R v Ceniccola
[2011] NSWSC 302
•15 April 2011
Supreme Court
New South Wales
Medium Neutral Citation: R v Ceniccola [2011] NSWSC 302 Hearing dates: 4 March 2011 Decision date: 15 April 2011 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: For the murder of Colin Hatton the offender is sentenced to a non-parole period of 16 years to commence on 20 April 2009, which will expire on 19 April 2025 and a balance of term of 6 years, commencing on 20 April 2025 and expiring on 19 April 2031. The offender will be eligible for release on parole will be 20 April 2025.
Catchwords: CRIMINAL LAW - sentencing - murder Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Firearms Act 1996Cases Cited: Apps v R [2006] NSWCCA 290
Barton v Regina [2009] NSWCCA 164
Holyoak (1995) 82 A Crim R 502
Nguyen v R [2007] NSWCCA 363; (2007) 180 A Crim R 267
R v AJP [2004] NSWCCA 434; (2004) A Crim R 575
R v Isaacs (1997) 41 NSWLR 374
R v Pilley (1991) 56 A Crim R 202
R v Spathis; R v Patsalis [2001] NSWCCA 476
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168Category: Sentence Parties: Crown
Alfonso Ceniccola (Offender)Representation: Counsel:
E A Wilkins SC (Crown)
G A Brady (Offender)
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Nyman Gibson Stewart (Offender)
File Number(s): 2009/128943
remarks on sentence
HIS HONOUR : The offender was found guilty after trial on 13 December 2010 of the murder of Colin Hatton on 20 April 2009 at Cuttabri in the northwestern region of New South Wales. The offender shot the deceased at the back door of his home, a farming property named "Bungawirra", where the deceased had lived and worked all of his life. He was 66 years old at the time of his death. He died at the scene from a lone gunshot fired at close range from a single barrel repeating pump action 12-gauge Mountaineer shotgun, which entered his chest on the left side.
The offence carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. The imposition of the standard non-parole period applies to offences falling within the mid range of objective seriousness for offences of its type after trial.
I acknowledge that my fact-finding role is that described in R v Isaacs (1997) 41 NSWLR 374. I am required to find the facts material to the sentence. To the extent that my findings are based on facts led at the trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202. A judge's finding of facts upon which the sentence is based is "both what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].
Background facts
The deceased and the offender were neighbours. The deceased owned a large property at Cuttabri, which is about 62 kilometres by road from Wee Waa. Wee Waa is approximately 20 minutes by road from Narrabri. The deceased farmed his property and ran Hereford cattle. He lived there with his wife. The offender usually lived at Prestons in Sydney but regularly went to his property at Cuttabri, which he purchased in 1991, and stayed there from time to time. The two properties shared a common boundary, which was fenced in the usual way with barbed wire and timber strainer posts. By about April 2007 it had become necessary to reconstruct and repair the fence between the two properties along this common boundary because it had fallen into disrepair. The deceased and Mrs Hatton had not met the offender before this time and did not do so until after he telephoned them to speak to the deceased about fixing the fence. A short time after that the deceased and Mrs Hatton and the offender met on site at the boundary to discuss the repairs. The offender wanted a particular type of fence and the deceased made some suggestions about what would ordinarily be built and talked about the cost. There was general agreement that each would construct half of the fence, although there would appear to have been no agreement about what was actually going to be built.
Later that year, in about October 2007, the deceased and Mrs Hatton constructed their portion of the fence, which extended for about 600 metres along the boundary. They spent about four days doing so. It would appear, however, that the offender was not happy with the fence that they had constructed. A short time after this the deceased and Mrs Hatton started receiving telephone calls from the offender during the course of which the offender became aggressive and would raise his voice. The dispute between the offender and the deceased about the reconstruction of the fence escalated thereafter and that dispute ended up with the offender commencing proceedings in the local Land Board. A hearing took place on 28 October 2008. The Board attended the properties to view the fence line in the company of the offender and the Hattons.
The deceased and Mrs Hatton carried out some work on the fence after this in anticipation of work that the Land Board had intimated it would require. This included installing some metal post caps and extra strands of barbed wire in some locations. The offender came and watched the deceased and Mrs Hatton doing this work but said very little to them at the time.
Nor was much said or done concerning the fence thereafter until the long weekend at the end of January 2009. One evening at around that time Mrs Hatton answered the phone to hear the offender saying "to Colin, to Colin". She recognised his voice and understood that, even though English was not his first language, he wished to speak to the deceased. His tone was aggressive and unfriendly. Mrs Hatton then handed the phone to the deceased and heard the deceased say to the offender words to the effect of, "what on earth are you talking about Alf" and finally "bugger off". The deceased then hung up the phone. Mrs Hatton gave evidence that the deceased told her after he had spoken to the offender that the offender had said to him in that conversation, "I tried the legal way. We had deal. Now I do it my way".
A series of incidents followed. Mrs Hatton said that in February 2009 she saw the offender's motor vehicle drive up the road that led to their homestead. The road was a dead end. There was no reason for anyone to drive there if they were not travelling to the Hatton's property. Mrs Hatton saw the offender get out of his vehicle from time to time. There was also evidence that the offender's vehicle had been seen on a number of occasions in the early hours of the morning parked at some disused tennis courts located on the road from the deceased's property into Wee Waa, where it would remain until lunch.
On 26 February 2009 the deceased and Mrs Hatton were driving to Wee Waa past the tennis courts early in the morning when she observed the offender parked there in his car. The offender followed them. He drove his car up close behind them and then fell back and did this a number of times as they were travelling about 100 kilometres per hour. The offender then drove his vehicle up alongside them and travelled in that position on the wrong side of the road for some distance very close to their car. The offender dropped back and then came up alongside them again. The offender then pulled sharply in front of the deceased and Mrs Hatton, before the deceased overtook the offender and drove off and away from him.
Another similar incident occurred on 5 March 2009. On that day the deceased complained to the police that he had been subjected to harassment by the offender on numerous occasions over the previous two years by telephone, in person and by use of a motor vehicle. On 3 April 2009 the offender drove past the Hatton's vehicle at speed. Finally, about two weeks before the shooting, Mrs Hatton again saw the offender driving up and down the road that led to their homestead.
On 20 April 2009 the deceased and Mrs Hatton started the day with their usual routine. They arose reasonably early and Mrs Hatton cooked chops for the deceased's breakfast as she usually did. It was his habit every morning then to take the chop bones on a plate out to the dog where it slept on their ute in the shed. The shed was a double garage located outside a fence that surrounded the homestead about 50 metres away. The Hattons parked their sedan in one side of the garage and their ute in the other. The deceased would appear to have finished his breakfast sometime between about 6.30am and 7.00am and he then took the chop bones out to the dog.
Mrs Hatton commenced clearing away after breakfast when she heard the deceased screaming her name in an urgent fashion from outside the house and from the direction of the shed. She ran outside to see what was going on. She went through the back screen door and down the path to the fence where she saw the deceased standing in front of the garages and the offender located half inside the garage door where the ute was parked. He was holding what she described as a double barrel shotgun and was pointing it at the deceased. The deceased was saying to her, "Robyn, he's got a gun, he's got a gun". Mrs Hatton heard the deceased say to the offender words to the effect of, "put the gun down Alf, this is not the way to do it" and "we can work this out, put the gun down". Mrs Hatton went back into the house and called triple 0. The plate taken by the deceased with the chop bones remained on the ground outside the garage effectively marking the position in which he had been standing when Mrs Hatton saw him confronted by the offender and his gun.
That triple 0 call was logged as having been received at 6.49am. It lasted for 38 minutes. It records a conversation between Mrs Hatton and the triple 0 operator that spans the circumstances of the shooting and the events immediately preceding it and following it. Very shortly after the call was made the offender and the deceased moved together to a position outside the kitchen door of the homestead. The evidence does not speak to how they came inside through the gate that led from the garage. The deceased and the offender were shouting and arguing. The sound of raised male voices can be heard on the triple 0 recording although the words that are spoken are indecipherable. Mrs Hatton heard and was able to recall much of what was said.
Mrs Hatton's evidence was that the offender was very angry. He was shouting at the deceased in English and in a foreign language, presumably Italian. The offender was heard to say, "you've taken my pride, you've taken my pride". Mrs Hatton put the phone down at one stage in order to see what was happening at the back door. The offender saw her and said to her, "you come out here missus and I'll shoot you too". Mrs Hatton saw the offender standing about three or four feet away from the deceased pointing the gun at him. She was back inside the kitchen on the phone to the operator when the gun was fired. The sound of the gun discharging is clearly audible on the recording of the triple 0 call. Mrs Hatton did not see what happened. The offender shot the deceased with a single shot from the shotgun fired from a distance of approximately one to two metres. It entered the left side of his chest and he died as the result of the wound at the scene. He was found lying on his back beside a concrete step adjacent to the back door of the homestead with his head closest to the house and his feet pointing away. A single spent shotgun cartridge was located next to him on the ground a short distance from where he lay.
It was the Crown case that the offender went to the Hatton homestead on the morning of the shooting having planned to shoot the deceased because of what he saw as a wrong that had been perpetrated upon him arising out of the events concerned with the construction of the fence. The offender gave evidence and said that he ended up being upon the deceased's property on the morning in question in quite different circumstances and for quite different reasons. The offender said that he awoke and rose about 2.00am on the morning of the shooting in order to drive to Narrabri to hand in his shotgun to the local police station during a then current amnesty that applied to unregistered or unlicensed firearms. The offender at that time owned other firearms but the shotgun used by him in the shooting was a prohibited weapon and was not licensed. The offender had an ammunition belt with 12 gauge shells suitable for the shotgun in his car when apprehended by the police but no other firearms or ammunition.
The offender gave evidence that he set out on his journey to hand in his shotgun in the early hours of the morning, somewhere between 2.45am and 3.00am. It took him past the Hatton's property. He said that as he drove past he sighted two wild pigs on their property and he decided to follow them and shoot one with his shotgun if he could. He parked his vehicle and climbed through a fence and stalked the pigs on the Hatton's property. He fired one shot but did not manage to shoot a pig. Instead he became disoriented in the dark. He wandered thereafter for some hours unsuccessfully looking for the road that would take him back to his car. He was unable to do that and ultimately found himself at the garage near the homestead on the Hatton's property in the position where he first encountered the deceased when he came out to feed the dog. The offender had no idea where he was until he saw the deceased. The two men then walked together to a position inside the fence that surrounded the homestead and just outside the kitchen door. He said he did not intend to shoot the deceased. The offender said that the deceased was killed when the offender turned to his left to walk away and go back to his car. As he did so he stumbled and the shotgun that he was holding in his right arm accidentally discharged striking the deceased.
The offender did not stay to render assistance but went back to his car and drove towards Wee Waa to hand himself in. He had called his grandson in Sydney before doing so and told him what had happened. The offender's grandson called the police and police who were then travelling in the opposite direction en route to the Hatton homestead intercepted the offender a short time later as he drove along the road. The offender was arrested and taken into custody.
Objective seriousness
In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 the Court held that the assessment of objective seriousness is to be made by reference to the circumstances in which the offence was committed and not the circumstances of the offender, other than those causally connected to the commission of the offence. There is nothing in the evidence in this case that bears in any way upon the existence of a causal connection between the commission of this offence and some particular circumstance of the offender. For example, the offender's age may be a factor to consider as a feature of his subjective circumstances for sentencing purposes but is not something that affects the evaluation or assessment of the objective seriousness of the offence. There is no suggestion that the offender's age informed an assessment of his mental state at the time of the commission of the offence.
The Crown contended that the present case falls above the middle range of objective seriousness. The deceased was shot on the doorstep of his home. The offender entered upon the deceased's property without permission and lay in wait for him under cover of darkness in the deceased's garage in the early hours of the morning. The Crown submitted that the death of the deceased could be characterised as a revenge killing, following the events arising out of the dispute over the fence. There was said to be a high degree of premeditation and a period of harassment, which culminated in the fatal shooting. The use of an untraceable weapon was also said to be evidence of premeditation. A car resembling the offender's car had been seen by the deceased and Mrs Hatton effectively conducting surveillance near their home in the period leading up to the shooting. This was said to be consistent with a high degree or level of planning. The offender had also issued a verbal threat about having tried the legal way and doing it his way.
On behalf of the offender it was submitted that given that the jury must have been satisfied that he had deliberately pulled the trigger, in determining the level of objective seriousness, the question is whether the shooting was premeditated and whether it was accompanied by an intention to kill or an intention to cause grievous bodily harm or with reckless indifference to human life.
In Apps v R [2006] NSWCCA 290 at [4]-[5], Hunt AJA said this:
"[4] The crime of murder has a wide variation in the states of mind which must accompany the act which caused the death of the deceased. That particular state of mind is directly relevant to the determination of the objective seriousness of the crime charged, in that it is related to the commission of the crime itself: Regina v Way (2004) 60 NSWLR 168 at [85]-[86]; Regina v AJP (2004) 150 A Crim R 575 at [13]-[14]. Significantly, none of the various standard non-parole periods specified in the Table for the various forms of aggravated crimes relate to the state of mind with which the offender commits the crime. That fact leads me to the conclusion that, for murder, the standard non-parole period relates to a crime in the middle of seriousness relating to all the various states of mind which may constitute that crime. The Legislature could not have intended that a sentencing judge impose the same standard non-parole period for a murder involving an intent to kill as one without any such intent but during the commission by an accomplice of the accused of a crime punishable by imprisonment for life or for twenty-five years ( Crimes Act 1900, s 18).
[5] The intention to kill must therefore be directly relevant to the sentencing judge's assessment of the objective seriousness of the crime, and whether, in the particular case, that crime falls above or below the mid-range of seriousness. Two things should, however, be made clear. First, the judge is required in that exercise to take into account a finding that the murder was committed with an intention to kill not by itself, but only in association with any other states of mind of the accused which were causally related to the commission of the crime, including those which mitigate the seriousness of the crime (such as mental illness). That is where the sentencing judge erred in the present case. Only in this way can the issue be determined by way of the instinctive synthesis which is required in determining the appropriate sentence: Wong v The Queen (2001) 207 CLR 584 at [75]; Markarian v The Queen (2005) 215 ALR 213 at [37]. Secondly, the intention to kill, because it is an element of the offence, is not a matter in aggravation in determining the appropriate sentence pursuant to s 21A of the statute."
In Nguyen v R [2007] NSWCCA 363; (2007) 180 A Crim R 267 at [143], Smart AJ said:
"[143] An intention to kill and premeditation are usual elements in a murder of mid range objective seriousness."
A summary of the decisions about standard non-parole periods is also to be found in R v AJP [2004] NSWCCA 434; (2004) A Crim R 575 at [13], where among other considerations the following appears:
"(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence);
(v) that an offence is 'typical' or 'common' does not dictate that it is in the middle of the range of objective seriousness."
The offender submitted it was open to me to find that the act of pulling the trigger was spontaneous and accompanied by no more than an intention to cause grievous bodily harm or done with reckless indifference to human life. He submitted that this justifies a finding of objective seriousness below the mid range for murder.
The offender also submitted that the following findings of fact were open. First, that the offender did not go to the deceased's property with the intention of killing the deceased. Secondly, that he intended only to confront the deceased, and possibly to impress upon him what was referred to as "his seriousness" but did not intend to harm him. Thirdly, that it was in the course of what became a heated confrontation that he formed the intention to pull the trigger and did so. Fourthly, that in pulling the trigger he did not intend to kill the deceased or to cause grievous bodily harm but did so only with a reckless indifference to human life.
The offender submitted that those findings of fact were available bearing in mind the following matters. The offender did not shoot the deceased immediately. On the contrary, the evidence established that the offender and the deceased talked for some time. The offender knew that Mrs Hatton was going to call the police and made no attempt to stop her. The previous incidents of "stalking" were of a minor nature only and not such as to lead to a conclusion that the offender went to the deceased's property with a plan to shoot the deceased. The conversation became heated but did not start out that way. The offender held the gun as a hunter would hold it, presumably meaning in the crook of the arm, and not raised to the shoulder ready for aiming or firing. The offender was otherwise of good character, which fact assisted the conclusion that he did not intend to go to the property to kill the deceased. The offender called his grandson immediately after the shooting indicating an intention to hand himself in to the police. When apprehended his demeanour was of someone "appearing emotionally relieved", which he submitted was consistent with the shooting in effect happening in the moment and wholly inconsistent with it being planned.
Findings
I am of the view that the evidence establishes beyond reasonable doubt, and consistently with the verdict of the jury, that the offender initially became upset with the deceased over the events arising out of their common boundary and the decision of the local Land Board about what should be done to effect the repair or reconstruction of their common boundary fence. The offender for some reason took particular exception to the way in which he perceived he had been treated by the deceased and formed the view that he had been slighted in some way. He appears erroneously to have decided that the deceased was somehow to blame for what he also wrongly perceived as a humiliating defeat in the Land Board proceedings. He initially took steps to give effect to his hurt feelings or wounded pride by following the deceased in his car and engaging him on the road as they both drove along. He also drove up the road that led to the Hatton homestead before the shooting when there could have been no reason for him to do so other than to observe what he could of the Hatton's property and possibly any activity that was occurring there. I am satisfied that the offender became progressively more preoccupied, if not obsessed, with what had occurred over the fence dispute and that the deceased became the centre of this preoccupation or obsession. His level of concern escalated.
I am satisfied to the requisite standard that by the time the offender went to the property he had already determined to kill deceased and that he went there with that intention. There is no other reasonable explanation for why the offender would go the deceased's property in the early hours of the morning under cover of darkness on foot armed with a shotgun and wait in the garage. I am not satisfied of the reasonable possibility that he went there only with an intention to speak to the deceased or merely to frighten him with the accompanying assistance of the shotgun or that he formed the intention to kill the deceased only after he confronted the deceased on his property. The close range from which the shotgun was fired was potentially lethal. The offender was familiar with the gun and its capabilities. I am unable to be satisfied of the reasonable possibility that the offender discharged the firearm from that range in the direction of the accused intending only to cause a non-lethal injury. I also do not consider that the offender discharged the shotgun with reckless indifference to the life of the deceased, that is, that he foresaw the probability of death resulting from the discharge of the gun and determined to fire it notwithstanding. (The jury verdict makes it clear that they rejected the offender's defence based upon the proposition that the gun went off accidentally or that the act in depressing the trigger was involuntary).
I also find that the offender went directly to the garage where he first confronted the deceased and not indirectly having become lost or disoriented when hunting or following a pig on the Hatton property. The offender's account of rising early to hand in his unlicensed firearm during an amnesty and being diverted from his early morning journey in order to hunt or follow a pig is inherently improbable. It would in any event have seen him arrive at his intended destination before sunrise and with several hours to spare. Consistent with the jury's verdict, they must have rejected that account as an explanation favourable to the offender. It is not possible to find precisely what path or route the offender took to the deceased's garage on the morning, or for how long he may have been there before the deceased came out, but it is possible to reject entirely the offender's account that had him at the scene of the initial confrontation with the deceased purely as a matter of chance or because he had become disoriented and lost his way. The garage was only a short distance from the homestead and if the offender was on the deceased's property for an innocent purpose or with an innocent explanation, there would have been no impediment to him approaching the Hattons for directions or from simply leaving the property in the way that he ultimately did.
Immediately following the shooting, the offender discharged the spent cartridge at the scene and in the direction of the deceased. This required an intentional and deliberate pump action of the fore-end located on the magazine below the barrel, first, back towards the offender followed by another pump action in the opposite direction. That deliberate two-way motion successively ejected the spent cartridge and reloaded the gun. It was contended by the Crown that this demonstrated an attitude necessarily in conformity with an intentional shooting, and that it was possible to reason from that to the conclusion that the offender shot the deceased with an intention to kill or to inflict grievous bodily harm. The spent cartridge was found close to the deceased and in fact had traces of his blood upon it. The Crown suggested that the ejection of the spent cartridge in the direction of the deceased after he was shot amounted somehow to a symbolic and contemptuous parting gesture that informed a determination of the offender's intention when he pulled the trigger.
I do not think it is possible to draw that inference beyond reasonable doubt. While it was open to the jury to have found that the deliberate act of ejecting the spent cartridge was inconsistent with an accidental or inadvertent shooting, it is a step too far in my view to reason to the conclusion that the actions of the offender after the shooting permit or support the conclusion that he possessed any particular intention when the shooting occurred.
The offender left the scene immediately following the shooting. He rendered no assistance to the deceased before he did so. It was also contended by the Crown somewhat uncontroversially that a failure to render assistance is inconsistent with the conduct of a person who had seriously wounded someone as the result of misadventure. It was however submitted that leaving the scene without assisting the then wounded deceased was instructive upon the question of the offender's intention at the time he pulled the trigger.
I am also of the view that it is not possible to go that far. There may be any number of factors at play in the offender's thinking after he shot the deceased at close range. I cannot with the degree of confidence necessary for sentencing purposes view his behaviour at this time as a reliable guide to what may have been his intention when he discharged the gun. I do not consider that the offender's failure to attend to the deceased in his wounded state permits me to draw any conclusion adverse to him with respect to his intention at the time that he pulled the trigger.
The offender also chose to use a weapon that was not licensed or traceable to him. The Crown submitted that that was a factor that led to a conclusion that the shooting was planned, inasmuch as it amounted to the taking of steps in advance to avoid detection. However, I also cannot with the degree of confidence necessary for sentencing purposes view this as a reliable guide to what may have been his intention when he discharged the gun. I do not consider that it permits me to draw any conclusion adverse to the offender with respect to his intention at the time that he pulled the trigger.
I am satisfied that there was nothing in the deceased's conduct on the morning of the shooting that could have caused the offender spontaneously to lose his self-control or his temper and shoot the deceased. The deceased was seen and heard to attempt to talk reasonably to the offender, asking him to put the gun down and to work it out. This was said shortly after the offender said that the deceased had taken his pride. This reinforces my finding that the offender had already planned to shoot the deceased before coming to the property and that he did not do so only as the result of events or circumstances as they unfolded once he was there. Once both the offender's explanation for being upon the deceased's property, and his account of how the deceased came to be fatally shot, are rejected, there is no conclusion reasonably open on the evidence other than that he was there with a loaded shotgun intending to use it to shoot the deceased with the intention of killing him.
I am satisfied in these circumstances beyond reasonable doubt that the offender shot the deceased with the intention of killing him.
I am not satisfied that the offender's conduct falls above the mid range of objective seriousness as submitted by the Crown. However, I am satisfied that the offence falls at the mid range of seriousness for offences of this kind. The offence was premeditated. It was planned. It did not occur spontaneously or unexpectedly or in circumstances in which the offender found himself by chance. The offender intentionally entered upon the deceased's property with a loaded shotgun intending to kill him. The deceased was unarmed and vulnerable. He was taken by surprise. He was unable to take any steps to defend or protect himself. He was left entirely subject to the unrestrained will of the offender.
Upon being satisfied that the offence is within the mid range of offending of its type, I am required by s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 to impose the standard non-parole period of 20 years unless I am satisfied, by reference to s 21A of that Act and other features personal to the offender, that there are reasons for departing from it.
In considering that question, the following aggravating factors under s 21A(2) are to be taken into account. The offence was committed in the home of the deceased. The fact that it was committed in the outside area close to, but not inside, the back door of the homestead would not disqualify a conclusion that the offence was committed "in" the deceased's home. Since the use of a weapon was inherent in the commission of the offence and a feature of its objective seriousness which I have factored into my assessment of mid range objective seriousness, it does not operate independently as an aggravating factor warranting a departure from the standard non-parole period. Although the commission of the offence was planned, it was not in the relevant sense the subject of planned or organised criminal activity in s 21A(2)(n).
The following mitigating factors are also to be taken into account. The offender does not have any significant record of previous convictions. The evidence revealed that the offender was convicted of an offence in 1968 but the circumstances of that offence were explained as a function of the offender's lack of English and resulted from what amounted to a misunderstanding. The Crown accepted that the previous conviction was ancient and irrelevant and I consider that the offender is entitled to be treated as having no record of previous convictions for sentencing purposes.
The offender is a person of good character.
The offender is unlikely to reoffend. The Crown submitted that I could not necessarily proceed to make such a finding given the fact and extent of animosity that the offender had shown for the deceased and that it could not be said that a level of animosity for other members of the Hatton family might not also persist. I wholly reject that submission. I would be confident to a point approaching certainty that the offender is highly unlikely to offend again in any way at all. I am not satisfied that there is a need in this case for the sentence to reflect any degree of personal deterrence.
The offender has not made known his attitude to his offending and the loss of life that resulted. In these circumstances I have only a very limited basis upon which to make any assessment of his prospects of rehabilitation. I am satisfied however that his offending was directed at one person (albeit the target of a planned and violent attack) and was not a manifestation of a wider or general criminal propensity. For that reason, and given his age and continued family support, there appears to be nothing for which, or from the effects and influence of which, the offender requires to be rehabilitated.
Subjective features
The offender is now 72 years of age. He was born in Napoli, Italy in 1939. He is accordingly of Italian background. He came to Australia from Italy in 1964 as a 25 year old. He had married at the age of 18 and came here with his wife and two children. He went to work immediately despite speaking no English although he learned English as years went by. He worked all his life until he retired. He worked at General Motors and at Leyland building cars. He later bought a milk run. He worked as a taxi driver as well. He worked for Qantas as a baggage handler until he took a redundancy. He finally worked for a telecommunications company for about three years before injuring his back when he retired. This was in 1997. He wears a brace for his back and has problems with his knees. He now has four adult children and 14 grandchildren.
The offender's case on sentence was supported by a series of testimonials that bespeak a respected member of the community with no criminal record and no predisposition to criminal activity or antisocial behaviour. He was described as honest and generous in his business dealings and as a good neighbour living in a tight knit street. One referee described the offender as having a pensive nature preferring reason, discussion and collaboration in handling circumstances and situations. This is in stark contrast to the approach he took in the dispute with the Hattons. I note that he is otherwise described as kind, respectful and generous. The offence in this case would appear genuinely and authentically, not merely perfunctorily, to be capable of being described as wholly out of character.
The offender's case on sentence was also that he suffered from the medical problems to which I have referred. Notably none of these reflects any psychological disability or disturbance. No medical evidence of any kind was tendered. No reports from specialists in any other medical, or related disciplines were tendered. I was not asked to order a presentence report.
I regard the offender's age and health as being of particular weight when determining an appropriate non-parole period for this offence relative to the standard non-parole period although a meaningful assessment of the precise nature and extent of the offender's health, compared to any similarly aged male member of the community, suffers from the absence of evidence directed specifically to that issue. So far as his age is concerned, Allen J in Holyoak (1995) 82 A Crim R 502 at 507 commented relevantly as follows:
"It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody. A helpful review of the relevant authorities is contained in Braham (1994) 73 A Crim R 353. It is submitted for the applicant that Angel J was correct, in that case, in stating (at 369): 'Where advanced age is a factor justifying significant leniency - and the learned sentencing judge so held in fixing the disproportionate head sentences he did - ex necessitate considerations of ... proportionality of sentencing are irrelevant and the case is an inappropriate vehicle to give voice to general deterrence - as opposed to personal deterrence or deterrence to others of a like age.'
I would not accept, however, that any of those considerations is irrelevant when sentencing a person of advanced age who, albeit generally in good health, has a statistically short expectation of life. Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free."
In Barton v Regina [2009] NSWCCA 164 at [24], Giles JA, with whom Howie and Latham JJ agreed had this to say:
"[24] In Goebel - McGregor v R [2006] NSWCCA 390 the applicant was found guilty of murder, and was sentenced to imprisonment for a non-parole period 15 years and a total term of 20 years. The sentence commenced when the applicant was aged 62. James J, with whom Hidden and Hislop JJ agreed, recorded at [126] the submission that the sentencing judge 'having decided that the offence did not call for a life sentence, had imposed a sentence which, having regard to the prisoner's age and life expectancy, was tantamount to a life sentence'. His Honour said of this -
'128 As regards the further submission made by counsel for the appellant, it is true that this Court has said that, if a life sentence is to be imposed, it should be imposed "frankly and directly" and a sentencing court which refrains from imposing a life sentence should not impose a determinate sentence which would have the effect of a life sentence. R v Chen (2003) 138 A Crim R 433 at 444 (67). However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender's life expectancy. In Des Rosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507...
129 In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence.'"
The age of the offender means that a custodial sentence appropriate in all the circumstances for the murder of the deceased will be likely to see him still in custody at the end of his life. There is no certainty of that but the actuarial probabilities and common experience suggest that it is so. I am bound to take that fact into account but not in a way that derogates from the obligation of a sentencing judge to impose a sentence that adequately reflects the objective seriousness of the offence. The advanced age of the offender is a matter I take into account when determining whether to reduce the standard non-parole period of 20 years and whether or not to vary the statutory ratio of the non-parole and parole periods.
Conclusions and orders
The killing of the deceased was brutal, premeditated and senseless. It was gratuitous and unnecessary. It inflicted a premature and violent death upon an innocent a much-loved husband, father and grandfather. The words of Mrs Hatton are a poignant expression of this. She is recorded as having said to the triple 0 operator, "I've lost my best mate. This is unfair... I just want to go out there and hold him. We've been married for 45 years. Oh dear, oh dear, oh dear." These words graphically and dramatically encapsulate the grief and hurt that the offender's actions must necessarily have suffered upon his family.
The offender did not give evidence at his sentencing proceedings. He has never once expressed remorse for his actions.
As I have already indicated, the maximum sentence for the crime of murder is imprisonment for life with a standard non-parole period of 20 years. The Court is to set the standard non-parole period as the non-parole period for the offence unless it determines that there are reasons for setting a longer or shorter non-parole period. In my opinion there is a case for setting a shorter non-parole period. Even though the offence is in my estimation one that falls in the mid range of objective seriousness, I have regard to the fact that the offender is 72 years of age, has no prior relevant criminal record, is unquestionably of prior good character and will face imprisonment for the first time in his life with the prospect that he will die there. It is a coincidence of his incarceration that the offender is unlikely ever to reoffend, although I have already expressed the view that his likelihood of reoffending is not wholly circumscribed by the fact that he will be very old before he is ever released.
A victim impact statement was tendered on behalf of the deceased's daughter. In her statement she speaks of the horrific and permanent impact of her father's death upon every member of her family. She described the family as an ordinary family who have had an extraordinarily devastating experience, which they battle to overcome every day. The Court cannot take these feelings into account in imposing a sentence but I recognise and acknowledge publicly the genuine distress caused to the deceased's family by his untimely and tragic death.
Despite there being factors in his case that might amount to special circumstances, having already accounted for the offender's age, his health and the issue of his rehabilitation in fixing the non-parole period, I do not propose further to adjust the statutory ratio between the non-parole period and the balance of term.
Alfonso Ceniccola for the murder of Colin Hatton you are sentenced to imprisonment. I set a non-parole period of 16 years, which will be taken to have commenced on 20 April 2009 and which will expire on 19 April 2025, and a balance of term of 6 years, commencing on 20 April 2025 and expiring on 19 April 2031. The first day upon which you will be eligible for release on parole will be 20 April 2025.
Other charges
The offender is also charged in accordance with s 166 of the Criminal Procedure Act 1986 with two related offences under the Firearms Act 1996 as well as three back up offences under the Crimes Act 1900 .
The first related offence is that he possessed and used an unregistered firearm contrary to s 36(1) of the Firearms Act . The second related offence is that he possessed and used a prohibited firearm when he was not authorised by licence to do so contrary to s 7(1) of that Act. Each offence when dealt with summarily carries a maximum penalty of 2 years imprisonment or a fine of $5,500 or both. These charges remain pending in the Local Court, and I am asked to deal with them.
The three back up offences are as follows. First, that the offender did shoot with intent to murder the deceased contrary to s 29 of the Crimes Act . Secondly, that the offender possessed a loaded firearm so as to endanger life contrary to s 93G(1)(a)(ii) of that Act. Thirdly, that the offender entered a building or land while in possession of a firearm contrary to s 93H(1) of that Act.
Neither the Crown nor the offender made submissions on the related offences with respect to penalty. That is unsurprising. It is agreed that the back up offences should be dismissed.
Section 167(1) of the Criminal Procedure Act provides:
"167 Manner of dealing with back up and related offences
(1) If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court:
(a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and
(b) is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice."
In the circumstances I order that each of the back up charges be dismissed pursuant to s 167(1)(a). In accordance with s 167(1)(b) I decline to deal with the related offences because in my opinion to do so would not be in the interests of justice.
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Decision last updated: 18 April 2011
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