REGINA v. OFFER [2000] NSWSC 839

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SENTENCE 1 HIS HONOUR: On 26 April 2000, an indictment was presented against the offender, Paul Michael Offer, charging him with one count of having, on 15 February 1997, caused grievous bodily harm to Nagwa Gerges with intent to murder her; one count of murdering Ronald Gregory Mills on 27 September 1997; and three counts of having solicited another to murder Ronald Gregory Mills, Maher Nicola Gerges and Mark George Chapman. Those last offences were alleged to have been committed between about 1 September and about 30 November 1997. 2 The offender pleaded not guilty to all of those counts and was placed in the charge of a jury for trial. 3 The Crown Prosecutor opened to the jury, in detail, the evidence that it was proposed to lead against the offender. Following which, the proceedings were adjourned until the following Monday. On that day, following the offender's intimation of a willingness to plead guilty to counts one and two in the indictment, the offender was re-arraigned on those counts and, before the jury, pleaded guilty. Verdicts of guilty were returned by the jury in accordance with my direction and in accordance with the request of the Crown Prosecutor, to which Mr. Spencer of counsel for the offender assented, the jury was discharged on the remaining three counts on the indictment, I being informed that it would be sought that those counts be taken into account on a Form 1 and that the Crown accepted that procedure. That Form 1 was provided to me and I take those offences into account on the offence of murder, as I have been requested. 4 On that day, 1 May 2000, I convicted the offender on counts one and two of the indictment, that is, the offences of causing grievous bodily harm with intent to murder and the offence of murder. 5 It is regrettable that at the time my attention was not drawn to s.91 of the Criminal Procedure Act 1996 as inserted as and from 1 January 2000 which required me to discharge the jury from giving a verdict in these circumstances and to find the accused person guilty of the offence myself. 6 Prior to convicting the offender, I had administered the allocatur. It is entirely apparent that I had approved the acceptance by the Crown of the proffered plea and indeed that is made completely clear by the Crown's acceptance that the remaining three counts should be dealt with on the Form 1. 7 The procedure adopted was generally in accordance with that approved, for example, in Regina v. Ross (CCA, unreported 20 April 1994). It does not, however, precisely accord with s.91's requirements nor that of its predecessor, s.399A of the Crimes Act 1900 (see Regina v. Ress [2000] NSWCCA 224). In the circumstances, the verdicts of the jury were not necessary. I was satisfied of the offender's guilt on his plea and content with the Crown's acceptance of it. This underlay my acceding to the course proposed by the prosecutor and my convicting the offender (see Maxwell v. The Queen (1996) 184 CLR 501). I shall proceed in accordance with the matter under s.91(2) on that basis. 8 The proceedings were adjourned on 1 May 2000 to permit both the Crown and the offender to prepare material for sentence. The offender was remanded in custody for sentence. The proceedings were adjourned from time to time to enable enquiries to be made in Ireland. 9 On the matter coming forward for sentence, there was admitted in evidence, without objection and marked Exhibit A, an extensive statement of facts prepared by the Crown which statement of facts was not challenged by the offender. That statement of facts summarised the matters opened by the learned Crown Prosecutor at the trial and of which a transcript has been prepared. 10 I take the following from that statement.

Count 1 11 On 15 February 1997, the offender shot Nagwa Gerges in the head with a bolt from a crossbow when she answered the door at her home in St. Ives. He had intended to kill her husband, Maher Nicola Gerges (a man who he later solicited another person to murder. This solicitation was the basis of one of the counts included on the Form 1). Mr. Gerges found his wife lying near the front door with the bolt in her head and, in panic, removed the bolt.

"Mrs. Gerges suffered severe head and brain injury as a result of the shooting. She now suffers from permanent semi-paralysis of her right side with moderately severe weakness to her right upper limb and milder weakness to her right lower limb. She also suffers from lack of peripheral vision to her right side and slurred speech. Mrs. Gerges suffers from major depression, insomnia, alternating mood swings and impairment concentration (Dr. Salem)." 12 When interviewed by police on 5 March 1997 about the shooting of Mrs. Gerges, the offender denied knowledge and asserted that he, his wife and their three young children had travelled to the Gold Coast the day prior. He denied ever possessing a crossbow and asserted that he had seen a crossbow at the Gerges' home some time earlier. 13 A week after the shooting, an anonymous caller had given information to Crime Stoppers that police would "find what you're looking for" at East Side Smash Repairs, a business run by Maher Gerges' brother, Sam. Those premises were searched on 26 February 1997 and four crossbows, two with metallic shafts with red and black vanes and two with fibreglass shafts with orange and yellow vanes marked with a brand Horton Fibre Strike were found in circumstances suggesting they had recently been placed in that position. 14 The bolt removed from Mrs. Gerges' head had a grey metallic shaft with red and black vanes.

Count 2 15 Mr. Mills, who worked as a marine electrician, lived alone in Allawah. At sometime between 8.00 and 9.00 pm on 27 September 1997, Mr. Mills' neighbours heard what sounded like a single gunshot and a car leaving. Mr. Mills' body was found on Tuesday 30 September 1997. Mr. Mills' had been shot in the head. "Police investigating the shooting of Mr. Mills discovered a connection between that shooting and that of Mrs. Gerges. Mr. Mills and Mr. Gerges, along with another man, Mr. Mark Chapman, were witnesses for the prosecution in court cases in which the offender had been charged. The offender and Mr. Gerges had worked together and had been on friendly terms until there was a falling out. The offender operated a tow truck and Mr. Gerges operated a panel beating and spray painting business. The offender and his family had been visitors to the Gerges' home at St. Ives. After the falling out, there was considerable ill feeling between the offender and Mr. Gerges. This related to their business interests and Mr. Gerges giving evidence against the offender in two court cases. On 17 October 1996, the offender was charged in relation to his possession of a stolen router and drill. His explanation for this possession was that he had purchased these tools from Mr. Gerges. Mr. Gerges denied this and gave a statement to the police, of which the offender was aware at the time Mrs. Gerges was shot. Mr. Gerges gave evidence in accordance with his statement on 28 February 1997 (the offender was convicted on this charge on 21 March 1997, but on appeal to the District Court the conviction was quashed on 14 September 1999). On 28 February 1997, the offender was charged in relation to an alleged boat fraud (which has not been dealt with and must be ignored for the purposes of sentence). An alleged accomplice, Armand Scerri was also charged with the boat fraud on 1 February 1997. In relation to the alleged boat fraud, Maher Gerges, Ronald Mills and Mark Chapman made statements to the police and these statements were served upon the offender's legal representative. The offender obtained a copy of the police brief which included the statements. In the case of Mr. Gerges, the statement gave his business address (however his residential address was known to the offender). In the case of Mr. Mills, the statement gave his business address and telephone number but not his home address and telephone number. In the case of Mr. Chapman, the statement gave his business and home addresses. On 30 May 1997, the committal proceedings relating to the boat fraud were listed for hearing commencing on 13 October 1997 (the significance of this hearing date later emerges). The Crown alleges the motive for these offences was the offender's wish to eliminate witnesses who either had or were to give evidence for the prosecution relating to the charges concerning an alleged boat fraud and possession of stolen property. When police discovered the apparent connection between the two shootings, they wished to speak to the offender. The offender, his wife and children had lived in Sydney until about April 1997 when they travelled north in their motor car and motor home. From about July 1997, they resided in their motor home at the Dress Circle Caravan Park at 8 Mile Plains, a suburb of Brisbane. Police established that the offender was living at the caravan park and he was kept under observation for a few days until 15 October 1997, when he and his family packed their belongings and left the caravan park. The offender was stopped by police, who took possession of the Ford Falcon motor car and the motor home. The offender was asked, and agreed, to go with police to the CIB in Brisbane, where he was interviewed on video in relation to the murder of Mr. Mills. In this interview, the offender denied any involvement in the murder of Mr. Mills and provided an alibi that he was at the caravan park on the weekend Mr. Mills was murdered. He told police that on Friday evening, 26 September 1997, he had a birthday party at the caravan park and said he could remember that because the caretaker fixed a problem with the barbecue they were to use at the birthday party. He told police that on the night, Saturday 27 September 1997 (the night Mr. Mills was murdered), he drove his wife to work at a hospital in Brisbane where she worked as a nurse. The offender's alibi was investigated and found to be false through a number of pieces of evidence." 16 It is not necessary to detail the particular pieces of evidence. "At his interview with police on 15 October 1997, the offender denied possession of any firearms or ammunition. He also denied knowing the deceased, Mr. Mills. At the conclusion of the interview on 15 October 1997, the offender was allowed to leave. A preliminary search of the Ford Falcon began in the afternoon of 15 October 1997 and developed into an extensive search along with the motor home on 16 October 1997, on which day many incriminating items were found. In the boot of the Ford Falcon, police found a silencer capable of being threaded onto a nine millimetre pistol, a gun-cleaning kit suitable for use on a nine millimetre pistol, a sawn-off shotgun, five crossbow bolts with metallic shafts and red and black vanes, a national shooting sports foundation brochure, a business card in the name of Mark Chapman from Chapman Marine and the address of Mr. Gerges' home at St. Ives written on a black card. Bank records show the offender's credit card was used to purchase the gun-cleaning kit in Brisbane on 17 September 1997. In the passenger's side external storage area of the motor home, police found black balaclava, a nine millimetre Luger pistol loaded with seven live rounds (nine millimetre Norinco brand) in a brown holster, nine live rounds of nine millimetre Norinco brand ammunition in a plastic bag, a laser sight (and instructions) suitable for attachment to a crossbow and documents establishing the offender's presence in Sydney on 8 and 9 October 1997 (as to which see the reference to Mr. Seaton later). The nine millimetre Luger pistol was examined and found to be the murder weapon. Inside the motor home police found a photograph of Mr. Gerges and his family, the home and business addresses of Mr. Gerges written on a piece of paper, documents relating to gun laws in Queensland and, two business cards in the name of Ronald Mills, Blakehurst Marina, an envelope on which was written the name of 'R. Mills', addresses and phone numbers in Sydney (but not the deceased), documents establishing the offender's presence in Sydney around 19 September 1997 (as to which see the reference to Mr. Seaton later) and a Visa card cash advance slip for $8,000 on 25 September 1997 (as to which see the reference to Mr. Seaton and listening device transcripts later). In the driver's side external storage area of the motor home, police found 81 live rounds of nine millimetre Norinco brand ammunition wrapped in plastic, two boxes containing 97 live rounds of nine millimetre Chinese manufacture brand ammunition and a nine millimetre magazine containing seven live rounds of nine millimetre Norinco brand ammunition." 17 Although the offender claimed he did not know Mr. Mills, he had made various attempts to find out where he lived and his mobile phone records show a series of calls to Mr. Mills' work and home as well as numerous calls to the Sydney numbers of persons named "R. Mills". "Following the discovery of the incriminating evidence in the boot of the Ford Falcon and in the motor home, the offender was arrested in Brisbane on 17 October 1997. The offender exercised his right to silence when arrested. The offender was extradited to Sydney on 20 October 1997. The fact of his arrest and extradition received some publicity in Sydney." 18

The counts on the Form 1 and context "On 21 October 1997, an article appearing in a Sydney newspaper was read by Mr. Alan Seaton, a friend of the offender who lived in Sydney and who had worked with the offender in the security industry some years previously. Mr. Seaton immediately rang Sandra Macdonald, who confirmed that her husband, the offender was the person referred to in the newspaper article. Mr. Seaton then realised the seriousness of a number of recent approached by the offender to Mr. Seaton about 'taking care of people', rang the police and reported these approaches. Mr. Seaton's telephone records confirm the phone calls made by him that day. Around early September 1997, Mr. Seaton received the first of a number of phone calls from the offender after not hearing from him for five or six years. The offender told Mr. Seaton he was in trouble and needed some people looked after. Mr. Seaton never took seriously anything the offender said because he knew the offender to be a story-teller and they, with their work colleagues years previously, used to joke about taking care of people. The offender told Mr. Seaton he would mail to him a list of names and addresses, which Mr. Seaton later received. Mr. Seaton threw away the letter but does remember the letter contained the names and addresses of three men, one with an Allawah address (Mr. Mills) and another with a Drummoyne address (Mr. Chapman). Mr. Seaton remembers being told by the offender the three men were witnesses in a boat fraud. Mr. Seaton received a number of telephone calls from the offender and returned some of the offender's calls. The offender's mobile telephone records together with Mr. Seaton's mobile and landline telephone records confirm a series of telephone calls. Mr. Seaton recalls the offender offering him $10,000 to 'look after' these people. Mr. Seaton recalls the offender saying that he wanted Maher Gerges' looked after' because he had 'set him up' for the boat fraud. Mr. Seaton did nothing in response to the offender's request and when the offender continued to ring him began to make excuses for doing nothing. The first time Mr. Seaton saw the offender after these calls was a Friday night (which appears to be 19 September 1997) at the Bankstown Trotting Club. While at the club, Mr. Seaton received a phone call from the offender, who then met Mr. Seaton at the club. The offender told Mr. Seaton he was in trouble and needed help. … The offender met Mr. Seaton next on 8 October 1997 at the Padstow RSL Club. Mr. Seaton was at the club and received a telephone call from the offender, who met him there. The offender said to Mr. Seaton that 'I've got one that I need fixed up desperately by the weekend'. The offender gave Mr. Seaton details of Maher Gerges, which Mr. Seaton wrote down on a piece of paper. The significance of the offender wanting Mr. Gerges fixed up desperately by the weekend was that Mr. Gerges was to give evidence for the prosecution in connection with the boat fraud charge, the committal hearing of which was to begin on Monday 13 October 1997. When Mr. Seaton left the Padstow RSL Club with the offender, they got into a small red car which the offender had hired in Sydney for the period 8 October 1997 to 10 October 1997. Mr. Seaton saw a Luger pistol in a brown holster on the back seat of the car. Mr. Seaton removed the pistol from the holster and examined it. It had an empty magazine. The offender said it was his gun, took it from Mr. Seaton, put it on the floor of the car and covered it with a coat. This was the pistol used to shoot Mr. Mills and these events are confirmed on a listening device tape recording to which reference will shortly be made. From the Padstow RSL Club they drove to another club then the offender drove Mr. Seaton to his home. The next day the offender went to Mr. Seaton's home where he repeated his request to 'fix up' Maher Gerges by the weekend. The offender was again driving the red hire car and said he had to get back to Queensland. … In the circumstances outlined above, Mr. Seaton went to police and disclosed the offender's approaches to him. At around this time the offender telephoned Mr. Seaton from gaol and asked him to visit him. The offender made reference in this phone call to Mr. Seaton's fingerprints being on the pistol (no doubt a reference to Mr. Seaton handling the pistol at the Padstow RSL Club on 8 October 1997). Mr. Seaton visited the offender at Silverwater Gaol on four occasions, 23 October, 27 October, 30 October and 5 November 1997. On each occasion he wore a listening device (authorised by warrant) which recorded his conversations with the offender. The conversations confirm Mr. Seaton's disclosure of the offender's attempt to persuade him to murder Mr. Mills, Mr. Gerges and Mr. Chapman and disclosed a continuing desire of the offender that Mr. Gerges and Mr. Chapman be killed. The offender confirmed he had sent down a list of the people he wanted Mr. Seaton to kill ('see I told you in the letter I need them three done'). He confirmed the offer to pay Mr. Seaton $10,000 by saying 'the money we were going to give you for the job is out of the fucking Visa account' (an amount of $8,000 was withdrawn from the offender's Citibank Visa account on 25 September 1997 and repaid on 29 September 1997). The recorded conversations contain admissions by the offender that he shot Mr. Mills ('you kept putting me off so I took it into my own hands') and Mrs. Gerges ('the object that's in the storage right, was used on his Mrs. … she came to the door and she stepped in the way'). He admitted that police found the murder weapon ('they've got me, they've hot me with the fucking guns, they've got me with the shotty in the car'). He asked Mr. Seaton to go with Sandra Macdonald to his storage area and get rid of a package which the offender admitted he had used to shoot Mrs. Gerges (as to the location of the package see later). The recorded conversations disclose that the offender, with the assistance of Sandra Macdonald, had set about creating a false alibi for the offender at the time of the murder, an alibi that the offender was in Brisbane. The offender asked Mr. Seaton to provide a false statement supporting this alibi. He gave Mr. Seaton false details to be able to give the alibi and handed him a document setting out a plan of the caravan park. He also asked Mr. Seaton to tell Sandra Macdonald to tell a Mrs. Fortunata Tonelli (Nella) what she had to say in the false alibi statement. (The offender had telephoned Mrs. Tonelli and asked her to provide a false alibi by saying she was in Brisbane and saw the offender on the weekend Mr. Mills was murdered. At first, Mrs. Tonelli agreed but later retracted her alibi statement which Sandra Macdonald had arranged to be collected by private enquiry agent and given to the offender's then barrister). The offender gave Mr. Seaton a document setting out the false details of the alibi Mrs. Tonelli was to give. In the recorded conversations, the offender asked Mr. Seaton if he could find someone who would say that "Maher Gerges is fucken' bragging that he planted the gun on fucken' Offer in his motor home' and that he needed 'at least two fuckers to stitch Maher up'. The offender sought Mr. Seaton's assistance by saying that his (Mr. Seaton's) fingerprints were on the pistol (a reference to Mr. Seaton handling the pistol in the hire car at the Padstow RSL Club on 8 October 1997) and that the offender could tell the police that Mr. Seaton was the murderer. Mr. Seaton pretended to the offender he would help him in the say the offender asked him to do and, as part of the pretence, Mr. Seaton told the offender he had a friend in Canberra who could also help the offender get out of gaol. On Mr. Seaton's fourth and last visit to the offender (5 November 1997) he introduced his 'friend' to the offender. The 'friend' was an undercover police officer (Albert Villa), who continued on the pretence of being able to help the offender." 19 However, those calls were not tendered in evidence nor the content of them referred to in the statement of facts. "Albert had a number of conversations with the offender after Mr. Seaton ceased his visits to the offender but they are not relied upon by the Crown … Albert had a number of conversations with Sandra Macdonald which led (with the evidence of Mr. Seaton) to the arrest of Sandra Macdonald on 18 December 1997 in respect of her part in helping the offender to arrange false alibis for the shootings of Mr. Mills and Mrs. Gerges and attempting to destroy evidence (the crossbow). On Mr. Seaton's third visit to the offender (30 October 1997), he was accompanied by Sandra Macdonald, who by this stage had come down from Brisbane. The offender discussed with them the false alibi for the murder of Mr. Mills and Mr. Seaton with Sandra Macdonald getting ride of the package in storage. Mr. Seaton arranged to meet Sandra Macdonald at 10.00 am on 31 October 1997 at Kennards Hire at Kirrawee. That morning access was gained to a storage unit in the name of Sandra Macdonald. Sandra Macdonald used the code number to access the unit but did not have the key to unlock the padlock. Mr. Seaton did as the offender suggested and used bolt cutters to cut the chain with the padlock. Sandra Macdonald removed a large package from the unit and gave it to Mr. Seaton believing he would get rid of it. Instead, Mr. Seaton took the package to the police. When police opened the package it was found to contain a Hortons Super Mag crossbow package, seven bolts with metallic shafts and red and black vanes and various crossbow accessories. With the crossbow package was a black balaclava. While the offender was in custody, his cell was searched and incriminating evidence found, and further incriminating evidence was found when the offender's mail was intercepted. Various letters and statutory declarations written by the offender were sent to a friend, Mr. Colin Gibbons. This material established that the offender had fabricated evidence with a view to discrediting Mr. Seaton, Mr. Gerges, Mr. Mills and the police officer in charge of the case, Detective Sergeant Thompson. When the offender became aware Mr. Seaton had co-operated with the police, the offender made many false allegations against Mr. Seaton with a view to discrediting him as a prospective Crown witness. The offender also made false allegations against Mr. Gerges and Detective Sergeant Thompson with a view to discrediting them. The offender also made false allegations against the deceased, Mr. Mills. The allegations were made in statutory declarations to the Commissioner of Police and the offender's then solicitor which the offender copies and sent to Mr. Colin Gibbons. The offender also alleged that a number of police officers not involved in the present matter were corrupt. This material included the following allegations:- (a) Mr. Seaton was a professional hit man and assassin who worked for the police. (b) Mr. Seaton supplied weapons to Triad drug operators and laundered their money. (c) Mr. Seaton had murdered an Irishman at Marrickville, a lady at Rozelle, Mr. John Newman at Cabramatta and cut off the head of another man. (d) Mr. Seaton sold firearms illegally to the public. (e) Mr. Seaton possessed police documents and photographs, in particular, documents relating to Mr. Newman. (f) Mr. Seaton had asked the offender to be the driver of vehicles to be used in murders, including the murder of Mr. Newman. (g) The crossbow package was given to the offender by Mr. Seaton and the offender, not knowing its contents, put it into the storage unit. (h) Mr. Seaton offered to sell the offender the sawn-off shotgun and the Luger; the offender bought the shotgun but not the Luger. (i) Detective Sergeant Thompson was on the payroll of Mr. Gerges. (j) Mr. Seaton had borrowed a balaclava from the offender. (k) The offender saw the Luger in the possession of Mr. Seaton on different dates that included the day of Mr. Mill's murder. (l) Mr. Seaton told the offender he killed Mr. Mills. (m) The offender had witnessed Mr. Seaton kill a man years previously. (n) Mr. Seaton worked for Mr. Gerges eight to 10 years previously. (o) Two to three days before the offender's arrest, he saw Mr. Seaton in Brisbane with a Luger and holster. (p) In gaol, Mr. Seaton told the offender he left the Luger and holster in the motor home. (q) Mr. Seaton told the offender and Sandra Macdonald what to say when talking to Albert and they lied to Albert. (r) The offender saw Mr. Seaton with the Luger and holster when he was in Sydney on 8 October 1997. (s) In gaol, Mr. Seaton told the offender he had set him up but he would get him out of gaol. (t) The offender told Sandra Macdonald to give Mr. Seaton his package from the storage unit and that he (the offender) did not know what was in the package. (u) Mr. Gerges was involved in criminal activities including drug dealing and making corrupt payments to police officers. (v) A car used in the murder of Mr. John Newman was repainted in Mr. Gerges' workshop. (w) Mr. Seaton told the offender he shot Mr. John Nwman in the head and then threw the murder weapon into the water at Taren Point Bridge. (x) Mr. Seaton had made corrupt payments to police officers. (y) The offender drove Mr. Gerges to Cabramatta to see Mr. Ngo. (z) Mr. Gerges and Mr. Mills were involved in drugs. (aa) Mr. Seaton asked the offender to write down the names and addresses of Mr. Mills, which he did from the police brief. (bb) Mr. Seaton made the offender admit to the killing. This material discloses that the offender had abandoned his alibi that he was in Brisbane at the time of the murder of Mr. Mills. The offender stated that he was in Sydney at the time of the murder but at that time had been in the company of Maggie (McTaggert) at two hotels in Annandale. Maggie McTaggert denies this, although she did know the offender and worked at one of the hotels. On 13 July 1999, gaol authorities intercepted the offender's mail. An envelope from a friend of the offender, Mrs. Sharyn Bishara, to the offender contained what purported to be an unsigned contract between the offender and Mr. Seaton dated 21 October 1997. Mrs. Bishara has admitted that she had typed this contract at the request of the offender. The contract purports to be an admission by Mr. Seaton that he had killed Mr. Mills and tried to kill Mrs. Gerges. It purports also to be an agreement that the offender falsely admitted to Mr. Seaton and Albert that he was responsible for the killing and attempted killing in return for which Mr. Seaton and Albert would help the offender to get out of gaol. On 15 July 1999, a search warrant was executed upon the offender's property in his cell. Material found included:- (a) What purported to be statutory declarations made by Mr. Seaton on 23 October 1997 and 30 October 1997 at Silverwater and witnessed by a Justice of the Peace. Neither Mr. Seaton nor the Justice of the Peace signed these documents. They were written by the offender and the signatures of Mr. Seaton were traced from his signature on the statement given by him to police and served upon the offender. The statutory declarations are in similar terms and purport to be admissions by Mr. Seaton that he had killed Mr. Mills and had attempted to kill Mrs. Gerges and that he had planted the murder weapon in the offender's motor home. (b) What purported to be a letter written by the offender to Mr. Seaton on 23 September 1997 in which the offender recounts that Mr. Seaton left a briefcase in the offender's car and which the offender put into the storage unit at Kennards Hire at Kirrawee. The letter purports to give Mr. Seaton the key, code number and directions to the storage unit with a request that Mr. Seaton remove the briefcase from the unit. The letter purports that Mr. Seaton admitted to the offender he had murdered a woman in Rozelle. The letter requests Mr. Seaton to sign the letter as acknowledgment of its contents and return it to the offender. The letter purports to be signed by Mr. Seaton and dated 27 September 1997. Mr. Seaton's purported signature is traced. … (c) Copies of pages from a street directory of the Annandale area and sketches of streets at Annandale where two hotels were situated. These documents with photographs were sent to the offender by a friend, John, as part of an attempt by the offender to create a false alibi that he was drinking at these hotels on the night Mr. Mills was murdered (see the earlier reference to Maggie). During the months of October to December 1999, the offender discussed aspects of the shooting of Mr. Mills and Mrs. Gerges with prisoners (1) and (2). The offender asked prisoner (1) if he knew someone outside who could find Mr. Seaton, telling prisoner (1) that Mr. Seaton was a witness against him and had set him up. The offender told prisoner (1) that Detective Sergeant Thompson was also setting him up and asked prisoner (1) to falsely inform Police Internal Affairs that Sergeant Thompson was a drug dealer. The offender asked prisoner (1) if he knew anyone outside who could help him by burning down Mr. Gerges' house at St. Ives. The offender told prisoner (1) that Mr. Gerges was giving evidence against him on the boat fraud charge. The offender told prisoner (1) the details of the house and drew a sketch. The offender asked prisoner (1) to help him with an alibi for the murder of Mr. Mills. The offender asked prisoner (1) to say he was with his brother and mates at the Annandale Hotel and saw the offender with Maggie. Prisoner (1) was asked to take a photograph in the hotel to support the alibi. The offender gave prisoner (1) a sketch of the details of the hotel, which prisoner (1) copies. Prisoner (1) made notes of admissions made to him by the offender of shooting Mr. Mills and Mrs. Gerges. Prisoner (2)'s brother had been murdered in Queensland in early 1999 and Queensland police spoke to prisoner (2) about this by telephone and in the gaol visit in November 1999. Prisoner (2) spoke to the offender about this. The offender asked prisoner (2) to tell the police that Mr. Seaton was linked to his brother's murder. The offender asked prisoner (2) to say he was present when his brother planted the Luger, holster, shotgun, silencer, balaclava and ammunition in the offender's motor home and that his brother was paid by Mr. Seaton to do it. The offender showed prisoner (2) photographs and gave him a sketch of the caravan park as well as details to be able to fabricate this evidence. The offender gave prisoner (2) documents setting out details needed by prisoner (2) to fabricate the evidence and unbeknown to the offender, prisoner (2) took photocopies and gave them to the police. They are in the offender's handwriting. Prisoner (2) made notes of details given to him by the offender and the information (in part) in his notes correspond exactly with written material found in a search of the offender's cell on 16 December 1999. A document given by the offender to prisoner (2) bears the fingerprints of each. The offender asked prisoner (2) to say he was present when his brother made a seven second phone call on 29 September 1997 from near the caravan park. The offender gave prisoner (2) particulars relating to Mr. Gerges and asked him to falsely say that Mr. Gerges was involved in setting up the offender in the boat fraud allegation. Prisoners (1) and (2) disclosed to police their dealings with the offender and did not do as the offender had asked. On 16 December 1999, a further search warrant was executed upon the offender's property in his cell and material found included:- (a) A page of a writing pad in which appear indentations of the offender's handwriting giving a description of Mr. Seaton (corresponding to information given by the offender to prisoner (2) and written down by prisoner (2)). (b) Documents giving a description of Mr. Seaton and Mr. Gerges. (c) Copies of pages from a street directory of the Annandale area and a sketch of the streets at Annandale where a hotel was located. The documents were sent to the offender by the person John as part of the attempt to create a false alibi. (d) A document written by the offender accusing Mr. Seaton of murder, car theft and payroll robbery." 20 This extensive recital of the facts necessarily refers to the offender's alleged involvement in many other offences than those charged, eg., offences under Part 7 of the Crimes Act 1900 relating to public justice, the boat fraud, possession of stolen property, the possession of various firearms and other illegal objects, etc. 21 Appreciative as I am of the principle in The Queen v. De Simoni (1981) 147 CLR 383, I do not have regard to these matters as aggravating the offender's guilt insofar as he could have been separately charged with those offences. However, I do have regard to them as setting the context both to the offences charged and those included on the Form 1 (see Regina v. Vella (CCA, unreported 15 December 1995; Regina v. H (1980) 3 A. Crim. R. 53; Regina v. JCW [2000] NSWCCA 209; Regina v. Hartikainen (CCA, unreported 8 June 1993). 22 I have regard also to the harm that was contemplated by the offender's actions towards Mr. Gerges and Mr. Chapman. In particular, in this regard, in my view, a substantial component in my sentence will arise from the inclusion on the Form 1 of the matters taken into account (see Regina v. Vougdis (1989) 41 A. Crim. R. 125; Morgan v. The Queen (1993) 70 A. Crim. R. 368 ). 23 The offence of causing grievous bodily harm with intent to commit murder is punishable by imprisonment for a maximum of 25 years. The offences on the Form 1 of soliciting to murder are each punishable by imprisonment of 25 years if prosecuted by way of substantive charge on indictment. 24 The maximum sentence for the crime of murder is that of life imprisonment under s.19A of the Crimes Act 1900. A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life by reason of s.19A(2). No non-parole period is applicable to a life sentence, since Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the Act) does not apply s.54. Section 21(1) of the Act gives power to the court to pass a sentence of less than life imprisonment in circumstances to which I shall turn shortly. Section 22 of the Act provides for the offender's guilty plea to be taken into account. I shall have regard to that in accordance with the recent decision of the Court of Criminal Appeal in Regina v. Thomson & Houlton [2000] NSWCCA 309 which recently laid down guidelines for how courts should have regard to guilty pleas, I have regard to that plea and the circumstances in which it was entered. 25 Section 24 provides that the court must take into account the time in which the offender has been in custody. The offender has been in custody since 17 October 1997 and the sentence will date from that date. 26 Pursuant to s.61(1) of the Act, a court is to impose a sentence of imprisonment for life on a person who is 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. Section 61(3) provides that nothing in s.61(1) affects s.21(1). These provisions reproduce the provisions previously contained in other statutes. 27 In Regina v. Barac [1999] NSWSC 61, I discussed the predecessor to s.61, s.431B of the Crimes Act 1900 and its predecessor provisions at paras.39-42, 70, 77-81. Subsequently, in Regina v. Petrinovic [1999] NSWSC 1131, paras.21-49, I discussed the statutory criteria now expressed in s.61 for the exercise of the power to sentence to life imprisonment. 28 In that regard, consideration of Mitchell v. The Queen (1996) 184 CLR 333 is in my view apposite when, in considering the Western Australian provision empowering a court to order that a prisoner in question is not to be eligible for parole, the High Court remarked upon the power as reposed in the court conditioned upon a determination by the court that it considers the making of the order "is appropriate". 29 It appears to me that I am required, if I was satisfied of those matters to which the section relates, to exercise the power: see Mitchell (supra, paras.29-35). In my view, if I am not so satisfied, I do not have the power to pass a sentence of life imprisonment, in which case, by reason of s.61(3) and s.21(1), there is power to pass a lesser sentence, the quantum of which, however, must be determined with reference to the maximum of life imprisonment. A possible alternative construction of s.61(3) would suggest that there might be a discretion to pass a life sentence or to pass a sentence less than life, notwithstanding satisfaction of the matters referred to in s.61(1). Such a construction would suggest that the discretion was to be exercised on some basis not expressly enunciated, but presumably in accord with the ordinary principles governing sentencing discretion. In that case, the language and concept of s.61 would be barely necessary. What need, one asks, would there have been to replace the criteria of "worst class of case" as discussed by Badgery-Parker, J. in Regina v. Twala (CCA, unreported 4 November 1994) and which I have discussed in the context of s.61(1) and its predecessors in Barac (supra) and Petrinovic (supra)? 30 The terrible significance of the sentence of life imprisonment without hope of release mitigates against a construction which would permit the sentence to be passed unless driven to it by satisfaction of the matters referred to in Twala (supra) and Regina v. Garforth (CCA, unreported 23 May 1994). 31 Such a construction appears to fly in the face of the intended object of s.61. But even if there was such a discretion, a principle to be applied in its exercise would require the maximum sentence to be reserved for those cases in the "worst class of case": Ibbs v. The Queen (1987) 163 CLR 447, although it does not follow that the maximum penalty will be appropriate for all or even most of such cases when all relevant sentencing considerations are balanced in the "intuitive synthesis" required. 32 Even in such cases, there is no mere application of the maximum or mere mathematical computation involved: Thomson & Houlton (supra). 33 In this case, as in Barac (supra) and Petrinovic (supra), my attention has been drawn by the Crown to decisions such as that of the Court of Criminal Appeal in Regina v. Rose [1999] NSWCCA 327; Regina v. Street (unreported 19 July 1996); Garforth (supra) as enunciating principles from which is derived the proposition that it is open to me in this case to be satisfied of the matters to which s.61 relates. I discuss such cases in Barac (supra) and Petrinovic (supra).

34 Having regard to the matters to which I referred in those cases and to those identified by the sentencing judges in such cases as Regina v. Lo [2000] NSWSC 714; Regina v. Harris [2000] NSWSC 285 and Regina v. Mrish (Hidden, J., unreported 13 December 1996), it can be seen that in assessing the "worst class of case" and the "level of culpability in the commission of the offence" a court is not limited to the immediate circumstances of the crime of murder solely, even if, when assessing " the level of the culpability in the commission of the offence", the court is required to disregard matters totally unconnected with the commission of the crime (Regina v. Bell (1985) 2 NSWLR 466). 35 Indeed, Street (supra) and Rose (supra) involved multiple counts of murder, as did Mrish (supra) and Harris (supra). Barac (supra) and Lo (supra) both involved counts of murder in the context, in the case of Lo of other offences including conspiracy to murder and various drug offences, and Barac, a count of murder in the context of a previous offence of malicious wounding for which the offender was serving a sentence at the time of the commission of the murder charged. Plainly motive and matters affecting the intellect or appreciation of the offender as affecting his involvement in the crime are relevant, even though personal to the offender (see Regina v. Burke (1983) 2 NSWLR 93) and Harris (supra)). 36 Here the offender has intended three murders, has appallingly injured the spouse of one of his intended victims, mistaking her for the intended victim, and has committed those offences in the context of seeking to interfere with the criminal justice process. His motive was apparently to do away with those who might be witnesses against him. 37 It appears to me that these offences, when considered together, are offences of the very highest criminality. It was put to me by the Crown that his actions in this regard were entirely disproportionate to the circumstances in which he found himself placed. These crimes certainly fell well within the "worst class of case". They were themselves appalling instances of actual or intended violence and were committed for a reprehensible motive. Having regarding to that motive, the number of crimes and the period during which they were committed, they showed more than merely transient or sporadic criminality. 38 There was, except in the offences themselves, no matter adverted to such as is referred to in Veen v. The Queen (No. 2) (1987-88) 164 CLR 465 as might require on synthesising all the elements involved the passing of a maximum sentence, although the criteria referred to in that decision of the High Court are plainly relevant to, not only the question of what sentence might be passed in discretion, but to whether or not the criteria in s.61(1) are satisfied. 39 It was conceded by the Crown that the plea of guilty was of high utilitarian value since the trial was set down for some 14 weeks, and would have involved some 140 witnesses, including Mrs. Gerges. It was conceded that the offender pleaded at a time when the true nature of the offences against him were first explained clearly to him, this having arisen at such a late stage in consequence of a change of counsel. 40 The Crown accepted that the full picture, including the weight of the evidence available, was revealed to the offender in the Crown opening and that the plea could not be considered a late plea in that context. It was accepted by the learned Crown Prosecutor that the plea, entered as it was, might properly be regarded as containing some element of contrition, but was of great value on the utilitarian basis and my attention was drawn to paragraphs 151-156 of Thomson & Houlton (supra). "Although these practices, as variously expressed, are suggestive, they are of only limited assistance. This is particularly so if, as proposed, any identified range is limited to the utilitarian value of a plea. That utilitarian value will vary from time to time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty. In my opinion, the appropriate range for a discount is from 10 to 25%. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are however, two circumstances which will generally affect the appropriate level of discount in a particular case:- (a) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (b) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length of complexity of the trial, the greater the utilitarian value of a plea. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, eg., on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the 'discount' will be reflected in a step down in the hierarchy of sentencing options." 41 However, the Crown further submitted that it was open to me to pass the sentence of life imprisonment and that in coming to the view of whether I was satisfied of the matters to which s.61 relates, I should have regard to what appears in paragraphs 157-158 in Thomson & Houlton (supra). "There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate (see, eg., Regina v. Stabler (1984) 6 Crim. App. R. (s) 129 at 131; Regina v. Costen (1989) 11 Crim. App. R. (S) 182 at 184). There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea (see, eg., Regina v. Kalache [2000] NSWCCA 2, per Sully, J. at paras.38-42)." 42 I turn to the offender's prior record and personal circumstances. It was put to me that the offender's prior record was effectively irrelevant to my determination. That record included offences of larceny and use false instrument with an offence of receiving taken into account, for which the offender received community service. I accept that this record has little bearing upon the task I must perform, and I note that otherwise the offender was of good character in Ireland as was evidenced by both his Police Certificate of Character and his Certificates of Discharge as a Seaman. 43 He has been the subject of psychological assessment and report by Alison O'Neil, clinical psychologist. It was common ground between the Crown and counsel for the offender that although the offender had not given evidence on his plea before me, I could have regard to that interview for the conclusions of the psychologist and also her account of the description given by him of his own subjective circumstances. The offender is a 35 year old married man who was born in Ireland and has Australian citizenship. He is married and has two children. 44 He described to her a very stable home environment and childhood in Ireland, leading to his education in marine engineering, which involved apprenticeships in some seven trades. 45 The offender apparently came to Australia some 12 years ago to work on boats involved in the America's Cup. He has, however, been the subject of a number of accidents, several of which have resulted in head injuries, loss of consciousness and subsequent periods of post-traumatic amnesia. In addition, during his career it appears that on a number of occasions he has sustained accidents whilst diving in which he has experienced the bends and twice been placed in decompression chambers. He asserts that he presently, frequently, experiences bleeding from the nose and ears. 46 The psychologist pointed out that such bleeding is suggestive of organic brain damage and that the offender reports several symptoms indicative of cognitive deficits including headaches, memory problems, difficulty finding words or comprehending meanings, difficulty organising, planning or making decisions. He claims to be dyslexic. Testing revealed scattered performance on the WAIS III with significant strengths and weaknesses. On the Wechsler Memory Scale there was great difficulty manipulating information, learning and recalling verbal and visual information. His ability to learn and remember verbal and visual material was equally poor and his ability to recall, worse. 47 There was discovered to be a weakness in oral generativity and in expressive language. Overall, he showed results supportive of cognitive deficits and indeed on some of the tests his performance was consistent with poor executive functioning which was consistent with the performance of a brain damaged individual. 48 Emotionally, it was clear to the psychologist that he suffered severely from depression and anxiety to the extent that his symptoms were commensurate with a mood disorder with symptoms of tearfulness, feelings of worthlessness, irritability, agitation, hopelessness, impaired sleep, suicidal ideation and anxiety. 49 He has apparently consulted prison psychiatrists and been prescribed anti-depressant medication. He had significantly elevated levels of depression and anxiety though with no psychotic disturbance noted. The psychologist was able to elicit beliefs which may have been paranoid. 50 There is nothing specific put to me to suggest that the offender's prospects of rehabilitation are significantly affected. In the light of the discussion of the relevant applicable principles in such a case by Bell, J. in Harris (supra), this is a most material matter. 51 I was informed that his wife, children and whole family were now in Ireland and that since 1997, as a consequence of an attack on him by other prisoners, he has been held in strict non-association segregation custody amounting to strict isolation involving no contact with other prisoners, this for his own protection. 52 I was further informed that the authorities had been unable to ascertain the underlying basis for the attack on him and consequently they are unable to ascertain whether he might be further at risk within the gaol system, so that the arrangements for his detention in isolation are of indeterminate duration. 53 It may be the case that his isolation will continue for a most extensive period. The fact that an offender will be spending time in more restrictive conditions of protection, can be a most important circumstance to take into account when having regard to the severity of the punishment on that offender of a lengthy sentence: see Regina v. Astill (CCA, unreported 1 October 1992); Regina v. Bell (CCA, unreported 11 May 1993), particularly where it cannot be seen that this is due to the offender's own fault. 54 Having regard to the objective circumstances, it is quite apparent that the gravity of the crimes for which the offender must be sentenced are so great that even should I conclude that I am not satisfied of the matters which s.61 requires, that nonetheless the overall culpability, considerations of general and personal deterrence, particularly in the context of offences committed out of a motive to defeat the ends of justice, will require very heavy sentences indeed. It is necessary for crimes of this degree of gravity for the court to denounce the conduct and to have regard to the moral outrage of the community: see Regina v. Geddes (1936) 36 SR 554; Regina v. Nichols (1991) 57 A. Crim. R. 391. 55 It will be necessary for the sentence to reflect the total criminality and in particular, to have regard to the criminality involved in the two counts on the indictment, while allowing for a substantial component in the eventual sentence to reflect the culpability to be attached to those offences charged on the Form 1: Regina v. Pearce (1998) 104 CLR 610. I must also have regard to the principle of totality. 56 I have regard to those matters when considering the s.61 criteria and, on any exercise of discretion, I will take them into account. Further, I note that any sentence must reflect the appalling conduct of the offender and its context and that he contemplated the killing of three persons, achieved the killing of one and severely and terribly injured another. It is necessary that the sentence not be disproportionate to the gravity of the crime, having regard to all the circumstances. 57 Although there is most limited material to which I can have regard, it seems as though what occurred was a process of frantic, if not, panic stricken reaction by the offender to the prospect of being tried and punished for the alleged fraud, possibly influenced by a degree of paranoia. His thought processes did not appear at all organised. He seems to have resorted to drastic and fantastic expedients because of the intellectual and personality deficits described by the psychologist. 58 His criminality should be considered to be mitigated to some limited, but some, degree by these matters: Regina v. Letteri (CCA, unreported 18 March 1992). Considering the criteria, comparisons between individual cases are of no assistance. It is hard to find any guiding principle which might operate by way of gloss upon the section to afford any further assistance than is afforded by direct regard to the express words of the provision. It is of no assistance to consider categories of murder such as those applicable to contract killers, political assassinations, killing for profit or to consider particular examples of other persons, who other judges, in other circumstances, but for the same crime thought deserved the maximum sentence. 59 I have considered all matters relevant to culpability and particularly the gravity, multiplicity and frequency of the crimes in context and, particularly, the offender's psychological deficits as appear to have been involved in his criminality. Notwithstanding that his conduct has been appalling and reprehensible in the extreme, I have been unable, after anxious consideration, to conclude that I am satisfied that the level of culpability is so extreme that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a sentence which would require the confinement of the offender for the rest of his natural life. 60 I am, however, of the view, having regard to all those matters, that nonetheless, a very lengthy sentence which will include a most substantial non-parole period, must be passed. 61 In that regard, however, the very length of the sentence together with the matters I have earlier referred to in evidence from the psychologist's report and going to the offender's cognitive deficits and possible brain damage and his isolation are such as amount to special circumstances. I am firmly of the view that, having regard to the matters I referred to in Petrinovic (supra) at paras.64-66, the maximum opportunity should be afforded to the offender for supervision after release but under the sanction of a possible return to custody, and that should be catered for by varying the statutory proportions envisaged by s.44(2) of the Act to a limited extent. 62 In accordance with the decision of the Court of Criminal Appeal in Thomson & Houlton (supra), I express the discount for the plea of guilty as allowed at 15%. 63 Mr. Offer, on the charge of murder, you are sentenced to a total sentence of 34 years. There will be a 25 year non-parole period. That sentence takes into account the three matters on the Form 1. On the charge of cause grievous bodily harm with intent to murder, you are sentenced to 10 years imprisonment to be served concurrently with the sentence on the murder charge. I decline to set a non-parole period for that offence because of the other penalty imposed on you for the murder offence. 64 I direct that those sentences commence on 17 October 1997. I specify that the earliest date on which the offender will be eligible for release from custody or eligible to be released on parole is 16 October 2022.

Last Modified: 09/27/2000 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.