Regina v Hill [2000] NSWSC 259

New South Wales Supreme Court

CITATION : Regina v Hill [2000] NSWSC 259 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70033/1999 HEARING DATE(S) : 20, 21, 22 and 23, March 2000 JUDGMENT DATE : 27 March 2000

PARTIES : Regina v Robert John Hill JUDGMENT OF : O'Keefe J

COUNSEL : Ms W Robinson QC (Crown) John Booth for the Prisoner Solicitor for Public Prosecutions SYDNEY N S W 2000 SOLICITORS : For Plaintiff

Legal Aid Commission of New South Wales For Defendant CATCHWORDS : Murder - Maliciously discharging a firearm with intent to do grievious bodily harm - Sentence LEGISLATION CITED : Crimes Act 1900, s.19A, s.431B Sentencing Act 1989 DECISION : Murder 1 - Sentenced to minimum term of 30 years, additional term, life; Murder 2 - Sentenced to minimum term of 25 years, additional term, life; Malicious discharge of firearm with intent (1) - Sentenced to minimum term of 9 years, additional term, 3 years; Malicious discharge of firearm with intent (2) - Sentenced to minimum term of 9 years, additional term, 3 years; Prisoner eligible for parole or release: ; Sentence 1 - 23 February 2029; Sentence 2 - 23 February, 2024; Sentence 3 - 28 February, 2008; Sentence 4 - 23 February, 2008.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

O'KEEFE J

DATE: Monday, 27 March 2000

No: 70033/99 - REGINA v ROBERT JOHN HILL JUDGMENT

1 HIS HONOUR: Robert John Hill (the Prisoner) was charged with murdering Bradley James Watson (Mr Watson) and Wayne Lawrence John O'Shea (Mr O'Shea). He pleaded guilty to both these charges. He was also charged with wounding with intent to murder Michael Rasic (Mr Rasic) and Wendy Joy O'Shea (Mrs O'Shea) and with maliciously discharging a firearm with intent to do grievous bodily harm to both Mr Rasic and Mrs O'Shea. The Crown accepted a plea to the charges of maliciously discharging a firearm with intent to do grievous bodily harm to Mr Rasic and Mrs O'Shea. The offences were committed on 21 February 1999 at Berkeley Vale, New South Wales between 2.00 and 3.00 in the afternoon. 2 Immediately prior to the commission of the offences the prisoner had been residing in an industrial unit within an industrial estate at Apprentice Drive, Berkeley Vale. The unit in which he was living was Unit 8. Next to his unit, and separated by a fibrous plaster partition, was a wood working or joinery works conducted by two men, Neville and Barry. Next to Unit 7 was a unit (No. 6) in which Bradley James Watson (Mr Watson) and Michael John Rasic (Mr Rasic) conducted their business of metal working. 3 The industrial estate consisted of two parallel rows of units. The units, 6, 7 and 8 to which I have just referred were in the front row. There was a bitumen roadway that extended along the front of each of the units in that row, giving access to a roller shutter door and a conventional doorway that formed a standard front for each of the units in the complex. 4 At the rear of each of the units there was a conventional doorway which led to an open space which also had a bitumenised access roadway as well as grassed areas. On the opposite side of the bitumen roadway to the rear of the units in the front part of the complex was another set of units. They were of the same construction and general lay out as those in the front section of the complex. They too had roller shutters and conventional doorways in the front and were similarly numbered to the units in the front row. 5 The day of the offences, 21 February 1999, was a Sunday. From the video records and photographs taken on that day it is obvious that it was a lovely sunny summer day. Although it was a Sunday, Mr Watson and Mr Rasic came to work to fulfil some orders so that their relatively new business would prosper. They were in fact exhibiting the work ethic characteristic of many small business enterprises in our country. The evidence reveals that they were decent, law abiding, hardworking men. 6 In Unit 6 in the back set of units, was an electrical switch gear business conducted by Wayne Lawrence John O'Shea (Mr O'Shea) and his wife, Wendy Joy O'Shea (Mrs O'Shea). They came to their place of work on this Sunday in order to retrieve some papers so that they could work on them at home. The evidence reveals that Mr and Mrs O'Shea, like Mr Watson and Mr Rasic, were hardworking, law abiding, decent citizens who were conducting their own business. 7 The occupants of Unit 7 had apparently, at an earlier time, chided the prisoner for playing music very loudly in his unit during the course of the day. The prisoner was at the relevant time not in employment and had not been employed for some time. He frequently remained in unit 8 all or most of the day playing music. On the day of the offences the prisoner claims, and he is supported somewhat by Teresa Ellis a girlfriend with whom he was having a relationship, that he heard music, which he described as loud, coming from unit 7. As it happened, at the time of the offences, neither of the occupants of unit 7 was in the unit. They had left. However, the prisoner claims that the music was still playing and he, clearly believing that they were still in unit 7, got dressed into a leather jacket, boots, leg protectors and a large raincoat garment, known as a Drizabone. He then got a Winchester Magnum .22 calibre rifle and smashed his way through the partition separating the unit he was occupying from unit 7. Finding that there was no one there he trashed the place, smashing two radios, a wall telephone and a number of other items that were in the unit. This destruction was clearly an act of vengeance. It was deliberate and unwarranted. 8 Not satisfied with the damage he had caused to the property of those who were the object of his annoyance or anger, he went out of unit 7, back through his own unit to a spot just outside the front of unit 6. The door of that unit was open and Mr Watson and Mr Rasic were plying their trade. Mr Watson was welding; Mr Rasic using a grinder and as a consequence wearing ear muffs. 9 Notwithstanding his ear muffs, Mr Rasic heard a noise and looking up saw the prisoner. Although he was aware that the prisoner had something in his hands, Mr Rasic was unable to see what it was because of the position of the prisoner's hands and the work tables and other materials that were between Mr Rasic and the prisoner. Mr Rasic says that when he looked up and around and saw the prisoner, he was not able to see his workmate Mr Watson. This is clearly because Mr Watson had already been shot and, although not yet dead, had slumped to the ground. 10 Mr Rasic quickly became aware of what it was that the prisoner had in his hands. The prisoner raised his hands. They were holding the Winchester rifle. Mr. Rasic saw the prisoner take deliberate and careful aim at him. Mr Rasic, believing that he was about to be shot, raised his left arm and placed it across his body. It is probable that this action saved his life. At the same time he said the word, "sorry", thinking that the prisoner was angry with him because he had reported to the management of the complex that the prisoner was living in unit 8 although, apparently, this was not permitted under the rules governing the conduct of the complex. However that may be, he had no sooner said the word "sorry" than he felt a stinging pain in his left elbow. He too had been shot, although he did not realise it at the time and was unaware that the bullet, having hit his elbow then had entered his chest and lodged in his lung close to his aorta. Un-beknowns to him at that time, Mr Rasic had narrowly escaped death, by only some 3 mm in fact. However, because of the plea accepted by the Crown in relation to this act, I am limited in conclusions to which I can come in relation to the intention of the prisoner. 11 Understandably terrified for his life, Mr Rasic threw himself to the floor, rolled under a table and then made as speedy an escape from the unit as was possible. On exiting the unit he immediately stepped to the left a couple of paces to take himself out of view, and hence line of fire, of the gunman in unit 6. 12 Mr Watson had fallen to the floor and was bleeding fairly profusely from his neck wound. Whilst he was in that position the prisoner came up to him and deliberately shot him through in the head, blowing his brains out and killing him instantly. It was brutal. It was callous. It was deliberate. It was a coup de grace; an execution. 13 After leaving Unit 6, Mr Rasic ran from the complex as fast as his condition would allow. He sustained no further injury and neither heard nor saw anything more until he observed the prisoner making his escape from the scene in a Volkswagon car. 14 Mr and Mrs O'Shea had just left and locked their work unit and were in the course of walking to their Volkswagon commercial vehicle. They heard a loud noise which Mrs O'Shea thought might have been an explosion of some kind as a result of some industrial mishap in unit 6. Mr O'Shea said, "Somebody might be hurt, I'll go and have a look". He then, anxious to be of assistance, changed course and headed towards unit 6. He was acting out of concern for his neighbours, a good Samaritan. 15 Mrs O'Shea concerned that she may be confronted with a distressing scene as a result of the accident moved towards their van to gain her composure. At about that time she saw a man, in work clothes, running from the back of unit 6 and continuing up the bitumen driveway towards Apprentice Drive. It was obviously Mr Rasic escaping from the prisoner. 16 Mrs O'Shea then heard her husband say: "Wendy I have been shot". Mr Rasic says he heard a woman scream, saw Mr O'Shea on his knees and heard him yell, "Run darl, I've been shot". Mrs O'Shea continued screaming. She looked over and saw her husband slumped down on a grass patch that runs along the back of a car park. He was not yet dead, but whilst his life was clearly close to its end, his concern was for the safety of his spouse. He was only 39. 17 At the same time as Mrs O'Shea saw her husband on the grassed area to which I have referred, she also saw another man. It was the prisoner. He was standing just out of the open door of Unit 6 and was holding a rifle, a long one, above waist height. She saw the prisoner point it in the general direction of Mr O'Shea. Mrs O'Shea's impression of the man was that he reminded her "Of a calm, cool, cowboy type in a Western movie". No doubt this impression was assisted by the fact that the prisoner had, before breaking through the partitioning into unit 7, donned, inter alia, his Drizabone waterproof coat. It is a coat of a type commonly worn by country people, including those who are mustering or attending to stock. I shall return to the donning of clothing by the prisoner a little later. 18 On seeing the prisoner, Mrs O'Shea tried to hide behind the O'Shea's van. From this position she saw the prisoner walk towards the van. He was obviously looking for her, in effect stalking her. He appeared calm, didn't run or do anything else that suggested agitation. The prisoner then saw Mrs O'Shea. His response was to raise his rifle to take aim. She believed that he was about to fire and ran for her life. Fortunately for her she remembered thinking of the movies and as a consequence she zigzagged as she ran so that "The man with the gun couldn't take a straight aim at me and shoot me". Nevertheless, as she ran she felt a push from behind on her left side and looking she saw blood spurting from her left shoulder area. The prisoner had shot her in the back as she fled the scene. Again, because of the plea accepted by the Crown in relation to this act, I am limited in the conclusions to which I can come in relation to the intentions of the prisoner. 19 When the crime scene was examined by forensic police later that day, two expended cartridge cases were found outside, but proximate to, the front door of unit 6. These would seem undoubtedly to be the cartridges from the two bullets that had been first fired at Mr Watson and Mr Rasic respectively. Inside unit 6 a misfired cartridge and two fired cartridge cases were found, one in reasonably close proximity to the body of Mr Watson and another under shelves in that general area. At the rear of the premises in close proximity to the O'Shea's van two fired cartridge cases and one misfired cartridge were found. This means that the prisoner discharged or tried to discharged a total of eight bullets, two of which misfired and four of the other six of which hit their targets killing two and quite seriously wounding another two. THE LEAD UP: 20 The evidence reveals that the prisoner stayed with Sandra Wilson at 10 Birdwood Avenue, Blue Haven on the nights of Friday, 19 February and Saturday, 20 February, 1999. Whilst he had been drinking before he drove over to Ms. Wilson's house that first night, although he was in no condition to drive, he had nothing to drink on the Friday night at Ms. Wilson's nor at any time while she was with him during the Saturday on the night of which they watched a movie together. Her evidence was that he did not take any pill or abuse alcohol at that time. He left at about 8 o'clock on the morning of Sunday, 21 February, 1999 and when he did so he was "stone cold sober". 21 His relationship with Ms. Wilson had been intimate but intermittent. She had left her husband in August, 1998 and had formed an association with the prisoner which would break up, reform, break up again and reform again because the two of them, according to Ms. Wilson "could not stay apart" (T70). She had told him on several occasions that she wanted to end the relationship because he had no job, no motivation, an outstanding sentence for community service and would drink heavily. However, he would then ring Ms. Wilson tell her he was going to commit suicide and she would take him back.. 22 Having left Ms. Wilson's premises on the morning of Sunday, 2l February, 1999, the prisoner went to his Unit No. 8 at Apprentice Drive, Berkeley Vale. A young woman of 21, Teresa Louise Ellis, was there. She had met the prisoner through Tina Jersov with whom the prisoner had previously had a relationship and who had born him a female child. At the time Ms Ellis met up with the prisoner, he had just broken up with Ms. Jersov. At that time, he was using amphetamines and indulging excessively in alcohol and would deliberately "trash things" belonging to Ms. Jersov. 23 Ms. Ellis and the prisoner formed an association of a sexual nature. Ms. Ellis had left her husband and planned on moving into the unit at Berkeley Vale. She did so and lived there for some time together with the prisoner. However, he would be away at night from time to time and she thought, correctly as it emerged, that he had another girlfriend. Subsequently, the two of them parted but shortly before the events the subject of the charges, Ms. Ellis returned to Unit 8 in the industrial complex at Apprentice Drive, Berkeley Vale. 24 Ms. Ellis' evidence reveals that the prisoner stayed with her on the night of Thursday, 18 February, 1999 and then the two of them spent most of the day Friday in Unit 8 playing music and watching videos. However, on the Friday night he did not remain in the unit, returning at about 3.30 on the afternoon of Saturday, 20 February, 1999. There is nothing in the evidence to suggest that he was then affected by alcohol. The two of them talked and decided that they were "going to get a house together and start a new life". However, the prisoner left on Saturday evening (to go to Ms. Wilson's house) returning at 8.16 a.m. on Sunday, 21 February, 1999. Ms Ellis was in bed when he arrived but he came over to the bed and said "I promise I will never do this to you again. I'm going to stay put here with you." This almost mirrors the conversation that he had had with Ms. Wilson and part of one which he had on the telephone with Ms. Wilson after the events giving rise to the charges to which the prisoner has pleaded guilty. 25 I refer to the foregoing matters to chronicle the movements and absence of drugs and alcohol for a substantial period prior to the afternoon of 21 February, 1999 and to instance manipulative behaviour by the prisoner. I shall return to this characteristic and its significance later. 26 Having arrived back at Unit 8, the prisoner began working on the carburettor of his Volkswagon, because the vehicle had been backfiring. This apparently went on for some time and was followed by the prisoner and Ms. Ellis cleaning the car; the prisoner polishing, Ms. Ellis vacuuming. 27 During the course of the day, Ms. Ellis saw the prisoner take a tablet and saw the packet from which it was taken, thrown in the rubbish bin. The packet was later found by forensic police to be empty. The tablet was Zoloft; the dose 100 mgs. At a time before the shootings, Ms. Ellis went outside for some fresh air and saw the occupants of Unit 7 working. After the exchange of some minor pleasantries, she went back inside and discussed with the prisoner what had occurred, who told her that they had asked him to turn down the volume of the music which he was playing. According to Ms. Ellis, it was always played "reasonably loud". 28 When the car was half polished, the prisoner had some tequila and lemon Solo. Some time later, he had "another drink of tequila and a smoke". On the direct evidence from other than the prisoner, this is the only thing to indicate that the accused had had any alcohol or drugs prior to the shootings. True it is that an empty can of Jim Beam (bourbon and coke mix) was found on the floor of the garage and in the video taken on the day in question an empty Jack Daniels bottle was seen on a pile of leaves some metres from Unit 8 in a direction opposite to the route taken by the prisoner in the course of his escape. There is no evidence whatsoever as to when that bottle was placed there or by whom. As to the Jim Beam can , there is nothing to indicate when its contents were consumed or for that matter by whom. In this regard it should be remembered that Ms Ellis was with the prisoner all day except for a quite short period when she went outside for a breath of air. She did not see the prisoner consume any alcohol other than the tequila to which I have referred. 29 Shortly before the shootings, the prisoner who was then wearing a black Tshirt and a pair of black jeans, got up and took the black T-shirt off. He put on a long sleaved Harley Davidson T-shirt and then jacket over the top. He tucked it into his jeans and then put on a black leather jacket. He was wearing black leather lace up boots, but despite the fact that it was a summer's day he put leg protectors over his jeans. Whilst all this was occurring he was playing a song called "Living End" over and over, the words of which included something to the effect "No one tell us what to do". It was on a compact disc entitled "The Living End. Second solution prisoner of Society." 30 When Ms. Ellis asked why he was dressing in the way he was, he said "I'm playing a game", then he put on his Drizabone coat, some black leather gloves without fingers (of a kind that shooters commonly use) and donned a black beanie. The prisoner then proceeded to get bullets from a large cupboard, four boxes in all. He took all the bullets out of each box and put them into the pocket of his Drizabone. At this time Ms. Ellis observed a rifle on the bed. 31 Shortly after 2 p.m , Ms. Ellis received a telephone conversation with her mother, after which she informed the accused that her mother and father had agreed to give them some money "for a house". At this time, there was a radio playing in Unit 7 which was "pretty loud". The prisoner said: "The fucking cunts have left the radio on next door. If they're not working in there, I'm gunna kick the wall in and smash it."