DRINAN v REGINA

Background Facts 6 On 9 August 2004 someone stole a six week old dog from the residence of the applicant and his girlfriend. They sought and obtained information on the identity of the thief or thieves. From that information the applicant suspected that Darren McKeown and Nathan Carrick were responsible. The circumstances of the robbery were that the thieves had hit the adult mother dog in order to steal the puppy. 7 On 10 August 2004, three persons, one of whom was the applicant, went to Mr Carrick's place. They knocked on the window and the applicant's brother, Matthew Drinan, kicked a hole in the wall. All of this was at or about 10.30 pm. When the said Matthew Drinan kicked the hole in the wall, the effect was that Mr Carrick was hit through the hole. The applicant and his co-offender then started questioning and abusing Mr Carrick. At the time the applicant was armed with a pick handle. A Mr Stender took hold of Mr Carrick's shirt and threatened him and, before they left the premises, the applicant hit Mr Carrick on the shoulder with the pick handle and smashed the bedroom window. The evidence is that this incident would not have been reported but for the occurrence of the later incident which I will now describe. 8 On 14 August 2004 at about 11.00 pm, the applicant and Mr Stender, together with their respective girlfriends and another, consumed a large quantity of the alcohol at home in Orange. (The Sentencing Judge found that both the applicant and Mr Stender were alcoholics and had been alcoholics for many years.) At approximately 11.00 pm that night Mr Stender and the applicant went to Mr McKeown's home. Again the applicant was armed with the wooden pick handle which, by this time, had been wrapped in red coloured tape because the wood of the handle had split. The Sentencing Judge found that the applicant took the pick handle with him because he intended to use it to assault either or both Mr McKeown or Mr Carrick. Mr Stender knew that the applicant was in possession of the pick handle and was likely to use it. 9 On arrival at the McKeown home, they damaged the screen door. After discussion with the pregnant girlfriend of Mr McKeown, Mr Stender and the applicant departed. They went to Mr Carrick's place of residence. There, once more, Mr Stender damaged the screen door and entered the premises. 10 Mr Carrick, the victim, was in the rear bedroom lying on a mattress watching television. Mr Stender kicked the mattress. Both men then yelled at him about the stolen dog (the dog had been returned by the Police two days earlier). Mr Carrick indicated that it was Mr McKeown who had stolen the dog and curled up under the blankets fearing for his safety and protecting his head with his arms. The sentencing judge described the scene thus: "Despite the fact that Mr Carrick was obviously helpless and completely unable to defend himself, both men then set about assaulting him. [The applicant] used the wooden pick handle to strike Mr Carrick upwards of ten times or more on the shoulders, arm, chest and left side of his head. Mr Stender assaulted Mr Carrick by kicking him in the forehead and on the side of the head three times. He then stomped on his head just above the ear twice. At one point, Mr Stender tried to persuade [the applicant] to leave, [the applicant] pushed him away and kept hitting the victim. The victim was crying and shouting; as it turns out he is a man who has a mild mental disability."