R v Fowler [2001] NSWSC 179

New South Wales Supreme Court

CITATION : R v Fowler [2001] NSWSC 179 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70137/91 29.1.01,31/1/01,1/2/01,2/2/01,5/2/01, HEARING DATE(S) : 6/02/01,7/02/01,8/02/01,12/2/01,13/02/01 14/02/01,15/02/01,16/02/01,19/02/01, 20/02/01,21/02/01, JUDGMENT DATE : 21 February 2001

PARTIES : Regina v Geoffrey Warwick FOWLER JUDGMENT OF : Simpson J

COUNSEL : D Arnott - Crown A Haesler - Offender SOLICITORS : S E O'Connor M Rumore CATCHWORDS : Criminal Law - sentence - murder LEGISLATION CITED : Crimes (Sentencing Procedure Act (1999) CASES CITED : R v Previtera [1997] 96 A Crim R 76 DECISION : See para 28.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

21 February 2001

70137/91 REGINA v Geoffrey Warwick FOWLER SENTENCE HER HONOUR: 1 On 20 February 2001 a jury found Warwick Geoffrey Fowler guilty of the murder of Trevor Climpson. He now appears for sentence on that conviction. The murder was committed on 8 January 1988. 2 The reason for the apparently extraordinary delay is that the prisoner has twice previously been convicted on the same charge but each time successfully appealed against the conviction. 3 In one sense those facts simplify the sentencing exercise. Newman J presided over the first trial which took place between 29 September and 3 November 1993. His Honour imposed a sentence of a total term of 20 years made up of a minimum term of 15 years and an additional term of five years. 4 The prisoner, having been on bail at that time, was taken into custody on 28 October 1993 during the course of the trial. Following sentence he remained in custody until 15 November 1995 when he was granted bail after the Court of Criminal Appeal had quashed the conviction and ordered a new trial. He remained at liberty until 4 June 1997, the date he was next convicted and when he was again taken into custody. 5 On this occasion he remained incarcerated until 31 May 2000, when he was again released on bail after the Court of Criminal Appeal quashed the second conviction and again ordered a new trial. 6 Following his arrest in 1990 the prisoner was in custody for a little over a month before being granted bail. All told he spent five years, one month and 16 days in custody. 7 The sentence imposed by Dowd J following the second conviction was significantly less than that imposed by Newman J. This was partly accounted for by slightly over two years served as a result of the first conviction for which the prisoner was given credit, and partly accounted for by the view of the facts taken by Dowd J which was apparently different in some respects from the view taken by Newman J. 8 The sentence Dowd J imposed was of a total term of 13 years and 10 months, made up of a minimum term of nine years and 10 months and an additional term of four years. Had it not been for the time spent in custody following the first conviction Dowd J would have sentenced the prisoner to a term of 16 years made up of a minimum term of 12 years and an additional term of four years. 9 A recognised convention, although non-binding and subject to exceptions and discretions in sentencing following reconviction after a successful appeal, is that the second judge ordinarily does not impose a sentence more severe than was previously imposed. I consider it appropriate in this instance to observe that convention. The Crown has not argued to the contrary. 10 Although counsel for the prisoner has noted that the prisoner has undergone the undoubted stress of three trials and has, whilst at liberty, endured and complied with relatively onerous bail conditions, including regular reporting, he has not argued that the sentence now to be imposed should be any less than the sentence selected by Dowd J, other than to take account of almost three years of that sentence served before the prisoner was released on bail. 11 I am satisfied that the prisoner is not entitled to any other reductions. Notwithstanding my intention to impose a sentence that will conform with convention and with the sentence imposed by Dowd J, it is necessary that I state briefly the facts I find as the basis for the sentence. 12 Trevor Climpson died of three gunshot wounds, one to the head and two to the body, on 8 January 1988. Any of the three wounds would have caused death, two instantly and the third more slowly but, nevertheless, surely. 13 He was murdered between 9.45pm and 11pm. He was in the yard of his home at Cecil Park although, being estranged from his wife, he had not been living at that address in the previous five weeks. I am satisfied that two of the fatal shots were fired from one gun, a .357 Magnum found in the prisoner's possession at his home in Moree on execution of a search warrant in 1990. 14 The remaining bullet was fired by a gun which belonged to Trevor Climpson but which was also found during the same search of the prisoner's home in Moree. 15 The Crown case, which was entirely circumstantial, was presented by way of two alternatives. 16 Firstly, it was contended that the prisoner was the actual killer and that he fired at least one, possibly more, of the fatal bullets. The alternative was that the evidence established that the prisoner was present aiding and abetting another person who did the act or acts causing death. 17 Having regard to the evidence before him Dowd J was not satisfied beyond reasonable doubt that the prisoner was the principal offender. In this respect he appears to have differed from Newman J whose findings of fact were, of course, made on the basis of the evidence before him. Dowd J accordingly sentenced on the basis that the prisoner was an accessory and this explains in part the lesser sentence he ultimately imposed. 18 Since any of the three shots would have caused Mr Climpson's death, if I am satisfied beyond reasonable doubt that the prisoner fired any of them, then it would be legitimate to sentence him as a principal in the first degree. I consider it most likely that the prisoner fired the two shots from the Magnum but I am, in any event, satisfied beyond reasonable doubt that he fired one of the two guns and that he is, accordingly, a principal in the first degree. I record that finding of fact although, having regard to what I have earlier said, it is not my intention to sentence more severely than Dowd J who sentenced on the basis that the prisoner was proved to have been no more than an accessory. 19 Like Newman J and Dowd J I am of the view that the killing was premeditated, deliberately and carefully planned. It was committed because the prisoner believed that Mr Climpson was mistreating his wife who was the prisoner's sister. 20 A modest amount of material was put before me for sentencing purposes. This included a victim impact statement from Mr Climpson's brother, Robert Climpson, which I treat, as did Dowd J, in the only way permissible as the law stands (see R v Previtera [1997] 96 ACrimR 76.) I note the effect his brother's murder has had upon Mr Robert Climpson, and I share the sympathy that Dowd J extended, but the statement can have no effect for sentencing purposes. 21 The prisoner was born on 8 March 1947. He was 40 years of age at the time of the crime, but is now almost 54. His criminal record is of no significance and is to be disregarded for present purposes. He has been a successful businessman in Moree and his good and non-violent character was attested to, in sentencing proceedings only, by a number of witnesses. He has been married twice and has a son, Adam, from the first marriage, who was a Crown witness. He has two younger sons from his second marriage whom he has seen only once since they and their mother left the prisoner in 1990. 22 The evidence which was accepted by both Newman J and Dowd J, and now also by me, establishes that the prisoner committed the murder because of his belief that the victim was mistreating the prisoner's sister. I do not regard that as a mitigating feature. 23 The prisoner suffers some medical problems, although that was put before me only in the remarks on sentence of Dowd J and this is no evidence of his current medical condition. 24 All these circumstances were taken into account by Dowd J and are reflected in the sentence that I am about to adopt and adapt. 25 On this occasion, unlike the previous occasions, the prisoner is to be sentenced under the provisions of the Crimes (Sentencing Procedure) Act 1999. By s 44 the court is firstly to set the term of the sentence and, secondly, to set a non-parole period. The non-parole period must be not less than three quarters of the term of the sentence unless the court decides there are special circumstances justifying such a sentence. 26 A parallel provision applied when Dowd J sentenced the prisoner, s 5 of the Sentencing Act 1989. His Honour considered the question of special circumstances but found none, other than such as would entitle him to adjust the sentence to take account of the time already served and that was what he did. I agree with his Honour's reasoning and propose to follow it. 27 The sentence I impose will therefore be one of imprisonment for 10 years and 10 months, with a non-parole period of six years and 10 months. I am conscious that such a sentence would, to a person uninformed of the history I have accounted, appear inadequate for a murder conviction, particularly a premeditated, cold-blooded murder as this one was. The sentence, however, must be seen in the light of more than five years the prisoner has already spent in custody as a direct result of this crime. It is, in truth, an effective sentence of 16 years with a non-parole period of 12 years, of which part has already been served. 28 Warwick Geoffrey Fowler, will you stand up please? You are convicted of the murder of Trevor Climpson. You are sentenced to imprisonment for 10 years and 10 months commencing on 20 February 2001, with a non-parole period of six years and 10 months. *********