New South Wales Supreme Court CITATION : R v Peter Reuben WEBB [2008] NSWSC 1351 HEARING DATE(S) : 10/12/2008 JUDGMENT DATE : 17 December 2008 JUDGMENT OF : Howie J at 1 DECISION : For the offence of being carried in a stolen conveyance the offender is sentenced to a fixed term of 18 months to date from 18 April 2007 and expired on 17 October 2008. For the offence of murder the offender is sentenced to a term of imprisonment comprising a non-parole period of 16 years 6 months to date from 18 April 2007 and to expire on 17 October 2023, the date upon which the offender is eligible to be released to parole. There is a balance of term of 5 years 6 months from 18 October 2023. CATCHWORDS : Criminal Law - Sentence - Murder - Plea of Guilty - killing in course of armed robbery. LEGISLATION CITED : Criminal Procedure Act 1986 - s 166 CATEGORY : Principal judgment PARTIES : Regina v Peter Reuben Webb FILE NUMBER(S) : SC 2008/12423 COUNSEL : J Pickering - Crown D Stewart - Offender SOLICITORS : S Kavanagh - Crown S Danieli - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J WEDNESDAY 17 DECEMBER 2008 2008/12423 R v Peter Reuben WEBB JUDGMENT 1 HIS HONOUR: On 1 December 2008 the offender, Peter Reuben Webb, pleaded guilty on arraignment to a charge that on 28 January 2007 he murdered the deceased, Mohammed Kader. A co-offender Michael John Jackson pleaded guilty to manslaughter arising from the killing of the deceased, this plea being accepted by the Crown in full satisfaction of the indictment. The pleas of guilty came on what was to be the first day of a trial before a jury was empanelled. However, at a mention of the matter the previous week there was an indication that the offender was likely to plead guilty. The offence carries a maximum penalty of life imprisonment and there is an applicable standard non-parole period of twenty years. 2 At the sentencing hearing the Crown produced a certificate under s 166 of the Criminal Procedure Act in respect of an offence of being carried in a stolen conveyance. The offender acknowledged his guilt of that offence and, therefore, I am to sentence him for that matter as well as the murder. 3 An agreed statement of facts was handed up. I am required to sentence the offender in accordance with this document as no other material from the prosecution brief was tendered. A plan and some photographs of the restaurant were tendered so that I could better appreciate the facts contained in the statement. In a psychiatric report tendered on behalf of the offender there is an account given to the psychiatrist that is in a significant way inconsistent with the statement of facts placed before me. Counsel for the offender, Mr Stewart, conceded that I should ignore that account. 4 Briefly the facts are that the two offenders decided to commit a robbery on an Indian restaurant in Petersham. They arrived outside the restaurant in a car stolen about 24 hours earlier for this purpose. The offender Webb armed himself with a "club Lock" obtained from the vehicle. He entered the restaurant and walked to the far end of it where there was the entrance to the area behind the counter. The deceased was in that area washing dishes. The offender and the deceased became involved in a struggle for the club lock, during the course of which the deceased was struck to the head with the weapon. The offender then picked up a knife from the kitchen bench and stabbed the deceased twice to the abdomen. 5 While the offender was involved with the deceased, Jackson entered the premises and grabbed the cash register from the counter. He and the offender then fled from the restaurant. As they entered the stolen vehicle, the deceased, who had staggered from the restaurant clutching his abdomen, struck at the vehicle with the club lock. He then collapsed to the pavement. Paramedics later attended upon him but he was dead by the time he reached hospital. The offenders escaped with the cash register containing just over $600. 6 The deceased suffered a number of injuries including a blunt force injury to the head. He had four stab wounds to the neck area and two, which caused his death, to the abdomen. 7 About 8 hours after the robbery the stolen car was located in Newtown. The empty cash register was found nearby in a garbage bin. Not far away police located the cash drawer and the kitchen knife in a garden bed in front of a house. Fingerprint and DNA evidence identified the involvement of both offenders with the vehicle and hence the robbery at the restaurant. Telephone records linked the two offenders about the time of the robbery. 8 Jackson was arrested on 30 May 2007. After receiving legal advice he maintained his right to silence when interviewed by police. However a phone call between him and his de facto partner from gaol was intercepted and contained statements implicating him in the robbery. 9 This offender was at Bankstown Police Station on 1 June 2007 for unrelated matters. Conversations between him and an undercover police officer were lawfully recorded which contained statements implicating the offender in the killing. He was arrested on 4 June 2007 and declined to answer questions of police after receiving legal advice. 10 The offender was born on 27 October 1969 and hence is 39 years of age. He has a bad criminal record dating from 1984 when he was dealt with in the Childrens Court for stealing. Thereafter there are frequent convictions mainly for dishonesty matters. In 1992 he was sentenced in the District Court for robbery offences and received a relatively short gaol sentence given the nature of the charges. Thereafter he was dealt with in the Local Court for minor matters of dishonesty or street offences, for which he received short gaol sentences, almost continuously up until 1997. In that year he was sentenced in the District Court for offences of robbery with violence, stealing a motor vehicle and possessing implements. He was sentenced to imprisonment with a non-parole period of 2 years to date from 1 February 1997. In 1999 he was sentenced in the Local Court for stealing from the person and received a sentence with a non-parole period of 18 months. In 2002 he received a fixed term of 12 months for break and entering. In that year he was sentenced in the District Court to a prison term with a non-parole period of 2 years for assault with intent to rob. In June 2006 he was placed on a good behaviour bond for 12 months for the offence of larceny. He was subject to that bond and another for assault when he murdered the deceased. 11 The offender was the subject of a psychiatric report by Dr Allnutt dated November of this year. The report discloses that at the time of the killing the offender was living with his parents. He was taking a variety of substances including, amphetamine, cocaine, heroin and methadone. His history of drug abuse commenced in 1989. The offender is diabetic but, because of his use of drugs, it was not being controlled. The offender told Dr Allnutt that he had been having seizures since a stroke in 2003 but none since 2006. His mother in giving evidence indicated that the seizures had continued into 2007. The offender told the psychiatrist that he had been suicidally depressed and having paranoid hallucinations. 12 The offender gave the psychiatrist a mental health history commencing with a referral to a psychiatrist in 1989 after the death of his brother. He related four suicide attempts and a number of admissions to a psychiatric hospital, the last about a week before the offence. He has been diagnosed as suffering from epilepsy, diabetes and high blood pressure. There is nothing in his upbringing of any relevance except that he comes from a stable and loving family who still support him. He has had little employment and few stable relationships due to his drug usage. 13 The psychiatrist concluded the offender was suffering "symptoms of an 'underlying condition', that being fluctuating mood, anxiety and fluctuating psychotic symptoms aggravated by chronic but persistent substance abuse, intoxication and withdrawal". Apart from the fact that the offender abuses illegal substances, there is no apparent nexus between any underlying condition and the offences he has committed. 14 There was also a report from a psychologist. Testing of the offender revealed that he fell well within the Extremely Low range of intellectual functions and that he met the criterion on his IQ score of Mild Intellectual Disability. There is no suggestion that his offending on this occasion, or on others in his past, is related to his psychological level of functioning. 15 The offender's mother gave evidence. She is a highly articulate and, no doubt, intelligent woman. As the psychiatrist noted, there is not the slightest suggestion that anything in the offender's upbringing has led to his abuse of drugs and resultant serious criminal behaviour. His mother described the difficulties the offender experienced at school and his learning disabilities. However, his father succeeded in finding him work with the local council. The applicant told the psychiatrist that he stopped working to take up a disability pension. His mother thought that he lost the job because of his drug taking. As would be expected from such caring parents they tried to assist him by taking him to a drug rehabilitation centre in the north of the State earlier in his addiction. However the offender left almost immediately his parents were gone and, according to his mother, beat them back to Sydney. 16 One of the offender's elder brothers died in tragic circumstances when the offender was aged 26. This affected the whole family but the offender in particular and there followed a number of suicide attempts over the next 12 months. One of those led to his first admission to a psychiatric hospital. Shortly before the murder the offender's parents had been away and when they returned his behaviour had deteriorated and he had become withdrawn, apparently because of drug usage. 17 As I pointed out to his counsel, although the offender was not blessed with even average intelligence, he was very fortunate in that he had a stable and loving upbringing with his parents unlike many of his race. His parents have always supplied him with accommodation and support whenever he is not in custody. 18 The offence is a serious one. It is aggravated by the use of a knife although this was a weapon that came to hand when he was finding himself struggling to overcome the deceased. Still he entered the restaurant with a weapon capable of causing significant harm and he used it at some stage to strike his victim. Although the murder was not planned the assault upon the victim that led to the killing was part of a planned criminal activity. Although Mr Stewart disputed that this aggravating factor applied, it matters little seeing that the murder occurred in the course of a serious offence of armed robbery. The most seriously aggravating factors were the offender's record and that he was subject to bonds for assault and for dishonesty. This is clearly a situation where his criminal record does more than deprive him of leniency. The murder occurred while he was carrying out an offence of the type that he has committed on a number of occasions and for which he has been sentenced to gaol. 19 To some extent individual and general deterrence are not so significant as would have been the case if the offence for which he was being sentenced were simply another robbery. The offender has now entered into a different class of offending, the worst type. He has taken another life by violence and, if that does not teach him to overcome his drug problems in the lengthy period he has before him in custody, then there is little that rehabilitation or deterrent sentencing can do. He is no longer a young man and when he will be released, even at the earliest available date, he will be well into the latter part of middle age. Unfortunately, it may be that his parents are no longer able to physically assist him as they have done in the past. It is a very bleak picture and it is impossible for me to form any view about his prospects for rehabilitation despite some apparent insight into his conduct and its effect upon others. 20 The only matter of any significant mitigation is his plea of guilty. Even though it occurred very late, the Crown accepts that, so far as this offender was concerned, it knew well in advance of the trial that the only possible issue to be litigated was whether a defence of substantial impairment was available. A discount of 15 per cent seems to be appropriate. The fact that the offender pleaded guilty has the result that the standard non-parole provisions do not strictly apply. Although the offender has had some mental health issues they do not seem to me to amount to the type of mental illness whereby this court would mitigate the sentence either by reduced culpability or the need to give less weight to general deterrence. 21 However it is still necessary to consider the specified standard non-parole period as a benchmark or guide. Objectively this was an offence just below mid-range of seriousness because the weapon taken into the robbery was not one that would normally result in the infliction of death and the knife was, as I have indicated, by chance available to the offender during the struggle with the deceased. I am unable to determine how the other wounds came to be inflicted upon the deceased. 22 However there are present aggravating factors in that the offender had a serious criminal record for robberies and that he was subject to conditional liberty at the time of the offending. I do not believe that there are any special circumstances but in any event the application of the statutory ratio will result in a sufficiently lengthy period of parole for the applicant to be supervised and assisted when released and there is no other reason to reduce the non-parole period. I have allowed a discount of just over 15 per cent for the plea of guilty. The overall sentence will be one of imprisonment for 22 years. 23 The sentence for the offence of being carried in a conveyance should be a fixed term to be served concurrently so serious is the murder offence and so lengthy the sentence imposed. For that offence the offender is sentenced to 18 months imprisonment to date from 18 April 2007 and expired on 17 October 2008. 24 For the offence of murder the offender is sentenced to a term of imprisonment comprising a non-parole period of 16 years 6 months to date from 18 April 2007 and to expire on 17 October 2023, the date upon which the offender is eligible to be released to parole. There is a balance of term of 5 years 6 months from 18 October 2023. 25 You might tell your client the effect of those sentences and that 16 years and 6 months is a good deal less than the standard non-parole period of 20 years and I imposed that because of his plea of guilty, mental problems and other matters. ********** 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.