Regina v Robert John Hill

[2003] NSWCCA 128

CITATION:	Regina v Robert John Hill [2003] NSWCCA 128
HEARING DATE(S):	8 April 2003
JUDGMENT DATE:	8 May 2003
JUDGMENT OF:	Sully J at 1; Levine J at 55; Buddin J at 56
DECISION:	Leave granted to appeal against all four sentences passed in the Court below; Appeals against sentences thus passed for the two offences of murder be allowed and those sentences quashed; In lieu the applicant sentenced (a) for the murder of Mr. Watson, to imprisonment for 30 years to commence on 24 February 1999 and expire on 23 February 2029, with a non-parole period of 25 years to commence on 24 February 1999 and expire on 23 February 3024, and (b) for the murder of Mr. O'Shea, to imprisonment for 25 years to commence on 24 February 1999 and expire on 23 February 2024, with a non-prole period of 23 years to commence on 24 February 1999 and expire on 22 February 2022.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	The Queen v Pearce (1998) 194 CLR 610 Reg v Harris (2000) 50 NSWLR 409 Reg v Twala, unreported, 4 November 1994 Reg v Dodd (1991) 57 A Crim R 349 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Simpson (2001) 53 NSWLR 704
PARTIES :	Regina Robert John Hill
FILE NUMBER(S):	CCA 60188/2000
COUNSEL:	L. Lamprati - Crown T. Game SC/G. Bashir - Appellant
SOLICITORS:	S. E. O'Connor - Crown D. J. Humphreys - Appellant

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70033/99
LOWER COURT JUDICIAL OFFICER :	O'Keefe J

60188/2000

SULLY J
LEVINE J
BUDDIN J

Thursday 8 May 2002

REGINA v ROBERT JOHN HILL

Judgment

1 SULLY J:

Introduction

On 8 December 1999 the applicant, Mr. Hill, pleaded guilty upon arraignment to:

1. The murder of one Bradley Watson

2. The murder of one Lawrence O’Shea

3. The malicious discharge of a firearm with intent to do grievous bodily harm to one Michael Rasic

4. The malicious discharge of a firearm with intent to do grievous bodily harm to one Wendy O’Shea

2 Each offence of murder attracted upon conviction a statutory maximum penalty of imprisonment for life. Each offence of malicious discharge of a firearm with intent, attracted upon conviction a statutory maximum penalty of imprisonment for 14 years.

3 Proceedings on sentence took place on 20, 21, 22 and 23 March 2000. The presiding Judge was O’Keefe J. The applicant was represented throughout by counsel, not being counsel who appeared for him at the hearing of the present application.

4 The applicant stood for sentence on 27 March 2000. He was sentenced as follows:

[1] For the murder of Mr. Watson: to a minimum term of penal servitude for 30 years and an additional term of penal servitude for life.

[2] For the murder of Mr. O’Shea: to a minimum term of penal servitude for 25 years and an additional term of penal servitude for life.

[3] For each of the two offences involving, respectively, Mr. Rasic and Mrs. O’Shea, to a minimum term of penal servitude for 9 years, with an additional term of 3 years.

5 Each of the four sentences was back-dated so as to commence on 24 February 1999, that being the date of the applicant’s arrest, and bail having thereafter been refused.

6 The applicant seeks leave to appeal against the asserted severity of each of the four sentences.

The Grounds of the Application

7 It was submitted at the hearing of the application “that the whole sentencing exercise miscarried”. Learned Senior Counsel for the applicant, in his submissions, identified the following particular sentencing errors:

1. That the course followed by O’Keefe J in connection with the two sentences for murder was not authorised by section 431B of the Crimes Act 1900 (NSW) . Section 431B has been repealed and replaced by section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ; but was still in force on 27 March 2000.

2. That O’Keefe J made findings of fact that were not reasonably open to his Honour on a fair view of the entirety of the evidence. These erroneous findings embraced:

2.1 An erroneous acceptance without qualification of the evidence of Dr. Westmore.

2.2 A failure to consider properly, if at all, the applicant’s history of major depression; and its proper effect as a factor in sentencing.

2.3 An erroneous finding that the applicant was a man with violent propensities.

3. That O’Keefe J fell into error in the way in which his Honour dealt with the pleas of guilty as matters warranting discounted sentences.

4. That O’Keefe J structured the sentences in a way that failed to comply with the sentencing requirements that are established by the decision of the High Court of Australia in The Queen v Pearce (1998) 194 CLR 610

5. That O’Keefe J erroneously took into account the contents of certain victim impact statements that were in evidence before his Honour.

6. That O’Keefe J erred in his Honour’s approach to the matter of premeditation.

7. That, as an “overriding submission” , O’Keefe J did not deal with “the whole of the subjective case” of the applicant.

8. That O’Keefe J erred in that his Honour failed to consider properly the psychiatric and psychological case that had been made for the applicant.

The Relevant Facts

8 All four offences were committed on 21 February 1999, between 2.00 p.m and 3.00 p.m. They were committed at Berkeley Vale.

9 The remarks on sentence commence with a careful and detailed survey of the facts of the offences. The survey occupies almost seven pages of transcript, and the detail of the narrative is important for present purposes. A copy of this factual survey made by his Honour, no part of which was challenged as to its accuracy, has been appended, and marked Appendix A, to this judgment.

10 The survey by his Honour of the basic facts of the offences is followed, in the remarks on sentence, by two sections: one entitled: “The Lead-up”; and the other entitled: “The Aftermath”. Each of these two sections contains additional, and carefully detailed, factual surveys. Once again, the detail of the narrative is important for present purposes. The relevant material is copied as “Appendix B” to this judgment.

11 The findings made by his Honour at the conclusion of the “Lead-up” material have been retained as a matter of practical convenience, in Appendix B; but it will be necessary to say later herein something more particular to those findings.

The Suggested Error in the Structuring of the Two Sentences for Murder

12 The effect of each of the two sentences as actually passed by O’Keefe J is to pass upon the applicant a sentence of imprisonment for life, with an accompanying non-parole period of 30 years in the one case, and 25 years in the other case.

13 At the hearing before this Court it was conceded by the Crown that this approach was indeed erroneous: Reg v Harris (2000) 50 NSWLR 409 at 429; and that it would be necessary, therefore, for this Court to re-sentence the applicant.

14 That concession entails that this Court must now determine for itself whether, applying correct sentencing principles to the whole of the evidence before it, the Court is of the positive opinion that some other sentences, more lenient than those passed by O’Keefe J, are warranted in law and should have been passed: section 6(3), Criminal Appeal Act 1912 (NSW).

Re-Sentencing by this Court: the Applicant’s Objective Criminality

15 Before O’Keefe J there was a deal of argument about the correctness of characterising the applicant’s offences, but especially the two offences of murder, as being worst case examples of their particular types.

16 The basic principles are not in doubt. They are stated conveniently by Badgery-Parker J, (Carruthers and Finlay JJ concurring), in Reg v Twala: unreported, 4 November 1994:

“…………… In order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).”

17 O’Keefe J came to the provisional conclusion 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 of the day in question including the brutal, callous, deliberate execution-like killing of Mr. Watson.”

18 With such a provisional conclusion I am wholly in agreement.

19 It then becomes necessary to consider whether, conformably with what is established by Twala, that provisional conclusion requires substantial revision by reason of factors mitigating the objective criminality of the offences.

20 It was submitted to O’Keefe J that there were seven such factors. They were identified as follows:

[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 virtue of the matters referred to in [3] above;

[5] The pleas 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 by counsel for the prisoner, must necessarily be long.

21 Of those seven identified factors, those numbered 2, 5, 6 and 7 do not go, in my opinion, to the mitigation of the objective heinousness of the applicant’s crimes. They are capable, in my opinion, of going to the mitigation of sentence by reason of personal considerations particular to the applicant.

22 As to the remaining three identified factors, O’Keefe J concluded: first, that the crimes had been premeditated; and secondly, “that the actions of the …. (applicant) …. . were not the consequence of the ingestion of excessive drugs or alcohol on the day on which they occurred”.

23 His Honour’s overall assessment was that the applicant “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”.

24 At the hearing before O’Keefe J, and at the hearing before this Court, there was discussion of whether the applicant’s actions could be characterised as having been premeditated. The Crown Prosecutor before O’Keefe J submitted that the actions, and in particular the killings, had been “entirely senseless and motiveless, not something generated by a previous relationship, premeditated in that sense ……………”. This accorded with a submission which the Crown Prosecutor put a little earlier and in these terms”

“If pre-meditation means some settled determined course of action against nominated individuals at a point in time before you commence the process, then no. If it is in terms of what it was was determined to be done at a point in time shortly before it occurred, to the extent that he went out and after he destroyed the material in the adjacent unit, then went out with the rifle with the intent of shooting whoever was in the vicinity, then to that extent it was pre-meditated. It was not a pre-planned execution of some known person motivated by some previous relationship.”

25 That seems to me to be a completely clear and correct description.

26 O’Keefe J said on the topic:

“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.”

27 I do not agree with the applicant’s submission that this assessment shows “a clear misunderstanding as to the onus and standard of proof”. That assessment of his Honour seems to me to be, also, a completely clear and correct description of the applicant’s actions.

28 It is necessary to consider, next, the submissions put for the applicant concerning the mitigating effect upon his objective culpability of the expert psychiatric and psychological opinion evidence that was placed before O’Keefe J.

(a) Dr. Westmore

29 Dr. Westmore wrote a report dated 15 September 1999. It is addressed to the applicant’s then legal representatives. It seems to have been obtained with particular reference to, in Dr. Westmore’s words: “………… the issue of the availability or otherwise of psychiatric defences to the charges of murder”:

Dr. Westmore’s conclusions and opinions were:

“Of immediate relevance to your client and his current legal difficulties is the issue of the availability or otherwise of psychiatric defences to the charges of murder. He does not suffer from a mental illness in the sense that he would qualify for a mental illness defence. That is there is no evidence on the history that he provides that he was suffering from a disease of the mind which totally deprived him of his capacities at the relevant time. I would note however that there are some difficulties in comprehensively assessing this in that he can provide no details of his thought content at the time of the homicides. He reports no memory of this period of time.
The nature of his actions around the time of the homicides does not suggest or support the proposition that he was organically impaired at that time. That is there is 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 relationship to the homicides. His ability to drive a motor vehicle and to leave the scene also suggests some cognitive skills but again assessing the level of those skills is not possible because once again he reports no memory and cannot give us access to his mental mechanisms at that time.
With regards to the defence of substantial impairment the history does support quite strongly that he was depressed around this time, he had been seeing a GP who was treating him with the anti-depressant Zoloft. He was also abusing alcohol along with cold and flu tablets. He appears to have been quite preoccupied with his previous girlfriend Tina, there were ruminations and obsessive thoughts about her. He reports consuming a large amount of alcohol in the hours preceding these events, he also took anti-depressants and cold and flu tablets. The role of alcohol cannot be excluded as playing a principal and/or primary role in his behaviour and it therefore cannot be excluded as being a factor of potential significance in his actions. Because of that he does not qualify for the defence of substantial impairment.
Longer term considerations in this case include the significant depression your client appears to have suffered in the weeks and possibly months leading up to these events along with the abuse of alcohol and pills. These problems while not amounting to psychiatric defences certainly were significant and played a major [role] in the aetiology of this man’s offending behaviour.
His long term prognosis is uncertain, he requires extensive counselling about alcohol use, he has a past history of self harm thoughts and behaviour and he obviously requires ongoing treatment for his depression.”

30 The submissions now put for the applicant concentrate, not so much on these conclusions, but upon antecedent observations made by Dr. Westmore, and especially such observations touching upon the matter of depression as at 21 February 1999.

31 In a section of his report entitled: “Mental State Examination”, Dr. Westmore says:

“Although I didn’t think he was showing overt signs of major depression, he is possibly on anti-depressants at this time. I could not identify any psychotic features such as delusions or hallucinations.”

32 In a separate section entitled: “Diagnostic Issues”, Dr. Westmore makes these observations:

“Your client suffers from alcohol abuse/probable dependency and polysubstance abuse. He has in addition a history of depression. This might be a major depressive illness or a severe adjustment disorder with a depressed mood state. It is difficult to determine precisely on the history the nature of his depression. He may also suffer longer term chronic low grade depression best described as a dysthymic disorder.
He has evidence of personality dysfunction with strong anti-social qualities and possibly an anti-social personality disorder. Medical conditions appear to play no immediate role in his psychiatric difficulties. His overall level of functioning in the last twelve months appears to be quite low. His existence has been characterised by substance abuse and problematic relationships. He has been struggling to hold employment.”

(b) Miss/Mrs. Kathleen Barrier

33 Miss/Mrs. Barrier is a psychologist. She interviewed the applicant on 15 March 2000, and at the request of his then legal representatives. She prepared a report of that same date.

34 The applicant’s presentation at interview exhibited a “prevailing emotional tone” that was “substantially depressed”. His general presentation “remained flat and disconsolate”.

35 A detailed personality test assessment was made of the applicant. The significant findings are these:

“Robert’s overall profile indicates that at least a moderate level of pathology characterises his overall personality organisation. Prominent scores reflect his feelings of social and personal inadequacy. They reflect an intense conflict between his desire to withdraw from personal relationship (Schizoid), his fear of independence (Dependent) and a growing sense of unworthiness and despondency. Whilst he would very much like to depend on those close to him he has learned to anticipate disillusionment and discouragement in these relationships. His deflated sense of self worth and his expectation of personal failure and social humiliation limit any efforts he might make to become autonomous or to overcome his dispirited feelings. He sees no alternative but to give in to his gloomy and sorrowful state. This restriction of choice stirs deep resentments within him. As a consequence he would experience anxiety and dejection, interspersed occasionally with petulant, erratic, passive-aggressive acts and periodic criticism of others for their lack of support. The dependent security he seeks, however, is seriously jeopardised when he voices these emotional outbursts and resentment. To bind his irritability and moodiness and thereby protect against further loss, he may withdraw socially and become even more anxiously depressed as a result.
The more erratically moody this man became the more likely it was that others distanced themselves which served to reinforce his depressive withdrawal.
Unable to overcome feeling that life is empty and meaningless and unable to master the skills to overcome the deficits he sees in himself, he is likely to become at times cranky, if not explosive, but then to turn against himself. Extended periods of exhaustion and chronic depression may be typical. Simple tasks demand more energy than he can muster.
On clinical syndrome measures which are current reactive clinical states, his score on Major Depression is well within the significant range and reflects that a major depression characterises the daily life of this melancholic and moody man. Implicit in this description are self deprecation, thoughts of death, guilt and feelings of unworthiness.

Recurrent periods of alcoholism are a major problem. Anxious, lonely and socially apprehensive, he may have found alcohol to be a useful lubricant that reduces tension, stirs fantasies of self esteem and permits the quick dissolution of emotional pain. His responses also reflect that he has abused drugs.
As part of a more pervasive dysphoria, this troubled man reports suffering from symptoms that typify a generalised anxiety disorder. Expecting the worst he is likely to perpetrate if not create the problems he anticipates.”

36 Later, and in connection with a discussion of the effects of one in particular of a number of relationship break-downs which the applicant has experienced, the report says:

“Robert described a marked deterioration in his functioning after Tina left. He neglected his business which failed. He said “I felt a failure, could make nothing work, business, relationships and even suicide”. He became increasingly depressed and withdrawn. There was a concomitant marked increase in his use of toxic substances, specifically alcohol and amphetamines. He found it difficult if not impossible to voice his real feelings to others, for fear they may reject or humiliate him. Life was empty and meaningless. In the circumstances it is consistent that Robert would have felt irritable, frustrated and become, at times, cranky if not explosive.
Evidence from objective personality assessment indicates that Robert would likely attract a diagnosis of Personality Disorder. He would satisfy criteria as drug and alcohol dependent. It also indicates he would likely currently attract a diagnosis of Major Depression. Given his personal history, it is likely that the client has been suffering this condition since his former de facto Tina’s departure.”

37 The report concludes that the applicant: “………needs ongoing management for his current high levels of anxiety and depression”; that he needs to continue on a regular basis consultations with the gaol psychologist; and that: “(i)t is felt he is a prominent suicide risk”.

(c) Professor Starmer

Professor Starmer is attached to the Psychopharmacology Research Unit at the University of Sydney. He, too, prepared a report at the request of the applicant’s legal representatives. That report is dated 17 March 2000. The report looks exhaustively at the quantities of alcohol and drugs which were allegedly ingested by the applicant at times proximate to the time of the offences. There is an assessment of the likely interactions of some combinations of some of those substances. It suffices for present purposes to note the two concluding paragraphs of the report:

“13. Three or four-way interactions are clearly possible among the drugs which Mr. Hill appears to have taken, but it would be speculation to attempt to predict what the outcome might have been.
14. In conclusion, there appear to be indications that Mr. Hill took a mixture of drugs and alcohol on the day of the offences and I consider that enough scientific evidence exists to suggest that their combined effects were capable of influencing his behaviour.”

(d) Dr. Fretze

38 Dr. Fretze is, I infer, a General Practitioner who was practising at Toukley in 1998 and 1999. Dr. Fretze saw the applicant on six occasions between 20 October 1998 and 5 February 1999 inclusive. The applicant’s history, so far as is now relevant, was one of depression, giving rise occasionally to bursts of serious alcohol abuse and the abandonment of his prescribed anti-depressant medication. At their last consultation on 5 February 1999, Dr. Fretze doubled the previously prescribed daily dosage of “Zoloft”, an anti-depressant. Dr. Fretze did this in response to the applicant’s request for an increased dosage; and “……… on the condition he saw me weekly …. . When he left he seemed quite committed to his treatment and I fully expected him to return in another week for follow-up. I have not seen him since.”.

(e) Drs. Moynham and Nielssen

39 There are no copies of these reports in the Appeal Book. Dr. Moynham’s report is mentioned briefly at paragraph 50 of the Crown’s written submissions; and not at all in the applicant’s written submissions.

40 The applicant’s written submissions contain the following reference to Dr. Nielssen’s report:

“15. The applicant gave Dr. Nielssen a history of his intoxication at the time of the offences as follows:
“Mr. Hill said that the offence occurred after a period of heavy drug and alcohol abuse following the loss of a significant relationship and courier business. He said that he was receiving treatment for depression in the months before the offences. He said that he was intoxicated with a combination of drugs and alcohol at the time of the offences.” (p.2) and later in the report
“He said that he remembered doing some work on his car and that as he did so he had several drinks. He said that he then took a box of hayfever tablets and the rest of his setraline tablets, although he said he could not be sure how many he had, or how much he had to drink.” (p.3)
16. He gave a history of having tried to commit suicide on two occasions, once by hanging and once by an overdose of tablets and alcohol (p.3) and a history of blackouts whilst intoxicated (p.5).
17. Dr. Nielssen stated that whilst in custody since the offences, the applicant had continued to suffer from depressive illness, had been treated for a fractured cheek bone (24.7-27.8.99) requiring four weeks in hospital and had attempted suicide by overdose requiring admission to hospital (p.4).

41 Uninstructed by Twala, I would have been of the opinion that the two murders committed by the applicant were decidedly in the worst case category; and that any mitigation properly to be effected by, in particular, the psychiatric and psychological profile of the applicant, was to be reflected in the subjective features of the applicant’s case, and not in mitigation of the objective criminality of the crimes themselves. Twala seems to me, however, to preclude that approach. It suffices to quote again from the judgment of Badgery-Parker J:

“There is no doubt that this was, as emphasised earlier, a violent and horrible killing, but it was a killing clearly influenced (notwithstanding the jury’s rejection of the defence of diminished responsibility) by the mental disturbance of the prisoner resulting from the breakdown of his relationship with his wife upon whom he had become very heavily, even obsessively dependent. The court found it impossible to characterise this as a case falling within the worst category and was of the view that his Honour erred in so regarding it. It followed that the sentence of penal servitude for life was excessive and that a determinate sentence ought to have been fixed.”

42 If that approach be sound in principle, - and I am not aware that Twala has been over-ruled or doubted, - then, by parity of reasoning, the present applicant’s crimes of murder, influenced as it seems to me they clearly were by a volatile depressive history, exacerbated by alcohol and substance abuse and by unhappy and unstable conditions, cannot be characterised as worst case examples. Such an approach, if I may say so with respectful frankness, seems to me to be unpersuasive in terms of both justice and common sense; but, while Twala stands as good authority, I see no alternative.

43 That said, it must surely be the case that any mitigation of the seriousness of these two murders must be regarded, if the rule of law is to have any manifest vindication, as minimal. If the two cases are not worst case examples, then in purely objective terms they are, in my opinion, at the very top of whatever is, so to speak, the next category down from the worst case category.

44 How that assessment should be reflected in sentence cannot be determined properly until there has been a proper evaluation of the relevant subjective features of the applicant’s case.

Re-Sentencing by this Court: The Applicant’s Subjective Features

45 These are:

[1] Age : The applicant was born on 13 May 1956. He was aged, therefore, 42 years and about 9 months at the time of the offences. He is aged, now, not quite 47 years.

[2] Criminal Antecedents : The relevant antecedents are firearm offences, not involving violence against any person, for which the applicant was sentenced, in November 1997 and in the Local Court, to imprisonment for 3 months. An appeal to the District Court, in Augusut 1998, was successful in having those sentences replaced by a mixture of non-custodial penalties, being a 2 year good behaviour bond and a Community Service Order of 250 hours.

The present offences were committed in breach of that bond, a clearly aggravating circumstance.

[3] Personal History : The applicant appears to have had a trouble-free childhood, as the eldest of four children. He had no noteworthy difficulties with school, leaving in Year 8. It seems that the applicant had, until the early 1990’s, reasonably stable employment in a number of labouring or semi-labouring types of employment.

The applicant married at the age of 19. There were two children, a son now aged 24, and a daughter now aged 22. That marriage broke down; and the applicant obtained custody of the children whom he subsequently reared into, as it would seem, law-abiding citizens.

After that marriage breakdown, the applicant lived for 13 years in a de fact relationship. It came to an end abruptly and at the instance of the de facto wife.

In about 1996 the applicant entered into another de facto relationship, of which there was issue, one daughter. This lady seems to have been genuinely loved by the applicant; but she was heavily drug-addicted; and the relationship collapsed because, as the applicant was told by her, she loved the drugs more than she loved him.

This relationship breakdown appears to have had a profoundly adverse effect upon the applicant. He has described the experience as having his life fall apart.

The applicant has had other subsequent relationships, but they do not appear to be particularly stable.

The applicant has had some involvement with a well-known biker gang, but it seems that this involvement has not been active, if indeed alive at all, for some time.

[4] The Pleas of Guilty These were entered at an early stage. They would require, normally, a discount which acknowledged, and could be seen to acknowledge, the saving of public resources; and very importantly, the avoiding of any further distress to the surviving victims.

As to the matter of remorse, there was, in my opinion, not much at all shown by the evidence before O’Keefe J. There is now more evidence on that topic. It is contained in an affidavit affirmed by the applicant on 3 April 2003. The expressions of regret and remorse there advanced come very late in the day, but that is not to say that they are not genuine as far as they go.

[5] The Prospects of Rehabilitation O’Keefe J, who saw and heard both of the applicant’s adult children, was greatly impressed by the son. His Honour regarded the son’s evidence as permitting a conclusion that there was at least a faint hope of future rehabilitation. There is, in my opinion, no justification for this Court’s now departing from that conclusion.

The applicant’s case seems to me to be one in which it is very difficult to make confident predictions about future rehabilitation. The psychiatric and psychological profiles which emerge from the expert opinion evidence earlier quoted seem to me to indicate that the applicant will need, at the very least, long, patient and sustained treatment before he could be considered responsibly as fit for release back into the general community. It is fair to add that the affidavit evidence tendered on re-sentencing does in fact suggest that such treatment, if maintained prudently, could well lead in time to significant rehabilitation.

[6] Circumstances of the Applicant’s Present Detention These are in some ways particularly burdensome to the applicant. He is in strict protection, and is likely to remain so classified for some time at least. This entails practical burdens which are described tellingly in the applicant’s affidavit earlier herein mentioned.

Further light is shed upon this topic by the relevant prison clinical records. These show that the applicant, while in custody on 22 July 1999, was seriously assaulted. He suffered a fractured cheek-bone requiring an operation to insert pins necessary in order to restore his zygoma. The notes also contain references to suicidal ideation.

Re-sentencing by this Court : Balancing Objective Criminality and Subjective Considerations

46 It is useful, in the present case, to commence with the following extract from the judgment of this Court, (Gleeson CJ, Lee CJ at CL, Hunt J), in Reg v Dodd (1991) 57 A Crim R 349 at 354:

“As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594. We consider that to have happened here. In our view the requirement of a reasonable proportionality with the circumstances of crime called for a significant full-time custodial sentence.”

47 It will be apparent from what I have said earlier herein that, were it not for what I take from the decision in Twala, I would have dealt with the two murders committed by the applicant as worst case examples. Because of what I believe to be the essential reasoning in Twala, I do not believe that the correctly principled striking of a balance of objective criminality with subjective mitigating circumstances can properly result in a head sentence of life imprisonment.

48 That said, however, I have no doubt that the applicant’s case is one in which determinate sentences must reflect in a real way, and particularly in connection with the two murders, the sheer, chilling enormity of those crimes. The murder of Mr. Watson, in particular, was in my opinion so brutal and callous a crime as to call for a sentence of exemplary severity.

49 When proper account is taken of the true objective culpability of, in particular, the two murders, then the properly principled weighting of the subjective features of the case cannot have anything other than minimal effect. To approach this case by setting a determinate sentence, and by then cutting it by figures in the order of 20 – 25 per cent for the pleas of guilty; and by then cutting further to allow for other subjective matters, could not be thought sensibly as being likely to cement public confidence in, and public respect and support for, the rule of law. If anything, such an approach would be much more likely to subvert all of those objectives.

50 I have come, accordingly, to the conclusion that a proper head sentence for the murder of Mr. Watson would be one of imprisonment for 30 years. I would not find special circumstances; not because there are no matters capable in law of amounting to special circumstances, but because to give normal effect to them would entail, in my opinion, a non-parole period that was wholly inadequate to denounce, to punish and to deter two truly dreadful crimes. I would set a non-parole period for this offence of 25 years.

51 For the murder of Mr. O’Shea, I would fix a head sentence of 28 years, with a non-parole period of 23 years.

52 I would see no reason to interfere with the remaining two sentences passed upon the applicant by O’Keefe J. Those two offences, also, were in my opinion, if not worst case examples, then at the very top of the next-most serious level of offences of that kind.

53 As to whether the sentences thus set should be wholly cumulative, wholly concurrent, or partly cumulative and partly concurrent, I think that justice would be served by making all four sentences concurrent. A total effective penalty of imprisonment for 30 years with a non-parole period of 25 years, passed upon a man who is at present aged almost 47 years, would seem to me to meet, with practical justice, the proper requirements of the principles of totality and of proportionality.

Orders

54 In my opinion the Court should order:

[1] that leave be granted to appeal against all four sentences passed upon the applicant in the Court below;

[2] that the appeals against the sentences thus passed for the two offences of murder be allowed, and that those sentences be quashed;

[3] that in lieu the applicant should be sentenced:

3.1 for the murder of Mr. Watson, to imprisonment for 30 years to commence on 24 February 1999 and to expire on 23 February 2029; with a non-parole period of 25 years to commence on 24 February 1999 and to expire on 23 February 2024;

3.2 for the murder of Mr. O’Shea, to imprisonment for 25 years to commence on 24 February 1999 and to expire on 23 February 2024; with a non-parole period of 23 years to commence on 24 February 1999 and to expire on 22 February 2022

[4] that the appeals against the sentences passed in the Court below in respect of the two contraventions of section 33A of the Crimes Act 1900 (NSW) be dismissed.

55 LEVINE J: I agree with Sully J

56 BUDDIN J: I have had the advantage of reading in draft form the judgment of Sully J. I agree with the orders which his Honour proposes and am in substantial agreement with his Honour’s reasons therefore. I wish only to add some brief observations of my own.

57 As Sully J has observed, it is common ground that the sentencing judge erred in setting a non-parole period with an additional term of life imprisonment. It may be noted that his Honour’s remarks on sentence predated this Court’s decision in R v Harris (2000) 50 NSWLR 409. It would also appear that his Honour was led into this error by counsel at the sentencing hearing. Having acknowledged that error, I wish to add my voice to those who have previously expressed the view that there would be merit in permitting a court, in appropriate cases, to fix a non-parole period where an offender is sentenced to life imprisonment. See for example Harris at 429 – 431. One can thus readily sympathise with what the sentencing judge was endeavouring to achieve in the present case.

58 Nonetheless I agree with Sully J that it is necessary in the circumstances of the present case for this Court to intervene and proceed to re-sentence the applicant.

59 So far as the objective seriousness of the various offences is concerned, it would be quite impossible to regard the tragic series of events, for which the applicant was responsible, as doing other than reveal criminality of a very high order. Indeed the circumstances of the murder of Mr Watson were, as Sully J has observed, particularly heinous. Accordingly very lengthy sentences of imprisonment must be imposed. That having been said, I see no reason to doubt the approach taken by this Court in Twala (NSWCCA unreported, 4 November 1994). I would be particularly reluctant to do so in the absence of submissions and full debate upon the matter. Twala has, in any event, been followed in a number of cases including Harris itself (at 423).

60 In my respectful view, Sully J has identified those subjective matters upon which the applicant was entitled to rely in order to ameliorate the otherwise appropriate sentence. I would not however, as his Honour has, describe the subjective features as having “anything other than minimal effect”. In particular, in my view, the pleas of guilty entitled the applicant to an appropriate discount. In some cases, the heinousness of the offence(s) will be so great that no discount for the plea(s) of guilty can be countenanced. See R v Thomson & Houlton (2000) 49 NSWLR 383 at 418. The primary judge did not conclude that this was such a case. Nor would I.

61 Moreover the Crown Prosecutor accepted that the applicant had pleaded guilty at the “earliest appropriate opportunity and in addition he handed himself in to police after initially fleeing from the scene”. Indeed the applicant pleaded guilty upon arraignment. That is a matter of no little significance particularly given the seriousness of the offences which he was facing. Furthermore it is quite apparent that the pleas of guilty came after there had been negotiations between the parties concerning the two offences not involving homicides. It was that circumstance that no doubt prompted the Crown Prosecutor’s remark about the timeliness of the pleas.

62 As Sully J has observed, it is also necessary to bring into account the fact that the applicant is now, and presumably will remain, in strict protection. That is a matter of some moment given that the applicant is going to be spending a very lengthy period of time in custody.

63 Nevertheless, as the passage in Dodd to which Sully J refers makes clear, subjective circumstances cannot, particularly in a case such as this, be permitted to cause “inadequate weight to be given to the objective circumstances of the case”.

64 I agree with Sully J that when proper effect is given to the principles which relevantly govern the present sentencing exercise, including the need to appropriately denounce the applicant’s criminality, then an overall effective sentence of 30 years’ imprisonment is called for.

65 In R v Simpson (2001) 53 NSWLR 704, Spigelman CJ said that “the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought to be the minimum period of actual incarceration” (at 717). Accordingly I agree with Sully J that nothing less than an overall non-parole period of 25 years’ can be contemplated. Nor do I think, particularly given the applicant’s likely age when he is eventually released, that a period on parole of more than five years is warranted in his case.

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APPENDIX A

CCA 60188/2000 – REGINA v ROBERT JOHN HILL


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.

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 conventional doorway that formed astandard front for each of the units in the complex.

At the rear of each of the units there was a conventional doorway which led to an open space which again had a bituminised 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 layout 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.

The day of the offences, 21 February 1999, was a Sunday. From the video records and photographs taken on that day it is obvious it was a lovely sunny summer day. Although it was 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, hard-working men.

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 hard-working, law abiding, decent citizens who were conducting their own business.

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 in employment 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.

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.

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. Rasis 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.

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. Unbeknown to him at that time, Mr. Rasic had narrowly escaped death by only some 3mm 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.

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, from the gunman in unit 6

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 shot him and deliberately shot him 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.

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 Volkswagen car.

Mr. and Mrs. O’Shea had just left and locked their work unit and were in the course of walking to their Volkswagen 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.

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.

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.

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

On seeing the prisoner, Mrs. O’Shea tried to hide behind the O’Sheas’ 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.

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 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’Sheas’ van two fired cartridge cases and one unfired cartridge were found. This means that the prisoner discharged or tried to discharge 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.


APPENDIX B
CCA60188/2000 – REGINA v ROBERT JOHN HILL

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”.

His relationship with Ms Wilson had been intimate and 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” (T 70). However, 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.

Having left Ms Wilson’s premises on the morning of Sunday 21 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 with whom the prisoner had previously had a relationship and who had borne 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.

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 girl-friend. 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.

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 of 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.

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.

Having arrived back at unit 8, the prisoner began working on the carburettor of his Volkswagen, because the vehicle had been back-firing. 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.

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”.

When the car was half polished, the prisoner had some tequila and lemon Solo. Some time later, had 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 Bean 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.

Shortly before the shootings, the prisoner who was then wearing a black T shirt and a pair of black jeans, got up and took the black T shirt off. He put on a long sleeved Harley Davidson T shirt and then a 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 of “no one tell us what to do”. It was a compact disc entitled “The Living End. Second solution prisoner of Society”.

When Ms Ellis asked why he was dressing in the way he was, he said “I’m playing a game”, then 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.

Shortly after 2 pm, 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.”


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.

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 Volkswagen 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

Following the shootings, the prisoner fled the scene but, before doing so, he returned to unit 8, put his rifle in the Volkswagen 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.

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

Shortly after 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.

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.

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.

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.

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.

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.

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.

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 hitch-hiked 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.

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 Volkswagen was or where his rifle was.

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Last Modified: 05/14/2003