New South Wales Supreme Court CITATION : R v Scott Alan MAY (No 7) [2008] NSWSC 971 HEARING DATE(S) : 7 May 2008-8 May 2008, 12 May 2008-15 May 2008, 19 May 2008-23 May 2008, 26 May 2008-30 May 2008, 2 June 2008-4 June 2008, 29 August 2008. JUDGMENT DATE : 19 September 2008 JURISDICTION : Common Law JUDGMENT OF : Rothman J DECISION : Sentenced to imprisonment for a non-parole period of 27 years commencing 16 January 2007 and concluding 15 January 2034, the balance of term being a further 9 years expiring on 15 January 2043; eligible for release on 15 January 2034. CATCHWORDS : CRIMINAL LAW – sentence – murder – intent to kill – shooting – drug related – not guilty plea – objective and subjective circumstances – above mid range of seriousness – sentence imposed. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CATEGORY : Sentence PARTIES : Regina (Crown) Scott Alan May (Offender) FILE NUMBER(S) : SC 2007/4832 A Cook SC - Trial (Crown) COUNSEL : J Kiely SC - Sentence (Crown) T Watts (Offender) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Ford Criminal Lawyers (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 19 SEPTEMBER 2008 2007/4832 R v Scott Alan MAY (No 7) REMARKS ON SENTENCE 1 HIS HONOUR: At about 10.15pm on 2 May 2003, Ryan Burnes shot and killed Andrew Heavens. Mr Burnes murdered Mr Heavens at the request of, and by agreement with, Scott Alan May. 2 The shooting occurred at Callan Park in Rozelle, about 200 metres west of the Balmain Road entrance to the Park. Mr Burnes pleaded guilty to the murder and was sentenced by Fullerton J. Mr May pleaded not guilty, was tried before a jury and convicted. 3 The crime of murder is regarded as the most serious of crimes because it involves the felonious taking of human life. The maximum sentence for the crime is life imprisonment, which penalty is imposed in the worst category of murder. The legislature has also set a standard non-parole period of 20 years' imprisonment, which period applies to the hypothetical mid-range offence. 4 Even within the crime of murder, a crime perceived as the most serious because of society's view of the sanctity of human life, there is a range of culpability associated with the crime. In order to determine the objective features, which measure the culpability of Mr May and deal with his subjective circumstances, it is necessary to set out the circumstances of the offence. I do so as briefly as I possibly can. Before doing so, I briefly set out the purpose of sentencing in a case such as this. 5 The purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of these factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions. Circumstances of the Offence 6 Mr Heavens (the deceased) and Mr May were drug dealers. On the evidence before the Court, Mr May distributed drugs to a number of people, including Mr Heavens, who, through a number of sellers/runners, sold the drugs to the public. 7 Mr Heavens was earning, for Mr May, about $11,000 per day from drugs. Mr Heavens was earning for himself, even more. For reasons associated with that business relationship, and the desire of Mr May to takeover part or all of Mr Heavens' "business", Mr May requested Mr Burnes to shoot and kill Mr Heavens. 8 There is of course much detail omitted from the above paragraph. DN was a person who sold drugs for the deceased. About one week before the shooting, Mr Rafferty (a person in a similar role as Mr Heavens in relation to drugs distribution) approached DN to have him come and work for him (Mr Rafferty) and indirectly Mr May. 9 At about 6.00pm on 2 May 2003, DN met the deceased. DN returned the telephones and other tools of the drug trade to the deceased and gave him between $3,200 and $3,400 in cash. The deceased had a scooter. They parted company between about 8.30pm and 9.00pm. 10 A meeting had been arranged between Mr May and the deceased. At about 8.00pm on 2 May 2003, the deceased phoned his partner and told her that Scott May was running late, so he (the deceased) would be home later than anticipated. 11 At 8.36pm, the deceased spoke to a heroin buyer and told her that he was meeting his boss in Newtown. 12 The deceased called Mr May twice later that evening: once at 9.04pm, in a call sent through the mobile phone tower in Newtown and received through the tower in Balmain; and a second time at 9.45pm, sent through the phone tower at Petersham and received at a phone tower in the Leichhardt Market Town area. 13 In the meantime, Mr May had rung Mr Burnes and arranged to pick him up "in about 10 minutes". Mr May told Mr Burnes that they were going to pick up another person. Mr Burnes sat in the back of the car and was told to look under the seat. There he found a gun, which he then put down the front of his pants. 14 Before this evening, Mr May had asked Mr Burnes whether he would "go all the way for him", a reference to killing someone. After Mr Burnes had located the gun, Mr May said words to the following effect: "if I say I am going back to get me [sic] wallet out of the car", it would be a signal to shoot the person they were about to meet. 15 Mr May, with Mr Burnes in the back of the car, drove to Leichhardt, where they had arranged to meet the deceased; picked him up; drove around for some time and finally drove to, and parked in, Callan Park. 16 All three men alighted the car. Mr May told everyone to leave their mobile phones in the car, which they did. They walked to a secluded spot and Mr May and the deceased spoke to each other about their drug business, it seems. After a short time, and some apprehended disagreement, Mr May said "I am going back to the car to get my wallet" and walked off. 17 At that point, and on that signal, Mr Burnes pulled the gun from his pants and shot the deceased. The deceased fell to the ground and Mr Burnes, hearing him gasping for air, walked over to him, stood over him and shot the deceased twice more in the chest. 18 Mr Burnes returned to the car and Mr May drove them both from the scene. On Mr Burnes' return to the car, Mr May said to him: "You are a mad cunt, I knew you would do it". Mr May then offered Mr Burnes the mobile phones, some money and a Game Boy Nintendo and Super Mario Game. Mr Burnes took $4,000 and the Nintendo. 19 Most of the foregoing is from the testimony of Mr Burnes. There is significant other evidence relating to peripheral issues, most of which was adduced to support the evidence of Mr Burnes. 20 The supporting evidence of phone records, conversations recorded, ballistics evidence, the location of the Nintendo and Super Mario, the scooter, the phones, and like evidence, independently supported the evidence of Mr Burnes. So too did some of the evidence of other witnesses. I say some, because a number of witnesses gave different versions in these proceedings than they had on other occasions, for example, at a Police Integrity Commission hearing. 21 The Court, as it warned the jury, must be careful before it accepts the evidence of Mr Burnes. Apart from the fact that he is a co-offender and was given, in his sentence, significant benefit for his assistance, he is an admitted drug user, has given prior inconsistent statements and has a history of delusional behaviour and thoughts. Nevertheless, when one takes account of the circumstantial evidence and Mr Burnes' demeanour, I accept the veracity and accuracy of Mr Burnes on relevant issues, being at least all of the matters recited above. Further, I am satisfied of that version of events beyond reasonable doubt. 22 Mr May gave a statement to Police as to his whereabouts, which, on the basis of the phone records, and the findings of the jury (and the Court) was false. No admissions were made. Mr Burnes, whose relationship with Mr May was very close, eventually made full admissions and implicated Mr May. He had originally made inconsistent statements. Mr May was arrested on 20 September 2006 and was in gaol from that date until 5 September 2007, some of which was for another offence. 23 Mr May pleaded not guilty and was discharged at Committal, hence his release. An ex-officio indictment was filed and Mr May was arraigned on 22 November 2007, from which date he has been in prison. 24 The circumstances of every murder are serious. The necessary impact on the deceased, his family and friends is horrific. It is, as earlier stated, the most serious offence in the criminal law. Even within the range of murder offences, this particular offence is well above mid range in seriousness. 25 It involved pre-planning and an intention to kill. It involved acting in the company of another and was part of, or a consequence of, a planned, organised and larger criminal activity. It was an execution motivated by greed. It was also committed while Mr May was on conditional liberty – a good behaviour bond for 12 months, imposed in July 2002. 26 Nevertheless, the murder did not involve gratuitous cruelty, nor violence beyond the murder itself. I consider such violence as was used, and the use of a weapon, as necessarily taken into account in an assessment of the offence and not an aggravating feature. All relevant criteria in s 21A of the Crimes (Sentencing Procedure) Act 1999 are addressed above. Subjective Circumstances 27 Mr May has a criminal history, which, prior to this offence being committed, did not involve serious violence. Mr May's history is not extensive. The offences generally involved drugs or were drug related. The pattern seems to involve property offences to obtain money for drugs, and commenced from an early age. 28 Mr May was born in September 1980 and was 22 at the time of the offence. He has siblings and seems close to his mother. She has had an addiction problem, as has Mr May. Mr May did not have a close relationship with his father with whom he has never lived. 29 Mr May was raised by his grandparents, and lived with his mother as a teenager. He had a violent stepfather who, when Mr May finally fought back, left the home. 30 Mr May has been in a long-term relationship with the same girl, since they were both 16 or 17. They have children together. 31 As earlier stated, Mr May had alcohol and drug abuse issues. His alcohol abuse was generally in the form of binge drinking every four weeks from a young age and every two weeks immediately prior to the murder. 32 His drug issues commenced with cannabis in his mid-teens and he was also involved with heroin from 16 years of age. He also used ecstasy and other drugs. His drug use caused a temporary break-up of his relationship. 33 Ms Anna Robilliard, Forensic Psychologist, opines that Mr May has markedly paranoid personality attributes and a significant depressive presentation. Nevertheless, Mr May, she says, "appears to be remarkably psychologically and emotionally intact and stable." I do not find special circumstances warranting a longer parole period than the statutory formula. Conclusion 34 As stated, the offence is well above mid-range in seriousness. However, I do not consider it in the worst category of cases requiring an indeterminate life sentence. 35 There is no evidence of any real contrition. While Mr Burnes is his co-offender, there are significant differences between the two. Both the Crown and defence counsel, on questioning, accepted that parity was not an issue. However, there needs to be some proportionality. 36 I do not use the criminal history for any substantial purpose. While Mr May is not entitled to the benefit of leniency usually reflected in a sentence for a first offender, given the nature of this offence and the offences previously committed, I do not regard even that aspect as particularly significant. 37 As earlier stated, this is a most serious offence for which a term of imprisonment is warranted, with a non-parole period above the standard. Because of past custody, I will commence the sentence from 16 January 2007. I do not find special circumstances. Conviction and Sentence 38 Scott Alan May, you are convicted of murder in that on 2 May 2003 at Rozelle in the State of New South Wales you did murder Andrew John Heavens. 39 I sentence you to imprisonment for a non-parole period of 27 years commencing 16 January 2007 and concluding 15 January 2034, the balance of term being a further 9 years expiring on 15 January 2043. 40 You are first eligible for release on 15 January 2034. ********** 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.