New South Wales Supreme Court CITATION : R v Bruce Allan BURRELL [No 3] [2008] NSWSC 30 30 - 31 July 2007 1 August 2007 6 - 8 August 2007 10 August 2007 13 - 16 August 2007 HEARING DATE(S) : 20 - 24 August 2007 27 - 28 August 2007 30 - 31 August 2007 3 - 6 September 2007 10 - 14 September 2007 17 September 2007 7 December 2007 JUDGMENT DATE : 8 February 2008 JURISDICTION : Common Law JUDGMENT OF : Kirby J DECISION : Sentenced to imprisonment for 28 years commencing on 17 September 2007 and ending on 16 September 2035, with a non parole period of 21 years. The earliest date upon which eligible for release on parole is 17 September 2028. CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - sentence - relevance of similar convictions for later crimes - dangerousness and protection of community - should the sentence be a life sentence? - was it in the worst class of case? - criminality similar to contract killing - determinate sentence. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CATEGORY : Sentence Siganto v The Queen [1998] HCA 74; 194 CLR 656 R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35 Holyoak v R (1995) 82 A Crim R 502 R v Varner (NSW CCA, 24 March 1992, unreported) R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 Knight v R [2006] NSWCCA 292; 164 A Crim R 126 R v Crofts (NSW SC, 6 December 1996, unreported) CASES CITED : R v Smith [2000] NSWCCA 202 R v King (1998) 99 A Crim R 288 R v Lewis [2001] NSWCCA 448 R v Baker (NSW CCA, 20 September 1995, unreported) R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465 R v Burrell [2007] NSWCCA 79 Burrell v R [2007] NSWCCA 65 R v Burrell [2006] NSWSC 581 R v Previtera (1997) 94 A Crim R 76 PARTIES : Regina Bruce Allan Burrell FILE NUMBER(S) : SC 2002/92 COUNSEL : M Tedeschi QC (Crown) P D Young SC/J Chicken (Accused) SOLICITORS : S Morkaya (Crown) G Murray/K Scurr (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST Justice David Kirby Friday 8 February 2008 2002/92 REGINA v Bruce Allan BURRELL [No 3] JUDGMENT ON SENTENCE 1 KIRBY J: Shortly after 1.00 pm on 30 May 1995, Mrs Dorothy Davis set out on foot from her home at 9 Undine Street, Lurline Bay to visit a friend. She was never seen again. 2 On 1 November 2002, Bruce Allan Burrell was charged with her murder. He pleaded not guilty. On 17 September 2007, after a jury trial, Mr Burrell was convicted of that murder. It remains for me to pass sentence. Before I do so, I should first determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mr Burrell, it is enough that they should be established on the balance of probabilities. Background. 3 Mr Burrell was born on 25 January 1953. Before September 1992 he worked as an advertising executive. In 1985 he married Dallas Bromley. Dallas Bromley and her parents were close friends of Mrs Dorothy Davis. Mrs Davis had known Dallas since she was a child and regarded her with special affection. Mrs Davis' late husband had died in December 1984, leaving her with substantial assets. 4 In 1988 Mr Burrell, Dallas and Dallas' parents purchased a 500 hundred acre farm, known as "Hillydale", at Bungonia. The farm was adjacent to a national park, in a remote area, three hours drive from Sydney. Access to the farm and the national park required travel upon unsealed roads. 5 After their marriage, Mr Burrell and his wife lived in a unit in Marine Parade, Lurline Bay. In November 1993, Mr Burrell left a note for the owner of a house in the same street, 34 Marine Parade, indicating his interest in purchasing that property. The house was on the corner of Wilson Street and Marine Parade, facing the ocean. Wilson Street was the next street to Undine Street, where Mrs Davis lived, a ten minute walk away. The owner of the house invited Mr Burrell and Dallas around for a discussion. At that stage, however, she was not interested in selling. 6 In January 1994, Dallas was diagnosed with cancer. She began treatment including chemotherapy. The treatment continued until August 1994. A few months before the treatment came to an end, Mr Burrell again wrote to the owner of 34 Marine Parade. The owner was then living in England. In July 1994 agreement was reached for the sale of 34 Marine Parade to Mr Burrell and his wife for $600,000. 7 On Friday 8 July 1994, Mrs Davis wrote a cheque for $500,000 in favour of Mr Burrell. The balance in her account at that time was $114,000. The following Monday the bank manager telephoned Mrs Davis and drew her attention to the shortfall. Mrs Davis explained that the cheque was "a short term loan to a friend". She gave instructions to stop the cheque. The bank manager made a diary note of their conversation. 8 On 12 August 1994, Mrs Davis wrote a further cheque in favour of Mr Burrell, this time for $100,000. Mr Burrell deposited that cheque the same day in his account, telling the bank manager that the funds were to be used as a deposit on a property near his home. On 20 August 1994, Mr Burrell, by arrangement, withdrew $90,000 in cash from his account. Again he spoke to the bank manager, suggesting that the money was to be used in connection with the purchase of a house. 9 Mrs Davis spoke to her daughter, Mrs Maree Dawes, about each of these cheques. She related her conversations with Mr Burrell. Mr Burrell had told her that Dallas really wanted the house at 34 Marine Parade. Mrs Davis, generously, was prepared to assist with a loan. The larger cheque, which was later stopped, was written in the context of a suggestion by Mr Burrell that the owners required a larger than usual deposit. Mr Burrell later told Mrs Davis, according to the explanation which she provided her daughter, that a lesser amount would be adequate. It was in that context that the second cheque for $100,000 was written. 10 Mr Burrell said nothing to Dallas concerning these transactions until much later that year. He then gave an entirely different account, which he later repeated to the police. He said that Mrs Davis wished to conceal certain matters from her children. She asked Mr Burrell for his assistance, which he was willing to provide. She would write him a cheque upon the basis that he would repay her in cash shortly after. She ultimately wrote a cheque in his favour for $100,000 and he repaid $90,000 in cash retaining, at her suggestion, $10,000 for his trouble. Plainly, and unsurprising, the jury rejected that account as false. I accept that the money was provided by Mrs Davis to Mr Burrell as a short term loan to assist in the purchase of 34 Marine Parade to benefit Dallas, who had been gravely ill. 11 Meanwhile, in August 1994, contracts were exchanged for the purchase of 34 Marine Parade and a deposit paid. By October the purchase had been completed. However, the $100,000 provided by Mrs Davis to Mr Burrell was not used in that purchase. Instead, a bank loan was raised for the whole of the purchase price. 12 It is clear that the money provided by Mrs Davis to Mr Burrell in July 1994 was spent, or substantially spent, by Mr Burrell in the period before May 1995. He had been unemployed since 1992. He was not in receipt of Social Security benefits. He had no source of income. He was, as he acknowledged in evidence before the coroner, dependant upon his wife, who was employed. Mr Fogarty, an expert accountant, gave evidence at his trial. Mr Fogarty analysed the income and expenditure of the Burrell household before and after July 1994 and demonstrated that, after the loan, Mr Burrell plainly had an unexplained source of cash. 13 Mr Peter Grace, a witness at the trial, gave evidence of a conversation with Mr Burrell after Mrs Davis disappeared on 30 May 1995. He said that Mr Burrell told him that Mrs Davis had loaned him money and had been pressing for its return. Indeed, she had threatened legal action. Mr Burrell, however, was in no position to repay the loan. 14 The evidence of Mr Grace was strongly challenged during the trial by counsel for Mr Burrell. Certainly one may have reservations about certain aspects of Mr Grace's evidence. However, I accept that, in May 1995, Mrs Davis was pressing Mr Burrell for repayment of the loan and that he was unable to repay that loan. The contemporaneous note made by the bank manager in July 1994 in the bank diary corroborated that the advance by Mrs Davis was in the nature of a short term loan to a friend. By the end of May 1995, almost one year had elapsed without repayment. It is unsurprising that Mrs Davis should have been anxious for the return of her money. The murder. 15 Returning, then, to the events of 30 May 1995, Mrs Davis, as mentioned, set out on foot shortly after 1.00 pm from her home at 9 Undine Street, Lurline Bay to visit a friend. Before she left she had a brief conversation with a builder who was attaching an awning to her home. She told the builder that her friend had had cancer and that she was going to walk because it was not far. Mrs Davis clearly expected it would be a short visit. She had left meat defrosting on the kitchen bench. The jury was instructed that it had to be satisfied beyond reasonable doubt that the friend she identified by description, and whom she expected to see, was Dallas Burrell. Consistent with the verdict, I make that finding. 16 The invitation to 34 Marine Parade on 30 May 1995 did not come from Dallas Burrell. It came from the offender, Bruce Burrell. He knew that Dallas was at work. No-one else lived at the premises. He was at home alone. I infer that, when he issued the invitation, it was his intention to kill Mrs Davis. Mrs Davis suffered from a medical condition which made walking up hills difficult and painful. Indeed, she notoriously avoided walking up hills, choosing instead to drive her car. The walk from Undine Street to 34 Marine Parade was downhill and Marine Parade itself was flat. However, the return journey, whichever way she went, involved walking up a steep hill. I infer that Mrs Davis was induced by Mr Burrell to walk rather than drive on the promise of a lift home. He thereby avoided having to dispose of her car and risk being seen doing so. 17 The means by which, and the place at which, he murdered Mrs Davis are not known. He was a large man, tall and heavy, then aged 42 years. Mrs Davis was a much smaller woman, then aged 74 years. Removing her from the premises in daylight would not have presented a difficulty. There was an internal staircase which gave access from the house directly to the garage. 18 Between 2.30 and 3.00 pm, Mr Burrell left 34 Marine Parade by a four wheel drive vehicle to make the three hour journey to "Hillydale". He would have arrived at 5.30 pm or thereabouts. In late May little daylight would remain after 5.30 pm. He left "Hillydale" at about 7.45 pm that evening, returning to Sydney where he spent the night at 34 Marine Parade. The next morning he again drove to "Hillydale". The time he set out is uncertain. However he completed the three hour return journey to Sydney by about 2.30 pm. I infer that these two trips, involving 12 hours driving within the space of 24 hours, were concerned with the disposal of Mrs Davis' body. The body has never been found. 19 It was said by the Crown and I accept, that Mr Burrell's motive was purely financial. By murdering Mrs Davis he sought to extinguish the debt of $100,000 which he had not disclosed to his wife and which he was in no position to repay. For a time he was successful in that objective. As I have mentioned, he propagated to the family and the police the false story that the $100,000 was not a loan. Neither the family nor the police was then in a position to contradict his account. 20 The Crown submitted that the offence betrayed significant premeditation and planning, which was an aggravating factor. According to the Crown, it was never Mr Burrell's intention to repay the loan. Further, the absence of forensic evidence at either 34 Marine Parade or in his vehicle demonstrated that he had taken considerable care in the execution of his plan. 21 Counsel for Mr Burrell submitted, however, that the intention not to repay the loan and to kill Mrs Davis may have been formed quite late, presumably when Mrs Davis was pressing for payment. The crime, according to counsel, should be characterised as, to some degree, opportunistic, rather than involving lengthy premeditation. Further, it was argued that no adverse inference is available from the absence of forensic evidence at 34 Marine Parade or within Mr Burrell's vehicle. Although Mr Burrell was interviewed by the police in late June 1995, neither the house nor the vehicle was examined until much later. 22 There is force in both arguments put on behalf of Mr Burrell. I cannot be satisfied beyond reasonable doubt that Mr Burrell formed the intention to kill Mrs Davis before she pressed him for the repayment of the loan which, I infer, was in late May 1995. From that moment, however, Mr Burrell gave a great deal of thought to the way in which, by charm and false representation, he would lure Mrs Davis to his home, murder her and then dispose of the body. The subjective case. 23 Let me turn from the offence to the offender. I should make a number of observations. First, there is plainly no remorse. Mr Burrell knew the victim's family well. They were family friends. He was in a position to appreciate the devastation which Mrs Davis' disappearance and murder would have upon that family. Mr Burrell has never accepted responsibility. He has never sought to alleviate the suffering of the family by disclosing the whereabouts of Mrs Davis' body. Indeed, at the trial and no doubt on instructions, the insinuation was made to Mr Lessel Davis, Mrs Davis' son, that his financial predicament at that time may have had some connection with his mother's disappearance. That insinuation was completely false, as Mr Burrell knew. Of course, Mr Burrell was entitled to defend himself as he saw fit (Siganto v The Queen [1998] HCA 74; 194 CLR 656). But, the course he chose was consistent with a complete absence of remorse and the cold blooded nature of his crime. 24 Secondly, there was some delay in the prosecution. Ordinarily that would be a matter which may, to some degree, ameliorate the sentence. However, an examination of the causes for that delay suggest, according to the Crown, that it should be given little weight. Counsel for Mr Burrell, in his helpful submissions on sentence, acknowledged the force of the Crown's submission, which I accept. 25 Thirdly, Mr Burrell has recently turned 55 years. Assuming for the moment a determinate sentence, that sentence inevitably will be substantial and will extend into Mr Burrell's old age. Prison may, because of age, become more burdensome (Holyoak v R (1995) 82 A Crim R 502). There is, however, no principle that an offender should not be sentenced to a sentence otherwise appropriate which may effectively mean he spends the rest of his life, or much of the rest of his life, in gaol (R v Varner (NSW CCA, 24 March 1992, unreported) at 4; Holyoak v R (supra) at 507). In framing the sentence I am about to impose, I have taken into account what was said by the Court of Criminal Appeal in R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35, pars [190]-[191]. 26 The final matter is that Mr Burrell has a criminal record. He has a number of relatively minor criminal convictions which, in the context of this offence, are of little relevance. However, on 9 August 2006, he was sentenced for the kidnapping and murder of Mrs Kerry Whelan. In respect of the murder, his Honour Justice Barr imposed a sentence of life imprisonment. On the charge of kidnapping, Mr Burrell was sentenced to 16 years imprisonment commencing on 23 December 2005 and expiring on 22 December 2221. A non parole period of 12 years was fixed, expiring on 22 December 2017. 27 The murder of Mrs Whelan occurred in May 1997, that is almost two years after the disappearance and murder of Mrs Davis. The Director of Public Prosecutions chose to pursue the Whelan indictment before prosecuting in relation to the murder of Mrs Davis. Are the convictions in respect of the Whelan indictment relevant when sentencing Mr Burrell in respect of a similar offence which occurred at an earlier point in time? The issue was considered in R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159, at paras [50]-[61]. In the context of that case, it was said that when sentencing for the earlier offence, the later convictions cannot be regarded as a matter of aggravation. Rather, they deprive the offender of any leniency to which he might otherwise have been entitled, because he had little or no criminal record at the time of the commission of that offence (para [59]). Here, however, there is the additional question of dangerousness and the protection of the community, where the subsequent convictions are, in my view, relevant. A life sentence? 28 It was submitted by the Crown that the level of culpability of Mr Burrell was so extreme that the community interest in retribution, punishment, community protection and deterrence, could only be met through the imposition of a life sentence (s 61(1) Crimes (Sentencing Procedure) Act 1999). The offence, according to the Crown, was in the worst class of case. My attention was drawn to the judgment of McClellan CJ at CL in Knight v R [2006] NSWCCA 292; 164 A Crim R 126, at para [23] where his Honour conveniently set out the principles to be applied when determining whether an offence should be characterised as coming within the worst class of case. 29 Here, broadly, the Crown relied upon two arguments in support of its submission. First, the circumstances surrounding Mrs Davis' murder can be likened to those in the case of Mrs Whelan. The criminality in the present crime was, according to the Crown, similar to that involved in the Whelan murder and therefore should attract the same penalty. Both were offences against women Mr Burrell knew to be wealthy. In both cases the motive was purely financial. Both involved extensive pre-planning and premeditation. Each involved Mr Burrell using his knowledge of the victim and his friendship with her to lure that victim to a meeting, where she would be subdued and murdered. Both offences involved the disposal of the victim's body, such that neither body has ever been found. 30 Secondly, the Crown argued that, even were the view taken that there were material differences between the criminality exhibited by Mr Burrell in the Whelan murder and that in the Davis murder, nonetheless a life sentence was justified upon a broader principle. The murder of Mrs Davis involved a level of culpability similar to that involved in a "contract killing". A "contract killing", prima facie, falls within the worst class of case. (R v Crofts (NSW SC, 6 December 1996, unreported); R v Smith [2000] NSWCCA 202 at [164] and [166]; R v King (1998) 99 A Crim R 288 at 291 and 292; R v Lewis [2001] NSWCCA 448; R v Baker (NSW CCA, 20 September 1995, unreported); R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465; Burrell v R [2007] NSWCCA 65; R v Burrell [2007] NSWCCA 79.) The criminality was similar because in both the motive was purely financial. There was no emotional element that might ameliorate the killing. As with a contract killing, it was, according to the Crown, a murder in cold blood, made worse by lengthy premeditation and planning (cf Burrell v R [2007] NSWCCA 65, para [329]). 31 However, without diminishing the awful and brutal nature of this crime, which was certainly committed in cold blood for purely financial gain and with no regard for the sanctity of human life, I believe that a determinate sentence is appropriate, rather than a life sentence. Justice Barr, when sentencing Mr Burrell for the Whelan murder, recited the circumstances surrounding the kidnapping and murder of Mrs Whelan (R v Burrell [2006] NSWSC 581). There was, in respect of Mrs Whelan, a persistence and a level of planning far greater than that involved in the murder of Mrs Davis. Further, whilst I accept that Mr Burrell's criminality can be likened to that of a contract killer, the sentences imposed upon such offenders vary widely depending upon the particular facts. The Crown's submission that the Davis murder involved "lengthy premeditation and planning" overstates the degree of planning, as I have said, although unquestionably there was planning. 32 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence to serve the interest of punishment, including denunciation and general deterrence. Here, the formulation and execution of a plan to murder a harmless and generous elderly woman in cold blood places this crime at the more serious end of the scale. 33 Mrs Davis was a much loved mother, grandmother and friend. I have before me a number of statements from members of her family, some of which were read in open Court. They are a poignant reminder of the anguish which has attended the disappearance of Mrs Davis and the realisation that she had been murdered. That anguish continues to this day. It will, no doubt, continue into the future. The sympathy of this Court is extended to Mrs Maree Dawes and Mr Lessel Davis and other members of the family. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85. 34 It remains for me to pass sentence. In determining that sentence I have taken account of life expectancy tables. I have given consideration to the appropriate commencement date, whether the date of the verdict or the date of sentence. I believe that, in the circumstances, the date of verdict is the appropriate commencement date. I also believe the parole period will be adequate for the supervision Mr Burrell would require were he released from custody. 35 Bruce Allan Burrell, I sentence you to imprisonment for 28 years commencing on 17 September 2007 and ending on 16 September 2035, with a non parole period of 21 years. Accordingly, the earliest date upon which you will be eligible for release on parole in respect of this offence is 17 September 2028. ********** 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.