REGINA v WRIGHT [2001] NSWSC 1050

New South Wales Supreme Court

CITATION : REGINA v WRIGHT [2001] NSWSC 1050 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70081/00 HEARING DATE(S) : 18 June 2001, 3 September 2001, 12 September 2001, 13 September 2001 JUDGMENT DATE : 13 September 2001

Regina

PARTIES : v

David Andrew WRIGHT JUDGMENT OF : Adams J at 1

COUNSEL : Mr Mark Higgins (Offender) Mr Colin McPherson (Crown) SOLICITORS : Legal Aid Commission of NSW (Offender) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - Sentence - Murder DECISION : Sentenced to a term of twenty-two years' imprisonment commencing on 27 October 1999. Eligible for release on parole on 26 April 2016.

Ex tempore - Revised

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

ADAMS J

LISMORE: THURSDAY 13 SEPTEMBER 20001 70081/00 - REGINA v DAVID ANDREW WRIGHT SENTENCE HIS HONOUR: On the morning of Friday 25 June 1999, Todd Serone, the 27 year old son of Colin and Peggy Serone, entered the house where his mother lived alone to find her lying dead behind a pool table on the entertainment room floor. He called police and an ambulance. The autopsy showed multiple stab wounds to the right posterior chest area and a stab wound to the right side of the neck and incised wounds on the face and back of the neck. Significantly, there were numerous defence type wounds present on both hands. There were lacerations to the top and back of the head and other bruising that may have been caused by the knurled pattern on a billiard cue found near the body. Death resulted from the stab wounds. The offender, who is now 25 years old, had been employed by Colin Serone in a restaurant he operated in Coolangatta in mid 1997, initially as a kitchen hand but later as an apprentice chef. He worked there for about 18 months. He said he left on bad terms and claimed to be owed a substantial sum. Whilst I am prepared to accept that the offender was probably owed money by the Serones I think that he has exaggerated the amount. More importantly, however, I consider the fact of this debt, whatever its extent, to be irrelevant to the offender's culpability. It is merely part of the factual context. On 4 July 1999, early in the course of the police investigation, the offender was asked to make a statement, presumably to give some background information about the Serones and his own communications with one or other of them on or about the day that Mrs Serone was killed. There is no suggestion that he was a suspect at this time. In that statement the offender said, amongst other things, that on 24 June he had called the deceased's telephone number by mistake, that it had been answered by her husband Colin and that he hung up immediately after saying it was a wrong number. He said that he may have mistakenly redialled the number again. He denied seeing Mrs Serone after Christmas 1998 and claimed that he had not even spoken to her since he had left the restaurant. The police investigation later established that the offender had returned to his home on the night of the murder with blood on his hands and with a gold charm bracelet. He was spoken to again by detectives on 8 October 1999. He said that he got blood on him from a fight with his stepfather (Mr Schipp) on 22 June, namely, two days before the murder. The offender said that Mr Schipp's statement to police that he had not seen the accused for years was a deliberate lie motivated by malice. He also told the police that his call to the Serone house was intentional. He said that he owed Colin Serone $400 for drugs and was trying to contact him about paying. (I note that this seems to be inconsistent with the offender's claim that Mr Serone owed him money). He said that they arranged to meet, that he tried to call Mr Serone again from a nearby service station (where he was identified on a security video) but no-one answered. He then walked to the house where he spoke to Colin in the front garden and made arrangements, he claimed, to repay his drug debt. He said that the bracelet had been given by him to a former girlfriend and returned to him on 22 June. He said that he had thrown it away because he didn't want it and could not pawn it as he did not have a driving licence. The detectives then conducted a video interview with the offender. He elaborated further on his arrangement to meet with Mr Serone to discuss paying for the drugs and the telephone calls he made to the premises. He said, however, that despite the arrangement to meet at the house Mr Serone was not there and did not arrive, contradicting of course what he had earlier said and which I have already set out. He said that Mr Serone not having turned up he left the premises and went home. He gave a detailed account of what had occurred at his stepfather's house when he said he got blood on him and elaborated further on how he had purchased and what he had done with the bracelet. He said that his girlfriend's statement that she did not receive a charm bracelet from him was a lie. He implied that he believed Colin Serone may have committed the murder and said he was frightened of him. Continuing investigations led to the arrest of the offender on 27 October 1999. When cautioned he declined to say anything. He was charged with Mrs Serone's murder. In due course, as is usual, the prosecution brief of evidence was supplied to the offender's legal advisers. The case, though circumstantial, was a strong one. On 3 February 2000, as I understand it, when he was in Lismore Court for a brief hearing, the offender indicated to police that he wished to speak to them again saying "I have a lot of guilt and I have to do time for that guilt". Arrangements were made for an interview to be conducted on 10 February 2000. It is unnecessary to set out all that the offender said on that occasion. In essence, his account was that a few days before Mrs Serone's death, Mr Colin Serone had told him to kill his wife, threatening otherwise to hurt the offender's family, and offering to pay him $10,000 for the murder, paying him $1,000 then and promising him the balance in due course. The offender said he agreed. The arrangement was that the following Thursday the offender was to telephone Mr Serone at the house which would be left open. The offender said that he did so and Mr Serone confirmed that the door was open. The offender said that he got to the house at about 1.45pm, that the door was open and he went inside. He said that he was affected by amphetamines and came down whilst he waited for Mrs Serone to arrive from a shop she managed with her husband. She returned about 6.45pm. The offender had found a torch in the house and when Mrs Serone came into the entertainment area he attacked her with the torch. He claimed that he had hit her with the torch and then, when she was lying unconscious, fled the house taking the torch and Mrs Serone's handbag which contained money and the charm bracelet about which he had previously lied. He later threw these items off the Piggabeen Bridge where they were eventually recovered by police divers. The offender claimed the first he knew of Mrs Serone's death was on the radio. During the interview the offender said that he went to the house with the intention of killing Mrs Serone and indeed had taken one of his kitchen knives with him for this purpose. He said, however, that by the time Mrs Serone came home he had lost his confidence and "didn't know how to do it". He was unable to give any satisfactory explanation for remaining in the house waiting for Mrs Serone to return. He placed the knife in a green tapestry bag which he placed in the wardrobe in Mrs Serone's bedroom where it was later discovered. I accept that this knife was not used to kill Mrs Serone. In what was perhaps an unguarded answer he said that Mrs Serone saw him after she fell. He said that she was taken by surprise. He claimed that she did not try to defend herself but he categorically denied at this time either stabbing Mrs Serone or knowing anything about these wounds, clearly enough implying that Mr Serone was the murderer. It is obvious from what I have so far said that the offender is a versatile audacious and creative liar. In these proceedings a number of reports have been tendered that contain histories of the offender's personal life and reference to the commission of the offence, including his state of mind at the time. The offender has not given evidence on the plea and thus there is no sworn testimony to support the truth of what he told the various consultants. Nor have those accounts been tested by cross-examination. I am very sceptical about the truthfulness of anything said by the offender which could be regarded as self-serving. On 2 February 2001 the offender was arraigned in this Court. He pleaded not guilty. On 6 June 2001 the trial, having been set down to commence on 12 June, the offender changed his plea to guilty. The trial was expected to take four weeks. By his plea of guilty the offender has saved the State the trouble and expense of trying him and the witnesses the inconvenience and, in some cases, the distress of giving evidence. Some allowance must be given to him for the utilitarian benefit to the administration of justice of the offender's plea of guilty. In accordance with the principles stated by the Court of Criminal Appeal in R v Thompson & Houlton [2000] NSWCCA309; (2000) 49 NSWLR 383 I propose to reduce the sentence I impose by 12 percent. By his plea of guilty the offender admitted all the elements of the crime of murder. As I will mention, he also admits he stabbed Mrs Serone. I am satisfied on the whole of the evidence that the offender inflicted all the injuries that Mrs Serone suffered. There can be no doubt that he intentionally killed her. It was a premeditated, brutal and cowardly attack on a middle aged woman in her own home. The reports tendered on the offender's behalf are a drug examine alcohol report by Mr George Klein, a clinical psychological assessment by Associate Professor Susan Hayes, a psychiatric report by Dr Rosalie Wilcox and an assessment of his drug use by Dr Robert Weatherby. It is a curious fact that, although all these experts reported in varying ways on the offenders involvement in and attitude to the crime, none of them had been given, as I read their reports, the extensive statements he made to police as the investigation unfolded. I deal first with the accounts given by the offender of facts directly connected with the murder. The offender said his connection with the Serone family arose from his employment at the restaurant operated by Mr and Mrs Serone. He said, in substance, that the business was in financial trouble and he got another job. He was owed a substantial sum for wages, superannuation and leave entitlements. The offender said that, when he complained, Mr Serone threatened him with serious physical injury. I state at once that there is no evidence to support this allegation. Even if it were true, and I do not accept that it is, it would not in any sense mitigate the offence. A few days before the murder the offender went on what he described as a "bender" using amphetamine and alcohol. There is support from other witnesses that he was using amphetamine and, possibly, methamphetamine, at the time. However, their accounts suggest the offender was using considerably less than he claimed. This is supported by his then having only limited financial resources. Whilst I accept that the offender was affected to some degree by amphetamine ingestion when he killed Mrs Serone, largely because of the savagery of the attack, suggestive of incomplete control, I do not accept that he was so intoxicated as to materially affect his culpability or mitigate the extent of his criminal responsibility. The offender said he called the house just before he arrived and when no one answered he gained entry through a rear bathroom window. It does seem clear that he stayed in the house for some four hours or so waiting for Mrs Serone to arrive. I do not believe this was to negotiate about his back entitlements. He knew she was coming from the shop she managed with her husband. It seems to me to be certain that the offender intended to rob Mrs Serone when she arrived and then to kill her when he realised she could identify him. Whether he contemplated the likelihood that he would have to kill her earlier in the piece or only made the decision after she identified him is unclear, although I think the former situation is the more likely. However, I have no doubt that he made a deliberate decision to kill her at or about the time of his attack on her. In substance, the offender told Dr Wilcox that after striking her on the head he killed Mrs Serone with a knife he took from the kitchen because he thought she recognised him. It will be recalled that the offender had brought his own knife to the premises. In the end he chose not to use it. It is unnecessary for present purposes for me to determine why this was so. It is inevitable that he brought his own knife envisaging that he might use it in some way. Whether he did use it to threaten Mrs Serone is unknown. That he used another knife to kill her is scarcely a mitigating factor. I note the murder weapon has not been found. The substance of the offender's present position is that he has resiled from the allegation that he acted as Mr Serone's instigation. This allegation could not, at all events be accepted, having regard to the offender's calculated and elaborate dishonesty concerning the circumstances of the offence. In fairness to Mr Serone I should add that the police investigation disclosed evidence that contradicted significant parts of the offender's allegations against him. To the consultants the offender expressed shame, disgust and remorse for what he had done. I am unable to assess the genuineness of these expressions and, in the light of all the circumstances, I am doubtful that they were genuine. The offender told Dr Wilcox his decision to plead guilty was part of the process of dealing with what he then had done, of taking responsibility for his actions. I think it is true that his plea is a recognition of reality but I do not accept it as demonstrating any remorse or contrition. Neither Dr Wilcox nor Professor Hayes thought that there was anything significant in the offender's psychiatric or psychological make up that might explain or mitigate the crime. On the other hand, there does not appear to be any psychological or psychiatric impediment to his eventual rehabilitation, except of course that which might be implied from the commission of the crime itself. The offender's personal history, as given by him to the defence consultants and described by his mother in a statement tendered on his behalf, shows an unhappy and troubled childhood. He was a victim of violence at the hands of his stepfather and was forced to leave home in his mid teens going to live at a refuge and then with his girlfriend's parents, where he lived for three or four years. It is, I think, fair to accept that his earlier years have not given the offender the personal resources to resist drug abuse but there is no indication that his personality is characterised by traits typically seen in violet individuals. The psychometric tests of Professor Hayes seem to be consistent with this conclusion. This evidence does not help to explain the offender's appalling crime. But, as I have said, it does permit the conclusion that there does not appear to be present in his personality any particular obstacle to rehabilitation. There is a public interest, frequently stated by the courts, in rehabilitation which is all the stronger for young or relatively young offenders. I am bound to adjust the sentence to take this into account. The offender asks the Court to take into account an offence of aggravated robbery with wounding that occurred on or about 24 June 1999. This is the offence constituted by the theft of Mrs Serone's handbag following the assaults. I consider that I should accede to this request. Taking into account all these circumstances the only matter capable of providing any mitigation is the offender's relative immaturity. To my mind, the circumstances of the offence would otherwise place it close to, if not into, the category of worst cases. There are no special circumstances. David Andrew Wright for the murder of Mrs Peggy Serone, taking into account the offence referred to in the Form 1, and the discount for your plea of guilty, you are sentenced to a term of twenty two years' imprisonment commencing on 27 October 1999. The earliest date upon which you will be eligible for release on parole is 26 April 2016.