R v Masson, R v Symss

[2001] NSWSC 1037

CITATION:	R v Masson, R v Symss [2001] NSWSC 1037
FILE NUMBER(S):	SC 070065/00; 070212/00
HEARING DATE(S):	Masson - 18/05/01, 22/06/01, 11/08/01 Symss - 18/05/01, 01/11/01
JUDGMENT DATE:	8 November 2001
PARTIES :	Regina v Leonard James Masson Regina v Shane Antoni Symss
JUDGMENT OF:	Howie J at 1

COUNSEL :	T. Thorpe - Crown T. Molomby - Accused Masson S. Hanley - Accused Symss
SOLICITORS:	S.E. O'Connor - Crown Legal Aid Commission NSW - Accused Masson Naomi Hamilton - Accused Symss
CATCHWORDS:	Criminal Law - Sentence for conviction of murder and manslaughter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - ss 23(2)(b), 44
DECISION:	See paras 51 and 52.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HOWIE J

THURSDAY 8 NOVEMBER 2001

070065/00 R v LEONARD JAMES MASSON
070212/00 R v SHANE ANTONI SYMSS

SENTENCE

1    HIS HONOUR: On 30 April 2001 the prisoners Leonard James Masson and Shane Antoni Symss were arraigned before a jury on an indictment containing three charges namely murder, robbery with wounding and in company, and steal motor vehicle. The prisoner Masson pleaded not guilty to murder, but guilty to the other two charges. During the course of the trial he changed his plea to the second charge in the indictment to not guilty of robbery with wounding and in company but guilty of robbery in company. The Crown did not accept this plea and the jury were directed to ignore it during their deliberations. The prisoner Symss on arraignment pleaded not guilty to both murder and robbery with wounding and in company but guilty to larceny of a motor vehicle.

2    On 18 May 2001 the jury convicted Masson of manslaughter, robbery with wounding and in company and larceny and Symss of murder, robbery with wounding and in company and larceny. The prisoners are now to be sentenced for those offences. In addition both prisoners have asked me to take into account offences on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act.

3    It is important that I emphasise from the outset that, in accordance with the jury’s verdict, the prisoner Masson is to be sentenced for manslaughter and not murder. On the issues before the jury, such a verdict assigns to the prisoner a very limited role in the killing of the deceased. This is a very significant matter when it comes to determining Masson’s responsibility for the death of the deceased, and accordingly the appropriate punishment to reflect his culpability. The fact that the prisoner is to be sentenced for manslaughter and not murder must be reflected in a significantly lesser sentence than had he been convicted of murder as was Symss.

4    Further, as I shall endeavour to make clear, on the facts that the jury must have found proved, this is an unusual case of manslaughter arising from a death occurring during the course of a serious criminal offence of violence. The sentence which members of the community might believe should be inflicted upon a person involved in this truly appalling crime cannot be imposed upon Masson because of the very limited basis upon which the prisoner is to be sentenced. Unless regard is had to the very singular nature of the offence for which he was convicted, a misunderstanding and an erroneous appreciation of the sentence imposed upon him is likely to arise.

5    The facts arising from the jury’s verdicts are as follows. Mrs Florence Marino, the deceased, was a 75 year old widow who lived alone in her home in the suburbs of Wagga Wagga. Masson was also a resident of this city where he had lived initially with his parents and later with his wife before they separated. The deceased had been a close friend of Masson’s wife for a number of years and took a particular interest in his infant daughter. On occasions Masson had voluntarily performed odd jobs around her home, including mowing the lawns.

6    The prisoner Symss was a stranger to the area he having arrived a few weeks before the events giving rise to the offences. He had met Masson when the two found themselves residing in the same hostel in the city. They spent a considerable amount of time in each other’s company prior to Easter 1999. Masson is clearly the more intelligent of the two prisoners. He is also much bigger physically than Symss and would appear to be the stronger. However, as will become apparent, Mr Symss was a young man not unfamiliar with the criminal law and who was prepared to use violence when it suited him to do so.

7    On the morning of Saturday 24 April 1999 the deceased complained to a neighbour that she had heard noises during the night and in the morning had found her back gate open and a hole near the lock on the fly screen of her back door. The neighbour said that she would get her husband to look at the damaged flyscreen when he came home from work later that day.

8    At about 3.15 pm the neighbour’s husband went to Mrs Marino’s home with a pair of pliers to fix the flyscreen. He went to the back of the house and noticed that the back door was open. He called out but did not receive a reply. He entered the house and found the deceased’s body on the lounge room floor. The police and ambulance were summonsed and arrived a short time later.

9    There was blood on the deceased’s face and clothing and on the lounge and a cushion. Strands of long dark brown hair were located on or near the body. It was later ascertained that these hairs had come from the head of Symss. There was jewellery scattered around on the bedroom floor and a jewellery box was open on the dressing table. The deceased’s motor vehicle was missing.

10    The post-mortem examination of the deceased showed that death was consistent with her being smothered. There were superficial bruises and abrasions to the face and a patterned abrasion consistent with the deceased’s glasses being forced against her face. There were stretch lacerations on the right ear consistent with an earring being pulled from her ear. There were two stab wounds to her neck one a horizontal wound, and the other a very superficial incised wound. It was estimated that death had occurred between midday and 3 pm on 24 April.

11    At the time of the death of the deceased both prisoners were still residents at the hostel. However at some time during the evening of 24 April both prisoners left those premises. They travelled together to Broken Hill in the deceased’s motor vehicle, which they abandoned just outside the city.

12    The two prisoners then moved into accommodation provided for them by the Salvation Army at a hotel in Broken Hill. There they met a local resident, Tristan Robson, who took the prisoners to the home of a local drug supplier so that Symss could purchase some cannabis. During the evening Symss spoke to Robson about burning a motor vehicle in case police found hair in it from which they might carry out DNA testing. Robson asked him what was going on and Symss said “We knocked this cunt and took their car.” Robson said “What do you mean ‘knocked’, bashed or what?” Symss said, “No, they’re dead.” When they were alone for a short period Robson asked Masson if what Symss had said was true, and he replied, “I’ll talk to you later.” During that evening Symss asked Robson whether he could get rid of some jewellery, but Robson said he could not.

13    After finding the deceased’s motor vehicle, police began making inquiries at various hotels and motels in Broken Hill. The prisoners were located and arrested on 27 April. A search of the hotel room, which the prisoners had been occupying, located a number of items of the deceased’s jewellery in a sock in a bag belonging to Masson.

14    Each of the prisoners participated in a number of electronically recorded interviews with investigating police. Masson also took part in a video-recorded walk around at the scene of the killing. Both prisoners admitted that they had gone to the deceased’s house on 24 April so that Masson could ask the deceased for a loan of money. Each said that on the second occasion that they visited the premises that day, the other killed the deceased. Each maintained that he had no part in the killing. Both admitted that after the deceased was dead, they stole her handbag, items of her jewellery and her motor vehicle.

15    I shall deal firstly with the account given by Masson. His version was that on the second occasion they visited the deceased’s house, he asked to use the toilet and was admitted to the house by the deceased. When he was about to leave the premises, he turned to see Symss grab the deceased from behind and drag her into the lounge room. While Symss was holding the deceased around the mouth, he told the prisoner to look for money and threatened him when he hesitated to do so. The prisoner then went to the deceased’s bedroom and obtained her handbag. When he returned to the lounge room, he saw Symss with a pillow over the deceased’s face and Symss said that she was dead. Both he and Symss then took jewellery from the deceased’s bedroom before they left the premises. They then went to a hotel where they played pool and used the deceased’s money to purchase drinks for themselves and two young ladies whom they happened to meet.

16    Masson said that he was in fear of Symss by reason of what Symss had said about himself prior to the attack upon the deceased, the nature of that attack and a threat made to him while Symss was holding the deceased. He maintained that it was through fear of Symss that he assisted in carrying out the robbery and also helped in cleaning the lounge-room of blood. It was he who drove the deceased’s vehicle out of her garage.

17    It is clear that after the killing and up until his arrest in Broken Hill Masson had ample opportunity to bring to the notice of persons, whom he met, the fact that Symss had murdered the deceased. On one occasion he and Symss were given a lift by a police officer in a marked police vehicle yet the prisoner made no intimation to the officer of what Symss had done. However, Mr Robson gave evidence that it appeared to him that the prisoner was intimidated by Symss. Mr Robson also reports Symss making statements as to his criminal antecedents and associates similar to those that Masson said Symss told to him before the killing of the deceased.

18    A significant issue at the trial, as it was before me on sentencing, was the conduct of Masson during and after the attack by Symss upon the deceased. The Crown argued strongly before the jury that the prisoner’s conduct was explicable only on the basis that the killing of the deceased did not occur in the way Masson had described to the police; that is a result of a completely unexpected and horrifying act committed by Symss in which he played no part. Rather the Crown contended that the lack of any attempt by the prisoner to assist the deceased, to separate from Symss after the killing and his apparent lack of concern about what had occurred in the deceased’s home led to the only possible inference that he was involved in the killing.

19    Mr Molomby, on behalf of the prisoner, argued forcibly before the jury that they could not dismiss the possibility that the prisoner’s behaviour was a result of his fear of Symss and the effect of the trauma arising from the killing. He relied in particular upon parts of the prisoner’s interviews with police during which he appeared to become extremely distressed when recounting the attack upon the deceased by Symss. There were also occasions when, in what might be described as unguarded moments, the prisoner remonstrated with himself for being too cowardly to assist the deceased.

20    Initially I expressed in strong terms my scepticism of the prisoner’s explanation for his conduct both during and after the killing. The objective facts did not appear to me to be consistent with his account. As I have indicated, Masson was a very much physically larger and apparently stronger man than Symss. The attack occurred in a residential area on Saturday morning when people would be at hand to assist him had he simply fled through the front door and raised the alarm. Masson appears to have been in control of the proceeds of the robbery throughout until their arrest. He had himself committed dishonesty offences shortly before the robbery. In particular, I found it difficult to accept that the prisoner’s conduct at the hotel immediately after the killing of the deceased was consistent with his version of the killing.

21    Such was the importance of this matter and the likelihood that I would find against the prisoner on this issue, he having the onus of proving what was a mitigating factor, that an adjournment of the sentencing hearing was granted so that psychological evidence could be obtained which might support that version. I should indicate that the prisoner did not give evidence either at the trial or before me on sentence.

22    A psychological report, which was obtained during the adjournment, lent some support to the prisoner’s version, at least indirectly. It was the psychologist’s opinion that the prisoner’s behaviour was not only consistent with the effect of fear and trauma but also was inconsistent with a lack of anything to suggest that the prisoner had an anti-social personality which might otherwise account for what appeared to be extraordinary callousness on his part to the violent and horrific death of a harmless old woman whom the prisoner regarded as a friend. Both the psychologist in giving his opinion and Mr Molomby in his address on sentence relied heavily upon the fact that, up until a short time before the killing, the prisoner had shown strong social commitment and responsibility by, amongst other things, his voluntary community work.

23    At the end of the day, it seems to me that I should sentence the prisoner in accordance with his version, notwithstanding some lingering misgivings. As a matter of practical reality the jury must have accepted that his account to the police was possibly true. Had they found that any part of it to be false, then in my view they would have dismissed it all and convicted the prisoner of murder. This was because the Crown’s case was principally that the prisoner was actively involved in killing the deceased. In my opinion there was little prospect of the jury convicting of felony murder. The prisoner’s conduct during and after the killing was at the forefront of the Crown’s submission that the prisoner was a party to the suffocation of the deceased and the jury obviously rejected that argument, or were at least not persuaded of it to the appropriate degree.

24    I have briefly described the version given by the prisoner to police as to how the deceased met her death. In summary his account was that the attack upon her was completely unexpected by him. He stated that he was immediately appalled by what Symss had done, but that he felt, through concern for his own personal safety, that he was compelled to carry out Symss’ bidding to obtain the deceased’s money.

25    In effect the prisoner has maintained that from the moment he saw the deceased attacked by Symss he was in such fear for himself that he was unable to do anything else but go along with Symss both in carrying out the robbery and in accompanying him to Broken Hill. Although he had ample opportunity to separate from Symss or to contact the police and inform them of what Symss had done, he could not bring himself to do so both through fear of Symss and his associates and because he feared being arrested for his involvement in the robbery.

26    The verdict of manslaughter in my view is a finding by the jury that the prisoner did not actually foresee that Symss might suffocate the deceased, but that he contemplated that Symss would do some unlawful and dangerous act during the course of the robbery in which he became involved. The verdict of robbery in company with wounding is explicable on the basis that the prisoner admitted knowing that Symss had a knife when they returned to the deceased’s premises and that he had been led to believe by Symss himself that he was a person capable of violence. The jury must have been satisfied that he foresaw the possibility that in the robbery of the deceased Symss might use the knife to wound her. This finding is consistent with the evidence even if the jury disregarded, as I told them they should, that part of the prisoner’s second interview in which he describes some recollection of seeing Symss stab the deceased in the throat.

27    The prisoner Masson then is to be sentenced on the basis that he did not intend to rob the deceased when he went to her home on the second occasion, that he was not party to any joint enterprise to attack the deceased let alone kill her and that he became involved in the robbery when, having witnessed Symss’ attack upon her, he went to obtain her handbag. Further, he did what he did through fear of his own safety but knowing that Symss had a knife he foresaw the possibility that Symss would use it during the course of the robbery to wound the deceased. Although he did not foresee that Symss might suffocate the deceased, an act of suffocation was no more than an unexpected incident arising in the course of the robbery in which he was then participating.

28    I indicated at the outset of these remarks that the facts upon which the prisoner is to be sentenced consistent with the jury’s verdicts, give rise to an unusual case of manslaughter. He should be sentenced on the basis that his involvement in the robbery was on the spur of the moment after Symss had decided to commit the offence and that his participation was motivated through fear rather then personal gain. His responsibility for the death of the deceased arose in that he failed to render her assistance in circumstances where he foresaw at least that she might be stabbed during the attack upon her.

29    The prisoner is also to be sentenced for the matters on the form 1. While some portion of the sentence to be imposed upon the prisoner should be attributable to those matters, they are not in the category of seriousness of the offences for which the jury convicted him. However, one of the matters in particular must be given some weight. While on bail and in breach of his bail conditions the prisoner stole his parent’s vehicle and left their control to visit a girlfriend. This was notwithstanding that he had been released to bail after serving almost six months on remand. This conduct sits uneasily with the fact that persons have commented upon his fear and suffering while in custody. This behaviour shows the prisoner for what I believe him to be: self-centred and immature. It gives little confidence that the prisoner will reform until he addresses these fundamental defects in his personality.

30    The prisoner is aged 23 years and has no prior convictions. The evidence before me by way of testimonials and oral evidence suggests that before the spate of criminality, which culminated in the death of the deceased, the prisoner had been a worthwhile member of the community of Wagga Wagga. He was involved in community activities such as teaching swimming with a local club, coaching a water polo team, helping out at a local school and donating blood. I acknowledge that this conduct is inconsistent with my evaluation of him, but I believe that his willingness to assist others is subject to the proviso that it does not conflict with his own personal gratification. It is not insignificant that he used funds of one of these community organizations to fraudulently obtain money for himself in the period immediately before he committed the robbery upon the deceased.

31    The prisoner comes from a supportive and caring family. He fell out with his parents because of his behaviour in relation to a young lady and he left the family home at the age of 16 years. The prisoner and his parents have been reunited since his arrest and they are prepared to further support him. I should note publicly that his parents acted not only in the interests of the community but also in the interests of the prisoner himself by having his bail breached when he stole their vehicle and left their home.

32    I am prepared to find that the prisoner has been remorseful for the death of the deceased although that was not my original view. However, even if the prisoner has accepted moral culpability for her death as a result of his own cowardice, he has never acknowledged legal responsibility for what happened to her. The prisoner pleaded not guilty to murder and manslaughter, notwithstanding that, in my view, there was a strong case against him for manslaughter. I do not believe, contrary to submissions made on his behalf by Mr Molomby, that his conduct after arrest attracts any significant discount of his sentence.

33 Nor should the prisoner receive any benefit derived from the fact that on 9 July 1999 he made a statement indicating that he was prepared to testify against Symss. Section 23(2)(b) of the Crimes (Sentencing Procedure) Act requires a court to have regard to the “significance and usefulness” of the offer of assistance. In my view the offer was of no use whatsoever, as the prisoner continued to deny his involvement in the death of the deceased. It was entirely appropriate for the Crown to reject the offer of assistance and to pursue the prisoner on the charge of murder. This is so notwithstanding that he was acquitted of that charge. I believe it would have been unlikely in the extreme that a jury would have found the prisoner to be a witness of truth. I do not believe the jury accepted his account in the present trial: the acquittal of murder simply indicates that they were not satisfied beyond reasonable doubt that his version was untrue. The assistance offered was not of significance because there was an overwhelming case against Symss based upon the evidence of the finding of his hair and his admissions. Nor, in my view, was the offer a genuine indication of remorse. The offer of assistance came with a request that the prisoner be transferred to the Special Purposes Prison at Long Bay because of fears he said that he then held because of the offer to give evidence against Symss. The prisoner could not have really believed that the offer would have been accepted and it was in my view given in the hope that the prisoner would gain what he believed to be a more advantageous placement in the prison system.

34    The psychological report tendered on sentence indicates what is apparent from hearing the prisoner in the recorded interviews with police: he is a highly intelligent and articulate young man. His IQ score was 122 and only 7 percent of the population would be expected to obtain a higher score. Testing showed no anti-social personality characteristics. The psychologist was of the view that the risk of re-offending was relatively low but that the prisoner may be assisted by guidance in respect of the misuse of alcohol and his gambling habit. For those reasons it seems to me that there are special circumstances in the present case.

35    I turn now to the sentencing of the prisoner Symss. He gave a version to police in which he attributed sole responsibility for the killing of the deceased to Masson. The version has few, if any, common features with that given by his co-offender. It is unnecessary, however, for me to take the time to set out in any detail his version of events because clearly the jury rejected it. By its verdicts the jury must have found that Symss was responsible for the actual killing of the deceased. I have no version before me, which is admissible against the prisoner, of how the deceased met her death at his hands. However, on the evidence I can infer that he suffocated her during the course of an armed robbery. Although Mr Hanley submitted that I should sentence him on the basis of felony murder, he accepted that it was more likely that the jury found him guilty on the basis of what I referred to in the summing up as intent murder.

36    I also suspect that Symss attempted to cut the deceased’s throat but for some reason was unable to succeed in that attempt whereupon he smothered her with a pillow. Mr Hanley argued strenuously that the finding that the prisoner performed this act was not open on the evidence, at least not to the criminal standard. However, I do not believe that I have to resolve that question. I do not consider that it has a significant bearing upon the assessment of the prisoner’s criminality or the sentence to be imposed upon him whether he attempted to cut the deceased’s throat before suffocating her, or whether he suffocated her after his co-offender tried to cut her throat.

37    I have no doubt that shortly after the two prisoners returned to the deceased’s house, Symss determined to rob her and, if necessary, that he would kill her in order to achieve that purpose. The prisoner admitted in his interviews with police, that shortly before the two arrived at the deceased’s home, he had been involved in attempts to obtain money illegally. Offences arising from these attempts are contained on the Form 1. I do not know when it was that he determined to carry out the robbery of the deceased, but it seems clear to me that he was becoming impatient as the attempts by Masson and him to obtain money failed. Once he determined to rob the deceased, the prisoner must have seen the killing as highly probable if not inevitable in the circumstances that the deceased was liable to raise the alarm and that she would be clearly able to identify Masson, if not the prisoner, as one of the persons responsible for stealing from her.

38    There can be no doubt that the prisoner suffocated the deceased intending to kill her. It was not suggested at the trial that whoever did the act that caused the death of the deceased did so with other than an intent to kill. There must have been a violent struggle resulting in the prisoner having some of his hair pulled out by the roots and the deceased suffering a rip to her ear. She must have been for some period however short, terrified and panic-stricken. Her actual death must have been horrible as she fought for air. All this inflicted by the prisoner upon a harmless and elderly woman in her own home for the sake of a paltry sum of money and valuables of little worth. He could not have expected the spoils to be any greater than they were.

39    The killing was a particularly callous one, not only in the actual infliction of death. As I have already indicated the prisoner Symss, almost immediately after this dreadful act of brutality, went to a hotel where he used some of the deceased’s money amusing himself with his co-offender playing pool, drinking alcohol and socialising with some young ladies they met there. A short time later the two made their way to Broken Hill in the deceased’s motor vehicle. Throughout this trip Symss appeared to be self-assured, cocky and untroubled by what he had done.

40    To say that Symss has shown no remorse for the murder of the deceased is an understatement. His remarks to Mr Robson, even though made while under the influence of alcohol and cannabis, suggest that he was proud of what he had done. He certainly used the fact that he had killed someone to enhance the persona that he wished to display to Mr Robson. He was keen to present himself as a person to be feared both by reason of his own deeds and his association with violent persons.

41    Nor did he show the slightest remorse after his arrest. Initially he refused to be interviewed by the police but only did so when he learned that Masson was blaming him for the killing. He then took the opportunity to return the favour by manufacturing a version implicating Masson and exculpating himself. As I have indicated, the jury found that this version was untrue. The prisoner is not to be punished for this behaviour but it is significant when consideration is given to his rehabilitation that he has shown not one scrap of remorse either by his conduct or his statements after the killing.

42    It is obviously a murder coming within the upper range of seriousness. It can truly be described as a wicked crime, having regard to the objective factors surrounding the killing. It was callous and cowardly. It attracts all the attributes of sentencing that demand a heavy sentence be imposed: general and specific deterrence, denunciation, retribution, and vindication for the loss of the life of a member of the community.

43    The prisoner is aged 24 years. He has a criminal record dating back to 1991 when he was convicted of assault in the Children’s Court in Beenleigh, Queensland. He was dealt with for offences relating to the breaking and entry of houses in February and August 1992. In September 1995 he was sentenced in the Brisbane District Court for a number of offences of breaking and entering houses and, more relevantly, of armed robbery in company and armed robbery with personal violence. He was placed on probation for 3 years. In November 1996 he was sentenced to community service for the unlawful use of a motor vehicle. In 1997, after breaching his probation order, he received a suspended sentence of 3 years in respect of the offences for which he was place on probation in 1995. In September 1998 he was sentenced in Bendigo Magistrates Court for burglary and theft to 4 months imprisonment to be served by way of an Intensive Corrections Order.

44    The facts in relation to the armed robbery offences for which the prisoner was sentenced in Queensland were placed before me. They indicate that the prisoner was in 1993 involved in a number of serious armed robbery offences, and on occasions placed a knife at the throat of his victim. This conduct is not insignificant when considering the facts of the present matter. This record indicates that the present offences, apart from the fact that his victim was murdered, were not an aberration. It is an aggravating feature that he was on the suspended sentence from Queensland at the time. There must also be an element of specific deterrence involved in the sentence.

45    Since the prisoner has been in custody on remand he has been placed in protection. Apparently this is a result of the fact that Masson had told others that he sexually assaulted the deceased although there is not the slightest evidence that he did so. The prisoner has been assaulted on at least one occasion. The murder was itself of such a nature that the prisoner would always have been at risk especially having regard to his slight physique.

46    There is little doubt that the prisoner had a disturbed upbringing even though there is some conflict in the accounts he has given of it. But when it comes to sentencing for an offence of the seriousness with which I am concerned there is little room for mitigation or sympathy to play a role. However, I am conscious that there are a number of persons in the community who apparently think highly of him and find the murder of the deceased hard to reconcile with their view of his character. This evidence may at least indicate that he is not unredeemable notwithstanding all the contra-indications that exist while he refuses to accept or show contrition for what he has done.

47    The prisoner accepts that he was an alcoholic prior to the commission of the murder. He has not undertaken any attempts at rehabilitation or detoxification before going into custody. He has also been a constant user of cannabis. But neither of these matters seems to have any relevance to the present offence other than his need for money to satisfy these addictions. He was not affected by alcohol or drugs when the offence was committed. At the time of the offence the prisoner was involved in seasonal work as a fruit picker and for that reason was travelling around the state. He has family in Queensland who have contacted him since his arrest.

48    As I have already indicated the prisoner’s incarceration so far has been difficult. There was a suicide attempt shortly after he was convicted. There is some suggestion that he may have an anti-social personality disorder although this has not been fully explored. Dr Westmore was unable at this stage to give any prognosis for the prisoner. Dr Perica who most recently examined the prisoner could find no evidence to support a psychopathy. The prisoner has been showing an interest in furthering his education while in custody and has a particular interest in architecture.

49 There are no special circumstances in the present case. It is clear that the prisoner will need a lengthy period on parole but that will be achieved simply by the application of the prescribed proportion between the non-parole period and the total sentence found in s 44 of the Crimes (Sentencing Procedure) Act. Nor is there any reason for the non-parole period to be reduced. I have taken into account generally that the prisoner will need to spend a substantial period of his custody in protection.

50    Finally, I note that I have received in evidence victim impact statements written by the deceased’s daughter and her son and his family. That material was not admitted for the purpose of increasing the sentences of the prisoners and has not been used by me in any way to aggravate the severity of their crimes. But the reception of such evidence permits the family of the deceased to participate in the proceedings by expressing their grief and loss as a result of the death of their loved one. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters that come before it. I understand that it is particularly difficult to accept the death of a family member when it occurs so needlessly and in circumstances of brutality as occurred in this case. The court expresses it’s sympathy and understanding to them.

51    The prisoner Symss is sentenced in respect of the offence of murder and taking into account the matters on the Form 1 to 22 years imprisonment to date from 27 April 1999. There is to be a non-parole period of 16 1/2 years to expire on 26 October 2015 the date upon which the prisoner is eligible to be released to parole. In respect of the robbery with wounding and in company he is sentenced to a fixed term of 5 years to commence on 27 April 1999 and expire on 26 April 2004. In respect of the larceny he is sentenced to a fixed term of imprisonment for 2 years to date from 27 April 1999 and expired on 26 April 2001. I have chosen fixed terms in respect of these latter two sentences because of the sentence on the count of murder.

52    The prisoner Masson is sentenced in respect of the offence of manslaughter and taking into account the matters on the Form 1 to imprisonment for 7½ years to date from 15 March 2000. This allows the prisoner about 6 months of custody before he was released to bail. There is to be a non-parole period of 4½ years to date from 15 March 2000 and to expire on 14 September 2004 the date he is eligible to be released to parole. In respect of the robbery in company and wounding he is sentenced to 3½ years fixed term to commence on 15 March 2000 and to expire on 14 September 2003. In respect of the larceny he is sentenced to a fixed term of 18 months from 15 March 2000 and which expired on 14 September 2001. I have chosen fixed terms in respect of these latter two sentences because of the sentence on the count of manslaughter.

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Last Modified: 11/16/2001