R v Minter

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MINTER
[2011] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
9 March 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES
The appellant and Matthew Heyward were convicted of the murder of Glenys Heyward - both were sentenced to life imprisonment with a 23 year non-parole period - the appellant appeals against sentence on the basis the sentencing Judge erred in not reducing the non-parole period below the mandatory minimum sentence of 20 years' imprisonment and in concluding that the offending exceeded the lower end of the range of objective seriousness.
Appeal dismissed. The sentencing Judge was correct in concluding that the degree of cooperation was such as not to amount to special reasons, pursuant to the Criminal Law (Sentencing) Act 1988 (SA) s 32A(3)(c) - even if it could be said that the appellant cooperated in the investigation, the cooperation was of limited assistance and the later conduct of the appellant was of such a nature that the sentencing Judge was justified in concluding special reasons did not exist to support a reduction to the non-parole period below the mandatory minimum - the sentencing Judge was correct in finding that the offending of the appellant far exceeded the lower end of the scale of objective seriousness for crimes of murder.
Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ab), s 32A, s 32A(1), s 32A(3)(c), referred to.

R v MINTER
[2011] SASCFC 11
Court of Criminal Appeal: Sulan, Vanstone and White JJ

SULAN J: I have read the draft reasons of Vanstone J. Vanstone J has dealt with the background facts, and I do not need to repeat them. I agree that the appeal has no merit. I would dismiss the appeal. There are, however, some matters to which I wish to refer.
The murder of Mrs Heyward was planned and callous. The appellant was a participant. As Vanstone J has observed, Neil Heyward could never have carried out his plan to kill his wife without the assistance of the appellant.
I refer particularly to the submission of the appellant’s counsel, that the Judge erred in not reducing the minimum non-parole period. I make the following observations. For the offence of murder, the mandatory minimum non‑parole period is 20 years’ imprisonment.[1] Section 32A of the Act provides:[2]
[1]    Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ab).
[2]    Criminal Law (Sentencing) Act 1988 (SA) s 32A.
Mandatory minimum non-parole periods and proportionality
(1)     If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.
(2)     In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may –
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)     In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;
(b)if the offender pleaded guilty to the charge of the offence – that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.
(4)     This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
The appellant complains that the sentencing Judge was in error in concluding that special reasons did not exist and, further, was in error in concluding that the offending exceeded that at the lower end of the range of objective seriousness. The sentencing Judge stated:[3]
Your counsel, Mr Vadasz, on behalf of you, Jeremy Minter, argues that special reasons do exist because of your cooperation in the investigative process.
In short, I find that your admissions to the police do not amount to such cooperation to allow such special reasons to exist and, at any rate, in relation to both of you, this offending exceeds that at the lower end of the range of objective seriousness.
[3] AB 167.
The basis of the complaint by counsel is that the appellant did, in fact, cooperate in the investigation, and that the Judge failed to have regard to that cooperation in arriving at his decision that the non-parole period was to be 23 years.
In order to understand why the Judge arrived at his conclusion, it is necessary to trace some of the background leading up to what it is alleged by the appellant to have amounted to cooperation.
Mrs Heyward was murdered on the night of 23 July 2007. Police suspected foul play when she was reported missing, but their investigations were proving difficult because Mrs Heyward’s body had not been found and, although there was a great deal of suspicion surrounding her disappearance, there was insufficient evidence to conclude that she, in fact, had been murdered. Police inquiries had been extensive, but inconclusive.
That all changed in the early hours of 4 August 2007, when the appellant told a witness that he had killed Mrs Heyward and had been paid $3000. The appellant threatened the witness that he should keep quiet, or the witness would be killed. The police were informed of the conversation. When spoken to by the police, the appellant denied any involvement in Mrs Heyward’s murder. At about the same time, police interviewed Matthew Heyward, who also denied his involvement.
The police then commenced an under-cover operation. On 16 November 2007, the appellant was recorded speaking to an under-cover officer. During that conversation, he said that he last saw Mrs Heyward when she was dumped in a wheelie bin and he had helped to lift her on to the back of a truck. He said that it was all about the divorce settlement, and that Neil Heyward had been involved. He also told the under-cover officer that Neil Heyward had asked him some time, before the incident, if he knew any “heavy hitters”, and that he would offer $10,000 if the appellant could find someone.
On 22 November 2007, the appellant was recorded as having said that the worst that might happen to him is that he was an accessory to murder. He said that he did not know whether the deceased had been murdered, but he assumed that she had because if there was an intention to allow the person to live, she would not have been put in a wheelie bin.
The appellant was arrested on 23 November 2007. When the appellant was first interviewed, he denied any involvement in the crime. The police then showed him portions of the video recording in which he was recorded speaking to the under-cover police officer and making the damaging admissions to which I have earlier referred. The appellant then spoke to his father and agreed to a further interview with the police.
On 24 November 2007, the appellant told the police that Neil Heyward had approached him and asked him to drive to an address in Mount Gambier. He told the police that he saw shackles and duct tape in the car. He was present when Matthew Heyward brought the deceased to the house where she was shackled, gagged and kicked in the face by Neil Heyward. He and Neil Heyward then placed her inside the wheelie bin and on to the back of the vehicle and drove to premises where Thomas Heyward was waiting. The appellant told police that Neil Heyward had previously approached him and asked him if he could find someone to do a “hit job”.
The appellant was unable to assist the police in locating Mrs Heyward’s body but, as a result of his statement, police were able to link another person to the event. That person owned the property upon which the deceased was buried, and was able to lead police to the location of her body.
After the appellant had been interviewed by the police, Detective Inspector Barr of the Major Crime Investigation Branch wrote to the appellant’s then legal advisors acknowledging that the information provided by the appellant implicated Neil Heyward, Thomas Heyward and Matthew Heyward in the murder of Mrs Heyward. The letter stated:
The cooperation of your client to this time has been considerable and significantly progressed the investigation. I advise I have personally expressed to the Director of Public Prosecutions the extent to which your client has assisted police thus far.
Given the gravity of the crime it is highly desirable that the remaining offenders are expeditiously charged with this crime. To this end police seek the continued cooperation of your client.
I would appreciate if you could advise whether your client is prepared to continue to cooperate with police and give evidence for the prosecution consistent with his interviews with police, should the other persons implicated by him be charged in connection with this offence.
I would appreciate if you could give these matters your urgent consideration given the other offenders remain at large. Please advise if further material or information is required to expedite this matter.
Detective Georg, one of the investigating officers, provided a statement that dealt with the appellant’s cooperation. In that statement, Detector Georg stated:
On Saturday 24 November 2007, following contact with his father and, after seeking further legal advice, Mr. MINTER offered to assist Police in the investigation of the murder. Of concern to Mr. MINTER however, was that he was in fear of his personal safety whilst in custody and in the community. He expressed a high level of anxiety and was worried about possible repercussions from others should he provide information to police about the murder. I gave an undertaking to Mr. MINTER that his personal safety would be given a high consideration. I explained that the Police Department and the Department of Correctional Services were morally and legally bound to safeguard his well being to the best of their ability. I suggested he may be a candidate for protective custody within the prison system.
Mr. MINTER subsequently participated in a number of video interviews in which he made full and frank admissions as to his involvement in the murder of Ms. HEYWARD. Mr. MINTER implicated three other persons as being involved in Ms HEYWARD’s murder; namely Neil HEYWARD, Matthew HEYWARD and Thomas HEYWARD. Mr. MINTER also assisted with the investigation by identifying a number of premises and a vehicle connected with the murder. As a direct result of his assistance, Police we [sic] able to locate the primary crime scene and the vehicle used in the commission of the offence.
The letter was written and the statement made at a time when police were hopeful that the appellant would cooperate further and, ultimately, give evidence against Neil Heyward and his sons. The appellant’s cooperation was, however, limited to approximately 72 hours. Basically, in his statements to the police, the appellant elaborated upon what police had already found out in the course of the under-cover operation. Some limited additional information was provided. Counsel for the Director concedes that the appellant’s statements to the police had some limited significance. The circumstances of the cooperation were such that little credit could be given for it.
Thereafter, the appellant denied his involvement. He did not cooperate further with the police. At his trial, he claimed that the statements he had made were unreliable, and that when he was interviewed he was confused because the police put him under pressure and manipulated him. He claimed that police had influenced his father to convince him to speak to the police. He denied his admissions were reliable. He denied any participation in the murder.
In the circumstances, the sentencing Judge was, in my opinion, correct in concluding that the degree of cooperation was such as not to amount to special reasons, pursuant to section 32A(3)(c). Even if it could be said that the appellant cooperated in the investigation, the cooperation was of such limited assistance, and the later conduct was such that the Judge was justified in concluding special reasons did not exist to support a reduction of the non-parole period below the mandatory minimum. Further, I agree with the Judge that this was a crime which well exceeded the lower end of the scale of objective seriousness for crimes of murder. The appellant participated in a pre-meditated murder. The stated motive for the murder was Neil Heyward’s wish to avoid having to pay his wife monies as part of their divorce settlement. The appellant participated for financial gain and future financial favours he anticipated he could receive. The appellant participated in a plan to lure the deceased to a location which was suitable to attack her and hide her in the wheelie bin. He exhibited no regard for her. He knew she was to be killed. The Judge was correct to conclude that the appellant knew the deceased’s fate when he accompanied Neil Heyward to the premises to which the deceased was tricked by her son into attending.
The appellant has shown no remorse. His arrest was as a result of his having a loose tongue and speaking to an under-cover police officer. His limited cooperation occurred after it must have been clear to him that the police had evidence of his involvement. The cooperation was short-lived. The non-parole period of 23 years was entirely appropriate.
VANSTONE J:
Introduction
The appellant stood trial together with Matthew Heyward for the murder of Glenys Anne Heyward. The prosecution case was that the two accused men, along with the co-accused’s father, Neil Heyward, were part of a joint enterprise to kill the deceased. Both men were convicted by verdicts of the jury and sentenced to life imprisonment with non-parole periods of 23 years. Neil Heyward committed suicide before going to trial.
The appellant appeals against the sentence. His principal argument is that the judge failed to give sufficient weight in mitigation to assistance the appellant gave to police during the investigation of the offence; first in terms of that assistance leading to a reduction of the mandatory minimum non-parole period and, alternatively, using that co-operation in a general way, so as to reduce the non-parole period to the level of the mandatory minimum. Further, it is complained that the judge erred in finding that the appellant was part of a joint enterprise to kill the deceased.
Background
On the night of 23 July 2007 Matthew Heyward induced his mother to go with him to a derelict house out of Mount Gambier under the pretence that he was considering its purchase. He acted at the instance of his father. At about the same time, the appellant drove Neil Heyward to the house in Heyward’s utility. There, Neil Heyward kicked the deceased in the face, shackled her and placed her into a Sulo bin. The appellant assisted him. They loaded the bin onto the back of the utility and then drove away to meet Neil Heyward’s second son, Thomas Heyward. When the appellant left them, the deceased was still shackled in the bin which was sitting on the back of Neil Heyward’s vehicle. The judge found that Neil Heyward later drove the deceased to a property at Wilkin in Victoria, where he bludgeoned her to death. The judge found that the appellant at all stages knew that the woman was to be killed.
During the investigation the appellant provided information to the police. That information came initially through undercover interviews with the appellant. On the strength of this material he was arrested for the deceased’s murder. At that point he chose to remain silent. He was told that if he co-operated with the police the court would be informed of that co-operation. It appears that at this point the police considered the appellant’s information to be crucial to the success of the investigation. On the strength of these representations, the appellant took part in an interview, describing his part in the events. He also flew with the police to Mount Gambier and accompanied police to various locations with a view to his identifying the house to which Thomas Heyward had induced the deceased to go. It is accepted that the appellant was not able to identify the house, perhaps because some modifications had been made to it in between times. He was further interviewed at Mount Gambier on the following day. At that stage police were not aware of the location of the deceased’s body. Subsequently police obtained photographs of the interior of the house and the appellant confirmed that it was the relevant premises. Police acknowledged that as a direct result of the appellant’s assistance, they were able to locate the primary crime scene and the vehicle used in the commission of the murder. Ultimately the body was located in part as a result of the assistance provided by the appellant.
Arguments on appeal
Mr Vadasz argues that the judge erred in failing to find that the appellant’s assistance to the police was a qualifying factor in terms of s 32A(3)(c) of the Criminal Law (Sentencing) Act 1988. Mr Vadasz argues that the appellant’s admissions to the police in interview and his further discussions with the police during a period when it was thought that he might give evidence on behalf of the Crown, amounted to relevant assistance. The judge found that it was not such a factor. The judge went on to say that even had he considered that it answered that criterion as expressed in s 32A(3)(c), he would not have gone on to find that there were special circumstances to reduce the non-parole period below the mandatory minimum of 20 years. Indeed, the judge observed that the seriousness of the offending was such that it was not within the “lower end of the range of objective seriousness”, so as to attract the mandatory minimum: s 32A(1).
Analysis
There is a nice question whether any admissions made by any accused, which have the effect of enhancing the body of knowledge which police have about the crime under investigation, can amount to assistance for the purposes of s 32A(3)(c). Of course, in this matter the discussions extended beyond what was said in the usual interviews between police and the appellant. It appears that at one point the appellant offered to plead guilty to manslaughter and give evidence for the prosecution. In any event, I consider that whilst it would have been open to the judge to take the view that the appellant’s conduct did meet the terms of the subparagraph, the judge was also entitled to take the view that it did not. No error is demonstrated in that assessment by the sentencing judge. That means that it is unnecessary to go on to consider the judge’s further intimation that, even if he had found one of those criterion in s 32A(3) to be made out, that would not have led him to find that there were special reasons to reduce the non-parole period. Having found that something more than the mandatory minimum was called for, the judge’s intimated position seems to follow.

Mr Vadasz’s further argument based on the assistance to police is that the non-parole period of 23 years was manifestly excessive inasmuch as, in taking the non-parole period above the mandatory minimum, it failed to reflect that assistance. He pointed to the identical non-parole period which the co-accused, Matthew Heyward, received. He argued that since Matthew Heyward could not claim to have assisted the police, there was a failure to reflect that difference in the appellant’s favour.
It is unnecessary in my view to descend to detail about the wider factors relevant to the sentencing of each man. The judge made a particular point of remarking upon the evil and manipulative nature of the man said to be at the centre of the crime, namely Neil Heyward, and the fact that he manipulated and controlled his son Matthew. Plainly the actions of Matthew Heyward were, to some extent, governed by his father’s will. This was a clear point of discrimination between Matthew Heyward and the appellant. In addition, it might be that the knowledge of having taken part in the murder of his mother will bear heavily upon him and that, of itself, was a relevant factor in fixing his non-parole period.
It is true that the judge made no particular mention of any assistance to the police by the appellant, apart from observations in relation to the question of whether s 32A(3)(c) was engaged. However, there is no reason to think he overlooked it. The judge was entitled to take the view that what was pitched as assistance was in truth information volunteered to the police in an effort to minimise the appellant’s own conduct and perhaps to assuage his own conscience. The fact is that it did not extend to pleading guilty or to giving evidence against his co-accused. Had it done so, the appellant’s position would now be very different. I consider he was not obliged to give any particular weight to it in terms of mitigation.
The final argument made on behalf of the appellant was that the judge erred in finding that the appellant’s conduct was part of a joint enterprise to kill the deceased, as opposed to finding that he had merely aided and abetted her killing.
The prosecution case presented to the jury was that the three men determined upon a plan to abduct the deceased so that she might be murdered by Neil Heyward. The judge found that Neil Heyward “co-opted the help of” both the appellant and Matthew Heyward. The judge found that Neil Heyward asked the appellant to help him and that the appellant acquiesced. From his interview with police it was plain that the appellant knew that his help was needed by Neil Heyward – who had certain physical infirmities – and that he could not have accomplished it without that assistance. The judge found that the appellant was present at the time when the deceased was overpowered, shackled and placed in a bin. That bin was placed on the traytop of a vehicle, which was driven away by Neil Heyward, in company with the respondent. This was the prosecution case at trial, which was accepted. In my view the judge was plainly entitled to find proved that the appellant was part of a joint enterprise. The finding was unsurprising, particularly given that for some time Neil Heyward had been asking the appellant if he knew somebody who could be hired to kill someone.
Conclusion
In my view this appeal is without merit. I would dismiss it.
WHITE J. I agree that the appeal should be dismissed.
The circumstances of the murder of Ms Heyward, and the extent of the appellant’s participation in it, made it almost inevitable that the Judge would be satisfied that a non‑parole period greater than the minimum of 20 years was appropriate. That being so, the appellant’s complaint that the Judge had not considered matters which may have enlivened the discretion to fix a non‑parole period of less than 20 years, if the circumstances of the offence had not been so serious, tended to miss the point. Further, the appellant has not established that the Judge overlooked any circumstance of mitigation in fixing the nonparole period which he did.

[2011] SASCFC 11

9 March 2011

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Criminal Law

Evidence

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Appeal

Charge

Sentencing