R v Walsh

[2018] NSWSC 1299

Supreme Court

New South Wales

Medium Neutral Citation:	R v Walsh [2018] NSWSC 1299
Hearing dates:	10 August 2018
Decision date:	23 August 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Offender sentenced to imprisonment for life
Catchwords:	CRIME – sentencing – murder – where prisoner killed cellmate during lock-down – fourth murder committed by same offender – offender already serving two life sentences for previous murders – assessment of level of culpability – whether so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum penalty – relevance of previous offences – absence of any significant mitigating factors
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A(2)(d), Pt 4 Div 1A Table item 1, 54D(1)(a) 61 Crimes Act 1900 (NSW), s 19A
Cases Cited:	Pearce v R (1998) 194 CLR 610 [1998] HCA 57 R v Harris (2000) 121 A Crim R 342; [2000] NSWCCA 469 R v Kaewklom (No 3) [2013] NSWSC 59 R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 R v Miles [2002] NSWCCA 276 R v Penisini [2004] NSWCCA 339 R v Rose [1999] NSWCCA 327 R v Walsh [2009] NSWSC 764 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Yeung v R [2018] NSWCCA 52
Category:	Sentence
Parties:	Regina John Walsh (Offender)
Representation:	Counsel: S Harris (Crown) J Manuell SC (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) PW & Associates Solicitors (Offender)
File Number(s):	2017/1853
Publication restriction:	None

Judgment

1. HER HONOUR: John Walsh has pleaded guilty to the murder of Frank Townsend. He now stands to be sentenced for that offence. The maximum penalty for murder is imprisonment for life. [1] The offence carries a standard non-parole period of 20 years[2] which applies in the case of a determinate sentence but not where a life sentence is imposed. [3]

   1. Crimes Act 1900 (NSW), s 19A(1).

   2. Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A; Pt 4 Div 1A Table item 1.

   3. Crimes (Sentencing Procedure) Act, s 54D(1)(a).

2. This is the second time I have sentenced Mr Walsh. In 2009, he pleaded guilty to the murder of his wife and two grandchildren and to causing grievous bodily harm to his daughter with intent to murder her. On that occasion, I sentenced him to imprisonment for life for the murder of each of the two children and imposed lengthy determinate sentences for the two other offences. [4] The victim of the present offence was a fellow prisoner with whom the offender had recently started sharing a cell while serving those sentences.

   4. R v Walsh [2009] NSWSC 764.

3. In New South Wales, a person sentenced to imprisonment for life for the crime of murder must serve that sentence for the term of the person's natural life. [5] It follows that, as a result of the two life sentences I imposed in 2009, the offender has no entitlement to be released on parole at any time. It does not follow that the imposition of a further sentence for this fourth murder committed by him is an arid exercise. It is important to punish the offender separately for taking the life of Mr Frank Townsend. Members of Mr Townsend’s family were present at the proceedings on sentence. I acknowledge the suffering they must have endured as a result of the circumstances in which he came to be imprisoned and the circumstances in which he was killed.

   5. Crimes Act, s 19A(2).

Circumstances of the offence

4. The offender is to be sentenced on the strength of agreed facts which may be summarised as follows. The offender and Mr Townsend were detained at Long Bay Correctional Centre in the Kevin Waller Unit, which is an integrated aged care unit for elderly and frail prisoners. They shared a cell and were the only occupants of that cell, the offender having been moved in with the victim about 5 days earlier.

5. At around 2pm on 2 January 2017, the prisoners were returned to their cells for the night and the unit was locked down in accordance with usual procedure. At around 10:50pm, Corrective Services officers patrolling alongside the unit heard five or six “bangs” like the sound of an object being hit against something else. They said there was about a second between each sound. They opened the gate leading into the Kevin Waller Unit and shone a torch into the first cell, where they saw the offender sitting up on his bed with his legs hanging over the edge. One of the officers asked what was going on but the offender remained silent. The officer heard the victim in bed making what was perceived to be a “loud snoring noise”. The offender lay back down on his bed and the officers moved on to check the other cells in the complex. About 30 seconds later, they heard two more sounds similar to the sound they had heard earlier.

6. At about the same time, another inmate woke up to the sound of “three really loud bangs” which appeared to have come from the offender’s cell. Shortly afterwards that inmate, who had formerly worked as a nurse, heard what he described as “Cheyne-Stokes breathing”, which is the strained breathing characteristic of a person who is near death.

7. When the officers finished checking the other cells in the complex, they returned to the offender’s cell where they again saw him seated on his bed. He stood up and turned on the internal light in the cell, saying “I think I need to get out of the cell. I think I hurt him”. The officers saw that the victim had a large gash to the side of his face. On closer inspection, they saw that he had such severe injuries to the skull that it looked as though part of his cheek was missing. There was a large amount of blood within the cell.

8. The officers called for emergency response officers and medical assistance. While the offender was being escorted to another cell, an officer asked him why he had attacked the victim. He replied in a calm voice, “he was going to kill me tonight.”

9. The weapon used by the offender to attack the victim was a Breville sandwich press which the officers found wrapped in a pillow case covered in blood under a table next to the offender’s bed.

10. The victim was taken by ambulance to St Vincent’s Hospital where he later died after going into cardiac arrest. An autopsy determined that the direct cause of death was “blunt traumatic injuries to the head, face and neck.” The forensic pathologist observed multiple blunt traumatic injuries to the body with large lacerations and associated bruising to the head, face, ear, mouth, lips, neck and arm. Post-mortem CT imaging identified evidence of acute trauma to the head, face and neck.

11. The offender participated in a lengthy interview with police the following day. [6] His account of the offence was disturbing, to say the least. At first he suggested Mr Townsend had threatened him by saying “I’ll have to kill you to get you out of this cell”. The offender continued:

“And then in the evening he started the shenanigans, you know, first of all, he didn’t go to sleep at a normal time, he left the TV on to stay awake longer. My thought he’s trying to tire me out so I was on guard. When he sat up in that bed and turned around I reacted. Maybe I overreacted. And I’m not, tell you the truth I’m not bloody sorry because he’s an arsehole. Because as far as I’m concerned I had no intentions on killing him, he just died… It was so easy. I have no idea how many times I hit him, he turned on the bed and I’m pretty sure that the foot was on the floor but I’m not 100%. I grabbed the thing touched him on the top of the head he went backwards onto the bed and I stepped forward with both hands and choom, onto his face. Now I’m not sure too, I think it was three times and his hands came up and I hit his hands twice and then I hit him again in the face but after that I’m not sure if I hit him again. I might have hit him more. Bang, bang, you don’t count, you just act and the acting is natural because I work tactical. I wasn’t in a temper. I never have been.”

6. Only extracts of the interview were put before the Court.

12. The offender said as soon as Mr Townsend turned on the bed he thought he was going to come at him so he “went first”. He later said “Well I think he was planning something but it’s only, I didn’t say he was, I said I think he was planning something, that’s what the look told me.”

13. Referring to the fact that he was left sharing a cell with Mr Townsend, the offender said “And they made a good decision I think because it got rid of Frank. I think I put my foot in it again.”

14. He was asked how he deals with anger, to which he said: “Well I don’t work in anger, I work in tactical, I work in cold rage, I told you that.”

15. Describing the offence, he said:

“I had a hold of the Breville and on his head (demonstrating a swinging motion with his right arm) and then dropped it into the other hand and (demonstrating two movements of striking down with both arms)…I keep telling you the word, think of it, tactical. I’m not using it to make it look good, my mind works that way not me. And it works without you even having to think about it. So I reckon cold rage is bloody dangerous.

16. When the offender was asked what he was thinking when he hit Mr Townsend, he said:

“I don’t think I was thinking anything. I can’t honestly say that. All I remember is bang, bang, bang, the hand moving, hand twice, then hit him once, I probably hit him after that but I don’t remember it. I shut it out probably. I don’t know. The only thing I can’t shut out is my own family, like I can’t, I don’t know why that’s happened because there was no anger, no drugs, no booze, just the depressing silence and I went and killed my wife. Maybe some people shouldn’t be born. I don’t know.”

Objective seriousness of the offence

17. An important factor in determining the appropriate sentence is to make an assessment of the objective seriousness of the offence. [7] I consider the present offence to be one of grave seriousness. It involved repeated acts of extreme violence and ferocity causing catastrophic injury. The victim was completely vulnerable and must have endured great pain.

    7. Yeung v R [2018] NSWCCA 52 at [20] per McCallum J, Hoeben CJ at CL and Simpson JA agreeing at [1] and [2].

18. I am satisfied beyond reasonable doubt that the offender intended to kill the victim. The fact that the sandwich press had been placed inside a pillowcase indicates a degree of planning. The only reasonable inference from the agreed facts is that when the Corrective Services officers first attended the cell the offender deliberately paused and pretended nothing was wrong so as to be able to complete his attack. Although the offender told police that the deceased had previously threatened him, it is clear from his subsequent description of his actions that the attack was unprovoked, the offender striking at a time when the victim was in his own bed. It was a cold-blooded, calculated killing.

19. The Crown submitted that there are a number of aggravating factors. First, it was noted that the offence involved violence and the use of a weapon, being the sandwich press. [8] While that is true, those are common and often necessary features of the offence of murder. It may be doubted whether the use of a weapon of itself is to be regarded as an aggravating factor in the present case. However, it is relevant to have regard to the considerable degree of violence employed in the use of that weapon.

    8. Crimes (Sentencing Procedure) Act, s 21A(2)(b) and (c).

20. The Crown also relied on the fact that the offender has a record of previous convictions for serious personal violence offences and is being sentenced for a further serious personal violence offence. [9] I will return to consider the significance of the offender’s prior convictions.

    9. Crimes (Sentencing Procedure) Act, s 21A(2)(d).

21. Finally, the Crown relied on the fact that the victim was vulnerable by virtue of his custodial status. [10] That is a significant factor in the present case. By reason of being locked in a cell with the offender and in the apparent absence of any warning or reason for the attack, Mr Townsend was completely vulnerable.

    10. Crimes (Sentencing Procedure) Act, s 21A(2)(l).

22. The Crown submitted that in all the circumstances the offence warrants the imposition of the maximum penalty of imprisonment for life. Senior counsel for the offender accepted that it would be open to the Court to reach that conclusion.

23. In determining that issue, the Court is bound by the provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999, which provides:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

24. Notwithstanding the apparently mandatory language of that section, there remains a discretion under s 21(1) of the Act to impose a lesser sentence where that is justified by the offender’s subjective circumstances. [11] It is necessary to give separate consideration to the exercise of that discretion.

    11. R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [36].

25. The onus of satisfying the Court that a case falls within s 61(1) rests on the Crown. The standard of such proof is beyond reasonable doubt. [12] The section requires the Court to consider the community interest in four objectives: retribution, punishment, community protection and deterrence. The test looks to the combined effect of such of those four objectives as arise in the particular case. The fact that one or some of those objectives could be met through a lesser sentence does not mean that the Court cannot be satisfied in terms of the section.

    12. Merritt at [35].

26. Putting aside for one moment the fact that the offender is already serving two life sentences, the community interest in protection is overwhelming in the present case. Before the 2009 offences, the offender had no criminal convictions. He has now murdered four people. He is of course not to be subjected to fresh punishment for the earlier offences but their circumstances can be taken into account to inform an assessment of the danger he poses to the community. [13]

    13. Veen v The Queen (No 2) (1988) 164 CLR 465, 477; [1988] HCA 14 (Mason CJ, Brennan, Dawson and Toohey JJ).

27. The calculation with which the three previous murders were carried out is described in my earlier judgment. The offender methodically killed first his wife, then each of his two grandchildren, then the family dog. When his daughter, a serving police officer, returned from night shift the following day he pretended nothing was wrong and made her a cup of tea before attacking her from behind with an axe as she discovered the dead bodies of her children, who had been neatly placed back in their beds after being killed by their grandfather. He later gave police a chillingly matter-of-fact account of those acts.

28. The circumstances of the present offence bear an eerie similarity to those events. The offender’s capacity to pretend nothing was wrong when Corrective Services officers attended the cell is reminiscent of his brazen deception of his daughter when she arrived home to the house in which he had killed her mother and her two children. He was planning to kill her as well; it was only her physical strength and her police training that saved her. She suffered horrific injuries requiring surgery.

29. The offender’s glib description of his conduct on each occasion shows not the least remorse and indeed indicates that he is incapable of remorse. He describes acts of murder as if he were explaining how to change a tyre. Of the deceased in the present case, the offender said, “I’m not, tell you the truth I’m not bloody sorry because he’s an arsehole.”

30. The offender appears to acknowledge that he is dangerous. As already noted, he said he “works in cold rage” and that his mind “works without you even having to think about it”, adding “so I reckon cold rage is bloody dangerous.”

31. The conclusion that, even as an old man, the offender poses an intractable threat of unprovoked, deadly violence is inescapable. There is no evidence to establish that his offending is caused or contributed to by any mental illness. On the contrary, Dr Sally McSwiggan, Consultant Neuropsychologist, expressed the opinion that his presentation in a recent evaluation suggests long-standing personality traits rather than any disorder of organic or psychiatric origin.

32. As the offender is already serving two life sentences, it might be argued that the interest in protection of the community could not require the imposition of a third life sentence. In my view, however, the proper approach in accordance with the principles stated by the High Court in Pearce [14] is to make a discrete assessment of the offender’s dangerousness at this point with a view to determining the appropriate, proportionate sentence for the present offence regardless of the fact that, for separate reasons, he is already ineligible for parole.

    14. Pearce v R (1998) 194 CLR 610 [1998] HCA 57 at [45].

33. In contending for the imposition of a life sentence, the Crown also relied on the community interest in retribution, punishment and general deterrence. It was common ground that specific deterrence has no effective role to play in sentencing this offender, for obvious reasons.

34. As to retribution and punishment, the offence is certainly one of considerable seriousness, for the reasons already stated.

35. As to general deterrence, the Crown relied on the remarks of Johnson J in the case of R v Kaewklom (No 3) [15] concerning offences committed in custody, as follows:

“Courts in this State have emphasised that considerations of deterrence are of particular importance in sentencing for offences of violence which occur within the prison system. It is the obligation of the courts to do their best to maintain proper order and discipline in prisons by punishing, with appropriate severity, violent crimes committed within the prison system. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending, and inmates serving their sentences are entitled to as much protection as the courts can afford them.” (citations omitted)

15. [2013] NSWSC 59 at [110].

36. Those remarks have some force in the present case.

37. I am satisfied beyond reasonable doubt that the interests identified in s 61(1) of the Crimes (Sentencing Procedure) Act, taken in combination, can only be met through the imposition of a life sentence in this case. It remains necessary to consider whether to exercise the discretion to reduce that penalty as allowed under s 21(1) of the Act.

38. I am required in that context to have regard to the offender’s guilty plea. [16] The plea was not entered at the earliest opportunity but that is explained by the fact that it was considered necessary by those advising the offender to investigate his fitness to plead. The plea has some utilitarian value. However, I do not think it indicates remorse. For the reasons already stated, I am satisfied that the offender is not the least bit remorseful.

    16. Crimes (Sentencing Procedure) Act, s 22 (as in force prior to 30 April 2018).

39. A plea of guilty does not preclude the conclusion that a life sentence should be imposed. It is recognised both under the statute and at common law that there may be cases in which the subjective circumstances will not displace the appropriateness of a life sentence. [17] In light of the seriousness of the present offence and the offender’s complete lack of remorse, I have decided not to reduce the sentence on the strength of his guilty plea.

    17. R v Penisini [2004] NSWCCA 339 at [13] (per Spigelman CJ; Hidden and Buddin JJ agreeing) approving the sentencing judgment of Wood CJ at CL at first instance at [84]-[85]; R v Miles [2002] NSWCCA 276 at [213] (per Carruthers AJ; Bergin J agreeing); R v Harris (2000) 121 A Crim R 342; [2000] NSWCCA 469 at [103]-[105] per Wood CJ at CL; Giles JA and James J agreeing.

36. The offender was 77 years of age when he committed the present offence and is now 78 years of age. A person of that age might ordinarily be considered unlikely to re-offend and to be entitled to some measure of leniency. However, the unusual circumstances of the present offence require rejection of that proposition in the case of this offender.

37. As to his mental state, the offender relied on the report of Dr McSwiggan dated 10 March 2018. She expressed the opinion that he suffers from Mild Neurocognitive Disorder. However, she stated that the results of testing in 2008, 2009, 2015 and 2018 do not suggest a progressive decline suggestive of “an underlying subclinical dementing syndrome”. Rather, Dr McSwiggan attributed the offender’s manner of presentation to his personality, stating:

“In my professional opinion, Mr Walsh presented in a similar manner during the current evaluation as that reported in 2008 suggesting long standing Personality Traits rather than a disorder of organic or psychiatric origin.”

42. The offender also provided evidence of his physical condition. Before his arrest in 2008 he had a pronounced limp as a result of hip replacement surgery; he also had three titanium screws in his right shoulder due to separate surgery and is blind in one eye as a result of radiotherapy treatment also received before his arrest. He now also suffers from partial deafness. In 2016, he was himself the victim of a serious assault in prison as a result of which he suffered a traumatic pneumothorax, facial fractures and pain.

43. The offender does not suggest that Justice Health is unable to manage any of those conditions. My consideration of the subjective case has not persuaded me to impose a lesser sentence than imprisonment for life. I am satisfied beyond reasonable doubt that a life sentence is the appropriate sentence in this case.

44. John Walsh, please stand. For the murder of Frank Townsend, you are convicted and sentenced to imprisonment for life.

**********

Endnotes

Decision last updated: 23 August 2018