Regina v Robert John Hill

Court of Criminal Appeal (NSW)|2003-04-08|Before: Sully J, Levine J, Buddin J, O'Keefe J, That O'Keefe J

The applicant married at the age of 19. There were two children, a son now aged 24, and a daughter now aged 22. That marriage broke down; and the applicant obtained custody of the children whom he subsequently reared into, as it would seem, law-abiding citizens.

After that marriage breakdown, the applicant lived for 13 years in a de fact relationship. It came to an end abruptly and at the instance of the de facto wife.

In about 1996 the applicant entered into another de facto relationship, of which there was issue, one daughter. This lady seems to have been genuinely loved by the applicant; but she was heavily drug-addicted; and the relationship collapsed because, as the applicant was told by her, she loved the drugs more than she loved him.

This relationship breakdown appears to have had a profoundly adverse effect upon the applicant. He has described the experience as having his life fall apart.

The applicant has had other subsequent relationships, but they do not appear to be particularly stable.

The applicant has had some involvement with a well-known biker gang, but it seems that this involvement has not been active, if indeed alive at all, for some time.

[4] The Pleas of Guilty These were entered at an early stage. They would require, normally, a discount which acknowledged, and could be seen to acknowledge, the saving of public resources; and very importantly, the avoiding of any further distress to the surviving victims.

As to the matter of remorse, there was, in my opinion, not much at all shown by the evidence before O'Keefe J. There is now more evidence on that topic. It is contained in an affidavit affirmed by the applicant on 3 April 2003. The expressions of regret and remorse there advanced come very late in the day, but that is not to say that they are not genuine as far as they go.

[5] The Prospects of Rehabilitation O'Keefe J, who saw and heard both of the applicant's adult children, was greatly impressed by the son. His Honour regarded the son's evidence as permitting a conclusion that there was at least a faint hope of future rehabilitation. There is, in my opinion, no justification for this Court's now departing from that conclusion.

The applicant's case seems to me to be one in which it is very difficult to make confident predictions about future rehabilitation. The psychiatric and psychological profiles which emerge from the expert opinion evidence earlier quoted seem to me to indicate that the applicant will need, at the very least, long, patient and sustained treatment before he could be considered responsibly as fit for release back into the general community. It is fair to add that the affidavit evidence tendered on re-sentencing does in fact suggest that such treatment, if maintained prudently, could well lead in time to significant rehabilitation.

[6] Circumstances of the Applicant's Present Detention These are in some ways particularly burdensome to the applicant. He is in strict protection, and is likely to remain so classified for some time at least. This entails practical burdens which are described tellingly in the applicant's affidavit earlier herein mentioned.

Further light is shed upon this topic by the relevant prison clinical records. These show that the applicant, while in custody on 22 July 1999, was seriously assaulted. He suffered a fractured cheek-bone requiring an operation to insert pins necessary in order to restore his zygoma. The notes also contain references to suicidal ideation.

Re-sentencing by this Court : Balancing Objective Criminality and Subjective Considerations 46 It is useful, in the present case, to commence with the following extract from the judgment of this Court, (Gleeson CJ, Lee CJ at CL, Hunt J), in Reg v Dodd (1991) 57 A Crim R 349 at 354: "As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594. We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of crime called for a significant full-time custodial sentence." 47 It will be apparent from what I have said earlier herein that, were it not for what I take from the decision in Twala, I would have dealt with the two murders committed by the applicant as worst case examples. Because of what I believe to be the essential reasoning in Twala, I do not believe that the correctly principled striking of a balance of objective criminality with subjective mitigating circumstances can properly result in a head sentence of life imprisonment. 48 That said, however, I have no doubt that the applicant's case is one in which determinate sentences must reflect in a real way, and particularly in connection with the two murders, the sheer, chilling enormity of those crimes. The murder of Mr. Watson, in particular, was in my opinion so brutal and callous a crime as to call for a sentence of exemplary severity. 49 When proper account is taken of the true objective culpability of, in particular, the two murders, then the properly principled weighting of the subjective features of the case cannot have anything other than minimal effect. To approach this case by setting a determinate sentence, and by then cutting it by figures in the order of 20 - 25 per cent for the pleas of guilty; and by then cutting further to allow for other subjective matters, could not be thought sensibly as being likely to cement public confidence in, and public respect and support for, the rule of law. If anything, such an approach would be much more likely to subvert all of those objectives. 50 I have come, accordingly, to the conclusion that a proper head sentence for the murder of Mr. Watson would be one of imprisonment for 30 years. I would not find special circumstances; not because there are no matters capable in law of amounting to special circumstances, but because to give normal effect to them would entail, in my opinion, a non-parole period that was wholly inadequate to denounce, to punish and to deter two truly dreadful crimes. I would set a non-parole period for this offence of 25 years. 51 For the murder of Mr. O'Shea, I would fix a head sentence of 28 years, with a non-parole period of 23 years. 52 I would see no reason to interfere with the remaining two sentences passed upon the applicant by O'Keefe J. Those two offences, also, were in my opinion, if not worst case examples, then at the very top of the next-most serious level of offences of that kind. 53 As to whether the sentences thus set should be wholly cumulative, wholly concurrent, or partly cumulative and partly concurrent, I think that justice would be served by making all four sentences concurrent. A total effective penalty of imprisonment for 30 years with a non-parole period of 25 years, passed upon a man who is at present aged almost 47 years, would seem to me to meet, with practical justice, the proper requirements of the principles of totality and of proportionality.

[1] that leave be granted to appeal against all four sentences passed upon the applicant in the Court below;

[2] that the appeals against the sentences thus passed for the two offences of murder be allowed, and that those sentences be quashed;

[3] that in lieu the applicant should be sentenced:

3.1 for the murder of Mr. Watson, to imprisonment for 30 years to commence on 24 February 1999 and to expire on 23 February 2029; with a non-parole period of 25 years to commence on 24 February 1999 and to expire on 23 February 2024;

3.2 for the murder of Mr. O'Shea, to imprisonment for 25 years to commence on 24 February 1999 and to expire on 23 February 2024; with a non-parole period of 23 years to commence on 24 February 1999 and to expire on 22 February 2022

[4] that the appeals against the sentences passed in the Court below in respect of the two contraventions of section 33A of the Crimes Act 1900 (NSW) be dismissed. 55 LEVINE J: I agree with Sully J

56 BUDDIN J: I have had the advantage of reading in draft form the judgment of Sully J. I agree with the orders which his Honour proposes and am in substantial agreement with his Honour's reasons therefore. I wish only to add some brief observations of my own. 57 As Sully J has observed, it is common ground that the sentencing judge erred in setting a non-parole period with an additional term of life imprisonment. It may be noted that his Honour's remarks on sentence predated this Court's decision in R v Harris (2000) 50 NSWLR 409. It would also appear that his Honour was led into this error by counsel at the sentencing hearing. Having acknowledged that error, I wish to add my voice to those who have previously expressed the view that there would be merit in permitting a court, in appropriate cases, to fix a non-parole period where an offender is sentenced to life imprisonment. See for example Harris at 429 - 431. One can thus readily sympathise with what the sentencing judge was endeavouring to achieve in the present case. 58 Nonetheless I agree with Sully J that it is necessary in the circumstances of the present case for this Court to intervene and proceed to re-sentence the applicant. 59 So far as the objective seriousness of the various offences is concerned, it would be quite impossible to regard the tragic series of events, for which the applicant was responsible, as doing other than reveal criminality of a very high order. Indeed the circumstances of the murder of Mr Watson were, as Sully J has observed, particularly heinous. Accordingly very lengthy sentences of imprisonment must be imposed. That having been said, I see no reason to doubt the approach taken by this Court in Twala (NSWCCA unreported, 4 November 1994). I would be particularly reluctant to do so in the absence of submissions and full debate upon the matter. Twala has, in any event, been followed in a number of cases including Harris itself (at 423). 60 In my respectful view, Sully J has identified those subjective matters upon which the applicant was entitled to rely in order to ameliorate the otherwise appropriate sentence. I would not however, as his Honour has, describe the subjective features as having "anything other than minimal effect". In particular, in my view, the pleas of guilty entitled the applicant to an appropriate discount. In some cases, the heinousness of the offence(s) will be so great that no discount for the plea(s) of guilty can be countenanced. See R v Thomson & Houlton (2000) 49 NSWLR 383 at 418. The primary judge did not conclude that this was such a case. Nor would I. 61 Moreover the Crown Prosecutor accepted that the applicant had pleaded guilty at the "earliest appropriate opportunity and in addition he handed himself in to police after initially fleeing from the scene". Indeed the applicant pleaded guilty upon arraignment. That is a matter of no little significance particularly given the seriousness of the offences which he was facing. Furthermore it is quite apparent that the pleas of guilty came after there had been negotiations between the parties concerning the two offences not involving homicides. It was that circumstance that no doubt prompted the Crown Prosecutor's remark about the timeliness of the pleas. 62 As Sully J has observed, it is also necessary to bring into account the fact that the applicant is now, and presumably will remain, in strict protection. That is a matter of some moment given that the applicant is going to be spending a very lengthy period of time in custody. 63 Nevertheless, as the passage in Dodd to which Sully J refers makes clear, subjective circumstances cannot, particularly in a case such as this, be permitted to cause "inadequate weight to be given to the objective circumstances of the case". 64 I agree with Sully J that when proper effect is given to the principles which relevantly govern the present sentencing exercise, including the need to appropriately denounce the applicant's criminality, then an overall effective sentence of 30 years' imprisonment is called for. 65 In R v Simpson (2001) 53 NSWLR 704, Spigelman CJ said that "the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought to be the minimum period of actual incarceration" (at 717). Accordingly I agree with Sully J that nothing less than an overall non-parole period of 25 years' can be contemplated. Nor do I think, particularly given the applicant's likely age when he is eventually released, that a period on parole of more than five years is warranted in his case. **********

APPENDIX A CCA 60188/2000 - REGINA v ROBERT JOHN HILL

Immediately prior to the commission of the offences the prisoner had been residing in an industrial unit within an industrial estate at Apprentice Drive, Berkeley Vale.The unit in which he was living was Unit 8. Next to his unit, and separated by a fibrous plaster partition, was a wood working or joinery works conducted by two men, Neville and Barry. Next to Unit 7 was a unit (No. 6) in which Bradley James Watson (Mr. Watson) and Michael John Rasic (Mr. Rasic) conducted their business of metal working.

The industrial estate consisted of two parallel rows of units. The units, 6, 7 and 8 to which I have just referred were in the front row. There was a bitumen roadway that extended along the front of each of the units in that row, giving access to a roller shutter door and conventional doorway that formed astandard front for each of the units in the complex.

At the rear of each of the units there was a conventional doorway which led to an open space which again had a bituminised access roadway as well as grassed areas. On the opposite side of the bitumen roadway to the rear of the units in the front part of the complex was another set of units. They were of the same construction and general layout as those in the front section of the complex. They too had roller shutters and conventional doorways in the front and were similarly numbered to the units in the front row.

The day of the offences, 21 February 1999, was a Sunday. From the video records and photographs taken on that day it is obvious it was a lovely sunny summer day. Although it was Sunday, Mr. Watson and Mr. Rasic came to work to fulfil some orders so that their relatively new business would prosper. They were in fact exhibiting the work ethic characteristic of many small business enterprises in our country. The evidence reveals that they were decent, law abiding, hard-working men.

In Unit 6 in the back set of units, was an electrical switch gear business conducted by Wayne Lawrence John O'Shea (Mr. O'Shea) and his wife, Wendy Joy O'Shea (Mrs. O'Shea). They came to their place of work on this Sunday in order to retrieve some papers so that they could work on them at home. The evidence reveals that Mr. and Mrs. O'Shea, like Mr. Watson and Mr. Rasic, were hard-working, law abiding, decent citizens who were conducting their own business.

The occupants of Unit 7 had apparently, at an earlier time, chided the prisoner for playing music very loudly in his unit during the course of the day. The prisoner was at the relevant time not in employment and had not been in employment for some time. He frequently remained in unit 8 all or most of the day playing music. On the day of the offences the prisoner claims, and he is supported somewhat by Teresa Ellis a girlfriend with whom he was having a relationship, that he heard music, which he described as loud, coming from unit 7. As it happened, at the time of the offences, neither of the occupants of unit 7 was in the unit. They had left. However, the prisoner claims that the music was still playing and he, clearly believing that they were still in unit 7, got dressed into a leather jacket, boots, leg protectors and a large raincoat garment, known as a Drizabone. He then got a Winchester Magnum .22 calibre rifle and smashed his way through the partition separating the unit he was occupying from unit 7. Finding that there was no one there he trashed the place, smashing two radios, a wall telephone and a number of other items that were in the unit. This destruction was clearly an act of vengeance. It was deliberate and unwarranted.

Not satisfied with the damage he had caused to the property of those who were the object of his annoyance or anger, he went out of unit 7, back through his own unit to a spot just outside the front of unit 6. The door of that unit was open and Mr. Watson and Mr. Rasic were plying their trade. Mr. Watson was welding; Mr. Rasic using a grinder and as a consequence wearing ear muffs.

Notwithstanding his ear muffs, Mr. Rasic heard a noise and looking up saw the prisoner. Although he was aware that the prisoner had something in his hands, Mr. Rasic was unable to see what it was because of the position of the prisoner's hands and the work tables and other materials that were between Mr. Rasic and the prisoner. Mr. Rasis says that when he looked up and around and saw the prisoner, he was not able to see his workmate Mr. Watson. This is clearly because Mr. Watson had already been shot and, although not yet dead, had slumped to the ground.

Mr. Rasic quickly became aware of what it was that the prisoner had in his hands. The prisoner raised his hands. They were holding the Winchester rifle. Mr. Rasic saw the prisoner take deliberate and careful aim at him. Mr. Rasic, believing that he was about to be shot, raised his left arm and placed it across his body. It is probable that this action saved his life. At the same time he said the word, "sorry", thinking that the prisoner was angry with him because he had reported to the management of the complex that the prisoner was living in unit 8 although, apparently, this was not permitted under the rules governing the conduct of the complex. However that may be, he had no sooner said the word "sorry" than he felt a stinging pain in his left elbow. He too had been shot, although he did not realise it at the time and was unaware that the bullet, having hit his elbow then had entered his chest and lodged in his lung close to his aorta. Unbeknown to him at that time, Mr. Rasic had narrowly escaped death by only some 3mm in fact. However, because of the plea accepted by the Crown in relation to this act, I am limited in conclusions to which I can come in relation to the intention of the prisoner.

Understandably terrified for his life, Mr. Rasic threw himself to the floor, rolled under a table and then made as speedy an escape from the unit as was possible. On exiting the unit he immediately stepped to the left a couple of paces to take himself out of view, and hence line of fire, from the gunman in unit 6

Mr. Watson had fallen to the floor and was bleeding fairly profusely from his neck wound. Whilst he was in that position the prisoner came up to him and shot him and deliberately shot him in the head, blowing his brains out and killing him instantly. It was brutal. It was callous. It was deliberate. It was a coup de grace; an execution.

After leaving unit 6, Mr. Rasic ran from the complex as fast as his condition would allow. He sustained no further injury and neither heard nor saw anything more until he observed the prisoner making his escape from the scene in a Volkswagen car.

Mr. and Mrs. O'Shea had just left and locked their work unit and were in the course of walking to their Volkswagen commercial vehicle. They heard a loud noise which Mrs. O'Shea thought might have been an explosion of some kind as a result of some industrial mishap in unit 6. Mr. O'Shea said, "Somebody might be hurt, I'll go and have a look". He then, anxious to be of assistance, changed course and headed towards unit 6. He was acting out of concern for his neighbours, a good Samaritan.

Mrs. O'Shea concerned that she may be confronted with a distressing scene as a result of the accident moved towards their van to gain her composure. At about that time she saw a man, in work clothes, running from the back of unit 6 and continuing up the bitumen driveway towards Apprentice Drive. It was obviously Mr. Rasic escaping from the prisoner.

Mrs. O'Shea then heard her husband say: "Wendy I have been shot". Mr. Rasic says he heard a woman scream, saw Mr. O'Shea on his knees and heard him yell, "Run darl, I've been shot". Mrs. O'Shea continued screaming. She looked over and saw her husband slumped down on a grass patch that runs along the back of a car park. He was not yet dead, but whilst his life was clearly close to its end, his concern was for the safety of his spouse. He was only 39.

At the same time as Mrs. O'Shea saw her husband on the grassed area to which I have referred, she also saw another man. It was the prisoner. He was standing just out of the open door of unit 6 and was holding a rifle, a long one, above waist height. She saw the prisoner point it in the general direction of Mr. O'Shea. Mrs. O'Shea's impression of the man was that he reminded her "of a calm, cool, cowboy type in a Western movie". No doubt this impression was assisted by the fact that the prisoner had, before breaking through the partitioning into unit 7, donned, inter alia, his Drizabone waterproof coat. It is a coat of a type commonly worn by country people, including those who are mustering or attending to stock. I shall return to the donning of clothing by the prisoner a little later

On seeing the prisoner, Mrs. O'Shea tried to hide behind the O'Sheas' van. From this position she saw the prisoner walk towards the van. He was obviously looking for her, in effect stalking her. He appeared calm, didn't run or do anything else that suggested agitation. The prisoner then saw Mrs. O'Shea. His response was to raise his rifle to take aim. She believed that he was about to fire and ran for her life. Fortunately for her she remembered thinking of the movies and as a consequence she zigzagged as she ran so that "the man with the gun couldn't take a straight aim at me and shoot me". Nevertheless, as she ran she felt a push from behind on her left side and looking she saw blood spurting from her left shoulder area. The prisoner had shot her in the back as she fled the scene. Again, because of the plea accepted by the Crown in relation to this act, I am limited in the conclusions to which I can come in relation to the intentions of the prisoner.

When the crime scene was examined by forensic police later that day, two expended cartridge cases were found outside, but proximate to the front door of unit 6. These would seem undoubtedly to be cartridges from the two bullets that had been first fired at Mr. Watson and Mr. Rasic respectively. Inside unit 6 a misfired cartridge and two fired cartridge cases were found, one in reasonably close proximity to the body of Mr. Watson and another under shelves in that general area. At the rear of the premises in close proximity to the O'Sheas' van two fired cartridge cases and one unfired cartridge were found. This means that the prisoner discharged or tried to discharge a total of eight bullets, two of which misfired and four of the other six of which hit their targets killing two and quite seriously wounding another two.

APPENDIX B CCA60188/2000 - REGINA v ROBERT JOHN HILL

The evidence reveals that the prisoner stayed with Sandra Wilson at 10 Birdwood Avenue, Blue Haven on the nights of Friday 19 February and Saturday 20 February 1999. Whilst he had been drinking before he drove over to Ms. Wilson's house that first night, although he was in no condition to drive, he had nothing to drink on the Friday night at Ms Wilson's nor at any time while she was with him during the Saturday on the night of which they watched a movie together. Her evidence was that he did not take any pill or abuse alcohol at that time. He left at about 8 o'clock on the morning of Sunday 21 February 1999 and when he did so he was "stone cold sober".

His relationship with Ms Wilson had been intimate and intermittent. She had left her husband in August 1998 and had formed an association with the prisoner which would break up, reform, break up again and reform again because the two of them, according to Ms. Wilson "could not stay apart" (T 70). However, she had told him on several occasions that she wanted to end the relationship because he had no job, no motivation, an outstanding sentence for community service and would drink heavily. However, he would then ring Ms Wilson, tell her he was going to commit suicide and she would take him back.

Having left Ms Wilson's premises on the morning of Sunday 21 February 1999 the prisoner went to his unit No. 8 at Apprentice Drive, Berkeley Vale. A young woman of 21, Teresa Louise Ellis, was there. She had met the prisoner through Tina with whom the prisoner had previously had a relationship and who had borne him a female child. At the time Ms Ellis met up with the prisoner, he had just broken up with Ms Jersov. At that time, he was using amphetamines and indulging excessively in alcohol and would deliberately "trash things" belonging to Ms Jersov.

Ms Ellis and the prisoner formed an association of a sexual nature. Ms Ellis had left her husband and planned on moving into the unit at Berkeley Vale. She did so and lived there for some time together with the prisoner. However, he would be away at night from time to time and she thought, correctly as it emerged, that he had another girl-friend. Subsequently, the two of them parted but shortly before the events the subject of the charges, Ms Ellis returned to unit 8 in the industrial complex at Apprentice Drive, Berkeley Vale.

Ms Ellis' evidence reveals that the prisoner stayed with her on the night of Thursday 18 February 1999 and then the two of them spent most of the day of Friday in unit 8 playing music and watching videos. However, on the Friday night he did not remain in the unit, returning at about 3.30 on the afternoon of Saturday 20 February 1999. There is nothing in the evidence to suggest that he was then affected by alcohol. The two of them talked and decided that they were "going to get a house together and start a new life". However, the prisoner left on Saturday evening (to go to Ms Wilson's house) returning at 8.16 a.m. on Sunday 21 February 1999. Ms Ellis was in bed when he arrived but he came over to the bed and said "I promise I will never do this to you again. I'm going to stay put here with you.". This almost mirrors the conversation that he had had with Ms Wilson and part of one which he had on the telephone with Ms Wilson after the events giving rise to the charges to which the prisoner has pleaded guilty.

I refer to the foregoing matters to chronicle the movements and absence of drugs and alcohol for a substantial period prior to the afternoon of 21 February 1999 and to instance manipulative behaviour by the prisoner. I shall return to this characteristic and its significance later.

Having arrived back at unit 8, the prisoner began working on the carburettor of his Volkswagen, because the vehicle had been back-firing. This apparently went on for some time and was followed by the prisoner and Ms Ellis cleaning the car; the prisoner polishing, Ms Ellis vacuuming.

During the course of the day, Ms Ellis saw the prisoner take a tablet and saw the packet from which it was taken thrown in the rubbish bin. The packet was later found by forensic police to be empty. The tablet was Zoloft; the dose 100 mgs. At a time before the shootings, Ms Ellis went outside for some fresh air and saw the occupants of unit 7 working. After the exchange of some minor pleasantries, she went back inside and discussed with the prisoner what had occurred, who told her that they had asked him to turn down the volume of the music which he was playing. According to Ms Ellis, it was always played "reasonably loud".

When the car was half polished, the prisoner had some tequila and lemon Solo. Some time later, had had "another drink of tequila and a smoke". On the direct evidence from other than the prisoner, this is the only thing to indicate that the accused had had any alcohol or drugs prior to the shootings. True it is that an empty can of Jim Beam (bourbon and coke mix) was found on the floor of the garage and in the video taken on the day in question an empty Jack Daniels bottle was seen on a pile of leaves some metres from unit 8 in a direction opposite to the route taken by the prisoner in the course of his escape. There is no evidence whatsoever as to when that bottle was placed there or by whom. As to the Jim Bean can, there is nothing to indicate when its contents were consumed or for that matter by whom. In this regard it should be remembered that Ms Ellis was with the prisoner all day except for a quite short period when she went outside for a breath of air. She did not see the prisoner consume any alcohol other than the tequila to which I have referred.

Shortly before the shootings, the prisoner who was then wearing a black T shirt and a pair of black jeans, got up and took the black T shirt off. He put on a long sleeved Harley Davidson T shirt and then a jacket over the top. He tucked it into his jeans and then put on a black leather jacket. He was wearing black leather lace up boots, but despite the fact that it was a summer's day he put leg protectors over his jeans. Whilst all this was occurring he was playing a song called "Living End" over and over, the words of which included something to the effect of "no one tell us what to do". It was a compact disc entitled "The Living End. Second solution prisoner of Society".

When Ms Ellis asked why he was dressing in the way he was, he said "I'm playing a game", then put on his Drizabone coat, some black leather gloves without fingers (of a kind that shooters commonly use) and donned a black beanie. The prisoner then proceeded to get bullets from a large cupboard, four boxes in all. He took all the bullets out of each box and put them into the pocket of his Drizabone. At this time Ms Ellis observed a rifle on the bed.

Shortly after 2 pm, Ms Ellis received a telephone conversation with her mother, after which she informed the accused that her mother and father had agreed to give them some money "for a house". At this time, there was a radio playing in unit 7 which was "pretty loud". The prisoner said: "The fucking cunts have left the radio on next door. If they're not working in there, I'm gunna kick the wall in and smash it."

Although Ms Ellis tried to dissuade him, he picked up the rifle from the bed, kicked the fibro dividing wall in and went into unit 7, rifle in hand. She heard noise caused by the smashing of the items I have previously referred to. The prisoner then came back through the hole in the wall, and as he was going out of unit 8 in an angry tone he told her to pour him a drink. She did but he did not drink it. He was already gone. I am satisfied that the glass which is visible in the video on the table in unit 8 and contains clear liquid, is the tumbler into which Ms Ellis poured the alcohol. It is the only glass to be seen in the video which records the contents of the whole of unit 8 and it is on a table that answers the description of the table that is referred to by Ms Ellis.

I am satisfied beyond reasonable doubt that in a period of at least eighteen hours prior to the shootings, the prisoner had not had a lot of alcohol and no excess of drugs whether prescribed or otherwise. The evidence strongly supports his having had two tequilas and one Zoloft. The prisoner's ability to dress without difficulty, and aim accurately and fire his rifle on a number of occasions, drive the Volkswagen motor vehicle from the scene and discard some of the clothes he was wearing at the time of the shootings are all suggestive that his condition was not such as one would expect would result from his having drunk a lot of alcohol and taken a number of anti-depressant and other pills that can interact with alcohol.

Following the shootings, the prisoner fled the scene but, before doing so, he returned to unit 8, put his rifle in the Volkswagen car, got some cigarettes, took the residue of the tequila that was in the bottle on the table and said "You'll read about me in the newspaper". This showed, undoubtedly, that he knew what he had done, and that its enormity was such as to attract media attention.

When leaving the premises, Mr. Rasic saw the prisoner accelerate his vehicle up the car park area of the industrial complex, flash the headlights and wave his hand to someone. The only other person present in the area at that time was Ms Ellis.

Shortly after 3 p.m. the prisoner rang Ms Wilson and told her that he had shot the people next door because they wouldn't turn the music down. He said the people had gone home and left the music on so he went to the car and shot three people. He went on to say that he was on the run, that the police were on to him and that he was going bush. At this time, the prisoner is unlikely to have known that he had actually hit Mrs. O'Shea, notwithstanding his endeavours to do so. However, his conversation with Ms Wilson shows a recollection of events inconsistent with his later claim to a complete lack of recollection of anything that had occurred. It also showed that he was all too aware of his criminality.

Significantly, in this conversation he first blamed the noisy music next door for what he had done. However, a little later in the conversation having protested that he didn't want to live without Ms Wilson, only wanted to live with her and would have got a job, he then said: "I told you not to push me and now you've pushed me too far.". He was clearly seeking to put the blame on Ms Wilson for the events because she had "pushed (him) too far". This conversation thus showed not only a clear understanding of what he had done, but also that others were to blame for it.

A little later, he telephoned Ms Ellis and in the course of a conversation in which the events were obviously discussed, he said that he had done something terribly wrong and that: "the club's driven me to this". From the context in which this was said and from the knowledge of the prisoner's past, she knew that the Club meant the Commancheros; "this" was clearly what he knew he had done. Thus again he demonstrated knowledge of what he had done and again sought to shift the blame on to someone else.

The prisoner was next sighted, fleetingly, escaping from the site at high speed, but thereafter, except for the phone calls he made to which I have already referred, he was unable to be contacted on his mobile telephone or otherwise and did not present to any of the members of his family or to the police until two days later.

When the police searched unit 8 they found 9 large hunting knives, 5 large ornamental swords, 1 samurai knife, 1 bayonet and 4 folding knives. They also found 4 empty Winchester 22 Magnum ammunition boxes. These are a clear testament to the prisoner's continued fascination with dangerous weapons and indicate the extent to which he was prepared to ignore the terms of the bond given to him in the District Court in August 1998. So much for leniency and giving him a chance.

At about 11.00 p.m. on Tuesday 23 February 1999, the prisoner came to the home of his brother Peter. It had been in the granny flat at the rear of Peter Hill's residence that the prisoner had lived for some time and from which he had left some eight weeks prior to the shootings. On arriving at his brother's home, the prisoner's first thoughts were for himself: "I could do with a good feed and a shower". These were provided, as was a change of clothing. Some conversation took place in which the prisoner wanted to know what sort of trouble he was in. He was told. In the course of the discussion his son, Jason, asked him where he had been and how he got to Peter Hill's place. The prisoner's response was, "Don't know. I can't remember.". This was clearly untrue, as emerged from his conversations with police at Toukley Police Station less than two hours later. His brother Michael then asked him, "Why did you do it?", to which he responded, "Don't know. I can't remember". This too, in my opinion, is untrue. He clearly remembered what he had done in the phone calls to Ms Ellis and Ms Watson and he had proffered up to that time no fewer than three reasons, and at a later stage to his psychiatrist he advanced yet another reason.

Arrangements were made for the prisoner to surrender himself to the police at Toukley Police Station. This he did in the very early hours of the morning of Wednesday 24 February 1999. There he told the police that he did not remember much, "I just came out of it about 3.00 p.m. today". He denied knowledge of where the rifle was, and the car. He was given an opportunity to contact a member of his family. He nominated his son, Jason, and gave a reason for that nomination, which was cruel and contemptible and says much about the anger in and character of the prisoner.

He was then conveyed to The Entrance Police Station where he was placed in the dock and asked a number of questions. He declined to make a statement saying he wanted to speak to his solicitor beforehand. However, he did say that all he remembered of the events was getting out of his chair and the next thing waking up in the bush. He claimed to have been near Mangrove Mountain, walking in the bush for two days. He told others that he had eaten flowers. He told the police that he remembered lighting a fire about 20 feet away from a creek. He said that he had followed power lines along a fire trail, had got a lift to a shop near Wiseman's Ferry, another ride to Wyong and then that he had hitch-hiked to Budgewoi. To his previous statement that all he remembered was getting out of the chair and then waking up in the bush he added the embellishment, "I popped a few pills and was drinking bourbon". Again, as I have indicated earlier, this is inconsistent with the evidence of Ms Ellis who was there and observed him and whose evidence as to this I accept.

The prisoner declined to make any statement, as was his entitlement, and the record of interview is thus of no assistance to the prosecution or for that matter the prisoner. However, before making it he claimed not to remember where his Volkswagen was or where his rifle was.

Last Modified: 05/14/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Regina v Robert John Hill [2003] NSWCCA 128 HEARING DATE(S) : 8 April 2003 JUDGMENT DATE : 8 May 2003

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