Supreme Court New South Wales Medium Neutral Citation: R v O'Connor [2018] NSWSC 1734 Hearing dates: 14 November 2018 Decision date: 15 November 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Life imprisonment on each count Catchwords: SENTENCING – murder – offender shot three victims at close range with shotgun – body of one victim burned – female victim had left offender to commence relationship with a male victim – offender motivated by jealousy and humiliation – not guilty plea – whether life sentence should be imposed Legislation Cited: Crimes Act 1900 (NSW) s 19A(2) Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA), Pt 4 Div 1A, s 61 Cases Cited: Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295 Dean v R [2015] NSWCCA 307 R v Stanford, Vincent [2016] NSWSC 1434 Category: Sentence Parties: Regina Allan Geoffrey O'Connor Representation: Counsel: Mr L Shaw (Crown) Mr I Nash with Mr J Kellaway (Offender) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2015/189599 Judgment 1. HIS HONOUR: Allan Geoffrey O'Connor is to be sentenced after a jury found him guilty of the murders of Rebecca Webb, Stephen Cumberland and Jacob Cumberland at Hermidale on the night of 25-26 June 2015. 2. Murder is the most serious crime known to the law. The maximum penalty is imprisonment for life. Unlike in some other jurisdictions, in New South Wales a person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life: Crimes Act 1900 (NSW), s 19A(2). There is also prescribed (in the circumstances that apply to this case) a standard non-parole period of 20 years: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A. 3. The Crown case was that Mr O'Connor became jealous and enraged when he found out on the evening of Thursday 25 June 2015 that his girlfriend, Rebecca Webb, had gone home with Stephen Cumberland after having spent some time with him at the local pub, the Hermidale Hotel. Mr O'Connor went to the property where Mr Cumberland, and his son Jacob, lived and shot all three with a shotgun. He shot Stephen Cumberland in the chest and Jacob Cumberland and Rebecca Webb in the head. Death was immediate. As a further indignity, Mr O'Connor set fire to the caravan in which Stephen Cumberland had been killed. There was very little left of his body after the fire had burned out. 4. The Crown case was a relatively strong one. The defence case involved a denial that the accused was the perpetrator and the advancement of various theories as to others who might have had a motive. None of the alternative theories had any merit; most were based upon little more than pure speculation. They all suffered from the problem of explaining why somebody else with a motive to kill would have chosen of all occasions the night of 25-26 June 2015 to act upon it, coincidentally the same night on which a motive arose in Mr O'Connor. 5. Before describing what occurred and why it occurred – where possible – I should stress that when I state findings that are adverse to the offender they are findings about which I am satisfied to the criminal standard of proof of beyond reasonable doubt. There are some aspects of this case for which findings to that standard are not possible. I will signify findings of that type which have not been taken into account to the offender's detriment by using terms such as "probably", "possibly", "likely", "may" and the like. People and places 1. Hermidale is a very small village on the Barrier Highway between Nyngan and Cobar in central western New South Wales. There is a general store/post office; a hotel/service station; and a few houses. It was described as a "blink and you'd miss it sort of town". 2. Mr O'Connor lived about 1½ km from the hotel in a rented house on a property called "Cooma". He was aged 61, of slight build and relatively short stature. Many Hermidale residents who gave evidence in the trial spoke of him as a gregarious character who loved a beer and a chat. He was on a Centrelink pension but he chopped wood for people and did maintenance jobs to supplement his income. He held licences to possess firearms and when police searched his firearms safe after the murders they found five rifles, one shotgun and three pistols. One witness described him as being "pretty passionate about his guns". 3. Rebecca Webb was aged 36. She was in a relationship with Peter Collister from when she was about 18 years old. It was a relationship that was described as "having its ups and downs". In early 2015 Ms Webb came to Hermidale where she had a friend, Jacqueline ("Jackie") Moore. There she met Mr O'Connor and they formed a relationship. She decided to remain and she lived at his house. She wanted her daughter to come and live at Hermidale but Mr Collister resisted this. 4. Mr O'Connor was infatuated with Ms Webb. He spoke to friends and acquaintances about the new love in his life and took great pleasure in introducing her to them. One witness described him as "proud to have her as his girlfriend" and said that there was a "spring in his step". Another witness described Mr O'Connor as "besotted" with Ms Webb and thought that he was "ready to settle down with her". 5. Stephen Cumberland was aged 59. He married Suzanne Cumberland in 1975 and they had a number of children including Jacob who was born in 1987. Jacob Cumberland was aged 28 at the time of his death. Stephen and Suzanne Cumberland moved from Dubbo to Muswellbrook in the early 1990s where he worked at the Drayton Coal Mine. 6. In the early 2000s they purchased a property of about 4500 acres at Hermidale they called Nadja after one of their children. Stephen Cumberland went to the property during his times off work. At some point he and Suzanne separated. Jacob and his father were very close. Jacob moved to live at Nadja while he was a teenager. 7. Suzanne Cumberland remained in friendly contact with her former husband. She was aware of a number of relationships he formed. In 2011 he married Katherine Hyun and they remained as a couple until separating in late 2014. 8. Nadja was on the Laroo Road and there were various options as to how one might drive to it from the village of Hermidale. Making the most use of the Barrier Highway it was about 30 km from Hermidale. Avoiding the Barrier Highway it was almost 50 km. Whatever route was chosen, aside from the Barrier Highway the roads are mostly dirt and the conditions at night (lack of lighting; abundance of wildlife) are such that speed must be reduced. Events of Thursday 25 June 2015 1. A focus in the trial was upon events of Thursday 25 June 2015. There were a series of communications by text message between Ms Webb and Mr Cumberland of a sexual nature. Mobile phone tower information indicated that he was in the Dubbo region. 2. Ms Webb arrived at the Hermidale Hotel with her friend, Jackie Moore, at about 1.00pm. Ms Webb let Mr Cumberland know that she was at the hotel and he replied that he would be there later. Mr O'Connor arrived at the hotel just before 4.00pm and left at about 4.40pm. There was some interaction between him and Ms Webb in this time. Almost immediately after he drove away, Stephen and Jacob Cumberland arrived. They joined Ms Webb, Ms Moore and her husband, Gary Moore. 3. Mr O'Connor rang and spoke with Ms Webb at about 5.45pm. He told her to come home but she said that she was staying at the hotel. A short time later, Ms Webb asked one of the hotel licensees if she could stay the night in one of the hotel rooms. 4. Throughout the interactions by voice calls and texts it is clear that there was friction between Ms Webb and Mr O'Connor. He was defending himself against an allegation that he was "controlling" and there was mention by her of having been told in the past to "pack her bags". 5. Mr O'Connor returned to the hotel at about 6.15pm. He walked through to the pool room where he and Ms Webb appeared to argue. Ms Webb is seen in the CCTV footage to be gesturing to Mr O'Connor as if to be telling him to leave. He left via the side door and Ms Moore and Ms Webb followed. It seems there was an argument outside for a few minutes and then Ms Webb and Ms Moore returned. 6. There was a series of text messages to and from Mr O'Connor between 6.30pm and 7.00pm which could well have inflamed him. Jackie Moore, who may have been thought by Mr O'Connor to be speaking on behalf of Ms Webb, told him that "she did not want a controlling person so he should get over it; he should look in the mirror; and he was too old". (I have removed the "text" style spelling and the extreme expletives.) He replied with a text about Ms Moore interfering and trying to break the couple up. He then sent a text to Ms Webb in which he apologised for having been angry and said that he loved her and missed her. Jackie Moore then resent her earlier message. 7. Stephen and Jacob Cumberland and Rebecca Webb left the hotel in Stephen Cumberland's car at 7.30pm. They went to Nadja. The offender is told about Ms Webb leaving with Stephen Cumberland 1. At about 8.30pm, a hotel patron, Gilbert Nolan, left the hotel and went to Mr O'Connor's home. He stayed for about an hour and they had a few beers as they conversed. He said that Mr O'Connor was "pretty upset with what had happened earlier in the night". He was upset with "the fact that Stephen was at the pub with Beck". Mr Nolan told Mr O'Connor that he had seen Ms Webb leaving with Stephen Cumberland. Mr O'Connor spoke of a previous girlfriend that Stephen Cumberland had taken from him (other evidence established that this was so) and said, "He's done it again". Mr O'Connor said, in an angry voice, something about throwing Ms Webb's clothes out and she could come down and pick them up. 2. Mr Nolan gave evidence that Mr O'Connor also said, "if they come to his place that he'd shoot 'em". I am satisfied from the totality of Mr Nolan's evidence that he was referring to Stephen Cumberland and Ms Webb. The defence suggestion, which I do not accept, was that he was referring to Ms Webb and Ms Moore. But this dispute does not really matter – the critical point is that the thought occurred to Mr O'Connor of shooting someone. 3. Mr O'Connor started using his phone. He left a voicemail message for Stephen Cumberland at 9.04pm: "Yeah, well ya better get back to me real fucken quick ya dog". 1. Seven minutes later, Mr O'Connor sent a text message to Ms Webb: "U fucen bitct not with jack with steve gm on u thought so". 1. I take this to say that Mr O'Connor thought that Ms Webb was "a fucking bitch" because she was not with Jackie Moore but was being unfaithful to him because she was with Stephen Cumberland. 2. When Mr Nolan left he said to Mr O'Connor, "Don't do nothing stupid". Mr O'Connor did not reply. The bodies discovered 1. The following morning, Mark Smith and Rick Whittaker went to Nadja by a pre-arrangement with Stephen Cumberland to do some goating. The scene they came across was horrific. It is perhaps best to first describe what was at Nadja. 2. About 700 metres from the front gate there was an arrangement for habitation over an area of maybe 50m diameter. There was a large caravan in which Stephen Cumberland lived and a smaller one in which Jacob Cumberland lived. Near the large caravan there was an above-ground wading pool with walls about 50-60cm high. Scattered around were some sheds, a cool room, pallets, barrels, generators, old tyres and various motor vehicles. 3. Messrs Smith and Whittaker first found the body of Jacob Cumberland. It was face down in the dirt near to the large caravan and the wading pool. Next they found the body of Ms Webb which was face down in the wading pool. The large caravan had been completely burned out. Stephen Cumberland's body was later found on a bed within that caravan. 4. An autopsy examination revealed that Jacob Cumberland had been shot once to the rear of the left side of the head resulting in extensive destruction of the skull and brain. He had also been shot to the right cheek and there was an exit wound in his left lower cheek. Either shot would have been fatal. The muzzle of the shotgun from which the shots were fired was at very close range in both cases. There was expert opinion evidence, which I accept, that Jacob sustained the wounds in the order in which I have described them. It can be inferred that he was brought to the ground after sustaining the first wound and the offender put him to death by delivering another blast from the shotgun. 5. There were significant burns over much of Ms Webb's body, no doubt caused by the caravan having been set alight. She was shot once to the back of the neck which caused superficial wounds. Her blood was found on the ground some distance away from the wading pool (at a place denoted by "Marker 19") and on a nearby car. How that got there opens up a number of possibilities as to what happened at the time of the shootings but resolution of this is unnecessary. Ms Webb sustained another "massively destructive shotgun wound" to the left cheek which would have been immediately incapacitating and quickly fatal. It is therefore to be inferred that she was in the wading pool, probably trying to obtain relief from the severe pain of her burns, but cowering in unimaginable fear, when Mr O'Connor put her to death. 6. There was so little left of the body of Stephen Cumberland after the fire had ravaged the large caravan that officers had to cut the exposed wire frame of the bed in order to remove the remains without further disintegration. Plastic shotgun wadding found in one of his lungs indicated that he had been killed by a single discharge from a shotgun with the muzzle at close range at the time of discharge. Death would have occurred quickly. The forensic pathologist was able to say that Mr Cumberland was already dead before the fire. The offender's reaction 1. Mr O'Connor put on a "business as usual" front on the morning of 26 June 2015. The news started to break in the early afternoon and he feigned a concern that his "missus" was missing. He was interviewed by police that afternoon at the hotel. He gave a dishonest account of innocence. In an attempt to conceal his motive, he lied by saying that he had not known of Ms Webb being involved with Stephen Cumberland until he had been told about it by Jackie Moore a little earlier that day. 2. Police arrested Mr O'Connor when he attended the Nyngan police station by arrangement on Sunday 28 June 2015. He was refused bail and has been in custody since. The offender's personal circumstances 1. Mr O'Connor did not give evidence in the trial or in the sentence proceedings. Part of his defence before the jury was to rely upon prior good character which was based upon various statements by witnesses to the effect that he was not jealous or controlling in his relationships with women; that he was honest; and that he was not a person who was prone to violence. It was only revealed in the sentence proceedings that he has a criminal record but it is rather insignificant. Aside from a number of drink-driving matters, the only offences as an adult have been an assault in 1986 and an assault occasioning actual bodily harm in 1992. 2. Apart from this, I know little more about the offender than what I have already mentioned. He is now aged 64. He has been married twice before. He moved to Hermidale in about 2008. He had an interest in shooting and fishing. He was well known in the Hermidale community and was a regular drinker at the hotel. He was described as a sociable character. Apparently he has a daughter and step-daughter who have been visiting him in custody. Family victim impact statements 1. I pause at this point to acknowledge the presence of quite a number of family members and friends of the deceased. Their presence shows that there is a memory of three people who were loved which will endure. 2. Five family victim impact statements were read at the hearing yesterday. I am grateful for what their authors told me and all who were present about the wonderful people that were Rebecca Webb and Stephen and Jacob Cumberland and what a loss their deaths have caused. The sheer senselessness of it is impossible to fathom. I am afraid that the question, "Why", has no sensible answer. 3. As Rebecca's sister put it, one may only hope that now that justice has been served you will be able to grieve and heal as time goes on. You have suffered the most terrible thing – but you have described some wonderful memories that I hope may sustain you in the dark periods. All of you have my sincerest sympathy. Seriousness of the crimes 1. I am satisfied that Mr O'Connor murdered Stephen Cumberland and Rebecca Webb because of base jealousy and humiliation; in other words because of his personal inadequacy. His thinking was that Mr Cumberland had taken a girlfriend off him before and now he had done it again. This angered and humiliated him, particularly because of the public display of events at the Hermidale Hotel on the afternoon and evening of 25 June. 2. Jacob Cumberland was murdered simply because he was present. He had to be eliminated as a potential witness. 3. I should mention three particular features that are part of the assessment of the seriousness of these crimes and/or the sentence to be imposed. 4. First, Rebecca Webb was in an intimate domestic relationship with Mr O'Connor. She was killed because of his jealousy about her finding interest in another man. Crimes of violence against domestic partners require a substantial emphasis upon deterrence in the sentencing response. That a person can extinguish the life of their partner because he or she might show an interest in another person is the antithesis of what a mature, humane and law-abiding society will tolerate. 5. The second point is that these murders occurred in someone's home. It was a serene and remote environment but a place where the three victims were entitled to safety and security. The offender's invasion of that home environment with his murderous actions is an aggravating factor. 6. The third matter concerns Stephen Cumberland and the offender's mutilation of his body by setting fire to the caravan after he had been shot to death. One can only assume that this was the mark of Mr O'Connor's desire to punish and seek revenge for having been humiliated. It is yet another matter of aggravation. 7. Counsel for the offender argued that it should be found that Mr O'Connor did not form an intention to kill until he came across Stephen Cumberland and Rebecca Webb in bed at Nadja. Counsel submitted that when Mr O'Connor left Cooma his intention was simply to go and confront the pair. It was submitted that the fact that he took a shotgun and ammunition with him could be explained by Mr O'Connor being aware that there were firearms at Nadja. 8. Like many aspects of the defence case at trial, this was simply fanciful. It suggests that Mr O'Connor intended to go to the Nadja property in the middle of the night just to remonstrate with the couple. However, anticipating that he might be met with an armed response, he took his shotgun and plenty of ammunition in order to shoot anyone who might threaten to shoot him. 9. Allied with the above submission, it was contended that "it could be said that [Mr O'Connor] had had an entirely out of character 'snap', affected by alcohol as he was, rather than carefully planning and carrying out cold blooded murders upon people with whom he desired a calculated revenge". One problem with this submission is that it is impermissible to take into account self-induced intoxication as a mitigating factor: Crimes (Sentencing Procedure) Act, s 21A(5AA). And whilst it can be said that it was "out of character" in the sense that Mr O'Connor had not done anything like this before, it is difficult to see how this can be a mitigating factor. It is not a less serious case of multiple murder because the perpetrator did not have a history of violence. 10. I am satisfied that the thought of a shooting response occurred to Mr O'Connor during his conversation with Gilbert Nolan when he heard the humiliating news that Stephen Cumberland had taken another girlfriend from him and that Ms Webb, with whom he was infatuated and planned a future, had betrayed him. Probably after cogitating on this for a while after Mr Nolan left, he gathered his shotgun and a sufficient quantity of ammunition as well as his Dolphin torch and drove to Nadja. It would have been a slow drive at night, at least half an hour, which would have given him time to think through what he was going to do. 11. On arrival at Nadja it is likely that Mr O'Connor parked at the front gate and made his way on foot up the 700m of driveway in order not to forewarn the occupants of his arrival. He probably went first to the large caravan and there saw Stephen Cumberland and Rebecca Webb. He shot Stephen and set fire to the caravan. Rebecca got caught up in the fire and suffered some serious burns. She managed to escape. The offender went after her. He may have shot her elsewhere first but we know for sure that he discharged the fatal shot when she was in the pool. Jacob Cumberland was no doubt aroused by all the noise and he was shot and killed as he went to investigate. 12. This is all a matter of inference from the known facts. It must be stressed that the state of the crime scene was such that not all facts can be determined with precision. What I am satisfied beyond reasonable doubt about is that Allan O'Connor was responsible for the most brutal slaying of three innocent people. It is conceded that he intended to kill, rather than merely cause serious harm. That is obvious from his firing at close range into the chest of Stephen Cumberland. It is obvious from his callous and brutal shooting of Rebecca Webb as she cowered in the wading pool. And it is obvious from his firing two shots into the head of Jacob Cumberland, the last probably as he lay prone on the ground. Allan O'Connor did not simply intend to kill – he intended to blast every essence of life from each of his victims by discharging his shotgun at their chest or head at close range, thereby to cause the most horrific injuries imaginable. 13. On the objective facts alone, this is clearly a case in the very worst category of murder. That finding applies to each of the three murders. Assessment of sentence 1. Section 61 of the Crimes (Sentencing Procedure) Act provides that a life sentence must be imposed if the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. That does not mean that a sentence for a specified term cannot be imposed. 2. Counsel for the offender provided a table of case summaries from the website of the NSW Public Defenders relating to sentencing for multiple murders. There was no suggestion that any particular case was comparable to the present case. Many of the cases pre-date the introduction in 2003 of the standard non-parole period regime and so they are of limited or no utility for that reason alone. I have looked at all of the summaries but in the end I have come to the view that this case is best determined upon its own facts and in light of the statutory guideposts and provisions as well as general sentencing principles. 3. Many of the cases that are concerned with the principles attending the imposition of life sentences were reviewed in R v Stanford, Vincent [2016] NSWSC 1434 at [112]-[127]. Matters relevant to the present case include the following: "[115] Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court is to impose a sentence of life imprisonment if it is satisfied that the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. [116] It is the combined effect of the findings concerning those four indicia in s 61(1) that must be considered: R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [52]-[54]. The Crown must prove beyond reasonable doubt that a case falls within s 61(1): R v Merritt at [35]. [117] Section 21(1) of the Crimes (Sentencing Procedure) Act provides that, even though liable to a sentence of life imprisonment, an offender may receive a sentence for a specified term. It has been said that a court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty and then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty: R v Miles [2002] NSWCCA 276 at [204]. See also R v Valera [2002] NSWCCA 50 at [8]; and R v Merritt at [37]. [118] In R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469, it was held that the common law in relation to imposing the maximum penalty for murder still applied. Under the common law the maximum penalty is intended for cases within the "worst case category": Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46. Wood CJ at CL in R v Harris referred to authority for what constitutes the 'worst case' as follows: [84] The features required for qualification in the 'worst case category' were defined in Twala NSWCCA 4 November 1994, where it was said: 'in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…' [85] 'Heinousness' has been described as follows: 'The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one'. R v Reginald Keith Arthurell (Hunt CJ at CL unreported 3 October 1997). [119] A life sentence may be imposed even though an offender has pleaded guilty and/or has no previous criminal history: R v Miles at [213]; Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 at [34]; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [157]-[158]; Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at [37]. … [121] Even if there is some prospect of rehabilitation there have been cases in which life sentences have been imposed: R v Baker (Court of Criminal Appeal (NSW), 20 September 1995, unreported); R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unreported); and Knight v R at [23]. … [123] The mutilation of the deceased's body can be taken into account in the assessment of seriousness: R v Knight at [28]-[29]." 1. Further reference should be had to Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295 concerning sentencing for multiple murders which occur at the same time and place and where it may be appropriate to take into account the whole of the conduct in determining the level of culpability involved in the commission of each offence. This is directly applicable to the present case. 2. Counsel for Mr O'Connor sought to distinguish Adanguidi v R and also Dean v R [2015] NSWCCA 307 on the basis that they were cases in which the offender had a single purpose in killing each of the multiple victims whereas in this case there was one purpose which applied to the killing of Ms Webb and Stephen Cumberland and another that applied to the killing of Jacob Cumberland. No authority was cited in support of a proposition that a different approach should be taken where an offender killed multiple victims at the same time and place but had differing purposes. I reject the submission. What was submitted to be a material difference between this case and those two cases is a distinction of no significance. 3. In this case there is nothing that mitigates the objective gravity of these most heinous crimes. There are a few matters personal to the offender that are favourable to him (e.g. no significant prior record, favourable prior character) but they are not such as can mitigate the sentence. 4. I am not persuaded, and the Crown did not submit, that community protection or future dangerousness are factors relevant to the assessment of sentence. Deterrence, on the other hand, is an important matter; it almost always is in sentencing for the crime of murder. Retribution and punishment must also be strongly emphasised in the sentencing response given the gravity of each of the crimes. Considered individually, and more so in the context of their entirety, they are easily within the worst case category. 5. I am satisfied beyond reasonable doubt that Mr O'Connor's level of culpability is at such an extreme level that the community's interest in the combined effect of deterrence, retribution and punishment can only be served by the imposition of life sentences. I am not persuaded that I should impose anything less. Sentence 1. For each of the murders of Rebecca Webb, Stephen Cumberland and Jacob Cumberland, the offender is convicted. 2. Upon each conviction he is sentenced to imprisonment for life. ********** 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: 15 November 2018