REGINA v WIGNEY

JUDGMENT 1 ADAMS J: On 22 April 2003 Shane John Wigney pleaded guilty to a charge that he murdered Mark Jackson on 19 July 2001 at Leichhardt. On 25 July 2003 Wigney also pleaded guilty to the armed robbery on 11 July 2001 at Hurlestone Park of one Gouda Abdel-Malak of cash and jewellery whilst armed with a .45 calibre Colt semi-automatic pistol. The offender has also asked the Court to take five other matters into consideration when sentencing him for this offence. I will return to those matters in due course. The facts of the two offences to which the offender pleaded guilty were agreed and, in substance, are as follows. 2 At about 2.20am on Thursday 19 July 2001 the offender, together with a person I shall call AB, entered the bar of the Taverners Hill Hotel in Parramatta Road, Leichhardt, having agreed that the two of them would conduct an armed hold-up of the hotel to obtain money to finance their drug addictions. Both men were dressed in dark clothing and each wore an item of clothing concealing their faces. The offender was armed with a loaded Colt .45 calibre pistol whilst AB was armed with a knife. When he entered the hotel, the offender confronted a Mr Jekov, who was employed by the hotel as a security officer, and ordered him and five or so customers who were nearby to move to the end of the bar. A number of other customers were in another area of the hotel playing poker machines but they were unaware that a robbery was occurring. Once the customers had moved to the far end of the bar, the offender ordered them to lie down on the floor whilst AB went behind the serving counters and started to remove money from the cash registers. Whilst this was happening, the offender asked Mr Phillp, the night manager, where the rest of the money was located. When Mr Phillp informed the offender that there was a poker till, he was directed to get up off the floor and show AB how to open it. Mr Phillp complied and AB removed the cash from that till and from another cash drawer also opened by Mr Phillip using his keys. Whilst this was happening, the offender was momentarily distracted by one of the customers who resisted his demand that she lie on the floor and another customer, seizing the opportunity thus presented, picked up a bar stool and swung it down onto the side of the offender's head. The force of this blow caused him to stagger and stumble sideways towards the serving counter. The offender then fled from the hotel through the front door facing onto Parramatta Road. Mr Jackson, an off duty night manager of the hotel, pursued the offender and caught up with him on the footpath in front of the hotel. A short struggle then ensued between them during the course of which two shots were discharged, one of which struck Mr Jackson in the chest and the other the overhead awning outside the hotel. The offender then fled across Parramatta Road and hid behind some home units before making his way to a flat occupied by a Mr Kracker. 3 In the meantime, AB had run out from behind the bar and towards the rear stairs that led down to the rear exit of the hotel, carrying a grey coloured metal box. He left the hotel through the rear exit door and made his way to Mr Kracker's flat, where he waited for the offender to arrive. Both the offender and AB made admissions to Mr Kracker outlining their involvement in the robbery at the hotel and in the following days made further admissions to another mutual friend. 4 Tragically, Mr Jackson died from his gunshot wound at about 4am on the same morning as the robbery, whilst receiving emergency treatment at the Royal Prince Alfred Hospital. An audit later revealed that the sum of $4,980 had been stolen from the hotel. Police recovered a number of items from the scene, including a .45 calibre pistol and two spent cartridge cases, a balaclava and a glove and also a .45 calibre bullet that was embedded in the hotel awning. DNA found on the glove matched that of the offender. 5 Just over a week earlier, on 11 July 2001, an armed robbery was committed The Kebab Spot at Canterbury Road, Hurlestone Park by the offender and another male person. Whilst escaping from that robbery the offender fired a bullet into the air from a handgun that he was carrying. Examination of the cartridge case recovered from the scene of that robbery revealed that it had been fired from the same Colt .45 calibre pistol that had been used by the offender in the armed robbery of the Taverners Hill Hotel and which had been used to kill Mr Jackson. 6 On 10 August 2001 police located and attempted to capture the offender, who eluded them after a car chase. He was arrested later that evening on the rooftop of the building in which Mr Kracker's flat was situated. Shortly afterwards, in the early hours of 11 August 2001, the offender participated in an interview with police that was electronically recorded concerning a number of offences including the Taverners Hill robbery. Although he denied at that point any involvement in that offence, he admitted to police that he had committed a number of other offences, namely a breaking, entering and stealing offence on 29 June 2001 at premises in Ryde, the fraudulent withdrawal of cash from the National Bank at Newtown on the same day and stealing the motor vehicle in which he was driving on 10 August 2001. The offender was charged with these and other offences and, when he first appeared in court, was remanded in custody until 15 August 2001. On that date the offender volunteered to police that he was responsible for Mr Jackson's death, stating that he had a conscience and could not stop thinking about the deceased. He said that he was willing to be interviewed about that matter by police and, accordingly, later that day he participated in a further interview in which he made full admissions concerning his involvement in the Taverners Hill hotel robbery and Mr Jackson's death. However, he declined to identify his accomplice. The offender also confessed to police at this time that he was responsible for discharging the weapon at the Kebab Spot on 11 July 2001, although he denied that he committed a robbery, claiming that he had simply gone to the premises to procure either the return of some gold coins which had been sold but not paid for or their purchase price and that the gun was fired into the air when he and his accomplice were attacked. He admitted that he had stolen the vehicle that was used on this occasion. Following the interview, the offender accompanied police to the hotel and re-enacted the events leading up to the shooting of Mr Jackson. He was formally charged with murder at a later court appearance and has been in custody since 10 August 2001. 7 Despite the admissions to which I have referred, the offender pleaded not guilty when he was arraigned in this Court on 6 September 2002 and his trial was fixed to commence on 14 April 2003. On 17 April 2003 the offender's legal representatives informed police that the offender intended to plead guilty to the charge of murdering Mr Jackson and was prepared to give evidence on behalf of the Crown in the trial of his co-accused, AB. Two days later, he provided a statement to police in which he gave further information about the involvement of both himself and AB in the robbery and shooting of Mr Jackson as well as the armed robbery at the Kebab Spot. As I have mentioned, the offender pleaded guilty, as indicated, on 22 April 2003. 8 The matters to be taken into account as admitted by the offender are as follows. On 29 June 2001 the offender broke into a home in Ryde by jemmying the front door open. The premises were ransacked and a number of electrical and home entertainment items and a camera, together worth about $20,000, were stolen together with a St George Multicard in the name of the victim. At about 3.20pm on the same day, the offender withdrew about $1,500 with that stolen card at an ATM in King Street, Newtown, his face being captured by the ATM surveillance video. The offender said that he sold the property for a small amount of money to buy drugs. These offences comprised the first and second charges listed on the Form 1. The third charge of stealing a motor vehicle was committed on 10 August 2001. The fourth charge, using an offensive weapon with intent to prevent lawful apprehension, arose from the circumstance that when the offender realised, as he was driving the stolen vehicle, he was being followed by police, he fled at high speed in an attempt to escape, in the course of doing so, travelling through a red traffic light and driving dangerously for some distance. The pursuit was terminated but, shortly afterwards, the vehicle was discovered stationary in traffic with the offender in the driver's seat and his accomplice in the front passenger seat. Police approached the vehicle with their guns drawn and surrounded it. The offender then reversed and drove forward many times directly at police who were attempting to apprehend him. He drove onto the footpath, narrowly missing pedestrians, eventually driving the vehicle across Parramatta Road on the wrong side of the road and escaped, though temporarily. He was captured some hours later on the roof of the boarding house premises where he had been living. 9 I have referred to the assistance proffered by the offender. It is fair to note that the officer in charge of the investigation said that the case against AB was made very much stronger by the offender's statement and preparedness to give evidence against him. Not surprisingly, the offender has been incarcerated at the Special Purposes Centre at Long Bay Prison where he has been since 18 April 2003. Prior to this, he was on protection at Parklea Gaol and, as I have mentioned, has been in custody since 10 August 2001. 10 I am prepared to accept that the admissions made by the offender to the police in relation to all the charges which I am now considering were prompted to a significant degree by genuine feelings of remorse and contrition. Amongst other things, I note that it is not contested that he was unaware of evidence implicating him in a number of the crimes. Initially, he was not candid about some aspects of the offences, in particular, as to the identity of his co-offender but these were corrected by the time he spoke to police on 19 April 2003. When he gave evidence before me about the reasons that led him to make a full confession and agreed to assist the authorities, I formed the view that, in substance, he was telling the truth. This is not to say that there was no element of self-serving advocacy in his account but, despite this, I accept its substance. 11 In his evidence before me, the offender described the circumstances of shooting Mr Jackson as follows - "Q. You indicated that when the gun was taken into the Taverners Hill robbery it was on safety, during the interview? Q. Yes. A. Is that the case? A. Yes. Q. Did you know it was on safety before you went in there? A. Yes. Q. During the first interview it appeared you gave a description of how the gun was discharged. You recall you asked the two officers to stand up and come toward you and you would indicate what had happened? A. Yes. Q. You then gave a further description in the re-enactment of the Taverners Hill robbery. Do you recall that? A. Yes. Q. Could you just describe briefly to his Honour what exactly happened at that point? A. Where I came out the door, the door opened inward so I had to have my back to people that were trying to stop me. Q. When you say you had to have your back to people that were trying to stop you, how many people were there at that time? A. Three, four; a lady and three men, and there was a lot of screaming and yelling; there was, it was pretty surreal, and I eventually got the door opened and I went onto the footpath and I just said basically: "Fuck off, leave me alone", and then one person hit me in the nose and the face and they were kicking me and I fell backward, and as I fell backward I put pressure on the trigger after cocking it, and it went off twice in the direction of the air and it hit Mark Jackson. HIS HONOUR: Q. When did you actually cock it? A. As they were kicking and punching me, I put my head down and they were hitting me around here (indicated) and they kept on. I was out the street and the last moment I cocked and loaded the barrel or whatever. Q. Loaded the round? A. Yeah, and I thought if they heard that they would think, they would probably stop but they didn't. MORISON: Q. You take full responsibility for what you did, don't you? A. Yes." 12 The Crown Prosecutor explicitly accepted the plea upon the basis that the Crown alleged (and the offender accepted) that he was guilty of felony murder under s18 of the Crimes Act 1900, an offence of which neither intent to kill nor inflict grievous bodily harm is an element. The Crown Prosecutor did not cross-examine the offender to suggest that he intended to kill or cause grievous bodily harm to Mr Jackson and, after some discussion as to the basis for the offender's plea, stated that he was not concerned to submit to me that the offender had fired the gun with the intention to cause death or grievous bodily harm. 13 Mr Morison, counsel for the offender, submitted that although he knew very well that he was firing the gun, and that there were a number of persons in the offender's immediate vicinity, the gun would not have been fired if there had not been a struggle when his judgment was affected by withdrawal from heroin and he had been hit on the head with a bar stool. Moreover, the safety catch was on, although, as the offender conceded (as is stated at the end of the offender's evidence quoted above) he deliberately cocked the pistol thinking that if his pursuers heard it they would not continue their pursuit. Of course, he had to disable the safety catch to fire the gun. 14 In the result, I do not accept the thrust of Mr Morison's submission that the firing of the gun by the offender was, in substance, accidental. I would not find beyond reasonable doubt that the offender intended either to kill Mr Jackson or cause him grievous bodily harm and I am prepared to accept, more probably than not, that the trigger was pulled almost reflexively during the struggle but the gun discharged because the offender had intentionally cocked it in the hope that this would frighten off his attackers. The mere absence of an intention to kill or cause grievous bodily harm does not mean that felony murder is necessarily a less serious crime than conventional murder: see R v Mills (unreported) NSWCCA 3 April 1995, R v Petrinovic [2001] NSWCCA 118, R v Irani [2202] 153. Much will depend on the circumstances. It should be borne in mind that a necessary element of felony murder is the co-existence of a crime punishable by imprisonment for life or twenty-five years. In most cases, whether the victim was killed by a weapon brought to the scene and used by the offender as distinct from the death being caused by an unforeseen or unlikely event will be very material. It is obvious that this case falls into the first of these categories. At the same time, the criminal law does not deal in fictions. It is a fact here (as accepted by the Crown) that the offender did not intend to kill or cause grievous bodily harm to the victim and it would be wrong, in my view, to sentence him as though he had one of these intentions. If the offender did have such an intention, the sentence which I would have imposed would have been heavier. It is self-evident, nevertheless, that the murder of Mr Jackson by the offender was a very serious crime indeed. 15 An aggravating feature of the case is that the offender was on parole having been released only six months previously at the end of a minimum term of two years imposed by the District Court for breaking, entering and stealing in respect of which an additional term of twelve months was imposed. Furthermore, the offender's criminal record is a bad one: it includes breaking, entering and stealing offences whilst a child and thereafter, numerous other breaking, entering and stealing, thefts, receiving, offences of violence and possessing firearms. It is, however, fair to say that the armed robbery for which I am sentencing him is more serious by a considerable margin than any of the offences on his record, a fortiori the offence of murder. 16 The offender was born in March 1965 and, accordingly, was 36 years of age at the date of the offence. He said that he was adopted out when he was two or three years old because his mother could not take care of him. He has no knowledge or details of his biological father but said that he was a happy child not exposed to violence in his early life. Dr Westmore reported that the offender told him that, although he was not sexually abused, between the ages of thirteen and eighteen the offender was "involved with some paedophiles". The significance of this circumstance is not the subject of further discussion and I cannot make more of it except to note that the offender left school, having had behavioural problems there which resulted in his being suspended on three occasions, in year seven. He has been in four or five juvenile facilities. He has had a chequered employment history, with no job lasting longer than twelve months and his last job so long ago that he cannot remember when it was. The offender has been a long time user of illicit drugs, claiming that he abused amphetamines from the age of fifteen although, in his early twenties he appears to have managed to have controlled this addiction; his habit became "bad again" when he reached thirty-six. He has used cocaine heavily since the age of eighteen or nineteen although he claimed that he managed to stop using it about three or four months before the offences at the instigation and encouragement of his ex-wife. However, at the time of the robbery on the hotel, the offender was using a cocktail of drugs including heroin, methadone (intravenously) and cocaine. He has, not surprisingly, both hepatitis B and C. 17 It is, I think, fair to say that since he has been in prison the offender has shown some developing insights into his behaviour, both self destructive and dangerous to others. There is no doubt that he has many unresolved issues arising from his life, particularly his childhood, his early history of behavioural problems and his adult criminal history which suggests that he might have an anti-social personality disorder. Dr Westmore thought that "certainly anti-social traits are evident", whilst noting that some of the offender's criminal behaviour may have been directly related to his substance abuse and drug dependency problems. The offender tendered a letter from Ms Leanne Coleman, who had known him for over twenty years and describes herself as "the mother of his children". Ms Coleman said that their relationship is a loving one but did not survive the offender's drug addiction. She says that the offender was never violent towards herself or their children and was always a very loyal and loving father. She says that she believes that the offender is remorseful and that "his misplaced loyalties to the 'code of silence' have been challenged". 18 It is indeed difficult to be optimistic about this offender's likelihood of rehabilitation but his acceptance of responsibility for these crimes, his candid admissions to police and readiness to assist the authorities - despite the values of the culture in which he spent most of his life - provide a basis for hope. It is also necessary to take into account the likelihood that the offender will spend most of his imprisonment in protection as a result. 19 I have said a great deal about the offender and very little about his victim. Mark Andrew Jackson was only 34 years of age when he was killed while, attempting to apprehend a dangerous criminal. This was all the more courageous since he knew that the offender was armed with a pistol. Victim Impact Statements have been read to the Court. In them, his mother Margaret, his brother Paul, sister Lisa and Paul's partner Melanie tell of their deep love for him and their profound grief and despair caused by his tragic death. I have no doubt that he will be sadly missed by many others who knew him. Their loss is also the community's loss. Nothing that is said and done here can lessen, let alone make good, that loss. Nor is that the purpose of these proceedings. But the administration of justice is never an abstract or theoretical undertaking. In this case it is enlivened by the fact that a citizen has been killed, a citizen with a family who loved him and a community that needed him. It is right and proper that these things should be acknowledged. 20 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice: see R v Previtera (1997) A Crim R 76 at 85 ff). The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. The life of one person cannot be regarded as more valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence for murder because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was brave, loved and surrounded by friends and family. If this were not so, counsel for the murderer might rationally submit that, as the victim was of the former character, the crime was less grave and the sentence should be more lenient and the Crown Prosecutor, by pointing to a grieving family, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 21 More difficult, perhaps, to accept but also crucial to the administration of justice is the notion that the value that the law ascribes to the life which has been taken arises from and reflects that same sense of reason and humanity which requires value also to be ascribed to the lives of the persons who come before the law for punishment. They are the values and aspirations of our society and not the values and aspirations of the criminal. Thus, the considerations that moderate the measure of punishment are not applied primarily because of anything due to the offender but what is due to ourselves as a civilized and humane community; not so much because we respect the criminal but because we respect ourselves. 22 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ said - "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 23 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. The public interest as well as the personal interests of the victims must be reflected in the outcome. As is obvious, these considerations will be in tension, if not in conflict. In this case, in particular, the public interest in saving the considerable expense and uncertainty of a trial and stress and inconvenience to witnesses, as well as encouraging criminals to inform on and give evidence against their accomplices, requires the Court to give a significant downward adjustment to the offender's ultimate sentence. Even so, as the Crimes (Sentencing Procedure) Act 1999 provides, such a sentence "must not be unreasonably disproportionate to the nature and circumstances of the offence" (s 23(3)). 24 In R v Petroff (unreported, NSWSC 12 November 1991) Hunt J (as he then was) said, when dealing with a determination under s13A of the Crimes (Sentencing Procedure) Act 1989 - "Capital punishment has been abolished and (except in extraordinary cases...) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. In addition to retribution - and, of course, deterrence - the purpose of punishment is also to reform the offender as far as possible..." 25 Allen J said in R v Crump (unreported, NSWCCA, 30 May 1993) - "It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: "how could this apparently well adjusted applicant be the person who committed such a crime?" Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person. … "I appreciate that the legislation in its present form empowers the Supreme Court to throw away the key, to deny to the prisoner any prospect of ever again being free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that." 26 It is with these principles in mind that I turn, finally, to the sentences that the Court imposes on the offender in this case. 27 The plea of guilty in respect of the murder of Mr Jackson was not entered until the trial was due to commence. Accordingly, the discount proposed by R v Thomson & Houlton (200) 49 NSWLR 383 for its utilitarian value must be at the lower end of the scale. At the same time, the public interest requires a further discount in light of the offender's disclosure of the identity of his accomplice and his readiness to give evidence against him. It is not practicable to separate these factors. In the result, I consider that the appropriate overall discount for these features is 35%. I have applied this discount to the sentence which otherwise would have been imposed, taking into account all the objective and subjective features of the case as I have outlined them above. 28 The agreed facts of the armed robbery are inappropriately vague, stating merely that the offender, armed with a Colt .45 calibre pistol committed an armed robbery with an accomplice at The Kebab Spot in Hurlstone Park, and an unspecified quantity of jewellery and money was stolen from the owner of the business and his family. (I note the Indictment only mentions one person. I therefore disregarded the reference to the family). The offender fired a single shot into the air as he fled. I have already mentioned the offender's claim to police about his motive for the crime. This statement was tendered by the prosecution. As no attempt was made by the Crown to dispute it, I consider that I should act upon the basis that it is true. It does not seem to me to mitigate the seriousness of the crime. The plea of guilty in respect of the armed robbery was given, as I understand it, at an early, if not the earliest, practicable opportunity. The offender has also indicated a willingness to give evidence against AB in respect of this offence. Accordingly, an overall discount of 40% is appropriate. That discount applies to the total sentence, taking into account the matters on the Form 1, of which the use of the stolen vehicle as an offensive weapon to avoid arrest is, itself, a very serious crime. 29 Although the crimes to which the offender has pleaded guilty have a number of common elements and were committed within a short time of each other, I do not think that they should be regarded as simply a single episode of wrongdoing. They were distinct and serious crimes. However, the requirement that the ultimate sentence should not exceed the total criminality of the offences under consideration has led me to make the sentences partially, though (because of the very much greater culpability of the murder charge) largely, concurrent. As I have mentioned the offender has been in custody since his arrest on 10 August 2001. 30 For the offence of armed robbery (taking into account the matters on the Form 1), I set a non-parole period of four years and six months to commence on 10 August 2001 and expire on 9 February 2006, which is the earliest date upon which the offender will be eligible for release on parole in respect of this offence; the balance of the term of imprisonment is 1 year and six months to expire on 9 August 2007. The effect of these orders is a sentence for a term of six years, with a non parole period of four years and six months. 31 For the offence of murdering Mark Jackson, having regard to the accumulation of sentences and the likelihood that much of the sentence will be served on protection, I consider that there are special circumstances justifying a variation of the statutory calculus prescribed in s44 of the Crimes (Sentencing Procedure) Act 1999 and, accordingly, I set a non-parole period of eight years and six months, to commence on 10 August 2004 and expire on 9 February 2013, which is the earliest date upon which the offender will be eligible for release on parole in respect of this offence; the balance of the term of imprisonment is five years and two months to expire on 9 April 2018. The effect of these orders is a sentence for a term of thirteen years and eight months, with a non-parole period of eight years and six months. 32 Overall, the offender is sentenced to imprisonment for a total period of sixteen years and eight months and will not be eligible for release on parole before he has served a period of eleven years and six months. Whether he will be released at that time depends upon the determination of the Parole Board. **********

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