New South Wales Supreme Court CITATION : Regina v Wilkinson [2004] NSWSC 1307 HEARING DATE(S) : 14/05/2004 JUDGMENT DATE : 28 May 2004 JUDGMENT OF : Howie J at 1 DECISION : The offender is convicted and sentenced to a term of imprisonment for 22 1/2 years. There is to be a non-parole period, being the minimum sentence the offender is required to serve before release to parole, of imprisonment for 16 1/2 years. That sentence is to commence on 3 March 2003 and to expire on 2 September 2019. 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. PARTIES : Regina v Danielle Maree Wilkinson FILE NUMBER(S) : SC 70247/03 COUNSEL : L.P. Gray - Crown T.M. Healey - Offender SOLICITORS : S. Kavanagh - Crown Halletts Solicitors - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J FRIDAY 28 MAY 2004 70247/03 R v Danielle Maree WILKINSON REMARKS ON SENTENCE 1 Howie J: I am about to sentence the offender for the offence of murder. The Crown alleges that she was one of three persons who were involved in the enterprise that resulted in the death of the deceased. At the present time her two alleged co-offenders are pleading not guilty to murder and are shortly to stand trial for that offence in the Supreme Court in Newcastle. The publication of the facts of this matter and, in particular, anything which might identify the alleged co-offenders either by name or by a recitation of the peculiar facts of this matter would place at real risk the fair trial of the two co-accused. 2 No doubt the particular interest in this matter would be in the Newcastle area from which the prospective jurors would be empanelled. The facts upon which the applicant is to be sentenced implicates the two co-accused as being involved in the murder. It is asserted by the Crown that one of them was in fact the person who was directly responsible for the death of the deceased. The other was, on the Crown's facts, the person who recruited the offender to find a person who would carry out the killing. 3 It seems to me that, if the facts of this matter were recited together with the fact that the offender had pleaded guilty to the charge of murder, the publication of such material would very likely lead any reader of the report to assume that those facts were accepted by the offender and were, therefore, true. Those facts are, however, in dispute and it will be for the jury to determine whether either of the co-accused is implicated in the murder. As I understand it, the Crown does not presently intend to call the offender to give evidence on its behalf. The jury will, therefore, know nothing of the offender's involvement other than arises from admissible evidence against the co-accused. Yet the facts before me contain allegations that the offender confessed her role and that of the co-accused. Therefore, a report of these sentencing remarks might provide potential jurors with material highly prejudicial to the co-accused yet not admissible in evidence against them. 4 For those reasons, the publication of these remarks so as to identify the offender, the deceased or the two co-accused or by relating the facts of the offence upon which the offender is sentenced will very likely have the result that the trial will be unable to proceed. I do not believe I have the power to forbid publication of these matters and it is inappropriate to close the court. But the likelihood that any publication of such material would prejudice the fair trial of the accused next month is so great, that I would recommend legal advice be sought before a decision is made to publish the remarks or any part of them. I intend to use pseudonyms for the names of the alleged co-offenders and the deceased. Of course I do not intend any disrespect to the deceased by referring to him by a single initial. 5 On 6 February last, the offender pleaded guilty to an indictment containing a single count alleging that on 22 February 2003 she murdered a man whom I shall refer to as M. For that offence she is now to be sentenced. 6 The Crown has tendered a statement of facts, some photographs of the scene of the killing and plans of the premises in which the deceased met his death. This is the only material upon which the parties have asked me to determine the facts upon which the offender is to be sentenced. However, as there is no dispute about the facts and because the statement sets out a full and sufficient account of the offender's role in the killing, there is little need for me to take time to set out the facts and circumstances in any great detail. For the purposes of sentencing the offender they can be summarised as follows. 7 The deceased was the husband of an alleged co-offender, W, and lived with his wife and three children in the premises in Muswellbrook in which he met his death. W had no paid employment but the deceased worked as a boilermaker with a local construction company. He had been informed shortly before his death that overtime would no longer be available, the consequence of which would have been a significant reduction in his salary. On 5 February W took out insurance on her own life and that of her husband. She stood to receive over $200,000 in the event of her husband's accidental death. 8 The offender was a friend of the deceased's wife and had at one stage stayed a couple of nights at the premises where the deceased lived with his wife and children. 9 On 22 February 2003 the deceased was apparently shot through the head while he lay on a sofa in the loungeroom. At 1.48am his wife made a 000 call seeking an ambulance. She told the operator that a person had broken into her home and injured her husband. She explained that she had been awoken by a noise, smelt something unusual and discovered her husband lying on the sofa bleeding from the head. 10 A short time later, she spoke to a police officer, after having again made a second 000 call. She repeated her earlier account of an intruder, but added that she heard items being thrown about. She also said that she could see her purse and a video camera lying on the floor. 11 A neighbour told police that he had heard what appeared to be a discharge from a small calibre firearm sometime between 1am and 1.30am. 12 When police attended the premises they made observations including that there appeared to have been no struggle in the house, the carpet in the house was unmarked, notwithstanding that it was damp outside, and that no attempt had been made to stem the flow of blood from the head of the deceased. 13 About a week after the killing the offender made admissions separately to her sister and a friend as to her part in the killing of the deceased. The effect of those admissions was to give the following account. The deceased's wife had been planning the killing of her husband for some time and had harassed the offender into assisting. On the night of the killing the wife ensured that the house would be open and the deceased lying on the sofa where he was shot. The offender had driven another alleged co-offender, a juvenile who will be referred to as T, to the premises. T entered the house and "did it". They then got rid of the weapon and returned to T's house for the night. The next day T and the offender went to the premises and helped the wife clean up and dispose of the bloodstained sofa. Shortly after the killing W had promised the offender either a car or money when she collected on her husband's insurance policy. 14 The friend of the offender had seen her and T embrace one another after the killing both being in a distressed state because of what they had done. T told the friend that W had placed a video camera and a wallet on the floor to make it appear that there had been a robbery. 15 When the offender was arrested, police located a bag in which was found a note containing a floor plan of the deceased's premises. Two ticks had been placed on the sketch in the position where the deceased had been found lying dead. 16 After her arrest the deceased's wife told a fellow prisoner, who shall be referred to as R, that she had offered the offender and T $20,000 each for their involvement in the killing and had supplied them with money for the purchase of a weapon. She also admitted her part in allowing T into the house and then making it appear that there had been an attempted robbery after the killing. She also asked R to fabricate admissions and allege that the offender made them. These admissions were to have the effect of implicating the offender but exculpating the wife. W wrote on a note what she wanted R to tell the authorities. 17 The offender also made admissions to R as to her part in driving T to the premises. She said that W had let T into the house after he had knocked on a window. The offender also asked R to dispose of the towels used to clean up the premises and told her where they had been hidden. This information was ultimately conveyed to the police and the towels recovered. They were identified as coming from a motel into which W had booked the offender and T on the night of the killing. 18 Police recovered a .22 rifle from a backpack located in a dam on the outskirts of Muswellbrook. That rifle was identified as being similar to one that had been seen in the possession of T prior to the killing. Testing of the rifle showed that it was consistent with the weapon used to fire the shot that killed the deceased. 19 On the day after the killing T and the offender had used a cheque in the name of W to make purchases from a retail store. They were also seen in the company of W after the killing and had driven her motor vehicle. 20 These facts reveal a serious offence of premeditated murder for financial reward. They also disclose the very substantial role of the offender in that offence, notwithstanding that it was not she that produced the gun and pulled the trigger. This is one of those cases where, at least on the face of it, there is little difference between the culpability of each of the participants in the joint enterprise that resulted in the death of the deceased. It is unnecessary and inappropriate for me at this point to say much about the criminality alleged against the offender when compared with her alleged co-offenders. But the facts concede that it was the offender who, at the wife's request, sought out a person who might commit the murder. Although the offender was not at the scene at the time of the killing, she was not far away waiting to drive T away from the scene. 21 Sometimes submissions are made to a sentencing court attempting to distinguish the criminality of one member of a joint criminal enterprise from another by reason of the roles played in committing the crime. Generally those submissions lack substance where the crime committed is that which was the object of the joint criminal enterprise. No such submission was made in the present case, at least so far as the offender and T are concerned. Mr Healy realistically accepted that the criminality of the offender cannot for any practical purpose be distinguished from the person who actually fired the bullet into the deceased's head. 22 However, Mr Healey did submit that the criminality of the offender was significantly less than the person who planned the killing and recruited her to assist in that enterprise being on the Crown's case, the wife. The Crown accepted that submission and conceded that W had been able to induce the offender into aiding her by the use of pressure and manipulation. It is the Crown case that W knew that the offender was vulnerable to persuasion because of her dependent personality and her reliance upon illegal drugs. The Crown accepted that whatever sentence might be appropriate for W, were she to be convicted of the offence, the offender should receive a lesser sentence because of her reduced criminality. 23 The offender was born on 5 August 1976, and was thus aged 26 at the time of the killing. She has a criminal record comprising two offences both arising from her involvement with illegal drug use. In August 2000 she was placed on a bond for three years by the District Court for the offence of supplying a prohibited drug. It would appear that this bond was current at the time of the commission of the murder. 24 A psychiatric report by Dr Nielssen is in evidence. It reveals that the offender commenced using amphetamine from the age of 19 during her relationship with a long-distance truck driver. At first she used it orally for recreational purposes but ended up taking it intravenously. She used the drug continuously until her arrest for the murder. She also used cannabis daily. She once spent five days in a rehabilitation clinic without ultimately affecting her use of the drug. No doubt because of her drug addiction, she had not undertaken any paid employment since the age of 21. 25 There is nothing in her formative years that seems to me is of relevance. She had a relatively unremarkable upbringing. She has been involved in two long-term relationships. As a result of one of these she gave birth to two children. They have been in the care of the father since that relationship ended. She had a miscarriage shortly before the murder and believes that event left her in an unstable state of mind. 26 Dr Nielssen reviews the psychiatric history of the offender. She had attempted suicide in 1999 and in 2000 was treated for depression. She has on occasions been taking Lithium and it has been prescribed for her while she has been on remand for the present offence. Although there has been some suggestion in reports concerned with the treatment of the offender prior to the offence that she suffered from a bipolar disorder, Dr Nielssen was not confident that she did. He thought that her depressed states might have been a result of her amphetamine use. 27 More significantly on the question of her culpability for involvement in the offence was Dr Nielssen's opinion that she might have been hypomanic at the time as a result of her ceasing to take Lithium and re-commencing to use amphetamine. He believes that her hypomania might have impaired her judgment and made her more susceptible to being persuaded by W to join in the enterprise of killing her husband. 28 Although Dr Nielssen gave an account of her involvement in the offence that he obtained from the offender, I am not prepared to act upon it in the absence of evidence from the offender. She seeks to diminish her culpability by stating that she did not believe that T was actually going to carry the plan out and kill the deceased. She said that, although she had taken T near the house knowing that he was going to kill the deceased, she had attempted to persuade him not to do so. 29 In this case agreed facts were tendered and it was acknowledged by the parties that those were to be the facts and circumstances concerning the commission of the offence upon which I was to sentence the offender. In those circumstances I do not believe it is appropriate to take into account facts not set out in the statement but contained in a psychiatric report, especially where they are based upon a self-serving account given by the offender. In fairness to Mr Healey he did not suggest otherwise. 30 I intend to sentence the offender on the basis that she was a willing party to the killing of the deceased and hoped to be rewarded by W for her assistance. But I do accept, as does the Crown, that the offender's participation should be understood in terms of her being in a state of mind where she was prepared to agree to being involved in a course of conduct which she might otherwise have resisted. But that mitigating factor having been acknowledged, it was still a very serious offence and the offender's criminality was very high. Again Mr Healey realistically and in his client's interest did not address the court to the contrary. 31 Nor did he invite the court to find that this was a case where it was inappropriate to include in the sentence a substantial element of general deterrence. In my opinion the applicant's mental state or psychiatric history was not such that she should be considered as an unsuitable subject for a deterrent sentence. 32 I have been provided with material from her gaol file that reveals that she is coping as best she can with her time in custody and attempting to put it to good use. 33 The applicant pleaded guilty after committal to this Court. However, she indicated a guilty plea before arraignment and the proceedings were brought forward to allow that plea to be entered at the earliest opportunity after committal. It was accepted by both Mr Healey and the Crown that a 20 per cent reduction was appropriate for the utilitarian value of the plea. I also take into account when determining the appropriate sentence that she is contrite and that a significant part of the Crown case against her are the admissions she made to her sister and a friend as a result of her remorse over what she had been talked into doing. 34 There was before the court a victim impact statement from the parents of the deceased expressing the devastating effect that the murder of their son had upon them, his siblings and their families. It was a very restrained and dignified document but not the less moving for that. Of course it was not tendered on the basis that I would increase the sentence by reason of the effect of the killing on those that loved the deceased and I have not done so. 35 The murder being in effect a contract killing, although of a domestic and amateur nature, is in a category towards the very upper end of seriousness for murder offences. It was in my view a crime that warranted a sentence of imprisonment for thirty years notwithstanding her diminished culpability by reason of her mental state at the time. However, I have reduced that sentence by about 25 per cent taking into account the plea and contrition that led to her admitting her guilt to her sister and friend. There are no special circumstances warranting a period of parole of more than a third of the non-parole period. Such a parole period will provide an adequate opportunity for supervision on her release to assist with her rehabilitation after such a lengthy period in custody and there is in my view no other reason to disturb the statutory proportion. 36 The offender is convicted and sentenced to a term of imprisonment for 22½ years. I set a non-parole period, being the minimum sentence the offender is required to serve before release to parole, of imprisonment for 16½ years. That sentence is to commence on 3 March 2003 and to expire on 2 September 2019. The balance of the term of the sentence is imprisonment for 6 years to date from 3 September 2019. ********** 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.