R v COUSENS [2011] NSWSC 1375

Supreme Court New South Wales

Medium Neutral Citation: R v COUSENS [2011] NSWSC 1375 Hearing dates: 30 September 2011 Decision date: 15 December 2011 Jurisdiction: Criminal Before: RS Hulme J Decision: I sentence the Prisoner, Mr Cousens, to imprisonment for a period of 18 years, including a non-parole period of 14 years, both such periods to commence on 5 February 2010. Catchwords: Criminal law - murder - sentencing - standards current at the time of offence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32 PWB v R [2011] NSWCCA 84 R v MJR (2002) NSWLR 368; 130 A Crim R 481 R v Todd (1982) 2 NSWLR 517 R v Wood [2008] NSWSC 1273 Veen v The Queen (No 2) (1988) 164 CLR 465 Texts Cited: "Sentenced Homicides in New South Wales 1990 - 1993" "Sentenced Homicides in New South Wales 1994 - 2001" Category: Sentence Parties: Regina William David Cousens Representation: Mr P Cattini Ms J Manuell SC Solicitor for DPP Legal Aid Commission of NSW File Number(s): 2010/00130505

Judgment 1RS HULME J: On 22 June 2011 William David Cousens was convicted by a jury of the murder of Phillip Brennan between 28 May and 19 June 1990. 2Mr Cousens now stands to be sentenced. I instruct myself that any conclusions at which I arrive in the process must be consistent with the verdict of the jury, that insofar as I make other findings adverse to the prisoner, I must be satisfied of them beyond reasonable doubt, but that I am only required to be satisfied of matters in mitigation on the balance of probabilities. 3Mr Brennan was last seen by the Prisoner's wife at about 5.30 to 6.00 pm in the afternoon of Monday 28 May 1990 at the Pleasure Lea Caravan Park, Batemans Bay. His body was discovered on 19 June 1990 in bushland some 14 kilometres to the north. Post-mortem examination showed that he had suffered from the discharge of at least, and I think probably, three shotgun cartridges. One caused an entry and exit wound in the abdomen. Another shot entered the chest, probably causing some injury to the heart. A third was to the back of the skull. The track leading from that wound led to an exit wound near the top of the head on the right. A shotgun unitising wad was located in the skull. The post-mortem examination showed the inhaling of some shotgun pellets. This and the fact that the head wound have been almost instantly fatal leads to the conclusion that the chest wound was the earlier of these two. The pathologist, Dr Duflou also thought it likely that the abdominal injury was sustained prior to the chest injury but said he could not be certain. Dr Duflou was hampered in his post-mortem by decomposition of the body and interference with it by animals. 4For a number of years Mr Cousens and his wife had lived at Orbost in Victoria. The marriage had its strains, one of which was that Mrs Cousens had had an affair. In 1983 the couple and their three children Shane, Stacey and Jennifer moved to Batemans Bay where they took up residence at the caravan park. 5In about February 1990 Mr Cousens himself had an affair with one Karen Montgomery, then Karen Cochrane. He informed his wife. Her reaction was to ask him to move out and he did, firstly living with Ms Montgomery and then taking his own flat. 6In about March 1990 the deceased also commenced to live in the Caravan Park. Thereafter he and the Prisoner became friends. They both shared an interest in golf and played golf together. Mrs Cousens' evidence to this effect would suggest that it must have been some time after February that the Prisoner told her about his affair. 7About 6 weeks after the Prisoner and his wife separated, Mrs Cousens and the deceased commenced an affair. Mr Cousens who, from time to time, visited his wife's caravan, inter alia, to see one of his children who was still living there, became aware of the affair. He expressed to his wife regret that relations between her and the deceased had advanced so far but she told her husband that it was none of his business. 8On a number of occasions between March and as late as 28 May 1990, Mr Cousens indicated to his wife a desire to reconcile. On one occasion at his request she visited him at his place of work where he asked something to the effect, "Why can't we get back together?" Mrs Cousens probably said something to the effect that she did not intend to get back with him and Mr Cousens remarked that he did not have anything to live for. 9Mrs Cousens responded to the effect, "Perhaps as a family we may be able to have a meal together". Next day a bunch of flowers arrived at her office accompanied by a note, "Thanks for the hope". These were sent by Mr Cousens. 10On 28 May, Mr Cousens went to Mrs Cousens' office and again that day asked if they could get back together, saying, "Phil won't stand in the way if we get back together". Later that day, Mr Cousens asked her for the keys to her car in order to obtain possession of a chamois which was in the boot. The deceased's golf clubs were also there, although there was no evidence in the case to indicate that the sighting of these by Mr Cousens had any impact upon him. At around 4pm, Mrs Cousens left work, drove to the deceased's caravan where he regained possession of his golf clubs. She then went to her caravan and back to the deceased's for a cup of tea, remaining there for half to three quarters of an hour. She left, having invited the deceased for tea, but he did not provide any definitive response. When tea was ready Mrs Cousens sent her daughter Jennifer to the deceased's caravan to inform him of the fact but he was not there. His vehicle and caravan were locked, a light in or outside the caravan was on and when on 3 May 1990 police attended they found within the caravan, inter alia, the deceased's wallet containing $1,250 and on the table a half-full can of beer. 11Notwithstanding the relationship between Mrs Cousens and the deceased, Mr Cousens and the deceased seemed to have remained on friendly terms. As late as 27 May 1990, Mr Cousens picked the deceased up from the Caravan Park and the two played golf together. That night there was a presentation of some prizes at the Catalina Golf Club and Mr and Mrs Cousens, the deceased and Ms Montgomery were seated together. There is evidence which suggests that there was an element of strain or embarrassment on the occasion but it is clear that it was not acrimonious. 12Evidence in the trial indicated that Mr Cousens had attended the premises of Ms Montgomery on the afternoon of 28 May, leaving at a time variously said to be between 5.45pm and 6.30pm. He was seen at the Catalina Golf Club at a time variously estimated to be between 7pm and sometime after 7.30pm. A Mr McCarthy, who lived in another unit in the same block as that occupied by Mr Cousens, gave evidence suggesting that Mr Cousens had attended his own unit at about 6.45pm. A major issue in the case which the jury's verdict means they resolved adversely to Mr Cousens was whether Mr Cousens had time to be involved in the deceased's disappearance or death during that evening. 13The only direct evidence of any antipathy Mr Cousens felt towards the deceased was provided by Mrs Cousens who said that some time after the deceased's disappearance, Mr Cousens called one night at a flat to which she had moved. In her bedroom he saw a photo of the deceased beside Mrs Cousens' bed, dropped the frame containing the photo on the floor, broke the glass with his foot, tore the photo up and said:- That's what I think of Phil, I didn't kill him but I wish I had. 14Mr Cousens who gave evidence, denied any feelings of antipathy towards the deceased, saying in effect that if he was not to be reconciled with his wife, it was good she was with a good bloke, one who would do the right thing by her. In light of the jury's verdict, it is impossible to accept this evidence. I also accept the evidence referred to in the immediately preceding paragraph. 15Mention should be made of the fact that for some time prior to the deceased's death, Mr Cousens had owned a point 22 rifle and a semi-automatic shotgun capable of firing cartridges of a calibre consistent with the pellets and wadding found in the deceased's body. The shotgun had for a time been out of the Prisoner's possession, he having given it to a Mr Merchi with a view to superficial damage to its appearance being repaired. Although he had had the weapon for far more than sufficient time, Mr Merchi had not effected the repair and Mr Cousens had on a number of occasions requested its return. Mr Cousens, in fact, regained possession of the shotgun on the day before the deceased disappeared. When the police took possession of the shotgun on 6 June, they observed that it had recently been oiled but found nothing to otherwise suggest it had been recently used. Mr Cousens provided an account of the recent oiling which I found quite unpersuasive but, it is fair to say, which was not one on which he was substantially challenged. It struck me in the highest degree unlikely that the weapon needed oiling with the urgency which Mr Cousens said he afforded it. I do not find the evidence of rust on a wire brush which Mr Cousens possessed apparently for the purposes of cleaning the weapon argues compellingly against my scepticism. 16The Crown case was entirely circumstantial. There was other evidence but what I have said amounts to a sufficient summary of the evidence for sentencing purposes. 17The maximum penalty provided by s19A of the Crimes (Sentencing Procedure) Act 1999 for the crime of murder is imprisonment for life. Pursuant to s 54A of that Act, a standard non-parole period of 20 years has been prescribed for an offence "in the middle of the range of objective seriousness" unless the court determines there are reasons for setting a longer or shorter period. However that legislation applies only in respect of offences committed on or after 1 February 2003 and has no present relevance. 18One matter to which reference should be made is the fact that, although all of the evidence adduced in the trial in June of this year was apparently available to the authorities in or soon after 1990, Mr Cousens was not charged until 5 February 2010, since which time he has been in custody. In 1992 the DPP advised that there was insufficient evidence to charge him. In October 1998 the Coroner in an inquest into Mr Brennan's death returned an open finding and in October 2008 proceedings in the Crime Commission resulted in some further statements by two of the witnesses. Either then or in recent years, some further evidence which the relevant witness did not recount in the trial and which the Crown Prosecutor conceded had elements of doubtful credibility became available. This inspired a further review within the Office of the Director of Public Prosecutions and this led to the decision to charge. Because of the reliance placed on the factors mentioned in this paragraph, it should be noted that Mr Cousens was interviewed by police on 6 and 16 June 1990. He denied involvement in Mr Brennan's disappearance. 19It is also to be noted that the police have at all times known of Mr Cousens' whereabouts. He remained in Bateman's Bay until his arrest in 2003 on another charge. 20Mr Cousens did not give evidence on sentence and no other evidence was called or tendered on his behalf. Mr Cousens was born in July 1950 and has a short but not insignificant criminal record. (i) In 1985 he was convicted, in Victoria, of aggravated burglary and released on a 5 years good behaviour bond. (ii) In 1992 he was convicted of assault and given a recognisance under s 556A. (iii) In 1996 he was convicted of driving with a mid-range PCA. (iv) In 1997 he was convicted of assault occasioning actual bodily harm, malicious damage and assault. The most severe of the sentences then imposed was 100 hours community service. (v) In 2003 he was convicted of inflicting actual bodily harm with intent to have sexual intercourse. The sentence imposed was of 4 years including a non-parole period of 3 years, both such periods commencing on 14 April 2003. 21The Crown tendered a statement from the victim of the first of these offences that said that Mr Cousens, wearing a stocking over his face, had broken into her home, grabbed her by the throat, after she had fallen, straddled her and held a knife to her throat. He spoke, she recognised him as a neighbour, used his name and he fled. Counsel for Mr Cousens correctly submitted that though this was the victim's statement, one could not be sure how much of it she had adhered to at trial. That is undoubtedly correct but the account does suggest that one should give full weight to the fact that the sentence imposed was of a very lengthy bond, and this for what was apparently Mr Cousens' first offence. 22The penalties imposed for all other offences except the last were such as to indicate they were not very serious, although one cannot ignore the frequency of violence and the disregard of the rights of others. On the other hand, none of Mr Cousens' earlier offences come close to Mr Brennan's murder in violence and one must recognise also the nature of his motivation. Following the conclusion of the non-parole portion of the last sentence, the Prisoner, presumably a British citizen, was in October 2007 deported to England where he remained until extradited following his being charged with the murder of Mr Brennan. One might infer that when admitted to parole he will again be deported though this conclusion has no bearing on the sentence I should impose. 23There was no evidence of any motive in Mr Cousens to kill Mr Brennan other than that of jealously or to increase the chances of Mrs Cousens agreeing to a reconciliation. The circumstances which were established are certainly calculated to lead to one or both of these motives and in the result I am satisfied to the requisite standard that it was one or both of these that inspired the killing. The circumstances referred to above also persuade me to the relevant standard that Mr Cousens must have induced Mr Brennan to leave his caravan at short notice and go with him to wherever he was shot and that Mr Cousens' intention was to kill Mr Brennan. For how long Mr Cousens held that intention it is impossible to determine, although it is equally impossible to do otherwise than conclude that the murder was premeditated. I do not feel able to conclude that all of Mr Cousens' efforts to repossess his shotgun were in order to use it against Mr Brennan. 24The Crown described the murder as an "execution style killing". The description is appropriate, whether or not one accepts what I am about to say. Although Dr Duflou felt unable on the basis of his expertise to be positive as to the order of the shots, when regard is had also to the other evidence in the case, I am satisfied that the shot to the head was the last administered. Included in the evidence to which I have had regard in reaching this conclusion is the circumstance of Mr Brennan going with Mr Cousens, the direction of the shot to the head and what I see as the inherent unlikelihood of Mr Cousens having shot the deceased in that fashion, then shooting him in the front of the body. 25The Crown drew my attention to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act and also to what was said in that regard by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 but it is not necessary that I set out those matters here. 26There is a deal of authority in favour of the view that when persons are charged long after their offending, they should be sentenced in accordance with the sentencing practice current either at the time of their offending or when they could have, in the ordinary course, been expected to be tried - see eg R v MJR (2002) NSWLR 368; 130 A Crim R 481; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39]; PWB v R [2011] NSWCCA 84 at [55]. It is not necessary for present purposes to consider whether one of these possible times should be preferred to the other. Of course the application of the principle depends on it being possible to come to a conclusion as to sentencing practice at that time. In this case records are such that such a conclusion can be reached. 27One further issue that arises is as to the extent to which the delay in sentencing is to be taken into account. There is no doubt that commonly extended delay between offending and trial has been regarded as a mitigating factor, at least when the offender has not been responsible for the delay, say by absconding - R v Todd (1982) 2 NSWLR 517; R v Wood [2008] NSWSC 1273. 28Counsel for Mr Cousens sought to rely on delay in mitigation here, drawing attention to the fact that the evidence before the jury in Mr Cousens' trial was all known to the authorities in 1990 or thereabouts and it was their decision not to charge him. She submitted that had he then been charged and convicted, any term of imprisonment would, at least probably, by now have expired and he is young enough to have emerged from prison with opportunity and energy to do something with the rest of his life. Commencing a sentence now will almost certainly result in Mr Cousens being over 70 years when he emerges from prison - an age likely to be accompanied or soon followed by significant decline in his faculties. He has, she in effect submitted, "already been punished to the extent of having this matter hanging over his head for the whole of a 20 year period" - words taken from the remarks on sentence of Barr J in R v Wood [2008] NSWSC 1273. 29I have no difficulty in accepting as general propositions, the matters referred to in the immediately preceding paragraph. However, there are some further matters to take into account. The delay in prosecution has enabled Mr Cousens to be at liberty between the ages of 40 and 59 when he has had, one may infer, full enjoyment of his health and faculties. No doubt no one would relish the prospect of spending 15 years or so in prison but, faced with it and given a choice as to when, it is not obvious that everyone would choose between the ages of 40 and 60 rather than some later time. Nor has Mr Cousens chosen to put before me any evidence suggestive of him having suffered any significant detrimental impact in consequence of having the matter hanging over his head, and this even though he is the person best situated to know. 30A question also arises whether the delay can be said to be the responsibility of the authorities and not of Mr Cousens. When questioned, he denied his guilt, a matter that would no doubt have been taken into account by anyone who was considering whether Mr Cousens should be charged. Of course he was entitled to remain silent and, if he chose to speak, it was within his power to say whatever he liked. However, having chosen to lie - as is the clear implication of the jury's verdict - it does not seem to me that he can say he has no responsibility for the delay that followed in the prosecution. In this connection I note that Barr J in R v Wood took the view that Wood could not call in aid as mitigating his sentence the first year or so of the delay that occurred in his case since it resulted from his own false assertion that the victim in that case had committed suicide. 31In the result, while I do propose to mitigate the sentence to some degree for the delay that has occurred, that mitigation will be modest. 32I am disposed also to give limited weight to Mr Cousens' criminal record. It does display a tendency to resort to violence and disregard the rights of others when it suits him but the offences on that record are radically different from that with which I am dealing both in Mr Cousens' actions and apparent motivation. That motivation and Mr Cousens' age when released from prison leads to the conclusion that he is unlikely to re-offend in the same way. Otherwise there is no evidence before me that enables me to come to any view as to Mr Cousens' prospects of rehabilitation. Consistently with his plea of not guilty, he has not expressed any remorse. 33As indicated above, Mr Cousens is entitled to be sentenced in accordance with the sentencing standards operating at and about the time of his offence. A convenient indication of these is provided in the Judicial Commission publication "Sentenced Homicides in New South Wales 1990 - 1993", supplemented by a later work, "Sentenced Homicides in New South Wales 1994 - 2001". 34In the former work it is recorded that, "In summary, the typical sentence for murder under s 19A might be described as a minimum term of 12 years and an additional term of six years, making a total sentence of 18 years" and that there was no clear difference in the distribution of sentences for guilty and non-guilty pleas. Of those sentenced under s 19A, more than one-third pleaded guilty. 35In the later study, it was recorded that the median sentence for those who pleaded guilty was 18 years including a non-parole period of 12 years and for those who pleaded not guilty, the median sentence was 18 years including a non-parole period of 14 years. Given that any prosecution of Mr Cousens commenced in 1990 would almost certainly have led to his being sentenced appreciably before the end of 1993, it is to the earlier of the Judicial Commission monographs to which I will have regard. 36Of course in the period covered by that survey there was a considerable range of sentences and the median while useful as a guide, otherwise says little about the sentence that should be imposed on Mr Cousens. His premeditation, his intent to kill and the callousness demonstrated in his execution of the deceased all tend to aggravate his criminality. He is, as I have indicated, entitled to some moderation of his sentence on account of delay. I note also that he is to be sentenced in accordance with the form of s 44 of the Crimes (Sentencing Procedure) Act as it existed prior to 2002. 37Weighing up all of the matters to which I must have regard the appropriate sentence is as follows. 38I sentence the Prisoner, Mr Cousens, to imprisonment for a period of 18 years, including a non-parole period of 14 years, both such periods to commence on 5 February 2010.