Regina v Bruce Raymond Paterson

[2001] NSWCCA 368

Reported Decision: 125 A Crim R 252

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Bruce Raymond Paterson [2001] NSWCCA 368 revised - 17/09/2001
FILE NUMBER(S):	CCA 60190/01
HEARING DATE(S):	7 September 2001
JUDGMENT DATE:	7 September 2001
PARTIES :	Regina Bruce Raymond Paterson
JUDGMENT OF:	Sully J at 1; Bell J at 31; Carruthers AJ at 32

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70015/00
LOWER COURT JUDICIAL OFFICER :	Dowd J

COUNSEL :	W. G. Dawe QC - Crown P. R. Zahra SC - Appellant
SOLICITORS:	S. E. O'Connor - Crown Freemans - Appellant
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW)
CASES CITED:	Regina v Ellis (1986) 6 NSWLR 603 Regina v Kalache 111 A Crim R at 152 Regina v Winchester (1992) 58 A Crim R 345
DECISION:	Leave to appeal granted; appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60190/01

SULLY J

BELL J

CARRUTHERS AJ

Friday 7 September 2001


REGINA v BRUCE RAYMOND PATERSON

JUDGMENT

1 SULLY J: On 13 November 2000 the present applicant, Mr Bruce Raymond Paterson, was presented before Dowd J of this Court for trial upon an indictment containing two counts. The first count alleged that on or about 9 August 1998 at Kurrajong the applicant did murder one Peter Graham Astill. The second count was that on or about 25 November 1998 he did maliciously damage by means of fire certain property, namely, a dwelling house at 3 Pomany Street, Kandos, the property of the Department of Housing. To each of those charges the applicant pleaded guilty.

2 In due course, he was sentenced as follows. In connection with the malicious damage by fire count, to a fixed term of imprisonment of four years and six months to commence on 27 March 1999 and to expire on 26 September 2003. In connection with that sentence, the learned primary judge took into account one matter of break, enter and steal on a Form 1.

3 In connection with the murder, his Honour imposed a sentence of imprisonment of twenty-two years to commence on 27 March 2001 and to expire on 26 March 2023. In connection with the sentence, a non-parole period of seventeen years was set to expire on 26 March 2018.

4 The only point of substance put in support of the present application is that the approach of the learned primary Judge did not allow sufficiently for the proper application to the facts of the present case the principles determined by the decision of this Court in Regina v Ellis (1986) 6 NSWLR 603. In order to test that submission, it is necessary to attend in somewhat more detail to the relevant facts.

5 Put very simply, the evidence before the sentencing judge was that the applicant had shot the victim. Thereafter the applicant had dismembered the victim's body by removing its head, hands and lower arms. What remained of the corpse appears to have been taken to a remote location and buried. The head and lower limbs were burned in a domestic heating appliance.

6 At some later time the applicant retrieved what was left of the victim's remains, put them into a large wheeled garbage trolley and dumped the trolley, its lid sealed with particular screws, into a river. In carrying out that last part of this gruesome enterprise, the applicant sought to remove from the garbage bin an identifying number which it then carried. He cut away the part of the bin which carried the number but, unfortunately, the bit he cut away fell into rather than away from, the bin. There it remained until, in due course, the bin was discovered and retrieved, and police investigations commenced into the matter.

7 Those investigations resulted in very short order in the identification of the bin by reference to the particular identifying serial number of the bin; and this led to the identification of the normal place of address of the victim.

8 What then ensued was, broadly speaking, this. The police interviewed the applicant. He gave them an entirely false version of his handling of the bin, notwithstanding that it had been possible to trace the bin to him through the relevant Council records. He denied completely, and of course falsely, any implication in the death of the victim.

9 The police inquiries continued, and in March 1999 the police were contacted by a Dr Ahmed, a psychiatrist who had been consulted by the applicant. The applicant had given Dr Ahmed a version of the killing of the deceased by the applicant. Dr Ahmed quite properly reported to the police authorities what had been thus told to him by the applicant.

10 The police, armed with that material, re-interviewed the applicant. The applicant admitted that he had been involved in the killing of the victim, but gave a version which amounted, put very simply, to an allegation of self defence on his part in the face of an axe attack by the victim.

11 The police inquiries continued further; and the police again, in due course, interviewed the applicant. This time the applicant, while adhering generally to his version of the death of the victim, sought to explain it upon a basis amounting, put simply, to an allegation of provocation: an allegation of which it is sufficient to say that on the available evidence before the primary Judge, there was no possibility of its succeeding.

12 Police investigations continued; and in November 2000 those inquiries and investigations resulted in the obtaining from the applicant's wife of a statement. That statement gave an extended version of the events surrounding the killing of the victim and the subsequent handling of his body, which effectively demolished, if it were accepted, any defence on the part of this applicant to the charge of murder to which he ultimately pleaded guilty.

13 It needs no extended emphasis that, when the sentencing Judge came to consider, as his Honour was first required by the law to do, the objective criminality of, in particular, the murder, his Honour took the view, as he was plainly entitled to do, that the objective criminality of this murder stood at a very high level indeed of objective criminal culpability.

14 It was an horrendous crime, the incidents of which were both bizarre and revolting. No responsible sentencing Judge could have treated it, from the point of view of its objective gravity, as being anything other than an offence calling for the most severe punishment.

15 The learned sentencing Judge plainly turned his mind to the question of what discount, if any, it would be proper to allow for the plea of guilty entered by the applicant.

16 It is true that his Honour does not quantify a precise mathematical percentage discount; but I think that it is clear that his Honour did sufficiently address that question.

17 It would seem to me that any allowance properly to be made for the pleas of guilty, whether on the basis of remorse, or on the basis, often advanced, of utilitarian justification - or, indeed, upon both of those bases, - must, in the nature of this particular case, have fallen very much at the bottom end of the relevant discounting range. That is to say, as the law now stands, in the order of ten per cent.

18 Approached in that way, the sentence of twenty-two years passed in respect of the murder might be understood as equating to an undiscounted sentence in the order of twenty-five or so years. A similar discounting of the aggregate sentences passed in respect of both matters would show, it is true, a somewhat higher overall starting point; but, in my opinion, a starting point not at all outside the proper range appropriate to the circumstances of this dreadful case.

19 It is against that general background that it is necessary, now, to look more closely at the Ellis point as it was put by the learned senior counsel for the applicant.

(1986) 6 NSWLR 603 is one of those decisions of the Court of Criminal Appeal which have come over time to have, as it were, a talismanic effect. It is regularly quoted, along with a number of other well known decisions of the Court of Criminal Appeal, in support of an approach which, in my respectful view, the decision, properly understood, does not really support. The starting point for a proper understanding of the decision in Ellis is the factual basis of the decision.

21 The Chief Justice, when giving the judgment of the Court, refers at the very outset of his Honour's judgment to the factual context of that case as having been "somewhat unusual". I would myself have thought that it was, if not in a literal sense unique, at least quite extraordinary.

22 The relevant facts in Ellis were that Mr Ellis had committed a series of very serious armed robberies. The police had been wholly unable to solve the crimes. In due course Mr Ellis sought the counsel and advice of a spiritual adviser; and, in the course of doing so, disclosed to that adviser that he had, indeed, been the person who had committed this series of then wholly unsolved and serious robberies.

23 The spiritual adviser suggested to Mr Ellis that, in the course of stabilising his conscience and his interior disposition, he might make a full disclosure to the proper authorities of what he had done. In due course, Mr Ellis took that advice, and brought to the attention of the relevant authorities the fact that he had been the person who had committed the unsolved crimes.

24 It seems to me that one has only to consider sensibly the facts of that extraordinary case to understand at once why the Court of Criminal Appeal took the view that, in the sentencing of such an offender, there was an obvious public policy to be served in giving, and in being seen to have given, a significant discount of what would otherwise have been an appropriate sentence. That public policy, obviously, is the public policy of ensuring that a person who commits serious offences; whose commission of the offences is wholly undetected; and who thereafter is prepared to come forward and admit to what he has done; should receive some proper recognition of the fact that, without his voluntary disclosures, serious crimes would have remained forever unsolved.

25 For myself, I cannot think that the facts of the present case in any way mirror the factual situation with which the Court was dealing in the matter of Ellis. I myself would dispose of this appeal upon the basis that the facts before the Court simply do not give rise in any event to an Ellis point, correctly understood.

26 Should it be, however, that that view is mistaken, I would take the view that this was one of those cases in which, to use the language of s 6(1) of the Criminal Appeal Act 1912 (NSW), a different, and more lenient, sentence from that imposed was not "warranted in law".

27 In that regard, I adhere to what I said in the matter of R v Kalache 111 A Crim R at 152. I refer in particular to what is said in paragraph 38 at page 166 of the report. I was there dealing, it is true, not with the Ellis point, but with the point conventionally taken by reference to the decision of the Court in Winchester (1992) 58 A Crim R 345. The principle is, however, in my opinion, equally apt to an Ellis as to a Winchester argument.

28 I expressed in Kalache this opinion:

"It does not, in my opinion, run counter to the general principles stated in Winchester , to recognise that there will inevitably be cases where the sheer enormity of the criminal conduct involved is such as to require that the proper protection of the public, and the maintenance in every other proper way of the rule of law, will entail that the utilitarian principle must, albeit exceptionally, yield to considerations of greater weight".

29 It would seem to me that, given the facts of the present case, this is a case, if ever there was one, when that exception might properly and justly be applied.

30 It seems to me that, on either of those two approaches, there is no cause shown for the interference of this Court with the sentence passed by the learned primary Judge. I would grant leave to appeal and dismiss the appeal proper.

31 BELL J: I agree.

32 CARRUTHERS AJ: I also agree.

33 SULLY J: The orders will be that leave to appeal is granted, and the appeal against sentence is dismissed.