R v Ganene COULTER [2011] NSWSC 1176

Supreme Court New South Wales

Medium Neutral Citation: R v Ganene COULTER [2011] NSWSC 1176 Hearing dates: 9/05/2011, 11/05/2011, 13/05/2011 Decision date: 24 May 2011 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Convicted on the charge of conspiracy to murder. Sentenced to a non-parole period of 7 years and 6 months to date from 11 February 2010 expiring 10 August 2017. Balance of term expiring 10 April 2021. Eligible for release to parole on 11 August 2017. Catchwords: CRIMINAL LAW - sentence - conspiracy to murder - criminality towards the upper range of objective seriousness - genuine remorse - low prospects of re-offending - late plea of guilty - discount for future assistance where assistance not as forthcoming as originally anticipated - finding of special circumstances. Cases Cited: R v Blair [2005] NSWCCA 78 R v Potier [2004] NSWCCA 136 Category: Sentence Parties: Regina - Crown Ganene Coulter - Offender Representation: Counsel: T Thorpe - Crown M Paish - Offender Solicitors: S Kavanagh Solicitor for Public Prosecutions - Crown Everingham Solomons - Offender File Number(s): 2010/38275

SENTENCE 1The offender, Ganene Coulter, pleaded guilty on 9 May 2011 to conspiracy to murder. The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years. The standard non-parole period does not strictly apply in this case. The plea was entered on the basis of a statement of agreed facts, part of exhibit A, and an undertaking by the offender to give evidence in the forthcoming trial of her mother and sister on the charge of murder, exhibit B. 2The offender's evidence on the sentencing proceedings on 11 May departed in some significant respects from the contents of a record of interview on 13 April 2011, however, the undertaking recorded the fact that the offender's evidence at trial would be in accordance with the evidence she gave on 11 May. The statement of facts recorded the following: The victim, Jeffrey Ryan, and his wife Helen Ryan, the offender's older sister, were joint owners of a property in the Tamworth area consisting of 1200 acres and valued in excess of $1 million. The victim and Helen Ryan have a daughter CR, then aged 14 years. In late 2008, the relationship between Helen Ryan and the victim deteriorated to the point where a solicitor was instructed by the victim following a separation in February of 2009. 3In May 2009, Helen Ryan attempted to transfer approximately $25,000 from the joint account into the account of CR. The transfer was prevented by the victim who then ensured that any money taken from the joint account required both signatures. Helen Ryan opened her own bank account shortly thereafter. As part of the settlement of the joint property, Helen Ryan sought $1 million and 50 per cent of the assets. The victim made a counter offer of 30 per cent which was rejected by Helen Ryan. 4On 11 September 2009, the victim allegedly assaulted CR. The assault was reported by CR to a school counsellor and to the police. An apprehended violence order was then taken out against the victim. The return date for the order was 29 September 2009. A further interim order was granted to 12 October 2009. As a result of the AVO, the victim moved to live in a shipping container on the property, approximately 460 metres from the main homestead. Very few people knew that the victim was living in the container. 5On 28 September 2009, the victim changed his will to remove Helen Ryan as a beneficiary. She became aware of this change when she opened his mail at the local post office. 6In the months before 23 October 2009, Helen Ryan and the offender had a conversation by phone wherein Helen Ryan asked the offender if she knew of anyone who could have the victim murdered. The offender contacted Ian Carroll also known as "Sharkey", and said, "Helen just rang me. She asked me - she needed - she needs help to get rid of this bugger." As a result of the phone call, Carroll had a conversation with Helen Ryan and decided that he would provide Ms Ryan with a phone number of one Kenneth Brooks. Carroll later maintained to police that he believed that Brooks might be required to assault the victim, but was not aware that Brooks would be asked to murder the victim. 7Helen Ryan made contact with Brooks and agreed on a fee of $30,000 for the murder of the victim. Half of the amount was to be paid before the murder and the remainder afterwards. On 16 September 2009, $500 was withdrawn from Helen Ryan's account followed by a cash deposit of $500 into the account in the name of the partner of Mr Brooks. Mr Brooks was to use this money to travel to Tamworth to meet with Helen Ryan before the murder. 8Shortly thereafter, Mr Brooks met Helen Ryan at the Apex Motel in Tamworth where they further discussed the murder of the victim. Helen Ryan provided Mr Brooks with some photos of the victim. On 28 September 2009, Helen Ryan withdrew $1,000 from her account. On the same day, she withdrew a further $4,000 from an account in the name of her daughter CR. Also on that day, the offender's mother, Coralie Coulter, withdrew $10,000 from her account. The total amount of 15,000 was to be paid to Brooks for the murder of the victim. 9On 1 October 2009, the offender withdrew $100 from her account and deposited $100 to the account of Helen Ryan. The offender was aware that the purpose of this deposit was to pay for Helen Ryan's travel expenses to meet Mr Brooks in order to pay him $15,000. 10Between 1 October and 23 October 2009, Helen Ryan and Coralie Coulter travelled together in Helen Ryan's vehicle to a park in Murrurundi. On arrival, Coralie Coulter hid in the back passenger's seat of the vehicle whilst Helen Ryan approached Mr Brooks and gave him $15,000 as down payment for the murder. Mr Brooks told Ms Ryan that he or someone else would contact her after the murder in order to arrange payment of the remaining $15,000. According to what was said by Ms Ryan, Mr Brooks told her that she would probably never see him again. 11On 23 October 2009, Mr Brooks rang Ms Ryan and told her it was going to happen that night. Mr Brooks rang Ms Ryan eight times between 8.05pm and 8.08pm to ascertain the location of the victim on the property. Telephone calls indicate that Mr Brooks was in the Tamworth area on October 22 and 23. No calls were made on or received on Mr Brooks' phone on 23 October between 8.08pm and 9.49pm. 12The victim was shot and killed on 23 October 2009 between 8.40pm and 9.49pm. The victim was found lying face down wearing a T-shirt, shorts and slippers. At least two shots were fired from a shotgun. There was shotgun pellet damage to the western side of a shed about 10 metres south east of the victim. The murder weapon has not been found. 13There were shotgun injuries to the chest and abdomen including wounds to a number of organs. The position of the injuries indicated that the shot was fired from behind the deceased and slightly to his right. 14At 9.49pm, Mr Brooks called Ms Ryan on the victim's work phone to tell her that Mr Ryan had been killed and to get rid of her phones. It appears from the mobile phone records, that Mr Brooks returned to Cessnock where he lived, some time after 9.49pm. The offender's mobile phone which was registered in the name of Naomi Watson of Yamba, was used to call Helen Ryan on her husband's work phone at about 8pm, 8.15pm and on several occasions until shortly after 11.30pm on 23 October 2010. 15On the night of 23 October 2009, only Helen Ryan and her daughter were at the main residence on the property. Helen Ryan told police that the victim was there on the evening of the 23rd from about 7.30pm until 8.15pm. CR told police that she did not see the victim that day, but heard him talking to her mother at the house while she was in her room. CR thought that the victim left at about 8pm. 16The victim's body was discovered by a neighbour on Saturday, 24 October at about 11am. The neighbour rang 000. A short time later, Helen Ryan arrived in a vehicle driven by the offender. CR was also present. 17On 21 December 2009, Mr Carroll assisted the police by calling the offender in order to ask her questions about the murder of the victim. The call was recorded. The offender told Mr Carroll that her sister had paid Mr Brooks an amount of money being "fifteen". As a result of this conversation, police used the services of an undercover operative who met with the offender on 11 January 2010 in Grafton. During this conversation, the offender made numerous admissions in relation to her role and the role of others in the murder of the victim. The offender told the undercover operative that Ms Ryan had paid Mr Brooks $15,000 and that her mother had paid $10,000 of that amount to assist Helen Ryan to pay for the victim's murder in the knowledge that the money was to be used for that purpose. 18This aspect of the facts is not supported by the offender's evidence on 11 May 2011. It appears that the offender is now maintaining that her mother was not told of the purpose of the $10,000 payment until after the murder had taken place. 19The offender admitted to placing money into Ms Ryan's account to assist her in meeting Mr Brooks in order to pay him the $15,000. The offender also admitted to arranging for the destruction of the mobile phones used by herself and Ms Ryan. 20A meeting took place on 18 January 2010 between the undercover operative, Helen Ryan, Coralie Coulter and the offender. The offender made further admissions of her part in the murder of the victim. 21The offender was arrested on 11 February 2010 and has remained in custody since that date. 22The objective seriousness of an offence of conspiracy to murder is to be assessed against the maximum penalty of 25 years imprisonment. This Court has previously remarked when dealing with the offence of solicit to murder that: "[It] is a fundamentally abhorrent and heinous crime. It is a crime for which the sentence must reflect a significant element of personal and general deterrence. Deterrence has a particular relevance by reason of the cold blooded motivation that lies behind the act of an offender in engaging or attempting to engage a hit man to kill another for reward. It also has a particular relevance in that part of the motivation in contracting the job out to a professional is to reduce the chances of detection not only because that person is assumed to have special skills, but also because the offender is able to place himself or herself one step removed from the killing." (See R v Potier [2004] NSWCCA 136 at [55] - [56]). 23Both the Crown and the offender's counsel submitted that the fact of the victim's death in this case objectively qualified the offence as one in the upper range of criminality. That submission is, no doubt, correct when one has regard to the totality of the circumstances surrounding the commission of the offence. However, the assessment of the objective gravity of the offence for the purposes of sentencing this offender must take into account the role the offender played in the commission of the offence relative to her co-offenders. That principle has been recognised on a number of occasions by this Court with respect to the commission of drug offences. (See R v Blair [2005] NSWCCA 78). It applies equally to offences committed jointly by a number of offenders. 24The offender's role in the commission of the offence was not insignificant, although it is questionable whether it could be described as critical. The offender provided the contact whereby Ms Ryan was able to secure the services of a hit man knowing that her sister's intention was to kill her husband. It appears that Ms Ryan requested the contact from the offender on the basis that the offender had spent an earlier period of her life engaged in prostitution and had thereby associated with men such as Mr Carroll. 25According to the offender's evidence, Mr Carroll, a truck driver, supplied the offender with amphetamines and took a percentage of her earnings on the occasions that he procured other truck drivers as clients of the offender. It is not possible to determine whether, had the offender refused to assist Ms Ryan, Ms Ryan would have been able to turn elsewhere. The advantage to Ms Ryan of engaging the offender in the enterprise was an assurance that the offender would not reveal the details of the offence out of a sense of family loyalty. Moreover, the evidence of the offender suggests that there was a degree of influence exerted by Ms Ryan over the offender in so far as the offender was the second youngest of six children of whom Ms Ryan was the second eldest. 26Ms Ryan is approximately 10 years older than the offender. The offender's history of prostitution and drug taking made her somewhat vulnerable to the demands of an older sister. According to the offender's evidence, Ms Ryan had asked the offender to make notes in relation to drug use in order to authenticate a version of events that suggests that the victim was killed because of a drug debt. 27In the result that sense of family loyalty has not been sufficient to prevent the offender from confessing her part in the offence or from disclosing her mother's and her sister's conduct. Nonetheless, the offender was a mature woman of 40 years of age in a stable relationship when she complied with her sister's request. Not only was the victim her brother-in-law, but the offender herself had been in a short relationship with the victim, prior to Ms Ryan meeting him. 28The offender could not satisfactorily explain why she carried out Ms Ryan's request seemingly without hesitation. To the extent that the offender said that she saw photos of Ms Ryan with bruises, cuts and swelling to her body that Ms Ryan claimed had been inflicted by the victim, violence of that kind can never justify exacting revenge by the taking of a human life. The same must also be said of the apparently false allegations made by Ms Ryan to the offender that the victim had sexually assaulted CR. 29Taking these matters into account, the offence committed by the offender is objectively very grave. On the spectrum constituted by the maximum penalty for the offence, her criminality lies towards the upper range. It remains to factor in the subjective circumstances of the offender in order to arrive at a sentence which properly reflects the combination of these factors. 30The offender is presently 42 years of age. She grew up in a loving and caring family environment attending school in MacLean. She left school at 15 years of age, worked in a restaurant for a period of 14 months and ceased work when she fell pregnant. Her first child was born in 1987 when the offender was 18. At that point, the offender was living with the father of that child. Another child was born to the relationship in 1988 however, the offender's partner left her about 2 or 3 years later. 31In 1987, the offender's father died of cancer at the age of 48. The offender was deeply affected by her father's death. The offender had many short-term relationships over the following years including one with a truck driver for a period of 6 months. The offender met Mr Carroll, who she knew as "Sharkey", in the course of this relationship. This partner was violent towards her until Mr Carroll stepped in and put an end to the violence and to the relationship. Mr Carroll became a good friend to the offender. 32For a period of 2 to 3 years, the offender work at an escort service in Coffs Harbour and Inverell. She ceased that work in about 1997. 33The offender was using amphetamines and cannabis when she met Mr Carroll. The offender described the use of amphetamines as an adjunct to her work in so far as it allowed her to stay awake for lengthy periods of time. Her drug use generally facilitated her work and dulled the emotional and physical pain arising from it. 34At some point, the offender stopped using amphetamines but continued to use cannabis up to her arrest. The offender's use has consisted of approximately 20 cones per day for almost 20 years. The offender's memory has also been affected by her long term drug use. 35The offender has been in a stable relationship for the past 11 years. At the time of her arrest the offender was receiving a carer's pension. 36I accept that the offender is genuinely remorseful for her role in the commission of the offence. The offender said that she was "horrified and shattered" about what she had done and that she felt terrible that the victim's death has deprived her niece of a father. The offender stated a number of times that she was still asking herself why she became involved, particularly when there was no financial benefit offered to her and no advantage beyond the observance of sibling loyalty. 37Whatever sympathy the offender felt for Ms Ryan has been undermined by Ms Ryan's conduct since the arrest of the offender. On reading Ms Ryan's record of interview, it appeared to the offender that her sister had "stabbed her in the back." 38The offender has a conviction for goods in custody in 2005. To the extent that she has no convictions for offences of violence, the offender is relevantly of good character for the purposes of this sentencing exercise. It is likely she will forever be alienated from her family because of the stance she has taken against her sister and her mother. Given the context of the offence and the fact that the offender is effectively estranged from her family, her prospects of reoffending a exceedingly low. 39The plea of guilty was effectively entered on the eve of the trial, however, it was indicated to the Crown approximately one month before the trial date that the offender may be willing to assist the prosecution and it was in that context that the plea negotiations commenced in earnest. The utilitarian value of the plea in these circumstances is not significant. A discount of 10 per cent for the plea of guilty is appropriate. 40The quantification of the discount for the offender's future assistance is problematic. The offender's evidence on 11 May is at odds with the evidence of the undercover police officer in a significant respect, that is, as I have already noted, the offender maintains there was no conversation with her mother wherein her mother disclosed knowledge of the plan to murder the victim before it occurred. 41The agreed facts make it abundantly clear that the offender told the undercover police officer that her mother well knew of the purpose for the payment of $15,000 to Mr Brooks. How this conflict will be resolved is a matter for the jury in the trial of Ms Ryan and Coralie Coulter. The conflict suggests that the offender's assistance is not as forthcoming as the Crown anticipated. It clearly does not strengthen the Crown case against Coralie Coulter. Rather, the offender's evidence is capable of weakening it. The offender's assistance will strengthen the Crown case against Ms Ryan. I accept her evidence is valuable in that regard. 42In these circumstances, I assess the offender's future assistance at 20 per cent. There ought to be no component for past assistance given that the offender did not contribute to the investigation of the offence by way of assistance to the authorities. 43In my view, a sentence of 16 years is appropriate to reflect the offender's objective and subjective circumstances. Applying a discount of 30 per cent, I would impose a sentence of 11 years and 2 months. A finding of special circumstances is warranted on the basis that it is likely the offender will experience threats from those associated with members of her family, Mr Carroll and Mr Brooks. Her access to programmes within the prison system has already been restricted for these reasons because the hostility expressed towards her has resulted in placement in a form of protection. 44However, the requirement that the non-parole period reflect the objective gravity of the offence dictates no more than a slight moderation of the statutory ratio. 45Ganene Coulter, would you please stand. On the charge of conspiracy to murder you are convicted. I sentence you to a non-parole period of 7 years and 6 months to date from 11 February 2010 expiring 10 August 2017. I fix a balance of term expiring 10 April 2021. You are therefore eligible for release to parole on 11 August 2017.