Regina v Michael James ELSWORTH

Supreme Court of NSW|2000-04-05|Before: Sully J

CITATION : Regina v Michael James ELSWORTH [2000] NSWSC 582 FILE NUMBER(S) : SC 70062/96 HEARING DATE(S) : 5 April 2000 to 10 May 2000 JUDGMENT DATE : 30 June 2000

PARTIES : Regina Michael James ELSWORTH JUDGMENT OF : Sully J

COUNSEL : D. Arnott/J. Downing - Crown J. Hart - Accused SOLICITORS : S. E. O'Connor - Crown Christopher Murphy - Accused LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 The Queen v De Simoni (1981) 147 CLR 383 CASES CITED : Reg v Brown & ors. (1994) 1 AC 212 Lowe v The Queen (1984) 154 CLR 606 Wilson v The Queen (1992) 174 CLR 313 DECISION : (1) Conspiracy maliciously to inflict grievous bodily harm with intent so to do; (2) Accessory after the fact to murder; In each case: 9 years imprisonment, reduced for pre-sentence custody; non parole period 6 years 9 months similarly reduced. Sentences concurrent.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 5 April 2000 Michael James Elsworth ("the prisoner") was presented for trial in this Court upon an indictment charging that on or about 20 October 1994 at Mount Pritchard he had murdered one Gary James Bennett ("the victim"). The prisoner pleaded not guilty and he was put accordingly upon trial by jury. 2 That trial proceeded until 10 May 2000, the twenty-second day of the trial. On that day the jury was discharged without verdict, and the prisoner was thereupon re-indicted. The new indictment contained two counts charging: first, that the prisoner had conspired, between 1 September 1994 and 20 October 1994, with one Fasel Jaber, one Gordon Pagett, and one Wayne Carrick, maliciously to inflict grievous bodily harm on the victim with intent to do grievous bodily harm to him; and, secondly, that the prisoner, knowing that some person or persons unknown to the police had murdered the victim between 19 October 1994 and 20 October 1994, had on 20 October 1994 assisted Gordon Pagett to dispose of the victim's body. The prisoner pleaded guilty to each of those two charges. He was formally convicted, and was remanded in custody to 12 May 2000. 3 On 12 May 2000 some documentary evidence relevant to sentence, and submissions on sentence, were received; and the prisoner was further remanded to 16 June 2000 for the finalisation of the proceedings on sentence, and in order that a pre-sentence psychiatric report about the prisoner might be obtained. It was indicated that the Court would formally pass sentence today. 4 On 16 June the Court received a psychiatric report from Dr. John Roberts, and heard further submissions on sentence. Dr. Roberts' report spoke, among other things, about the desirability of having the plaintiff tested psychometrically; and the proceedings on sentence were further adjourned to 23 June in order that such testing might be carried out. 5 On 23 June the Court was informed that Dr. John Taylor, who had been retained to do the psychometric testing, had been unwell; that he would be able, however, to see the prisoner over the week-end of 24/25 June; and that he would be able to have a report available in sufficient time to leave undisturbed the listing, as previously arranged, of the formal passing of sentence. In fact Dr. Taylor did review the prisoner's case, and submitted a report dated 26 June 2000. I shall have something to say later herein concerning the conclusions reached by Dr. Taylor. 6 It is appropriate to note, before proceeding to the necessary factual analyses both objective and subjective, that the two offences for which the prisoner now stands for sentence are by no means minor offences. The offence of conspiracy to inflict maliciously grievous bodily harm with intent so to do does not carry a particular statutory penalty, but the substantive offence of maliciously inflicting grievous bodily harm with intent so to do contravenes section 33 of the Crimes Act 1900 and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence of being an accessory after the fact to murder contravenes section 349 of the Crimes Act 1900 and attracts upon conviction the same statutory maximum penalty. 7 The events of 10 May last took place at a point in the trial where the Crown case had been closed; and the prisoner had embarked upon his own case, having given by then the whole of his evidence in chief, and having been partly, but extensively and thoroughly, cross-examined. 8 The Crown case thus presented against the prisoner postulated that the prisoner had engaged Pagett and Carrick to carry out, for reward to themselves, the abduction and beating of the victim; that the prisoner and Jaber had collaborated in selecting an opportune time and place for those things to be done; that the prisoner, then present at the abduction, had been recognised by the victim; that the prisoner, Pagett and Carrick had thereupon taken the victim back to the garage attached to the prisoner's then place of residence; that the prisoner had there murdered the victim by striking to his head a number of blows with a lump hammer; and that the prisoner had thereafter disposed of the body by, put simply, weighting it with concrete and dumping it in a body of water known as Clinch's Pond. 9 The postmortem findings were qualified necessarily by reason of the condition of the body when it was recovered some weeks after the death of the victim. The postmortem report does say, however, the following: "The postmortem findings are those of severe blunt injury to the head and face with extensive fracturing of the skull and fractures of the upper and lower jaw bones…………………………………….. The absence of other injuries to account for death suggests that the head injuries were in fact the cause of death; however, other causes such as drowning or suffocation cannot be excluded." 10 I am satisfied beyond reasonable doubt that the victim died as the result of injuries caused by blunt instrument blows to his head. 11 The Crown case at trial was put in two ways. It was put, first, as a direct eye witness case; the eye witness evidence coming from Pagett and Carrick, both of whom gave at trial evidence for the Crown. It was put, secondly, as a circumstantial evidence case, the relevant circumstances, as opened at trial, being, in summary, as follows:

[2] Demonstrable possession by the prisoner of bags of the kind that were used in the wrapping of the victim's body as part of the process of its disposal.

[3] Lies told by the prisoner to the investigating police about those bags.

[4] Demonstrable frequent telephone contacts between the prisoner and Jaber during the evening of the abduction and killing.

[5] The accused's movements at relevant times as plotted by reference to certain mobile telephone call records.

[6] Lies told by the prisoner to the investigating police about those movements.

[7] The suggested incredibility of what the prisoner had told investigating police as to his first knowledge of the victim's disappearance.

[8] A statement allegedly made by the prisoner to a particular third party to the effect that his, the prisoner's, intended alibi was not good enough.

[9] The finding in the prisoner's garage of a quantity of duct tape similar in type to tape used to secure the victim's body.

[10] The finding of similar duct tape at Pagett's house, where there were found also cord and concrete similar to cord and concrete used in order to secure the victim's body; and the coupling with that evidence of evidence of lies told by the prisoner to the investigating police about his contacts with Pagett on the evening of the abduction and killing. 12 The prisoner's case at trial developed to a point at which it was possible to see clearly its overall structure. The prisoner denied categorically that he had struck the victim at all, let alone repeatedly to the head with a blunt instrument. He denied having been present at either the abduction of the victim or any subsequent beating or killing of the victim. He agreed that he had an animosity towards the victim; and that he had wanted to have the victim bashed by Pagett and Carrick by way of a lesson about the unacceptability to others of the victim's behaviour towards various of his work mates. The prisoner admitted having disposed of the victim's body, at the instance of Pagett, by dumping it in Clinch's Pond, secured and weighted in the way found by those who first recovered the body. 13 In so far as the Crown case at trial was put forward as an eye-witness case, it depended upon the acceptance of the evidence of Pagett and of Carrick. It would take many a day's march to come upon more unprepossessing witnesses. Each admittedly entered, in effect, into a contract to bash a stranger for financial reward. Each, but Carrick in particular, had been involved at material past times in the serious and systematic abuse of prohibited drugs of addiction. Each of them gave evidence from a position of advantage. Carrick gave evidence beneath the shelter of a complete immunity from prosecution. Pagett gave evidence having previously pleaded guilty to a number of serious offences, but having been sentenced thereupon to concurrent terms of imprisonment heavily discounted in consideration both of his pleas of guilty and of his assistance, past and foreshadowed, to the proper authorities. Each of Pagett and Carrick had been sufficiently street-wise to negotiate promptly and effectively, and as soon as it became obvious that neither was going to escape simply and completely the net of the continuing police investigations into the killing of the victim, their respective advantages. Pagett, in the aftermath of the killing, extorted undoubtedly sums of money from the prisoner. 14 It is impossible to know, and it is in any event unnecessary now to know, what the jury at trial made of these two witnesses. What I myself made of them can be simply stated: I thought they were two of the most amoral witnesses I have heard give evidence; and I would not be prepared to find as having been proved beyond reasonable doubt any fact, the proof of which depended upon the uncorroborated evidence of either of them. 15 In so far as the Crown case at trial was the circumstantial evidence case earlier outlined herein, I think that much of it is clearly established by the evidence at trial. It will be relevant to say later herein something more particular about some at least of those circumstances. 16 It is now time to look more precisely at the relevant facts, doing so in the context of the two offences admitted by the prisoner; and taking care at all subsequent stages of the present sentencing exercise to keep carefully in mind that the prisoner cannot lawfully be now punished for any more serious offence; or upon the basis either of facts, or of any other considerations, that would expose him to a punishment appropriate only to the crime of murder as originally charged: see generally The Queen v De Simoni (1981) 147 CLR 383. 17 The relevant facts, so approached, are as follows. 18 In 1992 or thereabouts the prisoner became a contract driver for a courier business called Couriers Please. There were several such drivers. Speaking broadly, each such driver was allocated a particular geographical area; and was expected to provide, and to build up by canvass and the like means the volume of, courier services within the allocated area. A successful driver, - and the prisoner appears to have been such, - could build up his allocated run to the point where, subject to the consent of Couriers Please, he could sell, in effect, the good will of the run. The prisoner's perception of the value in that sense of his own run was that the run was worth in the order of $50,000. 19 The victim was, at the time of his death, a young man aged about 30 years. He seems to have started work in the employ of Couriers Please as a general assistant of some kind, and to have advanced by the time of his death to the position of Depot Manager, a position carrying with it what seem to have been considerable supervisory and administrative powers. I am satisfied beyond reasonable doubt that the late Mr. Bennett, whether or not he intended, or even realised, the effect that he was having on the office staff and the contract drivers, was seen by many of them as being arrogant and abrasive in his dealings with them. The prisoner himself made, during the course of his evidence, several attempts to put into words his own views about, and reactions to, Mr. Bennett. 20 In his evidence in chief, the prisoner put the matter this way: "Gary had the opinion that the company belonged to him somehow, that he (had) earned (his) position and it was his company. His main goal, ………………………… there was certain things, being a contract he couldn't control which really annoyed him severely and he tried a lot of avenues to get over them and when he couldn't he just got into loggerheads with arguing." [trial transcript, ("T"), 923. The internal arrangement and grammar of the quoted passage have been slightly altered in order to give sense to the whole.] 21 Later, and in cross-examination, the prisoner gave the following evidence: Q Tell me this: why did Gary Bennett get under your skin so much? A. It's hard to explain. Gary - I done some work for Couriers Please bosses on a private basis inside the depot. And the depot itself had a security alarm to the building. And John Molston give me the security code so I can do this work on Saturdays and Sundays. And Gary didn't like that, that I had the code number. He came in Saturday mornings to supervise me, and then stayed with me all day long and put his own code in at night time so I didn't have access to Sunday morning, even though all my tools were there. He would meet me back on there on Sunday morning and - he didn't like the idea of anyone having control of what should be his. He always wanted to have the last say and be in control of your life, so to speak, with the ability of other people's money. Q. Is that the extent? A. Well, you put that in context over a 12 months period, in a lot of different aspects, yes. Q. It was simply that you had arguments? A. Yes." (T 972) 22 I am satisfied beyond reasonable doubt that in the prisoner's own case these confrontations with the victim left the prisoner with a festering sense of grievance and resentment, which led him, over time, to start thinking seriously about having the victim given, to speak colloquially, a good hiding in order to cut him down to size. 23 I am satisfied beyond reasonable doubt that the prisoner began to cast actively about for some way of giving practical effect to that idea, and that he settled upon Gordon Pagett as a suitable person for the job. I am so satisfied that on at least one occasion before 19/20 October 1994 the prisoner did in fact organise Pagett to go to the victim's home, upon the basis that, as the prisoner put it in his evidence in chief: "If he robbed the house, (it) would have been a bonus for him; if Gary happened to be there and got bashed, it would look like a burglary." (T 925) 24 On this particular occasion the prisoner gave Pagett the front door key to the victim's home, the prisoner having had the key cut from another key loaned to him for the purpose by Fasel Jaber. As it happened, Pagett did not carry out his assignment; later giving the prisoner the explanation that he had been put off by the presence of a dog at the premises. 25 I am satisfied beyond reasonable doubt that the prisoner learned from Jaber that the victim would be going, on the evening of 19 October, to a local hotel for the purpose of playing pool; that the prisoner saw this as an ideal setting in which to have the victim taught the intended lesson; and that the prisoner thereupon contracted Pagett, and through Pagett, Carrick, to do the job. 26 The personal attitude of the prisoner towards this whole project is relevant, both objectively and subjectively, to the present sentencing exercise. Once again, there are several recorded attempts by the prisoner to give in evidence an explanation of what he thought he was doing. I find it striking, and indeed chilling, that it never seems to have occurred to the prisoner that there was anything amiss, either morally or legally, in hiring two assailants to beat another person, provided only that it was an uncomplicated and straightforward bashing. In these respects the following evidence of the prisoner, (at T 924 and in evidence in chief), is in my opinion both relevant and revealing:: "Q. At any time did you make an arrangement about giving Mr. Bennett a touch-up? A. Yes. Q. What did you mean by 'touch-up'? A. To bash him to hurt him." 27 And later, and as recorded at T 950-1 in cross-examination: "Q. Are you telling these people here the truth when you tell them that you did not envisage a blow being struck to Gary Bennett's head? A. Are you asking me did I visualise this or did I instruct them to hit him in the head? Q. I am telling you did you contemplate that might be a possibility? A. I didn't give it a thought. Q. You, when you sent these two men off on their job for the night, you couldn't care less what physical harm they did to Gary Bennett? A. If you put it that way, yes. …………………………………………………………………………… Q. Did you put any restrictions on the physical belting they were going to give to Gary Bennett in your instructions to them? A. No I did not. Q. What did you say to them? A. I said Gary is in the pub. I will drive you over there to him. It is up to you to bash him. Q. And that in your mind could have involve anything> A. Yes. Q. Did you think that this touch-up might have involved a boot to the stomach? A. It is possible yes. Q. Did you think it might involve a boot to the head? A. It is possible, yes. Q. Do you think it might involve a pool cue being struck over the head of Gary Bennett……………………………………….. A. That was a likely chain of events, yes. Q. Did you envisage that there might be a vicious blow to his head which could be life threatening? A. No. Q. You envisaged nonetheless that there could be a vicious blow to the head? A. Yes. Q. Did you say to Pagett or Carrick, if you give him a vicious blow to the head make sure that you don't kill him? A. No. Q. What you did was to hire - on your evidence - hire some thugs to belt the living daylights out of this man? A. Yes. Q. There was always the risk that one of these men might hit or punch Gary Bennett too hard - there was always that risk, wasn't there? A. I suppose so. Q. And that was a risk that you took on board when you sent these men off to do this job on this night? A. Yes. Q. There was always a risk that really serious injury might occur to Gary Bennett? A. There was no need for serious injury. It was just supposed to be a normal bash to go give him a lesson. Q. There was always the risk in teaching him a lesson that really serious injury might occur to Gary Bennett, wasn't there? A. Yes. Q. Even death. A. No." 28 Any person who conspires actively and seriously to such ends commits in my opinion a crime of great objective gravity. One of the most basic purposes of having at all the rule of law is the purpose of ensuring that the blood feud, the vendetta, and the contracted violence of hired thugs, do not become accepted ways of resolving personal antagonisms, however understandable those antagonisms might be from this or that particular point of view. 29 I have referred in other cases to the concluding sentences of the speech of Lord Templeman in Reg v Brown & ors. (1994) 1 AC 212 at 237: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." 30 On the present occasion I refer to them once more, because each of the three propositions there advanced by his Lordship seems to me to be relevant to the present case, even though the pleasure in the present case was pleasure in the sense of primitive satisfaction rather than in the sense of physical stimulation. 31 The facts relevant to the accessorial charge, taking the view most favourable to the prisoner, as I am satisfied to the requisite standard I should do, are to be found in the following narrative given by the prisoner in his evidence-in-chief, of the events that took place on 21 October: Q. "Did you see him at your house, or his house? A. No, I met him at his house. Q. Was there a prior arrangement in relation to that? A. Yes. Once we left Toni's place in the car, and I took him home, Gordon said to me "I've got to get rid of the body. You've got me into this mess and you have to get me out of it." And "I need the van - not the yellow one". And I said "What for?", and he said "To get rid of the body. You be at my place between 11 and 12". Q. Did you go? A. Yes. Q. What happened next? A. When I got to Gordon's place, I got there at 11 o'clock, I asked where it was and he said "It's next door on the other side of the fence". I walked down to have a look, and there was some garbage sort of covering the body to make it look like a pile of rubbish.". Gordon threw two blocks of concrete over the fence and says "I can't bear to look at it, put something over it and I'll get some rope and that and then we can tie the concrete on it". So I went back to my van and grabbed two Australian post bags. And I had a tarp with me which I spread in the van also, and went down and covered the torso - is the word I believe - with the two Australian post bags. Q. What else did you do and what did Gordon do? A. By about that time, Gordon had walked around the side of his house with the rope and electrical wire where we started tying the concrete to the body. Q. You were successful at that? A. Yes. Q. Then what happened, sir? A. We stopped for a while - I had a beer, Gordon had a bong - just keeping an eye out to make sure there's no-one looking out the windows of the houses and that. When we were sure we weren't being seen, we went and picked up the body and laid him in the back of my van. Q. Then what happened sir? I'll stop you there. Was there any conversation about where and/or how you were going to dispose of the body? A. Yes. Gordon suggested throwing him off the Liverpool Bridge. I said "You can't stop at the Liverpool Bridge, climb onto the hand railing with the body and throw him off the railing, as there's too many people". He said "Where else?". I said "We'll have to do it in the river". Gordon suggested the Nepean River, but that was way over Penrith way. I said "You can go near Bankstown airport, I don't know the name of the river off the top of my head". That's the only river I was aware of. Q. And did you go there? A. Yes, we did. Q. And near the Bankstown Airport, then what happened? A. We left Gordon's place and we drove to a garage in Green Valley opposite the police station where I bought a car inner tube; because Gordon suggested throwing him off the bridge, and when I said "You can't do that, you can't roll him off the edge of a bridge either, he must be placed in the middle of the river somehow". So the idea came up of buying a car inner tube and putting the body on that and someone has to swim out and release the body. We drove over from Liverpool to Bankstown Airport, but there was too many fishermen along that stretch at that time, so we turned around and went in the opposite direction where we went past Picnic Point. I think there was too many people fishing at that area. And we went further down to Revesby where the boat ramp is at, and it was like a lovers' lookout and there's maybe 10, 15 cars there, and Gordon said, "We could be here all night looking for a place like this, and it's getting close to sun up". And he suggested Clinch's Pond and said he'd heard it was supposed to be bottomless and there wouldn't be anyone there at this time of night as it was a picnic area, and I said "We'll try that", and drove to Clinch's Pond. Q. What happened then, sir? A. We drove to Clinch's Pond, parked the vehicle in what looked like a normal rest area for vehicles to be parked in. There was a tree close by and a small post fence, one of those 6 inch post fences they use. I got out and I said to Gordon "Give us a hand". I opened up the side door and I grabbed the bag. I was carrying the inner tube and took it towards the edge of the pond. Then, I walked back up to the car and me and Gordon grabbed him by his arms and shoulders and carried him down to the edge of the lake; where I stripped off down to my underpants and got in at the edge and put the inner tube in, and Gordon helped me to position Gary and balance him in the middle of the inner tube, and I started to swim out to the middle of the pond. Q. What did Gordon do? A. Gordon said 'I'm so nervous, I can't stay here and wait for this, I'm going to get a Coke', and he drove off. Q. What did you do then, sir? A. Once I up-ended the body, I swam back with the inner tube to the side. I punctured the inner tube and put it inside the bag I was carrying, dried myself off with a towel, got dressed, and by this time Gordon had come back. Q. And then what did you do sir? A. We drove home - Gordon drove my car home, stopped at his place and got out and said "I'm going to have some more bongs, do you want to come in?", and I said "No, I'm going home". And the sun had started to come up at this time. When I got home, I stripped off, I had a shower and got clean clothes. The clothes I was wearing, including socks and shoes, I took out to my van, and I placed them in the middle of the tarp I had there, rolled the tarp up and took it down the back of my yard and burnt it." (T 931-933) 32 Once again, the objective gravity of what was done by the prisoner is, in my opinion, very great. Mr. Bennett was abducted and beaten to death. These deeds were brutal and deliberate crimes of violence. Every consideration of justice and decency required that whoever did such things should be called publicly and speedily to lawful account for them. Deliberately and knowingly to conceal such crimes cannot but be itself a most serious offence against both public justice and public order. 33 So much for the relevant objective facts. 34 The subjective matters which must now be taken up can be summarised as follows:

[1] The prisoner is now aged 44, and very nearly 45, years. He is married. He has no children, but has two surviving step-sons who are young adults.

[2] The prisoner has criminal antecedents. They are detailed in the usual form in Exhibit A on sentence. They are few in number and of no present particular significance save for the obvious considerations: first , that the prisoner does not now stand for sentence as, literally, a first offender; and secondly , that the sentence now to be passed will be the prisoner's first sentence of full-time adult custody.

[3] The prisoner has pleaded guilty, as previously outlined, to the offences for which he is now to be sentenced. I will allow him a measure of leniency on that account; but, in the circumstances previously noted, it must be a fairly limited measure.

[4] The prisoner professes remorse for his crimes. At the very conclusion of his evidence-in-chief, [T 948], the prisoner gave the following evidence: "Q. You certainly told the Court that you helped, or you indeed, disposed of Mr. Bennett's body? A. Yes. Q. How do you feel now in relation to that? A. I feel ashamed, because there is not a day's gone past that I haven't re-lived that night. For the last six years it's been a nightmare to me and I'm going to live with that for the rest of my life because of my actions. Q. What would you like to say to any of the family of Mr. Bennett? A. I would like to apologise to the Bennett family and I have the hope one day they might be able to forgive me in their hearts."

I am disposed to accept this evidence; but there must be balanced against it the consideration that it comes late in the day, and after the prisoner had not only acted deliberately and knowingly to suppress the detection and punishment of a terrible crime, but had deliberately and knowingly lied thereafter about his own acts. That he was, as he said in evidence, "scared" at the time explains, but does not excuse, those lies.

[5] The prisoner is not well educated. In so far as he has been successful in his various occupations, and in particular in his occupation as a contract courier, the fact reflects creditably upon his perseverance and diligence. Such qualities suggest a real prospect of rehabilitation; and I acknowledge the need for care not to stifle them by an inordinately severe sentence.

[6] As previously noted, Dr. John Roberts, a Specialist Consultant Psychiatrist, has assisted the Court with a report about the prisoner. The discussion in the report confirms, broadly speaking, the conclusions of fact previously herein noted.

So far as concerns psychiatric assessment, the relevant portions of the report are in the following terms: "In terms of this man's psychiatric status, there is evidence that this man is a simpleton. On ground of probability he also suffers from organic cerebral impairment, secondary to 8 to 10 years of excessive alcohol ingestion of substantial degree. The combination of this man's lack of intellect and sophistication coupled with the damage presumed to be present on the basis of his alcohol ingestion would have on grounds of probability made him more likely to feel feelings of envy in regard to the deceased's accomplishments, and to feel hostility towards him, and to formulate the plan that he did, without having the intellectual awareness as to the possibility that matters could go beyond what was intended. ……………………………………………. There is a presumption in the giving of my opinion that this man has suffered from a degree of Cerebral Organic impairment as the result of alcohol ingestion and there is also a presumption based on his manner of presentation and his past educational record that he is very straightforward - confirmatory psychometrics would assist in this regard. I would consider that this man's level of intellectual functioning and his apparent limited intellectual resources would explain to some degree his behaviour in regard to this matter, but would not provide an excuse for such behaviour."

[7] I have referred previously to the fact that Dr. W. John Taylor, a Clinical Forensic Psychologist, has carried out a neuropsychological assessment of the prisoner. Dr. Taylor's report is very detailed in its explanation of the nature of the testing administered by him to the prisoner. The report is similarly detailed in its analysis of the various individual test results. It is not necessary, I think, to canvass at length the fine detail of that material.

Dr. Taylor expresses the opinion that the prisoner's "assessed current level of intellectual functioning is within the average range" . Dr. Taylor considers the overall effect of the testing carried out by him as indicating "quite significant brain damage. This brain damage would be likely to result in impairments in areas such as judgment and in the planning and organisation of thought and behaviour. He is also likely to be lacking in significant insight into the extent of his cognitive impairments ". Within the context of those conclusions, and of the reasoning put forward in support of them, Dr. Taylor expresses the view that "it would be consistent that Mr. Elsworth would not have considered that the original proposal to bash Mr. Bennett in a pub could go wrong and result in his death. Furthermore, his agreement with one of the co-accused to dispose of the deceased's body would also have been likely to have been due to impairment in his cognitive abilities, together with the fact that he is a rather passive person and rather compliant. Due to his under-developed emotional and personality resources he probably perceived at the time that there was no alternative for him but to behave in the manner that he did" .

It would not be, I think, a correct approach for me simply to reject this evidence out of hand; but I am bound to say that I do not see it as sitting comfortably with the prisoner's own evidence as recorded at paragraphs 26, 27 and 31 hereof. My own ultimate conclusion about the interrelation of the prisoner's level of intellectual functioning and his offending conduct accords with the view expressed in the last of the paragraphs quoted previously from the psychiatric report of Dr. John Roberts. 35 Before striking an overall balance of the foregoing objective and subjective considerations, I need to deal with two further particular matters. 36 The first such matter involves a simple adjustment of any sentence so as to take properly into account the period of pre-sentence custody. The prisoner spent initially after arrest a month in custody. He was then granted bail. The bail was revoked with effect on 23 November 1998 and the prisoner has been in continuous custody since that date. These periods of custody total 1 year 9 months and 1 week, or 1 year and 40 weeks. I will reduce accordingly the eventual head sentence and non-parole period. 37 The second such matter involves considerations of parity as between, on the one hand the prisoner, and on the other hand Pagett and Carrick. 38 Carrick was granted complete immunity and will serve no imprisonment for his part in the abduction and eventual killing of Mr. Bennett. 39 Pagett pleaded guilty to charges of having been an accessory after the fact to murder; of kidnapping for intended advantage; of maliciously inflicting grievous bodily harm with intent so to do; of robbery in company; and of larceny, all such offences arising out of the events herein previously described. 40 On 3 November 1999 the Chief Judge of the District Court sentenced Pagett to imprisonment for, put simply but sufficiently for present purposes, 4 years comprising a minimum term of 2 years and 9 months and an additional term of 1 year and 3 months. The Chief Judge explained in his Honour's reasons on sentence that, had it not been for Pagett's pleas and assistance to the authorities, his aggregate sentence would have been one of 8 years. It is clear from the remarks on sentence that the Chief Judge regarded that putative 8 years as being the lower end of an available range, the upper end of which was 12 years. 41 The prisoner cannot justly claim, in my opinion, a right to be sentenced upon a basis that gives literal effect to the principle of parity as expounded by the High Court of Australia in Lowe v The Queen (1984) 154 CLR 606. Nor, in my opinion, could the prisoner justly claim to be aggrieved by an approach based upon the consideration that, since nobody of those involved in the events described previously herein is actually answering for the undoubted murder of Mr. Bennett, the prisoner, as the person who conceived, and was the moving party behind, the enterprise to abduct and bash Mr. Bennett, is to some extent more culpable than the two people who actually did, on contract from the prisoner, the abducting and the beating. As Mason CJ, Toohey, Gaudron and McHugh JJ said in Wilson v The Queen (1992) 174 CLR 313 at 334, "It is appropriate to recognise the principle that there should be a close correlation between moral culpability and legal responsibility". 42 In the present case I do not propose to advance a mathematical analysis akin to that advanced by the Chief Judge when sentencing Pagett. Sentencing, as the Court of Criminal Appeal has frequently pointed out, is an art and not a science. To treat the process as a science, and a mathematical science at that, is simply to foment appeals which, however dressed up, are in truth no more than resourceful shuffles of arithmetical debating points. I propose, instead, to do no more than to indicate, as I have earlier done, a view about the relevant comparability in terms of moral culpability, and then to factor that view, in conjunction with all other relevant matters, into a final result. 43 Upon the basis of the whole of the foregoing reasons, I have come to the conclusion that the overall criminality of the two offences for which the prisoner is now to be sentenced is justly reflected in a sentence of imprisonment for 9 years. It is, I consider, manifestly appropriate to set a non-parole period. The norms established by the Crimes (Sentencing Procedure) Act 1999 entail that, absent special circumstances, the non-parole period should be 6 ¾ years. I have considered whether there should be some adjustment because of relevant special circumstances. I have concluded that there should not be such an adjustment: first, because in my opinion the evidence does not suggest that the prisoner requires longer than 2 ¼ years for his proper rehabilitation back into the community after his service of the proposed non-parole period; and secondly, because a term actually to be served of less than 6 ¾ years would not seem to me to reflect justly the enormity, from the points of view both of the proper protection of the community and of public order, of the two offences for which sentence is now to be passed. 44 The adjustment earlier mentioned will entail a head sentence of 7 years and 12 weeks dated to commence on and from today, and a non-parole period of 4years and 51 weeks similarly dated. 45 Michael James Elsworth, your two convictions previously pronounced are confirmed. 46 For the crime of conspiracy for which you have been so convicted, you are sentenced to imprisonment for a term of 7 years and 12 weeks dated to commence on and from today. A non-parole period is set at the term of 4 years and 51weeks similarly dated. 47 For the accessorial crime for which you have been so convicted, you are sentenced to imprisonment in the same terms, both sentences being, therefore, concurrent.

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