R v Grant [2003] NSWSC 215

New South Wales Supreme Court

CITATION : R v Grant [2003] NSWSC 215 HEARING DATE(S) : 17 March - 26 March 2003 JUDGMENT DATE : 26 March 2003

JURISDICTION: Common Law Division Criminal JUDGMENT OF : Dunford J DECISION : Sentenced to imprisonment for a term of 18 years with a non-parole period of 13 years.

CATCHWORDS : CRIMINAL LAW - sentencing - murder LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, ss 21A, 22A CASES CITED : R v Gilmore (1979) 1 A Crim R 416 PARTIES : Regina (NSW) Robert John Grant (Prisoner) FILE NUMBER(S) : SC 70060/02 COUNSEL : P Barnett (Crown) A Haesler (Prisoner) SOLICITORS : SE O'Connor (Crown) Legal Aid (Prisoner)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

DUNFORD J

BATHURST: Wednesday, 26 MARCH 2003

70060/02 R v Robert John GRANT

SENTENCE 1 HIS HONOUR: Between about 12.10 and 12.26 am on Sunday 28 November 1999 the prisoner, Robert John Grant, shot and killed Ross Shersingh in the carpark of the Newtown Hotel in Lightning Ridge whilst the deceased was talking to two of his friends, Daniel Bradford and Anthony Leeder, at the back of a parked utility vehicle. 2 The deceased and his friends had been drinking the previous evening at the hotel whilst the prisoner, with others, had been drinking at the Bowling Club some seven to eight minutes walk away. Both establishments closed at midnight and the prisoner was photographed on video leaving the Bowling Club at about six minutes past twelve. I am satisfied that he then went to his residence at the caravan park which adjoined the carpark of the hotel, picked up his rifle and sawn-off rifle and walked across the caravan park to where it was separated from the hotel carpark by a low wooden fence. 3 It does not appear from the evidence whether, when he went to the caravan, he had to load the guns and shut the bolts or whether they were already loaded. But I am satisfied that they were loaded and cocked as he walked across the carpark. 4 When he got to a point estimated at about twenty feet from where the others were standing he raised the rifle to between his hip and chest height level, pointed it in the direction of the deceased, although he did not take aim at eye level, and pulled the trigger, striking him in the chest and thus killing him with a single shot. 5 At this the deceased groaned and started to walk in the direction of the hotel's beer garden where he was later found. Anthony Leeder rolled under a nearby vehicle and made his escape across the caravan park to a party in one of the caravans where he raised the alarm, whilst I am satisfied from the evidence of Daniel Bradford and a number of other witnesses that the prisoner chased Mr Bradford around the utility vehicle, pointed the sawn-off rifle at his head and eventually discharged it, missing Mr Bradford and with the bullet lodging in the door of another vehicle that was parked nearby. 6 The prisoner then returned to his caravan, reloaded both weapons, placed them on his bed, covered them with his doona and then lay down on the doona, though not directly on top of the weapons, and apparently went to sleep. 7 There is no doubt that the prisoner was intoxicated at the time and a number of witnesses gave evidence to this effect. He had been drinking alcoholic cider since probably about mid morning at Mr Lehman's house until he was "red lighted" at the Bowling Club, probably about 10.00pm. Some witnesses described him as unsteady on his feet, with eyes glazed or bloodshot, but he was an experienced, heavy drinker, apparently with a substantial tolerance to alcohol and able to function, move around, play pool and hold rational conversations, notwithstanding his intoxication. 8 Moreover, when spoken to by police from about 3.00am, he acted and spoke rationally and coherently, directed them to where they would find items during the search of his caravan and did not appear to experienced police officers to be intoxicated at that time, although it was apparent he had been drinking earlier because he smelt of alcohol. 9 At that time, and subsequently, he claimed that he had, at about 8.00pm, lent the guns to two friends to go pig shooting and that he had nothing to do with the death of Mr Shersingh. This version was clearly false. 10 He was tried for the murder at Dubbo in March 2001 and found guilty, and at the same time found guilty of shooting with intent to kill Daniel Bradford. He was sentenced in respect of the shooting of Mr Bradford with intent to murder to imprisonment for a fixed term of five years commencing on 28 November 1999, and in respect of the murder of Mr Shersingh, to imprisonment for a period of eighteen years with a non parole period of thirteen years, both periods to commence on 28 November 2001. 11 Because of an error in the trial judge's directions to the jury regarding intoxication in relation to the murder charge, the murder conviction was set aside and a new trial ordered. The appeal against his conviction on shoot with intent to murder was dismissed. 12 On being arraigned on this trial for the murder, the prisoner pleaded not guilty to murder but guilty to manslaughter, thereby admitting that he fired the fatal shot and did so deliberately, but denying that he had the necessary intent to constitute the offence of murder, and in that regard he relied on the evidence that he was considerably intoxicated on the evening in question, thereby submitting that the jury would not be satisfied that he did have the requisite intent. 13 By its verdict the jury has rejected that submission and it consequently falls to me to resentence him for the murder of Mr Shersingh. 14 At the trial the Crown put its case on the alternative basis of intent to kill, intent to do grievous bodily harm or acting with a reckless indifference to human life, and the verdict does not indicate on what basis the jury convicted, or even that they all reasoned on the same basis. 15 Hulme J at the first trial, was not satisfied of an intent to kill and was unable to differentiate between an intent to cause grievous bodily harm and acting with a reckless indifference to human life. Notwithstanding his Honour's findings on this aspect, but having regard to the deliberate acts of the prisoner in going to his caravan, getting the guns, walking across to within about twenty feet of where the others were standing, raising the rifle, pointing it in the direction of the deceased and firing it, I am satisfied beyond reasonable doubt that there was an intention to kill. 16 I cannot reconcile those actions, particularly the pointing of a loaded gun in the direction of a person's chest and firing the gun, as indicating merely an intention to cause grievous bodily harm rather than to kill. 17 That this was the prisoner's intention is confirmed by what followed almost immediately afterwards, namely, chasing Daniel Bradford around the vehicle, pointing the other gun at his head and ultimately firing at him. I note that in his evidence relating to the shooting at Daniel Bradford, Peter Riley described the prisoner's movements as pointing his right arm directly out in front of him at shoulder height (T79). 18 It is difficult to find a motive for the killing. At about the same time as the first shot was fired killing Mr Shersingh, a voice which I am satisfied was that of the prisoner, was heard to call out, "You big noting opal mining cunts", and there was other evidence that he had been overheard earlier that evening at the Bowling Club saying, "I'll get them down at the Newtown". He was also upset, apparently, at his dismissal from his employment at the hotel approximately two months earlier and, in addition, he had been "red lighted", that is denied further service of alcohol, earlier that evening at the Bowling Club. 19 None of these matters standing alone seems to suggest sufficient motive for his actions, and there does not appear to be any rational motive; but most likely what happened was that, with his inhibitions lessened by his intoxication, probably one or more of the above matters, either a resentment of opal miners in general, resentment at his dismissal from employment or some similar matters, gave rise to pent up feelings of frustration with his lot in life, leading him to do something which he regarded at the time as dramatic. 20 When interviewed by Anita Duffy in February 2001 he told her that he had been "ripped off" by an opal mining partner to the extent of some $440,000, apparently in about the mid 1990s, but whether this was true or, if true, whether it led to resentment against opal miners in general consistent with the remark made at the time of the shooting can only be a matter of conjecture. The firearms used were unlicensed, but in all the circumstances of him living in the country I do not regard this as an aggravating feature, although obviously if he had not had the weapons the offence would not have occurred. 21 The prisoner was born on 29 January 1956 and is now aged forty-seven, the son of an Aboriginal mother and Scots father. He appears to have come from a close-knit and supportive family. He grew up in Brewarrina where his father was the manager of the local swimming pool, and left school at the end of primary school or part way through the first year of high school. He is literate, but his arithmetical skills are apparently below average. He has previous convictions for stealing (1978), drink driving (1979 and 1993), cultivating cannabis (1980), cattle stealing, use of firearm (1992), and assault (1994). 22 The facts relating to the assault which took place in a club and where the victim was one of his sisters suggest that it was almost certainly alcohol induced. The other offences are not relevant for present purposes. 23 In relation to sentencing a number of reports have been tendered which were also tendered before Hulme J, namely those of Dr Neilson (consultant psychiatrist), Anita Duffy (psychologist), and references by way of affidavits from Gregory McIntosh, William Jeffreys and Leslie Beetson. There has also been tendered a recent report from Dr Michael Perdices, a clinical and consulting neuropsychiatrist, and various gaol records. 24 Unfortunately, the histories given by the prisoner and contained in the various reports contain a large number of discrepancies and inconsistencies about such matters as whether he sustained any head injuries in motorcycle accidents when younger, at what age he started drinking alcohol and using drugs, his work history and the extent of his relationship with his many children and other matters. 25 It appears that his father died in a light plane crash in 1973 and this led to depression for some time, but the prisoner remains close to his mother and at least one of his sisters. He appears to have worked in a number of occupations of a labouring type nature and lived mainly in Brewarrina and Sydney until he moved to Lightning Ridge about five years prior to the incident giving rise to this charge where he worked as an opal miner and, later on, at the Newtown Hotel as manager of the caravan park before being dismissed a couple of months before the shooting. I observe that he gave Dr Neilson an account of his dismissal totally at variance with all the evidence in this trial. 26 He has had a number of female relationships and fathered seven children, each apparently by a different mother. He told Dr Neilson he did not see himself as having an alcohol problem, he enjoyed drinking, had a high tolerance to alcohol and was able to drink more than most people. He did not believe he was particularly aggressive or badly behaved when intoxicated. Dr Neilson expressed the view that he was mildly grandiose in manner in a way which is typical of chronic alcoholics. 27 Anita Duffy described his presentation as friendly and talkative but fairly defensive, tending to minimise problems such as alcohol intake. She felt he also tended to overestimate his abilities and skills in a seemingly grandiose manner, and showed some lack of responsibility in a lifestyle centred around his own pursuits. She said that testing revealed a narcissistic and paranoid personality, somewhat consistent with his presentation and history. 28 Dr Perdices, who only saw him in 2003, noted symptoms consistent with extremely severe depression, anxiety and stress, probably not surprising after three years and three months in prison and facing a new trial. He concluded he was of below average intellectual ability and limited educational background. 29 He has been serving his sentence on protection and until recently with limited association. This has been at his own request because he claims he has received threats to his life whilst in prison. He has recently, again at his own request, been reclassified as protection nil association with other prisoners. Hulme J took the fact that he was on protection into account in sentencing the prisoner following his first trial. 30 Notwithstanding his protection status, he has completed a number of courses but only recently have any of them related to drugs and alcohol. He has had individual counselling at the Lithgow Correctional Centre up to as recently as 13 March. Reports from his prison supervisors indicate satisfactory conduct whilst in gaol. 31 His past history renders it essential that before his release from prison he seriously addresses his alcoholism, otherwise there is real risk that on his release he will commit further alcohol related offences. Consistently with his plea of not guilty, there has been no evidence of contrition. 32 Mr Haesler, who appears for the prisoner, has drawn my attention to s 22A of the Crimes (Sentencing Procedure) Act 1999 and pointed to the plea of guilty to manslaughter which the Crown did not accept, but which narrowed the issues in the trial, as at the first trial the prisoner was still denying any involvement in the killing of the deceased and persisting in his story of lending the guns to other people whose names he could not identify. 33 It is true that the plea of manslaughter did narrow the issues in the trial, but it led to more evidence being led by the Crown in relation to the prisoner's drinking and state of intoxication on the night before, and it was still necessary for the Crown to lead detailed evidence of the events surrounding the shooting in order to establish the deliberate nature of the acts, which was very relevant to proof of the necessary intention to constitute the crime of murder. 34 The unlawful taking of another life is always a serious offence and the facts call for the elements of retribution, deterrence (general and personal) and the protection of the community to be given effect to. I have also had regard to all the various matters set out in s 21A of the Act as it stood at the relevant time. As I have said, rehabilitation of the prisoner is dependent primarily on him seriously addressing his alcohol addiction. 35 It is well established that, other than in exceptional circumstances, the sentence imposed following a successful appeal and retrial, should not be any greater than a sentence imposed at the original trial: R v Gilmore (1979) 1 A Crim R 416. On the other hand, I can see no reason why, in the circumstances of this case, it should be any less.