New South Wales Supreme Court CITATION : Regina v Jason Clive McCall [2007] NSWSC 1269 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 15 August 2007 - 27 September 2007, 21 September 2007, 26 October 2007 JUDGMENT DATE : 16 November 2007 JUDGMENT OF : Barr J at 1 DECISION : The offender is sentenced to imprisonment for the murder of Robert Ljubic. I set a non-parole period of twenty-two years, which will be taken to have commenced on 1 January 2006 and which will expire on 31 December 2027. The balance of the term of the sentence will be seven years and four months and will expire on 30 April 2035. The first day upon which the offender will be become eligible for release on parole will be 31 December 2027. PARTIES : Regina Jason Clive McCall FILE NUMBER(S) : SC 2006/2663 COUNSEL : T Hoyle SC M Thangaraj SOLICITORS : S Kavanagh Bannister Kyriacou Nasser Lawyers IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J 16 NOVEMBER 2007 2006/2663 REGINA v JASON CLIVE McCALL REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Jason Clive McCall, was found guilty by a jury of the murder on 23 March 2005 of Robert Ljubic. The murder happened in this way. The offender and the man I shall call X were friends. X made his living from crime and had become a leading car thief. He specialised in stealing Porsche cars. The deceased, Robert Ljubic, was a car dealer specialising in luxury cars including Porsches. As X knew, the deceased was in the business of buying, repairing and selling damaged luxury cars. According to the evidence of X, which I accept, he stole two cars from the deceased's business. The deceased discovered that X was the thief and had him kidnapped. X managed to escape on some pretext but was afterwards wary of the deceased. There was bad blood between them. By early 2005 the offender was chronically short of money. He owned a business in a western suburb of Sydney but the income from it was insufficient to meet his needs. X and the offender discussed an idea to kidnap the deceased. They believed that if they did so they would be able to extort money from him. They also believed that he dealt in drugs and the idea, I think, was to steal whatever they could and convert it into money. They decided to kidnap the deceased and extort from him what they could. The offender's motive was to enrich himself. No doubt also X, who had for years derived his income from unlawful pursuits, foresaw profit in the scheme, though he also thought that by the intended kidnap and extortion he could demonstrate to the deceased that he was not a man to be trifled with and so bring to an end the difficult state of affairs between them. No doubt the offender and X realised that the deceased might suffer some incidental hurt during the kidnap, but I am satisfied that they did not intend at that stage to inflict serious injury upon him, much less kill him. They met from time to time over a period of two months or so and worked out the details of a plan. They decided to entice the deceased to go to a place where they would lie in wait and seize him. X knew of a block of home units at Wollstonecraft which had a secure underground carpark that was suitable for the purpose. He stole a swipe card that would get them entry into those premises. The offender bought a mobile telephone in a fictitious name on which to make calls to the deceased. He telephoned him a number of times to try to gain his confidence, speaking about a damaged car he wanted the deceased to look at. After some initial disagreement, the offender and X decided to engage a third man, one Petrou, who was known to X, to assist in subduing the deceased. The plan was that the offender would telephone the deceased and arrange a time for them to meet at the home unit block. He would wait in his car in the street and would tell the deceased that he had a bad knee and therefore preferred to drive into the basement carpark of the block. Using the swipe card he would gain entry to the carpark and take the deceased to one of the lower levels where the others would be waiting. When they were all there the three would overpower the deceased. The offender and X would then extort money from the deceased. The plan was put into effect and the offender and the deceased arranged to meet on the evening of 22 March 2005. X and the offender travelled from the western suburbs of Sydney to Wollstonecraft in the offender's car. Petrou made his own way to Wollstonecraft and they waited. Then the deceased telephoned and cancelled the arrangement. X, the offender and Petrou decided to try again the next evening. In the meantime they drove past the deceased's house to make sure that he was there, in an effort to ensure that the plan was likely to work. On 23 March 2005 the offender telephoned the deceased and an arrangement was made. The offender, X and Petrou waited as before, the offender in his car in the street and the other two in one of the basement levels of the carpark. The deceased arrived and met the offender, who drove him to the appropriate level. Once they were there, the others pounced. X drew a pistol and ordered the deceased not to move. The three restrained him, using cable ties to bind his wrists and hands. They tied his hands to his knees and put on him sunglasses which had been painted on the inside with some opaque paint. Petrou, his job done, left, and X drove himself, the offender and the deceased to the Gap at Watsons Bay. They told the deceased that they were taking him to see a friend, implying that he was going to be tortured, though I am satisfied that they had still no intention of doing him serious injury. The offender struck him about the head and told him that he wanted all his money. The car stopped at Watsons Bay and the deceased's bonds were cut other than those binding his wrists. He was walked up the path to the fence at the Gap. The striking and threats continued. The offender said that they should lift the deceased over the fence and X helped him to do so. The offender cut the ties from the deceased's wrists. The offender had a number of times told the deceased that he wanted his money and the deceased had asked him how much. It is not entirely clear what the intention of the two was in hoisting the deceased over the fence, but there must be some doubt whether at that stage either of them had in mind to push him over the edge. The risk that the deceased might in a struggle fall to his death must have been obvious, however. The deceased was over the fence, standing and the offender was continuing to demand his money. The offender then lost his temper. According to the evidence of X, which I accept, the offender became very angry. His face went really red, like a beetroot. It was as though foam was coming out of his mouth, as though he was ready to explode. X had seen the offender become angry like that on other occasions. The offender took hold of the deceased with one hand behind his belt or his jeans and one on the back of his neck and threw him over the edge of the cliff. X heard a thud. So angry was X at what the offender had done that he insisted that he drive the deceased's car, which had been left at Wollstonecraft, to a place near the Gap. The idea was to make the deceased's death look like suicide. The offender complied. The deceased's body was found in the sea several days later, some few kilometres south of the point at which it had entered the water. The condition of the body did not enable the pathologist who examined it to come to a firm view about the cause of death, though he thought that the deceased had probably drowned. 2 X was interviewed by police officers at the New South Wales Crime Commission. At first he denied responsibility but changed his story when he realised how much the police knew about his part in the kidnap of the deceased. During an adjournment of the interview he took advice from a solicitor and decided to provide the Crime Commission with an induced statement describing the parts he, the offender and Petrou had played. That led to an approach to the Attorney General, who in due course granted X a conditional indemnity against prosecution for the murder of the deceased and for other offences of which he had admitted his guilt. The conditions of the indemnity included that he give full and truthful evidence in criminal proceedings referred to in the indemnity. One such proceedings was the trial of the offender. The facts which I have summarised are taken principally from the evidence X gave before the jury. That evidence appears in large measure to have corresponded with the ultimate account X gave to the New South Wales Crime Commission. 3 There was a good deal of objective evidence supporting the evidence of X, principally about the obtaining and use of the mobile telephone, the movements of the deceased and the movements of the offender's and the deceased's cars. DNA matching that of the offender was found on the gear lever of the deceased's car. The profile occurred randomly in the community at the rate of one in nine hundred persons. Not long after these events the offender had his car cleaned twice. It was undergoing a third cleaning, at a professional cleaners, when the police seized it. However, evidence of the events at the Gap came from X alone. The jury were told that they could convict the offender if they were satisfied beyond reasonable doubt that he threw the deceased over the cliff, with the intent necessary for murder, in the manner described by X or, if they had a reasonable doubt that the offender did the act causing death, if they were satisfied beyond reasonable doubt that the offender and X were carrying out a joint criminal enterprise to kidnap the deceased and take him to the Gap to instil fear into him and one or other of them put him over the cliff, though they could not on the evidence say which one, and the offender contemplated the possibility that X might put the deceased over the cliff with the intent necessary for murder. The jury were also told that before they could find the accused guilty they had to be satisfied beyond reasonable doubt that the deceased did not throw himself off the cliff and did not accidentally fall from the cliff. 4 The attack that was made on the evidence of X during the trial continued on sentence. Mr Thangaraj, counsel for the offender, submitted that I should have a reasonable doubt that the offender threw the deceased over the cliff in the manner described by X but should sentence him on the alternative basis of a joint criminal enterprise and reckless indifference. Mr Thangaraj pointed to a number of matters that he submitted showed that X's evidence was unreliable. 5 The first was that X said that the offender climbed over the fence and freed the hands of the deceased, whereas he could simply have pushed the deceased over the edge from the fence. X, it was submitted, did not include in his statement to the Crime Commission that the offender had climbed over the fence. Why would the offender have cut the deceased's bonds before despatching him? 6 Secondly, X's evidence was that the deceased more than once responded to the offender's demand for money by asking "how much?". If the objective was to steal the deceased's money why, when he was apparently co-operating, would the offender kill him? And why would they put opaque glasses on the deceased when he would need to show them where to take him to obtain money? 7 The next submission was that X could not reasonably have believed that a kidnap and extortion would settle affairs between him and the deceased. If the deceased had had him kidnapped for stealing cars, what would he not do in response to kidnap and extortion? 8 The next submission was that X said that he and the offender had had lunch at Watsons Bay on 22 March, visiting the intended scene of the extortion and making plans. It was agreed at trial that mobile phone records showed that that could not have happened. The submission was that X was lying. 9 The next submission was that when it was recovered from the sea the body was unclothed. Yet the evidence was that on 23 March the deceased was wearing clothing including trousers fastened by a belt. When the body was examined there was a horizontal laceration to the back of the head but no bony injury to the limbs. These facts, it was submitted, were inconsistent with X's evidence that the deceased had been pushed from the cliff fully clothed and that he had heard a thud, presumably of the deceased's body hitting rocks below. 10 Other asserted inconsistencies in the evidence of X were pointed to, for example, his description to police of the place where the deceased's wallet and keys were thrown. Against that, the police had been unable to find them. X said that they had thrown away the deceased's camera, yet it was found in the deceased's car. It was submitted that X had been inconsistent in his evidence about Petrou, claiming that he had been paid for his work, whereas he had left before the extortion had been carried through. 11 It was submitted that X was a thief and a liar and unworthy of belief. He had lied to the Crime Commission. 12 I accept that X has lived on the proceeds of dishonesty and could lay no claim to be a generally honest person. People who lie on one occasion, or even generally, do not always lie, however. I think that X did lie at first when interviewed at the New South Wales Crime Commission, but I also think that after consulting his legal advisers he decided to tell and did tell the truth. The police no doubt had at that time a good deal of intelligence about X's friendship with the offender, about contact with the deceased and about the movements of all three on 23 March 2005, but there is no reason to believe that they knew any details of the events at the Gap. The time and place at which the deceased's body was found were consistent with its having entered the water when and where X said it did. The position in which the deceased's car was found was consistent with that conclusion as well, though even with evidence of the DNA profile, of X's association with the offender and of the movement of cars on 23 March the police could scarcely prove that X was implicated in the murder of the deceased. Yet he went on and confessed to his own very serious criminal conduct. 13 I remind myself that once a witness in X's position gives an account it becomes very difficult for him to change it, to make a frank concession that something he has said is wrong. 14 I do not think that the features pointed to by Mr Thangaraj demonstrate that X was lying. He was plainly wrong about having lunch on 22 March with the offender at Watsons bay, but that does not mean that they were not together there at some time. Honest witnesses make mistakes. The evidence about the deceased's camera falls into the same category. The evidence about the condition of the deceased's body is not necessarily inconsistent with X's account. I do not find it incredible that X's motive in whole or in part was to give the deceased a show of strength. I find his description of the offender's upwelling of anger believable. None of the others matters raised leads me to doubt the reliability of X's description of the events at the Gap. 15 I think that X told the truth about what he and the offender did at the Gap. I think that as they took the deceased to the rail their intention was to instil fear into him so as to extract from him money or something worth money. I think that the offender lost his temper while they were there and decided to kill the deceased. That happened shortly before he pushed the deceased over the cliff. 16 Mr Thangaraj submitted that I should find that the offender participated in the enterprise not out of any hope of financial gain but merely to help X, his good friend. There is no evidence to that effect and I reject the submission. 17 Objectively, the murder was very serious. The offender did it with intent to kill. That intent was formed suddenly but after a violent and cruel kidnapping done in the hope of financial gain. The planning for the kidnap was meticulous and the steps taken were calculated to divert suspicion from the perpetrators. They were persistent in their enterprise. They took on hired help. When the first attempt failed they persevered and set up a further meeting so as to carry their plan into action. They put the deceased into a position that was fraught with danger. All those things were done in company, first three on one and then two on one, up the point immediately before the offender did the act causing death. The deceased never had a chance to avoid danger, to protect himself or to defend himself. 18 The offender was born on 16 December 1972 and is now almost thirty-five years old. On 30 November 1997 he was charged with assault occasioning actual bodily harm and was given the benefit of a recognisance. On 3 March 2003 he was charged with contravening an apprehended domestic violence order and with maliciously damaging property and was given the benefit of a bond. On 3 August 2005 he was arrested and charged with receiving a stolen boat and with numerous driving offences. He was refused bail. On 8 August 2005 he was charged with the murder of Mr Ljubic and bail was refused. On 21 November 2006 he pleaded guilty to the charges proffered on 3 August 2005 and was sentenced to twelve months' imprisonment, suspended upon his entering a recognisance to be of good behaviour. Accordingly, he has been in custody, bail refused, solely on the charge of murdering Mr Ljubic since 21 November 2006. 19 There is reason to believe that the supervening murder charge influenced the course of events in the Local Court on the summary charges. It was not until more than fifteen months after the offender had been charged with receiving and with the traffic offences that the plea of guilty was taken in the Local Court and the suspended sentence imposed. Mr Thangaraj informed the Court that it was the committing magistrate who dealt with the summary offences. I think it likely that if he had not been charged with murder he would have been dealt with sooner for the summary offences. I do not think it appropriate, therefore, to order that the sentence commence on the first day upon which the offender can be demonstrated to have been held in custody solely on the murder charge but on some earlier day. I take into account the principles of totality and shall order the sentence to commence on 1 January 2006. 20 A report of Ms Anita Duffy, psychologist, was tendered on sentence. Ms Duffy tested the offender. His profile reveals a depressive personality style involving an enduring pattern of thoughts, attitudes and behaviours related to depression. He may perceive himself as worthless, vulnerable, inadequate and guilty and may frequently engage in self-criticism. The Passive/Aggressive elevation flavours his depression with some resentment and he may vacillate between being bitter towards others and being intropunitive and self-deprecatory. 21 Ms Duffy also reported things that the offender told her. He said that he had a difficult childhood with a cruel and sadistic father. He left home at sixteen years of age and went to live with the woman he eventually married and to whom he is still married. For about five years he worked as a bouncer or security guard in strip clubs and nightclubs in the Kings Cross area but became tired of the environment and moved to the Liverpool district and began running a pizza shop. Unfortunately the lease expired and he lost the business. Most recently he has been working from home operating a signwriting business. He has always provided for his family. In view of the offender's motivation to kidnap and try to extort money from the deceased, there must be some doubt about Ms Duffy's description of the signwriting business as "fairly profitable". 22 The offender told Ms Duffy that he has put on a lot weight since he was taken into custody, that he suffers from panic attacks and that he takes a drug for heartburn and may have ulcers. None of these matters, it seems to me, shows that the medical condition of the offender is likely to make it harder for him to serve his sentence so as to entitle him to a reduction in sentence. 23 Mr Thangaraj submitted that I should allow the offender an extended period of parole, with a correspondingly reduced non-parole period, in order to afford him the rehabilitation he needs. It was pointed out that this will be the offender's first period of full-time custody. The prospects of rehabilitation are not especially good or bad, it seems to me, and I accept Mr Thangaraj's submission that the offender needs a proper opportunity to rehabilitate himself. But it is not to be supposed that nothing towards that end will happen during the long non-parole period that I am bound to impose. I am not persuaded that a case has been made out for an adjustment of the prima facie relationship between non-parole and parole periods. 24 Mr Thangaraj submitted that the Court would be justified in reducing the sentence to take account of the fact that the co-offender, X, would suffer no punishment at all. The matter was not put as one of disparity in sentencing but as a relevant consideration justifying some minor reduction. Mr Thangaraj mentioned an unrelated sentence imposed in the District Court. I am not aware of any legal principle under which the case referred to was decided. It would be surprising if there were any principle that allowed an offender a lower sentence merely because he was convicted on the evidence of a co-offender who, because he gave evidence, received benefit by way of a reduced sentence or an indemnity. I do not intend to vary the sentence by reference to the indemnity granted to X. 25 In my opinion the findings I have made demonstrate that this offence was a very serious one, above the middle of the range of objective seriousness of offences of its kind. I propose to impose a non-parole period bearing in mind that conclusion and the standard non-parole period for murder of twenty years. 26 The Court extends its sympathy to Mrs Ljubic, the widow of the deceased Robert Ljubic, and to her family. 27 Jason Clive McCall, I sentence you to imprisonment for the murder of Robert Ljubic. I set a non-parole period of twenty-two years, which will be taken to have commenced on 1 January 2006 and which will expire on 31 December 2027. The balance of the term of the sentence will be seven years and four months and will expire on 30 April 2035. The first day upon which you will be become eligible for release on parole will be 31 December 2027. **************** 16/11/2007 - Amendment to para 27 - Paragraph(s) 27 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.