R v Waters [1999] NSWSC 893

New South Wales Supreme Court CITATION : R v Waters [1999] NSWSC 893 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 7000/97 HEARING DATE(S) : 10/9/99, 19/9/99, 27/8/99 JUDGMENT DATE : 27 August 1999

PARTIES : Regina Ronald Lewis WATERS JUDGMENT OF : Simpson J

COUNSEL : M Marien - Crown M McClintock - Ronald Lewis Waters SOLICITORS : S E O'Connor - Crown T A Murphy - Ronald Lewis Waters CATCHWORDS : Sentence; pleas of guilty to two charges of accessory after the fact of murder ACTS CITED : Crimes Act 1900 R v Farroukh, unreported NSW CCA 29 March 1996 CASES CITED : R v Tan Do, unreported, NSW CCA 7 May 1997 R v Edwards (1996) 90 A Crim R 510 R Todd [1982] 2 NSWLR 517 DECISION : Ronald Lewis Waters - convicted; on each count sentenced to penal servitude to be served concurrently by way of periodic detention for a period of eighteen months.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

SIMPSON J Friday 27 August 1999

7000/97

REGINA v Ronald Lewis WATERS SENTENCE

HER HONOUR : 1 The prisoner Ronald Lewis Waters appears for sentence following his pleas of guilty to two charges alleging that he was an accessory after the fact of murder. 2 On 14 February 1994, at Gladesville in Sydney, Lindsey Rose murdered Kerrie Pang and Fatma Ozonals. He pleaded guilty to two charges of murder on 18 June 1998. He claimed that he murdered Kerrie Pang at the behest of her de facto husband, Mark Lewis, for which Rose was to be paid the sum of $20,000. He murdered Ms Ozonals because she appeared unexpectedly at the scene when he was in the process of discharging his contract with Lewis. 3 Lewis has also been charged with murder. A trial is fixed for hearing in October this year. In the facts I am about to recite Lewis's participation and role is accepted, for the purposes of the present proceedings only, as having been established. The following findings of fact, so far as they involve Lewis, I make for the purpose of this sentencing exercise and not otherwise. As far as Lewis is concerned, his guilt remains to be determined by the appropriate tribunal of fact at trial. 4 The facts are drawn principally from information provided by the prisoner to police, many months after the events described. 5 Sometime before 14 February 1994 Rose asked the prisoner to accompany him to the address at Gladesville where Ms Pang conducted a massage parlour and Ms Ozonals was an employee, and present himself at the door while Rose remained out of sight. Rose's purpose in involving the prisoner was to enable himself to gain entry to the premises, believing that the occupants would recognise him and deny him admission. He offered to pay the prisoner the sum of $500 to perform this function. 6 Accordingly, while Rose remained out of sight nearby the prisoner approached and knocked on the door. Ms Ozonals opened the door and Rose pushed past the prisoner, produced a gun he had been carrying in a paper bag, and forced Ms Ozonals into another room. He reassured her - falsely, as it turned out - when she expressed fears about her safety. 7 The intended victim, Ms Pang, was not then present, but she arrived shortly after, in the company of Lewis. As they arrived Rose shot Ms Ozonals two or three times in the head. 8 Lewis and Ms Pang entered the house, Lewis pushing Ms Pang into the house and along the hall. It seems that Ms Pang saw that Rose was armed and quickly appreciated his purpose. She tried to assure him that whatever had occurred between herself and Lewis had been resolved but Rose nevertheless shot at her also. She engaged in a scuffle with Rose. The prisoner punched her two or three times in the head. She fled down the corridor, pursued by Rose. At some stage Lewis produced a rifle. The prisoner, who did not know Lewis, disarmed him and restrained him. While he was doing this Rose told him that Lewis was paying for the killings. Rose fired a single shot to Ms Pang's head. She fell, but then got up and ran down the corridor, pursued by Rose. Rose fired two further shots at her before the two disappeared into another part of the house. 9 The prisoner was not in that immediate vicinity and did not see what happened next. However, post mortem investigation revealed that Ms Pang suffered numerous stab wounds to the neck and chest, as well as a gunshot wound to the head. Rose set fire to the house. He replaced the gun in the paper bag in which he had brought it, which by now was wet with blood. All three men left the premises. Lewis placed the rifle he had in the vehicle in which he had arrived and drove off. Rose put the paper bag containing the gun into the boot of his vehicle; as he did so, the blood caused the bag to fall apart and its contents to spill into the car. Besides the gun the bag contained a knife and some clothing. 10 Because Rose's glasses had been broken during the melee he asked the prisoner to drive his car, but the prisoner was unable to do so. Rose accordingly drove them both to his home, where the prisoner assisted him in unloading the items in the bag from the boot of the car. The prisoner claims that this was the first time he became aware of the presence of the knife. 11 The prisoner had a shower to remove the blood from his body, and Rose took his blood stained shirt to destroy it, and gave him another. The prisoner then walked home. 12 Although the prisoner remained in contact with Rose for about a year afterwards, he heard nothing further about these events and the involvement of the two of them did not come to light until November 1996, more than two and a half years later. The prisoner was then spoken to by police at the Orange police station where he made admissions and gave extensive information in an electronically recorded interview. 13 He maintained that when he first became involved he was unaware of the purpose of the excursion to the premises. He was taken by surprise by what happened in the house. It was not until they were driving back to Rose's home that Rose told him more about the circumstances in which he had become engaged. 14 A number of specific aspects of the prisoner's behaviour constitute the accessorial offences. It is to be borne in mind that the offences to which he pleaded guilty are of assisting Rose after the commission of the murders. He is not to be sentenced for his participation in facilitating Rose's entry to the premises. Chronologically, the relevant assistance the prisoner rendered began from the moment Ms Ozonals was shot and killed, and consisted of his involvement in the house thereafter (the prisoner's account of what happened demonstrates that he became fully involved, particularly in his assault on Ms Pang and his attempt to subdue Lewis, not realising that Lewis was in truth party to what Rose was doing); his (ineffectual) attempt, or agreement, to drive Rose away from the scene of the crimes; his assistance in carrying the blood soaked bag containing the gun and knife to Rose's premises; and, perhaps most significantly, his silence about these events for the following two years and nine months. 15 That accessorial liability can be constituted by non-disclosure of an offence is established: R v Farroukh, unreported, NSW CCA, 29 March 1996; R v Tan Do, unreported, NSW CCA 7 May 1997. 16 The seriousness of the offences committed by the prisoner should not be underestimated. By s 349 of the Crimes Act 1900 they carry a maximum penalty of penal servitude for twenty-five years. This was a most serious instance of such an offence, not least because the prisoner was present throughout the entirety of the principal crime, and was therefore fully aware of the nature and extent of what Rose had done. He can have been under no illusion about what it was that he assisted, both in the immediate aftermath, and in the years that followed. He was aware that the killings were cold blooded contract killings, in Mrs Ozonals' case committed merely because she happened to be present. 17 In saying this, I recognise that the prisoner was not in the same room as that in which Ms Pang was killed, but he cannot have helped but be aware of the essence of what had happened. 18 There are, of course, some subjective features that mitigate the prisoner's culpability. He was born on 31 October 1973. He was therefore twenty years of age at the time of the offence. He is now almost twenty-six. He has a relatively minor criminal history, beginning in Queensland in 1992, when he was eighteen years of age, and principally consisting of offences associated with drug use and possession, disorderly behaviour and apparently minor property damage. In this State he has been convicted of having custody of an offensive implement, in 1995, post dating the present offences. In respect of this charge he was fined $150. 19 I was provided with a pre-sentence report and a psychiatric report, each prepared specifically for the purpose of sentencing for these offences. Each recounts a history of disrupted, dysfunctional family life that resulted in the prisoner's adoption at the age of six. While he has retained a relationship with both his adoptive parents he has recently re-established contact with his biological parents. He was made a State Ward at about twelve, and spent some time in boys' homes because of his habit of absconding. He has had employment, of unskilled and semi-skilled kind and has had periods of unemployment. 20 He has now established a stable de facto relationship with Cindy Rose Waters who is the mother of two children to whom the prisoner has become a supportive father. His role in this respect has become increasingly important since an incident concerning his wife's six year old daughter, the details of which need not here be recounted. Nevertheless, the principles relating to the effect of sentencing upon others are well known. This is not a case in which hardship to the prisoner's family can be taken into account to mitigate the sentence. R v Edwards (1996) 90 A Crim R 510. 21 Dr Nielssen, a forensic psychiatrist, has diagnosed the prisoner as suffering from post traumatic stress disorder as a result of the events the subject of these proceedings. The prisoner has suffered the full range of symptoms associated with that disorder, for more than five years, but they have begun to abate as the present charges approach resolution. While the prognosis is for gradual decline in the severity of the symptoms he is likely to have some lingering effects for the rest of his life and would benefit from a period of counselling to assist him to develop techniques to reduce anxiety, place the events in perspective, and assist in his emotional development. 22 He is, of course, entitled to credit for his plea of guilty. The Crown conceded that, while the pleas may at first sight appear to have been entered at a late stage, they were in fact entered at the first opportunity in that initially he had been charged with murder. As soon as the Crown signified its willingness to accept pleas to the lesser charges in full satisfaction of the indictment the prisoner offered and entered such pleas. He is therefore entitled to full credit arising from that circumstance. 23 Moreover, from the time of his arrest he has indicated a willingness to assist the authorities. He has provided an undertaking to give evidence in Lewis' forthcoming trial and the Crown concedes that this evidence is likely to be valuable, particularly in the light of doubts about the willingness of Rose to render similar assistance. If Rose does in fact decline to give evidence, the prisoner will be the only witness able to identify Lewis as having been present. He is also expected to give evidence to implicate Lewis in the arrangements to kill Ms Pang. That his evidence is likely to be significant is demonstrated by the fact that Lewis was not charged until the prisoner provided his statement to police. The prisoner gave a similar undertaking in relation to the charges against Rose but was not called upon to discharge his undertaking because Rose eventually pleaded guilty. 24 The prisoner has spent, in all, three months and six days in pre-sentence custody. There was some debate about whether the whole of this time should be attributed solely to the present offences, it appearing that some days might have been attributable to fine defaults, but I think the whole of the period should be treated as referable to these offences. About two months of that time was spent in the more severe conditions of protection, because of his offer of assistance. Any sentence he serves will also be served on protection. It must also be remembered that he has adhered to stringent bail conditions including regular reporting. 25 The Crown has argued that the offence is so serious as to call for a period of full time custody. Prima facie that proposition is undeniable. As I have earlier noted the prisoner can have been under no misapprehension about the seriousness of Rose's crime, and consequently of his own role that had the effect of protecting Rose. Indeed, his own psychiatric response evidenced by the condition of post traumatic stress disorder demonstrates his consciousness of the gravity of the conduct in which he was involved. 26 There is, besides the plea of guilty, evidence of genuine contrition. This, too, is shown partly by the stress disorder, partly by his plea of guilty, partly by his comprehensive admissions and information to police, and partly by his willingness to assist and give evidence. Further, he never received the payment he was promised for the assistance he gave, and never sought to do so. There was a suggestion put to him during the course of the interview that he had asked Rose for payment, but he said that he had on one occasion asked for money for cigarettes but this was not forthcoming and he considered that it was inappropriate, having regard to what he had seen and done, to seek or receive payment for his involvement. 27 The contrition, which I accept as genuine, the psychiatric report, and the evidence of his de facto persuade me that rehabilitation has effectively been achieved. This means that considerations of personal deterrence may be given marginal importance. 28 In my view the most serious aspect of the prisoner's conduct was the long period of non disclosure during which it must have seemed likely that Rose would escape the consequences of his conduct. In this respect I cannot overlook the fact that the prisoner declined to give sworn evidence in the sentencing proceedings. His counsel pointed to a good deal of material contained in the record of interview which goes some way to explain his silence. There were a number of occasions on which he said that Rose had threatened him with serious consequences if he disclosed what he knew. It does not take a great deal of imagination to accept that, having observed what Rose had done, the prisoner would be likely to have taken these threats seriously. He well knew what Rose was capable of. Moreover, Rose had an association with a corrupt police officer, Alan Robert Thomas, who was, on 1 June 1998, sentenced in relation to a large number of serious offences, including failing to disclose Rose's involvement in the murders of Ms Pang and Ms Ozonols. I am therefore able to infer that the prisoner feared to divulge any information, although, as I have observed, there was no direct evidence from him to this effect. 29 Further, as the background reports reveal, the prisoner was, for much of his early life, deprived of those opportunities that provide the basis for sound moral judgment and strength of character that would, in a person with a less disadvantaged history, have compelled early disclosure to authorities. I am satisfied that he was simply a very young man who lacked the internal resources to appreciate what he ought to have done, and the avenues through which he could have taken appropriate action. 30 I accept, as was put on the prisoner's behalf, that the assistance he has promised to give entitles him to a discount of the highest order. 31 I take into account also that there has been a long delay since he first admitted his involvement. Of course, he can gain no credit for the period between the commission of the offences and the date of his arrest, but it is proper to have regard to the period between November 1996 and sentencing, a period of almost three years, in which he has plainly matured, and in which he has taken significant steps towards rehabilitation. In this regard I bear in mind the principles stated by Street CJ in R v Todd [1982] 2 NSWLR 517. Moreover, during the whole of that time he had the threat of a murder charge hanging over his head. 32 In the ordinary course, having regard to the objective seriousness of these offences, it is incontestable that a sentence of full time custody should be imposed. I have concluded, however, that, in this case, such a sentence is not called for. The factors which lead me to that conclusion are:-