New South Wales Supreme Court CITATION : R v Kirrlie Shane WILSON [2008] NSWSC 238 HEARING DATE(S) : 05/12/2007, 01/02/2008, 14/03/2008 JUDGMENT DATE : 4 April 2008 JUDGMENT OF : Howie J at 1 DECISION : The offender is sentenced to a term of imprisonment made up of a non-parole period of 20 years and a balance of term of 6 1/2 years. The sentence is to commence on 19 May 2006 and the non-parole period expires on 18 May 2026 the date upon which the offender is eligible for release to parole. CATCHWORDS : CRIMINAL LAW - killing in the course of armed robbery - Sentencing for murder after trial. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - Schedule 2 of Act 50 of 2007 CATEGORY : Sentence CASES CITED : R v Frazer, R v Spencer [2007] NSWSC 1449 PARTIES : Regina v Kirrlie Shane Wilson FILE NUMBER(S) : SC 2007/00002129001 COUNSEL : T Bailey - Crown D Stewart - Offender SOLICITORS : S Kavanagh - Crown Ross Hill & Associates - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J FRIDAY 4 APRIL 2008 2007/00002129001 R v KIRRLIE SHANE WILSON REMARKS ON SENTENCE 1 HIS HONOUR: The offender Kirrlie Wilson was convicted by a jury of the charge of murder. The offence arose from the death of a man named Ric Anson in his bedroom in the early hours of 11 January 2005. Two co-offenders, William Spencer and Owen Frazer were convicted of the offence of manslaughter arising from the same incident. Spencer was sentenced to imprisonment for 13 years with a non-parole period of 9½ years and Frazer to imprisonment for 11 years with a non-parole period of 7½ years. 2 The facts are fully set out in the sentencing remarks for Frazer and Spencer and need not be repeated in the same detail for the purposes of sentencing this offender: see [2007] NSWSC 1449. Mr Stewart on behalf of his client argued that I should find facts consistent with the jury verdict but as they most favoured the offender. With respect, that is not the law. Although it may be possible to construe the verdict of the jury in a way that does not involve a positive finding that the offender was the person who shot the deceased, it is highly technical and very unlikely that this was what the jury found. True it is that the Crown did not assert whether the offender or Frazer shot the deceased. But the Crown did not have to do so in order to make out its case. The fact that the jury convicted the offender of murder but Frazer of manslaughter is in my view consistent only with their having found that the offender fired the weapon. 3 The deceased was a person engaged in trafficking in drugs. He had shortly before his death come into possession of a large amount of money as a result of an armed robbery committed by him. Spencer learned of this fact and determined to have it stolen from him. For this purpose Spencer contacted the offender and arranged that they would meet outside the townhouse in Toronto where the deceased resided and where Spencer had been staying. Spencer was to use his key to allow the offender into the premises. However, earlier in the evening on which the robbery had been planned the deceased was acting in a threatening manner and was brandishing a firearm. He was apparently affected by drugs. Spencer told the offender of this incident and warned him to be armed. 4 Sometime on the evening of 10 January or the early hours of the next morning the offender went to the home of an associate named Frazer and asked him to assist. Frazer agreed to go with the offender no doubt to supply physical support in order to intimidate the deceased to hand over the money. The offender asked his nephew, Sales, to drive him and Frazer to the deceased's premises telling him they were going to obtain drugs from the deceased. 5 Shortly before arriving at the townhouse the three offenders met at Lake Munmorah, this offender and Frazer were in a vehicle driven by Sales. Spencer was in another vehicle with his girlfriend. After a short discussion they proceeded independently to the townhouse with this offender in constant contact with Spencer by mobile phone. They met outside the premises at about 4am and Spencer let the offender and Frazer inside. Spencer then left the immediate vicinity of the townhouse. 6 The two men confronted the deceased during which two shots were fired from the gun with which this offender was armed. One struck the deceased in the forehead. The evidence was that the deceased was sitting on the side of his bed before he was shot. He bore injuries which indicated that he had been pistol whipped and had defence injuries to his arms. 7 Immediately after the shooting the two men left the premises and returned to the vehicle in which Sales was waiting. When they arrived there, the offender apologised to Frazer for what had happened saying, "I'm sorry, Owen. I fucked up. I'm so sorry." He repeated this several times. It is obvious that they did not achieve their objective in obtaining money from the deceased. 8 During the investigation of the killing, police spoke to the offender in a recorded interview. The offender denied any involvement in the killing and gave a somewhat nonsensical account of his activity at the time apparently intending the police to believe that he had been affected by drugs to such an extent that he had been in an hallucinatory state at the relevant period. 9 During the trial the offender gave evidence, as did Spencer and Frazer. In effect their version was that Spencer had set up a drug deal between the deceased and the offender and that was why they went to his home in the early hours of the morning. It was the offender's evidence that neither he nor Frazer had been armed when they entered the premises. The deceased had been paranoid and took offence at the presence of Frazer. He threatened the offender with a weapon and a struggle ensued during which the firearm accidentally discharged. It is obvious that the jury rejected this account. 10 I am satisfied beyond reasonable doubt of the factual scenario surrounding the killing that I have already recounted. I have no doubt that the jury convicted the offender of murder because they concluded that he was the person who shot the deceased. Clearly they were assisted in reaching that decision by the admission by the offender that he had been responsible for the shooting of the deceased albeit rejecting his version of how that had occurred. I have no doubt that the offender was the person contacted by Spencer to carry out the robbery, that he had enlisted Frazer to assist him in that venture and that he was armed when he attended the premises. 11 I also find to the same standard that the offender had been assaulting the deceased with the weapon shortly before it was fired. It is clear from the nature of the fatal injury that it was inflicted at very close range, that the offender intended to kill the deceased when he fired the weapon. Although Mr Stewart submitted that I did not have evidentiary material to find that the accused was assaulting the deceased at the time, he could give me no other factual alternative that was in accord with the evidence. I am willing to find that the accused lost his temper with the deceased and as a result fired the weapon. This seems to me to be a finding that favours the offender to a degree otherwise in light of the closeness of the weapon to the deceased's forehead when it was fired it was a cold-blooded execution-type killing. 12 This was an armed robbery that went wrong. The offender did not intend to kill the deceased when he went to the premises. However this was still a grave case of murder even though the killing was not planned. The activity leading up to the killing was seriously criminal, involving as it did a planned armed robbery of a person in his own home using a loaded firearm. I can only presume that the offender and Frazer were expecting to be paid for what they were to do. However they were hired to commit a robbery not a killing. 13 The offender is aged 32. He has a relatively minor record dating from 1992 including some assaults and weapon offences. He has spent short periods in prison serving sentences. Considering his very difficult background it would have been no surprise had his record been worse. He was for a while a user of amphetamine but gave that up about 8 years ago. He was selling the drug as a means of earning some income at the time of the shooting. 14 The offender and his elder brother gave evidence before me consistent with the background information set out in a report prepared by a psychiatrist, Dr Westmore. The offender's brother was a particularly impressive witness who appeared quite distressed when speaking of the conditions in which the offender was brought up. He lived in very deprived circumstances as a child and was subject to considerable violence inflicted upon him by his stepfather. Some of his siblings were taken into care but not the offender and thereafter he took the full the brunt of the violence in the home. The offender completed schooling until year 9 by correspondence. He worked for his father mining opals until leaving home at the age of 16. Thereafter he worked in various manual type positions. 15 He was in a relationship for seven years as a result of which he had four children. The relationship ended because his partner was neglecting the children through drug usage. For a period he lived and worked in Coffs Harbour but returned to the Central Coast because his former partner wanted his assistance. He then fell into the drug culture in which he was engaged at the time of the present offence. 16 There is little doubt that the offender's background has left him with personality problems but it is to his considerable credit that he was able to overcome his use of drugs and largely avoid serious conflict with the law, especially so far as offences of violence are concerned. However he has recognised problems with anger and has undertaken two courses while in custody to address them. I feel that his tendency to anger was involved in the shooting of the deceased. 17 The offender gave evidence supported by documents that after the shooting of the deceased he made efforts to improve his situation in life. By his own efforts he became involved with a company called Active Industry Training and underwent a six-week course to obtain qualifications that he hoped would assist him to obtain employment. He completed that course and another one in November 2005 and obtained proficiency certificates in carpentry and construction. In February 2006 he obtained employment with Borg Manufacturing as a factory hand. 18 The offender was arrested In May 2006 and has been in custody since then. He has contact in prison with a half brother who is being held as a forensic patient. The offender works as a sweeper in the prison and has not been the subject of any disciplinary action. He writes to and contacts his brother who is offering him what support he can. 19 The offender has expressed remorse for the killing in that he accepts that had he not been there it would not have happened. He states that it brought him to his senses about the life he was leading at the time. He accepts the jury's verdict even though he does not acknowledge that it was correct as he maintains the version that the shooting was accidental. I am prepared to accept that he is unlikely to re-offend in so far as his use of firearms is concerned but much will depend on his situation when he is eventually released from prison. He has shown signs of maturity and will no doubt continue to do so over the period of his incarceration. It is difficult to come to any firm view about his prospects of rehabilitation given the period that he must serve before he can be released. But there is nothing to indicate that the protection of the community is a current concern or will be a concern in the future. 20 Unfortunately for the offender there is an applicable standard non-parole period of imprisonment for 20 years. There are clearly aggravating factors in the use of the weapon, it was committed in company and in the deceased's own home. I note that amendments to s 21A that commenced in January of this year do not apply because the offender had been convicted before that date (see Schedule 2 of Act 50 of 2007). But they would have been aggravating features under the common law in any event. There is some remorse although not for that part of the offence involving the robbery of the deceased. As I have indicated little regard could be had to any prospect of rehabilitation although I acknowledge there were signs of the accused trying to rehabilitate and for which he deserves both commendation and consideration. 21 The Crown submitted that overall the standard non-parole was appropriate and achieved parity with his co-offenders. I believe that the offence is slightly higher than midrange in seriousness but having regard to the offender's attempts to rehabilitate before his arrest, especially in light of his disadvantaged upbringing, I am prepared to impose the standard non-parole period. It must be said that having regard to the criminality of the co-offenders it seems slightly unfair that this offender is to spend twice as long in prison. However that is the consequence of the co-offenders' extreme fortune in being convicted only of manslaughter chiefly as a result of the Crown eschewing felony murder and the standard non-parole period applying to this offender where there is no standard parole period in the case of manslaughter. 22 Although there might have been a basis for finding special circumstances had the offender's crime been of much less seriousness, there is in my opinion no basis to reduce the non-parole period having regard to the period that the offender is to spend on parole as a result of the application of the statutory relationship between the non-parole period and the balance of the term or for any other reason. 23 The offender is sentenced to a term of imprisonment made up of a non-parole period of 20 years and a balance of term of 6½ years. The sentence is to commence on 19 May 2006 and the non-parole period expires on 18 May 2026 the date upon which the offender is eligible for release to parole. ********** 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.