R v Edward Arthur FERRETT (No 4) [2010] NSWSC 956

New South Wales Supreme Court

CITATION : R v Edward Arthur FERRETT (No 4) [2010] NSWSC 956

HEARING DATE(S) : 10 May 2010, 12 May 2010-13 May 2010, 17 May 2010-18 May 2010, 20 May 2010, 24 May 2010-25 May 2010, 31 May 2010

JUDGMENT DATE : 27 August 2010

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

DECISION : Sentenced to a non-parole period of 4 years' imprisonment commencing 31 July 2008 and expiring 30 July 2012, with a balance of term of a further 3 years' imprisonment, concluding 30 July 2015. The total sentence is 7 years' imprisonment. First eligible for release on 30 July 2012.

CATCHWORDS : CRIMINAL LAW – murder – accessory after the fact – sentencing – sentencing comments – sentence imposed

LEGISLATION CITED : Crimes Act 1900

CATEGORY : Sentence

R v Cowen [2008] NSWSC 104 CASES CITED : R v Farroukh and Farroukh (Court of Appeal, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported) R v Galea [2003] NSWSC 465

PARTIES : Regina (Crown) Edward Arthur Ferrett (Offender)

FILE NUMBER(S) : SC 2008/195700

COUNSEL : C Maxwell QC (Crown) J Stratton SC (Offender)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Bannisters Lawyers & Attorneys (Offender)

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

ROTHMAN J

27 AUGUST 2010

2008/195700 R v Edward Arthur FERRETT (No 4)

REMARKS ON SENTENCE 1 HIS HONOUR: Edward Arthur Ferrett appears for sentence in that on or about 26 July 2003 he was an accessory after the fact to the murder of Ronald William Pollock, punishable under s 349 of the Crimes Act 1900. The murder was committed by a person or persons unknown. 2 Mr Ferrett was originally charged with the murder of Mr Pollock. The Crown amended to indict Mr Ferrett, in the alternative, to accessory after the fact. Mr Ferrett, on the first day of trial, pleaded not guilty to the murder but guilty of the charge for which he is now to be sentenced. 3 During the course of the trial, the Crown withdrew the charge of murder and Mr Ferrett maintained his earlier plea to the accessory charge. 4 The facts may be stated shortly. Mr Ferrett and Mr Pollock and others were involved in, or involved with people involved in, the manufacture of drugs or precursors thereto. Police were investigating these matters and questioned Mr Pollock. Shortly thereafter, the Police engaged in conduct which led some to think that Mr Pollock was assisting the Police. 5 Despite attempts, Mr Pollock could not be contacted by those concerned with the manufacturing activities, and others. However, on 26 July 2003, Mr Pollock went to meet Mr Ferrett and another. 6 Shortly thereafter, Mr Pollock was dead. He was killed by gunshots to the head. We know this because Mr Ferrett told his then partner. The body has never been found. 7 Mr Ferrett in a conversation said: "I'll tell you something Lindy, I drove a hundred and twenty k's with that cockhead's head laying in my lap, with three holes in it and it was in that car. We burnt the seats, we did all that. We did everything else, we sprayed the floors with fuckin', we painted the floors with sound deadener, fuck." 8 Plainly, Mr Ferrett has engaged in conduct to prevent, or assist in preventing, the murderer, whoever it may be, from being detected. He did so, knowing that Mr Pollock had been murdered and knowing that he was murdered in order to avoid justice for the drug manufacturing activities. Further, any of the acts of Mr Ferrett may have amounted to accessorial conduct: driving the body; burning the seats; or, painting the floors. However, I cannot find beyond a reasonable doubt that the burning of the seats or the painting of the floors was for the purpose of preventing the detection of the murderer, rather than the detection of the conduct of Mr Ferrett, himself. 9 There is a wide variation in possible degrees of culpability involved in this offence: R v Farroukh and Farroukh (Court of Criminal Appeal, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported). 10 There are few redeeming features in assessing the objective seriousness of this offence. The act was not done for familial affection, love or friendship. It was part of a larger criminal activity and was direct assistance in the disposal of the body. Further, while all accessory offences of this kind involve an element affecting the administration of justice, this crime has the added effect that it seeks to hide a murder that itself was targeted at avoiding justice, and that motive was known to Mr Ferrett. 11 Mr Ferrett did not give evidence on sentence, or at all. He expressed contrition to his psychologist, who considers the expression genuine. I have significant doubts as to the genuineness of that expression. His plea is not, in my view, evidence of contrition; it is more likely to be a recognition of the effect that the recorded statement was likely to have on his conviction. 12 Mr Ferrett is 54 years of age (nearly 55) and was 47 at the time of the offence. He has suffered drug and alcohol abuse problems for most of his life, having commenced using cannabis at the age of 15 "to show [he] was cool". From the age of 18, Mr Ferrett has used heroin. 13 This is not Mr Ferrett's first criminal offence. He has been involved in armed robberies, drug offences including accessorial involvement in manufacture, and assault occasioning. He will not be given the leniency of a first offender and, but for one aspect, has displayed generally a disregard for the law and his fellow citizens, deserving of condign punishment. Mr Ferrett was on conditional liberty at the time that he committed this offence. 14 He has not given assistance to the Police, and no discount is provided on that basis. 15 The one aspect, which gives the Court some little hope as to Mr Ferrett's future, is that he enrolled voluntarily in a rehabilitation program in order to rid himself of his drug and alcohol problem. This was done prior to his incarceration for this offence. 16 Mr Ferrett suffers poor health from emphysema and the effects of his long addiction. Neither is incapable of being treated appropriately in prison. 17 I turn then to the sentence. In my view, for the reasons already described, this offence at least approaches the worst category of cases. There may be worse, but not significantly so, and it is difficult to imagine them without necessarily assuming an involvement in the actual murder, although mutilation of a body may be one such category. The offence carries a maximum of 25 years' imprisonment. Mr Ferrett has never before been involved in an offence of this kind or with a murder. 18 There is no standard non-parole period. Even though the plea of guilty was relatively late, I will provide a discount for its utilitarian value, which I assess at 12½%. I also find special circumstances, although I will not allow much in lessening the non-parole period, because there will otherwise be sufficient time to complete his rehabilitation. 19 Lastly, I deal with the statistics. The published figures by the Judicial Commission have been illuminating. The Court, and the Court of Criminal Appeal, have often stated, and I accept, that care must be taken in using these figures. This is not a common offence. The statistics are compiled from only 12 offenders, 83% of whom received a full-time custodial sentence. Of the 10 persons sent to prison, 20% received a term of 5 years' imprisonment and no one had a higher sentence than 5 years imposed. The median head sentence is 2½ years' imprisonment and the median non-parole period is 2 years. It is clear, on an examination of previous judgments that the statistics are not complete. They do not take account, for example, of the sentence imposed by Sully J in R v Galea [2003] NSWSC 465, which, because his Honour shortened the sentence imposed to take account of pre-trial custody, was an effective head sentence of 7 years with a non-parole period of 4½ years. The sentences and principles on sentencing were summarised exhaustively by Buddin J in R v Cowen [2008] NSWSC 104 at [15]-[24] and I respectfully adopt that summary. 20 I consider that these figures do not adequately or appropriately reflect the conduct of Mr Ferrett and his subjective circumstances. I commence with a head sentence for Mr Ferrett of 8 years' imprisonment; I note, again, that this approaches the worst category and the maximum sentence is 25 years' imprisonment. As I have already stated, I allow 12½% for the plea. Conviction and sentence 21 Edward Arthur Ferrett, you are convicted of accessory after the fact to the murder of Ronald William Pollock, by a person or persons unknown in that you, on or about 26 July 2003, did receive, harbour, maintain and assist the said person or persons unknown. 22 You are sentenced to a non-parole period of 4 years' imprisonment commencing 31 July 2008 and expiring 30 July 2012, with a balance of term of a further 3 years' imprisonment, concluding 30 July 2015. 23 The total sentence is 7 years' imprisonment. You are first eligible for release on 30 July 2012. **********