R v Newman
[2013] VSC 361
•17 July 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0028 of 2012
| THE QUEEN |
| v |
| GUY NEWMAN |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 17 June – 11 July 2013 | |
DATE OF SENTENCE: | 17 July 2013 | |
CASE MAY BE CITED AS: | R v Newman | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 361 | |
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CRIMINAL LAW – Sentence following jury verdict – Murder – Shot deceased with arrow fired from compound bow – Spontaneous offending – Medical conditions of prisoner increasing hardship of imprisonment – Sentence of 21 years’ imprisonment with non-parole period of 17 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Chadwick SC | Office of Public Prosecutions |
| For the Accused | Mr M. O’Connell SC and Ms D. Price | Theo Magazis & Associates |
HIS HONOUR:
Guy Newman, on 10 July 2013 you were found guilty by a jury of the murder of Trent McNamara following a three week trial at Sale. On your trial, you had raised the issues of whether the prosecution could prove beyond reasonable doubt that you were intending to kill Mr McNamara or cause him really serious injury and also whether the prosecution could prove to the same standard that you were not acting in self defence. You gave sworn evidence.
On 11 July 2013, I heard submissions concerning sentence from the prosecutor, Mr Chadwick SC, and from counsel on your behalf, Mr O’Connell SC. The maximum penalty for murder is life imprisonment and it is now my task to impose a sentence upon you.
Circumstances of the offence
The jury’s verdict of guilty of murder arose out of incidents which occurred on 17 May 2011. On that day, you killed Trent McNamara with a compound bow and hunting arrow. You and McNamara had known each other for some time. In the days leading up to 17 May 2011, a theft had occurred at premises at which you previously lived near the Bairnsdale airport. At those premises was a shipping container in which you, McNamara and others had some months earlier stored your belongings, including tools which you valued at between $20,000 and $30,000 in one compartment of the container.
On 16 May 2011, you were contacted by a friend of yours to tell you that the container had been broken into and your tools were missing. By this time you were living at Club Terrace, which is some significant distance away from Bairnsdale. Upon hearing this news, you contacted the police and then packed a number of belongings into a car with the intention of driving to Bairnsdale. The belongings you packed included your compound bow with its quiver of six arrows and also a sickle, or cane hook, as it is also referred to. In your evidence, you said your reason for doing so was because you felt that “personal safety might be an issue.”
It was clear that you suspected that either Trent McNamara alone or with others had been involved in stealing your tools. In addition to your contact with the police about the theft, you had had discussions with a number of people about who might have been involved. In those discussions, you mentioned your suspicion of Trent McNamara.
On 17 May 2011, McNamara made a series of attempts to make contact with you and it was eventually agreed between you that you and McNamara would meet at premises at 2 Lucknow Street in East Bairnsdale. Those premises were occupied by a friend of yours, Kylie Ainsworth. You had been at her house that morning when she locked her keys inside the house. It was agreed between the two of you that you would drive her to her workplace, where she was to start at 11.30am, and you would gain entry to her house and retrieve her keys before picking her up again at 2.30pm. When Trent McNamara was due to arrive at those premises, at around 2pm, you therefore had access to the house and Kylie Ainsworth was not home.
On your evidence, prior to his arrival you had removed the compound bow and arrows from your vehicle and placed them inside the house, leaning against a bookshelf. You said you also removed the sickle and placed it on the kitchen table. It was later located by police jammed in a lounge chair in the premises. You said you took the items inside because it was unusual for you to have those items with you and by keeping them out of the sight of Trent McNamara, you hoped to avoid him wondering why this was so. When McNamara arrived, you initially spoke in your vehicle and then moved into the house.
The issue in your trial was directly concerned with what happened next. Your trial was conducted on the basis that you were acting in self-defence. You gave evidence that after a discussion between you and McNamara inside the house, he took hold of the cane hook which was on the kitchen table and twice came at you in a threatening manner before you finally raised the bow and fired a hunting arrow into his body. Clearly, the jury rejected that you were acting in self-defence.
In my opinion, the jury are likely to have accepted two parts of the evidence as being true to have come to the verdict that they did. The first of those is the evidence given by a former friend of yours, Dennis Morgan, about what you said to him later that afternoon. That conversation arose in the following circumstances. After killing Trent McNamara, you took his body to a farm residence which was owned by your mother. Whilst you were out at that property, at around 5.00pm, you contacted Dennis Morgan and asked him to meet you there. He agreed and when he arrived you and he had a conversation. He described being told by you that you had killed Trent McNamara. He was, at first, disbelieving but was shown McNamara’s body by you. He then gave evidence about what you told him had happened in the following terms:
He [that is, you] said that he asked Trent to come around and put it to him about stealing the things out of his shipping container and he caught Trent out in a lie. He said he went outside, grabbed the bow, and came inside, and Trent sort of panicked and he let a shot off, and he hit him first shot, because Trent got up trying to run for it, to get out of there. He let the shot off, and hit him first shot, and he said he was screaming for about thirty seconds and blood went everywhere.
That evidence was heavily criticised during the trial and Mr O’Connell SC has, on your behalf, urged me to treat it as little more than surmise on the part of Morgan.
The other evidence which the jury must have accepted to have reached a verdict of guilty, was the evidence given by the pathologist Dr Malcolm Dodd and by the diagnostic radiologist Dr O’Donnell as to the direction of travel of the arrow. On the autopsy carried out on Trent McNamara’s body, there was a wound in the left-side of the mid-region of his back and a wound in the vicinity of the right collar bone. An issue during your trial was which of those wounds was the entry wound and which was the exit wound. Resolving that issue was important because it would be inconsistent with your account of what happened if Trent McNamara had effectively been shot in the back.
Dr Dodd described the arrow wound which he saw on the autopsy as being what he called a ‘through-and-through shot’, which means that the arrow passed through the body and came out the other side. As to where the arrow entered Trent McNamara’s body, he said “to the best of my ability, looking at the nature of the wounds and, in particular, the small chip of bone which has been pushed inwards I would say that the entry point is the left back region and the exit point is the upper right shoulder/chest region”.
Dr O’Donnell, who prepared and examined the CT scan images of the body of Trent McNamara, came to the opinion that the point of entry was the wound at the rear which pushed the piece of bone which had been both cut and fractured from the eighth rib into the thoracic cavity. He said the arrow then passed across the chest and came out through the right shoulder.
Clearly that evidence was in contention at your trial, but it inevitably follows the verdict that the jury accepted it as true.
That means that, for the purpose of sentencing you, I can come to two conclusions about the moment that you shot Trent McNamara. First, that McNamara was not armed with the cane hook or anything else as you described in your evidence. Second, in some way or another he was moving away from you and was moving with his back exposed to you.
I propose to sentence you on the basis that this was a spontaneous reaction by you to whatever had been said between you and McNamara. I would not sentence you on the basis that you planned for some time to lure McNamara to 2 Lucknow Street for the purpose of doing him harm or killing him. However, that said, the jury has concluded that this was a deliberate killing in circumstances where no threat was being offered to you.
After it had become apparent to you that Trent McNamara’s life was at extremely serious risk, you did not seek any assistance for him by way of emergency call to 000 or to the ambulance. Kylie Ainsworth, unaware of what was going on, rang you at about the time that Trent McNamara died. Her purpose in calling you was to remind you to pick her up and at about the very moment that Trent McNamara died and you had the presence of mind to answer the phone and to tell her you would not be long.
In the time between Trent McNamara’s death and you going to collect Kylie Ainsworth, you attempted to clean up what was obviously a very substantial amount of blood on the floor, with some also on the walls. Before you went and picked Ainsworth up, you moved Trent McNamara’s body into the shed in the backyard.
Following collecting Kylie Ainsworth and driving her back to the premises you spent some time apologising to her for the condition of her house. Although you claimed to be anxious that she not be aware of the death of Trent McNamara because of the effect it would have on her fragile emotional state, you in fact permitted her to see McNamara’s body lying in the garden shed at the back of the premises. You were then told by her to clean up the house and to get rid of the body. You offered her, on her evidence, a holiday or some time away at your premises at Club Terrace. You gave her $4,000 in cash, which she took and put in her pocket.
After she had left the premises, you visited the partner of a friend of yours asking that woman whether she had seen Trent McNamara, claiming that you and he had had a fight and that he had taken something that was not his. At about 3.20pm, you made two phone calls to Trent McNamara’s mobile phones. I am satisfied that at least at that stage, you had intended to do what you could to conceal your involvement in the death of Trent McNamara.
You then returned to 2 Lucknow Street and loaded the body of Trent McNamara into your car and drove out to your mother’s rural property. When you got out there, you unloaded the body in a shed near the house but then later tied a rope to the body which was wrapped in a blanket and dragged the body for some 150 metres to a location in the vicinity of a dam. It must have been at about that time that you rang your friend Dennis Morgan who came to the property, saw the body and urged you to “hand yourself in”, which you then did at the Bairnsdale Police Station. You have been in custody since that date.
On your behalf, Mr O’Connell SC submitted that I should not conclude that the killing of Trent McNamara by you was something that was planned for any time prior to the incident happening. On behalf of the prosecution, Mr Chadwick SC agreed with that and so do I. I sentence you on the basis that the action you took to kill Trent McNamara grew out of some form of confrontation between the two of you, probably concerning the theft of your tools from the container. As I have earlier outlined, it is clear from the jury’s verdict and my assessment of the facts, that during that argument or confrontation, Trent McNamara was not in possession of a weapon as you have claimed and did not launch an attack on you. Mr O’Connell SC suggested that the evidence given by Dr Dodd was consistent more with Trent McNamara rotating in some way rather than plainly retreating. Even if that be so, he was unarmed and not attacking you. In those circumstances, you fired a lethal arrow at him at very close range indeed.
Mr O’Connell SC also submitted that none of your conduct between the death of McNamara and your later arrival at the Bairnsdale Police Station should be regarded as anything other than explicable to you being in a confused, dazed and shocked condition. I am willing to accept that you were in a state of confusion during that afternoon but I am of the view that you did, at least for a short period of time, consider the possibility of trying to avoid responsibility for what you had done. However, to your credit, when your friend Dennis Morgan urged you to go the police, you appear to have readily accepted his advice.
One of the things you did do at the rural property was to drag the body of Trent McNamara behind your car a distance of 150 or so metres to where it was later seen by Morgan and located by police. Whatever motivation you had for doing that, it was a thoroughly disrespectful way to treat the body of the deceased man. However, ultimately that conduct did not lead to any attempt to conceal the body. You showed it to Morgan and the police had no difficulty locating it. I therefore do not sentence you on the basis that your treatment of Trent McNamara’s body was an aggravating factor.
Victim Impact Statements
During the plea the prosecutor tendered victim impact statements from the following people:
· Marlene May, the mother of Trent McNamara;
· Ian McNamara, the father of Trent McNamara;
· Shayla McNamara, the daughter of Trent McNamara;
· Johanna Hameeteman, the mother of Shayla McNamara;
· Tanya Hameeteman, a close friend of Trent McNamara who identifies herself as his sister;
· Sheridan Hameeteman, also a close friend of Trent McNamara who identifies herself as his niece; and
· Kylie Ainsworth, also a friend of Trent McNamara’s and in whose house you killed him.
Today, 17 July 2013, victim impact statements have also been provided from Sophie Grant, who is the mother of Trent McNamara’s two year old daughter, Isabelle Grant. A victim impact statement has also been filed by Gracie Grant, Sophie Grant’s elder daughter, who was in a daughter-like relationship with Trent McNamara for three years.
Some of these statements were read to the Court. They highlight the unsolvable trauma that you have caused by your actions. These people will be affected by your murder of Trent McNamara for the rest of their lives and for much of that time they will suffer. As is always the case, apart from sadness, I am struck by the futility of this tragedy and how easily it might have been avoided. I have taken the admissible portions of these statements into account in the sentence that I will shortly impose on you.
Personal Circumstances
You are 36 years of age. You have qualifications as a fitter and turner and, as your counsel pointed out, your criminal history is a limited one and not significant in the context of the nature of the sentence I must impose on you for the crime of murder. That history does not include any offences of violence.
You grew up and were educated in the Lakes Entrance area. You were close to your father who died in 2005. You are less close to your mother. Your education was completed to year 12. During your younger years you apparently suffered some significant bullying. After year 12, you were accepted to university but chose an apprenticeship with Esso instead, which you completed with two other firms. More recently, your career was running an automotive repair and maintenance workshop.
In 1996, you were involved in a serious motor vehicle accident as a result of which you sustained significant injuries to your back. Records were produced on your behalf to demonstrate that these injuries were serious and that the consequence of them will be with you, probably, for the rest of your life. Your injuries have had to be managed with pain medication and surgery but the injuries have caused a degenerating condition. In 2008, you were apparently seriously assaulted when strangers entered a house you were in, left and later returned. You were struck with wood which caused serious injuries to your skull, facial bones and cervical spine. Mr O’Connell SC submitted that your medical conditions will make your time in custody more difficult and I accept that is so.
Mr O’Connell SC has told me that you have support, even whilst in custody, from a network of friends and in particular a Ms Tracy Town whose family has taken on a family-like relationship with you. They have visited you and supported you since this incident occurred.
Potentially, some of the best years of your life will have passed by the time you are released from custody. You have already undertaken courses whilst in custody and will no doubt continue. The indications from the material presented on your behalf are that your prospects for rehabilitation are good.
Conclusion
Your conduct on 17 May 2011, of course, amounts to a very serious offence for which a substantial period of imprisonment must be imposed on you. You began the saga of your stolen tools with the feeling that there might be trouble and so, when you left your home, you packed your hunting bow and hunting arrows and a sickle. These were very dangerous weapons as you well knew because you have experience as an archer and in hunting using such weapons. Once in Bairnsdale, you put those weapons in the house at Lucknow Street where, ultimately, you were going to speak to Trent McNamara about that very matter. You suspected him of theft and you obviously lost control of your temper and fired a lethal arrow at him in circumstances where he presented no threat you. This conduct is reprehensible. Having caused his fatal injuries, you took no step at all to help him or call for medical assistance. You cared not at all for the fate of Trent McNamara. Whilst no doubt now concerned about what happened and, naturally, concerned for yourself, you are not remorseful. This is yet another case, where considerations of general and specific deterrence operate.
In all the circumstances, in my opinion, the appropriate sentence for me to impose on you is a period of 21 years’ imprisonment. I will direct that you serve a period of not less than 17 years before becoming eligible to apply for release on parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that your period of pre-sentence detention is 793 days, not including this day, and I direct that that period be reckoned as time already served by you and entered in the records of the Court.
On 11 July 2013, I made the orders for disposal of certain property pursuant to s 78(1) of the Confiscation Act 1997 and for retention of a forensic sample pursuant to s 464ZFB(1) of the Crimes Act 1958 sought by the Crown and not opposed on your behalf.
Mr Newman may be removed.
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