R v Websdale

[2000] NSWSC 636

CITATION:	R v Websdale [2000] NSWSC 636
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC L19/97
HEARING DATE(S):	2 June 2000
JUDGMENT DATE:	6 July 2000
PARTIES :	Regina v Geoffrey Ian Websdale
JUDGMENT OF:	Studdert J

COUNSEL :	D. Frearson (Crown) H. Dhanji (Applicant)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Applicant)
LEGISLATION CITED:	Sentencing Act Crimes (Sentencing Procedure) Act Crimes Act
CASES CITED:	Veen v The Queen (No 1) (1979) 143 CLR 458 Veen v The Queen (No 2) (1988) 164 CLR 465 R v White [2000] NSWSC 555
DECISION:	See para 31

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

STUDDERT J

Thursday 6 July 2000

L19/97 APPLICATION OF GEOFFREY IAN WEBSDALE

JUDGMENT

1   HIS HONOUR: Geoffrey Ian Websdale made application dated 6 November 1997, expressed to be pursuant to s 13A of the Sentencing Act 1989, for an order determining minimum terms and additional terms for the life sentences I imposed upon him following his conviction for the murders of Karen Joyce Deacon and Ian Hutchinson.

2   When the application was heard by me on 2 June 2000, it was common ground that the application is governed by the Crimes (Sentencing Procedure) Act, 1999. Clause 21(1) under Schedule 2 Part 2 Division 4 provides:

“Any application under s 13A of the 1999 Act that had been made, but not determined, before the appointed date is to be determined in accordance with Schedule 1 to this Act.”

3   The “appointed date” is defined as the day upon which Part 4 of the Act commenced, and that date was 3 April 2000. Plainly then, since this application is now to be determined, the 1999 statute applies.

4 Clause 3(1)(a) of Schedule 1 to the Crimes (Sentencing Procedure) Act requires the Court, in considering this application, to have regard to all the circumstances surrounding the commission of the offences for which the sentences were imposed.

5   The applicant was born on 28 August 1969 so that he was only twenty years of age when he committed these crimes. The deceased were two of four victims of the applicant’s shooting spree, but the other two victims were fortunate enough to survive, although one of them was tragically rendered quadriplegic.

6   The crimes were committed on a property near Carrathool on 7 November 1989 and I refer to my remarks on sentence of 2 November 1990 where I recorded the objective facts:

“…the prisoner was working as an apprentice shearer in a shearing team then working at Oolambeyan Station some twenty-one kilometres south west of Carrathool. Also working on the property at the time were three of the victims of the events that occurred on that night: Karen Joyce Deacon, Deborah Lorraine Astill, and Daryl Alexander Lamb. The fourth victim was an acquaintance of Deborah Astill who had accompanied her back to her quarters at Oolambeyan after meeting her at the Carrathool hotel.
The deceased, Karen Deacon, and her roommate, Deborah Astill, shared a room at Oolambeyan to which they went on the night of 7 November 1989 with Daryl Lamb and Ian Hutchinson. Some time after dark at about 9.00 pm when Karen Deacon was lying on one bed with Daryl Lamb and Deborah Astill was on the other bed with Ian Hutchinson the prisoner came to the room armed with a M1 30 calibre semi-automatic rifle. He kicked the door open, stood in the doorway and started shooting.
He fired, firstly, at the victims Karen Deacon and Daryl Lamb and then turned his attention to the other occupants of the room. One of the survivors, Deborah Astill, described how she was shot in the arm and it transpired she was also shot in the back as she fled from the room. The remaining survivor, Daryl Lamb, described how he was shot and rolled on the floor. After he was shot he had heard further shots within the room.
The deceased, Karen Deacon, was found lying on one bed. She had been shot and the bullet that caused her fatal injuries was proved to have entered her left arm where it shattered into at least three fragments. These passed through the arm entering her face and head where a fragment damaged the jugular vein and she bled to death.
The deceased Ian Hutchinson tried to make his escape through the window of the room and his body was found lying on the grass below the window. The post mortem examination revealed he had been shot twice: once from behind when he was crouched down and again when he was upright. He too died from blood loss when one of the two bullets that entered his body passed through his chest, inter alia, causing heart damage.
Seven fired 30 calibre cartridge cases were found in the room and another two cartridges not fired. Outside the room near the body of the deceased Ian Hutchinson, were found three fired 30 calibre cartridge cases and the evidence established that when the accused had fired the shots inside the room he left the hut then firing back through the window at Deborah Astill as she sought to make her escape from the room.”

7   When sentencing the applicant I described his behaviour as a savage and senseless outburst of violence. The applicant did not know the deceased Ian Hutchinson; Daryl Lamb was supposed to be a friend; and the young women were work companions, but it would seem that the applicant had been taunted by these women. He had been called “two stroke”, which he took to be a reference to his tendency to premature ejaculation. However, I said when sentencing the applicant such taunting and provocative behaviour as the applicant complained of could not have explained his outburst of violence.

8   The applicant was quickly apprehended after the commission of his crimes, and in the course of his interview by police on 8 November 1989 he made responses which I set out in my remarks on sentence and which I again record here:

“31. Do you agree that you then told the other Police Officer who was present ‘I knew what I was doing while it was happening. I couldn’t stop. I was really only after one person.’

A. Yeh, but not in that order I dont think. It was more like I was only after one person then I couldnt stop.”

“47. Will you now tell me how these incidents came to happen?

A. Hate for Karen, a bit of jealousy involved and a lot of pressure from other things and the hatred of cheap whores.

48. When you say hate for Karen, do you mean Karen DEACON?

A. Yes.

49. How long have you known her?

A. Seven months round about.

50. Can you tell me about the hatred you have for her?

A. Being specific she appears to me to have a good way of wrecking other peoples lives. Shes always put me down, always being one better than me. And because of her I left Wayne Ragless’s contract team. When I was working for him she was working for him also. It got too much for me when I found out that she was coniving with the contractor who was married with two beautiful kids and going out with a mate of mine. This happened when we were working for Ragless. So I left and joined up with the crew at OOLAMBEYAN, so I could concentrate on my career. I have been working with this crew for about two months and since we started that shed about three weeks ago Karen started to work for them too and I didnt like it at all. I tried to get by but my temper got the best of me most times until I tried my hardest to see through in doing so I went to Rushworth in Victoria with Karen DEACON and Debbie Astill, I just went down for a weekend with them and discovered that there was yet another bloke to wreck.

51. What happened after that?

A. I turned a blind eye to it until last night.

52. Do you want to tell me what happened last night?

A. Sitting in my room brewing over the position I was in and what she had done to people. It got so bad that the thought of grabbing a gun and getting her out of my life was too great.

53. What happened then?

A. I went to Daryl LAMBS room grabbed his gun, the ammunition, went back to my room and packed my bag and put my coat on and my boots then went down to Lightning BURGESS’S room and grabbed his 22 ammunition the belt and the knife and started off towards the jackeroos quarters.

54. What happened then?

A. I spent some time contemplating what I was going to do when I got into the room, I kicked the door in, I saw Karen on the bed with Daryl LAMB. Things started going fast my mind raced I thought if its good enough for her its good enough for him and then I turned and saw Debbie in bed with another bloke. Debbie already had a boyfriend so in a matter of seconds I had pulled the trigger shooting all four of them. Then I ran into the darkness and the cover of the pine trees sitting thinking.”

Later in the record of interview he told the police he had had his hatred for the deceased, Karen Deacon, for about four months. He freely admitted to the police that he intended to kill Karen:

“68. When you aimed the rifle at Karen DEACON and fired it what did you want to do to her?

A. Kill her.

69. Do you recall how she was lying in bed?

A. No she had the blankets over her.

70. When you aimed the firearm at Daryl and fired it what did you want to do to him?

A. I didnt want to kill him I wanted to hurt him.

71. What part of Daryls body did you aim the fire arm at?

A. I did not aim I just held it and pulled the trigger.

72. What about the person known to you as Ian, what part of the body did you aim at on him?

A. I just aimed it at him and pulled the trigger.

73. What about Debbie?

A. I just wanted to hurt her the same.

74. How many shots did you fire at each of these people?

A. I cant recall I just kept firing.

75. Did you just keep firing at the four of them?

A. I concentrated more on Karen than the others. Then I panicked and just kept firing at them all.

76. Why did you go outside and fire three further shots into the bedroom?

A. I dont really know. I panicked.

77. What part of the bedroom did you aim those shots at?

A. Through the window, Ian might have been hit as he climbed out the window when I was in the bedroom. Ian was lying outside the ground near the window and then I seen Debbie running to the bedroom door screaming so I put the gun in the window and proceeded to finish the rest of the rounds, I just fired two or three shots left.

78. When you aimed through the window at the bedroom were you aiming it at Debbie when she ran out the bedroom door?

A. I was aiming it in that direction.

79. Why were you doing that?

A. Anger, I was just angry, the boil burst.

80. Did you aim at Ian when he was climbing out the window and shooting at him?

A. Yes reflex action.

81. Did you think you would kill by firing at him when he went out the window?

A. I dont know I just thought how dare you and I was thinking of Karen and the others and how cheap the situation was at the time.

82. What type of firearm did you use when you shot these people?

A. An M1, its Daryl LAMBS gun.”

9   When sentencing the applicant, I accepted the account given to the police as a reliable account of what the applicant did and the circumstances in which he acted. I was satisfied beyond reasonable doubt that the applicant fired deliberately at the deceased.

10 The issue of provocation and the defence of diminished responsibility arose for the consideration of the jury, but the jury did not find that the applicant acted under provocation and the defence of diminished responsibility was rejected. I did not find for the purposes of the relevant inquiry under s 19 of the Crimes Act that the culpability of the applicant was significantly diminished by mitigating circumstances.

11   Objectively, the criminality of the applicant in committing the two murders to which the present application relates has to be assessed to be extremely grave.

12   The applicant was before the events of 7 November 1989 a person with no criminal record. I found that he was a person of previously unblemished character who came from a highly respected family in the Bairnsdale area of Victoria. His father enjoyed the reputation of being a champion shearer and the applicant enjoyed the support of his parents. He left school in Year 11 and commenced an apprenticeship in panel beating before taking up work as a shearer, in which work he appeared to be progressing quite well before the shootings.

13   On 2 November 1990 I sentenced the applicant to penal servitude for life for each of the crimes of murder. In respect of the crime of wounding with intent to murder Daryl Alexander Lamb, I sentenced the applicant to imprisonment for a term of ten years, and in respect of the crime of maliciously wounding Deborah Lorraine Astill with intent thereby to do grievous bodily harm, I sentenced the applicant to a term of imprisonment of five years. I directed that all sentences be served concurrently and that they should date from 8 November 1989.

14   In considering this application I must have regard to the reports on the applicant from the Serious Offenders’ Review Council which have become available since he was sentenced. The first of these reports is dated 9 June 1998, by which time the applicant had been in custody for some eight years seven months. The applicant served time at Long Bay, Lithgow and then Grafton Correctional Centres. The first report disclosed that the applicant had been generally well behaved in custody. Before his transfer to Grafton Correctional Centre in March 1998 a Visiting Committee interviewed him at Lithgow Correctional Centre. It noted excellent reports and that the applicant was having regular contact with the psychologist and the welfare officer. Following that assessment the applicant was reduced to a B classification and transferred to Grafton.

15   A later report of the Serious Offenders’ Review Council dated 9 May 2000 addresses the period that the applicant has been in Grafton Correctional Centre since March 1998. Reports on his conduct there have been consistently favourable.

16   A psychological appraisal has been undertaken by Ms Clifford and her detailed report of 16 May 2000 has been placed before the Court. Ms Clifford had available to her the reports of the experts whose evidence was before me in 1990, namely Dr Barclay, Dr Walker, Dr Jolly and Dr Lucire and her summary of their views is useful:

“Dr Barclay saw no evidence that indicated a diagnosable psychiatric disorder, Dr Walker stated Geoffrey suffered from a highly disturbed mental state with a paranoid component for years prior to the crime. Dr Jolly found him to be emotionally disturbed. Dr Lucire assessed reactive depression with an overlay of anxiety and obsessional pre-occupation.”

17   I accept that the applicant was sexually abused by a teacher in his school days and that this had an adverse influence in his psychological development. Ms Clifford considered what had motivated the applicant’s criminal behaviour and wrote:

“It seems possible that many factors were the motivation for this crime and perhaps it was a juxtaposition of all that had gone before, his moral upbringing, his vulnerability to criticism, his horror at being laughed at, his values, his relationships with women, his sexual identity, his longing for nurturing, his desire to be accepted, his alcohol and marijuana consumption and his paranoia. It seems that all of these factors came to a head at this point in time. In Dr Jolly’s report Geoffrey explained ‘I was angry and the boil burst’ and recently he stated that, he felt that ‘they were no longer a problem’, because he’d ripped out a page of life’. It’s as if he was trying to wipe away the past and start again. Given the inconsistency in the test profiles and his reactions to belittlement it is unclear how he might react in similar situations.”

18   Ms Clifford concluded her report:

“From the information gained and reading the files there is strong evidence to suggest that Geoffrey was emotionally distressed at the time of the crime. Whether he will be emotionally disturbed to the same degree at another time it is difficult to determine. However the traits that surface when this inmate is under psychological stress and his values and moral standards are affronted seem to make this inmate very vulnerable. As stated previously these are hostility, instability, immaturity and self-centeredness, paranoia and hopelessness. Geoffrey states that he feels most angry when his rights are violated or when he is frustrated or criticized. However he generally does not lose his temper, he turns the anger inwards. As stated he is making every attempt to change his mode of dealing with anger. I have no doubt that he will undertake this task with zeal and courage. However, his basic self worth seems so low that whenever he is placed under psychological stress his emotional being seems to be challenged to such an extent that his psychological survival is at stake. For this inmate, emotions in general are an issue. Geoffrey presented to me on interview as somewhat dispassionate, even when discussing the deaths of the victims. It is obvious that either he has learned to hide his emotions or that he doesn’t recognize them. The PAI, a self report conducted in 2000 recorded that he does feel, for it showed that after discussing his crime he was so distressed that he felt suicidal. However, is it that he has difficulty in showing his emotions and that he turns them inwards or is it that he thinks only of his own trauma. On the positive side, Geoffrey has a stoic quality and seems to face his traumas with courage and he has come a long way in personal development. He is now mature enough to say that the crime was his fault, he is learning to become his own person and make his own decisions and to deal with anger as it arises. He presents as motivated to deal with the many psychological issues that have surfaced since our discussions began. It is hoped that in time he will come to realise his self worth and will therefore be less psychologically vulnerable to the many internal and external pressures of life.”

19   Dr Walker made a recent psychological assessment on 14 July 1999 pursuant to which the following conclusion was expressed:

“Mr Websdale was assessed in July 1999 and that assessment showed no evidence of psychiatric disorder. As reflected in documentation from the SORC report of 1998, Mr Websdale has matured in prison from a confused, distressed and immature young man to a sensible, compassionate and responsible adult. While he has had the occasional disagreement with other inmates, I understand that there has been no evidence of abnormal dissociation and no evidence of homicidal anger/violence since the tragic shootings of 1989. At the time of the shootings, Mr Websdale, still at the end of adolescence, had not come to terms with the sexual abuse and later ridicule suffered in early high school years, was not aware that he was intelligent and was using cannabis regularly, amphetamines sporadically and binge drinking. I have observed that binge drinking in heavy cannabis users can result in dissociative alterations in consciousness with resulting distortion of reality and vividness of recall of ensuring violence. This is different in origin from a spontaneous dissociative disorder. I believe that this distinction is very important for estimating future risk in an offender. Mr Websdale has not used illegal drugs in prison, is married and has a son. His behaviour in prison has demonstrated consistent motivation to understand and improve himself and to help others. He still needs to be desensitized to his over-reacting when ridiculed or mocked and this should be a focus for further group or individual treatment by a psychologist. It can be added, however, that few of us react well to ridicule.
It is my opinion that Mr Websdale has a good prognosis for later rejoining the community as a law abiding and productive man.

20   It is to be observed that Dr Walker appears to have understood that the applicant was a heavy user of drugs other than alcohol. The applicant acknowledged in his evidence on this application that he regarded himself as an alcoholic, and used drink to excess, but he said he was not a substantial user of cannabis, and I see no reason to disbelieve him about this. Mr Dhanji informed the Court that the applicant does not embrace the possible explanation advanced by Dr Walker for these crimes to the effect that the heavy abuse of alcohol mixed with large amounts of cannabis could have led to some abnormal dissociative condition. Nor do I find this to be a likely explanation for the applicant’s criminal behaviour. Nevertheless I am influenced by the opinion ultimately reached by Dr Walker as to the applicant’s prognosis.

21   Since he has been in prison the applicant has earned a number of statements of attainment in a variety of areas that reflect status, inter alia, in music, art and ceramics. Photos of artwork, reflective of talent in this area, were introduced into evidence. The applicant is presently pursuing studies in horticulture. He married in 1995 and there is a child of that union. Recently the applicant and his wife have decided to “separate” but the applicant entertains some hope of a reconciliation if and when his future becomes more certain.

22   The applicant gave evidence to support his application. He does not now seek to attribute what he did solely to his childhood sexual abuse nor does he blame his criminality on drugs or alcohol. Indeed, it is not clear that the applicant appreciates why he embarked on his criminal activity. He agreed in cross examination that he was “struggling” to find an explanation as to why he did what he did. The absence of a clear explanation for these crimes I regard as a worrying feature of this case when considering the applicant’s rehabilitation prospects and the safety of the community. I am unable to determine precisely why the applicant committed these crimes.

23   The applicant does recognise a need to address his anger and is desirous of pursuing a violence prevention course within the prison system. There will be offered to the applicant what was described in evidence as an anger management course to be pursued in four stages, and this course will probably become available by the end of this year. The course will take approximately twelve months, divided into four stages. I accept that the applicant is genuine in his wish to undertake the course and it is to be hoped that he will benefit from it.

24   I accept that the applicant is contrite about these crimes.

25   Grave as these crimes were, the Crown does not submit and I do not consider that the applicant should be required to remain in prison for the rest of his life. Indeed, I am persuaded that it is appropriate to set a specified term for these sentences, together with a non parole period, but in proceeding to do so I must have regard to considerations of deterrence and retribution, as well as the protection of the community. In considering the last of these important matters, I must not increase the sentence beyond what is proportionate to these crimes, simply to extend the period of protection of the community from the risk that the applicant might re-offend: see Veen v The Queen (No. 1) (1979) 143 CLR 458 at 467-468 and 495; and Veen v The Queen (No. 2) (1988) 164 CLR 465 at 472.

26   In the period remaining before the applicant becomes eligible for release upon parole, he should undergo further counselling against alcohol and drug abuse, and he must undertake the violence prevention course identified in her evidence by Ms Cullen, the Acting Secretary of the Serious Offenders’ Review Council.

27   Mr Dhanji provided, in the course of his submissions, a table of sentences on applications under s 13A of the Sentencing Act 1989 relating to applicants who had committed multiple murders. I have considered that table. Indeed, I have considered it very closely, but of course each case is to be determined according to its own particular set of facts, giving due weight to the relevant objective and subjective features. The time served to date has not been served exclusively for these two murders. The prisoner has been serving sentences referable to the victims who survived as well. However, I must, and I do, have regard to the principle of totality.

28   Because of the gravity of these crimes, and notwithstanding those favourable subjective features I have reviewed, I consider that I must set a lengthy specified term. I consider that I should set a term of imprisonment of twenty-five years. The sentences should be backdated to 8 November 1989 since which date the applicant has been in custody.

29   It is appropriate that I fix a non parole period. Recently in R v White [2000] NSWSC 555 I had occasion to remark upon the language of cl 5(3) of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999. It provides:

“The term of the sentence, and any non parole period, are to be taken to have been set under section 44, but are not required to comply with the other provisions of Division 1 of Part 4.”

30   As in White, there was no argument as to how cl 5(3) should be construed, but again, as in White, on the view I take of this application, it is unnecessary to decide whether I am required, pursuant to s 44(2) of the statute, to set a non parole period “not less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less.” As in White, I am prepared to assume, without deciding, that s 44(2) does not fetter the approach that I take to my present task. However, in my opinion, acting on that assumption, I nevertheless consider that I ought to set a non parole period which is indeed three-quarters of the specified term. This is because I consider that the applicant should not become eligible for release upon parole any earlier than the expiration of the non parole period I am about to set. Whilst recognising that this applicant will need a considerable period of supervision when eventually he is released upon parole, the full term of the sentence which I otherwise consider as appropriate to the applicant’s crimes will provide sufficient opportunity to address the eventual supervisory need.

31   I now pass sentence as follows: in respect of each of the crimes of murder I sentence the applicant to imprisonment for twenty-five years, with the sentences to be served concurrently and to date from 8 November 1989 and to expire on 7 November 2014. In respect of each sentence I fix a non parole period of eighteen years nine months, and I therefore specify 7 August 2008 as the first date upon which the applicant will become eligible for release on parole.

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Last Modified: 09/26/2000