R v Waters

[2006] NSWSC 502

CITATION:	Regina v Waters [2006] NSWSC 502
HEARING DATE(S):	17 March 2006, 12 May 2006.
JUDGMENT DATE :	26 May 2006
JUDGMENT OF:	Hislop J
DECISION:	Imprisonment for a non parole period of 15 years to commence on 17 January 2005 and expire on 16 January 2020 with balance of term of 5 years to commence on 17 January 2020 and expire on 16 January 2025.
CATCHWORDS:	Criminal law - Sentence - Murder - Plea of guilty.
LEGISLATION CITED:	Crimes Act 1900 - s 19A(1) Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A, 44(2), 54A, Division 1A
CASES CITED:	R v Previtera (1997) 94 A Crim R 76 R v Thompson (2000) 49 NSWLR 383 R v Tobar [2004] NSWCCA 391 R v Way [2004] 60 NSWLR 168
PARTIES:	Crown - Regina Offender - Glenn Allan Waters
FILE NUMBER(S):	SC 2004/33
COUNSEL:	Crown - Mr T. Bailey Offender - Mr R. Button SC
SOLICITORS:	Crown - Director of Public Prosecutions (New South Wales) Offender - Legal Aid Commission of New South Wales

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HISLOP J

26 May 2006

2004/33 Regina v Glenn Allan Waters

JUDGMENT

1 On 3 March 2006 the offender pleaded guilty to a charge that on 10 January 2005 he did murder Gregory Lansdowne. He comes before me for sentence.

2 The deceased was 29 years of age when he met his death. He had, for some time, pursued a lifestyle of living on social security, not working, drinking heavily and using drugs. He became homeless and generally lived in squats in the Parramatta area or slept under bridges.

3 Victim impact statements from his parents were read, testifying to the effect upon them of the deceased’s death and the loss of their hopes that one day their son would change his ways and become reconciled with them, a hope destroyed by the actions of the offender. I have had regard to the victim impact statements to the extent permitted by law – R v Previtera (1997) 94 A Crim R 76.

4 The deceased’s lifestyle brought him into contact with other people who were similarly placed, including the offender, and a Ms Lawrence with whom the offender had a close relationship.

5 At the time he met his death the deceased was living in a derelict fire-damaged house in Parramatta. The offender, Ms Lawrence and others had shared that accommodation for a time but had moved to another house shortly before the deceased’s death. At the time of his death the deceased was sharing the accommodation with a Ms Ritchie.

6 Ms Lawrence claimed the deceased owed her $20. The offender claimed the deceased owed him $60. The offender also was of the opinion that the deceased was endeavouring to commence a relationship with Ms Ritchie, whilst her boyfriend, a friend of the offender, was in gaol.

7 On 10 January 2005 the offender and Ms Lawrence consumed a considerable quantity of alcohol and the offender used some drugs. In the evening they decided to visit the deceased. Shortly after 11pm they proceeded to the deceased’s squat. The offender told police in an electronically recorded interview on 17 January 2005 that in the course of walking to the deceased’s squat he became angry at the deceased and wanted to teach him a lesson. He took a metal pipe 2.5 – 3 feet long which was attached to a shovel handle from the backyard of the deceased’s squat with the intention of hitting the deceased with it.

8 There was evidence from a Mr Lambert that the offender and Ms Lawrence had taken the metal implement when they left the house to visit the deceased. If this was the case it may be the offender’s intent to strike the deceased with it was formed earlier than he admits. However I am unable to find beyond a reasonable doubt that the offender had an intention to inflict grievous bodily harm on the deceased when he left the house where he was residing. Accordingly it is unnecessary to determine whether the metal implement was taken from the house where the offender was living or from the backyard of the squat.

9 The offender and Ms Lawrence entered the squat through the back door. The deceased had been asleep in his bed. Ms Ritchie was in another bed in the same room. Ms Lawrence went to Ms Ritchie and pulled a doona over her head. The deceased awoke and the offender struck him with the pipe attached to the shovel handle. The offender told police in his record of interview that he hit the deceased in the head first then in both knees then could not stop himself and continued to hit the deceased, swinging at the upper body and that, all up, he hit him about eight times before leaving. He, Ms Lawrence and Ms Ritchie returned to the house where the offender was then living. He was arrested on 17 January 2005 and charged with the murder of the deceased.

10 The deceased’s death was caused by blunt trauma to the head. There was extensive disruption to the facial bones which would have occluded the airways. There was evidence of aspiration of a small bone fragment indicating the facial trauma had occurred during life and this was further substantiated by the pattern of expirated blood in the region of the facial area at the scene. There was further evidence of blunt trauma on the body principally involving the lower limbs, but also on the left of the chest and left upper arm. The injuries were consistent with an attack using the metal pipe attached to the shovel handle.

11 I am satisfied, beyond a reasonable doubt, that the offender, when he entered the squat, intended to inflict grievous bodily harm upon the deceased and that was his intent when he first struck the deceased in the head and knees.

12 Thereafter he continued to strike the deceased, but I am unable to be satisfied beyond a reasonable doubt that the offender had, by then, formed an intention to kill the deceased as opposed to intending to continue to inflict grievous bodily harm. I am satisfied beyond a reasonable doubt that at all times during the assault the offender intended to inflict grievous bodily harm upon the deceased.

13 The offender did not give evidence. The reports of the psychiatrist, Dr Westmore, and a letter from the offender’s parents, provide the following profile of the offender. He was born on 4 December 1975. He was the eldest of three children and grew up in a happy, stable family. He was educated to the end of year 10 and was an average scholar. He had poor teacher relations and was suspended on a few occasions. On leaving school he commenced, but did not complete, an apprenticeship as a plasterer. He worked as a plasterer and palette racker but ceased working in 2003. He started using illicit drugs in his teenage years and has used a wide range of drugs along with bingeing on alcohol. His behaviour led to the dislocation of his relationship with his family and he was living as a homeless person on social security. He has an eight year old child from a past relationship. He has a current partner, a letter from whom was tendered and considered by the Court.

14 Dr Westmore, following examination of the offender on 3 August 2005 reported:

He was not suffering from a major depressive illness. No psychotic symptoms such as delusions or hallucinations were displayed or described. He was alert and attentive and [the doctor] thought of average intelligence … Obviously his longer term management should involve drug and alcohol counselling which hopefully will be extended into the community on his release.

15 Dr Westmore re-examined the offender on 24 October 2005 when the offender gave a history of depression when he was aged 17 or 18. Dr Westmore concluded:

There is nothing in his history to suggest he suffered a profound or depressive illness in his teenage years and his mood state disturbance, as he reports it, is likely to have been of an adjustment disorder or reactive type.

He noted the offender acknowledged using some cannabis since coming into custody. He also noted the offender acknowledged what he had done was “very wrong” and that that had only hit home a few months ago and then it hit hard.

16 In a letter dated 8 March 2006 Dr Westmore stated:

It would be reasonable to assume that Mr Waters’ re-offending risk will be significantly reduced if he can enter into total and extended sobriety from all illicit drugs and alcohol use. If he continues to use drugs in prison then that will be a poor prognostic feature but the real test will occur when he returns to the community and is challenged by the ready availability of drugs and alcohol. I cannot say how vulnerable he is to peer pressure or how committed he might be towards rehabilitation and sobriety … It is likely he will spend an extended period in custody and he will suffer the effects of institutionalisation. On his release he will require considerable community social based support to help him readapt to community living and maintain his sobriety.

17 There was tendered on behalf of the offender a report by a pharmacologist, Dr Neering, as to the effect of the offender’s drug and alcohol consumption on the day in question. I infer from the report that Dr Neering had some doubt as to the reliability of the offender’s estimate of his drug and alcohol consumption on that day. No submissions were directed to this report by Senior Counsel for the offender. I regard the consumption of drugs and alcohol by the offender on that day as a neutral factor neither aggravating nor mitigating the offence.

18 The offender’s criminal record contains convictions for numerous motor vehicle offences and a number of convictions for stealing and malicious damage as well as a conviction for possession of an offensive weapon. There are no convictions for crimes of violence.

19 Senior counsel for the offender submitted that the objective features were that the offence was extremely grave; the motive seemed to have been trivial, at most a grossly misplaced loyalty to a friend and that the Court would find that when the assault commenced there was an intention to inflict grievous bodily harm followed by a loss of control but that the Court would not find beyond a reasonable doubt the offender had formed an intention to kill.

20 Senior counsel for the offender submitted that the subjective features were primarily the plea of guilty, a degree of remorse or at least the acceptance of responsibility; that the offence was out of character in the absence of a record for violence; and that there were grounds for optimism that the offender’s lifestyle would change for the better as a result of the imprisonment, the reconnection of contact with his family and assistance which was now available to him.

21 The offender, when arrested, admitted to police that he had killed the deceased. However he did not enter a plea of guilty at the first opportunity and was committed for trial. On 2 December 2005 when first arraigned he pleaded not guilty and his trial was listed to commence on 1 May 2006. On 14 February 2006 the Crown was informed the offender intended to withdraw his plea and enter a plea of guilty. This occurred on 3 March 2006.

22 Senior counsel for the offender submitted that the utilitarian value of the plea should be assessed at or about 25%. This submission appears to be supported by the Crown.

23 The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10 – 25% discount on sentence. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. There are two circumstances which will generally affect the appropriate level of discount in a particular case namely:

(i) The time at which a plea is entered. A plea entered at committal has more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial; and
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea – R v Thompson (2000) 49 NSWLR 383 [152] – [154] and [160].

24 The plea of guilty was not entered at the earliest opportunity nor was the case one of such complexity as to justify a significantly higher utilitarian value than otherwise would have been appropriate. I have had regard to the various matters advanced by senior counsel for the offender in support of the appropriateness of a 25% discount. However in my opinion the appropriate discount for the utilitarian value of the plea is 20%.

25 I accept there is an element of remorse now present and that the offence is out of character in the absence of a record of violence. Whether the offender will take advantage of opportunities afforded him by his imprisonment will depend upon his attitude which at this time, in my opinion, cannot be predicted with any degree of confidence.

26 Senior counsel for the offender has submitted there are grounds for finding special circumstances in that the offender will be required for the first time to serve a lengthy period of imprisonment, he has not been convicted of an offence of violence before and there will be a huge adjustment required of him upon his return to the community.

27 I have given consideration to whether I should make a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as to justify a departure from the statutory proportion between the balance of the term of the sentence and the non parole period. There will undoubtedly be a large adjustment required of the offender upon his return to the community. It will be necessary for him to have the benefit of supervision upon his release from custody with a view to ensuring that he does not lapse back into alcohol and drug abuse. However, the sentence which I feel it necessary to impose is such that the application of the statutory ratio will produce an adequate period under supervision. I am not persuaded that special circumstances are established in this case.

28 The maximum penalty for murder is life imprisonment (Crimes Act 1900 s 19A(1)). It was submitted for the offender, and accepted by the Crown, that this was not a case where it would be appropriate to impose a life sentence. I agree.

29 The offence occurred after the introduction of the standard non parole period provisions contained in Division 1A of the Crimes (Sentencing Procedure) Act 1999. The table contained in that division provides a standard non parole period for murder of 20 years in the case of an offence in the middle of the range of objective seriousness - Crimes (Sentencing Procedure) Act 1999 s 54A.

30 The standard non parole period provided for in the table to Division 1A was intended to apply to sentences imposed after conviction following trial and not to sentences imposed where, as here, a plea of guilty has been entered, R v Way [2004] 60 NSWLR 168, R v Tobar [2004] NSWCCA 391 at [30]. However the role of the standard non parole period is that of a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors as well as any other subjective factor that may be present, including in particular the fact that the offender entered a plea of guilty – R v Way at [122].

31 Senior counsel for the offender submitted that the appropriate non parole period in the circumstances of this case would be 13 or 14 years with a parole period in the vicinity of 7 years thus producing a head sentence of about 20 years. He contended that had the standard non parole period had application, the matter would have fallen below the middle of the range of objective seriousness due to the state of mind of the offender and his intention being to inflict grievous bodily harm rather than to kill the deceased, his loss of control and the circumstances of his life.

32 Although the Crown commended to the Court the sentence proposed by senior counsel for the offender he said that had the standard non parole period had direct application the offence would have been at least in the middle of the range of objective seriousness.

33 I have taken into account the purposes of sentencing stated in the Crimes (Sentencing Procedure) Act 1999 s 3A and the statutory requirements of s 21A of that Act.

34 This matter involved an unprovoked and brutal attack upon a virtually defenceless person. Having regard to the seriousness of the offence and the subjective and mitigating factors raised and, using the standard non parole period as a reference point, I have concluded that the appropriate starting point is imprisonment for 25 years less the plea discount of 20%. I do not find any special circumstances such as would justify a variation of the statutory proportion between the non parole period and the period on parole. Accordingly the sentence will be imprisonment for a non parole period of 15 years with a balance of term of 5 years.

35 The offender has been in custody since 17 January 2005 in respect of this offence. I propose to backdate the commencement of the term of imprisonment to that date.

Orders

36 Glenn Allan Waters I sentence you to imprisonment for a non parole period of 15 years to commence on 17 January 2005 and expire on 16 January 2020 and to a balance of term of 5 years commencing on 17 January 2020 and expiring on 16 January 2025. The overall sentence accordingly is one of imprisonment for 20 years to date from 17 January 2005 and expire on 16 January 2025. The non parole period of 15 years is to date from 17 January 2005 and expire on 16 January 2020. The last mentioned date is the earliest date on which you will be eligible for release on parole.

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