R v Michael Anthony GRUPE

[2007] NSWSC 1303

CITATION:	R v Michael Anthony GRUPE [2007] NSWSC 1303
HEARING DATE(S):	7 November 2007 8 November 2007
JUDGMENT DATE :	30 November 2007
JUDGMENT OF:	Berman AJ
DECISION:	The offender is sentenced to imprisonment for 19 years and 6 months with a non-parole period of 14 years and 6 months.
CATCHWORDS:	Criminal Law - Sentence - Murder - Extortion - Assault Rifles - Assistance to Authorities
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Liew and Lim unreported CCA NSW 24 December 1993 Markarian v The Queen (2005) 79 ALJR 1048
PARTIES:	The Crown Michael Anthony Grupe
FILE NUMBER(S):	SC 2007/1719
COUNSEL:	C. McPherson - Crown C. Bruce - Offender
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

Introduction

1 Victor Elliot was the chief radiographer at Tweed Heads Hospital. He also had a number of other business interests and was believed to be reasonably well off. He ran cattle on two properties and looked after a family company.

2 At one stage he had a financial interest in a legal brothel named the Stardust Club. His interest in the brothel was transferred to a man by the name of Daniel Scott. Mr Elliot was in the process of building another brothel, also legal, at 31- 33 Morton Street Chinderah.

3 At about 5.30 pm on the 26th of May 2000 Mr Elliot went to leave the building site. He was driving his black Mercedes Benz sedan. He parked his car on the footpath in order to lock the wire gates to the premises. He got out of his car leaving it running but as he did so a dark green Nissan Patrol 4-wheel drive drove in front of Mr Elliot’s car blocking its exit. There were two men in the 4-wheel drive: one was the offender Michael Anthony Grupe and the other was a man by the name of Utz. They were each heavily armed. They had been engaged by Mr Scott to kidnap Mr Elliot and extort money from him, but when Mr Elliot resisted and tried to get away he was shot and killed. The circumstances of Mr Elliot’s death will require some close examination later in these remarks on sentence.

4 I wish to make one thing clear at the outset. There were suggestions in the material before me that the offender had been told that one of the reasons they should attempt to extort money from Mr Elliot was that he was a drug dealer who had a large sum of cash in his house. There is not a shred of evidence to suggest that Mr Elliot was anything other than a law-abiding citizen. Even the offender himself now accepts, as he told Dr Westmore, that Mr Elliot was neither a drug dealer nor a criminal. Mr Utz may have told the offender that Mr Elliot was a drug dealer in order to make it more likely that the offender would become involved in this offence, but if he did, as I have made clear, that was not true at all.

The Death of Mr Elliot

5 Let me now explain the circumstances that led to the tragic death of Mr Elliot. As part of the transfer of Mr Elliot’s interest in the brothel to Mr Scott, Mr Elliot received Mr Scott’s home. This had been his family home and the evidence suggests that he resented the fact that it was transferred to Mr Elliot. This, and perhaps other factors as well, led to simmering resentment on the part of Mr Scott towards Mr Elliot.

6 He came up with the idea of extorting money from Mr Elliot. He approached Mr Utz who in turn approached the offender. There came about a carefully constructed plan to kidnap Mr Elliot and demand money from him. As part of that plan Mr Elliot’s movements were closely observed and a sketch plan of his house prepared. Firearms were obtained as well as an enormous quantity of ammunition. Two of the firearms obtained were assault rifles, AK47s, capable of rapid fire with high-powered ammunition. The other weapon used on 26 May 2000 was a silenced .22 pistol.

7 On that day the offender and Mr Utz went to the building site in the 4-wheel drive vehicle, which had been stolen from the Australian Army. Mr Utz and the offender were previously members of the Army and were clearly therefore trained in the use of firearms.

8 Eye witness evidence confirmed that Mr Elliot was confronted by two men and, to a limited extent, there is independent evidence as to what the two men did. But neither the eye witness evidence, nor the forensic evidence, was able to show which role was performed by Utz and which role was performed by the offender. As I will shortly explain, one of the two men was directly responsible for the death of Mr Elliot by chasing him and shooting him but I repeat, the objective evidence does not enable me to say whether that was Mr Utz or the offender.

9 However the offender has given a version of events to police in which he attributes the more serious conduct to Mr Utz, and the less serious conduct to himself. The attribution of the two roles by the offender is uncontradicted. It is important to note at this stage that one of the reasons that the evidence is incapable of contradiction is that Mr Utz is himself now dead, having been killed by the offender in self-defence.

10 In those circumstances I have examined very carefully the material before me to determine whether I should sentence the offender on his version as to the role he played and the role Mr Utz played in the death of Mr Elliot. The Crown accepts that that is what I should do because what corroborative evidence there is supports what the offender says. I will therefore sentence the offender on the basis that what he told police about his role, and the role of Mr Utz was accurate. In the light of that finding I will now explain more precisely how it was that Mr Elliot died.

11 As I mentioned earlier, the plan was to kidnap him, so when he was seen to be leaving the building premises the offender drove the 4-wheel drive in a way that it blocked the path of Mr Elliot’s vehicle. Both the offender and Utz leapt out of the 4-wheel drive, with the offender going to the rear driver’s door and opening it so that Mr Elliot could be bundled inside and be driven away.

12 But Mr Elliot bravely resisted. When Mr Utz approached him with the .22 pistol Mr Elliot ran away across the road to the grass verge. There he struggled with Mr Utz who attempted to force him back to the vehicle. During the course of that struggle Mr Utz shot him with the pistol but this did not significantly disable Mr Elliot who broke free and ran away again, this time in the direction of a parking lot in front of an adjacent building.

13 As he was running away the offender grabbed the assault rifle with which he was armed, pointed it in the direction of Mr Elliot and fired what he called a “burst”. Six spent cartridges were later found in the vicinity of where the offender says he was standing when he fired that burst. The offender said it was his intention to stop Mr Elliot running away. Quite why he expected that Mr Elliot would stop on hearing six shots fired in his direction was never explained. Five of the bullets missed Mr Elliot, damaging the building towards which he was running, and there was no evidence as to what happened to the sixth. It may be that it struck Mr Elliot or it may be that it too missed Mr Elliot and has never been found.

14 As the offender was shooting in the direction of Mr Elliot, Mr Utz was chasing after him. He caught up to Mr Elliot and forced him to the ground. Once in that position Mr Utz put his foot on Mr Elliot’s legs, then took his AK47, pointed it at Mr Elliot’s body and shot him. He shot him very many times. Mr Utz’s firearm had a magazine attached to it and that magazine contained 30 rounds of ammunition. The offender believed that Mr Utz emptied his magazine into Mr Elliot. A later forensic examination revealed 15 fired 7.62 mm cartridge cases located around the body of Mr Elliot, 12 of those rounds had struck Mr Elliot’s body along with two bullets from the silenced .22 with which Mr Utz was also armed.

What happened after Mr Elliot was killed

15 Mr Utz and the offender got back into the 4-wheel drive and drove away. The offender was allocated the task of destroying the vehicle in order to prevent any forensic evidence being found which would link him or Mr Utz with what they had done. The offender failed in his attempt to do that as the vehicle was found by police shortly afterwards.

16 Examination of the 4-wheel drive and its contents revealed a number of fingerprints. They were shown to include the offender’s fingerprints when they were compared with fingerprints taken from the offender in August 2000. Those fingerprints were taken during an interview that the offender had with police in Queensland. He was later interviewed on 19 November 2000, also in Queensland, and asked to explain the presence of his fingerprints on items found either in or near the 4-wheel drive vehicle. The offender gave an exculpatory explanation.

17 There matters stood until March 2003 when the offender shot and killed Mr Utz during an altercation. Although he was later acquitted of murder on the grounds of self-defence, police investigations into this incident revealed evidence linking the offender to the murder of Mr Elliot. In particular the offender assisted police to recover a large number of firearms which he possessed. Included in the material seized by the police was a bolt which was positively identified as being the bolt that was in the AK47 which discharged the six rounds which the offender fired in Mr Elliot’s direction.

18 Also present when the offender shot Mr Utz was a man by the name of Troy Pinwill He told police other information which incriminated the offender in the murder of Mr Elliot. Given those circumstances the police interviewed the offender once more on 19 March 2003. On this occasion the offender admitted his role in the murder of Mr Elliot.

Objective Gravity

19 The circumstances of Mr Elliot’s death were truly appalling. Two men, only interested in financial reward, and prepared for violence of a most extreme kind, reacted when their plan went awry by shooting either in the direction of, or directly into, Mr Elliot. He was helpless on the ground having already been shot twice with a .22 pistol at the time Mr Utz fired twelve 7.62 mm bullets into his body.

20 A considerable degree of planning went into the commission of this crime. Not only did the offender and Mr Utz arm themselves, and obtain a vehicle which had earlier been stolen, but Mr Scott provided to them photographs of Mr Elliot and other documents to assist the offender and Utz kidnap Mr Elliot. Mr Scott also took the offender and Utz to the location from which Mr Elliot was to be kidnapped as well as his home, the idea being that after kidnapping Mr Elliot he would be taken back there. The offender was armed with an AK47 together with a considerable quantity of ammunition. He was wearing a vest which had within it four or five magazines each containing 30 rounds.

21 He said to police in an interview with them that after Mr Elliot began to run away he panicked and:

“fired a burst… in the general direction of the man … I don’t know if I hit him it wasn’t my intention to kill the man, I just wanted him to stop running away”.

22 It should not be thought that the discharge of six rounds was the result of merely one action on the part of the offender. The AK47 he was armed with was either not capable of, or not selected to, automatic fire. This means that the offender had to pull the trigger each time he wanted to discharge the weapon.

23 The fact that he discharged six shots and not more was not the result of the offender realising that he might kill Mr Elliot. He cannot gain too much comfort from the fact that he fired only six shots. The evidence established that as he was firing in Mr Elliot’s direction, Mr Utz was also running after Mr Elliot and if the offender had fired more shots at Mr Elliot he recognised that he might well have hit Mr Utz instead.

24 There is an issue relating to the offender’s culpability concerning the offender’s intention at the time he fired six shots in the direction of Mr Elliot. It may well be that the offender did not form the firm intention to kill Mr Elliot when he did that, but he must clearly have recognised that there was a good chance that he would do so, given both the fact that the offender fired in Mr Elliot’s direction, and the likely consequences for Mr Elliot if one of the projectiles hit him. The offender’s intention was to stop Mr Elliot running away and if that could only be done by shooting him then it seems that that was a consequence that the offender was prepared to accept.

25 I am satisfied beyond reasonable doubt that this was not a case where the offender deliberately shot away from Mr Elliot’s position so that the sound of gunfire would cause him to stop running away. It was a case where the offender wanted to stop Mr Elliot and when he fired in his direction he recognised the significant risk that he would kill him. In those circumstances it is not really a matter of great moment that the evidence would tend to suggest that the offender missed Mr Elliot and that the person who killed him was Mr Utz.

26 The offender had no grudge against Mr Elliot. He was prepared to kidnap him and then extort money from him purely for the financial reward it would bring him. He was initially offered the chance to become involved in the criminal activity by the suggestion that if he did so he would never have to work again. The offender told police

“I mean yes, it was risky, but if you never have to work again, half a million dollars is a lot of money”.

27 It was greed therefore that got the offender involved in this crime, a crime which led directly to the death of Mr Elliot. The offender eventually did get some money out of this after Utz demanded compensation from Scott.

28 The offender went into this very much with his eyes open. He claims that it was not part of the plan that Mr Elliot be killed but the circumstances of the offender’s involvement clearly demonstrate an acceptance by the offender that this was at least a possible outcome of his criminal activities. The offender was armed with a firearm which he knew to be loaded with a substantial quantity of ammunition. It is worth repeating for emphasis that in case the 30 rounds in the offender’s firearm were not enough he had another four or five loaded magazines on his person. As he said to police there is no point in having a firearm if it is not loaded to which can be added this proposition: loading a firearm is a waste of time unless you are prepared to discharge it by pulling the trigger. Thus the offender was clearly prepared to discharge his loaded firearm in the event that it was necessary. Further he knew that Utz was also armed with a loaded firearm and was prepared to discharge his firearm if that were necessary as well.

29 I will sentence the offender on the basis that he is guilty of murder in two ways. The first relates to participation in a joint criminal enterprise whereby he foresaw at least the possibility that Mr Elliot would be murdered and the second relates to the principles of what used to be called felony murder.

30 Although the plan hatched by the offender and Utz was that Mr Elliot would be kidnapped, not killed, clearly the offender at least contemplated the possibility of that occurring. Mr Bruce submitted that I would sentence his client on the basis that he foresaw that grievous bodily harm would occur. That submission underestimates the offender’s criminality. One only needs to refer, once again, to the extent to which the offender was armed, (a semi-automatic assault rifle with at least 120 rounds of ammunition) and the extent to which Mr Utz was armed, (not only did he have an assault rifle but also a silenced pistol), to see clearly that the offender must have contemplated that somebody would be killed, most likely Mr Elliot, and that the likelihood of this occurring was high indeed. Although it would be sufficient to justify murder if the offender contemplated the possibility that someone would be killed I consider that the offender’s contemplation of that occurring was such that he thought that that was a likely outcome of the enterprise which he and Utz was engaged in. Why else would he need to take such an inordinate amount of firepower?

31 I will take into account, in the offender’s favour, that it was part of the plan that Mr Elliot not be killed. Mr Utz and the offender clearly needed Mr Elliot alive in order to carry out their criminal intention of extorting money from him. I find, also in the offender’s favour, that his desire that Mr Elliot not be killed was not only the product of him needing to be alive in order to get money from him, but was also the product of the offender’s wish not to be responsible for the death of another human being. His preference would have been that Mr Elliot was not killed, but as I have mentioned earlier he participated in a common purpose with Mr Utz, recognising the significant possibility that Mr Elliot, or someone else, would die in the course of their criminal activities.

32 In any case, the fact that a person has killed another in the course of a robbery, when the death of the victim was not planned, does not automatically mean that there is a lower level of culpability than cases of murder involving an intention to kill.

33 I will also take into account that the offender played a less important role that Utz. It was Mr Utz who made all the arrangements and it was Mr Utz who had done most of the planning. Mr Utz was the leader and the offender was the follower. On the other hand this was certainly not a case where the offender had to be pressured or persuaded before he got involved. He explained his motivation to police by telling them that the possibility of never having to work again was worth the risk of what he did. Nor was the fact that the offender was incorrectly told that Mr Elliot was a drug dealer a matter which he regarded as important beyond explaining why Mr Elliot would have a large sum of cash at his home. There is nothing to suggest that the offender would have refused to get involved if he had known that Mr Elliot’s financial position was as a result of lawful endeavours.

34 In R v Liew and Lim, unreported CCA NSW 24 December 1993, the case concerning the murder of Dr Victor Chang, there is reference to the finding of the sentencing judge that a planned extortion is an aggravating feature which places the crime of murder in the category of a case of the worst kind. The Court of Criminal Appeal agreed with the finding of the sentencing judge that the fact that the murder arose out of a plan to extort money from Dr Chang was “a very serious aggravating factor”. I will therefore treat the fact that the offender planned to extort money from Mr Elliot as a very serious aggravating factor.

Subjective Factors

35 The offender had an unremarkable upbringing. He was born in Brisbane in 1974, to parents who separated when he was a young man. He was the oldest of three boys. He left school at the age of 16 before commencing an apprenticeship as an electrician. He joined the army reserves before joining up full time but resigned after four years after reaching the rank of Lance Corporal. He had planned to get work installing pay TV, and for a while he did work installing antennas, but he and Mr Utz, whom he met in the army, instead agreed to rob “drug dealers and criminals”.

36 The offender’s family disapprove of his behaviour but they remain supportive of him. Whilst in custody the offender has commenced to study for an engineering degree.

Remorse

37 There is some evidence that the offender is remorseful, although he did not give any evidence to that effect. In fact he gave no evidence at all during the sentencing proceedings.

38 The offender told Dr Westmore that he accepted responsibility for what he has done, and believes that being put into custody was a good thing for him.

39 The offender said to police:

“I just want to clear this all up, I want to put it behind me…there’s a family out there that doesn’t have a father or a brother or an uncle … anymore. I’d like them to know what happened”.

40 The offender also relies on a letter from his uncle Mr Smiley in support of his claim to be remorseful. It has to be said that Mr Smiley’s expressions of opinion have to be taken with a grain of salt because, despite his nephew’s plea of guilty to murder, Mr Smiley does not believe that the offender could have committed murder. Mr Smiley’s opinion therefore flows from a false base.

41 The offender also relies on a letter from a friend of his, Mr Philip Amos. Mr Amos says that from talking to the offender and visiting him in prison, he knows that the offender deeply regrets the path he chose to take.

42 Of course it is very fortunate that few people who have been involved in the death of another are not sorry for what they have done. This is especially the case when, as here, the death of Mr Elliot was not planned. I am satisfied that the offender is sorry that his criminal activities led to Mr Elliot’s death but that is a different question from whether he is remorseful in the sense that he recognises the considerable moral culpability that he bears.

43 As I will discuss in more detail later, the offender has assisted the authorities in the past and promised to assist them in the future. Of course often offenders assist the authorities solely because of self-interest. In those cases assistance to the authorities is not evidence of remorse. But in this case part of the offender’s motivation for assisting the authorities is to see that others who were criminally involved in the enterprise are punished. Thus in those circumstances the assistance he has given, and promised to give, is evidence which I will take into account in deciding whether the offender is remorseful.

44 Primarily because of the offender’s assistance to the police in mounting the case against him, but also because of his assistance regarding Mr Scott, I am satisfied that the offender is not only sorry for his present predicament but also remorseful for his criminal conduct which led to the death of Mr Eliott.

Character

45 As far as the offender’s character is concerned, he has been convicted of serious offences in the past and has also committed a serious offence which has not led to any conviction. The reason that that matter, an attempted home invasion, has not resulted in the offender’s conviction is because the only evidence of the offender’s involvement in the offence comes from the offender himself in a statement to police which would not be admissible against him if he were ever prosecuted for that matter. Despite that circumstance Mr Bruce concedes that I am able to take it into account in assessing the offender’s character. That offence had disturbing similarities with this one: he and Utz were both armed with assault rifles and each of them had more than 100 rounds of ammunition; it was their intention to steal money from another person, also said to be a drug dealer, but fortunately on this occasion they were spotted and they left before they were able to put their plan into effect.

46 Also important is assessing the offender’s character are the circumstances of the armed robbery offence committed by the offender in 2002. Notwithstanding that he had already been involved in a criminal offence which involved the use of semi-automatic weapons and which led to the death of Mr Elliot, the offender nevertheless participated in an armed robbery with Mr Pinwill in which he and Mr Pinwill were armed with large semi-automatic military weapons. The offender claims to have been significantly affected by the death of Mr Elliot. Those feelings of remorse he had for his involvement in Mr Elliot’s death were not sufficient to prevent him being involved in the armed robbery of security guards in Kingaroy on 18 October 2002.

47 Even ignoring his involvement in the offence for which I am to sentence him, the offender was clearly not a man of good character at the time of his arrest for the murder of Mr Elliot.

Assistance

48 Let me now turn to the offender’s assistance to the authorities. For obvious reasons I will exercise some circumspection when dealing with this issue.

49 The offender has assisted the authorities in the past and offered to assist them in the future. He has told police about Mr Scott’s involvement in this crime and has done some things at their request in order to obtain evidence which would incriminate him. He has also offered to give evidence against Mr Scott should he ever be charged with this crime.

50 I note that it s23 (2) Crimes (Sentencing Procedure) Act there is a list of factors which I “must” consider in determining the discount I will allow for the offender’s past and future assistance to the authorities. The very first matter listed is “the effect of the offence on the victim or victims of the offence and the family or families of the victim or victims”. Victim impact statements were tendered which record the loss suffered by Ms Sandy Weeks, Mr Hugh Elliot and Ms Dallas Elliot. Notwithstanding s23(2)(a) I received those victim impact statements in accordance with long established authority. It is appropriate that I acknowledge their grief and extend my sympathies to them.

51 I am also required to evaluate the significance, usefulness, nature and extent of the assistance as well as the truthfulness, completeness and reliability of any information or evidence provided by the offender.

52 Chief Inspector Malcolm Lanyon gave evidence that until the offender made admissions to police during his interview with them on 19 March 2003 they did not have enough evidence to charge him with the murder of Mr Elliot. His admissions to police therefore were of considerable assistance in making out the case against him. Further this was not a case where the offender merely confirmed police suspicions or conceded the accuracy of evidence they had already obtained. In Chief Inspector Lanyon’s evidence he gave an example of information volunteered by the offender which was previously unknown to them.

53 No decision has yet been made as to whether Mr Scott will be charged. Whether he is charged or not clearly affects the utility of the offender’s assistance, but as things stood on the 8th of November 2007 when Chief Inspector Lanyon gave evidence, that could not be determined.

54 Chief Inspector Lanyon was asked whether he believed that the information the offender provided was truthful. He answered:

“as a result of a number of pieces of corroborative evidence we have as a result of those statements and interview I have no doubt to disbelieve the accuracy of what he has given us”.

55 Further the officer said that he had no reason to think that the offender was withholding any information.

56 The offender’s assistance is clearly potentially important too. He was asked, “without the information provided by the offender there is clearly no case against Scott in relation to a murder charge?" To which he responded, "I’d have to agree with that sir”.

57 Detracting from the potential value of the assistance is the fact that the offender had been interviewed twice by police before his interview with them on 19 March 2003 and in both of those earlier interviews he proclaimed his innocence. His credibility is thus clearly going to be the subject of some attack should he give evidence against Mr Scott. Related to this is the circumstance that the undertaking to give evidence and the assistance to the authorities only came some considerable time after the murder of Mr Elliot.

58 One of the other factors which I am required to consider in assessing the impact of the offender’s assistance on the sentence I must impose concerns his conditions of custody. I received evidence on this matter and will sentence him on the basis that it is almost certain that he will have to serve his sentence on protection. However no longer is it automatically assumed that those serving their sentences on protection will do their time in custody harder, because of that fact, than those in the general prison population. Indeed evidence tendered on the part of the offender suggested that at Parklea, where he is held at the moment, his conditions of custody are similar to those who are not on protection. There is however a risk that in future that will not be the case and so I will take that risk into account.

59 I will not separately quantify the reduction in sentence which arises because of the offender’s assistance, from the discount which arises because of his early plea of guilty. The offender pleaded guilty in the Local Court and was committed for sentence to this Court although for administrative purposes only an indictment was presented in this Court and the offender pleaded guilty.

60 On occasions the Court of Criminal Appeal has encouraged sentencing judges to separately quantify a discount for promised future assistance to aid in re-sentencing in the event that the offender does not comply with his undertaking. However, we do not know whether Mr Scott will ever be charged with the murder of Mr Elliot. If he is, and the offender gives evidence against him, then that assistance will be of substantial value to the authorities. But as things stand at the moment, whilst there is a promise to give future assistance, it cannot be said that this will include giving of evidence against Mr Scott.

61 The offender’s promise to assist in the future extends beyond the giving of evidence and encompasses active co-operation with police. But again we do not know what form that co-operation will take and how useful it will be. There are thus considerable difficulties in quantifying the value of the offender’s promised assistance. I will assess it as things stand at present and, I repeat, the way things stand is that Mr Scott has not been charged and the offender will therefore not be giving evidence against him.

62 I propose to indicate a discount on the sentence that I would otherwise have imposed which combines the considerations of the offender’s early plea of guilty and his assistance to the authorities, but which assumes that he will not be giving evidence against Mr Scott.

63 If things change, and if as a result of Mr Scott being charged the offender does give evidence, then any reward for that assistance, which the Crown acknowledged would be significant assistance, is a matter for the Executive.

64 There is of course the constraint which appears in s23(3) Crimes (Sentencing Procedure) Act: the sentence I impose must not be unreasonably disproportionate to the nature and circumstances of the offence. It is with that constraint in mind that I have chosen the appropriate reduction in the present case.

Conditions of Custody

65 As well as the conditions of custody possibly being objectively harsher than those of the general prison population there is one undeniable circumstance that will impact on the way the offender does his time in custody and that is this: prisons are dangerous and violent places at the best of times, and the attitude of prisoners to those who have assisted the authorities is well known. There is a real risk to the safety of the offender whilst in custody and the offender’s knowledge that this is the case will mean that he is always looking over his shoulder and will always have to be vigilant. That is a circumstance which will affect the harshness of the offender’s custodial conditions.

Prospects of Rehabilitation

66 I have no doubt that the offender’s desire to rehabilitate is genuine, but that is not the same thing as saying that his prospects of rehabilitation are good.

67 Dr Westmore, who had the advantage, which do I not have, of hearing what the offender had to say, said:

"I do not think I can indicate that I know this man well enough after a single examination to advise you what his risks of re offending are, however if he can achieve further education and receive ongoing support when he returns to the community, then his prognosis may be favourable".

68 The fact that he has assisted the authorities may inhibit his reconnection with those with whom he was associating in the past, and the sentence I will shortly announce on him will tend to deter him from future offences, but, like Dr Westmore, I am uncertain whether the offender will commit more crimes upon his release from custody.

69 In those circumstances the offender has not satisfied me that he has good prospects of rehabilitation, nor that he is unlikely to re-offend.

Sentence

70 The Crown submitted that, objectively, this case deserved life imprisonment, although conceding that a determinate sentence should be imposed once I take into account the subjective features, as well as the offender’s plea of guilty and assistance to the authorities.

71 In resisting the Crown’s submission Mr Bruce primarily relied on the circumstance that the death of Mr Elliot was unintended although of course not unforseen. Had this been a case where the offender went intending to kill Mr Elliot then objectively a life sentence would be clearly called for, but it does not automatically follow that, again objectively, a life sentence would not be appropriate in the present case. But to answer the question of whether the objective circumstances in the present case require a starting point of life imprisonment, which must then be adjusted to take into account the subjective factors, and then once again adjusted to take into account the plea of guilty and assistance, is to run the risk of indulging in the process held to be inappropriate by the High Court in Markarian v The Queen (2005) 79 ALJR 1048

72 My approach is this: I will take into account all of the factors, apart from the utilitarian benefit of the plea of guilty and the assistance to the authorities, which will enable me to determine the appropriate sentence in the absence of those two factors. I will then indicate the discount that I have allowed for those matters in combination, bearing in mind the constraint referred to in s23(3) Crimes (Sentencing Procedure) Act . This which will enable me to determine the appropriate sentence in this case.

73 I should mention that this is not a case where the standard non-parole period has any application because the offence was committed before the 1st of February 2003. Because of the date of the offence, I will also announce the head sentence first. There was no submission made that I would find special circumstances and so, with an allowance for rounding, the non-parole period reflects the statutory ratio.

74 In the absence of the plea of guilty and the assistance I would have imposed a sentence of imprisonment for 30 years. I have decided to reduce the sentence I would otherwise have imposed by 35% to reflect the assistance and plea of guilty. It was agreed that the sentence should commence on 30 May 2005, that being the date of expiry of the offender’s non-parole period for the armed robbery offence in Queensland

75 Thus the offender is sentenced to imprisonment for 19 years 6 months with a non parole period of 14 years 6 months. The sentence commenced on 30 May 2005 and so the non parole period will expire on 29 November 2019 on which date the offender is eligible to be released to parole.

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