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[2014] NSWSC 1615
Supreme Court of NSW
2014-11-14
Hulme J, Ms J
Original judgment source is linked above.
Judgment 1R A HULME J: Douglas Dennis and Luke Elwood were arraigned on 11 March 2014, along with Ethan McKellar and Bevan McKellar, on an indictment charging that on 1 May 2011 at Ashmont, a suburb of Wagga Wagga, they murdered Mr G, wounded his son, JG, with intent to cause him grievous bodily harm, and assaulted Mr G with intent to rob him whilst armed with an offensive weapon. (I cannot mention the full names of the victims because JG was a juvenile at the time: s 15A Children (Criminal Proceedings) Act 1987 (NSW)). 2On 9 April 2014 the jury returned the following verdicts: Ethan McKellar: Guilty of murder, wounding with intent, armed assault with intent to rob. Bevan McKellar: Guilty of murder, wounding with intent, armed assault with intent to rob. Douglas Dennis: Not guilty of murder but guilty of manslaughter, not guilty of wounding with intent and of armed assault with intent to rob. Luke Elwood: Not guilty of murder but guilty of manslaughter, not guilty of wounding with intent, and guilty of armed assault with intent to rob. 3I have already sentenced Ethan and Bevan McKellar: R v Ethan McKellar; R v Bevan McKellar [2014] NSWSC 1243. I deferred the sentencing of Messrs Dennis and Elwood at the request of their counsel until after I had sentenced the other two upon a reassurance that it was necessary to do so. I am now aware of what gave rise to this. The delay is nonetheless regrettable.
Facts 4Mr G was a 55-year-old man who lived in Ashmont with his son, JG, who was aged 17. Mr G was a user of marijuana and he also sold it in small quantities. JG gave evidence that people would come to the front door and purchase "a stick" which was marijuana packed in foil for which they would pay $20. Bevan McKellar was a customer. 5The four offenders attended the home of Mr G and JG at about 6.10pm on 1 May 2011. They had travelled together in a car driven by Douglas Dennis who parked the car some distance away. The Crown case was that the four went there with an intention to rob Mr G. It was the case for each of the offenders that they were simply going there to purchase some marijuana. 6I am satisfied beyond reasonable doubt that two weapons were brought with the men; a machete and a knife. There is no question that Ethan McKellar had the knife. However, there is no evidence that either of the present offenders were aware of this before they arrived at the house. I am satisfied that Luke Elwood was aware that Ethan McKellar had the machete. The Crown contended that Mr Elwood said in his police interview he saw Ethan McKellar with a knife after they had arrived at the house but my understanding of his account is that it was a machete about half a metre long that he saw. 7It has been submitted by Ms Manuell SC, and I am prepared to accept, that the jury's acquittal of Douglas Dennis for armed assault with intent to rob means that it was not established that he was a party to any plan to rob and it followed that he was not aware of an offensive weapon being brought to the scene. 8Once they arrived at the address, Bevan McKellar and Douglas Dennis went to the front door while the other two offenders remained in the near vicinity. There was a knock on the door and when Mr G answered it, the offender Dennis asked him for a "stick". Bevan McKellar punched Mr G to the ground. JG emerged from his bedroom and saw Bevan McKellar on the threshold before the latter turned and ran. Mr G got up and pursued him and JG followed. 9JG saw his father trip and fall on the lawn near the unfenced border of the neighbouring property. He saw Bevan McKellar knee his father "in the body area". JG ran up and punched Bevan to the face and thereby distracted his attention from Mr G. JG then saw Ethan McKellar produce a knife. There was a short pursuit. Bevan McKellar shouted to Ethan, "Kill the cunt". JG was then stabbed twice by Ethan McKellar. Both Douglas Dennis and Luke Elwood were acquitted by the jury in relation to the stabbing of JG and so the criminality of their involvement in the incident must be assessed with the exclusion of this aspect. 10After the stabbing of JG, Bevan and Ethan McKellar returned their attention to Mr G who by this stage was on the ground near the front of the adjoining property. I infer that the present offenders, Messrs Dennis and Elwood, had some physical interaction with him that resulted in his movement to that location. There is no conceivable reason for him to have gone to that location of his own volition. 11The four men surrounded Mr G and he was on his hands and knees. The witness descriptions of what occurred are not entirely reliable given the distance from where they were observing, the speed of events, and the limited lighting conditions. However, I am satisfied beyond reasonable doubt that members of the group were grabbing at Mr G and kicking him. I am unable to conclude beyond reasonable doubt that one, or the other, of the present offenders were doing this. But they were at least parties to the assault by virtue of their presence, surrounding Mr G as he was on the ground. The assault concluded with Ethan McKellar stabbing Mr G four times. JG saw his father being stabbed in the back and he yelled out, "Get off him". The men then ran away. 12JG made his way back into the house and called triple 0. By that stage, his father had made his way back inside the house and was sitting in the kitchen bleeding and obviously in a serious condition. Neighbours came to assist and the ambulance and police arrived shortly afterwards. Both Mr G and JG were taken to hospital. 13Dr Cumberlege gave evidence of the ambulance arriving at the Wagga Wagga Base Hospital at 6.44pm. He examined Mr G and found no sign of life. His preliminary examination indicated that the most likely cause of death was a stab wound to the chest. Dr Stephen Wills, forensic pathologist, conducted an autopsy on 3 May 2011. He described four sharp force injuries. The principal and fatal injury was described as being a large stab wound to the left side of the back of the chest, penetrating through two ribs and into the upper lobe of the left lung. There was a further stab wound in the middle of the back penetrating through a rib and entering the chest cavity but not injuring the underlying lung. A further shallow puncture type mark was found on the front on the left side of the chest and there was also a shallow incised wound on the under surface of the front of the chin. Dr Wills also described various areas of bruising and abrasions to other parts of the body. 14Dr Cumberlege was involved in the treatment of JG. He said there were two stabs wounds: one was to the right armpit which was not actively bleeding. The other was to the back of the chest. Dr Cumberlege said that both wounds could have been fatal if the patient did not receive emergency treatment, the more so the wound to the back of the chest. Urgent surgery was carried out to repair the wounds. 15The jury found Luke Elwood guilty of both manslaughter and armed assault with intent to rob. This means that he was a party to a joint enterprise to rob Mr G. It also means that he foresaw the possibility of some harm, short of grievous bodily harm, being inflicted. 16The jury found Doulas Dennis guilty of only manslaughter. This means that he was a party to a joint enterprise to assault Mr G with foresight of the possibility of harm, short of grievous bodily harm, being inflicted. 17The Crimes Act 1900 (NSW) prescribes maximum penalties of imprisonment for 25 years for manslaughter and 20 years for armed assault with intent to rob.
Objective seriousness of the offences Armed assault with intent to rob (Luke Elwood only) 18I accept that the jury must have been satisfied beyond reasonable doubt that Luke Elwood was aware of the presence of a weapon; that Mr G was assaulted at the front door of his home; and that there was a joint purpose shared by Luke Elwood with the two McKellars to rob Mr G of what at most would have been a modest quantity of cannabis. 19Generally speaking (that is without reference to individual culpability) this offence is in the middle of the range of objective seriousness for such an offence. Four men attended the victim's home where three of them were found by the jury to have intended a robbery. The jury must have been satisfied that those three were aware of the possession by one or the other of them of an offensive weapon. Their intention was to steal the victim's property. That there was a multiplicity of offenders and the location was the victim's home serve to elevate the seriousness of the offence. It was an offence carried out with force of numbers. The roles of Ethan and Bevan McKellar were greater than that of Luke Elwood. Ethan McKellar came to the scene with a knife and a machete. Bevan McKellar initiated the physical assault upon Mr G. The role of Luke Elwood is significantly less. The impression I have gained from all of the subjective material I have seen is that he was likely to have been more a follower and very much a subordinate participant. Manslaughter (both Dennis and Elwood) 20I accepted in sentencing the McKellars that by the time of the events out the front of the neighbour's property, the initial intention to rob Mr G had evaporated. I accepted that what there occurred was more an expression of the offenders' (i.e. the McKellars') displeasure at the resistance that had been shown by Mr G and his son. The stabbing of Mr G was not something that was planned but something that occurred relatively quickly. 21I did not accept a suggestion that this was in the nature of "a robbery gone wrong". I accepted the Crown Prosecutor's submission that once a plan to rob became futile, the offenders had the option of leaving; but they remained and engaged in the pointless assault of Mr G. Luke Elwood engaged in this with prior knowledge that a weapon (a machete) had been brought to the scene. Both Dennis and Elwood foresaw the possibility of bodily harm being inflicted. 22The starting point in sentencing for the offence of manslaughter is recognition that it involves the unlawful taking of a life. Features that render this offence more serious than it otherwise might be include that there were multiple assailants. It was quite cowardly for four relatively young men to be involved in an assault upon an older man who was vulnerable because he was on the ground and surrounded by them. It is aggravated by having occurred within the environs of Mr G's home. It involved the use of a weapon. It occurred in the presence of JG, Mr G's son. A matter pointing in the opposite direction is that the events happened quite quickly. 23I assess the objective seriousness of the manslaughter of Mr G, in a general sense, as being in the middle of the range but in terms of physical participation (that is, putting aside the murder/manslaughter distinction) the role of both Messrs Elwood and Dennis was significantly less than that of the McKellars.
Impact upon the deceased's family 24Mr G's daughter and JG provided the Court with victim impact statements that were read aloud in court. They provide very moving accounts of the profound anguish and grief they have suffered. The actions of the offenders have caused permanent and severe psychological trauma to entirely innocent people and have affected their lives in so many ways. Once again, I convey my sincere condolences.
The personal circumstances of Douglas Dennis 25Douglas Dennis was born in Bourke in 1984. He is one of seven children in a family of Aboriginal heritage. His upbringing was stable and he had positive familial relationships. His parents appear to have been law-abiding people who provided as best they could for their children. 26He was educated to Year 11. He told Dr Andrew Robertson, psychiatrist, that he attended school regularly and did not have any problems there. He described a shortage of employment opportunities in Bourke but gave a history of helping to train racehorses, working at an Aboriginal cooperative, and doing seasonal work such as cotton chipping and fruit picking. He was receiving a New Start allowance prior to going into custody following the jury's verdict and had been doing some casual work through an employment agency. 27Mr Dennis began binge drinking and smoking illicit drugs at around the age of 17. He used cannabis daily and consumed a carton of beer on a monthly basis. He told Dr Robertson that he had had some counselling and had attended a few AA meetings in relation to his alcohol problem but they had been of no benefit. He said that on the afternoon of the offence, he and his co-offenders had been drinking and had consumed two cartons of beer. 28Mr Dennis has been in a relationship since the age of 18. He and his partner, Corinne Burford, have seven children ranging in age from 10 months to 14 years. The eldest is not his natural daughter but he has brought her up as his own. Ms Burford provided a testimonial in which she described their relationship as having been turbulent at times, marred by incidents of domestic violence that occurred when Mr Dennis had become aggressive under the influence of alcohol and cannabis. However, she described the relationship as having improved from the beginning of 2010. She gave up smoking cannabis. She considered that they had both matured. He reduced his consumption of both alcohol and drugs. There had been no incidents of domestic violence since. 29Mr Dennis, Ms Burford and the children moved to Wagga Wagga at the end of 2010. She had family there and they considered it would provide a better environment to bring up the children. 30He has a criminal history. Aside from driving and minor matters which are irrelevant, he has been convicted on multiple occasions between 2003 and 2009 for offences of assault, intimidation, assault occasioning actual bodily harm and contravening apprehended domestic violence orders. The penalties imposed have included fines, good behaviour bonds, suspended sentences of imprisonment and full-time imprisonment. He was placed on an 18-month good behaviour bond on 9 December 2009. The fact that he was subject to that bond at the time of commission of the present offence is an aggravating factor. 31Ordinarily, a criminal history of the type that Mr Dennis has acquired would mean that there is a need for significant emphasis to be given to retribution, deterrence and protection of society in the assessment of sentence. However, given the events which I am about to describe concerning Mr Dennis' life in recent years, those aspects are of much reduced significance. 32Mr Dennis was in custody, bail refused, from 3 May 2011 until 31 August 2012 and then since the jury's verdict on 9 April 2014. To give credit for this pre-sentence custody his sentence will date from 8 December 2012. 33The history provided to Dr Robertson was to the effect that there had been a marked improvement in Mr Dennis' attitude since he was released on 31 August 2012. He had not been using drugs and had substantially moderated his alcohol intake. He did a building course and subsequently worked on building sites. Ms Burford's testimonial confirms this remarkable turnaround in the offender's life. She spoke of his involvement in sporting activities and his strong commitment to the children. Testimonials from a number of other people who have been involved in the offender's life further describe this impressive development. 34A consistent theme that emerges from the testimonials (there were 9) is that the general environment of Bourke is one that is marked by significant social degradation and deprivation, particularly for its indigenous citizens. Employment opportunities are very limited; drug and alcohol abuse is rife; there is less enthusiasm for completion of secondary education; violence is often witnessed in public places; and domestic violence and child neglect is quite common. Mr Dennis was shielded from much of this within his family home but undoubtedly witnessed such things within the town. For a time he succumbed to the excessive use of alcohol and cannabis which led to aggression and, in turn, domestic violence. However, it seems he has put that behind him and he has become a role model within the Bourke community as a parent and as an advocate against domestic violence. 35Dr Robertson found no sign of any psychiatric disorder and assessed Mr Dennis' intelligence as "in the average range". He considered that prior to his incarceration on 4 May 2011 he was suffering from alcohol dependency. His criminal history was heavily (or perhaps solely) related to this. Dr Robertson asked him about the marked change in attitude and behaviour since being released on 31 August 2012 and he agreed that he had "hit rock bottom" when he was arrested and charged with murder. Another way of looking at it, according to the doctor, was that Mr Dennis had undergone a process of delayed maturation or delayed development of a conscience. He felt quite optimistic for Mr Dennis' prognosis; he said, "I think that it is perfectly reasonable to expect the improvement in his behaviour to continue". 36A Pre-Sentence Report records Mr Dennis speaking about the impact that the offence had had upon his own family. The author writes that he did not mention the impact on the deceased's family until asked, and then stated, "I think about him every day". He told Dr Robertson that he was sad that the man had been killed and he thinks about it all the time. One of the authors of the testimonials, Mr Stephen Howarth, said that Mr Dennis had spoken to him on several occasions about feeling significant grief and sadness and how he thought often about the deceased's family. On balance, I accept that he is remorseful. 37It seems that Mr Dennis' prospects of rehabilitation are quite reasonable. If he maintains the path he is on now, his days of frequent contact with the criminal justice system may well be past. 38Another issue can be addressed briefly. It concerns some oral evidence that was given and some material that was tendered today. It has led me to conclude that Mr Dennis has experienced a significant level of anxiety and stress through being in held in custody and it is something that will endure whilst ever he remains in custody.
The personal circumstances of Luke Elwood 39Luke Elwood was born in Bourke in 1990. He is the third of six children in a family of Aboriginal heritage. He shared a close bond with his parents. There was no domestic violence, substance abuse or mistreatment. His law-abiding parents have been supportive of him through these court proceedings. He shares a positive relationship with his siblings. 40Mr Elwood's mother moved with some of the children to Wagga Wagga when he was 13 years old. She wanted to provide the children with a better lifestyle and be closer to extended family. He remained in Bourke with his father and one of his sisters. They kept in contact and visited on occasions. His mother returned to Bourke in recent times. 41For a time when he was in his mid-teens, Mr Elwood lived in Orange with members of his extended family. He got along well with both of his cousins, regarding them like a brother and a sister. Sadly, they suffered from illnesses and died in 2008 and 2012; a matter which caused him significant grief. 42Mr Elwood was educated to part way through Year 9 but left school due to general disinterest. He attended Bourke TAFE where he completed a course in "Land and Management". His subsequent employment history is limited. He has done some seasonal fruit picking but has otherwise been unemployed, describing himself as "young and lazy". In recent times, he was motivated to work but bail conditions made that difficult. He has hopes to work as a shearer once the current matter is resolved. 43Alcohol consumption commenced at about age 15 but has never been regular; more in the nature of binge drinking. Cannabis use commenced at about the same time and has been more problematic with daily use. When he was released on bail on 31 August 2012 he abstained for a short time but then resumed regular use. Also during the period he was on bail he was using Oxycontin regularly and to excess. He said that his motive was to "get stoned and block everyone out". 44Mr Elwood had no prior criminal history. This is somewhat surprising for a young man living in Bourke, with all that he would have been exposed to. It seems to be, at least in part, the product of the good upbringing provided by his parents, particularly his father. This aspect of his case attracts a significant element of leniency. 45Ms Lynn Orcher, an aunt, gave evidence for Mr Elwood in the trial. She said that Bourke was a town with high levels of domestic violence, unemployment, poor housing and petty crime. Children were incarcerated at a very young age. But she had never known her nephew to be violent; she described him as a "very soft young man, always has been". He was well respected in the community, and was "very much respectful to all of the community, Aboriginal and non-Aboriginal". He had good morals that had been passed on from his father. 46Ms Orcher's account of the nature of life in Bourke is consistent with the descriptions provided in the testimonials tendered in the case concerning Mr Dennis that were adopted by counsel for Mr Elwood. 47Ms Orcher's assessment of Mr Elwood's personality is consistent with those conveyed in various testimonials that were tendered in his case this morning. An aunt, Ms Sandra Edwards, described him as a "happy-go luck boy". His father described him as "quiet and ... pretty shy with people he doesn't know". Mr Stephen Howarth said he was "a very gentle boy" and he had watched him develop over many years "into a respectful, polite young man". Mr Clem Edwards described him as "a lovely boy" and considered that his involvement in the incident of 1 May 2011 was "very out of character for him". 48In relation to the present matter, he told Ms Kathryn Wakely, forensic psychologist, that he was drunk at the time and that when he later heard that Mr G had died he "just couldn't believe it". It was "something that was not meant to happen" and he said, "I feel for them, had a son, daughter and I wouldn't know what to do if that was my father". He also expressed empathy for any future grandchildren who would not know their grandfather. 49Mr Elwood was in custody, bail refused, from 3 May 2011 until 31 August 2012 (when he was granted bail) and then since the jury's verdict on 9 April 2014. To give credit for this pre-sentence custody his sentence will date from 8 December 2012. I also propose to take into account that the circumstances of his custody have been attended by anxiety and stress for the same reason as applies in Mr Dennis' case. This will continue for such time as he remains in custody. 50A test administered by Ms Wakely, the "Severity of Dependence Scale" test, indicated no compulsive use of, or psychological dependence upon, alcohol or drugs in the year prior to his arrest. Another test placed him within the low range of general and violent recidivism. 51Ms Wakely considered that Mr Elwood's significant regular use of cannabis in the past, and his use of Oxycontin whilst he was on bail, called for a period of treatment in order to avoid future development of serious substance dependence and associated difficulties. Attention to his choice of associates and vocational skills training were also suggested as being useful. I note that in the custodial history tendered by the Crown Mr Elwood was disciplined last month for an "offence" described as "refuse fail drug sample" and was "sentenced" to 42 days off contact visits. Further attention to his substance abuse issues is clearly indicated. 52I am satisfied that Luke Elwood has good prospects of rehabilitation and is unlikely to re-offend, provided that he maintains abstinence from illicit drug use. I am also satisfied that he is genuinely remorseful.
Parity 53No question of parity arises in relation to these offenders as compared to the sentencing of Ethan and Bevan McKellar. The cases concerning each pair of offenders are just so different in terms of offences, objective seriousness, moral culpability and subjective circumstances. 54The sentence to be imposed upon Luke Elwood for the offence of armed assault with intent to rob should be less than that which I imposed upon Ethan and Bevan McKellar because of his lesser role and much more favourable subjective circumstances. 55The sentences to be imposed upon Douglas Dennis and Luke Elwood for the offence of manslaughter should be similar. There will be some difference because of Mr Elwood's more favourable subjective case, particularly his age and lack of previous convictions.
General matters relating to sentence 56There is a need to have regard to the principle of totality in relation to the sentencing of Luke Elwood, given the need to assess individual sentences for the two offences for which he was found guilty. It was conceded that there should be some accumulation. I accept that concession. 57There are special circumstances in the case of both offenders that warrant a reduction of the non-parole component of their sentences. In Mr Elwood's case there is the need to accumulate sentences so an adjustment needs to be made for that reason alone. But there is also, in both cases, a need for a longer period of supervision on parole to monitor and assist them to maintain their abstinence from drug use, the issue that is the key to their continued rehabilitation.
Sentence Douglas Dennis 58Convicted. 59Count 1 (Manslaughter): Sentenced to imprisonment comprising a non-parole period of 3 years and a balance of the term of the sentence of 2 years. The sentence is to date from 8 December 2012 and will expire on 7 December 2017. The offender will become eligible for release on parole at the end of the non-parole period. Luke Elwood 60Convicted. 61Count 3 (Armed assault with intent to rob): Sentenced to imprisonment comprising a non-parole period of 2 years 6 months and a balance of the term of the sentence of 1 year. The sentence is to date from 8 December 2012 and will expire on 7 June 2016. 62Count 1 (Manslaughter): Sentenced to imprisonment comprising a non-parole period of 2 years 6 months and a balance of the term of the sentence of 2 years. The sentence is to date from 8 June 2013 and will expire on 7 December 2017. The offender will become eligible for release on parole at the end of the non-parole period.
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