New South Wales Supreme Court CITATION : REGINA v. LULHAM [2000] NSWSC 703 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70200 of 1999 HEARING DATE(S) : 24/8/99; 7/12/99; 18/7/00 JUDGMENT DATE : 18 July 2000 PARTIES : REGINA v. LULHAM, Dean Richard JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: P. Barnett Offender: B. Murphy SOLICITORS : Crown: S.E. O'Connor Offender: Mark Klees Associates CATCHWORDS : Criminal law - murder - sentence - parity - accessory and principal. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Previtera (1997) 94 A. Crim. R. 76 CASES CITED : Postiglione (1997) 98 A. Crim. R. 134 Hodges (1997) 95 A. Crim. R. 85 DECISION : Imprisonment for 18 years - non-parole period of 13 and a half years IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70200 of 1999 GREG JAMES, J. TUESDAY 18 JULY 2000 REGINA v. DEAN RICHARD LULHAM SENTENCE 1 HIS HONOUR: In the remarks on sentence which I will shortly deliver and in the transcript of these proceedings, reference is made to a person who gave evidence. I order that in the published remarks on sentence and in any published transcript of argument or evidence in these proceedings, that person be referred to by the pseudonym "DT". 2 I have already sentenced the present offender's co-accused on their respective pleas of guilty for their respective crimes and the roles each of them played in the events which have also given rise to the charge against this offender. 3 He was charged that he on 12 November 1998 at Beechwood in the State of New South Wales did murder Robert Christopher Spradbrow. Following those pleas by the others being entered, this offender pleaded guilty to that charge. DT had already pleaded guilty to that charge. 4 On that plea the prisoner has challenged to some degree the respective roles in the killing and the asserted culpability of DT and himself. It therefore became necessary to hold a hearing to ascertain the relevant facts. At that hearing a file of documents, Exhibit A, was tendered. The file included a statement of facts as contended for by the Crown, the offender's criminal history, transcripts of electronically recorded interviews with various witnesses, including with the co-accused, DT and two interviews with the offender. 5 That statement of facts to which I have referred was prepared by Detective Lysaught. He gave evidence before me on the plea and was cross-examined. That statement (amended to reflect the pseudonym order) reads as follows:- "1. The prisoner is a native of Beechwood, which is a small village west of Wauchope on the mid-north coast of New South Wales. Both communities of Beechwood and Wauchope are small and residents are close knit. 2. On the afternoon of Thursday 12 November 1998 this prisoner was at a swimming hole on the outskirts of Beechwood, known as Kooree Island. He was there with [DT]. Both were consuming intoxicating liquor. 3. While both were at the swimming hole the victim, Robert Christopher Spradbrow arrived with his girlfriend, Katie Andrews. The victim and his girlfriend went to one area of the river bank away from the prisoner and [DT]. 4. The victim was well known to the prisoner and [DT] and both had had prior dealings with the victim over the years. 5. The prisoner and [DT] discussed their prior involvements with the victim and the prisoner had suggested that [DT] should shoot the victim. The prisoner left the area of the swimming hole and travelled to the nearby dairy farm, where he worked. There he borrowed a .22 rifle and some ammunition from his employer. The prisoner returned to the Kooree Island swimming hole with the rifle. 6. There further discussions took place in relation to shooting the victim. Other persons were present at the swimming hole and nothing further occurred. The prisoner and [DT] left Kooree Island and went to the home of the prisoner in the main street of Beechwood. 7. They continued to consume liquor and for a short time were joined by a friend. They continued to discuss the victim and what the victim had done in the past. Whilst [the friend] was there, further mention was made of shooting the victim. 8. After some time the prisoner and [DT] left the home of the prisoner. They drove to the hotel where [the friend] joined them. At the time [the friend] was intoxicated. The three men travelled back to Kooree Island in a vehicle belonging to the prisoner's employer. Upon arrival at the swimming hole the victim's vehicle was still parked where it had been when the prisoner and [DT] had left earlier in the evening. The victim and Miss Andrews were camping on the river bank and both were asleep on a mattress. 9. At the insistence of the prisoner, [DT] had walked to where the victim and Miss Andrews were sleeping. At the time [DT] was carrying the .22 calibre rifle in his hands. 10. [DT] had walked up to the victim, who did not awake. [DT] put the rifle to the head of the victim and pulled the trigger. 11. [DT] returned to the car and was driven away by the prisoner. 12. When they were near the Beechwood cemetery the rifle was thrown from the vehicle. The three men returned to the home of the prisoner. 13. The prisoner retired for the night. [DT] and [the friend] returned to the cemetery in the vehicle of [the woman co-accused]. She was driving. The rifle was recovered and taken to a point at the intersection of Beechwood Road and Pappinbarra Road where the rifle was secreted in long grass. They then returned home. 14. At about 10.00 p.m. on Friday 13 November 1998 the prisoner and [the woman co-accused] went to the area of Kooree Island. There the prisoner was spoken to by police and accompanied them to the Port Macquarie police station. 15. At 11.19 p.m. that evening the prisoner entered into an electronically recorded interview with Detective Lysaught. 16. During that interview the prisoner told the police that he had been at Kooree Island on the evening in question. He denied knowledge of the events leading to the death of the victim. He told the police he had spoken with the victim that night and they had reconciled their differences. 17. The prisoner was then told he could leave the police station. Whilst being processed he made certain comments as a result of which at 12.25 a.m. on Saturday 14 November 1998 he commenced a second interview with Detective Lysaught. 18. During this interview the prisoner told the police that he had obtained the gun for the purpose of shooting mullet in the river. He said that he got the gun before the victim had arrived at the swimming hole. He again asserted he had gone over and made his peace with the victim. He told the police that he and [DT] had left the area and returned some time later. He told the police that [DT] had shot the victim but that he did not know that [DT] was going to do that. He asserted he thought [DT] was going over to speak with the victim. 19. Following the interview the prisoner attempted to show the police where the rifle had been disposed of. It could not be located. He accompanied police to the home of [the woman co-accused] where [DT], [the friend] and [the woman co-accused]were arrested." 6 The offender was arrested on 14 November 1998 following the interview to which I have referred. He has been in custody continuously ever since. His sentence should therefore date from that day and I take into account in accordance with s. 24 of the Crimes (Sentencing Procedure) Act 1999, which Act is now applicable to the sentencing of this offender, the time during which the offender has been held in custody in relation to the offence. 7 When I came to deal with the woman offender and the friend, I deferred passing sentence upon their entering into recognisances consequent upon their pleas to counts of concealing a serious offence. 8 On DT's plea of guilty he was convicted and I sentenced him to penal servitude for 16 years, comprising a minimum term of 12 years and an additional term of four years, to date from the date he was taken into custody. 9 Subsequent to the plea by the offender DT, the present offender's trial was adjourned and some three days prior to the sentence being passed upon DT, the offender before me pleaded guilty to the murder. That plea was entered and accepted on the basis that he was not the principal in the first degree. He was convicted on that plea. 10 In the proceedings on the plea of DT, I reached a number of conclusions having in mind the onus in those proceedings and the evidence there given to which I had regard. 11 Certain of those findings are challenged in the present proceedings, most notably the finding I made that DT had been procured to commit the crime by the present offender, and that the present offender had manipulated DT's mind to cause him to kill Mr. Spradbrow. 12 It is accepted by the Crown in the present proceedings that this offender and DT should be treated as equally culpable, and by that I understand that the Crown does not contend that any greater culpability than DT's should be found against the present offender in the present proceedings by reason of the assertions made by DT, both in his evidence at his own trial and in his evidence in these proceedings, that this offender had sought that he kill Spradbrow. Indeed, I expressed in my remarks on sentence concerning the account of these events given by DT that I had reservations particularly in respect of this matter. 13 I am not satisfied on the evidence before me in the present proceedings that I should make any finding that the role of the offender extended beyond providing the fatal weapon to DT, driving him to the scene at which the crime was committed, realising when he did so that DT would kill the deceased if the deceased was still there and present. 14 I accept that there had been earlier discussions including threats to kill the deceased. I accept in relation to this offender, as I did in relation to DT, that there was a real basis believed in by the offender to support the apprehension he had of the deceased and his resentment towards the deceased. It is not necessary for me to consider whether the account of the various events set out in the confession provided by this offender to DT, which became Exhibit 6 and which contains substantial lies, are true in fact. It is sufficient to say that an examination of those matters as therein set out indicate an ample basis for both fear and resentment by the offender of the deceased and the Crown does not challenge that the offender may well have had that belief of the deceased. I accept he did. 15 Further, there is material both in the evidence of independent witnesses and in the Probation and Parole report that this offender had on former occasions made statements amounting to threats to kill the deceased. 16 When I sentenced DT, I referred to the killing as vicious and cowardly. Not only was the killing by DT vicious and cowardly but the assent to that killing and the role played by this offender in assisting that killing was equally vicious and cowardly. Both offenders were affected severely by alcohol. The idea appears to have floated on a sea of intoxication and it gained substance as the day wore on, but it was the production by this offender of the gun that enabled the intention to crystallise when it did and to be carried out. Nonetheless the role this offender performed was not that of the assassin, even though the aid and assent to the assassination were his. In this respect I do not accept entirely the Crown's submission that both offenders should be treated alike. 17 I have mentioned that there are matters in the statement of facts which were challenged. They included that the offender suggested killing the deceased as early as when they were first at the scene. I accept that something to the effect of killing the deceased was said; I am not satisfied that what was said represented some intentional and deliberate proposal to kill. 18 It was also challenged that DT had walked to where the victim and Miss Andrews were sleeping and shot the victim at the instance of the offender. The plea of this offender has proceeded on the basis that both the offender and DT at the time at which the deceased was killed had agreed he be killed and that DT killed in accordance with that agreement. I do not find, particularly in the light of the Crown's concession in argument, that DT did anything other than that he had willingly agreed to do. I do not find that he was a puppet or a tool of this offender. I do find that they agreed together that the death should be occasioned and except in relation to that difference in role of an objective kind to which I have referred and will refer to again later, their moral culpability is equal. 19 I do not accept, as I have said, the more dominant role DT attributed to this offender in his later interview. I do not accept the offender's denial of knowledge that at the time they returned to the island the deceased would be killed. I do accept the offender's statement to the police that at the time they returned to the island DT was going to kill the deceased and I am satisfied the offender knew then what was going to happen. 20 DT not only pleaded guilty, not only gave an undertaking to give evidence against the offender, either on his plea or his trial, but, although I am not satisfied beyond reasonable doubt on certain of the matters, particularly as going to the mitigation of DT's guilt, of which he gave evidence in these proceedings, nonetheless I am satisfied that as between the two, DT has done what he could in that regard and therefore when I came to sentence him I gave a substantial reduction in sentence. 21 Following the offender entering the plea of guilty and at a time after which DT had given evidence and been cross-examined, the offender sought to withdraw his plea. This was at a time at which counsel then appearing had informed me of those matters of fact which were then disputed. During the ensuing discussions it became clear that the real crux of this offender's contention was that the idea of killing the deceased, although raised earlier did not crystallise until after the gun and bullets were obtained by the offender, so that the gun, it was said, I could not find was obtained for the specific crystallised purpose of performing the killing. 22 In this regard I was referred to the various interviews by the various offenders with the police and the various changes in what was said by the offender and the various matters in his accounts which were later revealed to be lies. I am unable to conclude that there was a real pattern in these lies except as explained by a panic stricken attempt to deny guilt for an appalling episode of criminality carried out while heavily intoxicated. 23 I note that at the time in question although the offender had drunk a considerable quantity of liquor, it does not seem to me in this case any more than it seemed in that of DT, that that ingestion of alcohol and the intoxication should be considered as either mitigating or aggravating circumstances. 24 On the other hand, insofar as there were attempted lies and deception, there is a limited amount of assistance the offender can derive from them as co-operation and they do not show contrition, since they contain lies either seeking to shift or minimise guilt. 25 I note also that the offender's initial interview with the police and his assistance to the police and attempts to locate the murder weapon were such as to be of some assistance, albeit that assistance was not as a result of an unalloyed intent to tell the truth. But it is accepted by the Crown that that assistance was, albeit given in the geographical confines of that small close knit community such as might in the upshot be of limited value, was of some but minimal value. 26 The plea on this offender's part was initially delayed, it seems to me not so much because of an unwillingness to accept some involvement in the events, but because of a mistaken view that such a plea might have been inappropriate to enable rebuttal of what this offender considered to be an over-emphasis on his role and culpability. 27 In my judgment dismissing the offender's application to withdraw the plea I referred to this matter also. In those proceedings the offender gave short evidence in which he did not condescend to particularity in his assertion he was not guilty of the offence charged. He did not deny any particular matter of fact but merely gave evidence in a form such as to plead the general issue. 28 On the hearing of this plea he did not give evidence but thanks to a careful, precise and greatly assisting analysis by the Crown Prosecutor I have been able to deal with the matter, resolving it on the basis that I have set out. 29 I note the provision of the information and that information was accompanied by a lack of completeness and by lies. I note that the minimal assistance provided does not indicate any adverse consequences to the offender. I will in those circumstances give some degree of lesser penalty, as is provided by s.22, but again, that lesser penalty will be little. 30 It remains further when considering the fact of the withdrawal of the plea to note that although I am required by s.22 to take into account the plea of guilty, in this case there appears no evidence of specific contrition, although there is some evidence of a recognition and regret on his part for his guilt in producing the gun. Although the costs to the community of a trial have been avoided, nonetheless the application for withdrawal of plea has occasioned considerable cost and inconvenience and court time. Nonetheless I do propose to impose a lesser penalty as is referred to in s.22 of the Crimes (Sentencing Procedure) Act 1999 although not, in the circumstances, a penalty lesser to any great extent. 31 I have already said that I would treat the victim's impact statement of the deceased's mother in accordance with the principles in Previtera v. The Queen (1997) 94 A. Crim. R. 76. 32 In considering the offender's circumstances I must also have regard to his prior record. That record indicates an involvement in matters of larceny in 1984 and assault in 1991. There are traffic offences as well but, most importantly, a two-year recognisance was imposed on him on 14 November 1997 at the Port Macquarie Local Court and was current at the time of the commission of this offence. In that respect the offender is in a more serious position than DT. 33 It has been submitted by counsel now appearing on his behalf, and in my view appropriately, that I am unable to be satisfied that he was either the instigator or the prime mover, and that I am unable to be satisfied of those matters to which I have referred earlier about which DT gave evidence which seemed to be relied upon to aggravate this offender's culpability above that of DT. 34 It is further submitted that that difference in role to which I earlier referred should offset or offset at least to some degree the discount DT had received for his plea and co-operation, and that in these proceedings, and that I should proceed on a parity basis (see Postiglione v. The Queen (1997) 98 A. Crim. R. 134 and Hodges v. The Queen (1997) 95 A. Crim. R. 85)). It was submitted, notwithstanding the change in the sentencing regime as a consequence of the passing of the Crimes (Sentencing Procedure) Act, that I should conclude that the offender should receive the same sentence as DT received. 35 The submission impliedly embraced the propositions that when considering the onus and the differing evidence I should in the present proceedings accept that the matters which diminished the sentence that I might otherwise have passed on DT were such as to flow over to the benefit of this offender or that they were equivalent. In relation to this parity submission, since DT had matters proved in evidence in his favour personal to him and more generally to consider this offender's individual position, it is necessary to turn then to subjective considerations. 36 This offender is a 35 year old single man. He is 10 years older than DT. However that fact alone does not in my submission warrant on the facts of this case, considering I am not prepared to find that overweening influence to which I have referred, that the offender should be the subject of adverse discrimination. 37 The offender has been employed his entire working life as a casual farm hand. He has not responded successfully to supervision by the Probation and Parole Service in respect of an alcohol and drug problem which is of long standing and which affects him grossly. He is an only child of parents who never married, and never lived together. He was raised by his mother and grandfather and has sought to maintain a satisfactory relationship with his mother and his step-brother. 38 The family background is characterised by incidents of abuse and alcohol. His father has apparently now given up alcohol. This is noteworthy considering the family background. Excessive alcohol consumption was noted as being prevalent and still prevalent amongst all other family members. 39 The offender commenced to work at the age of 16 after a limited educational background. He has had from time to time domestic relationships which have not been a success, although he has a son, aged 14 years. It is not surprising that the alcohol ingestion has produced a dysfunctional social environment, indeed it is conceded that he has a chronic alcohol problem. It is to his credit, however, that his current girlfriend, notwithstanding this, described him as otherwise a loving and caring person when not intoxicated, but one who does revert to statements of a violent kind although not to actual physical violence when drunk. His record, however, refers to instances of physical violence. 40 He appears to have been trusted in his employment as a farm hand and notwithstanding the fact of this offence, his employer indicates that there will still be future employment for him. His alcohol consumption was exacerbated by daily marijuana use from an early age and which continued up until his son was born some 14 years ago. 41 It is obvious that this is a man who would have to give consideration to entering an appropriate drug and alcohol rehabilitation program if he is to be at liberty. 42 As he has referred to in his confession, exhibit 6, the offender told the Probation and Parole Service officer of the previous incidents between himself and the victim, from which I observe that it is clear that he was both apprehensive of the victim and resented him. But to that officer he was entirely vague as to what happened leading to the death of the deceased. He is accepted by the officer as a depressed man who now has some awareness of his behavioural problems and who has had time to reflect, and recognise family problems and personal relationships such as to suggest that there is some hope that an adjustment of behaviour problems could occur given appropriate circumstances and opportunity. 43 That report should be considered in the context of a report with which I have been provided by Associate Professor Robyn Tate at the Rehabilitation Studies Unit at the University of Sydney. That report refers to various incidents in which the offender in the past had suffered injury, the most notable of which was when he was bashed on the head with a wheel brace, sustaining some fourteen stitches, in 1996. That incident is notable because I have been informed that the assailant was DT, and that goes some way, albeit not very far, to support the proposition that DT could not be regarded as invariably his puppet. 44 That report documents substance abuse of alcohol and drugs, with that alcohol abuse increasing some eight years ago after the mother of his son severed the relationship with him. From that time on apparently the offender has started drinking first thing in the morning, "that's all I thought about - it was good at first ... I love drinking first thing in the morning.". He was apparently drinking a cask of wine a day. His eating was sporadic, he was losing weight and may well have been suffering from a psychiatric condition. His memory was variable. 45 Professor Tate notes that he has difficulties in recollection, he has difficulties in understanding and although he apparently co-operated with the testing psychologist. Professor Tate was able to conclude that he was a man of average intelligence whose performances on psychological assessment ranged from above average down to severely impaired. His attention and speed of cognitive processing was intact but at a lower level. His memory and learning were poor. He scored in the severely impaired range on a non-verbal equivalent assessment. 46 The conclusion was that he suffers from brain dysfunction with notable deficits leading to thought processes of a disorganised kind which adversely impacted upon his recall. On testing he became increasingly confused and incompetent in discriminating correct from incorrect information, and his cognitive skills broke down completely. 47 These deficits most affected his memory and would impact, so Professor Tate opined, on a broader range of cognitive functions, including his ability to appreciate and process information. He would become easily confused and unable to recall what information was correct. I accept this evidence and find that it provides a valuable context to the formation of the intent to kill and the offender's actions on the day. 48 I found this report particularly of assistance in the context of the way in which this plea has proceeded, and the way in which the offender had provided statements to the police. It confirmed the view that I have already expressed, that there was no underlying plan or pattern in the various accounts he gave and in what he has done subsequent to the killing otherwise than is explicable by a panic stricken attempt to avoid full culpability for an appalling crime carried out under the effects of liquor. 49 The Crown has submitted that the objective criminality was of the highest order, that the offender was the first to suggest the deceased should be killed. As to this submission, notwithstanding what had been said by the independent witnesses, that it was this offender who first raised the subject, I do not accept that this offender was the first to propose a concrete course that the deceased should be killed. I do accept he was the first that day to raise the subject which both he and DT had referred to on prior occasions. 50 The Crown has further submitted that if I am not satisfied as to the truth of DT's assertion that when driven back to the island he walked down to where the deceased and his girlfriend were, and then returned to the offender's car before walking down again to carry out the shooting, I should nonetheless not see the criminality of this offender as reduced. 51 I do not accept on the evidence in this case DT's assertion that the offender encouraged him to go back down to where the deceased lay, to kill him. Absent the acceptance of that matter, whether DT made one or two journeys only would be significant for the period of time during which the offender had a crystallised intent that the deceased should be killed. It seems to me that in accord with the intoxication under which they both laboured, and the driving out there in the way described, that I could not be satisfied beyond reasonable doubt that there was more than one journey made. 52 However, I accept that the offender drove back with DT with the gun, after a discussion of killing, realised that killing was to occur and assented to it. He provided the gun, he provided the transport to the scene and his assent was to the gun being used. He must have anticipated that the deceased was likely to be present even if he wasn't sure the deceased would be there. 53 That assent in itself was at least encouragement. The killing would not have occurred if this offender had not obtained the firearm and ammunition. It would not have occurred if he had not driven DT to the location where the deceased was camped for the night. His assent was in those circumstances borne out by his actions. 54 I conclude that there is little to choose between the two offenders, but that although the offender was not the actual assassin, he should not receive such parity as would produce an identical sentence to that imposed upon DT. I have concluded that I should pass upon the offender, having regard to the matters in mitigation to which I have referred, and in particular having regard to the sentence I passed upon DT, a sentence which will also embrace the prospects for rehabilitation referred to in the Probation and Parole Service report. 55 I do not consider that there are any special circumstances such as s.44(2) of the Crimes (Sentencing Procedure) Act 1999 refers to in the context of the sentence I propose. I do not consider that there is a need for a variation of the statutory provisions since then there does not seem to me to be a need for a longer period of supervision than that which would operate by imposition of a sentence reflecting the statutory proportion. 56 I propose, having regard to those matters, to sentence the offender to a sentence of 18 years to date from 14 November 1998, and to set a non-parole period, that is a minimum period for which he must be kept in detention in relation to the offence of 13½ years, to date from that day. CROWN PROSECUTOR: The sentence will expire on 13 May 2012. That is the day on which he becomes eligible for parole. HIS HONOUR: What is the date upon which the sentence will expire? CROWN PROSECUTOR: 13 November 2016. HIS HONOUR: Mr. Lulham, will you rise? Mr. Lulham, I sentence you to imprisonment for 18 years, that sentence to commence on 14 November 1998. I sent a non-parole period of 13½ years, to commence on that day, 14 November 1998. You will become eligible for release on parole on 13 May 2012. Your sentence will expire on 13 November 2016. Last Modified: 09/26/2000 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.