STATE OF TASMANIA v BRADLEY SCOTT PURKISS 9 OCTOBER 2019
and MARGARET ANNE OTTO
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Purkiss and Ms Otto have each been found guilty by a jury on a charge of murder. The jury’s verdict in relation to Mr Purkiss indicates that they were satisfied beyond reasonable doubt that he murdered Ms Otto’s husband, Dwayne Davies, on the night of 26 May 2017 by shooting him with a shotgun. Ms Otto was charged on the basis that she “instigated” the commission of that crime, within the meaning of s 3(1)(d) of the Criminal Code. The verdict of the jury indicates that they were satisfied beyond reasonable doubt that she and Mr Purkiss planned the killing together.
For sentencing purposes I will make findings of fact that are consistent with the verdicts of the jury. For such findings to be made, matters adverse to Mr Purkiss or Ms Otto must be established beyond reasonable doubt, but matters favourable to them need only be established on the balance of probabilities.
Mr Purkiss was Mr Davies’ best mate. They had been good friends for a couple of years. On the morning of Friday, 26 May 2017, Mr Purkiss visited Mr Davies at his workplace – a tattoo studio in Bridgewater. While there, Mr Purkiss arranged for Mr Davies to visit his home that night. He lived at Elderslie. He said he was interested in purchasing a Harley Davidson motorcycle, and that he had arranged for men from the Campbell Town area to bring some Harley Davidsons to his home that night with a view to him buying one. Mr Davies knew a lot about motorcycles and Mr Purkiss knew little. Mr Davies agreed to go to Elderslie that night to look at the Harleys. In truth there were no arrangements for visitors to bring Harley Davidsons to Elderslie. Mr Purkiss was tricking Mr Davies, and taking advantage of his friendship.
On that Friday morning, Ms Otto phoned Mr Purkiss at 9.30 am. The phone call lasted for about 30 minutes. He later went to see her at her workplace. That was something that he had never done before. He was there from 12.17pm to 1.02pm. Any plan for the murder of Mr Davies must have been finalised at or before that meeting.
During the Friday afternoon, Mr Purkiss unexpectedly visited his father in New Norfolk. For many years, he, his father and other family members had gone on shooting trips to a property at Levendale owned by a Mr McConnon. Mr Purkiss suggested to his father that they go on a shooting trip to that property on the following night. His father agreed, phoned Mr McConnon, and made the necessary arrangements. The body of Mr Davies was found on Mr McConnon’s property the following week. I infer that Mr Purkiss got his father to arrange the shooting trip so that he could dump the body on that property the following night.
Mr Davies arrived home from work shortly before 5pm. Ms Otto arrived home from work at about 5.25pm. They lived at Risdon Vale. Shortly after 6pm Mr Davies set out to travel to Elderslie. He was driving Ms Otto’s vehicle.
The property at Elderslie belonged to Mr Purkiss’ then partner. He told her that Mr Davies would be coming to their home that night, told her that he was going to confront Mr Davies about him visiting them too often, and asked her to go out in case Mr Davies became violent. As a result, she went out and had a meal at McDonalds at Bridgewater.
When Mr Davies arrived at the house, only Mr Purkiss was home. There were no neighbours within earshot. Mr Purkiss had a shed on the property in which he had been growing cannabis. It was referred to during the trial as the grow shed. Some days later, blood and brain tissue from Mr Davies’ body were found in that shed. I infer that Mr Purkiss murdered him in that shed. The evidence establishes that he was shot twice at a range of less than one metre with a 12 gauge shotgun. Mr Davies suffered shotgun wounds to the back and head. The State Forensic Pathologist, Dr Ritchey, gave evidence that either wound would have been instantly fatal. It is likely that the wound to the back was inflicted first, that Mr Davies collapsed, and that Mr Purkiss then shot him to the head.
When Mr Davies’ body was found, there was a latex glove on each of his hands. Mr Purkiss had a supply of latex gloves in another of his sheds. People who harvest cannabis usually wear latex gloves. One witness gave evidence that that was because the plants are sticky, but another said that contact with the skin can affect the quality of the cannabis. Mr Davies would not have put on latex gloves unless he was expecting to harvest some cannabis. I infer that Mr Purkiss lured him to the grow shed, pretending that he was going to let him harvest some cannabis there, before murdering him there.
Mr Purkiss left a note for his partner saying that he would be spending the night at his father’s place. He sent her a text message at 8.49pm saying that Mr Davies had left. Mr Purkiss then departed in Ms Otto’s vehicle, and drove to his father’s home in New Norfolk. His father was not expecting him. He and his father sometimes went on shooting trips to Tynwald Park. He suggested to his father that they go there that night. His father made the necessary arrangements. They went there, shot some possums, and then returned to the father’s house.
Mr Purkiss senior owned a couple of licensed double barrelled shotguns. The Crown suggested that Bradley Purkiss could have taken one of his father’s shotguns during the afternoon, killed Mr Davies with it, cleared that gun by firing it at Tynwald Park, and returned it to his father’s gun safe afterwards. The only other possibility is that he killed Mr Davies with a shotgun from an unknown source. I do not need to make a finding about the source of his murder weapon. I am unable to say whether it was more likely to have been a weapon of his father’s or a weapon from an unknown source. The only significant fact about the murder weapon is that Mr Purkiss used it to kill Mr Davies at a range of less than one metre.
From his father’s home Mr Purkiss drove Ms Otto’s vehicle back to her home in Risdon Vale. He arrived just before 11pm. Mr Davies had installed closed circuit television cameras. They were operating when Mr Purkiss arrived. He was wearing a hooded jacket. He parked the vehicle in view of one of the cameras, but alighted with his hood up, and made sure not to face the camera at any time. He entered the house, and remained there until about 2.40am. The CCTV system was disconnected almost immediately after his arrival.
Mr Davies had had possession of a Suzuki motorcycle which he had been talking about delivering to Mr Purkiss by way of part payment of a drug debt. Mr Purkiss intended to return home on that motorcycle, but he could not get it to start. As a result, Ms Otto drove Mr Purkiss back to Elderslie. She left home at about 2.40am and returned at about 3.50am. Those times were recorded by her mobile phone.
I infer that Mr Purkiss spent the rest of the night in one of his sheds, referred to during the trial as the red shed. His partner had arrived home shortly after he left in Ms Otto’s vehicle, and left for work on the Sunday morning at about 8am without having seen him at all. At some stage Mr Purkiss wrapped Mr Davies’ body in a tarpaulin, secured it with twine and adhesive tape, and loaded it onto the tray of his utility. He was in the habit of taking quantities of green waste or garden rubbish to the Levendale property for disposal when he went shooting there. He covered the body with green waste, and travelled to the Levendale property on that Saturday night with his father and brother for the arranged shooting trip. On arrival, he left his father and his brother at a building that was referred to as the shooters’ hut, travelled some distance further along a dirt road, and disposed of the body. Mr McConnon had left an excavator parked with its keys in the ignition. Mr Purkiss used the excavator to dig a hole. He dumped the body in the hole, buried it, and covered the area with logs that were lying nearby and with the garden waste from Elderslie. He then returned to his father and brother for some spotlighting.
Ms Otto and Mr Purkiss took a number of steps to conceal the murder. Ms Otto phoned Mr Purkiss at about 4am on the Saturday so that it would look as if she had phoned to enquire as to her husband’s whereabouts after finding he was not at home. She phoned the home of Mr Davies’ sister, Mrs Goss, at about 4am, got her to come to her home, and told her that Mr Davies was missing. For the first time, she claimed that she had woken up on the Friday night to find that her car had been returned, that Mr Davies’ keys, wallet and phone were in his shed, and that he was missing. She repeated that story to family members, a friend, and the police on a number of occasions over the next few days. The Davies family held a family gathering on the Saturday afternoon to celebrate the first birthday of Mr Davies’ and Ms Otto’s only grandchild. Mr Purkiss attended that gathering. He and Ms Otto agreed to say as little as possible about Mr Davies in order not to spoil the party. Ms Otto spoke to Mr Davies’ mother and repeated her lies about him going missing. A friend from interstate and Mrs Goss came to her home after the party. She persuaded them that Mr Davies should not be reported as a missing person until Mr Purkiss had come back from his shooting trip. Those visitors ended up waiting for about five hours for Mr Purkiss to return. During that time Ms Otto speculated about possibilities that Mr Davies might have gone on a drug bender, or that he might have committed suicide, or that he might have come to harm as a result of a drug debt. Mr Purkiss arrived after 11pm and told some lies about what had happened at Elderslie. In brief, he said that he and Mr Davies had argued and fought, and that Mr Davies had cried and spoken of suicide before driving off erratically in Ms Otto’s vehicle. The police were contacted shortly before midnight.
Ms Otto told lies to the police to conceal what had happened. She repeated her lies about waking up to find that her car and Mr Davies’ possessions were at the premises but that he was missing. She told the police that the CCTV had been disconnected some days previously because she had complained about a lack of privacy.
Over the next few days, in speaking to the police and others, Mr Purkiss repeated his lies about what had happened at Elderslie. At one stage on the Sunday, he climbed up into the ceiling space at the Risdon Vale house in front of concerned visitors, pretending to look for missing CCTV equipment. In fact the missing equipment was at his home.
Detectives interviewed both Mr Purkiss and Ms Otto on the afternoon of Tuesday, 31 May. Mr Purkiss made no admissions. He adhered to his story of a fight, and of Mr Davies crying and talking of suicide. He pretended to be concerned that his mate might have committed suicide as a result of something he said. At the conclusion of his interview he was arrested and charged with murder. Ms Otto’s interview continued for some hours after that. She was told that Mr Purkiss was in custody. Thereafter she made some admissions. She admitted that Mr Purkiss had returned to her house in her car, and that she had driven him back to Elderslie. She told the police that Mr Purkiss had disconnected the CCTV on the Friday night and taken the CCTV box to Elderslie.
Ms Otto was interviewed by detectives three times – on the Tuesday, the Wednesday and the Thursday. During that first interview on the Tuesday, she told the police four times that Mr Purkiss had gone on a shooting trip on the Saturday night, but the detectives did not ask about where he had gone. She was arrested on the Tuesday night, and has been in custody ever since. On the Wednesday, she asked to be interviewed a second time, and told the police she had remembered that Mr Purkiss had said something about leaving his father and brother and going somewhere else at some point during the shooting trip. The third interview also occurred as a result of Ms Otto asking to speak to the police.
On the Thursday, Mr Purkiss’ father told detectives of the shooting trip to Levendale, and went to Mr McConnon’s property with them. The property covers about 6000 hectares. On the Friday, some 60 officers searched that property. The burial site was identified. The body was exhumed on the Saturday. A post mortem examination was conducted on the following Monday, 5 June.
I turn to consider the motives for the murder. It is clear that Ms Otto had a very difficult relationship with her husband, and that she wanted him out of her life. It seems she reasoned that if he was killed, she would be free of him, and he would never trouble her again. He had been her partner for about 17 years. They had been married for about four years at the time of his death. It seems clear that Mr Davies was an unstable and demanding individual. No doubt he had a good side. His father and Mrs Goss said a number of positive things about him in their victim impact statements. However there was evidence from friends and relatives to the effect that Mr Davies suffered from anxiety and depression, that he thought he had bipolar disorder, and that he often behaved unpredictably. He also suffered from a bad back, arthritis, and possibly a liver condition. There were times when his medical complaints interfered with his work, and thus with his earning capacity. In the past, there had been occasions when he had become addicted to hard drugs, but he had overcome his addiction each time. He consumed large quantities of cannabis, and had taken to growing his own. A friend sold some for him. There had been times during his relationship with Ms Otto when he spoke of committing suicide. According to what she told the police, he was not physically violent, except for a period when he was in the habit of slapping her about the face in a sexual context. However she complained to the police of years of “emotional abuse”. Apparently Mr Davies enjoyed sexual threesomes, and at times had insisted that Ms Otto have sex with other men in his presence. He was deeply in debt, possibly largely because of expenditure on cannabis. The couple were on the verge of bankruptcy. There was evidence that the tattoo business generated little or no income. It appears that Mr Davies was financially and emotionally very dependent upon Ms Otto. It also appears that she was frightened as to how he would behave, towards her and others, if she ended their relationship.
The evidence establishes a number of motives for Mr Purkiss to murder Mr Davies. First, he was close to Ms Otto, understood that her relationship with Mr Davies was an extremely difficult one, and wished to free her from that relationship. Second, he felt that Mr Davies had been using him and other people in all sorts of ways. In particular, he felt that Mr Davies had been using him by smoking substantial quantities of his cannabis and not paying for it. Third, Mr Purkiss was annoyed about Mr Davies owing him a great deal of money, mainly for purchases of cannabis, and about that debt having been outstanding for a long time.
There was no evidence that Mr Purkiss and Ms Otto were in a sexual relationship in 2017, nor was there any evidence suggesting that they planned to live together after the murder. The motives for the murder involved grievances about Mr Davies’ behaviour, and Ms Otto’s desire to be free of him.
Ms Otto has a son name Brady Davies. He was 20 years old at the time of the murder. It was his child’s first birthday party on the day after the killing. Mr Davies was not his biological father, but became his surrogate father when he was about 2 years old. He thought of him as his father. He did not provide a victim impact statement. It is clear that he was very close to both Mr Davies and Ms Otto. I was told that he now feels “very conflicted”. His father’s murder, and his mother’s complicity in it, have obviously been devastating for him.
Mr Davies has been survived by both his parents and several siblings. He had a brother named Corey who died as a result of a heart condition, aged only 45, just six months before the murder. The outrageous killing of another son has had a terrible impact on his parents. They had very high opinions of both Mr Davies and Ms Otto. Their lives will never be the same. Other members of the family are also feeling devastated and destroyed.
Mr Purkiss is 43 years old. He has a number of significant prior convictions, but none of them are for offences involving violence. His worst convictions are for dishonesty, drug and firearms offences. In 1999 he was sentenced to perform community service for a series of firearms offences, and placed on probation for 12 months. He went to prison in relation to crimes of dishonesty in 2000, 2007, and 2010. In March 2017 he committed a trespassing offence on one day, and stole property worth $5,710 four days later. In relation to those offences, a magistrate subsequently sentenced him to one month’s imprisonment with effect from 13 July 2017. He has been in custody ever since his arrest on 30 May 2017. To make allowance for that one-month sentence, I will backdate his sentence on the murder charge to 30 June 2017. It appears from his record of prior convictions that he had been on bail before committing the murder, but had failed to appear in court on 8 May 2017.
Mr Purkiss appeared to me to be an intelligent man. He left school at the end of grade 10. He has worked in various occupations, and has had a good employment record. He has no mental health problems. He has never used hard drugs, but was a user of cannabis for many years before his arrest. From about 2014 he smoked a lot of cannabis in order to obtain relief from back pain. He has been working as a gardener in the prison. He has had little opportunity to participate in courses there because of his status as a remand prisoner. However he wants to take the opportunity to further his education while serving his sentence for this crime.
Ms Otto is 47 years old. She has no significant convictions. She has an exemplary employment record. Until this murder, she was regarded as a kind and helpful individual by members of the Davies family. She has been an exemplary prisoner, attending educational courses and helping fellow prisoners.
Mr Purkiss has shown absolutely no sign of remorse. Ms Otto became increasingly distressed during her three police interviews. However I am not satisfied on the balance of probabilities that her distress resulted from anything other than concern about her own predicament. It is very possible that she was genuinely concerned about the death of Mr Davies and its impact on his family, but I cannot say that that was probable rather than possible.
Some of the evidence in this case has cast Mr Davies in a very bad light. However, in determining the appropriate sentences for the crime of murder, the qualities or shortcomings of the victim, and the popularity or unpopularity of the victim, are not of great significance. By contrast, the fact of the taking of a human life has enormous significance.
There are a number of significant aggravating circumstances in this case:
- The killing was an intentional one.
- The murder involved betrayal – the betrayal by Ms Otto of her husband and by Mr Purkiss of a close friend. Mr Purkiss took advantage of Mr Davies’ friendship and trust when arranging to kill him. Mr Davies was tricked into driving from Risdon Vale to Elderslie on the Friday night to help Mr Purkiss in relation to the possible purchase of a motorcycle. Because of his friendship and trust, he would not have had any hesitation in going to the grow shed.
- The killing was planned for at least about eight hours before the firing of the fatal shot. During that time Mr Purkiss could have changed his mind, and Ms Otto could have intervened to save her husband’s life.
- Mr Purkiss dumped Mr Davies’ body and buried it in a remote area where it might never have been found. Anything that a murderer does with his or her victim’s body shortly after the murder is relevant for sentencing purposes: Director of Public Prosecutions v England [1999] 2 VR 259; Bell v The Queen [2003] WASCA 216 at [23]-[25], [61]-[62]; Colledge v Western Australia [2007] WASCA 211 at [16]; R v Wilkinson (No 5) [2009] NSWSC 432 at [60]-[61]. Mr Davies was missing for a week before his family and friends learned anything as to his whereabouts. It was the intention of Mr Purkiss and Ms Otto that his body was never to be found.
- Both Mr Purkiss and Ms Otto told lies in an attempt to conceal their guilt.
- One of Mr Purkiss’ motives for the murder related to a substantial drug debt arising from his unlawful selling of cannabis to Mr Davies.
As a result of the means that Mr Purkiss adopted to kill Mr Davies and dispose of his body, it was necessary for the police to undertake a very complex investigation, including the search of the Levendale property by some 60 officers. In the light of a decision of the Court of Criminal Appeal, the inconvenience and expense of the investigation must not be taken into account in sentencing: Neill-Fraser v The Queen [2012] TASCCA 2 at [208]-[216].
Because of the aggravating factors I have listed, I have decided that Mr Purkiss deserves a somewhat longer sentence than those imposed on most murderers in this State. Because he has no prior convictions for crimes involving violence, I think I should make provision for him to be released on parole. A non-parole period may not be less than one half of the period of the head sentence. In the case of Mr Purkiss, I think justice requires that he should serve a significantly greater proportion of his sentence.
Although Ms Otto is guilty of this crime as an instigator, she did not pull the trigger or bury the body. Her circumstances can also be distinguished from those of Mr Purkiss as she made some limited admissions to the police, did not have a motive related to the sale of illicit drugs, and has no prior convictions. In all the circumstances, I think she should receive a significantly shorter sentence than Mr Purkiss, with the shortest possible non-parole period. My research has not revealed any Tasmanian murder cases involving the sentencing of an instigator. I am very grateful to my associate, Ms Otlowski, for directing me to a number of helpful sentencing cases in other States, including Director of Public Prosecutions v Arthur [2018] VSCA 37, Rolls v The Queen [2011] VSCA 401, 34 VR 80, and Ruthsalz v Western Australia [2018] WASCA 178.
Bradley Scott Purkiss, I convict you and sentence you to 24 years’ imprisonment with effect from 30 June 2017. You will not be eligible for parole until you have served 14 years of this sentence. Pursuant to s 92A of the Sentencing Act 1997 I specify that one month of this sentence commencing on 13 July 2017 is concurrent with the sentence imposed in the Magistrates Court on that date, and that the sentence imposed today is otherwise cumulative with that sentence.
Margaret Anne Otto, I convict you and sentence you to 15 years’ imprisonment with effect from 30 May 2017. You will not be eligible for parole until you have served 7½ years of this sentence. I direct that the murder be recorded on your criminal record as a family violence offence.