R v Billings
[2012] NSWSC 1020
•31 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Billings [2012] NSWSC 1020 Hearing dates: 10, 12, 16-20, 23-24, 26-27, 30 April 2012;1-3, 7, 9-11, 14-17, 21-25, 28-30 May 2012;6 June 2012; 24 August 2012 Decision date: 31 August 2012 Before: Barr AJ Decision: Craig Billings sentenced to imprisonment. A non-parole period of 30 years is set. That period will be taken to have commenced on 30 July 2007 and will expire on 29 July 2037. The balance of the term of the sentence is 10 years, expiring on 29 July 2047. The first day on which Mr Billings will become eligible for release to parole will be 29 July 2037.
Catchwords: CRIMINAL LAW - trial by jury - convicted of five offences - sentence - aggregate sentences - robbery - murder - armed with firearm - discharge firearm - aggravated take motor vehicle - no remorse - aggregate sentences Category: Sentence Parties: Regina (Crown)
Craig Ronald Billings (Defendant)Representation: Counsel:
T Bailey (Crown)
A Webb/S Fraser (Defendant)
Solicitors:
Director of Public Prosecutions (Crown)
O'Brien Solicitors (Defendant)
File Number(s): 2009/236209
REMARKS ON SENTENCE
Following a trial by jury the offender, Craig Ronald Billings, was found guilty of the following offences -
1. On 21 December 2006 at Randwick, while armed with an offensive weapon, he robbed Alan Veney of certain property and at the same time wounded him.
2. On 6 January 2007 at Surry Hills, while armed with an offensive weapon, he assaulted Elie Stanbouli with intent to take a motor vehicle and took the motor vehicle without Mr Stanbouli's consent.
3. On 20 January 2007 at Redfern he shot at Constable Justin Knight with intent to murder him.
4. On 4 February 2007 at Canley Vale he murdered Raymond James Brown.
5. On 8 February 2007 at Cabramatta, while armed with an offensive weapon, he robbed Judith Anderson of certain property.
The facts of the five offences may be summarised as follows.
The Randwick offence
At about 2.45am on 21 December 2006 Mr Alan Veney was walking along the footpath in Avoca Street, Randwick, having finished his shift as a taxi driver. As he did so a van stopped beside him. The offender was seated in the front nearside seat wearing a balaclava. The window was open. The offender rested the barrel of a sawn-off 0.22 rifle on the door frame, pointing it at Mr Veney, and ordered him to hand over his property. He asked for his watch and his wallet. Mr Veney was not cowed. He told the offender that he had neither, but threw him a satchel containing papers. The offender got out of the van, still pointing the rifle at Mr Veney, and patted him down, searching for things to steal. He ordered Mr Veney to hand over a backpack that he had on his back. Mr Veney refused to do so and they began to struggle for its possession. Mr Veney won. He tried to edge away but the offender said that he would shoot if he did not hand over the backpack. Mr Veney would not give in and the offender fired two or three shots at the footpath near Mr Veney's feet. They did not strike him and I do not think that they were intended to. Then, however, the offender raised the rifle and pointed it at Mr Veney. He realised that the offender was going to shoot him and turned away. The offender shot him in the buttock. At some point in the confrontation the offender's balaclava fell off. The driver of the van called out and the offender returned to the van and got away. Mr Veney picked up the balaclava, called the police and was taken to hospital. Police gathered a number of discharged cartridge cases at the scene. The balaclava was sent for testing. Mr Veney was discharged from hospital with the bullet still within his body. Those caring for him considered that it would be more dangerous to try and remove it than to leave it where it was.
When the offender approached Mr Veney he was armed and ready to use his rifle. He went about the robbery in a determined and sustained manner, leaving off his attack only after shooting Mr Veney and being called back by his co-offender. Mr Veney sustained serious injury, which has produced a permanent condition. However, there was no evidence that Mr Veney was significantly incapacitated by his injury.
The offender was shown to be the gunman by the presence on the balaclava of DNA whose profile matched the profile of a DNA sample contributed by the accused and by evidence showing that the cartridge cases were used in the rifle used to shoot Mr Brown at Canley Vale. The keys to the van used by the gunman were later found in a search of premises used by the offender in Fairfield. There were also other less direct links to show that the offender was the gunman.
The Surry Hills offence
At a little after 3.30am on 6 January 2007 Mr Elie Stanbouli was driving his car in Surry Hills. Near the intersection of Flinders Street and Short Street a Holden Commodore drew up beside him and stopped. The offender was seated in the nearside front passenger seat alongside Mr Stanbouli. He told Mr Stanbouli to get out of his car. He drew out what Mr Stanbouli described as a double barrelled shotgun 45-50 centimetres long. Mr Stanbouli got out of his car, leaving the keys in the ignition. When both men were standing in the road the offender told Mr Stanbouli that he would "cap" him if he did not hand over his wallet. He said that two or three times. Mr Stanbouli thought that the offender was threatening to shoot him in the legs. He refused to hand over his wallet. The offender got into Mr Stanbouli's car and drove it away. No shots were fired.
The offender was shown to be the gunman by evidence that Mr Stanbouli selected as similar to the man who stole his car two photographs from twelve shown to him. He said that one of them was more like the person. That photograph was of the offender. As well, Mr Stanbouli's car keys were later found in a car belonging to the offender's girlfriend and used by the offender.
The Redfern offence
After 10.00pm on 20 January 2007 Constable Justin Knight was patrolling Redfern in a marked police vehicle. He was driving the car. A probationary constable was with him. Constable Knight saw two men walking in the street. He suspected that they might be dealing in drugs so he began to follow them. The men realised that the police were following them and began to run through back streets. After a while the men separated. One of them, a man called Jewell, who gave evidence for the Crown, ran away from the area and escaped. The other, the offender, remained in the vicinity. Constable Knight stopped the police car, got out and pursued the offender on foot. He came close to him and called on him to stop. He called for help on the police radio. The offender had a backpack, pulled it from his shoulder and began rummaging in it. He took out of it what looked to Constable Knight like a sawn-down rifle. He told Constable Knight to go away. The offender began to walk away, and Constable Knight walked after him. Constable Knight warned his colleague that the offender was armed. He continued to pursue him on foot at a distance of about 5 metres, repeating his calls to stop. Constable Knight wove about as he walked so as not to present an easy target. The offender fired a shot which Constable Knight felt go past his arm. He smelt gunpowder. The shot was fired from a distance of about 5 metres. The offender threw the backpack into the front yard of a house and ran away. He met up with Jewell by arrangement. The backpack was recovered. Things were removed from it and tested.
The offence committed on Constable Knight was a very serious one. Constable Knight was an officer courageously carrying out his duty. He doggedly followed the offender, notwithstanding the danger he recognised. I observed him closely as he gave his evidence. He had difficulty in doing so. Recalling the events was distressing for him. Although he suffered no physical injury I think that he has been badly affected by the incident.
The bravery of Constable Knight should be acknowledged. Members of the police force who undertake such dangerous tasks deserve the support of sentencing courts in imposing heavily deterrent sentences.
The offender was shown to be the gunman by the evidence of Jewell. There was evidence of the offender's admissions to Jewell as recorded electronically. Items of clothing found in the backpack bore DNA whose profile matched that of DNA contributed by the offender. A tomahawk found in the backpack bore the offender's fingerprint. Constable Knight looked at an array of twelve photographs and selected a photograph of the offender as of the gunman.
The Canley Vale offence
On 4 February 2007 Jewell was living in Canley Vale. He and the offender saw one another from time to time and the offender knew where he lived. Late on the night of 4 February 2007 the offender called at Jewell's house. He asked him to go out to make some money. Jewell was desperate for money and agreed to go. They left Jewell's house and spent some hours in the district looking for opportunities to rob. The offender was armed with a sawn-down 0.22 rifle. As they walked under the railway at Canley Vale railway station they saw Raymond James Brown walking down a bank towards the footpath. He had a needle in his hand. According to Jewell's evidence the two stopped a few metres from Mr Brown. Mr Brown squatted against the wall near the footpath. The offender said 'What do you think?, What do you reckon?'. He pulled out the gun and fired a shot towards Mr Brown. He fired other shots, though Jewell could not remember how many. Mr Brown fell to the ground. As he was lying there the two searched his bag.
Mr Brown died not far from the point where he was shot. He sustained three gunshot wounds. The first was to the head and jaw near the right ear. The bullet lodged in the bone beneath the ear. That wound was not fatal. The other two were. The first resulted from a bullet which entered over the right jaw, travelled through the neck, damaging the carotid artery, and continued across the cervical vertebrae, damaging one of them, and travelled downwards into the top of the chest cavity on the left side. The second fatal wound was caused by a bullet that entered the body at the front of the right shoulder and descended into the right chest cavity between the first and second ribs, then into the top of the right lung, then out of the bottom of the lung where it struck the sixth rib at the back and fractured it. From there the bullet bounced back into the chest cavity, where it remained. Both the fatal wounds resulted in a huge loss of blood.
The offender was shown to be the gunman by the direct evidence of Jewell and by evidence of admissions the offender made to Jewell as recorded. As well, cartridge cases gathered at the scene were shown to have been fired by the weapon used in the attack on Mr Veney.
The Cabramatta offence
At 8.05pm on 8 February 2007 Ms Judith Anderson and a colleague were about to close the business in which they were employed at Cabramatta. There were two cash registers in the business and they were in the process of closing the registers and counting the money. The offender came through the door holding an object Ms Anderson thought looked like a sawn off gun or rifle about 35 centimetres long. The offender wore a distinctive striped woollen glove on his left hand, which he used to scoop money out of the tills. He ran away.
The offender was identified by remarkable similarities between the glove used by the robber, as recorded on a security camera, and a glove found in the backpack thrown away by the gunman at Redfern. A distinctive jacket worn by the robber was remarkably like a jacket later found at premises used by the offender.
The murder of Mr Brown
The submissions about the objective seriousness of the offences concentrated on the murder of Mr Brown. The Crown submitted that the offence fell into the worst category of murders. The Crown drew attention to the evidence of the pathologist, Dr Little, which led to the conclusion that each of the three shots was delivered from above Mr Brown's body. The Crown referred to the evidence of a resident of the district who heard three shots fired in quick succession and then, after a short pause, a fourth shot. The Crown submitted that those two pieces of evidence, together with Jewell's evidence that the deceased was squatting against the wall, showed that the offender effectively executed him, standing over him and firing three bullets into his body at point-blank range.
When sentencing an offender for murder the Court is to impose imprisonment for life if it is satisfied that 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. A conclusion that the murder of Mr Brown fell into the worst category of cases would raise the question whether a sentence of life imprisonment should be imposed.
Some further examination of the circumstances is warranted. The offender and Jewell went out with the intention of raising money as opportunities presented themselves. The offender was armed with the sawn-down rifle he had used on other occasions and was prepared to use it. It would not be correct, however, to say that at that stage his intention was necessarily to kill. There is no suggestion that the offender knew Mr Brown or that he knew that he might encounter him. He had no plan that necessarily involved Mr Brown. When he encountered Mr Brown he was moving down the bank towards the offender and Jewell, though there is no reason to think that he intended them harm or attempted to harm them. The needle he had was for his own use. Tests carried out post mortem showed the presence in his body of methylamphetamine and its derivative. There was a fresh needle mark on his arm.
The offender's intent in engaging Mr Brown was to take anything valuable from him. I am satisfied that the offender demanded by some words that Mr Brown hand over what he had. He took his backpack. He took his mobile phone. It is not easy to understand why the offender fired any shot, but it is possible that the shots may have been precipitated by the movement of Mr Brown towards the offender. Although I am satisfied that the offender intended no less than to kill, firing three shots from close range, I am not satisfied that he formed that intent until immediately before he fired the shots. It seems possible that he fired in reaction to Mr Brown's movements.
I have come to the conclusion that the offence just fell short of the worst category of such cases. I am not satisfied that the offender's level of culpability was so extreme that the community interest in retribution, punishment, protection and deterrence can be met only through the imposition of a sentence of imprisonment for life. The offence was so serious, however, that an especially heavy sentence is called for.
The subjective case
The offender was born on 14 April 1975 and is 37 years old. He had a modest criminal record in the Children's Court and Local Court, where he was dealt with leniently, mainly for property offences. Later on he was dealt with for a number of more serious property offences and firearms offences and sentenced to periods of imprisonment. It is necessary to deal with the facts of only one previous offence. On 4 December 2000 he brought his motor vehicle to a stop behind another vehicle, in which were four people. One of them got out and spoke to the offender. The offender asked him if he wished to buy marijuana. The man declined. Then the man's mobile phone rang and the offender asked him to give him the phone. Again the man declined. The offender asked a second time and got out of his car. The man ran away and as he did so the offender pulled out a .22 semi-automatic pistol and fired one round after the fleeing man. Fortunately the round did not strike him. The offender returned to the vehicle and pointed the firearm at the other three occupants, demanding money and mobile telephones. One of them was about to hand over his wallet when the offender suddenly ran back to his car and drove off. He drove to another place where he forced a vehicle off the road, approached it and pointed the pistol at the driver. He banged on the window and threatened a number of times that he was going to kill the driver. When the police arrested him he still had the pistol. There was a round in the chamber and nine in the magazine. He also had another magazine and 11 further rounds in his possession. For those matters he was sentenced in the District Court to imprisonment for 4½ years, with a non-parole period of 2½ years.
Although the offender was arrested for the present offences on 18 February 2007 he has been held in custody on these matters alone only since 30 July 2007.
During his teenage years the offender began drinking alcohol to excess. He was often affected by alcohol or illicit drugs. Notwithstanding his claims to have been the master of the drugs to which he resorted I think that his addiction played a part in his offending.
Since leaving school, where he did not do well, the offender has had a number of unskilled jobs. He has worked for the Aboriginal Land Council at Tumut, where his family lives. He has a five-year-old daughter from one relationship. He was previously involved in a longer relationship with another person.
The reports of Dr Richard Furst, psychiatrist, and Ms Anita Duffy, psychologist, were tendered on sentence. The offender has no apparent cognitive impairment or developmental disability.
Ms Duffy interviewed and tested the offender. He gave a history of growing up in an abusive environment when his mother and father separated. His father was Caucasian and his mother Aboriginal. His mother's new partner, who was a heroin addict and was violent, terrified the offender and his mother. Ms Duffy endorsed the view that being the victim of and witnessing domestic violence can have a detrimental effect on the emotional and social development of an individual which may lead to a number of problems entailing the regulation of affective states such as anger and anxiety, the use of substances to attempt to modulate anxiety and problems in working through interpersonal conflicts.
Ms Duffy found the offender somewhat defensive, mistrustful and thinks that he has learnt to rely on his own resources rather than depend on others. She is of the view that the offender's personality profile reflects such characteristics as lack of trust, resentment and ambivalence towards close relationships. There are strong feelings of self-worth and a tendency to deny or diminish personal faults. She is of the opinion that years of incarceration have shaped the offender's approach to life in not displaying signs of emotional problems or weakness. His psychological test results reveal narcissistic and negativistic behaviours. He perceives himself as special and superior. He is hypersensitive, resentful and angry. There are also indications of fear and helplessness.
The offender's family have supported him throughout the trial and he has strong community and family support.
During the past 12 years the offender has been at liberty for only a little over 2 years. As Mr Webb, for the offender, observed, there was a danger that he would become institutionalised in view of the long sentence that I must impose. I fear that that is so, though it is in all the circumstances a danger against which I cannot protect him.
The offender regards himself as Aboriginal and has grown up in and identifies himself with the Aboriginal community. He is concerned about indigenous history and the injustice suffered by the Aboriginal community. He is concerned about the welfare of young Aboriginal people and their families. These matters provide the focus for much of his anger. He is acutely aware of the lack of recognition of his parents and ancestors as people, as he puts it, until relatively recently in Australian history. He has been an Aboriginal delegate at Parklea Correctional Centre and a previous correctional centre over the last 18 months.
The Court was invited to take into account the Aboriginal background of the offender and the abuse he had encountered as a child. There was reference to Ms Duffy's remarks. I do so, but I do not think that these matters can be given significance. From what little I know of the offender's background I would not describe it as deprived. He had a good Aboriginal mother. He certainly encountered and suffered violence, but as far as I can tell he had appropriate opportunities. He missed a lot of school, but that was by his own choice. He had appropriate work opportunities. Moreover, by the time he committed the present offences he was a mature man and should have put childhood setbacks behind him. Any weight that could be given to these matters seems to me to be far outweighed by the serious problem of his dangerousness.
The offender's preparedness to use loaded firearms in the subject offences and the offences committed in 2000, in the light of professional assessment of his psychological profile, show that he is dangerous. The prospect of the offender prowling abroad at night with a loaded weapon, ready to light on any unaccompanied defenceless person he might come across and ready to shoot without provocation, is horrifying. There is no evidence which would enable me to assess whether his dangerousness might in future be mitigated whether by the beneficial effects of professional assistance or with the passage of time. As far as I can tell there is no prospect of rehabilitation.
Accordingly, the need to impose sentences that protect the public from these serious risks is paramount.
There is no remorse. The offender denies having committed any of the subject offences. He asserts that he was denied a fair trial and intends to appeal.
In sentencing the offender the Court must make orders which comprehend the totality of his criminality for these five offences, committed over a period of only seven weeks. I think it appropriate to impose an aggregate head sentence of imprisonment. I shall also fix an aggregate non-parole period. The length of the balance of the term of the aggregate head sentence will be one-third of the non-parole period. It was not submitted on behalf of the offender that there were special circumstances justifying any increase in the portion of the sentence allocated for parole, and I do not think that there are.
In fixing the aggregate head sentence and non-parole period I have had regard to the maximum sentence prescribed for each offence and, where there is one, the standard non-parole period for each offence.
The maximum sentence for the offence committed on Mr Veney is imprisonment for 25 years. There is a standard non-parole period of 7 years. But for aggregation I would have imposed a head sentence of 12 years and a non-parole period of 9 years. I have explained why I consider the offence so serious. The offender is dangerous, remorseless and has no significant prospects of rehabilitation.
The offence committed on Mr Stanbouli attracts a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years. But for aggregation I would have imposed a head sentence of 4 years and a non-parole period of 3 years. The facts are unremarkable for an offence of its type. The offender is dangerous, remorseless and has no significant prospects of rehabilitation.
The maximum penalty for the attempted murder of Constable Knight is imprisonment for 25 years. There is a standard non-parole period of 10 years. But for aggregation I would have imposed a head sentence of 12 years and a non-parole period of 9 years. The attack was made on a police officer acting in the course of his duty. I have explained why it was so serious. The events were fraught with danger. The offender is dangerous, remorseless and has no significant prospects of rehabilitation.
When a determinate sentence is imposed for murder, the standard non-parole period is 20 years. But for aggregation I would have imposed a head sentence of 32 years and a non-parole period of 24 years for the murder of Mr Brown. I have explained why this offence ranked high in the range of seriousness, almost attracting imprisonment for life. The offender is dangerous, remorseless and has no significant prospects of rehabilitation.
The offence committed on Ms Anderson attracts a maximum penalty of imprisonment for 20 years. There is no standard non-parole period. But for aggregation I would have imposed a head sentence of 4 years.
Craig Ronald Billings, for all five offences I sentence you to imprisonment. I set a non-parole period of 30 years. That period will be taken to have commenced on 30 July 2007 and will expire on 29 July 2037. The balance of the term of your sentence is 10 years, expiring on 29 July 2047. The first day on which you will become eligible for release to parole will be 29 July 2037.
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Decision last updated: 31 August 2012
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