it is the Crown case that these calls were made when Crawt and Marchant were on their way to meet Treganna or were waiting for him." 19 Mr. Treganna was apparently a person whom, it was thought by Marchant and Crawt, was interested on his own behalf or on behalf of others in buying stolen jewellery. He was procured by the offender Marchant, probably with at least the complaisance if not the active agreement of the offender Crawt, to go at night to the Lane Cove National Park for the ostensible purpose of dealing in jewellery. 20 There had been a number of telephone calls made with the view to setting up the meeting. 21 At the Lane Cove national park on the night of 5 August 2002 he was murdered. He was shot twice to the head at that time. There was a gunshot abrasion to his right neck. A bullet passed through his right hand. One of the shots, at least, appears to have administered at close range directly into his head. 22 Some of his property of a comparatively minor nature was stolen. In particular that property included his wallet, bum bag, and backpack. 23 It is apparent that what had occurred to the deceased was an execution. For whatever reason, on all the material before me, that execution was perpetrated by the offender Marchant, who in his evidence before me, pressed the view that he had a reason, but it was not a reason such as I might understand. 24 Both accused left the site shortly after the killing. They were in touch with various of their associates, in particular, a Mr. Appleby and a Ms. Shanks. It is not necessary I go into detail about their relationships with those persons, except that it is sufficient to say that there was some degree of admission made by each to those persons concerning their involvement with the deceased, though not the detail of it. 25 The Crown contends and Marchant accepts that he was the principal in the first degree in this killing. The Crown contends that Marchant for reasons of his own - or at least reasons that in the case of the offender Marchant, the Crown would accept might be reasons of his own - decided to kill the deceased. The evidence does not allow me to say what the purpose of that killing was. 26 The Crown has submitted, having regard to some later conversations recorded as I have already referred to between Marchant and Crawt, the killing was a thrill killing. It was at one point asserted that it was to teach the deceased a lesson. In argument, there was speculation that it was a killing by way of some reprisal, in that the deceased had failed to put the offender Marchant in touch with principals who might participate in the dealing with the stolen jewellery that had been referred to. 27 Having heard the evidence of the offender Marchant and the evidence of the offender Crawt, and having devoted considerable attention to the very peculiar and bizarre conversations between them after the event, I am unable to conclude what the precise motive was. I am able, however, to conclude that the offender Marchant in those conversations, for whatever purpose, whether as a result of the effect upon him of many years of institutionalisation in gaol, whether for the purpose of seeking to protect himself within the gaol system as showing he was a tough and ruthless man, whether for some purpose of bravado or for the purpose of placing himself in some light, he might think was to his benefit when speaking to Crawt, boasted and glorified in what he had done in a way that at the least can be described as vicious, callous and ghoulish. 28 After the event it is alleged against both offenders that they participated in the offences which I was invited to take into account against Crawt on the Form One. The offender Marchant has not pleased guilty to or admitted before me those offences. The evidence of his participation in his case was to be tendered to support the Crown's case against Mr Marchant that he had committed the offence charged. Otherwise then, as I discuss below, I will not take those offences into account against him on this sentence. 29 There was one matter revealed amongst that material that could have been used for a different purpose. It concerns the gun that was used in those matters. That gun was apparently obtained when three guns were stolen from Leith Marchant's uncle's safe well before the offence. 30 That highlights that that Marchant's connection with the murder weapon long pre-dates the killing. 31 In addition to that, I am entitled to have regard to those matters of the robberies and the carjacking, as far as concerns the offender Marchant, only on the limited basis that so much of that involvement as is proved or admitted might be off-set against the but limited protestations made by him in the witness box of matters that might be thought to found some prospect of rehabilitation many years in the future. 32 On that question, I add to those matters, reference to Marchant's record. It conveniently appears in the crown submissions as follows:- "On 15 September 1992, Marchant was arrested for armed robbery and remanded in custody. On 11 January 1993, he escaped from lawful custody and was re-arrested on 14 January 1993. On 14 January 1993, he was sentenced to a fixed term of four months from 14 January 1993 expiring on 13 May 1993. On 29 March 1993, for the armed robbery he was sentenced to a minimum term of 12 months from 29 March 1993 expiring on 28 March 1994 with an additional term of two years from 29 March 1994 expiring on 28 March 1996. He was released to parole on 28 March 1994, however he committed offences whilst on parole. He was arrested on 1 December 1994 for malicious damage, possession of housebreaking implements; take or carried in conveyance, steal motor vehicle and serious driving offences for which he was sentenced on 21 December 1994. The longest sentence for these matters was a minimum term of 12 months from 1 December 1994 expiring on 30 November 1995 with an additional term of four months from 1 December 1995 expiring 30 April 1996. Marchant's parole was revoked on 23 March 1995 and ordered to serve the balance of his parole commencing 1 December 1994 and expiring 2 April 1996. On 21 February 1995, Marchant escaped from lawful custody and was re-arrested on 24 February 1995. On 21 August 1995, Marchant was sentenced for the escape to a minimum term of eight months from 3 December 1995 expiring on 2 August 1996 with an additional term of seven months from 3 August 1995 expiring on 2 March 1997. On 2 August 1996, Marchant was released on parole. Marchant committed offences whilst on parole and in due course his parole was revoked from 18 October 1996. He was sentenced to a series of cumulative sentences. On 29 January 1997, for steal from the person he was sentenced to a minimum term of nine months from 29 January 1997 expiring 28 October 1997 with an additional term of three months from 29 October 1997 expiring on 28 January 1998. On 27 August 1997, he was sentenced for armed robbery to a minimum term of three years from 29 October 1997, expiring 28 October 2000 with an additional term of three yeas from 29 October 2000, expiring on 28 October 2003. On the same date for break enter with intent to steal, he was sentenced to a fixed term of six months from 29 October 2000 expiring on 28 April 2001. On 11 March 1998, he was sentenced to a fixed term of two years for a further armed robbery which sentence was subsumed by the series of cumulative sentences. The effect of the sentences imposed on 29 January 1997 and 27 August 1997 was that Marchant was sentenced to terms commencing 29 January 1997 and ineligible for parole until 28 April 2001. On 19 November 1999, Marchant escaped from lawful custody and was re-arrested on 7 December 1999. He was sentenced on 28 March 2000 to a minimum term of 12 months from 15 May 2001 expiring on 14 May 2002 with an additional term of one and a half years from 15 May 2002 expiring 14 November 2003. Marchant was released to parole on 14 May 2002. Parole was to expire on 14 November 2003. Marchant was on parole for approximately 11 weeks until the commission of the murder." 33 That material discloses that the offender Marchant has had a number of serious prior offences of violence for which he has been sentenced to terms of imprisonment. During some of his terms of imprisonment he has escaped and breached parole. Parole had been granted to him on number of occasions but he has consistently abused the conditional liberty so granted to him. 34 When he was finally released to parole on 14 May 2002 he had only been at liberty approximately 11 weeks before the commission of the murder. It was therefore committed whilst he was on conditional liberty. 35 The circumstances of the commission of this crime are such that the Crown has submitted that the appropriate sentence in the case of Marchant is that he be sentenced to imprisonment for life, a sentence provided for by s.19A(1) of the Crimes Act 1900. Section 21 of the Crimes (Sentencing Procedure) Act 1999 provides that a lesser sentence may be passed for murder. Section 61 of the Crimes (Sentencing Procedure) Act 1999 provides, in respect of the life sentence by subsection (1) that a court is to impose that sentence in the case of a person convicted of murder:- "… if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 36 It is provided further by s.61(3) that nothing in that section affects the application of s.21(1) of the Crimes (Sentencing Procedure) Act 1999. A provision similar to that, now in effect, was considered by the Court of Criminal Appeal in The Queen v. Harris [2003] 50 NSWLR 409, where it was held that the view that I had previously expressed in Regina v. Petrinovic [1999] NSWSC 1131 that the section required me to pass the sentence of life imprisonment in the event that I was satisfied of the matters to which s.61(1) referred was in error. So that there remains a discretion in a trial judge, even if the requirements of s.61(1) are met, to pass a sentence of less than life imprisonment. 37 When considering the length of any determinate sentence, I have regard to s.44 of the Crimes (Sentencing Procedure) Act 1999 as it stood prior to the insertion of the present s.44 as is applicable to the present sentencing exercise by reason of the date upon which the offence was committed. It provides that it is necessary for the court to first determine "the term of the sentence" and then, secondly, to set a non-parole period for the sentence which must not be, by reason of s.44(2), less than three quarters of the sentence unless the court decides there are special circumstances. No non-parole period could be imposed on a life sentence if I should pass it. 38 Now also applicable is s.21A which deals with aggravating and mitigating circumstances and s.22, which requires me to give consideration to the offender's plea of guilty. Section 21A provides for the consideration of various aggravating and mitigating circumstances. 39 It is common ground that, in the event that I were minded to impose the life sentence, it would have to be served for life, so the matters referred to in s.21A would seem to have little application to such a sentence given that s.61 refers to "the level of culpability in the commission of the offence" as being "so extreme" as to require that sentence to be passed. 40 The idea that having found the level of culpability in the commission of the offence, the matter might then be escalated or aggravated in culpability by reference to the particular matters referred to in s.21A(2) which relate either to the personal circumstances of the offender or to matters involving other persons, does not sit well with the traditional approach to sentencing referred to by the High Court in The Queen v. Veen (No.1) (1978-79) 143 CLR 458 and later in The Queen v. Veen (No.2) (1987-88) 164 CLR 465. 41 It may be that in an appropriate case those decisions might be reconsidered by that court having regard to what now appears in s.21A and particularly in the light of what appears in s.3A of the Crimes (Sentencing Procedure) Act 1999 referable to the purposes for which a court may impose a sentence on an offender. They include not only, to ensure that adequate punishment is inflicted upon the offender, that others are deterred, that the conduct be denounced, that the harm done to the victim and the community be recognised, but in addition, to protect the community from the offender, to make the offender accountable for his or her actions and to promote the rehabilitation of the offender. 42 There is a tension here which in an appropriate case may have to be the subject of clarification. 43 I have however, come to the conclusion that on the limited material before me as to how and why the offence was committed even considering the view I have taken of the evidence given by the offender Marchant and the offender Crawt, and the view that I have taken of their conversations, I could not be satisfied to the requisite standard, of facts as to their involvement in the commission of the offence which would make the commission of that offence such that it attained the extreme level of culpability s.61 refers to. 44 I have concluded this in the context of the examination of the culpability of such offences that have been undertaken by other judges and the Court of Criminal Appeal. Such offences as attract the life sentence have occurred where the instant crime is one of a number of murders committed by the offender and thus each aggravates the culpability of the other; where the offence involves the commission of the murder accompanied by appalling torture, where the offence involves such a disregard for basic human impulses, as to show that the community could have no other interest but that a person so acting should be kept for that crime alone, notwithstanding the other favourable personal circumstances of that person, in gaol never to be released for the whole of that person's life. 45 All of that said, here, where there is the absence of such information as to such matters as would constitute this, a crime of that order, it is nonetheless clear it is a crime of the most serious kind. I find little further assistance by categorising it as within the "worst class of case" or as a crime peculiarly or especially "heinous" since there is something that I find difficult to accept about the validity and utility of comparing different kinds of murder. 46 This was an appalling crime committed, in the case of the offender Marchant, by an offender, who I find on the basis of his conduct, his prior record and his own evidence has given me no reason to believe he will ever be a person who will be able to be rehabilitated. I see little point on what information I now have, having regard to his history, in considering that the extending to him of a non-parole period of any sort would be of any benefit to him or to the community. But I am looking at the matter now, not 30 or 40 years in the future, a time at which a parole board, should he be granted the benefit of having the prospect afforded by some such order, will in his then circumstances consider his release and might consider that without danger to the community he could be liberated. With that in mind, I am not prepared to deny him a non-parole period. 47 I turn to such information as I have concerning his circumstances. He has a wife and child with whom he has little links. He is presently aged 29, born on 8 January 1974. He has spent a great deal of his life in custody. He has, both when speaking, unknowing that he was being overheard and also when giving evidence in the witness box, persuaded me that he is a person who is almost without prospect of redemption. What he did on that night, itself, supports that. 48 On his behalf his counsel has drawn to my attention what the Chief Judge at Common Law had referred to in the recent sentencing of Regina v. Penisini [2003] NSWSC 892 and others. I take that into account considering as I do that he is, a person likely to re-offend, who presents a real danger to the community, whether in custody or not. Nonetheless, he is still not a person in whose case preventative detention can be justified. But I take the matters to which counsel referred into account when imposing the determinate sentence. I have considered all the matters to which s.21A refers me. 49 I take into account too, the plea of guilty. I see no basis to allow a discount associated with it for contrition. The plea was made late in the day. It was made after the legal submissions on admissibility had come close to finality. It is a plea that does have some utilitarian effect. It is not a plea that, in my view, was proffered out of a realisation of a willingness to facilitate the processes of justice. In any event, in my view, so far as all but the utilitarian considerations are concerned, they were off-set by the strength of the Crown case. I am of the view therefore, that some recognition must be given to the plea and that of the order of about 10%. 50 In the case therefore of the offender Marchant, I conclude that he should be sentenced to a period of imprisonment for a term of 38 years. I find no special circumstances. I will impose a non-parole period representing a minimum period for which he must be kept in detention in relation to the offence, which will provide for a parole period less than the period that might normally be prescribed, having regard to the view I take of his prior circumstances and the nature of this offence, and his conduct in gaol subsequently, as evidenced in the conversations concerning the justice system, the prospects of rehabilitation and the circumstances of this offence. The non-parole period I fix is 32 years. 51 That sentence is to commence as was submitted by counsel on 19 September 2002. The earliest day the offender Marchant will be eligible for release on parole will be 18 September 2034. Mr. Marchant may be removed. 52 I turn now to the case of the offender Crawt. There has been much controversy in the evidence and written submissions concerning what precise role Crawt played in the commission of the homicide. I am unable to accept much of what he said. I am unable, in particular, to accept his denial that he was aware at any time until the death dealing wounds had been inflicted by his associate, that his associate would kill the deceased. 53 Although I cannot find on the evidence whether the killing shot was the first inflicted and although it seems likely the offender Crawt did not agree well in advance to there being a killing, the evidence and the conversations that were overheard in gaol make it perfectly clear that when the killing occurred, he was present, knew what was going on and at that point of time assented to it. I reject the account put initially to the psychiatrist whose report was tendered on his behalf and is marked Exhibit 1 and given by Crawt in evidence that he only considered what was going to occur was a knee capping in which his associate would shoot the deceased in the knee caps and they would abandon him, that injury so cruelly ignored, in that bush park that night. 54 I accept, however, that he was perfectly aware that his associate was at least likely to inflict serious injury on the deceased or kill him using the gun. At best, in my view, it can be said of his state of mind at the time that he callously did not care what the co-accused did to the deceased and that he was content to participate with his co-accused in an offence to which s.18 applies such that he was involved in a felony murder, and in accompanying the accomplice to the scene and in what he did there, he adverted to the prospect of death or serious injury if he did not in fact intend there to be a killing. Even on his own account, that injuries were to be limited to knee capping, he plainly intended to be present and involved in a planned exercise of the deliberate infliction of grievous bodily harm. 55 Whilst I would not hold, on the evidence, that I was satisfied beyond reasonable doubt that he intended positively the death of the accused, that makes little difference in my view to his culpability because it is plain that he was, at the very least, acting in a callous and vicious way. 56 That said, he was not the actual killer nor do I find he actively encouraged Marchant to kill. His crime may not be as culpable as that of his associate. 57 I do not see that in his case either, that the culpability involved in the commission of the crime reached such an extreme level that s.61 is applicable. 58 Having regard to the principles referred to in such cases as Olbrich v. The Queen (1999) 199 CLR 270, I accept it is necessary for me, as I have done, to seek to define his role. The evidence does not allow me to do so with any greater precision. He was not the principal. Indeed his presence does not seem to have really contributed much to the incident notwithstanding that after the event in the conversations to which I have referred he too participated in exercises of ghoulish bravado, boasting about what involvement he would have had had he had the opportunity on the night in question. 59 In his evidence he suggests it was important to do that to protect oneself and establish a gaol reputation. Whatever be the reason he did it, that does not make it estimable and as to much of what he said, a valid insight is gained into a mind which, if minded to conform to that ethos or culture, displays its viciousness. 60 I have regard to the material set out in that psychiatric report and in particular as to his family circumstances. As I had regard in the case of the offender Marchant to the matters referred to in s.21A so far as they are applicable in sentencing for a murder where one has examined the questions raised by the possible application of s.61, I have regard to those matters also in the offender Crawt's case as I did in the offender Marchant's. I have regard to the plea of guilty. In respect of that plea he is entitled, in my view, to the same benefit that was extended to the offender Marchant. I accept that his sentence should commence on 10 August 2002. 61 I have regard also to his record which discloses that he is about five years younger than Marchant, that he has prior offences dating back to his childhood days involving the stealing of cars, breaking, entering and stealing, assault occasioning actual bodily harm, then in 1997 robbery, larceny, possession of implements and robbery in company, a matter taken into account, a further robbery, additional offences thereafter concluding in 1999 for robbery and other matters. 62 In the Crown's written submissions at page five, the Crown refers to occasions, not shown, as I see it, on the record document provided, in which he escaped lawful custody. It is apparent from the recital that I have made involving the offences in 1999 that he was out of custody. He received parole on 11 June 2002. He had been on parole slightly less than two months at the time of the murder. He has been charged with other offences of which he was acquitted, but at the time of the murder was on bail for those offences. He was thus on conditional liberty for two reasons, not just the one reason, for which the offender Marchant was on conditional liberty. 63 His personal circumstances show that his background was deprived. He has no contact with his family. His circumstances and the offender Marchant's are only too redolent of the institutionalisation process that occurs when people are confined with other dangerous criminals in gaol for lengthy periods during their young years. That process does not lead one to have much hope for the future. 64 In his case however, his own evidence, and what is said by the psychiatrist, indicates some prospect that in the far future there might - if things proceed well for him in the meantime - be some degree of rehabilitation, such that I do not have of him so little hope as I had of the offender Marchant. 65 Notwithstanding that, as I have said the principal crime was appalling. Having done the best I could in the vague and limited factual context to define his role and his mental processes at the time, I am satisfied that his involvement was an involvement of a peculiarly callous and vicious kind, although not of such a degree of culpability as that of his co-offender. 66 I take into account the plea and the 10% discount that it attracts. I take into account the offences on the Form One. I have regard to his circumstances and the matters set out in s.21A both aggravating and mitigating, so far as those matters are not already reflected in the culpability of the homicide or in the circumstances of the Form One offences. 67 In all the circumstances I have concluded having regard to s.44 that in his case, I should impose a sentence of 35 years with a 28 year non-parole period. That sentence is to commence on 19 August 2002. The earliest date on which he will be eligible to be released will be 9 August 2030. **********

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