STATE OF TASMANIA v SHANNON DUFFY 13 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Duffy, you have pleaded guilty to the murder of Jarrod Leigh Turner, a crime which you committed on 14 April 2019.
You and Mr Turner had only known each other for a short time, but you shared a house and were on good terms. You also seem to have mixed in the same circles and associated with the same people. In particular, you associated with members of a family in which you had spent some of your childhood. These associates had pro-criminal tendencies, and your association with them was in that general context. In the days before you committed the crime, you had some pressure put on you by one of these people to shoot Mr Turner in a non-life-threatening way, as punishment for a perceived grievance. That person had already administered a similar punishment to you. You had agreed to do this. However, it is accepted by you and the prosecution that you are to be sentenced on the basis that this person did not intend, and you did not understand him to intend, that you should kill Mr Turner, and further, this was not your motive for committing the crime for which you are to be sentenced.
On the day before you committed this crime, and before you had done anything about following through on the requirement to administer punishment to Mr Turner, you were informed by a 14-year-old female friend that Mr Turner had sexually assaulted her the previous night. It was obvious to you that she was very upset about this. I am satisfied that you then, or shortly after, decided that you would kill Mr Turner in retribution for what you believed he had done to this girl. The question of your intention at the time that you shot Mr Turner was the subject of dispute in these proceedings, but today you have withdrawn the claims upon which that dispute was based, and admit that you did intend to kill him. This is appropriate because the evidence which supports the existence of an intention to cause death is overwhelming. Further, that evidence also supports the conclusion that you formed that intention at about the time that you heard about the allegations of sexual assault. I refer in particular to the admissions made by you in your interview with police on 27 August 2020. Your counsel has not made any submissions to the contrary. I intend to proceed on that basis.
After forming that intention, you formulated a plan to give effect to it, and proceeded to put the plan into effect. Firstly, you obtained possession of a firearm, a 12 gauge shotgun. The firearm was provided to you by the same man who had recently shot you. While you were aware of his desire that you use the firearm to seek retribution for his purposes, I am satisfied that your purpose in obtaining the firearm was to carry out your plan to kill Mr Turner, motivated by the allegations made by the female.
At 8:58pm on 13 April, you initiated contact with Mr Turner by sending him a text message and thereafter arranged with him that you would collect him later that night by vehicle. I infer that you and he agreed that you would drink alcohol together and essentially engage in a casual and social manner. I infer that you arranged this as a ruse to lure Mr Turner to a location in which you would be able to put into effect your intention to shoot and kill him. He telephoned you at 12:06am on 14 April to advise you that he was ready to be collected. You arranged for another female, a person with whom you were in a relationship, to drive the vehicle, and you and she picked up Mr Turner. You had the loaded firearm wrapped in an item of clothing and secreted in the front passenger foot-well of the vehicle, where you were sitting. Mr Turner was sitting in the back and the female was driving. You maintained these seating positions for the whole of the subsequent journey.
The three of you visited a number of residences, a fast food outlet, and then went to the Hobart CBD where you met and interacted with some acquaintances. At about 2:31am, the three of you went in the vehicle to Five Mile Beach. I have seen the Snapchat video recorded by Mr Turner while you were there. It is clear that you and he are both drinking alcohol, appear to be having a good time and are interacting in a friendly way. It is also obvious that this was part of your deception of Mr Turner, and you were waiting for an opportunity to follow through on your plan to kill him. The prosecution suggests that you may have planned to do this at Five Mile Beach but decided against it when Mr Turner recorded and uploaded the video.
On the return journey, shortly after 3:36am, when the vehicle was travelling along Colebrook Road near Richmond, you asked the female to stop the vehicle on the side of the road so that you and Mr Turner could urinate. This location is adjacent to rural properties and relatively secluded. Mr Turner got out of the car, stood on the side of the road, undid his trousers and began to urinate. He was holding a can of alcoholic beverage at the time. You retrieved the shotgun from its location under the seat, took it to where Mr Turner was standing, held the shotgun very close to the right side of his head underneath the ear, and then shot him in the head. He fell to the ground, and you immediately got back into the car and told the female to “fucking go”. Mr Turner was left lying face down on the side of the road. His trousers were still undone and his genitals were exposed. His body was discovered by a passer-by about two hours later. It is obvious that up until the moment that you shot Mr Turner, your deception had been successful. The circumstances would clearly support the inference that he had absolutely no idea that your intention that night was to cause him harm, let alone to end his life.
The gunshot caused a relatively large entry wound and massive internal damage to Mr Turner’s head. A pathologist has opined that the blast energy of the shot would have immediately rendered him unconscious. The cause of death was blood loss resulting from damage to the carotid artery bilaterally. It is not clear, as I understand it, when death actually occurred. Ambulance and police first arrived on the scene within 30 minutes of the passer-by having found Mr Turner. Although they found no pulse, the body was still warm and resuscitation was attempted for about 35 minutes before confirmation of death.
After these events, you took a number of steps to cover up what you had done and avoid arrest. This included disposing of the firearm, which you claim to have thrown in the Derwent River. You also sought refuge with your associates. You were assisted by them in a number of ways, including by helping you destroy property, shoes and clothing that you were wearing or had with you at the time of the murder, and which you believed might implicate you in the crime. You were given some money and provided with new shoes. One of your associates arranged for a relative who resides in Fingal, to provide you and your female partner with a place to hide. You stayed there for five days before being located and arrested by police.
Mr Turner was 22 years of age at the time of this crime. His death has, of course, devastated his immediate and wider family, and, I am sure, many others who knew him. It is clear that the grief associated with his loss has been exacerbated by the unexpected and violent manner of his death. I have received impact statements from his mother, his sister and the mother of his children. They are all profoundly affected by his loss and speak about a similar effect on other members of the family. His children are very young, the eldest was aged 3 at the time of his death. Although they were not living with him, he saw them regularly and was very involved in their lives. They are probably too young to completely understand what has happened, but your crime means that they will now grow up without the ongoing love, support and parental assistance they could have expected, and were entitled to expect, from their father. This is all the obvious consequence of the commission of a terrible and pointless crime such as this.
You were 30 years of age when you committed this crime and you are now 32. You experienced a dysfunctional childhood, and from an early age grew up in departmental care. You spent your early years in foster care and group homes and thereafter lived with either family members or friends. There was little stability or continuity in your life as a child. Your education ended prematurely and you have for many years been in receipt of a disability pension related to literacy and cognitive difficulty. You also have an appalling criminal record. The record commences when you were 13 years of age and you have been offending regularly since that time. You have spent much of your adult life in prison. The prior convictions on your record include a number of serious crimes involving violence, and some related to firearms. In 2008, when you were 19 years of age, you were sentenced to imprisonment for crimes which included aggravated armed robbery. You and a male companion robbed a retail store. Your co-offender had possession of a sawn-off shot gun and used it to threaten a female store attendant. During the robbery, you told a customer that your friend would use the gun to kill him if he rang the police. In 2011, you were sentenced for offences committed while in prison, which included assaulting a correctional officer. In 2012, when you were 23 years of age, you committed an armed robbery and aggravated assault, which involved threatening a store attendant and a police officer with a pair of scissors in order to make good your escape after stealing property. In 2016, you were sentenced by this Court for criminal conduct related to burglary and setting fire to a stolen vehicle. The sentence also dealt with an assault on a police officer, committed after you had been arrested for the other offences and were being taken in a vehicle to a place of custody. According to the sentencing judge’s comments, during the course of that journey, “though handcuffed, you tried to grab a firearm from the officer beside you and as you did said ‘I’m going to blow your fucking head off’.” Finally, in 2017 you were sentenced by a magistrate to 18 months’ imprisonment for a number of offences, which included carrying a firearm with intent to commit a crime. I have been informed that the facts of that matter asserted that you were found in a vehicle in possession of a loaded firearm, and that the crime which you intended to commit was the crime of murder. I am told that you were only released after serving that sentence approximately three months before you committed this crime. This record suggests that you have a propensity to use weapons, including firearms, to threaten or effect violent crime. In respect of the crime for which I am sentencing you, this propensity was manifested by your use of a firearm to intentionally kill a man.
Your intellectual capacity and psychological state is the subject of a report by Dr Michael Jordan, a forensic psychiatrist. Dr Jordan notes that, as a child, you were diagnosed with a pervasive developmental disorder and foetal alcohol syndrome, both of which are consistent with the history of neglect, abuse and instability which characterised your early childhood. In 2007, when you were 18 years of age, a psychological profile prepared by a psychologist, Dr Georgina O’Donnell, noted that you exhibited high levels of psychopathic and antisocial behaviour, and noted a considerable risk of further criminal behaviour, including violence, although at that stage there was no evidence of premeditated violence. Cognitive testing, including that conducted by Dr O’Donnell in 2007, indicated an intellectual capacity which placed you in the range of a mild intellectual disability. According to Dr Jordan, your propensity for violence is closely connected to the combination of your intellectual capacity, your personality profile and the influence of an antisocial peer group. Dr Jordan also considers that you have a need to appease and please those around you in order to improve your own self-esteem and as a perceived means of rectification of the wrongs done to you in the past. Dr Jordan hopes in time that you might be able to deal with these deeply rooted problems with professional help, but it seems to me that he does not predict with any significant confidence that this will be successful.
There are a number of aggravating features of this crime. This was a cold-blooded and callous killing carried out in the style of an execution. It was carried out with a firearm on a public road. You left your victim bleeding and dying on the roadside in a remote location, with almost no chance that anyone would come along and find him within a reasonable time, and certainly not in time to save his life. He was left in a state in which private areas of his body were exposed, in a stark repudiation of his dignity and humanity. You planned and premeditated the crime. You betrayed your friendship with Mr Turner by using it to deceive him and lure him to a location and into circumstances in which he would be vulnerable to your attack. You arrogantly took it on yourself to end the life of this man, who was only 22 years of age and had the bulk of his life in front of him. You have deprived his family of a son and brother and his children of a father. Your crime is abhorrent to a peaceful society and deserves the severest condemnation. The only slight mercy, not one for which you can claim any credit, is that, because of your deception, Mr Turner would not have been aware of his impending fate.
Further, I regard the fact that you committed the crime because of the allegation that Mr Turner had sexually assaulted your friend, as an aggravating factor. The only reasonable conclusion available to me is that you decided to engage in this killing as an act of retribution, and you then proceeded to plan and carry it out in a callous and premeditated way. Of course, you had no way of knowing whether the female’s allegations were true, and even if they were, it makes no difference. Criminal violence perpetrated as purported retribution for a perceived wrong is an affront to the rule of law and contrary to the expectations of a civilised society. In any event, I do not believe that you acted out of genuine concern for the girl in question. I think it is far more likely that you committed this act in order to ingratiate yourself with her, and because of your pervasive need to please those around you. I observe that in the immediate aftermath of the killing, you told her that you had shot Mr Turner, and then later sent her a text message which suggested that you had killed him to demonstrate your love for her. Your motive, and you preparedness to act on it in the way that you did, increases your moral culpability for this crime, and informs the need for specific deterrence.
There are few, if any, mitigating factors. Although you have expressed sorrow, I am not satisfied that you have demonstrated any significant remorse or contrition. It is true that you have at an early time admitted that you shot Mr Turner, and you have now, of course, entered a plea of guilty. You have also through your counsel indicated that you will be willing to give evidence against others involved in this crime. You should receive appropriate credit for your willingness to assist in the administration of justice. The plea of guilty, in particular, has practical benefits in relation to the administration of justice and for the victim’s family, because it brings these proceedings to an end at a relatively early time without the need for an undoubtedly lengthy and traumatic trial. However, I do not think that any of these actions permit an inference that you have any true remorse or indeed insight into your conduct and its consequences. Your post-offence conduct in acting to conceal what you had done and avoid the authorities does not aggravate your moral culpability for the commission of this crime, but is inconsistent with your claims of remorse. Further, since your arrest, although you have always admitted carrying out the shooting, you have given to the police and to the Court a number of conflicting and false versions of your actions, your intention and the involvement of others in the crime. This conduct demonstrates a desire to deflect and minimise your responsibility, and perhaps to protect others from criminal responsibility for their actions. Again, this does not aggravate your culpability, but it does bear on the existence and extent of any true remorse or insight, and whether you have accepted responsibility for your actions and their consequences. It will also have clear implications for the utility of your offer to give evidence in respect of anyone else charged in respect of this crime.
The maximum penalty provided for this crime is life imprisonment. It is established law that the maximum sentence is intended to be applied in, and should be reserved for cases which fall into the worst category of cases for which the penalty is prescribed. However, that assessment must take into account all of the objective and subjective circumstances of the case, including the personal circumstances of the offender and the need for community protection. Further, the fact that it is possible to imagine a more serious case does not necessarily place the case under consideration outside the worst category. In this case, I am of the opinion that the case does fall within the worst category of murder. It was a planned, intentional and cold-blooded killing committed by a person with a demonstrated propensity to engage in violent criminal conduct, including with the use of firearms. Your mistreatment in childhood, your level of intellectual functioning and your personal associations have, in my view, all contributed to your decision to commit this crime. Those aspects of your life deserve sympathy, but they also suggest that there is little probability or hope for effective rehabilitation. While community protection is not the only sentencing consideration, it is an important factor. Although the crime was perpetrated against a person you knew and in respect of a perceived grievance, your capacity to plan and then act as you did, consistent with a propensity for violent criminal conduct, suggests in my view an ongoing risk to public safety. However, I am also of the view that having regard to your age, the possibility that rehabilitation may be achieved, and your co-operation in the administration of justice, it is appropriate to provide for the possibility of release on parole after serving a lengthy period of time in prison. The maximum head sentence will ensure community safety in the event of release on parole. This, of course, does not mean you will necessarily receive parole at the expiration of the non-parole period, because it will be a matter for the assessment of the Parole Board. My order will provide the Parole Board with the opportunity to assess the extent of your rehabilitation and the question of community safety at that time.
Shannon Duffy, you are convicted of the crime of murder and sentenced to imprisonment for the term of your natural life. I order that you not be eligible for parole in respect of that sentence until 19 April 2037, which is 18 years from the day you were remanded in custody.