New South Wales Supreme Court CITATION : R v Carter [2001] NSWSC 1119 FILE NUMBER(S) : SC 70011/01 HEARING DATE(S) : 03/12/01 JUDGMENT DATE : 7 December 2001 PARTIES : Regina v Earl Robert Carter JUDGMENT OF : Howie J at 1 COUNSEL : P. Barnett - Crown J. Fitzgerald - Accused SOLICITORS : S.E. O'Connor - Crown Cole & Butler, Soilcitors - Accused CATCHWORDS : Criminal Law - Sentence for conviction of murder LEGISLATION CITED : Crimes Act 1900 - s 52A Crimes (Sentencing Procedure) Act 1999 - s44 CASES CITED : R v Hall [2001] NSWCCA 202 DECISION : See para 36. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 70011/01 HOWIE J Friday 7 December 2001 R v EARL ROBERT CARTER SENTENCE 1 His Honour: On 15 August 2001 the prisoner, Earl Carter, was indicted on a charge of murdering Renae Michelle Sabine on 14 May 2000. The prisoner pleaded not guilty to murder but guilty to dangerous driving causing death contrary to s 52A of the Crimes Act 1900. The Crown did not accept this plea and the trial of the prisoner on the charge of murder proceeded before the jury. 2 On 30 August 2001 the jury convicted the prisoner of murder. He was then remanded in custody until 2 November 2001 for sentence. On that day the matter was not in a position to proceed because reports and other evidence, which the prisoner wished to rely upon, had not been obtained. I adjourned the matter until today after I had received evidence and heard submissions from both counsel last week. 3 The facts upon which the prisoner is to be sentenced can be briefly stated because by having regard to the way in which the Crown case was presented to them, the jury by their verdict must have found the facts proved beyond reasonable doubt within a very narrow compass. On 13 May 2000, a party was held at 8 Drummond Street, Moree to celebrate the birthday of one of the residents, Steven Shearer. The party commenced early that evening and a large number of young persons came and went throughout the night. Most of those present consumed alcohol that they had brought with them. Despite the varying levels of intoxication of the persons who observed the events giving rise to the charge, the accounts given are generally consistent and reliable. 4 Sometime around 9.30 pm the party gravitated towards the front of the house and a fire drum was brought into the front yard so that the persons present could warm themselves. The prisoner, who was a work colleague of Mr Shearer, arrived at the party at about this time with Colin Woodward, a friend of his. He had parked his vehicle outside a block of flats in Boundary Street, around the corner and a short distance away from the residence where the party was being held. 5 Later in the evening a number of persons who were associated with the local rugby team arrived at the party. They included the deceased who had been driven to the party in a friend's Magna sedan motor vehicle. Some time later that vehicle was moved from the front of number 8 and parked on the opposite side of the road, parallel with but just off the edge of the bitumen surface. 6 During the course of the evening the prisoner became involved in an altercation with one of the persons from the rugby club, Tyson Conroy. It seems that an item had been dropped into the fire drum and the prisoner issued something of a challenge to the effect that Mr Conroy should remove this item from the fire using his bare hand. The challenge was not accepted but the prisoner reached into the drum and took out a burning ember that he held in his hand for a few seconds. This was apparently something of a party trick that the prisoner occasionally performed, using a cold drink can to insulate his hand before inserting it into the fire. Rather than appreciating this act of bravado, the group around the fire-drum derided the prisoner for what they perceived to be an act of stupidity. Unfortunately the prisoner had also performed the act incompetently and suffered significant burns to his hand. As a result of the insults and the injury, the prisoner became involved in the trading of insults with Mr Conroy. A physical altercation between the two was averted when one of Mr Conroy's group intervened and told him that it was not worth the effort. The group and the prisoner then parted company. 7 At about 1 am the prisoner and others assisted Mr Shearer in persuading people to leave the premises in order to bring the party to an end. The crowd, which included most of the persons associated with the rugby club, moved out on to the verge in front of the house. Some also moved to the other side of the road near to where the Magna vehicle had been parked. The group was considering what they might then do to entertain themselves. 8 During this time an altercation occurred between the prisoner and the deceased's boyfriend, Todd Brown. Mr Brown was in the company of a group of his friends, including the deceased and Tyson Conroy near the front gate but outside of the premises. The prisoner approached this group and said something to them that indicated he believed they were talking about his father. An argument ensued between the prisoner and Mr Brown, which culminated in the prisoner challenging the other to a fight. The deceased intervened telling the prisoner to go away. Mr Brown then commenced to ridicule the prisoner and made somewhat offensive remarks and jokes at the expense of him and his mother much to the amusement of those gathered around him including the deceased. 9 Mr Shearer, fearing that the situation was getting out of hand, suggested that the prisoner should leave. The prisoner thought that this was somewhat unjust, as he did not believe that he was responsible for the altercation with Mr Brown and his group. However, the prisoner commenced to make his way down Drummond Street towards the units where he had parked his vehicle. As he did so, Mr Brown continued to pour scorn on the prisoner. There was the evidence that the deceased herself had made some offensive remarks to the prisoner as he left. 10 As the prisoner walked down the street he occasionally turned to face the group and directed insults and threats toward them. There was evidence that the prisoner indicated that he would be back shortly and he would show them who was "chicken". There was also evidence, which I believe the jury must have accepted, that the prisoner made threats to kill them. 11 The prisoner reached the flats at Boundary Street and went towards his vehicle. Persons who were then in one of the flats gave evidence that they heard the prisoner at this time muttering about the fact that his mother had been insulted and threatening to get back at the persons who had been at the party. As the prisoner entered his vehicle preparing to drive away, two of the persons at the flats at the time, who knew him, Michael Fletcher and Ms Walton, tried to reason with him and persuade him to get out of his vehicle. However, it was to no avail and the prisoner drove the vehicle out of the yard at a fast speed losing control of it as he left the premises and entered into Boundary Street. The vehicle came to a halt off the road surface and near a fence. 12 At this time Mr Woodward, who had followed the prisoner from the party, approached the vehicle. The prisoner told him to get inside if he wanted a lift. Mr Fletcher again approached the vehicle and tried to dissuade the prisoner from driving to the site of the party. But again the prisoner ignored him and drove off at speed towards Drummond Street. This was in the opposite direction to the prisoner's home. As he turned the corner at the end of Boundary Street and into Drummond Street, the prisoner once more lost control of the vehicle. However he immediately took off again with Mr Fletcher and Ms Walton following as best they might, so concerned were they as to what might occur. 13 The prisoner proceeded at speed up Drummond Street until he was near the group of people who were standing around the Magna talking as they prepared to leave. This group included Mr Conroy who was at the boot of the vehicle, and Mr Brown who I believe was standing alongside the deceased at the driver's side of the vehicle talking to persons in the vehicle. They were situated just off the road surface and up against the motor vehicle. The deceased was leaning into the driver's window. The prisoner travelled in a relatively straight line on the correct side but near the middle of the road. However just before he reached the Magna, the prisoner swerved the vehicle to the left towards Mr Brown and those near him. 14 Mr Brown suddenly became aware of the vehicle approaching and yelled a warning to the others just before he jumped over the boot of the Magna. The deceased, however, had nowhere to go and remained where she stood. She was struck by the left side of the prisoner's vehicle and thrown into the air. She came to rest in a table drain on the left hand side of the road ahead of the Magna. She was deceased before anyone could get to her. An autopsy later revealed that the deceased had died of injuries to the head, and that she would have been rendered unconscious almost immediately. 15 The prisoner did not stop the vehicle straight away after striking the deceased but continued a few blocks before stopping in front of his mother's home. While he and Mr Woodward sat in the vehicle taking stock of what had occurred, Mr Brown arrived in the Magna. He noted the number plate of the prisoner's vehicle, before driving away. The prisoner then drove to Moree police station where he reported to a police officer that he had been involved in a hit and run accident. He told the officer that he had hit a girl and had panicked. After undergoing an alcohol breath test, which revealed a positive reading, the prisoner was placed under arrest. He admitted to police that he had struck the deceased, but said that he did not intend to hit her. A short time later, the prisoner was charged with murder. 16 The prisoner admitted consuming a substantial quantity of alcohol during the evening. In the course of his evidence at the trial, he told the jury that he felt drunk that night. The police officers who spoke with him at the police station assessed him as being moderately affected by alcohol, although he did not appear to have difficulty walking or carrying out a conversation. A breath-analysis taken sometime after 3 am produced a reading of 0.125 grams per 100 millilitres. It was the opinion of Dr Perl that at the time of the incident the prisoner would have had a blood alcohol level in the range of 0.1 to 0.15, but probably closer to the lower end of that range. 17 The prisoner gave evidence at the trial that he decided to drive his vehicle home after leaving the party, but thought that he would drive past the group outside number 8 in order to have the final word. He said that as he came towards the Magna he was forced to veer to the left to avoid persons who were in the middle of the roadway. He endeavoured to steer a course between the persons and the Magna, but that he must have struck the deceased in doing so. In effect he maintained that he swerved the vehicle as a defensive measure. 18 The jury were directed that they could find the accused guilty of murder only if they were satisfied beyond reasonable doubt that when he swerved the vehicle towards the Magna he did so as an intentional act of retribution towards those who had humiliated him. Further they were told that they must find that when he swerved the vehicle he intended by that act to kill or inflict grievous bodily harm upon some person in the vicinity of the Magna or with reckless indifference to the life of some such person. The jury, having convicted the accused, must have been satisfied beyond reasonable doubt that he drove the vehicle as an offensive act of violence. The jury were directed on provocation but in my view found that any provocation was not such as would affect a reasonable person to the degree of forming the intent to murder. 19 Mr Fitzgerald, who appeared for the prisoner, submitted that having regard to the evidence before the jury and in particular the evidence of Dr Perl to which I have referred earlier, I could not be satisfied beyond reasonable doubt that the prisoner intended either to kill some person or that he acted with reckless indifference to human life. Although Mr Fitzgerald acknowledges that I am not required to sentence the prisoner on the view most favourable to him and in accordance with the jury verdict that in this particular case I should do so having regard to the whole of the evidence placed before the jury. 20 The Crown has submitted that in the circumstances of this particular case given the nature of the means used to inflict injury or death being a motor vehicle driven at a speed estimated at between 60 and 80 kph by a person who was under the influence of intoxicating liquor, there was little point in trying to determine what particular intention the prisoner had at the time that he committed the act causing the death of the deceased. The Crown submitted that a person in the inebriated state of the prisoner would hardly have been capable of determining that he would drive the motor vehicle at a person or persons intending only to inflict grievous bodily harm on that person or persons and no more. 21 I believe there is some merit in the argument of the Crown. One can readily imagine a set of facts where the prisoner might clearly have an intention only to inflict grievous bodily harm and no further injury but then bring about the death of the deceased therefore making him liable for murder. In such a situation, the fact that the prisoner did not intend to kill the person is a significant mitigating factor in an assessment of the objective facts of the offence. But in this particular case, where as I have indicated, the prisoner was under the influence of alcohol, in a highly angry and emotional state, and using a motor vehicle driven at a relatively high speed as a weapon against unprotected persons on the side of the road, there would be little difference in his culpability for the death of one of those persons whatever might be the state of mind with which he did the act. 22 However, I have no doubt that in the present case, having regard to what the prisoner said both as he left the party, and arriving at the flats to get his motor vehicle that the jury determined that he had the intention of killing some person at the motor vehicle: that particular person being Mr Brown. 23 I have no doubt at all that the person who was the focus of the prisoner's anger was Mr Brown and not the deceased. Although I left provocation to the jury based upon statements made by the deceased at the time of the argument between the prisoner and Mr Brown and because she would have been seen by the prisoner as being in Mr Brown's camp, she was not the person who the prisoner sought to punish. It was Mr Brown with whom the prisoner had been arguing immediately before he left the party to retrieve the motor vehicle and it was Mr Brown who was the person who was heaping scorn upon him and his mother. Mr Brown was also distinguishable from most other persons in the group because he was taller than most of them. I believe that the prisoner identified Mr Brown at the Magna as he drove up the road. There was nothing to indicate to the prisoner, when he left the party, that the Magna motor vehicle was associated with the group to which Mr Brown and the deceased belonged. 24 I have no doubt that the prisoner returned to the scene intending retaliation for the injury inflicted on his pride by the group in general and Mr Brown in particular. He had twice been made a laughing stock by these persons. Although there was some evidence to suggest that Mr Brown was at the boot of the vehicle as the prisoner approached the Magna, I am satisfied that the true situation was that Mr Brown was at the side of the vehicle beside the deceased and nearest to the prisoner's vehicle as it approached. I believe that Mr Brown having seen the prisoner's vehicle approaching managed to avoid it leaving the deceased exposed and so she was struck and fatally injured. It was, therefore, the hapless deceased who felt the full brunt of the prisoner's anger which was directed at Mr Brown. 25 The offence is a serious case of murder because it was to some degree pre-meditated and because once the prisoner decided to use his vehicle as a weapon, there was a high risk of serious injury or death to any person in the vicinity of the Magna, not just Mr Brown. The prisoner had time before he reached his vehicle to reconsider what he would do, but clearly he used that period to mull over what had occurred and maintain his rage if not increase it. More significantly there were persons who tried to intervene and to reason with, and counsel, him against what he was obviously intending to do. But there is no doubt that blinded by anger and fuelled by alcohol the prisoner had lost his self-control to the point that he was incapable of being reasoned with. 26 I do take into account, although the jury clearly were persuaded that the prisoner was not acting under provocation as the law understands it, that he was provoked to some degree by what had occurred during the course of the party. That is no way intended to suggest that those persons are in any way responsible for what occurred or in the slightest could be considered responsible for the death of the deceased. 27 At the time of the incidents giving rise to the death of the deceased, the prisoner was aged 28 years. He has no relevant prior history and I treat him as a man of prior good character. There was evidence before me from the prisoner's stepmother that she had never seen the prisoner angry, violent or aggressive towards any other person even when under the influence of intoxicating liquor. She described the prisoner as a loner who generally did not mix well with persons outside his extended family and was wary of persons whom he did not know well. Mrs Carter gave evidence of the prisoner's background but little of it seems to me to be relevant to the task before me except that she indicates that at the time of the killing of the deceased the prisoner was in a stable relationship with a young lady and he had living with him his two children of a previous relationship which was a matter of significant importance to him. He was employed and apparently enjoying life. In other words there is nothing either in the prisoner's history or in his circumstances at the time of the offence that might explain his conduct on this particular night. His large extended family are prepared to assist him and support him throughout his sentence and when released. 28 There was evidence given before me by Mr Foster who had known the prisoner since 1992 due to their being employed by the same employer. Mr Foster's evidence has little relevance to the present matter except to confirm that the prisoner was generally well regarded both as a worker and as a member of the community. In particular, Mr Foster gave evidence that the prisoner was generally a shy person who tended to keep to himself even in social occasions. Mr Foster had never witnessed the prisoner acting in an aggressive manner even when under the influence of intoxicating liquor. At this stage Mr Foster indicated that he would be prepared to employ the prisoner when he is eventually released from custody. 29 In an attempt to explain why it might be that the type of person described by Mrs Carter and Mr Foster might act in the way that the prisoner did on this particular night, a psychological report was placed before me on behalf of the prisoner. Again there is nothing in the background or upbringing of the prisoner that appears to me to have any bearing on the sentencing of him for this offence except for two matters. The first is that the prisoner had a learning disability at school that resulted in him leaving school unable to read or write. He attended TAFE and acquired basic literacy skills. School apparently was not a happy experience and he was sensitive about his deficiencies in this regard. The second matter which was in the psychologist's report is his mistrust of others and his concern with social rebuff. The psychologist described him as being a person who anticipated, as well as elicited, rejection. 30 The relevance of these matters becomes apparent to me in the evidence both as to his act of misplaced bravado at the fire drum and that when challenging Mr Conroy and his group at the fire, he referred to them in terms of being "college boys". This incident appears to me to be the genesis of the anger and humiliation that resulted in the killing of the deceased. Mr Brown unfortunately simply inflamed what was already smouldering within the prisoner after that incident. At the risk of indulging in homespun psychology, I believe that the prisoner has a very large chip on his shoulder which generally results in him appearing withdrawn and mistrustful but which on this occasion fuelled his belligerent attitude to the group including Mr Conroy, Mr Brown and the deceased. His involvement with these persons and his intoxicated state resulted in what was uncharacteristic aggression. There was a clear loss of control that resulted in the action he took in driving at the Magna to inflict grievous bodily harm or death. 31 I am satisfied that the prisoner is deeply remorseful for the death of the deceased, notwithstanding the plea of not guilty to murder. I can understand that a person of the prisoner's normal disposition and character would find it incomprehensible that he could have done what he did and that this perhaps explains his denial of what was obvious on the evidence. He is of course not entitled to the benefit of a plea of guilty on utilitarian grounds but I would not find that he was devoid of compunction for what he had done. To some extent the fact that he went to the police and admitted hitting the deceased with his vehicle is real evidence of his contrition once he had regained his self-control. He appears to Mrs Carter to have been abnormally and uncharacteristically interested in death and the macabre while in custody. He is considered to be a suicide risk because of his depression. 32 I do not believe that there is any real prospect of the prisoner offending again. This incident was in my view the result of a combination of circumstances that are unlikely to recur after the prisoner is released from what must be a lengthy prison term. However, this is not to suggest that the prisoner may not need counselling or assistance both while in custody and on his release. Although special deterrence does not seem to me to have any relevance in this particular case there should be some regard to the element of general deterrence notwithstanding the relative infrequency of injuries or death caused by the intentional use of a vehicle as a weapon. Persons in the community must understand the serious consequences of using a vehicle as a means of expressing anger or as a weapon in seeking retribution or retaliation. It should be clear that a vehicle is a much more lethal weapon than a loaded gun or knife and the consequences of its use are much more difficult to control. 33 My attention was drawn to one other case which is said to have some similarities to the present and which I was asked to consider when determining the appropriate sentence to impose upon the prisoner. In R v Hall, Hidden J was required to sentence a young man after trial for murder and other serious offences of personal violence as a result of his use of a vehicle as a weapon. One person was killed and two seriously injured as a result of the accused making two passes through a group of persons one of whom had bested him in a fight. He was sentenced to effectively 20 years imprisonment. In that case the accused used the motor vehicle twice in order to injure persons. He was sentenced on the basis of acting with an intent to inflict grievous bodily harm which was apparently what the jury determined to be the basis of murder. The accused was younger than the prisoner and there was less premeditation than in the present case. The sentence imposed by Hidden J was held not to be excessive by the Court of Criminal Appeal of which I was a member, see [2001] NSWCCA 202. 34 There is nothing to be gained in this case by a consideration of statistics or other cases of murder. The sentence imposed by Hidden J was an exercise of discretion based upon his assessment of the particular facts and circumstances of the case before him, the task that I must perform based upon the facts and circumstances before me. There is material in the present case that might have given rise to a finding of special circumstances had the sentence to be imposed been less than is required to meet the offence of which the prisoner has been convicted. But the application of the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 will result in a parole period long enough in my view to provide the prisoner with what assistance he might need when released again into the community. There has been no reason suggested on material advanced that would otherwise justify a reduction in the non-parole period. 35 This is another sad case where one young life has been needlessly lost and another destroyed by events on a single occasion where alcohol and stupidity were combined. And the damage caused by the prisoner's criminal act goes further than that. Many person's lives will never be the same again. I am informed that over 350 persons attended Renae's funeral. I have received in evidence victim impact statements written by the deceased's mother, grandmother and stepfather describing the person that Renae was and what her death means to them and how it has affected their lives. That material was not admitted for the purpose of increasing the sentence to be served by the prisoner and has not been used by me in any way to aggravate the severity of his crime. But the reception of such evidence permits the family of Renae to participate in the proceedings by expressing their grief and loss as a result of her death. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters that come before it. I understand that it is particularly difficult to come to grips with the death of a treasured family member when it occurs so pointlessly and unexpectedly. The court takes this opportunity to express it's sympathy and understanding to those persons. 36 On the charge of murder the prisoner is sentenced to imprisonment for 18 years. There is to be a non-parole period of 13½ years. The sentence is to commence from 15 August 2001. That date is earlier than when the prisoner was convicted to take into account an earlier period of custody before he was released to bail. The non-parole period therefore will expire on 9 February 2015 the date upon which the prisoner will be eligible for release to parole. 37 In case anybody misunderstands the result of that sentence, it means the prisoner must remain in custody until 9 February 2015, and on that date he will be eligible to be released to parole if the Parole Board thinks it appropriate to do so. ************ Last Modified: 02/13/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.