R v Colin Arthur Case No. 4255 Judgment Nos. SCCRM 93/252, SCCRM 93/275 Number of Pages 8 Criminal Law and Procedure

[1993] SASC 4255

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL BOLLEN(1), MULLIGHAN(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - Murder - murder of estranged wife by discharging a shotgun at her - prior violence at Darwin - wife obtained a 'Restraining Order' - wife fled to Adelaide - prisoner followed her and stalked her - lay in wait for her and killed her - non-parole period fixed by sentencing Judge at 20 years - applications for leave to appeal by Director of Public Prosecutions and by Prisoner - leave granted to Director, refused to Prisoner - appeal of Director allowed - period of 25 years substituted. R v von Einem (1984-85) 38 SASR
207; R v Byron and Byron (1989) 151 LSJS 25 and R v Farquhar (Court of Appeal, 24 May 1991, unreported), applied.

HRNG ADELAIDE, 23 September 1993 #DATE 10:11:1993
Counsel for appellant:     Mr B Jennings QC with
   Mr R N Jensen
Solicitors for appellant:    Director of Public Prosecutions
Counsel for respondent:     Mr P N Waye
Solicitors for respondent: P N Waye and Associates

ORDER
Orders made.

JUDGE1 BOLLEN J Colin Arthur Case (the prisoner) pleaded guilty to murder, the murder of his wife on 23rd March 1992. He killed her by discharging a shotgun at her. He meant to kill her. 2. The learned sentencing Judge said this in the course of addressing the prisoner on 5th July 1993:-
    "You are 54 years of age, having been born in Kenya. You
    grew up in a stable middle class family. At the age of 15 you
    left school and joined the merchant navy. After spending some 18
    months at sea, you joined and served in the British Army for some
    six years, attaining the rank of sergeant. You then worked as a
    driver and bus conductor with the London Transport Authority for
    nine years, during the course of which you met your wife - who
    was also, as I understand it, employed by that authority.
     You had been married at the age of 18 but that union eventually
    ended in disaster. It was said that both of you were simply too
    immature.
     I am informed that you met your second wife Margaret in 1963,
    and that, shortly thereafter, you entered into a de facto
    relationship with her. The two of you thereafter married. In
    1970 you, your wife, son, and your wife's parents, migrated to
    Australia. You lived for a time with your wife's parents at
    Elizabeth and obtained work with General Motors-Holdens. Your
    wife was also employed.
     You subsequently secured entrance to a Bachelor of Education
    course at university and, in due course, obtained your
    qualification as a teacher. Eventually, to further your career
    as a teacher, your family group moved to Katherine in the
    Northern Territory. You later transferred to a teaching position
    in Darwin.
     The precise sequence of events thereafter is far from clear on
    the material before me. Certainly, at least from as early as
    1984, relationships between yourself and your wife became
    strained. According to your son, both you and your wife had
    extra marital relationships and the situation between the two of
    you was described by him as turbulent. In 1986 you were treated
    for herpes and accused your wife of infecting you with it, due to
    her sexual misconduct.
     As far as I can determine, relationships between your wife and
    yourself deteriorated to the point that, in about August 1990,
    she ceased cohabitation with you. You were described by those
    who knew you as having become obsessed with that situation, and
    angry with your wife for bringing it about.
     At first your wife remained in Darwin. However, various
    incidents occurred, including one or more incidents of violence
    by you towards her. Such was your conduct towards your wife
    that, on 3 December 1990, a restraining order was made against
    you in a court of summary jurisdiction at Darwin. In about the
    same month, your wife left Darwin and came to live in Adelaide
    because, due to your behaviour, she was fearful for her safety.
    You had abused her in public, accused her of having affairs, and
    threatened to kill her. It is said that, in 1990, you had
    threatened to strangle her and had actually seized her by the
    throat in an incident in a carpark, which is described in the
    material before me in some detail.
     After being in Adelaide for some months, your wife secured
    permanent employment here and established herself in a flat at
    Parkside. It seems clear that, from time to time, you harrassed
    her with telephone calls at her work and made threats such as `I
    will get you. If I can't have you, nobody will'.
     On the afternoon of 23 March 1992, your wife consulted a
    solicitor at Greenhill Road, Parkside, about her concerns with
    regard to your continuing behaviour. She left the solicitor's
    office at about 5.30 p.m. Some 10 minutes later a bicyclist
    riding along Swaine Avenue near the Queen Victoria Hospital heard
    a loud scream. He saw you discharge a firearm wrapped in a
    blanket, at short range, at a person in the street - who proved
    to be your wife. She fell to the ground. The same general
    incident was seen by at least two other female pedestrians in the
    area. Although immediate assistance was sought from the hospital
    medical staff, the gunshot wound was fatal. You decamped from
    the scene, and, on 25 March, you were eventually located in the
    scrub north of Port Augusta and taken into custody.
     The material before me indicates that, by 18 or 19 March 1992,
    your wife had become aware that you had then apparently left
    Darwin. She became apprehensive for her safety. She, therefore,
    left her flat at Parkside, moved in with a male person with whom
    she then had a relationship, and lived for the ensuing few days
    up to her death at premises at Swaine Avenue, Rose Park. She had
    returned to those premises when you accosted and shot her.
     When interviewed by the police following your arrest, you
    readily admitted shooting your wife and said that, when you did
    so, you intended to kill her. You conceded that you left Darwin
    with the express intention of doing essentially what you, in
    fact, did. You stated that you arrived in Adelaide on the
    evening of 17 March and went to the general location where you
    understood your wife to be employed. You observed her leave in
    the company of a male person and thereafter followed her to the
    Swaine Avenue premises, which you thereafter kept under
    observation. You had arranged for the purchase of a shotgun in
    Darwin on 10 March and had brought in to Adelaide with you.
    There is no doubt that you purchased it, through an acquaintance,
    for the express purpose of doing away with your wife. The barrel
    was partly sawn off. Over several days you bided your time
    until an opportunity presented itself when your wife was alone at
    the premises. As you said to the police officers, you had wished
    to avoid a blood bath. You kept the Rose Park premises under
    surveillance for a significant period of time.
     Observing that the Swaine Avenue premises were vacant when an
    occupant left them to go somewhere, on the day of your wife's
    death, you entered them at about 4.45 p.m. and first secreted
    yourself behind a cupboard in the study. You later positioned
    yourself in a front room where you could observe the front gate.
    You had the sawn-off shotgun with you.
     According to what you told the police officers, you eventually
    saw your wife come to the premises, but she could not get in as
    she did not appear to have a key. She then sat on a seat on the
    front verandah to await the arrival of one of the occupants.
    After a few minutes you quietly let yourself out of the back
    door, walked around to the side of the house, pointed the shotgun
    at your wife and said `Hello Mum, we need to talk'. She
    thereupon made as if to go inside the house and you said `You
    can't go inside. The door is locked and you haven't got a key'.
    She replied `Where are we going?', to which you responded `There
    is a little green car around the corner. We had better go to
    that'. It is clear that, at that point, some altercation
    occurred between the two of you; and I assume that this must have
    included the screaming by your wife which was heard by some of
    the eye witnesses.
     You told the police that, when in front of the premises, you
    said to your wife `If you don't talk to me I'm going to kill
    you'. At that point your wife commenced to run away and you
    thereupon raised the weapon carried by you and shot her in the
    back. You then decamped from the scene and disposed of the
    shotgun in an industrial waste container at the Kent Town Lodge
    Motel.
     As I understand the situation, you have been examined by a
    psychiatrist who has expressed the view that you are not
    suffering from any present diagnosable psychiatric condition. Be
    that as it may, there is no doubt that, extending back at least
    to the early 1980s you had been exhibiting what may reasonable be
    described as aberrant behaviour, stemming from the domestic
    difficulties which had arisen between your wife and yourself.
     It seems patent that, as long ago as 1981, there were serious
    developing problems within the marriage and you expressed
    suicidal feelings. You repeated those sentiments when, in late
    1991 or early 1992, you told an acquaintance that you proposed to
    go to Adelaide, where you would end it all and then kill
    yourself. A witness described how, in 1991, not only did you
    actually attempt suicide, but you were found with mucus all over
    your face, you were drooling at the mouth, and were babbling
    incoherently. You were admitted to a psychiatric ward for about
    a week.
     In 1990 you were clearly under great stress and becoming
    accutely obsessional concerning your domestic situation. Not
    only was there the incident which led to the making of the
    restraining order against you, but you were treated at the Darwin
    Hospital for what was diagnosed as an acute anxiety state.
     I entertain no doubt that, at the time of the shooting, you
    were in a highly obsessional and unstable mental state, even if
    you were not actually suffering from a recognised psychiatric
    condition." 3. These remarks tell us things relevant to the circumstances of the prisoner, tells us something of the history of the marriage and tells us enough of the circumstances of the shooting. 4. The prisoner had pursued his wife from Darwin to Adelaide. On 23rd March 1992 he lay in wait for her. He shot her. As I have already said, he meant to kill her. 5. The learned trial Judge correctly said:-
    "Whilst it is true that, over time, the Court of Criminal
    Appeal has attempted, in a very general way, to distinguish
    between the gravity of certain murder scenarios, particularly to
    distinguish between cold-blooded executions and homicides
    exhibiting great depravity, by way of contrast with
    unpremeditated crimes of passion sometimes arising in the
    domestic setting, I do not find it helpful, in your case, to
    attempt to place some kind of label on your crime.
     Whilst this homicide was not accompanied by any act of
    depravity and was not the act of some types of truly cold-blooded
    executions which occasionally come before the court, it was,
    nevertheless, a terrible crime and of the nature of an execution.
    Moreover, it was preceded by conduct on your part which clearly
    placed your former wife in very real fear for her safety over a
    long period of time.
     This was no spur of the moment incident, born of some sudden
    passion or fit of anger arising in the course of an actual
    domestic dispute. It was a carefully pre-planned exercise. The
    gun was purchased in Darwin many days before the event. You came
    to Adelaide with an already formed murderous intent. You
    literally stalked your prey and, when the opportunity presented
    itself, you despatched your wife. Perhaps her clear
    unwillingness to talk to you just before she died was, in one
    sense, the last straw, but it seems to me that, regardless of her
    reaction, at the time you had already made up your mind to kill
    her.
     No doubt, in one sense, you were the victim of your own
    obsessional and unreasoning emotional state. However, it must be
    accepted that there is simply no evidence to suggest that you
    were unable to control your actions, or did not appreciate the
    enormity of your conduct at the time.
     Whilst your crime does not, perhaps, fit into the most serious
    category of murder, it, nevertheless, must be regarded as being
    well towards the most, rather than the least, serious end of the
    spectrum of this type of offence." 6. The learned trial Judge imposed the inevitable sentence of imprisonment for life. He fixed a non-parole period of 20 years to run from the 26th March 1992. 7. The Director of Public Prosecutions seeks leave to appeal. He submits that the non-parole period is manifestly inadequate. 8. The prisoner seeks leave to appeal. He says that the non-parole period is manifestly excessive. In my respectful opinion, the learned Judge has correctly summarised the facts, correctly identified matters to be taken into account including matters to the credit of the prisoner and made no error of principle either by omission or commission. But he has, in my opinion, arrived at a penalty which is manifestly inadequate. That amounts to error calling for our interference. Of course, I am using the word "error" in the most technical sense. The fixing of a non-parole period in this case, as in any other, is a very difficult task. There is always room for more than one opinion. In the end the majority opinion of the appellate court must prevail if the matter merits interference by an appellate court. 9. It was a terrible crime. The actual killing was preceded by violence to victim and the terrorising of her. It was a type of "stalking" case. The prisoner caused the victim to be in fear whilst she was living in Darwin. She was forced to get a restraining order against him on 3rd December 1990. The victim was still in such fear that later that month she came to Adelaide to escape from the prisoner. She sought to hide and get away from him in Adelaide. But he followed. He came to Adelaide with a firm intention of killing the victim. He shot her in the back. 10. This was a brutal killing preceded by callous and sometimes violent treatment. There was conduct akin to torture for some months prior to the killing. It was a campaign of terror by a husband towards a wife. 11. There is much good that could be said about the prisoner. But that pales into insignificance when one considers the whole conduct of the prisoner towards his wife. In any event the learned trial Judge did give weight to those matters which could be urged in favour of the prisoner. His Honour said:-
    "I particularly bear in mind your present age, your ready
    co-operation with the authorities, your lack of antecedent
    record, and the fact that, since being in custody, your mental
    and emotional state seem to have stabilised. I also take into
    account your prior good character as evidenced by the material
    placed before me.
     You must appreciate that the seriousness of your crime is such
    that it must necessarily attract a very substantial non-parole
    period. The correct approach to the fixation of it is that
    discussed by the Chief Justice in the case of Von Einem. The
    question which I must pose to myself is what, having regard to
    your age, is the minimum time which you ought to spend in prison
    in order to satisfy the punitive, deterrent and preventative
    purposes of punishment, so that the punishment imposed is
    reasonably proportionate to the gravity of the crime. As the
    Chief Justice went on to point out in that case, the age of a
    person sentenced for the crime of murder is important because,
    the head sentence being imprisonment for the term of the
    offender's natural life, regard must be had to the establishment
    of a proper relationship between the non-parole period and the
    normal span of life. So it was, in the case of Von Einem, that
    the court said that the community's sense of justice does not
    require fixation of a period which would, almost inevitably, mean
    that the person sentenced would necessarily die in prison. There
    should generally be some prospect of release on parole in old
    age.
     In your case, that consideration gives rise to some potential
    moderating effect on what might otherwise be an appropriate
    non-parole period for a person of somewhat younger age, even
given the essential seriousness of the offence." 12. These remarks were in accord with the remarks of the Chief Justice in R v von Einem (1985) 38 SASR 207. 13. Of course, His Honour here was entitled to take into account the question of remissions. If the prisoner earns full remissions (which I think likely) he will be released when he is about 67 years of age. This is almost a telling point in favour of the idea that 20 years is not manifestly inadequate. 14. But when one takes into account the whole conduct of the prisoner, the callous act of killing, the need for adequate punishment and the need for general deterrence then I think that the non-parole period should have been more in line with that imposed on other callous and brutal murderers (eg von Einem (supra), R v Byron and Byron (1989) 151 LSJS 25, R v Farquhar (unreported: CCA 24th May 1991) and others). 15. I think, too, that in this case the element of punishment needs to be given very great weight. 16. I think that the non-parole period should be 25 years as from the date set by the learned sentencing Judge. Anything more might make the possibility of death in gaol too great. 17. I would, therefore, grant leave to the Director of Public Prosecutions and refuse leave to the prisoner. I would allow the appeal of the Director and set aside the non-parole period fixed by the learned Judge. 18. I think that the period of 25 years should be substituted for that of 20 years as fixed for the non-parole period by the learned trial Judge. The period should run from 26th March 1992.

JUDGE2 MULLIGHAN J I am in general agreement with the reasons expressed by Bollen J and I agree with the orders which he proposes. This was a very serious crime which involved a considerable degree of pre-planning, the specific intention to kill and the callous execution of that intention by shooting the defenceless victim in the back. Given the background to, and the circumstances of, the killing, the length of the non-parole period had to reflect emphasis upon general deterrence of those who are minded to behave in the same way for similar reasons as well as the features of punishment. But for the positive features of the background of the prisoner and his plea of guilty a non-parole period of at least 30 years was justified.

JUDGE3 DUGGAN J The facts of this case are set out in the judgment of Bollen J. 2. The learned sentencing judge carefully extracted from the facts and the submissions made before him a basis for sentencing which cannot be challenged. No error of sentencing principle is apparent on the face of the remarks on sentencing. Nevertheless I agree with Bollen J's view that the non-parole period is manifestly inadequate. 3. The callous and pre-meditated manner in which the prisoner carried out this offence places it in the higher range of seriousness for offences of murder. The facts are a vivid illustration of the vulnerability of a woman in the deceased's position and for that reason the aspect of general deterrence assumes considerable importance in the approach to sentencing. 4. There is little doubt on the material presented to the learned sentencing judge that the prisoner came to Adelaide from Darwin with the express purpose of killing his wife. He purchased a shotgun with that in mind and cut the barrel down so that it could be more easily concealed. He then proceeded to stalk his wife over a period of days so as to provide himself with the most suitable opportunity for confronting her. When she refused to accede to his demands that she accompany him he shot her. There is some ambiguity in the record of interview as to his precise intention, but the clear inference to be drawn from the whole of the evidence is that he fired the shot intending to kill her and that he utilised some experience he had received in the army in aiming the rifle at a particular area of the deceased's body so as to achieve his purpose. 5. There is nothing in the circumstances of the offence itself which could be relied upon to mitigate this conduct. The only considerations which were advanced as providing some mitigation were the absence of prior convictions and the fact of the plea of guilty. As for the latter consideration it was held in The Queen v Shannon (1979) 21 SASR 442 at 459 that a plea of guilty may be taken into account in mitigation of sentence -

     "(a) where it results from genuine, repentance or contrition; or
     (b) where it results from willingness to co-operate in the
    administration of justice by saving the expense and inconvenience
    of a trial, or the necessity of witnesses giving evidence, or
    results from some other consideration which is in the public
    interest, notwithstanding that the motive, or one of the motives,
    for such co-operation may be a desire to earn leniency, and where
    to allow the plea a mitigatory effect would be conducive to the
    public purposes which the sentencing Judge is seeking to
achieve." 6. In the present case it could hardly be said that the plea of guilty resulted from genuine remorse. Furthermore the plea, coming at the time which it did, provided little scope for a reduction in sentence on the ground of willingness to co-operate with the authorities. The prisoner was committed for trial on 31st August, 1992. He pleaded guilty on 30th April 1993, approximately four days before the proposed commencement of the trial. In my view late pleas of guilty made in such circumstances are of very little weight in reducing what would otherwise be the appropriate penalty. I agree with Bollen J that the non-parole period was manifestly inadequate and that it should be increased to 25 years. This would still leave room for some prospect of release in the event that the prisoner lives to an advanced age. (cf. The Queen v Von Einem (1985) 38 SASR 207 at 221.) Leave should be granted to the Director of Public Prosecutions and the prisoner's application for leave should be refused.