Regina v Saari
[2001] NSWSC 892
•12 October 2001
CITATION: REGINA v SAARI [2001] NSWSC 892 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 70075/00 HEARING DATE(S): 30 May 2001 JUDGMENT DATE:
12 October 2001PARTIES :
Reginav
Stephen Edward SAARIJUDGMENT OF: Adams J at 1
COUNSEL : Mr Peter S Dare (Crown Prosecutor)
Mr John Booth (Offender)SOLICITORS: S E O'Connor (Crown)
Ross Hill (Offender)CATCHWORDS: CRIMINAL LAW - Murder - guilty plea - difference between intention to kill and intention to cause grievous bodily harm CASES CITED: R v Previtera (1997) A Crim R 76 at 85
Veen v The Queen (No 2) (1988) 164 CLR at 465DECISION: Sentenced to a term of sixteen years imprisonment commencing 6 April 2000. Eligible for parole on 5 April 2012.
On 10 April 2001 Stephen Edward Saari pleaded guilty to the murder of one Daniel Ryan on 6 June 2000 at Rathmines in the State of New South Wales.
2 The facts are uncomplicated and largely uncontroversial. The offender, who is now forty-two years of age, commenced a relationship with one Ms Loretta Conlon during the winter of 1998. After some months, the offender moved into Ms Conlon’s home where also lived her son, James. The offender had come to know, through a family connection, a Mr Gregory Hudson, whose house was close to that of Ms Conlon. Mr Hudson’s premises included a self-contained shed in the back yard where it was usual for him to meet with his friends on social occasions. One of those friends was the deceased, Daniel Ryan, whom the offender got to know. Some time before June 2000 a handbag and some jewellery was stolen from Ms Conlon’s house. For reasons which are not altogether clear but at all events which seem entirely inadequate, the offender told a number of people that he believed that it was Daniel Ryan who had taken this property. Indeed, on several occasions the offender confronted Mr Ryan about the theft and Mr Ryan denied that he was responsible.
3 On the evening of 3 June 2000 the offender and Mr Ryan, together with a number of others, were socialising in Mr Hudson’s shed. The offender was well affected by alcohol and confronted Mr Ryan about the theft once again. Again, the accusation was denied. Later that evening, the offender and Mr Ryan went to Ms Conlon’s house. A short time later what sounded like a gunshot was heard to come from the direction of the house by people in the shed. A few minutes later Mr Ryan returned to the shed and said that the offender had pointed a shotgun at him and then fired it into a brick wall inside the garage. Police subsequently found a mattress, obviously damaged by a shotgun blast, which had passed through it and into the garage wall at Ms Conlon’s premises. On the following day, there was again a gathering of people at Mr Hudson’s shed. That gathering included the offender and Mr Ryan. The offender was again affected by alcohol. Later that night the offender, in a drunken rage, assaulted Ms Conlon’s son, James, and had an argument with Ms Conlon. The police were called but the offender left the house before the police arrived and spent the night in Mr Hudson’s shed. On the following day, 5 June 2000, the offender spent the day at the shed drinking alcohol, leaving on one occasion to seek reconciliation with Ms Conlon. However, Ms Conlon told him that their relationship was over and he had to leave her house. He made arrangements to secure some of his possessions, including a 357-magnum calibre Smith & Wesson six shot revolver, which he had given to James Conlon sometime earlier and who had secreted it away from the house.
4 On 6 June 2000, on the evening of which the murder was committed, the offender was in the shed. He was drinking alcohol but the extent to which he was affected is unclear. In the early afternoon, he returned to Ms Conlan’s house to pick up his possessions, which included the revolver, which had been returned to the house. When the offender arrived back at the shed he was carrying two bags, which contained, amongst other things, the revolver and ammunition. These bags were put onto a bed at the rear of the shed area. The offender continued to drink. During the evening of that day a number of people arrived at the shed. A makeshift wood-burning heater was in use and some sausages were cooked. Six males were present including the deceased and the offender. As the evening progressed, the offender’s behaviour was observed to change. His manner became short with people for no apparent reason although no particular point was made of this, since he commonly became surly when affected by alcohol. The offender wandered around inside the shed and sat on the bed, placing his head in his hands. Sometime after 9 o’clock, the offender got up from the bed and approached the others, saying to no-one in particular, “I suppose youse are going to turn on me, are you?” Mr Hudson replied, “I don’t know what you’re talking about”. The offender walked back to the bed area and sat down. Shortly after, he got up off the bed and walked back towards the group. He was holding a revolver in his right hand, down by his side. He walked up to Mr Ryan, pointed the gun directly at his head and said, “I’m going to shoot this fucking cunt”. Mr Ryan turned in the swivel chair to face the offender. What happened next is not clear, but it appeared to one of the witnesses that, without giving Mr Ryan a chance to answer, the offender lowered the gun somewhat, and, after a little hesitation, discharged it. It appears that Mr Ryan was turning away from him. The bullet entered his side at the bottom of the rib cage. The offender then raised the revolver towards Mr Ryan’s head. Mr Ryan got up, pushed the revolver way and ran from the shed, clutching his stomach. The offender then aimed the gun at the others present and asked, “Do you want to die?” He then walked out of the shed and returned a moment later and, holding the butt of the revolver in front of him, handed it to Mr Hudson saying, “Here, do something with this”. The offender then walked to a nearby house and told the occupant that there had been a “serious accident” and asked him to ring the police. He waited at the front of the house for police to arrive. Although an ambulance had been called, Mr Ryan was taken by some of those at the scene at a private hospital at Toronto, then to the Toronto Polyclinic and finally to the local ambulance station where he received assistance before being transported to John Hunter Hospital. He died en route to the hospital. While waiting for the police to arrive, the offender said to Mr Lambton, “I’ve just shot someone. I couldn’t cope any longer. I came to your house because I hoped you would be caring enough to help me. He later said, “I couldn’t cope any longer. He’s been causing so much trouble in the area. I had to do something”. There is no evidence that Mr Ryan had in fact been causing any trouble in the area at all and the offender’s remark may have been a reference to his belief that Mr Ryan had committed the theft to which I have referred and as to which, I reiterate there was not one skerrick of evidence at all.
5 The offender was arrested. As I read the evidence, he appeared to be only mildly affected by alcohol. The offender was taken to Toronto police station where a recorded interview was conducted at 2.16am on 7 June 2000. Police located the weapon, which contained five live rounds and one used cartridge case.
6 I comment in passing that if ever there was a case which showed that strict gun control is essential for the public safety, this is one.
7 The offender admitted to police that he had shot Mr Ryan, although he said that he did not mean to kill him, but was unable to give any explanation as to why he did so. What he said is perhaps best summarised by the following passage -
- “I lost the plot at my girlfriend’s house and she got all the police and I don’t know, I just wound up down the back at a friend’s house goin’ through my thoughts. I dunno. I just had a gun and I used it. I knew I did the wrong thing as soon as I, I don’t know, I didn’t mean to kill him”.
This was repeated a number of times in different ways, but I do not think it necessary to set all this out for present purposes.
8 The offender was interviewed by a number of consultants for the purpose of these proceedings. He gave to Dr Lucas, a psychiatrist, and Ms Robilliard, a psychologist, essentially the same account. He told them, in essence, that he had been offended by Mr Ryan’s behaviour, including, he thought, the theft to which I have referred in respect of which Mr Ryan’s denials had angered him. The following account is taken from Ms Robilliard’s report -
- “When Ryan joined the gathering in the shed on the evening of June 6 Stephen said he ‘thought it was a good time to scare him, everyone was sitting around’. He described getting the gun from his bag on the bed and walking towards Ryan with the gun beside his leg. Ryan was sitting on a swivel chair and as Stephen approached he remembered saying in a loud voice ‘I’m going to shoot this cunt’. In fact he said he had no intention of shooting him, that he simply wanted to scare him. He thought Ryan would get up and run when he saw the gun instead of which he states Ryan ‘had a smug look on his face, there was no hint of movement. He seemed very calm’. Stephen said he pointed the gun at Ryan’s head in an attempt to frighten him, and still he did not look frightened or attempt to move. Stephen said he lowered the gun knowing what he was doing was dangerous. He remembers feeling ‘he’s got me again, he’s robbed my house and made a stinking idiot of me’.
- Stephen said he had no intention of killing Ryan and although the gun was not cocked he did squeeze the trigger and it discharged. He stated ‘I meant to wing him in the love handles’ however Stephen maintains Ryan was sitting in a swivel chair and he believes he moved.”
9 The offender explained to Dr Lucas and Ms Robilliard that he loaded the gun because, if it had been empty, Mr Ryan would have known that his threat was not serious and “would have laughed at me”.
10 I am inclined to accept that the offender did not intend to kill Mr Ryan, merely to wound him. His plea of guilty, in all the circumstances, must be taken as an admission that he intended to inflict very serious physical injury to Mr Ryan and I do not think it useful to ask whether or not this is consistent with an intention to shoot him in what the offender described as “the love handles”.
11 There is no doubt that causing death by inflicting an injury intending to cause grievous bodily harm is a very grave crime. In some circumstances, there may be no difference in culpability between committing a murder with that intention on the one hand, and with the intention of causing death on the other. However, in the circumstances of this case, I consider that the absence of an intention to kill does reduce the seriousness of the offence somewhat and that this should be reflected in the sentence that I impose.
12 It appears from the personal histories given to Dr Lucas and Ms Robilliard that the offender has abused alcohol since his pre-teen years, no doubt influenced by the example, it regrettably appears, of both his parents. The offender’s father had alcoholic cirrhosis of the liver and died in hepatic coma although his mother, also an alcoholic, gave up drinking some years ago. The offender told Ms Robilliard that, after his father died (the offender then being about ten years old) he and his brother regularly committed minor crimes involving breaking into the local school and surrounding shops, vandalism and theft. He attended school irregularly although he finished his school certificate with what he claimed to be sound passes in a number of subjects. The offender has six convictions for alcohol-related motor vehicle offences. He has also abused drugs and has been convicted of a number of drug offences. It appears that he has used amphetamine, heroin, and cocaine, amongst other drugs, over the years though, he says, not for some years now. The offender had participated in an alcohol rehabilitation programme for a short time about four months before the offence and it appears that he had remained abstinent until about a month before the offence when he started to drink once more. The subsequent break down of his relationship with Ms Conlon exacerbated his emotional state although, of course, this provides neither explanation nor excuse for Mr Ryan’s murder.
13 It appears that the offender has had a number of severe depressive episodes over his adult life, for which it seems he obtained some treatment, although its extent is not clear. He told Professor Starmer that, at the time of the offence he was self-medicating with an anti-depressant marketed as Zoloft, which he stopped taking a few days before the offence. Dr Starmer raised the question in his report whether an abrupt withdrawal from the use of this drug could have had a role in provoking the events that occurred but considered that, although this was a reasonable possibility, there was no evidence which permitted any reliable conclusion to be drawn. Accordingly, I do not think that this is a matter which I should take into account.
14 Over the years the offender has been working steadily in a number of occupations, though for the past twelve years or so as a bricklayer and boilermaker. From time to time, the offender had tried rehabilitation by undertaking detoxification programmes with varying but, it seems, short-lived success.
15 Overall, I am prepared to accept that the offender’s disposition to violence, especially when he has been drinking, has resulted to a significant degree from his disturbed childhood and adolescent years, exacerbated by a long history of drug and alcohol abuse. It appears that some aspects of his intellectual functioning suggest acquired brain impairment from several causes including alcohol and drug abuse. Dr Lucas considered that the offender’s history justified a diagnosis of anti-social personality disorder although he has usually worked and being employed is important to him. Dr Lucas observed that this disorder tends to improve in the fourth and fifth decades of life. Regrettably, there appears to be no sign yet of this occurring in the offender’s case but, as Dr Lucas said, alcohol abuse may be clouding the picture. Overall, clinical tests administered by Dr W G J Reid, a clinical neuro-psychologist, revealed the offender is of average intellectual ability with some deficits in intellectual functioning although he is still within the average range.
16 I have only touched briefly on the offender’s personal history and have not referred to a number of matters set out in the reports which, although they contribute to a picture of his personality, are not necessary to set out in this judgment. I accept that he was born into and raised in a severely dysfunctional family and had few personal resources with which to deal effectively with the challenges of growing up. However, at forty-two years of age, he is a mature man and none of his background mitigates the seriousness of his offence. It is material, however, on the question of his rehabilitation and I accept that, if he is able to deal with his alcohol and drug dependence problems, commission of a serious criminal offence after his release is unlikely. In this regard, his work record shows that he is capable of responsible and mature behaviour. These will be matters which the Parole Board will be in a better position than I am to assess when it comes to consider whether he should be released at the expiration of the non-parole period I intend to impose.
17 The circumstances of the offence as I have set them out, are certainly strange and reflect a degree of disordered thinking, although it is clear that the offender knew what he was doing. His committing this offence in the presence of witnesses is, perhaps, the most obvious indication that he was not thinking clearly. The gravity of the offender’s crime is less, of course, than that of a pre-meditated cold-blooded murder but, that having been said, his offence remains a very grave one indeed. It was an unprovoked, cowardly, brutal act of self-indulgent but extreme violence, in circumstances which excite no sympathy except for his unfortunate victim.
18 Several testimonials have been tendered on his behalf. One by a long time friend who had employed him over many years and who, amongst other things, remarks on the difference in the offender’s behaviour when he was affected by alcohol and others by the offender’s mother and Ms Conlon. These confirm a number of matters in his personal history to which I have referred. Also tendered in the proceedings are Victim Impact Statements made by Ben Ryan, the victim’s older brother and Mr and Mrs Ryan. It is clear that they have suffered enormously as a result of Daniel’s death and they will continue to suffer for many years to come. Daniel’s death has, as might be expected, had a devastating effect on them.
19 It is important, I think, to point out that, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so.
20 The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more or less valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was selfish and obnoxious, and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous and kind, loved and surrounded by friends and family who suffered greatly from his or her death. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.
21 In Veen v The Queen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said (at 476) -
- "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..."
22 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour.
23 The considerations which moderate the measure of punishment, whilst keeping at the forefront the policy objectives of sentencing, do not arise primarily because of what is due to the offender but what is due to ourselves as a civilized and humane community. They reflect not so much respect for the criminal but the self-respect of the community. The principles of reason and humanity which ascribe unqualified value to the life that has been lost require the law also to value the life of the person who comes to be sentenced.
24 The offender has tendered a letter, to which no objection was raised by the Crown prosecutor, in which he expresses his heartfelt remorse for what he has done. I accept that he is, indeed, remorseful. He has admitted his responsibility for the crime from the outset. I consider that I should accept that his plea of guilty is also evidence of contrition, even though (as is obvious) his guilt was a foregone conclusion. These are matters that the law requires to be taken into account on sentence. I am also bound to ensure that the sentence is discounted to reflect the utility of the plea of guilty to the administration of justice. This has been said by the Court of Criminal Appeal (and, if I may say so, rightly) to be desirable in the public interest. Having regard to the applicable scale indicated, though not, of course, prescribed, by the Court of Criminal Appeal, I consider that, in the circumstances of this case, an allowance of 25% is appropriate.
25 I am obliged also to take into account the fact that the offender has been in custody since the date of the offence and has spent that period on remand, a regime of imprisonment more harsh in a number of respects than that applying to sentenced prisoners. I do not consider that there are any special circumstances that justify a departure from the statutory relationship between sentence and non-parole period.
26 Stephen Edward Saari, you are sentenced to a term of sixteen years imprisonment, commencing 6 April 2000. The earliest date upon which you will be eligible for parole is 5 April 2012.
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