Regina v David Buck

[2006] NSWDC 9

CITATION:	Regina v David Buck [2006] NSWDC 9
JUDGMENT DATE:	2 June 2006
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I sentence the offender pursuant to section 9 of the Crimes (Sentencing Procedure) Act, 1999 to be of good behaviour for a period of five years from today. That bond commences today, the 2nd of June 2006 and ends on the 1st of June 2011.; It is a condition of that bond that within seven days from today he place himself under the supervision of the Probation and Parole Service by reporting to the Gosford office of the Probation and Parole Service within that seven-day period. I require him to submit to their guidance and supervision for such time, as they consider necessary. He is to undertake such programmes, as that service considers important. He is to continue receiving psychiatric treatment under the supervision of the St John of God Hospital until that hospital should release him from the need for any further treatment.
CATCHWORDS:	psychiatric evidence - psychological issues - effect of casualty of war - plea of guilty - state of depression - extortion - good character - gambling addiction - alcohol addiction
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	Regina David Buck
FILE NUMBER(S):	05/11/1121
COUNSEL:	Mr P Hogan (Offender)
SOLICITORS:	Ms A Baht (NSW DPP)

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SENTENCE

Introduction.

1 Every so often, there comes before a criminal court an offender who is quite out of the ordinary. David Buck, a former Lieutenant- Commander in the Australian Navy is one such person. It is tragic to see before me, a man who gave 36 years of exceptional and honourable service to the people of Australia.

2 The circumstances of his being here are bizarre. He went to a registered club in the early afternoon, wearing a backpack, which had wires hanging from it and pretending to be a Jew who was wired up with 11 kg of explosives, which could be detonated from a remote position by Arabs.

3 He presented a note to the manager of the club containing this information and demanding money. In effect, the note purported to have been prepared by a terrorist, who was prepared to blow up "the Jew" and the club, unless the demands of the note were met. In fact, Mr Buck was the author of the note, the person who put the wires in the backpack and the person who thought of this scheme. There were no external terrorists, no bomb and, in reality, no real threat to the club or its members. However, for a very short period, the manager of the club was concerned about the note, and there was a temporary evacuation of people from the club premises.

4 The offender is a victim of war, and someone who at the time of this peculiar incident was getting active psychological counselling to debrief him about a series of traumatic incidents that had occurred, when he served in the Navy. He is a tragic and broken man, who has been exposed in the course of the service in the Navy to terrible events which it is hard for me fully to comprehend. He is someone who could properly be regarded as a hero. In my opinion, for reasons which I will set out, he should be given a sentence, which does not involve full-time custody, but rather, continuing supervision. This sentence, places rehabilitation, above all the other factors, which I am required to take into account in passing sentence.

Facts of the offence.

5 On the eighth of August 2005, the manager of the Umina Beach Bowling club was in his office at about 1:40 p.m., when the club receptionist rang him and told him that someone wished to speak to him about a personal matter. When the manager went to the reception area, he saw the offender, someone he had never previously seen. The offender was wearing a cap on his head, had large tinted sunglasses which wrapped around his eyes and was wearing a long sleeved grey business shirt, dark-coloured trousers, a black belt, black shoes and had a black nylon bum bag around his waist and a backpack on his back. The offender stepped very close to the manager and handed him a note. The note was typed and was all in capital letters. It was in the following terms:

" THE JEW THAT HANDED YOU THIS NOTE IS WIRED WITH 11 KILOGRAMS OF REMOTELY DETONATED EXPLOSIVES-10 KILOS IN THE BACKPACK AND 1 KILO IN THE BAG AROUND HIS WAIST
HE CAN HEAR ME VIA THE RECEIVER IN HIS EAR PIECE, AND I CAN HEAR BOTH YOU AND HIM THROUGH THE MICROPHONE TRANSMITTER HE IS WEARING
TWO OF MY CELL MEMBERS ARE INSIDE YOUR CLUB AND WILL BE WATCHING
RAISE NO ALARMS AND DO NOT ATTEMPT TO EVACUATE THE CLUB OR I WILL DETONATE THE EXPLOSIVES.
YOU ARE TO PLACE ALL THE PAPER MONEY INTO A BAG AND GIVE THE BAG TO THE JEW
THE JEW IS TO CONFIRM THERE ARE NO DYE BOMBS WITH THE MONEY.
YOU HAVE THREE MINUTES TO GATHER THE MONEY AND LEAVE THE CLUB.
ONCE YOU HAVE COMPLIED WITH THESE INSTRUCTIONS, YOU ARE TO DRIVE THE JEW WHERE HE TELLS YOU TO GO AND FOLLOW ANY OTHER INSTRUCTION I RELAY TO HIM.
SHOULD YOU FAIL TO COMPLY IMMEDIATELY I WILL NOT HESITATE TO KILL THE JEW AND ALL THE OTHER UNBELIEVERS IN YOUR CLUB.
ONCE YOU HAVE RETURNED TO YOUR CLUB YOU CAN RAISE THE ALARM WITH NO FEAR OF RETRIBUTION.
IF YOU UNDERSTAND THESE INSTRUCTIONS SAY "I UNDERSTAND".

6 The manager, when he received this note, was understandably a little confused, and did not fully comprehend it, apart from picking up a few key words, such as "explosives", " remote detonation", " money in bag".

7 The manager felt worried and asked the offender: "how long do I have?" The reply was: "it's in the letter." The manager then turned to walk to the front door and told his receptionist to ring the police. She appeared not to understand him properly, but he then walked into the gaming area and approached the maintenance manager to whom he showed the letter.

8 By this time, the offender was standing outside the front door of the premises in an area described as the airlock. The manager arranged with staff to evacuate the premises, and then went into his office and dialled for the police. According to the manager he was concerned that the threat might be serious and felt frightened. There had been an armed robbery, a few months before.

9 The maintenance manager, was a member of the Army reserve, and had experience in detonating explosive devices. He quickly came to hold the opinion that the offender did not have any explosive devices on him.

10 He had assisted in removing patrons from the premises, and it was only after this that he approached the offender. By this time the offender had moved well away from any area containing people and when the maintenance manager next approached him, he noticed that the offender was shaking uncontrollably. By this stage, he was some 30 m from the front door of the club. The offender then moved into the poker machine area and out the front door of the club to a point near where a club bus was parked in the driveway. The offender had his left hand to his right ear, and his right hand was shaking, near his right leg. The maintenance manager noticed that the offender kept walking away. He then approached the offender and said: "okay, I think we have gone far enough." The offender then turned and faced the maintenance manager, who told him to put his hands out in front of him. There was then a quite peculiar conversation, which was in the following terms:

"I can't.
Why not?
They are watching me.
Who's watching me?
The Arabs.
What Arabs?
The ones that put this backpack on me.
What are the Arabs dressed in?
They are dressed like you and me.
Okay, have you got any explosives in your backpack?
No. There is nothing in my backpack. That was a gutsy call by your CEO. What if I did have explosives?
Well, we are well away from the club. We only there to protect our patrons. If you really did have CV you are only going to blow yourself up." The offender then pulled some cigarettes from his pocket and lit and smoked a cigarette.
He then said: "I had to give it a shot. I have big money problems. I just needed the money."
The manager then said: "Mate, I don't know anything about your money problems."
The offender said: "Mate, I am not going to run away. I couldn't run away in a dark night." The offender then unclipped a radio which was fastened around his waist and let it drop to the ground. He then went to unclip his backpack but declined assistance from the maintenance manager to do this.
The offender then said: "Well I suppose, the cops are on their way." The manager replied, "Yes." The offender replied, "Well, don't worry, I am not going anywhere." He then sat on the ground and finished smoking his cigarette.

11 While the two men were waiting for the police to arrive, the offender said on a number of occasions that he had money problems, that he did not intend to hurt anyone and "I suppose I'm gone now." Eventually, the police arrived and removed the offender. The operations manager considered that the offender was a man of sound mind.

12 There were no Arabs in the nearby area and the whole venture was planned and executed by the offender, acting alone.

13 Senior Constable Amos arrived at the scene, with Constable Park, at about 1:55 p.m. Both police approached the offender and the operations manager and arrested the offender, informing him that he was under arrest for attempted robbery. He was given the usual warning, and he then said:

"I did it. I'm short of money, I gave it a go, and it didn't work. I have money problems. I'll go to jail, my wife's going to leave me anyway."
Constable Amos: "why did you do it?
Offender: "I needed money, there is nothing in the bag. It’s full of Thai bibles."
Constable Amos: "what is the battery for?"
Offender: "it's nothing. I just did that to make it look good."

14 Senior Constable Vile approached Senior Constable Amos and Constable Park, and on the instructions of Senior Constable Amos, took the offender to a police truck in the course of doing this, he asked the offender his name, and where he lived. He then said to him: "what has been going on here?" The offender replied: "it's stupid. It's the money. What will happen to me now?"

15 At 3:50 p.m. on the same day, senior Constable Vander Slot and Constable Vidler approached the offender, who was seated in the dock, and after giving him a further warning in the usual form, that he need not answer questions, senior Constable Vander Slot asked a series of questions. Those questions, and the offender's answers were as follows:

Vander Slot. "Can I ask you if you are taking any medication?"
Offender: "yes. Efexor, Epilim, and Cerebrax. Efexor is an antidepressant. Epilim is a mood stabiliser and Cerebrax is for arthritis."
Vander Slot “when was the last time you took this medication?"
The offender: "Efexor and Cerebrax this morning."
Vander Slot: "how much and how often do you take these?"
The offender: "Efexor 150 mg in the morning. Epilim, 1000 mg at night. Cerebrax 200 mg in the morning. If I don't take them, I start to feel dizzy."
Vander Slot: "when you take the medication, how does it make you feel?"
Offender: "it doesn't make me feel anything. It's only when I don't take it, it makes me feel dizzy."
Vander Slot: "have you taken any other drugs today?"
Offender: "only my morning medication."
Vander Slot: "have you taken any other drugs today?"
Offender: "only my morning medication."
Vander Slot: " have you taken any illegal drugs at all?"
Offender: "no."
Vander Slot: "have you had any alcohol today?"
Offender: "no."
Vander Slot: "are you receiving any treatment for mental health or medical issues?"
Offender. "Yes."
Vander Slot: "what's that?"
Offender: "I go to the St. John of God Hospital at North Richmond, for post-traumatic stress disorder and desensitisation."
Vander Slot: "how often do you go there?"
Offender: "I have been going there, since about 2002. I used to do a couple of weeks at a time. I went six or seven times in the first couple of years and saw the psych at least once a month."
Vander Slot: "when was the last time you went there?"
Offender: "probably a couple of months ago. I have missed an appointment."
Vander Slot: "when was your next appointment?"
Offender: "Wednesday the 10th."
Vander Slot: "who is your psychiatrist?"
Offender: "Dr Lavinia Schmidtman, St. John of God, North Richmond"
Vander Slot: "where did post-traumatic stress disorder come from?"
Offender: "from east Timor. I was a Thai linguist. I was the liaison officer between Interfet. I liaised between Thai forces and Interfet. I had 15 separate traumas to deal with. That is what I am de- sensitising for."
Vander Slot: "are you married or single?"
Offender: "married to Michelle Buck."
Vander Slot: "how long have you been married?
Offender: "10 years."
Vander Slot: "how is your relationship?"
Offender: "before today it’s good."

16 Following this, police, with the agreement of the offender and his wife, went to his home and removed his computer for testing. That testing established that he had typed the note on his computer. He was then charged. Police searched him at the police station and extracted from his backpack, two Thai books, a 6V battery, a wallet, some cash and various credit and identity cards. There was also a mobile phone, and some cigarettes. On legal advice, the offender declined to be interviewed electronically.

17 He was kept in custody overnight, and given bail on the next day at the local court. He was on bail at the time he appeared before me.

Background of the offender.

18 The offender was born on the 4th of August 1952 and at the time of the offence was living with his wife. He had previously been married and had three adult children from that marriage. It would appear that he was born in London and came to Australia at the age of 12. He left school at the age of 15 and joined the Navy at the age of 16. He was in the Navy between the 3rd of April 1968, and the 18th of May 2004, on which day he was honourably discharged for medical reasons. He was a junior recruit, when he entered the Navy. At the time of his discharge, he was a Lieutenant- Commander.

19 During the course of his service in the Navy, he did many courses and acquired skills in electronics, engineering, weapons and languages. Until late in his career, he was obviously regarded very favourably. He was promoted regularly throughout his career, becoming a commissioned officer on the 10th of January 1999. On the second of December 1995, whilst a Warrant Officer, he passed a school in the Thai language and was posted to the Australian Embassy in Bangkok. He saw active service in the Solomon Islands, and in East Timor. He was awarded various active service medals as a result of his service with the Navy.

20 After his service in East Timor, he started to display psychiatric symptoms which included compulsive gambling, compulsive drinking and post-traumatic stress disorder. He had extensive periods of leave and of hospitalisation. His claim is that there are 15 major incidents which require debriefing in a psychiatric hospital. Whilst in the Navy and since, he has been treated by psychiatrists at the St. John of God Hospital at Richmond. Further treatment has been scheduled.

21 There is no doubt that he told the police and the club operations manager that money was his motive. However, he has produced evidence to me which establishes that he had no financial difficulties at the time. He was receiving two pensions and associated free medical treatment. He and his wife had money in the bank and their commitments were not large. He has friends who speak well of him and it is obvious from what they say, that what he did was completely out of character.

Reflections on the evidence.

22 The offender, on the day of the offence composed a message on his computer. He then printed this out. He handed this to the Manager of the Umina Bowling Club, but the question arises as to whether he really intended the Manager to act upon it.

23 Indeed, it is clear to me that at the time he was thinking in a far from clear fashion. As soon as he handed the message to the Manager he left the club premises stood outside. If he had an intention of robbing of the club, he seems to have abandoned it almost as soon as he announced that intention by handing over the note.

24 He has said that his intention was to commit suicide by having the police shoot him. This may well have been what he thought would happen, but he told the club operations manager and two police officers that he wanted money.

25 His actions at the club, however, were inconsistent with any intention on his part of getting money from the club. He walked away from the manager, after handing over the note and made no attempt to enforce his demands.

26 I have concluded, after some hesitation, that he intended to present the note which he had carefully composed to give a semblance that he was a Jewish hostage and that there were Arabs somewhere around the place checking on what he was doing, who could explode a bomb, which was strapped to him. He knew that what he was saying in the note was false and was likely to cause some alarm, but to I am unable to conclude that he seriously expected that the Manager to would hand over any money.

27 At the time, he and his wife had ample resources and it was not money that was causing him to act in this peculiar way, but anxiety brought upon him by the psychiatric conditions from which he was suffering. What he did caused considerable dislocation at the club, some initial fear and great inconvenience since police had to be called and great public resources were then consumed in a lengthy investigation.

28 The psychiatric evidence about him is compelling. It is clear that before he left the Navy he was getting intensive psychiatric treatment and that has continued up to the present time. That treatment involved him taking drugs prescribed by a psychiatrist and attending the St. John of God Hospital at Richmond for regular periods as in patient.

29 In my opinion, the psychiatric evidence, and his own evidence enables me to conclude that at the time he commenced to compose the note, he was in a very depressed state, was not thinking rationally and was probably suicidal.

30 All the psychiatric evidence is consistent. He has a chronic case of Post Traumatic stress disorder, which is complicated by a gambling addiction and an alcohol addiction. He needs continuing treatment which will require approximately 15 further periods at the St John of God Hospital at Richmond. In all, 15 months of hospitalization will be necessary, but there must be spaces between each period of hospitalization. The offender must be regarded, in my opinion, as a sick man rather than as a criminal.

31 When he gave evidence, he persuaded me that he was seriously and adversely affected by 15 separate incidents which occurred in East Timor. He described one incident where he was threatened with death by 15-armed men and I would accept that many persons finding themselves in his situation would be emotionally and psychologically injured. He is a casualty of war and deserves to be treated with compassion, rather than punishment. I intend to take a course which will see that he is placed under supervision for some years and encouraged to continue with his psychiatric treatment.

32 He pleaded guilty at the earliest opportunity and is entitled to the maximum discount available on his sentence. In the extraordinary and unusual circumstances of this case it would be inappropriate to impose any type of gaol sentence. Nevertheless, I must makes certain that he is subject to some supervision for some years and it is my intention and to require him to submit himself the supervision of the Probation and Parole Service and to continue his psychiatric treatment.

I make the following orders.

33 I sentence the offender pursuant to section 9 of the Crimes (Sentencing Procedure) Act, 1999 to be of good behaviour for a period of five years from today. That bond commences today, the 2nd of June 2006 and ends on the 1st of June 2011.

34 It is a condition of that bond that within seven days from today he place himself under the supervision of the Probation and Parole Service by reporting to the Gosford office of the Probation and Parole Service within that seven-day period. I require him to submit to their guidance and supervision for such time, as they consider necessary. He is to undertake such programmes, as that service considers important. He is to continue receiving psychiatric treatment under the supervision of the St John of God Hospital until that hospital should release him from the need for any further treatment.

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