R v David William Weightman

[2005] NSWSC 1354

CITATION:	R v David William WEIGHTMAN [2005] NSWSC 1354
HEARING DATE(S):	10/10/05, 24/10/05-25/10/05
JUDGMENT DATE :	23 December 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	The offender is sentenced for the murder of his father to imprisonment for twenty-five years, with a non-parole period of nineteen years, to date from 2 February 2004. For the murder of his mother he is sentenced to imprisonment for twenty-five years, with a non-parole period of nineteen years, to date from 2 February 2007. He will be eligible for release on parole on 1 February 2026.

CATCHWORDS:	CRIMINAL LAW - Sentence - two counts of murder - adoptive parents murdered by son to gain inheritance - full admissions to police - pleas of guilty - assistance to authorities
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act
PARTIES:	Regina (Crown) DWW (Offender)
FILE NUMBER(S):	SC 3025/2004
COUNSEL:	D Howard SC (Crown) S Hanley (Offender)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Watsons Solicitors (Offender)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Friday 23 December 2005

3025/2004 Regina v David William Weightman

NON PUBLICATION ORDER – REVOKED 12 July 2006

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, whose name has been suppressed until further order of this Court, has pleaded guilty to the murder of his adoptive parents at their home at Glen Alpine on 8 January 2000.

Facts

2 The basic facts are not in dispute. The offender was the only child of the deceased, and had been adopted by them shortly after his birth on 25 January 1979.

3 On 9 January 2000, a park ranger was conducting a routine patrol of Heathcote National Park, when he observed an area of mesh fence on the western side of Pipeline Road to be missing. Pipeline Road is a fire/service road running off Heathcote Road. The ranger got out of his vehicle and looked over an embankment. About twenty metres below him he saw a Mitsubishi Magna sedan, which belonged to the offender’s father. Inside the car were the father, in the driver’s seat, and the offender’s mother, in the front passenger seat. Both were deceased.

4 Police attended the scene. In due course, a post-mortem examination was conducted and at that stage the deaths were considered to be accidental. There was no inquest. Later, however, concerns about the matter were expressed by the deceased mother’s sister, Mrs Margaret Urwin and her husband, Alan Urwin. The forensic pathologist provided an amended report to the coroner in relation to each of the deceased, in which he said that he could not exclude death by foul play.

5 In relation to the father, the doctor noted that were bilateral thyroid cartilage fractures which could indicate some form of neck compression, and he could not exclude the possibility that he was dead before the vehicle left the road. He could not exclude the same possibility in relation to the mother. Toxicological analysis of the blood of each of them showed the presence of a sedative drug. In relation to both deceased he noted bruising on their arms and legs which was not consistent with trauma from a road accident, and the extent and severity of which were suggestive of some form of restraint or assault.

6 On 11 January 2000, police obtained a statement from the offender. He said that on 8 January he returned to the Glen Alpine home with a friend, to find that his parents were not there. He was not concerned about this, and he and his friend stayed at the home that night. It was not until later the following day that he was informed that his parents were deceased. The friend to whom he referred is the man whom he was later to name as his accomplice in the killings. On 15 November 2002 he took part in an electronically recorded interview with police, in which he was asked about conversations he was said to have had with another friend, both before and after the death of his parents, which suggested that he had planned and been involved in their deaths. He denied any such involvement.

7 There the matter rested until 1 February 2004, when he was confronted about the matter by Margaret Urwin, in the presence of her husband, and admitted that he was involved in the death of his parents. The police were informed, and on the following day he confirmed and expanded upon those admissions in videotaped interviews at a police station, at Pipeline Road and at the Glen Alpine home. He was charged with the murders the following day.

8 In those interviews he gave a detailed account of how he and an accomplice killed his parents and disposed of their bodies. He also admitted that the murders had been planned, for a financial motive, and that the method of the killings and disposal of the bodies had been decided over the two previous days. His father had been in employment and his mother was the proprietor of a child minding centre. They were well off. About two weeks before the killings he had discussed with his accomplice what he stood to gain by way of inheritance in the event of his parents’ death.

9 Over the two days prior to the murders, the accomplice suggested that the parents be killed and offered to help the offender to do so. It was he who proposed the way in which the crimes should be carried out. It was agreed that he would be paid $17,000 for his assistance. The offender frankly acknowledged that his motive was to inherit a large sum of money. He denied that he (or his accomplice) bore any animosity towards his parents. Indeed, he said that he had had a loving relationship with them and that he had been well provided for.

10 On the evening in question, the offender and his accomplice went to the Glen Alpine home. His mother was in an upstairs bedroom and his father was watching television in the lounge room. He made a cup of tea for both of them, placing in each cup some sedative tablets supplied by his accomplice, which he understood to be Serapax. The intention was to asphyxiate them with a pillow while they were unconscious, and it was the accomplice who was to do this.

11 The offender waited outside the house while the accomplice asphyxiated his mother in the bedroom. It would seem that she was not unconscious, and he heard a sound emanate from her like a cry or a gasp. The accomplice then emerged from the house and told the offender that he would need some help with his father. The two men went into the lounge room, where the father was lying on a lounge, apparently drowsy. He held his father’s legs while the accomplice held a pillow over his face. The father struggled for several minutes before he died. The offender demonstrated how this was done during the videotaped interview at the house.

12 The two men then carried the deceased to the Magna sedan, which was in the garage. The mother was placed in the front passenger seat. The offender could not recall where the father was placed but, most likely, it was on the back seat. The accomplice drove the Magna to the site at Pipeline Road, and he followed in his mother’s car, a Hyundai coupe. There, the accomplice placed the father’s body in the driver’s seat of the Magna and the offender helped him push the car over the embankment. They left the scene in the Hyundai, driven by the offender.

13 He told police that he had smoked a small amount of cannabis early that day, and was under the influence of that drug “a little bit” at the time of the killings. I shall return to the question of his injection of drugs and his state of mind at the relevant time.

14 The report of another forensic pathologist confirmed that the bilateral fractures of the father’s thyroid cartilage were typical of strangulation by compression of the throat. The mother had a heavy bruise on the inner aspect of her left upper arm, typically observed when a person has been pinioned or forcibly moved. Bruises on her forearms were characteristic of her having been gripped tightly, suggesting a scuffle. The same was true of bruises to her legs. The amount of sedative detected in the father’s blood was enough to have made him drowsy. However, there was a lesser amount in the mother’s blood and it was unlikely that it would have had any significant effect upon her.

15 In due course, the offender inherited his parents’ estate, of a value of about $800,000. He sold the family home and the child minding centre to Mr and Mrs Urwin, and bought a home for himself. In the event, he did not pay his accomplice the promised $17,000.

Subjective case

16 The offender was twenty years old at the time of the murders, and is now twenty-six. He has a minor criminal record, of no present significance. He left school during year eleven, and had employment in a variety of unskilled positions. At the time of his arrest he was married and was the father of an infant child. His wife had two older children from a previous relationship.

17 I have before me psychiatric reports of Dr Christopher Canaris, engaged on behalf of the offender, and Dr Stephen Allnutt, engaged by the Crown. Dr Allnutt also gave evidence. To both doctors the offender gave a history of polydrug abuse, and auditory and visual hallucinations, from about the age of eighteen. Dr Canaris reported that the history was consistent with chronic schizophrenia. Dr Allnutt was somewhat less specific, seeing him as having suffered a chronic psychotic disorder such as schizophrenia or schizoaffective disorder.

18 The offender also told the doctors that on the day in question he had used not only cannabis but a variety of other drugs, and that he was experiencing hallucinations at the time of the killings. As I have said, he told police that he had used only cannabis that day. He also said in the interview that he used ecstasy and amphetamines “once in a while”, but he appears then to have been speaking at the time of the interview which, of course, was some four years after the murders. He also denied having been diagnosed with any psychiatric illness, but that is not necessarily inconsistent with the history he gave the doctors. He may not have had insight into his symptoms, and it does not appear that he had any psychiatric treatment until he was taken into custody.

19 What emerges from the evidence as a whole is that, prior to the death of his parents, he used mainly cannabis, although it may be that he also had resort to other drugs. After their death, his drug use escalated and embraced a variety of substances. His psychiatric illness also developed, whenever its onset may have been, and he has been under psychiatric treatment, including medication, since being in custody.

20 The Crown prosecutor, very fairly and properly, accepted that the offender might have been in the early phase of development of a mental illness at the time of the killings, and that that factor took the case out of the worst category calling for imprisonment for the term of his natural life. That said, the psychiatric evidence conveys that the effect of that condition on his criminal behaviour would have been minimal.

21 I am prepared to accept that he was affected by a drug to a degree at the time, and that his mental condition and his use of that drug impaired his judgment and made him more susceptible to the influence of his accomplice, who was an older man. I am also prepared to accept, not without some misgivings, that he was to some extent influenced by his accomplice, who conceived the idea of killing his parents and formulated the plan to put it into effect. However, these matters cannot significantly mitigate the gravity of his crimes which, his counsel acknowledged, demonstrated “a high degree of culpability”.

22 It seems that he has been compliant with his medication while in custody, and that his psychotic symptoms have abated. Both psychiatrists were of the view that, provided he remains compliant with psychiatric treatment, he is unlikely to represent a danger to the community in the future. Dr Allnutt gave evidence that this involves his remaining drug free, because of the relationship between his psychosis and his drug abuse. Dr Canaris emphasised the importance of his maintaining contact with mental health services upon his eventual release. If these conditions are met, it seems to me, his prospects of rehabilitation are reasonable.

Pleas of guilty and assistance

23 The offender pleaded guilty to the two counts of murder before me on 10 October 2005. However, upon his arraignment on 1 April 2005 his legal representatives conveyed to the Crown that the only issue at a trial would be his mental state, the intention being to raise a defence of substantial impairment under s23A of the Crimes Act. Indeed, that had been indicated to the Crown in an informal way before that date. This bears, of course, upon the utilitarian value of the pleas of guilty.

24 In addition, the Crown prosecutor acknowledged that it is unlikely the offender could ever have been charged with the killings but for his admissions to the police. Those admissions, together with his escalating drug use after the killings, suggest a developing sense of guilt about his crimes and tend to support the genuineness of an expression of remorse recorded in the first report of Dr Canaris. Furthermore, a sealed exhibit contains documents establishing that he has provided further assistance to the authorities of a significant kind, and has undertaken to continue to do so.

Victim impact statement

25 I have received a victim impact statement from Mrs Margaret Urwin, written for her own part and on behalf of her family. That statement speaks eloquently of her love of her sister and brother-in-law, her shock and grief at their tragic loss, and the enduring effects upon her of these appalling crimes. I extend to Mrs Urwin and her family my deepest sympathy. The approach of a sentencing judge to a statement of this kind is now well settled, and I need not repeat it. My sentencing task requires the balance of a number of factors, some of them competing, but the starting point must be clear recognition of the undoubted gravity of these offences.

Sentence

26 For what it is worth, I accept that the offender hoped that his parents would be unconscious when they were asphyxiated and would feel no pain. That was not to be the case. It is apparent that both the unfortunate victims struggled before they expired. The offender stands for sentence for two premeditated murders, committed for financial gain. Moreover, the victims were his adoptive parents, who had loved him and provided for him. If there was anyone from whom they should have feared no harm, it was he. Viewed objectively, these crimes call for condign punishment.

27 On the other hand, appropriate weight must be given to his relative youth, his lack of any significant criminal record and his favourable prospects of rehabilitation. More importantly, his pleas of guilty, his co-operation with investigating police and the assistance to the authorities to which I have referred must be recognised. It is in the community’s interest that co-operation and assistance of that kind be encouraged, and those factors entitle him to a significant measure of leniency. However, recognition of them must not be allowed to reduce the sentence to a level which is unreasonably disproportionate to the gravity of these offences.

28 Although the two murders are closely linked in time and circumstances, the sentences should be partly cumulative. Relevant aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act are apparent from these reasons, and need not be repeated. The crimes having been committed in 2000, the case is unaffected by the 2002 amendments to that Act, introducing standard non-parole periods and altering the manner in which sentences are to be pronounced. In respect of each sentence, I shall depart from the usual proportion between sentence and non-parole period by reason only of the partial accumulation. Any effective non-parole period lower than that which I propose would be inadequate to mark the offenders’ criminality. On the other hand, the overall sentence which I propose allows him the opportunity of an extended period at liberty in the community subject to the sanction of parole. That also is in the community’s interest.

29 It is desirable that I indicate the aggregate sentence I would have imposed but for the offender’s pleas of guilty, his co-operation with police and his assistance to the authorities. I shall then express as a percentage the reduction of sentence which the combination of those factors has earned him, and it is necessary that I specify the proportion of that reduction referable to the assistance to the authorities which he has undertaken in the future. In other circumstances, these factors might have earned him a discount of sentence in the order of forty percent. However, I consider that such a reduction would produce an aggregate sentence unreasonably disproportionate to the seriousness of his crimes. The discount I propose is thirty percent. Of that I would assign twelve percent to future assistance.

30 But for the pleas of guilty, the co-operation and the assistance, I would have imposed sentences aggregating imprisonment for forty years. The thirty percent reduction produces an overall sentence of twenty-eight years. The sentences will be structured so as to provide an effective non-parole period of twenty-two years. The first sentence to be imposed will date from the day he was taken into custody, 2 February 2004.

31 The offender is sentenced for the murder of his father to imprisonment for twenty-five years, with a non-parole period of nineteen years, to date from 2 February 2004. For the murder of his mother he is sentenced to imprisonment for twenty-five years, with a non-parole period of nineteen years, to date from 2 February 2007. He will be eligible for release on parole on 1 February 2026.

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