The Queen v Nelson
[2013] VSC 72
•28 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0088
| THE QUEEN |
| v |
| CLARENCE STANLEY NELSON |
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JUDGE: | NETTLE JA | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 February 2013 | |
DATE OF SENTENCE: | 28 February 2013 | |
CASE MAY BE CITED AS: | The Queen v Nelson | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 72 | |
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CRIMINAL LAW – Murder – Sentencing – Premeditated vigilante killing of suspected paedophile – 69 year old offender in poor mental and physical health – Reduced moral culpability – Plea of guilty at first opportunity – Genuine remorse and negligible prospect of re-offending – Previously unblemished character – Total effective sentence of 18 years with a non-parole period of 12 years – Director of Public Prosecutions v Whiteside and Dieber (2000) 1 VR 331 referred to, R v Verdins (2007) 16 VR 269 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K G Gilligan | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr L C Carter | Robert Stary Lawyers |
HIS HONOUR:
Clarence Stanley Nelson, you have pleaded guilty to the murder of Graeme Benney at Wallan on 23 November 2011. It remains for me to sentence you.
The facts
You were born on 4 June 1943. In 1961, you married Lynette Nelson and you and she together had four children, now aged between 40 and 50 years. The deceased was born on 4 February 1949 and, on 7 June 1969, he married your wife’s first cousin, Sandra Bennett. Together, they had two children. As a result of the close relationship between your wife and Sandra Bennett, you and the deceased at one stage spent a considerable amount of time together, and later you and your wife and children and the deceased and Sandra Bennett and their children regularly visited each other’s home. On those occasions, when the adults were socializing, the children were often put to bed together in one bedroom.
In 1989, the deceased separated from Sandra Bennett and, on 30 October 1993, he remarried to Pamela Benney. At first, they lived together in Wallan and later they moved to Hidden Valley, which is a residential suburb close by. At the time of his death, the deceased was still living with Pamela Benney in Hidden Valley.
In or about 2000, one of your daughters (I shall call her ‘AB’) divulged to her sister (whom I shall call ‘CD’) that, when she was a child, the deceased put his hands down her pants. CD replied that the deceased had done the same thing to her and also that your brother, Gregory Nelson, had sexually abused her when she was between the ages of eight and 15.
On Fathers’ Day 2000, CD told you that Gregory Nelson had sexually abused her as a child and, when you asked her whether there had been penetration, she signified by nodding that there had been. Later, CD told you that the deceased had also molested her as a child. Neither allegation was reported to police.
In or about July or August 2011, while you were shopping in the West Heidelberg Mall, you met an old acquaintance and, after conversing with him for some time, you said to him: ‘I have something to show you’. Then you reached into your pocket and pulled out a bullet and said to him: ‘I’ve been carrying this for a long, long time. One day. This is very special, for somebody. My brother’.
On 21 November 2011, one of your son’s five year old daughter (I shall call her ‘EF’) slept the night at your home. On the following day, she told her father (I shall call him ‘GH’) that you had licked the child’s ear. That caused GH to remember that you had done something similar to him and his siblings when they were children. As he recalled events, you had been in the habit of using your weight to pin down the children and then, when they could not move, poking your tongue in their ears. GH found it disturbing that you should have done something similar to EF.
On Wednesday 23 November 2011, while you and your wife were taking EF to gymnastics, GH visited his sister, AB, who was then convalescing from surgery. During their conversation, GH asked AB whether she recalled the way you used to lick their ears when they were children. AB then disclosed to GH that you had molested her as a child until she was 15.
GH was greatly upset by AB’s revelation. He drove immediately to your home but he found that you had still not returned from gymnastics. At 5.21pm, he called your mobile telephone, which was answered by your wife, and he told her to meet him as soon as possible at his home.
GH then returned to his home and, a few moments later, you and your wife arrived there with EF. EF got out of the car and ran inside. Then, as you walked from the car towards the house, GH pointed at you aggressively and said: ‘I know what you did’. You denied any wrongdoing but GH continued: ‘I’m gonna bring your world undone, you’re fucked, you’re fucked’. You instructed your wife to get in the car and you and she drove away.
Upon arriving home, you telephoned AB, but her husband would not allow you to speak to her. Next, you telephoned GH and asked him to come and get his mother, but he emphatically refused to do so. Then, you went into the garage at your home and took out from a gun safe a Tanfoglio XL 4 9mm Luger semi-automatic handgun and a supply of ammunition.
The Luger semi-automatic handgun was one of a number of firearms which you were licensed to possess. They comprised a Norinco brand JW15A .22 rifle; a Webley and Scott brand, Webley Hawk Mach 3 air rifle; a Squidman brand Model 11A rifle; an Enfield brand M4 .303 rifle; a Warrington and Richardson rifle; and the Tanfoglio 9 mm Luger semi-automatic pistol.
Having so armed yourself with the Luger pistol and ammunition, you attempted to ascertain the whereabouts of Gregory Nelson. You first called one of your sisters, then spoke to one of your brothers-in-law, then searched on-line, then combed the White Pages telephone directory and, ultimately, made a number of telephone calls in an endeavour to find him. But those efforts were to no avail.
Not to be denied a target, however, you then set out to ascertain the whereabouts of the deceased and, having located his address in the White Pages telephone directory, you drove immediately to his home. Along the way, you stopped and purchased a Melways street directory to guide you to the property.
You arrived at the deceased’s home at 8.15pm and he answered the front door to you. Although surprised to see you, he bid you inside and introduced you to his wife. You engaged in pleasantries and inconsequential conversation for a while and then made to leave. As you stood up to go, you induced him to step outside with you by asking him to inspect some minor panel damage to your car. Then, as he stood in the road in front of the car with his wife nearby, you reached in through the driver’s door, took out the Luger pistol and emptied three rounds into him at very close range. As you did so, you said: ‘This will teach you, you bastard, for everything you’ve done’.
The deceased collapsed on the road, as his wife stood by screaming, and you drove off in your car. The deceased’s neighbours came to help and emergency services were called but the deceased could not be revived. Upon later post-mortem examination, it was found that the three bullets which you fired had penetrated his heart, lung, stomach, bowel and kidney, causing acute blood loss and internal organ trauma secondary to multiple gunshot injuries to the chest region from which he had died.
Meanwhile, following the shooting, and after an unsuccessful attempt to speak to AB, you spoke to another of your children and told him that you loved him. Then, at approximately 8.27pm you managed to speak to AB and told her what you had done. You said that now that you had killed the deceased and that you were going ‘to get the other one’. She implored you not to do so.
That was followed by a round of telephone calls between your children which resulted in Gregory Nelson being appraised of the situation and then, at 8.40pm, GH speaking to you. When you told him that: ‘I’ve got one, I’m going to get the other‘, GH answered that you were a ‘fucking idiot’.
At 8.41pm, CD called you from abroad and asked you how you were. You replied: ‘I have killed the bastard, sorry, I should have done something earlier. I have got nothing to live for. I have made a lot of bad mistakes.’ Eventually, however, CD persuaded you to go to the police and that she would stand by you. At 9.25pm, you drove to the Epping Police Station and surrendered yourself and your weapon. You told police that you had killed the deceased and that he was a paedophile.
Nature and gravity of the offence
Your murder of the deceased is a grave offence. It was calculated and premeditated and it was committed with a fearsome weapon on an unknowing and unarmed man outside his own home, in a public street in plain sight of his wife. It is an outrage that any man should presume to take it upon himself to act as judge, jury and
executioner of another, and still more offensive that such an execution should be carried out in the manner which you effected. It is worse still that a man of your age, experience and maturity, who should know the inestimable value of human life better than most, has offended in that fashion. Whether or not the deceased was a paedophile, and there is no proof that he was, you had absolutely no right or justification for doing what you did.
The law is jealous to show tolerance to vigilantes and assiduous to deter them. As Winneke P said in Director of Public Prosecutions v Whiteside and Dieber,[1] those who take the law into their own hands and inflict punishment on others whom they suspect of committing offences must expect condign punishment.
[1](2000) 1 VR 331, 337 [20] (Winneke P) and see also 339 [24] (Brooking JA).
Moral culpability
Your moral culpability for the killing is to some extent reduced by the fact that you were at the time of the killing suffering from a diagnosable depressive disorder with a history of mood disturbance and a heightened stated of aggression. There is also evidence that you were considerably affected by the stress of caring for your invalid wife and the effects of a relatively recent home invasion of which you were a victim. Some members of your family, who spoke to you on the morning before the killing, found your manner to be strangely detached and subdued, as if you were set on a path on self-destruction.
According to a report from your general practitioner dated 14 May 2012, in 2000 you suffered a stroke and sub-arachnoid haemorrhage which caused some degree of cognitive impairment and possibly personality change and, at the time of the killing, you were affected by depression and anxiety the result of the home invasion in August 2009.
Similarly, in a report dated 30 November 2012, Dr Lester Walton, consultant psychiatrist, opined that you are suffering from a diagnosable depressive disorder which re-emerged some months before the killing, and it is likely that you were in the grips of that condition at the time of the killing. Dr Walton further reported that it is well recognised that the aggression which may arise as a product of the illness, although usually turned on oneself, may be turned on others; and, in his oral evidence, Dr Walton said he considered that, in your case, that was far from improbable. He also said that, although simple clinical testing revealed no major cognitive deficit, it is highly probable that more detailed neuropsychological testing would show evidence of residual brain injury.
Dr Walton noted, too, that, although you have never wavered in accepting responsibility for the shooting, you appear to have a dense memory blank surrounding the event. He suggested that the cause may be fundamentally psychological in nature, meaning that you have thrust the matter from your recollection because it is disagreeable to recall it. It was also possible, he said, that it had something to do with the allegation which GH made against you shortly before the killing, although Dr Walton was unable to say if that were probable.
Personal circumstances and Verdins considerations
You had a difficult childhood. You were born the eldest of eight children to a returned serviceman and a psychologically infirm mother. Your father was wounded on active service in World War II and was significantly affected by it. After the war, he spent considerable time in and out of hospital and he became an alcoholic. As a result, he was sometimes violent towards you. You were also sexually abused as a child. You told Dr Walton that, between the ages of nine and 12, you were cajoled into episodes of mutual masturbation with a friend of your father and, at around the age of 14, you were enticed into recurring sexual intercourse with the best friend of your mother; although you did not regard the latter experience as being especially traumatic.
You were educated to form 4 (year 10 standard) at Technical School and went on to qualify as a fitter and turner. Later, you advanced to the levels of engineering supervisor and ultimately engineering manager and administrator. You were employed as the engineering manager in the head office of Carlton and United Breweries when ill-health struck in 1990. It necessitated quadruple bypass surgery. After recovering, you were employed at Fosters for another eight years until you suffered a brain aneurism and stroke in 2000. It resulted in you spending some three months in hospital and for a time left you paralysed down your right side and deprived of proper mental and physical facilities. Despite that, you returned to work as an administrator of office affairs at CUB and you continued in that role until you were finally retired on the ground of ill health. Hence, you have in your favour a history of full employment which spanned almost 40 years.
Your mental condition is such that, according to Dr Walton, it will make imprisonment more onerous than for a man of ordinary mental health. You attempted suicide when first incarcerated, and then spent three months in the acute assessment unit before being discharged into mainstream, and you continue to be medicated with the anti-depressant Esipram. Dr Walton further opines that you would benefit from regular counselling as well, although as he states, that is a very limited resource in Port Phillip Prison. Your present state of physical health is also poor. You suffer from peripheral vascular disease which relates to the quadruple bypass procedure which you underwent in 1990, and you are afflicted by asthma, diabetes, hypertension and arthritis. As a result, it is necessary for you to consume a large number of prescribed drugs each day simply to survive. In the circumstances, I consider that the burden of imprisonment for you will be substantially more onerous than for a man of normal health.
Despite the submissions of your counsel, however, I am not persuaded that the degree of your mental affliction was or is such as to reduce the need for general deterrence.[2] Whatever the triggering event for your offending, it seems clear to me that it was motivated by a grudge which you had long borne towards the deceased because of the sexual abuse to which you believed he had subjected your children.
I do not regard that as rendering you an inappropriate vehicle for general deterrence.
[2]Cf R v Verdins (2007) 16 VR 269, 276 [32].
Character and antecedents
Your outstanding employment history stands, however, in your favour, and I have also been provided with references from a number of your friends, and from the assistant priest of the Parish with which you have long been associated. All of them speak very highly of you. Their statements reveal that, over the years, you have given freely of yourself and your resources for the assistance of others, and that you are very well regarded by friends and neighbours and also within the wider community. By and large, too, your children laud your efforts as a father and provider and at least one of them has noted the great strains under which you have laboured for many years as a consequence of your wife’s mental illness and the demands of caring for her. You have no prior convictions or history of prior offending.
Accordingly, I proceed on the basis that you should be sentenced as someone of previously unblemished character.
Plea of guilty and remorse
You surrendered yourself to police and admitted your crime almost immediately, and you pleaded guilty to murder at the first available opportunity. In my view that entitles you to the maximum discount on sentence for the utilitarian value to the State of being relieved of the obligation of conducting a trial and of the relief of witness and other persons who would have been affected if the matter had gone to trial. I also regard your plea as a strong indicator of remorse, which is confirmed by Dr Walton’s observation that you deeply regret your offending and, in particular, the harm which it has caused the deceased and others affected. Your remorse and contrition are further reasons for the amelioration of penalty.[3]
[3]Pajic v R (2009) 23 VR 527, 532 [19]–[20] (Redlich JA); Phillips v R [2012] VSCA 140.
Prospects of rehabilitation
In Dr Walton’s opinion, your lack of history of violent behaviour is ‘reassuring’ and the risk of recidivism is ‘likely non-existent’. Given your age and circumstances, I respectfully agree. In my view, this crime was an aberration and, in a sense, it is fair to say that you are probably already rehabilitated. I assess the chance of you reoffending as negligible.
Sentencing considerations
It remains that the offence to which you have pleaded guilty is a terrible crime by which you took the life of another. Thus, the sentence which I am to impose on you must be adequate to express the court’s denunciation and provide general deterrence sufficient to dissuade other weak-minded individuals from committing like offences. It must also be seen as just punishment for the loss and dismay which your offending has caused the deceased’s family, friends and loved ones. The two victim impact statements which I received from the deceased’s widow and daughter bespeak a vast, uncomprehending sense of loss and grief which the killing has caused them and imposed on the deceased’s grandchildren.
As against all that, however, your early plea of guilty, your undoubted remorse and contrition and the fact that you have in effect already achieved a very substantial degree of rehabilitation lead me to conclude that the sentence I am to impose should be very much less than would be necessary in other circumstances.
It is also necessary to bear in mind that you are already 69 years of age, and in ill health,[4] and that, in the scheme of things, it is not at all improbable that you will die in gaol.[5] Consequently, I must endeavour to impose a sentence which is not altogether crushing while at the same time bearing in mind that general deterrence cannot be materially moderated just because of age.[6]
[4]R v Eliasen (1991) 53 A Crim R 391, 395–6 (Crockett J).
[5]R v Hunter (1984) 36 SASR 101, 103 (King CJ).
[6]R v Cumberbatch (2004) 8 VR 9, 14 [13].
Balancing those considerations as best I can, and having regard to current sentencing practices in cases which are arguably analogous, I have determined that you should be sentenced to 18 years imprisonment and that, in view of your exceptionally good prior character, lack of antecedents, genuine remorse and outstanding prospects of rehabilitation, I should set a substantially shorter than usual non-parole period (for a head sentence of that length) of 12 years.
Finally, it is to be noted that, if you had not had a cache firearms in your home, the deceased might still be alive. One may wonder, therefore, why the law allows people like you to keep firearms, especially a semi-automatic pistol, anywhere near at hand. Although you bear ultimate responsibility for the death of Graeme Benney, I regard the present state of firearms control regulation as anything but blameless.
Sentence
Clarence Stanley Nelson, I convict you of the murder of Graeme Benney. I sentence you for that offence to 18 years’ imprisonment. I set a non-parole period of 12 years. I declare that the number of days already served under the sentence is 464 days, including this day. I direct that the fact of the declaration and its details be entered in the records of the court. Pursuant to s 6AAA of the Sentencing Act 1991, I further declare that, but for your plea of guilty, I should have sentenced you to 24 years’ imprisonment with a non-parole period of 20 years and I direct that the fact of the declaration and its details be entered in the records of the Court.
I shall order pursuant to s 464ZFB(1) of the Crimes Act 1958 the retention of non-intimate samples taken from you pursuant to s 464Z of that Act.
I shall further order pursuant to s 151 of the Firearms Act 1996 the forfeiture to the Crown of Tanfoglio XL 4 Model 9 mm Luger Calibre Semi Automatic Handgun S/No AB36846, and magazine containing cartridges.
Remove the prisoner.
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CERTIFICATE
I certify that the preceding 10 pages are a true copy of the reasons for judgment of Nettle JA of the Supreme Court of Victoria delivered on 28 February 2013.
DATED the 28th day of February 2013.
Associate
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