R v Richard James Walsh
[2012] NSWSC 1399
•22 November 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Richard James Walsh [2012] NSWSC 1399 Hearing dates: 30 - 31 July 2012; 1 - 2 August 2012; 6 - 8 August 2012; 14 - 17 August 2012; 2 November 2012; 22 November 2012 Decision date: 22 November 2012 Before: Bellew J Decision: 1. In respect of the offence of specially aggravated kidnapping of Matthew Digby, the offender is sentenced to a fixed term of 8 years imprisonment, commencing on 23 February 2010 and ending on 22 February 2018.
2. In respect of the offence of the murder of Matthew Digby the offender is sentenced to a non-parole period of 21 years imprisonment commencing on 23 February 2010 and ending on 22 February 2031, with an additional term of 7 years imprisonment commencing on 23 February 2031 and ending on 22 February 2038, that is a total term of 28 years imprisonment.
3. The offender will be eligible for release on parole on 23 February 2031 and his sentence will end on 22 February 2038.
Catchwords: CRIMINAL LAW - Murder - Constructive murder - Foundational offence of specially aggravated kidnapping - Where Crown case put on the basis of an intentional killing and alternatively constructive murder - Factual findings to be made consistent with the jury's verdict Legislation Cited: Crimes Act 1900
Crimes (Sentencing and Procedure) Act 1999
Evidence Act 1995Cases Cited: Knight v R [2006] NSWCCA 292
Markarian v R (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120
Pearce v R (1998) 194 CLR 610
R v Batcheldor [2012] NSWSC 1398
R v Isaacs (1997) 41 NSWLR 374
R v Jacobs [2004] NSWCCA 462; (2001) 151 A Crim R 452
R v Mills (CCA (NSW) 5 April 1995 unreported
R v Newell [2004] NSWCCA 184
R v Previtera (1997) 94 A Crim R 76
R v Yeo [2003] NSWSC 15Category: Principal judgment Parties: Regina
Richard Walsh - OffenderRepresentation: M Grogan - Crown
C Davenport SC - Offender
Graeme Morrison Law - Offender
Director of Public Prosecutions (NSW) - Crown
File Number(s): 2010/47749 Publication restriction: Nil
Judgment
On 30 July 2010, Richard James Walsh ("the offender") was jointly indicted with the co-offender Lauren Mae Batcheldor in the following terms:
(i)that they, between 22 January 2010 and 25 January 2010, whilst in the company of each other, detained Matthew Digby without his consent, and with intent to obtain an advantage, namely to obtain information about property previously stolen, and that at the time of the detaining, actual bodily harm was occasioned to Matthew Digby.
(ii)that they between 22 January 2010 and 25 January 2010 at Dapto in the State of New South Wales did murder Matthew Digby.
The offender pleaded not guilty to both counts in the indictment. In respect of the second count he entered a plea of guilty to the manslaughter of Matthew Digby ("the deceased"). That plea was not accepted by the Crown.
On 17 August 2012 the offender was found guilty by a jury of both counts in the indictment.
The matter came before me on 2 November 2012 at which time I heard submissions from both the Crown and senior counsel for the offender.
The first count in the indictment of specially aggravated kidnapping is an offence against s 86(3) of the Crimes Act 1900, and carries a maximum penalty of 25 years imprisonment. No standard non-parole period is prescribed.
The second count in the indictment, namely the count of murder, carries a maximum penalty of life imprisonment (see Crimes Act 1900 s19A). Pursuant to s54A of the Crimes (Sentencing and Procedure) Act 1999 ("the Sentencing Act"), a standard non-parole period of 20 years imprisonment is prescribed for that offence.
Section 61(1) of the Sentencing Act mandates the imposition of a life sentence for an offence of murder if I am satisfied that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown, in its written submissions, drew my attention to that provision but did not argue that the offence of murder against the offender fell into the category contemplated by s 61(1). I am satisfied that it does not and accordingly, a life sentence is not warranted.
SENTENCING PRINCIPLES
In sentencing the offender, and bearing in mind that one of the offences of which he was convicted carries a standard non-parole period, I must adopt an approach to sentencing in which all of the relevant factors are identified and a judgment reached as to the appropriate sentence having regard to such factors. Such an approach is mandated by the relevant statutory provisions generally, and by the provisions of s55B(2), s54B(3) and s21A of the Sentencing Act in particular (see Muldrock v R (2011) 244 CLR 120 at [26] citing Markarian v R (2005) 228 CLR 357 at [51]).
Further, the standard non-parole period for the offence of murder requires that content be given to its specification as the "non-parole period for an offence in the middle of the range of objective seriousness". It therefore represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness, without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case (see Muldrock at [27]; [31]).
For the purposes of determining an appropriate sentence, I am required to make findings of fact in relation to the offending. In the circumstances of the present case, which are more fully set out below, I am required to make particular findings of fact in relation to the offender's commission of the murder of the deceased. Any factual finding I make in relation to any matter must be consistent with the jury's verdicts. In particular, I must accept such facts as are established by those verdicts and I must not determine any factual issue in a way which is inconsistent with those verdicts: R v Isaacs (1997) 41 NSWLR 374. The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation, on the balance of probabilities.
In circumstances where the offender has been convicted of two offences I must have regard to the principles of totality (see Pearce v R (1998) 194 CLR 610).
THE VICTIM IMPACT STATEMENTS
The court received victim impact statements from John Digby, the deceased's father (which was read to the court by Mr Digby on behalf of both himself and the deceased's mother Dianne Digby), and Marcus Digby, the deceased's brother. Mrs Digby also read to the court a victim impact statement on behalf of her son, Leighton.
Those statements set out, in some detail, the effect of the deceased's death upon the members of his family. Unsurprisingly, the deceased's parents, and his brothers, continue to suffer considerable grief following the loss of their son and sibling. Their grief stems not only from the fact of the deceased's death, but also from the circumstances in which that death occurred, and also what occurred in its aftermath.
As I did when sentencing the co-offender Batcheldor earlier today, I again express my condolences to each of the members of the deceased's family upon their loss. It is to be hoped that the opportunity that they were given to provide their statements to the court will go some way to assisting them in their grieving process.
I have dealt with an issue raised by the Crown concerning the victim impact statements in my judgment in the case of the co-offender (see R v Batcheldor [2012] NSWSC 1398 at [14] - [23]). I do not propose to repeat those matters. I simply note that for the reasons expressed in that judgment, I take the view that the statement of principle in R v Previtera (1999) 94 A Crim R 76, concerning the use of victim impact statements provided by the members of the family of a deceased person, remains applicable.
THE CIRCUMSTANCES OF THE OFFENDING
It is evident from the jury's verdict of guilty on the first count in the indictment that the Crown established beyond reasonable doubt that:
(1) the offender detained the deceased;
(2) he did so knowing that he was not consenting;
(3) he did so with the intention of obtaining information from him;
(4) he was acting in the company of Batcheldor; and
(5) actual bodily harm was inflicted upon the deceased whilst he was detained.
However in relation to the second count, namely that of the murder of the deceased, the Crown put its case on alternative bases, namely:
(i)that the offender was guilty of strangling the deceased, with the intention of killing him;
(ii)that the offender was engaged, with the co-offender Batcheldor, in the detaining of the deceased and that in the course of that detaining, the deceased was killed by a deliberate act of the offender.
The verdict of the jury does not, of course, disclose which of these alternatives was accepted. I am therefore required to make factual findings, consistent with the jury's verdict, regarding the circumstances in which the deceased was killed.
The burglary at the co-offender's home
Between about 14 and 15 January 2010 the home of the co-offender Batcheldor was broken into, and various items of property were stolen. Amongst those items, and of particular significance in the present case, was a gold necklace. A coin collection belonging to the offender, who was a long standing acquaintance of Batcheldor, was also stolen.
On or about 18 January 2010 the gold necklace was sold by the deceased to a second hand dealer in Wollongong for a sum of $250.00. How that item came to be in the possession of the deceased is not entirely clear. There was some evidence given in the trial that the deceased had told others that he had been given the necklace by a prostitute. In any event, it is not necessary, for present purposes, to reach an affirmative conclusion in relation to that issue.
Evidence was given at the trial, which was not disputed, that on the afternoon of 18 January 2010 the co-offender Batcheldor attended the second hand dealer in the company of a friend, and identified the necklace as that which had been stolen from her home. In doing so, she also managed to identify the deceased as being the person who sold it to the second hand dealer earlier that day.
On the evening of 18 January 2010 Batcheldor, the offender and Cihan Karaoglu ("Karaoglu") all attended the deceased's premises. They were accompanied by another person, to whom I will refer as "A", and in respect of whom various orders are in place preventing the publication of any material which might reveal the identity of A. A was originally charged with the murder of the deceased. However, that charge was subsequently withdrawn and the witness was granted an indemnity by the Attorney-General in respect of evidence given at the trial. I will refer in more detail to some aspects of the evidence of A later in this judgment.
At the time of the arrival of the offender and others at the deceased's premises, the only person in attendance was Michael Small, an acquaintance of the deceased. Mr Small gave evidence for the Crown at the trial. I am satisfied that upon arrival at the premises, it was the co-offender Batcheldor who asked for the deceased and who, having determined that he was not there, asked Mr Small to telephone him. I am also satisfied that Mr Small did so, following which Batcheldor spoke with the deceased.
Mr Small gave evidence, which I accept, that all of the blinds were closed, following which the offender and Karaoglu started searching the premises. In the course of doing so, one of them said words to the effect:
"We've got something to sort out with Matthew".
Ultimately, the deceased arrived at his premises when the offender and others were still present. He was driven there by Tini Eli, who gave evidence that the deceased had told him that the "big boys" wanted to speak with him. I am satisfied that in returning to the premises, the deceased was fearful for his safety, and that the presence of the offender and others at his premises would necessarily have been intimidating. Whilst the offender was present and took part in a search of the premises, I am satisfied that the visit to the premises was instigated by the co-offender Batcheldor, although the offender was clearly present and assisting.
On 20 January 2010 the necklace was redeemed by the deceased and returned to the co-offender Batcheldor. Between 20 January 2010 and 23 January 2010 the offender was in telephone contact with Batcheldor. In that same period, Batcheldor was in contact with the deceased. All of this contact culminated in Batcheldor and the offender meeting with the deceased at Beaton Park at about 12.30am on 23 January 2010. I am satisfied that in the course of that telephone contact the offender played some part in making arrangements for that meeting to take place.
The meeting at Beaton Park
There was no dispute at the trial that a meeting had taken place at Beaton Park between the offender, Batcheldor, and the deceased. There was some evidence in the trial about the presence of a fourth person, Stacey Callaghan. Ms Callaghan had provided a statement to the police in this regard and, only a matter of days later, had provided a statement to the legal representative of the offender Batcheldor, in which she contradicted what she had told the police. Although she was issued with a subpoena to give evidence at the trial, she did not respond to that subpoena. The contents of both of her statements were before the jury but because of their inconsistencies, I am not able to determine whether or not she was at the Beaton Park meeting.
Although the offender did not dispute that a meeting had taken place at Beaton Park, there was a significant issue at the trial about what had occurred at the time. The Crown case against the offender in this respect came primarily from the evidence of a witness to whom I shall refer as B, and in respect of whom orders are in place preventing the publication of any material which might reveal the identity of B.
B had shared a cell with the offender whilst on remand for an offence of armed robbery. On the basis of the evidence of B, the Crown alleged that the offender was responsible for physically detaining the deceased at Beaton Park, dragging him back into A's car, and taking him to A's premises.
The offender, on the other hand, denied this. He asserted that having met the deceased at Beaton Park, he had offered the deceased drugs in return for information about the robbery, an offer which the deceased accepted. The offender said that the deceased had voluntarily left Beaton Park with him.
It is evident from their verdicts that the jury rejected the offender's account in this regard, and accepted that the deceased had been detained by the offender at Beaton Park, in the company of the co-offender Batcheldor.
The death of the deceased
The offender did not dispute at the trial that the deceased was killed whilst he and the offender were in the garage of A's premises, following their meeting at Beaton Park. The offender also did not dispute that it was his act which caused that death. However the nature of that act, and the circumstances in which it occurred, were issues in the trial. They remain issues which I must determine, in a manner consistent with the verdicts of the jury, for the purposes of sentence.
The Crown's principal case at trial was that the offender had intentionally strangled the deceased, by placing a chain around his neck whilst in the garage of A's premises, and pulling on it from behind. The Crown case was that this act had been done by the offender with an intention to kill the deceased.
In the alternative, the Crown put its case on the basis of constructive murder, the foundational offence being the specially aggravated kidnapping. On this basis, the Crown alleged that a deliberate act of the offender, perpetrated during or immediately after the detention of the deceased, caused the deceased's death.
The offender denied that he had strangled the deceased as alleged by the Crown. He gave evidence that there was an altercation with the deceased in the garage, in the course of which he was stabbed by the deceased, and in the course of which he executed a particular physical manoeuvre on the deceased which caused his death.
Because the deceased's body was ultimately incinerated, there was no medical evidence adduced in the trial from a forensic pathologist which might have assisted in determining the cause of the deceased's death. I am therefore left to determine the factual issues surrounding the circumstances of his death by a consideration of the evidence of three principal witnesses, namely A, B and the offender.
The evidence of A
A gave evidence that the offender arrived at their home and that having parked the vehicle in the downstairs garage, he came up into the house and said that he "had (the deceased) in the car" and was going to speak with him "to find out what he knows and where the things are". A also gave evidence that the offender then went back down to the garage before returning upstairs and said (apparently in reference to the stolen property) that the deceased "had told him everything he needed to know and where everything was". The offender then asked A for a drink to take down to the deceased.
A then gave the following evidence:
Q. So after that conversation did you stay in the house or did you leave and go somewhere else, just yes or no?
A. No, I, no, I stayed in the house.
Q. Was there any further conversation about Mr Digby?
A. No, only that Richard was going to go downstairs, let him out of the car and have a drink, stretch his legs.
Q. The drinks that you poured what were they?
A. Cordial, cold, just cold cordial.
Q. With what, it wasn't just cordial?
A. No, like, yep, made up cordial, like water and yeah.
Q. What's the next thing that occurred after he's left and gone down with the drinks?
A. Richard has gone downstairs and I've locked the top internal door, like the top of the garage steps, because I was, yeah and then yeah and then there was a bit of banging down the garage and I'd banged on the, my bedroom floor which was above the garage as in, just to stay, be quiet sort of thing, you'll wake the kids and then I heard footsteps coming back up the garage steps.
Q. Where was Ms Batcheldor at this point?
A. She had left.
Q. Now at what point had she left, relative to what Richard was doing?
A. More or less when Richard was going back downstairs, it was sort of, yeah.
Q. So was that before or after you poured the drinks?
A. After.
Q. So you hear this banging sound, can you be any more precise as to what it sounded like?
A. A car door opening and shutting, more just like thudding bangs, yeah.
Q. The sound that you described as a car door opening and shutting, is that a sound you heard once or more than once?
A. No, I heard it a couple of times.
Q. So then you hear footsteps in the internal staircase?
A. Yes, footsteps coming fast, sort of like running up the steps.
Q. Did you hear any sound other than the footsteps?
A. No, not until Richard banged on the door and said, "Let me in babe."
Q. What did you do?
A. Unlocked the door and opened it.
Q. Okay, and what did you see when you opened it?
A. Richard like sort of pushed past me and said, "The prick nearly got me."
Q. What did he do?
A. Ran into the bedroom and hopped in the shower in the en suite.
Q. Did he say anything else about what--
A. He said he had blood all over him.
Q. Were you able to see any blood?
A. No.
Q. As far as him getting in the shower was concerned, what's the next thing that happened after he entered the shower? He got out I presume?
A. Yeah, he got out of the shower and got a plastic bag and put the - well his clothes that he was wearing, he only had board shorts and - and that on, and put them in a plastic bag.
I should note at this point that at the trial an issue emerged as to the precise words said by the offender upon returning upstairs for the final time. According to the offender, he had said "the prick almost got me" rather than "nearly got me". For the reasons more fully set out below, I do not regard either phrase as being consistent with the offender's assertion that he was stabbed by the deceased.
The evidence of B
B gave evidence at the trial that he had shared a cell with the offender whilst each of them were in custody, the offender being on remand for the present offences, and B being on remand for an offence of armed robbery. B gave evidence of a conversation with the offender, whilst they were both in custody. That evidence included the following:
"He told me he'd gone upstairs, he got himself a drink and he came back down. Mr Digby was still chained up in the back of the car. Richard then told me he'd slapped him around a little bit to wake him up and asked him a few questions in regard to money that was taken. Richard told me Mr Digby had told him to "fuck off" and wasn't going to tell him anything. At that point Richard had, he'd told me, he'd done a few things to try and get Mr Digby to talk. He wasn't saying anything and he said that he was, Mr Digby said, "if you don't let me go, I'm going to come back and kill your Mrs and kids". And he said "While now you've said that, I can't let you go". Mr Walsh had then asked Mr Digby what he wanted for his last drink. Mr Digby was, Mr Walsh told me Mr Digby at this time was very upset, he said, "don't do this". He said he wanted a water. Mr Walsh walked upstairs to get him a glass of water.
He come back downstairs and seen Mr Digby had one hand free. By this time Richard was getting a little angry, agitated, he was, he said he ran over the to car and put one hand on the side door, one hand on the roof and was just kicking him in the face and "How fucking dare you try and get away". He'd knocked him out then, Richard knocked out Mr Digby, he climbed in the back of the station wagon ... got the dog chain, put it around Mr Digby's neck and by this, he's emphasised he's put his feet on the back seat of the back seat of the car and he's pulled back. He said he held the chain around his neck for about four minutes until he stopped moving. He said he heard cracks in Mr Digby's neck and he held it there until he stopped moving" (emphasis added).
The evidence of the offender
The offender's account was that he had gone into A's house, asked A to pour two drinks, and obtained two syringes before going back down into the garage. He said that when he arrived in the garage the deceased was "crouching down". He then gave the following evidence:
Q. And could you see what he was doing?
A. Like, as I say, the look on his face - immediately I put the drinks down, like as you come through the door there's a, it's like a set of shelves that run right up to the door that I come through so I just put the drinks straight down and said "Fuck, what are you doing man" you know like and as I walked over to the car that's when he stood up with a screwdriver. The glove box was open, which I know I locked before he hopped in the car and that's how it all started.
Q. Did he say anything to you when you said "What are you doing man"?
A. Like because he'd been caught he had no other option. He said fucking something about drugs and "Fucking give it to me" and stuff like that you know.
Q. Now the screwdriver that you say he had in his hand, was that your screwdriver or (A's) screwdriver?
A. Yeah I'd say so but I could be wrong and he could've had it in his pocket the whole time we were in the car.
...
Q. At that stage could you see what sort of screwdriver it was?
A. No, not really.
Q. Where did you go. You said you put the drinks down. Where did you go, physically?
A. Straight over to the car.
Q. Where was he?
A. By that time he sort of stood up and like I said I could see the glove box and he sort of stepped back to the back passenger door, like the back part of the car and I kicked the door shut and that's when he was saying what he was saying and I was saying "Fucking" you know "What are you f'ing doing" and this and that and we just went at each other.
Q. Well what happened?
A. He sort of lunged at me. Like I say we both just came together like neither of us was backing down. I mean he was caught red handed breaking into the car--
...
A. Yeah he had the screwdriver.
Q. And what happened, if anything, to the screwdriver?
A. He stabbed me with it.
Q. And whereabouts did he stab you?
A. On the left hand side just about like where your waist, or the belt goes.
...
A. After we started wrestling around I managed to like get him in, it's called a guillotine, it's like a sort of a headlock, where like your arm goes through there and I've got him in the neck and I pull up like that and take him down to the ground and wrap my legs around the back of his back and pulled like that and just yeah, just.
HIS HONOUR: The witness indicates a movement where he goes, as it were, back first towards the ground.
...
A. When I was growing up I had a little cousin that used to do kick boxing and I lived with him in Newcastle for a while and he was actually a bit of a champion in his leg and yeah. We used to train and spar and fight all the time.
Q. Had you ever used that hold on anyone before?
A. Not that exact hold. I mean I'm no angel. I've had fights at pubs and everything else and yeah but I don't think I've ever--
...
Q. When you released him was he still moving?
A. No he wasn't.
Q. When you released him what did you think had happened to him?
A. Because I seen he wasn't moving at first I just thought like he was asleep.
Q. When you say asleep do you mean unconscious?
A. Yes.
Q. Did you do anything to check whether he was alive or dead?
A. I just grabbed him by the shirt and yeah just, but he wasn't waking up.
Q. Did you do anything else to check whether he was alive or dead?
A. After that I panicked a bit and like I don't really know how to check for pulses but I could not find a pulse."
In addition to this evidence, the offender also gave an account of the circumstances in which the chains which were found on the charred remains of the deceased had been placed on his body. The offender said that the chains were attached to the body of the deceased whilst he was on the way to Mount Murray to set fire to the vehicle. He explained that because of the speed at which he was travelling, and because the deceased's body was not secure, it was "leaning over" onto the offender's side of the car. In particular, he said:
"I hopped out and looked around for the dog chains and I couldn't find them and I was taking stuff out of the back of the car and putting into the back seat of the car, like looking. Then I found the chains and I think that's when I put the seat down or I don't know if it fell down while I was tying him up, I can't remember.
When asked by the Crown where the chains had come from, the offender initially said they were "probably" in the vehicle. He could give no reason for material of that nature being present in the car, other than saying that it was "one of them cars that there were lots of things in, you couldn't explain it".
The offender also confirmed that there was a seat belt on the passenger's side of the vehicle. When asked whether he had used the seat belt, the offender said:
"I don't know, I can't answer that".
The submissions of the parties
The Crown submitted, correctly in my view, that the verdict of the jury in respect of the second count of murder necessarily meant that they rejected at least that part of the evidence of the offender which, had it been accepted, would have supported a guilty verdict of manslaughter.
The Crown urged that I would be satisfied beyond reasonable doubt that the deceased was intentionally strangled by the offender in the manner which B had described in his evidence. The Crown submitted that the evidence of B in this regard was consistent with the fact that chains were found on the body of the deceased. In this particular respect, the Crown submitted that the offender's explanation for the circumstances in which the chains were applied to the deceased's body was implausible.
Senior counsel for the offender submitted that B's evidence ought not be accepted, and further submitted that in considering his evidence, I should have regard to the circumstances surrounding B himself, including the fact that he had pleaded guilty to an offence of armed robbery, and that a discount was applied to that sentence on account of his agreement to give evidence against the offender.
Senior counsel also pointed to inconsistencies between the evidence of B and other evidence. She cited, by way of example, evidence given by B that he had been told by the offender that he had applied an angle grinder to the deceased. She pointed out that not only did A specifically state that she did not hear an angle grinder being used at any time, but also that forensic examination of an angle grinder found in the garage did not reveal the presence of any human tissue, nor did it exhibit any sign of having recently been cleaned.
In addition, Senior counsel also relied on the fact that B had given evidence of the offender having said that he cleaned the garage floor with bleach. She pointed out that evidence called by the Crown of the results of an examination of the floor of the garage revealed no evidence at all of the use of bleach.
However, perhaps most importantly, Senior counsel relied upon the evidence given by A that the offender had told her that the deceased had informed him, whilst in the garage, about the whereabouts of the property. This, she submitted, was diametrically opposed to the evidence of B, who had said that the offender disclosed that the deceased had refused to give him any such information.
Senior counsel submitted that in the light of such a glaring inconsistency, I could not be satisfied beyond reasonable doubt that the offender had strangled the deceased, intending to kill him. Whilst Senior counsel accepted that the jury must have been satisfied beyond reasonable doubt that any act of the offender causing the death of the deceased was not done in self defence, she submitted that this did not necessarily lead to the conclusion that the jury must have found that the offender strangled the deceased intending to kill him.
Senior counsel further submitted that the evidence of A, and in particular the reference to the offender intending to allow the deceased out of the car "to stretch his legs", was consistent with the jury obviously having determined that the deceased had been detained up to that point. She submitted that the evidence pointed to the deceased having been killed in an altercation which followed in the garage, and that the jury's verdict did not exclude a finding that the deceased had displayed some aggression towards the offender.
Consideration
The evidence of each of A and B was the subject of a direction to the jury in accordance with s165 of the Evidence Act. In the case of A, that direction stemmed from the fact that the witness had originally been charged with the deceased's murder, but was later given the benefit of an indemnity, and the charge withdrawn. In the case of B, the direction stemmed firstly from the circumstances in which the conversation with the offender was said to have occurred, namely where B was on remand for a serious charge of armed robbery, and secondly from the fact that a significant discount was applied to the sentence imposed in respect of that offence, on account of B's undertaking to give evidence against the offender.
Senior counsel for the offender submitted that I should necessarily have regard to these matters in making any factual determination and that I should, in effect, apply the same direction to my own deliberations as was given to the jury. I accept that this is the correct approach, although having observed A and B give evidence, I formed the view that each of them was, generally speaking, doing the best that each of them could to give truthful evidence. That said, and like all other witnesses, it is open to me to accept part of the evidence of each of them, and reject part.
There is some force in the Crown's submission concerning the implausibility of the offender's account of how the chains came to be around the deceased's body. The proposition that the offender stopped by the side of the road, obtained the chains, and then wrapped them around the body of the deceased is, in my view, a most unlikely one.
Further, and leaving aside what I regard to be a largely unsatisfactory explanation of how the chains came to be in A's vehicle in the first place, the offender admitted in evidence that there was a seat belt fitted to the front passenger seat of the vehicle. If it were the case that he merely wanted to secure the deceased's body to stop it moving, the use of the seatbelt would not only have been a far simpler way of going about things, it would have been one which would have been likely to attract far less attention. Having regard to the offender's evidence that he was in a hurry to get to Mount Murray, the utilisation of the seat belt would also have taken a fraction of the time.
The offender's assertion that he was stabbed by the deceased is also difficult to accept. According to A, at the time that he returned upstairs on the final occasion he said that the deceased had "nearly got (him)". The offender gave evidence that he had in fact said that the deceased had "almost" done so. As I have said, in my view neither expression is consistent with having been stabbed. It is also significant that despite the offender's evidence that he was injured as a result of the stabbing, A did not observe any injury consistent with the offender having been stabbed in the period leading up to the offender's arrest.
Conclusion as to the circumstances of the deceased's death
As Senior counsel for the offender submitted, there is a material inconsistency between the evidence of A and B. According to A, the offender told A that the deceased had provided the information to him regarding the stolen property. That, to say the least, does not sit comfortably with the evidence of B, who said that the deceased had refused, seemingly more than once, to provide that information. The provision of that information was a material factor in this case. Indeed it was, on the Crown case, the reason for the deceased's detention.
I am also mindful of the fact that there were things which B said were disclosed by the offender which were not consistent with other evidence given at the trial. They included what was said to have been the offender's account about the application of an angle grinder to the deceased whilst he was detained. I am satisfied, having regard to the evidence of A, as well as the scientific evidence called by the Crown, that no angle grinder was used by the offender upon the deceased.
I accept that the offender informed A that the deceased provided the information the offender wanted in relation to the burglary. I also accept the evidence of A that the offender had said at that point that he was proposing to allow the deceased to "stretch his legs". I am satisfied on the basis of this evidence that at the point at which this conversation took place, the deceased remained under restraint. Accepting part of the evidence of B, I find that such restraint was by the application of the chains. His evidence in that regard is independently supported by the fact that there were chains found on the remains of the deceased's body. In making such findings, I obviously reject the account of the offender as to how the chains came to be applied.
However, whilst there is independent support for the evidence of B concerning the deceased's restraint, there is no independent evidence which supports a conclusion that the deceased was strangled. Moreover, as I have pointed out, there are some significant inconsistencies in at least part of the evidence given by B. In these circumstances, and particularly in the absence of any medical evidence which might establish the cause of death, I am not satisfied beyond reasonable doubt that the deceased was strangled by the offender as was alleged by the Crown.
I am satisfied that when the offender returned downstairs to the garage after A had prepared the two drinks, there was an altercation between he and the deceased. In this regard, and apart from the evidence of the offender, A gave evidence of having heard noises generally consistent with some altercation having occurred.
I am satisfied that in the course of that altercation, the deceased died as a result of a deliberate act of the offender, and that this act was not done in self defence. The evidence does not enable me to reach any conclusion as to the precise nature of that act. However, I am not satisfied that the deceased was in possession of a screwdriver, nor am I satisfied that the offender was stabbed.
These findings are consistent with the alternative basis upon which the Crown advanced its case on the second count to the jury, nameIy that of constructive murder. It should be noted however, that in R v Mills (NSWCCA 5 April 1995 unreported) Gleeson CJ expressly rejected the proposition that cases of constructive murder involve a lower level of culpability, such that they should attract a lower sentence than would apply to a case of an intentional killing. That principle has been confirmed in a number of cases since. For example in R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452 Wood CJ at CL said (at [332]):
"Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to the death: R v JB [1999] NSWCCA 93.
Events following the deceased's death
The offender admitted in evidence that he asked A to move the deceased's vehicle from Beaton Park. He also admitted that he had told A to adopt a disguise for the purpose of doing so.
Having regard to the evidence of both A and B, I am satisfied beyond reasonable doubt that the offender did request A to obtain a mask or masks, and that he did so on account of the fact that the deceased's body was starting to decompose. In this respect, and although there was no evidence that A and B knew one another, each independently gave evidence in relation to this issue which supported the Crown's position.
The offender also agreed in his evidence at the trial that on 24 January, which was the day following the deceased's death, he formulated a plan to dispose of the deceased's body, in order to "destroy everything". That plan ultimately involved obtaining tins of paint from his garage to use as an accelerant, driving to Mount Murray, and setting A's car alight with the deceased's body still within it. It also involved sending A to the Wollongong Hospital in an attempt to provide some alibi for her movements at the time that her vehicle was set alight.
I am satisfied that at about 7am on 25 January 2010 the body of the deceased was found in A's burnt out vehicle in bushland at Mount Murray. Chains were around the deceased's body when it was discovered. On that morning, as A was leaving the premises to drive to the home of the co-offender Batcheldor, the offender placed a bag in the boot of Batcheldor's car (which was being driven by A at the time), which he said he wanted burned. That bag contained the clothes he was wearing at the time of setting A's vehicle alight at Mount Murray.
CONCLUSIONS AS TO OBJECTIVE SERIOUSNESS
The offender's involvement in the specially aggravated kidnapping was significant. I am satisfied that he had been in contact with Batcheldor in the days leading up to the meeting at Beaton Park, and that he played some part in arranging it. It was the Crown case that he had been largely responsible for the physical detaining of the deceased following the meeting a Beaton Park in the manner described by B in evidence.
The advantage which was sought to be obtained from the deceased was information relating to the burglary at Batcheldor's home. However, in determining the seriousness of an offence of specially aggravated kidnapping, the nature of the advantage which is sought to be obtained is not conclusive. There are a number of factors relevant to that determination, including the circumstances of the detention, its period and its purpose. The presence or absence of a ransom is not a decisive consideration (see R v Newell [2004] NSWCCA 184 at [32].
I have already made reference to the circumstances of the detention, and its purpose. Although it is difficult to determine the period of the detention, I am satisfied that it extended over some hours. All of these matters point to an offence of considerable seriousness. One can only imagine the fear by which the deceased would have been beset in the final hours of his life.
To the extent that a coin collection belonging to the offender had been stolen in a burglary, the offender did have a legitimate interest in obtaining information in relation to the burglary, just as he had a legitimate interest in having any item of which he was the owner returned to him. However, his chosen method of protecting that interest, namely detaining the deceased for the purpose of extracting information from him, was both violent and unlawful.
The investigation of criminal activity such as burglary is the responsibility of the police. It is not the responsibility of the individual, even where that individual's rights may have been infringed. Taking the law into one's own hands in the manner in which the offender did cannot, under any circumstances, be justified. The present case demonstrates the tragic consequences which such a course of action can bring about.
Any comment about the seriousness of an offence of murder would be superfluous. I am not satisfied beyond reasonable doubt, for the reasons I have previously expressed, that the offender strangled the deceased to death intending to kill him. However, I am satisfied, consistent with the alternative case of constructive murder advanced by the Crown, that the deceased died in the course of being detained, and that it was the offender's deliberate act which caused his death.
The offender's conduct giving rise to his liability for the death of the deceased was subsequently aggravated in the manner in which I have previously described. In particular, the offender chose to dispose of the deceased's body by setting fire to a car in which that body was contained. On the offender's own evidence before the jury, that act in itself was the subject of some planning, and was motivated by a desire to ensure that evidence was destroyed. It resulted in the deceased's body being reduced to nothing more than charred remains. It is well established that an offender's treatment of a deceased's body can amount to an aggravating factor: see for example Knight v R [2006] NSWCCA 292; R v Yeo [2003] NSWSC 315.
Having regard to all of these matters, the offending, both in terms of the offence of specially aggravated kidnapping and the offence of murder, falls above the mid range of seriousness.
THE OFFENDER'S SUBJECTIVE CASE
The offender is currently 34 years of age. He did not give evidence before me on sentence and there is no evidence of any expression of remorse on his part. The matters of background which are set out below are taken from the material tendered before me on sentence.
The material included a report of Dr Olav Nielssen, Psychiatrist. The report is dated 16 May 2012 and it therefore predates the offender's trial. It is evident from the final paragraph of that report that part of the purpose of the examination by Dr Nielssen was to determine whether the offender was mentally ill at the time of the alleged offending. It was Dr Nielssen's opinion that this was not the case. Notwithstanding the fact that the report was prepared for a specific purpose prior to the trial, it nevertheless contains information concerning the offender's background which is relevant to my determination of the appropriate sentence.
The offender has a long history of substance abuse. He began drinking alcohol around the age of 12 or 13 and by the time of his arrest for these offences, he had reached the point which he would consume alcohol every day.
The offender also began using cannabis at around the age of 12 or 13. By the time he reached adulthood, he used cannabis daily.
At about the age of 16, the offender began using amphetamines and such use increased steadily in the ensuing years. According to the report of Dr Nielssen, the offender's use of amphetamines in the months leading up to his arrest had reached the point of being continuous, and was accompanied by long periods without sleep. Unsurprisingly, given the history which was provided to him, Dr Nielssen diagnosed the offender as suffering from substance dependence and abuse disorder which, he concluded, was based largely upon the history of a pattern of daily use of hazardous quantities of alcohol, cannabis and amphetamines.
The report of Dr Nielssen paints a picture of the offender having consistently abused alcohol and prohibited drugs for a period of more than 20 years. Overcoming these addictions will require a concerted effort on the part of the offender. I have no evidence before me of any support which might be available to the offender, from his family or otherwise, which might assist him in this regard.
In these circumstances, and particularly where the offender's history of alcohol and substance abuse is so long standing, I am not able to make any determination about his prospects of rehabilitation.
The offender has a criminal history dating back to 1996. It contains entries in respect of a number of matters, including for offences of common assault, stalking and intimidating, and contravening a prohibition or restriction in a domestic violence order. Indeed, there are repeated entries for such matters. There is, however, nothing on the scale of the present matter. His record does not assist him, but I do not regard it as an aggravating factor.
CONCLUSION
The offender was arrested on 23 February 2010 and has remained in custody since that time. It is therefore appropriate that the sentences be back dated to commence on that date.
As was the case with the co-offender Batcheldor, the circumstances in which the offence of specially aggravated kidnapping were committed necessarily provide the context in which the offence of murder was committed. I have therefore determined, having regard to principles of totality, that the sentences to be imposed upon the offender should be served wholly concurrently.
I have not set a non-parole period in respect of the sentence for the first count, having regard to the sentence for the second count.
The offender is sentenced as follows:
(i) in respect of the offence of the specially aggravated kidnapping of Matthew Digby, the offender is sentenced to a fixed term of 8 years imprisonment commencing on 23 February 2010 and ending on 22 February 2018;
(ii)in respect of the offence of murder of Matthew Digby, the offender is sentenced to a non parole period of 21 years imprisonment commencing on 23 February 2010 and ending on 22 February 2031, with an additional term of 7 years imprisonment commencing on 23 February 2031 and ending on 22 February 2038, that is a total term of 28 years imprisonment;
(iii)the offender will be eligible for release on parole on 23 February 2031 and his sentence will end on 22 February 2038.
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Decision last updated: 06 February 2013
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