R v Howard
[2008] NSWSC 934
•5 September 2008
CITATION: R v HOWARD [2008] NSWSC 934 HEARING DATE(S): 8 August 2008
JUDGMENT DATE :
5 September 2008JUDGMENT OF: Hulme J at 1 DECISION: I sentence the Prisoner to imprisonment for 18 years 6 months with a non-parole period of 14 years to commence on 27 October 2007 and expire on 26 April 2026. The offender is eligible for parole on 27 October 2021. PARTIES: Regina
Gregory Mark HowardFILE NUMBER(S): SC 2007/3616001 COUNSEL: Crown: Mr P Barrett
Prisoner: Mr J GordonSOLICITORS: S Kavanagh
S O'Connor
HULME JIN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
- Friday, 5 September 2008
2007/3616
Remarks on Sentence
1 HIS HONOUR: On 19 August 2006 the Prisoner fatally shot Jacob Digby, his son. The Prisoner was charged with murder. He first appeared in this Court on 14 September 2007 when his trial was fixed to commence on 14 April 2008. When arraigned on 5 October he pleaded not guilty but on 15 April changed his plea to guilty. His legal advisers had indicated some time previously that that would occur. The Prisoner’s plea entitles him to a discount on sentence and, given the timing of events, I propose to allow approximately 12½% in this regard.
2 An hour or so earlier than the shooting the two had attended a service station and purchased some items there. On entering the service station the deceased had instructed his dog to sit at the front door. The Prisoner exited the station first and moved the dog. When the deceased came out a very heated argument developed between the two about what the Prisoner had done. During the course of the argument, the Prisoner brandished a knife at the throat of the deceased but, at least from the account of a Lauren Lever who was there, was most active in trying to end the confrontation, walking away.
3 Both then proceeded to their homes in Acacia Avenue, Punchbowl. The deceased boarded at No. 3 with a Mr Lever whose children also spent some nights at those premises. Almost opposite was No. 6 which was occupied by the Prisoner’s mother, the Prisoner himself living in a garage or shed at the back.
4 Upon returning to 3 Acacia Avenue the deceased was heard to say words to the effect of “Dad’s giving me the shits again”. He then “stormed out”. He was also heard to say something about a knife and seen to hold one. However, although the deceased was found to have a pocket-knife in his pocket after his death, the knife does not figure in the circumstances of the deceased’s death and accordingly I put that topic aside.
5 The deceased also contacted the Prisoner by phone. Although the Prisoner asserted he received several messages from the deceased making threats towards him, the phones when seized by the police showed, in addition to unsuccessful attempts by the deceased to ring, only one call and one text message as having been effected. That text message was “have some balls”.
6 The deceased walked from 3 Acacia Avenue to the house at No. 6 where he spoke to the mother of the Prisoner and told his grandmother of the argument that had occurred and said “I have got to find him”. The evidence does not indicate whether this occurred before or after the other events at 3 Acacia Avenue to which I have referred.
7 Although he was not licensed to do so, the Prisoner in fact possessed a rifle. He seems to have had some interest in shooting animals and while no doubt his possession of the rifle made possible what occurred on 19 August, there is nothing to suggest that that possession was with a view to its use in any serious criminality or against persons. He kept it in a loaded state, under his bed.
8 The position of fired cartridge cases found by the police when they attended would indicate that the Prisoner fired one shot from adjacent to the garage. The Prisoner said this shot was fired over the head of the deceased. A discharged cartridge case from another shot was found near the body of the deceased, the position of the latter being some 10 metres from the garage. A third discharged cartridge case remained in the firearm.
9 One shot entered the right side of the deceased’s chest perforating the lower lobe of both lungs and transecting the aorta. The post-mortem examination does not record any gunshot residue associated with that wound.
10 A third shot entered the deceased’s left cheek near the left orbital cavity, perforated a number of bones in the head and transected the spinal cord. Gunshot residue was found on the outside and inside of the bullet track. The conclusion expressed in the post-mortem report was that the deceased died from gunshot wounds of the head and chest.
11 Mr Lever, who heard the shots, described them as “Bang, bang, and then a bit of a pause, and bang.” Another neighbour said that the first 2 bangs were only a couple of seconds apart but that the third bang was about 10 seconds after the second.
12 According to the Crown Case Statement, in a call to 000 that appears to have been soon after the shooting, the Prisoner said:-
- “I’ve just shot my son dead. I fired a warning shot to go away and he was gunna beat the shit out of me … and I shot him. And then I shot him again and he’s dead.”
In an interview with police in the early morning after the shooting Mr Lever gave an account that, shortly after the shooting the Prisoner attended at his premises, said that he had killed the deceased and that:-
“Jake came at me um, I shot a warning shot above his head and then I shot him, when he went down I shot him in the head.”
13 Later, in an electronically recorded interview, the Prisoner said that he received several messages from the deceased making threats towards him and that he was in fear of the deceased and armed himself with the firearm. He said that he heard the deceased approaching the garage and he himself then walked out of the garage with the firearm. The Prisoner asserted that he fired the first shot when the deceased was about 30 metres away but that, undeterred, the deceased continued to walk towards him and threaten him so that the Prisoner closed his eyes and fired the second and third shots at the deceased without looking at him and while the deceased was about 20 metres away.
14 According to a report from a Ms Cathryn Gowans that was tendered, the Prisoner told her that he had heard gates slam, a fact that indicated or confirmed to him that the deceased was very angry.
15 The objective features of the scene and found on post-mortem examination are inconsistent with parts of the Prisoner’s account.
16 Conscious that any matters adverse to the Prisoner must be found beyond reasonable doubt, the circumstances of the shooting seem to me to have been as follows. Firstly, there is no reason to doubt the Prisoner’s account that the first shot was a warning shot. Secondly, there is nothing to suggest that the second shot was not fired because of some apprehension in the Prisoner arising from the deceased approaching him and I am satisfied that the Prisoner was apprehensive. Thirdly, although there is no ballistics evidence as to the ejection characteristics of the firearm, the distance between the 2 cartridge cases and the gunshot residue in the head wound indicates that the second and third shots were not fired from the same position as the first shot. Fourthly, the absence of gunshot residue in and adjacent to the chest wound and the presence of such residue in the head wound and the nature of the 2 wounds – either of which would have precluded the deceased moving far if at all - indicates that these 2 shots were also not fired from the one position. The different times between the first and second and second and third shots argues in the same direction.
17 Fifthly, it is impossible to avoid the conclusion that the second and third shots were aimed at the deceased. Sixthly, the second shot was that which struck the deceased in the chest, that the Prisoner then moved close to the deceased and from a very small distance away inflicted the head wound, aiming for that part of the body.
18 Lest it be thought that the matter has been overlooked, I should also refer to the fact that there was found close to the body of the deceased a mobile phone. There is nothing to suggest that this was, or was perceived by the Prisoner to be, any sort of weapon. Certainly, there are a number of statements by the Prisoner to the effect that the deceased had threatened to kill him and suggesting or indicating that the Prisoner had fired the first 2 shots in self defence. However the Prisoner’s plea means that, except to the extent indicated in the immediately succeeding paragraph, I need not consider such matters.
19 It does seem clear that, from the time the Prisoner and Deceased arrived back at their respective residences, the Prisoner did nothing to prolong the disagreement but the Deceased sought to do so. It was the deceased who “stormed out” and went looking for the Prisoner. The Prisoner’s action in arming himself with the rifle was a reaction to the Deceased’s conduct and wasn’t to any material extent, premeditated.
20 It is also clear that alcohol played a considerable role in the shooting. Both the Prisoner and his son were alcoholics and had been drinking together on the day. On post-mortem examination, the deceased was found to have a blood alcohol level of .225g/100mL and although the evidence of the Prisoner’s state of sobriety on that day is not as great as it might be, the evidence makes it likely that he was also significantly affected. Ms Gowans records a statement by the Prisoner’s mother to the effect that the Accused and Deceased had spent the day shopping and going to lunch together and by late afternoon, both were highly affected by alcohol. Mr Lever described the Deceased as “a bit tipsy” but it being hard to tell whether the Prisoner was but when regard is had to the totality of evidence on the topic, it strikes me that it would be unlikely for the Prisoner to have been anywhere near sober at the time.
21 It is also necessary to refer to the previous relationship between the Prisoner and the deceased. I am satisfied that in the months and days prior to 19 August 2006, it was generally good, and although the Prisoner seems to have irritated the Deceased at times, they were generally companionable drinking mates.
22 A question that arises is whether I should conclude that it was the Prisoner’s intention to kill the Deceased or whether his state of mind was merely one of the others required for murder. Although the Prisoner’s actions and his statements suggestive of self-defence argue strongly for the conclusion of an intent to kill, I am not persuaded beyond reasonable doubt that I should so conclude. While at the time of the second shot, I have no doubt that the Prisoner intended to shoot the deceased, I am not persuaded that in his alcoholic state his mind went further and intended to kill. The circumstances of the third shot speak more loudly in favour of an intent to kill but even there one must recognise the possibility that the Prisoner’s thinking in an emotional state went no further than firing or inflicting harm. And even if those conclusions be wrong, it is clear that any intent to kill lasted for but seconds.
23 It also must be mentioned that I am asked to take into account 2 other offences committed at the time of the murder, one under s36(1) of the Firearms Act of using a firearm that was not registered and one under s7A(1) of that Act of using a firearm without being authorised to do so.
24 I turn to other circumstances of the Prisoner. Prior to 19 August 2006 the Prisoner had a criminal record. Most of it is of no present significance but mention should be made of the fact that in 1982 and 1991 he was convicted of driving with a high range PCA, in 1995 and 2006 of driving an unregistered and uninsured vehicle and in 1990 of offences that included possessing a firearm while under the influence, possessing an un-licenced firearm and not ensuring the safe keeping of a firearm. He was thus on fair notice that, particularly given his problems with alcohol, he should not have the firearm he used to kill the deceased. It is in the highest degree unlikely that, had he disclosed in any application for a licence that he was an alcoholic, he would not have been given a licence, and thus I would infer that at least the first of the offences on the Form 1 contributed to the death of the Deceased.
25 The significance and weight that can be given to offences taken into account is, of course, much circumscribed by the decision of the Court of Criminal Appeal in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146.
26 The Prisoner’s history is detailed in reports from Ms Gowans to whom I have referred and also of Dr Bruce Westmore, a psychiatrist, and Mr John Taylor, a psychologist. The Prisoner was born in December 1956. His parents separated when he was very young. His father died when the Prisoner was about 5. His mother remarried but after about 3 years her new husband, with whom the Prisoner had a good relationship, also died. The Prisoner has always had a good relationship with his mother.
27 The Prisoner left school at about age 15 although he completed his School Certificate at TAFE. He was generally in employment, specifically in the area of book-binding, until 1998 when he ceased work because of health problems. In 1990 he was diagnosed with hepatis C, an ulcerated oesophagus and hypertension and seems to have suffered depression in consequence. He seems to have had psychiatric help at that time. In 2006 he was diagnosed with type 2 diabetes. A medical report dated 22 June 2008 from the practice the Prisoner has been attending since 1995, recorded that at its date the Prisoner was on medication for hypertension, diabetes, reflux oesphagitis, anxiety and depression, and insomnia. The report referred to the Prisoner also suffering from, or at least indications of, hepatitis C, a mediastinal cyst and hypersplenism with thrombocytopaenia (a low platelet count).
28 He commenced drinking alcohol at about age 15 and by age 18 was drinking on a daily basis. He has had 6 children from 5 relationships at least 4 of which seem to have lasted between 2 and 4 years. Alcohol, not just on the Prisoner’s part, seems to have dominated some of these relationships. The Prisoner’s father was an alcoholic and the fact that the Prisoner and his son both were, certainly suggests a genetic predisposition in that area. Some attempts by the Prisoner at rehabilitation and to have the Deceased undertake the same have been unsuccessful. However, the evidence does not permit the conclusion that the Prisoner’s efforts were by any means extensive.
29 For significant periods the Prisoner used cannabis and for a lesser period speed but the evidence indicates that the had ceased the use of these well before August 2006.
30 Mr Taylor concluded that the Prisoner does not suffer from significant emotional disturbance or a personality disorder although there was some instability in his personality adjustment, and testing indicated mild anger pathology and inadequately developed resources for containing drive and impulse. Mr Taylor opined that any heavy intoxication at the time of the offence would have impaired the Prisoner’s judgment and control and that he had reasonably good prospects for rehabilitation particularly if he is able to resolve his substance abuse.
31 In his first report Dr Westmore diagnosed the Prisoner as having suffered episodes of an adjustment disorder with depressed mood in the past but, putting aside his alcoholism, no more serious psychiatric or psychological disorder. The doctor assessed the likelihood of the Prisoner committing any other serious offence of the same nature as very low.
32 One matter that does appear from many of the reports, statements of lay witnesses and a letter of 7 July 2008 the Prisoner wrote, is that the Prisoner is genuinely remorseful for his actions. While sentencing judges should be, and I am, properly sceptical of many such expressions made in anticipation of sentencing, I am satisfied that the situation is as I have described in the Prisoner’s case. I have no doubt also that these feelings are the stronger for the fact that it was his own flesh and blood that the Prisoner killed and that, independently of any sentence I impose the Prisoner is suffering substantially for his crime
33 Pursuant to s19A of the Crimes Act, the offence of murder carries a maximum sentence of imprisonment for life. Pursuant to s54A et seq. of the Crimes (Sentencing Procedure) Act, there is a standard non-parole period of 20 years, those statutory provisions requiring a court to impose that penalty for an offence in the middle of the range of objective seriousness unless the court determines that there are reasons, falling within the terms of s21A of that Act, for setting a longer or shorter non-parole period. Because the Prisoner pleaded guilty, that section has no direct operation but authorities by which I am bound lay down that the section is still to be used as a guide.
34 A determination of an appropriate sentence, particularly in light of s54A et seq. requires a court to make a decision as to the relative seriousness of the offence under consideration. Although to a layman, conscious of the fact that in the case of all murders, the victim will have been killed, the task may seem odd, it is nevertheless required. No longer does the law require that all murderers be executed or sentenced to prison for life and even when this last mentioned punishment was obligatory, most were released at some time by a decree of the Executive. And both the annals of the Court and my own experience reveal murder offences substantially more heinous than that here.
35 Although not all bear on the objective seriousness of an offence, subject to the section’s terms, I am also required to have regard to such of the aggravating and mitigating factors referred to in s21A of the Crimes (Sentencing Procedure) Act as are relevant. I do not regard it as necessary to progress through the numerous paragraphs in that provision seriatim or to refer to matters that are elements of the Prisoner’s offence or integral to it.
36 Sub-paragraphs 2(b), (c), (g) and (ib) referring to the use of violence, a weapon, substantial harm and grave risk of death are relevant although I do not think reference to them adds to the criminality necessarily involved in the Prisoner’s offence. Given their nature, I do not regard his previous convictions as aggravating the offence of murder. The circumstances answer the terms of sub-paragraphs (eb) and (i) but again I do not regard these matters as aggravating the offence.
37 Among the mitigating circumstances in sub-section (3) are “(b) the offence was not part of a planned or organised criminal activity”. In the circumstances here I regard that fact of no mitigating weight. Rather would I have regarded the contrary situation as aggravating.
38 Sub-section 3(c) refers to the offender being provoked by the victim. There were elements of provocation here. It did not come close to justifying the Prisoner’s reaction but common experience indicates that those affected by alcohol do not always act sensibly toward others. The Prisoner is not within paragraphs 3(e) or (f).
39 I am satisfied that the Prisoner has shown remorse in the circumstances specified by sub-section 3 (i), that given he has good prospects of rehabilitation and is unlikely to re-offend.
40 A Victim Impact Statement from the deceased’s mother was read. That statement spoke eloquently of the loss its author has suffered. Although authority by which I am bound - see R v Previtera (1997) 94 A Crim R 76 - lays down that, because of the problems in comparing and valuing one life lost against another, sentencing judges may not take into account the particular content of such statements in determining an appropriate penalty, such statements do help to prevent sight being lost of the enormous suffering the offences involving the death of another human being cause.
41 The circumstances of the offence as I have described and found them, lead me to the view that the Prisoner’s offence falls below the middle of the range of objective seriousness for offences of murder. I am also disposed to regard the fact that the offence was in no small measure contributed to by the Prisoner’s intoxication as a mitigating factor in this case.
42 Intoxication is not always so regarded but there is nothing in the Prisoner’s history to indicate that significant violence was likely when he became intoxicated. When to this one adds his family history and the fact that his drinking commenced well below the age of maturity, the conclusion at which I have arrived in this connection seems to me the proper one.
43 I sentence the Prisoner to imprisonment for 18 years 6 months with a non-parole period of 14 years to commence on 27 October 2007 and expire on 26 April 2026. The offender is eligible for parole on 27 October 2021.