R v Eaves and Carroll
[2002] VSC 44
•4 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1444 of 2001
| THE QUEEN |
| v |
| JAY AARON EAVES ASHLEY DOUGLAS CARROLL |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 December 2001 | |
DATE OF SENTENCE: | 4 March 2002 | |
CASE MAY BE CITED AS: | R v Jay Aaron Eaves & Ashley Douglas Carroll | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 44 | |
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Criminal law – Sentencing – Manslaughter – death from head injuries inflicted in panic - prisoners and deceased were partners in cannabis growing – youth and other mitigatory considerations – disparity appropriate - prison for principal offender for five years six months with non-parole period of two years nine months – prison for aider and abetter for three years six months with non-parole period of one year nine months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | S. Pullen | Office of Public Prosecutions |
| For the Accused Eaves | G. Thomas | Victoria Legal Aid |
| For the Accused Carroll | M. Bourke | Galbally & O’Bryan |
HIS HONOUR:
You have each pleaded guilty to the crime of manslaughter, arising out of the killing of Peter Nicola on the night of either August 3 or 4, 2000, at Cranbourne.
Peter Nicola was a man much older than both of you were. He was born in October 1960. In August 2000, he was nearly 40. One of you had just turned 20. The other was about to turn 20. The two of you had been friends since the age of 8. In June 1999, the two of you started renting a house together at 12B Bundjil Court in Cranbourne. The lease provided for inspections by the landlord every 6 months. At that time, Jay Eaves was working with a Darren Noble doing plastering work. After you moved into the house, Darren Noble told you about Peter Nicola. Darren Noble had, many years before, met Peter Nicola in prison. Darren Noble knew that Peter Nicola was looking for a partner in crime. Peter Nicola wanted to engage in the illegal activity of growing cannabis hydroponically. Peter Nicola was accustomed to being involved in illegal activity. He had been sentenced to long terms in prison, in 1979 for armed robbery, in 1986 for trafficking heroin and in 1993 for conspiring to commit armed robbery. He associated with other criminals like Darren Noble. Darren Noble considered the two of you to be potential partners for Peter Nicola and himself. The two of you chose to smoke marijuana regularly. You bought your marijuana from Darren Noble. He could see that the house you shared could be adapted for the growing of cannabis. He told you that Peter Nicola was looking for partners. He told you something of the background of Peter Nicola. You learned that Peter Nicola had spent a lot of time in prison, that he could be violent, and that he could be into guns. Darren Noble also indicated to you that he would look after you as regards Peter Nicola. The two of you talked about the partnership proposal. You were attracted because you were spending so much a week buying marijuana. Darren Noble brought Peter Nicola to the house that you shared. The four of sat down and talked about the scheme to grow cannabis. You decided to proceed. An agreement was arrived at. The deceased was to provide the expertise, the plants and the equipment. You were to supply the room and do much of the maintenance. Darren Noble was to provide some assistance with the maintenance and he was to sell the marijuana from the cannabis crop after it had been cut and dried. A cannabis crop was expected to produce about 5 pounds of marijuana. Peter Nicola was to get 3 pounds, Darren Noble was to get one pound and you were to get one pound.
The first cannabis crop was started not long after you had moved in. Peter Nicola brought around the plants, the trays, the heavy plastic, the chemicals, the globes and other equipment related to cultivation. Holes were made in the ceiling for an extraction fan and to hold the lights. The two of you kept the crop watered, and kept the lights operating at the right times. You received an expensive electricity bill but you did not have to spend money on marijuana. You figured out that you were ahead financially. During the first crop, you came to know more about Peter Nicola. That was because, although he came and went from the house, there were many times when he stayed overnight, sleeping on the floor. At times, he came with friends. At times, he brought guns to the house: a sawn-off shot gun, and a small handgun. From an early stage, he chose to leave a bag and other belongings at the house you shared. As time went on, he left more and more of his belongings at the house. He left them on the floor in a corner of the main living room.
After the growing of the first crop proceeded uneventfully, there had to be an inspection by the landlord. To permit the inspection, you had to store equipment related to cultivation in cupboards and to clean up the spare room. That meant covering up the ceiling holes. After the first crop, you had to make a choice as to whether to continue the partnership with a second crop. You decided to continue, on the same terms as for the first. The growing of the second crop also proceeded uneventfully. At the end of the second crop, Jay Eaves decided to stop working as a plasterer with Darren Noble, because Darren Noble was proving to be a difficult boss. The falling out between Jay Eaves and Darren Noble led to a falling out between Darren Noble and Peter Nicola. The two of you then had to make another choice, and that was as to whether to proceed with a third crop. You decided to continue without Darren Noble. When the third crop had about 3 weeks to go to reach maturity, the landlord telephoned you. He rang on the Friday to arrange an inspection on the Monday. Peter Nicola was annoyed when you told him there had to be an inspection. To permit the inspection, he had to cut the plants sooner than he wanted to. Perhaps two pounds more growth could have been achieved if there had been three more weeks. Peter Nicola came to the shared house with another man to cut the plants, to take the cuttings away and to clean up the room. He gave you some cuttings, but not as much as you expected. After the landlord had inspected the house, Peter Nicola returned to ask about a fourth crop. He was pressed by Jay Eaves to say what his intentions were as to your share of the third crop. He said that he was taking all the shares. He said he had bills from two court cases and other bills to pay and he needed the money.
Shortly after that, the two of you discussed what to do. You decided to check out a large bag of the deceased that was part of the belongings that he had left at 12B Bundjil Court. You found inside the large bag a camera case, and inside the camera case a loaded .45 calibre handgun. It had one bullet in the breach and 7 bullets in the clip. After inspecting the gun, you replaced it in the bag.
A couple of days later, on the night of August 3 or 4 in 2000, around 9.30 p.m., Peter Nicola came to the house. He gave over a little marijuana and you had a friendly smoke. Jay Eaves pressed Peter Nicola for more marijuana. Peter Nicola said he was going to leave, taking his belongings with him. When pressed further to give you more marijuana, Peter Nicola started to get heated. He told you to stop asking him about the marijuana, and that you were not getting more. He went on to say that you would not want to fall out with him. He then walked across the living room to his belongings and specifically to his large bag. He squatted down next to it, and started to unzip it. The two of you were panic-struck and fearful that he might get out the gun and use it on you. You, Jay Eaves moved first. No obvious weapon was to hand. You knew the nearby table was wobbly because the legs were poorly attached. It appears not to have been difficult to pull off a leg. That was what you did. With the table leg, you hit Peter Nicola across the back of the head. That was enough to incapacitate him. He stumbled towards the kitchen and back door, and fell down partly on the carpet and partly on the tiles. You then hit him on the head again and again with the table leg. At the later autopsy it was established that he died of head injuries. You, Ashley Carroll, grabbed a gym bar that was near the fridge. Several times you hit Peter Nicola on the back with it.
After the joint beating stopped, Peter Nicola continued to moan for some time. You wrapped a blanket around his head. You tied a cord of speaker wire around the blanket until the moaning stopped. It was then clear that he was dead. You sat around and smoked marijuana and tried to figure out what to do. You decided not to go to the police. You were troubled about the attitude of friends of the deceased. You decided to get rid of the body by burying it yourselves. You wrapped the body further. You put it into the boot of Peter Nicola’s car. You borrowed shovels and a mattock from a friend. You had to deal with Peter Nicola’s dog. You did so by killing the dog and putting its body in the boot. You drove the car into a National Park in Gippsland. You left the dog unburied. You buried Peter Nicola’s body in the bush. You returned to 12B Bundjil Court. You then set about removing evidence of blood and otherwise of Peter Nicola’s presence at the house. You put some of his clothes in Brotherhood bins. You planned to put more of his belongings in a skip. You had to decide what to do with his car and his handgun. At least in the short term, you decided to keep them. Later in August 1999, the two of you were in the car well out of Melbourne. Jay Eaves was driving. There was a collision with another vehicle. The police asked questions, which were fended off. You then decided to dismantle the car, with a view to selling parts in it for spares.
On 6 September, you Jay Eaves decided to go to the local supermarket in Cranbourne. You decided to take with you Peter Nicola’s handgun, loaded. Circumstances led to the police asking you questions and arresting you. You lied to the police about the gun, saying that you found the gun in the bushes in a car park. The police drove you back to 12B Bundjil Court and looked around. You expected or at least hoped that the police would not come back. The next day you went up the street to get some lunch. On the way back a friend informed you that the police were at the house. You realised they would have found evidence of events pointing to the killing of the deceased. You went to see a solicitor, and were advised to come in to see the police. There was then co-operation with the police. The co-operation was extensive in the case of Jay Eaves, less so in the case of Ashley Carroll.
The two of you were charged with murder. You have now pleaded guilty to manslaughter. The prosecution accepts, as I do in the light of all the material, that there was no intention to kill or really seriously injure Peter Nicola. You Jay Eaves were the principal offender in that you incapacitated Peter Nicola with your first blow and then hit him repeatedly to the head with the table leg, thereby causing his death. You, Ashley Carroll were aiding and abetting. You provided support and encouragement, by hitting Peter Nicola with the iron bar.
I have read the two impact statements filed as exhibits. Even people who may have little respect for the law have family and partners and friends. It would be a rare criminal homicide that did not have a significant impact on others close to the deceased. This is no exception. One statement is from his long time partner. The other is from a sister of Peter Nicola, and is written on behalf of his parents and siblings. It is clear from the statements that Peter Nicola’s death has caused much grief, and has had major long-term consequences.
I turn to your personal circumstances. There is much that you have in common. First I note some differences. Jay Eaves, you were born in April 1980. At the age of about 16, you appeared before the Children’s Court for burglaries committed for money for alcohol and marijuana. Ashley Carroll, you are slightly younger, having been born in August 1980. At the age of 17, your actions in stealing a car and being involved in a car chase led to convictions in the Magistrates court and the imposition of a suspended sentence.
You have in common that you are both young. Your youth is a major factor for me to have regard to in sentencing you. You both come from very supportive families. Both of you made just fair progress at school. Neither finished year 9. Both of you have at least a reasonable work history. In the case of Ashley Carroll, the indications of past performance and future prospects are particularly good. You have both done courses in prison. There was oral testimony from several witnesses led on behalf of both of you. The overall picture was such as to indicate that your prospects of rehabilitation are good.
Despite your choice to work with a hardened criminal, the indications are against your having chosen to follow a similar path in life. There was an obvious imbalance between Peter Nicola on the one hand and the two of you on the other. You were just out or about to move out of your teens. You had each had relatively minor encounters with the law. On the other hand, Peter Nicola was a mature criminal with several major convictions. What helped to bridge that imbalance in age and in attitude seems clearly to have been your joint interest in that pernicious illegal drug, marijuana. Because of your addiction to it, you were vulnerable to exploitation. You allowed yourselves to be exploited. There is little otherwise to suggest that you were committing yourselves to a career as criminals. Nevertheless, you made a number of decisions that indicated that you chose to run the risk of getting out of your depth. That risk was realised. You did get seriously out of your depth.
Apart from your youth, your good prospects of rehabilitation and other matters already referred to, there are other mitigating considerations affecting sentence. I state them shortly but that does not mean that they have received any less consideration. You have both pleaded guilty. There are some indications of remorse including in the making of the plea and in what was put to me by counsel. You both co-operated with the police. As noted earlier, the level of co-operation was greater with Eaves than with Carroll.
I turn to the subject of how seriously your offence is to be viewed. I accept that the first blows were performed in circumstances both of panic and of genuine fear as to what might have happened otherwise. Panic and fear are less acceptable explanations for the overall number of blows. What concerns me more is how both of you behaved beforehand and afterwards. Your behaviour can only be seen to have aggravated the seriousness of how the killing is to be viewed. There were considerations of selfishness and of a disregard for the law that lay beneath your behaviour.
Your decisions before the killing contributed to your being placed in a situation where your reaction to the development of a nasty predicament was to carry out a very serious crime. You decided to smoke marijuana. You decided to associate with a man whom you knew to be a hardened criminal. You decided to work with him on an illegal project. You decided to put pressure on him about how he was treating you in the course of that project. You are not to be punished separately for each of those decisions. But your choosing to act as you did created the circumstances in which your panic reaction was the very serious one of taking the life of another man to avoid running any risk to your own life.
The way in which the two of you acted after the killing in ways tied inextricably to the killing is also a major concern to me. I will not recite them again. It was put to me that you acted as you did less from a fear of detection by the police, than from a fear of what might be done to you by associates of Peter Nicola. I can understand why there could be on your part a perception of risk of the latter kind. And why it might be seen to arise both outside and inside prison. As to both of you, that is blunted to a degree by the use made of Peter Nicola’s car. As to Jay Eaves more particularly, there was an extraordinary naivete if not bravado in the taking of Peter Nicola’s loaded gun when dropping into the supermarket.
It is clearly appropriate that the sentences imposed on each of you should be different and to a marked degree. Put shortly, Ashley Carroll ought not to have to serve as long a term in prison as Jay Eaves. In the months before August 2000, Ashley Carroll showed on a number of occasions a sensible reluctance to associate and work with Peter Nicola. On the night of the killing, Ashley Carroll did not, and Jay Eaves did, apply pressure to Peter Nicola that caused Peter Nicola to react adversely and to move towards where his gun was known to have been secreted. Ashley Carroll did not, and Jay Eaves did, inflict the injuries that caused death. In the events after the killing, save as to co-operation with the police, Ashley Carroll was perhaps more equally involved. But he still took a secondary role. In favour of Jay Eaves, I do take into account the unusual willingness to recognise the greater responsibility for what happened.
For both of you the period of pre-sentence detention is the same, 544 days. I direct that that be entered in the court records. Jay Eaves, I sentence you to 5 years 6 months in prison. I fix a non-parole period of 2 years and 9 months. Ashley Carroll, I sentence you to 3 years 6 months in prison. I fix a non-parole period of 1 year and 9 months.
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