R v Gordon Reginald Cramp [2015] NSWSC 271

Supreme Court New South Wales

Medium Neutral Citation: R v Gordon Reginald Cramp [2015] NSWSC 271 Hearing dates: 21 November 2014; 6 February 2015 Date of orders: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Common Law Before: Adams J Decision: Gordon Reginald Cramp is sentenced to an overall term of 40 years imprisonment commencing on 2 March 2013 comprising a non-parole period of 30 years and a balance of term of 10 years. The offender will be eligible to be considered for parole on 1 March 2043. Catchwords: CRIMINAL LAW – Sentencing - Murder Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 19A, 44 Category: Sentence Parties: The Queen (Plaintiff) Gordon Cramp (Defendant) Representation: Counsel: Ms M. Cinque (Plaintiff) Mr T. Edwards (Defendant)

Solicitors: Director of Public Prosecutions (Plaintiff) Sydney Criminal & Traffic Lawyers (Defendant) File Number(s): 2013/56223 Publication restriction: None

Judgment 1. Introduction 2. Gordon Reginald Cramp was convicted by a jury of the murder on 21 February 2013 of Lance Hargreaves. Mr Hargreaves had died when his spinal chord was completely severed by a stab through the neck. Mr Cramp gave evidence denying that he had struck this blow. The guilty verdict necessarily entailed a rejection of the critical parts of Mr Cramp's evidence concerning the elements of the offence. There is no agreed statement of facts and it is therefore necessary for me to determine those which are relevant to the task of sentencing him. The facts emerge from the evidence of witnesses, whose accounts were reliable as to the important matters though, in some respects, their recollections may be mistaken; as to other matters, several witnesses were likely not telling the truth. As to any matter adverse to Mr Cramp which is susceptible of doubt, I have given him the benefit of that doubt, subject to the inferences following from the verdict of the jury. Facts 1. The facts of the killing itself are straight forward. At about 4am on 21 February 2013 Mr Cramp went to the workplace where he had formerly been employed. He had two knives with him, carried in a small bag. Mr Hargreaves was at work on the overnight shift. Using one of the knives, Mr Cramp stabbed Mr Hargeaves through the neck, severing his spinal cord. He immediately dropped to the ground and was dead very shortly after. Aside from it being self-evident that Mr Cramp had been angered in some way, perhaps by an earlier exchange with Mr Hargreaves, his motive for killing him is ultimately a matter of speculation. It is, at all events, of little moment. Given the nature of the blow, in which the knife went completely through Mr Hargreave's neck from side to side, I am satisfied beyond reasonable doubt that it was inflicted with the intention of killing him. 2. Although the preceding events do not, to my mind, shed any real light on why Mr Cramp killed Mr Hargreaves or upon his frame of mind at the time, I should set out the salient features to provide the context for the offence itself. Unsurprisingly, it is not altogether easy to reconcile the accounts of all the witnesses who were present at the yard at the material time and I have not troubled to undertake any analysis of the differences. The following is sufficiently accurate for present purposes. 3. In the early morning of 21 February 2013 Mr Cramp was collected by a friend, Mr Seth Roberts, who drove him to the latter's home in Werrington. Shortly after they entered the premises Mr Cramp became distressed about difficulties he was experiencing in his relationship with his partner. He had brought with him a small shoulder bag. Whilst in Mr Roberts' premises Mr Cramp went into the kitchen and injected ice into his arm and also smoked couple of cones of marijuana. He was there for about an hour. He then asked Mr Roberts to drive him to his former workplace at Solveco (a waste storage and destruction plant) to "pick up", meaning that he wished to obtain some drugs. Mr Roberts agreed. They left at about 4am. Mr Cramp left behind (though Mr Roberts only discovered this on his eventual return) a mobile phone, a wallet and two knife sheaths from which he had removed the knives, placing them in his bag. He said he brought the knives from his home because they were in the cupboard and "I knew I was walking along roads that had, you know, countryside roads; I thought I would take them in case I needed them for protection". (Mr Cramp said that he took one knife out of the sheath to take with him and left the other in its sheath at the house. I accept Mr Roberts' evidence that he found only the sheaths when he returned and, accordingly, am satisfied that Mr Cramp took both knives with him, leaving the sheaths behind. Nothing of significance turns on this difference.) One was described by Mr Cramp as "an army style knife" and the other as a "US military style knife". He said that he did not carry the knife in its sheath because he "wasn't thinking clearly" as he had "just been smoking pot, shooting up ice". Whether he was thinking clearly or not, I infer that he removed the knives from the sheaths because he had some idea that he might use one or both of them and did not wish to be hampered by the sheaths. 4. Mr Roberts parked his car at the front of Solveco's premises perhaps 40 or 50 metres from the front gate and waited in the car whilst Mr Cramp went into the yard, a little time later coming out, calling Mr Roberts to come inside. He had his bag with him. When Mr Roberts entered the premises he noticed a Mr Maizen, one of the truck drivers, and they had a brief conversation next to Mr Maizen's truck. Mr Cramp and Mr Roberts went to the lunchroom, the former coming out shortly after and speaking with Mr Maizen. Mr Maizen said that Mr Cramp asked him whether "Bob" [Peterson] was at the yard. Mr Maizen told him in effect that he did not know and that he had to go. Mr Cramp made some insulting remarks about other employees and promised to get him a pay rise, an absurd suggestion given his situation. Mr Maizen did not respond to this conversation, going a short time later to the lunchroom for a cup of tea. As he walked out of the lunchroom to go to the toilet shortly after, he saw Mr Cramp walk out of the locker rooms and stab the lid of one of the Otto bins lined up against the wall of the lunchroom with a large bladed hunting knife, he thought over a foot long and close to two inches in width. Mr Maizen did not say anything to Mr Cramp but walked past him to the toilet and returned to his truck. He saw Mr Cramp climb on the back of a tipper truck and, reaching above his head, holding orange coloured wires in one hand and the knife in the other, tried to cut the wires to the video security camera near that point. Mr Maizen asked him what he was doing but Mr Cramp did not respond. Shortly afterwards, Mr Roberts saw Mr Cramp climb a large steel post to which a security video camera was attached and start pulling on the wires of the camera. He was holding a knife in his hand. This went on for a minute or two. Mr Cramp then jumped down from the post and walked back into the lunchroom. Mr Roberts asked him why he was doing it and he said, "I had to do it". 5. Mr Hargreaves was in the lunchroom watching television and he and Mr Cramp had a conversation which, to Mr Roberts, seemed like a chat between old work mates. Mr Cramp then left the lunchroom again and called out called out to someone, "Come over here". Mr Roberts thought that Mr Cramp talked with someone but he did not hear what was said. A Mr Woodyatt, who was on the same shift as Mr Hargreaves, said that Mr Cramp asked him to call Mr Peterson and he refused. It seems to me that this is the conversation to which Mr Roberts referred. (Although Mr Woodyatt – whose recollection was somewhat confused as a result, I think, of later events which disturbed him greatly – placed it, as I understand his evidence, in the lunchroom, I prefer Mr Roberts' evidence on this point, but this does not matter.) Mr Woodyatt noticed that Mr Cramp was carrying a bag hanging around his neck or shoulder. He went out of sight and had a cigarette. Mr Cramp returned to the lunchroom and asked Mr Hargreaves to make a phone call to Mr Peterson but Mr Hargreaves also refused. Mr Cramp became insistent, Mr Hargreaves refused again, got up holding a magazine and walked out to the front gate to his car, parked a short distance outside. Mr Cramp and Mr Roberts walked out just behind him. It seemed to Mr Roberts that Mr Cramp was speaking to Mr Hargreaves in an agitated tone but he could not recall what was said. Mr Hargreaves kept saying, "No" in a firm voice. Mr Hargreaves opened the car door and put the magazine inside, at which time Mr Roberts was talking once more to Mr Maizen at his truck. Mr Cramp and Mr Hargreaves were standing at the car talking as before. Mr Maizen drove out of the yard, said goodbye to them and drove away. Eventually Mr Hargreaves in a firm loud tone said "Enough". He locked his car and walked back through the main gate, Mr Cramp following him. 6. Wooden pallets were stacked in the yard between where Mr Roberts was standing and the lunchroom towards which Mr Hargreaves and, it appeared, Mr Cramp were walking. There was a narrow winding path through the stacks and Mr Roberts lost sight of Mr Hargreaves and Mr Cramp. Very shortly after that he heard and partly saw what he thought was a scuffle and the sound of someone falling over and Mr Cramp yelled to him, "Get out and go to the car". He was still behind the pallets at this point. Mr Roberts turned and ran to the car followed by Mr Cramp who was yelling, "Get out of here". He also heard him shout, "You better not say anything" but Mr Roberts did not know to whom he was speaking. Shortly after Mr Cramp left the yard and got into the passenger seat of Mr Roberts car, holding the bloodstained knife with which, I am satisfied, he had just murdered Mr Hargreaves. Mr Roberts asked, "Did you stab Lance?" but got no reply. He asked, "Why did you do it?" but Mr Cramp just told him, "Drive and get out of here". 7. In the meantime, Mr Woodyatt had finished his cigarette and came back towards the door to the lunchroom. As he did so, he saw Mr Hargreaves on the ground bleeding about five metres away. This was perhaps 10 or 15 minutes after he had left Mr Cramp to go out of sight. Mr Woodyatt said as he was walking towards the body, he heard someone yell out, "Adam, you fat cunt, where are you" but he did not recognise the voice. He ran away and hid under an excavator. Shortly after this that he heard a car start up and leave. He (mistakenly) thought that someone may still have been in the yard and remained hidden until about 15 or 20 minutes later he heard Mr Jones, another employee, turn up. After a brief exchange, Mr Woodyatt, who was in a state of panic, ran away, got his car and drove up the road looking for a Police car or an ambulance. I am satisfied that the person who yelled out to Mr Woodyatt was Mr Cramp. 8. Mr Roberts had driven some distance at Mr Cramp's direction when he was told to stop. Mr Cramp alighted from the vehicle and walked away. Mr Roberts then returned home. He found out about the death of Mr Hargreaves on the radio on his way to work later in the morning. (Mr Roberts gave a somewhat more elaborate account of these events to the police when he was interviewed on 21 and 22 February 2013. These differences are not of any present importance.) 9. The wound was estimated by the pathologist to be 12 cm long, going from right to left and cutting through the space between the second and third cervical vertebrae, completely severing the spinal cord. 10. I should mention that Mr Cramp had visited the Solveco yard earlier that night, at sometime between midnight and 1am. Mr Woodyatt saw (but did not hear) a conversation between Mr Hargreaves and Mr Cramp at this time. Mr Woodyatt asked Mr Hargreaves what he wanted to speak to him about. Mr Hargreaves told him, "I couldn't understand him. He just kept on raving on about, 'you owe me big time'". 11. Four video cameras had been interfered with by Mr Cramp. Although for the purposes of assessing Mr Cramp's evidence, the times and sequence at which this occurred was important, this does not presently matter much. The video record shows camera 4 was the first to be interfered with (but it was only dislodged and continued to record the ground) at 4:38am; camera 1, one of the two caged cameras at the front gate stopped at 4:39:50; camera 3, the other camera on this post stopped at 4:40:03; camera 2 at another location stopped recording at 4:49:06. Mr Cramp said in his evidence that, when he entered the premises, he saw two surveillance cameras on a post and cut the wires to them because he wanted to obtain drugs from Mr Maizen and did not want him to be in trouble for supplying the drugs to him. He said (but this cannot be correct) the last camera dislodged was camera 4 because it might have recorded Mr Maizen's presence at the yard, after which he departed with Mr Roberts. This account was necessarily rejected by the jury. 12. Although a warrant for Mr Cramp's arrest was issued on 22 February 2013, he presented himself, at the Windsor Police Station on 2 March 2013 and was taken into custody. Neither of the two knives carried by Mr Cramp on the night of Mr Hargreaves' murder has been found. 13. It is not necessary to deal with Mr Cramp's evidence in detail. He said, and I am prepared accept it as likely, that he went to Solveco in the hope of obtaining drugs. He said he asked for some amphetamines from Mr Maizen who told him to go to the office and wait whilst he emptied his truck. He said that, whilst he was waiting, he became bored and, taking the knife from his bag, stabbed the lid of one of the wheelie bins in frustration. This evidence may have been truthful. Mr Cramp deposed to conversations with Mr Woodyatt and Mr Hargreaves concerning the earlier theft of tools from the yard and about contacting Mr Peterson. He said that after stabbing the bin he walked over to the camera on the post underneath the shed, and decided to disable it so that there would be no video record of him and Mr Maizen being at the yard together, since Robbie Peterson (and perhaps others) would know that the only reason for him being there was to try to get drugs from Mr Maizen and he did not want Mr Maizen to get into trouble. Of course the other two persons who would have known that he was there at the same time as Mr Maizen were Mr Hargreaves and Mr Woodyatt. Mr Cramp also said that he was thinking that Mr Maizen might have had some products that he brought back from a job and he was concerned that if he was seen walking out with any of the products from the factory, that Mr Maizen would get in strife, another reason then for disabling the video cameras. Mr Cramp said that he took the knife out of the leather sheath and, brought it with him to Solveco because he "might have to cut open a pallet or something and look through it". He said that he did not need the sheath because he carried the knife in the bag. He said that he was not thinking clearly because of the ice and marijuana he had consumed. There is some evidence suggestive of irrationality, but it goes no further than this. 14. Of course, there can be only one reason for attempting to disable the video cameras, namely that he did not want them to record what he may have intended to do. Perhaps he thought that disabling them might also expunge the recordings already made. At the highest however, this suggests that he intended to do something illegal or, at all events, that he did not wish the management of Solveco to be aware of, including perhaps that they might think that he was present at the yard hoping to obtain drugs from Mr Maizen and therefore get Mr Maizen into trouble. Since I do not accept Mr Cramp as a credible witness, I am unable to conclude that the reasons he gave for disabling the cameras are more probably true or not, except of course that he did not want a record to be made or kept of what he did or intended to do in the yard. It is not necessary to speculate further about this issue, since I cannot infer (adversely to him) that he disabled the cameras in order, in some way, to either destroy evidence or prevent evidence from being obtained of an intended assault on Mr Hargreaves. On the other hand, I am not prepared to conclude that his actions were irrational and the result of some disordered thinking brought about by the drugs he had injected. Since the inferences reasonably capable of being drawn from this evidence are uncertain, and do not enable a conclusion to be drawn more probably than not that he was acting irrationally, I put the evidence to one side except as forming part of the narrative of events. Assessment of objective seriousness 1. I am not able to conclude beyond reasonable doubt that Mr Cramp took the knives to Solveco for the purpose of killing someone, let alone Mr Hargreaves. However, I have no doubt that, when he followed Mr Hargreaves from his car into the yard and then made his way through the stacked pallets, removing the knife from his bag as he did so, he had it in his mind to kill him. Mr Roberts heard no sounds of discussion, let alone raised voices. Mr Cramp intended no negotiation. There was some form of brief scuffle. Mr Hargreaves was found with his hand in his jacket pocket and had not in any way attacked Mr Cramp. I cannot say what Mr Cramp's motive was but I am satisfied that he fully intended to do what he did. I am satisfied that after he killed Mr Hargreaves he called out to Mr Woodyatt to check whether he had seen what had happened. Whatever else this portended, it did not suggest a man not in his right mind. Although in fact Mr Woodyatt had not seen the attack, he was in grave danger and his decision not to respond, though made in panic, was a wise one. Mr Cramp left the scene and, in his immediate exchange with Mr Roberts, evidently displayed no emotion, certainly no remorse. Mr Cramp said in evidence that he "could not say he was in his right mind but [although he] was affected by drugs" he agreed he knew what he was doing and had no problems with his memory about what he did. The mere fact that it is not possible to identify a motive does not mean that the killing was unreasoned or the result of some confusion of mind or understanding. I am satisfied that Mr Cramp was not significantly affected, let alone intoxicated, by drugs when he killed Mr Hargreaves. I accept there appears to be some sign of irrationality in some of his conversations that night but I do not consider that this was to such a degree as to afford any mitigation or otherwise affect the seriousness of his crime. 2. The circumstances of this crime demonstrate that Mr Cramp is a dangerous individual and it is necessary that his sentence reflect the need for the protection of the community whilst not, of course, exceeding the punishment called for by the circumstances of the offence itself or amounting to preventative detention. The very inability to identify a motive, to my mind, increases rather than reduces his dangerousness. This conclusion is re-enforced by his criminal record. Leaving aside a number of relatively trivial motor vehicle and drug offences, he was convicted in July 2003 of committing in June 2002 an offence of maliciously inflicting grievous bodily harm with intent to do so. His initial sentence was reduced by the Court of Criminal Appeal in July 2004 to an overall term of 7 years imprisonment with a non-parole period of 5 years commencing on 21 June 2002. On his release from prison, he was convicted on 22 September 2008 of assault occasioning actual bodily harm and placed on a s 9 bond for three years, then breaching that bond on 10 January 2010 by committing a common assault and contravening an apprehended violence order for which he was imprisoned for 9 months with a non-parole period of 2 months commencing on 28 May 2010. On 9 November 2012 he was charged with another assault occasioning actual bodily harm and was on bail for that offence when he committed the present offence. 3. The circumstances of the malicious wounding charge committed in June 2002 are troubling. The victim was a relative of Mr Cramp's then de-facto who offered her emotional support during the breakdown of the relationship. On the day in question Mr Cramp was driving near his workplace and saw the victim walking past, skidded to a halt, took a U-turn and came alongside. He took a knife from the glove box, alighted and chased the victim who had seen him and fled. Mr Cramp called, "I'm going to stab you". When he tried to jump over a fence, Mr Cramp stabbed him in the back to the right side of his spine and said, "I am going to kill you, you dog" reinserting the knife into the victim before pulling it from his back. The victim fell to the ground. Mr Cramp left with his knife, got back into his vehicle and drove away. The victim suffered a lacerated right lung and a perforated right diaphragm with a fractured mid-thoracic right rib. The seriousness of his injuries complicated his recovery and he remained in the Intensive Care Unit of the hospital for a little over a month. He suffered continuing and significant permanent injuries. As here, there was no provocation, the victim was pursued (although in the present case, Mr Hargeaves had not fled), he was attacked with a knife that was to hand, his wounds may well have been fatal, no assistance was offered, and Mr Cramp fled the scene. Subjective features 1. Mr Cramp did not give evidence on sentence and proffered no evidence as to his subjective factors. The following facts are drawn from the judgments dealing with the 2002 wounding charge. They are not adverse but do not assist him in any significant respect. He was the elder of two children, raised in Western Sydney whose father, with whom he was close, died when he was 15, this resulting in his starting to use illicit drugs. He left school at the age of 15 years having obtained his School Certificate, since when he had been engaged in employment of various kinds. It appears that Mr Cramp commenced using amphetamines in 1990 and became addicted to them. It was accepted that he may have been affected by that drug when he committed the wounding offence. Perhaps somewhat ironically, he completed an anger management course in 2002 and undertook a drug and alcohol rehabilitation. It appears that, on his release from prison after serving his sentence for the maliciously causing grievous bodily harm offence he found employment although, as has already been mentioned, he was unemployed at the time of the present offence. He has had a relationship which, however, ended the day before he killed Mr Hargreaves. Mr Cramp is now almost 40 years of age. He has undertaken a number of courses whilst in prison and his teachers speak well of him. Victim Impact Statements 1. Mr Hargreaves' daughter Lorraine Smith, his partner Karen Buchanan and brother Thomas each made Victim Impact Statements which were read to the Court. They bear eloquent testimony to the generosity and loving kindness which this decent, hard-working man showed to his family and friends, as well as to the dark and unremitting pain and grief they have and continue to have as a result of his appalling death. This Court can do nothing to ease these feelings or lighten their burden, but I wish to acknowledge it and express my personal condolences at their great loss. 2. The whole community is affected by the killing of one of its number. It is an aspect of this important understanding that the Court is required to take into account the harmful impact on the victim's immediate family as an aspect of this reality. At the same time, no right-minded person would think that it would be appropriate to reduce a sentence for murder even by a day because, as it happened, the victim had no family, was alone and friendless with no one to grieve at his or her death. By parity of reasoning, the sentence cannot be rightly increased because the victim had a family. One life must be valued as much as another and the criminal taking of that life is equally wrong and must be equally punished whatever the family circumstances of the victim might happen to be. 3. Discussion 4. The maximum penalty for the offence of murder is life imprisonment: s 19A, Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non-parole period is 20 years. These two periods are markers, the maximum sentence being applicable to a case of the gravest seriousness exhibiting features of very great heinousness and the absence of mitigating facts. The Crown has rightly submitted that, although this is indeed a case of great seriousness where the protection of the public must be given considerable weight, a life sentence would not be appropriate. The standard non-parole period of 20 years applies to cases falling into the middle of the range of objective seriousness. However, although this provides a benchmark or signpost to an appropriate non-parole period, it is far from the only element to be taken into account. Many cases of murder occur when there has been no intention to kill but, rather, an intention to cause grievous bodily harm. Generally speaking, the intention to kill will make the crime more serious than an intention to cause grievous bodily harm. Although I would not, as is clear, describe the attack as pre-meditated, it was decided upon significantly, albeit only a short time, before it was undertaken, and required the removal of the knife from the bag Mr Cramp was holding. This is not a case in the worst category, but its objective seriousness is very great. Furthermore, the fact that Mr Cramp is a dangerous man who has already committed an attack of a similar though less serious kind must give rise to an emphasis on the need for personal deterrence to protect the community. 5. This is Mr Cramp's second extremely violent unprovoked knife which strongly suggests, at least, that his prospects for rehabilitation are not good. I do not say that it is not possible that he might be rehabilitated. It may be that, like many offenders, aging itself will bring about some change of mind and attitude. 6. There is no evidence which might amount to special circumstances justifying a variation of the statutory ratio stipulated in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 7. Orders 8. I make the following order: 1. Gordon Reginald Cramp is sentenced to an overall term of 40 years imprisonment commencing on 2 March 2013 comprising a non-parole period of 30 years and a balance of term of 10 years. The offender will be eligible to be considered for parole on 1 March 2043.