R v Dunstall (No 4)

[2018] NSWSC 1923

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Dunstall (No 4) [2018] NSWSC 1923
Hearing dates:	1 November 2018 & 6 December 2018
Decision date:	13 December 2018
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	(1) Convicted of murder. (2) Head sentence of 32 years with non-parole period of 24 years, each to date from 12 May 2015.
Catchwords:	SENTENCE – offender found guilty of murder after trial by jury – two offences of dishonesty on Form 1– discussion of objective features and subjective features – criminal record for deception and solicit to murder – no remorse as offender maintains innocence – consideration of life sentence – determinate sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Category:	Sentence
Parties:	Regina Glen Roland Dunstall
Representation:	Counsel: D Scully (Crown) J Stratton SC (Accused)   Solicitors: Director of Public Prosecutions (Crown) Voros Lawyers (Accused)
File Number(s):	2015/141328
Publication restriction:	Nil

REMARKS ON SENTENCE

Introduction

1. On 10 September 2018, Glen Roland Dunstall (the offender) was arraigned before a jury panel and me in the Supreme Court sitting at Wollongong. The indictment contained a single count, averring that, on 9 June 2014 at Budderoo, the offender murdered John Gasovski (to whom I shall usually refer in these remarks as “the deceased”). A jury of 12 was empanelled, and the trial proceeded.

2. On 16 October 2018, the jury (by that stage having been reduced to 11) retired to consider its verdict. The following day, a verdict of guilty of murder was returned.

3. Thereafter, I received documentary and oral evidence in proceedings on sentence conducted on 1 November and 6 December 2018 (the matter was delayed a little by a logistical problem with regard to a psychiatric report).

4. It now falls to me, after having had the benefit of an extended period of reflection, to sentence the offender today.

5. The maximum penalty for the offence of murder is imprisonment for life without possibility of parole. Parliament has also provided, in the circumstances of this case, a standard non-parole period of 20 years. I regard each of those periods as important guideposts in my exercise of the sentencing discretion.

6. With regard to my findings of fact, I am of course bound by the verdict of the jury, and its establishment of the elements of the offence. Aggravating features posited by the Crown, above and beyond those elements, must be proven beyond reasonable doubt; mitigating features relied upon by the offender need only be proven on the balance of probabilities. Some matters, inevitably, will remain a mystery.

Background

7. How it was that the offender came to murder the deceased can be understood by the following context.

8. In the years 2011 and 2012, the offender was incarcerated in Junee gaol, serving a reasonably lengthy sentence for offences of dishonesty. There he met the man whom I shall continue to call Mr Archer, and who was serving a very lengthy sentence for the importation of prohibited drugs. Mr Archer had committed serious offences to do with those substances more or less throughout his whole adult life. In similar vein, the offender had been a fraudster and a deceiver for many years. The two men became good friends, and were in the habit of calling each other “brother”.

9. There came a time when the offender had been released from prison, and Mr Archer was on day release. They attempted to engage in a criminal transaction to do with a precursor in the manufacture of a prohibited drug. The deal went awry when a defective product was sourced. To be clear, I mention that aspect as background only, and do not punish the offender for any involvement in that undertaking.

10. Despite the failure of that venture, the offender and Mr Archer remained on good terms. In early 2014, Mr Archer spoke of being in financial difficulties arising from his criminal business, to which he had returned with enthusiasm once he had been released on parole. The offender spoke of being able to source a large quantity of cannabis from a warehouse in Canberra at a very good price. Mr Archer was interested, and no doubt saw a substantial profit to be made if he were to purchase the cannabis and thereafter on-sell it at a significant mark-up. Also interested was a criminal associate of Mr Archer to whom I shall continue to refer as Mr Brixton, and who operated a cafe in the inner suburbs of Sydney. Later, other associates of theirs became investors in the criminal proposition as well.

11. In fact, the large amount of cannabis in Canberra did not exist; the offender told countless lies about it; and he also took other persuasive steps such as providing misleading photos that he had sourced from the internet, in order to make more than two members of the criminal milieu believe that he was telling the truth about the non-existent product.

12. As part of the build-up to the purported transaction, the offender received $45,000 in so-called “green-keeping fees” from Mr Archer, more or less for his role as facilitator or introducer with regard to a product that was simply not available.

13. In the meantime, as part of a purported plan to (at the least) frighten the person said to be to blame for the transaction that had gone wrong, Mr Archer provided the offender with a handgun that was in full working order. It goes without saying that neither man was entitled to possess that deadly weapon.

14. To summarise what I have just outlined: by May 2014, a high-level drug dealer had parted with $45,000 provided to the offender, on the assumption that his initial investment would be richly repaid in the future. Pressure began to build on the offender to make good on his claim that he could facilitate the supply from Canberra of a very large quantity of cannabis, for which the purchase price was proposed to be $300,000.

15. Separately from all of those developments, the deceased, a man of mature years who I find was, at most, on the edge of the criminal world, foolishly accessed his super, and put it towards a speculative investment. It failed, and the deceased foresaw a very difficult financial future for himself, his wife, and his children. He had been friends for a time with Mr Brixton, who as I have said ran a seemingly legitimate business. The deceased became something of a paid “gopher” for Mr Brixton to do with the cafe. Once the relationship between that employer and Mr Archer deepened, the deceased moved on to be part of the crimes of Mr Archer, again as a general hand, including as a deliveryman.

16. A particular role of the deceased was to purchase laboratory equipment that could be used by Mr Archer and his associates in the manufacture of amphetamines. The deceased was supplied with a very convincing false driver’s licence, so that he could provide a written assurance in a false name that the purchased glassware would not be used in the manufacture of prohibited drugs. And the false licence meant, of course, that the true purchasers would be untraceable. As part of all that, he was also provided with an unremarkable Hyundai van in which he would pick up the equipment for Mr Archer, and no doubt drive around Sydney performing other illegal chores for money. That remained his role as at June 2014.

17. Returning now to the offender, he told yet more lies as to why the cannabis deal could not proceed, and succeeded in putting off the investors for a time. Eventually, things could not be delayed further.

18. An arrangement was made that, on the evening of 9 June 2014 (the Monday of the Queen’s Birthday long weekend), the offender and the deceased would meet at the Sutton Forest service centre on the Hume Highway between Sydney and Canberra. The plan was that the deceased would drive the van from Sydney to that location. The offender would travel up the Hume Highway from his home in Wagga Wagga, in the very large truck that he was employed to drive interstate at the time. The two of them, it was planned, would then travel together in the van to Canberra, pick up the cannabis, return to Sutton Forest, the offender would be dropped back at his truck, the deceased would return to Sydney with the cannabis, and he would there provide it to Mr Archer and Mr Brixton for profitable distribution by them.

19. The deceased fulfilled his side of the arrangement, arriving at Sutton Forest at approximately 7 pm. He believed that the arrangement was genuine, trusted the offender, and had no reason to doubt that everything would unfold smoothly and as planned.

Objective features

20. In sharp contrast, the offender, before leaving Wagga Wagga, had come to the view that the solution to his problem was as follows.

21. He had decided to murder the deceased; thereafter, falsely claim that the cannabis had been supplied to him; and, once the deceased was missing, further claim that the deceased had either made off with the cannabis himself, or been robbed by a third party.

22. In order to put that settled plan into action, before he departed the Riverina, he armed himself with a handgun and suitable ammunition. Although I strongly suspect that that handgun was indeed the weapon with which he had been provided by Mr Archer weeks beforehand, I make no firm finding about it, and nothing turns on the question in any event. As for the level of preparation undertaken by the offender, I cannot be satisfied beyond reasonable doubt that it went further than arming himself in the way that I have described.

23. The drive from Wagga Wagga to Sutton Forest is, at the least, four hours. The decision to commit premeditated, cold-blooded murder had been taken before that journey commenced. And, remarkably, the fact that the offender happened to be pulled over by the Highway Patrol at Marulan, with regard to a minor defect on his truck, shortly before he met up with the deceased, did nothing to dissuade him from carrying out the plan.

24. In due course, the offender arrived at Sutton Forest service centre at 8.14 pm. He used some false story or other to persuade the deceased to drive his van, in convoy with the offender’s truck, north to the Pheasants Nest service centre, some distance back up the Hume Highway towards Sydney.

25. Once there, the offender told the deceased that the plan had changed, and that the cannabis was to be picked up at Jamberoo Lookout, an isolated location to the east of the Hume Highway above the Illawarra town of Kiama and with which the offender was familiar. Because the deceased believed that further lie, he drove the van east with the offender as front seat passenger. In other words, the men were together for a good half hour, during which, unbeknown to the deceased, the offender maintained the firm intention that his companion would shortly be callously murdered.

26. I might add with regard to the above that I have reflected on the question of whether the pistol was actually produced at Pheasants Nest, and the deceased was forced by the offender at gunpoint to drive to the lookout, and from that early point on was in fear of death. That would unquestionably be a serious aggravating feature. After reflection, I have come to the view that I cannot be satisfied of that beyond reasonable doubt, not least because the offender is an accomplished liar, and the deceased had no reason to disbelieve him.

27. On arrival at the lookout, which was unlit and no doubt deserted, the two men walked a distance of 25 metres or so from the car park into the bush above a steep cliff. Yet again, I have reflected on whether the offender produced the gun in the van on arrival, and used it to force the deceased to walk into the bush, with the result that the deceased, for a number of minutes as he walked, knew that he was about to die.

28. I suspect that that may be the case. But it is to be borne in mind that for decades the offender has shown himself to be a master deceiver; that the deceased was not a hardened criminal who might have learned to be suspicious of others; and that the deceased had no reason whatsoever to believe that the offender might be lying about the cannabis, and might wish to do him harm. After reflection, my finding does not go beyond the proposition that, once they arrived, the offender somehow inveigled the deceased into walking unknowingly into the bush, by way of yet another lie.

29. The two men reached a point where the offender produced the handgun. He administered a single shot at close range above the right ear of the deceased. Death was instantaneous. The offender believed that he had, through that act of the utmost heartless brutality, solved the financial problem that he himself had created. And he was content to leave the body of the deceased where he had fallen to decompose, just like the body of a dead animal.

30. After that, the offender coolly re-entered the van, drove it back to Pheasants Nest, re-entered his truck, and drove on to Sydney. He disposed of at least one mobile device that had been in the possession of the deceased, along with the handgun, which has never been found. And he has told an enormous number of complicated lies ever since, including to Mr Archer, Mr Brixton, and many police officers.

Form 1 offences

31. Quite apart from that act of profound criminality, the offender has asked me to take into account, when sentencing him for murder, two offences of dishonesty that he committed at around the time of the events that I have recounted.

32. The first was dishonestly obtaining property by deception, and the second was attempting to commit that offence. The parties were agreed that I should think of each of those offences as being dealt with summarily; accordingly, they each possess a jurisdictional limit of imprisonment for two years.

33. In a nutshell, the offender defrauded Mr Duck, a straightforward and trusting farmer from the south west of New South Wales, of over 100 thousand dollars, of which something in the order of $40,000 was eventually repaid, with regard to the purported purchase of a truck. The fraud was not unsophisticated, featured countless lies, and took place over an extended period, from late 2012 until early 2015.

34. The offender attempted to do the same to Mr Fadel with regard to the purported sale of a truck trailer over several months, between late 2014 and early 2015. Again, the methods adopted were not unsophisticated, and the offender tried to use many of the well-known tools of a practised conman, including suggesting that the deal must be accepted urgently, and lacing his claims with appeals to sympathy. In the case of Mr Fadel, however, who struck me as quite a canny businessman, and who had extra help from his cautious accountant, no further funds were actually obtained.

35. I am prepared to take those matters into account when sentencing for the murder. In accordance with well-established authority, although I shall impose no sentence with regard to them, they may have the effect of increasing the sentence for murder, by way of giving greater emphasis to personal deterrence, and to the entitlement of the community to see retribution delivered for serious offences.

36. I should say at this stage that the attempted offence against Mr Fadel pales into insignificance when compared to the murder of the deceased. So does the offending against Mr Duck, of course; but it is not to be discounted entirely. That is not only because a substantial sum was dishonestly obtained, but also because it was clear from his demeanour in the witness box during the trial that Mr Duck had suffered not only financially but also emotionally.

37. In short, I believe that the sentence I impose should reflect, to some degree, the criminality of the offence against Mr Duck.

Objective seriousness

38. I turn now to assess the objective seriousness of this offence of murder. I appreciate that some might think that that exercise borders on the absurd, in that it goes without saying that every case of extinguishing the life of a fellow human being in the most serious circumstances known to law is an offence of the greatest gravity.

39. But it is possible, and necessary, to make an assessment of the objective seriousness of an example of the offence of murder, not least in order to give sensible effect to the maximum penalty and the standard non-parole period. I shall therefore recount what I regard as the most significant objective features of this offence, whilst appreciating that the following summary may stray across the blurred line between objective and subjective features.

40. The murder of John Gasovski possesses the following features.

41. It was premeditated, in that, at the latest when he left Wagga Wagga hours beforehand, armed with a handgun and ammunition, the offender had decided that he would murder the deceased.

42. It was not without sophistication, in that the offender took care to ensure that nothing noteworthy occurred at the service centre at which the two men had originally arranged to meet, and he proposed to rely upon the satellite tracking of his truck in order to give himself an alibi.

43. It was cold-blooded, in that the offender had absolutely nothing against the deceased personally, and was not in some heightened emotional state when he brought his life to an end.

44. It was determined, in that the offender would not be deterred from his decision, even by an interaction with a police officer very shortly beforehand.

45. It was merciless, in that it was committed against a person who was trusting, alone, and by no means a hardened criminal.

46. It featured, without any doubt, an intention to kill, evidenced by the shot to the head.

47. It was effected by the use of a pernicious and anti-social deadly weapon, in the form of a readily concealed handgun that had been illegally obtained.

48. Finally, it is true that the offending was partly motivated by fear of retribution from Mr Archer and Mr Brixton (whom the Crown prosecutor described to the jury as “serious men”), if they were to find out that the offender had brazenly misled and cheated them. Nevertheless, the starting point of the commission of the offence was the protection of the doubly unlawful financial gain that the offender had achieved, by way of a payment of the so-called green-keeping fees for a prohibited drug that in truth did not exist.

49. In other words, it was largely committed for money.

50. By any measure, this is a murder of the utmost objective gravity. It undoubtedly calls for a non-parole period well beyond the standard set by Parliament. Indeed, it has led me to reflect, over many weeks, whether the ultimate sentence should be imposed, thereby denying the offender, from this day forward, any hope of the possibility of release.

Subjective features

Plea of not guilty; absence of remorse

51. Turning now from the offence to the offender who has committed it, he of course pleaded not guilty at the commencement of the trial, as he was perfectly entitled to do. That means, self-evidently, that there can be no discount for the utilitarian value of any plea of guilty.

52. Having said that, I accept the submission of senior counsel that the trial, although extended, was run in a focused and efficient way. There should be some small recognition of that, by way of a reduction in the sentence that I shall impose, perhaps, in a very broad sense, counterbalancing the increase that is called for by way of the inclusion of the offence against Mr Duck.

53. Separately, since the return of the verdict of guilty, the offender has expressed not the slightest remorse, or even an acceptance of responsibility; indeed, he recently maintained his innocence to a psychiatrist, in the face of a Crown case that was compelling. Again, he is perfectly entitled to maintain that stance, but it simply means that there can be no favourable reflection of his position in the sentence that is to be imposed.

Criminal record, and its effect on credibility

54. The offender is now aged 50, he having been aged 45 years at the time of the murder. Understanding, and making findings about, his past, present, and future is made difficult by the fact that I accept virtually nothing he has to say about any matter, even on the balance of probabilities, unless it is corroborated by another source. I say that not only because the verdict of the jury establishes that he has told many lies about the murder, and he himself admits that he has lied repeatedly to Mr Duck and Mr Fadel. I also adopt that position because he has been a chronically dishonest person for his entire adult life.

55. Turning to analyse in more detail the criminal record that establishes that proposition, the offender has been convicted of offences in New South Wales, Victoria, and the ACT. He first committed an offence of dishonesty in June 1990, approaching three decades ago. Since that time, he has done so repeatedly, and has been imprisoned for such offences more than once. In 1998, for example, the Court of Criminal Appeal imposed a head sentence of 3 years with a non-parole period of 18 months for an offence of disposing of stolen property. And, as I have said, at the beginning of this decade, the offender was serving a reasonably substantial sentence for such offences.

56. In a nutshell, the offender is a practised, chronic, recidivist deceiver. That is why I have adopted a highly cautious approach to aspects of his background that come only from him, and only by way of unsworn, untested assertions. In particular, much of what he recently told a forensic psychiatrist about his background, upbringing, and life generally, I simply put to one side.

General matters

57. I do accept, however, that the offender was adopted as a child, because his daughter gave evidence on oath before me that that has been common knowledge within the family for years.

58. I also accept that he has been committed to employment throughout his adult life when not incarcerated, though work settings have, at least sometimes, provided an opportunity to take advantage of trusting people.

59. I believe that the offender has not enjoyed a particularly privileged upbringing, nor any luxurious lifestyle as a result of his financial crimes.

60. I accept what his daughter had to say on oath; namely, that from her perspective he is a kind and loving father, and did his best for his family when not in prison.

61. I accept that, since his continuous incarceration that commenced in May 2015, his wife has divorced him, because there was evidence about that in the trial.

62. And I also accept that, as a man of 50, the offender is not in particularly good health, not only because the life of a truck driver is challenging in that regard, but also because, as at the time of his lengthy recorded interview in May 2015, it is clear that he was a reasonably heavy smoker.

63. Beyond those general factors, I am not prepared to go. In particular, in the unusual circumstances of this case, I am not satisfied, on the balance of probabilities, that this man has ever suffered a serious work injury; that he has ever been dependent upon a prohibited drug; that he feels guilt about the death of his mother; that he was at one stage a highly successful businessman running a fleet of more than 20 trucks; that he suffered, as a result of a work dispute, the malicious killing of a beloved family pet; or that he will find imprisonment more burdensome because of the imminent death of his father.

Other aspects of criminal record

64. Returning now to the criminal record of the offender, two further aspects require emphasis.

65. The first is that, as his counsel has submitted, it contains only the faintest flavour of previous violence. That plays a number of roles in my determination, all of them favourable to the offender.

66. To be weighed against that is the fact that, many years ago, the offender was convicted of soliciting another person to commit a murder, and sentenced by a judge of this Court to be subject to a five-year good behaviour bond. On that occasion, very favourable findings were made, objectively and subjectively, and I have no intention of going behind them. Still and all, that matter had its troubling, even bizarre features. And it is a matter of inevitable concern that, having unsuccessfully incited a murder as a young man, the offender has committed a murder in his middle age.

Absence of mitigating psychiatric or psychological conditions

67. That common thread, in combination with the repeated offences of dishonesty committed by this man over many years, raises a suspicion in my mind of a deep underlying pathology. Having said that, any such explanation was unexplored in the evidence, and I do not believe that I can go further. To be clear: I certainly do not find on the balance of probabilities that this offence is mitigated by any psychiatric or psychological condition suffered by the offender.

68. Speaking more generally about that topic, I accept the thrust of what has been said by the distinguished forensic psychiatrist who recently examined him: the offender suffers from no frank mental illness, and is not unintelligent. In accordance with my earlier findings, I put any suggestion of a substance use disorder to one side.

The future

69. Turning to the future, it is inevitable that the offender must spend many years in prison for what he has done. My impression is that he has already learned to function quite well in gaol over the years, and he will be able to serve his sentence quietly and constructively, and with the benefit of support from at least some family members. I also think that he may be intelligent enough to seek to understand, at some stage in the years ahead, why he has done what he has.

70. As for the related question of his future dangerousness, as senior counsel has submitted, the absence of previous violence bodes well in that regard. And I also accept the opinion of the psychiatrist about that: it is very difficult to make findings, including adverse findings, about dangerousness many years into the future. In the circumstances, my sentence makes no attempt to predict the danger that the offender may present to the community many years from now.

71. As I have said, I suspect that it could well be that some deep seated mental or emotional problem has affected the life of the offender, perhaps from a very early age. I repeat: I am not satisfied of such a matter on the balance of probabilities. Still and all, if such a problem exists, and if it can be dealt with constructively, that may, perhaps, give one grounds for a very guarded optimism, many years in the future.

Life sentence?

72. As I have said, I have reflected on whether this murder calls for a sentence of imprisonment for life without possibility of parole, featuring as it does a premeditated execution, carried out by way of a pistol, committed by a mature and experienced criminal, and motivated by the desire to keep funds that had already been obtained through deception.

73. Having had the benefit of the submissions of both parties, however, I have shied away from that course. I say that because I think it reasonably possible that the deceased suffered for no more than a fraction of a second before he died; because the offence was motivated partly by fear as well as greed; and because the offender had not previously shown himself to be a violent person. I also think it possible that this man of limited means was dazzled by the riches of the serious and manipulative criminals with whom he was dealing, and that that was part of what led him to act in a way that was significantly out of character for him.

74. As I say, I have decided not to impose that crushing blow. Having said that, the sentence that I shall impose will give rise to the possibility that the offender will die in gaol. That is the inevitable consequence of the gravity of what the offender has done, and the stage of his life at which he has done it.

Various aspects

75. I turn briefly now to a number of aspects of my task.

76. First, a full backdate will be granted until the date when continuous custody commenced; that is, 12 May 2015.

77. Secondly, these remarks reflect all of the aggravating and mitigating features that I have taken into account, and I do not propose to repeat them mechanistically.

78. Thirdly, the inevitable length of any parole period means that there is no call for reduction of the period to be spent in custody before eligibility for parole arises.

79. Fourthly, despite my refusal to impose a life sentence, the offender should be aware that, in light of the nature of the offence that he has committed, he may not be released, even at the conclusion of his entire head sentence, if it is established at that stage that he presents a danger to the community.

Effect of offence

80. Finally, of the two men who travelled to Jamberoo lookout on the evening of 9 June 2014, much has been said in these remarks about one of them, and very little about the other. That is because, understandably, the law requires me to focus upon the offence and the offender who committed it, in order to explain the sentence that I shall shortly impose upon him in response. But I have not forgotten the other man, who was also little discussed in the evidence at trial or in the proceedings on sentence. I conclude by turning just for a moment to the subject of the deceased, and the effect that his death has had, not only upon those who love him, but also upon Australian society generally.

81. As I have said, although John Gasovski entered the fringes of a world of criminality, no evidence has been placed before me to suggest that he was really a criminal. My impression is that he was a middle-aged man who made a bad financial decision and, more or less out of desperation, ended up in a world to which he was thoroughly unsuited. And the evidence placed before me by way of a measured, eloquent, and moving victim impact statement from his widow, Mrs Jackie Gasovski, on behalf of the entire family, amply demonstrates the searing pain that has been inflicted upon many, many people as a result of the single shot that was fired on the evening of 9 June 2014.

82. I certainly accept that that harm should be able to be taken into account on sentence, in accordance with the application made by the Crown pursuant to statute.

83. And speaking more generally, I also accept that any premeditated murder, committed cold-bloodedly with a handgun, in order to protect a sum of money, against an innocent and unsuspecting victim, has a very harmful effect upon Australian society. Indeed, I believe that it has a corrosive effect, whereby human life is valued more and more cheaply, to the point where, for some people, it comes to be seen as simply expendable. The criminal justice system must respond to conduct that eats away at our society in that way with a sentence of due severity.

84. I extend my condolences to all who have suffered over the past four and a half years. And whilst the conclusion of these proceedings today may provide some relief by way of a measure of closure, I accept that, for many, their pain will be unrelenting.

Imposition of sentence

85. Glen Roland Dunstall, you are convicted of the offence of murder.

86. Taking into account the other two offences, I impose a non-parole period of 24 years, to commence on 12 May 2015.

87. That will be followed by a parole period of 8 years, to commence on 12 May 2039 and expire on 11 May 2047.

88. To express my sentence another way, I have imposed a head sentence of imprisonment for 32 years with a non-parole period of 24 years, with a full backdate.

89. The first date upon which the offender will be eligible for possible release to parole is 11 May 2039.

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Amendments

17 December 2018 - Cover page amendment "R v Dunstall" to "R v Dunstall (No 4)"

Decision last updated: 17 December 2018