R v Carney; R v Cambey

Supreme Court of NSW|2012-10-19|Before: Schmidt J

Judgment 1Derrick Reid died on the evening of 29 January 2006 of injuries which were inflicted on him while he was at his home, early that morning. On 1 August 2012, a jury found Todd William Carney and Luke Joseph Cambey not guilty of Derrick Reid's murder, but guilty of his manslaughter. Todd Carney and Luke Cambey each now stand for sentence for that manslaughter. 2While these offences were committed in 2006 and the offenders were both first charged in 2008, they are being sentenced only in 2012 in circumstances where in 2010, they were both convicted of Mr Reid's murder. The Court of Criminal Appeal overturned those convictions, taking the view that the trial judge had erred in not leaving the alternative verdict of manslaughter to the jury (see Carney v R; Cambey v R [2011] NSWCCA 223). 3After the first trial, Luke Cambey indicated that he was prepared to plead guilty to manslaughter, in full satisfaction of the indictment. This offer was rejected. At the second trial both offenders entered pleas of not guilty to both the charges of murder and manslaughter. They both gave evidence at the trial, which was challenged. They also gave evidence at the sentencing hearing. They were not cross-examined on that evidence. 4In his evidence at the trial Todd Carney admitted hitting Mr Reid repeatedly with a metal pole, when he was at Mr Reid's home in the early hours of the morning, together with Luke Cambey and a juvenile. The juvenile was armed with a taser. They went there to buy cannabis. Luke Cambey admitted to being present together with the juvenile and seeing Todd Carney hit Mr Reid, but he denied himself injuring Mr Reid. They both claimed to have been unaware that the juvenile had the taser with him. Their evidence clearly raised the question of self defence.

5Determination of the sentence to be imposed on each offender must be approached in a context where it is apparent that manslaughter is a most serious offence, involving as it does the wrongful taking of a human life. That is reflected in the maximum penalty of 25 years imprisonment imposed by the Parliament for that offence. Here, it was properly not in issue that given the nature of their offences, a term of imprisonment must be imposed on both offenders. The length of that sentence in each case is what now falls to me to determine, in the light of all of the evidence led both at trial and on the sentencing hearing. 6In a case such as this, I must determine the facts relevant to sentencing, which must be consistent with the jury's verdicts of not guilty of murder and guilty of manslaughter. I cannot find any fact which would be adverse to the offenders, unless it is established beyond reasonable doubt. Facts which may be taken into account in favour of the offenders need only be established on the balance of probabilities (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] - [28]). Subject to these constraints, my task is to find for myself the facts relevant to the sentencing exercise (see Olbrich at [1]). 7The Parliament has required that the sentence imposed on the offenders be determined having in mind the purposes of sentencing provided in s 3A of the Crimes (Sentencing Procedure) Act 1999. Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 8In the result, the sentences which are imposed on the offenders must reflect the gravity of their respective offences, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354.) Section 21A of the Crimes (Sentencing Procedure) Act also requires that in determining those sentences, consideration be given in each case to specified aggravating and mitigating facts revealed by the evidence, as well as any other objective or subjective factors that affect the relative seriousness of each offence. 9The sentences must ensure that there is a reasonable proportionality between the sentence imposed and the circumstances of the crime which each offender has committed (see R v Scott [2005] NSWCCA 152 at [15]). Consideration must also be given to general and specific deterrence in the sentences imposed, as well as questions of parity. 10Under s 5 of the Crimes (Sentencing Procedure) Act a sentence of imprisonment is not to be imposed on an offender unless the Court is satisfied that no other penalty is appropriate. On the evidence, I am satisfied that these are such cases.

The nature of these offences 11Determining sentence must commence with an assessment of the nature and seriousness of these offences. There was no issue between the parties that the two offenders were both found guilty on the basis of evidence which established that there had been excessive self defence. I, too, am satisfied, to the requisite degree, that this was established on the evidence. 12Before he died, Mr Reid gave accounts of what had happened to him to a neighbour and to attending ambulance officers. He told them that three people had bashed him and that he had been tasered to the head. That a taser had been used to inflict any of his injuries, was not admitted nor established on forensic examination after his death. It was not in issue at the trial, however, that Todd Carney had repeatedly hit Mr Reid with a metal pole, but where Mr Reid was, when he was struck was in issue. There was also an issue as to whether he had been kicked by Luke Cambey. 13Mr Reid's injuries were consistent with him having been kicked, as well as having been hit with a metal pole. They included fractures to the head, including a depressed fracture which had hair embedded into the fracture; lacerations to the head; lacerations and fractures to two fingers of the left hand; bruising to the chest, shoulder, back, left flank, face head and arms; as well as abrasions to the left arm. Todd Carney's evidence was that he did not hit Mr Reid in the shoulder, chest, or back and that he saw him being kicked, but not by whom. Luke Cambey's evidence was that he saw Todd Carney hitting Mr Reid. He was equivocal about whether he had been kicked, but he denied himself kicking Mr Reid. 14Mr Reid was taller than Todd Carney. The site of certain of Mr Reid's head injuries and the results of his injuries, which included blood spatters which struck the wall behind the bed, as well as a pillow, were consistent with him having been hit with the pole, both while he was standing and after he had fallen to the bed, rather than only while standing, as was both Todd Carney and Luke Cambey's evidence. 15There was also evidence given by a number of witnesses to whom Todd Carney, Luke Cambey and the juvenile later spoke. Their evidence as to what they were told about what had happened, was also consistent with Mr Reid having been hit after falling and with being kicked. Those accounts included that Todd Carney had kept hitting Mr Reid when he kept getting up and that Luke Cambey had kicked him. While the evidence of these witnesses was variously disputed by Todd Carney and Luke Cambey, who put the reliability of some of these witnesses in question and in one case, the honesty of the witness as well, their evidence was largely consistent with Mr Reid's accounts, with the injuries which he suffered and also partially consistent with the evidence which Todd Carney and Luke Cambey gave themselves. 16Todd Carney and Luke Cambey gave evidence which contradicted parts of Mr Reid's account, as well as aspects of the evidence which other witnesses gave as to what they later said. There were also differences in the evidence which they each gave. Although they each gave an account of a very quick fight in which Todd Carney repeatedly struck Mr Reid with the pole, while he remained standing, their evidence as to Mr Reid having been kicked was not consistent. While neither gave evidence that it was Luke Cambey who had kicked Mr Reid, Todd Carney's evidence left this possibility open. 17Todd Carney and Luke Cambey are cousins. On Luke Cambey's account they were close and the juvenile who accompanied them was his closest friend. In my assessment, like the view which the jury plainly took, neither Todd Carney nor Luke Cambey gave entirely truthful evidence at the trial. They both gave accounts which downplayed their respective involvement in inflicting the injuries which caused Mr Reid's death. Their evidence does not account for how all of those injuries came to be inflicted. Neither admitted that Mr Reid was struck after he fell or that Luke Cambey had inflicted any of his injuries at all. I am satisfied that this aspect of their evidence may not be accepted. 18The jury plainly accepted the evidence which Todd Carney and Luke Cambey each gave which raised the question of self defence, but in convicting them both of manslaughter, took the view that their response was excessive. 19This view rested not only on the evidence as to Mr Reid's injuries and what they had later reported to other witnesses, as to what they had done, but also on evidence which they each gave, as to what they had done. They both each said that the metal pole which Todd Carney used belonged to Mr Reid, a drug dealer to whom they had gone to purchase cannabis, neither then being adversely affected by drugs or alcohol. On both their accounts this fight lasted only moments, breaking out because, unbeknownst to them, the juvenile who accompanied them was armed with the taser. Mr Reid produced the pole and attacked Todd Carney, who was closest to him, after the juvenile dropped that device on the ground. 20Todd Carney's evidence was that when he entered the unit where Mr Reid lived with Luke Cambey and the juvenile following, Mr Reid was sitting on the bed. They did not know him. Todd Carney approached him and asked about buying cannabis. He turned to look behind him when he heard the juvenile drop the taser. He then heard Mr Reid say, loud enough, to 'warn them off', that 'this is not happening to me'. When he turned back, he saw Mr Reid grabbing the pole from under a pillow or blanket on the bed and getting to his feet, swinging the pole at him. He said that Mr Reid was slightly taller than him, but he caught the bar with his left hand and then saw someone kick Mr Reid from the right side. 21He then punched Mr Reid in the head with his right hand and took the bar away from him. Mr Reid then said 'you're dead you dog'. It was then that he first hit Mr Reid in the head with the bar. That blow stunned him, but it didn't drop him and he hit him again in the head, because Mr Reid came at him again. Mr Reid came at him again and he hit him twice more, once in the arm. He then he hit him again, before running out of the room. 22Todd Carney's evidence was implausible in a number of respects. He denied hitting Mr Reid after he fell onto the bed, even though some of his injuries and the blood on the pillow and the wall were all consistent with Mr Reid having been hit with the pole from above. Todd Carney insisted that Mr Reid always remained on his feet throughout their fight. Even though on his evidence, the juvenile was behind him when he dropped the taser and the person who kicked Mr Reid from the side was standing close to him in this small room, he could not say who had kicked Mr Reid. 23Todd Carney also said that he had hit Mr Reid as he did, because he was in shock, fearing for his life. He agreed that if Mr Reid had been knocked over, he could have run out of the room safely, but he said that it had all happened quickly and that if he could have gotten away earlier, he would have. When he turned to leave he found he was alone in the room with Mr Reid. 24The details of Luke Cambey's account were somewhat different, although he also denied both that Mr Reid ever fell when Todd Carney struck him, or that he had kicked Mr Reid. In the result Todd Carney gave a much franker account as to his actions, even though it was plainly not an entirely truthful account, either as to all that he had done, or as to Luke Cambey's involvement. 25Luke Cambey's account was that he followed Todd Carney into the unit with the juvenile, who was to his side. The juvenile dropped the taser almost immediately, just behind his feet, right near the front door. Luke Cambey immediately knew what he had dropped, because the juvenile had shown the device to him some time before. He was then also near the door, to the side, where he could see both Mr Reid and Todd Carney clearly. He heard Mr Reid say 'this ain't happening to me' and saw him get up quickly, turn towards his bed, grab the metal pole from under the blanket and swing it at Todd Carney, who caught his hand and punched Mr Reid to the head with his other hand. During the fight Mr Reid was between the bed and a coffee table and Todd Carney to the side of that table. 26He said that the fight lasted for a matter of seconds, with Todd Carney hitting Mr Reid with the pole when Mr Reid kept coming at him. He heard the juvenile, who was then in front of him, saying 'stop it stop it'. In cross-examination, he said that the juvenile may have also said 'stop it, lets go', after which they all left. 27Luke Cambey's evidence was also implausible in a number of respects. He said that Todd Carney hit Mr Reid only once or twice with the pole, while he remained standing near the bed; that they were both pretty much standing still during the fight; that there was no shouting; that he did not think Mr Reid had been seriously hurt; and that he saw no blood at all. In cross-examination he said the fight had lasted only 15 seconds and denied that Mr Reid had been knocked down; that the whole time he stood between the coffee table and his bed; and that he had been hit 'twice if that' on the head and shoulder. He agreed that someone could have shoved Mr Reid to his bed, but claimed that no-one did. 28Initially Luke Cambey also denied that he or anyone else had kicked Mr Reid, but later he said that the juvenile could have kicked Mr Reid and later again, that he did not recall Mr Reid being kicked. 29The unreliability of parts of Luke Cambey's evidence was particularly revealed by his account of what he heard Mr Reid say. When asked if he had heard Mr Reid say to Todd Carney, 'you're dead you dog', something he had not mentioned in his evidence in chief, he agreed initially that he had heard it, but said that he had forgotten to mention it. Then he said that he knew Mr Reid had said something, but he did not know what it was. Then, that this was probably what he had said, because Mr Reid had said something 'in an aggressive manner 'and 'that's maybe something that you would say in an aggressive manner'. 30Luke Cambey's evidence was clearly not truthful in this and other respects. He also did not give an entirely honest account of all that Todd Carney had done, or as to his own involvement in the fight with Mr Reid. The accounts which they later gave to others about what they had done, more accurately reflected what they had done to Mr Reid than did their evidence at the trial. 31I am satisfied that the evidence established to the requisite degree that Todd Carney repeatedly hit Mr Reid with the pole, even after he fell to the bed; that Luke Cambey provided him with intentional aid and encouragement, including by kicking Mr Reid; and that the injuries which caused his death were the result of excessive self defence. 32On both offenders' evidence, while these events happened quickly, there was nothing physical which prevented them from leaving, once Mr Reid had been disarmed and pushed to the bed, without the need to inflict all the injuries which ended his life. Viewed objectively these were both serious offences, although the criminality involved in Todd Carney's offending was clearly more serious than that of Luke Cambey. 33The sentences imposed must thus reflect the serious nature of this offending, which was more serious, as I have noted, in the case of Todd Carney, than of Luke Cambey. That must be reflected in the sentences imposed. 34Also necessary to be considered are the relevant subjective matters, which arise for consideration in each case.

Todd Carney 35Both relevant aggravating and mitigating matters must be considered in each case, given the provisions of s 21A of the Crimes (Sentencing Procedure) Act.

Aggravating matters 36Todd Carney's use of the pole must be considered as an aggravating matter, albeit in the context that it was a weapon which Mr Reid produced and which Todd Carney wrestled away from him (see s 21A(2)(c)). That the offence was committed while Todd Carney was in the company of two others, must also be considered (see s 21A(2)(e)); as must be the fact that it was committed in Mr Reid's home, where they had gone to buy drugs (see s 21A(2)(eb)).

Mitigating matters 37Relevant mitigating matters include that this was not a planned killing (see s 21A(3)(b)); that there was a degree of provocation by Mr Reid, albeit in a context where on the evidence as to what he said, he acted to defend himself (see s 21A(3)(c)); and that at the time of the offence for which he is being sentenced, Todd Carney did not have a criminal history (see s 21A(3)(e)). On sentencing it was revealed that Todd Carney had served a sentence for other serious offences committed in December 2006. It will be necessary to return to this. 38Given the evidence of Todd Carney's very substantial abuse of illicit drugs prior to this offence, contrary to the submissions advanced on his behalf, that he was a person of good character, may not be accepted, even though, clearly, killing Mr Reid appears to have been out of character (see s 21A(3)(f)). 39It is also settled that alcohol and drug consumption, of itself, cannot mitigate the seriousness of an offence, but it may explain the context in which it occurred (see R v Fletcher-Jones (1994) 75 A Crim R 381). In R v Gordon (1994) 71 A Crim R 459 at 467, Hunt CJ at CL explained that in some circumstances 'intoxication will mitigate the offence because the offender has by reason of that intoxication acted out of character'. In this case, however, on the evidence which Todd Carney gave at the trial, he was not adversely affected by either alcohol or drugs on the morning of 29 January 2006, even though he had been at a party all night where on other evidence, both drugs and alcohol had been consumed. 40Other evidence of Todd Carney's drug and alcohol abuse and mental health must nevertheless be considered in sentencing, because of the consideration required to be given to the factors specified in s 21A(3)(g), (h) and (i) of the Act, as to whether: "(g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)," 41Todd Carney's evidence, particularly that given on sentencing as to his remorse for having caused Mr Reid's death, was given in terms which must, on any view, be accepted as evidencing that he has come to accept his responsibility for the actions which caused Mr Reid's death, actions for which he is clearly remorseful. That is consistent with observations made in a presentence report and a psychologist's report in evidence. 42That is an acceptance which clearly only developed slowly over time. It was not until the second trial in 2012 that Todd Carney revealed that it was he who had beaten Mr Reid with the pole. As I have explained, even then he did not give a complete account of his actions. At the second trial he did give evidence of his regret at Mr Reid's death, but up until conviction, Todd Carney clearly did not accept his criminal responsibility for his actions in causing that death. Nevertheless, I do accept that he has now shown his remorse. 43It was not the case advanced for Todd Carney that his reaction to Mr Reid's attack was the result of either mental illness, or the effects of drugs or alcohol. What was submitted, however, was that given his history, the sentencing exercise was in his case, an exceedingly complicated one. That submission rested on his history of drug and alcohol abuse and mental illness. 44The evidence shows that Todd Carney has given those who have diagnosed him a history of very significant drug and alcohol abuse both before and after January 2006. There is also a family history of schizophrenia. Both his maternal grandfather and two uncles suffered from that mental illness. 45It was not in issue that in December 2006, at the time that he committed other serious offences, he was suffering chronic paranoid schizophrenia and substance abuse disorder. Nor was it in issue that his illness is now in remission. 46Todd Carney was already in custody when charged in relation to Mr Reid's death, but as was submitted on his behalf on sentencing, his later offending did not establish that in January 2006, when he killed Mr Reid, he had in his then ordinary state, any inclination to violence. 47On the evidence, at the time that he killed Mr Reid in January 2006, Todd Carney was not mentally ill. His very substantial drug abuse no doubt contributed to the full blown mental illness which he was suffering by December 2006, but he had not already succumbed to that illness in January 2006. It follows that neither his prior drug abuse, nor the fact that he later suffered considerably from the mental illness to which he succumbed, can excuse the grave offence for which he is now being sentenced. 48These conclusions rest on evidence which is in part, contradictory. The views expressed by experts must be considered in the light of the evidence given in this case. In evidence was a presentence report, as well as a report prepared in August 2012 by the forensic psychologist Laura Durkin and two reports prepared by the psychiatrist Dr Olav Nielssen. All of this evidence reveals, as Ms Durkin described it, that Todd Carney has given contradictory and inconsistent accounts, over time, as to his drug taking, his offending and the onset of his symptoms. 49There has been a consistent account given by Todd Carney of having had a happy home life and succeeding at school, both academically and in sport, until he suffered an injury on the field in 2005, which brought to an end his ambitions to play first grade rugby league, not long before he did his HSC. The evidence which his mother gave at the sentencing hearing corroborated that account. 50Todd Carney's evidence at the sentencing hearing suggested that his drug abuse, mainly ecstasy and cocaine, had been a response to his knee injury in 2005. His evidence at the trial made no mention of such drug use, or indeed alcohol abuse, only that he had had some drinks the night before he killed Mr Reid and that he did not use cannabis in January 2006. Another account, referred to in the presentence report, was of infrequent use of ecstasy before the end of 2005. 51On the accounts he has given Dr Neilssen and Ms Durkin, however, even prior to his injury in 2005, Todd Carney was significantly abusing various drugs. This began in late 2004 and early 2005, when he was aged 17. That abuse escalated into heavy drug use in his final year of school, with the result that he completed his HSC, but with insufficient marks to allow him to matriculate. 52In Ms Durkin's 2012 report, there is reference to an account that he commenced drinking alcohol at parties from age 14, consuming 5 to 10 alcoholic drinks per occasion. By age 15 this had increased to 10 to 15 drinks. Alcohol abuse reduced by the time he was aged 18, when his drug abuse increased substantially. 53He was introduced to ecstasy on New Years Eve 2004/05. He began using the drug weekly, increasing his consumption as his tolerance increased. After his knee injury later in 2005, he was consuming large quantities, 10 or 12 pills per night, 2 to 4 times a week, until his arrest in December 2006. He also began using cocaine on weekends when aged 17. The frequency of that use increased at the end of 2005, to the point where he was using cocaine multiple times during the week and on weekends. This also continued until his arrest. He also first began using the drug speed when aged 17, when that drug was available and began using it with frequency in mid-2006. By age 18 he also began using the drug ice and by late 2006 was using it more frequently, at times going on 'benders'. His drug abuse increased after January 2006, when he killed Mr Reid. 54After his arrest in December 2006 he ceased taking drugs, without a medical detoxification or rehabilitation programme and in custody undertook a relapse prevention course, as well as other programs. He is awaiting acceptance into the Getting Smart program, for further drug and alcohol treatment. 55Todd Carney also gave Ms Durkin an account of his mental health history, which was somewhat inconsistent with his earlier accounts to Dr Nielssen, but accords with the evidence he gave on sentencing. He reported to her no significant psychological problems prior to his use of illicit drugs. He gave an account of stress and anger after the knee injury, which brought his ambitions in relation to rugby league to an end, but no symptoms of a diagnosable disorder at that point. 56As his drug use during 2005 escalated, however, he began experiencing psychotic symptoms, particularly paranoia. While his memory was somewhat vague, his account to Ms Durkin was that it was while away at 'Schoolies' on the Gold Coast in late 2005, that his friends began noticing unusual behaviour, which he had been attempting to hide. This was consistent with the evidence given by his mother. He began developing persecutory delusions, which became much more prevalent during 2006. 57By comparison to these accounts, Todd Carney earlier gave an account to Dr Nielssen, that he had been paranoid at the time of this offence, in January 2006. That was an account which he later refuted when he spoke to Ms Durkin in 2012, telling her that it was Mr Reid's death which resulted in the real deterioration of his functioning. He could not then recall experiencing symptoms of psychosis until after Mr Reid's death. 58Ms Durkin noted his inconsistent accounts about these timelines and concluded that his psychological state was unstable in January 2006. She noted that in 2010, Dr Nielssen was of the view that he was then psychotic and experiencing his first episode of psychosis, but on Todd Carney's account to her, she came to the view that he was then vulnerable to stress and struggling to maintain connection with reality at times, then being in the early stages of psychosis. In her opinion, this would have impacted his judgment and self regulation at the time of this offence. 59After Mr Reid's death his substance abuse increased and his psychosis worsened, to the point where he believed that his family and his employer were out to get him, or kill him. He had pursued studies at TAFE and had obtained a plumbing apprenticeship, but that employment ceased when his delusions increased and he was hospitalised. His delusional thoughts were of a conspiracy against him, evidenced by arbitrary events. His paranoia became so significant that he believed his family was trying to poison him and he moved to live with his grandparents on the Central Coast. He obtained a second apprenticeship, but abandoned that employment when the delusions also encompassed that employer. 60On his evidence, eventually he reached such a delusional state that he decided to kill himself. It was in December 2006 that he acquired a firearm and ammunition and drove to Sydney. He was speeding and when police sought to pull him over, a chase ensued, with the result that when finally pulled over, he fired at police. He was arrested and later convicted of the offences which he then committed. In prison he attacked another inmate while being transferred between correctional centres, believing that the other inmate had a knife and was going to kill him. 61He was eventually detained in the psychiatric ward at Long Bay prison for some 3 months and treated there with anti-psychotic medication. His suicidal ideation lasted for some time and he suffered depressed mood, but the medication succeeded to the point that his psychotic symptoms ceased. In 2010, Dr Nielssen assessed that Todd Carney's schizophrenia was in remission and in 2012, Ms Durkin agreed with that assessment. 62In 2007, on the account then given, when Todd Carney made no mention of his conduct towards Mr Reid, Dr Nielssen was of the view that his December 2006 offending was at the time he was experiencing his first psychosis. Dr Nielssen was then of the view that he had a defence of mental illness available in relation to the offences he committed in December 2006, but understood that it was not to be relied on, other than as to sentence. 63In 2010, on the different account then given, Dr Nielssen was of the view that it was in January 2006 that Todd Carney was in the first episode of schizophrenia. That account was different in relevant respects to his earlier account and his later accounts. On that history Dr Nielssen was of the view that his killing of Mr Reid in January 2006, was associated with his then emerging mental illness, but that the schizophrenia and substance abuse disorder from which Todd Carney suffered was in remission in 2010. He had received effective treatment, with the result that in Dr Nielssen's opinion, he then carried a low risk of further similar offences and had good prospects of rehabilitation. 64Dr Nielssen referred to studies which showed that there was a growing body of evidence of greatly increased risk of homicide and serious violence to self and others during a first episode of psychosis, prior to initial treatment, with a peak of violent offending just prior to first contact with mental health services. 65In the account he gave Ms Durkin in 2012, however, Todd Carney disagreed with what Dr Nielssen understood in his 2010 report, as to when his psychosis first emerged and gave a different history. It was on this basis that in 2012, Ms Durkin was of the view that Todd Carney's psychological stability was compromised from late 2005. This initially abated when he was not under the influence of substances, but still, he was psychologically fragile when he killed Mr Reid. His condition deteriorated significantly afterwards. By late 2006, his psychotic symptoms did not abate when the effects of substances wore off. 66Ms Durkin was of the opinion that Todd Carney could not be considered to be experiencing a substance induced psychosis when he killed Mr Reid, but his symptoms and conduct suggested that he was suffering from schizophrenia when he offended further in December 2006. That condition had been triggered by his drug use, but it had stabilised with treatment in custody. In the result by 2012 he had not experienced symptoms of schizophrenia for some 5 years, with the result that his risk of violent re-offending had been lowered. 67It seems to me on all of the evidence that this view must be accepted. It is consistent with the evidence Todd Carney gave both at trial and on sentencing. That evidence did not leave open the conclusion that Dr Nielssen's 2010 opinion, formed on quite a different history, could be accepted. 68As to his prognosis, Ms Durkin was of the opinion that given Todd Carney's family support; limited criminal history, when his mental health was compromised; his positive and pro-social relationships maintained through most of his life; his cessation of substance abuse; lack of custodial misconduct; and that he did not appear to possess anti-social attitudes, his risk factors for further offending were few. At the sentencing hearing Mrs Carney gave evidence supportive of these views. 69Ms Durkin recommended however, that Todd Carney's mental health continue to be monitored, because that was his most significant factor for recidivism and that he should engage in drug and alcohol programmes, such as the SMART programme, as well as study or training, which would facilitate his ultimate transition back into the community, including programs to prevent relapse. She observed that his compliance with medication would require long term monitoring. 70In the face of all of this evidence, I am of the view that so long as Todd Carney maintains his abstinence from drugs and alcohol and remains compliant with the anti-psychotic medication which has resulted in his mental illness going into remission, he is unlikely to re-offend and has good prospects of rehabilitation. He was aged 18 years at the time he killed Mr Reid and now, at 25, with the treatment he has received and the term of imprisonment which he has and is to serve, he is clearly motivated to ensure that he does not offend again, once released on parole. It is also significant that on his mother's evidence, he has his family's support in achieving his intentions. 71While he did not receive the support which he required when he was succumbing to his drug induced mental illness over the course of 2006, both she and his father have undertaken training designed to ensure that they have the skills necessary to provide him with such support in the future. These are all matters which must be taken into account in the sentence which is imposed. 72The risk is, of course, that despite all of this, he fails to adhere to his current intentions, when released into an environment which is not structured in the way which has been of obvious benefit to him and where he has access to acquaintances and social circumstances he has identified as having been of considerable negative influence on him in the past. 73This is to be considered in the context of the matters dealt with in the presentence report, which confirmed that Todd Carney had been urgently scheduled in January 2007, due to concerns about his safety and that he had incurred three institutional misconduct offences, two for fighting, the most recent of which had occurred in May 2011. His urine samples had not detected unprescribed medication or illicit substances, although one was found to be a diluted sample. He had a history of employment and study and was considered to be a compliant inmate. 74He is considered to be suitable for a medium to high level of intervention, with the need to address anger management and drug and alcohol issues, with a focus on relapse prevention and referral to local community mental health for monitoring. 75I also note that he has been assessed as suitable for a community service order under s 86 of the Act, but I am satisfied that such an order may not be made in this case. Given the gravity of this offending, only a custodial sentence is appropriate, but it is one which must reflect a conclusion that subject to him maintaining his treatment and not abusing drugs and alcohol, there are reasons for considering that it is likely that he will not re-offend and has good prospects of rehabilitation.

The sentence structure 76In the result I am of the view that while Todd Carney acted in self defence when Mr Reid took up the pole which he had concealed and attempted to hit him with it, the evidence clearly establishes that repeatedly hitting him with the pole as he did, after he had punched Mr Reid to the head and taken the pole from him, was a grossly disproportionate response to the threat which Mr Reid posed to Todd Carney and the others present with him. The evidence establishes that Mr Reid was so seriously injured when he was repeatedly struck, not only while he was standing, but also when he had fallen onto the bed, that he later died of those injuries. Todd Carney engaged in those actions despite the assistance which Luke Cambey gave him, at a time when the juvenile who was also with them was armed with a taser, as Todd Carney became well aware when it was dropped onto the floor. 77All of this may not be overlooked. The subjective circumstances of an offender may not divert the Court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and punishing those who take it (see R v MD [2005] NSWCCA 342; (2005) 156 A Crim R 372 at [65]). 78In this case, given Todd Carney's own accounts, it may not be concluded that his capacity to control his actions on the morning of 29 January 2006 was substantially impaired by drugs or alcohol or mental illness. Nevertheless, it must be accepted that he was then in a fragile mental state, given the mental illness which he was then clearly developing, as the result of his prior serious drug abuse. This was a brutal killing, but one which was clearly to some extent the result of Todd Carney's deteriorating mental state. 79In the result under s 44(2) of the Crimes (Sentencing Procedure) Act, I find special circumstances which warrant a departure from the usual non-parole period. The non-parole period is the minimum term that an offender must serve in custody. It must properly reflect all of the elements of punishment, having in mind the objective seriousness of the crime, the offender's subjective circumstances and considerations of rehabilitation. 80Setting a somewhat lower non-parole period than the norm in Todd Carney's case, reflects the need to ensure that both his prior significant drug abuse and the substantial problems which this young man has suffered from the mental illness to which he succumbed after he committed this offence, which is now in remission as the result of treatment received in custody, continue to be addressed after his release. 81The likelihood of him offending again in the future will clearly be reduced if he remains drug abstinent and treatment compliant after release. Having in mind his inconsistent accounts about his past drug use and his slowly reached acceptance of his responsibility for Mr Reid's death, it is desirable that he be subject to a period of extended supervision once released on parole. That will help ensure that his illness remains in remission, that the successful steps he has taken towards rehabilitation in custody then continue and that he is not involved in any further offending, but successfully pursues the life he explained in evidence he wishes to pursue in the future.

Aggravating factors 82In Luke Cambey's case aggravating factors which must be taken into account are that his offence was committed while he was in the company of two others, (see s 21A(2)(e)), and that it was committed in Mr Reid's home, where they had gone to buy drugs (see s 21A(2)(eb)).

Mitigating matters 83A relevant mitigating matter in Luke Cambey's case is that this was not a planned killing and there was a degree of provocation, although that is less relevant in his case (s 21A(3)(b) and (c)). At the time of the offence he did not have a history of prior offending which is a factor to be considered in his favour (s 21A(3)(e)), but he has given a history of substantial illicit drug use and now has a history of other offending, including for assault. That evidence does not permit the conclusion that he is otherwise of good character (s 21A(3)(f)). 84As to the matters raised by the factors specified in s 21A(3)(g), (h) and (i) of the Act, necessary to be considered are a September 2012 psychological assessment report from Dr Emma Collins, as well as a presentence report and the evidence which Luke Cambey gave at trial and on sentence. 85Luke Cambey also gave a positive history of his upbringing, confirmed by evidence given on sentencing by his mother. He, too, clearly has his family's support, including in relation to pursuing employment potentially available to him in Queensland, where his family is prepared to relocate in order to reside with him there, to support him. 86Despite this background, Luke Cambey has a history of behavioural problems at school, with suspensions for fighting and cessation of schooling in year 9, after fighting at a new school, after the family moved to Western Australia. After leaving school he developed a regrettable history of offending and responding poorly to sentences then imposed upon him, which were designed to prevent repeat offending. They did not succeed, consistently with his mother's evidence as to his immaturity; evidence which accorded with evidence which Luke Cambey gave himself. 87Consistently with this Luke Cambey also has a regrettably erratic history of disrupted education, employment, engagement with negative peers and substance abuse. On his account he began smoking cannabis a couple, of times a week when aged 15, increasing to smoking over most of the week, up until his arrest, together with ecstasy use from age 17, on a fortnightly basis, escalating to a couple of pills over a typical weekend. He also developed problematic gambling, involving a few hundred dollars on average at the races, the TAB and the casino. He described a negative group of so called friends, who called on him for help when they encountered trouble, using him like a 'bodyguard', which resulted in his involvement in altercations. Unlike his cousin, Luke Cambey was fortunate to have had no history of mental illness. His most significant problem, on his account, was being used by others as a bodyguard. 88That account, it seems to me, like some aspects of his evidence in these proceedings, reflects still a failure to appreciate that he is an adult who must accept responsibility for his own bad decisions and actions and where they have led him. 89Luke Cambey's evidence at the trial was that he was not involved in the assault on Mr Reid. The jury clearly did not accept that account, nor can I accept it, for reasons which I have explained. On Dr Collins' report he still asserts that he is innocent of the assault that led to Mr Reid's death. He gave her an account of Mr Reid becoming defensive and hostile when the taser was dropped and Todd Carney retaliating against Mr Reid's attack, in self defence, but Dr Collins' report makes no reference to any account of what he did do. 90Like at the sentence hearing, he also told Dr Collins of his sadness for Mr Reid and his family. That does not evidence that Luke Cambey is remorseful for his offending. Regret at Mr Reid's death, does not equate with an acceptance of his involvement in causing that death, or his criminal responsibility for his conduct. 91Account must also be taken, however, of his earlier offer to plead guilty to manslaughter after the first trial. There was no evidence as to the circumstances of that offer and its refusal. Its rejection resulted in the second joint trial being conducted, where both offenders defended the charges of murder and manslaughter, so that no utilitarian savings resulted from the offer to plea. A plea is usually accepted as evidencing remorse or contrition, but in this case, even after conviction, Luke Cambey has given an account which is not consistent with an acceptance of his offending. Nevertheless, in my view the offer must be considered as reflecting at least some willingness to facilitate the course of justice. In the result, I take the view that account of the offer must be taken in fixing the sentence, by way of a small discount. In the circumstances I do not propose to separately identify the amount of that discount. 92Also to be considered in Luke Cambey's favour is that Dr Collins considered his risk of violent recidivism overall to be moderate to moderate-low. This reflected her view that he was not stable when last in the community; that there were substance abuse and gambling issues, as well as he having acted as a bodyguard for friends, despite the positive influence he had received from a particular relationship. 93She considered that he requires treatment to help improve his ability to avoid negative influences in the community, in order to reduce his recidivism risk in future. He was considered to be potentially eligible for the Violent Offenders Therapeutic program, for which he required assessment and to be suitable for substance abuse and gambling counselling. In Dr Collins' opinion, a longer period of parole, to monitor his progress and motivation to be abstinent and remain away from anti-social peers would be valuable. 94Also to be considered is Luke Cambey's evidence that he had matured in custody, where he had tried to avoid problems and to achieve qualifications which he had not pursued after he left school. His mother gave evidence which confirmed that growing maturity. He has clearly achieved some success in his approach to custody, although he has some distance to go. 95His presentence report gave a history of only one failed urine analysis in custody, with cannabis detected, and no history of significant management problems in custody, although there had been a number of poor work reports, on Luke Cambey's account, because of a difficult relationship with a particular officer, not of his making. It is certainly to his credit that he has completed a certificate 2 in furniture making and wishes to pursue further studies in that field, his first successful training post school. The report also notes an acceptance that his prior cannabis use had been a problem, with other sources suggesting that it had affected his motivation to find employment. He had commenced but failed to complete an alcohol and drug programme when earlier supervised in the community. 96In the past, Luke Cambey has been assessed as unsuitable for a community service order, because of prior poor response to such orders. While he had previously been assessed as not suitable for further supervision, he has recently been reassessed. Now he would be directed to engage in counselling for drug abuse and his engagement with negative influences would be monitored. 97On his evidence at the sentencing hearing, as well as that of his mother, Luke Cambey has matured while in custody, as reflected by his avoidance of drug taking, the successful completion of available trade training and avoidance of problems. His evidence was that while in custody he has kept to himself. His background of drug taking and gambling, the latter activity which he enjoys and intends to maintain, albeit he said under better control, when considered together with his criminal history, reflective of his past negative associations and as he put it, acting as a bodyguard, which is consistent, I note, with the evidence of the role which he took in the offence for which he is now being sentenced, all explain the guarded conclusions reached by those who have assessed him, as to his risk of further offending in the future. 98In the result, it must be concluded that there are reasons for having reservations as to the likelihood that Luke Cambey will not re-offend and as to his prospects of rehabilitation. He has demonstrated in custody that he has both the means and motivation for achieving the goals he said in his evidence he now has. Achieving them requires ongoing effort on his part, as well as an acceptance, as I have explained, of his own responsibility for his own actions.

The sentence structure 99These are all matters which must be taken into account on sentencing. Some of them cannot be given much weight in reducing the sentence otherwise to be imposed upon Luke Cambey for the serious offence he committed, but as I have said there will be a small discount for his willingness to facilitate the course of justice by the offer of a plea. 100His involvement in this brutal killing must nevertheless be properly reflected in the sentence imposed. The assistance which he gave Todd Carney, which contributed to Mr Reid's needless death, as I have explained, must properly be reflected in the sentence which is imposed upon him. 101Luke Cambey's involvement in Mr Reid's death was such that his was certainly the less serious offence, but the evidence does not permit the conclusion that it was offending at the lowest end of the scale of such offences, as was urged in his case. His role in taking a human life must also be punished by a sentence which properly reflects all of the matters which must in his case be weighed in the balance. 102Given all of his circumstances, I am also of the view in Luke Cambey's case, however, that special circumstances should be found, with the result some departure from the usual period fixed under s 44 of the Act for supervision on parole. 103In the case of this young man, that will ensure that he receives the ongoing supervision which he plainly requires when released, for a longer than usual period, in order to ensure that his intention to avoid future drug abuse and further offending, is fulfilled. That will in his case also reduce the likelihood of him falling back into the patterns of behaviour he now recognises he has to alter in the future, so that he can have the successful life which he hopes the studies he has pursued in custody have prepared him for.

104The parties made some limited reference to other cases and sentencing statistics, which are not of substantial assistance in determining these sentences. As the parties accepted, manslaughter is an offence where it is particularly difficult to draw comparisons, even with cases which have been decided on the basis of excessive self defence. 105The sentencing statistics ranged from non-parole periods as high as 12 years to as low as 2 years. Reference was made, for example, to R v Stephens [2008] NSWSC 1429 where a non-parole period of 7 years and a balance of term of 3 years was imposed, where the manslaughter there in question involved the offender's use of a knife in a fight initiated by the victim, he being unarmed. That sentence was not disturbed on appeal (see Stephens v R [2009] NSWCCA 240). 106The sentencing discretion which I must exercise in these cases, must have proper regard to the evidence led by the parties as to the relevant matters which here arise for consideration in each case. Such offences differ greatly in their objective seriousness, as well as the relevant subjective matters which must be taken into account when sentences are passed on other offenders. That is why the other cases referred to, were not of much assistance.

Deterrence 107Deterrence must also feature in the sentences imposed on both offenders, although in the case of Todd Carney, I take the view that specific deterrence has a slightly lesser role to play than it otherwise would, given the mental illness to which he later succumbed and which is now in remission. Given that the evidence does not establish that he was suffering from that mental illness at the time of Mr Reid's death, that he is now in remission and that his risk of re-offending depends on him both abstaining from substance abuse and remaining compliant with his medication in future, in my view specific deterrence must still have some role to play. 108General deterrence must also play a role in the sentences imposed on both offenders and specific deterrence certainly has a role to play in Luke Cambey's sentence. That is because the evidence in his case shows that he still does not have complete insight into his offending and that his risk of re-offending is not small. I have taken note of the evidence of his growing maturity and recognition of his need to alter his behaviour, if he is to have a life and future which does not bring him before the criminal justice system again. But for that, specific deterrence would have played an even greater role in the sentence imposed upon him.

Parity 109In sentencing the two co-offenders the principle of parity must also be considered. That requires that like offenders should be treated in a like manner (see Green v The Queen [2011] HCA 49; (2011) 244 CLR 462). Justice must be even-handed, so that if the criminality of offenders' involvement in an offence is not different, then the sentences imposed upon them should reflect that. The individual circumstances of the offenders must also, however be reflected in the sentences imposed as I have discussed (see Lowe v R [1984] HCA 46; (1984) 154 CLR 606). 110In this case, as I have explained, the offenders' involvement in Mr Reid's manslaughter was different, with the result that the greater criminality of Todd Carney's offending must be reflected in the sentences which are imposed. 111Having weighed all of the matters I have mentioned, I have concluded that Todd Carney must serve a non-parole period of 6 years, with a balance of term of 3 years, a total sentence of 9 years and that Luke Cambey must serve a non-parole period of 5 years, 2 months, with a balance of term of 2 years, 6 months, a total sentence of 7 years, 8 months.

Custody 112There was no dispute that account must be taken of the time that the offenders have each been in custody, referable to these offences. In the case of Todd Carney that is 25 June 2010 and in the case of Luke Cambey 16 September 2008.

The victim impact statements 113Over Todd Carney's objections, I received the victim impact statements provided by members of Mr Reid's family. The objection was difficult to understand. In considering those statements, as I indicated at the time of their receipt, I have adhered to the well settled approach, which a sentencing judge must adopt, when receiving victim impact statements. 114In R v Tzanis [2005] NSWCCA 274, five members of the Court of Criminal Appeal considered the approach established in R v Previtera (1997) 94 A Crim R 76, which has since been followed. They concluded that approach must be adhered to. That means that unsworn, untested victim impact statements may not be taken into account in sentencing an offender, for reasons which were explained at length by Hunt CJ at CL in 1997 and which I will not further explain here. I am sure that they have already been explained to Mr Reid's family, when they provided their statements for the first trial. 115I will not attempt to summarise what has been said by Mr Reid's mother, his brothers and sisters, about him, the awful circumstances of his death, their concern about his suffering and their explanation of what they and other members of his family have suffered, given what was inflicted upon him and what his death has deprived his family of. 116It should also be said that a regrettably protracted legal process such as has resulted in this case, can certainly be difficult for people such as the members of Mr Reid's family to understand and, on occasions, to accept. That is perhaps particularly so in a case such as this, where one jury has convicted the offenders of murder and another has convicted them of manslaughter, after a successful appeal, which has had the result that in a second trial, the offenders have taken the opportunity to run quite a different case to that which they advanced at the first trial. 117That is not something which goes without notice. I thus particularly extend my sympathies to Mr Reid's family. I hope that this sentencing exercise will now give them some peace of mind. It should be said that our society has developed a criminal justice system which tries to ensure that justice is achieved in every case, but not at the risk of inflicting injustice on top of terrible tragedy. That the operation of this system may have been the cause of additional pain for Mr Reid's family is both here acknowledged and very much regretted.

Todd Carney 118For the manslaughter of Derrick Reid of which you have been convicted, you are sentenced to a non-parole period of imprisonment of 6 years, commencing on 25 June 2010 and expiring on 24 June 2016 and a balance of the term of 3 years, expiring on 24 June 2019. 119The earliest date on which you will be eligible for release on parole will be 24 June 2016.

Luke Cambey 120For the manslaughter of Derrick Reid of which you have been convicted, I sentence you to a non-parole period of imprisonment of 5 years, 2 months commencing on 16 September 2008 and expiring on 15 November 2013 and a balance of term of 2 years, 6 months, expiring on 15 May 2016. 121The earliest date on which you will be eligible for release on parole will be 15 November 2013.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2012

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