REGINA v CROCKER [2000] NSWCCA 79

New South Wales Court of Criminal Appeal

CITATION : REGINA v CROCKER [2000] NSWCCA 79 FILE NUMBER(S) : CCA 60737/98 HEARING DATE(S) : 14 March 2000 JUDGMENT DATE : 14 March 2000

PARTIES : Gordon James Crocker - Appellant Crown - Respondent JUDGMENT OF : Sheller JA at 1; Dowd J at 53; Barr J at 54

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70069/97 LOWER COURT JUDICIAL Hulme J OFFICER :

COUNSEL : P Byrne SC - Appellant M Grogan - Crown SOLICITORS : Ross Hill & Associates - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL LAW - Appeal against sentence - Sentencing Act 1989 s5 - Whether 'statutory norm' - Minimum term - Relationship between minimum and additional terms - Whether statutory requirement to give reasons for so-called departures from conventional sentencing structure - where additional term less than minimum term - Sentencing statistics - Mitigating effect on sentence of guilty plea and absence of past violence where crimes horrific - Regard to enormity of criminal conduct LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 CASES CITED: The Queen v Kalache 200 NSWCCA 2 R v GDR (1994) 35 NSWLR 376 DECISION : Grant leave to appeal; Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL 60737/98

SHELLER JA DOWD J BARR J

Tuesday, 14 March 2000

REGINA v Gordon James CROCKER JUDGMENT

1 SHELLER JA: This is an application for leave to appeal against the severity of sentence. On 7 August 1998 the applicant, Gordon James Crocker, was sentenced by Hulme J on four charges to which he had pleaded guilty. Three of the charges related to offences committed on 3 June 1997. The fourth charge was that, on or about 13 June 1997, the applicant murdered Robert William Campbell. For that offence under s18 of the Crimes Act 1900, the maximum penalty is penal servitude for life, or twenty-five years. 2 The offences committed on 3 June 1997 at Fairy Meadow were, first, that in company with two others the applicant robbed Barry Raymond Thompson of cash, keys and a wallet and, immediately before, inflicted grievous bodily harm on him. Under s98 of the Crimes Act, the offence charged carries a maximum penalty of twenty-five years penal servitude. 3 The second charge was that the appellant stole Mr Thompson's motor vehicle. Under s154AA of the Crimes Act, the maximum penalty for that offence was ten years penal servitude. 4 The third charge was that the applicant maliciously destroyed the vehicle by fire. Under s195 (b) of the Crimes Act, the maximum penalty for that offence was ten years penal servitude. 5 The sentences Hulme J imposed were as follows: for the offence of robbing and inflicting grievous bodily harm, fifteen years penal servitude, comprising a minimum term of twelve years, commencing on 17 June 1997 and ending on 16 June 2009, and an additional term of three years. For each of the offences of stealing and maliciously destroying Mr Thompson's motor vehicle, his Honour imposed a fixed term of fifteen months penal servitude, commencing on 17 June 1997. For the offence of murder, his Honour imposed a total term of imprisonment of fifteen years, comprising a minimum term of ten years, commencing on 17 June 2009 and concluding on 16 June 2019, and an additional term of five years. 6 In his remarks on sentence, his Honour said that the aggregation of sentences and the period during which the prisoner will be institutionalised constituted special circumstances justifying the additional term forming a longer than usual proportion of the sentence. In the result, the effective term of imprisonment was one of twenty-two years by way of minimum term and a further five years by way of additional term. 7 Objectively, the charges of murder and robbery in company and having causing grievous bodily harm are serious, as the maximum statutory penalties indicate - indeed extremely serious. 8 The circumstances in which the applicant perpetrated the offences charged were horrific. They are set out in detail in Hulme J's remarks on sentence. What his Honour said about them has not been challenged on this application. 9 On the night of 3 June 1997, the applicant drove to a park with two friends with the intention of mugging someone. The applicant carried, as a weapon, a steering lock. One of the three having engaged the victim Mr Thompson in conversation, the applicant attempted to grab him and then hit him with the steering lock around the face. He repeatedly hit the victim to keep him quiet and continued to do so when the victim was on the ground. He hit the victim between ten and sixteen times and desisted only when pushed away by one of the others. The offenders took the victim's keys and opened his car and took his wallet, the contents of which they shared amongst themselves. Later, they returned and took the car to an isolated place and burnt it. They left the victim in the park to his fate. It is hard to imagine a more cowardly and brutal attack. 10 The sentencing Judge said the offences, objectively considered, fell well within the upper range of seriousness, although not at the extreme end of that range. The offence was planned and the harm at the high end of the range. His Honour said the offences of stealing and maliciously destroying Mr Thompson's vehicle were committed after further thought and, in one case, a conscious attempt to avoid the consequence of what had previously occurred. 11 The victim was found later that night in the park and, fortunately, survived. He was taken to hospital unconscious. He had multiple jagged lacerations, mainly over the left side of his scalp, with a single laceration over the right side. He had an extensive skull fracture running from front to back over the vertex of the skull. A CT scan showed extensive subarachnoid blood over the left hemisphere, with cerebral contusions. 12 Mr Thompson's condition deteriorated over a number of days, until it appeared to be hopeless. Despite that, his condition improved over a period. About three weeks after the attack, he had to be re-admitted to intensive care. He returned to a normal ward on 3 July. By 2 August, he was able to walk a few metres with the help of a frame and two people. He was starting to produce occasional intelligible words. A report of 16 June 1998 from his treating neurosurgeon said he had made an amazing recovery. His speech was almost normal and his memory for recent events reasonable. He still had problems with fine movements of his right upper limb. There was mild weakness of his right lower limb. He could not fully straighten his right knee and had no motor function around his right ankle. Mr Thompson was not able to be left on his own and was still residing at a halfway house, going home on weekends. 13 The neurosurgeon's view was that it would be impossible for Mr Thompson to resume his former occupation and, while he might be able to gain some employment, it would be limited to fairly simple tasks that do not require any complex mental processes. 14 Mr Thompson previously worked for the Commonwealth Bank and, at the time he was assaulted, he was aged fifty. 15 When arrested on 17 June 1997, at his recorded interview, the applicant denied the offences involving Mr Thompson and his car. However, later on that day he admitted his involvement. 16 On the afternoon of 13 June 1997, having consumed quantities of tablets he described as "like Valium" and beer, the applicant decided to go and rob someone because he needed some speed. He armed himself with a screwdriver and went to a park where he came upon Mr Robert Campbell at about 11.30pm. He spoke to and had some drinks with Mr Campbell. They talked for some time, amongst other things, about credit cards. One can infer that the applicant was trying to find out the pin numbers of Mr Campbell's credit cards. Mr Campbell gave him some information then stood up to go. The applicant grabbed Mr Campbell and pulled out the screwdriver. He put it to Mr Campbell's throat and demanded his cards and PIN numbers, threatening to kill him if he did not comply. One card was produced, otherwise Mr Campbell refused to comply. The applicant pushed the screwdriver harder against Mr Campbell's throat until it went in. The applicant then went into a frenzy and stabbed Mr Campbell about the throat, face and head forty-seven times. He then removed a card which had a paper slip with a PIN number on it and went to a bank and withdrew $200 from Mr Campbell's account at an ATM. An attempt to use another card failed. 17 The applicant went home, dropping the cards and some of Mr Campbell's other personal possessions in a drain. 18 Arriving home at about 2.30am, the applicant washed his hands and the screwdriver in an attempt to remove Mr Campbell's blood, returning the screwdriver to the kitchen drawer. He changed and rinsed his clothes, which had blood on them, and left them in the laundry to soak. He then took a taxi to Port Kembla and used part of Mr Campbell's money to buy speed. He then returned home. 19 When questioned on 18 June 1997 the applicant freely admitted his involvement in Mr Campbell's murder. 20 At the hearing on sentence, the sentencing Judge was provided with a number of psychiatric and psychological reports. From these it appears that the applicant came from a dysfunctional family. He alleged that he had been sexually assaulted when at an age between nine and eleven. He left school at the age of fifteen and had been unemployed since the age of seventeen. His substance abuse began when he was about nine or ten. The sentencing Judge said that he seemed to have been a heavy drug user by the time of the offences with which we are now concerned. Hulme J said: "With some variation in type, the prisoner seems to have been a heavy user of the drugs which I mentioned until the commission of the subject offences. He seems not to have used heroin or LSD, except at times when he has been in gaol." 21 The medical reports also suggest that the applicant suffered from a personality disorder of significant severity. At the time of commission of these offences, he was, it appears, disinhibited by alcohol and benzodiazepines. Hulme J said: "There is nothing to suggest that the prisoner will not revert to a life of drug-taking on his release…."