New South Wales Supreme Court CITATION : Regina v TJA [2004] NSWSC 1308 HEARING DATE(S) : 28/06/2004, 5/7/2004, 30/07/2004, 9/08/2004 JUDGMENT DATE : 9 August 2004 JUDGMENT OF : Howie J at 1 DECISION : The offender is sentenced to a term of imprisonment of 22 1/2 years. There is to be a non-parole period, being the minimum sentence required to be served before release to parole, of imprisonment for 16 1/2 years. The sentence is to commence on 3 March 2003 and to expire on 2 September 2019 the date upon which he is eliigible to be released to parole. The balance of the term of the sentence is imprisonment for 6 years to date from 3 September 2019. CATCHWORDS : Criminal Law - Sentence for conviction of murder LEGISLATION CITED : Children (Criminal Proceedings) Act 1987 (NSW) Sentencing Act 1989 CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Way [2004] NSWCCA 131 PARTIES : Regina v TJA FILE NUMBER(S) : SC 70098/03 COUNSEL : P. Barnett - Crown Offender - S. Austin SOLICITORS : S. Kavanagh - Crown Coast Law - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J NEWCASTLE: MONDAY 9 AUGUST 2004 70098/03 REGINA v TJA REMARKS ON SENTENCE 1 HIS HONOUR: On 28 June last the offender, TJA, pleaded guilty to the murder of Michael Willard on 22 February 2003 at Muswellbrook. The offender shot Mr Willard at point blank range as he slept on the lounge in the family room of his home. The offender was in those premises, on material placed before me, because of an arrangement he had made with the deceased's wife to kill her husband so that she could obtain the proceeds of insurance policies recently taken out by her on his life. 2 The offender had been driven to the premises by his then partner, Danielle Wilkinson, and, having killed the deceased was driven by her from the scene. Both the offender and Ms Wilkinson hoped to obtain financial or other benefits from the deceased's wife, as a result of their involvement in the killing of the husband, when she obtained the proceeds of the insurance policies. 3 A very brief statement of facts reveals the seriousness of the offence for which the offender must be sentenced. It is a murder towards the upper end of seriousness for offences of its kind, being in fact a contract killing, although, as I noted in sentencing Ms Wilkinson, of a domestic rather than a commercial nature. I sentenced Ms Wilkinson, following her plea of guilty to the same offence, to imprisonment for twenty-two and a half years with a non-parole period of sixteen and a half years. That sentence was calculated on the basis of allowing her a 20 percent discount for her plea of guilty and an additional five percent on the basis of her expressions of contrition and remorse from a period shortly after the killing through until she pleaded guilty in the Supreme Court. I also took into account, in her case, in determining those discounts, that much of the evidence which indicated her participation in the offence came, in effect, from admissions made by her to other persons, as a result of the remorse she felt at her involvement in the offence. 4 The immediate question then that arises, by reason of issues of parity, is whether the offender should receive the same sentence as I imposed upon Ms Wilkinson, he and she being both parties in a joint criminal enterprise with the deceased's wife, to commit the murder. 5 Counsel for the offender, in my view very properly and with due regard for the welfare of his client, conceded that his client could, in effect, have no argument against a sentence being the same as that imposed by me on Ms Wilkinson as a proper punishment of the offence committed by him. The Crown, similarly, did not seek to dissuade me from imposing a sentence upon the offender of the same magnitude as that imposed upon Ms Wilkinson. That I intend to do. 6 It is unnecessary for me to detail the facts of this matter. I did so when I sentenced Ms Wilkinson and they do not differ significantly between the two of them. In brief, Ms Wilkinson was a friend of Ms Willard and it was because of that relationship that she became party to the other's scheme to kill her husband for about $250,000. Ms Wilkinson, because of her relationship with the offender, involved him in the plan in an indirect rather than direct way. It was no doubt that both Ms Wilkinson and the offender were dependent upon amphetamine that they were each able to be persuaded to assist Ms Willard, notwithstanding that they had no prior involvement in offences of such a nature. In fact neither of them have any convictions for offences of violence. 7 The offender became involved in the plan about a week before the killing. It was about the same time as he met Ms Wilkinson and formed a relationship with her. He told a Juvenile Justice officer, preparing a report for the court, that he overheard a conversation between Ms Wilkinson and Ms Willard about trying to find somebody to kill Ms Willard's husband. He understood that if he assisted in the enterprise he was to receive $20,000 and the motorbike. It seemed there were two matters which motivated him to commit this offence, the first being the benefit that he was to obtain if Ms Willard was able to obtain the proceeds of the insurance policies, and the second was that he wished to impress Ms Wilkinson. 8 He obtained the weapon, a cut-down rifle, from a friend. He told the officer that, although Ms Wilkinson had tried to dissuade him from carrying out the killing, he told her that he had his mind set to do it. 9 Ms Willard had, on the material before me, provided accommodation and a motor vehicle to the offender and Ms Wilkinson prior to the killing. Ms Wilkinson drove the offender to the house in that motor vehicle, at which time the deceased, his wife and two of their children were at home. It is the Crown case against the offender that Ms Willard arranged for him to obtain entry into the home and after he shot the deceased she made it appear as if the killing had occurred in the course of an attempted burglary of the house before she then raised the alarm with police. 10 After the shooting the offender disposed of the firearm, his shoes and items of clothing in a backpack and threw it into a dam on the outskirts of the town of Muswellbrook. Police divers later retrieved the pack and its contents. 11 The offender and Ms Wilkinson returned to the Willard premises the next day to help the wife clean up and dispose of the lounge on which her husband had died. On that day also the offender and Ms Wilkinson went to a local store and attempted to purchase goods to the value of $355 using a cheque belonging to Ms Willard. 12 In the days after the shooting both the offender and Ms Wilkinson became remorseful about what they had done. Ms Wilkinson's sister saw the two of them embracing and crying. She heard her sister saying words to the effect of, "What have we done? We're gone. What have we done?" A close associate of the offender, having heard a rumour that he had been responsible for the killing, confronted him and asked him if he had done so but the offender was unable to look at him. This friend noted that, in the days following the killing, the offender appeared to be acting in a manner completely out of his normal character. However, after he was arrested for murder, the offender denied any involvement in the killing. When interviewed by police he told them that he and Ms Wilkinson were sleeping together when the shooting had taken place. When Ms Wilkinson was arrested, however, police found a plan of the Willard premises in a bag that she had been using and that plan had marked upon it the area where the deceased was shot. 13 The offender told the Juvenile Justice officer that on the day prior to the killing he had injected himself with amphetamine. He said he was scared at the time of the shooting but was, in his words, "charged up" by his use of drugs. 14 As I have already indicated, these facts reveal a serious case of premeditated murder for reward. There is nothing to suggest that the offender could have held any animosity towards the deceased at all. He hardly knew him. Yet he was prepared to shoot him for his own gain, both financially and to his esteem in the eyes of Ms Wilkinson. 15 As I said when sentencing Ms Wilkinson there is little difference in the culpability of each of them, either legally or morally, having regard to the fact that they were each engaged in this criminal enterprise and notwithstanding that it was, in fact, the offender who actually killed the hapless victim. 16 In Ms Wilkinson's case I accepted the Crown's concession that, although a most serious case of murder, it was not one that warranted a sentence of life imprisonment because of Ms Wilkinson's susceptibility to the influence of Ms Willard as a result of Ms Wilkinson's involvement with drugs, and that Ms Willard had seen the flaw in Ms Wilkinson's character and acted upon it. 17 I am prepared to take the same view of the offender. He was besotted with Ms Wilkinson because she was not an unattractive woman, because she was considerably older than him and because she had shown some concern about his overindulgence in amphetamine at the time prior to the shooting. 18 There are a number of factors that both aggravate and mitigate the offence committed by Ms Wilkinson and that committed by the offender. On the one hand there are matters that tell against the offender, such as the fact that he was on bail and on a bond at the time of the commission of the offence. It has always been considered to be a matter of aggravation that a person is on conditional liberty at the time a person commits an offence. Matters of general deterrence, and even specific deterrence, become important in order that the court maintains the community's acceptance of persons being allowed at large in the community under supervision from Government agencies and under conditions imposed by the court. Where those conditions are breached and a person commits a serious offence the courts must deal with it, as I have already indicated, as a seriously aggravating feature. 19 On the other hand the offender was much younger than Ms Wilkinson and although less regard can be had to the age of an offender in crimes of great seriousness, such as this crime of murder, clearly there is a difference in the approach to sentencing a young man than there is in a more mature person such as Ms Wilkinson. 20 The offender is now aged 18, he will be 19 in November next. He has been in custody since his arrest on 3 March. There is before me a Juvenile Justice report which sets out the background of the offender. It is an unhappy one to say the least. There are many persons in the community who find themselves in trouble with the law and to some extent either blame or seek an explanation for their conduct in the background and the behaviour of others to them. Many of them have not been in the situation where this offender has found himself through no fault of his own. He has been subject to a highly deprived formative period of his life, deprived in every sense of the word, not only in the lack of many of the benefits that we and other members of the community take for granted but he has been deprived of those matters that people believe are fundamental to human life and upbringing in our community and it is of great sadness that there can be young persons who suffer the deprivations that the offender suffered during the course of his upbringing and unfortunately, as so often is the case, it leads to further suffering by way of a sentence to lengthy terms of imprisonment. 21 It is unnecessary for present purposes, and because of the way the sentencing proceedings have been conducted, for me to detail the unhappy circumstances which brought the offender to commit this crime. This is not to suggest that in some way I can understand what he did or that these circumstances really explain it or mitigate it, but as his counsel so eloquently said he is a young man, not a monster, and one can only find the explanation for this callous killing of a completely innocent man in his own home as he slept by those influences in society that have worked upon him up until the time of the shooting and at the time when he decided to commit the offence. 22 Without indulging in homespun psychology there are many reasons why he acted as he did in the circumstances in which he found himself, as set out in the Juvenile Justice report, and they are matters which, to a very significant degree, mitigate his criminality, as high as it is. One highly significant matter is the offender's involvement with illegal drugs. In very many cases that come before the Court offenders have committed crimes because of their dependency upon amphetamine or some other illegal substance. On many occasions that can be seen as no more than matters of indulgence to some degree, but in some cases, and relatively rare ones, and the offender's is one, where the use of drugs can in no way be seen to be a result of some personal decision made by the offender to indulge himself, or herself in this way. 23 The material in the Juvenile Justice report, corroborated as it is by statements made by the offender's elder sister, indicate that from a very early age, about the age of seven, he was introduced to the use of drugs as normal social intercourse within his family. Further, according to the report, the offender began, shortly before the commission of the offence, to use amphetamine by injecting them, having been introduced to that method of taking drugs by another family member. It is to be noted at all times that he was at that stage still only seventeen. Whereas the use or abuse of drugs might explain criminal behaviour it rarely mitigates it. But as was pointed out in R v Henry (1999) 46 NSWLR 346 by Wood CJ there are circumstances where drug usage can be seen as a mitigating factor and one of them is where the person has become involved in the use or misuse of drugs through no fault of that person, for example where the person has been using drugs because of some illness or injury or, as in this case, because the person was introduced to drugs by older, more mature persons who should have had care for his responsibility at an age when he had no capacity to make a determination on his own behalf as to whether or not to use those substances. The result is that throughout his formative years the offender has been involved in the misuse of drugs to some varying degree. At the time of the offence he was highly involved in the use of amphetamine to such an extent that observations had been made of his behaviour at that time. 24 Another highly significant matter in this particular case is his relationship with his co-offender Ms Wilkinson. Again courts frequently have offenders coming before it explaining or excusing a person's conduct on the fact that they have been led astray, or some older person misdirected them or that they were the victims of their own peer pressures. This case - again it is an unusual and exceptional case. It is clear that by reason of his formative years and his background the offender has a vulnerable personality to persons of female gender who are significantly older than he is. 25 There are three relationships noted in the Juvenile Justice report. One of them was with a female who was aged 30 while the offender was aged 16. That relationship ended in the child being born, who is now still a young child. The co-offender Ms Wilkinson was 26 or 27 at the time of the commission of the offence and there is no doubt at all that the offender was deeply influenced by her and sought to impress her as part of his need for such a relationship by becoming involved in the offence. To Ms Wilkinson's credit it appears that at some stage she tried to dissuade him from carrying out the killing but no doubt for reasons best known to the prisoner and part of his personality he determined to continue with the enterprise. 26 Again the offender is motivated by facts or circumstances which so often motivate criminal offences and that is obtaining financial benefits. Many times the Court sees persons who are motivated by greed. I do not think this is such a case. The offender again has a most unfortunate and deprived background so far as items, either matters of luxury or matters considered as normal everyday items of necessity are concerned. The offender would have been highly motivated by the promise of a considerable sum of money which, to him, must have seemed as the answer to the problems and crises that had dogged him throughout his life up until that age. 27 None of what I have said is, as I have already conceded, possible as explaining the conduct of the offender and in no way can be seen as condoning what he did but as I have indicated it rather puts a more personal profile on the prisoner and sees him, to some degree, as a result of influences upon him over which he had no control. Still the prisoner must be punished and must be severely punished for taking the life of another human being and taking it in the way that he did. The sentence that I imposed upon Ms Wilkinson was a heavy one for a relatively young person of 27. What must that sentence be like for a man of 18, but it is the only sentence that can properly reflect the court's insistence upon denouncing the taking of human life and seeking to deter others from similarly becoming involved in schemes or plans to obtain money at the cost of the taking of life of an innocent person. 28 There has been some debate before me as to the quantum of discount that the offender is entitled to, having regard to the fact of his plea, which occurred about a month before his trial was due to commence. There has been also discussion about whether the extent of the discount for him should be the same as it was for Ms Wilkinson, seeing that her plea was given in February of this year and at a time which was brought forward by the defence so that Ms Wilkinson could be sentenced and have the matter finalised. 29 Again it seems to me that there are different ways of looking at the matter. To some extent I think that Ms Wilkinson was entitled to a more significant discount than was the offender. I think there has to be a difference in a person who pleads guilty at arraignment and a person who pleads guilty shortly before a trial is to commence. However both of them are, in my view, or were, truly remorseful very shortly after the offence and that remorse and contrition has continued in the offender's case up to the present time. That remorse has been expressed in a number of ways, two of which I have already indicated by his reactions shortly after the offence but also by what he has said to the Juvenile Justice officer and in the letter that he has had written on his behalf to the Court expressing his sorrow for the devastating effect that he has brought about on the family of the deceased by his actions. There were also expressions of remorse that have been made to the Chaplain who administers to the offender in his Juvenile Justice detention centre. 30 This is an offence which requires the Court to have consideration to the amendments recently made to the Sentencing Act. The provisions do not apply directly because, as was pointed out in R v Way [2004] NSWCCA 131, the standard non-parole period provisions are determined on the basis of a person who is convicted after trial, whereas the offender pleaded guilty. However the stated non-parole period of 20 years, which is set out in the provisions, is not irrelevant when considering the appropriate sentence to be imposed upon the offender and even though the matter was not brought to my attention when I sentenced Ms Wilkinson, having reviewed that sentence, in the light of those provisions I am satisfied that it was an appropriate one in any event and it remains an appropriate sentence to impose upon the offender, having regard to those provisions. 31 The question which then arises is whether there are exceptional circumstances, under section 19 of the Children Criminal Proceedings Act, so that I would be justified in making an order that the offender remain in the Juvenile Justice detention centre, notwithstanding that he has attained the age of 18 years. The special circumstances in my view are, in the present case, that the applicant is not normally, or by nature, a violent person and the offence was very much out of character, in so far as it was an act of violence. I have already indicated that it was an offence which arose in a particular set of circumstances unlikely to occur again. He has been in custody since the date of his arrest when he was aged only 17. He has shown considerable remorse from shortly after the commission of the offence continuing to the present time. He will have to spend a very lengthy period in custody before he will be entitled to be released to parole. It seems to me that having regard to his personality difficulties as are mentioned in the Juvenile Justice Report and which no doubt led him to commit the offence that these later formative years of his will be best served in the situation which he is presently, where there are particular courses which he has been undertaking and which are available to him to assist him to regain some part of his life when he can be released. 32 To some extent society has let him down in a very significant way throughout his early years. And it seems to me now that there is an obligation to try to make it up to him, at least by providing him with assistance that he did not have through much of his early life. 33 As I say, I see him as no threat to any person in the detention centre and to the contrary so far the only threat that he has made has been to himself by personal harm. 34 In my view there are special circumstances and I make the order which will allow him to remain in custody until he is twenty-one years of age subject to any other order that may be made by some responsible person. 35 The remarks are somewhat abbreviated by the situation that both the Crown and the defence accept that the appropriate sentence in this case is that that is imposed upon Miss Wilkinson for the reasons that I have already given. 36 In those circumstances you are sentenced to a term of imprisonment of twenty-two and a half years. There is to be a non-parole period, being the minimum sentence that you are required to serve before released to parole, of imprisonment for sixteen and a half years. The sentence is to commence on 3 March 2003 and to expire on 2 September 2019 the date upon which you will be eligible to be released to parole. The balance of the term of the sentence therefore is imprisonment for six years to date from 3 September 2019. 37 HIS HONOUR: Mr Crown is there anything that I have not mentioned, any order that I have not made that I intended to make, anything undone. 38 BARNETT: Not that I'm aware of your Honour. 39 HIS HONOUR: I should indicate this, in sentencing TJA the victim impact statement was before me and which I read when sentencing Miss Wilkinson. I have, during the course of the trial of Miss Willard observed the effect of the killing of the deceased upon his family and the impact of that trial upon them. At least the accused saved them that agony by his pleas of guilty and has done that part, at least, that he can seek to do to address the very grave wrong that he did to members of the family. I simply note that in sentencing the prisoner. Is there anything that I have left undone Mr Austin. 40 AUSTIN: Not from my part your Honour. 41 HIS HONOUR: Yes alright, thank you very much for your assistance gentlemen. ********** Last Modified: 07/16/2007 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.