R v Williams
[2006] VSC 367
•19 July 2006
| IN THE SUPREME COURT OF VICTORIA | Unrestricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1478 of 2004
| THE QUEEN |
| V |
| CARL ANTHONY WILLIAMS |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2005 | |
DATE OF SENTENCE | 19 July 2006 | |
CASE MAY BE CITED AS: | R v Williams | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 367 | |
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Murder – Sentence – Execution style - Gangland - Counsellor and Procurer – Mitigation : Circumstances of imprisonment – Lack of criminal history.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC | Ms K Van Den Akker |
| For the Accused | Mr Grant | Ms Garde-Wilson |
HER HONOUR:
Carl Williams, you have been found guilty by a jury of one count of murder being the murder of Michael Marshall on 23 October 2003. This murder occurred in Joy Street, South Yarra, just down from the corner of Williams Road. The deceased man, Michael Marshall, had just returned with his five year old son from picking up supplies for his hot dog vending business. As he got out of his vehicle, B, who had been driven there by the witness, A, ran towards him and shot him between four and five times in the head, quite clearly at very close range.
The distressed child alerted his mother, who was in their home on the corner of Joy Street and Williams Road, to what had happened, and both she and her child saw the deceased lying in the gutter dying, with massive injuries to his head. It was a callous, brutal execution of another human being.
Originally, I was unable to determine the motive behind this killing, although there was evidence before the jury from A that he believed that this may have been related to a drug debt, owed by Willy Thompson to you , over money for drugs that had not been paid. Michael Marshall was assumed to be his business partner and, according to A, he believed that you may have held Marshall responsible for that debt, as Willy Thompson had previously been murdered. This evidence was vague and accordingly, I was not prepared to act upon that evidence, as being sufficient to establish your motive.
I have now received a statement from B, who has pleaded guilty to this murder, just prior to the time that you were being tried. In that statement, he has put forward, how the murder came to occur and the reasons behind that killing. I will quote from his statement, dated 17 March 2006 at page 3 and following. Paragraph 15: "In September some time we had another meeting at the Red Rooster store in Moreland Road, Brunswick. Present at this meeting was Carl Williams, C, Tony Mokbel, George Williams and another friend of Tony's, but a different one from the first meeting. At this meeting Tony confirmed that he believed Michael Marshall was responsible for Willy's death and he wanted him dead. Tony offered Carl and I $300,000 to kill Marshall. This was only a short conversation and when I shook hands with Tony, he passed a piece of paper to me, which had the details of Marshall's address. I think it was 179 Williams Street, South Yarra. It also said he drove a white Hylux. When Tony offered the contract, the only people within hearing were Carl and I."
Paragraph 16: "Later after the meeting I discussed the job with Carl and it was agreed that I would do the job and get 200,000 and that he would get the other 100,000. This was discussed outside his car as Carl was concerned about listening devices. Carl was keen to do the job quickly so Tony did not become suspicious about Carl's involvement in Willy Thompson's murder."
You were convicted by the jury in your capacity as a counsellor and procurer of this murder, the actual killing having been carried out by B as the gunman and A as the driver and assistant.
A pleaded guilty to this murder and was sentenced by his Honour Justice Teague on the basis that it was a plea of guilty and he had undertaken to give evidence against you and B. As a result, it was considered by those in authority that his life was in jeopardy and extraordinary protection measures had to be taken. Accordingly, he was given a very significant discount on the sentence imposed on him, to which I will later refer.
There is no doubt that the verdict of the jury meant, that they were satisfied you were the instigator of the killing and it was done for your purpose, which purpose was then unclear. What is now clear, is that, the murder was not done at your initial instigation, but that of Tony Mokbel. Your counsel put forward that it was Tony Mokbel who was counsellor and procurer and that your role was merely that of a middle man, a person who passed on information, guns and money to those that were involved in the actual killing. I do not accept that that was the entirety of your role. The statement from B, to which I have earlier referred, makes it clear that you both were aware that the motive for the killing of Marshall was the murder of Willy Thompson, a murder that Tony Mokbel believed had been carried out by Marshall, or those acting on Marshall's directions.
Further, that statement equally makes it clear that according to B, you were responsible for the murder of Willy Thompson and were keen to facilitate the murder of Marshall, on the basis that it would, almost certainly, deflect any suspicion away from you.
I do not intend to punish you in any way for anything relating to the murder of Willy Thompson, as that matter has not been tried by a jury and you remain innocent of that murder. I do intend, however, to accept for the purposes of the plea that your motive for involvement was, as I have indicated, twofold, one relating to the money and the other being to deflect any suspicion of involvement in the murder of Thompson.
Equally, this murder of Michael Marshall occurred during a time of what has been referred to in the media as the "gangland" or "underworld" killings. All of those murders, whether charged or uncharged, carry similar hallmarks to this murder. They are invariably executions; a firearm is usually used; they are often in public places such as streets, hotels or places where ordinary citizens would be going about their normal business. Those murders invariably have significant connections with crime or gang related activity and whilst no ordinary member of the public has been killed or harmed during these killings, those killings have clearly engendered a level of fear within our community as to potential harm of innocent persons, and equally, a concern relating to the degree of lawlessness into which Victoria, as a community, has been plunged. It is clear, that the murder of Michael Marshall was a murder that had its origins in the gangland war, that was then occurring.
Whilst I have made the statements that I have referred to in respect of underworld killings, I equally make it clear, that I am not sentencing you for any other matter other than the murder of Michael Marshall and those references relate only to the circumstances that existed in Melbourne at the time of this murder.
Murders of this nature are exceedingly difficult to investigate and to prosecute due to the problems of loyalty and fear that permeate those involved in illegal activity, particularly gang related activity. Whilst there is no evidence before me of a formal structure, such as would be in place for a company, it is clear that your activities which have been conceded by your counsel to the jury demonstrate that you were involved with others in the buying and selling of illegal drugs, which indicates a connection with those involved in illegal activity.
It is also equally clear that you were considered amongst some of those with whom you associated the leader of a particular crew or group. That, of course, does not mean that there may not have been others with whom you were in association who had a more powerful position in this criminal milieu in which you moved, but the nickname by which you were referred, "the big fellow", does not just relate to your size. It was how you and others involved with you perceived your role and position within the group.
It is clear that Tony Mokbel had some association with your particular group, but at what level that association was I am totally unable to determine. Equally, I am unable to determine precisely who was involved with you in your gang or your crew, although there was at least some involvement on the evidence before me of A, Veniamin and B.
I find your involvement, as I indicated earlier, was motivated by two matters, the first being money, a substantial sum of money, and the second being a desire to deflect any suspicion away from yourself of having any involvement in the murder of Willy Thompson. Both of these motives are cold and calculating reasons to bring about the death of another person. This murder, therefore, was accordingly a callous, cold‑blooded execution of another human life and an example of one of the worst types of murder that may be seen.
I accept that Mokbel's role as the original counsellor and procurer of the murder is at a higher level than yours, but the difference to a degree is marginal. You actively worked with B to organise this murder, you recruited A to assist him with surveillance, you obtained the guns and money from Mokbel to pass on to B, and it was to you that B reported back the success of his mission.
I received four victim impact statements on the plea which became Exhibit 1. They were from the wife, mother, father and sister of Michael Marshall. The members of the family who lost a son and a brother referred to the media saturation coverage of his death and the fact that he has been accused in the media of being part of gangland underworld. He has not been tried and convicted of offences that would necessarily make him part of the underworld as such, and accordingly they have found this extremely traumatic to deal with on top of the loss of someone that they love. There is no doubt that the coverage of the murder of Michael Marshall in the manner and circumstances in which it occurred makes their loss even more profound. It is equally so for his wife and young child. They have also lost not only someone who loved and cared for them; they have also lost the financial support that he provided, and his five year old was confronted with actually seeing his father murdered in front of him. Nothing the court does in the way of sentencing will be able to restore any of those matters that his family face both now and in the future when once again this is the subject of intense media coverage.
I have taken into account the suffering that his family have endured, but acknowledge that whatever sentence is imposed, they will probably feel aggrieved as nothing will return their loved one and no sentence imposed will ever feel sufficient to them.
Your prior convictions are limited in nature and do not relate to any matters of violence. You were convicted in May of 1990 of handling stolen goods, failing to answer bail and possession of stolen property and you were fined a total of $400. In March of 1993 again, at the Magistrates' Court, a charge of criminal damage and throwing a missile for which you were placed on a non‑conviction community‑based order with conditions of 150 hours of community work, which you breached, but no further action was taken as the order had expired. Finally, in the County Court in December of 1994, attempting to traffic in a drug of dependence, being amphetamine, for which you were ultimately sentenced by the Court of Appeal to 12 months' imprisonment with six months suspended for a period of two years. I place no reliance upon the earlier two matters and I place limited reliance upon the latter matter only as indicating that at that stage an involvement in the criminal milieu in which this offence occurred.
I turn now to the aspects of mitigation relevant to you that I need to consider the task of sentencing. Your personal circumstances are that you are now aged 35 years of age, having been born on 14 October 1970. You have one brother who died of medical complications in 1997 at the age of 31. It is clear that you are very close to both of your parents. For most of your life until your marriage to your wife, Roberta, in 2001, you resided with your parents in the Broadmeadows area where your father still resides.
Your wife has three children from previous relationships, a son, aged around 18, and two daughters, approximately 13 and 14. Together with your wife, you have a daughter, called Dakota, who is aged approximately five, having been born on 10 March 2001.
Your parents had separated at the time of this offence, according to the psychological report, and I presume them to still be separated. Your mother has never been in trouble with the law and your father has no convictions. Your father has had significant health problems, particularly in the last few years.
Your wife had a difficult and traumatic upbringing, being made a State ward at the age of 11. Her father was killed in a truck accident whilst she was young, and although she has several brothers and sisters, maintains contact with only one of them, being Michelle Mercica, who was involved in a relationship at the time of this offence with B.
You were educated to Year 11 at Broadmeadows West Technical School and thereafter it was reported that you had a number of short‑term labouring jobs. As part of Exhibit 2, being attachments to the affidavit of Zarah Garde‑Wilson, there were three reports from Mr Jeffrey Cummins and one from Mr Ian Joblin, both psychologists. There appears to be an inconsistency within the instructions relating to your previous employment history with Mr Cummins listing a series of labouring jobs, followed by opening a children's wear shop with your wife, which became non‑profitable and closed, and he says that you then were working as a semi‑professional gambler from that period until being banned from the casino.
However, it was reported by Mr Joblin that you initially worked for a supermarket in the local area, then for a glazier for a short time, an attempted lawn‑mowing business, then commenced business with a friend collecting scrap metal and selling it, and although the business was a success, you did not continue with it. He said that basically since your mid‑20s you had not worked again, although you apparently tried to begin a business buying and selling jewellery. Your father indicated to Mr Joblin that at times you would work with him on various properties that you jointly owned.
I act upon the basis that you had a number of jobs over the years from leaving school until your mid‑20s and from that time you were predominantly unemployed. It is clear from both your conviction before Kellam, J. and the admissions made by your counsel to the jury during the trial that in at least the last period of time prior to the murder you had been involved in the trafficking of amphetamines.
The prior convictions that I referred to earlier of attempting to traffic in amphetamines in 1995 makes it more likely that the scenario described to Mr Joblin of not having any paid employment from your mid‑20s is the more correct history.
You were in custody for a short period between November 1999 and January 2000 when you were bailed. My understanding is that you were arrested and subsequently bailed and you were on bail at the time of the murder. The time that you have spent in custody prior to this trial is a matter that has been dealt with by Kellam, J. and the Court of Appeal and you have been serving a sentence from October of 2004, which is a matter I will deal with shortly.
The circumstances in which you have been held and will in all likelihood continue to be held for a substantial period are of relevance in mitigation of your sentence. You are currently held in the Acacia high security unit at Barwon Prison which is the maximum security unit of the state penal system. The conditions at Acacia are quite different to those from mainstream prisoners. The visits from family are severely restricted, particularly in terms of contact visits, access out of cells during the day, mixing with other prisoners, access to phone calls all are severely restricted, and the distance at which the prison is located makes even the issue of conferring with legal advisors difficult. This is not what the average sentenced prisoner has to endure by way of conditions of serving a sentence. It is how you have been held, both as a person on remand and as a sentenced prisoner. It is equally evident that this will be the manner of your incarceration for some substantial time as is evidenced by paragraph 2 of the affidavit of Michael Francis Carroll, dated 14 July 2006, which reads in part, "The defendant is not a remand prisoner. His situation is that he is currently serving a sentence, but has been charged with additional offences. There is a risk that persons who have an interest in the outcome of the cases in which he may give evidence or the possible evidence he may give may harm the defendant. Until all of these 'gangland' related cases are completed, it is unlikely the defendant will be moved from his present accommodation at the Acacia high security unit at Barwon Prison. However, when all relevant matters before the courts have been finalised, the defendant's classification will be reassessed, as explained in paragraph 30 of my previous affidavit, and he may be classified and accommodated differently, depending upon future assessment."
This is consistent with what is noted in the discussions recorded in your individual management file which was tendered by your counsel, Mr Tyrell, during the further plea.
There was a recent arrest in relation to another victim of so‑called gangland wars, and it becomes really an unknown situation when all prosecutions relating to them will finish. Accordingly, I act upon the basis that you may serve a significant or substantial part of your sentence in that unit or similar unit. Due to the nature of the so‑called gangland war with what appears to be groups of different criminals seeking to cause harm to each other, it is not surprising that the authorities need to consider your protection, as well as the protection of others allegedly involved in such a war. An example can be given that there were a number of people who were charged in respect of a conspiracy to murder you, although for various reasons, including the death of one of them, the trials did not ultimately proceed. I understand why the authorities have a difficult problem.
Your counsel submitted that you were being punished by being kept in this unit and that others in the unit were treated differently. I do not accept that submission and the material that I have before me indicates that the regime under which you are kept in Acacia applies to all other persons incarcerated in that unit. Whilst I do not accept that you are being kept there as a punishment, I do accept that the manner in which you are imprisoned is exceedingly difficult and oppressive. Whilst the conditions have certainly improved from when you were first held in that unit, when you were allowed out of your cell for only one hour per day, they remain very difficult conditions under which you will potentially serve a large portion of your sentence.
As indicated, I have received four psychological reports in total which refer to these conditions and the effect that they are having upon you, which include anxiety, depressed mood and adjustment disorder. None of that is surprising as most persons incarcerated in this manner would have a great deal of difficulty adjusting. This is sensory deprivation, infrequent contact with anyone but one other person, an extremely limited contact with your family and loved ones, including your still quite young child. Despite it being unsurprising that you have been affected by the manner of your imprisonment, it is a factor that must be taken into account in terms of consideration of mitigation of your sentence.
The issue of the manner of custody has been considered by the Court of Appeal in Rv Rostum [1996] 2 VR 97 at 101 per Charles, J.A. He cited with approval R v Bailey (1988) 25 A.Crim.R. 458, in which Lee, J. said at 462:
"It has for a long period of time been the practice in this court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate."
In the same case, his Honour referred to an unreported decision of the Court of Appeal of New South Wales, R v Boon, delivered on 17 November 1983, and quoted from the judgment as follows:
"Weight should be given in favour of the respondent in that there is material justifying the conclusion that imprisonment will come particularly hardly upon him. It is not necessary to canvass the circumstances leading to that conclusion. He has thus far been held in custody that has involved some protective overtones during his time in gaol. It is likely this situation will continue into the future, this, I repeat, rendering his imprisonment more distressing and arduous than if he were to be imprisoned in accordance with the ordinary manner of holding prisoners within state's penal institutions."
This decision in Rostum has been applied in many subsequent cases and, in my view, is one that has application in relation to your sentencing. Accordingly, the sentence I would otherwise have imposed in respect of this offence will be mitigated by the circumstances and conditions under which you have been and continue to be held, which are a quite onerous form of protective custody.
You have been held in custody for a substantial period of time, that time being considered as part of the sentence that you were serving in respect of a matter for which you have been subsequently convicted, being one count of trafficking in a drug of dependence, cocaine, and one count of trafficking in a commercial quantity of drugs of dependence, MDMA and methylamphetamine. Those offences occurred in 2001, although you were not dealt with until 2004. His Honour Kellam, J. sentenced you to a total of seven years' imprisonment with a minimum term of five years. That was varied by the Court of Appeal to a total sentence of six years and 333 days with a minimum term of four years and 333 days. That variation was to reflect the presentence detention that had occurred in respect of matters that were not ultimately proceeded with by the Crown and accordingly were not declared by the sentencing judge. The Court of Appeal further declared 450 days of pre‑sentence detention. His Honour Kellam, J. sentenced you on 29 October 2004.
Accordingly, I act upon the basis that there is no pre‑sentence detention to be declared in respect of the Michael Marshall murder. This has required me to do some calculations. After the adjustments made by the Court of Appeal, on my calculations, you received a total of 1793 days as a minimum term, give or take a leap year day. 450 days were declared as pre‑sentence detention, which would reduce the amount of time outstanding to approximately 1343 days, which is approximately three years and four months. Since the imposition of the sentence on 29 October 2004, you have served approximately one year and nine months of that total. There is therefore approximately one year and seven months of your minimum term remaining to be severed. That means that of your minimum term of four years and 333 days that you received, you have served approximately three years and three months, and of that three years and three months, almost eight months has been served since you were convicted of this charge.
Section 14 of the Sentencing Act 1991 states that I am obliged to impose a new single non‑parole period in respect of all sentences which you have yet to complete and to serve. Accordingly, when I impose a sentence, I am obliged to impose a new minimum term that will supersede the minimum term imposed by his Honour Kellam, J. That sentence will commence from this day.
As the sentence will commence from this day, I intend to reduce the sentence that I would otherwise have imposed as a result of the delay that has occurred in your being sentenced. Although that delay was partly a result of choices you made declining to be sentenced, it was also partly as a result of the delay in the hearing of B's plea, due to the unavailability of his counsel, and then discussions occurring between B and the Crown. There were other reasons for delay, including my absence overseas. Despite the multiplicity of reasons, in my view, it is appropriate to impose a sentence that reflects what you would have actually served if the plea had been heard shortly after the trial and the sentence pronounced at that time.
You pleaded not guilty to the murder charge and have accordingly not expressed any remorse and there has been nothing that has been placed before the court to indicate any remorse on your part. Whilst a plea of not guilty is not something for which a court imposes any additional penalty, the lack of a plea of guilty or any expression of remorse means that the court is unable to take matters such as that into account in mitigation of the sentence that is to be imposed.
I am also bound to consider the application of the totality principle so that the sentence that I impose for this offence is not a crushing sentence. A crime of this type calls for a sentence that manifests general deterrence, particularly in the climate in which this murder was committed with a number of retribution type murders occurring over a relatively short period of time. As indicated, it must be demonstrated that murders of this type will not be tolerated and will attract substantial and lengthy periods of imprisonment.
In respect of specific deterrence, the aspect of your rehabilitation is a factor that I take into account in that matter, together with the circumstances under which you will be serving a substantial part of your term of imprisonment. Whilst I am unable to say at this stage that there are good prospects for your rehabilitation due to the callous and cold‑blooded nature of the killing, equally, I am not in a position to say that you are without any hope of rehabilitation. Your only prior offence of any note relates to drug matters and not crimes of violence, you had not previously served any substantial period of imprisonment, you are married with a young child, you have the care of step‑children, you come from a close and supportive family who have attended the proceedings on a daily basis, being usually your wife, your mother and father, together with other supporters. The psychologists both assess you as a man of reasonably good intelligence and you should therefore be capable of learning from the sentence that will be imposed. You are also reasonably young and have prospects of re‑establishing your life with your family, albeit after a lengthy period of incarceration.
Equally, I have to indicate the court's denunciation of crimes of this nature. The Crown submitted that I should impose a sentence of life imprisonment and your counsel commenced his submission on the basis that I should impose a minimum term. As I have already indicated, I do not intend to impose a sentence of life imprisonment and I do intend to impose a minimum term.
I have spent some time examining other sentences imposed in what are classified as execution type cases, not for the purposes of statistical comparison, but to assist and assess the features applicable in those cases. I have particularly considered the cases that your counsel submitted were appropriate for that purpose. The facts on each of them are so different that it is difficult to draw any particular conclusions, but I have examined two more recent decisions of Teague, J. in respect of the murders of Lewis Caine and Lewis Moran. These are murders that were committed as part of this same so‑called gangland war. His Honour sentenced Evangolous Goussis to a term of 20 years' imprisonment with a minimum of 15 years for the murder of Lewis Caine. Mr Goussis had pleaded not guilty and contested a trial, at the conclusion of which the jury found him guilty of murder. His Honour stated at page 3 of his reasons for sentence:
"The prosecution case was not, despite certain indications the other way, that this was a premeditated execution. I must sentence you on the basis that the murder was not premeditated. The murder cannot, therefore, be seen as warranting a sentence towards the top of the range. On the other hand, it cannot be seen as the bottom of the range. It was a far cry from a spontaneous domestic stabbing."
In sentencing D, a co‑accused with Goussis in the relation to the murder of Lewis Caine, and also in respect of the murder of Lewis Moran to which he pleaded guilty, his Honour adopted the same view as to the range for the murder of Caine. In respect of the murder of Lewis Moran, his Honour described it as a callous, planned, premeditated execution, and even with a plea of guilty and a promise to give evidence against his co‑offenders, his Honour imposed a sentence of life imprisonment for the murder of Moran. For the murder of Caine a sentence of 24 years was imposed. His Honour fixed a non‑parole period of 19 years for both.
It should be noted that his Honour assessed the benefits from Faure's co‑operation with the authorities would be extremely high. It should equally be noted that D had an extensive criminal history, including two prior convictions for manslaughter, for which he received terms of eight years and nine years, and very lengthy periods of imprisonment for a number of armed robberies over the years.
In R v Hentschel, a co‑offender with you in the murder of Michael Marshall, his Honour Teague, J. again imposed a sentence of 18 years with a minimum of ten years. A had pleaded guilty to that murder. He found that A was remorseful, that his knowledge and role was much less than that of yourself and B, that he had limited options from the time he picked up B on the day of the murder and his co‑operation was of the highest possible order in relation to four murders that have occurred in the gangland war environment, and finally he found that his time in prison would be served in highly restricted conditions as result of being a major informer. To be balanced against this was his prior convictions, which were of a more violent nature than any that you have.
I also sentenced B for his part in this murder and the murders of Jason Moran and Pasquale Barbaro. Once again, they were pleas of guilty, and there was very extensive co‑operation with the authorities in the provision of information and an undertaking to give evidence in any future trials relating to those matters. B was also an informer of the highest order. B had extensive prior convictions involving violence and I imposed sentences of life imprisonment on each count of murder and an overall minimum sentence of 23 years with time spent in pre‑sentence detention to be taken into account on that sentence. Once again, B will have to serve his sentence in a manner similar to that of A in the highest of protective custody.
Pursuant to s.16(3)(c) of the Sentencing Act:
"Every term of imprisonment imposed on a person for an offence committed whilst released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term."
It is conceded that the offence was committed whilst you were on bail for the drug trafficking matters dealt with by Kellam, J. and I must consider that aspect. I do not intend to make the sentence wholly cumulative. I intend to make only a part of it cumulative.
Having taken all of the matters to which I have referred into account, for the murder of Michael Marshall I sentence you to be imprisoned for the term of 26 years and I direct that one year of that sentence is to be served cumulatively on the sentence imposed by Kellam, J. on the trafficking charges. That makes a total effective sentence of 27 years. I further direct that you serve a minimum term of 21 years before becoming eligible for parole.
I wish to make it clear that this is the new overall minimum that has been imposed in respect of both the sentence of Kellam, J. imposed on 29 October 2004 and the sentence that I impose today.
I make the forfeiture orders and disposal orders sought.
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