R v Willis
[2015] VSC 410
•13 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2014 0146
| THE QUEEN |
| v |
| JESSE WILLIS |
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JUDGE: | OSBORN JA |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 10 August 2015 |
DATE OF SENTENCE: | 13 August 2015 |
CASE MAY BE CITED AS: | R v Willis |
MEDIUM NEUTRAL CITATION: | [2015] VSC 410 |
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CRIMINAL LAW – Sentence – Murder – Accused shot deceased in back of the head with a cut-back rifle – Accused claimed self-defence – Narrative of accused inconsistent with jury verdict – Basis of facts upon which sentence passed – Attempted concealment of body of deceased after killing – Circumstances of accused – Accused a heavy drug user at time of offending – Sentenced to 24 years’ imprisonment with 20 year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr J Williams with Mr P Smallwood | Victoria Legal Aid |
HIS HONOUR:
Jesse Willis you have been convicted by a jury of 12 of the murder of Ricky Ganly at Avoca on 29 April 2013.
In 2013, you were an unemployed man severely addicted to drugs and, in particular, heroin and methamphetamine (or ‘ice’). At some point prior to April 2013, you stole three firearms from your grandmother’s house in Avoca. You then cut back the barrel and stock of a single shot .22 rifle, producing, in effect, a long pistol. So adapted, it had no obvious use other than a criminal one but no doubt from your point of view it was potentially tradeable within the drug culture in which you had to make deals to meet your addiction.
On 28 April 2013, you went with a dealer, Gordon Skadric, to a house in North Sunshine to obtain drugs. Mr Ganly was also at that premises. You obtained speed or ice at the house and then went to Ted’s Café in Rockbank before heading off to Avoca in convoy with Mr Ganly, each driving your own car. It is apparent that your purpose in doing so was somehow to facilitate obtaining further drugs from Mr Ganly and you maintain that Mr Ganly hoped to obtain a shotgun from you at Avoca.
On arriving at Avoca you used drugs together.
In statements to police you maintain that at Avoca Mr Ganly stood over you seeking production of a gun and cut your forearm with scissors and your hand with a knife.
At some point you obtained the cut-back .22 rifle from the house of your friend Mr Richard Peters. Before doing so, Mr Peters offered to confront Mr Ganly with you but you refused his offer.
After leaving Mr Peters’ house, you and Mr Ganly drove in your cars to a point on the Bealiba Road near Mills Road where you stopped. A final confrontation then occurred, which you say was precipitated by a threat from Mr Ganly arising out of expressions of strong dissatisfaction with the cut-back weapon after you presented it to him. You maintain that Mr Ganly ultimately told you that unless a better gun could be provided than the cut-back .22 rifle, he would arrange for 10 Rebels Motorcycle Club members to be on your doorstep the following morning and that when this was said you panicked and then shot him. You say that, as he sat in the driver’s seat of his car threatening you, you reached in through the rear driver’s side window, picked up the cut-back rifle from the back seat, cocked it, turned it and shot Mr Ganly in the back of the head as he remained sitting facing forward in the driver’s seat.
I must sentence you on a basis consistent with the jury’s verdict. Although hypothetically the jury may have accepted your story to some material extent, and still found you guilty of murder (perhaps rejecting self-defence on the basis of lack of necessity), it is more probable that they simply rejected your story as untruthful.
I am not persuaded that your account of your final confrontation with Mr Ganly is probable for the following reasons:
(a) The start of your account of events at Avoca leading up to the killing is inconsistent with the circumstantial evidence. You told police that after arrival at Avoca you went to a park with Mr Ganly and made phone calls from a public phone box seeking to contact a third party who might supply a gun. Neither the public phone call records nor your own mobile phone records are consistent with the making of any such calls. They demonstrate that you did not make the calls which you told police you did. I might add that the third party was never satisfactorily identified by you. It follows that your account of what occurred at Avoca commenced with a detailed fiction. Your counsel put to the jury that this was not a big issue. I do not agree. It was the starting point of a fabricated story.
(b) Next, Mr Ganly was shot at close range in the middle of the back of the head with a trajectory angling upwards. The weapon used was a single shot cut-back .22 rifle. The mode of killing itself bespeaks a deliberate execution.
(c) Next, your sequential statements to police were riddled with lies (many of which are now admitted). Those lies continue up to, and into, your final statements. In particular, in your final statements you maintained until near the end the fiction that you had buried the gun near Mills Road and that this is why you and Mr Ganly drove to this point before the shooting. Your final statements also contain other incidental lies, for example, the statement near the end of your final record of interview that you could not remember whether the gun was cut back or not, which I find incredible.
(d) Next, if, as you finally do admit, the gun was not buried at Mills Road, then the reason for stopping at the place where Mr Ganly was killed is unexplained and the thread of your final story fundamentally broken. There is no credible account as to why you went to this place. It was, however, an isolated spot ideal for killing him.
(e) Next, it is inherently improbable if, as you say, Mr Ganly had earlier stabbed you with scissors and cut you with a knife that you would have given him a loaded gun. It would have been obviously foolhardy. Yet you maintain that this is what you did before the final threats were made by Mr Ganly and you reacted by taking the gun from the backseat of his car and shooting him.
(f) Next, the manner in which you maintain Mr Ganly was shot does not fit the circumstantial evidence and, in particular, the following aspects of it:
·Mr Ganly was shot squarely in the middle of the back of the head with a shot angling upwards and forwards. It is highly unlikely that he would be sitting facing forwards as he threatened you (as you maintain) and remain facing forwards as he was shot from behind, knowing that there was a gun in the backseat and that you were reaching into the backseat; and
·Mr Ganly was a relatively short man, 169 cm tall, and if he were in the position described by you, his head would be in front of the headrest in his car at the time he was shot. There was no damage to the headrest. You say in your record of interview that you do not remember whether there was a headrest. This gap in your memory has led to a story which is inconsistent with the facts.
(g) Next, immediately after the killing, you searched Mr Ganly’s car in the mistaken belief that he had a substantial stash of drugs. Although this proved to be untrue, you took from the car a small quantity of drugs and some money. These actions do not sit comfortably with a killing in self-defence.
(h) Lastly, you disposed of Mr Ganly’s body immediately after the killing. You travelled back to Avoca and, after collecting your friend Stuart Hutchison, the two of you took Mr Ganly’s car and body to the Avoca Lead Dredge where you dumped them in deep water intending to permanently conceal them. These actions speak eloquently of a consciousness of guilt.
Because I do not accept your account as probable, I am left with the fundamental facts that you shot Mr Ganly in the back of the head at close range and then disposed of his body in the Avoca Lead Dredge. I am satisfied beyond reasonable doubt:
(a) that you took the loaded cut-back rifle to the final confrontation;
(b) that you shot Mr Ganly in the middle of the back of the head when the opportunity presented itself;
(c) that you ransacked Mr Ganly’s car for drugs and valuables immediately after his death as you describe in your record of interview; and
(d) that you went back to Avoca and then, with your friend Mr Hutchison, disposed of Mr Ganly’s body and the car at the Avoca Lead Dredge intending that it would be permanently concealed.
Insofar as circumstances which might be thought to somehow mitigate the gravity of your offending, I accept on the balance of probabilities that you were, at the time of the killing, a drug addict and that it is probable you were affected by your compulsive addiction. I note, however, that in your final record of interview you did not claim to be affected by ice or speed at the time of the killing and that the course of action you adopted immediately after the killing was a coherent, rational and practical one to conceal your crime.
Further, I note that, despite the widespread use of ice and speed in our community, there is no evidence of which I am aware that it is associated with any material increase in the overall rate of homicides in this State. In other words, most ice and speed users are not killers. If they were, then this Court would be facing an avalanche of murder trials.
Next, for the reasons I have already explained, I am not satisfied that the killing occurred in response to threats from Mr Ganly.
Nor am I satisfied that you felt any real remorse for the killing in its aftermath. In your final record of interview, you state that you immediately regretted the killing but the fact is that following it you robbed the dead man’s car and then disposed of his body in a calculated and callous manner. In turn, you did not respond to the search for Mr Ganly when he was a missing person but left his body to rot. It may be that you felt some regret arising out of what you had done but I do not accept that you felt and accepted responsibility for your actions and the loss of another human life. Your counsel accepted in the course of the plea made on your behalf that it could not be concluded that you had demonstrated remorse.
Mr Ganly had lived a troubled life but the victim impact statements from his mother, father, and his siblings and others close to him make clear how deeply his loss has been felt by them. The manner in which you sought to conceal and dispose of his body put his family through an extended period of uncertainty and then presented them with a body which had effectively been desecrated and destroyed. DNA testing was required to confirm Mr Ganly’s identity upon discovery of his body in January 2014.
The Court has received eight victim impact statements from family members from:
a) Veronica Ganly — mother;
b) Peter Joseph Ganly — father;
c) Suzan Ganly — sister;
d) Peter Stephen Ganly — brother;
e) Debbie Soldaini — sister;
f) Ruth Ganly — sister;
g) Veronica Alexander — partner; and
h) Suzanne Lee — partner.
The victim impact statements of Veronica Ganly (mother), Suzan Ganly (sister), Peter Ganly (brother) and Debbie Soldaini (sister) were read to the Court. The victim impact statements, as a whole, are eloquent and anguished documents. They reflect the emotional trauma suffered by Mr Ganly’s family as a result not only of his death, but also of the extended concealment and ultimate desecration of his body.
His mother put it this way:
I do not think I will ever be able to come to terms with the months of not knowing what happened to him and when his body had finally been found after many months I was devastated not being able to say goodbye and not being able to see him one last time.
My heart has been torn out after not knowing for so long, thinking of the terrible things that could have happened and worrying every minute of every day as to what may have happened to him.
Whatever his life course and personal failings, Mr Ganly was loved by his family. You have caused them deep grief and left permanent psychological scars upon them.
I turn then to your own personal background.
In this regard, I am assisted to some extent by the report of Mr Patrick Newton, forensic psychologist, dated 1 August 2015, but it is incomplete in material respects. You are 30 years old and grew up in the Hunter Valley. Your parents’ marriage broke down in your early teens. You experienced disciplinary problems at school and left secondary school after Year 8. You completed Years 9 and 10 by distance education with your mother. Nevertheless, you did well academically. You obtained a distinction in a Schools Science Competition in Year 10 and you were able to successfully pursue musical activities and other creative interests in your later teenage years. In particular, you attained some substantial success with your guitar playing.
Both at that time and since, you have had good relationships with your parents and brothers.
Your work history has been patchy and unstable and it seems clear that you have not been able to sustain stable employment in jobs which you greatly enjoyed such as the work you did with the National Parks Service in New South Wales. The reason for this has been a long history of drug use. Despite completing relevant TAFE certificates, you were unable to work for a period with the National Parks Services after losing your licence to drive and then, after lapsing into heroin addiction, lost your job.
Likewise, you have not been able to establish stable relationships with members of the opposite sex. In a fundamental sense, it seems you have never grown up.
Because of its centrality to the plea made on your behalf, I will repeat what Mr Newton says about your history of drug use:
12.Mr Willis reported a lengthy history of severely problematic drug use. He said that he had begun using cannabis as young as age 13 and that it had quickly become a regular part of his activities. As noted above, Mr Willis’ use of cannabis had a detrimental effect on his general adjustment and school behaviour. Despite this he continued to use the drug on a daily basis until his arrest and he reported no significant periods of abstinence prior to his incarceration. Mr Willis said that his use of cannabis had escalated over the years and that at its peak he was consuming approximately an ounce of the drug over the course of a week.
13.When Mr Willis was aged about 16 he began to experiment with hallucinogenic mushrooms. From age 18 he became ‘full on into the party and rave scene’. In that context he began to use a wide range of drugs including ‘Ecstasy’ (MDMA), amphetamines (‘speed’) and LSD. Mr Willis acknowledged openly that his general adjustment had deteriorated as his use of these drugs continued. As noted above, he was unable to maintain his work commitments and his relationships were confined to short-term liaisons with other drug users. Mr Willis also reported that he had experienced depression associated with his drug use.
14.Mr Willis said that his drug use had escalated markedly from about age 24. At that time he began to use opiates. At first he used oxycodone orally but soon after he began to inject this drug. Mr Willis found the effects of this drug extremely compelling and he rapidly became addicted to it. He said that his use had been compulsive and that he had found himself unable to desist from using the drug despite making attempts (albeit fleetingly) to do so. After about a year Mr Willis ‘graduated’ to heroin, which proved to be even more addictive.
15.Mr Willis commenced a buprenorphine program when he moved to Victoria. Initially this helped him control his drug use, but he relapsed shortly after – reportedly due to the influence of those with whom he was living. Mr Willis said that he had also begun to use methamphetamine in about 2012. He said that initially his use of this drug was relatively sporadic – essentially taking place only when he could not obtain heroin. Mr Willis told me that after his involvement in the death of Mr Ganly, however, his use of methamphetamine increased dramatically. Mr Willis reported that from that time until his arrest methamphetamine had become his ‘drug of choice’ with heroin use taking place comparatively infrequently.
Treatment
16.Mr Willis said that prior to his arrest and remand he had received only minimal treatment to address his drug problem. He said that he had participated in a buprenorphine program briefly but reportedly took part in only the most limited counselling as part of this treatment. As noted above, he derived little benefit from buprenorphine and relapsed to drug use within a short period.
17.Since being incarcerated, Mr Willis has been on a methadone replacement program. He has also attended ‘every drug rehab program [he] could’ and he expressed a strong desire to receive further treatment.
I accept Mr Newton’s account of your drug use history is circumstantial and probable. Although he relied on you for his instructions and, for reasons I have already explained, you are not to be regarded as a reliable historian, the history he recounts accords with the evidence of the lay witnesses at trial, your history of unemployment and dishonesty, and your physical appearance on the video recordings presented in evidence. Moreover, the Crown did not take issue with this history.
You have a prior history of drug and dishonesty offences between 2008 and 2011 but you have no prior convictions for offences of violence. You have never previously been incarcerated.
Mr Newton reports that there is no indication that you were suffering any symptoms of psychological disorder at the time you killed Mr Ganly and reports that you were lucid and oriented throughout the course of the video link interview he carried out with you on 13 July 2015. Your counsel expressly disclaimed reliance on factors relating to mental illness in the plea made on your behalf and, in particular, disclaimed reliance on what we call Verdins’ considerations.[1]
[1]R v Verdins (2007) 16 VR 269.
Mr Newton also expresses the view that your intelligence falls in the low end of the normal range. But, given the limited basis of his assessment and having carefully considered your extended records of interview and the facility with which you have manufactured an ongoing series of inventive exculpatory accounts with respect to the offending, I prefer the view that in fact your intelligence is materially better than this. This view is directly corroborated by what your counsel has put to me about your academic history and your capacity for study and reading and your intentions to study further while in custody.
Ultimately, Mr Newton expresses the following opinion:
1)Mr Willis’ mental status is normal. He described some sadness at being separated from his family, together with some worries about his current legal situation and his father’s health. He did not, however, report any symptoms indicative of clinically-significant mood disturbance or anxiety. His symptoms are assessed as falling in the normal range and he is not assessed as suffering any form of mental disorder.
2)Mr Willis is in a period of enforced remission from a severe poly-substance addiction. His addiction has been sufficiently severe to meet DSM-5 diagnostic criteria for a ‘Severe Substance-Use Disorder’ in connection with heroin, stimulants, and cannabis. He has also used other drugs in an opportunistic fashion. Given that Mr Willis is currently abstinent from all drugs, this condition is specified as being ‘In Remission, In a Controlled Environment’.
3)Mr Willis’ immersion in drug use has impoverished his life and left him with remedial general coping skills. This is particularly so in regards to his social skills. He has had little opportunity to develop these skills since his capacities to engage with mainstream education, employment, relationships and recreation have all been eroded by his ongoing drug use.
4)Mr Willis’ difficulties have been entrenched by his immersion in the drug-using subculture. In turn, the more alienated from mainstream society he has become the more his engagement with drugs has been reinforced in a ‘vicious cycle’ that continued unabated until his placement on remand.
5)While I am reluctant to offer a definitive diagnosis on the basis of a single interview, it is my provisional opinion that the features described above are not a mere complication of Mr Willis’ drug use. Rather, the pervasive pattern of social, occupational and interpersonal dysfunction is strongly suggestive of a ‘Cluster B’ personality disorder.
6)Mr Willis’ thought processes are free from disorder. He is not psychotic and both his reality testing and his moral reasoning are unimpaired. There is no indication to suggest that Mr Willis ever lacked the capacity to understand the nature and consequences of his behaviour or to appreciate their wrongfulness. Mr Willis is estimated to be of low average intelligence.
You have now been in custody for 571 days and Mr Newton further comments that you present as a man whose incarceration has brought you to a point where you are in the ‘early stages of addressing significant personal problems’. He says that, while many of these problems can be traced to catastrophic effects of your longstanding drug use, there are a range of other issues affecting your life. In his view, you will need to participate in intensive long-term rehabilitative work if you are to acquire the skills you require to have a productive life within the mainstream community. Your most important need, however, is for intensive drug treatment.
I have some material reservations about Mr Newton’s opinions and prognosis. He records that you refused to talk to him about your offending and the jury verdict. Unless these matters are frankly addressed it seems to me that any assessment of your psychology and prognosis for the future is fundamentally flawed. In addition, he has, in my view, materially underestimated your intelligence.
Nevertheless, there can be no real doubt that your history of poly-substance abuse has been centrally important in affecting your personality development and character and thus bore directly on your willingness to kill Mr Ganly. Further, it is clear that unless you can address your long-term dependency on drugs and propensity to abuse them, your ultimate future is bleak, no matter what term of imprisonment might be imposed upon you.
Your counsel have made both written and oral submissions on your behalf identifying a series of considerations bearing on your plea and, in particular, your prospects of rehabilitation.
(a) First, references tendered on your behalf from your family and friends of your family describe you as a self-conscious, gentle, thoughtful, caring, compassionate and empathetic person. This is in grotesquely stark contrast to the brutality of your offending and is difficult to reconcile with the full history of poly-substance abuse recorded by Mr Newton. By the time of the killing, your addiction had taken you to a world in which you had no stable personal relationships and had descended to a level of dishonesty and criminality which led you to steal from your grandmother, manufacture an illegal weapon, shoot a man in the back of the head, rob a dead man’s car, drown his body and lie to police repeatedly as to your knowledge of his whereabouts, despite the further grief this would cause to his family. There was no empathy for others in any of this. Your behaviour was governed by the overwhelming selfishness of an addict. Nevertheless, the description of your early character, before you descended into heavy drug abuse, provides part of the context in which your prospects of rehabilitation fall to be evaluated. The letters also evidence strong ongoing support from your family which also goes to the same issue.
(b) Secondly, your counsel submit that your entrenched drug use has had a significant ongoing impact on your life. I accept this is so.
(c) Thirdly, at the time you killed Mr Ganly and disposed of his body you were a desperate drug addict. I also accept that this was so and that it was what brought you to your confrontation with Mr Ganly. Your drug use does not reduce your moral culpability or reduce the need for specific and general deterrence but it does again provide a context in which the question of rehabilitation falls to be considered. When you look at your condition in the video-recorded police interviews, you must be aware that your arrest has taken you out of a desperate world in which you had been reduced to an abject condition.
(d) Fourthly, since you have been on remand you have endeavoured to keep yourself busy and develop new skills. You have been reading books that have been provided to you by your mother on a weekly basis. You have engaged in education and your counsel have tendered an impressive bundle of certificates evidencing your participation and completion of drug and alcohol programs, general educational programs, information technology programs and trade qualification programs. You have also successfully worked for six months in the metal factory at the Metropolitan Remand Centre and acquired spray painting and other skills in that workshop. You hope to complete your schooling whilst in custody and develop other skills such as learning how to read music. Your time at the Metropolitan Remand Centre has been disrupted by recent events and you have been transferred to Barwon Prison. I accept, however, that you have already demonstrated a serious commitment to improving yourself and rehabilitating yourself for a more productive life.
(e) Fifthly, although it cannot be said you have demonstrated true remorse, it is submitted that you have, at least, made some expressions of regret. I accept this is so but it does not seem to me that you have faced up to the fact that your lies have collapsed and, in turn, you have not confronted the horrific reality of what you have done.
(f) Sixthly, it is submitted that you have excellent prospects for rehabilitation, in that:
· you have no prior convictions for offences of violence;
· you continue to have the support of your family;
· you have demonstrated your willingness to engage in programs while in custody;
· you are motivated to address your drug addiction; and
· you regret killing Mr Ganly.
As I have said, these matters fall in part to be assessed in the light of the evidence from your family as to your private character.
There are three other factors which are, in my view, contextually relevant to the question of rehabilitation. First, as I have said, you are, in my view, of at least average if not better intelligence and I regard this as very material to the potential for you to progress to live some sort of considered, responsible, rewarding and productive life. Secondly, at 30 years of age you are still a relatively young man in the society of this day and age in which the seven ages of man each seem to have extended in length as our overall longevity increases. You have never experienced an adult life free from drugs and there must be some hope that when you have this experience for a substantial period of time you will turn away from drug use as a way of life. Lastly, there is the fact that you identify as Aboriginal. Your family on your mother’s side are Gamilaraay people, although you grew up with Worimi people around Gloucester. When younger you worked for a time with the local aboriginal arts centre cooperative. You have also participated in some Koori education at the Metropolitan Remand Centre. It may be that this aspect of your character will also enable you to find a new sense of strength in your identity and to mature. You were a long way from most of your family, your country and the community that might have supported you when you offended.
It follows that I accept that you do have some real prospects of rehabilitation but obviously enough those prospects are directly linked to your drug abuse problems. Moreover, your potential for relapse into heavy drug use carries with it a real risk of further serious harm to the community. You are still dependent on methadone and I agree with Mr Newton’s view that you have a long way to go in terms of drug rehabilitation.
The sentence I impose must bring home to you the true seriousness of what you have done and the fundamental need for you to permanently change your way of life. The risk that this will not occur raises a significant issue of protection of the public. Put simply, if you return to heavy drug use after your release from prison you will, in my view, constitute a serious risk of further violent offending. The sentence I impose must deter you from such a course.
In terms of general deterrence, the sentence I impose must also convey to others that drug-fuelled violence will simply not be tolerated by the community. Society cannot accept the apparently casual killing of another man in the context of drug use. This Court cannot say to those who use ice and other illicit drugs that offences of violence committed in the context of addiction will somehow carry a lower tariff. Those who deprive themselves of the capacity to act with basic humanity and common sense must bear the consequences if they breach the law.
Ultimately, in sentencing you I must impose a sentence that is just in all the circumstances of the case and that is based upon the principle of parsimony. That sentence must reflect the sanctity of human life and the gravity of the offence of murder which is reflected in the maximum penalty of life imprisonment which the law provides. It must also reflect the seriousness of the aggravating aspects of your post-offence conduct relating to the disposal of Mr Ganly’s body. Whilst recognising the matters advanced on your behalf by your counsel and, in particular, the fact that you do have some real long-term prospects of rehabilitation and that these should be maximised, it is nevertheless necessary, in my view, to impose a substantial period of imprisonment.
Mr Willis, I sentence you to 24 years’ imprisonment for the murder of Ricky Ganly. I fix a minimum non-parole period of 20 years. I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have served 571 days in custody (not including today). I direct such declaration be noted in the records of the Court.
I have also made the disposal order sought by the Crown.
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