R v Riley
[2008] NSWSC 1477
•2 May 2008
| Common Law Division Supreme Court New South Wales |
| Case Name: | R v Riley |
| Medium Neutral Citation: | [2008] NSWSC 1477 |
| Hearing Date(s): | 7 April 2008-10 April 2008, 2 May 2008 |
| Date of Decision: | 2 May 2008 |
| Jurisdiction: | Common Law – Criminal |
| Before: | Mathews AJ |
| Decision: | A non parole period of 2 years imprisonment commencing 10 April 2008 and expiring 9 April 2010, with a balance of term of 3 years commencing 10 April 2010 and expiring 10 April 2013 |
| Catchwords: | Criminal Law - manslaughter – substantial impairment |
| Legislation Cited: | Crimes Act 1900 |
| Cases Cited: | Veen v R (No.2) 164 CLR 465 |
| Category: | Sentence |
| Parties: | Regina (Crown) |
| Representation: | Counsel: Solicitors: |
| File Number(s): | 2007/3759 |
REASONS FOR SENTENCE
On 7 April 2008 Tony James .Riley was indicted before a jury on the charge of murdering David Glen Nichols on the 14 February 2007. He pleaded not guilty of murder but guilty of manslaughter. The only issue raised at the trial was one of substantial impairment under s 23A of the Crimes Act 1900. The jury found this matter in favour of the accused. On the 10 April 2008 they acquitted him of murder and convicted him of manslaughter.
The background of the matter is as follows. Mr Riley was a real estate agent who lived in Gulgong west of Sydney. In 1984 he married Kathryn (Riley). They had two sons born in 1990 and 1992. Mrs Riley was also a real estate agent. She became the licensee of the Gulgong Office of 21 Century Realty, and her husband, the offender, was the licensee of the Mudgee office.
The deceased, who was generally known by his second name Glen, had been known to the Riley family for about 20 years. He had four children from a previous relationship. At the time of the killing he lived by himself in Gulgong.
Kathryn Riley and the deceased developed a friendship through their sons being involved in the same sporting activities. In about 2002 this friendship became a sexual relationship which grew in intensity over the years. In the meantime the relationship between Mr and Mrs Riley was not faring well. Mr Riley learnt of his wife's relationship with the deceased and was, not surprisingly, unhappy about it. Eventually, in early January 2007, Mrs Riley moved out of the family home into a home unit in Gulgong. Mr Riley remained in the home with their two sons. He was upset about this and wanted to effect a reconciliation with his wife. It is clear in retrospect that he was intending to use Valentines Day, 14 February, for this purpose. He had arranged for numerous red roses to be delivered to his wife and had inserted an advertisement in the Daily Telegraph. The evening before, on the 13 February, he had a conversation with his wife about their relationship in which he became very upset. It was arranged that she would come and have breakfast with him the following morning.
Early on the morning of 14 February 2007 Mrs Riley received text messages from her husband inviting her to go swimming and later asking for her to go for a walk with him. She declined both invitations. A little later she went by foot to the deceased's home. Shortly afterwards they heard the offender's 4WD vehicle pull up outside. The deceased went outside and the two men talked. The deceased returned and told Mrs Riley that he had asked her husband to leave. Mrs Riley decided that she should leave herself, as the confrontation had been very unnerving to both of them. As she walked towards the front door she saw her husband outside the door with a shotgun. Mrs Riley ran into the lounge room and shortly afterwards heard a loud bang. This, as the ballistics evidence later showed, occurred when Mr Riley fired his shotgun down the hallway of the deceased's home.
At about that time the deceased went outside. Shortly afterwards Mrs Riley heard two further bangs. She ran outside and saw her husband holding a shotgun which was pointed towards the ground. She called out to him "don't do it" to which he replied "its too late". He then returned to his vehicle which was parked nearby, put the gun in the rear and drove away. Mrs Riley then saw the deceased lying on the ground. He was clearly dead. She telephoned 000 and in due course both the ambulance and the police arrived.
A post-mortem examination showed that the deceased had been shot at point blank range first in the abdomen and then in the head. The second shot was fired when the deceased was already lying on the ground. Both shots were inevitably fatal and he died immediately.
Over the ensuing hour or so various telephone conversations took place, first between the offender and Mrs Riley and later between the offender and Sergeant Wurth. The offender clearly indicated in these conversations that he intended to commit suicide. Both Mrs Riley and Sergeant Wurth pleaded with him not to, but he made statements such as "no one else will get hurt, I won't feel a thing". When told that his children would be there to support him he said "they are better off without me, I can't put them through this. I don't want them to have to see me in gaol, they will be free and I will be free soon too."
Later that day the police attended at Mr Riley's real estate office in Mudgee. They found Mr Riley lying on the ground with obvious head injuries. There was a great deal of blood and some body tissue in the area. He was taken by ambulance first to Mudgee Base Hospital and later to Westmead Hospital, where he remained until 24 May 2007, when he was discharged to the Mid Western Brain Injury Rehabilitation Unit at Bathurst.
The offender's suicide attempt consisted of discharging his shotgun into his mouth, pointed in an upward direction. As a result he suffered very severe traumatic open brain injury and extensive facial injuries on the left side. On 15 February 2007 he underwent a left frontal lobectomy and craniectomy and a left facial reconstruction. He has, to all appearances, made a remarkably good physical recovery from these injuries. He has a prominent indentation to his skull above the left forehead and wears a patch over his left eye. Nevertheless he will require significant further surgical procedures.
Not surprisingly, given the extent of his brain injuries, the offender suffers a number of permanent and severe intellectual and emotional deficits, as I shall describe shortly. He has no memory whatsoever of the killing. Indeed he has no memory of anything at all between November 2006 and the middle of May 2007. The medical evidence indicates that this level of amnesia is a normal and predictable consequence of the offender's brain injury. There is and can be no suggestion that he has feigned a memory loss for the purpose of these proceedings. To the contrary, he has apparently shown a high level of motivation to perform well in the various psychological tests which he has been required to undergo over the last 10 months or so.
This brings me to say something about his present psychological and emotional condition.
The offender's pattern of functional disability is mixed. In some basic areas he can function relatively normally. In others he shows signs of severe impairment. This, on all accounts, is consistent with his severe frontal lobe injury.
The most significant areas of impairment are in his executive function, which Dr Nielsen described as "grossly impaired". He has great difficulty in comprehending abstract or non-concrete language, and is unable to grasp underlying concepts or to think in abstract terms. His general verbal comprehension is significantly reduced.
One of the offender's major difficulties arises from the fact that he completely lacks insight into the extent of his impairment. He thinks that he has largely recovered from his brain injury and that his levels of communication, cognition and behaviour are essentially intact. He is unable to experience most negative emotions such as guilt, remorse, anxiety or fear. He presents as being inappropriately and fatuously cheerful in situation when he should be anxious or concerned. He is incapable of empathising with the feelings of others. His ability to generate words within rules and restrictions is severely impaired. As a result, his speech has an automatic quality about it, with the frequent use of repetitive phrases. For example, he uses the word "cool" frequently and often in inappropriate contexts.
This description relating to particular areas of deficit probably does little justice to the offender's overall level of impairment. So serious is it that on 27 July 2007, he was found to be incapable of managing his own affairs and the Guardianship Tribunal made an order appointing his father and his brother as managers of his estate. Although the evidence indicates that there has been some improvement in his intellectual functioning since then, that order still stands. This is indicative of the extent of the offender's overall impairment.
It is perfectly clear that the offender will never be able to rejoin the productive workforce. He will always require special care, preferably from people who know him well and are prepared to tolerate his often inappropriate behaviour. He was on bail until the day the jury brought back its verdict of manslaughter. During that time he lived with his parents on their property outside Mudgee. Most of his days he spent walking circuits around the property, totalling sometimes over 20Kms in a day. This is a far cry from the previous Tony Riley who was a highly successful businessman, a somewhat obsessive perfectionist who participated in and contributed to a number of community activities.
Thus far I have discussed only the offender's present condition arising from his catastrophic self-induced brain injury. It is appropriate at this stage to discuss his mental state at the time of the killing. Although he is now no longer the same person, his state at that time is highly relevant on sentence as it was this which led the jury to acquit him of murder and convict him of manslaughter. It is therefore central to the culpability of his actions in firing the shots which killed the deceased.
In order to discern the offender's mental state at the time of the killing it was necessary, in effect, to engage in an exercise of reconstruction. He himself was of no assistance in this regard, as he had no memory of the events surrounding the killing. It is probably fortunate for the offender that his General Practitioner of many years, Dr Caterson, had noted that he was suffering from depression. In an undated report relating to the offender, Dr Caterson made the following observations:
" Tony has presented on numerous occasions in the last 10 years with clinical depression and associated marriage and family problems. There was one episode of suicidal depression where he was absent for 24 hours and there was real concern he would commit suicide. He was counselled. Medication was offered but Tony refused. This was in character as he was an extremely successful businessman and the feeling anti-depressants gave was unacceptable to him... There is no question in my mind that Tony suffered from endogenous depression for many years."
Dr Caterson noted that the offender's depression was directly related to his relationship with his wife. When problems occurred in his marital situation he became more depressed and more withdrawn. The incident referred to by Dr Caterson, when the offender was absent for 24 hours, occurred almost precisely five years to the day before the killing of Mr Nichols. On that occasion Mrs Riley had told her husband that the marriage was at an end. Mr Riley threatened suicide and then disappeared with one of his firearms. The police were called in to search for him. However he returned a day or so later of his own accord, saying that he had been 7 unable to go through with killing himself. Dr Caterson was so concerned about his condition at that time that she insisted that he go to a psychiatric institution in Windsor. She also recommended that the offender, who was a licensed shooter, should not continue to have access to firearms. Unfortunately this recommendation was never taken up. Had it been, the tragic killing of Mr Nichols might never have happened. Dr Caterson observed in her evidence that at times there were two Mr Riley's: the Mr Riley who was seen in the general community who was outgoing, hard working and interested in his surroundings, and the Mr Riley who was having "inner torment from his home relationship".
Another significant trial witness on this issue was Jane Hanna, a work colleague of the offender's. Ms Hanna had considerable personal experience of observing and suffering depression. She noted a number of changes in the offender's behaviour in the few months leading up to the killing, which led her to conclude that he was seriously depressed. He became withdrawn, sad and less involved in his work. Ms Hanna said that she was very concerned for his welfare.
Two highly qualified forensic psychiatrists gave evidence in the trial: Dr Olav Nielsen on behalf of the Crown and Dr Bruce Westmore on behalf of the defence. Both had seen Mr Riley. More importantly, they had had access to Dr Caterson's observations and to other material relating to the offender as he was before his brain injury. Both of them expressed the view, within the terms of s 23A of the Crimes Act, that at the time of the killing the offender was suffering from an abnormality of mind, namely severe depression, which substantially impaired his capacity to control himself. Dr Nielsen also considered that there was a substantial impairment in the offender's capacity to understand events and to judge whether his actions were right or wrong. This being the case, it was the jury's task to determine whether that impairment was so substantial as to warrant the offender's liability for murder being reduced to manslaughter. As indicated, the jury determined that matter in favour of the offender, thereby leading to a verdict of not guilty of murder but guilty of manslaughter.
I turn to consider the aggravating and mitigating factors, particularly those relating to the objective seriousness of this offence. There are three aggravating factors under s 21A of the Sentencing Act which are not inherent in this offence and which are potentially relevant here. They are: First, that the offence involved the actual use of a weapon, in this case a shotgun which was fired at very close range. Second that the offence was committed in or in the vicinity of the victim's home. In this regard, although the physical shooting took place immediately outside the deceased's house, this was only because the deceased himself was apparently trying to deflect the offender's attention away from Mrs Riley who was inside the house at the time. The reality is that the offender sought the deceased out in his own home. Accordingly, as the defence rightly concedes, this is a relevant aggravating factor in this case. The third potential factor relates to the degree of planning. It was conceded by Mr Allen on behalf of the offender that there was a degree of planning, but only in a limited respect. The sequence of events on the morning of the killing make it probable that, when the offender first arrived at the deceased's home, he already had the loaded shotgun in his car. He must have taken the firearm from its storage facility at his home and also obtained the ammunition before leaving for the deceased's home. The distance was a short one, less than one kilometre. Accordingly the planning and preparation for this offence was probably confined to a relatively short period - possibly a matter of minutes only - before the offender arrived at the deceased's home. This being so, this factor cannot be taken as having any significant effect on the objective seriousness of the offence. What it does do is deprive the offender of any suggestion, in mitigation, that the killing was a spur of the moment affair.
There are a number of mitigating factors to be taken into account. Most of them relate to the subjective features of the offender himself rather that to the objective seriousness of the offence. I shall be referring to those subjective factors very shortly. The sole factor relating to the seriousness of the offence, is in terms of paragraph 21 A(3)(j), that the offender was not fully aware of the consequences of his actions because of the disability he suffered at the time. In this regard, the evidence of Dr Nielsen and Dr Westmore relating to the offender's impairment at the time of the offence is, as Mr Allen rightly submitted, crucial in assessing the offender's moral culpability and the objective gravity of the offence. This is notwithstanding the fact that, absent the impairment, this killing would have amounted to murder. In other words, the offender's impairment is relevant both to reduce the offence from murder to manslaughter and also to establish the appropriate level of culpability within the range of manslaughter. In this regard I accept the defence submission that the offender's impairment, consequent upon his severe depression, was such as to substantially reduce his moral culpability and therefore the objective seriousness of this offence.
Nevertheless, this was an unprovoked unnecessary killing in which a completely innocent man lost his life. As such the demands of retribution need to be considered, as I shall discuss shortly.
I return now to the subjective features relating to the offender himself. The offender was previously a person of impeccable character. Not only did he have an unblemished criminal record but he was a highly successful businessman who was active in community affairs. The chances of his re-offending are virtually non-existent given his current mental condition. S 21A refers to an offender's prospects of rehabilitation, which is closely linked with the likelihood that he or she will re-offend. Rehabilitation in any concrete sense can have little relevance in the case of this offender. He is not now the same person who committed this offence. That person will never exist again. Similarly, s 21A refers to remorse as a mitigating factor. The offender in his current state is incapable of feeling remorse. Nevertheless, on one level, it might be said that his attempted suicide shortly after the killing of the deceased was, at least in part, indicative of remorse.
Finally, in terms of s 21 A, the offender pleaded guilty to manslaughter, being the offence of which he was ultimately convicted. Moreover he formally admitted, during the course of the trial, that it was he who had fired the fatal shots which caused the death of the deceased. These admissions meant that the trial could focus on the primary issue for the jury's determination, relating to the offender's mental state at the time of the killing. In fact the trial was conducted extremely efficiently and swiftly, occupying only four hearing days. Accordingly real utilitarian benefit was derived from the offender's co-operative attitude.
In the circumstances I propose to discount the sentence by 15% on the basis of the offender's plea of guilty to manslaughter.
This case is so unusual that a number of the purposes which are normally sought to be achieved by the sentencing process are of doubtful applicability. The principal purposes of punishment are the protection of society, the deterrence of the offender and of others who might be tempted to offend, retribution and reform. As the High Court observed in Veen (No.2) 164 CLR 465 these purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. In this case, the protection of the community can have no application. As already mentioned, the chances of the offender re-offending are virtually non-existent given his current state. Similarly, individual deterrence can have no part to play in this most unusual case. As to the deterrence of others, this factor is generally to be given very little weight in the case of an offender suffering from a mental disorder or abnormality, as this offender was at the time of the killing, because such an offender is not an appropriate medium for making an example to others. When you add the fact that in this case the person being sentenced is not the same as the person who committed the offence, then it is difficult to see how general deterrence can play any real role at all in the sentencing process.
This leaves outstanding the issue of retribution. In a serious crime such as this, where a defenceless innocent person was mercilessly shot down, the court must show its denunciation of the crime and must reflect, to some extent, the moral outrage of the community. However even this factor, in the unique circumstances of this case, cannot play the major role which it would otherwise occupy given the seriousness of this crime. This is because of the offender's unsuccessful suicide attempt, which is relevant here in two important respects; First, it means that the offender has already suffered extra curial punishment; and secondly, it means that the person being sentenced today is not the same person as the one who killed Mr Nichols.
I should say a little more about each of these two matters, for they are highly relevant in today's sentencing process.
The offender's suicide attempt was integrally related to the killing of Mr Nichols. It was the offender's abnormality of mind which led him to perform both actions. Moreover he would not have attempted suicide had he not already killed Mr Nichols. This was made abundantly clear from the terms of the telephone conversations with the offender between the killing of Mr Nichols and the attempt to kill himself.
It is now accepted that the fact that an offender has already suffered extra curial punishment, even when self-inflicted, can be used in mitigation of sentence. In the present case, the level of punishment already suffered by the Tony Riley who killed Mr Nichols is of a very high order. This was the man who said that he would rather kill himself than have the trauma and indignity of his sons visiting him in prison. If that man could see the Tony Riley as he now is, I suspect the he would consider the present situation to be literally a fate worse than death.
The corollary to this is that the present Tony Riley, the person to be sentenced today, is not the person who committed this offence. He shares the same body, but he is otherwise a completely different person. Therefore he cannot share the same level of responsibility for the previous Tony Riley's actions. This being the case, even the demands of retribution must be modified in the unique circumstances of this case.
A further matter arising from the offender's suicide attempt relates to the conditions of his imprisonment. Because of his behavioural difficulties he will need to be protected and segregated for the whole of his sentence. Until now he has been housed at Silverwater, where he spends 23 hours a day alone in his cell and one hour out of his cell, but not in the open air, with a small number of selected inmates, under constant supervision. As a result, imprisonment for this offender will be particularly onerous. This is a further significant matter to be taken into account on sentence.
Nevertheless, an innocent man has met a tragic death. In this regard, extremely moving victim impact statements were read in court by the deceased's mother and his two sisters. These attest to the shock, pain and the lasting grief and bereavement suffered by the deceased's family members. I would like to convey the condolences of the court to the family of the victim. I would also like to say something to them myself.
You have lost a much loved and highly valued person who was of central importance to the lives of all of you. As such, I can well understand that from your point of view no punishment this court can impose will be adequate to address the magnitude of your loss. You may well think that the sentence I am about to impose is completely inadequate, given the unprovoked and unnecessary killing of a valuable member of the community who was so important to all of you. But I hope you will understand that sentencing is a complex process, and that there are very many considerations which need to be taken into account. One of the most important of these is the fact is that the person who is essentially responsible for your loss ceased to exist when he pulled the trigger on himself on 14 February last year. The man who has been sitting in court throughout these proceedings will bear the punishment for the deeds of that other man, but it is not he who is primarily responsible for them.
The maximum penalty for manslaughter is 25 years imprisonment. However, as has been said on numerous occasions, this offence, more than any other in the criminal calendar, potentially encompasses an enormous range of culpability, from a practical joke gone wrong at one end of the spectrum to a killing which is little short of murder. Obviously the sentence will reflect the gravity of the offence.
The question is; where does this case lie on this very large spectrum? Objectively speaking, the action of killing Mr Nichols was at the very serious end of the spectrum. He did nothing whatsoever to provoke the offender. Nor was there any chance of escape, when the offender produced his firearm and shot him at point blank range. However for all the reasons I have mentioned, this case presents 15 unique features which place both this offence and this offender into a wholly exceptional category
Taking into account all the matters I have mentioned I consider that this is an exceptional case in which a relatively low sentence is merited.
Special circumstances clearly exist to justify a departure from the statutory nexus between the total sentence and the non-parole period. In addition to the onerous nature of the offender's incarceration, which goes to his overall sentence, his physical vulnerabilities must also be taken into account under the head of special circumstances. At present a significant part of his brain is unprotected by any bone or skull. The evidence indicates he will require a number of further surgical procedures in order to address his facial injuries. These will require an interdisciplinary approach which, according to the evidence before me, means that the surgery can only be conducted at Westmead Hospital. The evidence is ambivalent as to whether it will be possible for these procedures to be performed during the offender's incarceration. However the most significant matter in relation to special circumstances is the assistance that the offender will need upon his release. As I have already indicated, he was living with his parents whilst on bail. However they are elderly and frail and it is not anticipated that they will be able to care for him after his release. The offender will need a great deal of rehabilitative care, assistance and supervision, given his multiple problems, in order to reintroduce him into the community. A lengthy period on parole is therefore called for.
The offender has been in custody since 10 April and his sentence will commence on that date.
Particulars of Sentence
A non parole period of 2 years imprisonment commencing 10 April 2008 and expiring 9 April 2010, with a balance of term of 3 years commencing 10 April 2010 and expiring 10 April 2013
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