New South Wales Supreme Court CITATION : R v Barry Ronald Grant [2010] NSWSC 1048 HEARING DATE(S) : 07/09/10, 09/09/10 JUDGMENT DATE : 15 September 2010 JUDGMENT OF : Barr AJ at 1 Barry Ronald Grant, for cultivating the large commercial quantity of cannabis plants I sentence you to imprisonment. I set a non-parole period of four years, which will be regarded as having commenced on 13 February 2009 and which will expire on 12 February 2013. The balance of the term of the sentence is one year and four months expiring on 12 June 2014. For the offence of supplying 8.14 kilograms of cannabis I sentence you to imprisonment for a fixed term of two years. The term of the sentence will be regarded as having commenced on 13 February 2009 and will expire on 12 February 2011. I have imposed a fixed term because the sentence is wholly subsumed by the non-parole period of the sentence already imposed. DECISION : For unlawfully disposing of the body of Jethro Matheson I sentence you to imprisonment for a fixed term of 1 year, commencing on 13 February 2011 and expiring on 12 February 2012. I have imposed a fixed term because the sentence will be wholly subsumed by the non-parole period of the sentence I am about to impose. For the manslaughter of Jethro Matheson I sentence you to imprisonment. I set a non-parole period of eight years and six months, commencing on 13 February 2011 and expiring on 12 August 2019. The balance of the term will be three years and six months, expiring on 12 February 2023. The first day upon which you will become eligible for release to parole will be 12 August 2019. CATEGORY : Sentence PARTIES : Regina Barry Ronald Grant FILE NUMBER(S) : SC 2009/144043 COUNSEL : C McPherson - Crown SOLICITORS : S Kavanagh - Crown J Weller - Offender - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST BARR AJ WEDNESDAY 15 SEPTEMBER 2010 2009/144043 REGINA v Barry Ronald GRANT REMARKS ON SENTENCE 1 BARR AJ: The offender, Barry Ronald Grant, is to be sentenced for the following offences - 1. That on or about 15 January 2009 at Condong he unlawfully killed Jethro Matheson; 2. That on or about 15 January 2009 at Condong and elsewhere in New South Wales he wilfully disposed of the dead body of Jethro Matheson, he having died a violent death, before the Coroner had had an opportunity of holding an inquest upon the dead body; 3. That between 15 and 17 January 2009 at Condong he cultivated not less than the large commercial quantity of prohibited plants, namely 1,549 cannabis plants; and 4. That at the same time and place he supplied a prohibited drug, namely 8.14 kilograms of cannabis. 2 The offender was arrested on 13 February 2009 and was refused bail. At the earliest opportunity he pleaded guilty in the Local Court to the two drug offences. He was charged with the murder of Jethro Matheson and was in due course committed to this Court for trial on that charge. Before he was committed, he offered to plead guilty to a charge of manslaughter, but the Crown was not at that stage prepared to accept the offer. On arraignment in this Court the offender confirmed his pleas of guilty to the two drug charges. He pleaded not guilty to the murder charge and that matter was fixed for trial. 3 A short time before the commencement of the trial the Crown presented an amended indictment charging manslaughter as an alternative to murder and adding the charge of wilfully disposing of the body of the deceased. The offender pleaded guilty to the charge of manslaughter and to the additional charge and the Crown accepted his pleas in discharge of the indictment. 4 The maximum penalty for manslaughter is imprisonment for 25 years. The offence of wilfully disposing of a body in the circumstances prescribed arises at common law and the penalty is at large. The offence of cultivating a large commercial quantity of cannabis plants attracts a maximum custodial penalty of imprisonment for 20 years and the standard non-parole period of 10 years. The offence of supplying cannabis attracts a maximum custodial penalty of imprisonment for 10 years. The Facts 5 There was no formal, signed agreed statement of facts. The Crown tendered without objection its Crown Case Statement, with which Mr Weller, for the offender expressly agreed. The Crown also tendered the transcript of an interview between the offender and a police officer, annexed to which was a signed statement of the offender to which I shall refer, the transcript of an interview between Ms D McClymont and a police officer and transcript of evidence taken in the Local Court during the committal hearing. It was apparent that while the Crown asserted and agreed upon the facts contained in its Crown Case Statement and such other facts as were necessary to demonstrate that the offender acted in excessive self defence, it did not accept everything the offender said about the matter, whether in his statement or in evidence. By its cross-examination of the offender, the Crown showed that it did not accept his version of the deceased's attack on him, the circumstances in which he shot the deceased, the injuries he claimed to have sustained in the attack and his assertion of an attack with a crowbar. It cross-examined him about the quality of the cannabis that was found on his property. It cross-examined him about the circumstances in which he purchased the gun which he used to shoot the deceased. Save for the facts set forth in the Crown Case Statement, any fact necessary to establish the elements of murder as reduced by excessive defence to manslaughter and any fact otherwise agreed between the parties, the facts are therefore for me to decide. 6 As a child, the offender lived with his parents on a 7-acre lot at Condong. After his father's death he continued living there with his mother. After he left school he worked there as a fruit and vegetable farmer. He married and he and his wife obtained loans for the lease of further land and for the purchase of machinery and plant. During all that time he farmed the land at Condong. In 2002 he and his wife separated and she and their children moved away. The offender continued to farm. In 2007 he set up a hydroponic system and began growing strawberries. Because of the expenses he had incurred including the expense of housing his wife and the children of the marriage, the offender sought financial help. He entered into a mortgage to secure a loan which would finance the further development of the farm and house his former wife and their children. 7 There were two houses and two sheds on the lot at Condong, which was bounded on the south east by a steep, thickly wooded ridge. The offender had trouble meeting mortgage obligations from his legitimate farming activities, so he began to grow cannabis in the smaller of the two sheds on the property. He set up equipment to raise plants indoors. He bypassed the electricity meter to ensure the necessary high level of power without the risk of detection. He had mixed success and planted more cannabis. Ultimately he was living in one of the two houses and growing cannabis in the other house and in the two sheds. He had some success and sold cannabis to a dealer for about $20,000. 8 The offender formed a relationship for a short time with a woman called Donna McClymont. Ms McClymont knew that the offender was growing cannabis. She moved away and ultimately formed a relationship with the deceased, Jethro Matheson. He was a drug dealer and one of the ways he obtained supplies was by stealing them. He was a strong and violent man who was used to getting his way by force. He had criminal associates who assisted him in his endeavours. Ms McClymont told him that the offender was growing cannabis. She told him where the offender's property was. 9 Early in August 2008, as a batch of cannabis plants was reaching maturity in the large shed, the deceased entered the shed in the absence of the offender and stripped the plants. After that the offender made sure that the shed was padlocked. Later in the same month, while the offender was at the premises with a friend, he saw two men. The deceased was one, wearing camouflage and a facemask. The other was called Dipaolo. The deceased ran at the offender, perhaps with a knife and said that he was going to kill him. He did not use any knife, however. He punched him. Dipaolo may have joined in the attack. The deceased asked the offender where the cannabis was. The offender told him that he had got it all last time. The offender's friend intervened and helped him to his car. The deceased and Dipaolo went away. The offender was injured in the attack. 10 Although it was obvious to him that the attraction for the attackers was the crop he was raising, the offender decided to persevere with the crop because he needed the money to meet the obligations on his mortgage. He installed a security alarm and surveillance cameras. 11 The offender also purchased a pistol and ammunition. He practised firing the pistol. While he was working on the premises he kept the pistol near him. As the crop approached maturity he kept the pistol loaded. 12 During January 2009 the deceased went to the property again and, in the absence of the offender, broke into the shed and stripped 200 cannabis plants. 13 On 15 January 2009 the deceased went to the property again, taking with him a henchman of his, Jason Russo. Russo parked their vehicle on top of the ridge overlooking the property. The two men descended the ridge under cover of the trees and approached the buildings from the rear. They split up and approached the house from different directions. The deceased entered the front door and made to attack the offender. He took the pistol and fired two bullets into the deceased's chest. The deceased ran off and so did Russo. Russo reached his car and drove away. The deceased collapsed and died not far from where he had been shot. The offender came upon the body and realised that the deceased was dead. He placed the body in the back of his vehicle and drove it to a place in the border ranges national park more than 100 kilometres from the property. He rolled it down a steep embankment and left it where it came to rest. 14 Ms McClymont reported that the deceased had disappeared and police made a preliminary search of the offender's property. They found 1,549 growing cannabis plants in various stages of development, and 8.14 kilograms of dried cannabis. 15 The offender remained at large. He threw away the pistol and set fire to his vehicle. On 30 January 2009 police found the body of the deceased resting against a tree about 20 metres below the roadway at the place where the offender had left it. The body was in an advanced state of decomposition and the cause of death could not be established. However, a projectile was located near the body and there was an injury to the body consistent with a gunshot wound. 16 On 13 February 2009 the offender went with his solicitor, Mr Weller, to Byron Bay police station and gave himself up. He was charged with the drug offences and held in custody, bail refused. On 24 February 2009 he was charged with the murder of the deceased. On that day he participated in a recorded interview with police. All he was prepared to say was that he was viciously attacked, feared for his life, knew that he was going to die and that everything he did was done to protect himself. He declined to say what he had done or to answer any questions. 17 In April 2009 he signed a typed statement giving an account of events and made it available to the police. That statement came into evidence and the offender swore that the contents were true and correct. Prominent in the statement are descriptions of the attacks made upon him by the deceased, including attacks with what was called a crowbar. The offender said that he received substantial injuries by that means. He told the Court that he had handed the crowbar for safe keeping to a friend, whom he declined to name. There was no independent evidence of any instrument used by the deceased or of any injury received by the offender. It is possible that he is telling the truth about those matters, though I am left unsure because I am not confident that he has always told the truth. However, I am satisfied that the deceased was a violent and frightening man who attacked the offender in August 2008 and on the occasion of the shooting. I do not doubt that the offender was afraid of him. I do not doubt that one of his reasons for maintaining a loaded pistol was to protect himself. The Crown's acceptance of the plea of guilty of manslaughter requires a finding that the offender acted as he did because he believed it necessary to do so. 18 Notwithstanding his pleas of guilty, I thought that the offender was not being completely frank with the Court. He described his purchase of the pistol and ammunition as having been made "on the spur of the moment". He denied that he was looking for a gun. He told the Court that when he was considering measures he might take to protect himself somebody at the hotel happened to mention that somebody else at the hotel had a firearm for sale. I doubt whether things happened in that way. It seems to me that the steps that the offender took were carefully thought out. I do not think that he came by the pistol by any lucky chance. The emphasis in his evidence was on his desire to protect himself and he was, of course, concerned about his own safety, but there was more at stake than that. He installed the cameras and the alarm and acquired the pistol and ammunition with the intention of protecting his commercial interest in the cannabis crop. 19 In his description of the attack on the occasion of the shooting the offender said that the deceased hit him twice with the crowbar and that the second blow pushed him towards the bench where he had the pistol. The intention was, I think, to imply that taking up the pistol was in some way fortuitous or unplanned. Relying on that statement, Mr Weller submitted that the offender "managed to reach" the pistol. While I do not doubt that the events of that occasion happened quickly, I am not satisfied that it was by accident or good fortune that the offender was able to seize the pistol. I think that he was prepared to meet the deceased and acted as he had intended ever since he bought the pistol and ammunition. Matters personal to the offender 20 The offender was born in 1957 and is almost 53 years of age. It was submitted on his behalf that he is a man of prior good character. He has worked hard for most of his life. He had difficulties with drinking and driving in years past, but I would have treated him as a person of prior good character until his determined venture into growing and marketing cannabis. It seems to me that for some considerable time before the events of January 2009 the offender was a serious producer of cannabis. After his arrest, the New South Wales Crime Commission exacted from him payment of approximately $20,000 which, the Court was told, was an assessment of the value of criminally derived assets. They came, of course, from the sale of cannabis. I do not think in all the circumstances that it is appropriate to treat the offender as a person of prior good character. 21 It was submitted on his behalf that his voluntary surrender to the police showed remorse and entitled him to consideration in sentence. However, by the time the offender went to the police, he had destroyed his car, disposed of the pistol and disposed of the body. His intention in doing so was, I think, by destroying evidence to make it harder for police to ascertain what had happened. 22 Neither did his surrender give the police any information they did not already have or could not ascertain independently of him. He knew that the police must have found the cannabis crop and the cut material prepared for sale. He knew that the deceased was accompanied by another man who must have been able to identify the property where the shooting took place and he knew that the police could ascertain that he was the only person occupying the property. 23 This was not the kind of surrender that furnished the police with a case they would not otherwise have had. 24 I think that the offender is sorry for what has happened. In a sense, if one puts aside his voluntary venture into drug production and supply, the circumstances he was faced with were not of his own making. However, his reluctance fully to acknowledge his own systematic criminality and his desire to play down the seriousness of what he has done makes me doubt that he is genuinely remorseful. 25 I do not regard the pleas of guilty as evidence of remorse. They simply acknowledge the inevitable. 26 It was submitted that the offender is unlikely to re-offend. He has sold the farm on which these events took place. The mortgage has been discharged and debts have been paid off. The matter is not free from difficulty, but I think that I should make some modest allowance for the prospect that the offender will not offend again and will rehabilitate himself. 27 The offender's pleas of guilty to the two drug charges were made at the earliest opportunity. His offer to plead guilty to manslaughter in response to the charge of murder was made at an early stage in the Local Court. The plea of guilty to the charge of wilfully disposing of the body was made at the earliest possible moment. In the circumstances the offender is entitled to the maximum allowance ordinarily made to recognise the utilitarian value of the pleas. Assessment of the offences 28 The plea of guilty of manslaughter was offered and accepted on the ground of excessive self-defence. On the facts of the present case the Court must therefore sentence the offender for using force involving the infliction of death when he believed that his conduct was necessary to defend himself but when his conduct was not a reasonable response in the circumstances as he perceived them. It was accepted by Mr Weller that his intention when he inflicted death was to kill. 29 The offence of manslaughter was a serious one of its kind. The offender's intention was to kill. He could, by destroying or abandoning the crop or by reporting the matter to the authorities, have forestalled the confrontation he believed would arise. Instead, he took measures highly likely to lead to injury or death. It was carried out as part of a plan to protect a commercial criminal interest. It involved the use of a firearm. The community is rightly concerned when criminals use firearms to protect their unlawful interests. 30 When a person has died a violent death the community has an interest in having the circumstances of the death investigated. Many interests in the community may be affected. The relatives and friends of persons who have died are entitled, if they can be ascertained, to understand the circumstances in which death took place. Questions of the maintenance of the criminal law and its part in fostering the safety of the community may arise. 31 When a person deliberately deals with a body in a way calculated to prevent the proper investigation of the circumstances of the death, the community suffers loss. Such an act strikes at the administration of justice. That is what happened here. By his action the offender made it impossible, because of the deterioration of the body before it was found, for any firm opinion to be reached about the precise cause of death. 32 The circumstances of that offence are inextricably tied up with those of the manslaughter, particularly with the acts of the offender in destroying his motor vehicle and disposing of the pistol in order to avoid detection. For those reasons I shall make the sentence on the second count concurrent with the non-parole period on the first. 33 The circumstances in which an offence of cultivating the large commercial quantity of cannabis plants is committed are likely to vary widely. The offence is wide enough to cover the largest plantations, incorporating many thousands of plants. One thousand plants is sufficient to bring a plantation into this category. The offender grew a little over 1,500 plants, a quantity one and one-half times greater than the minimum quantity necessary. The offender was the principal and stood to receive all the profits. So viewed, the offence was objectively low in the range of such offences, though not at the bottom of the range. Moreover, many of the plants were small and well short of maturity. Taking into account those matters and the plea of guilty at the earliest opportunity, it seems to me that this offence falls below the middle of the range of objective seriousness of offences of its kind. For that reason, although I shall have regard to the standard non-parole period of 10 years, I propose to impose a lower non-parole period. 34 No standard non-parole period applies to the offence of supplying the prohibited drug cannabis. Supply in the present case was constituted by possession for the purpose of supply. The possession of the cut and prepared cannabis was concurrent with and had for the same purpose as possession of the plants under cultivation. I propose therefore to order the sentences on the third and fourth counts to run concurrently. 35 Because the manslaughter was committed for the sake of the cannabis crop and because the relevant offences were concurrent, there needs to be some concurrency between the sentences. However, the manslaughter on the one hand and the drug offences on the other were of substantially different kinds and resulted from different enterprises. The injury and loss that resulted to the community from these different offences were substantially different. Although there should therefore be a degree of concurrency, there must also be a significant amount of accumulation to reflect these differences. The non-parole period 36 It was submitted that special circumstances existed to justify the imposition of a period of parole which exceeded one-third of the non-parole period of any resulting sentence, namely the offender's age, that he had no relevant prior convictions and what were said to be his excellent chances of rehabilitation. I do not think that these considerations collectively or individually justify any variation in the prima facie relationship between non-parole and parole periods. However, my decision to accumulate sentences does, and my intention is to fashion an overall sentence in which the total effective non-parole period is three times the length of the period available for parole. Victim Impact Statement 37 A victim impact statement was tendered on behalf of Mrs Janice Kraatz, the mother of the deceased. In the statement Mrs Kraatz describes the love she had for her son and the effect his death has had on her. Mrs Kraatz has been made aware that the Court may not take the contents of the statement into account in fixing the sentence for the manslaughter of the deceased but what the Court can do and what it does do is extend its sympathy to Mrs Kraatz in her loss and express its hope that when these proceedings are over she may have peace of mind. The sentences 38 Barry Ronald Grant, for cultivating the large commercial quantity of cannabis plants I sentence you to imprisonment. I set a non-parole period of four years, which will be regarded as having commenced on 13 February 2009 and which will expire on 12 February 2013. The balance of the term of the sentence is one year and four months expiring on 12 June 2014. 39 For the offence of supplying 8.14 kilograms of cannabis I sentence you to imprisonment for a fixed term of two years. The term of the sentence will be regarded as having commenced on 13 February 2009 and will expire on 12 February 2011. I have imposed a fixed term because the sentence is wholly subsumed by the non-parole period of the sentence already imposed. 40 For unlawfully disposing of the body of Jethro Matheson I sentence you to imprisonment for a fixed term of 1 year, commencing on 13 February 2011 and expiring on 12 February 2012. I have imposed a fixed term because the sentence will be wholly subsumed by the non-parole period of the sentence I am about to impose. 41 For the manslaughter of Jethro Matheson I sentence you to imprisonment. I set a non-parole period of eight years and six months, commencing on 13 February 2011 and expiring on 12 August 2019. The balance of the term will be three years and six months, expiring on 12 February 2023. 42 The first day upon which you will become eligible for release to parole will be 12 August 2019. ********** 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.