Regina v Taylor
[2002] NSWSC 1139
•21 November 2001
CITATION: Regina v Taylor [2002] NSWSC 1139 CURRENT JURISDICTION: Criminal FILE NUMBER(S): SC 70074/01 HEARING DATE(S): 26/03/02, 27/03/02, 28/03/02, 03/04/02, 04/04/02, 05/04/02, 08/04/02, 09/04/02, 10/04/02, 11/04/02, 15/04/02, 16/04/02, 17/04/02, 18/04/02, 19/04/02, 22/04/02, 23/04/02, 23/04/02, 24/04/02, 29/04/02, 30/04/02, 01/05/02, 02/05/02, 03/05/02, 06/05/02, 07/05/02, 08/05/02, 09/05/02, 06/06/02, 19/09/02, 24/09/02, 25/09/02, 26/09/02 JUDGMENT DATE: 21 November 2001 PARTIES :
Regina v Michael James TaylorJUDGMENT OF: Whealy J at 1
COUNSEL : T. Hoyle SC - Crown
G. Scragg - Offender
G. Nicholson - Offender (sentencing only)SOLICITORS: Office of the Solicitor for Public Prosecutions
Legal Aid Commissionof NSW
Pamela White and AssociatesLEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act 1999
Evidence Act
Criminal Procedure Act 1986
Drugs Mususe & Trafficking Act 1985CASES CITED: Regina v Previtera (1997) 94 A Crim R 76
Bollen v Regina (1998) 99 A Crim R 510
Simpson (2001) NSW CCA 534DECISION: Michael James Taylor, in relation to the charge under s 10(1) of the Drug Misuse & Trafficking Act 1985 you are convicted and fined the sum of $500.00. I allow 12 months time to pay. In relation to the charge of murder, I sentence you to 18 years imprisonment. The sentence is to date from the 12 September 2001. I set a non-parole period of 14 years commencing on 12 September 2001 and expiring on 11 September 2015. The prisoner will be eligible to be released on 11 September 2015.
IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
WHEALY J
21 November 2002
70074/01 - REGINA v Michael James TAYLOR
SENTENCE
1 HIS HONOUR: The prisoner Michael James Taylor was tried before me on an indictment that charged that on 25 July 2000 at Prospect in the State of New South Wales, he did murder Adam Scott. On Thursday 9 May 2002 the prisoner was found guilty of murder as charged. Submissions on sentence were made on 24 and 25 September 2002. The prisoner on that day was further remanded in custody until today for the passing of sentence. The maximum penalty for the crime of murder is life imprisonment.
2 I am required to find the facts relevant to sentencing. It is necessary that the facts I find be consistent with the jury’s verdict.
3 The defence mounted on the prisoner’s behalf was a simple one: It was that the death of Adam Scott was completely accidental. The thrust of the prisoner’s version of the events of 25 July 2000 may be stated briefly. It was his evidence that he arrived at 13 Indigo Way Prospect in the early hours of the morning to deliver to Rebecca Mills, whose house it was, a small package of Amphetamine powder (“speed”). It was Rebecca Mills who let him into the house in circumstances where he had no knowledge or suspicion that the deceased Adam Scott was in the house. The prisoner was knocked unconscious and when he revived, Adam Scott, who was armed with a firearm, in fact a firearm that belonged to the prisoner, confronted him. The deceased, according to this version, had been pointing the gun at the prisoner’s head. The prisoner thought that he was going to be shot. He struggled with the deceased and in the course of the struggle the gun went off fatally wounding the deceased. The prisoner fled the house and did not see the infliction of the second shot which, according to the forensic evidence, occurred less than a minute later and brought the deceased’s life to an end.
4 In short, this version of the events that resulted in the loss of the deceased’s life was that the prisoner’s only involvement was as part of a struggle ending in a tragic accident. Indeed, a struggle which was not of the prisoner’s making.
5 Consistently with the jury’s verdict, I find that this version of events simply did not happen. Although the defence of accident was the principal issue fought out between the parties, it became necessary for me to leave for the jury’s consideration the possibility of self-defence and provocation. The jury’s finding shows that they rejected the suggestion of accidental death and were satisfied that the Crown had eliminated both self-defence and the partial defence of provocation.
6 Again, consistently with the jury’s verdict, I am satisfied beyond reasonable doubt that the Crown has negatived the possibility that the death occurred in circumstances of either self-defence or of provocation. The events that led to the tragic shooting and death of Adam Scott had their genesis in the meeting between the prisoner and Rebecca Mills. They had met about four or five years ago through a mutual acquaintance and within six months were in a regular relationship with each other. At the time, Rebecca Mills lived with her parents and her sister at 13 Indigo Way, Prospect. The prisoner lived with his parents at 41 Lloyd Street, Blacktown.
7 As the letters written by the prisoner to Rebecca Mills during the earlier part of their relationship show, this was a passionate and intense affair. The prisoner showed clear signs of possessiveness and jealousy towards Rebecca Mills at this early stage of their relationship. Although in his evidence at the trial, the prisoner attempted to down play these strong and passionate feelings towards his girlfriend, it is my clear view that he continued to feel very intensely about her; that he was devoted to her and her child from a previous relationship, and that he would not look easily at the prospect of her flirting or dallying with other men.
8 In 1999 Rebecca’s parents left 13 Indigo Way and went to live at Winmalee in the Blue Mountains. She remained at the Prospect address with her child and her sister. From that time onwards, the prisoner spent more time at Rebecca Mills’ place and often stayed overnight. Slowly he began to move more and more of his possessions into her home. After a short while, Rebecca Mills’ sister moved out from the home at 13 Indigo Way.
9 The prisoner had a number of interests that were unusual for a young man of his age. For example, he had an interest in reptiles. He had a reptile room in his parent’s home at Lloyd Street, Blacktown which held a considerable number of reptiles and lizards. Secondly, it appears he had an interest in firearms. For a period of time when he was younger he lived at a farm at Nabiac near Forster and in the company of his grandfather did some shooting while he was on the property.
10 In 1997 the prisoner purchased a firearm from the Horsley Park Gun Shop. It appears that this was a weapon known as a Thompson Contender, a weapon which is capable of firing a single shot .375 calibre bullet. He also bought a holster for the gun and ammunition. In his evidence, the prisoner maintained that he did not keep the weapon at Lloyd Street, Blacktown because he was strictly forbidden by his parents from having firearms at his parents’ home. According to him, the weapon was kept up at a country property. However, after Rebecca’s sister had moved out of Indigo Way, he claimed that he asked Rebecca Mills’ whether he could keep the weapon at her place. According to this version she agreed, although it was on the basis the weapon was only kept there for a short time. He said that he took the firearm over to her place and he put it up in the man-hole in the roof. This man-hole was located in the hallway not far from the main bedroom at 13 Indigo Way. The prisoner said that he gained access to this man-hole by standing on a chair and two telephone books. He put the gun, the ammunition and the holster in the roof. According to his version, Rebecca Mills was told about and was well aware of the location of the gun in the roof.
11 I do not accept this version of events. I am satisfied beyond reasonable doubt that on 24 July 2000, the prisoner kept the rifle, the holster and ammunition for it in his locked bedroom at 41 Lloyd Street, Blacktown. I am also satisfied beyond reasonable doubt that the elaborate version of the placement and leaving of the gun in Rebecca Mills’ house a number of months before the shooting was a story made up by the prisoner in an unsuccessful endeavour to persuade the jury that it was the deceased Adam Scott who had the gun on the morning of the shooting and not the prisoner. This aspect of the prisoner’s version of events was a complete fabrication and I reject it.
12 In June 2000 Rebecca Mills endeavoured to end the relationship between herself and the prisoner. Early in the month she moved most of the prisoner’s belongings out on to the front lawn and told him she wished to end the relationship. The reason for her decision is not clear. She had been badly burnt at a solarium on 28 March 2000 and it appears that this may have led to depression and anxiety on her part. Certainly, it seems that she increased her drug taking at about this time. In many respects, Rebecca Mills was a very unstable person. There were occasions where she experienced hallucinations particularly after heavy bouts of drug use. She had also experienced hearing voices for a number of years. She began to use anti depressant tablets to cope with the depression she felt after the burning at the solarium. It is difficult to know why with any certainty, but whatever the reasons, it is clear that she did take steps to bring the relationship to an end in June 2000.
13 I am satisfied that this had a very serious effect on the prisoner. This was particularly so in light of the fact that he came to learn that Rebecca Mills had renewed a friendship with the deceased, Adam Scott. She had known the deceased some years earlier and now, so it must have seemed to the prisoner, she appeared to be contemplating entering into a relationship with him. I am satisfied that this troubled and angered the prisoner who resented Adam Scott and all that he stood for. In particular, there was the fact that Adam Scott was a heroin addict and, from the prisoner’s perception at least, he was or was likely to be responsible for an increased reliance by Rebecca on drugs. The prisoner was undoubtedly concerned as well for the welfare of Rebecca’s young child. All these matters fuelled a potentially explosive emotional mix in the prisoner.
14 Despite Rebecca Mills’ decision to break up with the prisoner, it is quite clear that he remained in contact with her on a regular basis. It seems that he would drop over probably on a daily basis and would speak to her on the telephone as well. There were a number of instances where she rang him but I am perfectly satisfied that the prisoner did not accept that their relationship was over and that he was determined to see that it remained in place. The continued presence of Adam Scott on the scene from time to time further fuelled the anger and resentment the prisoner felt towards him. A friend of Rebecca, Melissa Harris, gave evidence that on three occasions she heard the prisoner making threatening remarks about or to Adam Scott. On one occasion she heard Rebecca and the prisoner arguing in the kitchen. The topic was Adam Scott. She heard the prisoner say “I’ll kill him, he’s dead”.
15 On another occasion Melissa Harris said that she heard the prisoner shout something of a similar kind one evening when she was staying with Rebecca Mills at 13 Indigo Way. On that occasion, it was clear that Adam Scott had rung several times and the prisoner apparently became angry that this man was ringing Rebecca in the early hours of the morning. According to Melissa, her recollection was that these threatening remarks were made on this occasion by the prisoner shouting that he would kill Adam Scott while Rebecca was speaking to Adam Scott on the phone. There was a third occasion when the prisoner spoke to a person on the phone angrily telling him not to ring again.
16 I am satisfied beyond reasonable doubt that the prisoner did make threats towards Adam Scott in the manner suggested by Melissa Harris in each of those incidents.
17 I come now to the events of 24 and 25 July 2000. The prisoner went to work as usual that day. He had spent the previous night at home and arrived home at about 4 o’clock after work. He had borrowed some tools from his work place before leaving work. He wanted to cut a rusty lock off Rebecca Mills’ letterbox with a bolt cutter and he had a circular saw as he wanted to do some work on his Iguana cage at his own home that evening. He went to Rebecca’s house and was there with her there between 4 and 5 o’clock in the afternoon. He said that he dropped in to see if she was okay. She was there with her little boy, Jesse, at the time. He cut the lock off the letterbox and the two of them spoke on reasonably good terms outside the house that afternoon. It appears that Rebecca asked him whether he would be prepared to get some speed for her from a mutual acquaintance named Joe. It seems the prisoner had obtained speed for her from Joe on at least one other occasion and perhaps on other occasions as well. In any event the prisoner agreed to do this and it seems they parted on good terms. Certainly this was so from the prisoner’s point of view and he must have formed the view that the continuance of their friendly relationship indicated that there was some prospects that their relationship might come together again at a more serious level.
18 The prisoner returned home, had something to eat and do some work on his Iguana cage. He left home at about 10.30pm and drove to a friend’s house, one Graham Blissett. His friend however was sick and he spoke instead to his friend’s father Allan Blissett. He stayed there for about half an hour and then went down to the car park area of the Woolworth’s Supermarket complex close to Indigo Way where he had made arrangements to collect the speed from the man Joe. He finalised this transaction and paid for it from his own monies. The prisoner’s version was that he later went to Rebecca Mills’ house not knowing that Adam Scott was there and simply to give Rebecca the speed he had bought for her.
19 This version of events was inherently improbable. The fact is that the prisoner did not arrive at Rebecca Mills’ house and gain entry to it until after one o’clock in the morning of 25 July. I am satisfied beyond reasonable doubt that what really happened was this: after buying the speed from Joe, the prisoner either saw Adam Scott arrive and leave his car in the Woolworths car park; or alternatively, he noticed the car parked there. Although he said he had no knowledge of the car driven by Adam Scott, the fact is that Adam Scott’s car was distinguished by a set of personalised number plates. In any event, I am quite satisfied that prior to 24 July 2000, the prisoner would have well been able to recognise Adam Scott’s car. Now it is not clear whether the prisoner went down to Rebecca’s house to satisfy himself that Adam Scott was there. This may have happened although the evidence does not enable me to say so with any precision or certainty. In any event, I have no doubt that the prisoner went back to his parent’s home at 41 Lloyd Street, Blacktown, went to his room and after a period of time decided to go and confront Rebecca and Adam at 13 Indigo Way. He put on the holster and took the weapon from under his bed and then inserted it in the holster. He took some ammunition from his room although two bullets were left there. One of these bullets was found by the police on the doona of his bed and another was found in a cane basket on a lounge in his bedroom. These bullets were found the next day during the execution of a search warrant obtained to search the property at 41 Lloyd Street, Blacktown. The police also found under the bed a plastic bag containing literature relative to Thompson Contender weapons and the type of holster designed to fit a Thompson Contender weapon.
20 Thus armed the prisoner drove to 13 Indigo Way. The holster and weapon were underneath his Billabong jacket. He arrived there at about twenty past one in the morning. He went to the front door and with a set of keys he had recently had cut he began to let himself into the house after banging on the door and windows noisily. I am satisfied he was deeply angered and distressed by the fact that Adam Scott was apparently spending the night at Rebecca Mills’ house and he wanted to have a confrontation with Adam Scott in her presence. Rebecca Mills opened the wooden front door and the prisoner said that he wanted to talk to Rebecca and Adam. At that moment Adam Scott came out of the bedroom into the hallway. He was fully clothed as was Rebecca. The prisoner said “So we finally get to meet”. The prisoner then suggested that the three of them go into lounge room and have a discussion.
21 In the lounge room Rebecca Mills sat on the lounge which was centrally positioned. The prisoner said to Adam Scott “Sit next to your girlfriend”. Adam Scott protested that Rebecca was not his girlfriend yet and went and sat on the floor in front of the lounge room window. Thus it was the two men were on opposite sides of the lounge room, the prisoner on the eastern side and the deceased on the western side with his back against the window.
22 What happened next is not entirely clear. It must have become obvious to both Rebecca Mills and Adam Scott that the prisoner had a gun in his holster. According to Rebecca’s evidence, the prisoner pulled the gun out, had a discussion with her about it and then placed it on the floor in front of him. The deceased asked whether he could light a cigarette. Rebecca Mills did not allow smoking in her house because of her son’s asthma. She said he could light up his cigarette on this occasion.
23 It seems he did. I am satisfied that there were further words spoken in the room between the three people and that the atmosphere became more heated and the prisoner became more and more angry. At some stage he picked up the weapon, cocked it, pointed it at Adam Scott and fired a bullet which struck him in the chest.
24 The deceased began to crawl on his stomach towards the kitchen and he reached the position where his body was ultimately found over near the doorway to the kitchen. According to the forensic evidence this first shot ruptured his aorta and would have led to his death in about a minute or a little more. The prisoner ejected the fired cartridge from the gun. The cartridge was later found by the police on the lounge room floor. He walked over to where the deceased had crawled, put another bullet into the weapon pointed it at Adam Scott and fired a second shot into his back. This bullet, again according to the forensic evidence, would have killed Adam Scott almost instantly.
25 The prisoner turned to Rebecca Mills and said “Now it is over”. He then walked out of the house and shortly afterwards drove away in his four wheel drive taking the weapon with him.
26 According to the prisoner’s version, as he left the house following the accidental firing of the weapon and the wounding of the deceased by the first shot, he saw another person in the hallway of the house carrying something. This version of events was intended to suggest that some other person was either in the house or came into the house and that it was this person who then came into the lounge room and fired the second shot which killed Adam Scott. I reject this version as a complete fabrication.
27 All of the forensic evidence, the physical evidence in the house and the evidence of a nearby neighbour, Ms Dee Spurway showed that the deceased was killed by two shots following in reasonably quick succession with perhaps a minute between them. Certainly no more. The bullets which were found in the deceased’s body and in the porch wall behind where the deceased had been sitting were consistent with being .375 centre fire Winchester bullets. They were consistent with having been fired from the same weapon. They were consistent with having been fired from a weapon such as a Thompson Contender. As I have said there was a cartridge found in the lounge room which was consistent with the ammunition later found during the search in the prisoner’s bedroom at 41 Lloyd Street, Blacktown.
28 In addition, I am satisfied beyond reasonable doubt that there was no one in the house besides Rebecca Mills, Adam Scott and Rebecca’s young son, Jesse. The prisoner’s tale of other people being involved in the slaying of Adam Scott was no more than a clumsy attempt to divert attention from his own angry actions in deliberately shooting the deceased first in the chest and then, when he was fatally wounded, ending his life with a second shot in the back.
29 By these actions, the prisoner had taken his revenge on Adam Scott, had ended the life of his rival and paid back Rebecca Mills for her betrayal of his devotion to her and to her child.
30 After the prisoner left the house at 13 Indigo Way, it must have quickly become apparent to him what he had done and the enormity of the consequences for himself. It seems that he drove around for quite a number of hours until morning. It is not known where he went or what he did. His actions were completely unaccounted for during this time. But during this period he got rid of the weapon and despite intensive police searches at his place of work, his home, at Rebecca’s place and elsewhere, the weapon has never been found. The prisoner claimed during his evidence at trial that he left it in the house although his version to the police on the morning of 25 July 2000 was that he simply did not know where it was. By the time he was arrested later that morning and taken to the police station, it was quite apparent the prisoner had a wound to his head. This wound comprised four horizontal reddish lines parallel to and directly above one another. They were located above the outside edge of his left eyebrow in front of the hairline. The area was bruised and there appeared to be some swelling as well associated with the injury. When he was arrested, the prisoner suggested or implied that he had received the wound when he was struck by a torch being held by the deceased. Photographs of the deceased’s body in the hallway at 13 Indigo showed that he was holding a torch in his right hand. He was also holding a blood stained shirt. Laboratory testing showed that the blood on the torch was that of the deceased. Evidence was given in the trial by Dr Stuart Anderson. He had examined the photograph Exhibit “O”. He expressed the view that the wound to the prisoner’s forehead though possibly caused by the torch was not likely to have been inflicted by it. He could not find any parallel ridges on the torch corresponding to those that were found on the wound.
31 I have no doubt that when Adam Scott came from the hallway into the lounge room he was carrying the torch. He must have had some fears that trouble was in the air. He would have known that from the fact that the prisoner was angrily banging on the front door and demanding entry. He had the torch with him in the lounge room for protection but I am also satisfied that he did not use it as a weapon and he did not strike the deceased with it at any stage. I am also satisfied that he did not strike the deceased with any other object. The police investigation uncovered no other object which might have explained the wound to the prisoner’s forehead. As well, the general arrangements in the house and the lounge room particularly did not suggest that any struggle or fight had taken place. The prisoner had no blood on his clothing or on any part of his person. He had no injuries to his hands and nothing else to suggest that he had been involved in a conflict that night other than the abrasions and swelling on his forehead. I simply do not know how he received the injury. It may well be that at some time during the early hours of the morning in anger, frustration, panic and fear and perhaps even remorse, he inflicted the wound on himself in some unstated manner. I am quite satisfied however that it was not inflicted upon him by the deceased, Rebecca Mills or any one else in the house at 13 Indigo Way Prospect on the morning of the shooting.
32 At about 7.30 am the prisoner arrived at Holts Honeywell, his place of employment. There he spoke to warehouse manager, Mr Jasper. He appeared distressed. He said, “I have got some problems. There’s been a shooting, I’ve got to go, I can’t stay.” After some further conversation, the prisoner asked Mr Jasper if he would drive him into the bush somewhere He said that he wanted “just to disappear and kill himself”. Mr Jasper tried to calm him down and arranged for the police to attend. He also spoke to the prisoner’s father on the telephone.
33 Not long after this, the police in fact arrived and the prisoner was arrested and taken to Castle Hill Police Station where he was charged with the murder of the deceased.
34 It is necessary for me to add only two matters to the facts I have found in relation to the slaying of Adam Scott. First, it will be apparent from the finding I have made that, consistently with the jury’s verdict, the Crown has plainly eliminated self defence. Secondly, I am satisfied beyond reasonable doubt that although the prisoner was angry, perhaps very angry indeed when he made the decision to pick up the weapon and point it at the deceased, he had not lost his self control altogether. At that point of time, his actions were quite deliberate and quite intentional. But the prisoner, though plainly in a state of considerable emotional disturbance, knew exactly what he was doing and his actions at that time were a calculated act directed against the man who had, to his perception, taken his girlfriend from him. At that moment, he perceived that Adam Scott was the person responsible for the breakdown of his relationship with Rebecca Mills. Moreover I am satisfied beyond reasonable doubt that in firing the two shots at close range into the deceased, the prisoner intended at that time to kill the deceased as he so tragically did.
35 It will be apparent however from a number of findings of facts I have made that I have not accepted, in a number of respects, the careful and thorough submissions made by Mr Nicholson QC who appeared on the prisoner’s behalf during the sentence submissions. For clarification, I should mention that Mr Gregory Scragg of Counsel had appeared for the prisoner during his trial and that Mr Nicholson QC appeared for him only during the sentence submissions.
36 It will be necessary for me to say something albeit briefly as to the reasons why I have not accepted a number of those submissions.
37 As I said earlier, in many respects Rebecca Mills was a very unstable person. In a number of respects, her evidence was unsatisfactory. It became necessary during the trial for me to allow the Crown to question her pursuant to s 38 of the Evidence Act in relation to the difference between the evidence she gave at trial and statements she had made on earlier occasions to the police. Further, it became necessary during the summing up for me to give a warning to the jury pursuant to s 165 of the Evidence Act on the basis that the reliability of her evidence may have been affected by mental ill-health. Despite these matters, I am satisfied beyond reasonable doubt that, in general terms, the version of events revealed by her during her ‘000’ call to the police for help on the morning of 25 July, the contents of her statement to the police on the morning of 25 July 2000 and in the video walk through at her home on 26 July 2000 were a reliable and true account of what happened on the fateful morning when the deceased lost his life. The events described by her to the police in the telephone call, the signed statement and video walk through were fresh in her mind. Although she was shocked and distressed by what had happened, there is in my view no reason to rule against the accuracy of her description of the events that took place in the house at 13 Indigo Way.
38 The emergency phone call was likely to be accurate. It was made within minutes of the shooting and represented the immediate and unprompted action of a shocked and distressed woman who had witnessed a terrifying killing. The police statement was taken over a period of an hour or an hour and a half commencing at about 3.30am on that same morning. Mr Nicholson QC has been very critical of the manner of taking this statement. He suggested that the process of taking a typed statement rather than an electronic video recording tainted and corrupted the witness’ reliability and the objectivity of the subsequent video walkthrough. I do not agree. No such attack was made on Senior Constable Gilbert by Mr Scragg when the police officer gave evidence. It was he who had taken the statement. Nor was there any such attack on Detective Senior Constable Parmeter who was in charge of the investigation. Moreover, I have carefully scrutinised the unedited video of the walkthrough and found Rebecca Mills’ narrative and description of the killing and the surrounding events very compelling indeed. She did not appear to be drug affected on the video and her description appeared spontaneous, unprompted and untutored. Further, all of the objective forensic, scientific and physical evidence in the Crown case was consistent with the statements she gave and made on 25 and 26 July 2000.
39 While it is true that Rebecca Mills later attempted to resile from these descriptions, to assert that she had been “high on a cocktail of drugs” on 25 July; and provided the police with a substantially different version of events, especially on 18 January 2001, altered again by a further statement on 31 January 2001, I have nevertheless concluded beyond reasonable doubt that the original versions she provided to the police on 25 and 26 January were, in general terms, accurate. As to her later behaviour a number of things need to be stated. First, there was the trauma of the events of the evening and morning of 24, 25 July 2000. Secondly, by her own admissions Rebecca Mills spiralled out of control in relation to drug taking in the weeks and months following the events of the killing. This destructive pattern of behaviour endured in fact for many months and covered the period of time during which the fresh statements were made to the police in January 2001.
40 During her evidence at trial she said that a number of things that she had said in the statements to the police in December 2000 and January 2001 were not accurate and were not true. She said she was “drugged out” at the time she made those statements. She said she was “high on drugs” during the interview of 18 January. She said she had been “drugged out” every day during that period and she was not proud of it. She also said that she did not want to be a witness and that this was one of the reasons why she said what she did to the police during December and January.
41 It was certainly my view, albeit a lay view, that Rebecca Mills gave the impression during the interview of 18 January, as far as one could tell from observing her on the video tape, that she was apparently affected by drugs or medication of one kind or another.
42 I am quite satisfied that there was a complex of reasons for the fact that Rebecca Mills in January 2001 provided the police with statements containing a version or versions substantially different from the version originally given to the police on 25 and 26 July 2000. These were firstly that she was very badly affected by drugs during this time. Secondly, her mental instability had plainly increased. Thirdly, she had visited the prisoner while he was in gaol on remand on a number of occasions and sought to protect his position in a number of respects. Fourthly, she did not wish to be a witness at the trial and sought to persuade the police to drop her as a witness by providing statements which did not assist the prosecution. Fifthly, it was plainly becoming very difficult for Rebecca Mills to deal with the issues of 25 July 2000.
43 By the time she gave her evidence at trial she was unable to recall seeing the events that had led directly to the firing of the first shot. She was unable to recall seeing or hearing the second shot at all. She said that her lack of recall as to a number of the matters which happened on 25 July was due to the fact that those events had been deliberately blocked out by her from her mind because they were too painful for her to recall. At the trial she insisted, however, there had not been any physical struggle between the deceased and the prisoner and she denied that Adam Scott had ever had the gun. Further, she was insistent that the gun was not in the roof on that evening and in fact it was her belief that it may never have come into her house prior to the evening of the shooting. She admitted that the statements made by her in her letters, trial exhibits 2 and 3 were in fact made by her. She insisted however that she was “coming down” from drugs on the relevant night and that fifteen or sixteen hours had elapsed since she had taken drugs prior to the making of her statement to the police.
44 In my view, Rebecca Mills was not “high on a cocktail of drugs” at the time she gave her statements to the police on 25 and 26 July 2000. The fact that she said she was in her letters to the prisoner was an indication of her troubled state of mind at the time those letters were written, and the fact that she was endeavouring to deal with the guilt and responsibility she felt for her involvement in the death of Adam Scott. I am also satisfied that the letters were attempts to place herself in a better light with the prisoner at the time they were written.
45 The Crown urged me to accept that Rebecca Mills had by the time of trial genuinely blocked out many of the events of 25 July and that it had, in fact, become too painful for her to deal with the issues involved in the recall of the killing. Secondly, the Crown asked me to accept, essentially as I have done, the multiplicity of factors underlying the complex reasons which led to Rebecca Mills’ placement of alternative and different versions before the police in December 2000 and especially in January 2001. Thirdly, the Crown urged me to accept that the version that she gave to the police on 25 and 26 July 2000 was in fact reliable and ought be accepted.
46 It is necessary for me to say that for the brief reasons I have outlined I have accepted each of those Crown submissions. It is only necessary to add that, in relation to the first submission, Rebecca Mills had been drug free at the time of the trial for quite some considerable period. She was to my perception still a person with significant problems and still deeply troubled by the events of 25 July 2000. Her general demeanour in the witness box however was very different from that demonstrated in the tape of her interview with the police on 18 January 2001 when, as she insisted, she had been very badly affected by drugs.
47 During the hearing of submissions on sentence, a bundle of material relating to Rebecca Mills’ attendances at the offices of the prisoner’s solicitor during September this year was tendered. This became Exhibit 5. The bundle included an affidavit sworn by her on 20th September 2002. No submissions were made by either the Crown or Mr Nicholson QC in relation to this aspect of the evidentiary material on sentence. It was tendered for no other purpose than to explain that Rebecca Mills had been unable to be contacted so as to be brought to Court at the sentence hearing on 25 September 2002. Consequently, I have made no findings in relation to that material other than to note that it is apparent that Rebecca Mills is still a deeply disturbed person and that the reliability of her evidence due to her present mental state is likely to be seriously in question.
48 A second aspect of the findings I have made adversely to Mr Nicholson QC’s submissions is the finding in relation to the prisoner’s assertion that the weapon was in the roof of 13 Indigo Way on 24 and 25 July 2000. As I said earlier, I was satisfied beyond reasonable doubt that this was not so. My reasons are these. First, I accept Rebecca Mills’ evidence that the weapon was not there on the night before and the morning of the shooting. Secondly, it would have been highly improbable that the prisoner had simply left the weapon there when he took his other possessions a few weeks earlier and forgotten about it. Thirdly, it would have been highly improbable that the prisoner would have left a dangerous and expensive weapon, ammunition and the holster in the roof of 13 Indigo Way especially in circumstances where he insisted that he was very concerned for the welfare of Rebecca and her young child. Fourthly, the discovery by the police of the Thompson Contender literature, the paraphernalia and bullets in his locked bedroom on 26 July 2000 were entirely consistent with the weapon itself and the holster having been in the bedroom shortly before he left home to go to 13 Indigo Way on the evening before the killing. Fifthly, I simply did not believe the prisoner’s version of the transportation and concealment of the weapon at Prospect.
49 While it is true that there was a reference in Constable Schell’s notebook that referred to the possibility of a firearm “under bed and in roof” I am not satisfied that this represented information passed on to Detective Schell by Rebecca Mills. Detective Schell was unsure whether this was information he had received as to the possible location of the weapon or whether it was a note to remind himself to look in locations of that kind. He was not able to say that anybody had told him that Rebecca had said the weapon had found its way into the roof at 13 Indigo Way. More compellingly, there was no doubt whatsoever that the police team arduously searched for the weapon on that evening and the following day. It is quite improbable to suggest that if the police had information that the weapon was likely to have been in the roof they would not have searched there. The police conducted an extensive search in the vicinity of Rebecca Mills’ home, in the vicinity of the prisoner’s home and his place of employment. Their laborious attempts to locate the weapon proved entirely fruitless.
50 A number of submissions were made by Mr Nicholson QC relating to the level of culpability involved in the prisoner’s slaying of Adam Scott. Senior Counsel argued that it would be wrong to find, as the Crown urged, that there had been a break up in the relationship between the prisoner and Rebecca Mills; and that the prisoner perceived the deceased to be the cause of that break up, with the consequence that jealousy and possessiveness of the prisoner were really the motives he had for killing the deceased. Mr Nicholson QC argued that such a submission ignored the role of the prisoner’s concern for the general welfare of Rebecca Mills and her son Jesse; and ignored his concern for her self-destruction through the abuse of drugs. The Crown submission, he argued, especially ignored the fact that, following the meeting at 5 pm on 25 July Rebecca Mills and the prisoner were getting on well. In this context, counsel submitted that the death of Adam Scott was occasioned not by the prisoner’s jealousy but by distress following the break up of the relationship and what he perceived to be the responsibility of the deceased not only for the break up but for the encouragement of Rebecca Mills to further degrade herself by the consumption of illicit drugs. There is something of a hollow ring to this last submission since the evidence established that on occasions the prisoner acquired drugs for Rebecca Mills. Indeed on the very evening, he had acquired drugs for her to take. Further, there is no objective evidence that the deceased ever endeavoured to urge Rebecca Mills to take heroin. If that were a concern held by the prisoner at the relevant time, there was no real basis for it.
51 I do accept however that the prisoner killed the deceased whilst in an extremely troubled frame of mind. While I accept that part of his state of mind was a genuine concern and affection for Rebecca Mills and her son, I am also satisfied beyond reasonable doubt, as I said earlier in these reasons, that the predominant emotions were anger, a sense of rejection, resentment, jealousy and a desire for revenge. But there can be no doubt, despite his assertions to the contrary, that he was deeply troubled by Rebecca’s rejection of him.
52 In evaluating the objective level of criminality of the offence, there are two matters that I accept emerging from the submissions made on the prisoner’s behalf. First, I am not satisfied beyond reasonable doubt that at the time the prisoner collected the weapon from his home and went to the house at Prospect, he had at that stage formed an intention to kill the deceased. The very act of bringing the weapon with him, however, served to enliven the possibility that it might be used if an emotional confrontation were to occur at 13 Indigo Way. But as I say, I am not satisfied beyond reasonable doubt that prior to the confrontation in the home, the prisoner had formed an intention to kill the deceased. Secondly, it follows from this finding that this was not a planned, premeditated execution. The decision to kill the deceased occurred in the lounge room of the house at Prospect in the context of an escalating tide of emotion.
53 Despite these findings favourable to the submissions made by Mr Nicholson QC on behalf of the prisoner, the fact remains that this was a killing that was objectively very serious. True it is, it was not premeditated and pre-planned. Yet the prisoner took a weapon with him into an emotional cauldron where it was likely that the weapon might be used. Secondly, there was no justification whatsoever for the fact that the prisoner decided to kill Adam Scott. There was for example no physical confrontation. Whatever anger and resentment and sense of rejection the prisoner felt, there was absolutely no warrant whatsoever for the terrible decision he made and the terrible end he perpetrated upon an innocent man. No matter the degree of emotional manipulation Rebecca Mills may have used against both men, her conduct did not warrant the prisoner’s terrible reaction.
54 Before turning to the subjective features of the prisoner’s case, I should say at this stage that, pursuant to s 28(2) of the Crime (Sentencing Procedure) Act 1990, I have received Victim Impact Statements from the deceased’s mother and father and from his sister Lacy Scott. These statements speak movingly and tragically of the devastating and continuing effect upon family members of the violent senseless and untimely loss of their beloved son and brother. The Court extends to Mr and Mrs Scott and to their daughter Lacy its sympathy realising the futility of mere words at such a tragic time. It is my earnest hope that the opportunity to express grief and loss through these statements may perhaps go someway towards helping each of the family members cope with the sad loss of Adam Scott. I do not however consider it appropriate to have regard to those statements in determining what sentence should be passed (see s 28(4)(b) of the Act; Regina v Previtera (1997) 94 A Crim R 76; Bollen v Regina (1998) 99 A Crim R 510).
55 I turn now to consider the prisoner’s subjective circumstances. Much of the material comes from the report of Ms Katherine Barrier a psychologist who provided a report dated 5 September 2002 (Exhibit 2). There was also a report from Yvonne Skinner a psychiatrist whose report (Exhibit 3) is dated 17 September 2002. The prisoner himself did not give evidence before me during the sentence submissions.
56 The prisoner was born on 29 July 1976 and is now 26 years of age. He is the eldest child of a family of three younger brothers and a younger sister. He comes from a close and supportive family who have lived in the Blacktown area for over twenty years. His father was a bricklayer but currently earns an income doing up motor vehicles. His mother has generally carried out home duties although occasionally she works as a nurse in a retirement home.
57 The prisoner attended Wentworthville Primary School from kindergarten to Year 6. He then went to Evans High School where he completed the Higher School Certificate in 1995. Ms Barrier reports his obtaining a TER score of 78 although the prisoner’s mother said he achieved a score of 94. After leaving school, the prisoner completed an Introductory Real Estate course at TAFE. He was then employed as a labourer for a period of about two years. He next worked for Honeywells at Castle Hill, initially in the factory and then as a warehouse assistant and forklift operator. He was working in that employ at the time of his arrest on 25 July 2000. During a period of release on bail he worked at Rotadyne at St Marys. According to his parents their son was never a disciplinary problem either in the home or at school. He was described by them to Ms Barrier as “so good, so quiet, never violent”.
58 The prisoner has generally been of good health both physical and mental. He stated that while he was in his relationship with Rebecca Mills he began to feel anxious and depressed. Since his most recent imprisonment the prisoner has reported symptoms of depression and anxiety. These include difficulties in falling and remaining asleep; difficulties in concentration and a state of foreboding and tearfulness. He has been prescribed anti-depressant medication while in prison but has discontinued it. He has reported typical symptoms of traumatic stress such as nightmares relating to the night of the slaying and he has distressing recollections of the event.
59 Tests carried out by the psychologist show that the prisoner is in the sound average range of intelligence. Personality tests suggest that he measures high on the dependent traits score. People with high scores on this variable are described as compliant, co-operative and self-effacing. They often feel inadequate, insecure and possess low esteem. They are continually concerned with the possibility of losing friends; hence in order to maintain relationships they are likely to be submissive to the level of abandoning independent views in favour of others. Ms Barrier was of the opinion, based on the clinical syndrome measures, that the prisoner was anxious and severely depressed. The scores also indicated dysthymia reflecting sadness, apathy, low self-esteem and guilt.
60 Ms Barrier thought the prisoner a person who impressed her as overly compliant and highly unassertive. She made some suggestions about the nature of his relationship with Rebecca Mills namely that he was “out of his depth”. She said that the prisoner demonstrated very little insight into the dynamics of the relationship between himself and Rebecca Mills. According to her, he continued to adhere to the version of events he had given at the trial. She suggested that his regret at Adam Scott’s death was “genuine”. She thought that he would provide “an easy target” for other inmates because of his particular personality construct. On the positive side, she thought the prisoner was a good candidate for therapeutic intervention which might include assertiveness training, anxiety reduction skills and group therapy to explore his impact on others. She thought that overall there were sound reasons for a good prognosis.
61 Dr Skinner saw the prisoner for about two hours on 11 September and again briefly on 25 September 2002. Dr Skinner’s views accorded with those of Ms Barrier in a number of respects. First she thought that the prisoner lacked insight into the destructive aspects of his relationship with Rebecca Mills. According to her the prisoner had no previous history of aggression or violence. She thought that he was probably in a disturbed mental state at the time of the killing. She thought that it was probable that the prisoner’s coping mechanisms were overwhelmed at the time because of the intensity of his feelings towards Rebecca Mills.
62 She said that the prisoner would do his term harder by virtue of his personality than would others of a different personality.
63 It is appropriate at this stage to mention that the prisoner placed before me a considerable number of character references from friends, fellow workers and family members all of which insisted in general terms that the prisoner was a passive and non-violent person. In short, these references insisted that the prisoners’ behaviour and involvement in the killing of Adam Scott was an aberration and entirely out of character.
64 My view of the prisoner is that in general terms it may be said that he is or at least for the most part has been a quiet unassertive and non-violent person. But it seems that this has not always been the case at least in the area of termination of personal relationships. The Crown introduced into evidence at the sentence hearing the testimony of Linda Larsen the prisoner’s previous girlfriend. She gave rather disturbing evidence of an incident which occurred a number of years ago shortly after she and the prisoner had terminated their relationship. The gravamen of this evidence was that the prisoner had invited Ms Larsen and a friend over to his place late in the evening to collect some property she had left behind. He invited Ms Larsen and her friend to sit on the lounge in his bedroom at his Blacktown home to discuss the relationship. During the course of this discussion he produced a weapon from under the cushion on the lounge where one of the young ladies was sitting and physically assaulted Ms Larsen and held the gun to her head. Thankfully, Ms Larsen was able to prevent a tragic situation from developing by calming the prisoner down and talking him into giving her the weapon.
65 Mr Nicholson QC trenchantly cross-examined Ms Larsen and endeavoured to suggest that certain inconsistencies in her evidence belied the truthfulness of her story. I was satisfied beyond reasonable doubt however, that Ms Larsen was a truthful witness and that the events occurred in the prisoner’s bedroom as she described them. May I make it clear that I am not, in accepting Ms Larsen’s version of events, endeavouring in anyway to punish the prisoner for his involvement in those events. They are relevant to one matter and to one matter only, namely whether I can and should accept without qualification the submission that the events of 25 July 2000 were an aberration and completely out of character for a young man who was otherwise gentle, non-assertive and non-violent. To the extent that those events negate such a suggestion in relation to that prior occasion, I have accepted them beyond reasonable doubt.
66 Secondly, there are the letters written by the prisoner to Rebecca Mills. These were exhibits in the trial. They demonstrate in a number of respects that the prisoner was capable of making jealous and assertive statements towards Ms Mills particularly in the area of her potential involvement with any other young men. Thirdly, there was the evidence of Melissa Harris during the trial. I have already mentioned her evidence that on three occasions in connection with communications between Rebecca Mills and Adam Scott, the prisoner was heard to utter threatening and aggressive words either to or about the deceased. I accepted Ms Harris’ evidence and was satisfied beyond reasonable doubts that each of the events occurred as she described them.
67 The consequence of all this is that the prisoner in my view is a more assertive person than his friends and family suggest or know in the character references. Moreover, Dr Skinner was prepared to concede that if the events described by Ms Larsen occurred, as I have found they did, the prisoner was either a more aggressive person than she thought he had been; or alternatively he was a person who found it difficult to cope with the situation where a relationship has been terminated. He was a person who could get to a point where he is so frustrated that he acts in an aggressive manner.
68 The ultimate view I have taken of the prisoner in this regard is that while I accept that generally he is a non-assertive and non-violent person, he does have this capacity for aggression which arises in circumstances where he has been rejected during a relationship. That is confirmed by the behaviour described by Melissa Harris and by his own letters to Rebecca Mills. Moreover the facts revealed at the time of his break up with Linda Larsen showed that this aspect occurred on a prior occasion. Consequently it was not in that sense a one off situation which developed on 25 July 2000.
69 I do not consider that the prisoner is, however, a dangerous person nor did the Crown suggest that he fell into that category. With further maturity and counselling, it should be possible for him to bring under control this aggressive aspect to his otherwise non-assertive character.
70 I regret to say that I can find little evidence of remorse and contrition in the prisoner regarding the death of the deceased. True it is both Ms Barrier and Dr Skinner refer to statements he has made to them which suggested that he was remorseful. He has given no evidence before me and there is no other evidence of a satisfactory nature that suggests a real level of remorse and contrition. True it is the prisoner is suffering from depression and is experiencing nightmares and the like in relation to the events of 25 July 2000. It is very natural that he would be depressed since he is in prison having been convicted of a very serious charge of murder and with the prospect of many years of incarceration before him. On the other hand, the prisoner has continued to adhere to the version of events relating to Adam Scott’s death which he gave at the trial. The prisoner has never acknowledged that he deliberately shot and killed Adam Scott and there is in truth very little material before me which demonstrates remorse and contrition. In my view, the prisoner has continued to fail to face up to and take responsibility for his actions. It seems that he continued to blame Adam Scott and Rebecca Mills for the slaying and in that sense, as I say, he has failed to acknowledge his true role in the tragic events of 25 July 2000. Nevertheless to the extent revealed in the reports of Ms Barrier and Dr Skinner and to extent that any real weight may be placed upon them, I will take into account those statements referred to in their reports relating to expressions of remorse and contrition.
71 The prisoner comes before the Court for sentence with no significant prior criminal history. He was fined $100 for possession of a prohibited drug in Forster Local Court on 23 January 1997. On the same day a charge of self administer a prohibited drug was dismissed pursuant to the provisions of s 556 A of the Crimes Act.
72 Before dealing with the final submissions that have been made in relation to the imposition of a sentence for the offence of murder, it is necessary for me to state that Exhibit “B” in these proceedings is a Certificate pursuant to s 36(1)(B) of the Criminal Procedure Act 1986. This Certificate is to the effect that the prisoner has been charged with a related offence. The offence is that he did on 25 July 2000 at Castle Hill have in his possession a prohibited drug to wit 0.9 grams gross of amphetamine. This is a charge arising under s 10(1) of the Drugs Misuse and Trafficking Act 1985. The penalty for this offence is a fine of twenty penalty units or imprisonment for a term of two years or both (s 21). The circumstances of this possession of drugs I have already described. The bag of powder was that which he had obtained for Rebecca Mills in the Woolworths carpark. The prisoner has pleaded guilty to this relatively minor related offence and in the circumstances I will deal with it as a related offence (ss37 and 38 Criminal Procedure Act 1986). In my view, this matter is best dealt with by way of a modest fine.
73 I return now to the imposition of an appropriate sentence in relation to the murder conviction. Mr Nicholson QC has placed before me statistics published by the Judicial Commission of New South Wales. He has specifically asked that a head sentence be selected which would position the prisoner in the lower range of head sentences. In support of this submission he argued that the circumstances in which the offence arose, the absence of planning together with the subjective features of the prisoner combined together to reflect the taking of human life in a spontaneous eruption of violence by a young man out of his depth in a relationship a young man who lacked proper coping mechanisms.
74 I have considered and given careful attention to all of Mr Nicholson’s submissions on the prisoner’s behalf. I have given attention especially to the prisoner’s subjective circumstances; to the absence of any significant or relevant criminal history and to the undoubted impact a substantial sentence will have not only on him but on his own close family. It remains the case however that the sentence to be imposed must sufficiently recognise the high objective seriousness of the particular circumstances of the offence for which the prisoner has been convicted. The sentence must also recognise that this was, as I have said, a very serious killing and one in which there was a reasonably high level of culpability involved in the actions of the prisoner. While the killing was not premeditated and pre- planned there was absolutely no warrant or justification for it whatsoever. The prisoner deliberately took into the emotional atmosphere of the home at Prospect a dangerous and lethal weapon. He did so in circumstances where he must have recognised his own level of anger, resentment, rejection and jealousy. His conduct in killing an innocent man in the deliberate way he did is to be denounced and deplored. Nevertheless I do take into account those subjective features in the prisoner’s favour that I have set out in detail earlier.
75 In my opinion there are no special circumstances in the present case. First, while I accept that it is often the case that an underlying premise behind a finding of special circumstances is the prospect of rehabilitation (Moffett (1990) 20 NSWLR 114) I consider that, having regard to the length of sentence I propose to impose, the period of parole that will result, if the usual proportion of the non-parole period to the total sentence is maintained, will be sufficient for the prisoner’s rehabilitation upon release without any further extension. Secondly, there are no other circumstances that I have been able to identify that would warrant the finding of special circumstances and hence justify a shorter than usual non-parole period (Simpson (2001) NSW CCA 534). I have taken into account that the prisoner’s personality is likely to make it harder for him to cope with prison life than if he were a different type of personality but I do not think that this matter warrants a finding of special circumstances so as to manifest a need to disturb the statutory ratio.
76 The prisoner was arrested on the 25 July 2000 and he remained in custody until the 20 March 2001 when he was released on bail. This yields a calculation of 239 days in custody. He remained at liberty on bail until the day of his conviction 9 May 2002. He has been in custody since that day. I propose to back date the sentence to take into account the time spent in custody between the time of arrest and release on bail, namely 239 days. The practical consequence of this determination is that the sentence will start on 12 September 2001. I do not consider that any further allowance should be made in respect to the time when the prisoner was at liberty on bail.
77 I have concluded that I should impose a sentence of 18 years imprisonment in relation to the conviction for murder. In setting a non-parole period, I find that for the reasons I have stated, there are no special circumstances for the non-parole period to be less than three-quarters of the term of the sentence.
78 Mathematically, this would result in a statutory non-parole period of not less than 13 years and 6 months. In my view however, a non-parole period of 14 years is required to express effectively the appropriate level of punishment and deterrence in this matter. The period of 4 years, in any event is more than adequate for the prisoner to receive such assistance as he may require when released to attend to his rehabilitation and the re-establishment of his life in the community.
79 Michael James Taylor, in relation to the charge under s 10(1) of the Drug Misuse and Trafficking Act 1985 you are convicted and fined the sum of $500. I allow 12 months time to pay.
80 In relation to the charge of murder I sentence you to 18 years imprisonment. The sentence is to date from the 12th September 2001. I set a non-parole period of 14 years commencing on 12 September 2001 and expiring on 11 September 2015.
81 The prisoner will be eligible to be released on parole on the 11 September 2015.
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