Regina v P T Crofts [1996] NSWSC 607 (6 December 1996)

REGINA v PAUL THOMAS CROFTS

70102/93

Friday 6 December 1996

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

GROVE J

SENTENCE

HIS HONOUR: Paul Thomas Crofts has pleaded guilty to murdering Leszic Josef Heinrych Betcher at Lugarno on 23 February 1993. He has been in custody since 1 July 1993.

The late Mr Betcher was not only the victim of a horrendous crime but his death was brought about in circumstances of an equally ghastly error on the part of the prisoner and his accomplices. With one Baartman the prisoner "contracted" to attend an address and shoot a man in the leg presumably as punishment/dissuasion in connection with asserted misconduct with an unidentified woman friend of the contractor who was known as "Chris". It is possible but not of present significance that "Chris" was himself an intermediary for some other principal a further step removed. The intended victim was "Tony". The prisoner and Baartman embarked upon their mission but at some point the latter attempted to test a weapon which appeared to malfunction and so the mission was aborted. The following night they again proceeded and went to Mr Betcher's house. He was a recently retired gentleman of unquestioned respectability. He lived with his wife who was at home when her husband answered the prisoner's knock on the door. A single shot from a pistol wielded by the prisoner caused a wound to the chest and the victim's subsequent death. The inference from all the material is that the marauders had come to the wrong house. The apparently specific killing conveyed undertones of activity such as reprisal among criminals yet the victim was far distant from any milieu like that and the initial puzzlement of investigating authorities is hardly surprising. Fortuitously, on 24 March an ambulance was summoned to assist a man suffering from the effects of drug overdose. The patient was Baartman. In the course of the visit an ambulance officer came upon a .32 calibre Biretta pistol and the police were contacted. They confiscated the pistol and ballistic testing confirmed that it was the weapon used to kill Mr Betcher.

The detail of subsequent police activity need not be recounted beyond observing that the product of lawfully installed listening devices intercepted conversations inculpated the prisoner in the killing and incidentally in a related manner his brother who was dealt with for concealment of a serious offence. Baartman and the prisoner were charged with murder. Upon arraignment the latter pleaded guilty and he was remanded for sentence by the presiding judge and the trial of Baartman proceeded before a jury. At the conclusion of this trial Baartman was found guilty as indicted. Later for given reasons Crofts was permitted to withdraw his plea of guilty and he was again remanded for trial. The matter was listed for that purpose on 4 April 1996 and on being called and arraigned the prisoner again pleaded guilty to the indictment and he stands for sentence following conviction upon acceptance of that plea.

Before turning to that task I elaborate upon an aspect which has caused me concern. Baartman was sentenced to a total of twenty years penal servitude which was divided into minimum and additional terms of fifteen and five years respectively. The sentencing judge found that the agreement between Crofts and Baartman was that Crofts would do the actual shooting whilst Baartman acted as "cocky" or lookout. The evidence now before the Court reveals Baartman's likely complicity as more than simply that. A witness (Bicanic) had seen Baartman with the pistol secreted in a holster positioned in the middle of his back. Baartman had tested the weapon on the aborted excursion and he was still in possession of it when the ambulance officer detected its presence. Crofts, who was to be the direct assailant, was to receive the larger share of the promised consideration. Somewhat unusually Baartman chose not to put any favourable subjective material forward for consideration upon his sentence although it was found in his favour that the culpable mental element constituting his crime was an intention to do grievous bodily harm as distinguished from a specific intention to kill.

The remarks on sentence by the judge dealing with Baartman included the following:

"Planned and deliberate shooting of another human being for no better reason than economic gain is surely to be regarded by a civilized society as being a very serious crime. Where the planned shooting of another is nevertheless to inflict grievous bodily harm upon that other by shooting, in this case, a person in the leg and there is a shooting of the wrong person in the wrong part of his body thereby causing his or her death, again it is difficult to see why the murder ought not to be regarded as being objectively a very serious case of murder and a somewhat horrendous one. The community in which such event(s) occurs is entitled to regard surely a shooting in such circumstances by a paid cold-blooded human being and by a person involved in such as being an offence that could be aptly described as also reprehensible and contemptible. The planned and deliberate shooting for payment is surely a horrifying crime on any view. That it should go wrong and an innocent respectable member of the public is deliberately shot, in consequence of which he dies, and shot in error, does not alter the fact that the deed was a gruesome and horrifying one.

Clearly any sentence to be imposed must reflect also community abhorrence of a crime which in this case can answer the description of a contract crime - and I use the expression `contract' not in any legal sense, but in a criminal sense - which resulted in an innocent member of the public dying.

The paid cold-blooded callous contractor surely is a most dangerous criminal and a threat to our society and indeed to our community life. The public interests and the principles of deterrence must surely demand severe punishment for those persons involved in an offence of the present type.

It seems to me that the objective facts establish that this crime in purely objective terms, would suggest a murder of a very serious and horrendous nature. The objective circumstances of the matter demand a high sentence.

The circumstances of the killing revealed the objective gravity of the murder and would suggest it is thus high indeed. There is a need for deterrence to be strongly emphasised for a message to be delivered to others of like mind to this prisoner that the courts reflecting the views of society will not tolerate this sort of conduct. Any sentence to be imposed which must give effect to these matters should, therefore, be towards the top of the range of a determinate sentence."

My difficulty arises in the assignment of a sentence of twenty years penal servitude into a zone appropriately described as "towards the top of the range of a determinate sentence" and I respectfully disagree with the opinion that it can correctly be so categorized.

I observe that the total sentence passed on Baartman was (by one fifth) less than the maximum prescribed sentence for manslaughter. A useful contrast against this sentence can be viewed by examination of Regina v Everett (unreported Court of Criminal Appeal 13 December 1995 which was not, of course, available at the time of Baartman's sentencing on 7 December 1994) where a sentence of twenty four years penal servitude (minimum term eighteen years) was reduced to twenty one years (minimum term sixteen years) where the original sentence was said to be "at or very close to the top of the range" for an offence in a classification described as "relationship" murder as opposed to cases which were said to have aggravating features "such as the crime having been committed in cold blood for gain". The latter expression is pertinent to the killing of Mr Betcher. In Everett the intentional element was accepted to have related to causation of grievous bodily harm rather than death.

It is not surprising that the submissions of counsel for the prisoner therefore were focused upon the treatment of Baartman in order to found claims for according greater leniency to Crofts. The dilemma which I perceive is not of a type which is novel. In Regina v Rexhaj (unreported Court of Criminal Appeal 29 February 1996) the Chief Justice observed:

"Although there has been a difference of judicial opinion on the point, the prevailing view is that disparity is itself a ground of appellate intervention and not merely a circumstance which gives a warning of the possibility of error in the reasoning of a primary judge. The Queen v Lowe (1984) 154 CLR 610, 616 and 623, but compare at 617.

The principle which underlies that view is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice. (Lowe, above, at 611). There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision. See for example, R v Draper (CCA, unreported, 12 December 1986), R v Diamond (CCA, unreported, 18 February 1993)."

As the references disclose these remarks were made in conscious acceptance of what the High Court had said in Lowe which was, as was Rexhaj, dealing directly with the approach to appellate intervention but which articulated principles which must be applicable at first instance.

I shall later give expression to the approach which I take in the present case.

I turn to some matters advanced on behalf of the prisoner. He was born on 9 July 1963 and was therefore twenty nine years of age at the date of the offence and is now thirty three. He is single. He is described as mildly retarded and cognitive assessment proposed that he functioned in the lowest two percent of population which in the Australian context would statistically place him within a group of about 360,000 other people. It is convenient to record my finding that the intellectual impairment of the prisoner is not so great as to render him entirely unsuitable as a vehicle for general deterrence but it should be weighed in his favour to an extent in the overall assessment of sentence. It should also be weighed to his advantage in the element of personal deterrence. I would adopt the invitation suggested by Dr Westmore who remarked, after expressing the opinion that defences of mental illness or diminished responsibility were not available to the prisoner:

"The Courts could, however, consider circumstances of mitigation in this case. He is clearly a man of limited intellectual capacities and probably because of this he is easily influenced."

The prisoner's formal education was scanty and his family background fits the currently popular description of dysfunctional. His grandparents seemed to have provided his only stable role models. He had early adverse contact with the law. He mentioned to Dr Westmore that he was kept in various homes as a youth from which he absconded although the Children's Court record attached to the antecedents report does not confirm this. His record does show however that in December 1981 (aged eighteen) he received a sentence of two years penal servitude for assault and rob and other offences at Campbelltown District Court. The most significant of later impositions was three years penal servitude for armed robbery in company and possessing a shortened firearm at Parramatta District Court on 19 September 1984. In April 1990 he received a minimum term of thirty months to date from 29 March 1990 with an additional term of ten months at Liverpool District Court for an offence of breaking entering and stealing. It would be calculated therefore that he was on parole as the additional term would have been running at the date of the present offence on 23 February 1993.

I turn however to the matter of parity. For reasons already indicated, I am of opinion that the sentence imposed upon Baartman was infected by the error of inadequacy and I do not regard it as providing objective guidance. A deliberate killing for payment would prima facie find its place in the worst category of case with a potential for imposition of the maximum penalty of penal servitude for life. A death resulting from deliberate wounding with intent to do grievous bodily harm for payment would inhere only fractionally less culpability. This is such a case and the view is open that its seriousness is compounded by the inept attack upon an unintended victim. However, putting that possible view aside I estimate that an objectively appropriate penalty for the murder here committed would be in the order of thirty years penal servitude.

I have concluded that the prisoner should be dealt with less severely than that. He should have credit for his plea of guilty which can be taken as an indication of remorse and has the utilitarian benefit of saving the State the cost of trial and potential witnesses the ordeal of testimony. I accept that the withdrawal of the plea of guilty at one stage was provoked by misinformation conveyed to the prisoner about which he lacked the insight for appreciation of its falsity and to reject it.

Some mitigation is also appropriate arising out of the prisoner's background both in the sense of his intellectual status and the deprivation of a guided upbringing. No element tending towards leniency however can be derived from his prior criminal record.

This returns me to consider what I regard as of high significance in ultimate assessment namely the inadequate sentence received by the co-offender Baartman. Although that sentence is in my opinion defective I do not believe that it can be entirely ignored and that it must provide to some extent a reference point for the sentencing of the prisoner. Although Lowe was dealing with supervision by an appellate court I believe I should now apply the principles discussed in that case to the extent that I should not impose a sentence which inevitably would engender a sense of grievance in the prisoner which could be described as justifiable in the sense that a large discrepancy in term between himself and Baartman would do more than set at nought the incidents of favour upon which the prisoner is entitled to draw and upon which Baartman could not.

Had Baartman been adequately sentenced, the conclusions that I have reached concerning the prisoner would have resulted in his receiving a lesser sentence than the co-offender even though his participation in the crime was always intended to be more active than that of Baartman. I am unwilling to reduce the sentence to be imposed upon the prisoner to less than what I consider to be the inadequate sentence received by Baartman. I propose therefore to sentence him to an equal term but I emphasize that had I not felt impelled to use Baartman's sentence as a reference point, I would conclude that a longer sentence should be imposed.

Paul Thomas Crofts: for the murder of Leszic Josef Heinrych Betcher, you are sentenced to a total term of twenty years penal servitude. This is to consist of a minimum term of fifteen years to commence on 1 July 1993 and to expire on 30 June 2008 together with an additional term of five years commencing on 1 July 2008. You will be eligible for parole on 30 June 2008.