R v Gordon Leslie Walker (Appellant) No. SCCRM 94/365 Judgment No. 4786 Number of Pages 6 Criminal Law Sentencing

[1994] SASC 4786

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(3), MILLHOUSE(1) AND PERRY(2) JJ

CWDS
Criminal law - sentencing - Appellant pleaded guilty to aiding and abetting rape, to attempted rape and to murder, all arising out of an incident which occurred 16 years beforehand - the crimes followed the abduction of a young woman, and were committed in company with the appellant's brother, since deceased - appellant 16 years old at the time - appellant voluntarily came forward to the police and confessed, in circumstances in which it was unlikely that he would otherwise have been apprehended and charged - sentencing Judge imposed mandatory term of life imprisonment on charge of murder and concurrent terms of 5 years on the other counts - single non-parole period of 14 years - Judge indicated that he allowed a deduction of one-quarter for "going to the police, confessing, and pleading guilty" - held that although in the circumstances a deduction of one-third might have been more appropriate, the non-parole period was within a proper exercise of the sentencing discretion - appeal dismissed. R v Harris and Simmonds (1992) 59 SASR 300, considered.

HRNG ADELAIDE, 19 September 1994 #DATE 7:10:1994

Counsel for appellant:             Mr K Borick

Solicitors for appellant:            Diane Myers

Counsel for respondent:             Mr S Millsteed

Solicitors for respondent:         DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 MILLHOUSE J In 1978 the appellant, then aged 16 and his brother, about 16 months older, abducted, raped and murdered Maria Dickinson. It was a foul and callous crime, so awful that I recoil even from thinking about it.

2. This is how Duggan J put the facts in his admirably concise sentencing remarks:-
    " ... you aided and abetted your brother when he raped
    a young woman named Maria Dickinson. You then
    attempted to rape her yourself. Finally, you aided and
    abetted your brother in murdering the girl...

You and your brother were affected by liquor. He
    suggested to you that you pick up a girl and you
    agreed. According to the version you gave to the
    police, your brother persuaded Miss Dickinson to get
    into the vehicle and you at once held a knife to her
    throat. She was taken to a deserted location near
    Monarto. Your brother raped her and you attempted to
    do so.

I accept that it was not part of the original plan
    that she would be killed; but after the sexual
    assaults, he told you to get his rifle out of the boot
    of the vehicle. You did so. It is apparent that at
    least by this stage, you realised that he was going to
    shoot the girl."

3. The murder falls within the worst category. The learned sentencing Judge sentenced the appellant to life imprisonment and fixed a non-parole period of 14 years.

4. Neither man was caught at the time. No one was charged with what had happened. The elder brother committed suicide three years later.

5. Mr Kevin Borick with Mr Julian Hicks for the appellant told us that the appellant suffered enormously in his life for what he had done, spent most of his life drunk, had this on his mind.

6. Eventually the appellant has confessed, gone to the police, voluntarily turned himself in. If he had not, he probably would have gone through life without being suspected: the crime would not have been solved.

7. In his remarks Duggan J said:-
    " Your actions in going to the police, confessing and
    pleading guilty are matters which I must take into account
    and they have the effect of reducing the non-parole period
    by approximately one quarter."

8. The only real point in the appeal, so far as I am concerned, is whether the learned sentencing judge has made enough allowance in the appellant's favour for the confession and plea of guilty. No other criticism may be made of the way in which Duggan J has gone about fixing penalty, as shewn in his sentencing remarks.

9. Often when I hear pleas of guilty, counsel say that their clients express remorse for what they have done. I am tempted to reply - sometimes I fall for the temptation - that I bet they have: most people are very sorry when they are caught.

10. This case is different. There could be no clearer a sign of remorse and contrition than the actions of the appellant. I do not doubt his sincerity nor the genuineness of his remorse.

11. There is something else. If the appellant had not come forward, the strong chances are that this murder would never have been solved. It is, I suggest, in the interests of the community that crimes should be solved: guilty persons should be encouraged to confess.

12. Has the learned sentencing judge made sufficient allowance for such considerations?

13. With respect I do not think that he has. I can't help feeling that a reduction of one-quarter is not enough. In my view a more appropriate reduction would have been about one-third which on my calculations would warrant a reduction of the 14 year non-parole period to 12.

14. The general rule is that courts of appeal should not "tinker" with sentences: unless a sentence either should be substantially increased or should be substantially decreased, it should stand.

15. Would a reduction of only two years breach the rule? I do not think so. I am sure that if the appellant, any appellant, were to be asked he would agree with me] Two years is a substantial decrease.

16. In the special, most unusual circumstances of this case, the non parole period should be reduced from 14 to 12 years.

17. I suggest therefore that leave to appeal be granted and that the appeal be allowed by substituting a non parole period of 12 years for that of 14 years fixed by the learned sentencing judge.

JUDGE2 PERRY J The appellant appeals against the sentence imposed upon him following his plea of guilty in this Court to an information charging him with aiding and abetting an act of rape, with attempted rape and with murder.

2. On the charge of murder he was sentenced to life imprisonment commencing 7 February 1994. On each of the rape charges he was sentenced to five years imprisonment to be served concurrently with each other and concurrently with the life sentence.

3. The learned sentencing Judge fixed a non-parole period of 14 years dating from the date of commencement of the head sentence.

4. The appellant complains that the non-parole period was manifestly excessive, and submits that the learned sentencing Judge erred in a number of respects which I will come to in due course.

5. The offences were committed by the appellant in the company of his brother, Noel Stanley Walker. The appellant was born on 1 March 1962 and his brother on 9 November 1960. The offences occurred on 29 April 1978 when the appellant was 16 years of age. He and his brother had been drinking together. His brother suggested that they "pick up a girl". He suggested that the appellant lie down on the back seat of the car and that as soon as he had enticed a girl into the car, the appellant was to put a knife across her throat and they would then go up into the hills.

6. The plan was put into action. They saw the victim, a young woman of 20 years, sitting at a bus stop. She accepted a lift and got into the front seat. The appellant immediately jumped into the front seat and put a knife against her throat. They drove to a remote area in the hills near Monarto.

7. The young woman was forced to remove her clothes, and the appellant's brother raped her vaginally. He told the appellant it was his turn, but although he lay on top of her, the appellant was unable to achieve an erection.

8. He said that he "got scared". He went on to say:
    "I pulled the rifle out of the boot and I went to shoot
    her, I would never shoot her because I didn't want to get
    into trouble, Noel took the rifle off of me and Noel shot
    her, one shot, a .22 ... in the forehead, and then he beat
    her up, wrapped in a blue blanket ...".

9. They drove down the road a little way and buried her in a shallow grave.

10. The crime remained undetected for some time. The appellant's brother was never brought to justice. He committed suicide in December 1981.

11. In April 1993, the appellant voluntarily approached the police and confessed to the crime. At least, that was the basis upon which the matter was dealt with before the learned sentencing Judge. However, I notice from a statement of his step-father, one David John Wells, that shortly before going to the police the appellant confessed his involvement in the crime to Wells, and said "that he couldn't decide whether to give himself up or not". According to Wells: "After he had told me what had happened, I told him that if he didn't contact the police, I would contact them."

12. Notwithstanding that statement, it was not suggested by counsel for the Crown that the appellant was to be dealt with on any footing other than that he was to be given full credit for a voluntary confession, albeit many years after the offence.

13. Ground 1 of the appeal is:
    "The learned trial judge erred in law by stating that the
    appellant's actions in going to the police, confessing and
    pleading guilty had the effect of reducing the non-parole
    period by approximately one quarter without first
    specifying what the relevant non-parole period was or
    ought to have been or how His Honour arrived at it."

14. This ground is not made out. It was not incumbent upon the learned sentencing Judge first to specify what the relevant non-parole period was before indicating the reduction which he was allowing for "going to the police, confessing, and pleading guilty". Having stated that it was a reduction of one quarter, it is a matter of simple arithmetic to work back from that to realise that what the learned Judge would have set by way of a non-parole period had it not been for that reduction, was 18.7 years. The learned sentencing Judge complied with the pronouncements of this Court to the effect that "... the Judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty;" (R v Harris and Simmonds (1992) 59 SASR 300 per King CJ at 302.)

15. Ground 2 of the appeal is:
    "The learned trial judge erred in that he did not properly
    take into account the cumulative effect of the mitigating
    factors. Those factors were:-
    (1) Age at the date of the offence.
    (2) The influence of his older brother generally and
    specifically with respect to intoxication.
    (3) The fact that the crime would have remained unsolved
    but for his confession.
    (4) The circumstances and manner in which he made and
    maintained his confession.
    (5) The impact on his life.
    (6) His remorse and contrition.
    (7) The delay between the time of his crime and his
     sentence.
    (8) A comparison with the sentence he would have served if
    he had been sentenced as a juvenile in 1978.
    (9) His co-operation with the police.
    (10) His plea of guilty."

16. It is unnecessary to refer to the remaining grounds of appeal as they simply extract and repeat matters referred to in that ground.

17. I have had the benefit of perusing in draft the reasons for judgment of Millhouse J. I agree with him that the policy of the law is that guilty persons should be encouraged to confess, and that a substantial deduction should be allowed in circumstances where somebody has given himself or herself up and admitted to a crime which otherwise may have remained undetected. Like Millhouse J, I think one quarter was probably too small a reduction to allow in the circumstances of this case for those factors. I think a deduction of one third would have been more appropriate.

18. But at the end of the day, the question is whether the non-parole period as finally fixed, that is, 14 years, is manifestly excessive. In my opinion, the starting point before applying the deduction of one quarter, namely, 18.7 years, was modest, given the seriousness of the crime. The non-parole period of 14 years could not be said to lay outside a proper exercise of the sentencing discretion.

19. I would dismiss the appeal.

JUDGE3 KING CJ In my opinion this appeal should be dismissed for the reasons given by Justice Perry.