New South Wales Supreme Court CITATION : R v Ladd [2001] NSWSC 1055 FILE NUMBER(S) : SC 70092/00 HEARING DATE(S) : 13/06/01, 17/08/01, 26/10/01 JUDGMENT DATE : 7 December 2001 PARTIES : Regina v Joseph Allan Ladd JUDGMENT OF : James J at 1 COUNSEL : HC Hamilton - Crown WC Terracini SC - Prisoner SOLICITORS : SE O'Connor - Crown Charles Aitken - Prisoner CATCHWORDS : Criminal Law - Sentencing - Manslaughter - Provocation DECISION : Sentence - Ten years. Non-parole period of seven years IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION JAMES J Friday 7 December 2001 700092/00 – R v JOSEPH ALLAN LADD SENTENCE 1 HIS HONOUR: On 13 June 2001 Joseph Allan Ladd ("the prisoner") was indicted before me on a charge that between 21 and 27 April 1999 at Albury he murdered Karl D'Helin-Lawrie ("the deceased"). To that charge the prisoner pleaded not guilty of murder but guilty of manslaughter and the Crown accepted the plea of guilty to manslaughter in full discharge of the indictment. On 13 June, on the application of the prisoner's legal representative, I adjourned the proceedings on sentence to 17 August 2001, so that a pre-sentence report could be obtained. On 17 August there was an application for a further adjournment, on the grounds that the senior counsel by whom the prisoner wished to be represented was unavailable and the proceedings were stood over to 26 October. On 26 October a substantial number of documents were tendered and the hearing of the proceedings on sentence was concluded. The prisoner did not give evidence in the proceedings on sentence. I reserved my sentencing decision, so that I could read the documents which had been admitted into evidence and give consideration to what sentence should be imposed on the prisoner. 2 In the proceedings on sentence a statement of agreed facts was tendered and admitted. This statement of agreed facts is consistent with other documents which were tendered and admitted in the proceedings on sentence, including a statement by an investigating police officer to which a chronological event chart and a summary of evidence were attached, and a transcript of an interview of the prisoner by police on 30 June 1999. The following statement of the facts of the offence is taken from the statement of agreed facts, supplemented, in a few minor respects, by other documents admitted in the proceedings on sentence. 3 In February 1999 the prisoner, who had no fixed place of residence and who had been travelling in rural New South Wales and Victoria with his son Conan, then aged nine, set up a camp in a State forest in Victoria. 4 The deceased, after the breakdown of his marriage, had moved to Albury, where he lived alone in a house. 5 At some time prior to February 1999 the prisoner had become acquainted with the deceased. On 20 February 1999 the prisoner provided the deceased's address in Albury to Centre Link as being his place of residence. In late February 1999 the prisoner and Conan lived with the deceased in his house at Albury for two or three days. 6 Subsequently, the prisoner and Conan lived in a caravan park in Victoria. The prisoner obtained casual employment, working for a man named Richard Plant on a property called "Iona". 7 After living in the caravan park for about a month, the prisoner and Conan, just after Easter (Easter Monday in 1999 was 5 April) began living with the deceased in his house in Albury. The prisoner continued to work at Iona. 8 On Thursday 22 April 1999 Mr Plant picked up the prisoner and Conan in Albury and drove them to Iona, where the prisoner worked during the day. That evening Mr Plant drove the prisoner and Conan back to Albury, where they arrived at about half past eight. 9 When the prisoner and Conan arrived at the deceased's house, the deceased and another man named Barry Ryan were in the house. 10 Barry Ryan drove the prisoner and the deceased to a hotel in Albury. This particular hotel was patronised, although not exclusively, by homosexual men and women. The deceased was known to have had a number of homosexual relationships with other patrons of the hotel. 11 When the prisoner and the deceased went to the hotel, Conan was left alone in the house. While the prisoner and Conan had been living at the deceased's house, the sleeping arrangements had been that the prisoner and Conan shared a double bed and the deceased slept in a single bed in the same room. 12 At the hotel the prisoner and the deceased played pool. The deceased left the hotel between half past nine and ten o'clock and returned to his home. The prisoner remained at the hotel. 13 After the deceased had returned home, he drank some wine from a wine cask. According to what Conan told police in a statement, which I accept, the deceased then came into the bedroom and told Conan that he would sleep on the other side of the double bed from Conan for a couple of hours, before returning to the hotel. According to what Conan told police, which I accept, Conan was fully dressed and there was a doona separating him from the deceased. 14 The prisoner had remained at the hotel, playing pool. At the hotel he drank beer and wine. He became concerned about Conan. When later interviewed by police the prisoner said, "well, I think I was in control of my facilities (sic). I knew that it was time to go home. I was worried about Conan because Karl had disappeared". 15 I accept that the prisoner was worried about Conan. While the prisoner and Conan had been living in the same house as the deceased, the prisoner had observed the deceased cuddling and touching Conan. The prisoner knew that the deceased was upset about losing access to his own children through the breakdown of his marriage and thought that this might explain the deceased's conduct towards Conan. 16 Some time after about a quarter to eleven the prisoner took a taxi to the deceased's home. He took with him from the hotel a full bottle of Ginger Wine of a type which he had been drinking at the hotel. On entering the bedroom of the deceased's house, the prisoner saw the deceased and Conan in the bed. He threw the wine bottle at the deceased and the bottle struck the deceased on the head. The prisoner then struck the deceased around his head with his hand or fist. When later interviewed by the police, the prisoner said, "I sort of spun out a little. I freaked out". I accept that the prisoner lost his self-control. When interviewed by police, the prisoner claimed that he did not remember hitting the deceased with his hand or fist more than once. In the light of evidence from a forensic pathologist to which I will refer later in these remarks, I do not accept that the prisoner hit the deceased only once. 17 The following questions and answers occurred in the interview of the prisoner by the police on 30 June 1999. All these questions and answers are included in the agreed statement of facts. A.187 …"when I came back Carl was in bed with Conan and I've just walked through the door and spat it, because he had no right to be whereabouts he was. And, and I had a bottle of Stone's in me hand and I threw the bottle of Stone's at him, I grabbed Conan out of the other side of the bed, give him (the deceased) a smack in the head on the way out and then sort of sat with Conan for the night…" Q.188 And what did you actually see when you got to the bedroom? A. I seen Carl in bed with Conan. Q.189 Were they asleep or were they awake? A. Well, he was, they were moving, so, well, one of 'em moved anyhow, and I just, with my fears of earlier and seeing Carl in bed I just seen red. Q.190 Did you, was Carl doing anything to Conan when you walked in? A. Mate, I have no idea. All right. I just seen him in the bed with Conan and just let fly. Q.191 So you wouldn't know if they were asleep or awake? A. Well, it seemed to me that Carl was moving back from Conan's side of the bed, because I, I move around fairly quietly. Q.193 When you pulled Conan out of the bed, was he dressed? A. No, Conan was in a T-shirt and no pants, and normally when Conan goes to bed he, he wears pants and a shirt of some sort, that's just something that I've brought him up to do. Q.201 When you pulled Conan out of bed, what happened then? A. I showered Conan, I sat and talked with him all night. Q.202 Did he tell you anything about what had occurred in there? A. Not a great deal, he, he was, he was sort of spun out a bit, I guess". 18 Asked if Conan had ever told him what had happened, the prisoner said:- "He (Conan) he just, he reckons that Carl got into bed and was cuddling him and, and that there was nothing going on, but Carl was running his hands over, over his body and, and that he was, when he got into bed he said he was only gunna be there for a couple of hours and Conan took it for granted that that was O.K. I dunno he was pretty spun 19 In another part of the interview the prisoner said:- "….I never went near him (the deceased) again until the next morning. And when I did I walked into the room and, mate, I, I seen him and I've just thought, shit, and I kind of spun out a bit… And I figured that he was still breathing and, and that someone would come along and find him, because he always had people in and out of the house". 20 On the morning of 23 April 1999 Mr Plant collected the prisoner and Conan to take them to Iona. The prisoner told Mr Plant, "I give a bloke a real bad flogging last night. I caught a bloke in bed with Conan. It was Karl, the bloke I live with". Mr Plant told the prisoner that he did not want to hear any more. The prisoner later told Mr Plant that he had hurt the deceased "pretty bad" but the deceased had still been breathing when the prisoner left. 21 On the evening of 23 April 1999 the prisoner stayed at the home of a friend Annette Mullinder at Chiltern. The prisoner said to Annette Mullinder;- "Last night I went to the pub and there was a pool comp. Karl left and I thought there was something wrong because Conan was asleep in (bed) at his house, it was something about Karl's manner. A bit later I went back to Karl's and found him in bed with Conan". 22 The prisoner told Ms Mullinder that he had "messed (the deceased) up pretty bad". 23 On the morning of Monday 26 April the dead body of the deceased was discovered in his home. The deceased had clothing on the lower half of his body, but no clothing on the upper half of his body. His body was covered by a doona up to the upper part of his back. Police formed the view that the deceased's head was on or close to the pillow on the bed, at the time the injuries to his head were inflicted and that there had been minimal movement of the deceased's body from the time the injuries were inflicted. I accept these opinions formed by the police. 24 The prisoner had continued staying with Ms Mullinder and working for Mr Plant. A report of the deceased's death appeared in a local newspaper on 27 April 1999. On 27 April 1999 the prisoner telephoned Mr Plant about work arrangements. Mr Plant, who had read the newspaper, advised the prisoner to read the newspaper and then telephone Mr Plant. The prisoner read the newspaper and told Ms Mullinder that he would have to leave. 25 When later interviewed by the police, the prisoner claimed that on reading the report of the deceased's death in the newspaper he had felt stressed and not pleased. He claimed that he had felt remorse. I accept that, on reading the report in the newspaper of the deceased's death, the prisoner felt stressed. However, I am not satisfied that he felt any remorse. 26 The prisoner, Conan and Ms Mullinder left Ms Mullinder's home at Chiltern and travelled together through various parts of rural Victoria. During these travels the prisoner told a friend, a man named Diggle, "I'm in a bit of trouble. A bloke tried to molest my son and I biffed him pretty bad and I've had to get out". The prisoner asked Mr Diggle whether he could stay with him but Mr Diggle refused. 27 The prisoner and Conan separated from Ms Mullinder and the prisoner and Conan went to South Australia. The prisoner later returned to Victoria and on 23 June 1999 he against contacted Mr Diggle. While they were in a car together, Mr Diggle asked the prisoner what had happened and the prisoner replied:- "I was drinking with the guy at the pub and playing pool with him. He left early to go home, I became suspicious because I had heard a lot of talk going around about this guy and his ex-wife and that he was messing around with young boys. I was carrying a bottle which I was drinking out of (I think he said it was Stones Green Ginger Wine) and I hit him over the head with the bottle. I got Conan out of bed and went and sat outside with him and we both went to sleep. Later on I went back inside and saw that he was still alive and that there was (blood) everywhere. I had already made arrangements to stay with my girlfriend for the weekend so we both left". 28 Mr Diggle informed the Victorian police and the prisoner was arrested on 30 June 1999. On the same day the prisoner was interviewed by police and made extensive admissions. 29 An autopsy on the dead body of the deceased was performed by forensic pathologist Dr Paul Botterill on 27 April 1999. 30 In Dr Botterill's opinion the deceased had died on "approximately 25-26 April". 31 In his report Dr Botterill said:- "In plain terms, autopsy findings included a broken skull with blood over the surface of the brain, evidence of inhaled and swallowed blood. At the time of autopsy, the cause of death was believed to be head injury of blunt force type. It was not clear at the time of autopsy what weapon was used, but the distribution of bruising and the severity of fracturing was in keeping with multiple blows. The relative possible contribution of the relatively thin skull was difficult to quantitate. Examination of the brain showed extensive cortical contusion and lacerations, haemorrhages of pons, corpus callosum, cerebellum, ventricles, subarachnoid & subdural spaces..' 32 Dr Botterill observed a number of abrasions on the head and swelling and bruising on the bridge of the nose and in the right orbit. 33 Dr Botterill found:- "There was a complicated array of fractures over the right temporal and parietal skull, with extension across the midline to involve the left parietal skull and extension into the petrous temporal bone and to the right occipital bone. An approximately 60 mm diameter depressed fracture defect was noted over the right parietal skull..". 34 In the proceedings on sentence counsel for the Crown said that the Crown had accepted the plea of guilty to manslaughter, on the basis that the prisoner's offence was reduced from murder to manslaughter by reason of provocation. 35 It is part of my function as the sentencing judge to determine on what basis the prisoner should be regarded as guilty of manslaughter, but, after considering the matter for myself, I agree that the prisoner should be regarded as guilty of manslaughter, on the basis that the prisoner's acts causing the death of the deceased were done under provocation. 36 I am satisfied beyond reasonable doubt that the prisoner had an intent sufficient for the crime of murder. Although I am not satisfied that he had an intent to kill the deceased, I am satisfied beyond reasonable doubt that he had an intent to inflict grievous bodily harm on the deceased. However, I accept that the prisoner, already suspecting that the deceased might be touching his nine year old son in a sexual way, on seeing the deceased in the same bed as his son believed that the deceased had been molesting his son, lost his self-control and with the intention of inflicting really serious bodily injury immediately did the acts of violently striking the deceased on the head which caused the death of the deceased, while he was deprived of his self-control. What the prisoner believed was the conduct of the deceased towards his nine year old son was conduct affecting the prisoner, within the meaning of that expression in s 23 of the Crimes Act dealing with provocation. It is not necessary to determine, and it is not possible for me to determine, whether there had in fact been any improper conduct by the deceased towards Conan. I am satisfied beyond reasonable doubt that the prisoner punched the deceased a number of times on the head with considerable force, while the deceased was immobile in the bed. The deceased did not die immediately and was still alive when the prisoner left the house the following morning. 37 As I have already noted, the prisoner did not give evidence in the proceedings on sentence. Some of the subjective circumstances of the prisoner appear in the pre-sentence report prepared by an officer of the Probation and Parole Service. 38 The prisoner was born on 6 February 1958 and was, accordingly, forty-one years old, at the time of committing the offence and is now forty-three years old. 39 The prisoner told the author of the report that he would not be fully forthcoming about details of his life because "he considers that authorities are prone to 'twisting' the truth of information which is provided to them". The author of the report noted that very little of the information in the report had been independently verified. According to the prisoner, he had lived a nomadic life since he was about fifteen years old. The prisoner would not nominate anybody who could confirm what he said about his background. 40 The pre-sentence report does record that the prisoner was born in New South Wales in the Hay area, that his parents separated when he was seven years old, that he was raised by his father, that he left school when he was fourteen or fifteen years old, that he subsequently lived a nomadic life working in various unskilled positions, that, apart from Conan, he has a daughter now aged seventeen from an earlier de facto relationship and that, while in prison in Western Australia, he completed two and a half years of a science degree by correspondence but did not complete the course after he was released from custody. The prisoner is a binge drinker and most of his offending has been alcohol related. 41 The author of the pre-sentence report says in the report:- "Mr Ladd accepted responsibility for his offending in the context of provocation. He did not consider that he was in need of any assistance or professional intervention for any problems or issues in his life including alcohol, anger or violence or any factors relevant to his offending behaviour. This Service remains concerned over the issue of violence and Mr Ladd's failure to recognise the impact and relevance to himself and others. He clearly indicated that he does not wish to be supervised on parole upon his release. He advised that upon his eventual release he will resume his nomadic lifestyle". 42 There is some, but not much, additional information about the prisoner's subjective circumstances in a report by a clinical psychologist. I have taken all of this report into account. 43 The prisoner has a criminal history in New South Wales, Queensland, Victoria and Western Australia. In that criminal history there are three convictions which are particularly relevant to the sentencing of the prisoner for the present offence. 44 On 26 October 1999 the prisoner was sentenced in the Queanbeyan District Court, for an offence of assault occasioning actual bodily harm committed on 12 November 1998, to a fixed term of imprisonment of four months to date from 30 June 1999 and, for an offence of maliciously inflicting grievous bodily harm committed on 25 November 1998, to a term of imprisonment for three years with a minimum term or non-parole period of eighteen months commencing on 30 October 1999 and expiring on 29 April 2001. The victim of both offences was a thirty-four year old woman with whom the prisoner had become acquainted. On 12 November 1998 the prisoner, who had been drinking, accused the victim of making fun of him. He struck her across the face and grabbed her by the throat. A little later the same day the prisoner struck the victim on the head with a whiskey bottle, breaking the bottle and rendering the victim unconscious. As a result of these assaults the victim suffered cuts to her head, lips and mouth and bruising to her jaw, throat and ears. On 25 November 1998, after the prisoner had been drinking, an argument developed between the prisoner and the victim. The prisoner struck the victim on the head with a heavy torch breaking her nose. The victim fell to the ground and the prisoner kicked her in the back and ribs. The prisoner then struck the victim on the back of her head with an iron bar and then struck her several times around the legs with the iron bar. The victim suffered a broken nose, a fractured skull, lacerations to the back of her head and bruising to her feet and legs. 45 However, the most serious previous offence committed by the prisoner was an offence of murder committed in Western Australia on or about 29 May 1977. A man who had been with the prisoner at the time the murder was committed reported the offence to police and the following account of the facts of the offence is taken from a statement this man made to the police, which was admitted into evidence in the present proceedings on sentence. 46 The prisoner and the other man met an aboriginal woman in a hotel in a remote part of Western Australia. The woman agreed to have sexual relations with the prisoner and the other man. The three of them left the hotel together and went into some bushland. The prisoner and then the other man had sexual intercourse with the woman. The prisoner physically assaulted the woman and then had sexual intercourse with her again. Subsequently, the prisoner grabbed the woman, forced her to the ground and strangled her with his bare hands. The prisoner and the other man dug a shallow grave and buried the woman's body. After the other man had reported what had happened to the police, the prisoner was arrested and confessed to having committed the offence. 47 On 11 November 1977 the prisoner was sentenced to imprisonment for life for murder. Under the law then in force in Western Australia the only sentence which could have been imposed on the prisoner was imprisonment for life. 48 According to a report by the Western Australian Parole Board of 20 February 1982 and a submission made by the Western Australian Attorney-General to the Western Australian Cabinet on 12 January 1983, which was largely based on the report by the Parole Board, the prisoner had made very good progress while in prison. According to the report and the submission, the prisoner seemed to have succeeded in gaining some control over his aggressive tendencies. While in custody he had pursued academic studies and in a period of about three years had progressed from receiving remedial tuition in mathematics to gaining university entrance in mathematics. According to the report from the Parole Board, the prisoner had presented no management problems and had been a model prisoner. 49 The prisoner was released on parole in Western Australia in May 1985. 50 In determining what sentence should be imposed, it is necessary, as counsel for the Crown submitted and as counsel for the prisoner accepted, to have regard to the principles stated by the High Court in Veen v The Queen (No.2) (1987-88) 164 CLR 465 at 477. 51 According to those principles, it is necessary to keep in mind that the prisoner has already been punished for the murder he committed in Western Australia in 1977 and for the offences involving physical violence which he committed in November 1998. He is not to receive any further penalty for those offences. He is not, by reason of having committed those offences, to receive a penalty which is disproportionate to the gravity of the present offence. However, the prisoner's antecedent criminal history, even allowing for the time which has elapsed since the commission of the murder in Western Australia, is relevant as showing a continuing dangerous propensity to serious violence on the part of the prisoner. Considerations of retribution and protection of society and, even though the present offence was committed under provocation, deterrence, all indicate that a more severe penalty should be imposed, than would be warranted by the facts of the present offence, if the offence had been committed by a person without any criminal history. 52 As I have already noted, the prisoner pleaded guilty to having committed manslaughter. The Crown accepted that there should be some discount for the utilitarian value of the plea of guilty. The plea of guilty was an early plea of guilty, in the sense that it was entered shortly after the Crown had notified the prisoner that it would accept a plea of guilty to manslaughter. Counsel for the Crown estimated that, if the prisoner had not pleaded guilty and had stood trial, the trial would have lasted about four weeks. I consider that I should allow a discount of about twenty per cent for the utilitarian value of the plea of guilty. 53 Apart from pleading guilty in June 2001, the prisoner, on being arrested on 30 June 1999, co-operated with police investigating the death of the deceased and, on the same day as he was arrested, the prisoner participated in a long electronically recorded interview, in which he made extensive admissions. As against this co-operation by the prisoner after he had been arrested, the prisoner had not on 22 or 23 April 1999 reported that the deceased had been assaulted and the prisoner had left Albury as soon as he became aware of the death of the deceased. 54 I do not consider that the prisoner, despite occasional assertions by him, feels much contrition for killing the deceased. On the morning of 23 April 1999 the prisoner left the deceased's house, knowing that the deceased had been seriously injured and knowing that the deceased was still alive but did nothing to notify anyone in authority of the deceased's plight. I accept that the prisoner believed that someone would probably come to the deceased's house and discover the deceased, while the deceased was still alive. 55 I turn to the prisoner's prospects of rehabilitation and to the related question of whether I should find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. The prisoner is a person with potential. He performed well when he was in custody in Western Australia between 1997 and 1985. I infer that Mr Plant, who took the trouble to transport the prisoner between Albury and Iona, found him to be a satisfactory worker. 56 However, the prisoner has serious problems arising from his abuse of alcohol, his inability to control his anger and his propensity to engage in physical violence. As I have already indicated, the author of the pre-sentence report was of the opinion that the prisoner refuses to acknowledge that he has any of these problems and would be unwilling to submit to any supervision on parole after he is released from custody. 57 However, it is possible that during a further lengthy term of imprisonment such as I will be imposing the prisoner may acquire some insight into his problems and into his need for assistance in dealing with them. I am prepared to find that the prisoner has some prospects of rehabilitation. I am also prepared to find special circumstances, on the basis that the prisoner could benefit from an extended period of conditional liberty, if he acknowledges his problems relating to his abuse of alcohol, his inability to control his anger and his propensity to engage in physical violence and submits to counselling for these problems. 58 The maximum penalty for manslaughter is imprisonment for twenty-five years. It is a truism that sentences for manslaughter vary more than the sentences for almost any other offence, because the circumstances in which the offence of manslaughter is committed vary so much. 59 In the proceedings on sentence counsel for the prisoner said that he had not been able to find any case closely comparable to the present. Counsel for the prisoner suggested that an appropriate sentence might be a sentence in which the non-parole period was in the order of eight years. However, he submitted that the commencement of the sentence should be backdated to 30 June 1999, the date on which the prisoner was arrested. Counsel conceded that the prisoner's custody between 30 June 1999 and 29 April 2001 was not solely referable to the offence for which I am sentencing him and, on ordinary principles, the commencement of the sentence should not be backdated to 30 June 1999. However, it was submitted that, if, after being arrested on 30 June 1999, the prisoner had been sentenced at the same time for both the offence of manslaughter for which he is presently being sentenced and the two offences for which he was sentenced in Queanbeyan District Court on 26 October 1999, the sentence for manslaughter, as being the sentence for the most serious offence, would have been the longest sentence and the sentences for the other two offences would have been shorter and would have been made fully concurrent with the non-parole period of the sentence for manslaughter. What in fact had happened was that the prisoner was sentenced first for the two less serious offences. 60 Counsel for the Crown in the proceedings on sentence submitted that a somewhat higher sentence than the sentence suggested by counsel for the prisoner would be appropriate. 61 Although there is some force in the submission made by counsel for the prisoner, I do not consider that I should backdate the commencement of the sentence for manslaughter to 30 June 1999. The two offences for which the prisoner was sentenced in Queanbeyan District Court on 25 October 1999 were themselves serious offences and were quite distinct from the offence of manslaughter for which I am sentencing the prisoner and the prisoner's custody up to 29 April 2001 was referable to the sentences for those two offences. I will make the sentence I impose commence from 29 April 2001. However, under the sentencing principle of totality or a similar principle, I take into account those other two sentences and the fact that the sentence I impose will be cumulative on those other two sentences. 62 Mr Ladd I sentence you to imprisonment for a term of ten years. I set a non-parole period of seven years. The sentence will have commenced on 29 April 2001. The earliest date on which you will be eligible for release on parole will be 29 April 2008. ********* Last Modified: 12/10/2001 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.