R v Jeffrey GILHAM [2009] NSWSC 138

New South Wales Supreme Court

CITATION : R v Jeffrey GILHAM [2009] NSWSC 138

HEARING DATE(S) : 13/02/2009

JUDGMENT DATE : 11 March 2009

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to life imprisonment on each of the charges of murder.

CATCHWORDS : Criminal Law - sentence - murder of parents 15 years ago.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 61

CATEGORY : Principal judgment

Knight v R [2006] NSWCCA 292 CASES CITED : Gonzales vR [2007] NSWCCA 321 R v Twala (NSWCCA, unreported 3 November 1994)

PARTIES : Regina v Jeffrey Gilham

FILE NUMBER(S) : SC 2006/2766

COUNSEL : Crown: M Cunneen SC/K Shead Offender: P Boulten SC/P Bodisco

SOLICITORS : Crown: S Kavanagh Offender: Murphy's Lawyers Inc

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

WEDNESDAY 11 MARCH 2009

2006/2766 REGINA v JEFFREY GILHAM

REMARKS ON SENTENCE 1 HIS HONOUR: The offender is to be sentenced for the murder of his parents in their home on 28 August 1993 after a jury convicted him of these offences on 28 November 2008. The facts surrounding these killings, the death of the offender's brother on the same evening and the history of the prosecution of these offences are truly extraordinary. In April 1995 Mr Justice Abadee described the events surrounding the killings as "a remarkable human drama". That drama has continued to the present day. 2 At the outset it is important to bear in mind that the offender is being sentenced for the murder of his parents. It is obvious now that both the investigating police and the prosecutor were duped at the time that the offender was dealt with for the manslaughter of his brother. But that event has passed into history and has only limited relevance, as I shall explain later. Of course it is impossible to consider the penalty for the killing of his parents without considerable reference to the death of his brother, but I am not punishing the offender for that killing. Nor am I in any way vindicating his brother who for 15 years was falsely accused of murdering his parents. I do not accept the prosecutor's submission that the objective seriousness of the killing of his parents was aggravated by the fact that the offender falsely blamed the killings on his brother. 3 At the time of the killings the offender lived with his parents, who were in their 50's, and his elder brother in the family home in Woronora. The brother, Christopher, was aged 25 years and the offender 23. The family was highly respected in the community. Both sons, and in particular the offender, were seen as role models to those who knew the family as friends or neighbours because of their scholastic achievements, their general exemplary behaviour and character, and their loving relationship with their parents. 4 The offender in particular was admired. He was a good looking, strongly built young man who had marked success as a yachtsman. He was gregarious and popular not only within his own large circle of friends but with acquaintances of his parents and neighbours. He was apparently the favoured son, at least of his father. Christopher, however, was more withdrawn and sensitive, yet was not without his own friends arising mainly from his interest in fencing. He did not have the striking appearance of his brother and was troubled with difficulties in his eyesight. He spent much of his time in the family home using the computer. 5 In the early hours of the morning of 28 August, the offender's parents and brother were savagely stabbed to death and the house set on fire. At about 4.30am the offender came to a neighbour's home raising the alarm. He was dressed only in a pair of shorts and appeared to be in a highly distressed and emotional state. He said that his brother had killed his parents and set them on fire. He admitted to having stabbed his brother to death. The neighbour called emergency services. The offender in a halting and distracted manner told the operator what had happened. So apparently deranged was the offender's state of mind and so frantic was he to assist his parents at the time, that at one stage he took hold of a small kitchen fire extinguisher and had to be restrained from running outside to fight the fire. He then lay on the floor in a foetal position hugging a jumper that had been brought to him. 6 Eventually he went out to where the fire brigade were in attendance but had to be taken away from the house in order to stop him trying to enter the building. He even tried to prevent a fireman going toward the house because he claimed there was a murderer inside. He appeared to be in a highly distressed and confused state and was comforted by neighbours until the police arrived. 7 When firemen were able to enter the premises they found the charred remains of the offender's father facedown in the bedroom. An axe was near the bed. The body of the mother, also heavily burnt, was in the lounge room lying on her back. Downstairs near his bedroom was the body of Christopher unaffected by fire. He was lying on his back clothed in a short shave coat with a filleting knife propped against his body near his left hand. He had multiple stab wounds to his torso in the chest area. 8 The offender was taken to the police station and interviewed by investigators. There dressed only in shorts with a blanket around his shoulders the offender gave the following account almost in a whisper. He slept in a boathouse separate from the main residence. He was asleep when he heard screams from his mother over the intercom next to his bed that was connected to the lounge room of the main house. He got up put on a pair of shorts and ran up the path to the house entering through the open glass sliding door into the dining area. There he saw his brother standing over the body of his mother and about to set her on fire. His brother said that he had killed his parents and then he lit his mother's body. 9 The offender walked to where his mother lay and stood there for some seconds watching the fire spread. He did not try to assist either of his parents nor did he attempt to put out the fire. Rather he walked over to where his brother had dropped the knife and picked it up. His brother, ignoring escape from the house through the open glass door some feet away from him, ran down the narrow spiral staircase that led to the lower storey of the house where he was effectively trapped. The offender caught him and stabbed him to death. He then came up the spiral stairs, notwithstanding that the fire was now raging above him and despite the fact that he could have left by a closed but unlocked door in the downstairs room. He left the house, closing the sliding door behind him, and went to the neighbour's house. 10 The offender was charged with the murder of his brother, and later voluntarily went with police to the premises for the purpose of showing them what had occurred. This was video-recorded. The offender appears to be in complete control of his faculties and shows no signs of distress or agitation as he explained his version of what had taken place. During the course of the walk around the site, police pointed out to the offender that a piece had been cut from the middle of a garden hose that was connected at one end to the outside faucet with the other end under a boat on a trailer in the carport. They also indicated the cut portion of the hose near an open jerry can in which was a small amount of petrol. The offender explained that he and his father had used the hose the night before to get petrol for a boat but it was the wrong type of petrol. 11 The original police investigating the incident never charged the offender with the murder of his parents. He spent one month in custody in respect of the murder of his brother before being released to bail. It was a condition of his bail that he live with a neighbour who had supported him since his arrest and still supports him some 15 years later. 12 On 5 April 1995 the offender appeared before Mr Justice Abadee for the murder of his brother. The Crown accepted a plea of guilty to manslaughter in full discharge of the indictment. There was a statement of facts tendered that described the offender's account of the killing as "feasible" and conceded that it could not be refuted by the investigation that had taken place. A large number of persons either gave evidence on the offender's behalf or provided testimonials in his support. A number of those witnesses, including some of his maternal aunts, gave character evidence before the jury in his recent trials. At the time of his sentencing it was said that the whole family was behind him. The offender was placed on a good behaviour bond for a period of 5 years. 13 A coronial hearing later that year concluded that Christopher had killed his parents. 14 There the matter remained until members of the family on the father's side had cause to withdraw their support for the offender. The reasons for that falling out are not before me in evidence and are in any event irrelevant. However, the offender's paternal uncles came to the belief that he, and not Christopher, had killed his parents. As a result a further investigation took place and the Coroner once more reviewed the matter. In April 2000 the Coroner referred the papers to the Director of Public Prosecutions so that he could consider proceeding against the offender. The Director decided to take no further action. 15 In May 2001 one of the offender's uncles commenced a private prosecution against him for two charges of murder. However, the Director took the over the prosecutions and terminated them. Despite agitation by the uncle, the Attorney General indicated he would not intervene in the matter. 16 In 2004 there was an inquiry into the earlier investigations and in October that year a re-investigation of the death of the parents commenced. As a result a brief of evidence was sent to the Director and on 21 February 2006 an ex-officio indictment was filed in this Court charging the offender with the murder of his parents. 17 The offender sought a stay of the indictment on the grounds that the trial would be oppressive, unfair or in breach of the rule against double jeopardy. On 21 March 2007 that application was refused. An appeal against that decision was dismissed on 26 November 2007 and special leave to appeal was refused by the High Court on 8 February 2008. 18 On 11 February 2008 a jury was empanelled to hear the trial but they were discharged on 10 April when unable to agree upon a verdict. The second trial of the offender commenced on 13 October 2008. The jury found the offender guilty of both counts of murder after deliberating for 8 days. The offender was thereafter remanded in custody where he has remained. He is on protection as a result of an assault upon him by another prisoner. 19 Mr Boulten SC, who has tirelessly appeared for the offender throughout the proceedings in this Court, conceded at the outset of the sentencing hearing that the real question to be determined was whether the offender should be sentenced to life imprisonment. That is the sentence that the Crown submits is the appropriate one in accordance with what is now s 61 of the Crimes (Sentencing Procedure) Act 1999. That section is relevantly as follows: