A Launceston man who welched on a deal to give evidence in a murder trial will spend at least two extra years in jail as a result of a Court of Criminal Appeal decision.
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William Adair Rothwell, then 17, was sentenced to 26 years in jail by Justice Robert Pearce with a non-parole period of 15 years for the murder of Billy Ray Waters. Co-accused Jacob Michael Brennan received the same sentence.
In the February 2020 sentencing Rothwell and Brennan had two years taken off their non-parole periods because of a promise of co-operation in the upcoming trial of the their co-accused Christopher Leigh Brown.
The murder occurred when Mr Waters was lured to bushland near Mowbray racecourse in 2019 where Brennan shot him in the leg.
He was then hit over the head with the shotgun barrel, stabbed 18 times by Brennan and struck with a baton.
"As Mr Waters lay moaning on the ground one of the defendants picked up the firearm loaded it with a cartridge and shot Mr Waters in the back of the head. The shot resulted in traumatic damage to his head and brain and killed him immediately," Justice Pearce said.
Rothwell promised to give truthful evidence in Brown's trial for murder.
"For a further reason published only to the parties at this stage I have reduced the period of ineligibility for parole by two years," Justice Pearce said in sentencing.
The Crown appeal to the Court of Criminal Appeal arose after Rothwell gave unsatisfactory evidence in preliminary proceedings for Brown in December 2020. He repeatedly claimed he could not recall evidence about the alleged role of Brown in ordering the murder or Brown's supply of the firearm used.
In one response he said he was under the influence of drugs and alcohol and "pretty much anything before September [2019] was a blur and I can't really remember anything".
The Crown subsequently dropped a murder charge against Brown who later pleaded guilty to being an accessory after the fact to murder.
Deputy Director of Public Prosecutions Linda Mason SC said a significant factor in the Crown accepting Brown's plea was that the "State formed the view that Rothwell would be an unreliable witness".
In a 2-1 split decision the CCA upheld the Crown appeal and increased Rothwell's non-parole period by two years to a total of 17 years.
Brennan's non-parole period remained at 15 years because he gave evidence at the preliminary proceedings.
In a combined decision the CCA dismissed cross appeals by Rothwell and Brennan that their sentences were excessive.
Chief Justice Alan Blow and acting Justice Brian Martin agreed that the non-parole periods should be increased while Justice Helen Wood dissented.
"I have concluded that the non-parole periods were not manifestly excessive," Chief Justice Blow said.
"I acknowledge, however, that the sentences imposed in this case, including the non-parole periods, were heavy ones, and that it is unsurprising that experienced judges may take different views as to whether they were manifestly excessive."
Acting Justice Martin said the factual basis for the fixed the non-parole period was false.
"Through no fault of the sentencing judge, his Honour incorrectly took into account a significant fact to which his Honour should not have had regard," he said.
"By reason of Mr Rothwell's conduct, if the sentence is permitted to stand, the integrity of the sentencing process will be significantly compromised."
In her dissenting opinion Justice Helen Wood said the initial 17-year non-parole period was very heavy compared to past sentences.
"The period is particularly severe by reference to the appellants' admissions and their pleas of guilty, youth and prospects of rehabilitation," she said.
"Notwithstanding the gravity of this terrible crime, and concerns about their prospects which arise from their preparedness to carry it out, their youth and lack of antecedent history provides hope for reform."
Justice Wood said the sentences were rendered manifestly excessive by virtue of the length of the non-parole periods.
"They are severe for these offenders to the point of error, noting the matters in mitigation and the specific discount allowed of two years to reflect a promise to give evidence," she said.
She said she would allow the appeals, leave the head sentence intact and reduce the non-parole period in each case by two years.
"In Mr Rothwell's case I would order that a non-parole period of 15 years be imposed, so in consequence, his original sentence remains intact.
"In Mr Brennan's case, the order I would make is that he not be eligible to apply for parole until he has served 13 years."
Rothwell will now be eligible for parole after serving at least 17 years in jail, while Brennan will still be able to apply for parole after 15 years.
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Nick Clark
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
