R v Cambey; R v Carney

R v Cambey; R v Carney - [2010] NSWSC 369 - NSWSC 2010 case summary — Zoe

[14]

7 The deceased resided in a home unit in Cartwright. He supplied cannabis from those premises to users of the drug and had done so for a period of years prior to his death. A quantity of cannabis was found in his refrigerator by investigating police. 8 On the evening of 28 January 2006, and into the early morning of 29 January 2006, the deceased was at his home unit alone. Other residents or guests of residents, were in and around the unit block at this time. 9 At around 5am on 29 January 2006, the offenders (in company with a third man) travelled to the deceased's unit from Jacob Epenian's house in Lurnea in a car driven by a fourth man, Joel Grant, for the purpose of obtaining some cannabis from the deceased on credit. All four men had been drinking and using drugs (including cannabis) at a party at Epenian's house for some hours before leaving and driving to the deceased's home unit. Sean Berriman, and Carney's girlfriend, Jessica Laing, were also at the party. Grant, Epenian, Berriman and Laing were the Crown witnesses upon whose evidence the Crown relied at trial. 10 Neither of the offenders (or the third man) had met the deceased prior to going to his unit on 29 January 2006. Grant, on the other hand, had purchased cannabis from the deceased on previous occasions. He was introduced by Jason Blackhall, a friend of the deceased, it being the deceased's habit not to supply cannabis to people he either did not know directly or perhaps indirectly through someone he knew well enough to trust. 11 I am satisfied that the offenders (and Grant) planned to, and ultimately succeeded in, gaining entry to the deceased's unit using Mr Blackhall's name. I am also satisfied that it was agreed between them that Grant would remain in the car with a view to achieving their common objective that once they were inside the unit they would persuade the deceased to either give them cannabis on credit without force, or under the threat of force if he refused, and that they were conscious that were Grant with them, and if force did have to be used, they would be at risk of being identified. I am also satisfied that Cambey assumed the role of the person who would knock on the deceased's door and that the other two men would stand back from the door until the deceased opened it. While this has all the hallmarks of a strategy to force entry to the deceased's unit in order to launch a premeditated attack on him to steal his cannabis, I am unable to be satisfied of that fact to the criminal standard. 12 Grant gave evidence that none of the three men were armed when they left the car to go to the deceased's unit. Even assuming that to be the case (about which I have some doubt) I am satisfied that Carney armed himself with the metal bar before entering the unit, and that the third man revealed that he had a taser gun at that time, at the very latest. I am also satisfied that they armed themselves to advance their common purpose to obtain cannabis without having to pay for it. I am not satisfied however that there was an agreement that violence would in fact be inflicted, as distinct from that being a possibility in the likely event that the deceased refused to supply the cannabis without payment. Accordingly, for sentencing purposes, I am satisfied that before Cambey entered the unit (even if moments before) he knew that both Carney and the third man were armed even though he was not himself armed. The extent to which that operates to reduce the objective criminality of his offending is a matter I will return to consider.

[15]

13 Within a short but indeterminate time after the deceased allowed the offenders into his unit he was viciously assaulted. I am satisfied that Carney inflicted the head wounds by repeatedly striking the deceased's head with the metal bar and that Cambey joined in the assault by kicking the deceased. I am satisfied that the only reason the deceased was assaulted was because he refused to supply cannabis to the three men on credit and that the extent of violence they inflicted on him was because he did not submit to the attack but sought to defend himself against it. 14 The autopsy revealed the deceased's head injuries were the direct cause of his death. Four wounds to the head were identified. One was a substantial bruise located on the back of the head as a result of blunt trauma, a kick, punch or stomp to the head being recognised as possible causes. I am satisfied that this wound was inflicted by Cambey when he kicked the deceased to the head after Carney had hit him with sufficient force to the head with the metal bar to cause him to fall to the ground. I am also satisfied that he kicked the deceased as he was endeavouring to get back to his feet. 15 The other three wounds were lacerations. The first to the left temple was 5cm in length. Its shape was consistent with the curved end of the metal bar that was retrieved from the scene. A second laceration to the right side of the back of the head intersected with a third laceration of 11cm in length to the left hand side of the head. The evidence established that this compound laceration was the result of two independent applications of a significant amount of localised force. Immediately beneath this laceration was a depressed fracture of the deceased's skull. I am satisfied that all three lacerations were inflicted when Carney struck the deceased repeatedly with the metal bar. In addition, I am satisfied that the force of the assault by both offenders was severe enough to cause blood to spatter on the walls of the unit and for blood to pool on the deceased's bedclothes. Although the compound laceration was capable of being regarded as the most significant of the four individual wounds, if for no other reason than because of the associated depressed fracture and the swelling and bleeding in the brain resulting from it, the cause of death was reported as a combination of the four wounds given their concentration on the deceased's head. 16 There can be no doubt that the offenders knew that the deceased was severely wounded when they left the unit. Although there is no evidence to support a finding that they took any of the deceased's cannabis, the fact that bagged cannabis was located in various places in the deceased's unit does not compel a finding that none was taken. Suffice for sentencing purposes that I am satisfied that obtaining cannabis without payment was what ultimately motivated the offenders to brutally and fatally assault the deceased. 17 Carney either dropped or threw the metal bar as he made his way back to Grant's car. It was ultimately seized by police. The forensic evidence revealed that DNA and human hairs recovered from the metal bar matched the DNA profile of the deceased. The taser was never recovered. 18 Grant gave evidence that when the three men arrived back at the car, one of the offenders (who was not identified) said they had bashed the deceased, and that they kept bashing him, but that they could not knock him to the ground.

[18]

23 Laing was asleep when the offenders decided to go to the deceased's unit to get the cannabis and was asleep upon their return. However, later that day, she had a conversation with Carney in the course of which he said they had bashed someone and that it had gone too far. He said that the guy kept getting back up. He said that he had a pole and that after leaving the flat he ran and threw it away. Laing also gave evidence of another conversation, about a week later, at Epenian's house, where everyone who had attended Epenian's party the previous week, including the offenders, were talking about what had happened to the deceased since the news of his death was by that time public knowledge. A collective decision was made not to discuss the matter again. Consistent with that agreement none of the offenders' friends informed police of what they knew of the circumstances surrounding the death of the deceased and the involvement of the offenders. 24 An extensive police investigation into the deceased's murder via community and other sources failed to identify the offenders as either suspects or people of interest. On 2 November 2007, over 18 months after the murder, a reward was posted by police for information that may lead to the arrest and charge of those responsible. Over the course of a period of months from that date Sean Berriman provided information to the police. This information led to Epenian, Grant and Laing being spoken to by police. In the result, each of the four people gave statements directly implicating the offenders in the murder by their own admission. 25 Carney was arrested and charged with the deceased's murder on 24 July 2008. At the time of arrest he was in custody having been convicted on 27 November 2007 in the District Court at Campbelltown of discharging a loaded firearm to resist arrest and driving a vehicle recklessly. He was sentenced to 6 years imprisonment, with a non-parole period of 3 years and 6 months, commencing on 26 December 2006 and expiring on 25 June 2010. He is currently serving the balance of that non-parole period. In circumstances where none of his remand has been spent referable to the offence for which he stands to be sentenced in these proceedings, his sentence will take effect from the expiration of the existing non-parole period. The commencement date of his sentence will be fixed accordingly. 26 Cambey was arrested and charged with the deceased's murder on 17 July 2008 and remanded in custody. On 20 November 2008 he was sentenced to a fixed term of 2 months imprisonment for the offence of larceny, commencing from 17 July 2008 and expiring on 16 September 2008. He is entitled to have taken into account a period of 1 year 7 months and 14 days as being solely referable to the murder charge. The commencement date of his sentence will be adjusted accordingly.

[19]

27 The Crown tendered four victim impact statements from the deceased's father, sister and two brothers. They speak of the traumatic experience in having to identify the deceased while he was on life support at the Liverpool hospital, the devastating loss the family has suffered as a result of his death, and the empty void that remains. They describe him as having a great sense of humour, and having many lifelong friends, over two hundred of whom attended his funeral. The deceased's younger brother conveyed how the absence of the deceased was felt at the birth of his first son and how his absence will be felt in the future at family birthdays and family gatherings. I extend my sympathy to the family of the deceased for their loss. 28 In the final paragraph of one of his elder brother's statement he appealed to me to deliver justice for his brother. It is important that I make clear that this sentencing exercise is not directed to that end. This sentencing exercise is primarily directed to imposing a sentence of imprisonment on these offenders that will, in my assessment, meet what the community can and should expect of a system of justice that is as responsive to the community it serves as it must be to the established principles of law that have developed to give consistency to its expression. It may not be easy for the family of the deceased to accept that a life taken will not be paid for with a life in prison, but that is not the law. 29 The standard non-parole period of 20 years for the offence of murder represents the period an offender is obliged to spend in custody before being entitled to be considered for release to parole. As s 54(2) of the Sentencing Act makes clear, the standard non-parole period is intended to apply to an offence in the middle of the range of objective seriousness after trial unless I am satisfied that there are reasons, within the matters comprehended under s 21A of the Sentencing Act, for setting a non-parole period that is greater or lesser than that statutorily prescribed period (see MLP v R [2006] NSWCCA 271; 164 A Crim R 93 at [30]). 30 Carney tendered two psychiatric reports from Dr Olav Nielssen dated respectively 4 September 2007 and 11 March 2010. The earlier report was prepared for the purpose of the sentence proceedings in Campbelltown District Court to which I have earlier referred. Those offences were committed on 27 December 2006, just short of twelve months after the murder of the deceased but before he was arrested and charged with the deceased's murder. The second report was prepared for the current proceedings. 31 Despite a diagnosis of schizophrenia (which in the report of March 2010 was considered to be in remission) and a substance abuse disorder in remission at the time of the first report, Mr Winch, who also appeared on the offender's behalf at trial, did not rely upon either of the reports as mitigating the objective seriousness of the offender's role in the murder of the deceased, in the sense that he did not submit that any underlying mental illness might explain or put into context Carney's unprovoked and violent attack on the deceased, or his attitude in the face of being arrested, charged and ultimately convicted of his murder. He could hardly have submitted otherwise in circumstances where Carney has maintained the position that he did not go to the deceased's home unit on the morning of 26 January 2006 much less that he was the man who fatally attacked him with the metal bar. 32 Dr Nielssen's reports were relied upon solely on the question whether, with the offender's schizophrenia and substance abuse disorder now in remission as a result of his compliance with prescribed medication and his withdrawal from drugs, his age at the time of the offending, together with his prospects of rehabilitation, are such that a departure from the imposition of a standard non-parole period might be justified in accordance with the principled approach authoritatively stated in R v Way [2004] NSWCCA 131; 60 NSWLR 168. Mr Winch also submitted that notwithstanding the fact that Carney armed himself with the metal bar before entering the deceased's unit I would be satisfied that the attack was not premeditated. That fact, together with the Crown's concession that Carney did not inflict the head wounds with the intention of killing the deceased, so it was submitted, supports a finding that the offending falls short of offending in the middle of the range of objective seriousness and for that reason alone the imposition of the standard non-parole period of 20 years was not mandated.

[21]

Is the objective seriousness of the offending in the mid range? 36 In R v Way the Court held that the assessment of objective seriousness is to be made by reference to the circumstances in which the offence was committed and not the circumstances of the offender, other than those causally connected to the commission of the offence. As counsel for both of the offenders made clear in their respective submissions there is nothing in the reports of Drs Nielssen or Jacmon that is relied upon, or could be relied upon, to establish in any relevant causal sense the state of mind or motivation of either of the offenders when they fatally assaulted the deceased. In addition, there is nothing elsewhere in the evidence to which counsel referred that serves to establish anything personal to either offender that explains or even elucidates the motivation behind the vicious and unprovoked attack in which they jointly engaged, other than frustration at being refused drugs on credit. Despite the evidence of the people they were with on the night before and the morning of the assault that drugs and alcohol were being consumed and in significant quantities at the party at Epenian's house, I am not prepared to place any weight on the fact that the offenders, or either of them, might have been affected by drugs or alcohol at the time of the assault when neither have claimed that they were so affected. 37 On the offender Carney's behalf it was submitted that an intention to kill is a consideration tending to greater objective seriousness than an intention to inflict grievous bodily harm and that however deliberate and sustained was his assault with the metal bar, wielded as it was at the head of the deceased at least four times in rapid succession, the accompanying intention fell short of an intention to kill the deceased and that the Crown's concession in that regard was properly made. Bearing in mind that an intention to kill must be a finding I can confidently make beyond reasonable doubt I am unable to be satisfied that Carney's intention is of that kind despite its very considerable brutality. That does not however necessarily detract from a finding that his offending is within a mid range of objective gravity. Mr Winch submitted what serves to support a finding of that kind is that I could not be satisfied that the killing was premeditated. The case of R v Nguyen [2007] NSWCCA 363; 180 A Crim R 267 was cited in support of that proposition. In that case Smart AJ was satisfied that the primary sentencing judge had erred in holding that the murder for which the appellant was sentenced was substantially above the mid range in objective seriousness. The deceased was killed when four men entered a billiard hall in Cabramatta armed with pistols and a samurai sword. The first man pointed at or in the direction of one of the patrons and then fired the pistol at close range. Another of the patrons was shot fatally in the chest and another wounded in the upper body. The primary judge was satisfied that the actions of the gunman left no room for doubt that his intention was to kill and that his actions were premeditated, irrespective of who was the intended victim. Although Smart AJ was of the view that an intention to kill and premeditation are usual elements in a murder of mid range objective seriousness, and that there was nothing in the surrounding circumstances of that case that placed the offending above the mid range despite the grave nature of the killing, I do not understand his Honour to have intended to specify an intention to kill and premeditation as requisite elements of mid range offending generally.

[22]

38 Although I have afforded both of the offenders the benefit of the doubt in so far as it might have been found against them that they planned a forced entry to the deceased's home with the intention of robbing him with violence, I am nonetheless satisfied that Carney's deliberate arming of himself and his use of the metal bar as a weapon, the degree of violence he was personally responsible for inflicting on a man caught by surprise and defenceless in his own home, coupled with the fact that he not only took no measures to assist him after the assault but actively boasted of having bashed him to the point of submission, places his offending as within the mid range of objective seriousness. I am conscious in so finding that I am required to hypothesise as to what an abstract offence in the middle of the range of objective seriousness for an offence of this kind would be. Although I am satisfied that the probabilities favour a finding that the offender's decision to strike the deceased was in a sense impulsive I remain satisfied that this offence falls within the mid range. His conduct and behaviour thereafter confirms my view that having formed the intention to inflict serious violence on the deceased he did so with a calculated and chilling detachment and not as a result of loss of self-control. 39 I am satisfied that the Crown's concession that Cambey's offending falls just short of mid range offending is properly made principally because he was not armed and, while he must be taken to have been aware that the other two men were armed, I accept that this was not as a result of any pre-planning or agreement as distinct from something he became aware of within a very short time of approaching the deceased's unit and seeking entry. While he joined in the assault thereafter by kicking the deceased while he was on the ground, the wound he inflicted was not fatal. I am satisfied that his liability for murder is as a result of the active assistance and encouragement he gave to Carney as the principal offender - a finding that is borne out by the jury's verdict. That said the standard non-parole period remains a reference point in the imposition of the non-parole period that will be imposed in his case. 40 Having considered the question of objective seriousness the question then presents as to whether I am satisfied that there is anything personal to the offender Carney, or otherwise able to be relied upon in mitigation, that would justify a departure from the imposition of the standard non-parole period in his case and whether there are matters in mitigation that inform the non-parole period to be imposed on Cambey. The subjective cases

[23]

41 Carney was aged 19 at the time of the murder and 23 at the date of sentence. In his various interviews with Dr Nielssen he described a happy upbringing free from any form of neglect or trauma. He attended Westfield Sports High School until Year 12. Despite completing the Higher School Certificate in 2005 he did not complete enough subjects to facilitate his entrance to tertiary education. Soon after leaving high school he secured an apprenticeship as a plumber, however he discontinued his apprenticeship after a month. At high school he was considered to be a promising rugby league player. He was however unable to continue playing rugby league at a more competitive level after high school as a consequence of suffering several injuries, including a serious injury to his right knee. His drug use also escalated in his last year at high school. He admitted to having used MDMA, cocaine, and methamphetamine, first at weekend parties and then progressing to more regular use, sometimes during the week. 42 He reported a family history of schizophrenia (a history his mother confirms) but told Dr Nielssen that he had not had any contact with developmental paediatricians or counselling, and that his only treatment with psychotropic medication was a single dose of diazepam during his overnight admission to Liverpool Hospital six months before his arrest. Soon after his entry into custody in November 2007 he was transferred as an involuntary patient to the acute psychiatric ward of Long Bay Prison Hospital where he was treated with antipsychotic medication for several months as a result of which his symptoms progressively abated. He has been maintained on antipsychotic medication following his discharge. At the time of his first interview with Dr Nielssen he was taking Zyprexa at the standard dosage of 15 mg per day. Dr Nielssen assessed his attention and concentration at this time to be within normal limits and that his registration and retrieval of information was also thought to be largely unimpaired. His premorbid intelligence was estimated to be within the normal range. At the second interview three years later, on 9 March 2010, Dr Nielssen reported that the pharmacological regime had been effective in controlling any symptoms of schizophrenia. Thus the diagnosis of schizophrenia (in remission).

[25]

44 In the clinical interview conducted by Dr Jacmon Cambey related that he was raised in Liverpool and enjoyed a close and supportive family upbringing. He attended Ashcroft Public School and then Ashcroft High. He was suspended several times before being expelled in Year 9. His family then moved to Perth where he then took up employment as a bricklayer's labourer before his family moved back to Sydney. In Sydney he continued casual work in the building industry. During this time he reported using marijuana and alcohol daily and ecstasy on weekends. He became a frequent gambler, attending racecourses and casinos. At the time of the offence his drug abuse was assessed at clinically significant levels. 45 Cambey's prospects of rehabilitation are also problematic, not the least because I know little of the degree of support he can expect from friends or family on his release. That said, in his case, I have the added confidence that over time he will gain added insight into his offending given that he has, however belatedly, accepted responsibility for his actions. Dr Jacmon proposed a treatment program which, save for the desirability of him undertaking educational courses to improve cognitive functioning and enhance his verbal and numeric skills, is unlikely to be available within the custodial setting. I strongly recommend that he be afforded educational facilities and opportunities appropriate to his needs to enhance his prospects of gainful employment and assimilation on his eventual release. As with his co-offender, Cambey must also spend a significant period in custody. Despite there being factors in his case that might amount to special circumstances, having already accounted for his relative youth and his good prospects of rehabilitation in fixing the non-parole period I do not propose to further adjust the statutory ratio between the non-parole period and the balance of term. 46 Mr Carney you are sentenced to a non-parole period of 16 years and 6 months to date from 25 June 2010 and to expire on 24 December 2026. There is to be a balance of term of 5 years and 6 months to expire on 24 June 2032. 47 Mr Cambey you are sentenced to a non-parole period of 14 years and 6 months to date from 16 September 2008 and to expire on 15 March 2023 There is to be a balance of term of 3 years and 6 months to expire on 15 September 2026.

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