R v Wills [2005] NSWSC 368

New South Wales Supreme Court

CITATION : R v Wills [2005] NSWSC 368

HEARING DATE(S) : 11-21 October, 17 December 2004, 18 February, 1 April 2005

JUDGMENT DATE : 22 April 2005

Common Law Division JURISDICTION : Criminal List

JUDGMENT OF : Studdert J

DECISION : Imprisonment for a term of eighteen years to date from 29 October 2002 and to expire on 28 October 2020. A minimum term of fourteen years to date from 29 October 2002 and to expire on 28 October 2016. The first date upon which the prisoner is to be eligible for release upon parole is 28 October 2016.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act, ss 21A, 44

R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 CASES CITED : R v Lawrence [2005] NSWCCA 91 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48

PARTIES : R v Russell Clement Wills

FILE NUMBER(S) : SC 2003/72

Crown: G. Lerve (11-21 October, 17 December 2004) B. Smith (18 February 2005) COUNSEL : M. Hobart (1 April 2005) Prisoner: M. Paish

Crown: Office of the Director of Public Prosecutions SOLICITORS : Prisoner: R.F. Berganin & Co.

LOWER COURT JURISDICTION :

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

STUDDERT J

Friday 22 April 2005

2003/72 REGINA v RUSSELL CLEMENT WILLS

SENTENCE 1 HIS HONOUR: Russell Clement Wills stood trial charged with the murder of Hans Hoch on 16 July 2002. The jury returned a verdict of guilty on 21 October 2004 and evidence and submissions on sentence were received on 17 December 2004. However, counsel for the prisoner sought and was granted an adjournment until 18 February 2005 in order to obtain a psychiatric assessment. On that date another adjournment was sought since the psychiatrist's report was not available and an adjournment was granted until 1 April 2005 when the report from Dr Nielssen was tendered (Exhibit 2) and Dr Nielssen was called to give evidence. 2 The deceased lived at Unit 21, Block B, Northcott Towers, Belvoir Street, Surry Hills. He was found dead on the floor of a bedroom in that unit on 17 July 2002. Dr Cala, who examined the body at 8.00 pm on that day, fixed the time of death as being at least twelve hours earlier and up to thirty hours previously. Indeed, it may well have been longer than thirty hours previously. The deceased was, by appearance, aged in his sixties, and he was of slight build. He weighed fifty-two kilograms and was 167 cm tall. 3 The post mortem examination later conducted by Dr Cala revealed extensive injury to the face and head, and lacerations, bruises and abrasions to the trunk, front and back, and to the arms and legs. Both ears were severely bruised. An internal examination revealed a fracture of the larynx and of the hyoid bone. There were a number of fractured ribs: the left 2nd-11th ribs laterally, and the right 2nd and 4th-12th ribs laterally. There was extensive haemorrhage surrounding those fractures. The deceased also had a tear in the left lobe of the liver. 4 In the opinion of Dr Cala, the deceased died from multiple injuries. The rib injuries were very severe and in all likelihood could have caused death, but the laryngeal fracturing was also very serious and injury in this area again could have caused death. Dr Cala considered further that there was a significant injury to the brain. 5 Dr Cala opined, and I find, that severe force was required to bring about the injuries to the ribs, such as multiple kicks or blows from a weapon. A cooking pot with a broken handle was found on the floor at the entrance to the bedroom and two utensils were located on the bed in the deceased's bedroom. Each of these utensils could have caused the fractures to the larynx, and Dr Cala considered each of the cooking implements could have caused the bruising found on the deceased, particularly the long-handled saucepan. The liver injury could have been attributable to a very forceful blow with a fist, or to a stomp or to a kick. I accept the evidence of Dr Cala above reviewed. 6 Clearly the deceased was subjected to a violent and sustained attack. I am satisfied beyond reasonable doubt that his assailant, found by the jury to be the prisoner, carried out that attack either intending to kill the deceased or at the very least to inflict grievous bodily harm. 7 The prisoner declined to be interviewed by police and he gave no evidence at his trial. For the subsequent sentence proceedings a pre-sentence report was obtained from the Probation and Parole Service, and when interviewed for that report the prisoner vehemently denied involvement in the killing. 8 The prosecution relied upon circumstantial evidence at the trial. Clothing taken from the prisoner, being a polo shirt and tracksuit pants, had human blood on them: the polo shirt on the left sleeve at the shoulder, and also on the neckline beside a buttonhole. There was a small area of blood in the left groin area of the tracksuit pants. DNA analysis revealed a profile consistent with that of the deceased, statistically to be found in less than one in ten billion people (Ms Neville, forensic biologist, T 239). 9 At the time of the commission of this crime the prisoner resided at Room 7, 493 Cleveland Street, Sydney. Another resident there gave evidence that at about two o'clock on 16 July 2002 he was doing some washing in the kitchen when the prisoner appeared, limping. He said he thought his leg was fractured and gave an account indicating that the injury was sustained when he went to the assistance of a young girl and was assailed by a number of men. Apart from the limp, Mr Brooks observed that the prisoner had a scratch around the head. 10 Leslie McKenzie, who also lived at 493 Cleveland Street, saw the prisoner walking with a limp on an occasion in July 2002 and when he asked the prisoner what happened, the prisoner responded, "Don't ask." 11 Detective Constable Wallace went to Room 7, 493 Cleveland Street on 18 July and found the prisoner in bed asleep. He arrested the accused and observed that as the prisoner dressed he was groaning and favouring his right leg. 12 Ambulance Officer Quinn attended Surry Hills Police Station that same day and saw the prisoner there. The prisoner was complaining about his left leg and pain in his upper thigh and into his groin. He claimed to have been having trouble with his left leg for three days and he winced as he entered the ambulance for the purpose of being taken to Sydney Hospital. 13 Dr Gregory saw the prisoner at Sydney Hospital and the prisoner presented complaining of a painful left thigh and of abdominal pain. He said the left thigh had been troublesome for some days and there was diffuse bruising there. He declined to give Dr Gregory any history to explain its presence. Analysis revealed a blood alcohol concentration of .173 and the prisoner complained to Dr Gregory of going into alcohol withdrawal. Notwithstanding the high reading, the prisoner claimed he had not had alcohol since the night before. 14 It is possible that the injuries to which the above evidence refers were sustained in a struggle with the deceased, but the evidence does not permit me to make a finding that this is so. It is possible that when the prisoner inflicted the injuries upon the deceased he was under the influence of intoxicating liquor, but again the evidence does not permit me to make a finding about the prisoner's state of sobriety when the crime was committed. 15 The Court has no evidence by way of explanation for the savage attack that caused the death of the deceased. 16 Objectively, this crime of murder must be viewed most seriously. The prisoner committed a savage and unexplained attack upon the deceased. That attack caused death and the attack was carried out with the intention of killing the deceased or at the very least with the intent of causing him grievous bodily harm. 17 This crime was committed prior to the amendment to s 44 of the Crimes (Sentencing Procedure) Act 1999 coming into force. Accordingly I am required to first set the term of the sentence, and secondly to set a non parole period pursuant to the earlier provision contained in s 44. The non parole period must be not less than three-quarters of the term of the sentence unless there are special circumstances for it being less. 18 In order to determine the appropriate sentence, I must have regard not only to the objective features of the case but also to subjective features, and I must take into account the matters addressed in s 21A of the Crimes (Sentencing Procedure) Act. 19 I have reminded myself of the provisions of s 21A(2), heeding the objective features already reviewed. 20 Absent any explanation as to why this killing occurred, I am unable to make any finding concerning s 21A(3)(b), (c) or (d), although the use of cooking implements is not indicative of the crime having been the subject of pre-planning. 21 The prisoner is presently forty-nine years of age. Since he gave no evidence before this Court, either at trial or at the proceedings as to sentence, I am dependent upon the content of the pre sentence report (Exhibit B), the report of the psychologist, Ms Robilliard (Exhibit 1) and the report of Dr Nielssen (Exhibit 2) for information as to the subjective features of this case. To the content of the documents identified, I have given close consideration. 22 Ms Gilmore, the author of the pre sentence report, took a history concerning the prisoner's background. The prisoner described to her being a member of a close family unit with a mother, two sisters and two brothers. His father left home when the prisoner was eight years old. The prisoner left home, on the account he gave Ms Gilmore, at the age of nineteen or twenty, and after that he seems to have adopted an itinerant lifestyle picking up labouring duties as he moved along. Eventually, in 1991, he said he came to Sydney. The prisoner told Ms Gilmore that he went on to a disability support pension in 1998 following injury and also because of his addiction to alcohol. The prisoner said he had a drinking problem from the age of seventeen. 23 Ms Robilliard interviewed the prisoner on 6 December 2004. He gave her an account of his early years which is broadly consistent with the account given to Ms Gilmore. He said that after leaving school he did mostly labouring and seasonal work which he picked up in his travels. He told Ms Robilliard that he sustained severe injury to his right leg in a car accident in 1992 and a head injury some four years ago. He revealed to Ms Robilliard his drinking problem. Under the heading "Clinical Opinion", Ms Robilliard reported: "From the biographical information Russell gave it appears he was essentially raised in a stable and supportive single parent family however his mother managed alone under very difficult circumstances. Russell described each of his siblings as personally stable however he mentioned significant personal tragedies in three of their lives. For a period in his mid thirties Russell reported feeling very distressed by the cumulative effect of these family troubles. When he suffered injury in an accident in 1992 he reports becoming reactively depressed which is a common corollary to serious physical injury or illness. With the consequent loss of his capacity to work and earn, and the relationship he had enjoyed for six years with Donna, Russell became a chronic alcoholic. Over the intervening years the client has achieved brief periods of stability however he has continued drinking excessively to the detriment of his personal, family, social and occupational performance. His resultant personality profile confirms socially dysfunctional thinking and behaviour, a self critical and depressive disposition and major alcohol problems, all of which would have influenced his conduct with regard to the victim. He is likely to misunderstand the meaning of interpersonal behaviour and misjudge the impact of his behaviour on others. His ability to control himself would have been severely decreased when he was intoxicated. Long term and chronic alcohol abuse results in cognitive and memory deficits. The ability to organise and systematise thinking, and ultimately behaviour, becomes progressively more evident. In the client's case the haphazard and fragmented fashion in which he gave biographical information strongly suggests that Russell is evidencing alcohol related brain damage. Neuropsychological testing would be required to measure and confirm the degree of loss." 24 Dr Nielssen, in his speciality as a psychiatrist, has had occasion to see the prisoner on a number of dates: 5 December 2002, 19 December 2002, 20 February 2003, 20 March 2003 and 15 February 2005. 25 Dr Nielssen had access to notes of the Illawarra Health Service which reveal that in the past the prisoner had presented to the Emergency Department where the diagnosis was usually that of alcohol intoxication or alcohol withdrawal or alcohol related psychosis. Then, in December 1993, a diagnosis was made of organic psychosis. Dr Nielssen commented that the records show that the prisoner has had numerous admissions to the psychiatric wards of Shellharbour Hospital and to Orana House in Wollongong Hospital. The admissions were usually short term. 26 At his most recent examination, Dr Nielssen concluded that the prisoner was alert and attentive, correctly oriented and with some knowledge of current events. He also disclosed detailed knowledge of features of his court case. 27 Dr Nielssen expressed the following psychiatric diagnoses: