R v Wallace [2007] NSWCCA 63

New South Wales Court of Criminal Appeal

CITATION: R v Wallace [2007] NSWCCA 63

HEARING DATE(S): 27 February 2007

JUDGMENT DATE: 14 March 2007

JUDGMENT OF: Sully J; Bell J at 20; Hoeben J at 21

DECISION: Crown appeal dismissed.

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: R v Way (2004) 60 NSWLR 168 Chaplin v The Queen (2006) 160 A Crim R 85

PARTIES: Regina Michael Anthony Wallace

FILE NUMBER(S): CCA 2006/2208

COUNSEL: D. Arnott SC - Crown S. Odgers SC - Responent

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/623

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 8 September 2006

IN THE COURT OF CRIMINAL APPEAL 2006/2208

SULLY J BELL J HOEBEN J

14 March 2007

Judgment

REGINA v Michael Anthony WALLACE

SULLY J:

Introduction

1 This is a Crown Appeal brought pursuant to section 5D of the Criminal Appeal Act 1912 (NSW). The appeal concerns a sentence of imprisonment passed upon the respondent, Mr. Wallace, by James J of this Court on 8 September 2006. 2 Between 20 March 2006 and 5 April 2006 the respondent stood trial before James J and a jury of twelve upon an indictment charging that on or about 19 November 2003 he had murdered one Zoe Zou. The statutory maximum penalty upon conviction of the crime of murder is one of imprisonment for life. 3 On 20 March 2006 the respondent, having been duly indicted, pleaded not guilty of the crime of murder but guilty of the crime of manslaughter. The Crown refused to accept the plea to manslaughter and the respondent was tried, accordingly, on the charge of murder. 4 It was not controversial at the trial that the respondent had shot Zoe Zou; and that at the time of his having shot her he had the intent either to kill her or to inflict upon her grievous bodily harm. The only live issue at the trial was one of provocation. 5 The jury found the respondent guilty as charged. It must follow that the jury was satisfied that the Crown had eliminated any reasonable possibility of provocative conduct on the part of the victim such as would justify reducing the criminal culpability of the respondent from the level appropriate to the crime of murder to the level appropriate to the crime of manslaughter. 6 In due course James J sentenced the respondent to imprisonment for a non-parole period of 14 years with a balance of term of 6 years. It is this sentence against which the Crown now appeals upon the basis that the sentence is manifestly inadequate. The Relevant Facts 7 It is convenient to take these, at least initially, from the written submissions of the Crown. The relevant material will be found at paragraphs 5 through 19 of the written submissions: "5. The deceased lived in an apartment block called Quay Apartments. In 1998 she met Mr. Timothy Titheradge, a wealthy man who had business interests in Sydney and a rural property near Goulburn. Mr. Titheradge had for many years had a relationship with a woman, named Caroline, with whom he had children. 6. After the deceased and Mr. Titheradge met, a relationship developed between them which continued without interruption to the time of Ms Zou's death. Mr. Titheradge divided his time between living with Caroline in Goulburn and visiting Ms Zou in Sydney. Each of the women were aware of the existence of Mr. Titheradge's relationship with the other woman. 7. In October 2002 Ms Zou had a daughter to Mr. Titheradge. Just prior to the baby being born Mr. Titheradge married Caroline. Ms Zou was seriously distressed and upset by this. After the birth Mr. Titheradge entered into a financial arrangement with Ms Zou for the support of the baby. 8. In May or June 2002 the respondent met the deceased. Not long before the respondent met her, he had been released on parole after the expiration of the minimum term of a long prison sentence. He and the deceased developed some kind of relationship. The respondent claimed they had a sexual relationship but his Honour was unable to determine this issue. 9. The deceased was last seen alive (apart from by the respondent) by a neighbour at about 6.00 p.m. on 18 November 2003. The deceased failed to meet Mr. Titheradge at her apartment on the night of 19 November 2003. Shortly before midnight the deceased's baby was found in a pram near Manly Hospital. Mr. Titheradge identified the baby on 20 November 2003. 10. In the following days a still photograph from the closed circuit television film of 17 November 2003 of the deceased, the baby and the respondent was widely published by the media and was seen by the respondent. 11. On 25 November 2003 the respondent contacted a former prisoner he knew (referred to at the trial as MJS) and told him that "the triads had knocked her (the deceased)" and that he was frightened of "the Asians" who were pursuing him. He asked MJS to help him get rid of the deceased's car. MJS agreed to do so. The respondent and MJS incinerated the deceased's car. 12. The respondent eventually came forward and agreed to be interviewed by Police. On 28 November 2003 the respondent told police that he had last seen the deceased on 17 November and that on 18 November he had returned her car by parking it in a street near the apartment block with the key left in the exhaust pipe. 13. MJS saw reports in the media of the disappearance of the deceased and of her car. MJS contacted the Police and agreed to be fitted with a listening device to record conversations he would have with the respondent. An undercover Police officer using the pseudonym "Mark" also had conversations with the respondent which were recorded. 14. In the recorded conversations, which took place between 4 December 2003 and 25 March 2004, there was lengthy discussion about fabricating false alibis for the respondent. During these conversations Mark conveyed to the respondent pieces of information about the Police investigation that he said he obtained from careless or corrupt police officers. 15. On 25 March 2004 Police staged a mock arrest of MJS. This prompted the making of arrangements between the respondent and MJS to retrieve the body of the deceased and dispose of it out to sea. 16. On 29 March 2003 under police surveillance MJS travelled with the respondent to a location exactly 40 kilometres from the commencement of the Bells Line of Road. The respondent took tools and recovered out of the bushland the skeletal remains of the deceased. On the return journey towards Sydney, police arrested the respondent and MJS. 17. The skeletal remains were examined by forensic pathologist, Dr. Ellis. There was no issue at the trial that the remains were those of the deceased. Dr. Ellis noted a round hole at the back of the skull which he considered was an entry wound from a gunshot which had been the cause of death and a depressed fracture on one side of the skull which Dr. Ellis considered had been caused by another bullet glancing the skull. He could not determine which of the two shots was fired first. 18. His Honour found that the shot that killed the deceased was fired with the intent on the part of the respondent to kill the deceased. The respondent then concealed her body in dense bushland and noted the location. 19. At the trial the respondent gave evidence of the circumstances of the killing. His Honour did not accept the respondent's version of events due to the respondent's general lack of credibility and the implausibility of the version he gave."