New South Wales Supreme Court CITATION : R v Owen Henry FRAZER, R v William Wayne SPENCER [2007] NSWSC 1449 HEARING DATE(S) : 22/11/2007, 05/12/2007 JUDGMENT DATE : 11 December 2007 JUDGMENT OF : Howie J at 1 DECISION : The offender Frazer is sentenced to a term of imprisonment of 11 years made up of a non-parole period of 7 1/2 years with a balance of term of 3 1/2 years. The sentence is to date from 19 May 2006 and the non-parole period expires on 18 November 2013 the date upon which the offender will be eligible for release to parole. The offender Spencer is sentenced to a term of imprisonment of 13 years made up of a non-parole period of 9 1/2 years with a balance of term of 3 1/2 years. The sentence is to date drom 19 May 2006 and the non-parole period expires on 18 November 2015 the date upon which the offender will be eligible for release to parole. CATCHWORDS : CRIMINAL LAW - Sentence for manslaughter after trial - SENTENCE - killing in the course of armed robbery. LEGISLATION CITED : Crimes Act 1900 - s 112(3) Crimes (Sentencing Procedure) Act 1999 - s 21A(2)(k) R v Mostyn (2004) 145 A Crim R 304 R v Way (2004) 60 NSWLR 168 CASES CITED : R v Charman [2007] NSWSC 1177 R v Dang [2001] NSWCCA 321 R v Denton [2001] NSWSC 850 PARTIES : Regina v Owen Henry Frazer Regina v William Wayne Spencer FILE NUMBER(S) : SC 2007/0000213101, 2007/0000213001 H Wilson - Crown COUNSEL : J O'Sullivan - Offender Frazer S Austin - Offender Spencer S O'Connor - Crown SOLICITORS : Nicholas Moir & Associates - Offender Frazer Delosaburke & Elphick - Offender Spencer IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J TUESDAY 11 DECEMBER 2007 2007/0000213001 R v William Wayne SPENCER 2007/0000213101 R v Owen Henry FRAZER REMARKS ON SENTENCE 1 HIS HONOUR: At about 4am on 11 January 2005 the deceased Ric Anson was shot to death in the bedroom of his home. The offenders Owen Frazer, William Spencer and a third man, Kirrlie Wilson, were charged with his murder. On 22 November a jury convicted Wilson of murder and the offenders Frazer and Spencer of manslaughter. 2 The Crown case was that the deceased was intentionally shot during the course of an armed robbery committed by Frazer and Wilson at the instigation of Spencer. The defence case was that the deceased was accidentally shot during a drug supply transaction between Wilson and the deceased organised by Spencer. Each of the offenders gave evidence in support of that defence. It is obvious from the jury's verdicts that they rejected those accounts. On the issues raised during the trial and in light of the verdicts, there is in my mind no doubt as to the factual basis upon which the offenders are to be sentenced. It is as follows. 3 At the time of the killing, the offender Spencer and his girlfriend Hazel Seery had been living with the deceased at a residential townhouse in Toronto for about one month. Also residing there was a woman named Caroline Puru. Spencer, Ms Seery and the deceased were all users of amphetamine. 4 A couple of days before his death the deceased borrowed money from Spencer in order to pay for a hire car for the purpose of travelling to Queensland where he carried out an armed robbery. He returned on 10 January 2005 in possession of a large sum of money. He met up with Spencer on the Central Coast where the money borrowed was repaid. Shortly thereafter, Mr Spencer told Ms Seery in effect that the deceased was going to be assaulted and robbed of the money he had stolen. 5 For this purpose, Spencer contacted Wilson who sought the assistance of Mr Frazer. The plan was that Spencer was going to arrange for the other two offenders to gain entry into the deceased's premises during the early hours of 11 January. Although Ms Seery argued with Spencer about the plan because of her close relationship with the deceased, she did not inform him of what was going to happen. 6 On the night of 10 January, Spencer, Ms Seery, Ms Puru and the deceased were at home in Toronto. The deceased was in possession of a handgun, which he was waving around. He appeared to be affected by drugs and paranoid. Spencer asked Ms Seery to help get Ms Puru out of the house because he did not want her to get "slapped around or hurt" during the course of the robbery. Accordingly, Ms Seery persuaded Ms Puru to accompany her and Spencer to the Central Coast, leaving the deceased alone at the Toronto residence. Initially, Ms Puru did not wish to leave the deceased alone. However, he said to Ms Puru, "I'll be all right. Trust me. I've got this here with me," referring to the handgun. It is clear that at some stage Spencer informed Wilson that the deceased was armed and in a dangerous mood. 7 Spencer, Ms Seery and Ms Puru then travelled to the Central Coast in Ms Seery's car where they stayed for a period of time and ingested amphetamine. Early in the morning of 11 January 2005 Spencer contacted an associate, Michael Mitchell, and, on the pretext that Ms Seery's vehicle had broken down, asked him to drive them to the deceased's home, ostensibly to gather clothing because Ms Seery had fallen out with the deceased. 8 In the meantime, the offender Wilson had arrived at the residence of Mr Sales, his nephew. He asked Mr Sales to give him a lift in order to obtain some drugs. They then drove to the offender Frazer's residence at Gwandalan. At the time Frazer was living there alone with his children as his wife was in hospital. Frazer expressed some reluctance to go with them. Wilson said to Frazer, "Oh it's all right, mate. Everything will be fine. Just get ready and come on." Mr Sales then drove Wilson and Frazer to Lake Munmorah, where they met with Spencer who had arrived there with Ms Seery. 9 After a short conversation between the offenders, they made their way to Toronto, Spencer in Mr Mitchell's vehicle accompanied by Ms Seery, and Wilson and Frazer in the vehicle driven by Mr Sales. Spencer was in constant contact with Wilson by mobile telephone giving him directions that Wilson passed on to Mr Sales. 10 On the way to Toronto Mr Mitchell heard Spencer speaking on his mobile telephone. At one time he heard him say something about "doing the job right" and making sure that it was done properly. Mr Mitchell asked what this was about and Spencer said he had to get money off some guy and "had to smash someone for money". 11 The vehicle driven by Mr Sales arrived at the street in Toronto first. He parked on the side of the road and waited for the other vehicle. When Spencer arrived near the deceased's residence, he left Mr Mitchell's vehicle and went to the deceased's townhouse where he opened the door leaving it ajar so that Wilson and Frazer could enter to carry out the robbery. Spencer then had a short conversation with his co-offenders before re-entering Mr Mitchell's vehicle and telling him to leave. 12 Wilson and Frazer entered the deceased's residence where they stayed for about ten minutes. Mr Sales then heard two gunshots in short succession emanating from the direction of the townhouse. Wilson and Frazer then returned to Mr Sales' car. The offender Wilson said to Frazer, "I'm sorry, Owen. I fucked up. I'm so sorry." He repeated this several times. Wilson then directed Mr Sales to drive back in the direction from which they had come. Spencer telephoned a short time later and they arranged to meet at Rathmines golf course. 13 Mr Mitchell drove Spencer and Ms Seery to a nearby service station where Mr Mitchell purchased petrol. This was at about 4am. Spencer then instructed Mr Mitchell to drive back past the deceased's residence before proceeding back to the Central Coast. Mr Sales' vehicle was no longer to be seen. 14 On the return journey to the Central Coast, Spencer told Mr Mitchell to stop at the corner of the Rathmines golf course in order to meet with a person in another vehicle who had his mobile phone. Mr Mitchell stopped his car behind Mr Sales' vehicle. Spencer alighted and went to the passenger window of the vehicle where he spoke to the offender Wilson. Spencer said to Wilson, "Did you get it?", and Wilson replied, "No. It's too early in the morning. We're not worrying about it." Spencer said, "Oh well, that's all right," and returned to Mr Mitchell's, where he said to Ms Seery, "The gutless cunts, they didn't do it." 15 Mr Mitchell then drove Spencer and Ms Seery back to Blue Haven where they left him, before picking up Ms Puru and returning to the deceased's residence in Ms Seery's vehicle. They arrived back at the deceased's home at about 6.30am. Mr Sales drove back to Frazer's residence, where Wilson and Frazer remained. 16 Upon returning to the deceased's residence, the front door was found to be ajar. The offender Spencer, Ms Seery and Ms Puru went inside, calling out the deceased's name. Ms Puru went upstairs and found the deceased lying dead across his bed. She called out to Spencer, who came upstairs. He suggested that they search the house to remove anything they did not want the police to find. 17 Three and a half grams of amphetamine were located in the fridge. They then left the townhouse and drove to the home of Ms Puru's mother. On the way Ms Puru hid the amphetamine in bushland. Ms Puru's mother subsequently drove the offender Spencer along with Ms Seery and Ms Puru to Toronto police station where they reported finding the body of the deceased. 18 The evidence of Dr Lee, the forensic pathologist, was that the deceased was shot to the head just above the left eyebrow. There was an exit wound also to the front of the head caused by a piece of shrapnel from the bullet. The deceased had other injuries that were consistent with him having been pistol-whipped to the head and he had defence wounds to the back of his arms. He was shot while he was sitting on the bed facing the shooter and probably as he fell backwards to a prone position. There had been another shot that had gone through a window in the bedroom and fired from the same position as the shot that killed the deceased. 19 A firearm, being a cut-down rifle, was located in the garage when police later searched the premises but this was not the weapon used to shoot the deceased. If that weapon was not the weapon that the deceased had been brandishing earlier in the evening before his death, there is no evidence as to what happened to that weapon. The jury's verdict means that either Wilson or Frazer took a loaded firearm with them into the house and that was the firearm used to shoot the deceased. It was taken with them when they left the premises. 20 The facts I find beyond reasonable doubt are as follows. For whatever reason, it was Spencer who organised the robbery of the deceased so far as the three offenders are concerned, and I believe he planned it. He contacted Wilson and warned him of the danger presented by the deceased and advised him to arm himself. Wilson did so and recruited Frazer to assist him. The offender Frazer was initially reluctant to go with him but agreed to do so, presumably because he hoped to be rewarded. Wilson sought the assistance of Mr Sales, telling him that he was involved in a drug transaction. In the meantime, Spencer organised the services of Mr Mitchell in order to avoid using a vehicle that might be recognised by residents of the street. Spencer rendezvoused with the others outside the deceased's premises in order to give them access to the townhouse. 21 Frazer and Wilson entered the premises, Frazer being there to assist Wilson in either intimidating the deceased or to prevent his escape. Wilson assaulted the deceased with a weapon he had brought with him, probably while the deceased was sitting on the bed. In the course of that assault, Wilson discharged the weapon, intending to kill the deceased, I assume because he lost his temper when the deceased refused to co-operate. When Frazer and Wilson left the premises, Wilson apologised to Frazer for having shot the deceased. Spencer met with them later in order to get the proceeds of the robbery. 22 This was an armed robbery that went wrong. When they entered the deceased's premises they did not intend to kill him but only to threaten and assault him with the weapon that was brought. It was loaded in case the deceased was himself armed and they needed to protect themselves. The verdict of manslaughter against Frazer is on the basis that he was present at the premises participating in a robbery. I believe that he knew that Wilson had a weapon with him at the time but he did not foresee that Wilson might intentionally shoot the deceased during the robbery. The verdict of manslaughter against Spencer is on the basis that, although he set up the robbery and contemplated that it would involve a loaded firearm, he did not foresee that it might be discharged with the necessary intent. 23 The manslaughter offence committed by both the offenders Frazer and Spencer was of a most serious kind because it was committed in circumstances where the offenders were engaged in a common criminal enterprise to rob the deceased in his own home in the early hours of the morning when he would be most vulnerable. They both at least contemplated that Wilson might be armed with a loaded weapon and that it might be discharged resulting in the death of the deceased. In fact I am satisfied that both offenders knew that Wilson would be armed simply by reason of the threat posed by the deceased who himself had been armed earlier that night. I reject the possibility that Wilson might have armed himself yet not been told to do so by Spencer or without Frazer being aware of that fact. This was a case where the criminal conduct engaged by the offenders was itself very grave even if there had been no killing. 24 During the course of submissions I raised with counsel the question of the relevance, if any, of the standard non-parole period applicable to an offence under s 112(3) of the Crimes Act. Of course, neither offender had been charged or convicted of that offence but it was accepted that the facts proved against them amounted to such a offence. Having given the matter considerably more thought, I do not believe I should take it into account in any way. There are such anomalies in the standard non-parole period provisions that they should be limited to cases where they do have direct application. However this does not mean that the criminality of the conduct of which the offenders were involved when the killing occurred is not of very great significance. Even had the deceased not been killed, the activity of the offenders would have warranted a significant gaol sentence regardless of the standard non-parole provisions. 25 Of course it was not a mitigating factor that the deceased was himself a dangerous criminal and that the money to be stolen was itself illegally obtained by the deceased. The criminal law does not discriminate between unlawful homicides on the basis of the effect upon the community of the death of the victim. It acts on the understanding that all life is precious and the taking of human life is of the greatest seriousness regardless of the identity of the victim or the impact of the death on others. There was no victim impact statement tendered before me, but that does not mean that the deceased's life was of little worth. 26 Offender Frazer is aged fifty-two years. He has been in a very long term relationship from which there are seven children ranging in age from eighteen years to eighteen months. His partner, Ms Montgomery, gave evidence before me. She suffers bouts of illness that frequently require her to be hospitalised. In fact she was in hospital when the offender decided to accompany Mr Wilson. The offender has not been in employment for about seven years because of a shoulder injury. He spent most of his time before his arrest assisting in the care of the children. After his arrest, three of the children were placed in care for a period of about twelve months, presumably because of the inability of Ms Montgomery to cope. She keeps in contact with the offender and visits him when she is able to do so. His incarceration will cause considerable difficulties for Ms Montgomery but the situation is, in my view, not exceptional. I feel very sorry for Ms Montgomery but that cannot be reflected in the sentence to be imposed upon the offender, so serious was his conduct and in such disregard for the welfare of his children. 27 He has a criminal record of little relevance, except that in 1987 he was sentenced to a term of imprisonment for robbery. However, that was his last criminal conviction. He is entitled to what leniency I can show him from the fact that for almost twenty years he has apparently lived as a law abiding citizen helping to care for his large family. This fact makes it difficult to understand why he determined to leave his children alone in the middle of the night to assist Wilson. As I have indicated already, I must assume he was to receive some of the proceeds of the robbery. 28 Offender Spencer is aged thirty-seven. His mother gave evidence before me. She has remarried and lives in the State's far north coast where she cares for the offender's five year old son. The offender is one of eight children and belongs to a close family. His mother took the children and fled from her first marriage because of the abuse suffered by the family at the hands of her first husband. The offender has frequent contact with his mother and child despite being in gaol for the last three years. He has been involved in the use of illegal drugs since the age of seventeen and was addicted to amphetamine at the time of the killing of the deceased. His drug addiction increased after the death of his sister in 1995. The offender has suffered from bouts of depression and twice attempted to take his own life. His mother is hopeful that when the offender is ultimately released from custody he will come to live with her and his son. He has promised her to make changes to his lifestyle. I am full of admiration for his mother but again that cannot be turned simply into mitigation for her son. 29 The offender has an extensive criminal record with numerous sentences of imprisonment imposed upon him. Defence counsel calculated that the offender has spent eleven of the last nineteen years in gaol. He first appeared in the Children's Court in 1987 and the District Court in 1989. He was first sentenced to a term of imprisonment in 1990. Chiefly his offending has been for matters of dishonesty. There are offences for which he was imprisoned in Victoria in 1995. He was last sentenced to imprisonment in May 2005 for offences of dishonesty and has been in continuous custody since that time. 30 There is a psychological report in evidence. It gives the background of the offender, the significant part of which I have already summarised. He has rarely been in employment except for isolated labouring work. He has come under psychiatric care, mainly it appears as a result of experiencing drug-induced psychosis as evidenced in the report of Dr Darcy. He has sought little or no treatment for his addiction. There is some suggestion of an organic brain disorder but this has not been investigated. The psychologist opines that the offender's judgment was impaired at the time of offending but does not deign to indicate how that might have had any effect upon his criminal culpability in being involved in a planned armed robbery for which he was largely instrumental. He noted that the offender appears genuine in his wish now to seek rehabilitation but I give that opinion no weight in the absence of evidence from the offender and in light of his frequent offending. The psychologist does not explain why he formed that view unless it was intuitive. 31 I accept as is almost inevitably the case that Mr Spencer has matters in his background that have led to his abuse of illegal drugs. The psychologist refers to him self-medicating, but that is not a matter of significant mitigation. Certainly not at the age of thirty-seven, and with the attitude Mr Spencer has shown so far to reform. Unfortunately it is almost inevitably the case that persons who abuse drugs over the period and to the extent that the offender has had very severe personality disorders often caused by problems in early life that were not their fault. There are very often traumatic incidents that have exacerbated their problems. Very rarely will an understanding of the dynamics of the drug dependency have any significant relevance to a court sentencing a repeat offender for a very serious offence. So it is in the case of Mr Spencer. To a degree one can sympathise with his situation but unfortunately there is little room to reduce his sentence. 32 As I indicated to Mr Spencer's counsel during addresses, if the death of the deceased, a person the offender acknowledged as a friend, has not led to Mr Spencer taking stock of his life and his abuse of drugs, nothing I can do or say will have that effect. There is a substantial bond with his son, and it may be as his mother hopes, that this might be his eventual salvation. However his conduct was, in my opinion, more serious than that of Mr Frazer. If he did not organise the robbery at the outset, and I believe that he did, he was instrumental in putting it into effect in a very significant way. He encouraged Ms Seery to get Ms Puru out of the premises, and more significantly, he used keys entrusted to him by the deceased to let in Frazer and Wilson. Contrary to submissions made on his behalf, this was a significant breach of trust whether falling within s21A(2)(k) of the Crimes (Sentencing Procedure) Act or at common law. 33 I accept that Mr Spencer was emotionally upset over the death of the deceased, no doubt because to a very substantial degree he was responsible for it. There might be remorse over the killing but none over the offence that led to it. The same is the case with Mr Frazer. The lack of contrition for committing a serious offence involving the planned armed robbery in a private home does not auger well for the rehabilitation of either offender. Remorse otherwise has limited mitigatory value on its own. 34 Mr Spencer has been held on protection during the three years that he has been in prison since last sentenced. His protection is a result of fears he held for himself by reason of earlier difficulties with members of the prison population. His protection is completely unrelated to this offence. 35 Counsel raised with me in submissions the fact that Mr Spencer was held on protection and asked me to take that into account. Having referred here to cases such as Mostyn (2004) 145 A Crim R 304 and Way (2004) 60 NSWLR 168, I allowed him to seek further material from the Department of Corrective Services to indicate the nature of Mr Spencer's protection, and more significantly whether it can be said that he would serve or has served his gaol sentence in more harsher conditions such that I should take into account to reduce his sentence for even such a serious offence. 36 Information handed up today indicates that little impact has occurred by reason of Mr Spencer's seeking protection. As is so often now the case, Corrective Services are able to provide protection to prisoners and yet afford them the opportunities such as they are that other inmates of prisons have and can benefit from. It seems to me in line with recent authority that I cannot reduce Mr Spencer's sentence by reason of him being on protection as it does not seem to me that he has served his sentence in the past or will serve in the future in harsher conditions that warrants a reduction in his sentence. 37 The circumstances of the offending require that a very significant factor of general deterrence be reflected in the sentence. This is not a factor always present in manslaughter cases but here it is warranted by the circumstances leading up to the killing and particularly the use of a loaded firearm of which both offenders were aware. The use of violence is not itself an aggravating factor in manslaughter cases that inevitably involve some degree of personal violence except in the very rare negligence cases. Here the degree of violence contemplated was not exceptional. However, it was a matter of aggravation that the offence involved the use of firearm. I make it plain of course that neither offender is punished in any way for giving what the jury found to be false evidence. 38 The maximum penalty for the offence is twenty-five years imprisonment. It is the greatest maximum penalty imposed for offences under the Crimes Act short of life. There is no standard non-parole period. It is trite that it is almost impossible to identify a range of sentences for manslaughter offences nor is it helpful to classify them according to their nature or legal basis. It is not particularly helpful to compare and contrast sentences imposed in different cases so varied are the facts giving rise to the offence. However I was referred to a number of sentencing decisions that might provide some assistance at least so far as consistency in sentencing is important. 39 In Charman, Hulme J started with a sentence of ten years before applying a discount for the utilitarian value of a plea and assistance. That was the case of a killing arising the course of a planned break and enter offence where the occupant was going to be knocked unconscious. Unfortunately he was struck too hard, killing him. The offender was the driver of the getaway vehicle and was aged about twenty years and had no significant criminal record although he was subject to a bond at the time. This was not, in my opinion, as serious as the offence before me, not the least because it did not involve the use of a firearm. The subjective circumstances of that offender also warranted a reduced sentence. In my opinion, these same observations apply to the case of Dang [2001] NSWCCA 321 the Court of Criminal Appeal and the sentence imposed by me in Denton [2001] NSWSC 850. 40 I believe that the manslaughter here is as serious as it could be save for the fact that the offenders are not professional robbers. By that I mean as serious as an offence of unlawful and dangerous act manslaughter can be. As I indicated in the course of submissions, I believe there has been an increase in sentences for manslaughter in more recent times, perhaps not for unlawful and dangerous act manslaughters to the same degree, having regard to the cases presented to me. I find it difficult, having regard to the range of sentences imposed in other somewhat similar cases, to mark sufficiently the distinction between committing an offence of armed robbery in the circumstance of this case and where the same acts are done, but resulting in the death of the householder. 41 As against a maximum penalty of twenty-five years I would have imposed a sentence on the offender Spencer of at least fifteen years and on Frazer a sentence of at least thirteen years. But I feel constrained by the pattern of sentencing to reduce it to a point that may be considered by some members of the public as too low. It is not for me to attempt to increase the tariff. If that is to be achieved it must fall to the Court of Criminal Appeal and will necessitate a review of sentencing generally for murder, felony murder and the various categories of manslaughter. Still it must be borne in mind by those who contemplate the sentence to be imposed upon the offenders that they were not convicted of murder. Further, this is not a manslaughter where there was an intention to inflict grievous bodily harm or death. Clearly, the more serious offences of manslaughter have this as an ingredient. 42 In the case of the offender Spencer, there are special circumstances and the fact that the sentence I am imposing is cumulative to sentences he was serving for unrelated offences. Overall he will have a total sentence of fourteen years and I intend to bring about the result that generally speaking the non-parole period for the manslaughter represents the application of the statutory ratio to the total sentence he is to serve. In my view there is no other reason to reduce the non-parole period. 43 In the case of Mr Frazer, there are special circumstances only in the fact that at age fifty-one he will serve his first sentence in twenty years and it will be a lengthy one. He will need longer on supervision in order to readjust back into the community. But there is a minimum period he must spend to reflect the seriousness of his crime and therefore there can only be a small reduction to the non-parole period. The difference in the sentences between the offenders is intended to reflect both that the offender Spencer had greater culpability in the commission of the offence and his worse criminal record. 44 The offender Spencer is sentenced to a term of imprisonment of thirteen years made up of a non-parole period of nine and a half years with a balance of term of three and a half years. The sentence is to date from 19 May 2006 and the non-parole period expires on 18 November 2015. That is the date upon which he will first be eligible to release to parole. 45 The offender Frazer is sentenced to a term of imprisonment of eleven years made up of a non-parole period of seven and a half years with a balance of term of three and a half years. The sentence is to date from 19 May 2006 and the non-parole period expires on 18 November 2013. That is the date upon which Mr Frazer will be eligible for release to parole. 46 Mr O'Sullivan, Mr Austin, if I have got the figures wrong, let me know and I will come back on and adjust them. You can see what I intended to bring about. Before I adjourn can I compliment Mr O'Sullivan and Mr Austin on the way the trial was conducted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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