New South Wales Supreme Court CITATION : R v Naismith [2000] NSWSC 1024 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70086/99 HEARING DATE(S) : 9-20 & 25 October 2000 JUDGMENT DATE : 3 November 2000 PARTIES : Regina Kevin Paul Naismith (Prisoner) JUDGMENT OF : Dunford J COUNSEL : W Creasey (Crown) G Graham (Prisoner) SOLICITORS : Director of Public Prosecutions (NSW) (Crown) Ramsland Graham (Prisoner) CATCHWORDS : CRIMINAL LAW - sentencing - double murder DECISION : See para 20 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 3 NOVEMBER 2000 70086/99 R v Kevin Paul NAISMITH SENTENCE 1 HIS HONOUR: The prisoner Kevin Paul Naismith has been found guilty by a jury of the murders of Danny John Wasley and Mark Andrew Banks, both at Charlestown on 16 August 1999. 2 The prisoner, both deceased and a fourth man, whose name I have ordered not be published and who is hereinafter referred to as "the accessory", were all in August 1999 involved in the cannabis trade in the Newcastle area. It appears that Danny Wasley was getting his supply from Mark Banks and on-selling part of that supply to the prisoner, who in turn was on-selling a small amount to the accessory who was selling it in small deals. It also appears that Wasley and the prisoner had been "ripped off" in a drug deal in Sydney in December 1998 as a result of which they had each lost about $13,000, and according to the accessory, the accused told him that he believed Banks was the person who had organised the rip off. 3 A drug deal was arranged to take place on the afternoon of Monday 16 August 1999 and on the previous day the prisoner told the accessory that he was going to get the cannabis from Banks and rip him off to get roughly what Banks had previously ripped off him "and a bit extra". He asked the accessory to be there as he did not want the same thing as had happened the previous December and be ripped off again. He also told the accessory that he would be carrying "a piece". He had previously demonstrated to the accessory and to a neighbour, Mr Elder, a rifle and a sawn off bolt action hand gun which he and the accessory had test fired in the sand hills behind Stockton Beach. 4 The prisoner and the deceased Wasley had been best of mates since childhood and they spent some time together on the morning of 16 August visiting a motorcycle repair man etc. The prisoner picked up the accessory at his home at about 12.30 pm and took him to the prisoner's place. The prisoner's defacto wife and a friend of hers left there at about 1 pm. Shortly after that, Wasley arrived in his red Ford utility vehicle, and he and the prisoner went into the garage at the back of the house. According to the accessory he was, at the prisoner's request, waiting behind the garage. 5 What happened in the garage after that was narrated in detail by the accessory and one needs to be cautious about accepting such evidence because, being an accessory, there may be a tendency for him to minimise his own part and exaggerate that of the prisoner. However, the material parts of what went on in the garage were heard by a number of neighbours who were all impressive witnesses and one of whom wrote down almost contemporaneously with the events what she heard and saw. 6 There is no doubt that an argument developed in the garage between the prisoner and Wasley, and according to the accessory this was because the prisoner accused the latter of being involved in the rip off in December 1998. Wasley denied his involvement in the rip off and pleaded with the prisoner, calling out in a frantic voice, "I didn't do it" and, "Please Kev, don't do it". However the fight continued with a number of thumping sounds, and then the prisoner called the accessory to come around to the front of the garage. He went in and saw Wasley lying face down, the back of his head "fairly bashed in" and with blood all over the place and a baseball bat which he had borrowed from the accessory about a month before, laying next to Wasley, broken and with blood all over it. According to the accessory, he asked the prisoner what he had done and he said that this was one of the guys that had ripped him off. The prisoner then left the accessory in the garage with the body, saying he was going to the house to meet someone. 7 About 15 minutes later Mark Banks arrived at the house in a blue Hyundai vehicle borrowed by him and was seen by the neighbours to go towards the front door of the house. Shortly afterwards the accessory heard two gun shots and the prisoner then walked back to the garage, told the accessory that he had shot Banks, and after checking Wasley for a pulse said, "Good, they are both gone." He then took the accessory up to the house where the latter observed Banks dead on the floor with gun shot wounds to his head. He asked the prisoner who it was and he replied, "The other bloke that ripped me off". The accessory also saw the hand gun and a container of cannabis on the kitchen bench. 8 Ingrid Pfeiffer and her mother were neighbours of the prisoner and were having their lunch when they saw the prisoner and another man who fitted Danny Wasley's description go into the garage and later they heard sounds of a struggle coming from the prisoner's garage and heard a frantic raised voice saying, "I didn't do it", and, "Please, Kev, don't do it". They heard a number of thumping sounds and then silence after which they saw the prisoner leave the garage alone and go in the direction of the house, after which they saw the blue Hyundai pull up and the driver go towards the front door. About 10 or 15 minutes later they saw the prisoner walk back to and enter the garage and a short time later he emerged with a person who fitted the description of the accessory. Mrs Simpson, another neighbour also heard voices coming from the garage, one was that of the prisoner and the other was a high pitched voice like somebody was very stressed, she heard banging noises like someone being pushed around inside the garage; similarly Mr Simpson. 9 After both men had been killed, the prisoner got the accessory to drive the cars in which each deceased had arrived to Warners Bay Shopping Centre where they were left, and later they wrapped both bodies in tarpaulins. Later that evening the prisoner hired a trailer, and early the following morning both bodies and various other items were taken to the sand hills at Stockton Bight where they were buried, and over the following two nights burnt, to the extent that only one femur bone of Wasley could be identified, and the body of Banks was also extensively burnt. 10 Whilst, as I say, one must have reservations about the evidence of the accessory, the evidence of the neighbours so far as it went was most convincing, and consistently with the jury's verdict I am satisfied beyond reasonable doubt that the prisoner arranged to meet Wasley on the day in question, took him to the garage where he accused him of ripping the prisoner off, and attacked him physically and with the bat to the extent that he killed him by striking him to the head a number of times with the bat so that his skull was bashed in and he died in a pool of blood. He then went to the house and waited for Banks to arrive with a large quantity of cannabis and shot him in cold blood, then with the co-operation of the accomplice he buried and later burnt the bodies. 11 I am satisfied that both murders were premeditated and planned. The prisoner either arranged for both the deceased to attend his premises or at least knew they were coming, he borrowed the baseball bat from the accessory beforehand and acquired, cut down and tested the hand gun at Stockton. He also told his friend and neighbour, Mr Elder not to come to the premises that afternoon and, according to the accessory, said he had told his friends to stay away that day and had arranged for his wife to be out. His wife gave evidence on sentencing suggesting that her going out was coincidental, but I am satisfied that the prisoner either arranged for her to be out or knew she would be out. After killing the deceased he then burnt their bodies, so that they were denied a decent burial. 12 The prisoner denies any involvement in the killings and at his trial gave a cleverly contrived version of the facts, which showed great imagination and inventiveness and fitted in with about 90% of the incontrovertible evidence for the Crown, but made subtle changes to words attributed to Wasley in the garage by the accessory and the neighbours. He attributed the death of Banks to an unmasked gunman who threatened him that he and his wife and children would be killed if he did not dispose of the bodies and all the evidence of the shooting, and attributed the death of Wasley to an associate of such gunman. The jury clearly rejected his version and so do I. 13 The Crown alleged that the motive for the deaths was to rip off Banks and thus recover $13,000 that the prisoner had lost when ripped off in December and to set himself up financially as he would have been if he had not been ripped off and that he believed Wasley was also involved in the rip off. There is some evidence to support this theory, but the killing of two men, including his best mate, appears to be out of all proportion for such retaliation. It may be that the motivation for the killings was to enable the prisoner to take over the drug activities of both deceased, but there is no evidence of this, and I cannot be satisfied beyond reasonable doubt that it was in fact the motive. I therefore treat the crimes as ones where the motive has not been established. But whatever the motive, there is no doubt in my mind that the murders were related in some way to dealing in prohibited drugs. 14 The crimes are objectively very serious and there is nothing in the evidence to mitigate such objective gravity. Two persons are dead, one of them supposed to be the prisoner's best friend, and he has shown no remorse or even regret for their deaths. At the time, Wasley's pleas for mercy were ignored and Banks was given no chance. It may be that the accessory played a bigger part than he has admitted, but even if he did, that does not, in any way reduce the criminality of the prisoner; indeed if he and the accessory planned the killings together, that would be evidence of additional premeditation and planning. I am satisfied that in both cases the intention of the prisoner was to kill, and not merely to cause grievous bodily harm and the fact that both deceased were engaged in the illegal drug trade does not in any way reduce the objective criminality of the offences. 15 Having regard to these matters the Crown has submitted that this is a case that falls into the worst category for offences of this nature and therefore justifies a sentence of life imprisonment. Whilst in no way minimising the gravity of the offences, I reject this submission. Notwithstanding the deliberate nature of the killings and the lack of remorse, but bearing in mind that the prisoner was until he had a serious accident at work an apparently honest, hardworking and valuable member of society, that he has no previous convictions and that these offences were related to his involvement in the illegal drug trade, I consider that after a lengthy sentence of imprisonment there are prospects of rehabilitation, provided that on his release he keeps away from such illegal trade. 16 The prisoner was born on 15 August 1969 and is now aged 31 years. His father died when he was young. After completing an apprenticeship as a fitter and machinist and obtaining various trade certificates he worked as a fitter and machinist for some time, and subsequently bought a milk run which he operated for some years, but was required to sell it when he broke up with a former defacto wife. In 1994 he had a fall from a crane at work and badly injured his back. For this injury he received a compensation pay out and after paying off a number of debts and legal expenses, he and his current defacto wife were able to purchase the house at 18 Whitburn Close, but it appears that since the injury he has been unable to obtain paid employment and his only income has been from trading in cannabis. 17 He and his current defacto wife have four children, aged 7, 5 and twins of 20 months respectively. His wife has been back at work for 3 years, except for 7 months leave which she took for the birth of the twins. The prisoner's family are supportive of him and he is described as a good family man and a good father to the children. I have been asked to take into account a charge of supply a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 as noted on Form 1. He was arrested on 25 August 1999 and has been in custody since that date. 18 The accessory pleaded guilty to two counts of accessory after the fact to murder relating to his part in the disposal of the bodies. He co-operated with police, led them to where the bodies had been buried and later burnt at Stockton, and showed them where the keys of the deceaseds' cars had been buried, where cans of baby food from the garage had been dumped in a swamp, where wood and petrol had been purchased and so on. He offered to give evidence against the prisoner and subsequently did so and his narrative of events, supported in most instances by independent or objective evidence, considerably assisted the Crown case. He was sentenced to an effective term of imprisonment for 4 years and 4 months with a non-parole period of 2 years and 8 months. He also had drug matters taken into account on a Form 1. It was submitted that regard should be had to his sentences in sentencing the prisoner as otherwise the latter would feel a justifiable sense of grievance. I reject this submission. There can be no comparison between the objective gravity of the actual killings and being an accessory after the fact, and in addition with the pleas of guilty, assistance to the police, and the offer to give evidence, the accessory was entitled to, and received, significant discounts in his sentence. I therefore regard the sentences passed on the accessory as irrelevant. 19 I have read the Victim Impact Statements and, whilst I extend my sympathy to the families of both deceased, I do not consider the matters referred to in such Victim Impact Statements affect the sentences which should otherwise be imposed. Although the two killings were very closely related in point of time and probably also in motive (whatever that was), and it is therefore appropriate to make the sentences concurrent, the fact remains that two persons have had their lives cut short, but I also have regard to the principle of totality. 20 Kevin Paul Naismith on each count in the indictment that is for the murders of Danny John Wasley and Mark Andrew Banks respectively I sentence you to imprisonment for 33 years, such sentences to be served concurrently and are deemed to have commenced on 25 August 1999. I fix a non-parole period of 25 years. The earliest date on which you will be eligible to be released on parole will be 24 August 2024. I note that in sentencing you for the first count in the indictment I have taken into account the matter on the Form 1. -------------- Last Modified: 11/06/2000 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.