R v Masters
[2001] VSC 111
•10 April 2001
| SUPREME COURT OF VICTORIA | Not Restricted |
| CRIMINAL DIVISION |
No. 1411 of 2000
| THE QUEEN | Plaintiff |
| v | |
| BENJAMIN MASTERS, MATTHEW CAFFERY, CHELSEY CAMPBELL, DAVID NORTHERN | Defendants |
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JUDGE: | Teague J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26, 27, 28 February & 23 March 2001 |
DATE OF JUDGMENT: | 10 April 2001 |
CASE MAY BE CITED AS: | R v Benjamin Masters & Ors |
MEDIUM NEUTRAL CITATION: | [2001]VSC 111 |
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Manslaughter – Invasion of home at night – Deafness of three prisoners – Significant mitigating circumstances – Substantial disparity warranted.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | W. Morgan-Payler Q.C. | Department of Public Prosecutions |
| For the Accused (Masters) (Caffery) (Campbell) (Northern) | S. Langslow M. O'Connell P. Jones P. Morrissey | Victorian Legal Aid Victorian Legal Aid Victorian Legal Aid Victorian Legal Aid |
HIS HONOUR:
Benjamin Masters, Matthew Caffery, Chelsey Campbell and David Northern, each of the four of you has pleaded guilty to manslaughter as a result of the killing of Craig Higgs in December 1999.
Benjamin Masters and Matthew Caffery, each of the two of you has pleaded guilty to recklessly causing serious injury to Sonya Higgs in December 1999.
What I have said and am about to say to the four of you will be heard only by Matthew Caffery. The other three of you are profoundly deaf. Profound deafness also afflicted the deceased Craig Higgs and his wife Sonya Higgs. The implications of your deafness impacts on many aspects of what I am to say. At times I will try to make that clear, at other times you will have to accept that I have tried to make appropriate allowances.
Around 2:30 a.m. On Tuesday 7 December 1999 the four of you, pursuing a common plan, illegally entered the house of Craig Higgs and Sonya Higgs in Hoppers Crossing. Your common plan was to break into the Higgs' home and to rob Craig Higgs. Each of you had a particular role to play. You anticipated that there might be problems and you planned how to deal with those problems. You all wore gloves to avoid leaving fingerprints. You all had a form of weapon. Three of you had a length of hollow metal pipe. David Northern had a long security torch as well as a glass cutter. Only Matthew Caffery did not wear a stocking mask. A bag was on hand to carry away the fruits of the robbery.
You had certain information about Craig and Sonya Higgs. The information included that they were both deaf and that they had children living with them. That information was accurate. The information also included that Craig Higgs had in the house a lot of money from dealing in drugs. That information was not accurate.
The role of Chelsey Campbell was to put the telephone in the Higgs' home out of use and to make sure that no action by any one of the children interfered with the robbery. It was to achieve that purpose that she carried her length of pipe.
The role of the three men was to enter the bedroom of Craig and Sonya Higgs. It was there that a lot of money was believed to be located. It was not part of the plan to assault Craig or Sonya Higgs. You believed that their deafness might mean that they might not even wake up, but the plan included having the weapons at hand to deal with the possibility that you might be disturbed. The plan was that anyone interfering would be struck. In that event, the plan was that whoever struck the blow was only to strike such a blow as would knock out the person interfering. In other words, the person struck was not to be seriously injured.
For reasons that will later appear, I accept that all four of you had the extraordinarily nave belief that that was a reasonable course to follow.
You, Benjamin Masters, had for several weeks been formulating a plan to rob Craig Higgs. You said so to at least two friends. What you said included these things: you knew there was lots of money in his wardrobe, you planned to take a girl to look after the children, further, you planned to hit Craig Higgs and make him blackout. On Monday 6 December what you said to one of your friends included these things: you were going to get 44 million that night, your girlfriend and two guys were going to help you, you were going to wear doctors' gloves and stockings.
You, Chelsey Campbell, were recruited by Benjamin Masters to be the girl who would "look after" the children. You agreed to do as you were asked for a mixture of reasons: you were emotionally attached to Benjamin Masters, you feared that you might lose him if you did not do as he asked, your thinking was affected by your navet. Unfortunately, a substantial degree of navet typically affects people suffering from a profound hearing loss since birth. Unfortunately, you believed Benjamin Masters when he spoke of a great deal of money to be gained relatively easily. Unfortunately, you also believed him when he spoke of the possibility of people having to be made to blackout.
You, David Northern, were recruited by Chelsey Campbell only in the afternoon of Monday 6 December. She told you part of the plan. Benjamin Masters provided more details later. Even on what you were told by Chelsey Campbell you knew that you were to take part in the burglary and that you were to take with you a spare set of clothes, a glass cutter and a sizeable torch.
You, Matthew Caffery, were recruited by Benjamin Masters in two stages. First, you were given an outline of the plan by telephone. On the night of Monday 6 December you were given more particulars. You were told that at the house to be burgled there was lots of money and that there might be a gun.
Chelsey Campbell's role included that of being the driver. As driver, you collected David Northern from his home and drove to the home of Benjamin Masters. There the metal pipes were placed in the boot of the car. The three of you spent the Monday evening at a club for the deaf and at the casino before you met up with Matthew Caffery at a home in Richmond. There was then further planning. You changed into dark clothes. You prepared stocking masks. You purchased gloves. With Chelsey Campbell driving, the four of you set out to break into the home of Craig and Sonya Higgs in Hoppers Crossing.
Craig and Sonya Higgs lived in their home with five children. Four were their daughters aged from seven years down to one year. Also living in the house was the 12 year old son born to Craig Higgs from an earlier marriage. The five children were not hearing impaired.
After the car had been parked, Matthew Caffery and David Northern went to the house, tried the doors and found them locked. Benjamin Masters and David Northern then gained access to the house through a kitchen window and let in the other two. David Northern was then holding the torch. Each of the other three of you were holding metal pipes. Chelsey Campbell disconnected the kitchen telephone and moved to the area of the children's bedrooms. The three males moved to the bedroom of Craig and Sonya Higgs.
It is not possible to infer why the plan to proceed without disturbing the sleeping couple was not carried out. It is also not possible to infer how many blows were struck or by whom the blow that caused the death of Craig Higgs was struck. The evidence does enable me to be satisfied that Benjamin Masters and Matthew Caffery each hit both Craig Higgs and Sonya Higgs. David Northern struck no blow, but ran out of the bedroom and the house shortly after blows were struck. Matthew Caffery was not far behind him in leaving the house and going back to the car. Benjamin Masters and Chelsey Campbell remained for some time searching the house, but then came away empty-handed.
After you left the Higgs' home, all four of you took part in measures to dispose of the metal pipes.
During Tuesday 7 December you, Benjamin Masters, gave an account to a friend of what had happened. You spoke of having hit two people, of there being a lot of blood, of your not knowing whether the people you hit were dead or alive, and of your accomplices being "chickens". I regard the contents of that conversation as highly significant, particularly as to my assessment of the appropriate disparity in sentences as between the four of you.
Through the following Thursday and Friday the police came to interview all four of you. I am satisfied that the accounts then given to the police by each of Matthew Caffery, Chelsey Campbell and David Northern were substantially accurate. I accept that, as to Chelsey Campbell and David Northern, it would be inappropriate to treat too literally the answers provided given the difficulties inherent in communications with persons who are profoundly deaf.
I turn to the subject of the seriousness of your criminal behaviour. What was planned was an invasion at night of a suburban home by four people. All four knew there were or would probably be adults and children asleep in the home. All four were armed. All four were prepared to deal with contingencies like the need to make a forcible break-in and to respond to resistance. All four were interested in the financial gain that was expected to be made from the break-in. Multiple wounds were inflicted to the head of both victims. In the case of Sonya Higgs the injuries included a fractured jaw and were serious enough to mean that she spent a week in hospital. In the case of Craig Higgs the injuries were so serious as to cause his death.
Considerations of denunciation, general deterrence and special deterrence mean that no punishment short of imprisonment could be an adequate response to such criminality, even after having regard to the highest level of extenuating circumstances.
As will shortly appear, there are many extenuating circumstances applying as to each of you. The circumstance that these are such appalling crimes, yet that you are so incongruously criminals, has made my task in determining the most appropriate sentences for you a more difficult exercise in sentencing than I have ever before experienced.
I have received and read closely two victim impacts statements. One is from the mother of Craig Higgs, who has shouldered the added burden of caring for the son of Craig Higgs, that is, the son who was wakened from his sleep on 7 December 1999 by the sounds of his parents being beaten. The other is from a woman who provides care at times for the four daughters of Craig and Sonya Higgs. It seems that Sonya Higgs in April 2000 suffered injuries in a motor vehicle accident and is no longer able to care for her daughters. The statement of the mother of Craig Higgs is carefully composed and is a depressing reminder of the magnitude of the tragedy that has befallen all members of the Higgs family. The victim impact statements are a significant means of helping to keep in balance the various factors relevant to sentencing.
I turn now to the many extenuating factors which apply to all four of you. You are all young. The oldest as at December 1999 was 23 and the youngest was then 17. The courts have long and often stressed the need to make allowance for youth in determining appropriate sentences. None of you have prior convictions. Each of you has offered, some time ago, to plead guilty either to manslaughter or to another offence less than murder. Each of you has offered to give evidence as to what happened on 7 December 1999, if there had been occasion to do so. You are not to lose the benefit of offering to co-operate with the authorities simply because there will be no occasion to make use of the cooperation.
All of you have been the subject of evidence as to your good character. Twenty-six witnesses gave oral testimony before me on the plea. As to Matthew Caffery, I have further written testimonials. Nowhere in relation to any one of the four of you is there any hint of a disposition to violence. A common theme is that criminality of the order handed out to Craig and Sonya Higgs is totally out of character.
All of you as at December 1999 were nave and gullible, indeed, trusting to a fault. The assessment of navet was made by all or almost all witnesses, whether expert, family member, friend or otherwise.
As to the three who suffer from a hearing disability, those traits were linked to the disability. As to Matthew Caffery, the traits were linked to youth, a protective family and a sheltered religious upbringing. No person with a normal balance of trust and scepticism would be likely to accept that a family man would keep $1 million in his bedroom wardrobe. A like comment applies to the view that a metal pipe could be so precisely wielded as to cause merely a blackout with no long lasting effects.
All of you have served time in protective custody. Any further period of detention is likely to be so spent. The reason, or the main reason for the protective custody has been squarely raised before me. The father of Craig Higgs is currently serving a prison sentence. There is an understandable perception that he would be displeased about the killing of his son and the consequences for the family of his son. It seems that there is a further perception, that is, that he will or may resort to criminal behaviour directed to one or more of you in order to wreak vengeance for what you have done. I am only in a position to, and therefore will not, speculate as to the soundness of the basis for that perception. I say no more as to that matter, save that I am prepared to accept that an allowance should be made by me for the circumstance that past time in custody has been spent, and future time in custody is likely to be spent, in protection.
For reasons that include limits on choices in education, in programs and any other activities, time spent in protective custody is likely to be more onerous on a prisoner than time spent in the mainstream.
Time in custody for the three of you who are deaf also has been more onerous than for prisoners with hearing. Further time in custody will continue to be so. The reasons for that were the subject of evidence from more than one witness, they include that the isolation is aggravated, that the communication problems are accentuated, and that the vulnerability to the predatory acts of other prisoners is potentially much higher for deaf prisoners than for prisoners with hearing.
Each of you has an extremely supportive family. Behind each supportive family is a constellation of supportive relatives and friends. I heard oral testimony from at least one parent and from other friends of you and your families. It was apparent that many more would have confirmed what was said by those who gave that testimony.
The three of you who are deaf have support from the deaf community. The three of you who are deaf have commendable work records. All the indications are that the prospects of rehabilitation are good, if not very good, for all of you.
In the course of the plea a number of reports of psychologists were tendered and have been read by me. They were: as to Matthew Caffery from David List, as to Chelsey Campbell from Ian Joblin, and as to David Northern from Bernard Healey. I heard oral testimony from those three psychologists, and from Helen Barnacle as to Chelsey Campbell. I also had before me two other reports, one was the literacy assessment report on Benjamin Masters from Linda Komesaroff, the other was a pre-sentence report prepared by Stephen Riordan as to the suitability of Matthew Caffery for a youth training centre. I direct that a copy of all those reports be sent with a copy of these sentencing remarks to the Adult Parole Board. I need not set out again here many matters of history and of assessment favourable to you that I have noted from the reports.
I do not accept that the disability of deafness can be treated as a mental condition warranting any significant moderation of the principle of general deterrence.
In the case of all four of you I accept that there is genuine remorse for your actions.
I turn to some matters individual to each of you:
Benjamin Masters, you are now 21 years of age, having been born on 27 September 1979. You are the oldest of five children. You found schooling difficult, particularly English, and always needed special teaching assistance. You were left with limited reading and writing skills. You worked hard to get into Year 11 but were struggling to attain even much lower levels. In your final year of schooling a man offered you work experience. Your trust in that man was abused. He raped you. The consequences of the rape were understandably traumatic. You became scared, anxious, agitated and withdrawn. You spent some months with a relative in Europe. You still felt ashamed. You saw less of your old friends and associated with different people. At the time of your arrest you had been working as an apprentice for a builder, Howard Stopford, who gave evidence before me. He could scarcely have been stronger in his praise for your working ability or your character.
Matthew Caffery, you are now 18 years of age, having been born on 15 May 1982. You are significantly younger than the other three in the dock. You are one of twins. Your twin brother suffers physical handicaps which meant that his needs required continuing attention. As a teenager you came to resent the attitudes and aspirations of your parents. You moved through different schools. In about April 1999 you withdraw from school. In September 1999 you left home. By December of that year you were living where you could find a bed. You were desperate for money when offered the chance to take part in the events of 7 December.
Chelsey Campbell, you are now 22 years of age, having been born on 23 February 1979. You are the youngest of three girls. You had trouble with schooling. Your parents went to great trouble to try to maximise your chances of getting as good an education as possible. You have had health problems, having a severe iron deficiency. You have worked at and have studied to gain qualifications as a sign writer. Your plan is ultimately to run your own business in that field.
David Northern, you are now 24 years of age, having been born on 18 May 1976. You are the third of five children. You are intellectually handicapped. You cannot read, although you attended schools for the deaf until aged 15. Despite many obstacles you have completed an apprenticeship as a glazier. You have made yourself a valued employee. You have plans to marry and move out of Melbourne.
As I said earlier, and for the reasons set out earlier linked to the gravity of the criminal conduct in which you engaged, I am satisfied that there is no appropriate option but to impose a sentence of imprisonment on all four of you.
The commissioning of a youth training centre assessment as to Matthew Caffery seemed not inappropriate, but only because it was a possibility warranting exploration. Perhaps an enthusiastic endorsement of the youth training option might have swayed me away from my preliminary thinking that only imprisonment was appropriate. Instead, what has been provided is less than an endorsement, with reference to matters that are significantly speculative.
I turn to considerations of parity as to which there are a number of applicable legal principles. Despite the submissions of Mr Langslow to the contrary, I am satisfied that substantial disparity is appropriate. There are some, but not many reasons for differentiating in the light of mitigating circumstances like youth, intellectual disability and being a victim of crime.
Benjamin Masters, you are very much at the top of the scale. You were responsible for almost all of the planning of the events. You wielded blows with your metal pipe that struck both Craig Higgs and Sonya Higgs. You were present when blows were struck by Matthew Caffery. He was later to be disparaged by you as a "chicken". Your description of events both as to what was planned and as to what had happened points strongly to your level of involvement being very much greater than that of the other three.
You, Matthew Caffery, must rate as the next most seriously involved given that you have admittedly entered into a plan for an aggravated burglary and armed robbery, and have then assaulted two people in their bed in their home at night with a metal bar.
You, Chelsey Campbell, committed no actual assault, but you were a party to the burglary plan for weeks. You recruited David Northern, you disconnected the telephone of the Higgs', you were prepared to wield a metal bar outside the bedrooms of sleeping children, and you took part in a search of the Higgs' bedroom after the assaults.
You, David Northern, are at the bottom end of the scale. You were recruited late, and you left the house when you realised what was happening. Nevertheless, you went along with a plan for extremely serious criminal behaviour.
It is necessary that I do make the appropriate declarations as to pre-sentence detention. I do so as to each of Benjamin Masters and Matthew Caffery for 488 days, Chelsey Campbell for 65 days, and David Northern for 102 days.
The sentences of imprisonment I impose are as follows:
Benjamin Masters. For manslaughter, 7 years' imprisonment. For recklessly causing serious injury, 2 years' imprisonment, concurrent as to 1 year and 6 months. The effective term is 7 years and 6 months. I set a non-parole period of 4 years.
Matthew Caffery. For manslaughter, 3 years and 6 months' imprisonment. For recklessly causing serious injury, 2 years' imprisonment, concurrent as to 1 year and 6 months. The effective term is 4 years. I set a non-parole period of 2 years.
Chelsey Campbell. For manslaughter, 3 years imprisonment. I set a non-parole period of 6 months.
David Northern. For manslaughter, 3 years imprisonment. I set a non-parole period of 4 months.
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