SUPREME COURT OF NORFOLK ISLAND The Queen v McNeill (Sentence) [2007] NFSC 8 THE QUEEN v GLENN PETER CHARLES MCNEILL SCC1 OF 2006 WEINBERG CJ 25 JULY 2007 SYDNEY (BY VIDEO LINK TO NORFOLK ISLAND) IN THE supreme COURT OF norfolk island CRIMINAL JURISDICTION SCC1 OF 2006 BETWEEN: THE QUEEN AND: GLENN PETER CHARLES MCNEILL JUDGE: WEINBERG CJ DATE OF ORDER: 25 JULY 2007 WHERE MADE: SYDNEY (BY VIDEO LINK TO NORFOLK ISLAND) THE COURT ORDERS THAT: 1. For the murder of Janelle Louise Patton on Norfolk Island on 31 March 2002 Glenn Peter Charles McNeill be imprisoned for a term of twenty-four years. 2. The commencement date of that sentence be 1 February 2006. 3. It be directed pursuant to s 556B of the Criminal Law Act 1960 (NI) that, after having served a period of eighteen years, upon giving security by recognisance in the sum of $5,000.00, Glenn Peter Charles McNeill be released from custody. 4. The conditions upon which such recognisance be given be as follows: a. that after his release from custody Glenn Peter Charles McNeill be of good behaviour for a period of six years; and b. that after his release from custody Glenn Peter Charles McNeill obey all reasonable directions of the Registrar of the Supreme Court of Norfolk Island for a period of six years. IN THE SUPREME COURT OF NORFOLK ISLAND criminal jurisdiction SCC1 OF 2006 BETWEEN: THE QUEEN AND: GLENN PETER CHARLES MCNEILL JUDGE: WEINBERG CJ DATE: 25 JULY 2007 PLACE: SYDNEY (BY VIDEO LINK TO NORFOLK ISLAND) SENTENCE 1 Glenn Peter Charles McNeill, you have been convicted of the murder on Norfolk Island of Janelle Louise Patton on 31 March 2002. It is now my task to sentence you for that crime. 2 Section 19 of the Criminal Law Act 1960 (NI) provides that the maximum penalty for the crime of murder is imprisonment for life. The prosecution has submitted that your case falls within the worst category of cases of murder, and as such warrants the imposition of a term of life imprisonment. It has provided me with a long list of authorities, mainly New South Wales cases, in support of that submission. Your counsel, though acknowledging the extreme gravity of your crime, has submitted that a sentence of less than life imprisonment should be imposed. 3 The essential facts can be briefly stated. At about 5.30 pm on Easter Sunday, 31 March 2002, the body of Janelle Patton was discovered at Cockpit Reserve. Her body was partially wrapped in a sheet of black plastic and was badly mutilated. She had sustained some sixty-four separate injuries, some of them quite horrific. Among those injuries, two were of particular significance. She had sustained a single stab wound to the chest that, on the evidence, would have been immediately and severely debilitating, if not instantly fatal. In addition, she had been stabbed directly above the eye. 4 Janelle Patton had also been repeatedly slashed, across her entire body, by a knife or similar instrument. She had sustained a number of incised wounds, some of which were plainly defensive in nature. She had been struck a number of times by a blunt object or objects. She had a fractured skull, several broken ribs, a broken pelvis and a dislocated ankle. It was clear from the evidence of Dr Cala, the pathologist who conducted the post-mortem, that she had been subjected to a sustained and brutal attack. It was also clear that she had fought desperately to resist her attacker in a vain attempt to save her life. 5 Dr Cala's evidence, which was not challenged on this point, was that the stab wound to Ms Patton's chest was inflicted while she was still alive. Having regard to the numerous defensive wounds which she sustained, that chest wound must have been inflicted towards the end of your violent and prolonged attack upon her. 6 The jury were satisfied that you were responsible for the death of Janelle Patton. They must also have been satisfied that you then disposed of her body by taking it to Cockpit Reserve. You subsequently covered the body with the black plastic sheet, and left it to be discovered later that day. 7 The prosecution submitted that I should be satisfied, consistent with the jury's verdict, of the following matters: that you deliberately abducted Janelle Patton from Rooty Hill Road while she was on her morning walk, that you somehow forced her into your car, possibly by intentionally driving it at her and injuring her sufficiently seriously so that she could not resist, and that you subsequently carried out an extremely violent and sustained attack upon her, the extent of her injuries being as noted by Dr Cala in his evidence at your trial. The prosecution further submitted that I should find that at some stage thereafter you cut her clothing so as to expose her breast and her pubic region. It suggested that your motive in abducting her was, in some sense, sexual. 8 In your record of interview you made a number of damning admissions. You did not, however, admit to any of the aggravating circumstances to which I have just referred, and which the prosecution has submitted were present in this case. Rather, you told the police that while driving along Rooty Hill Road on the morning in question you had become momentarily distracted and that your vehicle had accidentally collided with Janelle Patton. You said that you at first thought that you had hit a dog or a cow, and only after getting out of the car discovered her body tightly wedged up underneath your car. You said that you thought at that stage that she was dead, and that you then panicked and put her into the boot of the car. You then drove back to your flat, in Little Cutters Corn. You said that it was only later, after you heard her moan, while still in the boot of your Honda Civic, that you procured a fish filleting knife from your kitchen and used it to "stab and hack" at her. 9 Plainly there are issues to be determined as to the circumstances surrounding the commission of this offence. My task in sentencing you requires me to find facts which are consistent with the jury's verdict. Any findings of fact which I make must also be consistent with any factual findings that are clearly implicit within that verdict. However, the law provides that where a jury's verdict is consistent with more than one view of the facts, the judge must decide which view to adopt, for different jurors may have followed different chains of reasoning. 10 In this case, the jury's verdict was, in my view, consistent with more than one view of the facts. That in no way casts any doubt upon, or impugns the legitimacy or correctness of that verdict. It simply reflects the fact that, although all members of the jury were agreed upon your guilt, they may not all have reasoned to that conclusion in precisely the same way. 11 In sentencing, there is no onus of proof. However, in simple terms, the law provides that the judge must be satisfied beyond reasonable doubt before acting on a view of the facts that is adverse to the offender. In other words the judge may not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. Of course, if there are circumstances which the judge proposes to take into account in favour of the offender, it is enough if those circumstances are proved on a balance of probabilities. 12 I say this because, having regard to the prosecution's reliance upon certain aggravating circumstances in this case, there are facts still in issue before me notwithstanding the jury's verdict. I accept that there is evidence to support the prosecution's theory that you did forcibly abduct Janelle Patton, possibly for some sexual purpose. It would have been open to the jury, on the whole of the evidence, to arrive at that conclusion. Indeed, Dr Cala's evidence may be regarded as providing some support for that interpretation of what occurred. His evidence certainly tends against any finding that Ms Patton was ever wedged tightly underneath your car, as you claimed in your record of interview. However, Dr Cala's evidence does not, in my view, exclude, to the requisite degree, the possibility that your vehicle inadvertently collided with her whilst you were driving along Rooty Hill Road, as you told the police, that you panicked thereafter, and that you killed her broadly for the reasons that you gave in your record of interview. The jury, or some members thereof, may well have convicted you of murder solely on the basis of your confession to the police, without necessarily accepting every aggravating circumstance for which the prosecution contended. 13 In other words, and it almost goes without saying, irrespective of whether the aggravating circumstances alleged by the prosecution occurred, the version of events that you gave the police provides ample justification for the jury's verdict that you are guilty of murder. 14 A number of things that you told the police, particularly early on in your record of interview, were patently false. Indeed, you have readily acknowledged as much. Other answers that you gave were untrue, though you have never accepted that fact. For example, although you denied any responsibility for the many defensive injuries that Janelle Patton sustained, there can be no doubt that you inflicted those injuries during the course of what can only be described as an appalling attack upon a defenceless young woman. 15 After carefully considering all of the evidence in this case, I am not satisfied beyond reasonable doubt that a number of the aggravating circumstances upon which the prosecution has relied in the plea before me have been made out. More specifically, I am not satisfied beyond reasonable doubt that you set out on the morning in question to abduct Janelle Patton, or anyone else for that matter. I find no evidence of any planning or premeditation on your part. I am not persuaded by the prosecution's submission that it is an aggravating circumstance of your offence that you drove your car at Ms Patton, and deliberately collided with her so that you could forcibly abduct her. I think that it is reasonably possible that you collided with Ms Patton inadvertently, and that you then panicked, put her body in the boot of your car and drove back to your flat. You later discovered that she was still alive, though injured. You then senselessly attacked her, stabbing her and hacking at her repeatedly. Although I am satisfied that you cut her clothes during the course of your attack upon her, or perhaps subsequently. I am not satisfied beyond reasonable doubt that you did so for some aberrant desire for sexual gratification. There are a number of other possible explanations for your actions. 16 I note that the prosecution opened its case to the jury on the basis of alternative hypotheses. One such hypothesis involved the aggravating circumstances noted above. However, the prosecution also opened its case largely on the basis of your own version of what occurred, as set out in your record of interview. It is essentially on the basis of that version that I propose to sentence you. 17 Had I concluded that the aggravating circumstances upon which the prosecution relied were made out beyond reasonable doubt, or that those aggravating circumstances were necessarily implicit in the jury's verdict, I may well have accepted its submission that you be imprisoned for life. Although I am not persuaded to the requisite degree that those aggravating circumstances were present, this was a most serious crime, indeed a most heinous offence. 18 Janelle Patton suffered what must have been a terrible death. Her many defensive wounds speak for themselves. Yours was a vicious and callous crime. It was committed in circumstances of unspeakable cruelty. For your actions you must be severely punished. 19 In your unsworn statement to the jury, you denied any involvement in the death of Janelle Patton. You disavowed the statements that you had made to the police in your record of interview. You claimed that at the time of that interview you were suffering from ill health, and various personal difficulties. You told the jury that you had simply told the police what you believed they wanted to hear. 20 Plainly, and not surprisingly, the jury did not believe you. The prosecution invited the jury to conclude that the numerous admissions contained in your record of interview were the product of genuine contrition on your part. At the same time, the prosecution submitted, that contrition never extended to making a clean breast of all that you had done. It was, so the prosecution submitted, a selective confession that never acknowledged the full horror of your actions. 21 My impression is, and I find, that you were remorseful during the course of your interview with the police. However, by reason of your decision to plead not guilty and to reject entirely the contents of your confession (which you told the jury was "complete rubbish"), you are entitled to little, if any credit for that remorse. Your counsel sensibly and very properly conceded as much on the plea on your behalf. 22 You told the police in your record of interview, and confirmed to Ms Sarah Gilmour who prepared the Probation and Parole Service Pre-Sentence Report, that at the time of this offence you were a regular and heavy user of cannabis. You said in your record of interview that on the morning in question you had had a smoke, but that this did not affect you in any way. You said that you were able to function normally. It is possible, and I suspect, that your long term use of cannabis and other illicit drugs, and your use of alcohol affected you more profoundly than you yourself appreciated. However, there is no material before me to suggest that you were suffering from any disorder or disability that would impact upon or diminish your capacity or responsibility for this crime. 23 The prosecution submitted that in these circumstances it would be open to this Court to find that there was nothing whatever to mitigate the gravity and objective seriousness of your offending conduct. In essence, I accept that submission. 24 I have given careful consideration to whether you should be regarded, by your conduct, as dangerous, and therefore as posing an ongoing threat to the community. It is always difficult to make any finding regarding continuing dangerousness, particularly in a case where there is no psychiatric evidence of any kind before the Court. Nonetheless, the prosecution submitted that the very nature of your crime raises a question as to your dangerousness. It referred me to relevant New South Wales authority in support of that contention. I have read the cases to which I was referred. 25 I accept that there may be cases in which a finding of continuing dangerousness can be made, though such a finding is based solely upon the circumstances surrounding the commission of the offence. However, I do not think that it would be proper to make such a finding in your case. 26 You told Ms Gilmour that from about the age of 15, when you were first employed in the hospitality industry, you began smoking cannabis and consuming alcohol. You said that your use of both substances progressively increased. You said that your drinking was at its worst when you were on Norfolk Island where you were consuming a bottle of spirits and a few dozen beers daily. I must say that I take that with a grain of salt. Nonetheless, I accept that around the time of this offence you were drinking heavily, and that you were using substantial amounts of cannabis. 27 You also told Ms Gilmour that you were using "acid" (LSD) at the time. You said that you were generally taking "five tabs per week", with up to three tabs ingested per day. I understand that that is a large quantity of this most dangerous drug. It is possible that your use, over a prolonged period of time, of large amounts of alcohol, cannabis and LSD may have affected your powers of reasoning and self-control to a greater extent than you realised. It is difficult to understand why you committed this senseless and brutal crime, and long-term substance abuse may have played some role in what you did. 28 Nonetheless, you told the police that you were functioning normally on the day in question, and I propose to sentence you on that basis. Even if you had been affected by alcohol and drugs when you killed Janelle Patton that would not have been a mitigating factor in your case. Nowadays it frequently occurs that those who attack and kill or seriously injure others are affected to some degree by drink or drugs. It would simply have helped to explain, but not in any way excuse, your conduct. 29 As I have said, I am not persuaded that what you did to Janelle Patton was in any way planned. Nor am I persuaded that you drove your vehicle at her deliberately, in order to facilitate her abduction, or that what you did for done for some sexual purpose. Nonetheless, you took the life of an innocent young woman, intentionally and without any semblance of justification or excuse. She was a total stranger to you, and had done you no harm. She died in the most appalling way. Your crime has shocked the small community of Norfolk Island. It has sickened the people of Australia. It demands severe punishment. 30 There are, however, some factors, mainly of an individual nature, that you are entitled to call in aid as mitigating circumstances in your case. There is first your age. You are now twenty-nine years of age. You were only twenty-four years of age at the time of this offence. You then had, and still have, no prior convictions of any kind. In addition, you did not come to the notice of the authorities during the nearly four years that passed from the time of your crime until you were apprehended by the police. 31 I accept that you are entitled to rely upon your prior good character as a mitigating circumstance. 32 It is important to note that you have, for some years, been in a stable relationship with Ms Shelley Hooper. You and she have two young children. Ms Hooper has stood by you from the time of your arrest, and I noted that she was present throughout the entirety of your trial. You also have the care, love and support of your mother and father. They too were present throughout virtually the whole of your trial. 33 Your family's support is, in my view, relevant to your prospects of rehabilitation, and is therefore a mitigating factor. 34 You are an experienced chef. You have, by all accounts, been a good employee. One of your previous employers described you as having been a "good, loyal hardworking employee", and as "quiet" and "polite". He said that your overall performance was "excellent" and that he never detected in you any traits of aggressive behaviour. You were steadily employed in various establishments in New Zealand from about May 2002 until mid 2005. It was at that stage that you were diagnosed with Crohn's disease, and with depression. At the time you were arrested you had only just returned to work as a chef. 35 Ms Gilmour, in her report, described you as having been "polite" and "open" during the course of her various interviews with you. 36 These are all matters proper to be taken into account in your favour. They suggest that, despite the horrific nature of your crime, you are not without some prospects of rehabilitation. 37 There are also other factors, peculiar to your situation, that may be called in aid as mitigating circumstances. Any sentence imposed upon you will, of necessity, be served in New South Wales. You have no family contacts and no social networks in Australia. Your family and friends all reside in New Zealand. Because you are a non-citizen of this country, you will not be able to progress beyond category 1 of the classification system used in New South Wales' prisons. That means that throughout your sentence you will be unable to participate in any external programs, including work release programs. 38 In December 2006, you were injured as a result of being attacked by other prison inmates. That may be because of the prominence that your case has achieved. In any event, as I understand the position, you are currently in protection for your own safety. You are likely to remain there for some time. I do not, however, accept your counsel's submission that it is likely that you will remain in protection for most, if not all, of your sentence. 39 The combination of circumstances set out above means that you will, to use the vernacular, "do your time hard". That too is a factor properly to be taken into account. 40 In addition, I note that you have attempted suicide on a number of occasions. You told the police that you were depressed because you were racked with guilt over what you had done to Janelle Patton. You said that her death preyed constantly upon your mind. If that is true, then it at least indicates a degree of self-awareness which may, ultimately, be channelled towards rehabilitation. 41 Regrettably, there is no victim impact statement in this case. That is because the law of Norfolk Island, unlike the law in I think all mainland States and Territories, makes no allowance for the provision of such statements. However, I do have regard to what I observed of the general demeanour of Ronald Patton, Janelle Patton's father, who gave evidence in the trial. He was plainly devastated by the loss of his daughter, particularly having regard to the circumstances in which she died. I infer that the death of Janelle Patton has had a similarly profound effect upon the other members of the Patton family. Their grief is understood. 42 It is important that the sentence which I impose upon you should reflect the gravity of your crime. Although Norfolk Island has no specific sentencing legislation as such, it may readily be accepted that the purposes for which this Court may impose a sentence on an offender are akin to those typically spelt out in provisions such as s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the equivalent provisions in other similar legislation. These purposes include: to ensure that the offender is adequately punished for the offence; to prevent crime by deterring the offender and other persons from committing similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his or her actions; to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and the community. 43 In my view, the concept of general deterrence and the appropriate condemnation by this Court of your offending are of particular significance in a case such as this. 44 The law of Norfolk Island does not now, and so far as I can tell, has never made provision for prisoners to be released on parole. That is perhaps an historical anachronism. The Criminal Law Ordinance 1960 (NI) (which later became the Criminal Law Act 1960 (NI)), picked up and applied the Crimes Act 1900 (NSW) as amended before 16 December 1936 as the substantive law of Norfolk Island. It was not until 1950 that the Crimes Act 1900 (NSW) was amended by the introduction of s 464A which created, for the first time, a Parole Board, and made provision for release on parole. Prior to that time, s 462 provided that the Governor could grant to an offender a remission of the whole or any portion of a sentence of imprisonment on condition of his giving security by recognisance to be of good behaviour. In addition, s 463 provided that the Governor could grant to any offender a written license to be at large, subject to such conditions as the Governor should prescribe. 45 When the Criminal Law Ordinance1960 (NI) came into effect, ss 459-464A of the Crimes Act 1900 (NSW) were, for whatever reason, omitted. However, s 556B, which appears to have been taken primarily from Ch IV of the Crimes Act 1900 (NSW), and which deals with the conditional release of offenders upon recognisance, was retained. In New South Wales, that section was originally applicable only to persons charged before courts of summary jurisdiction. The provision was subsequently amended to enable an accused to be dealt with by conditional release upon recognisance, even in the case of trial on indictment. 46 Section 556B of the Criminal Law Act 1960 (NI) still appears in Ch 4 which is headed "Procedure, Etc Before Chief Magistrate". However, s 556B(3) makes it tolerably clear that the section can be invoked by the Supreme Court, and not simply by the Court of Petty Sessions. 47 The effect of all this is that there is no provision, under Norfolk Island law, for parole. There is no Parole Board. Accordingly, I am unable to fix a non-parole period as such, as part of any overall sentence of imprisonment. 48 Your counsel submitted that it would be unjust to deny you the opportunity to be released, upon appropriate conditions, after you have served a suitably lengthy term of imprisonment. That possibility would be open to you had you committed your crime in virtually any other part of Australia. He submitted that, in so far as the law of Norfolk Island permits, I should ensure that you are treated no differently in that regard than if you had committed this offence in one of the States or Territories. He submitted that this would require doing nothing more than is already routinely done in relation to Commonwealth offenders (for whom parole is not available for sentences of less than three years, but in relation to whom recognisance release orders must instead be made). 49 Counsel referred to and relied upon s 556B of the Criminal Law Act 1960 (NI) as the basis upon which something akin to the fixing of a non-parole period could be achieved. Section 556B provides that where a person is convicted of an offence the Court may sentence that person to a term of imprisonment, but direct that he or she be released upon giving security, either forthwith, or after having served a specified part of the term imposed. The Court may attach such conditions as it thinks fit in making such an order. As I have already indicated, the section is applicable to any term of imprisonment that is imposed by the Supreme Court, and can be invoked even in relation to lengthy terms 50 Counsel submitted that I should attach two conditions to any direction that you be released after you have served a substantial period in custody. These were that, upon your eventual release from prison you refrain, for the balance of your sentence, from committing any breaches of the law, and further, that for that same period you obey the lawful directions of the Registrar of the Supreme Court of Norfolk Island. 51 The prosecution did not submit that it would be unlawful, or in any way inappropriate, to make a direction of that kind. 52 I accept that, in principle, and to the extent that the law permits, you should be treated no differently from any other prisoner, State or Territory, or indeed Commonwealth, who is sentenced to a lengthy term of imprisonment. You should not be denied the opportunity of conditional release, perhaps under close supervision, after you have served an appropriate period in custody. That is an important consideration which is highly relevant to any prospects you may have of rehabilitation. It is for that reason that I propose to accede to your counsel's submission. I will give a direction under s 556B which will allow for your eventual conditional release. 53 Having regard to all the circumstances of this case, it is the sentence of this Court that, for the murder of Janelle Louise Patton on Norfolk Island on 31 March 2002 you be imprisoned for a term of twenty-four years. I will direct that, after you have served a period of eighteen years, you be released upon giving security by recognisance in the sum of $5,000.00. The conditions to be imposed upon the recognisance when eventually given are that you be of good behaviour for a period of six years after your release from prison, and that you obey all reasonable directions of the Registrar of the Supreme Court of Norfolk Island during that six year period. Obviously, it is not intended by that latter condition that you reside on Norfolk Island at any time after your eventual release. 54 I should emphasise that if you breach either of those conditions, s 556C of the Criminal Law Act 1960 (NI) provides that you may be committed to prison, and possibly required to serve the balance of the term of twenty-four years that I have imposed as your sentence. 55 The sentence of twenty-four years is to run from 1 February 2006, the date on which you were first taken into custody. That same is true of the period of eighteen years which is the period which you must serve before you can be released upon giving security in the form of the recognisance stipulated. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Sentence herein of the Honourable Chief Justice Weinberg. Associate: Dated: 25 July 2007