R v Norrie
[2001] VSC 478
•7 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1532 of 2000
| THE QUEEN |
| v |
| ANDREW MARK NORRIE |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2001, 17 October 2001 | |
DATE OF SENTENCE: | 7 December 2001 | |
CASE MAY BE CITED AS: | R v Norrie | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 478 | |
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Criminal Law – Sentencing – Murder - Criminal enterprise extending across state borders – Principal of totality – Life sentence – Minimum term fixed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. G. Horgan S.C. | Solicitor for Public Prosecutions |
| For the Prisoner | Mr. A. Shwartz | Victoria Legal Aid |
HIS HONOUR:
Prisoner at the bar, you have pleaded guilty to one count of murder; the murder of Mark John Lynch, on the Princes Highway near Orbost in this State on 4 March 1986. That murder was cold blooded, apparently motiveless, and committed without any semblance of provocation.
The grizzly story, of which the event to which you have now pleaded guilty was but the last criminal episode, commenced at the end of February 1986, in Brisbane. You and a then 16 year old boy, one Scott Thompson, with whom you had apparently been living in a homosexual relationship, went together to a sports store. At that store you bought a Sterling semi-automatic .22 rifle and paid a deposit on another. You purchased ammunition and a number of magazines for the rifle.
The following day you returned to the sports store and completed the purchase of the second rifle. On the same day, 28 February, you rented an Avis car from Brisbane Airport and commenced driving with Thompson south from Brisbane towards the New South Wales border. In the car with you there was a vast amount of ammunition, spare magazines, and camouflage army-type uniforms.
You crossed the New South Wales border and at about 2.00 a.m. on Saturday 1 March, for no apparent reason, you and Thompson commenced shooting at a Nissan van driven by a Mr Bishop on the Pacific Highway near Ballina. In the vehicle with Mr Bishop was a Mrs Hendy and her two infant children. Fortunately, none of them was injured despite your having rammed the van before driving on. In due course, you pleaded guilty to two counts of shooting with intent to murder in the New South Wales Supreme Court in respect of this episode.
You and Thompson continued to drive south, shooting at various things as you did so, until, on about 2 March, you all but destroyed an unoccupied parked car which had broken down near Kiama on the New South Wales south coast by firing a number of shots into it. On the following day, before dawn, you fired a further fusilade into a house at Merou, near Nowra. Fortunately, again, no-one was injured.
On Monday 3 March, you and Thompson stopped near Corunna Lake, a little south of Merou, where a Mr Bruest had gone fishing. After a short verbal exchange you began to fire at him and encouraged Thompson to do the same. Mr Bruest died from one or more of the seven gunshot wounds which he suffered. Before he died you took a wallet from his back pocket. You left his body by the lake.
After having murdered Mr Bruest, you and Thompson continued driving south into Victoria. On the following day in East Gippsland you picked up a hitchhiker, Mark John Lynch, who was seeking a ride towards Sydney. You turned around, picked him up, and drove some distance towards Sydney, telling him that you had beer and dope in the boot, which he could share. A short while later you stopped near a pile of road screenings. Lynch alighted from the car. You then fired a number of shots at him, one or more of which caused his death. After dragging his body a short distance, you turned the vehicle around and you and Thompson headed again towards Melbourne.
The two of you drove on, through Melbourne, and eventually to Mt Gambier, South Australia, where you were arrested after you and Thompson had a falling out and Thompson called the police.
Shortly after your arrest you were extradited to New South Wales to face the consequences of your crimes in that State. Before being extradited you were interviewed by Victorian police. You made full admissions to the murder in a record of interview which was chilling in its frankness.
In the course of that interview at the Mt Gambier CIB office you gave as your explanation for having shot Lynch:-
"I was bored, just wanted to shoot someone. We were going to call at houses and I just wanted to shoot people."
Later you said:-
"We just picked him up, I thought we'd kill him."
When asked how many times you shot Lynch you said:-
"I emptied a magazine at him and a couple more after that."
When asked how many that was, you said:-
"About 15 shots."
In your initial record of interview you did not implicate Thompson in this murder. In a subsequent interview at Narooma on 14 March you alleged that Thompson fired the first shots at Lynch. It matters little, for sentencing purposes, which version is true. Your complicity in the crime as a principal in the first degree is undoubted. Your counsel, on this plea, put forward his instructions that you had been drinking before the murder occurred. You said the opposite to the police in the course of your interrogation, as you did to at least one psychiatrist who subsequently examined you. I do not accept that you had been drinking at the time of this murder but, again, it makes little difference. In the circumstances if you had been drinking, it would have been neither a mitigating nor aggravating factor for sentencing purposes.
Your victim was a 35 year old, apparently harmless man suffering from a severe psychiatric illness. He offered you no violence, nor, it would appear, was his conduct in any way provocative. He was simply seeking a ride home to Sydney.
Upon your extradition to New South Wales you were charged with one count of murder, one count of armed robbery, two counts of shooting with intent to murder, and one count of maliciously injuring a dwelling house. You pleaded guilty to each of these charges at the Supreme Court in Wollongong. On 31 July 1987 you were sentenced by Finlay, J to life imprisonment in respect of the murder, ten years gaol on the count of armed robbery, and 15 years gaol in respect of each count of shooting with intent to murder. His Honour considered that had a determinate sentence been imposed in respect of the murder it would have been appropriate for the sentences in respect of the shooting with intent to murder to be cumulative upon that sentence. On the remaining charge of maliciously injuring a dwelling house you were sentenced to three years' gaol. The life sentence for murder was, at that time, mandatory in New South Wales unless your culpability was significantly diminished by mitigating circumstances. His Honour found no such circumstances.
Your sentence commenced on 7 March 1986 and you have been in custody in various New South Wales prisons since. Recently you were transferred to Victoria, where you have continued to serve the sentences imposed by the New South Wales Court. Accordingly, the sentence which I will impose will commence today. You have no credit for any pre-sentence detention. However, I have taken into account the fact that this matter first came before this Court on 19 July of this year. I have been informed by the Crown that were it not for the life sentence which you are presently undergoing you would be entitled to release in February next year. Unless and until a term is fixed in respect of that life sentence you will remain in custody indefinitely.
Some seven weeks before you were sentenced by Finlay, J, and whilst on remand at Long Bay Gaol, you attempted to cut another inmate's throat with a steak knife, which you had obtained the day before for that purpose. Your victim suffered a cut to his index finger and a laceration to his head. In sentencing you in the New South Wales Supreme Court on 17 November 1988 on a count of wounding with intent to murder, Campbell, J described the attack as vicious and unpremeditated, without justification or motive other than for your own pleasure in killing. The defence of mental illness which you put forward at your trial in respect of this offence was not accepted by the jury. Campbell, J sentenced you to a further term of ten years' imprisonment cumulative upon the fixed terms (totalling 15 years) imposed by Finlay, J the year before.
I refer to this event because, although it is not a prior conviction for the purpose of the offence in respect of which I must now pass sentence, it is relevant to any consideration of your conduct since the murder of Mr Lynch in March 1986. As I explain below, the long period which has elapsed since that offence renders your conduct in the intervening period relevant to the question of your prospects of effective rehabilitation.
Prior to the crime with which I am presently concerned, you had been involved in activities of a similar nature, though of lesser severity. In September 1982 you acquired a number of convictions arising out of an escapade in which you damaged property with a gun. You were sentenced to a total of two years imprisonment in respect of those offences by the Manly Court of Petty Sessions. They are relevant prior convictions for the purpose of the sentencing process in which I must engage.
Whilst in prison, in January 1989, you wrote a distressing and frightening letter to a close relative of the man you had shot near Narooma. Dr Walton, who was called on your behalf, agreed that it was designed to distress its recipient. I regard it as a form of violence perpetrated by you from within the prison system. The only saving feature of this episode at this stage is the fact that it occurred almost 13 years ago. As a result of it your capacity to communicate with the outside world was severely restricted by prison authorities.
It is of the nature of all of us that when we are confronted with deeds as objectively evil as those which brought you before the Supreme Court of New South Wales and now this Court we embark on a search for some explanation. In your case, such a search is largely fruitless. It commences with a consideration of a large bundle of reports of psychologists and psychiatrists who have examined you since you were first remanded in custody in 1986.
One of the first psychiatrists who examined you, Dr William Barclay, in a report dated 22 October 1986 expressed the opinion that you were a psychopath. He explained that term (which is apparently no longer in vogue) as applying to a personality disorder which is generally not regarded as a mental illness. The doctor quoted the following description of psychopathic behaviour from a psychiatric text book:-
"The behaviour of the psychopath is directed almost entirely towards the satisfaction of personal needs, without any concern for the needs and welfare of others. This behaviour apparently is not merely symptomatic of some underlying neurosis, psychosis or lack of general intelligence although Cleckley's term 'The Mask of Sanity' implies that there is something drastically wrong somewhere. The psychopath is extremely impulsive, irresponsible, hedonistic, selfish and intolerant of frustration. But perhaps his most important distinguishing features are an almost total lack of empathy and affection for others, coupled with an absence of any genuine indication of guilt, anxiety, or remorse for his persistent pattern of social and amoral behaviour. At the same time psychopaths are often quite charming, persuasive, fascinating and fun to be around, for at least a while." (Robert D Hare in "Psychopathy and Violence, Violence and the Violent Individual", Spectrum Publications New York 1981 p 53.)
Dr Barclay was prepared to find that you were suffering from "an abnormality of mind", but he did so based on the almost trite observation that anyone would regard what you did as being abnormal. He, along with a number of other psychiatrists who examined you prior to your trial in the Wollongong Supreme Court considered that you were legally sane at all relevant times and, accordingly, had no defence at common law of insanity. Nor, for that matter did you have any defence of diminished responsibility which would have reduced the crime of murder to manslaughter.
Upon entering the New South Wales prison system you were regarded as a security risk and have been treated as such for most of the period of your incarceration. This has involved a high degree of separation from other prisoners, leading to an exacerbation of your already severely introverted personality.
In your early days in prison some medical practitioners suspected that you may have suffered from some form of psychosis; perhaps paranoid schizophrenia. You were even treated with psychotropic drugs and hospitalised for a period. The better view, which is shared by the vast majority of psychiatrists who have seen you, is that your condition cannot be described as a mental illness but rather as a personality disorder with perhaps paranoid and/or schizoid traits.
In 1995 you made an application to the Supreme Court of New South Wales to have the life sentence imposed upon you by Finlay, J converted to a fixed term of years. It appears that you have so far declined to prosecute that application but, in support of it, in July 1999, your solicitor obtained a psychiatric report from Dr William E Lucas, a Canberra psychiatrist. Dr Lucas' extensive report documents his opinion to the effect that you suffer from a severe personality disorder with mixed schizoid, anti-social and "borderline" traits. Referring to you he said:
"His apparent incapacity to experience remorse or empathy is notable and can be described as extreme. I am sure there are offenders whose incapacity in this regard is equally severe but Mr Norrie's frankness makes his incapacity all the more striking. A feature of his personality remarked on in many reports is a tendency to agitation and tension which he has sought to control by avoiding contact with others and, when he was in the community, by regular excessive drinking."
Dr Lucas did not consider that you were schizophrenic but was of the opinion that your serious offences arose from your personality disorder. He suggested that you required further psychiatric investigation which ideally should be carried out as an in-patient in a suitable unit. In proffering his opinion as to the prognosis of your condition he said:-
"His attitude to his crimes and his capacity for empathy and remorse are quite unlikely to be altered to any extent but his ability to control his thoughts and ultimately his conduct might be improved. However, a meaningful assessment of any improvement will be difficult in a custodial setting."
Dr Lucas does not entirely rule out the possibility that you may be schizophrenic but he does conclude his report by stating that your history and your offences make it inevitable there must be great and continuing concern about your possible conduct on release into the community.
Most recently you have been assessed by Melbourne psychiatrist, Dr Lester Walton. Dr Walton gave evidence before this Court on your plea. In essence, Dr Walton's opinion does not differ from that of Dr Lucas. However, he emphasises that your severe personality disorder can realistically be described as a disability. Your counsel forcefully submitted that such a conclusion by Dr Walton meant that the sentencing principle of general deterrence would have little role to play in the calculation of a sentence in your case. There is much in this submission, if not for the reasons advanced by Dr Walton and your counsel, then as much because the conduct in which you engaged does not appear, itself, to be such as could be generally deterred by the imposition of condign punishment. Fortunately, a tendency to evil as gross as yours is extremely rare in a civilised society.
In the course of his evidence Dr Walton pointed out that prisons are populated by young, violent offenders. There are very few older, violent offenders so that, regardless of the aetiology of your condition, experience would tend to suggest that any residual inclination towards violence will dissipate with increasing age. He regards your prognosis as guarded at best and notes that prognostication in relation to the prospects of recurrent violence is a very hazardous exercise. However, the fact that you have apparently been free of violence now for many years in prison is at least a positive indicator that the worst of your violent behaviour may now be behind you. Although Dr Walton agreed with two psychiatrists of the New South Wales Corrections Health Service, (Drs Walker and Carne, who examined you in 1999) that the ideal environment for you would be a closed therapeutic community within a custodial setting with the aim of long term psychotherapeutic treatment, he acknowledged, as those Sydney doctors did, that no such environment exists in the corrections system of this State or that of New South Wales.
If psychiatry offers little satisfactory explanation for your behaviour then a review of your personal history reveals very little more.
You were born on 22 May 1962 at Bournemouth in England. You had little contact with your father, who left your mother when you were some two years of age. Your mother worked for your grandfather in a hotel near Bournemouth until, when you were 11, you, your mother and your grandparents emigrated to New South Wales. You were educated in Sydney and then in Brisbane to about Year 10, at which point you left school and took up irregular, unskilled employment.
You apparently always harboured a deep desire to join the army and in 1980 made application to do so. You were rejected. Your rejection led to depression which led to drinking which, together with a morbid fascination for guns, led to your acquiring the prior convictions to which I have already referred and your first introduction to penal incarceration. Your counsel describes you as identifying, at this time, with soldiers in videos which you watched.
At the age of 21 or 22, you made a number of other attempts to join the army, all of which were unsuccessful until you were finally accepted into the Army Reserve in Brisbane. However, on your application to join the Reserve you did not disclose the criminal record which you had by then acquired. When it was discovered you were immediately discharged.
Your drinking became more regular, as did your depression fuelled by the rejection you felt at having been excluded from Army life. Your counsel described you as isolated, surviving by the consumption of alcohol and the forming of desultory friendships with those you met in the course of the work you were able to obtain.
Your sexual orientation was somewhat ambiguous although, it seems clear, that at the time of the offence with which I am concerned you had had a homosexual relationship with the young man Thompson for a year or so. The psychiatric reports which I have read which mention this aspect of your personality do so only in passing and apparently do not regard it as of any major significance in the overall picture you now present. During the course of your criminal escapade it appears that you exhibited some degree of protectiveness towards Mr Thompson although, as I have already noted, you were quite prepared to blame him for the initial assault on the man you murdered in Victoria when questioned a second time about it by detectives.
Your personal circumstances, which I have only briefly touched upon here, do not, in my opinion, either of their own accord or in combination with the psychiatric opinions to which I have referred, adequately explain the criminality in which you engaged. Perhaps it must remain unexplained.
The fact that I am unable to I understand the reasons for your behaviour to anything other than a minor degree does not excuse me from having to pass sentence upon you according to law. I do so against the background of facts and medical opinions to which I have referred.
The criminal escapade which you engaged in at the beginning of March 1986 involved offences in two states. You have been long since dealt with for the New South Wales offences and it is now my function to deal with you for the one offence in Victoria with which you were charged. In doing so, the law requires me to notionally determine the appropriate sentence in respect of the whole of your criminal escapade had all of it occurred in one jurisdiction, and then impose a sentence having regard to sentences already imposed and partly served in the jurisdiction in which you were first sentenced. Thus the sentencing principle of totality can be applied, notwithstanding that a diversity of jurisdictions might be involved. The antiquity of the offence with which I am concerned also requires me to have regard to your history within the New South Wales prison system with respect to the question of your chance of ultimate rehabilitation.
The community is rightly horrified by the sort of conduct in which you engaged. Even if it cannot understand why you engaged in such conduct it accepts that, notwithstanding the disability from which you may suffer as described by Dr Walton, you must be punished for what were, after all, voluntary acts of wanton violence. The community also expects that conduct of the type engaged in by you be denounced and that, so far as possible, you be deterred from committing offences of the same or of similar character in future. It also seeks to deter others but, as I have already noted, there are limitations on the principle of general deterrence when one is dealing with behaviour as aberrant as that which you have displayed.
Finally, the community must be protected from the possibility of your re-offending and you must be given, so far as possible, the best possible chance to be rehabilitated to a situation where you might, at some time in the distant future, be able to be safely released into the community.
You have never denied your guilt of the charge to which you have now pleaded guilty and must be given such credit as is appropriate for that plea and the fact that it was made at the earliest possible date. In this case I have taken that fact into account in fixing the minimum term which I am about to impose, even though it appears that you feel no remorse as that term is generally understood.
At the moment you are undergoing a life sentence imposed by the New South Wales Supreme Court. That sentence will continue for the rest of your natural life unless and until a minimum term is fixed by that Court. It may or may not fix a minimum term. Thus the sentence I am about to impose will be of no practical effect unless and until such determination is made. I bear that fact in mind in reaching the conclusion that I, too, must sentence you to life imprisonment.
Your counsel has urged that if I were to impose a life sentence I should nevertheless fix a minimum term after which you would be eligible for parole. The Crown prosecutor stated that no person in this State who has pleaded guilty to murder has been sentenced to life imprisonment without a minimum term being fixed. Whilst that may be so, that fact alone is of little assistance in determining the correct disposition in this case. Of greater importance, in my opinion, is the ray of hope held out by Dr Walton to the effect that as you mature the violent fires within you will, of their own accord, perhaps begin to dissipate so that it might be appropriate at some time in the future for you to be released on parole. That factor, together with your plea of guilty, leads me to the conclusion that I should fix a minimum term, the length of which I fix having regard to the 15 years you have already served since your arrest in 1986.
In conclusion I wish to emphasise that the question of your ultimate release, assuming the New South Wales Supreme Court eventually fixes a term in respect of your life sentence imposed by it, and assuming that that term will expire before the expiration of the minimum term I am about to fix, will depend upon the decision of the Parole Board. That decision will be informed by expert opinion then to be obtained by it as to your disposition, your mental state and the risk to the community of your re-offending should you be released. The expiration of the minimum term I am about to fix will by no means result in your automatic release into the community.
The sentence of the Court is that you be imprisoned for the term of your natural life. It is further ordered that you serve a minimum of 14 years and 6 months before being eligible for parole.
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