R v Wilson [1999] NSWSC 943

New South Wales Supreme Court CITATION : R v Wilson [1999] NSWSC 943 CURRENT JURISDICTION : Common Law Division / Criminal FILE NUMBER(S) : L00013/97 HEARING DATE(S) : 13/08/99 JUDGMENT DATE : 16 September 1999

PARTIES : Norman Howard Wilson (Applicant) Regina (Respondent) JUDGMENT OF : Dunford J

COUNSEL : P Boulten (Applicant) RD Ellis (Respondent/Crown) SOLICITORS : TA Murphy - Prisoners Legal Service (Applicant) W Hutchins - Director of Public Prosecutions (Respondent/Crown) CATCHWORDS : CRIMINAL LAW - Re-determination of life sentence. ACTS CITED : Sentencing Act 1987, s 13A Crimes Act 1900, s 19 (since repealed) R v Burke [1983] NSWLR 92 CASES CITED : R v Bell (1985) 2 NSWLR 466 R v Cox (CCA - Unreported - 19 June 1997) DECISION : See para 40.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 16 SEPTEMBER 1999 L00013/97 - R v Norman Howard WILSON JUDGMENT 1 HIS HONOUR. This is an application by Norman Howard Wilson pursuant to s 13A of the Sentencing Act 1987 for re-determination of the life sentence imposed on him by Finlay J on 29 June 1990 following his conviction on 21 May 1990 for the murder of his 18 year old son, Dean Edward Wilson, at Nullamanna, near Inverell, on 1 September 1989. The Crown does not oppose the application. 2 The applicant was born on 20 September 1944 and at the time of the offence was aged 44 years and living in Inverell. He and his wife Janelle had five children and his wife had another child from a previous relationship. The deceased was the second youngest of the applicant's children. 3 On 19 June 1989 some three months before the offence, Mrs Wilson left the family home, apparently as a result of continuing marital discord, the cause of which she attributed to the applicant, and moved to Victoria leaving the applicant, his son Dean, then aged 18 and their daughter Melissa, then aged 14, living together at Inverell. 4 On 3 August 1989, Craig Wilson, another son, purchased a .22 magnum bolt action rifle from an Inverell sports store and a couple of weeks later had a discussion about the rifle with his father at Craig's home in Bennett Street, Inverell. 5 Late in August, Dean was successful in his application to join the New South Wales Police Service which, according to the applicant's wife and several of his children, displeased the applicant; but the applicant claims he was in fact pleased and had encouraged his son in his application. 6 On Wednesday 30 August 1989 the applicant stole Craig's rifle from where it was kept in the spare bedroom of the Bennett Street house. Late in the afternoon of the next day, the day before the murder, he placed the rifle in his car. The evidence at the trial did not disclose when the rifle was loaded. 7 At 10 am on 1 September 1989, the applicant, by a ruse, induced his son Dean, to accompany him on a drive to a dirt track off the Nullamanna Road, some 13 kilometres from Inverell. During the drive the two men argued, apparently about Mrs Wilson leaving home. The applicant told his son to get out of the car and leave. After his son left the car the applicant also got out carrying Craig's rifle. With the men standing some four to five feet apart the applicant shot Dean, the bullet penetrating his upper left arm. However, the gunshot wound was not fatal and the applicant thereupon killed his son with sustained acts of violence including smashing his head with a rock. The applicant stated in his record of interview: "I just went bang and when I seen blood I just went mad, I couldn't stop. I just kept going and hitting him, hitting him with anything I could get my hands on, with the rifle a rock, anything". He then dragged the body some ten metres off the roadway and covered it with vegetation. 8 The applicant claimed that on his return journey to Inverell he threw Dean's shoes and Craig's rifle out of the right hand side of the vehicle. He later disposed of the bloodstained clothing he had been wearing during the offence at the dump and that afternoon went shopping at Inverell with his daughter Melissa. 9 He reported Dean missing to Inverell police the next day, and two days later checked with police as to whether there was any information regarding his son's whereabouts. On Wednesday 6 September, police searched the applicant's Inverell residence. After the search, the applicant accompanied police to Inverell Police Station. The applicant appeared to break down and agreed to take police to the location of his son's body, which he did, and pointed out Dean's body which was under a mound of branches, leaves and grass. 10 The deceased, who was lying on his back, had sustained injures to his face and head, and in the crook of his right elbow between his arm and body was a large blood stained basalt rock. 11 Whilst at the scene, the applicant admitted to the detectives that he had killed Dean by shooting him with a .22 rifle. He then went on to say, "I should have shot myself instead, I was going to and that's when he grabbed the gun. He tried to stop me but the gun went off." 12 On the return journey to Inverell the applicant indicated to detectives the places where he claimed to have thrown the rifle and Dean's shoes from the car. 13 At the police station the applicant took part in a signed record of interview which contained admissions to the above effect. 14 The next day he agreed to accompany detectives on a tour of the area where he said he had disposed of the rifle, shoes and other items, but only one of the shoes was found and the rifle has never been located. 15 The post-mortem examination disclosed a bullet in the muscle above the left elbow and a number of compound comminuted fractures of the skull which the pathologist, Dr Hall, deposed at the trial were consistent with having been inflicted with at least four or five major blows with the very heavy basalt rock found at the murder scene. His opinion was the cause of death was massive brain injury associated with multiple compound fractures to the skull. 16 A motive for the crime has never been established, although the sentencing judge accepted that the applicant had been significantly depressed by his wife leaving him. 17 Four days before the trial was due to commence Detective Ferguson received a copy of an affidavit sworn by the applicant, and dated the previous day, in which he nominated three other persons as being responsible for Dean's murder and stated that his oldest son Craig was in some way involved in the offence. He subsequently took part in a further record of interview, denying that he was responsible in any way for his son's death, and at the trial gave sworn evidence consistent with the affidavit and such further record of interview. This version was obviously false and by its verdict of guilty the jury clearly rejected it. 18 In proceedings before me, the applicant claimed that although he now accepts that he was responsible for his son's death and that the original version he gave the police must have been correct, he says he has no recollection of the events and he accepts responsibility on the basis of what he has read. If this is so, and was so, the second version shortly before and at his trial, must have been false because he had no memory of the event. If, on the other hand, at the time, he did in fact remember what had happened, the second version was also false. He is not, of course, to be punished for telling lies, but the fact that he initially furnished two different versions created a number of difficulties for the sentencing judge and for the psychiatrist who examined him prior to the trial and sentencing. 19 Dr Lucire examined the applicant before the trial on behalf of the Crown and expressed the opinion that on the information available there was no evidence of any mental illness but considerable evidence of former sociopathic traits and she went on: "As the information he gives me is not reliable, I am unable to form an opinion regarding, for example, the role of alcohol in his marital break down and the role alcohol might have played in the involvement in the act to which he confessed. As I am still unsure of his alcohol use history, I cannot also say whether alcohol played a part in his delaying reporting of the homicide. My impression is he is a simple man with a family and employment back ground where a great deal of heavy drinking occurs with resultant changes in temperament and personality, and that he is not telling me the whole truth. Indeed, I suspect if his wife complained, she might have had something to complain about. The case should be based purely on its legal merits. There is no psychiatric defence here." 20 Dr Greenway had examined the applicant, prior to the trial, on instructions from his solicitors. His opinion was: "At the moment Mr Wilson does not appear to be suffering from any psychiatric disorder. It does appear likely that he was significantly depressed following his wife's leaving. He gives two entirely different accounts of his son's death at least one of these is untrue. It is impossible to know from Mr Wilson's evidence alone which one that is." 21 Following his conviction but before sentencing, reports were obtained from Mr Wayne Reid, psychologist, and Dr Jolly, psychiatrist. Mr Reid said: "I do not feel there is sufficient evidence to suggest an acquired organic disorder, based on the information gained from my neuropsychological assessment. It is however my clinical opinion, based on Mr Wilson's complaints of auditory hallucinations, and his presenting symptoms of severe depression, that he does have a significant psychiatric disorder (? a psychosis) that requires further investigation." 22 Dr Jolly said there was evidence of an alcohol induced amnesia, and raised the possibility that the applicant was suffering from a condition called alcoholic hallucinosis, a condition similar to delirium tremens. He was also of the opinion that he suffered a form of depressive illness which flowed on primarily from his wife's leaving him and said he was clinically depressed before the subject incident, and it was severe depression, a major psychiatric illness. At the time the applicant had made at least two serious attempts at suicide. 23 At the time he stood for sentence, s 19 of the Crimes Act 1900 provided that a life sentence was mandatory "unless it appears to the judge that the person's culpability for the crime is significantly diminished by mitigating circumstances whether disclosed by the evidence in the trial or otherwise." The provision had been considered in R v Burke [1983] NSWLR 92 and R v Bell (1985) 2 NSWLR 466, and in effect it was held that the proviso referred to culpability or blame worthiness relating to the offence itself, and not to subjective features such as might have been relevant on sentencing for any other offence. 24 Finlay J, whilst accepting that the prisoner was depressed following his wife's leaving, and indeed had what may be called a significant depression in this regard, was far from satisfied that the crime was significantly diminished by mitigating circumstances, and accordingly the proviso was not applied, and he sentenced the applicant to penal servitude for life. 25 Doctor Jolly has furnished a further report for the purpose of these proceedings and given oral evidence before me in which he elaborated on that report. In effect he is of the same opinion now as he was then, namely, that the applicant, at the time of committing the offence, was suffering a major depressive illness and possibly had alcoholic hallucinosis. It was submitted, therefore, that I should find to that effect, thereby mitigating the objective seriousness of the crime and resulting in a reduced sentence by way of minimum and additional terms than would otherwise have been the case. 26 Section 13A (10A) provides that on the re-determination of a life sentence the Court must have regard to, and give substantial weight to, the observations and comments of the original sentencing court, or to the extent that it declines to adopt or give effect to such matters, state its reasons for doing so. Accordingly, I am satisfied that I am not bound by the findings of the sentencing judge if there are good reasons for departing from them: R v Cox (CCA - Unreported - 19 June 1997). 27 Apart from the fact that Dr Lucire, after sentence was passed, considered alcoholic hallucinosis as a possibility, but did not do so beforehand, there really is no relevant fresh evidence on the issue. Diminished responsibility was not raised as a defence at the trial; and in the light of the evidence then available could not have been raised. It is not open to me, on these resentencing proceedings, to make a finding based on Dr Jolly's evidence that the applicant's responsibility was diminished to a significant degree and sentence him on that basis, as that would amount to sentencing him for manslaughter and not for murder. Doctor Jolly really only reaffirms the opinion he had at the time, that he was clinically depressed as a result of his wife's leaving. Finlay J accepted that he was significantly depressed at the time as a result of his wife's leaving, and so do I; but such evidence as there is on the subject shows that his wife left because of his excessive drinking and violence towards her over a lengthy period. As that was what caused her to leave, which in turn led to his depression, it does not reduce his culpability for the murder of his son. 28 The applicant is now 55 years old and is in poor health. He had a stroke a number of years ago which disabled the right side of his body from which he has almost completely recovered, but currently he is suffering from emphysema which he says, and I accept, affects him very badly. He has trouble sleeping and has to sit bolt upright to sleep. He cannot walk far, has difficulty breathing and has sprays to assist his breathing. 29 He was born and grew up in Inverell. His father was a pound keeper and he is the youngest son having five brothers and one sister. His mother died when he was about 4 or 5 years old. At the age of 11 or 12 he was badly burnt whilst filling a cigarette lighter which resulted in hospitalisation for some 18 months and his schooling was thereby interrupted, leaving him with significant scars about which he was quite sensitive. At the time of his arrest, he did have low literacy skills but he has improved these whilst in custody. 30 His prior criminal record shows a number of stealing, break and enter, and such like offences dating back to when he was a juvenile which I would not regard as significant in the context of this offence. He also had a conviction for driving under the influence of alcohol in 1974 which may be taken as indicative of his drinking, but standing by itself does not show much. Of more concern are convictions in Inverell in 1966 for possession of a firearm and discharging a firearm near a public street. The evidence discloses that the firearm was discharged not only near a public street but in close proximity to his wife at a time when he was affected by alcohol to a significant degree. 31 Upon sentence his Honour directed that the applicant be returned to the prison hospital where he was being kept at the time because of his suicide tendencies. In December 1990 he was transferred to Lithgow Correctional Centre with an A2 classification. On 4 March 1996 he was transferred to Bathurst Correctional Centre where he remains with a B classification. He has no misconduct whatsoever recorded on his prison file and has been a model prisoner, consistently receiving good reports and has excellent work records. He has completed a number of courses whilst in custody. He has had psychological counselling on a more or less regular basis and has attended a number of D and A courses. 32 I do not intend to go through the various reports from the Serious Offenders Review Board except to say that they are all good reports and clearly the description of the applicant as a model prisoner is justified. 33 The Serious Offenders Review Council also reports that if the sentence is redetermined it will develop a plan for his management during the remainder of any minimum term, and hopefully he will be progressively reduced in security during his imprisonment in preparation for his eventual return to the community. 34 One matter that has been of concern is that in 1991, shortly after his conviction, he wrote a letter to his wife blaming her and his stepdaughter, Sheryn, for his problem and stating that he hoped all the hate was out of his system before he got out and went on: "Maybe one day you and her will pay for what you have done to me."