R v Westbrook
[2011] VSC 683
•14 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 005 of 2011
| THE QUEEN |
| v |
| SAMUEL MICHAEL WESTBROOK |
---
JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 21, 22, 23, 24, 25, 28, 29, 30 November 2011 | |
DATE OF SENTENCE: | 14 December 2011 | |
CASE MAY BE CITED AS: | R v Westbrook | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 683 | |
---
Plea: Murder (reckless); reckless endangerment of life.
Sentence: 19 years murder; 4 years reckless endangerment - 2 years cumulative.
Total sentence imposed 21 years imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Elston S.C. | Office of Public Prosecution |
| For the Accused | Mr J Desmond | Peter Baker & Associates |
HER HONOUR:
Samuel Michael Westbrook you have pleaded guilty to one count of murder of Peter Westbrook, your uncle, which occurred on 23 May 2010. You have further pleaded guilty to one count of reckless conduct endangering life on the same occasion in relation to placing Alana Westbrook in danger of death by discharging a firearm in her direction. The maximum penalty for murder is life imprisonment and the maximum penalty for reckless endangerment of life is 10 years imprisonment.
I have received an agreed summary of prosecution opening which is Exhibit 1 on the plea. The circumstances as outlined and agreed by both parties in that document are, and I quote:
2.The case against the accused man is that he murdered Peter James Westbrook and recklessly endangered the life of Alana Westbrook. Peter Westbrook died at the scene as a result of the accused firing a single gunshot hitting the deceased in his chest as the deceased stood at the front door of his house at 12 Dodd Street.
3.Immediately after shooting Peter Westbrook, the accused recklessly endangered the life of Alana Westbrook when he turned, aimed the shotgun and fired after her, missing her and striking the house as she ran back through the front door of her house at 14 Dodd Street, Maryborough.
Whilst that is a quite simple statements of what occurred on the evening, there is unsurprisingly a lengthy background to the offending. At the time that you committed these offences you were on bail in relation to charges arising out of what has been described by all as “a run through” or as it is known in the law an aggravated burglary of the house that Alana Westbrook shared with Jack Forder.
Those offences occurred around December of 2009. You were arrested and charged with the offences and remanded in custody and bailed in respect of the offences, as I understand it, sometime in January of 2010. It would appear that it related in part to an allegation that Alana Westbrook or Jack Forder had been involved in trying to run your ex-girlfriend off the road as she was driving near her home. The result was that your ex-girlfriend, you and some other people including her father, decided to attend at the premises with some sort of pay-back to occur.
That was the last occasion on which you had any dealings, in a direct manner with Alana Westbrook or Jack Forder, prior to this incident occurring, and there was undoubtedly a deal of enmity particularly between Mr Forder and yourself. You have pleaded guilty to the aggravated burglary charge as I understand it, and are currently awaiting sentence. You will not be punished in any way for that matter but the fact that you were on bail for that offending at the time of the commission of this offence is of course a relevant factor.
On this day both you and Jack Forder behaved disgracefully towards each other, a matter which he acknowledged in his evidence, in that you sent continual text messages back and forth, threatening harm to each other, used abusive and offensive language and behaved in an infantile manner. This went on over a period of some hours. There is a record of the text messages between you and Jack Forder – they reflect no credit upon either of you. You were 23 years of age and clearly should have known better.
You taunted each other, talked about weapons, talked about meeting for a fight and it appeared to be predominantly text talk. At one point Mr Forder left his home in Dodd Street and drove past you at a hotel and you say that offensive things were yelled from the car, however the vehicle didn’t stop, no one got out of the vehicle and the incident should have ended there.
The background to the offending on that day is that Alana Westbrook had travelled to Melbourne to attend an AFL match at the MCG. Her partner, Jack Forder, had stayed at 14 Dodd Street and was supposed to be looking after Ms Westbrook’s daughter, although it would appear at times she was being looked after by Ms Westbrook’s father, the deceased Peter Westbrook.
During that day, being Saturday 22 May 2010, you attended a local football match, you were drinking at the ground and continued drinking later in the clubrooms. I heard evidence from a number of people in relation to your consumption of alcohol at that time and the statements you made to various people. You were clearly antagonistic; some people described you as drunk, some as affected by alcohol and others as not being particularly affected. The descriptions varied, but most of those who dealt with you in person did not describe you as being particularly affected by alcohol.
Whilst at the clubrooms you were heard to say, on meeting David Forder, the father of Jack Forder, that you ‘wanted to shoot his son Jack’. You were clearly antagonistic and it would appear angry. Your comments about wanting to shoot Jack Forder were heard by many witnesses, both at the clubrooms and later that night.
There was a reference in the Crown agreed summary of prosecution opening that a witness by the name of David Comber was present and he recalled you saying that you wanted to shoot Peter Westbrook. At the committal, Mr Comber agreed during cross-examination that he was not entirely certain as to what you had said and no other person remembered this being said. Accordingly, I will not act upon the evidence of Mr Comber in his statement that you said that you wished to shoot Peter Westbrook, and although it is contained in the agreed statement of fact, I make no findings adverse to you from those allegations.
You stayed at the clubrooms after the game for some time, then you left the premises and went to the Park Hotel in company with a man named Michael Coward, who gave evidence in your trial. He said that the two of your continued drinking at the hotel, that he was shouting you as you had insufficient money. It appears that at some stage during the evening you commenced to send text messages to Jack Forder via his mobile phone.
Your friend Michael Coward left you at the Park Hotel and he moved on to the Cambrian Hotel without you. You left the Park Hotel, at some point and went to the house of your friend Jamie Garner, who lived with his grandmother, Judith Garner, both of whom gave evidence before me. Ms Judith Garner was clearly a witness who did not wish to say anything against you, but the evidence from both of them was that you had sought from them a gun with which you could shoot Jack Forder, having told them of some of the problems you were having and that you wished to use a gun to shoot him. They told you to go home and to forget about it, to just go home. You left those premises and instead went to the Cambrian Hotel and started drinking with another friend of yours by the name of Dean Raeburn. The text messages between you and Jack Forder continued. At one point whilst at the Cambrian Hotel with Dean Raeburn you both went outside to have a cigarette. Whilst you were outside with Mr Raeburn, a car drove past the hotel whilst you and Mr Raeburn were on the footpath, the car was on the opposite side of the road and as it drove past it appeared that the occupants of the car may have yelled or looked in your direction.
You told Raeburn that you believed the occupants were in fact Jack Forder and Alana Westbrook. Clearly Ms Westbrook was not the occupant as she was at that time in Melbourne. You both returned inside the hotel and continued drinking your beers. At some later stage in the hotel you received yet another text message and you left the hotel complaining loudly and strongly about Alana and Jack. You left the hotel premises, possibly to have a fight with Jack Forder, and nearby was a police vehicle. The police spoke firstly to Mr Raeburn and then to you. There were two police officers being Carless and Harrison, and Raeburn gave his details to them and left and you then spoke to the police who described you as being in an agitated state initially when you spoke to them.
You complained to those officers about Jack Forder and Alana Westbrook, and particularly about the text messages that were flowing between you and Forder. Officer Carless described you as calming down as time went on. You attempted to show her particular text messages, she was unable to read them without her reading glasses and you read some of the messages out aloud to her. She asked if you wished to make a formal complaint, and advised you of the processes including being able to initiate intervention proceedings. You declined to do any of that but you did in the process calm down. You discussed with Mr Harrison the fact that the two of you had played football together in the past, some eight or so years earlier, and indicated that you were seeking a transfer to a particular local football club in the area. Neither officer thought that you were adversely affected by alcohol, certainly not in such a condition that you would be described as drunk and disorderly, or anything that would warrant them arresting you for an alcohol related offence, and within approximately four minutes the police had moved on. The meeting with the police officers occurred at approximately 10.21 pm.
Alana Westbrook had been given the number, from which you were texting, by Jack Forder whilst she was still in Melbourne at the Southern Cross Station waiting for a train home. At approximately 10.42 pm she called you from a pay phone, and she recognised your voice. You accused her of being in the vehicle and driving past you at Maryborough, abused her and said you would blow her and her father’s house up. After Ms Westbrook had returned home on the train, she, together with Mr Forder, went to the police station and laid a complaint about your threats to her and her father. This was approximately 2 am in the morning of Sunday, 23 May.
After you had spoken to Ms Westbrook, you had a number of phone messages between yourself and a friend of yours, Bradley Thompson. There were a large number of messages back and forth over a period of time, and during those messages you stated that you were going to steal a car and a gun to kill Jack Forder. Bradley Thompson attempted to talk you out of doing that, but your reply to his text was ‘no, over it everyone dies tonight’. All of the language relating to the text messages are written in what is described as ‘text talk’ an example being that ‘tonight’ is spelt ‘2nite’.
By 11.30 pm on 22 May you had posted on your face book profile – it would appear from your mobile phone – the statement ‘Jack dies tonight so does anyone in Dodd Street that walks outside’. There were other attempts to dissuade you from your activities but at 12.29 am you posted this ‘too late stole car all ready he dies now’. At a later stage, the time of which isn’t known, you went to the property of Neil Ford in Timor Road, Maryborough. You had previously arranged to go spotlight shooting with Mr Ford and you knew he would have a shotgun in the motor vehicle. You stole the unlocked motor car in which he had already placed a Baikal 12 gauge single barrel shotgun, a rifle and a large quantity of ammunition. You had driven this car on many previous occasions. When Mr Ford noticed the car was missing in the morning he immediately rang your mother on the basis that he believed you would have taken the car, but, unfortunately, too late to prevent this tragedy.
The shotgun was a single barrel shotgun. Each round required the barrel to be broken, the spent cartridge removed and a new one inserted. It does not require cocking prior to firing; it is fired by pulling the trigger once, but it requires normal pressure on the trigger to discharge the firearm. Having stolen this vehicle, you then drove to the vicinity of Dodd Street.
As indicated the texting had continued throughout the evening between yourself and Jack Forder, but without any further type of confrontation until approximately 4 am..
Mr Forder and Ms Westbrook had returned to 14 Dodd Street, some time after 2.00am, having made the complaint to the police and were sitting in the loungeroom watching television. Just after 4 am there was a tapping on the front window. Ms Westbrook believed it to be her cat seeking entry to the house and she went to the front door, switched on the front verandah light and walked out, as she did so, you were standing on the lawn. You were wearing an ammunition belt and pointing the shotgun at her. You were in close proximity, only a matter of metres away. You asked Ms Westbrook, ‘where’s Jack’ and she replied that he wasn’t home. You said that you didn’t believe her and asked her again. She yelled out to her father, Peter Westbrook, who lived in the adjacent house ‘Sam’s got a gun’.
Peter Westbrook had been aware of the trouble that had been going on in terms of the texting earlier that evening and was awake at that time. He opened his front door fairly quickly and stepped into the doorway. It would appear that you have fired a single shot at Peter Westbrook, hitting him in the chest and causing him to collapse. It is hard to say precisely where you were when you fired this shot, but it would appear that you were between 10 to 12 metres away from him at the time of the firing. That could be consistent with you being in the position you were when Ms Westbrook came out onto the porch, or being in the position she saw you in after the shot, which was down towards the end of the driveway near the street. It is irrelevant to the issue of sentence, because the single shot hit Peter Westbrook in the chest and he died at the scene.
You then reloaded the single shotgun and pointed it towards the position where Ms Westbrook had been, she turned and ran inside. You fired that shot in her direction, you reloaded and fired again. I am unable to say with certainty exactly where Ms Westbrook was at the time that you fired both shots but I am satisfied beyond a reasonable doubt, that at the time you fired the first shot in the direction of Ms Westbrook she had only just made it inside the house. In respect of the second shot fired in the direction of her house she was somewhere towards the back or the rear of her house, further than that I cannot say.
The damage caused by those two shots included two shattered porch windows immediately in front of the security and front doors, damage to the security screen door and the brick wall to which it is attached and the brick wall behind. Ms Westbrook, fortunately, did not sustain any injury as a result of those gunshots. Equally Mr Forder did not receive any injuries as he had remained in the house for the duration of this episode.
You left the scene and when the police and ambulance arrived a short time after being called at 4.15, Peter Westbrook was already dead. Three fired cartridges were found and the car that you’d stolen was nearby. You fled into the nearby bush and scrub and continued posting messages on your face book and texting different people, confirming what you had done, that is, that you had killed your uncle Peter. I note that there was not a great deal of remorse expressed in the statements that you posted either on face book or in text messages at that time.
You later, after contact with your uncle William Griner, attended at Griner’s house and were ultimately arrested. You were interviewed by the police at Ballarat on 24 May 2010, that being the Monday. You confirmed about drinking at the local football Club, and the Park and Cambrian Hotels and that there had been a series of messages exchanged between Jack Forder and yourself throughout that time. You told the police that you believed that Mr Forder, together with Ms Westbrook, had in fact been verbally abusive to you outside the Cambrian Hotel when they drove past – which was incorrect. You told the police you stole the car, the shotgun, the ammunition and then went to Dodd Street, and that you had the intention of confronting Jack Forder whilst you were armed with the shotgun and a number of rounds of ammunition. You told them that when you arrived you heard voices inside and you tapped on the window. When Ms Westbrook came out you asked her to send Forder out. In the interview you denied pointing the gun at her, but I am satisfied beyond reasonable doubt that you did point the gun at her as she described. You told the police that you heard Alana call out to her father and that you turned and saw Peter Westbrook’s door open and you said, ‘I guess I just turned round and was scared and it went off.’ Further at question 290 you were asked, ‘You heard the door open, did you see anyone?’ To which you replied, ‘No I just heard some – I heard a creak and then – yeah.’ Question 291: ‘So what did you do?’ Answer: ‘I just turned that way and yeah just I think I just pulled the trigger. I didn’t really mean to, it was just – scared – of him or me.’ You were asked if you aimed the firearm at him and you said, ‘No well like I didn’t know anyone was there so I just, it was like it was a warning shot I guess, I just didn’t mean for it to happen.’ You admitted to the police that you reloaded twice and shot at what you described as being Alana’s front door or something or the bricks twice, then took off up the road.
The Crown have put this case on the basis that at the time you fired the shot that killed Peter Westbrook, you did so recklessly, in that you knew that it was more likely than not that when you fired the shot you would probably kill or cause really serious injury to someone, but you fired that shot anyway and killed Peter Westbrook. The same reckless intent applies to the count of recklessly endangering the life of Alana Westbrook by firing two shots into the house. That is a generous concession by the Crown, in the circumstances of this case, and one that mitigates your actions to a limited degree. I will give you the benefit of that limited mitigation.
In relation to the issue of alcohol, and your consumption of alcohol, I am satisfied beyond a reasonable doubt that whilst you may have had sufficient alcohol to make you more disinhibited than you may otherwise have been, you were not in any way so adversely affected that it impacted upon you in any legal sense.
There are a number of matter that I have considered in coming to this conclusion. First, the text messaging that has occurred between you and various people during that time, which demonstrates clear and responsive messages flowing to and from your mobile phone. The same in respect of your face book entries, together with your ability to, whilst using text speak, make it clear what it is that you are saying. Secondly, the evidence of the police officers who spoke to you at 10.21 in Maryborough - I accept what they had to say, which is confirmed in your record of interview in some detail. Thirdly, your actions in being able to rationally determine where you would find a gun, steal the car, drive the car, load the firearm, reload the firearm and abscond after the shooting. Fourthly, the evidence of what you say in your record of interview: first, as to the complete nature of your memory as to what occurred on this night, together with the information you provided to the police about the amount of alcohol you consumed over a long period of time. For all of those reasons, I am satisfied that whilst alcohol may have had a disinhibiting effect, it had no other real impact upon you, certainly not a mitigating impact.
In this case I have received six victim impact statements, being a victim impact statement from Peter Westbrook’s mother, father, daughter, two sisters and a brother. Peter Westbrook’s mother and father are of course your grandparents, and the agony of Peter’s death is surely compounded by the fact that you are the one who killed him. The same applies to your aunts, uncle and your cousin. These actions have totally shattered a family. I have no idea whether your mother is now alienated from the rest of her family, but I can imagine that the family has indeed been ripped apart with people taking sides, causing great loss of what was once a united family. That much is clear from the statements tendered in this court.
There is no doubt your uncle, Peter Westbrook, spent a great deal of time with his parents, he attended there for dinner on an almost nightly basis. He trained trotting horses and they all had a great deal of enjoyment from that activity. All of that is gone. His mother rarely leaves her bedroom now. It has impacted on their lives in every way possible. The same certainly applies to his daughter Alana. They lived next door. She clearly had a very close relationship with her father, as did her children. All of that is also lost. There is no grandfather for these young children. There is no father for Alana to go to for assistance, support, encouragement and love. His sisters and brother have also lost someone they care about immensely. Nothing this court does can replace Peter Westbrook. He was their son, their brother, their father and I would presume friend to many other people.
The court can sentence people to appropriate terms of imprisonment, but what it can never do is alleviate the suffering of those left behind. The expression that they have been given a life sentence is understood as they have lost the one that they love forever, as they would equally if that person had a heart attack or a stroke or similar. The difference is that there is someone who is responsible for that death, rather than a medical problem, and accordingly the loss can be directly attributed to the actions of another person. The only point is that the loss is still the loss of someone they loved, forever. No court can make that loss better and it is hoped that people understand that while they have been heard, and their grief and loss understood, the sentence imposed does not indicate the value of the life of the person who was lost. Every person’s life is priceless, they are loved and cared for by those close to them, and the sentence imposed is one that is dictated by factors set down by Parliament in the Sentencing Act, not by the value of the person who died.
I hope for all of those who grieve the loss of Peter Westbrook that they will honour his memory by being able one day to remember him with affection and that a time will come in which his memory brings a smile and a funny story about him, rather than an overwhelming grief at the circumstances of his death. Every one deserves to be remembered with love and smiles and particularly for his grandchildren as they grown to hear loving and happy memories of their grandfather.
You are now aged 24 having been born on 31 May 1987 you have some prior convictions of relevance, being that in July of 2009 you were convicted of possessing a controlled weapon without excuse, being a non-prohibited person in possession of an unregistered category A longarm and possessing a prohibited weapon without exemption or approval, together with a count of criminal damage with intent to damage or destroy, non-prohibited person possessing an unregistered longarm and unlicensed, one count of intentionally causing injury and one count of assault with a weapon. You were convicted and placed on a community based order for 18 months with conditions of $200 hours community service, assessment and treatment for alcohol and drug addiction or medical psychological or psychiatric treatment and to undergo assessment for programs to reduce re-offending.
At the time of the commission of this offence you were of course still on that community based order. In June of 2003 you were fined $200 for behaving in an offensive manner in a public place and in April of 2003 you were placed on a good behaviour bond in the Maryborough Children’s Court for using indecent language in a public place. You maintained that bond and it was dismissed.
The matters relating to the injury and assault with a weapon are all connected with your ex-partner, Angela, and your break-up.
I have been provided with a psychological court report by Deb Bennett, psychologist. This report was not prepared for this court but was prepared for the County Court in relation to your aggravated burglary charge, a matter for which you remain yet to be sentenced. Whilst I cannot and do not take into account the actions that constitute the charge of aggravated burglary, I do note that the victims of that crime are in fact Jack Forder and Alana Westbrook. Its real significance is that at the time of the commission of these offences for which you stand to be sentenced today you were on bail for that offence, having been released in January of 2010.
The report by Ms Bennett was prepared for that plea and I am somewhat surprised to note that Ms Bennett is a current serving, sworn police officer. It seems to me that as a serving police officer she may well be in serious conflict in terms of being a forensic psychologist interviewing people for assessment, treatment and preparation of court reports. The information she may receive is something that as a matter of ordinary rules may well result in conflict between her role as a detective and her role as a psychologist as well as many other problematic areas. However, having got the report I will utilise it, because I need to take into account factors that are personal to you when determining the appropriate penalty to be imposed in this case. They are to a large degree dealt with in the report that has been provided to the court. The fact that I consider Ms Bennett’s position somewhat incongruous will not impact adversely upon you in anyway, and I will rely upon the details provided in the report.
You were born in Maryborough and have lived there most of your life. Your parents, now aged approximately 50, lived in a de-facto relationship which lasted only until you were three months old and you have had almost no contact with your father from that time. You last saw him approximately four years ago. Your mother has re-partnered and you have a half-brother, Dillon, who is currently aged 10, being the son of your mother and her partner Dirk. You have an excellent relationship with both Dillon and your mother and you were residing at the family home with all of them and your stepfather at the time of this offending. You do not have such a good relationship with your stepfather but it has improved over the years.
You have two children to your ex-partner Angela - Nartarshka aged 4 and Nicholas aged 2. You informed Ms Bennett that you passed Year 10 at the age of 15 and that school was alright but that you hadn’t particularly enjoyed it. You did tell her that you were suspended a few times for fighting. You subsequently completed a further year in an adult education course, which was similar to secondary school and later you completed a further year of study in Ballarat which was similar to a VCE course. However, you left school as I understand it at the age of 15, and you appear to have no further formal qualifications beyond that time.
You were first employed as a labourer at a chaff mill and, from that time, you have had a variety of labouring jobs together with seasonal work. You worked as a panel beater during a time when you were residing in Ballarat but you were ultimately sacked from that job for a reason I cannot ascertain. When you were 18 years of age you enlisted in the army but you were discharged due to your self-harming behaviour approximately 45 days later, a matter to which I will refer shortly. You have, since approximately 2009, been unemployed due to lacking any specific qualifications together with the lack of job opportunity in your area.
You indicated to Ms Bennett that you were sexually abused when you were four or five years old on numerous occasions by a cousin who was like a big brother. You did not report those incidents to anyone. When you were eight years of age a male 10 year old cousin also sexually abused you and you claim that when you were 10 years of age your cousin Alana, who was then 13, behaved inappropriately with you in a simulated manner. You informed Ms Bennett that you think all of these incidents have had significant psychological impact upon you and that is why you have had suicide attempts. Ms Bennet does not appear to share that view.
You moved to Ballarat at the age of 16 with a girlfriend and her mother on the basis of trying to obtain a fresh start. After 18 months that relationship terminated and you met Angela, the mother of your two children, shortly before you enlisted in the army in 2005. They have been your major relationships. You have had almost no use of illicit drugs, having tried amphetamines once at the age of 15 and a very limited use of cannabis when very young, but it does appear that alcohol is a problem for you. You informed Ms Bennett that for the past five years you have consumed between six to eight stubbies of beer per night, first commencing using alcohol at the age of 12 and becoming really involved with it when you were about 16 years of age. You identified alcohol as a factor in your suicide attempts as well as your offending and described it this way:[1]
Drink, get drunk, get angry. Since I told people what happened - the alcohol doesn’t take care of it anymore and I just can’t do it anymore.
Telling people what happened is in reference to telling people about the sexual abuse suffered as a child.
[1]Page 4 of the Report.
During your community based order, you said that you did well for a period of time abstaining from alcohol for some three months but you relapsed, had a beer and just continued having beers from that time on. Your self-harming appears to be with the use of knives and cutting yourself. You have in fact severed a tendon in your arm which had to be surgically repaired and of course it was the reason for your discharge from the army.
You were not formally tested but Ms Bennett determined that you were of average intelligence and that you had no current suicidal ideation. Your first suicide attempt was at the age of 12 when you put a .22 rifle in your mouth and pulled the trigger but it didn’t discharge. This was apparently related to the birth of your younger brother, and your mother being ill as a result. You have a very strong relationship with your mother.
In relation to your army service, you lasted 45 days. You were given a psychiatric discharge because you had become increasingly depressed and anxious whilst in the service, as a result, you say, of recalling your childhood sexual abuse and you had scratched at your wrists repeatedly with a pin.
In early 2009, you were prescribed the antidepressant Zoloft, on which you remained for approximately a year, as a result of disclosing to a medical practitioner your childhood sexual abuse. Ms Bennett is of the view that, in relation to your self-harming incidents, they are predominantly impulsive and in response to relationship difficulties, a number having occurred in respect of your ex-girlfriend, Angela.
In November 2009, you were remanded to the Melbourne Assessment Prison for approximately two weeks for breaching your community based order and you were assessed and found not to be suffering from a mental illness. Your most recent prior convictions in relation to the weapons, criminal damage, causing injury etc all appear to relate to your relationship break-up with Angela. The criminal damage related to slashing the mesh on a window at Angela’s house and the assault charge related to Angela’s new boyfriend.
You told Ms Bennett that you had gone to Angela’s with a knife to kill yourself and in fact the boyfriend got ‘nicked’ during a scuffle between the two of you. The two weeks that you spent in custody for breaching your CBO occurred just prior to this offence. You had only been released one week at the time that you committed these offences.
You are hopeful that your time in prison will at least give you some skills that you can utilise later, upon your release into the community. You are optimistic about maintaining your relationship with your children and it would appear that you do continue to see them which is encouraging for both you and the children.
There is no verdins issue and no mental health issue according to this report, and I act upon that basis.
This is best described as an overwhelming case. You have made statements on face book and in text messages as to your views, opinions, intentions, plans, activities and reasons on the night and morning of the 22nd and 23rd. It was difficult to see a viable defence. Although you shot a person other than the one you initially came looking for, it is clear that a jury could have found quite easily that you intended to shoot and did shoot the person who was coming to the door.
Your prior convictions whilst of some relevance are not of great significance and, accordingly, will not figure largely in the sentencing task.
The issue of general deterrence and personal deterrence must figure largely. In relation to personal deterrence you were on a community based order, you had also been arrested, charged and bailed in respect of offences against these very people and you had been released from prison only one week prior to these offences for breaching a court order. Whilst you may not have killed the person you intended initially to kill, you had a murderous intent when you went to these premises. You specifically went and obtained a gun, you had to walk quite some distance to do so, you had many hours in which to cool down, become calm and rational, but that did not occur.
Your actions and these sentences should be a warning to all young people in the community that what you do and say on face book, text messaging and other social media, matters. The references that you hear constantly to bullying via the internet and other social media is frightening. The inability for people to turn off their face book or turn off their mobile phones if someone is harassing, bullying or goading them in some way, is extraordinary. We all have to take some responsibility for what we do with our lives. The fact that someone is goading or agitating for a fight via electronic means does not mean that you have to be any part of it. Whilst many people may use social media to remain in touch with friends and family, there needs to be an ability to be able to turn it off – treat the content only as words – and to stop it ruling your life. Here the use of social media has led to the death of this man and equally to your conviction for these extraordinarily serious crimes.
In this case you were the initial aggressor in terms of conflict. You contacted Jack Forder. You’d had a new mobile phone for approximately three months, the number appeared to be unknown to him, and he did not know who was sending him these messages on the night. But both of you really should be ashamed of what you did. You behaved like 12 year olds in the schoolyard – taunting and goading each other into sillier and sillier remarks. Unfortunately, one person is dead as a result of this and he wasn’t a person who was involved in your silly child-like games. Either of you could have turned your phones off. Either of you could have stopped the escalation of this nonsense. Jack Forder at least was in his home, obviously assuming that you were not coming to his house despite your earlier threats to attend.
But at 4 o’clock in the morning you decided you were going to escalate these text messages into a real life shootout with you being the only one armed. What you thought you were going to do by attending at those premises with a shotgun and a band of ammunition is something I am incapable of rationalising.
Your counsel submitted that this was an early plea of guilty to one count of murder and a plea of guilty to one count of reckless conduct endangering life. Initially, the defence offered the Crown a plea of guilty to manslaughter and reckless conduct endangering life, which was rejected. You ultimately made an offer to plead guilty to one count of murder, being reckless murder, and one count of reckless conduct endangering life, which was rejected. Mr Elston was then briefed on behalf of the Crown and at the directions hearing a week prior to the trial the Crown informed you that they would accept one count of reckless murder and one count of reckless conduct endangering life. That offer was not accepted and the trial proceeded.
Mr Desmond submitted that if he had been aware of the contents of the text messages on his client’s phone, which were revealed by a witness during the evidence then he would have encouraged you to plead guilty and the only reason the trial continued was the failure to bring those particular text messages to the attention of defence counsel. As I said during the plea, I cannot say what would have occurred, whether the trial would have proceeded or not proceeded if counsel for the defence had been aware of all text messages contained on his client’s phone. What I can say is that there was no procedural unfairness in how it came to light. Counsel and the instructing solicitors were served with a disc that contained a copy of all of the text messages of the accused. Whether the solicitor and counsel saw them or read them or interpreted them in any way is not a matter for me. They were served at the time of the balance of the hand-up brief being served and, accordingly, there cannot be any procedural unfairness as the documents and material were in the hands of the defence.
Mr Desmond submitted that I should treat this as though it was a plea entered at the earliest stage, prior to any trial commencing. That is not possible. The trial did commence, it ran for approximately a week. Whilst it is preferable that trials be resolved at the earliest possible stage, and the highest possible discount will usually attach to such an early plea, there is still a substantial period of credit that should be granted and demonstrated to an accused person if they are willing to plead guilty to the charges laid. I intend Mr Westbrook that you will receive a significant discount for pleading guilty to the offences but it will not be a discount of the same level as if you had pleaded guilty prior to any empanelment of a jury.
Taking into account all of the matters to which I have referred, including, but not limited to, your age, your personal circumstances, your plea of guilty, the stage at which it was made, your prior criminal history, the evidence in the case, together with the issues of totality, and the need to impose a just and appropriate sentence, I have determined that the sentence to be imposed for the count of murder is a sentence of 19 years imprisonment, the sentence for the count of recklessly endangering life is 4 years imprisonment, I direct that 2 years of the sentence imposed on charge 3, the charge of reckless endangerment, is to be served cumulatively upon the sentence imposed on charge 1 the charge of murder.
That makes a total of 21 years imprisonment. I direct that you are to serve a period of 17 years imprisonment before becoming eligible for parole.
Pursuant to section 6AAA I declare that but for the plea of guilty I would have sentenced you to 22 years imprisonment on the charge of murder and 5 years imprisonment on the charge of reckless endangerment. I would have directed that there be two years and six months cumulation resulting in a sentence of 24 years and six months imprisonment
Direct that subject to Section 18(4): 296 (two hundred and ninety six) days been served in pre sentence detention in relation to this matter and such is to be noted in the records of the court.
Retention order granted for forensic sample 464ZFB(1).
Forfeiture Order granted.
---
0
0
0