New South Wales Supreme Court CITATION : REGINA v NEVILLE [2000] NSWSC 841 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70011/99 HEARING DATE(S) : 26/8/99, 11/10/99, 22/10/99, 18/2/00, 21/7/00, 24/8/00 JUDGMENT DATE : 24 August 2000 Regina PARTIES : v Robert Ernest Neville JUDGMENT OF : Adams J at 1 COUNSEL : Mr N A Harrison (Crown) Mr Maurice Gelbert (Accused) SOLICITORS : S E O'Connor (Crown) Ross Hill & Associates (Accused) CATCHWORDS : Solicit to maliciously inflict grievous bodily harm - sentence - significance of mental illness where partial explanation for offence - 7 years 2 months with 4 years non-parole period DECISION : See paragraph 19 Revised THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J THURSDAY 24 AUGUST 2000 70011/99 REGINA v ROBERT ERNEST NEVILLE SENTENCE 1 HIS HONOUR: On 11 October 1999, Robert Ernest Neville pleaded guilty to a charge that between 26 January and 26 February 1998 at Coffs Harbour he solicited an undercover police operative to maliciously inflict grievous bodily harm on one Michael John Duck. 2 The offender, who is now almost 55 years of age, had known Michael Duck, now aged just over 30 years, since 1989, when they were neighbours in a set of home units at Coffs Harbour. Duck eventually became a paid employee in the offender's cabinet making business. After some time, the offender made sexual approaches to Duck, which were rejected. A couple of days later Duck ended his employment with the offender, but some weeks later the offender started to stalk him. It is clear that he had become obsessed with his proposed victim. These events commenced in 1993 and persisted more or less for about two years. In January 1995, Mr Duck took out an apprehended violence order against the offender but this was not entirely successful. Indeed, a few days after he had been served with the order, he rang Mr Duck's then employer and told him that Duck was a liar and a thief. The offender continued to stalk Mr Duck, although the evidence does not suggest the frequency of this behaviour. Mr Duck eventually became so depressed that he attempted suicide. 3 A report from the Coffs Harbour Base Hospital, where he was admitted following the attempt, however, mentions a number of stresses in his life capable of having a serious effect, but not the offender's behaviour. I find it difficult to reconcile this report with Mr Duck's statement as to the reasons for his attempted suicide, which was tendered in these proceedings. However, as no application was made by the defence to cross-examine Mr Duck upon his statements, I propose to act on his explanation in the statement. 4 In August 1995, another apprehended violence order was made against the offender for twelve months and his stalking and harassment ceased, although there were a number of occasions when he acted in apparent breach of the order. The offender started to contact Mr Duck's friends and made a series of vexatious complaints to police about Mr Duck being allegedly involved with the supply of prohibited drugs and other serious crimes. It is unnecessary to set them out, but the allegations were plainly false and, though partly delusional, I think to some extent they comprised deliberate lies. 5 In 1997, Mr Duck took a civil action for defamation against the offender, as I understand it, in connection with the allegations made by the offender either to his employers or the police or both. The action was settled and the offender agreed to pay Mr Duck's legal fees of approximately $10,000, probably in the form of a judgment by consent. 6 It appears, from what the offender told Dr Westmore in October 1999, that he could not pay the sum to Mr Duck and that the first instalment was due on 27 February 1998. I have no doubt that it was the impending obligation to make this instalment that principally motivated the offender to commit this offence rather than any delusional or paranoid notions concerning Mr Duck. 7 In January 1998 a community source contacted Coffs Harbour detectives with information concerning a plan initiated by the offender to arrange for Mr Duck's murder. On 17 February 1998, an undercover police operative contacted the offender and arranged a meeting. It is clear that the offender believed that the operative was willing to kill Mr Duck for a fee. Four days later the operative met with the offender at Coffs Harbour and an agreement was negotiated between them to cause grievous bodily injury to Duck. He said to the operative, "I don't give a shit whether you fucking kill him or what you fucking do. You can fucking maim him completely so it ruins his fucking life. I don't care, you please yourself. I mean I wasn't planning on killing him or anything, but I was planning on doing him something but it would put him out of action for fucking six months." The offender paid a deposit of $500 on an agreed price of $5,000. 8 The offender proposed that Mr Duck should be injured by running him off the Dorrigo Road whilst he was travelling to or from work on his motorcycle. The Dorrigo Road is, in parts, extremely dangerous and mountainous. The offender's proposal makes it clear that, while he intended him to be seriously injured, he was indifferent whether Mr Duck lived or died. The motivation for the crime was stated, by the offender to the operative, to be that he owed Mr Duck $20,000 and he believed that Mr Duck was doing his best, "to try and bankrupt me so I can lose my house and my workshop." 9 A number of allegations were made by the offender as to alleged crimes committed by Mr Duck. In my view, these were, at least to some extent, invented by him for the purpose of justifying the proposal which he put to the operative, although I cannot exclude the likelihood that his mental illness, to which I will shortly refer, was also a factor. 10 At the time in question Mr Duck indeed worked in Dorrigo for National Parks and Wildlife, as the offender informed the operative. He was also familiar with Mr Duck's hours of work. He had obviously been watching him. I will deal with the offender's evidence in due course, but I should note here that he said in his evidence before me that it was not him, but the police officer who, "was insinuating that I wanted him killed" and that he was in a flustered, non-focused state at the time. This evidence must be rejected. It is clear from the transcript of the conversations between the offender and the operative that the offender was clear, unconfused and focused. No other interpretation is possible, but that the offender was entirely responsible for the course of the negotiations and the agreement ultimately struck. Furthermore, I have concluded that his motive for doing so was to avoid, if he could, paying his debt to Mr Duck. 11 The offender gave evidence on the hearing of the plea on sentence on 18 February 2000. He had been examined by Dr Westmore on 7 October 1999 and said that he intended to defend the charge upon the basis that he was entrapped. As I have already said, this was not true. In this consultation the offender alleged, in effect, that Mr Duck had committed a number of sexually exhibitionist acts towards him and thought Mr Duck was infatuated with him. I should, in fairness, state that these allegations were later withdrawn by Mr Neville and I am satisfied that they contain no element of truth. 12 At the time of this interview Mr Neville was being treated with an anti-psychotic drug. Dr Westmore thought that the offender's presentation suggested that he was suffering from a delusional disorder presenting strong ideas of persecution and others of a sexual nature. He thought that this illness was likely to have been present for a number of years. Dr Westmore noted that whilst the offender was mentally ill, there was no indication that this condition played any direct role in the alleged offence. He concluded that the offender was not acting on delusions or command hallucinations, nor was his understanding of the legal and moral wrongness of his behaviour affected. This is significant in measuring the extent to which the offender's culpability is mitigated by his mental disturbance. 13 In March 2000, the offender was again seen by Dr Westmore. Despite his continuing treatment with anti-psychotic medication, he repeated his allegations against Mr Duck but conceded that he (the offender) was bisexual, although he denied any homosexual activities. Again, Dr Westmore considered that the offender suffered from delusions, especially regarding Mr Duck, and that although there was some evidence that his mental state was settling, he still held delusional beliefs. 14 On 21 July 2000, this matter came before me once more. When questioned by his counsel, the offender admitted that the allegations he had made against Mr Duck, not only concerning criminal behaviour but also concerning sexual advances made to him, were false and that he wished to withdraw the evidence that he gave on the previous occasion, to which I have briefly referred. He said that his current medication was helping him to think more clearly and that he intended to continue to take it. He said that he was deeply sorry for what had happened to Mr Duck and his family. He said that he accepted that Mr Duck's statement about what the offender had done to him was true. 15 Dr Westmore was also called to give evidence and reported that he had seen the offender on the morning of the hearing. He said that the offender had presented differently from his previous meetings, in the sense that he was now demonstrating much greater flexibility of thought, with some insight into the fact that medication was helping him to clarify his thinking. He no longer appeared to be depressed and said that he understood he needed to stay on medication and continue to see a psychiatrist. Dr Westmore thought that the anti-psychotic medication was plainly changing his mental state. A patient such as the offender needed to remain under psychiatric care, probably with monthly appointments, for a protracted period of time and continue to take his medication. Dr Westmore thought that, since the condition from which he suffered can be treatment-resistant and, considering the length of time he has been taking the medication, the offender's progress was very good. He pointed out that since illness of this kind tends to occur in mid to later life, the personality tends to be preserved so that it tended to be a long term disorder, often resistant to treatment. Generally, if such a patient remains compliant with medication, the changes in their mental state are likely to persist, but if they stopped medication, there is the risk of mental illness redeveloping. 16 Dr Westmore was not cross-examined by the Crown prosecutor in order to contradict or place in controversy any part of his opinion. For practical purposes, therefore, both the Crown and the defence were agreed as to the evidence of the offender's mental illness. 17 In addition to the reports of Dr Westmore, whose opinion I accept, the offender has tendered a number of medical reports and personal testimonials. The medical reports show that certainly in mid-1995, that is, well before the offence, the offender was exhibiting distinctly paranoid thoughts which caused concern, although his disorder was not frank and there were signs of improvement as the year progressed, despite his refusal to take medication. In June 1996 he took an overdose of Valium, which was thought to be spontaneous, and he was not seen as actively suicidal. However, his psychiatrist considered that he remained chronically distressed with some symptoms of depression persisting into February 1997. 18 Despite these problems the offender continued in other areas of his life to be apparently well adjusted, with his obsessional and delusional behaviour being well-concealed from those with whom he associated. It is clear he was a dedicated father, devoted to caring for his two children, he and his wife having separated. Those who knew him well considered his crime to be completely out of character. 19 There is no doubt that objectively this offence is a most serious one and in the circumstances almost as serious as incitement to murder. However, I am satisfied that the offender was affected, at the time, by his delusional state and associated paranoia. Even so, it is clear that these disordered notions were not the direct or even the prime elements motivating him to make the arrangements in question. That was motivated principally, in my view, by the offender's inability to pay his debt to Mr Duck and his hope that if Mr Duck was seriously injured, he would not press for payment, combined, no doubt, with a desire to avenge himself on Mr Duck for succeeding in obtaining judgment, albeit on a settlement, and his resentment resulting from Mr Duck's rejection of his sexual overtures. Dr Westmore did not state that the offender's commission of the offence was significantly caused by his mental illness, but I accept that it played some role. 20 I am concerned whether, despite his treatment, the offender continues to be dangerous, noting in particular the difficulty of measuring, with any real degree of confidence, the extent to which the delusions and paranoid thinking contributed to his motivation for, and rationalisation of, the offence. 21 Dr Westmore did not suggest, and I am unable to discern, any interpretation of the offender's conversation with the undercover operative which demonstrates the effects of mental illness. It is impossible to be reasonably certain whether his allegations about the intended victim were delusions or, on the other hand, false, opportunistic allegations, designed to justify, if he could, the purpose of the agreement, allegations which he has persisted in for, one supposes, much the same reasons, whatever they are. I think that they probably resulted from both factors. 22 The Crown prosecutor did not suggest that the offender's post-offence statements were deliberate lies, nor did he seek to cross-examine him to this effect. Accordingly, I consider that I must deal with the offender on the basis that the offender's allegations against Mr Duck were, indeed, significantly delusional. But, this does not mean that he bears no culpability for the offence, since it was not predicated upon or instigated by the offender's beliefs about Mr Duck's character or behaviour (though I accept that it was affected to some extent by these matters). Nor does it mean that he is not a dangerous man. 23 I have already indicated that the offender's initial explanation for the offence was, in effect, that he had been set up. He claimed that at the time he was, "in a paranoid state" which he described as tiredness, loss of memory, indifference to work, thoughts of suicide and the beliefs about Mr Duck which I have earlier mentioned. There is, however, no explanation for the offence, either in the offender's evidence or in Dr Westmore's report. He has not even admitted that he agreed to have Mr Duck injured, except insofar as this is implicit in his plea of guilty, and he has not resiled from his allegation that he had been inveigled into the agreement by the police operative. As I have mentioned, this explanation does not survive the most cursory examination of the transcript of their conversations. In this context, the offender's expression of deep sorrow "for what has actually happened to Mr Duck and family" is not convincing. As Dr Westmore suggests, the offender has some distance to go. 24 Dr Westmore thought that the offender does not represent a short term risk and his long term future generally being favourable, "I think on balance he is unlikely to act in an offending way again", though ongoing psychiatric supervision was essential. The correctness of Dr Westmore's assessment depends upon whether there was a substantial link between the offence and the mental illness he has identified, and which I accept was present at all material times. However, he does not give an opinion, except by implication, that this link in fact provides any substantial explanation which significantly reduces the offender's moral culpability. 25 In the result, and on a consideration of all the circumstances, I consider that the offender's mental state was and is such as to give rise to special circumstances, and as well reduce somewhat his culpability for the crime and the applicability of the need for general deterrence. This is counterbalanced to some degree by my concern about the possibility that the offender continues to be dangerous and thus the importance of personal deterrence. These factors have all contributed to the sentence I impose, although it is, in the nature of things, impossible to quantify each element. 26 The offender pleaded guilty after the case had been listed for trial but, bearing in mind the difficulties brought about by his mental illness, I think he should, nevertheless, receive a substantial utilitarian discount. The plea merely acknowledged the inevitable. I have reduced the sentence which otherwise would have been imposed by 20%in accordance with the R v Thomson & Anor [2000] NSWCCA 309. The offender has been in custody since his arrest on 26 February 1998, and he has been held on remand since then. 27 Robert Ernest Neville, you are sentenced to a term of seven years and two months imprisonment to commence on 26 February 1998, with a non-parole period of four years. The earliest date upon which you are eligible for parole is 25 February 2002. 28 By consent I order that, pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, cash in the sum of $500 paid to the undercover police operative, the Harrington and Richardson shotgun seized by the police, and the documents seized at the residence of Robert Neville on 26 February 1998, be forfeited to the State. I give leave that, pursuant to s 19(3A) of the Act, the property forfeited above be disposed of forthwith. ********** Last Modified: 09/27/2000 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.