Supreme Court New South Wales Medium Neutral Citation: R v Lockett [2013] NSWSC 1555 Hearing dates: 28-31 May, 3-4 June, 20 September 2013 Decision date: 25 October 2013 Jurisdiction: Common Law - Criminal Before: Price J Decision: Sentenced to a term of imprisonment of 18 years consisting of a non-parole period of 13 years which is to commence on 18 November 2010 and is to expire on 17 November 2023. I set a balance of term of 5 years which is to commence on 18 November 2023 and will expire on 17 November 2028. The earliest date of eligibility for your release to parole is 17 November 2023. Catchwords: CRIMINAL LAW - sentencing - murder - parity - finding of special circumstances Legislation Cited: Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 s 21A(2)(j), s 21A(3)(g)-(i) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] 79 NSWLR 1; [2010] NSWCCA 194 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652 R v Isaacs (1997) 41 NSWLR 374 R v Lockett [2013] NSWSC 859 R v Pilley (1991) 56 A Crim R 202 R v Previtera (1997) 94 A Crim R 76 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Category: Sentence Parties: Crown Samuel Lockett Representation: Counsel: Mr P Leask (Crown) Mr C Smith (Offender) Solicitors: Ms A Holloway – Office of Director of Public Prosecutions Mr A Jawas – Australian Criminal Law Specialist File Number(s): 2010/384692 REMARKS ON SENTENCE 1HIS HONOUR: Samuel Lockett (the offender) has been found guilty by a jury of the murder of Wallace Ruiz-Sanchez on 12 October 2010. 2Mr Ruiz-Sanchez died when he was struck on the head with a shotgun by the offender which then discharged, mortally wounding him. At the time of his death he was 38 years old. 3The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment. Those two guideposts are to be borne in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the offender: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; (2011) 281 ALR 652. 4Although the offender was individually tried before a jury, Carl Brown was also found guilty by a jury of the murder of the deceased in a separate trial. Richard Barnes, Bradley Owen Trawin-Hadfield and Kirk Daniel Tuivaga pleaded guilty to the manslaughter of the deceased which was accepted by the Crown in full satisfaction of the indictment charging them with murder. With no disrespect to these offenders, I will refer to them furthermore by their surnames during these sentencing remarks. 5In view of the separate trials for the offender and Brown and the differences in the agreed facts upon sentence for the remaining offenders, it is necessary to deliver separate sentencing remarks for each offender. However, the parity principle is of importance when sentencing each of them and is not confined to sentences imposed upon co-offenders who have committed the same crime. It can also be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 86 ALJR 36 at [30]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [136]. However, the significant practical difficulties with this approach are well recognised: Jimmy at [203]; Green at [30]. 6In the present case, there is little utility in considering parity with the three offenders who pleaded guilty to manslaughter. The roles that they played in the death of the deceased were much less than the offender and Brown and there is a deal of difference between the maximum penalties for murder and for manslaughter. The question of parity is considered at [35] - [38] below. 7During the trial and proceedings on sentence, Mr P Leask appeared for the Crown and Mr C Smith appeared for the offender. 8It is my duty to determine the facts relevant to sentencing the offender which are to be founded on the evidence adduced in his trial. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the offender must be arrived at beyond reasonable doubt: R v Isaacs (1997) 41 NSWLR 374. Matters of mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202 at 204. I should state from the outset that I found Rhiannon Knaggs to be an impressive witness. 9In written submissions, Mr Smith suggested a factual basis for sentencing the offender which included that Brown attended the deceased's home in September 2010 and obtained a gun from him which Brown did not pay for over the next three weeks. Mr Smith disclosed that the suggested factual basis is largely taken from R v Lockett [2013] NSWSC 859 at [4]-[13] which was my judgment on the separate trial application. The Crown, however, did not adduce evidence in the offender's trial of the purchase of a gun by Brown. Accordingly, I decline to make further reference to this topic in these sentencing remarks. 10On 12 October 2010, the five offenders were together at the Smithfield house where Tuivaga and Brown were living. At some stage during the day, they drove to Jasmine Psaroudis' home in Russell Street, Mt Pritchard which is next door to the deceased's home. Ms Psaroudis is Brown's sister. 11On the way to Mt Pritchard the car stopped at Trevor Hair's place. Brown went into the house and obtained a gun which was placed somewhere in the front of the car. Barnes was the driver of the vehicle and Brown was seated in the front. The offender was seated in the rear of the vehicle with Tuivaga and Trawin-Hadfield. 12Barnes drove the vehicle to Russell Street, Mt Pritchard. Each of the offenders went into Ms Psaroudis' house. Shortly before 7:30pm, they moved next door to the home of the deceased. According to the offender, Brown said "let's go next door": Ex J (p 19 Q & A 159). The offender told police that Brown carried the gun with him to the house: Ex J (p 20 Q & A 161). The offender did not know the deceased. 13The deceased was at home with his partner Rhiannon Knaggs and her friend Ashley Riddell. Ms Knaggs heard Brown calling out the deceased's name. Brown had been to the house before and Ms Knaggs had previously seen him about a dozen or so times. The deceased went out onto the front verandah where he was confronted by the offenders, one of whom had brought the gun. Ms Knaggs heard a bang that she described as being like a screen door being hit. She grabbed a baton because she was scared and went to the screen door with it. Ms Knaggs said that all five offenders were hitting the deceased with their fists. She testified that she saw the offender hit the deceased with both fists. She recalled leaving the screen door at one point to get her mobile phone, but said she did not get very far because Brown threatened her by saying "Get your missus off the phone, otherwise I will shoot her" (T27/5/13 T55 L50). 14Ms Knaggs and Ms Riddell gave evidence that the offender hit the deceased once on the head with the shotgun and it discharged. Ms Knaggs thought that the gun was a metal pipe before it discharged. She said the offender struck the deceased once on the left side of the head, there was an explosion and she felt blood hit her face and body. She described the offender hitting down so that the open end was on the deceased's head. Ms Riddell said that the offender hit the deceased on the head with what she thought was a long pole, there was a loud bang and she then realised that the pole was a gun. 15Ms Psaroudis said that she saw the offender hit the deceased with something a couple of times. She heard a couple of cracks which made her cringe. Ms Psaroudis described the object she saw the offender hitting the deceased with as looking like a piece of wood or metal. She realised it was a gun when she heard a bang and saw smoke and pellets. 16Dr Bailey, the forensic pathologist, gave evidence that the cause of death was a shotgun wound to the deceased's head. Other than the wounds caused by the shotgun pellets, Dr Bailey found evidence of blunt force trauma to the face of the deceased. She also described multiple lacerations. She was unable to say whether the peri-orbital bruising to the face was due to the discharge of the shotgun or a punch or kick. In cross-examination Dr Bailey said she could not exclude the possibility that the injuries around the left eye of the deceased may have been due to a terminal collapse. 17Mr Smith submitted that the court would accept the evidence of Ms Knaggs and Ms Riddell that the offender struck the deceased once with the gun and would reject Ms Psaroudis' evidence which suggested that there was more than one such blow. Ms Knaggs and Ms Riddell were in a much better position to see what took place on the front verandah than Ms Psaroudis who was looking through the window of her house. Senior Constable Aumua estimated that there was approximately six metres between the two houses. Furthermore, there was a real possibility that the deceased's van was parked in the driveway between the window from which Ms Psaroudis looked and the verandah next door. I am not satisfied beyond reasonable doubt that the offender struck the deceased more than once with the shotgun. 18After discharge of the gun, all of the offenders ran away and the gun has not been located. It was a shotgun, as Dr Bailey recovered in the post-mortem some pellets and wadding which indicated it was a non-rifle firearm. The gun does not appear to have been professionally manufactured. 19The Crown invited me to find that each of the offenders knew that Brown had obtained a firearm for the purpose of making a surprise attack upon another person (CWS par 15). Mr Smith contended that the court would not be satisfied beyond reasonable doubt that the offender knew the weapon was a gun before it discharged as distinct from some sort of pole and the attack upon the deceased was not part of a planned or organised criminal activity. The evidence in the offender's trial as to what occurred before the attack upon the deceased is confined to the evidence of Ms Psaroudis and the offender's ERISP interview (ex J). 20It was the offender's case at trial that he did not know that Brown had obtained a gun. In his ERISP interview, he said that "it looked like a trolley pole" (p 43 Q & A 326) and did not have a trigger (p 51 Q & A 404). He described its colour as being "shiny silver" (p 42 Q & A 323) with brown sticky tape at the end. 21The offender's description of the gun is similar to the descriptions of the weapon given by Ms Knaggs and Ms Riddell. He did not collect the weapon from Trevor Hair's home nor is there evidence that he had possession of it other than immediately before he struck the deceased with it. His use of the weapon to strike the deceased supports the offender's contention that he did not know it was a gun. I am not satisfied beyond reasonable doubt that the offender knew that the weapon was a gun before it discharged. 22The jury was satisfied beyond reasonable doubt that at the time the offender deliberately struck the deceased on the head with the gun, he did so with the intention of inflicting grievous bodily harm on him and that although the offender's deliberate act was not the direct or immediate cause of death, it made a substantial contribution to the death of the deceased. Furthermore, the jury was satisfied beyond reasonable doubt that the offender did not act in the defence of one of the other offenders. 23It was a serious act of violence for the offender to strike the deceased on the head with what he thought was a pole with the intention of inflicting really serious physical injury on him. By doing so, he escalated the level of violence. He had previously struck the deceased with his fists, as had other offenders. This was a cowardly attack upon a man who was outnumbered on the front verandah of his home and in the nearby presence of his partner. 24The Crown did not contend before the jury or on sentence that the offender deliberately discharged the shotgun or that he ought to have contemplated that it would discharge, or that the offender intended to kill or that he knew the shotgun was loaded. In the circumstances of this crime the absence of these factors reduces the objective seriousness of the murder. Another factor that mitigates the objective seriousness of the offence is that the offender's involvement in the attack upon the deceased was relatively spontaneous. I am satisfied on the balance of probabilities that his intention to assault the deceased was not formed until he entered the front yard of the deceased's home. 25Mr Smith invited me to find as a matter reducing the objective seriousness of the offence that the attack was not prolonged but I decline to do so as the attack was brought to a sudden end by the discharge of the shotgun. I conclude, however, that the objective seriousness of the offence is below the middle of the scale for the offence of murder. 26The offender was born on 7 August 1983. He was 27 years old at the time of the offence and is now 30 years old. Other than traffic offences, his prior criminal history reveals convictions for the supply of a prohibited drug (2004), two counts of possession of a prohibited drug (2007) and possession of a prohibited weapon (2010). I note that the offender does not have any previous convictions for offences involving violence. The offender's criminal history does not disentitle him from considerations of leniency. 27At the time of the murder, the offender was subject to a suspended sentence of 6 months imprisonment for the offence of possession of a prohibited weapon. It is an aggravating factor that the offence was committed whilst the offender was subject to conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. 28The offender did not give evidence during the trial or the proceedings on sentence. His background is drawn from the affidavits of his father, brother and sister-in-law, together with the report of Dr Olav Nielssen, a psychiatrist. The offender is the youngest of four boys. His mother died from a drug overdose when he was fifteen years of age. Roy Lockett, the offender's father, was a long distance truck driver which resulted in less frequent face to face contact with his son. His father states that the offender "has had a hard time since his mother passed away and has been forced to grow up and become independent very quickly" (ex 2 par 3). Shane Lockett, the offender's brother, noted that the offender was left alone at times, started skipping school and became reliant on his friends. After completing Year 11, the offender left school and worked at a pet shop, as a builder's labourer and with an electronics company. He has been continuously employed since leaving school. I take into account the offender's difficult family background and personal circumstances. 29His reported history of substance abuse includes regular use of cannabis between the ages of 18 and 21 and regular use of methamphetamine in the years before his arrest. Dr Nielssen diagnosed substance use disorder (in remission), depressive illness and anxiety disorder. Dr Nielssen explained that the diagnosis of depression was made "on the basis of the history of a syndrome of depression and aspects of [the offender's] presentation during the recent interview" (ex 1 p 5). The diagnosis of an anxiety disorder such as post-traumatic stress disorder was made "on the basis of [the offender's] account of intrusive anxiety provoking memories and distressing flashbacks to the offence itself, and re-experiencing of the trauma itself triggered by witnessing violence on television" (ex 1 pp 5-6). Mr Smith did not submit that the offender's mental condition was related to his offending or had any impact on his time in custody or lessened the need for general deterrence: Director of Public Prosecutions (Cth) v De La Rosa [2010] 79 NSWLR 1; [2010] NSWCCA 194. Nevertheless, I take into account Dr Nielssen's psychiatric diagnoses. 30In a letter to the court, the offender expresses his "intense sorrow and remorse for [his] actions in destroying not only [the deceased's] life but also many others" (ex 10). Both Lauren and Shane Lockett express their belief that the offender is very sorry for the part he played in the deceased's death. The offender told his father that he greatly regretted the deceased's death. 31Remorse as a mitigating factor is qualified by s 21A(3)(i) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. Whilst I accept that he has acknowledged the loss caused by his actions, he pleaded not guilty to the murder. It appears from Mr Smith's submissions that he offered to plead guilty to manslaughter, but a plea to manslaughter was not entered before the jury. I am not persuaded on the balance of probabilities that the offender has fully accepted responsibility for his actions. I take into account to a limited extent remorse as a mitigating factor. 32The offender states in his letter that he has spoken at "great length with the minister for counselling" and has involved himself in continuous work since his incarceration (ex 10). Reverend Baines the prison chaplain writes that the offender is "still in a state of shock" over the death, but is eager to seek counsel and improve his life (ex 6). The offender is described as a most co-operative and compliant inmate who is a hard working member of the maintenance team. This is a trusted position. 33Lauren Lockett observes in her affidavit that since the offender entered prison, she has noticed a change in him for the better. She states that he has made an effort to work and participate in various programs. Dr Nielssen assessed the offender as having good prospects for long-term rehabilitation. Michael Clark, a painting and decorating teacher, was thoroughly impressed with the offender's attitude during the trade based training program in which the offender participated. He found the offender to be extremely courteous and attentive, with a keen interest to learn a trade skill which had previously been alien to him. Two certificates demonstrate the education programs that the offender has completed (ex 8). 34Although the offender manifests limited remorse, his relative youth, the lack of prior violent offending and the positive steps taken whilst in custody suggest that he is unlikely to re-offend in this way again. I consider that the offender is unlikely to re-offend and has good prospects of rehabilitation: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. Accordingly, personal deterrence does not have a significant role to play in my sentencing task. I take into account the need for general deterrence. 35Both Mr Crown and Mr Smith submitted that when considering the parity principle, Brown's role in the commission of the offence was more than Lockett's. Mr Crown submitted that Brown was "the controlling mind" who recruited the others into a violent and cowardly endeavour because of his "personal offended pride" (CWS pars 19, 21). Mr Crown argued that his lesser degree of actual physical involvement was outweighed by his role that was instrumental in the deceased's death. Mr Smith referred to Brown's role as the leader of those engaged in the criminal enterprise. 36Brown is to be sentenced on the basis of extended joint criminal enterprise murder. 37I am not persuaded that Brown's culpability for the murder is greater than Lockett's. Although it is true that Brown obtained the shotgun that he knew was loaded, had the relationship with the deceased and initiated the confrontation with him, it was the offender's extreme act of violence in striking the deceased on the head with the shotgun that caused the deceased's death. I assess them as being equally culpable for the murder. 38There are however important differences in the subjective circumstances of these offenders which justify a lesser sentence for Lockett. His criminal history does not disclose any previous convictions for offences involving violence whereas Brown had committed two offences of reckless wounding whilst in company in 2009. I have assessed Lockett to a limited extent to be remorseful, whereas no finding of remorse is made for Brown. Furthermore, I found that Lockett is unlikely to re-offend and has good prospects of rehabilitation whereas I am unable to make such a finding for Brown. In Lockett's case personal deterrence does not have a significant role to play, whereas for Brown more weight is given to personal deterrence and the protection of the community. 39Victim impact statements from Ms Knaggs, Maria Vinas, the deceased's mother, and Virginia Ruiz-Sanchez, his sister, were read to the court. The contents of these statements cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's partner and his family and express on the community's behalf its sympathy and compassion for them. 40My attention was drawn by Mr Smith to various cases. They have been of assistance, but each case depends on its own circumstances. 41I find special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of the term of the sentence being the offender's need for psychiatric, drug and alcohol counselling upon release. I have determined that a non-parole period of 13 years is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63]. 42The offender was arrested on 18 November 2010 and has been in continuous custody ever since. This is the agreed date for the commencement of the sentence. 43Samuel Lockett for the murder of Wallace Ruiz-Sanchez, I convict you. I sentence you to a term of imprisonment of 18 years consisting of a non-parole period of 13 years which is to commence on 18 November 2010 and is to expire on 17 November 2023. I set a balance of term of 5 years which is to commence on 18 November 2023 and will expire on 17 November 2028. 44The earliest date of eligibility for your release to parole is 17 November 2023. 45I ask Mr Smith to advise the offender of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the offence for which he has been sentenced. ********** 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: 25 October 2013