New South Wales Supreme Court CITATION : R v Wilson [2002] NSWSC 297 revised - 19/04/2002 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70073/01 HEARING DATE(S) : 11-15 March 18-20 March JUDGMENT DATE : 22 March 2002 PARTIES : Regina Shannon Blake Wilson JUDGMENT OF : Wood CJatCL at 1 COUNSEL : J Kiely SC(Crown) G Cusack QC SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : Special Hearing - jury -accused unfit to be tried - guilty on limited evidence available - limiting term set - referred to Mental Health Review Tribunal. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Mental Health (Criminal Procedure) Act 1990 The Queen v Veen (No.2) (1998) 164 CLR 465 R v Graff 2001 NSWCCA 3 R v Harris [2000] NSWCCA 469 R v Hearne 2001 NSWCCA 37 R v Holmes and Ratu NSWSC 18 December 2001 R v JB [1999] NSWCCA 93 CASES CITED : R v Leonard, CCA, 7 December 1998 R v Mastronadi (2000) 101 A Crim R 306 R v McDonald, CCA, 18 August 1994 R v Mills NSWCCA 3 April 1995 R v Mitchell (1999) 108 A Crim R 85 R v Tran [1999] NSWCCA 109 R v Walker [2000] NSWCCA 130 DECISION : Limiting Term of 18 years to commence from 21 October 1999. Accused referred to Mental Health Review Tribunal. Accused detained in custody. - 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WOOD CJ at CL Friday 22 March 2002 70073/01 REGINA v SHANNON BLAKE WILSON Special Hearing Persuant to s 19 of the Mental Health (Criminal Procedure) Act 1990 JUDGMENT - LIMITING TERM 1 HIS HONOUR: The accused has been found by a jury at a special hearing to have committed the offence of murder. He now appears before me so that I can: (a) determine whether, if the special hearing had been a normal trial against a person fit to be tried for that offence, I would have imposed a sentence of imprisonment; and, if that was the case, so that I can (b) specify a limiting term as defined by section 23(1) of the Mental Health (Criminal Procedure) Act 1990 . The limiting term must be "the best estimate of the sentence the Court would have considered appropriate", had the special hearing been a normal trial against an accused who was fit to be tried for murder, and who had been convicted of this offence. 2 As was made clear by the CCA in R v Mitchell (1999) 108 A Crim R 85, the Act did not authorise the division of a limiting term into a minimum term and an additional term, as was then required in the case of offenders sentenced under the Sentencing Act 1989, (since repealed). It was held that the specification of a minimum term was inconsistent with the review process provided for by the Mental Health (Criminal Procedure) Act, under which a person, subject to a limiting term, may be released by order of the Mental Health Review Tribunal at any point prior to the expiration of the limiting term. Furthermore, setting a minimum term, it was held, would not serve any rehabilitative process. The section was not amended when the Sentencing Act was replaced by the Crimes (Sentencing Procedure) Act 1999, which. in the case of an offender who is sentenced following conviction after a normal trial, now requires the fixing of a total term, and the specification of a non-parole period, which is designed to fix the minimum period for which the offender must remain in custody. The same reasoning to that identified in Mitchell applies. 3 Accordingly, I consider that my task is simply to nominate a single limiting term, being an estimate of the whole sentence which would have been appropriate, and not one which is designed to fix a minimum period of detention. 4 The decision in Mitchell stands additionally as authority for the following propositions: (a) That the limiting term is to be neither more harsh nor more lenient than that which would have been imposed as a total sentence, in the case of a person who was fit to stand trial; and (b) that the limiting term is to be nominated having regard to the objective circumstances of the offence and to such subjective circumstances as are present and relevant. 5 In this regard, it would be inappropriate to form any assessment or to make any assumption, for example, that had the accused been fit to be tried he may have elected to plead guilty to murder, or that if he had been able to give instructions to his counsel or to give evidence he may have been able to demonstrate contrition or remorse over and above that which is otherwise demonstrated on the evidence. FACTS 6 The evidence, which the jury not surprisingly accepted, showed beyond reasonable doubt that the accused committed the murder of Kevin Lester on 15 October 1999 in the course of a plan which he had formulated to lure a taxi driver, such as Mr Lester, out to a remote location in order to rob him. 7 The case clearly was one of felony murder of a taxi driver, who fell within that class of victim, which the courts have recognised are particularly vulnerable to attack. As has been explained, taxi drivers are forced to take people to locations of their choice, often at night, and in circumstances where they are very much defenceless from attack, no matter what precautions are taken in the way of safety barriers or the like. By reason of that circumstance, the element of general deterrence occupies a particular significance. Any sentence imposed in such a case after a normal trial would have to be such as demonstrated to all like-minded offenders that any manner of robbery or assault, and most particularly murder, of a taxi driver is likely to receive a condign sentence; see R v McDonald, CCA, 18 August 1994; R v Leonard, CCA, 7 December 1998; see also the remarks of Levine J when sentencing the offenders in the recent case of R v Holmes and Ratu NSWSC 18 December 2001. 8 The decisions in the cases that I have mentioned so far, as well as those in R v Walker [2000] NSWCCA 130 and R v Graff 2001 NSWCCA 3 provide some general guidance as to an appropriate range of sentence in a case such as the present, subject of course to the individual differences which they possess in terms of whether or not there was a plea of guilty, whether or not there was more than one offence and also whether or not there were personal, that is, subjective circumstances of particular relevance. In addition, I have had regard to the survey of sentences involving youthful offenders convicted of murder, conveniently recorded by the Court in R v Hearne. 9 In the present case, it is a matter of very great tragedy that an entirely innocent family man, working as a taxi driver, should have lost his life at the hands of a young man who was 18 years old and who was in need of the paltry sum of just $100 in order to pay for the screen printing of seven T-shirts for his bicyclist friends, and for his board. 10 Neither the procedures provided for a special hearing, nor the processes of law as they currently exist, which concentrate on the need for the facts to be presented to a Judge and jury in an impartial and dispassionate way, allow me to take into account, in relation to the period of any limiting term, the tragic consequences for the family of Mr Lester resulting from the act of the accused. Some of those circumstances have however been placed before me in the form of impact statements. They disclose as graphically as could be imagined the terrible tragedy which they have suffered; however, as I have indicated, the law does not permit me to increase the sentence by reason of the consequences which they have suffered. 11 The pressing position, in which the accused found himself on 15 October 1999, arose from the fact that despite several false assertions to the contrary made to the family with whom he was boarding, he had spent the Centrelink payments to which he had been entitled, up to that date, and upon which he depended for his support. His next payment was not due for another week, and it was untrue to assert, as he did, that he had not received the payments to which he was entitled by reason of some error on the part of Centrelink or because someone had untruthfully dobbed him in for working. 12 It was the case that because he could not get on with his stepfather, he was living as a boarder with Mr and Mrs Clyne, to whom he was paying $100 per fortnight, which board had fallen due by the beginning of the week commencing 11 October. It was also the case that while he needed to pay for the T-shirts for himself and his friends, the Clynes were prepared to allow him to apply $80 in round terms of his board towards the costs of the screen printing, and to accept the balance of $20 by way of satisfying his board. 13 By Friday 15 October, however, he was not in a position to pay these moneys or to fulfil the promise which he had made the preceding day to do so, that being a day on which Mr Clyne Senior had told him that if he could not pay his board then he would have to leave. Faced with that dilemma, it is clear that the accused decided to solve his problems by committing a robbery. 14 Dressed in camouflage clothing, and armed with a fishing knife taken from a fishing box owned by Mr Clyne, he made his way into Nowra and there called by phone for a taxi using the surname of his stepfather, even though he knew that he had no money to pay the fare. Once in the taxi, which was driven by Mr Lester, he gave instructions to be taken out to West Nowra. Initially, he asked Mr Lester to drive down Stonegarth Road. It may be concluded, beyond reasonable doubt that, on discovering that there were houses at the end of that street and realising that this was an unsuitable location for the planned robbery, he then asked Mr Lester to drive him out to Thompsons Point. 15 It may be interpolated that the area of West Nowra, to which the accused had taken Mr Lester, was a somewhat isolated area of bushland with numerous tracks through it, but it was also an area where there were farm lets on small blocks, as well as a campus of the Wollongong University under construction. It was additionally an area used by young people and by rock climbers. 16 Out at Thompsons Point there clearly was something of an altercation between the two men, in the course of which the accused struck Mr Lester once in the chest with the knife which he was carrying, occasioning him a deep and mortal wound, which penetrated a ventricle of the heart, a rib, the diaphragm and the liver of the deceased. The precise circumstances in which that altercation began and whether the accused first made a demand for money may never be known. However, what is clear, even on the most favourable version of the facts which can be taken from the second interview, is that Mr Lester did not offer any real threat of physical force or harm to the accused other than that which was entirely appropriate and legitimate for him to exercise in order to persuade the accused to drop the knife and to get back into the taxi cab so that he could be returned to the rank since he was unable to pay for his fare. 17 The suggestion offered by the accused to the effect that the death of Mr Lester was his fault, may be rejected out of hand as nonsense. The explanation which the accused offered to police, in his second record of interview, of having caught the taxi out to this area of town, which happened to be on the opposite side of Nowra to the area where he was living, simply so that he could do a runner, and that he had not formed any intention of taking money from Mr Lester until after he had realised that he was dead, was similarly absurd. 18 The answers which the accused gave in this interview concerning his purpose for taking the taxi trip, and the admittedly untrue answers which he had given in an earlier interview, reflect very adversely on his credibility generally as a historian of fact. That consideration was properly available to be taken into account by the jury when assessing the version of events which he gave as to how Mr Lester was stabbed. 19 In that earlier interview, he had given an account, which he had also given to Mr Clyne and to Mrs Vanteunenbroek, to the effect that he had been taken out to the tip in West Nowra by his mother and stepfather and unexpectedly abandoned there with the consequence that he had been forced to make his way back cross country through the bush to Filter Road where he had met, and been driven back to town by, Mrs Vanteunenbroek. This version was no doubt manufactured to explain the sighting of him coming out of the bush on that afternoon by two witnesses, and also to explain the fact of his meeting with Mrs Vanteunenbroek. 20 Several other deliberate lies, of a material kind, were also told by him in this interview relating to the problems which he claimed to have encountered with Centrelink; to the effect that he had managed to resolve that difficulty on the Friday by obtaining a counter cheque which he had been able to access via an ATM, which he had supplemented with coins won on a poker machine at the Ex-Servicemen's Club, and which he had then used to pay for the T-shirts and board; to the effect that he had not carried a knife that day or on any other day; to the effect that he had not caught a taxi; and to the effect that he was not familiar with Thompsons Point. Each was demonstrably untrue and each was promptly unravelled by police inquiries. 21 In considering the account which the accused gave concerning the altercation, it is also relevant to observe that his version of swinging the knife back over his shoulder with the intention of merely scratching Mr Lester, who was standing behind him, on the arm, so as to encourage him to let him go was improbable in the extreme and no doubt was duly rejected by the jury. Although it may well be that Mr Lester did attempt to restrain him by placing his hands on his shoulder so as to force him to drop the knife, I find beyond reasonable doubt, as did the jury, that the accused did not use the knife in self-defence. 22 Having killed Mr Lester with the knife, the accused, it is clear, took the coins from the taxi as well as the leather wallet which Mr Lester, who by that time had collapsed on his back in the bushes with his eyes open, was accustomed to carrying in his pocket. It may be that the accused made some attempt at CPR at this stage, but whether he did so or not, it is obvious that Mr Lester died very quickly from his wound and that within a very short period of doing so the accused stole his property. 23 The next step of the accused was to drive the taxi some 6 kilometres or so out to Longreach Road, where he threw a number of items of property and papers, including a cassette bag which Mr Lester used to carry money while working, into the scrub some 15 metres or so off the road. On one version of the events which the accused described in the second interview, he next drove the taxi back to an unmarked track, referred to as scene 1 in the evidence, near the University construction site. There he set the taxi on fire before, on this version, walking back to Thompsons Point where he found the plastic wallet of the deceased from which he took the banknotes which had been placed in it. On the alternative version, he drove straight back to Thompsons Point, where he collected the money from the plastic wallet, which he then threw into the bush before going back to scene 1, and torching the taxi. 24 His purpose in setting the taxi on fire, an event which he initiated by lighting the papers which he had touched, he acknowledged was in the hope of "getting away with it". Additionally, in the course of his movements about this area before walking out cross country to Filter Road, he threw the keys and a torch from the taxi, and a leather wallet of the deceased, into the scrub adjoining George Evans Road. He also buried the knife beside the road in this area. 25 Once back into town he paid for the T-shirts, paid the board and then entertained himself that night at the Ex-Servicemen's club. While the precise amount of money taken cannot be determined, the accused said it was in the order of $180. 26 He realised, some days later, that he was a suspect for the killing and on 21 October 1999 he presented himself to Nowra Police Station, ostensibly for the purposes of satisfying detectives of his innocence. When the story which he gave, in the interview which followed, unravelled as being inconsistent with the information which police already had, or thereafter obtained from his mother, who denied taking him out to the tip on the Friday, he embarked on the second interview in which he admitted his complicity in the killing. 27 In this interview, however, he denied ever having had any intention of robbing the deceased, at least before the stabbing, or of having any intention to harm him. He asserted, in substance, that he had only acted in self-defence and that it was after he had found the deceased was dead that he had taken the money and other items. 28 As I have observed, the jury disbelieved what the accused said in this respect, as do I. The inevitable and only rational inference available is that the accused took Mr Lester out to Thompsons Point, for the sole purpose of robbing him, and there killed him in the course of that plan in order to perfect it and not by way of self-defence. 29 His obvious rifling through and abandonment of documents and papers in the taxi, the abandonment of the leather wallet, which was found empty of money but still containing personal cards and records of Mr Lester, and the return to Thompsons Point to collect the notes from the plastic MLC wallet unequivocally establish what the accused's true purpose was. 30 On any view, the objective circumstances were very serious and were such as would inevitably require the imposition of a substantial term of imprisonment had this been a normal trial. In this regard, I have not overlooked that there are degrees of seriousness of the offence of felony murder, and that the objective gravity of any given case depends upon the actual acts of the offender which led to the victim's death; see R v JB [1999] NSWCCA 93 and R v Mills NSWCCA 3 April 1995. SUBJECTIVE CIRCUMSTANCES 31 The accused's subjective circumstances do not offer much by way of mitigation, save that by reason of his relative youth and immaturity he would have been entitled to the considerations which attach to youthful offenders after a normal trial, as noted in R v Hearne 2001 NSWCCA 37 relating, in particular, to the interests of rehabilitation. That is, however, subject to the qualifications which were mentioned in R v Mastronadi (2000) 101 A Crim R 306 and R v Tran [1999] NSWCCA 109. I take the view that the considerations of relevance for youthful offenders should equally apply in a case such as the present, when the function is one of imposing a limiting term. 32 The accused was born on 13 December 1980 and was aged 18 years at the time of the offence. He came from a somewhat dysfunctional home, being the second eldest in a family of 11 children which were the product of a number of relationships. He had been separated from his father for a lengthy period, and he had similarly found it necessary to move out of the home of his mother, although it is clear that he has a very strong attachment for her. 33 Psychological testing by Katherine Barrier reveals that his intelligence is in the below average range. Her testing also reveals that his personality is one which involves a particularly negative self-image and feelings of self-worth, although he was not tested out as being either marked socially insensitive or aggressive in his demeanour. 34 His education was extremely limited, having left school in year 8 after being expelled, although it appears that at a later stage he did resume his schooling for a short period. Either way, the evidence does show he had problems through his school years. He had never secured any form of permanent employment, although from time to time he has had somewhat menial part time jobs. 35 His life at the time of the offence was somewhat idle, involving the minor recreational use of cannabis and alcohol and centering around trivial pursuits with other young men of his age with whom he shared an interest, particularly in riding bicycles. It is clear that he would have welcomed obtaining employment in that area of activity, although it appears that for one reason or another he had not been able to do so. 36 Neither Dr Westmore nor Dr Neilson found him to have been suffering from any form of psychiatric illness at the time of the offence, although they did find that he was suffering significant depression, reactive no doubt to his involvement in the killing of Mr Lester. Each confirmed that he appeared to have been of compromised intelligence and to have been educationally impoverished. 37 In his most recent review of the accused, Dr Westmore thought that his significant depressive condition had now resolved, although it was apparent that the accused continued to become tearful, distressed and withdrawn when asked about his offence. It was Dr Westmore's impression that he uses defence mechanisms of repression, suppression and denial to help him cope with the trauma of what occurred, to the point of being quite unable to discuss it. 38 As a consequence, it appears to me that he is yet fully to come to grips with the enormity of what he did. He has no prior criminal convictions, and he was described by one witness, who had dealings with him, as a person who was rather timid and non-aggressive. That does tend to fit with the psychological testing. 39 I accept that, on this occasion, he behaved in a way which was out of character for him and that he was driven to act in the way which he did very foolishly by his immediate need for money. That explains what he did, but it does not in any way excuse it. 40 I would also accept, in his favour, that he had not set out on the venture with any specific intention of killing anyone or indeed of necessarily causing serious harm, although the possibility of that occurring is always present, to a significant degree, when anyone takes up an offensive weapon, such as a knife, in order to commit a robbery. The dangers of young men carrying knives have been demonstrated more than once and indeed in the decision in R v Hearne they were the subject of specific mention. There were there cited several decisions of the Court which have spoken of the abhorrence which the community holds for those who carry and use knives. Inevitably, the use of a knife will attract a substantial sentence. 41 While the accused has not been in a position to give evidence, there are some suggestions of remorse or contrition on his part insofar as he clearly was upset during the second interview, and was deeply depressed thereafter to the point of being either unable or unwilling to speak to psychiatrists or to others, including his own mother, about the offence. I would accept that so far as he is able to confront what he did, he regrets it and to that extent he is remorseful. 42 Were this a matter for sentence following a normal trial, it would be very difficult, on the evidence before me, to assess the accused's prospects of rehabilitation. The psychiatric reports and Miss Barrier's report do indicate that he is in need of long-term treatment, both for depression and counselling for his personality deficits and other problems. It would be appropriate that they be addressed during such time as he might be held in custody and also following his release. 43 I do observe that there is no material before me to suggest that the accused poses on a permanent or general basis, any risk of the kind considered by the Court in The Queen v Veen (No.2) (1998) 164 CLR 465, or that his culpability in the present offence was such as would have attracted an application of section 61(1) of the Crimes (Sentencing Procedure) Act, as that provision has been interpreted, for example, in the recent decision in R v Harris [2000] NSWCCA 469 in respect of which special leave was recently refused by the High Court. 44 In all of these circumstances: 1. I determine that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which the accused has been found to have committed, I would have imposed a sentence of imprisonment. 2. I nominate a limiting term in respect of that offence of 18 years to commence from 21 October 1999, being the date from which the accused has been held in custody. 3. In accordance with the requirements of section 24 of the Mental Health (Criminal Procedure) Act , I refer the accused to the Mental Health Review Tribunal, and pending notification of the determination of the Tribunal pursuant to section 24(3), and also pending further order of the Court, I order that the offender be detained at Silverwater Correctional Centre. ********** Last Modified: 04/22/2002 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. 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