R v Willard

[2005] NSWSC 402

CITATION:	Regina v Willard [2005] NSWSC 402
HEARING DATE(S):	05/04/05, 06/04/05, 07/04/05, 08/04/05, 11/04/05, 12/04/05, 13/04/05, 14/04/05, 18/04/05, 19/04/05, 20/04/05, 21/04/05, 27/04/05
JUDGMENT DATE :	28 April 2005
JUDGMENT OF:	Whealy J at 1
DECISION:	I sentence you to a term of 36 years imprisonment to date from 3 March 2003. That sentence will expire on 2 March 2039. I fix a non-parole period of 26 years. The balance of the sentence is to be for a further ten years. The first date on which you will be eligible for consideration for release on parole is 2 March 2029.

CATCHWORDS:	Murder
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 199
CASES CITED:	Johnson [2004] NSWCCA 76; Walker [2005] NSWCCA 109 Previtera (1997) 94 A Crim R 76 Bollen (1998) 99 A Crim R 510 Leonard (unreported CCA 7 December 1998) Regina v Isaacs (1997) 41 NSWLR 374 at 378 Regina v Olbrich (1998) 45 NSDWLR 538 at 543 Garforth (unreported CCA 23 May 1994) R v Way [2004] NSWCCA 131 Regina v Toki (2003) NSWCCA 125
PARTIES:	Regina v Michelle Willard
FILE NUMBER(S):	SC 2003/75
COUNSEL:	Mr W. Creasey - Crown Ms B. Rigg - Accused
SOLICITORS:	Mr A. Lynch - DPP Ms J. Harrison - Legal Aid

LOWER COURT JURISDICTION: Local Court

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

WHEALY J

THURSDAY 28 April 2005

2003/75 -REGINA v Michelle WILLARD

SENTENCE

1 HIS HONOUR: Michelle Willard whom I shall refer to as the offender, stood trial before a jury on a charge that on 22 February 2003 she did murder Michael Willard at Muswellbrook in the State of New South Wales. The offender pleaded not guilty to this charge but, following trial, she was found guilty of the murder of her husband on 21 April 2005.

2 I have heard submissions on sentence and it is now my duty to pass sentence on the offender. The crime of murder carries with it the maximum sentence of life imprisonment.

3 My first task is to find the facts relevant to sentencing. It is necessary that the facts I find must, so far as they relate to findings of fact against the offender, be findings arrived at beyond reasonable doubt Regina v Isaacs (1997) 41 NSWLR 374 at 378. The onus of proof going to matters of mitigation is on the offender who must establish such matters on the balance of probabilities Regina v Olbrich (1998) 45 NSWLR 538 at 543.

4 As I have said the deceased was the husband of the offender. The family lived together in premises at Hillview Avenue Muswellbrook at the time the deceased met his death. There are three children in the family. On the face of it the family members had a close and loving relationship.

5 The offender, however, had demonstrated a degree of financial instability during the year or so prior to the death of the deceased. It may well indeed be the fact that she was always bad at managing her financial affairs. Be that as it may, there was clear evidence during the trial of her inability to pay her household debts, of continuing arrears in payment of rental, of a degree of extravagance in relation to the use of money and a generally parlous situation so far as the management of household finances was concerned. The offender had no paid employment but the deceased himself had work with a local mining company. It seems he had a substantial background as far as work was concerned and, although future work was probably guaranteed to him, it appeared there may have been a possible significant reduction in his salary after February 2003. The deceased had commenced work as a boilermaker with M & H Engineering in November 2002. That company was engaged in the construction work at the Mount Arthur coalmine project at Muswellbrook. By February 2003 the contract H & M Engineering were carrying out at the mine site was coming to an end. The men engaged in that contract, including the deceased, were to be allocated employment in various other positions in the company. However, it seems likely that this change would be likely to bring about a reduction in the number of hours the deceased would be required to work for the company and, in that sense, this change in circumstances was destined to have an impact of some significance upon his take home pay.

6 In early February 2003 an Insurance Company known as Pref Sure Life Limited contacted the offender. She was asked whether she wished to reinstate a policy she had previously with that company. This was a policy which had lapsed at an earlier point of time. In the event, the offender took out a new policy over the lives of herself, the deceased and the three children whereby a total sum of $35,000 would be paid out to the offender in the event of the accidental death of any of the persons covered by the policy. In addition, Westpac Bank had sent an Information Package by post to the offender in February 2003. This was not solicited by the offender but she clearly saw an opportunity for herself. On 5 February 2003, the offender made telephone contact with a representative of Westpac Insurance and obtained cover for herself in the sum of $200,000. She made enquiries as to whether she could also cover through this policy her husband, the deceased, for that same figure. During the course of this conversation the offender enquired whether the proposed cover on her husband would cover him if he were shot and killed. The offender also asked how long it would take for a claim to be met once a claim was made. The Westpac representative informed the offender that cover for her husband would operate from the time that her husband phoned to indicate his agreement to the cover being put in place. Later that afternoon the deceased, apparently at the request of the offender, rang Westpac and spoke to the insurance representative. The deceased confirmed that he was content for the cover for $200,000 on his life to be put into place.

7 Despite the difficult financial situation of the offender it seems that the activities of both the deceased and the offender at about this time anticipated that the family was about to embark on a spate of considerable financial expenditure. For example, on 6 February 2003 the offender attended the local Holden dealer and made enquiries about the purchase of a car worth about $40,000. Secondly, during February 2003 the offender and her husband showed interest in the purchase of a property at 37 Carl Street, Muswellbrook. On or about 14 February 2003 the offender made an offer to buy this property for $230,000 and the offer was accepted. For reasons that will become apparent the purchase did not go ahead.

8 There was a conversation on Thursday 20 February 2003 between a real estate agent Lea Carter and the offender. They were engaged in a discussion regarding an inspection on the property at Carl Street. During the course of this conversation the offender told Ms Carter that the deceased was going to die that week. She went on to say that she knew this because her physic had turned over “the death card” and told her that her husband was going to die.

9 The fact of this rather bizarre conversation and the taking out of the insurance policies, together with the interest in the new house and car, prompt the need to mention briefly another matter that was in evidence before the jury. This was the fact that the offender had engaged in an attempt to defraud two Insurance companies in 1998 by claiming that her husband had been killed as a result of an accident occurring during the course of his employment. The offender’s husband had in fact suffered no accident at all let alone any injury at work but was away from home to the knowledge of the offender working at his normal occupation. The attempt to defraud the Insurance companies failed because the offender was unable to prove to the satisfaction of the Insurance companies the death of the deceased. It appears that she forged a Death Certificate but this rather clumsy effort proved to be insufficient to prompt the Insurance companies to make a payout. The facts in relation to this 1998 claim demonstrated remarkable similarities with the 2003 events, with one notable difference: the difference, of course, was that Michael Willard was not killed in the 1998 insurance claims whereas in 2003 he was to die and die violently.

10 There were two policies involved in the 1998 claim. The first was an Insurance policy entered into with the AMP. This had been taken out by the offender on the life of her husband, Michael Willard in 1996. The value of that policy was about $51,000. The second policy was taken out on 21 July 1998. This was with the Australian Casualty and Life Insurance in the name of Michael Willard. The offender was the beneficiary of the policy. Within nine days of taking out the Insurance policy with the Australian Casualty and Life Insurance, the accused contacted the insurer stating that her husband had been killed at work on 27 July. The offender commenced action to claim a payout on the policy and had conversations with members of the staff of the Insurance Company as to the circumstances surrounding the death of her husband and enquiring as to the steps she was required to take in order to obtain the benefits of the policy. On 17 August 1998 she made a similar claim with the AMP in connection with the alleged death of her husband. During the period following the claim the offender entered into arrangements to purchase a motor vehicle, no doubt with an eye to the successful payout of claims that had been made on the insurance companies. At the time she had a solicitor acting for her, a woman named Felicity Gowing. During the course of conversations with her then solicitor the offender allegedly indicated to her that she had been informed by a fortune teller that her husband was to die at the age of 34 that being the age of her husband at the time of this alleged death claim. It is my understanding that the insurance companies ultimately declined to make payouts on the policies and referred the matters to the police. The offender was charged and sentenced to a period of imprisonment in relation to the frauds.

11 I return now to the position in 2003. I should mention for completeness that the deceased was also a member of two separate superannuation funds. One aspect of the membership of these two funds was that it gave the deceased access to insurance cover in respect of accidental death. On 19 February 2003 during the morning of that day, there were two telephone calls made to each of the super funds. It is clear that these calls were made from the offender’s home at a time when her husband was at work. The precise nature of the enquiries made during these calls however was not revealed by the evidence.

12 On the evening of Friday 21 February 2003 the offender and the deceased went to the Royal Hotel at Muswellbrook with their daughter Rebecca. They had dinner there and left about 9 or 9.30. They then returned to the family home. There was nothing to indicate this was other than a normal family outing.

13 About 9.30 or thereabouts the offender wen to bed in the main bedroom with her youngest daughter, Amy. The eldest child Rebecca slept in the next room although she went to bed some time later that evening. It was the habit of the deceased to sleep on a lounge in the family room close to the foyer leading off from the front door of the house. There was a wooden door and an external screen door at the front of the house. It seems that the deceased later on this evening switched off the television by way of the remote control and then proceeded to fall asleep on the lounge in his usual position facing into the lounge itself. According to the offender in an interview with the police on 22 February 2003 the deceased had left the front door open and the external screen door had not been locked.

14 In the early hours of the morning of 22 February 2003 the deceased was shot through the head while he was sleeping on the sofa in the family room. The evidence of Dr Lee, the senior forensic pathologist in the Newcastle Department of Forensic Medicine, established that the deceased had been shot once through the head above the right medial eyebrow. The gunshot wound was inflicted at close range and was an angled shot consistent with the shooter standing at the end of the lounge and pointing directly down towards where the deceased lay asleep. In addition to the gunshot wound there were abrasions near or above the left eyebrow that, in Dr Lee’s opinion, were consistent with their having been sustained after the gunshot wound. They were indicative of the fact that the shooter may have nudged the head of the deceased with the rifle after he had been shot to ensure that the job had been done effectively.

15 At about 1.48am the offender made a triple-0 call seeking an ambulance. She told the operator that somebody had tried to break into the house and that “they had hurt her husband”. The offender rang the triple-0 operator again at 1.55am and said that there had been a break in and “they had done something to her husband”. In the first call she said there were things “all over the benches” and in the second call she said that she had heard “stuff being thrown on the ground”. Later during the police interview on 22 February 2003 the offender referred to camera equipment on the floor of the family room and her purse also being on the floor. This, it must be said, was the scene encountered by the police when they arrived. The photographs demonstrate the presence of a purse and camera equipment on the floor near the lounge in the family room where the deceased’s body lay.

16 Senior Constable Peter McLay, the crime scene investigator who came to the premises on 22 February 2003 said that, apart from the camera equipment and purse on the floor in the family room, there was no other appearance in any other part of the house of there having been a disturbance or break in. In particular, there were jewellery, watches, rings, cash and a mobile telephone on the kitchen area near the family room none of which gave the appearance of having been disturbed. The observations about there being no evidence of disturbance in the house and at the front of the house was confirmed by other police officers.

17 In addition to the interview with the accused on 22 February 2003 there was a police walk through the next day which was also recorded. On 1 March 2003 there was also a lengthy interview with the offender. This interview was recorded as well. The details of the versions given by the offender on these occasions varied somewhat. But essentially the offender claimed to have been woken up by noises in the house. She said she heard a thump or a noise like a dropping noise. Then she heard a loud bang and thought that thunder had hit the house or “something like that”. She said that she walked through to the family room and saw her purse and the camera equipment on the floor. She walked past the deceased although she spoke to him briefly. She went to the front door which was open with the security door unlocked. She said she could hear a strange noise and she could then see blood on the deceased. It was then that she went back to her bedroom and rang the triple-0 operator.

18 It is plain from these interviews that the offender was indicating to the police that there may have been a break-in or an attempted break-in at her house; and that she had no knowledge of the circumstances in which her husband had been shot and that she was distressed sickened and horrified by what had happened to her husband while he lay asleep on the lounge. Later in the interview of 1 March 2003 when she was asked by the police whether she had any involvement in what had happened to the deceased she insisted that she had loved him that they had a good marriage and that she adored him.

19 The offender, at the time of the shooting, had a close and friendly relationship with a young woman named Danielle Wilkinson. This young woman, who was aged about 26 or 27 at the time, was plainly a vulnerable disturbed person with a serious drug problem. Evidence from a number of witnesses, details in the telephone calls and other material indicating that the offender provided a car for Danielle Wilkinson, paid motel bills on her behalf and gave her money establish how close this relationship was. Danielle Wilkinson had, perhaps only a reasonably short time before the shooting, taken up with and entered into a relationship with a young boy whom I shall identify as TJA for the purposes of these remarks on sentence. He was 17 at the time. He was also a heavy user of drugs, in particular amphetamines. In the short time that she knew him the offender appeared to have become quite friendly with TJA. She included him in the benevolence shown towards Danielle Wilkinson in the sense that his accommodation at the motels and his use of the motor vehicle was permitted. Danielle and TJA were at the offender’s home both before and after the shooting on a number of occasions.

20 The investigation by the police revealed a number of matters. First, a neighbour of the deceased told police that he had heard what appeared to him to be a discharge from a 22 magnum firearm sometime between 1am and 1.30am on 22 February 2003. Secondly, apart from the fact that the camera equipment and the purse were on the floor in the family room, the police, as I have said, formed the view that there appeared to have been no struggle in the house. In addition, the carpet was unmarked notwithstanding that it had been raining outside; and somewhat curiously no attempt had been made by the offender to stem the flow of blood from the head of the deceased. Thirdly, the police later located a bag belonging to Danielle Wilkinson in which was found a floor plan of the deceased’s premises. There were ticks placed on the sketch in the position where the deceased had been found lying dead. Fourthly, the police recovered a 22 shortened rifle from a backpack located in a dam on the outskirts of Muswellbrook. The location was close to the home of TJA’s sister. The rifle was identified as being similar to one that had been in the possession of TJA prior to the killing. Testing of the rifle showed that it was consistent with the weapon used to fire the shot that had killed the deceased. The backpack itself was similar to one owned by TJA. The clothing in the backpack was consistent with belonging to a person of his size. The joggers in it were tested forensically and there were similarities between the innersoles of the joggers and the foot imprint of TJA. Fifthly surveillance was mounted of the offender TJA and Danielle Wilkinson. Also, telephone calls were legally intercepted between the two women on a number of occasions.

21 Sixthly, the day after the shooting, Danielle Wilkinson and TJA returned to the Willard premises to help the offender clean up and dispose of the lounge on which her husband had died. On that day also TJA and Ms Wilkinson went to a local store and attempted to purchase goods to the value of $355.00 using a cheque belonging to the offender.

22 Danielle Wilkinson, TJA and the offender were all arrested on 3 March 2003 and charged with the murder of the deceased. On 6 February 2004 Danielle Wilkinson pleaded guilty to the murder charge and on 28 May 2004 was sentenced to a total term of imprisonment of 22-1/2 years. Justice Howie set a non-parole period of 16-1/2 years to expire in September 2019. On 28 June 2004 TJA pleaded guilty to the murder of Michael Willard. He too was sentenced by Justice Howie to a term of imprisonment for a total term of 22-1/2 years. The non-parole period again was 16-1/2 years to expire in September 2019.

23 I am satisfied beyond reasonable doubt on the evidence before me that the deceased Michael Willard was murdered on 22 February 2003. It is clear beyond reasonable doubt that he was deliberately shot and that the person who shot him intended to kill him. Moreover, I am satisfied that the shooting was carried out by TJA and that Danielle Wilkinson was involved in the murder. She drove him to and from the Willard house and helped in the disposal of the weapon and in other ways as well.

24 The critical issue in the trial of the offender was whether she was involved in the killing as its organiser or its instigator. The defence case was that she had no involvement at all. I am satisfied beyond reasonable doubt, consistently with the verdict of the jury, that the offender was the person who organised the killing and was, in that sense, centrally involved in the murder of her husband. I am satisfied beyond reasonable doubt that the motive of the offender in organising this killing was the prospect of receiving well over $200,000 from various insurance companies in the event of her husband’s accidental death.

25 I should add that after her arrest and when she was in Mulawa Detention Centre the offender told a fellow prisoner, whom I shall refer to as R, that she had offered Danielle Wilkinson and TJA $20,000 each for their involvement in the killing. She also admitted her part in allowing TJA into the house and then making it appear that there had been an attempted robbery after the killing. The offender also asked R to fabricate admissions and to tell the authorities that Danielle Wilkinson had made those admissions. This was to have the effect of implicating Danielle Wilkinson and TJA and further designed to persuade the authorities that the offender had no involvement. Details of the exculpatory document were written by the offender on a note which she gave to the prisoner R. There was also evidence before me that in the prison Danielle Wilkinson told R that she and TJA had dumped the towels used to clean up the premises and the blood on TJA’s clothing and told her where they had been hidden. Danielle Wilkinson asked R to arrange to have somebody dispose of the towels. However, this information was ultimately conveyed to the police and the towels were recovered. They were identified as coming from the motel into which the offender had booked Danielle Wilkinson and TJA on the night of the killing.

26 From the foregoing, I am satisfied beyond reasonable doubt that the offender in fact confessed the crime of the murder of her husband to R in the Mulawa Detention Centre, generally in the terms described by R in her evidence. It may well be that some of the details of the confession were muddled in R’s recollection and in her subsequent recounting of the incident when she gave evidence at trial. But, as I say, the central thrust of the confession was, I am satisfied, as she described it. I am also satisfied beyond reasonable doubt that the offender sought to have R exculpate the offender by lying about an alleged confession made by Danielle Wilkinson. As I have explained, this plan completely backfired on the offender when R, to her credit, undertook the dangerous path of reporting the truth to the authorities.

27 It is perhaps necessary to say something further about the details of the offender’s involvement in the killing. I have in general terms described this above but it is necessary to focus on certain of the details in light of the submissions made to me at the sentence hearing. In this regard I am satisfied beyond reasonable doubt that the offender’s decision to take out the new Prep Sure policy and her decision to persuade her husband to cover himself under the new Westpac Policy were actions taken by the offender to enable a claim to be lodged upon the shooting of her husband or in such other way as his death might be facilitated. The telephone conversation with the Westpac operator recorded in trial Exhibits “GG” and “HH” shows very plainly what was in the mind of the offender. It is true, as Ms Rigg argued, that she had not met TJA at that stage and would not have known of his access to the weapon which was used ultimately to kill her husband. I am satisfied beyond reasonable doubt however that, while the specific shooter and the specific weapon were at that point unknown to her, the offender had in general terms a plan in mind to have a friend or acquaintance of Danielle Wilkinson kill the deceased and that she had this in mind at the time the insurance policies were taken out in early February 2003. Secondly, I am satisfied beyond reasonable doubt that the offender was involved in the murder on the night of the shooting in a number of respects. First, she recruited Danielle Wilkinson and TJA by promising each of them financial reward if they carried out the shooting. Secondly, she provided transport and accommodation for Danielle Wilkinson and TJA. Thirdly, she contacted Danielle Wilkinson before going to bed that night and I am satisfied beyond reasonable doubt that this was done to make final arrangements for the shooting to take place that evening. Fourthly, I am satisfied that the offender was aware when TJA was about to enter the house. As to the front door, although I cannot be satisfied beyond reasonable doubt as to the precise situation, it is perfectly clear either she left the door open or alternatively she checked it to make sure it was unlocked and open before the shooter entered the family room. Fifthly, I am satisfied beyond reasonable doubt that she placed the purse and camera equipment on the floor to make it appear a robbery had been attempted. Sixthly, I am satisfied beyond reasonable doubt that she provided financial assistance and encouragement to Danielle Wilkinson and TJA in the days after the shooting. Finally, I am satisfied beyond reasonable doubt that the offender did speak to Ms Carter in the terms alleged by her as to the so called psychic’s indication that the offender’s husband was to die that week. This was plainly a fiction however and was invented, as the Crown submitted, to deflect attention from the unusual coincidence between the taking out of the policy and the fact that the deceased met a violent death so soon thereafter giving rise to an entitlement to claim on the policies.

Objective level of criminality

28 I turn now to consider and determine the objective level of criminality in the murder of which the offender has been convicted. I should say immediately that the facts I have briefly stated show an extremely serious offence of premeditated murder for financial reward. Secondly, they demonstrate that it was the offender who was the organiser and instigator of the crime even though it was carried out by TJA in conjunction with Danielle Wilkinson. It is clear to my mind that hers is the greater responsibility and the greater criminality. I watched the interviews with the offender very carefully and I listened carefully also to the telephone conversations between the offender and Danielle Wilkinson. I regard the offender as an extremely manipulative person who had little difficulty in manipulating Danielle Wilkinson and TJA to assist her in the carrying out of the enterprise. She was however the instigator of it and she was the one who stood to gain the full amount of the insurance benefits. She planned the venture; she arranged and supervised the execution. She sought to cover the tracks of the others and to protect her own position. This is a murder towards the upper end of seriousness for offences of this kind being in fact a contract killing although one that had its roots in a domestic situation rather than being part of a commercial enterprise in the true sense. It needs to be stated as well, perhaps as a qualifying factor to my present remarks, that the planning of the enterprise was amateurish, opportunistic and clumsy. Nevertheless, it succeeded in securing its deadly object although the participants were bound to be caught out as they quickly were.

29 In addition, the Crown submitted that in determining the appropriate sentence for the offence the Court should take into account a number of aggravating factors. These were, in terms of s 21A of the Crimes (Sentencing Procedure) Act 1999 the following: -

1. The fact that the offence involved the actual use of a weapon (s 21A(2)(c)
2. The fact that the offender has a record of previous convictions (s 21A(2)(d),
3. The fact that the injury, emotional harm, loss or damage caused by the offence was substantial (s 21A(2)(g)
4. The fact that the victim was vulnerable (s 21A(2)(l), and
5. The fact that the offence was part of a planned or organised criminal activity (s 21A(2(n).

30 As to these I am satisfied beyond reasonable doubt as to the existence of the first and last matters submitted by the Crown. I am not persuaded however in relation to the other matters argued. It is necessary to say however that the two matters I have found established as aggravating factors, are of course factors which in reality have been taken into account already in the assessment of the criminal responsibility of the offender.

31 In relation to the use of a weapon, this is clearly an aggravating factor. While is true , as Ms Rigg has argued, that the use of a weapon, in circumstances such as the present, may not aggravate the offence a great deal more than a homicide where no weapon is used, nevertheless, it is a factor that the Court should in my view take into account in determining an appropriate sentence for an offence. The use of weapons to inflict harm and death upon victims is a matter that the community rightly abhors. The offender’s principal role in the organisation of the arrangement whereby the unfortunate deceased was shot with a shortened rifle by TJA is one that in my view plainly aggravates the offence in the sense mentioned in s 21A of the legislation.

32 In like manner, the fact that the offence was a planned criminal activity plainly aggravates the offence and needs to be taken into account in determining the appropriate sentence for the offence. While it is true the planning in the present case was somewhat haphazard, clumsy in many respects and bound to fail, as it did, nevertheless, the planned nature of the enterprise clearly aggravates the offence, a proposition with which I did not understand Ms Rigg to disagree.

33 None of the other matters, however, in my view are to be considered as aggravating factors. During the discussion with the Crown during argument I made clear my views in relation to these matters and there is no need for me to repeat them here in any detail. The offender’s record of previous offences stretches back a fair way but it involves essentially minor offences of dishonesty. In relation to the 1998 incidents the offender was sentenced to a term of actual imprisonment for four months. While the 1998 offences, and to a degree her previous history of dishonesty, are echoed by the substratum of what was proposed in the present situation, namely, a contemplated attempt to manipulate several Insurance Companies, there seems to me to be a vast difference between offences of the earlier kind and the offence for which the offender has now been convicted. None of those earlier offences involved any violence or harm to any other person. This appears to me to be the essential distinction that leads me to find that the record of previous convictions ought not to be taken into account in determining the appropriate sentence for the present offence. (See Johnson [2004] NSWCCA 76; Walker [2005] NSWCCA 109). There is no need for me to comment on the other matters I have rejected. I do not understand that the Crown requires me to do so.

34 It is also necessary to examine whether there are present any mitigating factors which should be taken into account in determining the appropriate sentence for the offence. This is the requirement under s 21A(3) of the sentencing legislation. Ms Rigg does not suggest that there are any such matters, beyond the absence of aggravating factors. It may be however, as Ms Rigg said in her final remarks, that the Court might find in the present matter that the offender is unlikely to re-offend in relation to any crime of violence; and that, despite the enormity of the present crime, she has prospects of rehabilitation. With some degree of caution, I think this submission is probably right. The offender is 38 years of age. She is a gregarious person with a wide circle of friends and acquaintances.

35 I should make it clear however, and it was not submitted to the contrary, that the offender has not to date shown any remorse whatsoever for the offence. I consider that her manipulative and contrived manner during the various interviews with the police officers in February and March 2003 demonstrates in a rather chilling manner that, beyond feeling sorry for herself, she has shown no remorse whatsoever for the terrible crime she committed. This of course cannot aggravate the offence or lead to the imposition of a greater penalty than is otherwise appropriate. Nevertheless, it is necessary for me to comment that the complete absence of remorse in the present situation is quite inexplicable to me given the apparent closeness of the family. The absence of remorse however means that I can give no credit to the offender in that regard when determining the sentence to be imposed.

Victim Impact Statement

36 I should at this stage mention that I have received a Victim Impact Statement from Mr & Mrs Willard, the parents of the deceased. This was read to me in court. The document was made not only on behalf of the deceased’s parents but his wider family as well. As might be expected, this document confirms that the death of the deceased has had a very significant and distressing effect on the family especially the parents. All family members have been plainly shocked and depressed by what has happened to the deceased. This is particularly so in a situation where the offender is the wife of the deceased and the mother of his children. I would like on behalf of the Court to extend to the Willard family my deep sympathy for the sad situation in which they find themselves. The Court hopes that the members of the Willard family may find that it has been of some assistance to express themselves through the Victim Impact Statement. As I indicated during argument, however, I have come to the conclusion that I do not consider that it is appropriate to have regard to the statement in the determination of the sentence to be imposed (see s 28(4)(b) of the Crimes (Sentencing Procedure) Act 1999; Previtera (1997) 94 A Crim R 76; Bollen (1998) 99 A Crim R 510). I should make it clear, in fairness to the Crown, that the material was not sought to be tendered on the basis that it ought to impact on the sentence to be imposed. In my view, it would be contrary to the principles expressed in the decisions to which I have referred to use it in that way.

Should a Life Sentence be imposed?

37 What then is an appropriate sentence to be imposed in the present matter? The Crown has submitted first that I should consider imposing a life sentence on the offender. As I noted at the outset s 19A of the Crimes Act 1900 sets a maximum penalty of life imprisonment. Sub-s 2 of that section provides:

“A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person’s natural life”.

38 The statutory situation in relation to the imposition of a life sentence is found in s 61 of the Crimes (Sentencing Procedure) Act 1999 which mandates a life sentence in extreme cases. The section provides in sub-s 1: -

“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.”

39 The Crown submission in the present matter is that the level of criminal responsibility in the present matter is at the highest level and that, in any event, the offence is aggravated in the aspects that have been established beyond reasonable doubt. During argument I was taken to an unreported decision of the Court of Criminal Appeal in the matter of Richard William Leonard (7 December 1998). In that case McInerney J (with whom James J and Bruce J agreed) listed a number of matters which, in his Honour’s view, ought to be taken into account where there is an argument as to whether a particular murder falls within the worst category of case. His Honour referred to a number of matters mentioned to in an earlier decision of the Court of Criminal Appeal in Garforth (unreported CCA 23 May 1994). The matters there taken into account included: the existence of aggravating circumstances; the question of whether the sentence is to be served on protection; whether there were mitigating circumstances for example, a plea of guilty; whether the prisoner had exhibited a callousness and lack of remorse; and importantly, whether the prisoner remained a continuing danger to society and where there was no prospect of rehabilitation. In relation to the latter circumstance, McInerney J drew attention to the fact that some crimes are so heinous that, even if there were some prospect of rehabilitation, it might be appropriate nevertheless to impose a life sentence.

40 Now it is fair to say that the Crown, quite properly, did not argue in the present matter that there was an element of dangerousness to the community in relation to this offender. Nevertheless, the Crown submitted that the objective seriousness of the crime, coupled with the degree of planning and organisation, placed it in the most serious category and it was principally on that basis that a life sentence was sought.

41 Ms Rigg on the other hand, while acknowledging the high level of criminal responsibility in the present matter submitted that the sentencing concerns of retribution punishment and deterrence could be satisfied in the present matter by the imposition of a high sentence, but one which fell short of the imposition of a life sentence. This was particularly so, Ms Rigg argued, because of the fact that there was no danger to the community in relation to the present offender and that the community did not require protection from her which would not be met appropriately by the imposition of a sentence that fell short of a life sentence. Ms Rigg also pointed to the fact that the case of Leonard involved not one but two homicides and in one case the cutting up and dismembering of the body of a deceased and the other a particularly sadistic attack upon the deceased with a knife. In that second instance, the victim was a taxi driver who was despatched in the cruellest and as I say, the most sadistic manner.

42 In this matter, I had given quite serious consideration to the imposition of a life sentence. It must be said, as I indicated during my assessment of the objective criminality involved, that this was a most serious crime. The offender planned and arranged for the death by shooting of her husband while he lay asleep on a lounge in his own home. His eldest child lay sleeping in a bedroom not far away at the very moment he was shot violently and callously through the head. The offender was nearby during the shooting and afterwards took steps to pretend that a robbery or an attempted robbery had taken place. And all this done for the prospect of financial gain. The offender callously and cruelly organised the execution of her husband for the sake, in effect, of 30 pieces of silver. There is no doubt that this was a cruel and callous killing.

43 I have come to the conclusion however that I should not impose a life sentence and my reasons are these: First, despite the high level of criminality involved, I am not satisfied that this falls into the worst category of homicide or the most extreme case. It falls not far short but it does not, in my view, go that extra distance. Although the killing was planned, it was planned in a haphazard opportunistic and clumsy manner. The shooter and Danielle Wilkinson were manipulated with the prospect of some financial gain but they were not professional killers, far from it. It is clear that they were disturbed and vulnerable people and their involvement in this terrible act is difficult to understand. So too is the involvement of the offender. As Ms Rigg asked during her submissions to the jury how could a woman, reasonably well liked in the community with a lot of friends and a gregarious social existence throw away the life of her husband and happiness of her children for the prospect of financial reward? I do not profess to know or understand the mind and nature of the offender that made her decide to act in the way she did.

44 Secondly, I have come to the conclusion that the offender, subject to the imposition of a substantial sentence, poses no real future risk to the protection of the community. While this is by no means not the only consideration under s 1 of the sentencing legislation it is plainly an important aspect of the considerations mandated by the section. I have given particular consideration to the worst category cases examined by the Judicial Commission of New South Wales in its publication Sentenced Homicides in New South Wales 2001. While an examination of other cases cannot give but cautious guidance to a determination whether a particular offence falls within the worst category, it does seem to me that the present matter differs in at least the significant way I have identified from the seventeen situations examined by the Judicial Commission in that careful study.

45 Thirdly, it may be said that, in the case of the offender, there are some prospects of rehabilitation. Realistically it might be thought, or at least hopefully anticipated, that she would be unlikely to offend in the same way were she to be released into the community after a substantial period of imprisonment. In these two respects particularly, that is the lack of continuing dangerousness and the prospect of ultimate rehabilitation, there seems to me scope for a finding, as I do find, that the offence, although very serious indeed, does not warrant the imposition of a life sentence. I am not satisfied that the level of culpability in the commission of the present 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. In my view those matters, all of which are important consideration under s 3A of the sentencing legislation, can be met by the imposition of a substantial sentence falling short of life imprisonment.

The Sentence

46 This offence was committed on 22 February 2003. The consequence of that is the standard non-parole period sentencing scheme under the new Division 1A of the Act and the new section 44 of the legislation apply to sentencing for offences committed after that day. When structuring the sentence it is necessary for the Court to first set a non-parole period for the sentence, that is the minimum period for which the offender must be kept in detention in relation to the offence. The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence unless the Court decides that there are special circumstances for it being more.

47 The standard non-parole period for murder in the present situation is a period of 20 years (See s 54A of the sentencing legislation and the Table in Division 1A).

48 In my view the standard non-parole period for the offence of murder in the present situation, that is a non-parole period of 20 years, is an insufficient period to give recognition to the objective seriousness of the present offence in the light of its facts and the circumstances of aggravation I have mentioned. Indeed, Ms Rigg conceded that the question posed in R v Way [2004] NSWCCA 131 “are there reasons for not imposing the standard non-parole period” ought properly to be answered in the present matter in the affirmative. The questions, which arise, however are: what should be the term of the overall sentence? and, in light of proper sentencing considerations, what ought be the appropriate non-parole period? As part of this exercise, it will be necessary to determine whether the non-parole period must not be less than three-quarters of the term of the sentence. In relation to this latter matter, no submissions have been made by Ms Rigg in that regard and the only question will be whether the non-parole period might, again for proper sentencing reasons, be more than three-quarters of the total sentence.

49 Ms Rigg referred me to the decision of the Court of Criminal Appeal in Regina v Toki (2003) NSWCCA 125 where Hidden J at paras 27-32 made some general observations about the range of sentence in certain types of murder cases. I have read the remarks of his Honour carefully but I do not see that they are of very much assistance in the present matter. His Honour was there dealing with an examination of a number of cases in which the killing was not premeditated. By way of contrast, the present offence was both premeditated and planned.

50 I have also given consideration to the situation of the other participants in the criminal enterprise. Their role, as I have indicated earlier, was, although serious, of lesser criminality than the position of the present offender. She was the organiser and instigator of the murder, they were its implementers. Moreover, each of the other participants demonstrated remorse and pleaded guilty, one at committal and one at trial. Their position appears to me to be markedly different from that of the offender whose sentence I must impose today.

51 Although Ms Rigg did not place any argument before me in relation to special circumstances, I am satisfied that there are no special circumstances in the present case. I consider that having regard to the length of sentence I propose to impose and the period of non-parole I propose to specify, the period of parole that will result will be sufficient for the offender’s rehabilitation upon release without any further extension. In addition, there are no other circumstances that I have been able to identify that would warrant the finding of special circumstances and hence justify a variation of the proportion between the non-parole period and the balance of the sentence.

52 The crime for which the offender stands for sentence this afternoon is, for the reasons I have stated at length, a very serious crime. The level of criminality involved fell not far short of that required for the imposition of a life sentence. Had it not been for the particular factors I have identified, I would have been prepared to impose a life sentence.

53 Having regard to all of the matters I have detailed it is my view that an overall sentence of 36 years imprisonment should be imposed. In order to reflect and express effectively the appropriate level of punishment and deterrence in this matter, it is my view that the non-parole period should be set at 26 years. This is the minimum period for which the offender must be kept in detention in relation to the offence. I am conscious of the fact that the balance of the term will thereby be less than one-third of the non-parole period. But in my opinion the length of the balance of the term will be sufficient to address the offender’s rehabilitation if released to parole. The balance of the term will be, notwithstanding the length of the non-parole period, a lengthy period of ten years.

54 The offender has been in custody since 3 March 2003. I will backdate the sentence to take into account the period in custody between 3 March 2003 and today’s date.

55 Michelle Willard, I sentence you to a term of 36 years imprisonment to date from 3 March 2003. That sentence will expire on 2 March 2039. I fix a non-parole period of 26 years. The balance of the sentence is to be for a further ten years. The first date on which you will be eligible for consideration for release on parole is 2 March 2029.

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