Regina v Hill

[2000] NSWSC 259

CITATION:	Regina v Hill [2000] NSWSC 259
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 70033/1999
HEARING DATE(S):	20, 21, 22 and 23, March 2000
JUDGMENT DATE:	27 March 2000
PARTIES :	Regina v Robert John Hill
JUDGMENT OF:	O'Keefe J

COUNSEL :	Ms W Robinson QC (Crown) John Booth for the Prisoner
SOLICITORS:	Solicitor for Public Prosecutions SYDNEY N S W 2000 For Plaintiff Legal Aid Commission of New South Wales For Defendant
CATCHWORDS:	Murder - Maliciously discharging a firearm with intent to do grievious bodily harm - Sentence
LEGISLATION CITED:	Crimes Act 1900, s.19A, s.431B Sentencing Act 1989
DECISION:	Murder 1 - Sentenced to minimum term of 30 years, additional term, life; Murder 2 - Sentenced to minimum term of 25 years, additional term, life; Malicious discharge of firearm with intent (1) - Sentenced to minimum term of 9 years, additional term, 3 years; Malicious discharge of firearm with intent (2) - Sentenced to minimum term of 9 years, additional term, 3 years; Prisoner eligible for parole or release: ; Sentence 1 - 23 February 2029; Sentence 2 - 23 February, 2024; Sentence 3 - 28 February, 2008; Sentence 4 - 23 February, 2008.

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

O’KEEFE J

DATE: Monday, 27 March 2000

No: 70033/99 - REGINA v ROBERT JOHN HILL

JUDGMENT

1    HIS HONOUR: Robert John Hill (the Prisoner) was charged with murdering Bradley James Watson (Mr Watson) and Wayne Lawrence John O’Shea (Mr O’Shea). He pleaded guilty to both these charges. He was also charged with wounding with intent to murder Michael Rasic (Mr Rasic) and Wendy Joy O’Shea (Mrs O’Shea) and with maliciously discharging a firearm with intent to do grievous bodily harm to both Mr Rasic and Mrs O’Shea. The Crown accepted a plea to the charges of maliciously discharging a firearm with intent to do grievous bodily harm to Mr Rasic and Mrs O’Shea. The offences were committed on 21 February 1999 at Berkeley Vale, New South Wales between 2.00 and 3.00 in the afternoon.

2    Immediately prior to the commission of the offences the prisoner had been residing in an industrial unit within an industrial estate at Apprentice Drive, Berkeley Vale. The unit in which he was living was Unit 8. Next to his unit, and separated by a fibrous plaster partition, was a wood working or joinery works conducted by two men, Neville and Barry. Next to Unit 7 was a unit (No. 6) in which Bradley James Watson (Mr Watson) and Michael John Rasic (Mr Rasic) conducted their business of metal working.

3    The industrial estate consisted of two parallel rows of units. The units, 6, 7 and 8 to which I have just referred were in the front row. There was a bitumen roadway that extended along the front of each of the units in that row, giving access to a roller shutter door and a conventional doorway that formed a standard front for each of the units in the complex.

4    At the rear of each of the units there was a conventional doorway which led to an open space which also had a bitumenised access roadway as well as grassed areas. On the opposite side of the bitumen roadway to the rear of the units in the front part of the complex was another set of units. They were of the same construction and general lay out as those in the front section of the complex. They too had roller shutters and conventional doorways in the front and were similarly numbered to the units in the front row.

5    The day of the offences, 21 February 1999, was a Sunday. From the video records and photographs taken on that day it is obvious that it was a lovely sunny summer day. Although it was a Sunday, Mr Watson and Mr Rasic came to work to fulfil some orders so that their relatively new business would prosper. They were in fact exhibiting the work ethic characteristic of many small business enterprises in our country. The evidence reveals that they were decent, law abiding, hardworking men.

6    In Unit 6 in the back set of units, was an electrical switch gear business conducted by Wayne Lawrence John O’Shea (Mr O’Shea) and his wife, Wendy Joy O’Shea (Mrs O’Shea). They came to their place of work on this Sunday in order to retrieve some papers so that they could work on them at home. The evidence reveals that Mr and Mrs O’Shea, like Mr Watson and Mr Rasic, were hardworking, law abiding, decent citizens who were conducting their own business.

7    The occupants of Unit 7 had apparently, at an earlier time, chided the prisoner for playing music very loudly in his unit during the course of the day. The prisoner was at the relevant time not in employment and had not been employed for some time. He frequently remained in unit 8 all or most of the day playing music. On the day of the offences the prisoner claims, and he is supported somewhat by Teresa Ellis a girlfriend with whom he was having a relationship, that he heard music, which he described as loud, coming from unit 7. As it happened, at the time of the offences, neither of the occupants of unit 7 was in the unit. They had left. However, the prisoner claims that the music was still playing and he, clearly believing that they were still in unit 7, got dressed into a leather jacket, boots, leg protectors and a large raincoat garment, known as a Drizabone. He then got a Winchester Magnum .22 calibre rifle and smashed his way through the partition separating the unit he was occupying from unit 7. Finding that there was no one there he trashed the place, smashing two radios, a wall telephone and a number of other items that were in the unit. This destruction was clearly an act of vengeance. It was deliberate and unwarranted.

8    Not satisfied with the damage he had caused to the property of those who were the object of his annoyance or anger, he went out of unit 7, back through his own unit to a spot just outside the front of unit 6. The door of that unit was open and Mr Watson and Mr Rasic were plying their trade. Mr Watson was welding; Mr Rasic using a grinder and as a consequence wearing ear muffs.

9    Notwithstanding his ear muffs, Mr Rasic heard a noise and looking up saw the prisoner. Although he was aware that the prisoner had something in his hands, Mr Rasic was unable to see what it was because of the position of the prisoner’s hands and the work tables and other materials that were between Mr Rasic and the prisoner. Mr Rasic says that when he looked up and around and saw the prisoner, he was not able to see his workmate Mr Watson. This is clearly because Mr Watson had already been shot and, although not yet dead, had slumped to the ground.

10    Mr Rasic quickly became aware of what it was that the prisoner had in his hands. The prisoner raised his hands. They were holding the Winchester rifle. Mr. Rasic saw the prisoner take deliberate and careful aim at him. Mr Rasic, believing that he was about to be shot, raised his left arm and placed it across his body. It is probable that this action saved his life. At the same time he said the word, “sorry”, thinking that the prisoner was angry with him because he had reported to the management of the complex that the prisoner was living in unit 8 although, apparently, this was not permitted under the rules governing the conduct of the complex. However that may be, he had no sooner said the word “sorry” than he felt a stinging pain in his left elbow. He too had been shot, although he did not realise it at the time and was unaware that the bullet, having hit his elbow then had entered his chest and lodged in his lung close to his aorta. Un-beknowns to him at that time, Mr Rasic had narrowly escaped death, by only some 3 mm in fact. However, because of the plea accepted by the Crown in relation to this act, I am limited in conclusions to which I can come in relation to the intention of the prisoner.

11    Understandably terrified for his life, Mr Rasic threw himself to the floor, rolled under a table and then made as speedy an escape from the unit as was possible. On exiting the unit he immediately stepped to the left a couple of paces to take himself out of view, and hence line of fire, of the gunman in unit 6.

12    Mr Watson had fallen to the floor and was bleeding fairly profusely from his neck wound. Whilst he was in that position the prisoner came up to him and deliberately shot him through in the head, blowing his brains out and killing him instantly. It was brutal. It was callous. It was deliberate. It was a coup de grace; an execution.

13    After leaving Unit 6, Mr Rasic ran from the complex as fast as his condition would allow. He sustained no further injury and neither heard nor saw anything more until he observed the prisoner making his escape from the scene in a Volkswagon car.

14    Mr and Mrs O’Shea had just left and locked their work unit and were in the course of walking to their Volkswagon commercial vehicle. They heard a loud noise which Mrs O’Shea thought might have been an explosion of some kind as a result of some industrial mishap in unit 6. Mr O’Shea said, “Somebody might be hurt, I’ll go and have a look”. He then, anxious to be of assistance, changed course and headed towards unit 6. He was acting out of concern for his neighbours, a good Samaritan.

15    Mrs O’Shea concerned that she may be confronted with a distressing scene as a result of the accident moved towards their van to gain her composure. At about that time she saw a man, in work clothes, running from the back of unit 6 and continuing up the bitumen driveway towards Apprentice Drive. It was obviously Mr Rasic escaping from the prisoner.

16    Mrs O’Shea then heard her husband say: “Wendy I have been shot”. Mr Rasic says he heard a woman scream, saw Mr O’Shea on his knees and heard him yell, “Run darl, I’ve been shot”. Mrs O’Shea continued screaming. She looked over and saw her husband slumped down on a grass patch that runs along the back of a car park. He was not yet dead, but whilst his life was clearly close to its end, his concern was for the safety of his spouse. He was only 39.

17    At the same time as Mrs O’Shea saw her husband on the grassed area to which I have referred, she also saw another man. It was the prisoner. He was standing just out of the open door of Unit 6 and was holding a rifle, a long one, above waist height. She saw the prisoner point it in the general direction of Mr O’Shea. Mrs O’Shea’s impression of the man was that he reminded her “Of a calm, cool, cowboy type in a Western movie”. No doubt this impression was assisted by the fact that the prisoner had, before breaking through the partitioning into unit 7, donned, inter alia, his Drizabone waterproof coat. It is a coat of a type commonly worn by country people, including those who are mustering or attending to stock. I shall return to the donning of clothing by the prisoner a little later.

18    On seeing the prisoner, Mrs O’Shea tried to hide behind the O’Shea’s van. From this position she saw the prisoner walk towards the van. He was obviously looking for her, in effect stalking her. He appeared calm, didn’t run or do anything else that suggested agitation. The prisoner then saw Mrs O’Shea. His response was to raise his rifle to take aim. She believed that he was about to fire and ran for her life. Fortunately for her she remembered thinking of the movies and as a consequence she zigzagged as she ran so that “The man with the gun couldn’t take a straight aim at me and shoot me”. Nevertheless, as she ran she felt a push from behind on her left side and looking she saw blood spurting from her left shoulder area. The prisoner had shot her in the back as she fled the scene. Again, because of the plea accepted by the Crown in relation to this act, I am limited in the conclusions to which I can come in relation to the intentions of the prisoner.

19    When the crime scene was examined by forensic police later that day, two expended cartridge cases were found outside, but proximate to, the front door of unit 6. These would seem undoubtedly to be the cartridges from the two bullets that had been first fired at Mr Watson and Mr Rasic respectively. Inside unit 6 a misfired cartridge and two fired cartridge cases were found, one in reasonably close proximity to the body of Mr Watson and another under shelves in that general area. At the rear of the premises in close proximity to the O’Shea’s van two fired cartridge cases and one misfired cartridge were found. This means that the prisoner discharged or tried to discharged a total of eight bullets, two of which misfired and four of the other six of which hit their targets killing two and quite seriously wounding another two.

THE LEAD UP:

20    The evidence reveals that the prisoner stayed with Sandra Wilson at 10 Birdwood Avenue, Blue Haven on the nights of Friday, 19 February and Saturday, 20 February, 1999. Whilst he had been drinking before he drove over to Ms. Wilson’s house that first night, although he was in no condition to drive, he had nothing to drink on the Friday night at Ms. Wilson’s nor at any time while she was with him during the Saturday on the night of which they watched a movie together. Her evidence was that he did not take any pill or abuse alcohol at that time. He left at about 8 o’clock on the morning of Sunday, 21 February, 1999 and when he did so he was “stone cold sober”.

21    His relationship with Ms. Wilson had been intimate but intermittent. She had left her husband in August, 1998 and had formed an association with the prisoner which would break up, reform, break up again and reform again because the two of them, according to Ms. Wilson “could not stay apart” (T70). She had told him on several occasions that she wanted to end the relationship because he had no job, no motivation, an outstanding sentence for community service and would drink heavily. However, he would then ring Ms. Wilson tell her he was going to commit suicide and she would take him back..

22    Having left Ms. Wilson’s premises on the morning of Sunday, 2l February, 1999, the prisoner went to his Unit No. 8 at Apprentice Drive, Berkeley Vale. A young woman of 21, Teresa Louise Ellis, was there. She had met the prisoner through Tina Jersov with whom the prisoner had previously had a relationship and who had born him a female child. At the time Ms Ellis met up with the prisoner, he had just broken up with Ms. Jersov. At that time, he was using amphetamines and indulging excessively in alcohol and would deliberately “trash things” belonging to Ms. Jersov.

23    Ms. Ellis and the prisoner formed an association of a sexual nature. Ms. Ellis had left her husband and planned on moving into the unit at Berkeley Vale. She did so and lived there for some time together with the prisoner. However, he would be away at night from time to time and she thought, correctly as it emerged, that he had another girlfriend. Subsequently, the two of them parted but shortly before the events the subject of the charges, Ms. Ellis returned to Unit 8 in the industrial complex at Apprentice Drive, Berkeley Vale.

24    Ms. Ellis’ evidence reveals that the prisoner stayed with her on the night of Thursday, 18 February, 1999 and then the two of them spent most of the day Friday in Unit 8 playing music and watching videos. However, on the Friday night he did not remain in the unit, returning at about 3.30 on the afternoon of Saturday, 20 February, 1999. There is nothing in the evidence to suggest that he was then affected by alcohol. The two of them talked and decided that they were “going to get a house together and start a new life”. However, the prisoner left on Saturday evening (to go to Ms. Wilson’s house) returning at 8.16 a.m. on Sunday, 21 February, 1999. Ms Ellis was in bed when he arrived but he came over to the bed and said “I promise I will never do this to you again. I’m going to stay put here with you.” This almost mirrors the conversation that he had had with Ms. Wilson and part of one which he had on the telephone with Ms. Wilson after the events giving rise to the charges to which the prisoner has pleaded guilty.

25    I refer to the foregoing matters to chronicle the movements and absence of drugs and alcohol for a substantial period prior to the afternoon of 21 February, 1999 and to instance manipulative behaviour by the prisoner. I shall return to this characteristic and its significance later.

26    Having arrived back at Unit 8, the prisoner began working on the carburettor of his Volkswagon, because the vehicle had been backfiring. This apparently went on for some time and was followed by the prisoner and Ms. Ellis cleaning the car; the prisoner polishing, Ms. Ellis vacuuming.

27    During the course of the day, Ms. Ellis saw the prisoner take a tablet and saw the packet from which it was taken, thrown in the rubbish bin. The packet was later found by forensic police to be empty. The tablet was Zoloft; the dose 100 mgs. At a time before the shootings, Ms. Ellis went outside for some fresh air and saw the occupants of Unit 7 working. After the exchange of some minor pleasantries, she went back inside and discussed with the prisoner what had occurred, who told her that they had asked him to turn down the volume of the music which he was playing. According to Ms. Ellis, it was always played “reasonably loud”.

28    When the car was half polished, the prisoner had some tequila and lemon Solo. Some time later, he had “another drink of tequila and a smoke”. On the direct evidence from other than the prisoner, this is the only thing to indicate that the accused had had any alcohol or drugs prior to the shootings. True it is that an empty can of Jim Beam (bourbon and coke mix) was found on the floor of the garage and in the video taken on the day in question an empty Jack Daniels bottle was seen on a pile of leaves some metres from Unit 8 in a direction opposite to the route taken by the prisoner in the course of his escape. There is no evidence whatsoever as to when that bottle was placed there or by whom. As to the Jim Beam can , there is nothing to indicate when its contents were consumed or for that matter by whom. In this regard it should be remembered that Ms Ellis was with the prisoner all day except for a quite short period when she went outside for a breath of air. She did not see the prisoner consume any alcohol other than the tequila to which I have referred.

29    Shortly before the shootings, the prisoner who was then wearing a black Tshirt and a pair of black jeans, got up and took the black T-shirt off. He put on a long sleaved Harley Davidson T-shirt and then jacket over the top. He tucked it into his jeans and then put on a black leather jacket. He was wearing black leather lace up boots, but despite the fact that it was a summer’s day he put leg protectors over his jeans. Whilst all this was occurring he was playing a song called “Living End” over and over, the words of which included something to the effect “No one tell us what to do”. It was on a compact disc entitled “The Living End. Second solution prisoner of Society.”

30    When Ms. Ellis asked why he was dressing in the way he was, he said “I’m playing a game”, then he put on his Drizabone coat, some black leather gloves without fingers (of a kind that shooters commonly use) and donned a black beanie. The prisoner then proceeded to get bullets from a large cupboard, four boxes in all. He took all the bullets out of each box and put them into the pocket of his Drizabone. At this time Ms. Ellis observed a rifle on the bed.

31    Shortly after 2 p.m , Ms. Ellis received a telephone conversation with her mother, after which she informed the accused that her mother and father had agreed to give them some money “for a house”. At this time, there was a radio playing in Unit 7 which was “pretty loud”. The prisoner said:

“The fucking cunts have left the radio on next door. If they’re not working in there, I’m gunna kick the wall in and smash it.”

32    Although Ms. Ellis tried to dissuade him, he picked up the rifle from the bed, kicked the fibro dividing wall in and went into Unit 7, rifle in hand. She heard noise caused by the smashing of the items I have previously referred to. The prisoner then came back through the hole in the wall, and as he was going out of Unit 8 in an angry tone, he told her to pour him a drink. She did but he did not drink it. He was already gone. I am satisfied that the glass which is visible in the video on the table in Unit 8 and contains clear liquid, is the tumbler into which Ms. Ellis poured the alcohol. It is the only glass to be seen in the video which records the contents of the whole of Unit 8 and it is on a table that answers the description of the table that is referred to by Ms Ellis.

33    I am satisfied beyond reasonable doubt that in a period of at least eighteen hours prior to the shootings, the prisoner had not had a lot of alcohol and no excess of drugs whether prescribed or otherwise. The evidence strongly supports his having had two tequilas and one zoloft. The prisoner’s ability to dress without difficulty, and aim accurately and fire his rifle on a number of occasions, drive the Volkswagon motor vehicle from the scene and discard some of the clothes he was wearing at the time of the shootings are all suggestive that his condition was not such as one would expect would result from his having drunk a lot of alcohol and taken a number of anti-depressant and other pills that can interact with alcohol.

AFTERMATH
34    Following the shootings, the prisoner fled the scene but before doing so, he returned to Unit 8, put his rifle in the Volkswagon car, got some cigarettes, took the residue of the tequila that was in the bottle on the table and said: “You’ll read about me in the newspaper”. This showed, undoubtedly, that he knew what he had done, and that its enormity was such as to attract media attention.

35    Mr. Rasic saw the prisoner, when leaving the premises, accelerate his vehicle up the car park area of the industrial complex, flash the headlights and wave his hand to someone. The only other persons present in the area at that time was Ms Ellis.

36    Shortly before 3 p.m. the prisoner rang Ms Wilson and told her that he had shot the people next door because they wouldn’t turn the music down. He said the people had gone home and left the music on so he went to the car and shot three people. He went on to say that he was on the run, that the police were on to him and that he was going bush. At this time, the prisoner is unlikely to have known that he had actually hit Mrs. O’Shea, notwithstanding his endeavours to do so. However, his conversation with Ms. Wilson shows a recollection of events inconsistent with his later claim to a complete lack of recollection of anything that had occurred. It also showed that he was all too aware of his criminality.

37    Significantly, in this conversation he first blamed the noisy music next door for what he had done. However, a little later in the conversation having protested that he didn’t want to live without Ms. Wilson, only wanted to live with her and would have got a job, he then said: “I told you not to push me and now you’ve pushed me too far.” He was clearly seeking to put the blame on Ms. Wilson for the events because she had “pushed (him)too far”. This conversation thus showed not only a clear understanding of what he had done, but also that others were to blame for it.

38    A little later, he telephoned Ms. Ellis and in the course of a conversation in which the events were obviously discussed, he said that he had done something terribly wrong and that: “The club’s driven me to this.” From the context in which this was said and from the knowledge of the prisoner’s past, she knew that the Club meant the Commancheros; “this” was clearly what he knew he had done. Thus again he demonstrated knowledge of what he had done and again sought to shift the blame on to someone else.

39    The prisoner was next sighted, fleetingly, escaping from the site at high speed, but thereafter, except for the phone calls he made to which I have already referred, he was unable to be contacted on his mobile telephone or otherwise and did not present to any of the members of his family or to the police until two days later.

40    When the police searched Unit 8 they found 9 large hunting knives, 5 large ornamental swords, 1 Samurai knife, 1 bayonet and 4 folding knives. They also found 4 empty Winchester 22 Magnum ammunition boxes. These are a clear testament to the prisoner’s continued fascination with dangerous weapons and indicate the extent to which he was prepared to ignore the terms of the bond given to him in the District Court in August 1998. So much for leniency and giving him a chance.

41    At about 11.00 p.m. on Tuesday, 23 February 1999, the prisoner came to the home of his brother Peter. It had been in the granny flat at the rear of Peter Hill’s residence that the prisoner had lived for some time and from which he had left some eight weeks prior to the shootings. On arriving at his brother’s home , the prisoner’s first thoughts were for himself: “I could do with a good feed and a shower” . These were provided, as was a change of clothing. Some conversation took place in which the prisoner wanted to know what sort of trouble he was in. He was told. In the course of the discussion his son, Jason, asked him where he had been and how he got to Peter Hill’s place. The prisoner’s response was, “Don’t know. I can’t remember”. This was clearly untrue, as emerged from his conversations with police at Toukley Police Station less than two hours later. His brother Michael then asked him, “Why did you do it”? To which he responded, “Don’t know. I can’t remember.” This too, in my opinion, is untrue. He clearly remembered what he had done in the phone calls to Ms Ellis and Ms Watson and he had proffered up to that time no fewer than three reasons, and at a later stage to his psychiatrist he advanced yet another reason.

42    Arrangements were made for the prisoner to surrender himself to the police at Toukley Police Station. This he did in the very early hours of the morning of Wednesday, 24 February 1999. There he told the police that he did not remember much, “I just came out of it about 3.00 p.m. today”. He denied knowledge of where the rifle was, and the car. He was given an opportunity to contact a member of his family. He nominated his son, Jason, and gave a reason for that nomination, which was cruel and contemptible and says much about the anger in and character of the prisoner.

43    He was then conveyed to The Entrance Police Station where he was placed in the dock and asked a number of questions. He declined to make a statement saying he wanted to speak to his solicitor beforehand. However, he did say that all he remembered of the events was getting out of his chair and the next thing waking up in the bush. He claimed to have been near Mangrove Mountain, walking in the bush for two days. He told others that he had eaten flowers. He told the police that he remembered lighting a fire about 20 feet away from a creek. He said that he had followed power lines along a fire trail, had got a lift to a shop near Wiseman’s Ferry, another ride to Wyong and then that he had hitchhiked to Budgewoi. To his previous statement that all he remembered was getting out of the chair and then waking up in the bush he added the embellishment, “I popped a few pills and was drinking bourbon”. Again, as I have indicated earlier, this is inconsistent with the evidence of Ms Ellis who was there and observed him and whose evidence as to this I accept.

44    The prisoner declined to make any statement, as was his entitlement, and the record of interview is thus of no assistance to the prosecution or for that matter the prisoner. However, before making it he claimed not to remember where his Volkswagon was or where his rifle was.

VICTIM IMPACT STATEMENTS
45    As would naturally be expected the death of two decent men very much in the primes of their life and the serious wounding of two upright and law abiding citizens for no reason other than the unresolved anger of the prisoner has had a marked effect, not only on those who suffered physical injury, but on loved ones of both the dead and the injured.

MRS O’SHEA
46    Mrs O’Shea has suffered a double loss. First, the terror and trauma to which she herself was subjected by being stalked and shot. Second, the loss of her husband occurring as it did before her very eyes, when she was unable to do anything to help him because of the frightening circumstances in which his life was taken.

47    Mrs O’Shea has suffered physically. She still has impairment of her thumb and two first fingers on the left hand which produces clumsiness. She also faces the possibility of a further operation; a prospect, “which I dread”. Financially she has suffered significantly, joint debts now becoming her responsibility and the problems of running the business on her own, daily concentrating her mind on her loss. Emotionally she has been sorely affected. She is nervous, tearful, lonely, unable to face even the routine existence of work. Her sense of loss is deep and abiding. Spiritually she has been searching for a reason to go forward, seeking to understand the meaning of life (and death) and why terrible things like those which happened on 21 February 1999 at the hands of the prisoner occur. Her life “is currently just a void”, but she is hopeful that “there is some worthwhile end to all this pain.”

MR RASIC
48    Mr Rasic, who is 38 years old not only came close to death, but suffered severe pain as a consequence of his physical injuries. Although his pain has partly resolved he continues to suffer on-going pain in his left sternum where part of his lung was removed as a result of infection related to the path of the bullet which entered his chest. He continues to suffer diminished lung capacity with consequent difficulty in breathing, as well as emotional sequelae of his experience on 21 February 1999. These include loss of concentration, lack of sleep, flashback dreams, a sense of terror. He worries that if he had done something different he may have prevented the death of his friend or the shooting of other people. Distress about his inability to focus and concentrate on his work, tearfulness and an unrealistic, but genuine, fear that the prisoner might escape and “finish his off” are all frequent experiences for Mr Rasic and highlight the post-traumatic stress disorder, anxiety disorder and clinical depression which the prisoner by his actions has produced in Mr Rasic. His business has suffered as a consequence and he feels that he has a lack of resilience. He is emotionally labile and preoccupied with flashbacks to and memories of the incidents in which he was involved; concerned with his ability to survive financially and make proper business decisions. Clearly his life has been changed and according to the psychological report “it is impossible to say what the duration of Mr Rasic’s condition may be”. As his symptoms have persisted to date the psychologist has concluded that “it is unlikely that they will abate in the foreseeable future.”

MRS ANNETTE WATSON
49    Mr Watson’s mother, Mrs Annette Watson, naturally misses her son deeply. Periods of constant crying have characterised her life since her son’s brutal death at the hands of the prisoner. She feels deprived both of the companionship and assistance that her son gave her. She has sought medical treatment and is in need of counselling. As emerges from her husband’s statement, the anxieties, stresses and tensions produced by their son’s death have impinged on their own relationship giving rise to explosive arguments that did not occur before. So great has been the effect and the constant reminder of their son by the surroundings of which he was an integral part that they have sold their home and moved away.

50    Like his wife, Mr Watson experiences a sense of deep loss, shock and trauma which he has tried to deal with by being strong to assist his wife, although at times he has great difficulty in so doing.

MRS O’SHEA (Senior)
51    Mr O’Shea’s mother has also recorded her response to the death of her son. In a poignant letter of 15 March 2000 she has poured out her innermost feelings. The loss of her son, a strong, active, healthy man in his prime. She re-lives receiving news of his death and going to the hospital where his body and his wife were. She too questions why it is that a man like her son should be killed and a woman like her daughter-in-law injured “for no reason”. Hopefully she will fulfil her wish to start living again. Whilst she says that “Only God knows … my feelings”, the Court and the community share her grief and the grief of all those who have been affected by the acts of the prisoner at Berkeley Vale on the afternoon of 21 February 1999.

SENTENCE
52    The crimes committed by the prisoner are heinous. They were committed out of anger; anger that had manifest itself well prior to 21 February 1999. For example, the breakups of previous relationships with a series of women had been acrimonious. He had threatened to kill Ms Wilson’s husband, Neil, on several occasions. Those threats were that he was going to “cut his throat”, “blow his brains out” and the like. He “bashed” the brother of his then girlfriend ,Tina Jersov. He assaulted her on a number of occasions, including one instance shortly before she left him where he punched her on the head and face whilst wearing a large number of rings on his fingers, causing severe bruising.

53    He was attracted to firearms and other weapons and, according to Tina Jersov, was well versed in the use of rifles, shotguns and pistols, all of which he had in his possession whilst he resided with her. He already had convictions for possessing prohibited weapons in 1979 and again in 1997. On this latter occasion he was sentenced to three months imprisonment for possessing both an unlicensed firearm and other prohibited weapons. However, on appeal to the District Court, whilst his conviction was confirmed his custodial sentence was varied to substitute 250 hours of community service and he was required to enter into a good behaviour bond for a period of two years from 20 August, 1998. As at the date of the offences now before the Court, the prisoner had not performed any of the community service and was clearly in breach of his good behaviour bond in having the rifle and other weapons to which I have previously referred. Furthermore, he was facing a charge of driving whilst having in excess of the prescribed content of alcohol in his blood.

54    Alcohol and drug abuse seem to have characterised the life of the prisoner from about 1991 when he joined the Commancheros, a notorious motor cycle group.

55    It is clear that the prisoner has within him a lot of unresolved anger. He was said by Ms Ellis to have been “really angry” prior to the shootings. On admission to the prison on 24 February 1999 he was sent to the medical section, where he was recorded on intake as being a “very angry man”.

56    He is manipulative, as his threatened and claimed suicide attempts witness. Two instances in which he claimed to have attempted suicide and been admitted to hospital as a consequence, at Lithgow and Portland hospitals, were not verified by any hospital records. It is certain that the prisoner used threats of suicide to his girlfriends as a means of emotionally blackmailing them.

57    The prisoner is untruthful. His account as first given to the police after he gave himself up was more fulsome than his claims to remember nothing on later occasions when he had had more time to think and hence to present himself in a less unfavourable light. However, he was again somewhat more forthcoming to Dr Westmore.

58    Dr Bruce Westmore, an eminent and experienced forensic psychiatrist to whom the prisoner was referred by his legal advisers, describes him as having been “a happy child who was not exposed to early trauma such as violence or sexual abuse.” He was however a person who had “evidence of personality dysfunction with strong anti-social qualities and possibly an anti-social personality disorder.” Notwithstanding that diagnosis, Dr Westmore, did not believe that the prisoner suffered from a mental illness in the sense that he would qualify for a mental illness defence and furthermore that the nature of his actions at the time of the shootings did “not suggest or support the proposition that he was organically impaired at the time.” According to Dr Westmore, whose opinions in relation to the prisoner I unhesitatingly accept, there was “no evidence that he was so affected by drugs and/or alcohol that he was not able to act in a purposeful goal specific fashion in relation to the homicides”. The fact that he was able to use the rifle with frightening effect on a number of occasions and drive a motor vehicle from the scene “suggest some cognitive skills” as Dr Westmore says. The prisoner’s prognosis is uncertain, but he is said to need counselling and treatment for his depression.

59    Dr Westmore’s view about the personality disorder of the prisoner is confirmed by psychological testing undertaken by Duffy Barrier Robilliard, Psychologists. In reviewing their report, the inconsistencies between the known facts and the way in which the prisoner presented himself to that practice is marked. Denial of previous violence; a claim that he hears Tina Jersov telling him to harm himself are examples. The former is clearly untrue, the latter inconsistent with the findings that the prisoner has “no clinical manifestations … (of) delusions or hallucinations”.

60    The report of Professor Stamer, Pharmacologist, details the interactions between various drugs which the prisoner claims to have taken. When interviewed by Professor Stamer the prisoner denied all knowledge or recollection of the events of 21 February 1999 - to use the prisoner’s words the “game” in which he was to be the principal player. However he claimed to remember “popping pills and drinking bourbon” - a claim inconsistent with the evidence of Ms Ellis. The prisoner sought to excuse his actions by reference to drug taking. This was an excuse advanced by him for his actions and as I have already indicated I do not accept his assertions in this regard, notwithstanding his history of drug taking and his conviction for possession prohibited drugs and plants. Furthermore, the combination of drugs asserted by the prisoner to have been taken “would be expected to cause excessive drowsiness” in a person, according to Professor Stamer. No such drowsiness was claimed by the prisoner nor observed by any one who saw him that afternoon. The report indicates that if alcohol was used “in excessive amounts there might be diminished control over an anti-social response”. (Italics added). However, as Professor Stamer says, whilst a number of interactions were clearly possible, “it would be speculation to attempt to predict what the outcome might have been”.

61    These medical and psychological opinions reinforce the view that I have already expressed that the actions of the prisoner were not the consequence of the ingestion of excessive drugs or alcohol on the day on which they occurred.

62    The prisoner terminated the lives of two decent men for no other reason, but that he was an angry man, who when angry tended to resort to violence. He seriously wounded two other people in the same circumstances. Community response to the deaths and woundings could properly be expected to be extreme; revulsion at the senseless acts, fear that there are people like the prisoner at large in the community, concern that there be proper punishment for people who do acts of the kind done by the prisoner on 21 February 1999.

63 Section 19A of the Crimes Act provides that a person who commits the crime of murder is liable to penal servitude for life which, by virtue of s.19A(2), means “for the term of the person’s natural life”. The rigour of this section is, however, modified by s.431B(1) which provides that:

“A court is to impose a sentence of penal servitude for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution punishment community protection and deterrence can only be met through the imposition of that sentence.”

64    There can be no doubt that the level of culpability of the prisoner is extreme, his crimes heinous. There can be no doubt that the community interest in retribution, punishment, community protection and deterrence is high. However, before coming to a conclusion in relation to whether such community interest is so high that it can only be met through the imposition of a life sentence, it is necessary to consider the matters that have been raised by counsel for the prisoner.

65    Throughout the proceedings the prisoner has been ably represented by experienced and diligent counsel, Mr Booth, who has given to the court the benefit of substantial and valuable research in relation to the matter. Mr Booth has presented to the court a series of cases in which life sentences have been imposed and has argued that the instant case is less heinous than the cases to which he referred. These are set out in Part I of the Annexure to this Judgment. He has also presented a series of cases in which less than life sentences have been imposed in cases in which, so he argued, the heinousness of the offences was no greater than in the present case. These are set out in Part II of the Annexure to this Judgement. He has further presented and argued from two schedules of re-determination of sentences by the court pursuant to s.13A of the Sentencing Act, 1989. These are set out in Parts IIIA and IIIB of the Annexure to this Judgment.

66    An analysis of these cases, in my opinion, establishes that it would be within the parameters of previous sentences for the prisoner to have imposed upon him a life sentence having regard to the totality of the events on the day in question including the brutal, callous, deliberate execution-like killing of Mr Watson.

67    However, there are other factors to consider.

68    Mr Booth argued that a life sentence should not be imposed because of the following considerations:

1. That the crimes were not premeditated.

2. That because of the Crown’s acceptance of the plea to the lesser charges concerning Mrs O’Shea and Mr Rasic and the possibility that Mr O’Shea was struck by a bullet intended merely to wound Mr Rasic, the degree of the prisoner’s culpability was reduced.

3. Alcohol and drugs were a factor which either mitigated or at worst were neutral in relation to the actions of the prisoner .

4. Related to this, the disinhibition of the prisoner by virtues of the matters referred to in 3 above. This explains, but does not excuse the crimes, as Mr Booth boldly but frankly submitted .

5. The plea of guilty.

6. The fact that the prisoner felt manipulated.

7. The prospect of rehabilitation since the prisoner could be maintained in constant psychological appraisal during the course of a prison sentence which, it was accepted on by counsel for the prisoner, must necessarily be long.

As to 1 (that the crimes were not premeditated).
69    Premeditation does not necessarily involve plotting and planning over a lengthy period. It simply involves deciding deliberately to do the act charged, taking steps to prepare for the act and then carrying it out. That is what the prisoner did in this case. He became angry. He dressed for the occasion. He decided to have what he called “a game”, a deadly one. He got his gun. He took up a lot of ammunition. He smashed through the wall as he said he was going to do and then when he was not able to vent his anger on the occupants of unit 7 sufficiently he did so on the innocent occupants of unit 6 and on the good samaritan, Mr O’Shea, and his spouse.

70    In my opinion this ground of mitigation has no substance.

As to 2 (that is the acceptance of the plea to the lesser charges and the possibility that the bullet which killed Mr O’Shea was only intended merely to wound Mr Rasic).

71    Even if one were to accept, that the prisoner had no intention of shooting anyone but Mr Watson and Mr Rasic, nonetheless the plea which has been entered to the charge of murder in respect of Mr O’Shea is consistent with a deliberate shooting of Mr O’Shea. Even if it were not, the shot was discharged in circumstances in which there was malice. Furthermore, the killing of Mr Watson involved a two step process. First, trying to kill him with the first shot; then blowing his brains out deliberately as he lay bleeding on the ground. In addition the stalking and then shooting in the back of Mrs O’Shea was an intentional, deliberate act. He shot at her more than once as she fled.

72    In my opinion this ground of mitigation is not sustained.

As to 3 (that is drugs and alcohol)
73    I have already dealt in detail with the situation in this regard. In my opinion there is no solace for the prisoner to be found in this heading of mitigation argued on his behalf.

As to 4 (that is the disinhibition)

74    This is related to 3 above. Disinhibition, if it was present, was as a result of his own acts. He had past experience of the effects of alcohol on him, particularly in combination with anti-depressants. So even if his behaviour were to have been affected (as I have determined it was not), the circumstances advanced in his favour do not bespeak a mitigation of penalty.

As to 5 (the plea of guilty)

75    Although a plea of guilty may be taken into account in reducing the sentence which a court would otherwise have imposed (Crimes Act s.439), the circumstances in which and the time at which the plea was entered are material to its effect. In the present case the prisoner had not yet determined to plead guilty some seven months after the commission of the offences. He told Dr Westmore on 15 September 1999 that “he felt he should plead not guilty”. This was because he said “in my own head I am not guilty”. Thus the determination whether to plead guilty or not came well after the events giving rise to the charges.

76    Furthermore, in determining the effect of a plea of guilty it is relevant to look at the strength of the Crown case, independent of such a plea. In the present case it was strong. Mrs O’Shea and Mr Rasic survived to identify the prisoner. He was seen leaving the scene by another witness. Ms Ellis and Ms Wilson were able to testify as to acts done and/or admissions made. So too was his brother, Peter. These factors make the value of a plea of guilty of much less weight than might have been the case in different circumstances.

77    In addition, whilst it is said that a plea of guilty may indicate contrition, it is difficult to see the plea in the instant case in such a light in view of his statement to Dr Westmore, his untruthful persistence in claiming not to remember the events of 21 February 1999, the absence of any expression of remorse from the prisoner himself to the victims or the court and the fact that the first clear hearsay statement of remorse was not until 15 March 2000, on the eve of his sentencing hearing. This expression is to be found in the report of Duffy Barrier Robilliard of 15 March 2000, but even that is qualified by the prisoner’s statement that “he finds it hard to feel remorse at an emotional ‘guts’ level.”

78    In my opinion this ground of mitigation has little, if any, weight.

As to 6 (the fact the prisoner felt manipulated)

79    None of the excuses advanced by the prisoner in the short term aftermath of the shootings blames manipulation. Loud music, being pushed too far, the Commancheros (with whom he had not been associated for some time), drugs and alcohol were blamed; not manipulation. Before the court his son spoke of his father claiming that he had been manipulated by Tina Jersov and by his brother, Peter, but such a claim is not made to the psychiatrists and psychologists to whom I have referred.

80    I am not satisfied that the matters raised under this heading are a fact or factors giving rise to his actions. Nor should they, even if they did exist, diminish in any way the severity of the sentence to be imposed on the prisoner.

As to 7 (the prospect of rehabilitation)
81    As I have already stated the prisoner has within him a great deal of anger. It is possible that treatment over a long period of time may assist in its resolution. So too may the quietening of angry impulses as a consequence of the ageing process, provided that there is no actual mental illness such as psychopathy. That seems to have been adequately excluded by Dr Westmore.

82    Jason Hill came forward to give evidence on behalf of his father. So too did the prisoner’s daughter, Christie. I was unimpressed by Christie Hill’s evidence. She was clearly putting her best foot forward for her father and in so doing, in my opinion, portrayed him in a rosy light, that I have doubts that she believed. Her evidence was confused; her dates clearly inaccurate in a number of instances and specific events scant.

83    Jason Hill was very different. He presented as a decent young man who had broken away from the family and had set about making a life of his own, quite successfully. He spoke with genuine feeling about his childhood and early adolescence and the role of his father in that regard and he pointed to the efforts of his father in difficult circumstances in helping to make him, Jason, what he is today. Having heard Jason Hill and assessed him, I formed the view that his evidence demonstrated that somewhere, perhaps deep down, in the prisoner there were strands of decency that could perhaps be resurrected and that despite the heinous offences that he committed and his truculent refusal to face his terrible crimes, a chance if given might be taken.

84    In my opinion there is a prospect, perhaps just a weak prospect, but nonetheless a prospect, that rehabilitation of the prisoner could be possible.

85    If that judgment be correct, as I fervently hope it is, then the community interest in retribution, punishment, community protection and deterrence could be met by a very heavy sentence, but one which is short of life imprisonment. If, as I fervently hope it is, the judgment is correct, after such lengthy term of imprisonment the prisoner’s release into the community should not pose concern in relation to community protection.

86    I have therefore come to the conclusion that a sentence of life imprisonment should not be imposed upon the prisoner. I hope Mr Hill that when you are in your cell you will reflect upon the way in which your son, Jason, has helped to influence this outcome and that you will be filled with remorse about the cruel, the despicable, thing that you said about him to Sergeant Asser in the Toukley Police Station in the early hours of Wednesday, 24 February 1999. If you are a man at all you will certainly experience that remorse.

87    Mr Hill, whilst I do not propose to sentence you to life imprisonment, I do propose to impose a heavy sentence upon you to indicate the community’s revulsion at the crimes you have committed, to satisfy the proper interest of the community in retribution for such crimes, to demonstrate to you how serious the crimes that you committed were and to give warning to others that this court, as an enforcer of the law and protector of the community, will come down heavily on those who commit like crimes.

88    ROBERT JOHN HILL :

1. On the charge of murdering Bradley James Watson at Berkeley Vale, in the State of New South Wales on 21 February 1999 I sentence you to a minimum term of penal servitude for 30 years and an additional term of penal servitude for life.

2. On the charge of murdering Wayne Lawrence John O’Shea at Berkeley Vale in the State of New South Wales on 21 February 1999, I sentence you to a minimum term of penal servitude for 25 years and an additional term of penal servitude for life.

3. On the charge of maliciously discharging a firearm with intent to do grievous bodily harm to Wendy Joy O’Shea at Berkeley Vale in the State of New South Wales on 21 February 1999, I sentence you to a minimum term of penal servitude for 9 years and an additional term of 3 years.

4. On the charge that on 21 February 1999 at Berkeley Vale in the State of New South Wales you maliciously discharged a firearm with intent to do grievous bodily harm to Michael John Rasic, I sentence you to 9 years penal servitude and an additional term of 3 years.

89    These sentences are to be served concurrently. Each sentence is to date from 24 February 1999. The dates on which the prisoner will be eligible to be released from prison or on parole are as follows:

1. As to the first sentence - 23 February 2029.

2. As to the second sentence - 23 February 2024.

3. As to the third sentence - 23 February 2008.

4. As to the fourth sentence - 23 February 2008.

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Last Modified: 12/19/2000