Regina v Wigney [2004] NSWCCA 171

New South Wales Court of Criminal Appeal

CITATION : Regina v Wigney [2004] NSWCCA 171 HEARING DATE(S) : Monday 3 May 2004 JUDGMENT DATE : 2 June 2004

JUDGMENT OF : Grove J at 1; Dunford J at 39; Howie J at 40 DECISION : APPEAL ALLOWED; RESPONDENT RESENTENCED

CATCHWORDS : CRIMINAL LAW - SENTENCE - MURDER AND OTHER UNRELATED OFFENCES - CROWN APPEAL - INADEQUACY CASES CITED : R v Mills, unrep. NSWCCA 3 April 95 PARTIES : Regina v Shane John Wigney FILE NUMBER(S) : CCA 60509/03 COUNSEL : E. Wilkins (Crown/Applicant) P. Byrne SC (Respondent) SOLICITORS : S. Kavanagh (Crown) S. O'Connor (Respondent)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70064/02 FILE NUMBER(S) : LOWER COURT Adams J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60509/03

GROVE J DUNFORD J HOWIE J

Wednesday 2 June 2004 REGINA v SHANE JOHN WIGNEY Judgment

1 GROVE J: This is a Crown appeal asserting the inadequacy of sentences imposed by Adams J on 3 December 2003. Notice of appeal was filed and served on the respondent on 10 December 2003. For a series of crimes an effective overall sentence of sixteen years eight months with a non parole period of eleven years six months was imposed. 2 The chronicle of the respondent's offences commenced on 7 May 2001 when he broke and entered house premises at Ashbury by smashing an entry door. He stole electric and electronic equipment valued at $6,300. He apparently injured himself in gaining entry and later a blood deposit was found to match DNA database information concerning him. Arising out of this an offence of breaking, entering and stealing was sought to be, and was taken into account in the sentencing proceedings in respect of which this appeal is concerned by the respondent's completion of an appropriate Form 1. 3 At the time of this and all other relevant offences, the respondent was on parole following conviction for other offences of breaking, entering and stealing at Sydney District Court on 10 February 2000. His parole expiry date was scheduled for 28 January 2002. 4 On 29 June 2001 the respondent broke into premises at Ryde by using a jemmy on the front door. The whole premises were ransacked and electrical, camera and house entertainment items valued at approximately $20,000 were stolen. Also taken was a bank access card. Later that day the respondent's image was captured on an ATM surveillance video as he withdrew $1,500 by use of the stolen card. Offences of breaking, entering and stealing and dishonestly obtaining money by deception were included on the Form 1 which the respondent signed. 5 On 11 July 2001 in company with another male the respondent, whilst armed with a .45 calibre colt pistol, robbed jewellery and money from shop premises at Hurlstone Park. Whilst making an escape, the respondent fired a shot into the air from his pistol. A charge of robbery whilst armed with a dangerous weapon was the second count in the indictment presented against the respondent. 6 At 2.20 am on Thursday 19 July 2001 the respondent, again in company with another male, entered the Taverner's Hotel at Leichhardt. The respondent was armed with a .45 calibre colt pistol (subsequently demonstrated to be that which he used in the robbery at Hurlstone Park) and his companion was armed with a knife. Their faces were concealed by beanies and masks in the fashion of balaclavas. They proceeded to use the weapons to persuade the hotel staff to hand over cash. Patrons who were present were ordered to lie on the floor. The respondent was distracted by a female patron who was refusing to do so and this enabled a male patron to pick up a stool and strike the respondent about the head with it. The offenders fled. Mr Mark Jackson, an off duty manager of the hotel, pursued the respondent and caught him. A struggle ensued. The respondent fired two shots at Mr Jackson, the second of which struck him in the chest. He died on 19 July. 7 The offenders escaped but abandoned a number of items including the pistol and a glove. DNA detected on that glove provided a match with the profile of the respondent which was entered on a database. The first count in the indictment charged the murder of Mr Jackson. 8 On Friday 10 August 2001 the respondent and another man were seen by police in the Petersham area. They entered a Nissan Bluebird sedan which was subsequently identified as a stolen vehicle. The respondent occupied the driver's seat and drove off. A police vehicle commenced to follow it. Obviously the respondent became aware of this and the stolen vehicle accelerated past a red traffic control signal and moved at high speed through busy commercial and residential areas. Eventually police located it stationary at an intersection and they alighted from their car and surrounded the stolen vehicle with their weapons drawn. The respondent moved his vehicle backwards and forwards on many occasions, steering it at the armed police who were of course on foot and seeking to arrest him. The respondent then mounted the vehicle onto a footpath, manoeuvred it through light poles narrowly missing other pedestrians, and departed the area by driving on the incorrect side of the carriageway. 9 At 12.25 am the next morning police from the State Protection Group entered a boarding house at Petersham and evacuated the occupants. However, an observer in a helicopter noticed someone fleeing across rooftops. The police mounted onto the roofs and arrested the respondent there. Arising out of these events, offences of stealing a motor vehicle and using an offensive weapon to avoid apprehension were also included on the Form 1. 10 The learned judge structured the sentences by imposing imprisonment for thirteen years eight months with a non parole period of eight years six months dating from 10 August 2004 on the count of murder and imprisonment for six years with a non parole period of four years six months dating from 10 August 2001 on the count of armed robbery. The five offences on the Form 1 were taken into account in the latter imposition. 11 The Crown makes two express challenges in respect of matters found by his Honour and elaborated in his remarks on sentence. It is convenient to deal first with these. The matters are related. 12 The respondent had pleaded not guilty on arraignment for murder and a trial was fixed to begin on 14 April 2003. It apparently did not commence on that date, however on 17 April 2003 his legal representatives advised his intention to plead guilty and he did so on 22 April 2003. 13 His Honour was not prepared to find beyond reasonable doubt that the respondent intended to kill or inflict grievous bodily harm on Mr Jackson but he rejected a submission that the firing of the gun was "in substance, accidental". He found, more probably than not, "that the trigger was pulled almost reflexively during the struggle but the gun discharged because the offender had intentionally cocked it in the hope that this would frighten off his attackers". The "attackers" were those persons, including Mr Jackson, who were seeking to detain the armed robber. The crime had yielded just under $5,000 in loot. The Crown challenges the finding that the respondent fired the weapon in some reflex fashion. 14 The allied challenge is to a finding by his Honour that the Crown accepted that it was a fact that the respondent did not intend to kill or do grievous bodily harm to Mr Jackson. 15 The respondent gave evidence in the sentencing proceedings. Counsel then appearing for the respondent is recorded as being interrupted by his Honour as he commenced to refer to "what happened when the gun discharged" by a comment that the prosecutor did not (cross) examine him to suggest that he intended to kill or cause grievous bodily harm and his Honour added "I take it on the basis of the plea as agreed is felony murder". 16 The Crown Prosecutor responded that he chose not "to canvass it" because he intended to submit that felony murder was no less culpable than other forms of murder, that is intentional killing or killing when grievous bodily harm was intended. 17 This led to what the transcript conveys as the appearance of debate in which counsel for the respondent joined in. 18 The learned judge observed that he would regard it as "far more wicked to blindly (as transcribed) kill" than to do so when one had not thought about it. His concluding remark was that this Court had considered that in some cases of felony murder, sentence might be just as great as sentence for other forms of murder. The Crown Prosecutor said that he did not want to argue with that but in response to a specific question whether he wished to contend that the respondent intended to kill or cause grievous bodily harm, he responded affirmatively. His Honour then said that if it was desired to cross examine the respondent, he would give leave so to do. This provoked an objection by counsel for the respondent who argued that there was an agreement that the basis of the plea of guilty was that the respondent was liable for felony murder. The debate continued and the Crown Prosecutor adopted the position that, whilst it was true that in discussions with his colleague he had indicated that he had intended to "run the case" as felony murder, he had not abandoned the assertion of intentional killing although the discussions had not reached the stage of his being asked to make a decision about such an assertion. 19 In the event the respondent was not recalled for cross examination. 20 The references to these exchanges are not intended to suggest that remarks by a sentencing judge in the course of argument are revelatory of the process of reasoning in the same way as remarks on sentence can be examined for that purpose, but to demonstrate that the Crown expressly did not accept as a fact that the respondent did not intend to kill or cause previous bodily harm. His Honour's statement to the contrary was incorrect. 21 It is further argued that it was not reasonably open on the evidence nor on his Honour's analysis to find that the respondent pulled the trigger "almost reflexively". As already mentioned, he rejected the submission that the firing was accidental but "almost reflexively" would seem to convey something less than deliberately. Senior counsel appearing for the respondent in the appeal (who did not appear in the sentencing proceedings) suggested that the expression might be taken to mean "without adverting to the consequences". 22 The evidence that the discharge of the weapon was deliberate was incontrovertible. Passages in the respondent's evidence quoted by his Honour in his remarks on sentence include concession that the respondent knew the safety was engaged before he entered the hotel and that when he was in the street being (as he put it) kicked and punched, he cocked the pistol and loaded the round. His suggestion that he thought that his assailants would stop when they heard the cocking of the weapon might be assessed as bordering upon absurdity, but it implies nevertheless a consciousness of his actions at the time. 23 It might be observed that when interviewed by police on 15 August 2001 the respondent described firing two shots and indicated that the muzzle of the weapon was about eight inches from Mr Jackson's body at the time of discharge. Forensic examination described the pistol as a self loading type which required a force of 1.82 kilogrammes (17.88 newtons) to cause the trigger mechanism to function in single action mode. The concessions by the respondent are in harmony with a comment by his Honour to counsel that his "clear view of (the respondent's) evidence was that he knew very well that he was firing that gun". Counsel for the respondent said that he didn't "resile from that". Those observations are compatible with the indisputable fact that the respondent fired the pistol twice, a circumstance which is contradictory of a notion that the respondent fired "almost reflexively". 24 Both of the Crown's contentions are made out. The Crown did not accept that its assertion of felony murder excluded contention that the respondent intended to kill or cause grievous bodily harm. The evidence did not sustain a finding that the firing of the pistol by the respondent was "almost reflexive". 25 There was little of a subjective nature to assist the respondent. His Honour noted the aggravating feature of the commission of offences whilst on parole. A criminal record, described by his Honour as "a bad one", was a counter to leniency although he assessed the crimes on the current indictment as more serious by a considerable margin than anything on his record. It is disturbing however to note the recurrence on the record of offences involving firearms, two counts of possessing shortened firearms and a further similar charge taken into account on a schedule in 1993, possession of a prohibited weapon in 1996 and possession of weapons (not particularized) in Queensland in 1999. His Honour noted that the respondent was a long term user of illicit drugs and was afflicted by hepatitis. The respondent is not youthful being now thirty nine years of age (date of birth, 5 March 1965). 26 What could be taken into account to ameliorate sentence included the pleas of guilty although offered some time after early opportunity in the case of murder, but very promptly in the case of the charge of armed robbery. Although initial contact with police involved prevarication about the murder the respondent was later candid with them and the delayed plea of guilty was consistent with that change. His Honour found this candour to be prompted to a significant degree by genuine feelings of remorse and contrition. 27 Importantly, the respondent offered, and confirmed the offer in his evidence, to testify against his co-offender who was, he said, the same person involved in both the robbery at Hurlstone Park and the murder at the hotel in Leichhardt. A collateral consequence was the likelihood of his own custody in circumstances of protection. His custody up to the time of appearance for sentence had been in protection at Parklea and later in the Special Purposes Prison at Long Bay. 28 His Honour, rightly in my view, attached significance to the offers of the respondent to assist in the prosecution of his co-offender. It was not possible for his Honour to assess the usefulness of the assistance (see s 23(2)(b) Crimes (Sentencing Procedure) Act 1999) other than in a predictive way. At the hearing of the appeal the Court was informed that the co-offender had not to that point been charged in respect of the armed robbery at Hurlstone Park and that, upon indictment he had pleaded guilty to murder but later was permitted to withdraw that plea. A subsequent trial concluded with discharge of the jury which was unable to agree upon verdict. The evidence of the respondent was said to have extended over five days. On the count of murder his Honour determined an application of a "discount" of 35 percent for the combined factors of the utilitarian value of the plea of guilty and the assistance to authority by the offer to testify in the trial of his alleged co-offender. It can be calculated therefore by extrapolation from the sentence of thirteen years and eight months that the "starting point" was twenty one years imprisonment. On the count of armed robbery, in respect of which the plea of guilty was prompt and the respondent had indicated his willingness to testify if required, his Honour applied "a discount" of 40 percent. The "starting point" can be calculated as ten years imprisonment. That sentence was required to take into account the unrelated matters scheduled in the Form 1. 29 In addition to these discounts, the impositions were made partially concurrent so that, in practical effect, the head sentence of six years for the armed robbery added only three years to the sentence for the murder. 30 In my opinion, the Crown's contention that the overall effective head sentence of sixteen years eight months was disproportionate to the circumstances and manifestly inadequate has been made out. 31 As recognized by his Honour, an absence of intention to kill or do grievous bodily harm does not necessarily mean that responsibility on the basis of felony murder is less serious: R v Mills, unreported, NSWCCA 3 April 1995. In this instance, setting aside the notion that the firing of the pistol (twice) was some form of reflex action and recognizing the deliberate disarming of the safety mechanism and the proximity of the victim to the muzzle of the weapon, I conclude that this was a crime, the seriousness of which is at least at the level of responsibility for murder on the basis of specific intent. 32 I have already sketched the facts of all the crimes which were to be reflected in the overall sentence. They reveal persistent criminal conduct of a very high level of seriousness. The murder was committed in the course of an armed robbery which as an independent offence carries a prescribed maximum penalty of 25 years imprisonment as well as providing an ingredient for liability for the murder. The robbery demonstrates a planned engagement in serious crime irrespective of what circumstances led to the use of the loaded weapon which the respondent had brought to the scene to facilitate criminal endeavour. 33 For the purpose of resentence, there has been received an affidavit by the respondent setting out some detail of his history concerning drugs, early life, contact with paedophiles and the circumstances of his incarceration to date. The content of the affidavit is taken into consideration. 34 Dealing first with the crime of murder, aggravated by being committed whilst the respondent was on parole, assessment of twenty five years head sentence should be made. That assessment takes into account the restraint applicable to resentence following successful Crown appeal. I would regard the "discount" of 35 percent as extremely generous but I would not intervene having regard to the discretionary nature of his Honour's conclusion on that aspect. The consequent head sentence would be sixteen years and three months imprisonment. 35 The assessment of ten years imprisonment for the armed robbery reduced by 40 percent for early plea of guilty of murder and offer of assistance is, viewed in insolation, extremely lenient. Its contribution to the manifest inadequacy of the overall imposition is placed into stark relief by the order that half of it be served concurrently with the sentence for murder. 36 However, if the sentence for armed robbery as assessed was allowed to stand, there would be no good reason for an order for concurrent service in whole or in part. Refraining from so ordering would avoid disproportion in ultimate sentence viewed against the total criminality of the offences. 37 I am unpersuaded that the prospect that custody in circumstances of protection nor any other factor amounts to special circumstances leading to variation of the statutory formula for specification of non parole period. 38 I conclude that this Court should resentence and I propose the following orders: