R v Clayton John WILSON [2009] NSWSC 365

New South Wales Supreme Court

CITATION : R v Clayton John WILSON [2009] NSWSC 365

HEARING DATE(S) : 3, 7, 8, 9, 13, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 30 October 2008, 3, 4, 5, 6, 7, November, 2008

JUDGMENT DATE : 6 March 2009

JUDGMENT OF : Latham J

DECISION : SENTENCED to a non parole period of 18 years to date from 11 May 2007 expiring 10 May 2025, with a blance of term of 7 years expiring 10 May 2032.

CATCHWORDS : CRIMINAL LAW - murder - sentence - intention to inflict grievous bodily harm - slightly below mid-range of objective gravity - paucity of subjective material

CATEGORY : Sentence

CASES CITED : R v Tadrosse [2005] NSWCCA 145 R v Doolan [2006] NSWCCA 29

PARTIES : Regina (Crown) Clayton John WIlson (Offender)

FILE NUMBER(S) : SC 2008/0331

COUNSEL : L Carr (Crown) T Golding (Offender)

SOLICITORS : S Kavanagh Solicitor of Public Prosecutions (Crown) Barraclough Jones (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

LATHAM J

6 MARCH 2009

2008/0331 R v CLAYTON JOHN WILSON

SENTENCE 1 HER HONOUR : The prisoner, Clayton John Wilson, was found guilty by a jury on 7 November 2008 of the murder of Stephen Knowles on 19 December 2006. The prisoner and the victim had shared a two-bedroom house in Forster for about 20 months. The Crown case at trial was that the prisoner had effectively bludgeoned the victim about the head and upper torso with a walking stick, while the victim was lying on his back on his bed sometime after 7pm on 19 December 2006. Despite inflicting serious injuries, evidenced in part by a large amount of blood spatter over the walls of the bedroom, the prisoner left the victim in an unconscious state. The victim's body was discovered in the bedroom in the evening of the following day. 2 The offence carries a maximum penalty of life imprisonment and attracts a standard non-parole period of 20 years, if the Court were to find that the offence falls within the mid range of objective gravity for offences of this kind, and there are no factors of a mitigating nature that warrant a departure from the standard non-parole period. 3 The Crown case was largely circumstantial, although there was powerful direct evidence of the prisoner's voice raised in anger against the victim on the night of the offence, accompanied by the sound of thudding or thumping. The prisoner has maintained since his arrest on 11 January 2007 that someone else assaulted the victim. The jury rejected that possibility beyond a reasonable doubt. Since his conviction, the prisoner has remained mute, as he is entitled to do. Nothing has been placed before the Court that throws any light upon the prisoner's state of mind at the time of the offence, or since. The Court's insight into the prisoner's subjective circumstances is limited by the absence of reports that usually address such matters, save for the prisoner's criminal history and a letter to the Court from the prisoner's mother and brother. The Court has therefore been placed in the position of making necessary findings of fact for the purpose of sentence almost entirely from the evidence produced at trial. The most contentious of these is whether the prisoner intended to kill the victim, or whether he intended to inflict grievous bodily harm. A brief explanation of the background to the commission of the offence is relevant to that issue. 4 Both the prisoner and the victim were unemployed and in receipt of social security benefits. They both spent a considerable amount of their time in licensed premises consuming alcohol or obtaining cannabis from "the mission" across the road from their house. They were each intoxicated to some degree on an almost daily basis. Several of the prisoner's and the victim's acquaintances would visit the premises from time to time to obtain small amounts of cannabis from either the prisoner or the victim. The relationship between the prisoner and the victim appeared to be friendly, but for the occasional arguments over the purchase of alcohol and/or cannabis. 5 On 19 December 2006, the victim spent most of the day at the Forster Bowling Club drinking and socialising with friends. At some point during the day, the victim confronted the prisoner at the club about the payment of rent money. They argued and the prisoner left. The victim told others that he was anxious to obtain the prisoner's share of the rent and that if he did not receive it by the end of the day, he would move the prisoner's furniture out of the house. 6 The victim left the club at approximately 4 pm, very well affected by alcohol. His blood/alcohol reading was 0.198 more than 24 hours after his death, indicating a very heavy drinking session on that day. It is clear from the jury's verdict that they accepted that the victim returned home, had a further argument with the prisoner at about 7 pm, probably about money, and that the prisoner assaulted the victim at that time. The prisoner himself had been seen in licensed premises earlier that day and was also affected by alcohol, although it is not possible to determine the extent of his intoxication. I accept that the assault was spontaneous and unpremeditated. I am unable to determine who initiated the argument. 7 The evidence of Dr Lee, a forensic pathologist who conducted the autopsy on the victim, is indicative of the ferocity of the prisoner's assault. Dr Lee described injuries consistent with approximately 10 blows to the face and jaw of the victim, 2 blows to the throat, 4 to the right side of the head, 7 to the upper chest and a further 5 blows on the upper torso. The profuse and external bleeding from the face, together with the moderately extensive sub dural haemorrhaging and light, diffuse subarachnoid bleeding, were consistent with a relatively light object used with a moderate to heavy degree of force. There was quite extensive trauma to the mouth, including teeth knocked out of the lower central jaw, and multiple fractures to the face and jaw. The left upper jaw was no longer connected to the left side of the mandible. There was a fracture to the base of the right side of the voice box, indicating heavy blunt force trauma to the front of the throat. The injuries to the voice box were potentially fatal of themselves. According to Dr Lee, the victim would have been incapable of getting up and moving after the assault. A degree of blood inhalation signified a loss of consciousness followed by death approximately 20 minutes to an hour later. 8 This sustained and focused assault upon the victim is indicative of an intention to kill. However, there are certain factors which, in my view, detract from that finding. Accepting that the prisoner was affected by alcohol and that he was irritated by the victim's persistent request for money over the course of the day, it is logical to conclude that the prisoner's anger erupted suddenly as a result of a further confrontation between them, and the prisoner resorted to the use of the walking stick as a weapon, in circumstances where the prisoner had been using the walking stick for some weeks to assist him with a minor injury. By the time he had regained his composure, the prisoner had inflicted potentially fatal injuries upon the victim, yet he pulled a doona over the body of the victim and left the room, closing the door behind him. The prisoner maintained to a number of people that the victim had left the premises and had not returned. Moreover, the prisoner was observed by others during the course of the evening of that day to be behaving relatively normally. 9 Bearing in mind that the finding of an intention to kill must be made beyond reasonable doubt, the circumstances surrounding the assault upon the victim that I have described above militate against that satisfaction. Accordingly I proceed to sentence on the basis that the prisoner intended to inflict grievous bodily harm upon the victim. That finding of course does not necessarily remove the offence from the midrange of objective gravity, although it must be acknowledged that an intention to kill would more often place an offence in that category. 10 The Crown's contention is that the offence falls within the midrange for the following reasons, namely, that the prisoner used a weapon, that the degree of violence was high, that the victim was vulnerable at the time of the assault due to his intoxication, that the prisoner failed to seek assistance for the victim following the assault and that the prisoner took steps to conceal the assault from others. The Crown also relied upon an asserted intention to kill on the part of the prisoner. Notwithstanding the failure of that submission, the remaining factors are capable of placing the offence within the midrange of objective gravity. 11 The Crown also relied upon the fact that there is no evidence of the assault having been provoked by the victim, and that there is no evidence of the prisoner's judgement being impaired. Had such evidence been available, no doubt the partial defences of provocation and substantial impairment would have figured in the course of the trial. The objective gravity of the offence of which the prisoner was convicted should not be affected by the unavailability of a partial defence. The offence must be assessed for what it is, not for what it is not. I do not therefore regard the absence of a basis for a partial defence to be relevant to the assessment of the objective gravity of the offence of murder. 12 Dealing with the remaining factors in turn, whilst the use of a weapon is an aggravating feature, it has already been noted that the prisoner was, at the relevant time, in the habit of using a walking stick. There is a distinction, albeit subtle, between resorting to the use of a weapon, such as a knife or heavy instrument, and using a lawful implement in the course of an assault. However, the fact that the prisoner chose to strike the victim repeatedly with such an implement is a relevant objective factor. There is no doubt that the prisoner inflicted considerable violence upon the victim. 13 As for the victim's intoxication, it too is a relevant factor in the assessment of objective gravity, although it does not qualify as an aggravating factor for the reasons outlined in R v Tadrosse [2005] NSWCCA 145 and R v Doolan [2006] NSWCCA 29. It is not possible to determine whether the prisoner knew of the extent of the victim's intoxication, but I accept that the prisoner was aware that the victim had been drinking alcohol during the day, consistent with his usual practice. It is also pertinent to observe that the victim was a relatively slight man, 60 kg in weight and 175 cm in height. By way of contrast, the prisoner is considerably taller and of a heavier build. Realistically, once the prisoner had commenced his assault upon the victim, the victim was not in a position to defend himself. 14 Accepting that the prisoner himself had consumed alcohol that day, it is nonetheless true to say that he acted swiftly and decisively, as soon as he realised the extent of the harm that he had inflicted. He made a conscious decision to conceal the assault and refrain from seeking medical assistance for the victim, whose very serious injuries must have been apparent to the prisoner. I also accept that it was the prisoner who placed a sheet over the window of the victim's bedroom, so that visitors to the premises who passed in front of the window were unable to see the condition of the room. Whilst there was some evidence of the sheet being in that position in the days prior to the assault, the presence of the prisoner's blood on the top right-hand corner of the sheet could only be consistent with an attempt by the prisoner to conceal his offence. 15 The combination of these circumstances leads to the conclusion that the offence falls just below the midrange of objective gravity. In the absence of evidence of the prisoner's remorse, and any other mitigating circumstance, other than those already canvassed in the course of discussing the objective gravity of the offence, there is little scope for a significant departure from the standard non-parole period. 16 The prisoner is presently 34 years of age. Exhibit 1 reveals that the prisoner is one of four children, the youngest child (together with his twin sister) born into a loving and caring family. The prisoner's father died when the prisoner was 28 years of age. The prisoner is described by his mother as an average student, who was popular at school, and who has had many jobs since leaving after year 10. The prisoner was in a relationship, now dissolved, which produced two daughters. The prisoner is said to be a loving and devoted father to the girls and a stepson, as well as a "very soft and kindhearted person" who still keeps in close contact with his family, including two nephews and a niece. Some limited insight into the prisoner's circumstances at the time of the offence is provided by his brother, who states that the prisoner was debilitated by back pain, unemployed and without access to his children. 17 The prisoner's criminal history commences in 1996 with a conviction for common assault. In 2002 the prisoner was convicted of common assault and assault occasioning actual bodily harm. Further convictions for common assault and contravene apprehended domestic violence order were recorded in 2004. In respect of all of these convictions the prisoner received the benefit of bonds and a community service order. In 2008 the prisoner was convicted of a break and enter offence, for which he served four months imprisonment commencing on 20 February 2008, concluding on 19 June 2008. The commission of this property offence pre-dates the offence of murder. 18 The prisoner's prospects of rehabilitation are speculative. There is no evidentiary basis for a finding one way or the other, except that the prisoner's previous manifestations of violence have been of a relatively minor nature and probably committed in a domestic context. It is troubling that the prisoner has not taken the opportunity to confront his offending so that the Court might be in a better position to determine whether he has developed any insight into his behaviour and whether he is capable of addressing the underlying causes. Perhaps that insight will develop over time. Without any material justifying the need for an extensive period under supervision in the community, beyond what is provided for by the statutory proportion in such cases, I cannot find special circumstances. 19 The prisoner has been in custody on the charge of murder since 11 January 2007. I therefore propose dating the sentence from 11 May 2007, to allow for the sentence on the break and enter offence. 20 Clayton John Wilson, you are convicted of murder. You are sentenced to a non parole period of 18 years, to date from 11 May 2007, expiring 10 May 2025, with a balance of term of 7 years, expiring 10 May 2032. You are eligible for release to parole on 11 May 2025.