Supreme Court New South Wales Medium Neutral Citation: R v Adam John THOMPSON [2011] NSWSC 1130 Hearing dates: 16/09/2011 Decision date: 22 September 2011 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Sentenced to a non-parole period of 14 years' imprisonment, commencing 18 May 2010 and concluding 17 May 2024, with a balance of term of a further 6 years' imprisonment, concluding 17 May 2030. First eligible for release on parole on 17 May 2024. Catchwords: CRIMINAL LAW - sentence - felony murder - plea of guilty - no issue of principle - sentence imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: Regina (Crown) Adam John Thompson (Offender) Representation: Counsel: P Barnett SC (Crown) W Brewer (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Gregory J Goold Solicitors (Offender) File Number(s): 2010/123655 REMARKS ON SENTENCE 1Adam John Thompson (also known as Adam John Ellenor) has pleaded guilty to the murder of Jay Riley. The murder occurred in the course of a robbery, the circumstances of which it is necessary to describe. The Offence 2Mr Riley supplied Mr Thompson with illegal drugs (amphetamines) on a regular basis and Mr Thompson consumed amphetamines and sold amphetamines at least to the extent necessary to support his addiction. 3Some time prior to 14 December 2009, Mr Thompson planned to rob Mr Riley. On 14 December 2009, Mr Riley left work early because he had tonsillitis. He attended a medical practice and was diagnosed. The medical practice was in Charlestown. He returned home, contacted his mother and then his girlfriend. After these two mobile phone calls he attended a pharmacy at Cardiff. He attended the pharmacy at or about 5.38pm on 14 December 2009. Mr Riley then returned some DVDs that he had borrowed and returned home. He was never seen alive again. 4Mr Thompson lived with Ms Fennell in premises at Greta. Another co-accused, Mr Hamilton, lived in a shed in the backyard of the property. 5On 14 December 2009, there were a number of telephone conversations between Mr Thompson and Mr Riley. At 6.23pm on 14 December 2009, there was a text message sent to Mr Riley's phone. His phone was then switched off at or about 6.30pm that day. Mr Thompson's mobile phone records disclose that Mr Riley was his only phone contact during 14 December 2009. The next use of Mr Thompson's phone was a text message sent by him to Mr Hamilton at 12.10am on 15 December 2009. Thereafter, Mr Thompson made a mobile phone call to Ms Fennell. That mobile phone call was at 4.23am on 15 December 2009. 6Mr Riley's mobile phone was reactivated at 11.30am on 15 December 2009 using Mr Hamilton's SIM card. The mobile phone was later recovered from Mr Hamilton. 7On the morning of 18 May 2010, police officers spoke with Ms Fennell, who had, since the date of the offence, separated from Mr Thompson. During the course of the electronically recorded interview, Ms Fennell told the police that she had not been home on the day in which the murder occurred, but on returning home Mr Thompson had indicated to her that he wished to speak to her. Ms Fennell told police that Mr Thompson said that he had arranged to meet Mr Riley to purchase two ounces of speed. Mr Thompson, according to Ms Fennell, said he had met with Mr Riley in order to rob him of the drugs. For that purpose he produced a rifle. Ms Fennell told police that Mr Thompson had said that the deceased lunged at the gun and he, Mr Thompson, panicked and the gun discharged. 8Apparently, Mr Thompson inherited the gun from his father. He also possessed ammunition for it. The gun used was a .410 shotgun. 9Mr Thompson, as earlier noted, planned the robbery. He knew Mr Riley was not armed. The shotgun used to kill Mr Riley had been unlawfully shortened and Mr Thompson took two rounds of ammunition with him. Further, before the shooting, Mr Thompson had armed the shotgun by pulling the trigger guard back off the shotgun, cracking the rifle and loading it. He then pulled the hammer back in order to allow the trigger to be pulled all the way back and this enabled him to discharge the shotgun. All of the steps had been taken, other than the pulling of the trigger, prior to meeting with Mr Riley (see Transcript, p 12-13). 10Mr Thompson's intention was to rob Mr Riley. He did so, according to his evidence, because of his desperate financial and family situation. But Mr Thompson would not have known that Mr Riley had any significant amounts of money in his possession. If, as is stated, Mr Thompson was intending to rob Mr Riley in order to resolve his financial problems, Mr Thompson's intention must have been to rob Mr Riley of drugs and thereafter to sell those drugs. 11After shooting Mr Riley, Mr Thompson took the drugs that he had arranged for Mr Riley to bring to the location. He searched Mr Riley's wallet and removed $2,300 in cash that Mr Riley had in his possession. He also took Mr Riley's mobile phone. Mr Thompson placed Mr Riley in the rear of Mr Riley's vehicle and drove that vehicle into nearby bushland. 12Mr Thompson returned home in his own vehicle and, on the way, removed the SIM card from Mr Riley's mobile phone and threw it away. He told Ms Fennell and Mr Hamilton what he had done. After seeking and obtaining advice from Ms Fennell and Mr Hamilton, Mr Thompson broke the shotgun into three pieces and arranged for the disposal of each piece in a different location. Mr Thompson burnt the clothing he was wearing at the time of the murder. 13Later on 15 December 2009, together with Ms Fennell and Mr Hamilton, Mr Thompson drove in Mr Thompson's car to where he had left Mr Riley and Mr Riley's vehicle. There, Mr Thompson entered Mr Riley's car, drove it to Mount Sugarloaf, with Mr Riley still in the boot. Mr Thompson pulled into a small car park, removed Mr Riley from the boot of the car and dragged him to the swamp in Minmi Creek, where Mr Thompson dumped him. 14Mr Thompson then set fire to Mr Riley's vehicle, using petrol he had brought with him from home. Ms Fennell who, with Mr Hamilton, had followed Mr Thompson in the other car then drove Mr Thompson home. 15Initially Mr Thompson gave police an account, which was wholly exculpatory. It was only after Mr Thompson learnt that Ms Fennell had assisted police with their enquiries that Mr Thompson confessed to the murder. The foregoing is predominantly derived from a Statement of Agreed Facts and the transcript of the electronically recorded interviews that are in evidence. Oral evidence was also adduced, in particular, from Mr Thompson. 16Mr Thompson alleges that Mr Riley lunged at him, causing panic as a consequence of which the gun discharged. I am not satisfied that Mr Riley was killed in that way. At the time that the shotgun discharged, Mr Riley was holding two bags of amphetamines, one in each hand. It is most unlikely, given the presence of a firearm and the fact that Mr Riley had his hands full of illegal drugs, that Mr Riley lunged at Mr Thompson and caused, albeit in a state of panic, Mr Thompson to discharge the firearm. 17Nevertheless, I am not satisfied beyond a reasonable doubt that the discharge of the firearm was deliberate. As a consequence, I cannot take into account any notion that Mr Thompson deliberately discharged the shotgun or deliberately killed Mr Riley. 18The Crown does not allege an intention to kill or cause grievous bodily harm. The charge of murder is based upon a killing that has occurred in the course of the commission of a felony. 19Yet, the killing occurred in the course of a planned armed robbery in which the weapon was deliberately armed and dealt with so as to facilitate the shooting. The planning included the organising of a fake drug deal, the luring of the deceased to a secluded area, being even further into the bush than where the two had previously dealt in drugs, and Mr Thompson's consideration that, once robbed, Mr Riley would have no knowledge of Mr Thompson's home or work address and, because of the illegality of the underlying conduct of both Mr Riley and Mr Thompson, Mr Riley would not inform, or would be unlikely to inform, the police. 20Further, as already stated, the robbery was motivated by greed and was to be used to facilitate a further supply of drugs. The Crown submits that I should take into account aggravating features described in s 21A of the Crimes (Sentencing Procedure) Act 1999 (hereinafter "the Act"), and in particular ss 21A(2)(b), (c) and (n). However, notwithstanding that defence counsel does not cavil with that approach, the aggravating factors described in ss 21A(2)(b) and (c) are elements of the offence. It is difficult to imagine a murder that did not involve the actual or threatened use of violence, although one could have a murder that did not involve the actual or threatened use of a weapon. 21The aggravating feature described in s 21A(2)(n) is in a different category. I have already remarked as to the planning involved in the totality of the offence. Although, I do have regard to the fact that the killing was not an intended or planned result. 22Overall, the provisions of s 21A(2) of the Act do not aggravate the offence beyond that which is involved in determining its objective seriousness. I accept the Crown submission that the offence falls in the mid-range of objective seriousness for the crime of murder. While the Crown submits that the objective seriousness is in the upper end of that mid-range, there is no need to be more precise than that the offence is clearly within the mid-range. 23Traditionally the crime of murder has always been regarded as the most serious of crimes because it involves the felonious taking of human life. The legislature has set a maximum sentence of life imprisonment for the worst case of murder and a standard non-parole period of 20 years. These are the guideposts by which the sentence that I must now impose must be measured. 24As is clear from the difference between the maximum penalty and the standard non-parole period, even within a crime perceived as the most serious because of our society's view of the sanctity of human life, there is a range of culpability associated with the crime. I have determined the objective features, which measure the culpability of Mr Thompson and I must now deal with his subjective circumstances. Before doing so I should briefly set out the purposes of sentencing in a case such as this. Sentencing Principles 25As is specified by s 3A of the Act, the purposes of sentencing any offender, even those charged with murder, seek to reflect 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. 26Each of those factors, particularly the protection of the community, 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. The objective seriousness of an offence points 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 and denunciation. 27Reform 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 that ensures the protection of society and the personal deterrence of the offender. There is usually no single correct sentence and the often-complicated interplay of considerations or guideposts points in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Subjective Factors 28The Court has the benefit of a pre-sentence report and a psychological report from Mr Tim Watson-Munro, Consultant Forensic Psychologist. These describe a somewhat unstable and at times violent upbringing. Mr Thompson is the only child of his biological parents' union. His biological parents separated prior to his birth. Mr Thompson first met his biological father when he was approximately 16 years of age. Until shortly before that time he had believed that his stepfather was his natural father. His stepfather tragically died from cancers deriving from melanoma in August 2009 at the age of 50 years. 29Mr Thompson described a truncated educational history partly because of the unstable residential environment. This, it is said, impacted upon Mr Thompson's capacity to establish meaningful peer group relationships. He completed year 10 at the age of 15 years and Mr Watson-Munro opines, with which I agree, that he could have progressed further with his education, but for these issues of instability. 30Mr Thompson has worked in a range of occupations, although his employment was affected by the death of his stepfather and his abuse of amphetamines. 31Mr Thompson was married to Ms Fennell in February 2010 after having been in a relationship with her for a previous four and one-half years. They have two sons together, Ned aged four years and Jet aged nine months. Those boys are in the company of their mother in prison. Ms Fennell, their mother, also has another child from a previous relationship who is under the care of his father. 32As previously stated, Mr Thompson uses illegal drugs, which, according to Mr Thompson, commenced when he located his natural father, who, he alleged, was a substance abuser. Mr Thompson claims that his usage of amphetamines was under control until the death of his stepfather, but thereafter increased to peek at using up to two grams per day. Mr Watson-Munro describes Mr Thompson as being, at that time, highly paranoid and suffering protracted sleep disturbance. This, in turn, affected his relationship with Ms Fennell and led to an escalation of drug use. Mr Watson-Munro diagnoses Mr Thompson as having suffered long-standing psychological difficulties best encapsulated by the description Anxiety Disorder associated with a Substance Abuse Disorder, according to the DSM-IV criteria. Mr Watson-Munro describes Mr Thompson's addiction as now in partial remission. 33The psychological report describes Mr Thompson "as a clearly depressed and anxious man who is currently before the Court in relation to one count of Felony Murder ... [and who] ... was suffering from a range of psychological symptoms dating back to his childhood, which had been augmented by a rapacious addiction to amphetamines." 34The psychological report notes his current detoxification, apparently due to his incarceration, and describes it as being in a state of partial remission. Mr Watson-Munro reports, however, that Mr Thompson "remains psychologically vulnerable as reflected in the fact that he requires anti-depressant medication". Mr Thompson is currently undertaking further studies to enhance his prospects of a successful re-integration into the community upon his release. 35Lastly, Mr Watson-Munro opines: "It is clear however given my assessment and as reflected through test results, that he requires more intensive and regular work from a Psychologist. This should focus on Cognitive Behaviour Therapy addressing issues such as relapse prevention and social skills training. He would also benefit from therapy to address his lifelong symptoms of depression, anxiety and low self-esteem arising from his truncated developmental history. I note that Mr Thompson is now estranged from his father, reflecting a strong sense of resentment against his claim that it was his father and his half siblings who introduced him to amphetamines. Bolstering his resolve has been an ultimatum from his wife that the marriage will end if he relapses. Given his attitude to the offence coupled to his remorse, I believe with continuing and regular psychotherapy his prognosis will remain on a positive trajectory." 36There is much in this report that favours Mr Thompson. With some of it I do not agree. The evidence before the Court suggests that his natural father was not, in any significant or known way, a substance abuser. I also have some doubt as to the genuineness of his remorse, given his inability to explain or acknowledge responsibility for the preparation of the gun. However, Mr Thompson pleaded guilty, gave evidence and expressed remorse on oath. I do not doubt that Mr Thompson feels sorry for the family of his victim, who, on the material before the Court, continues to suffer greatly not only from the death of Mr Riley, but from the time during which they were unaware of what had happened to Mr Riley. 37His inability to acknowledge and take responsibility for the loading of the weapon and the results of it and the blaming of his natural father for his substance abuse tends to suggest that Mr Thompson may continue to fail to acknowledge and accept responsibility for his own conduct. Notwithstanding that view, I accept the genuine remorse as to the affects of his conduct on the family of Mr Riley and I accept the opinion of Mr Watson-Munro that he requires significant work with a psychologist focusing on Cognitive Behaviour Therapy and a significant post-incarceration period during which there would be a framework to continue both the therapy and a drug-free environment. 38As earlier stated, Mr Thompson warrants a discount at the highest level for a plea of guilty at the earliest available opportunity and his sentence will reflect the time that he has already served in prison. There has been some assistance given to the police by way of statements that confirm the accessorial guilt of Mr Hamilton to which Ms Fennell is prepared to testify. Even though that confirmation is not particularly significant, some value will be given for it. 39Given the foregoing, I find that there are special circumstances and, although there will be a significant period of parole even if the statutory formula is applied, a slightly longer period of potential parole will be granted. I also take into account that this is Mr Thompson's first time in custody and he has no relevant prior criminal record. He does have a conviction for common assault in a domestic violence context, but that was an extremely minor offence for which Mr Thompson was subject to an order under s 10A of the Act. There is also a larceny conviction, which, again, I do not take into account as a relevant prior offence. On that basis, Mr Thompson is entitled to a degree of leniency applicable to a person with a minimal criminal record. Conclusion 40Murder is the most serious of offences, with the maximum sentence being life imprisonment and the standard non-parole period being 20 years' imprisonment. A full-time custodial sentence is warranted. Allowance must be made for the early plea of guilty, the minor assistance granted to law enforcement agencies and special circumstances. Given all of those circumstances, it seems to me that a head sentence of 20 years' imprisonment commencing on 18 May 2010 is an appropriate sentence, taking into account all of the matters, to which I have referred, including the objective seriousness and the subjective factors. I will allow a slightly longer period that may potentially be available for parole and I fix the non-parole period at 14 years' imprisonment. Conviction and Sentence 41Adam John Thompson, also known as Adam John Ellenor, you are convicted of murder in that on or about 14 December 2009 at Seahampton in the State of New South Wales you did murder Jay Riley. I sentence you to imprisonment for a non-parole period of 14 years commencing 18 May 2010 and concluding 17 May 2024, the balance of the term being a further 6 years' imprisonment expiring on 17 May 2030. You are first eligible for release on parole on 17 May 2024. ********** 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. Decision last updated: 23 September 2011