Duggan, John Frederick v Tasmania, State of

• Jurisdiction: Tasmania
• Court: Supreme Court of Tasmania
• Judge: Crawford J,Evans J,Tennent J
• Judgment Date: 23 April 2007
• Docket Number: CCA 55/2005 CCA 58/2005
• Date: 23 April 2007

[2007] TASSC 23

COURT OF CRIMINAL APPEAL (TAS)

Crawford, Evans and Tennent JJ

CCA 55/2005

CCA 57/2005

CCA 58/2005

Duggan, John Frederick

and

Tasmania, State of

Gray, Brendan James

and

Tasmania, State of

Watt, Christopher John

and

Director of Public Prosecutions

Postiglione v R (1997) 189 CLR 295 , applied.

Aust Dig Criminal Law [1005]

Criminal Law — Appeal and new trial and inquiry after conviction — Appeal and new trial — Appeal against sentence — Grounds for interference — Disparity — Co-offenders — Whether disparity between sentences of co-offenders for murder was justified.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford J

1 At a joint trial conducted between 15 and 30 June 2005, all of the appellants were found guilty of the murder of Athol John Tollard by shooting him in his home at Rokeby, arson by unlawfully setting fire to his house, aggravated burglary by entering his house as trespassers with a firearm with the intention of assaulting him and the stealing of his firearms, ammunition and firearm cleaning equipment. The crimes were committed on 4 May 2004.

2 On 14 July 2005, the appellant Duggan was convicted and sentenced to imprisonment for the term of his natural life and it was ordered that he not be eligible for parole until 23 years after 4 May 2004, the day upon which he was taken into custody. At the same time, the appellant Watt was convicted and sentenced to imprisonment for 32 years from 4 May 2005 and it was ordered that he not be eligible for parole until 20 years after 4 May 2005. On 25 July 2005 the appellant Gray was convicted and sentenced to imprisonment for 32years from 4 August 2004 and it was ordered that he not be eligible for parole until 17 years after 4 August 2004.

3 All have appealed against the sentences. Duggan's grounds are that the sentence was manifestly excessive and an error in law having regard to considerations of parity. Gray's sole ground is one of manifest excessiveness. Watt's grounds are that the sentence failed to recognise sufficiently issues of disparity between Watt and Duggan, that it failed to recognise sufficiently issues of parity between Watt and Gray, and that the sentence and the non-parole period were manifestly excessive.

4 The facts were as follows. The victim was a 79-year-old man who lived in a somewhat isolated farmhouse. The appellants had been drinking together for much of the day. During the afternoon, Gray acquired a .22 calibre Winchester self-loading rifle from a man who had acquired it from a person he met at a party a couple of weeks previously. Gray and Duggan made unsuccessful attempts to obtain ammunition for the rifle from other people. Gray knew, or at least suspected, that Mr Tollard had several firearms at his home as well as ammunition for them. The appellants decided to go to his home and to steal from him. Duggan borrowed a car and they travelled in it to Mr Tollard's house, taking the Winchester with them. They had no ammunition. They intended to burgle Mr Tollard's home together and to rob him at gunpoint if they found him there.

5 Their entry into his house was an aggravated burglary because one of them was carrying the Winchester and also because it was a place of human habitation. Mr Tollard was at home alone. He grabbed the muzzle of the Winchester, apparently trying to seize it, whereupon Watt punched him to the face so hard that he fell to the floor. He was cruelly beaten and shot at least twice with his own .22 calibre Remington self-loading rifle. The house was then set on fire.

6 Mr Tollard died before the fire. His injuries included three fractured ribs on the right side and four fractured ribs on the left side. The fractures were associated with large bruises on each side of his chest, suggesting that he had been beaten or kicked. There was a lot of bruising over the lowerback around the right kidney and a fracture of a vertebra just above the pelvis suggesting a traumatic injury. The fractures and bruises made it clear that Mr Tollard was very cruelly assaulted, quite likely by more than one assailant. He had also suffered a fracture of the thyroid cartilage, suggesting compression of the neck, either manually or by means of a blunt force. He had been shot in the right leg, the bullet passing up the leg and lodging in the head of the femur. Another bullet, which killed him, entered his back at the right shoulder, hit a rib, passed through his right lung and struck the thoracic spinal column. Death was caused by consequent bleeding from the lung. The learned judge rejected Watt's evidence at the trial that in the course of the struggle with Mr Tollard for control of one of his rifles, it accidentally discharged twice.

7 The house was set on fire in order to incinerate Mr Tollard's body and destroy evidence as to his murder. His body was burned beyond recognition. The house and practically all of its contents, along with a kitten, were destroyed by the fire.

8 It is not known which of the accused fired the fatal shot, caused the serious injuries or lit the fire. They were all to be treated as equally responsible.

9 The three men stole from the house an air rifle, a double-barrel shotgun, the Remington rifle, three other rifles and a large quantity of rifle and shotgun ammunition. Watt gave evidence that the purpose of going to Mr Tollard's home was to steal ammunition so that Gray could take revenge against a man named Mabb who had broken Gray's arm, by firing shots into Mabb's car. Duggan told the police much the same, as did Gray to a psychiatrist. The learned judge thought that the quantity of firearms and ammunition stolen by the three men suggested that they may have intended to do worse than damage Mabb's car and frighten him, but accepted that there was insufficient evidence upon which a finding could be made that they had any worse intentions concerning what they would do after leaving Mr Tollard's home.

10 A few hours after leaving, two police officers found them, each armed with a loaded gun. They were drunk, irresponsible, amoral, capable of extreme aggression and very heavily armed and it was lucky that the police officers were able to disarm them without anyone being shot.

11 Mr Tollard was a bachelor. He was loved and respected by members of his extended family and by friends in the Rokeby area. Despite his age, he led an active life, working on his farm and helping others. No doubt his murder had a significant impact on those who were close to him. The learned judge acknowledged, nevertheless, that it would be wrong to take into account the popularity of the victim in the sentencing process, since the fact that a human life was taken was what was overwhelmingly significant. His Honour's acknowledgement accorded withInkson v R (1996) 6 Tas R 1 at 30 — 31.

12 The appellant Duggan was 37 years old at the time of the crimes and 38 when sentenced. From about the age of his behaviour deteriorated, he said because of disabling injuries suffered by his father. He was educated to Year 11 or 12, but by then he was drinking excessively and missing school, and he did not matriculate. He moved on to use marijuana, amphetamines and heroine. His worse abuses were of alcohol and amphetamines. He had some employment of a labouring kind. However, over the last year or two before these crimes he was in receipt of a disability pension as a result of his alcohol and drug abuse. His record of offending was a very poor one. A large proportion of his offences were connected with his abuse of alcohol or substances. He had eight convictions under theRoad Safety (Alcohol and Drugs) Act 1970 and in addition, three convictions for driving while disqualified. His offences also included abusive or indecent language (4), obstruct, threaten or resist police (9), assault police (6), assault, wounding, drug offences (5), drunk and disorderly or disorderly conduct (13), destroying or injuring property (5), offences of dishonesty (21), and other miscellaneous offences. He had been sentenced to imprisonment many times. On my assessment, after allowing for the possibility of remissions for good behaviour, he had been in prison serving sentences of imprisonment for a total of at least 2 years 4 months over six periods between 1986 and 2000. Unlike Gray and Watt, two of his prior offences were crimes and because he was sentenced for them in the criminal court, the comments on passing sentence were available and provided to the learned judge. In 1990 he received a wholly suspended sentence of 4 months' imprisonment for assault, as a result of pointing a rifle at somebody when he was intoxicated. In 2000 he was convicted of wounding as a result of an incident on a Metro bus, when he was drunk. He became involved in a fight with another drunk, produced a knife and slashed the other's throat. He had twice been imprisoned for assaulting police and related charges. When untreated he suffers from mood swings and anger problems. In prison he had been prescribed Prozac, which he thought worked. He said that he felt much better since he had lost the opportunity to have alcohol and drugs and he had given up smoking. At the time of sentencing, he had been in prison for 14 months and had undertaken Year studies.

13 The appellant Watt was 26 years old at the time of the crimes and 27 when sentenced. He was educated to Grade 9. Following the breakdown of his parents' relationship when he was 12 years old, his behaviour deteriorated. He left home when aged 15 and lived a transient lifestyle, at times living on the streets. From the age of about 14 or 15 he abused alcohol. His record of offences makes that clear. According to his counsel he was regularly employed as a fisherman from about 1995 until about 2004 and on returning to land he would spend much of his spare time drinking alcohol to excess. His record for offending was a very poor one,...