Regina v Malcolm Gordon East

[2007] NSWSC 1051

CITATION:	Regina v Malcolm Gordon East [2007] NSWSC 1051
HEARING DATE(S):	26 February 2007 - 12 March 2007, 20 July 2007, 24 August 2007
JUDGMENT DATE :	21 September 2007
JUDGMENT OF:	Barr J at 1
DECISION:	For assaulting Jamie Kent the offender is sentenced to imprisonment for five months. Sentence will be taken to have commenced on 8 August 2003 and to have expired on 7 January 2004. I decline to set a non-parole period. For firing a firearm with disregard for the safety of Mr Kent the offender is sentenced to a non-parole period of two years seven and one-half months, which will be taken to have commenced on 8 August 2003 and to have expired on 22 March 2006, and to a balance of term of ten and one-half months, which will be taken to have expired on 7 February 2007. For maliciously damaging Mr Graves’ property by fire and for firing a firearm in a manner likely to injure Mr Graves’ property the offender is sentenced to concurrent non-parole periods of one year and three months, which will be taken to have commenced on 8 August 2004 and to have expired on 7 November 2005, and to concurrent balances of terms of five months, which will be taken to have expired on 7 April 2006. For the murder of Dimitri Skouloudis the offender is sentenced to a non-parole period of eleven years and six months. That period will be taken to have commenced on 8 August 2005 and will expire on 7 February 2017. The offender is sentenced to a balance of term of four years and six months. The term will expire on 7 August 2021. In imposing sentence for that offence I have taken into account under the provisions of s32 Crimes (Sentencing Procedure) Act the four matters I have summarised. For each of the four offences of the unauthorised possession of a pistol the offender is sentenced to a non-parole period of one year and six months. It will be taken to have commenced on 8 August 2005 and to have expired on 7 February 2007. For each such offence the offender is sentenced to a balance of term of six months, which will be taken to have expired on 7 August 2007. For the offence of the unauthorised possession of a firearm the offender is sentenced to a non-parole period of one year, one and one-half months and a balance of term of four and one-half months. The non-parole period will be taken to have commenced on 8 August 2005 and to have expired on 23 September 2006. The balance of the term will be taken to have expired on 7 February 2007. The earliest day upon which the offender will become eligible for release on parole will be 7 February 2017.
PARTIES:	Regina Malcolm Gordon East
FILE NUMBER(S):	SC 2004/2882
COUNSEL:	Crown: P Adey Offender: G Scragg
SOLICITORS:	Crown: S Kavanagh Offender: Jeffreys & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

21 SEPTEMBER 2007

2004/2882 REGINA v MALCOLM GORDON EAST

REMARKS ON SENTENCE

1 HIS HONOUR: Following a trial by jury the offender, Malcolm Gordon East, was found guilty of the following offences -

1. on 5 August 2003 at Kemps Creek he murdered Dimitri Skouloudis; and
2. on 8 August 2003 at Yerrinbool he possessed a firearm, namely a .357 Magnum calibre Sturm Ruger Blackhawk revolver without being authorised to do so by licence or permit.

2 After the jury had returned its verdicts the Crown presented a further Indictment and the offender pleaded guilty to these charges -

1. on 7 August 2003 at Ingleburn he assaulted Jaimie Kent;
3. at the same time and place he fired a firearm with disregard for the safety of Jaimie Kent;
4. on 8 August 2003 at Yerrinbool he possessed a firearm, namely a silver .22 calibre Sturm Ruger revolver without being authorised to do so by licence or permit;
5. at the same time and place he possessed a firearm, namely a 9mm Luger calibre COLT Government Model self loading pistol, without being authorised to do so by licence or permit;
6. at the same time and place he possessed a firearm, namely a 9mm Luger calibre CZ Model 75 self loading pistol, without being authorised to do so by licence or permit;
7. at the same time and place he possessed a firearm, namely a .177 calibre air pistol, without being authorised to do so by licence or permit;
8. on or about 7 August 2003 at Chipping Norton he maliciously damaged by means of fire property, namely a prime mover registration number YCP-457, the property of Ainsley Graves; and
9. at the same time and place he fired a firearm in a manner likely to injure property, namely a prime mover registration YCP-457.

3 The third charge in the second Indictment was preferred alternatively to the more serious charge that at the same time and place the offender shot at Jaimie Kent with intent to murder him. To that charge the offender pleaded not guilty. The Crown accepted the plea to the lesser charge in discharge of the more serious count.

The murder of Mr Skouloudis

4 Dimitri Skouloudis lived with his wife and two young children on a semi-rural property at Kemps Creek. Mr Skouloudis dealt in diesel fuel. He kept large tanks on his property in which he stored and blended fuel for sale. Before the night on which Mr Skouloudis died the offender called personally at the Skouloudis’ house. It is possible that on that occasion he was in the company of a man I shall call X. As well as visiting the property, the offender telephoned the deceased’s house. The evidence does not disclose what was said. Late on the night before Mr Skouloudis died the offender called again at the property and told Mr Skouloudis that he had fuel to put into his tanks. The offender owned a small truck on which were mounted two fuel tanks, each of 1,000-litre capacity, and I think it probable that he was using that vehicle at the time. It is probable that the offender’s intention was not to deliver fuel at all but to contrive circumstances in which he could kill Mr Skouloudis. However that may be, Mr Skouloudis told him that it was not worth his opening up for such a small delivery. The offender said that he could return on the following night with a larger load and Mr Skouloudis expressed interest. Not long before 11pm on the following night the offender drove to the property in a Kenworth “cab-over” prime mover, blue with a broad white stripe, hauling a 30,000-litre silver tanker. He was armed with the pistol the subject of the second charge. He announced that he had arrived as arranged and Mr Skouloudis obtained keys and a torch, unlocked the padlocked gate and let the offender through to the fuel storage depot at the rear of the property. Mr Skouloudis followed the offender. There the offender shot him twice, once through the eye at a range of about one metre and once in the back. The bullets caused serious injury to Mr Skouloudis’ brain, heart and other vital organs. He died where he was shot. The manner in which the shots were fired shows beyond reasonable doubt that the offender intended to kill.

5 Following certain events on 7 August, which I shall presently summarise, police searched the offender’s residence at Yerrinbool. There they found the prime mover of the rig used by the offender on 5 August. They found a number of firearms, including the Ruger Sturm Blackhawk revolver the subject of the second count. It bore DNA which matched the DNA of Mr Skouloudis. Fragments of bullets test-fired from it matched fragments recovered from Mr Skouloudis’ body. Tyre tracks left in damp ground on the night of the murder of Mr Skouloudis matched the pattern of the tyres on the prime mover found at Yerrinbool. There was thus a strong circumstantial case against the offender.

6 The offender gave evidence, the substance of which was that about a week before the night on which Mr Skouloudis died X asked him to lend him his prime mover and pistol. The offender did not know why X wanted to borrow those things but he complied. He drove the prime mover to X’s premises, arriving at about 10pm on 5 August. X was in a hurry to get away and asked the offender to wait. He left in the prime mover and returned an hour and a half later, saying that he no longer needed the things. The offender drove home in the prime mover. The pistol was still in the sleeping compartment where he had left it. He did not know whether it had been fired. Anticipating this evidence, the Crown called X. He said that he had on an occasion in July 2003 visited Mr Skouloudis in the company of the offender and one other man. He was a friend of Mr Skouloudis of twenty-five years. He denied being concerned in any way in the death of Mr Skouloudis. He denied asking the offender to lend him the truck or the pistol. He denied that the offender visited him on the night of 5 August.

7 The jury were instructed that if there was a reasonable possibility that the account given by the offender about lending the truck and the pistol to X was true they must find the offender not guilty. Plainly, the jury rejected the offender’s version. Because of the way the defence case was conducted, there was no real issue about the use by the murderer, whoever that was, of the offender’s prime mover and his pistol. There was no challenge to the DNA or the ballistics evidence or the evidence of matching tyre tread patterns.

The other offences

8 The offender was a customer of Kent Truck Repairs at Ingleburn. The business had done repairs to his truck in March or April 2003 and he was not happy with the quality of the repairs. On 7 August he walked into the premises and sat down opposite the desk of Mr Jaimie Kent. He put a pistol on the desk and began to complain about the repairs and about the charges that had been made. He accused Mr Kent of cheating him. He leaned over the desk and punched Mr Kent in the mouth. He picked up the pistol and held it at his face. Mr Kent’s father, who knew the offender, came into the office. Mr Jaimie Kent told his father to telephone the police but the offender said that if he did he would be a dead man. As he said those words he fired the pistol. Fortunately, the bullet did not hit anybody but passed through the window. The offender reloaded the pistol and pointed it at Jaimie Kent’s head once again. No further shot was fired. The offender was crying and Mr Kent’s father took hold of him, led him away and tried to console him. As he did so the offender said, “Everyone’s out to get me, everyone’s trying to fuck me”.

9 Because Mr Kent was able to identify the offender, the police to whom these matters were reported were able to obtain a warrant to search his premises at Yerrinbool. On 8 August 2003 they found there the five firearms the subject of the charges. The one used by the offender at the Kent premises was the 9mm Luger COLT semi-automatic pistol. There was also a quantity of ammunition. The offender had apparently made no attempt to dispose of these things or even to hide them particularly well.

10 On the afternoon of 7 August 2003 Mr Ainsley Graves left his prime mover in the yard of certain business premises at Chipping Norton. When he returned on the following morning there was a strong smell of petrol. There was a bullet hole in the front windscreen and two more in the rear window. A bullet had been fired at the inlet air valve at the rear of the truck. Four spent cartridge cases were found. There was also smoke damage to the rear side of the truck and fragments of burnt paper. The four cartridge cases found at the scene were shown to have been fired from the 9mm COLT Luger semi-automatic pistol used by the offender at the Kent premises. The offender was responsible, but there is no evidence to explain why he acted as he did. There is no suggestion that he knew Mr Graves or had any reason to resent or fear him.

The offender’s history and motivation

11 The offender was born on 15 April 1974. For a number of years he and a sister conducted a haulage business, from April 2003 from the premises at Yerrinbool where he was living when these offences were committed. As appears from evidence given by the offender at his trial, he was supplementing the income he received from the haulage business with the proceeds of sale of stolen fuel. There is little other evidence of prior misbehaviour, however, only of negligent driving and, in 2003, of larceny of goods worth between $2,000.00 and $5,000.00. That latter offence may have involved stealing fuel. The offender’s sister said that he had to go court charged with such an offence. The offender’s sister said that his girlfriend initiated an apprehended violence order, but nothing came of that and the proceedings was settled.

12 Statements of the offender’s mother and sister were put into evidence. Neither had any idea that the offender had accumulated the firearms which were eventually found at his premises. Both said that they had noticed a difference in his behaviour during the eighteen months or so immediately before September 2003, when they made their statements. Whereas he had previously had a close relationship with his mother and sister, openly discussing his business, his driving and his whereabouts, he began to keep to himself. A number of unusual transactions appeared on his credit card statements. He became uncommunicative and began locking himself in his flat. He would have his meals there alone, rather than eat in the main house with the other members of the family. He began to keep his affairs secret. He would not say what he was doing or where he was going. During the course of this behaviour he distanced himself from his business and his friends as well as his family. Although his sister had seen him using cannabis, she had not seen him use other drugs. He seemed depressed from time to time. His sister made an appointment for him to see a doctor in Bowral, but he would not keep it.

13 The offender began to threaten. He would lose his temper over nothing at all and within a very short time, then reverting to reasonableness. Although he was not violent, he frightened his sister. There was a disturbing incident when he had a confrontation with an employee at the bank.

14 The offender was arrested on 8 August 2003 and taken into custody. He exhibited signs of mental illness and was seen by a trainee psychiatrist, Dr Cassidy, and reported receiving messages from the television and radio, which he interpreted as coincidences. He said that in the past something of his had been bugged. He had used a lot of speed, but had stopped doing so in August the previous year. Dr Cassidy thought that there had been a deterioration over the last twelve months. He prescribed Olanzapine, an anti-psychotic drug, and Mirtazapine, an anti-depressant. On 25 August 2003 the offender saw a consulting psychiatrist, Dr Nielssen, at the request of his solicitor. He told Dr Nielssen that he had used amphetamines for a number of years during the course of his driving, with periods of heavy use. In 1999 he had ceased using the drug after a psychotic episode and a suicide attempt. Other reports then available, however, suggested that he had continued to use the drug. He had used cannabis for a period of two years up to the date of the interview.

15 Dr Nielssen noted that there was little objective evidence of mental illness at the interview and diagnosed acute psychotic episode, then either resolved or concealed, and amphetamine abuse, reported to be in remission.

16 The offender continued to be treated and four weeks later saw Dr Nielssen again. He told him that he knew that he had lost touch with reality. He had thought that he was being followed and that the police were looking for an opportunity to set him up, that people were putting drugs into his coffee, that he was being watched and that his truck had been fitted with a device to track his movements. He thought that people were talking in riddles, which confirmed to him that he was in danger. He thought that he had overheard whispered conversations about himself. He read too much into events and coincidences. He said that he had purchased guns because of the danger he thought he was in. He put these things down to enormous quantities of amphetamine, up to an ounce a week, that he was taking while driving trucks interstate. In a report of 23 September 2003 Dr Nielssen diagnosed amphetamine-induced psychosis, now in remission, and amphetamine abuse.

17 Dr Nielssen saw the offender again on 28 May 2004 and wrote a report on 25 June 2004. The offender had been charged with the murder, but was wary of giving information about it. He gave an account of the circumstances that led to the accusation and Dr Nielssen said that that account was apparently unaffected by the delusional beliefs held before arrest. He expressed the opinion that the offender had been acutely mentally ill when the events took place, believing that he was in danger. His state of mind was relevant to his criminal responsibility. In Dr Nielssen’s opinion the offender had recovered from an acute episode of mental illness present before arrest. He was fit to be tried.

18 Dr Nielssen saw the offender again on 3 August 2004 and wrote a report on that day. By that time he was concerned that the accused’s condition was deteriorating and that there was re-emergence of delusional beliefs that had been evident earlier. The offender appeared to be obsessed with freemasonry and what freemasons could do to influence events around him. Dr Nielssen thought that the accused had a chronic mental illness, schizophrenia, rather than any psychosis brought on by the use of amphetamine. He raised the question of the offender’s fitness to be tried.

19 Dr Nielssen saw the offender again on 11 November 2004 and wrote a report on 7 December 2004. He summarised the offender’s account thus -

When taken back to his state of mind in the period leading up to his arrest, Mr East said “I laugh about it now…that’s all I can do…it seems quite silly”. When asked if he thought he was in danger, he said “it would have come to me…I could tell on people’s expressions that I was the talk of the town”. He said, “that’s all gone”.
When taken to his previously expressed belief that he was protected by Freemasons, Mr East said “I reckon I am…I haven’t been touched”. When asked how he knew he was protected, he said, “it’s not that anyone else could see…I can tell from facial expressions and the way they talk”. When asked about his belief that he was protected by the underworld figure Tom Domican, he said “I’ve no evidence for it…I just know it…that’s the way it works”.
When taken to his reported belief about “contracts” taken out from the United States, Mr East said “I know I was the cause of 9/11…they all reckon it was me…I thought about it before it happened…I know it seems stupid…I said it over the CB radio and they took it and did it”. He said “I feel a hundred percent responsible…I couldn’t in my wildest dreams expect the US to forgive me”. He said, “I didn’t want to be involved [in 9/11] …they [Freemasons] put a point across because I refused to admit I was in a fraternity”. He said, “you don’t get any more powerful…they [Freemasons] run the world”.
When asked if he thought Freemasons directly influenced court proceedings, he said, “I don’t think they’d like to do that…they’re very secretive, which I respect”. He said that he thought many of the judges and barristers would be Freemasons, but said that he was not aware of any in his case. When asked if he thought he would be personally looked after, he said “I have never spoken to the head fellows so I don’t know where I stand…but I must have a little bit of pull”.
When asked how he intended to run the case, he said “I’d rather he (referring to the barrister who then appeared for him) take control of it…I know nothing about the law”. He said that he accepted that he was mentally ill during the period in which the offences occurred and had decided to change his plea to not guilty on the grounds of mental illness to all of the charges after considering legal advice.

20 Describing the offender’s mental state Dr Nielssen said -

Mr East presented neatly groomed and looked to have returned to his original weight. He was warm in his greeting and reactive in his affect. He became sombre when reflecting on the events and his mood was assessed to be appropriate to his circumstances. His speech was fluent and spontaneous and there were no abnormal patterns of speech associated with acute mental illness. He denied experiencing typical acute symptoms of mental illness, other than ideas of reference that confirmed his underlying delusional beliefs. He expressed what were considered to be bizarre delusional beliefs regarding the influence of Freemasons and his role in the terrorist attack in New York. He acknowledged that he had been mentally ill in the period leading up to his arrest, but did not see his beliefs to be a symptom of that mental illness.

21 Dr Nielssen also said -

Although I have not discussed all of the charges with Mr East, I believe that on the balance of probabilities Mr East was mentally ill at the time of the offences and may have the defence of mental illness open to him for all of the charges.
Mr East stopped taking antipsychotic medication in May this year as it seemed that his symptoms had resolved. However, it emerged that he has chronic bizarre delusional beliefs. Hence I believe Mr East’s psychiatric diagnosis is chronic schizophrenia, rather than an amphetamine induced psychosis, and that he requires long term treatment with antipsychotic medication.
…
Mr East appeared to accept my advice that he resume treatment with a low dose of a more tolerable antipsychotic medication. I have since spoken to Dr Jennifer Thompson, the visiting psychiatrist to Parklea Correctional Centre who agreed to review Mr East with a view to resuming treatment with antipsychotic medication.

22 The defence sent Dr Allnutt copies of Dr Nielssen’s reports and asked him for an opinion whether the offender was fit to be tried. In his report of 29 April 2005 he referred to the offender’s apparently obsessive thoughts about freemasonry. He thought that he continued to manifest symptoms consistent with a psychotic disorder, probably schizophrenia, characterised by grandiose and persecutory beliefs.

23 On 4 July 2005 Dr Allnutt wrote another report and dealt thus with the offender’s account -

He went on to tell me then that there was evidence that people were trying to make contact with him. For example he once again commented on “9/11”. He said that a while before the “9/11” incident he was in his truck and there was an acquaintance following him. He said he mentioned to the acquaintance that he would like to see five planes fly into the World Trade Centre. He said this then subsequently came to be true. He said that when he thought about it he thought that “they” had arranged the “9/11’ incident to prove who he was; “they” were the Freemasons. He said while he was speaking to his friend on the CB his friend had asked him to hold on for a second. His reasoning now is that when his friend was asking him to hold on for a second after your client had made the comment at wanting to see planes fly into the World Trade Centre his friend was in fact speaking on the mobile phone and passing this message on to others.
He said the information was “pushed in” and that’s why the Freemasons did the World Trade Centre, to get a message to him. He thought that they did this to show him how powerful they were. They did this because anytime anyone had spoken about the Freemasons to him in the past he had ignored them. This realisation he said had come to him in the beginning of 2004, however, after he had become incarcerated.
I enquired again about Tom Domican. He said he had had no contact with Tom Domican. He said that Tom Domican was a person that was high up in the Freemasons, had known his father and his father had asked Tom Domican to look after him. He said Tom Domican had made contact with him many years ago; but he had taken no notice at the time. He realised that in fact Tom Domican’s efforts to make contact with him were driven by his father’s wishes. He came to this realisation in March 2003.

24 Dr Allnutt expressed his opinion thus -

In my opinion your client continues to manifest symptoms consistent with a Psychotic Disorder, likely characterised by grandiose and persecutory beliefs involving conspiracies against him and having special significance to the Freemasons. His ideas of reference appear to have improved and he also appears to present with a lesser degree of conviction about Freemasons being involved in his legal process than he did when I saw him in April 2005. Notwithstanding this while he has continued with an antidepressant he still has not commenced his antipsychotic and it would be reasonable to conclude that his mental disorder persists. It is important to be aware that chronic psychosis can fluctuate in intensity and severity. It is quite likely that the marginal improvement that he manifests is nothing more than a natural fluctuation in the course of his illness.

25 He considered the offender unfit to be tried.

26 The offender was found unfit and referred to the Mental Health Review Tribunal. The trial at which I presided, and which led to convictions for the murder and the possession of the weapon used in it, was commenced only after management and treatment under the supervision of the Mental Health Review Tribunal and after a further inquiry, in which the offender was found fit to be tried.

27 Dr Allnutt wrote another report on 1 May 2006. He noted that the offender was denying any persisting (unreasonable) beliefs about freemasons, the events of 11 September, other individuals or about his own counsel. He considered the offender fit to be tried.

28 In a further report of 11 February 2007 Dr Allnutt reported that the offender was denying any unusual perceptual phenomena. Looking back, the offender said, his thoughts about freemasons were unrealistic. He attributed them to the use of substances. He was fit to be tried.

29 Following his conviction at trial and his pleas of guilty which immediately followed, the offender was remanded for sentence. Both sides then expected that psychiatric evidence would be tendered on sentence, but on the day of hearing the offender dismissed his solicitor and counsel and asked the Court to proceed forthwith to sentence. The Crown opposed that course and asked for an adjournment to enable it to collate and tender psychiatric evidence if the offender would not. I granted the adjournment and requested a further psychiatric report. On the adjourned day the report of Dr Allnutt of 13 August 2007 was tendered. On the express instruction of the offender it deals only with his current mental state. It does not deal with the facts constituting the offences or with the mental state of the offender at the time of the offences. The offender made clear to Dr Allnutt, as he had to the Court, that he was intending to appeal against his convictions following the trial and his pleas of guilty.

30 According to the report, the offender was reluctant to discuss with Dr Allnutt his prior thoughts about freemasonry. However, he denied any current psychotic phenomena. He was not apparently suicidal. He had taken no medicine since an anti-depressant about one month previously. Dr Allnutt saw the offender’s reluctance as motivated by a concern to preserve his rights on sentence and upon the subsequent intended appeal. He thought him cognitively intact. His capacity for insight and judgment appeared reasonable. He manifested no active symptoms of psychosis or of mood or anxiety disorder.

31 Although the reports show that there was at one time a psychiatric opinion that the offender might have available to him the defence of not guilty on the ground of mental illness, no attempt was made to mount any such defence at the trial. No psychiatric evidence was put before the jury.

32 It is not easy to understand precisely what the offender’s mental state was at the time of the offences and how it affected or motivated him or bore on his criminal responsibility. There has been a variability of diagnosis, from acute psychotic episode, resolved or concealed, to amphetamine-induced psychosis, to underlying susceptibility to psychotic illness, to chronic schizophrenia unrelated to abuse of amphetamine.

33 The evidence of the offender’s mother and sister is impressive. It shows that the offender was involved in a bad accident in his truck and was taken to hospital. His mother says that he crashed because he fell asleep, but that may have been an occasion upon which the offender attempted to commit suicide. His action may have resulted from his abuse of amphetamine.

34 There is stronger support for the offender’s evidence that he was in fear of something. As I have observed, by the time of these events he was virtually of good character and almost thirty years old. He was not reported to carry or use firearms, yet he acquired a small arsenal. His behaviour changed in other ways as well. There were noticeable mood changes, anger and threats. He communicated less and locked himself away. The words he used immediately after his attack on Mr Kent are telling. This evidence shows that some change did take place in the offender’s mental state. I accept that the offender was at all relevant times suffering from change in the condition of his mind which affected his moods and put him in fear. This was his motivation for acquiring firearms.

35 A more difficult question is how his condition of mind explains the attacks he made on Mr Skouloudis and upon Mr Graves’ property.

36 What happened at Mr Skouloudis’ premises did not occur out of the blue. As the evidence at trial showed, Mr Skouloudis had been buying, storing, blending and selling fuel on his property for some years. He was well known in the business. He himself had come under the notice of Federal authorities. According to the evidence of “X”, which I accept, Mr Skouloudis put it about that he was intending to clean up illegal practices in the fuel industry and “get rid of the shonks”. Mrs Skouloudis gave evidence that Mr Skouloudis was having discussions with officers from Customs. The offender was dealing in stolen fuel and might well have considered himself at risk if Mr Skouloudis should carry out his threats. His approach to Mr Skouloudis was a careful one. He visited the premises once, and perhaps twice, before making a telephone call a few days before he killed Mr Skouloudis. On the night before he did so, he attempted to gain entry. When he failed, he changed his method and gained entry in the manner I have summarised. He contrived to manoeuvre Mr Skouloudis into a place and at a time at which he could not defend himself or get help. He executed him.

37 It was submitted by Mr Scragg, for the offender, that since a cry, presumably from Mr Skouloudis, was heard coming between the sounds of the two gun shots, I should infer that the shot in the back came first and consequently that no intent to kill arose until the second shot, which went through the eye. I do not accept that submission. I think that the offender went there to kill. His offence was very serious. I am prepared to accept, however, that he was influenced in what he did by his unreasonable anxiety about things and that he acted in a way or to a degree in or to which he would not have acted if his mental state had not undergone the change I have described. Although it is not possible on the evidence to characterise the precise nature of that change, I think that it mitigated the offender’s criminality.

38 The attack at Mr Kent’s premises, likewise, did not come from nowhere. The offender’s truck had been damaged and repaired by Mr Kent’s business. The offender unreasonably thought that he had been cheated. The circumstances were very serious. I reject an explanation the offender gave to Dr Nielssen, implying that he was in control of the situation and that Mr Kent was in no danger of being shot. There was no intent to injure, of course, but the risk of serious injury was great. Again without being able to understand precisely or describe the processes at work, I accept that there was some unreasonable apprehension of danger on his part that influenced or motivated him to act in the way he did at Mr Kent’s premises. Thus the offender’s mental state was such as to mitigate his criminality.

39 There is no evidence to suggest that what the offender did to Mr Graves’ vehicle resulted from any prior event. The risk of serious damage was great. It was pure luck that the vehicle was not badly damaged or destroyed. I accept that the offender’s state of mind was then affected in a similar way and that his criminality was thereby mitigated.

The sentences

40 The offence of murder attracts a maximum sentence of imprisonment for life and a standard non-parole period of imprisonment for twenty years. That of the unauthorised possession of a pistol, of which there are four counts, attracts a maximum sentence of fourteen years’ imprisonment and a standard non-parole period of three years’ imprisonment. The offence of assaulting Mr Kent attracts a maximum sentence of imprisonment for two years. There is no standard non-parole period. That of firing a firearm with disregard for safety attracts a maximum penalty of ten years’ imprisonment. There is no standard non-parole period. The unauthorised possession of a firearm being an air pistol carries a maximum penalty of five years’ imprisonment. There is no standard non-parole period. Malicious damage by fire attracts a maximum penalty of ten years’ imprisonment. There is no standard non-parole period. Firing a firearm in a manner likely to injure property attracts a maximum penalty of ten years’ imprisonment. There is no standard non-parole period.

41 The offender took the course on the sentence hearing of asking the Court to take into account in sentencing on the murder count the following four matters, namely -

1. Possessing a firearm with the identification mark defaced. This was the Luger self-loading pistol the subject of count six in the second Indictment.
2. The unauthorised possession of ammunition, comprising various kinds and quantities of cartridges.
3. Possessing goods suspected of having been stolen, namely the sum of $2,120.00 which was found in the offender’s wallet, and
4. Possessing goods suspected of having been stolen, namely one hundred litres of fuel.

42 This course was somewhat unusual given the offender’s avowed intention to appeal against all the convictions and sentences. I propose to take these matters into account as requested.

43 I am satisfied that there is a reason for setting a non-parole period for the offence of murder that is shorter than the standard non-parole period, namely that the offender was suffering from a mental illness which materially affected his understanding of the circumstances in which he found himself and which influenced his response. So his criminality was less than if he had committed the offence as a well man. To some extent, therefore, the call for denunciation and punishment is reduced and considerations of general deterrence less strong.

44 I note Dr Allnutt’s opinion, based on the information provided to him by the offender in their most recent interview, that the offender did not manifest symptoms of active psychosis or suggesting mood or anxiety disorder. At the time of the interview he had last taken an anti-depressant one month earlier. He was not taking any other drug. He had complied with the treatment prescribed for him. The offender agreed that he needed to avoid taking amphetamines in the future. He had not attended any drug and alcohol counselling in the gaol, however.

45 There is no evidence to suggest that the offender’s mental state may make it more difficult for him to serve his sentence.

46 There is, I think, a risk that if the offender resorts to the use of illegal drugs, particularly amphetamine, he may once again experience paranoid or psychotic tendencies. As I have observed, the diagnosis of his illness is not precise, and any symptoms he has suffered may not have resulted from the use of amphetamine. However that may be, the pressures under which he finds himself from time to time may, I think, possibly cause his mental state to change as it did in 2003.

47 I take into account that before August 2003 the offender was a mature man with a good work history and that his record of offending was modest. I shall treat him as a man of prior good character.

48 The remarks I have made about the standard non-parole period for murder apply equally to the standard non-parole period for the possession count of which the jury found the offender guilty.

49 Both these offences were related in that the firearm the subject of the second count was used in the murder the subject of the first. They occurred close together at a time when the offender was suffering from a mental illness. I shall impose concurrent sentences.

50 The pleas of guilty to the charges contained in the second Indictment were entered late, well after the date fixed for the offender’s trial on those charges. The offences comprising the possession of firearms on 8 August 2003 were structurally the same and depended upon the same body of evidence as that which was advanced at trial on the second count in the first Indictment. The pleas of guilty on those counts therefore saved no significant time.

51 The pleas of guilty on the remaining counts in the second Indictment, those concerning the attacks on Mr Kent and on Mr Graves’ property, did save some time and entitle the offender to a modest reduction.

52 Because all the offences comprehended by the second Indictment were committed within a short period of time during which the offender was affected by his illness, there should be a high degree of concurrency in the sentences. I propose to make the sentences for the possession charges concurrent with each other and with the sentence for murder. That is because the sentence for murder will in any case be concurrent with the possession charge that went before the jury and because I am to take into account in sentencing for murder the four matters in the Form 1, which are all essentially possession offences.

53 I shall make the sentences for the attack on Mr Kent concurrent with one another but shall accumulate them upon the other sentences. I shall treat the offences concerning Mr Graves’ property in the same way.

54 I propose to depart from the standard non-parole period for all the possession counts in the second Indictment. I have already explained the reasons. In fixing the sentence for any offence that attracts a standard non-parole period I shall bear that period in mind as a guide.

55 Given the circumstances in which the pleas of guilty were made to the charges in the second Indictment, very late and in the face of a strong Crown case, they are no evidence of remorse. There are no expressions of contrition moving from the offender, merely an asserted intention to appeal against all convictions. The offender appears to be making no effort to come to terms with what he has done. There is no expression of sympathy for Mrs Skouloudis or her family, or Mr Kent and his father or Mr Graves.

56 Because of this and the offender’s apparent lack of interest in drug rehabilitation programmes I conclude that his prospects of rehabilitation are not good.

57 Mr Skouloudis was much loved by his wife and children, and no doubt by others in the community. The Court has read the statement made by Mrs Skouloudis about the effect upon her of the loss of her husband. The law does not permit the Court to take those matters into account in fixing the sentence to be imposed, but the Court extends its sympathy to Mrs Skouloudis and her family.

58 My intention is to fashion an overall sentence that will produce a total term of eighteen years for all the offender’s criminality and a non-parole period of three-quarters of that time, namely thirteen years and six months. I do not think that any lesser period would reflect the totality of the offender’s criminality.

59 I was asked to extend the non-parole period to permit the continued supervision, and if appropriate treatment, of the offender, but I do not think it appropriate to extend the parole period for that purpose. Such matters can and should be managed during the non-parole period as well as during parole. My accumulation of the sentences is the only circumstance which produces the need to adjust any non-parole period, and the only one affected is that imposed on the murder count.

60 Malcolm Gordon East, for assaulting Jamie Kent I sentence you to imprisonment for five months. Your sentence will be taken to have commenced on 8 August 2003 and to have expired on 7 January 2004. I decline to set a non-parole period. For firing a firearm with disregard for the safety of Mr Kent I sentence you to a non-parole period of two years seven and one-half months, which will be taken to have commenced on 8 August 2003 and to have expired on 22 March 2006, and to a balance of term of ten and one-half months, which will be taken to have expired on 7 February 2007.

61 For maliciously damaging Mr Graves’ property by fire and for firing a firearm in a manner likely to injure Mr Graves’ property I sentence you to concurrent non-parole periods of one year and three months, which will be taken to have commenced on 8 August 2004 and to have expired on 7 November 2005, and to concurrent balances of terms of five months, which will be taken to have expired on 7 April 2006.

62 For the murder of Dimitri Skouloudis I sentence you to a non-parole period of eleven years and six months. That period will be taken to have commenced on 8 August 2005 and will expire on 7 February 2017. I sentence you to a balance of term of four years and six months. Your term will expire on 7 August 2021. In imposing sentence for that offence I have taken into account under the provisions of s32 Crimes (Sentencing Procedure) Act the four matters I have summarised.

63 For each of the four offences of the unauthorised possession of a pistol I sentence you to a non-parole period of one year and six months. It will be taken to have commenced on 8 August 2005 and to have expired on 7 February 2007. For each such offence I sentence you to a balance of term of six months, which will be taken to have expired on 7 August 2007.

64 For the offence of the unauthorised possession of a firearm I sentence you to a non-parole period of one year, one and one-half months and a balance of term of four and one-half months. Your non-parole period will be taken to have commenced on 8 August 2005 and to have expired on 23 September 2006. The balance of the term will be taken to have expired on 7 February 2007.

65 The earliest day upon which you will become eligible for release on parole will be 7 February 2017.

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