R v Scurr
[2001] NSWSC 727
•27 August 2001
|
New South Wales |
Case Name: | R v Scurr |
Medium Neutral Citation: | [2001] NSWSC 727 |
Hearing Date(s): | 2 July 2001 |
Decision Date: | 27 August 2001 |
Jurisdiction: | Common Law - Criminal |
Before: | Wood CJ at CL |
Decision: | Sentence to be served partly concurrently and partly cumulatively to reflect additional criminality of killing two people – total sentence of 7 years and 3 months imprisonment - non-parole period of 4 years 6 months - See para 68 |
Catchwords: | CRIMINAL LAW - sentencing – manslaughter – shooting two people - neither substantial impairment or provocation negate all responsibility for offence – objective criminality considerable - need for both personal and general deterrence - offence out of character – special circumstances such as to require departure from ratio between head sentence and non-parole period |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 ss 5(1), 28(3), 44(2), 47(2), (3) |
Category: | Sentence |
Parties: | Regina |
Representation: | COUNSEL : |
File Number(s): | SC 70068/00 |
SENTENCE
WOOD CJ at CL: The prisoner stood trial for the murder of Ali Mokdad and Jaimie Creighton, occurring on 22 June 1999. In relation to each count, he was acquitted by the jury of murder, but found guilty of manslaughter. The circumstances leading up to those killings involved a turbulent period commencing in about October 1998, the detail of which was of direct relevance to the issues of provocation and self defence which arose in the prosecution case, and to the defence of substantial impairment by reason of abnormality of mind that was advanced by the prisoner. That history is equally relevant for the purposes of sentencing.
FACTS
The commencing point in the turbulent history mentioned was the investigation which was carried out of the poker machine records for the Aurora Hotel in Surry Hills, preparatory to its sale. The hotel was owned by a company of which John Beaumont was the substantial shareholder and director. It was managed by Ali Mokdad until his resignation on 26 July 1998.
The prisoner was the manager of another hotel of which Mr John Beaumont was the beneficial owner and controller. It was the Family Hotel at Katoomba, where the prisoner lived in an upstairs apartment. Arising out of the work undertaken by the prisoner and by Mr. Beaumont in analysing the poker machine takings and returns for the last quarter, it became evident that there was a short fall, or discrepancy, when compared with previous quarters, in the order of $100,000 to $150,000.
Detective Walker was consulted in early October in relation to the apparent theft, and Mr. Mokdad was, on 24 October 1998, charged with embezzlement. It was thereafter evident to all concerned that the prisoner was critical to the police investigation and that he would be a central witness for the prosecution, for which committal hearings were necessary in the Local Court. It also became clear that he felt a strong duty to see the proceedings through and not to be diverted by threats or pressure to back away from them.
There were a number of mentions of these proceedings in the Local Court between 18 February 1999 and 9 June 1999, which were attended by the prisoner. Concern and annoyance were entertained by Mr. Beaumont and by the prisoner, on the one side, and by Mr. Mokdad, on the other side, in connection with the slow progress of those proceedings and with what was perceived to be some inefficiency on the part of the investigating police in bringing the matter to a state of preparedness.
On 14 February 1999, there was a violent and prolonged altercation between Ali Mokdad and Jamie Creighton, arising out of a desire expressed by Mr. Mokdad of contacting Mr. Beaumont to “have it out” with him. Mr. Creighton tried to prevent this. Whether or not that incident began before or after 2.45pm that day, there was evidence of Mrs Beaumont receiving a telephone call, at that time, from a male, in which she was advised to “watch the kids”. While there is no conclusive evidence to show who placed this call, the only rational inference, in the light of the events which followed, is that it was associated with the pending prosecution.
This call was reported to the prisoner and also to police at Katoomba. It preceded the first mention in the Local Court by four days, and at some time over the succeeding weeks, the prisoner discussed it with his father. In discussion with his father at this time and subsequently, concerning the threats that were being received, Mr. Scurr Senior reported his own experiences when faced with similar threats of violence that had been made to him and his family by a group of contractors, who were in dispute with his employer. It was his advice to the prisoner that he should back off since these people would not let up.
In early March 1999, and again at the end of that month, the prisoner received a phone call from a male, who he believed to be Jamie Creighton, screaming and referring to him as a “dog”. On 17th March 1999, the prisoner called at the home of Ali Mokdad and Jamie Creighton at Zetland in an attempt to settle the matter. The prisoner’s account of the conversation, which was not challenged as to its occurrence or its terms, proceeded thus:
“Mokdad: “What do you want?”
Prisoner: “I wanted to talk to you about the money”
Mokdad: “What do you mean?”
Prisoner: “I am here to discuss the money”
Mokdad: “There is no money, there’s nothing. You get nothing. I’ve got nothing to lose, you’ve got everything to lose and I’ll still be standing at the end of this.”
Prisoner: “What do you mean? You stole the fuckin money”
Mokdad: “There is no money”
Additionally, according to the prisoner, Mr. Creighton said things like “Beaumont soldier boy…dog”.
There was evidence from friends of Mr Mokdad that he was particularly annoyed by this visit.
On 19 April, at 7.34pm, Mrs. Beaumont received a telephone call from a person, who sounded to be the same person as the man who had made the earlier call to her, telling her “you’ve got more to lose”. This call was traced to the landline of the premises where Mr. Mokdad and Mr. Creighton lived. Another call was made at 10.00pm. that night to her, which was traced to the same landline. The caller did not speak on this occasion.
At a mention of the proceeding in the Local Court on 22 April 1999, one of the persons present with Mr. Mokdad made threatening gestures to the prisoner.
On 28 April, two calls were received by Mrs. Beaumont, at about 5.33am. The caller did not speak but a trace showed that one of these calls came from the landline of the deceased.
On the following morning at 4.51am and again at 4.55am, phone calls were received by Mrs Beaumont. On neither occasion did the caller speak. These calls were traced to public phone boxes at 44 and 100 Market Street, a short distance from the Nikko Hotel, where Mr. Mokdad had been working that night.
On 17 May 1999 at 5.40am, Mrs Beaumont received a final call placed to her home. Again no one spoke. This call came from a payphone.
On 21 May 1999 at 4.30Pm. the prisoner received a telephone call from Jamie Creighton which proceeded in the following terms, omitting immaterial portions:
“Creighton: “Why are you involved? It’s not your business”
Prisoner: “There’s no point standing on me, you are wasting your time.
Creighton “I don’t know why I’m even wasting my time, you’ve had your warning”
Prisoner: “You talk a lot of shit”
Creighton: “We’ll see you sooner than you think but you won’t see us”
Prisoner: “You’re just a poof with a bad haircut’”.
Mr Creighton he said then started screaming into the phone.”
The various calls to this point had been discussed between the prisoner and the Beaumonts, and referred to police at Katoomba, but very little seems to have been done about them. In particular, the prisoner had considerable difficulty in making contact with the three officers who had been successively assigned to the case. This inactivity led to complaints being made to Inspector Howe , the Local Crime Manager, to staff of the Local member and also to the Ombudsman.
On 24 May 1999, at 2.30Pm. the prisoner received another call from a person who did not identify himself. The conversation proceeded as follows:
“Caller: “Hello Mr. Gordon. You’ve got yourself in all sort of strife, treading on toes and ignoring the warning. We missed you on the weekend, but you can’t hide for ever.”
Prisoner” “”I’m here day around, week around. You can always find me here”.
Caller: “Well, we are coming, and we’re coming sooner than you think.”
Prisoner: “Well I’m here”.
At about 5.45pm. two hours or so after the last call, a recorded message was left for him, on his phone:
“Caller: “Yeah Mr. Gordon. We missed you this weekend, but we’ll catch you very soon mate. I’m telling you, mate, you’ve trodden on the wrong toes this time. We’re looking for you so keep your eyes in your head. (laughter)”.
The message had some significance for the prisoner in that he had been unwell over the weekend, and as a result had not been seen in the bar area of the hotel. Like some of the calls to the Beaumonts’ home, one of which had followed immediately after their return home from a holiday, and one of which had followed immediately after Mr Beaumont had departed for work, the inference drawn by the prisoner was that someone had been maintaining surveillance in relation to them.
At 3.10am. on the following morning, a shotgun was discharged from the courtyard of the Family Hotel at Katoomba, in the direction of the kitchen window of the prisoner’s apartment. The shot smashed the window and caused damage to the architrave and a wall unit inside the flat. Had anyone been in the room, they clearly would have risked serious injury, if not death. The prisoner was, however, at the time, in his bedroom, trying to sleep. After this incident, which was reported to Katoomba police and investigated by Detective De La Harpe, the prisoner commenced to carry a 9mm Luger pistol on his person. It had been purchased by him on 24 July 1998, ie prior to the resignation and arrest of Mr Mokdad. The prisoner was experienced in the handling of firearms by reason of his earlier army training, and by reason of his membership of a local pistol club. He was licensed to carry the Luger and the other handguns which I will later mention.
In the early hours of 25 may, police called on the premises of Mr. Mokdad and Mr. Creighton with A view to investigating their possible complicity in the shooting. Their attendance, however, occurred some hours after the shooting and they were unable to determine whether Mr. Mokdad and Mr. Creighton may have been involved. They were unable to find any firearms in the premises.
On 9 June, an application was made to vary the bail conditions of Mr. Mokdad to prevent him from making direct or indirect contact with, or harassing any witness.
On 19 June, the prisoner received another call from a male whose voice he said sounded like that of Mr. Mokdad, although he was not sure:
“You’ve ignored the warning, we’ll have to go and have a look around [redacted] which is a lovely house under the Harbour Bridge.”
These were the premises where the prisoner’s parents lived. Following this call the prisoner made several attempts to contact Detective de La Harpe and discussed the threat with his solicitor, Reg Mitchell and with his friend Geoff Leach.
On 22 June at about 4pm. the prisoner received another call from the same person informing him that:
“I had effectively ignored the warnings and that if I wanted to see my parents again then I should you know, tune into the late news to see them carried out of the house in a body bag, something to that effect.”
The prisoner said that he was physically sick after this call and that he went to his room where he laid down for a while, feeling dizzy. Earlier that day he had been functioning normally having visited a video shop, having managed the hotel bar, having taken two Smith & Wesson pistols of .22 and .38 calibre to a local gunsmith for repair and checking, and had also dropped off a long cashmere coat for cleaning. It was this call which I find was the final breaking point for the prisoner, causing him in the context of the elevating harassment to lose his self control, and to embark on the course of action which followed.
A little while after the telephone call, he asked Shane Conley to relieve him at the hotel for the evening, explaining that he had “real problems down in Sydney”. After speaking to various people including John Beaumont, Ms Egan, Mr. Tickle and Ms Cherry at Katoomba he drove down to Sydney in a car which he had hired for the night. In this regard it may be accepted that the vehicle which was usually available for his use had broken down and was out at Cobar.
In some of the conversations which the prisoner had this afternoon, he made reference to having a problem in Sydney, and to the callers knowing the address of his parents.
When he left Katoomba the prisoner was carrying the Luger pistol, loaded with at least 8 rounds, in a shoulder holster under the long cashmere coat. He also had with him in the boot of the hired car the .22 and .38 handguns which he had picked up from the gunsmith on the way to collecting the hire car. There is no evidence that he had, in his immediate possession, any ammunition for those weapons.
On his way to Sydney the prisoner made a number of telephone calls to friends and to police, including calls which he attempted unsuccessfully to make to Detectives De La Harpe and Walker, and to a friend, Sgt Craig Murray. In the course of these calls he made reference to the fact that “these guys have now started making threats to my family”; to the fact that he was not happy with police inactivity in relation to what had been happening; and to Det Bayley, that “I just feel harassed. I can’t handle what these people did.” In a call to former Federal Agent Cox, a friend from their army days, he explained the situation which had developed and sought his advice. Agent Cox urged him to seek police assistance if he had genuine fears for the safety of himself and his family, and mentioned other precautions available, such as checking the bail conditions and having police obtain reverse call records.
The prisoner arrived at the Bourke Street home of the deceased in Zetland at about 8pm. There were divergent accounts between that given by him and by Amber Andrews, a resident of those premises, as to what happened thereafter. By reason of the jury verdict it would appear that her account of the prisoner shooting each of the deceased immediately after gaining entry to the house, and moving down the hall to the entrance to the lounge/diningroom was accepted. I similarly accept her as a reliable and credible witness, and accordingly I am satisfied beyond reasonable doubt that the prisoner was not manhandled by Jamie Creighton at the door, or dragged into the premises, or menaced by either man as he suggested in his evidence before the jury.
I am further satisfied beyond reasonable doubt, from the position of the entry wounds of the two bullets which struck Ali Mokdad in the back, and of the one that hit him in the left shoulder, that her account was correct, and that Mr. Mokdad was shot in a standing position while turning away from the prisoner. In all some eight shots were fired at the deceased, each of which struck home.
The prisoner left the premises immediately afterwards, and made a telephone call on his mobile phone to Mr. Beaumont, at 8.21pm. advising him of what he had done. Thereafter, between that time and the time at which he handed himself in to police at Katoomba at 5.00am. on the following morning, he made very many telephone calls to his parents, to Mr. Beaumont, to his solicitor, and to various friends advising them of what he had done. In the course of these calls he made mention of the concerns that he had entertained for his parents, and while promising to turn himself in, and assuring all to whom he spoke that he did not intend either to harm himself or anyone else, he was steadfast in rejecting the encouragement given to surrender immediately. In the course of these calls, many of which were intercepted and recorded, he appeared calm and in control of himself.
During the night he met Ms Egan, who had driven back from Muswellbrook following a call placed by him to her at 9.55pm. She then drove back with him to Katoomba, and at his request, took the .22 and .38 Smith & Wesson handguns back to the hotel. When she saw him he appeared to be “robotic” or on “auto pilot”.
In finding that the prisoner had not acted in self defence it seems certain that the jury took into account his admission that while shooting the two deceased, he was yelling out “cowards” at them, an observation which reflected his anger and his dim view of them for threatening the children of Mrs. Beaumont. It is likely that they took into account his strong personality, his ability to handle a firearm in combat situations, his familiarity with dealing with violent and troublesome customers in the hotel trade, and his professed lack of concern for threats directed towards himself, as well as his somewhat callous observation in a telephone call to Mr. Hodder about three hours after the shooting, “I’ve just blown away the Lebos.”
There can also be no doubt having regard to Amber Andrews’ evidence, to the fact that he was armed, to the history of violence and threats which he attributed to the deceased, and particularly to the unsatisfactory and heated nature of his earlier visit to Zetland, that the jury rejected his account of having driven back down to the home of the deceased with the sole intention of seeking a peaceful solution, by way of a discussion, at the front door without any intention of harming anyone.
There was, in those circumstances, and in his admission that he was unable to say, when he fired the fatal shots that he was thinking of his parents’ safety, compelling reason for the conclusion that the prisoner did not act in self defence. Rather, I find that he set out with the intention of bringing to an end the saga of harassment to which he had been subjected, being dissatisfied with the inability of the police to deal with it, and also being angry at what had occurred. His acts, I find, arose out of that anger and out of a decision to take the law into his own hands, a decision which, I am satisfied, was, at least in part, motivated by frustration in relation to the police inactivity and ineffectiveness concerning the investigation of the threats.
Those acts, I am satisfied, have to be understood in the full context of what had been occurring, and in the light of the finding which must inevitably be made, that the deceased were either directly or indirectly behind the telephone calls and the Katoomba shooting. So far as any of these events were the acts of persons acting on behalf of the deceased then the case falls within the principles established in Kenney (1983) 2VR 470, Tumanako (1992) 64 A Crim R 149 and Croft (1981) 1 NSWLR 126 at 140. So far as they involved spoken words in the form of threats they similarly qualify in law as provocative: Lees NSWCCA 29 September 1999 at para 36. It is the case, I am satisfied, that the prisoner acted in the heat of the provocation attributable to the call received on 22 June, rather than as a person who had abided his time and then killed, without passion, for revenge or by way of punishment.
There was a good deal of evidence in relation to the effects upon the prisoner of the threats ,and of the various events leading up to 22 June. This came from his parents, from friends, and from people associated with the hotel. Those witnesses consistently noted that he appeared distracted, agitated, drawn, gaunt, unwell and not his usual self. A number of these witnesses also noticed that he appeared to have lost weight, to be smoking excessively, and not to be attending effectively to the hotel business.
Some witnesses who spoke to him after the Katoomba shooting reported him, not surprisingly, to have appeared to be very shaken by it. As previously mentioned after this incident, he took to carrying a gun, and he also consulted a local tradesman about the possibility of having a security door fitted to his apartment. Those witnesses who saw him after the calls on 19 June, made particular note of the fact that he seemed not to be himself.
It was upon the basis of the histories so provided that each of Drs Lucas and Westmore formed the opinion that, at the time of the shooting, the prisoner was suffering from an abnormality of mind in the form of a depressive illness that was more than transitory, and that this abnormality of mind had substantially impaired his ability to control himself on the evening of the killings.
It is not possible to determine with any certainty whether the jury verdicts were returned upon the basis that the Crown had failed to negative provocation, or upon the basis that if it had done so, then the accused had established the defence of substantial impairment by abnormality of mind. Each would, however, involve a finding that the moral responsibility of the prisoner for the two killings was reduced.
To reach a definitive conclusion whether this was a case of provocation or of substantial impairment is virtually impossible upon the facts of this case, since the events which brought about the mental state of the prisoner were precisely the same as those that qualify for provocation. Clearly, the abnormality of mind diagnosed by the doctors was of short term duration and entirely reactive to or in response to the history of harassment and provocation which, on any view, was substantial, serious and prolonged.
In the light of the history that was proved both as to the sequence and nature of the threats and harassment, and as to the deterioration in the otherwise strong and confident personality of the prisoner, I find that the case was one in which both provocation and substantial impairment were present.
The latter, I accept led to an impairment in the decision making and thought processes of the prisoner. His confusion was, in my view, evidenced by the several telephone calls which he made on the afternoon/early evening of 22 June, as he drove from Katoomba to Sydney. While I find that he did set out on the trip with a definite intention of shooting Ali Mokdad and Jamie Creighton, I do not accept that these calls were made pursuant to a preconceived plan to establish a case of self defence which went awry, to a degree, when an unexpected witness was found at the residence.
That would have involved a reasoning or thought process that, in my view was beyond his capacity, in the concerned, angry, and depressed state in which he found himself. Rather, I find that they were the calls of a man at his wits’ end, seeking to justify to his friends and associates that which he had set out to do. His subsequent calls, by reference to their tenor, their frequency and the persons to whom he spoke, in my view, confirm this to be the case.
It is unfortunate that some of the persons to whom he tried to speak that evening were either otherwise occupied or unavailable, and that those to whom he did speak were unable to offer any advice to him that had not already been provided. This I am satisfied left him in the position where he went ahead with his plan. As Mr. Bellanto QC has put it, he had been for some time in a complex dilemma.
On the one hand he felt a strong obligation to support his employer and the police in seeing through the prosecution of Ali Mokdad.
On the other hand, he was faced with police apathy and with what seems to have been serious incompetence in the investigation of the threats, including the potentially fatal discharge of the shotgun at Katoomba. He had not, in this regard, been provided with the support which it might have been expected, would have been forthcoming from the police.
His dilemma was heightened by the conflicting advice which he had received concerning the need to support law and order, on the one hand; and on the other hand, the recent encouragement given by his father to back away from the situation in case he or his family were injured.
This was not an inconsiderable dilemma, given his strong personality, the very close relationship which he had with his family, and the genuine concerns he had for his father’s health. In the circumstances outlined a considerable degree of concern, of depression, of anger and of confused thinking on his part, was entirety understandable.
Objective Criminality
It follows from the foregoing that the degree of the prisoner’s objective criminality was substantially reduced, as is reflected by the circumstance that he is to be sentenced for manslaughter rather than murder. Notwithstanding these considerations, manslaughter involving the execution of two men in the very deliberate way in which the present offences were carried out, remains very serious, it being clear that neither substantial impairment or provocation negate all responsibility: Khan (1996) 86 A Crim R 552 per Allen J at 556, and Blacklidge NSWCCA 12 December 1995. In this regard, I am satisfied from the number of shots fired, the skill possessed by the prisoner in the handling of firearms, and from his subsequent observations to friends and police, that he shot each man with the intention of killing them.
The offence of which he stands convicted is one for which the maximum available sentence is one of imprisonment for twentyfive years. It involves the felonious taking of human life, and for that reason it has been recognised as a most serious crime: Hill (1981) 3 A Crim R 397 at 402. The value which the community places upon the preservation of human life is reflected by the need to have conduct involved in its taking denounced by a sentence appropriate to the circumstances of the case; MacDonald NSWCCA 12 December 1995. It is, however, an offence which involves an excessively wide variety of circumstances, calling for a range of penal and sometimes non-penal outcomes, with the consequence that it is difficult to obtain much by way of direct assistance from reference to the Judicial Commission statistics or from other cases: Elliott NSWCCA 14 February 1991, Green (1999) NSWCCA 97; Blacklidge NSWCCA 12 December 1995, and Maguire NSWCCA 30 August 1995.
Nevertheless, provided proper allowance is made for the somewhat exceptional and powerful combination of circumstances, which caused the prisoner to lose his self control through the effects of provocation and the depression which I find was reactive to those events, and also for his favourable subjective circumstances, some general assistance is provided by way of reference to the pattern of sentencing seen in decisions in this State such as Whalen NSWCCA 5 April 1991, TrojaNSWCCA 16 July 1991, Low (1991) 57 A Crim R 8; Taouk NSWCCA 20 March 1992; Chayna NSWCCA 8 June 1993; Blacklidge NSWCCA 12 December 1995;Alexander (1995) 78 A Crim R 141; Dang (1999) NSWCA 42; Tran (1999) NSWSC 1146 (Bell J); Wang (2000) NSWSC 447 (Adams J); Yun Young Ko (2000) NSWSC 1130 (Kirby J); Vandersee (2000) NSWSC 916 (James J); Dimond (2000) NSWSC 1212 (Badgery-Parker J) Veech (2001) NSWSC 68 (Wood CJ at CL), all being cases where there was provocation and/or diminished responsibility present, and where the offences were out of character. Even within this group of cases, there has been a significant variation in the head sentences, which ranged between twelve and four years, with most of the sentences falling about midway in that range.
Additionally, it is proper to bear in mind the observations of Hunt CJ at CL in Alexander (1994) 78 A Crim R, concerning the matters properly to be taken into account in a provocation manslaughter case, which he identified as:
“(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (eg Morabito (1992) 62 A Crim R 82 at 86);
(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; (e.g. ibid at 86) and
(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence. (e.g. Kinmond (1982) 5 A Crim R 413 at 414, 417 and Collingburn (1985) 18 A Crim R 294 at 304.
Returning to the instant case, it is proper for consideration to be given to the following matters, when weighing the prisoner’s objective criminality:
a) the fact that there were two offences involved, a circumstance to be taken into account by reference to the totality principle established in Holder and Johnston (1983) 3 NSWLR 245, and calling for a sentence to be structured in the way explained in Pearce (1998) 194 CLR 610, so as to ensure transparency of the sentencing process. In this regard it may be accepted that the deceased were each involved in the provocative conduct and threats, so that this factor does not weigh as heavily against the prisoner as it would had the two killings been unrelated. Nevertheless, the greater criminality involved in the fact that two persons were killed, cannot be ignored.
b) the existence in him of a depressive illness which reduced his moral culpability as well as the significance of the element of general deterrence: Anderson(1981) VR 155 and Letteri NSWCCA 18 March 1992, Scognamiglio (1991) 56 A Crim R 81 and Macadam-Kellie (2001) NSWCCA 170.
c) the presence of provocation which similarly reduced his moral culpability, although in accordance with Alexander that needs to be tempered by the extreme degree of violence displayed, and by the time which elapsed between the last telephone call and the shootings, a period during which the prisoner had time to reflect, and to consider the offer made to him by Detective Bayley, to come around and see him as well as the advice given by Federal Agent Cox, to seek police assistance to deal with any fears he had, each of which he rejected. It is also implicit in my acceptance of Amber Andrew’s evidence, that I am satisfied that Mr Mokdad did not make the shotgun pumping action which the prisoner described. I am further satisfied that neither deceased behaved in a threatening or provocative manner when the prisoner arrived at their home.
d) the circumstance that where provocation and impaired responsibility overlap, as they do here, it is proper to regard the lessening of objective criminality as somewhat greater than it would be if only one of those circumstances was present: Low (1991) 57 A Crim R 8 at 19 per Lee CJ at CL;
Although a submission was advanced by Mr Bellanto QC along the lines that since the commission of homicides involving licensed firearm holders was rare, the element of general deterrence was of little moment, there being no occasion to deter such persons from using their weapons offensively against other human beings. I am not persuaded that this submission has any weight whatsoever. What is expected, in this regard, is for the Courts to impose sentences that will deter each and every person who is minded to use a firearm unlawfully. It is neither sensible, nor can there properly be attributed to the community an appreciation of some distinction, in this context, between those who are, and those who are not, licensed firearm owners and holders. If anything, although I do not propose to hold it against the prisoner in this case, it is strongly arguable that a greater degree of objective criminality should attach to a trained and licensed user of a handgun. Such persons are to be presumed to know the dangers involved in their use as well as their potentially devastating effects. Further, they might also be expected to be able to use them more effectively.
Accordingly, in this regard I confirm that subject to the allowance properly made for considerations (a) to (d), the need for both personal and general deterrence continues to play a part in the sentencing process in this case.
I also confirm that I assess the objective criminality of the prisoner to have been considerable. Despite his serious and genuine concern there was no occasion for him to take the law into his own hands and to end the lives of his tormentors.
Subjective Circumstance
The prisoner was born on 18 January 1967 and hence is now aged thirty-four years. For all effective purposes he has no prior criminal history, the one matter noted against him, which involved an assault in Tasmania, having been dealt with by way of a conditional discharge. He was formerly a member of the Defence Force Academy, where he was highly regarded by his peers, one of whom Captain Bradley spoke of him in glowing terms. A formidable body of testimonials as well as character evidence from Mr. Angel, the Mayor of the City of Blue Mountains, established that the prisoner enjoyed a similar reputation outside the Defence Forces. They reveal that he has been heavily involved in community affairs, and is a man highly respected in his work as a hotel manager.
The only conclusion open from this material is that the offence was totally out of character for him. He is entitled to the benefit of his prior record for good character apart from these offences in the manner confirmed in the recent decision of the High Court in Ryan (2001) HCA 21.
Similarly, he is entitled to the benefit of the assessment which I make that his prospects of reoffending are minimal, and that those of his effective rehabilitation are extremely high.
Apart from his prior good character and favourable prospects of rehabilitation, there are a number of other subjective considerations of relevance. They include the following:
a) that he is disentitled to the discount which would have attached to the utilitarian value of a plea, although it must be recognised that the opportunity of the Crown accepting a plea of guilty to manslaughter did not present itself. That circumstance is accordingly neutral, it being inappropriate to punish an offender for exercising his right to trial.
b) nevertheless, the prisoner did assist the prosecution so far as he surrendered himself, and in so far as he admitted in his various conversations with police and with others following the shootings, that he had been responsible for them;
c) he had been assisting the police, in a significant way, in relation to the prosecution of Mr. Mokdad - a circumstance which he can call in aid;
d) he has demonstrated some degree of remorse and contrition for the offences, indicated by his evidence at trial and by his immediate post offence behaviour, for which he is also entitled to some credit: Vandersee .
d) by reason of his assistance with the prosecution of Mr Mokdad, and by reason of the fact that he has a relative working within the Corrections System, he is at risk of reprisals.
Although he has so far declined the offer to go on to protection, he may yet have to do so. In this regard, disturbing evidence was led, in the course of the sentencing proceedings, to show that he had already been the subject of assaults while at Parklea, including a knife attack, leaving him with soft tissue injuries and a superficial chest wound. These have been documented in a report from Dr. Campbell. While the injuries are resolving, it is possible that he may have been left with a minor visual deficit in one eye. Whether he remains in the general prison population subject to this kind of risk, or goes onto protection, the current expectation is that his custodial experience is likely to be more harsh and burdensome than normal. He may also be denied the full opportunity of reclassification and admission to the complete range of programs on offer. These are circumstances properly to be taken into account as special circumstances since a consequence of being held in more constrained forms of custody, and without full access to programmes, can increase the period needed for post release supervision and counselling: Astill (No.2) (1992) 64 A Crim R 289 and Berry (2000) NSWCCA 451. In the present case I consider it appropriate to treat this factor as a special circumstance reducing the non parole period rather than as a factor reducing the head sentence - it being inappropriate to effect a double discount: S (2000) NSWCCA 13 and Lee (2000) NSWCCA 392.
f) the history he displayed of having a depressive illness at the time of the offence, although reactive to the threats and harassment, may require some attention during his custody, particularly if he becomes subject to continuing reprisals. On that account it may lead to a greater need for post release supervision. This is another matter qualifying as a special circumstance.
Balancing these objective and subjective circumstances, I am satisfied that the offences are such that they must attract sentences of full time custody: S5(1) Crimes (Sentencing Procedure) Act 1999.
I find special circumstances to exist in the respects previously mentioned, such as to require a departure from the ratio between the head sentence and non parole period specified in S 44(2) of the Act. Those circumstances, particularly in view of the age of the prisoner and the fact that this is a first sentence of imprisonment for him, clearly call for a longer period of potential release on parole, so as to promote his rehabilitation and to ease his return to the community: McDonald NSWCCA 12 October 1998, and Lett NSWCCA 27 March 1995.
I observe that the prisoner is entitled to the full benefit of the pre sentence custody amounting to ten months and fifteen days between 23 June 1999 and 8 May 2000 and 36 days from the date upon which he was found guilty of the offences, namely 23 July 2001 until today. I propose to make allowance for these earlier periods of custody by backdating to 8 September 2000. This is permissible under SS47(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 and has the advantage of fairness so far as the prisoner is concerned in terms of classification eligibility. His period of liberty on bail was subject to very strict conditions as to daily reporting and as to a nightly curfew. It is proper to reflect that by way of a reduction in the overall sentence. That I have done by adjusting the date for accumulation of sentence by three months.
Finally, I observe that I have carefully considered the victim impact statements which have been tendered, for the purposes permitted at law: S 28(3) of the Crimes (Sentencing Procedure) Act 1999 and Previtera (1997) 94 A Crim R 76. They disclose the tragic loss suffered by the family of Jamie Creighton, a person who clearly was very close to them.
Taking all these matters into account, I sentence you, Gordon Theodore Scurr, for the manslaughter of Jamie Creighton to imprisonment for six years, which I direct is to be taken to commence from 8 September 2000, and to expire on 7 September 2006. I set a non parole period of three years, which similarly is to be taken to date from 8 September 2000, and to expire on 7 September 2003.
In relation to the manslaughter of Ali Mokdad, I sentence you to imprisonment for six years, which I direct is to be taken to commence from 8 December 2001, and to expire on 7 December 2007. In respect of that sentence I fix a non parole period of 3 years which is to be taken to date from 8 December 2001, and to expire on 7 December 2004. Such sentence is to be served partly concurrently with the first sentence and partly cumulatively upon it, so as to reflect the additional criminality associated with the fact that you shot and killed two persons.
The consequence of the sentencing order as a whole is that you have effectively been sentenced to a total term of imprisonment of seven years three months, with a non parole period of four years six months.
The earliest date upon which you will be eligible for release on parole will be 7 December 2004.
Having regard to the circumstances outlined in the reasons for sentence and in particular in the report of Dr Campbell, I do indicate it would be appropriate for the relevant authorities to consider at an early time the possibility of allowing the prisoner to serve his sentence in a minimum security institution. That is a matter for the relevant authorities, but I would ask that the remarks on sentence be made available to them, together with the report of Dr. Campbell so that the matter can be properly considered.
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