Regina v Michael James ELSWORTH [2000] NSWSC 582

New South Wales Supreme Court

CITATION : Regina v Michael James ELSWORTH [2000] NSWSC 582 FILE NUMBER(S) : SC 70062/96 HEARING DATE(S) : 5 April 2000 to 10 May 2000 JUDGMENT DATE : 30 June 2000

PARTIES : Regina Michael James ELSWORTH JUDGMENT OF : Sully J

COUNSEL : D. Arnott/J. Downing - Crown J. Hart - Accused SOLICITORS : S. E. O'Connor - Crown Christopher Murphy - Accused LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 The Queen v De Simoni (1981) 147 CLR 383 CASES CITED : Reg v Brown & ors. (1994) 1 AC 212 Lowe v The Queen (1984) 154 CLR 606 Wilson v The Queen (1992) 174 CLR 313 DECISION : (1) Conspiracy maliciously to inflict grievous bodily harm with intent so to do; (2) Accessory after the fact to murder; In each case: 9 years imprisonment, reduced for pre-sentence custody; non parole period 6 years 9 months similarly reduced. Sentences concurrent.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

30 June 2000

70062/96 - Regina v Michael James Elsworth

ON SENTENCE

1 HIS HONOUR: On 5 April 2000 Michael James Elsworth ("the prisoner") was presented for trial in this Court upon an indictment charging that on or about 20 October 1994 at Mount Pritchard he had murdered one Gary James Bennett ("the victim"). The prisoner pleaded not guilty and he was put accordingly upon trial by jury. 2 That trial proceeded until 10 May 2000, the twenty-second day of the trial. On that day the jury was discharged without verdict, and the prisoner was thereupon re-indicted. The new indictment contained two counts charging: first, that the prisoner had conspired, between 1 September 1994 and 20 October 1994, with one Fasel Jaber, one Gordon Pagett, and one Wayne Carrick, maliciously to inflict grievous bodily harm on the victim with intent to do grievous bodily harm to him; and, secondly, that the prisoner, knowing that some person or persons unknown to the police had murdered the victim between 19 October 1994 and 20 October 1994, had on 20 October 1994 assisted Gordon Pagett to dispose of the victim's body. The prisoner pleaded guilty to each of those two charges. He was formally convicted, and was remanded in custody to 12 May 2000. 3 On 12 May 2000 some documentary evidence relevant to sentence, and submissions on sentence, were received; and the prisoner was further remanded to 16 June 2000 for the finalisation of the proceedings on sentence, and in order that a pre-sentence psychiatric report about the prisoner might be obtained. It was indicated that the Court would formally pass sentence today. 4 On 16 June the Court received a psychiatric report from Dr. John Roberts, and heard further submissions on sentence. Dr. Roberts' report spoke, among other things, about the desirability of having the plaintiff tested psychometrically; and the proceedings on sentence were further adjourned to 23 June in order that such testing might be carried out. 5 On 23 June the Court was informed that Dr. John Taylor, who had been retained to do the psychometric testing, had been unwell; that he would be able, however, to see the prisoner over the week-end of 24/25 June; and that he would be able to have a report available in sufficient time to leave undisturbed the listing, as previously arranged, of the formal passing of sentence. In fact Dr. Taylor did review the prisoner's case, and submitted a report dated 26 June 2000. I shall have something to say later herein concerning the conclusions reached by Dr. Taylor. 6 It is appropriate to note, before proceeding to the necessary factual analyses both objective and subjective, that the two offences for which the prisoner now stands for sentence are by no means minor offences. The offence of conspiracy to inflict maliciously grievous bodily harm with intent so to do does not carry a particular statutory penalty, but the substantive offence of maliciously inflicting grievous bodily harm with intent so to do contravenes section 33 of the Crimes Act 1900 and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence of being an accessory after the fact to murder contravenes section 349 of the Crimes Act 1900 and attracts upon conviction the same statutory maximum penalty. 7 The events of 10 May last took place at a point in the trial where the Crown case had been closed; and the prisoner had embarked upon his own case, having given by then the whole of his evidence in chief, and having been partly, but extensively and thoroughly, cross-examined. 8 The Crown case thus presented against the prisoner postulated that the prisoner had engaged Pagett and Carrick to carry out, for reward to themselves, the abduction and beating of the victim; that the prisoner and Jaber had collaborated in selecting an opportune time and place for those things to be done; that the prisoner, then present at the abduction, had been recognised by the victim; that the prisoner, Pagett and Carrick had thereupon taken the victim back to the garage attached to the prisoner's then place of residence; that the prisoner had there murdered the victim by striking to his head a number of blows with a lump hammer; and that the prisoner had thereafter disposed of the body by, put simply, weighting it with concrete and dumping it in a body of water known as Clinch's Pond. 9 The postmortem findings were qualified necessarily by reason of the condition of the body when it was recovered some weeks after the death of the victim. The postmortem report does say, however, the following: "The postmortem findings are those of severe blunt injury to the head and face with extensive fracturing of the skull and fractures of the upper and lower jaw bones…………………………………….. The absence of other injuries to account for death suggests that the head injuries were in fact the cause of death; however, other causes such as drowning or suffocation cannot be excluded." 10 I am satisfied beyond reasonable doubt that the victim died as the result of injuries caused by blunt instrument blows to his head. 11 The Crown case at trial was put in two ways. It was put, first, as a direct eye witness case; the eye witness evidence coming from Pagett and Carrick, both of whom gave at trial evidence for the Crown. It was put, secondly, as a circumstantial evidence case, the relevant circumstances, as opened at trial, being, in summary, as follows: