R v Jones & Others

Factual Background 8 There is no issue between the offenders Adam Samuel Jones, Adam Jones, Samuel Mark Jones and Lydia Jones and the Crown as to the relevant factual background. An Agreed Statement of Facts was tendered in the case involving Samuel Mark Jones. With one or two minor exceptions, it is common ground that it also contains the relevant factual background against which the offenders Adam Samuel Jones, Adam Jones and Lydia Jones are to be sentenced. In reciting the facts I have placed considerable reliance on what appears in that document particularly insofar as it reflects the evidence which was adduced during the course of the trial. Having said that, it is important to emphasise that there are gaps in the narrative of events that cannot, given the state of the evidence, be satisfactorily filled in. There are however some areas of factual dispute so far as the cases involving Samuel Jones and Elizabeth Jones are concerned. In due course, I shall identify those areas of dispute and the significance which they assume in the sentencing process. 9 In approaching the task of making the relevant findings of fact, I must proceed in accordance with well-established principles: see R v Isaacs (1997) 41 NSWLR 374; R v Olbrich (1999) 199 CLR 270; GAS v The Queen; SKJ v The Queen (2004) 217 CLR 198. 10 The offenders and their family, as well as the deceased and his family, are Romany gypsies. Although both families were originally from the United Kingdom, they have lived in this country for many years. They reside in caravan parks and lead itinerant lifestyles which see them move around fairly frequently. Although members of the two families were acquainted with each other, they did not know each other particularly well. However the families became closer when the offender Adam Jones married Ellen Smith. Arrangements for the wedding, which took place in November 2004, gave rise to tension between the families. Those tensions led the young couple, who were then aged 18, to elope. Nonetheless it would appear that those tensions had abated by the time the events which give rise to these proceedings occurred. 11 The fatal incident took place at Tuggerah Village caravan park at Kangy Angy on the Central Coast at which members of the Jones family and the Smith family were then residing. Adam Samuel Jones and his wife Lydia Jones were occupying site 55. Adam Jones and Ellen Smith occupied site 41 which was a short distance away. The deceased and Noah Henry Smith, also known as Noah Smith Snr, are Ellen Smith's uncles. They also resided at the caravan park, albeit on sites at the other end of the park, close to the amenities block. A number of other members of the Smith family also resided at the caravan park. 12 During the evening of 8 October 2005 Adam Samuel Jones, Adam Jones and Lydia Jones were socialising at the caravan park with members of the Smith family. At around about 11 pm an argument developed. On the face of it, the argument was trivial. It seems to have been precipitated by remarks made by Adam Samuel Jones to Ellen Smith's mother, Mary Isabella Smith. I am satisfied that it amounted to no more than friendly banter. Mary Smith certainly did not take offence at the remarks. 13 The deceased's reaction however was quite different. He, unlike Mary Smith, did not laugh it off. He became upset with Adam Samuel Jones and told him that he did not appreciate the fact that he was taking "the piss out of [Mary Smith]". It is not without significance that the deceased had been drinking heavily that day. Indeed he had spent much of the day at a nearby club with his brothers, John and Noah. The evidence indicated that the deceased was an experienced drinker and that he could, and did, consume significant quantities of alcohol on a very regular basis. A toxicology report, conducted at post-mortem, reveals that the deceased had a blood alcohol reading of 0.227. The evidence leads me to the conclusion that the deceased, fuelled by alcohol, was behaving in an aggressive manner during the course of this initial incident. 14 Nonetheless it was the actions of Adam Jones which escalated the tension. He produced a knife which he pointed at the deceased. He said to his father words to the effect of, "We can stab him Dad". The argument then became quite heated. The deceased tried on several occasions to physically attack Adam Jones. He also taunted him by saying that he was not enough of a man to be worth fighting. When the deceased was restrained from attacking Adam Jones, he then grabbed hold of Adam Samuel Jones' collar and said to him, words to the effect of, "Come on, I'll fight you. You think you're the big man, let's see what you can do." Louisa Smith, the deceased's mother, gave evidence that from her observation Adam Samuel Jones was clearly reluctant to engage in a fight. 15 Adam Jones was asked several times to put the knife away and eventually did so. The evidence suggests that the matter was resolved, at least temporarily, when the deceased and Adam Samuel Jones agreed that they would "sort things out in the morning". 16 Various members of the Smith family gave evidence that they anticipated that this meant that the two protagonists would meet, in accordance with Romany gypsy tradition, for the purpose of having a fist fight the following morning. Be that as it may, I am quite satisfied however that various members of both families had other intentions. In any event, the parties dispersed and returned to their respective caravans. The evidence as to what happened at the caravan park from that point until the onset of the fatal incident is, at best, sketchy. 17 Evidence elicited from mobile phone records reveal that a call was made at about 11.30 pm from the phone owned by Adam Samuel Jones to the phone owned by his parents Samuel Jones and Elizabeth Jones who were then residing at the Parklea caravan park. The only direct evidence as to what was said emerges from Michael Bennett, a friend of Samuel Jones, who said that Samuel Jones told him that he had been informed that there were "dramas" up at the caravan park. Whatever was said prompted the couple to travel immediately to Kangy Angy. Samuel Mark Jones was also residing at Parklea at the time and it can readily be inferred that contact was also made with him, probably through his wife. At 11.38 pm the phone owned by Samuel Jones and his wife was used to contact the phone owned by Lydia Jones. At 11.48 pm, the swipe card owned by Samuel Jones and Elizabeth Jones, was used to activate the boom gate at the Parklea caravan park. It is apparent from the phone records that they then left the Parklea area and made their way up the F3 freeway towards the Tuggerah Village Caravan park, where they arrived at approximately 12.30 am. 18 Although he travelled separately from his parents, Samuel Mark Jones also made his way up to Tuggerah arriving there at about the same time as his parents. The mobile phone records reveal that a number of other persons were contacted by Samuel Mark Jones as he travelled to the caravan park. The overwhelming inference from all the evidence, which was led in the case against him, is that he was responsible for recruiting those persons to attend the park for what was anticipated to be some kind of a fight. That inference is made even more irresistible when regard is had to the contents of two of those calls which Samuel Mark Jones made to a Michael Walker. Those calls had been lawfully intercepted by police in respect of an entirely separate investigation. During the course of the trial, I ruled that that evidence was not admissible in the case against the other offenders. Those calls were tendered, without objection, in the proceedings against Samuel Mark Jones. 19 Ellen Smith gave evidence that, prior to the arrival of those persons, she observed her husband, Adam Jones, collect a sword from their van and take it to his father's caravan. She said that she also observed Adam Samuel Jones collect various items, including a baseball bat, and place them on the ground outside his caravan. 20 At some later stage, Ellen Smith saw Samuel Jones and Samuel Mark Jones in the vicinity of Adam Samuel Jones' caravan. They were in the company of another male whom she did not know. According to Ellen Smith, Lydia Jones told her that "It will be a fair fight". She also said that when she asked Samuel Jones to ensure that "nothing bad happened", he had replied "I can't baby, it's out of my hands". 21 At approximately 1.20 am, the five offenders, other than Lydia Jones, together with at least three other persons who were not known to members of the Smith family, approached the male members of the Smith family from the vicinity of the amenities block. Those persons were armed with a variety of weapons which included hand axes, machetes, swords, knives and iron bars. The Crown case was that those persons participated in a joint criminal enterprise, the purpose of which was to attack the deceased intending thereby to kill him or to inflict grievous bodily harm upon him. The Crown case was that each of the offenders was a principal in the first degree in that each participated in the attack upon the deceased by striking him with a weapon or weapons. There was no challenge on behalf of any of the offenders to the evidence given at trial that Samuel Mark Jones and several other persons were also engaged in the fatal incident. Nor was there any challenge to that aspect of the case during the sentence proceedings. 22 The evidence given by the 11 members of the Smith family who claimed to have witnessed the fatal incident is that no member of their family was armed with a weapon. They gave evidence that the attack had been totally unexpected and unprovoked and that members of their family had been defenceless in the face of what was essentially an onslaught. That part of the evidence was subjected to sustained attack by counsel who appeared on behalf of the various offenders. It is readily apparent from the jury's verdicts that they rejected that aspect of the evidence given by members of the Smith family. I, too, have little hesitation in rejecting it. In doing so, I have had regard, inter alia, to a significant body of evidence from which it was clearly open to infer that in the period between the initial incident and the fatal incident, various male members of the Smith family, including the deceased, had gathered together a number of weapons in anticipation of a fight between the two families. The weapons which they had collected included a tomahawk, a machete, a meat cleaver, wooden sticks and socks which contained lead objects within them. Those items were located lying together at site 81, which is close to where the fatal incident occurred. It is reasonable to infer that they were secreted there by at least one member of the Smith family. Of particular significance is the fact that DNA consistent with that of each of the deceased, Noah Henry Smith and their father John Smith, respectively, was discovered upon some of those items. Even more importantly, Noah Smith's blood was located upon one of the weapons. Noah Smith was quite unable, despite persistent questioning, to explain how it may have found its way there. Because Noah Smith was injured during the course of the fight, the only reasonable available inference is that his blood fell onto the weapon either then or whilst the weapons were being carried to site 81. To that material, may be added the evidence of Noah Henry Nathan Smith (Noah Smith Jnr). He told police that his grandfather had been in possession of a pickaxe handle. Somewhat improbably, he sought to retract that observation whilst giving evidence. 23 As I have said, the evidence given by members of the Smith family, that the attack upon them was unexpected and unprovoked and that they were unarmed, simply cannot be reconciled with the evidence to which I have just referred. Moreover, the evidence that the eleven members of the Smith family, amongst whom were several women and children, were all standing around sometime after 1am in the morning for the purpose of socialising, defies belief. The evidence indicates that the women were inside one of the vans whilst the men were outside the van. I am satisfied that the men, at least, had all gathered together in anticipation that a fight was in prospect. John William Smith told police that "we were concerned that members of the Jones group would return and start trouble". He said that if they did so "then we would have to fight them as a group". Caroline Smith said that she had a "feeling" that something would happen. She also gave evidence that as the group of offenders approached, she heard someone yell out words to the effect of "they're here". There was, of course, no time in the period between the approach of the offenders and the beginning of the fight for the members of the Smith family to arm themselves. It is apparent, in those circumstances, that they had already armed themselves for the very reason that they anticipated that there would be some sort of fight involving the use of weapons. 24 Both Adam Samuel Jones and Adam Jones told police, in recorded interviews, that prior to the fatal incident they observed members of the Smith family gathering weapons together at their end of the park. They asserted that that group of persons, which included the deceased, had also taunted and threatened them. 25 The evidence disclosed that the deceased observed the offenders as they approached from the area of the amenities block. It seems that he was armed at the time with what appeared to be a pick axe handle. As I have already said, other male members of his family were also either armed or had ready access to weapons. The deceased immediately moved towards Adam Samuel Jones and grabbed him around the throat area. The deceased was then struck a number of blows which forced him to the ground. Whilst he lay on the ground on his stomach he was subjected to a further attack. The Crown case is that each of the offenders struck the deceased a number of blows during the course of the fatal incident. Whilst all this was happening, Samuel Mark Jones produced a pistol which he pointed at members of the Smith family. Even if it was only an imitation pistol, the production of it clearly changed the dynamics of what was presumably intended to have been a pitched battle involving the use of weapons. The introduction of the pistol effectively prevented the Smith family members from using their weapons during the course of the fight. This also partly explains why the offenders received only relatively minor injuries from their participation in the fight. 26 The female members of the Smith family, together with several of their children (whom as I have said were inside one of the caravans), heard the commotion and came out to see what was occurring. They each gave evidence as to what they had been able to observe. 27 The Crown case was that the offenders attacked Noah Smith when he attempted to render assistance to the deceased. It contended that there was a joint criminal enterprise, the purpose of which was to attack and wound Noah Smith with the intention of killing him. However the jury's verdicts are to be understood as indicating that it was only satisfied to the requisite standard that each of the offenders was a party to, and participated in, an attack upon Noah Smith in which the intention of each of them was merely to wound him. 28 A number of witnesses gave evidence that Adam Samuel Jones and Adam Jones each struck him with an axe or a blade. Adam Jones admitted, during a conversation on 20 October 2005 with Ellen Smith, which was covertly recorded by police, that he had stabbed Noah Smith. A knife that he owned, which had the blood of Noah Smith upon it, was subsequently located at the scene by police. Noah Smith gave evidence that Samuel Jones had struck him in the head with an iron bar. Samuel Jones declined to be interviewed by police. His version of events, which was elicited through the evidence of his friend Michael Bennett, with whom he spoke prior to his arrest, was that he in fact had been attacked by Noah Smith. Mr Bennett gave evidence that Samuel Jones told him that he had sustained an injury to his forearm during the course of that attack. There was a photograph in evidence which depicted that injury. So far as that aspect of the matter is concerned, Samuel Jones relied upon self-defence, an explanation which the jury plainly rejected. Nonetheless, I accept that Samuel Jones was struck forcefully with an implement during the course of the fatal incident. 29 Towards the end of the incident, Adam Jones struck Ellen Smith's 16 year old sister, Mary Rose on the shoulder with an object causing her a minor injury. His case was that she had first struck him in the hand. Although he did sustain an injury to his hand, the jury rejected the offender's claim that he had been acting in self-defence at the time of that incident. 30 The offenders and their accomplices then fled the scene. At approximately 1.25 am Louisa Smith, the deceased's mother, called the police emergency service line and requested the immediate attendance of police and ambulance officers at the scene. Police and ambulance officers arrived there at approximately 1.40 am. Unfortunately, despite the efforts of ambulance officers, nothing could be done to revive William Smith who had already died. Noah Smith, who was in a distressed state and was bleeding heavily, was treated at the scene. He was then taken to Gosford Hospital where he received further treatment from Dr Arora. He had sustained a deep 20 cm laceration, which ran from his neck and down his back, as well as lacerations to his scalp, face, hands and groin. He had also suffered a blunt force trauma to his forehead. In Dr Arora's opinion, the wound to his back would have been occasioned by a weapon with a blade measuring at least 20 cm. 31 Dr Lee, a forensic pathologist, conducted the post-mortem upon the deceased. His examination revealed that the deceased had sustained 18 sharp force injuries to his head, face, torso, arms, hands and legs. Dr Lee described those injuries as being stabbing, chopping and slash type wounds. The fatal injury was caused by a single blow which penetrated the deceased's left lung. The Crown was unable however to attribute the infliction of the fatal wound to any particular offender. It was Dr Lee's opinion that that injury was most likely to have been caused by a carving type knife. The deceased's injuries were caused, in his opinion, by a variety of weapons. Some of the injuries were consistent with the use of weapons such as a machete or an axe or something of a similar kind, whilst others were consistent with having been inflicted with a smaller knife. 32 Dr Lee gave evidence that, in all likelihood, many of the blows would have been inflicted whilst the deceased was lying still on the ground. It was Dr Lee's opinion that the deceased was likely to have survived for only a couple of minutes after the attack. Dr Lee said that the deceased had also sustained a number of blunt force injuries. The effect of his evidence was that the injuries sustained by the deceased were consistent with an attack upon him lasting only a short period of time but during which multiple weapons were used, each with a considerable degree of force. The deceased's blood was located upon a machete, which police discovered in a creek bed behind the caravan site occupied by Adam Samuel Jones. 33 Ellen Smith did not observe the fatal incident because she had remained in the caravan which she occupied with her husband. Her attention was nonetheless attracted when she heard screaming. She came out of her caravan and saw her husband, Adam Jones and his father running towards her and away from the crime scene. Her husband was carrying a Samurai sword which was normally kept in their caravan. It had blood upon the blade. She saw that Adam Samuel Jones was covered in blood and that he was carrying a machete. She observed them go into the caravan occupied by Adam Samuel Jones. She noticed that he was bleeding from a minor injury to his head, whilst her husband had a minor injury to his hand. She heard her husband say to his father words to the effect of "he was hard to take down". 34 Ellen Smith then heard her sisters, Mary Rose and Louise, arrive outside the van occupied by Adam Samuel Jones. They were yelling out words to the effect of "he's dead, he's dead". Lydia Jones, who was inside the caravan at the time, responded by saying, "Well, if he's dead, he's dead". Ellen Smith then saw Adam Samuel Jones produce a gun with which he threatened her two sisters. As a result, they left the area. Police subsequently discovered that firearm beside the bed in that caravan. Another rifle, together with ammunition, was also found in the caravan. It was the discovery of those weapons which gave rise to the Form 1 matters to which I referred earlier. There was evidence that the sound of gunshots were heard coming from that area of the park at some stage during, or shortly after, the incident. The evidence upon this issue however, is inconclusive, and I have had no regard to it for sentencing purposes. 35 Ellen Smith observed Lydia Jones use a towel to remove the blood from the machete and the sword which she had seen earlier in the possession of her husband and his father. Ellen Smith then saw Lydia Jones remove those items and place them outside the caravan. The items were subsequently located in that position by police. It was this conduct that formed the basis for her conviction as an accessory after the fact to manslaughter, it being common ground that she was not at the scene of the fatal incident. No DNA or fingerprints were discovered upon the items which Lydia Jones had wiped down. However the deceased's blood was located upon various items in the caravan which she shared with her husband. 36 Before the police arrived, Ellen Smith saw Adam Samuel Jones and Adam Jones run from the scene. Immediately after the incident, Samuel Jones and Elizabeth Jones went to a nearly service station at which they waited for a short time. Family members made contact with each other by mobile phone presumably in order to arrange the return trip to Sydney. In due course, Adam Samuel Jones and Adam Jones met up with Samuel Jones and Elizabeth Jones who then drove them back to Parklea. They arrived there at about 4 am. Lydia Jones, who remained at the caravan with her two children, maintained contact with her husband and his parents during this period of time. Mobile phone records demonstrate that Samuel Mark Jones went to Terrigal where it appears that he stopped using his mobile phone after making a final call to his wife at 4 am. 37 At about 7 am that morning, Adam Samuel Jones handed himself into police at Blacktown. He told them that he thought that he may have killed someone. He gave police a version of events in which he suggested that he had been set upon by the deceased and members of his family and that he had struck the deceased in self-defence. He also admitted to having struck Noah Smith. He maintained that no other member of his family had been involved in the altercation with the Smith family. 38 The following day, Elizabeth Jones was spoken to by police. In a recorded interview, she told them that she had not been at the Tuggerah Village caravan park on the night in question. She was subsequently arrested on 15 October. Lydia Jones, who declined to speak to police, was arrested on 9 December 2005. 39 Samuel Jones and Adam Jones fled to Queensland where they were arrested on 26 October. They were driven there from the Newcastle area by Michael Bennett. Samuel Mark Jones who was with them at the time of their arrest managed, as I have said, to elude police. 40 Adam Jones admitted to police that he had struck both the deceased and Noah Smith. He also raised the issue of self-defence both in a recorded interview with police and in the intercepted conversation with his wife to which I referred earlier. He told police, amongst other things, that he had gone to the assistance of his father whilst he was being attacked by members of the Smith family. He also said that his grandfather had been hit in the arm with a weapon by Noah Smith and that his grandfather had, in turn, struck Noah Smith. 41 The cases advanced at trial on behalf of each of the offenders were somewhat different. As I have said, Adam Samuel Jones and Adam Jones each pleaded guilty to manslaughter. By their pleas, they each admitted that not only were they present at the fatal incident, but that they had participated in the events which culminated in the death of William Smith. They each maintained however that they had acted in self-defence. Nevertheless they acknowledged that their actions in doing so were not only unreasonable, but that they were excessive in all the circumstances. They also contended that they had been acting under provocation. They also each accepted responsibility for having inflicted injuries upon Noah Smith. For that reason they each pleaded guilty to malicious wounding although they put in issue the Crown case that their intention had been to either kill him or to inflict grievous bodily harm upon him. As I have said, the jury resolved that issue in their favour. 42 The case advanced on behalf of Samuel Jones was that although he was present at the scene whilst the fatal incident was occurring, he was not involved in any way whatsoever in the attack upon the deceased. His case, as I have said, was that his participation was limited to an altercation with Noah Smith whom, he contended, had assaulted him. 43 The case advanced on behalf of the offender Elizabeth Jones, which emerges from her record of interview, was that she was not present at the scene of the fatal incident. As she had not at any stage left Parklea, it was her case that she bore no responsibility for what had occurred to either the deceased or to Noah Smith. 44 It is against that background that the question of the basis upon which the offenders are to be sentenced for the crime of manslaughter, is to be determined. It was accepted on behalf of Adam Samuel Jones and Adam Jones that they stood to be sentenced upon the basis that following the initial incident, and after having observed various members of the Smith family gathering weapons, they feared that the deceased and other members of his family were arming themselves for the purpose of attacking them and other members of their family. In that context, it is to be observed that the deceased was a huge man weighing in the vicinity of 140-150 kilograms. Adam Samuel Jones told police that he was aware of the deceased's reputation, when intoxicated, for getting into fights. Furthermore, at least at the outset of proceedings, the Smith family clearly had greater numerical strength. 45 The case advanced on behalf of Adam Samuel Jones and Adam Jones was that it was in those circumstances that they had acquired weapons and had gone to the amenities block in anticipation of a fight. In fact, it is common ground that they went there with a view to engaging in, what the Crown aptly described as a "pre-emptive strike" upon the deceased and other male members of his family. Notwithstanding the fact that the deceased took the first step towards Adam Samuel Jones as the other group approached, there is, as the Crown correctly observed, no evidence that members of the Smith family actually intended to launch an attack upon the Jones family that evening. As I have said, each of those offenders accepted that their actions, albeit that they were committed in self-defence or in defence of another or others, were excessive. 46 Each of those offenders also relied upon the fact that the actions of the deceased, both during the course of the initial incident and subsequently, including the gathering of weapons as well as the taunts and threats made to them by members of the Smith family, constituted conduct which induced them to lose their self-control. Accordingly each contended that he had been acting under provocation. The matter has proceeded upon the basis that there is a significant degree of overlap between the issues of excessive self-defence and provocation in this case. 47 It was faintly suggested, at one stage in written submissions, that the verdict in respect of Adam Samuel Jones might be explicable on the basis that his actions constituted an unlawful and dangerous act or acts. As I understand the situation, that submission was not ultimately pressed and accordingly I do not need to deal with it. 48 The position so far as Samuel Mark Jones is concerned is that his plea of manslaughter was proffered and accepted by the Crown upon exactly the same basis, namely that his conduct amounted to an act or acts done in excessive self-defence and under provocation. 49 The Crown submitted that Samuel Jones and Elizabeth Jones should be sentenced upon a similar basis. Although they did not personally witness the earlier incident, it is common ground that they learnt of it and, prompted by a natural concern for their family, attended the scene in order to render some measure of support to them. 50 It was submitted by Mr Stewart, who appeared on behalf of the offender, Samuel Jones, that his client should be sentenced upon the basis that he was part of a joint criminal enterprise, the purpose of which was merely to assault the deceased. The submission was further refined to a contention that the offender was part of a "common purpose to assault [the deceased] in a fist fight in which he would be present and in support". In short, it was submitted that his culpability should be characterised as manslaughter by an unlawful and dangerous act. It was made quite explicit in submissions that such a conclusion would have the necessary consequence that this offender's criminality should be assessed as being less serious than it would be were he to be sentenced upon the basis for which the Crown contended. It is clear however from what the Court said in Isaacs (supra) (at 381) that such an assumption is unwarranted. As the Court there made clear, each case turns upon its own particular facts. 51 Whilst it is true that manslaughter by an unlawful and dangerous act was left to the jury as a possible basis upon which a verdict of manslaughter could be returned, I reject the submission that it is the appropriate basis upon which this offender should be sentenced. 52 In considering this issue, I remind myself that it is critical to keep firmly in mind the way in which the case was conducted before the jury. The Crown case, as I have said, was that each of the offenders was engaged in a joint criminal enterprise to attack the deceased with the intention of either killing him or inflicting grievous bodily harm upon him. As I have also said, the case put on behalf of Samuel Jones was that his participation was limited to an altercation with Noah Smith, whom he contended, had assaulted him. His case was that he acted in self-defence in response to that assault. As I have also said, clearly enough the jury rejected the case advanced on behalf of the offender. That was hardly surprising given the evidence adduced in the Crown case from no fewer than nine members of the Smith family who placed Samuel Jones at the scene and said that he was directly involved in the attack upon William Smith. Indeed of the eleven Smith family members who gave evidence of having observed the fatal incident, only Louisa Smith and Caroline Smith did not give evidence of seeing him there that evening. 53 It is true that a number of legitimate criticisms can be made about the evidence given by members of the Smith family. The evidence given by each of them to the effect that no member of their family had been in possession of a weapon that night, was patently false. The same observation can be made of the suggestion made by them that no member of their family had done anything at all, let alone anything provocative, to cause the Jones family to confront them at the amenities block. In the same vein, there were a number of instances of witnesses exaggerating the nature and extent of the involvement of the Jones family in the events leading up to the fatal incident and corresponding attempts by them to minimise the role played in them by members of their own family. 54 Furthermore, evidence given by some members of the Smith family, in which they sought to explain prior inconsistent statements made either to police or in court, was often quite implausible. On other occasions, it emerged that, some of the witnesses at least, whether deliberately or not, had "got their heads together" in respect of some parts of their evidence. Finally, there was evidence before the court that several of the witnesses from the Smith family had convictions for offences of dishonesty, a matter which may well have affected their overall credibility. There was also evidence that several members of the Smith family had, on a prior occasion, acted in concert in a quite violent fashion in circumstances which bore some similarity to the present incident. 55 The circumstances themselves in which the fatal incident occurred, rendered some of the observations made by members of the Smith family, somewhat unreliable. That was hardly surprising given that the scene was described as being hectic, chaotic and confusing. The incident itself was over very quickly. It took place at night in an area which was poorly lit. It occurred within a very confined space which was occupied by a number of persons who were brandishing a variety of weapons. In those circumstances, the eyewitnesses were entitled to be fearful for their own safety. 56 So far as the evidence of the nine witnesses who observed Samuel Jones involved in the attack upon the deceased is concerned, there are certain matters which also need to be highlighted. Three of them, Louise Smith, John Smith and Joseph Smith were unable to identify what, if anything, the offender had in his hands. Louise Smith gave evidence that she did however see the offender strike the deceased whilst he was on the ground. Four witnesses, Mary Rose Smith, John Mark Henry Smith, Noah Smith Snr and Noah Smith Jnr said that they saw him with knuckle-dusters. Mary Rose gave evidence that he also had an axe, as did Mary Isabella. Mary Rose also gave evidence that he was using "chopping motions" whilst striking the deceased. Both John Smith and John Mark Henry Smith gave evidence to similar effect. Noah Smith Jnr said that he also had a normal knife whereas Noah Smith Snr said that he also had an iron bar. John William Smith said that he observed him with a "shiny-object". 57 Notwithstanding those apparent discrepancies, the thrust of the evidence given by each of the nine eyewitnesses to whom I have referred, was to provide a broadly consistent account of this offender's involvement in the offences. Each of the witnesses rejected the suggestion, put on behalf of the offender, that he had not been involved in the attack upon the deceased. Nor did their evidence provide the offender with any real evidentiary basis for the proposition that his participation was confined to an altercation in the area near the amenities block. 58 But that was not the only evidence in the Crown case. Ellen Smith gave evidence that she had observed the offender at the caravan park at a point in time, which was approximately 45 minutes prior to the fatal incident. He was then in the vicinity of Adam Samuel Jones' caravan, close to which various weapons had been assembled. Ellen Smith gave evidence, which was not disputed, that she asked him to ensure that the fight would be fair. As I have said, he replied that he could not give that guarantee as the matter was "out of his hands". That evidence fastened this offender with at least some awareness that a fight was to occur. True it is that Ellen Smith did not see him with a weapon and it may be that the offender contemplated, at that stage, that there would be nothing more than a fist fight. Be that as it may, it is quite unrealistic however to contend, as counsel did, that the offender's state of awareness did not subsequently change. It must have become obvious to him at some stage that members of the Smith family, as well as members of his own family, had weapons and that they were going to use them in the fight. 59 Of very considerable importance is Dr Lee's evidence concerning the nature and extent of the wounds sustained by the deceased. It not only provides strong support for the general tenor of the evidence given by members of the Smith family, which I accept, but it also strengthens the inference, which in my view is compelling, that the blows inflicted upon the deceased were struck with either an intention to kill or to inflict grievous bodily harm. 60 Finally, it is to be observed that the offender chose not to give evidence either at trial or during the sentence proceedings to contradict the direct evidence of his involvement in those offences. Nor for that matter did any of the other offenders. 61 For all those reasons, I reject the submission that the liability of the offender Samuel Jones for manslaughter should be found to have arisen from an unlawful and dangerous act or acts. Nevertheless, I am disposed to accept the submission that the offender's motive in attending the fight was one borne out of a desire to ensure the safety of his family rather than to personally engage in the hostilities and that his decision to involve himself in the fight only arose late in the piece. 62 Having said that I accept, for what it is worth, that the offender was not responsible for the serious injuries which were inflicted to Noah Smith's back. I see no reason however not to accept Noah Smith's evidence that the offender struck him in the forehead with an iron bar. On the other hand, as I have said, I am disposed to accept that the offender himself suffered the injury to his forearm at about the same time and that it is more than likely that Noah Smith was responsible for causing it. 63 The submission which was advanced in written submissions on behalf of the offender Elizabeth Jones, albeit that it was subsequently somewhat refined, is that I should find that although she was present as part of the joint criminal enterprise she was neither armed, nor physically involved, in the attack upon the deceased. For a number of reasons I would reject that submission. First, mere presence at the scene of a crime is not a sufficient basis for attaching liability to a person for a criminal offence. Secondly, even if the liability was expressed in terms that this offender acted in such a fashion as to have aided and abetted some or all of the other offenders, such a finding would be wholly inconsistent with the way in which the issues were litigated at the trial. The Crown's case, as I have said, was that she was not only present but that she was an active participant, as a principal in the first degree, in the unlawful killing of the deceased. Her case at trial of course was that she was not even present at the fatal scene. 64 Even more importantly, there is more than a sufficient evidentiary basis to support the Crown contention as to the nature and extent of her participation. Seven of the eleven witnesses from the Smith family gave evidence that they observed the offender Elizabeth Jones at the scene of the fatal incident. Four of those witnesses, Louise Smith, Mary Rose Smith, John Mark Henry Smith and his father, John William Smith, all gave evidence that they saw the offender participating in the attack upon the deceased with a weapon. Louise Smith gave evidence that she saw the offender crouching down stabbing the deceased as he lay on the ground. She said that although she did not know what kind of weapon she had with her, she saw that she was stabbing to the side of his stomach and to his back. Mary Rose Smith described the offender as having a knife in her hand, crouching down and stabbing the deceased to the top half of his body as he lay on the ground on his stomach. John Mark Henry Smith gave evidence that he saw the offender with a kitchen knife. He said that she used that knife to stab into the deceased as he lay on the ground. He said that she appeared to be stabbing into his stomach area. His father said that he saw the offender with a knife during the course of the incident and gave evidence that she used it during the attack upon the deceased. 65 Of the other three witnesses who gave evidence of seeing the offender at the scene, Noah Smith Jnr said that he saw the offender, along with other members of the Smith family, gathered around the deceased as he was lying on the ground. He did not see a weapon in her hand. Nor did he see anyone actually striking the deceased whilst he was on the ground. He did say however that he was terrified because the gun was being pointed at him at that time. Caroline Smith observed the offender crouching down beside the deceased as he was lying on the ground on his stomach. Although she was unable to see any weapon in the offender's hands, she did see that she was moving her arms backwards and forwards towards the deceased. As this was happening, she said that she could hear slopping noises coming from the deceased's body. Mary Isabella Smith described seeing the offender crouching down beside the deceased stabbing into the middle of his back. She had earlier indicated that she believed that she had had an axe but said that, at the time of the stabbing, she believed that she was in possession of a different weapon. 66 Moreover, Ellen Smith gave evidence that following the incident, she went to stay at Parklea Caravan Park. Whilst she was there she said that she had several conversations with Elizabeth Jones. Ellen Smith gave evidence that she (the offender) had told her that she had put a "big iron pole [which she had on her]" into the dustbin because it had her fingerprints on it. On a subsequent occasion, the offender expressed her concern to Ellen Smith that her fingerprints might be discovered by police. When Ellen Smith asked her why she was concerned, she said that the offender had replied "Because I was there, because I was there". The Crown relied upon this evidence to establish that, at the very least, the offender was present at the time of the fatal incident and that she was armed at the time. Although it was at one stage conceded on behalf of the offender that she may have had possession of the iron bar, I am not satisfied to the requisite standard that this offender used such a weapon during the course of the incident. 67 It is perfectly true, as Mr Whitehead who appeared on behalf of the offender pointed out, that none of the remaining four members of the Smith family gave evidence of even having seen the offender on the night of the incident. He also pointed out that Caroline Smith had not seen Elizabeth Jones' face but had recognised her by her hair whilst neither John William Smith nor John Mark Henry Smith had originally told police that she was involved. The jury obviously concluded that those matters were not of sufficient weight to raise a reasonable doubt about the participation of the offender in the fatal incident. Finally, it is to be observed that the offender, as was her entitlement, elected not to give evidence. The body of evidence to which I have referred thus remained entirely uncontradicted. Her case depended, as I have said upon her record of interview. It is hardly surprising, given some of the patently false things that she said during the course of that interview, that the jury rejected it as being a truthful version of events. 68 Notwithstanding the deficiencies which were asserted concerning the evidence given by members of the Smith family, it is nonetheless clear that there is a considerable measure of consistency in the versions given by them as to the role performed by the offender, Elizabeth Jones, in this offence. 69 Given the challenging circumstances in which the witnesses made their observations, I am inclined to the view that the failure of the four witnesses to nominate the offender does not significantly undermine the rest of the evidence given in the Crown case, particularly in light of the evidence of Dr Lee to which I have already referred. Accordingly, I see no rational basis upon which I should reject the direct evidence of those witnesses. Moreover, the fact that there may have been imperfections in the Crown case against the offender, does not provide any real assistance in resolving the issue as to the basis upon which her liability for the offence of manslaughter is to be assessed. 70 Accordingly, I shall proceed to sentence the five offenders in question upon the basis that each is a principal in the first degree to the manslaughter of the deceased and that the basis upon which their liability is to be assessed is that each was acting, at the relevant time, in excessive self-defence or defence of another or others and also under provocation. 71 Having said all that, I am unable to conclude that this offender's culpability is of the same magnitude as her co-offenders. Although I am satisfied that she arrived at the caravan park at about 12.30 am, the evidence is completely silent as to what she was doing between then and when she joined in the attack upon the deceased. I am certainly not prepared to conclude that she arrived at the amenities area with any hostile intent. I am prepared to sentence her upon the basis that her participation was a spontaneous response to a situation in which she perceived that members of her family were under threat of imminent violence. In other words, the evidence does not support a conclusion that her actions revealed the same degree of planning as her co-offenders.

Subjective features 72 A pre-sentence report was provided in respect of each offender. A forensic psychologist, Tim Watson-Munro, also prepared a report on behalf of Adam Jones. Much of what follows surrounding their respective backgrounds emerges from those reports.

Adam Samuel Jones 73 Adam Samuel Jones was born in the United Kingdom on 17 February 1964 and is now aged 43. He reports having had a happy childhood which involved travelling around from place to place as a gypsy. As a result he never had any formal schooling, although his mother taught him basic literacy skills. As he was growing up, his only contact with other children was restricted to other Romany children. He described to the author of the pre-sentence report "growing up in a culture of mistrust" in which "the Romany people held a significant wariness of the wider community …a mistrust [which historically has been] reciprocated". 74 The offender commenced full-time work laying bitumen with his father when he was 14. He has been in continuous employment since then. He has principally worked in concrete stencil restoration which has enabled him to provide for his family and three children. 75 The offender has no prior convictions. It will be necessary however to pay appropriate regard to the Form 1 matters to which I referred earlier: see Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at 159. 76 As at the time of the offence, the offender is reported to have consumed alcohol on an occasional basis only. Whilst it is clear that he consumed a considerable amount of alcohol on the night in question, he does not in any way rely upon that factor to excuse his behaviour. The author of the pre-sentence report made the following observations concerning the offender's attitude to the offences: He was visibly upset [and said] when … assessed that it was a stupid argument that escalated and [said] that there should have been another means of sorting it out. He does however recall that he never intended for it to happen but felt like he was fighting for his life and stated that it was a situation of "kill or be killed". The offender expressed regret to the victim's family and displayed empathy for what they would be experiencing. He further offered that a day in his life would not pass without thinking about being responsible for taking another man's life. … [He] appeared to possess an in depth understanding of the ramifications of his actions and displayed deep and visible regret of the resultant effects. The offender expressed empathy for the victim, was perceptive of the impact that the victim's death would have on the victim's family and verbalised the shame that he perceived he has brought upon his family. 77 In a testimonial tendered on his behalf, the referee says that she has "never seen [him] involved in any form of violence with or against other people [in the seven years] I have known him". She goes on to say that she knows that the offender "is extremely sorry and upset that his behaviour ended in someone's death and another person being seriously injured". 78 Since his incarceration the offender has been employed in the Maintenance Section of Industries at Parklea Correctional Centre. He is described as being "an exemplary inmate" who is polite, reliable and hardworking. The Welfare Officer says that "the offender appears to be somewhat of a mentor to other inmates and assists other offenders who may be experiencing personal problems". A misconduct charge of "refuse/fail urine sample" is recorded against him but it appears that the offence arose because the offender was simply unable to provide a specimen within the required time limit. Although his wife continues to visit him, their relationship has become strained since his incarceration. 79 It appears from information provided by the Department of Immigration, Multicultural and Indigenous Affairs that the offender's residential status will be determined once the present proceedings are finalised. Were he to be classified as a deportee, the offender would not be able to progress to a C3 classification and nor would he have access to work release or external education programs. That is not however a factor that can play any meaningful part in the sentencing process: see R v Jules [2007] NSWCCA 243. Nevertheless it is pertinent to observe that the offender is understandably distressed at the prospect of deportation, particularly because of the difficulties which that may occasion both him and his family within the Romany community in the United Kingdom, and also because of the uncertainty which surrounds his situation in that respect.

Adam Jones 80 Adam Jones was born on 2 August 1986 and is now aged 21. Although he was born in Australia he went to live in the United Kingdom at the age of 3. Whilst in the United Kingdom he received some schooling. His family returned to Australia when he was 10 years old and he attended primary school for a short period of time thereafter. Although he received no formal education after the age of 12, he is said to have acquired good numeracy and literacy skills through tuition from his family. 81 The offender worked with his father doing menial labouring jobs until he married at the age of 18. He thereafter became self-employed. His wife has now returned with her family to the United Kingdom to live and she and the offender are in the process of getting a divorce. 82 The offender informed the author of the pre-sentence report that he disputes some aspects of the Crown case, but the areas of disagreement are not of any great moment. Although he professed not to know what started the conflict between the families that night, he has nonetheless accepted responsibility for his actions on the night. The author of the pre-sentence report observed that he "has expressed his sorrow at the death of the victim … that was caused [by the actions of his father and himself]…and the rift this has caused between both families". 83 At the time of the offence, the offender was accustomed to consuming alcohol once every two months or so and conceded to Mr Watson-Munro that he was engaged in a "pattern of heavy binge drinking". He said that although he had consumed some alcohol on the night in question, he accepted that it "was not at such a level that he was entirely unaware of his actions or their consequences". 84 Mr Watson-Munro arrived at the following conclusions about the offender: It is apparent that [the offender] has suffered from a range of psychological issues from early childhood. This arises from the isolation imposed upon him by virture of a strong family bond dynamic and tradition, according to his Romany heritage. Hence whilst he appears to have been fairly secure in terms of his immediate family, paradoxically the isolation arising from this and his itinerant lifestyle has precluded any real opportunity for this man to establish meaningful peer group relationships beyond this constellation. This no doubt coupled to his limited education has coloured his view of the world, which is of some relevance in terms of his judgment and capacity to critically evaluate problem situations free from emotional bias. Given the strong dependence that [the offender] has had upon his family, it is apparent that he would willingly follow their direction without readily questioning the broader implications arising from this lifestyle. … Arising from a fairly disjointed and itinerant life involving minimal formal education and extensive travel within Australia and the United Kingdom, [the offender] has developed a fairly myopic view of the world, which no doubt has reinforced the strong dependency that he has upon his family unit arising from the fairly intense bonding that has occurred by virtue of their isolation from the broader community. This dynamic has been further aggravated by his relatively young age and attendant immaturity. These issues are of considerable relevance to his mood state, judgment and behaviour at the material time. 85 The offender is described in a testimonial as a "caring and sensitive young man…[who] is devastated by the result that his actions have caused to both families, a burden that he will carry with him for the rest of his life". The clergyman who officiated at the offender's wedding to Ellen Smith indicated his "complete surprise to learn of the events that bring [the offender] to court". He expressed the view that the offender "is genuinely sorry and repentant for his actions". 86 The offender is reported to have been spending his time in custody in a productive fashion. He was originally employed as a sweeper but now works as a spray painter. His supervisor describes him as a good worker who relates well to both staff and inmates. Furthermore, he has completed a number of educational programs, including a TAFE course in carpentry. He has the continuing support of his mother and his younger siblings who visit him and his father on a regular basis. 87 Mr Watson-Munro also observed that: [h]is exposure to the harsh reality of maximum security prison life has had a salutary impact upon him and reinforced a developing resolve to deal with some of his underlying psychological issues. At examination [the offender] expressed remorse for his behaviour which appears to be genuine. 88 His only previous convictions were recorded in the Local Court in March 2006 and in the Children's Court in May 2006 and involved offences of dishonesty rather than violence. In the Local Court matter, he received a one month sentence of imprisonment for obtaining money by deception. In respect of the matters in the Children's Court, he was placed on probation for 18 months for offences of making a false instrument and receiving stolen property.

Samuel Mark Jones 89 Samuel Mark Jones was born on 2 June 1975 and is now aged 32. He has had a very limited education having spent only a few weeks at school when he was about eight years of age. His reading and writing abilities are accordingly somewhat limited. The family moved to New Zealand when he was 11 and then to England when he was 13. At that stage he commenced working with his father. He has been in constant employment as a painter since the age of 16. 90 The offender married his wife in England when he was 18 and together they have four children ranging in age from 2 to 13. He and his family returned to Australia when he was 20. Even after he was married, he continued to live in the same caravan parks as his parents and other gypsy families. He has had very limited exposure to members of the community who are not gypsies. 91 About a year ago, the offender's wife and children returned to England in order that they could enjoy the support of his wife's family. The offender hopes however to be reunited with his wife upon his release from custody. His only prior conviction, for the possession of a prohibited weapon, attracted a fine of $300 in 2004 in the Local Court. 92 The offender has not received any misconduct reports since he has been in custody. He has been working productively and according to the author of the pre-sentence report "is not viewed as a management problem". The author of the report observed that the offender "appeared to express genuine sadness about the offence which appeared to go beyond simply thinking of his own predicament. When he indicated that he 'felt terrible' about the offence and stated that 'it should never have happened' the sentiment appeared authentic".

Samuel Jones 93 Samuel Jones was born on 6 March 1943 and is now aged 64. He was born and raised in England as the eldest of three children. He lived an itinerant lifestyle and travelled around caravan parks with his family. He informed the author of the pre-sentence report that he was picked on at school because of his family's lifestyle. His schooling was intermittent and from an early age he worked with his father in menial labouring jobs. He eventually left school at 14 and travelled around the country doing painting jobs. 94 He married at the age of 19. Three years later he and his wife emigrated to Australia. They continued their itinerant lifestyle in this country living in caravan parks. The offender continued to work as a painter until he injured his back as a result of a fall from a silo about 20 years ago. Prior to his incarceration, he had been in receipt of an aged pension for a number of years. 95 The offender was convicted in the Local Court in 1974 and fined for offences of not producing a licence, speed dangerous and goods in custody. 96 Before entering custody the offender kept in contact by letter and through phone calls, with his younger brother and sister who still live in the United Kingdom. Only intermittent contact is now possible. 97 The offender continues to deny responsibility for the offences of which he has been convicted although, according to the author of the pre-sentence report, "he expressed sadness that a life was lost". 98 He is currently employed in gaol as a spray painter and reports indicate that he is a diligent worker. He has not incurred any institutional misconduct charges.

Elizabeth Jones 99 Elizabeth Jones was born on 14 November 1944 and is now aged 63. She too was born in England. Her family also led an itinerant lifestyle living in caravans and she told the author of the pre-sentence report that her childhood was a happy one. She has a sister living in Queensland with whom she now has no contact. Her only remaining relative is a brother who lives in England and who is resigned to not seeing her again. 100 The offender was educated in the United Kingdom to the equivalent of Year 10. After leaving school at the age of 16, she worked for her father and then for her uncle. She married at the age of 18 and has since occupied herself as a housewife and mother. It is clear that her marriage has been both long and happy. She has no previous convictions and appears to have led a blameless, if unremarkable existence until her involvement in the present offences. Indeed a reference tendered on her behalf highlights her various personal qualities. 101 The offender is an asthmatic. She is also a non-smoker. She gave evidence before me that that has created difficulties for her in custody because nearly all the other inmates are smokers. Understandably she finds it impossible, given her condition, to share a cell with a smoker. Apparently the authorities are not always able to arrange for her to share a cell with another non-smoker. Indeed on one occasion she told me, she had to be placed in the Inmate Mental Unit (IMU) for a two-week period because that was the only facility which had single cells available. She found that experience disconcerting and fears being returned there. 102 The offender had her thyroid removed in 1982 and is dependent upon a daily intake of thyroxin. The level of medication is subject to monthly blood tests. The offender is reported to regret the fact that the victim died but is said to "steadfastly maintain her innocence in relation to these offences". 103 Remarkably all the members of her immediate family are in custody in relation to these offences. Being males they, at least, will all have access to one another. Unlike them, this offender will be totally isolated from her family whilst she is serving her sentence.

Lydia Jones 104 Lydia Jones was born on 18 October 1965 and is now aged 42. She was born in the Wagga area and grew up as an only child. Her father died when she was a baby and, as a result, she was raised by her mother and members of her extended family. She apparently enjoyed a happy childhood, albeit that it involved a transient lifestyle. She completed her schooling at the age of 16 at the end of Year 10. She then worked in various jobs, including the retail industry, until her marriage at the age of 19. Since then she has dedicated herself to raising her three children and is reported to be a devoted mother. She and her family spent many years travelling around Australia. They also spent six or so years in the United Kingdom although her memories of that period are not particularly happy ones. 105 The offender describes herself as a "social" drinker. She said that on the night of the incident, she had consumed a considerable amount of alcohol. She maintains that since that time she has "gone off" alcohol. She acknowledged to the author of the pre-sentence report that "her actions were unlawful" and became "visibly upset" when discussing her offence. She also appeared to have some appreciation of the impact of the events of the night upon the victim's family. 106 The offender has found the two years since her husband's incarceration particularly challenging as she has had sole responsibility for raising her two children, who are aged 14 and 12 respectively. 107 Because she reported that she had been experiencing sleeplessness and weight loss, the offender was referred to a mental health provider for assessment. Following her initial referral, she and her children were thought to be "in crisis". However subsequent reports indicate that the family have made "positive changes". 108 Also tendered on her behalf was a report from a community based organisation called "Shine for Kids" which supports children whose parent(s) are imprisoned. That organisation has worked closely with the offender's children. The children are said to be deeply traumatised by the arrest and incarceration of so many members of their family. The children currently reside with their mother although they were separated from her during the trial. The authors of the report express concerns that a sentence of imprisonment for their mother would "exacerbate the stress and trauma the children have already experienced". 109 It is to be observed that the offender has no prior convictions. Two references were tendered on her behalf attesting to her good character. She is described in one testimonial as "a kind and gentle person of very good character … [who] is deeply sorry, not only for her actions, but also for the heartbreak suffered by the Smith family". 110 I have received victim impact statements from the deceased's mother, Louisa Smith and from his two nieces, Ellen and Mary Rose. They each speak of the deceased's special qualities. They each regret the fact that the family has felt compelled to return to the United Kingdom as a consequence of this incident. 111 The feelings which the three women have so eloquently expressed, and the grief which they and other members of the family have each suffered, are entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

Relevant sentencing considerations 112 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders, and to the principles enunciated in the authorities which bear upon that issue. In that context I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). See also R v MA (2004) 145 A Crim R 434. 113 In determining the appropriate sentence for the various offences, I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: R v Andrews (2006) 160 A Crim R 505. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element, or if it is an "inherent characteristic", of the offence charged: R v Yildiz (2006) 160 A Crim R 218. 114 I must also weigh in the balance those matters upon which the offenders are entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Act. 115 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point, so far as the manslaughter offence is concerned, must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be suitably punished: see R v Hill (1981) 3 A Crim R 397; R v Troja (unreported, NSWCCA, 16 July 1991 at 2) and R v McDonald (unreported, NSWCCA, 12 December 1995). 116 The offenders are to be sentenced upon the basis that they acted pursuant to a joint criminal enterprise to strike the deceased with an intention to kill or inflict grievous bodily harm upon him. As I have said, it is neither possible nor even necessary to identify who inflicted the fatal blow. It is common ground that it is an aggravating feature that the offences involved the use of weapons: s 21A(2)(c) of the Act. It is also appropriate to have regard to the fact that each of the offences were committed in company: s 21A(2)(e); R v Imnetu [2006] NSWCCA 203. Both the deceased and Noah Smith would inevitably have felt both fearful and powerless in the face of an attack of the present kind. 117 I have not overlooked the fact that the offenders are to be sentenced upon the basis that they were, to some extent, provoked. That is a mitigating matter which is specifically referred to in s 21A(3)(c) of the Act but it is nonetheless important to ensure that the matter is not given undue weight in a case in which it was also a factor in reducing the various offenders' culpability for the death of William Smith from murder to manslaughter. In assessing this aspect of the matter I have had regard to the principles enunciated in R v Alexander (1994) 78 A Crim R 141 at 144. 118 As I have observed Adam Samuel Jones, Elizabeth Jones and Lydia Jones have no prior convictions. The matters recorded against Samuel Jones, by reason of the fact that they occurred over 30 years ago and were of a relatively minor nature, assume no significance for present purposes. Neither Adam Jones nor Samuel Mark Jones have a significant record of previous convictions. In those circumstances, it is appropriate to have regard, in the case of each offender, to s 21A(3)(c) of the Act. 119 It is common ground that three of the offenders, Adam Samuel Jones, Adam Jones and Samuel Mark Jones are entitled to a discount on account of having entered the pleas of guilty to which I earlier made reference. I was informed that the offenders Adam Samuel Jones and Adam Jones offered to plead guilty just prior to the commencement of the trial. When those offers were refused, they pleaded guilty upon their arraignment before the jury. In assessing the appropriate discount to be extended to the offenders, I have had regard to what was said by the Court of Criminal Appeal in R v Thomson & Houlton (2000) 49 NSWLR 383: see also s 21A(3)(k) and s 22 of the Act. 120 The fact that the Crown declined the offers made by Adam Samuel Jones and Adam Jones respectively, does not disentitle them from receiving an appropriate discount for their pleas of guilty: see, for example, the authorities cited in Williams & Saunders v Regina [2006] NSWCCA 33. See also R v Dib [2003] NSWCCA 117; R v Harmouche (2005) 158 A Crim R 357. 121 Although their pleas were somewhat belated, the Crown concedes nonetheless that the pleas of guilty did actually facilitate the administration of justice particularly insofar as they had the effect of narrowing the issues in the trial: see Cameron v The Queen (2002) 209 CLR 339. Clearly enough, had the pleas been accepted, there would have been a very substantial saving of court time and resources. 122 The Crown Prosecutor concedes that Samuel Mark Jones is also entitled to a discount despite the fact that he pleaded guilty in quite different circumstances. Although he was still at large when the trial of the offenders commenced he did nonetheless, as I have said, eventually hand himself into the authorities. Moreover, he did so at a time whilst the jury was still deliberating, when obviously enough, he did not know what verdicts they would return. His pleas of guilty were entered however in full knowledge of the jury's verdicts. There was still some considerable utilitarian value in those pleas because, had he pleaded not guilty, the Crown would then have been obliged to run the entire trial again. Having said that, the pleas of guilty came very belatedly. 123 The Crown submits that a discount in the range of 10% - 15% should be extended to each of the offenders. Counsel for the relevant offenders suggested that a discount of up to 20% was called for. I am inclined to the view that a discount in the order of 15% is appropriate in the circumstances of the present case. In doing so I have had regard to the timeliness of the pleas, and to the observations of the Court of Criminal Appeal in R v FD & JD (supra) in which it was suggested that pleas of guilty offered in circumstances such as the present ought properly to have attracted a discount somewhere around the mid-point of the range in Thomson & Houlton (at 422). 124 It is submitted that each of those three offenders is entitled to an additional, albeit modest measure of leniency for having demonstrated contrition, which is over and above that which is implicit in the pleas of guilty: s 21A(3)(i). It was only in respect of Adam Jones, that the Crown raised an issue with this submission. It was contended that the contents of the recorded conversation between him and Ellen Smith demonstrated that he is not genuinely contrite. It is true that some of the things said by the offender during that call reveal a degree of callousness on his part. By the same token, the remarks made during it by him must in fairness be seen in the context in which the conversation took place. But also to be weighed in the balance are the views which the offender expressed both to police following his arrest in Queensland, and more recently in the pre-sentence report and elsewhere, which indicate that he accepts responsibility for his actions and that he is somewhat remorseful for having so conducted himself. So far as Adam Samuel Jones is concerned, it is to his credit that he handed himself into police at a time when they were not even aware of the incident. Although he was not entirely truthful as to what he told police, he did accept a measure of responsibility for his actions from the outset. As I have said, Samuel Mark Jones also eventually handed himself into the authorities. 125 The offenders Samuel Jones and Elizabeth Jones are, it is agreed, not entitled to any discount for a plea of guilty or remorse. It goes without saying however that they are not to be punished for having contested the charges brought against them. 126 Adam Jones was a young man of 19 at the time of these offences. Although he played a pivotal role in the events which led to the fatal incident and is properly to be regarded as an adult so far as his actions are concerned, he is, and was, far from wise in the affairs of the world. Moreover, he was still very much under the influence of his family, particularly his father. His life within that family was a very insular one. I regard his age as having some relevance to the sentencing exercise: s 21A(3)(j). His age cannot however be regarded as having the significance which may have been attributed to it had he been younger and had he not conducted himself in the manner in which he did on the night in question. 127 Given all the features of the case to which I have referred, I am of the view that each of the offenders has "good prospects of rehabilitation": s 21A(3)(g). 128 I accept that for each of Samuel Jones and Elizabeth Jones it will be a very daunting experience to be in gaol at their time of life. It is likely to be considerably more burdensome for them than would be the case for younger offenders. Moreover, it will be extremely difficult for them to be separated from each other after having been together as a devoted and loving couple for so many years. I have already referred to the particular sense of isolation that Elizabeth Jones will experience. 129 Because the five principal offenders have been convicted of more than one offence, I must give due consideration to the principles of totality. Although in each instance the offences were committed during the course of the one episode which was of short duration, there are nonetheless two different victims and two separate offences. In those circumstances, it is common ground that some measure of accumulation of the sentences is called for. For that reason, I shall in the case of each offender, first set a fixed term for the malicious wounding of Noah Smith and then partially accumulate upon that sentence, the sentence for manslaughter. The fixed term will represent the non-parole period that I would otherwise have fixed. The reason why the first sentence in each case is structured as it is, is because of the immediately succeeding sentence for the offence of manslaughter. I must impose a separate sentence in respect of the assault committed upon Mary Rose Smith by the offender Adam Jones. Although it is deserving of a custodial sentence, the duration of that term would warrant only a very small degree of accumulation given the context in which it occurred. I am also inclined to the view that this offence is towards the lower end of the spectrum of seriousness for offences of this kind. The offender admitted to Ellen Smith that he had struck Mary Rose. By way of explanation, he told Ellen that Mary Rose's possession and use of a weapon had created a threat to which he had simply reacted. I regard his reaction as nonetheless having been excessive. Moreover, I accept the submission advanced on his behalf that had the Crown been prepared to accept the pleas of guilty which the offender was prepared to enter at the outset of the trial, then this matter could properly have been taken into account on a Form 1 document. In all the circumstances, I shall make an order which has the consequence that the sentence for that offence will be wholly subsumed within the other two sentences which I intend to impose upon that offender. 130 That leaves the question of parity as between the five main offenders. This aspect of the sentencing task is not without its difficulties. Prima facie, persons who are involved in a joint criminal enterprise to commit a particular offence can expect to have the objective gravity of their offending assessed at the same level. I have already indicated however that the roles played by Samuel Jones and in particular Elizabeth Jones were such as to entitle them to a penalty which is a little less severe than the other three offenders. 131 Notwithstanding the fact that there are differences in the circumstances of each of the other three principal offenders, I am unable to see a basis upon which it would be appropriate to differentiate between the sentences imposed upon them. I should add that counsel who appeared on behalf of each of those offenders, as well as the Crown, indicated that they agreed with that approach. It is nevertheless necessary to briefly explain why I have reached that conclusion. Adam Jones is younger than the other two and I have concluded that his immaturity and dependency on his family played some part in the reason for his having committed these offences. Unlike his father he has no Form 1 offences to be taken into account, although he does have the conviction for common assault which is to be brought into play. However, his role throughout the entirety of the evening which culminated in the fatal incident, was a critical one. Furthermore, he must bear responsibility for having turned the initial argument from a verbal argument into something considerably more serious by having produced the knife and threatening to use it. 132 Although Samuel Mark Jones was not involved in the initial argument, his role from the point in time at which he decided to travel to Kangy Angy was a highly significant one in the events that followed. Not only did he recruit a number of other persons to come to the caravan park for the explicit purpose of engaging in a fight, but his actions in producing a gun meant that the members of the Smith family were at a significant disadvantage once the fight started. Although his overall culpability may be assessed as being slightly more serious than that of Adam Samuel Jones and Adam Jones, that consideration is offset by the fact that he does not have a conviction for assault and does not have any Form 1 offences to be taken into account. 133 It follows from what I have said that I regard Adam Samuel Jones, Adam Jones and Samuel Mark Jones as each having played more important roles in the commission of these offences than Samuel Jones and Elizabeth Jones. It is common ground that the offenders Samuel Jones and Elizabeth Jones are each also entitled to greater leniency than their co-offenders by reason of the fact that the circumstances in which they will serve their respective sentences will be particularly burdensome for them. That is especially so, as I have pointed out, in the case of Elizabeth Jones. Nevertheless, neither of those two offenders has the benefit of a plea of guilty. 134 Notwithstanding those differences, it will be necessary to maintain "due proportion" between the sentences imposed. The correct principles to be applied were stated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295, in which their Honours said: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (at 301-2) 135 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. Nevertheless, I have derived some assistance from a number of cases which, the Crown submitted, were somewhat comparable to the present case and as such give some indication as to the appropriate range. The cases to which I was referred by the Crown are R v Ladd [2001] NSWSC 1055; R v Bullock [2005] NSWSC 1071; R v Berrier [2006] NSWSC 1421; R v Cavanough [2007] NSWSC 561 and R v Cakovski [2005] NSWSC 1001. For completeness I should indicate that I have had regard to the review of relevant authorities undertaken in R v Forbes (2005) 160 A Crim R 1 at 37-43 and in Cakovski (supra) at pars 35-6. 136 It appears to be common ground that, with the exception of the decision in Ladd (supra) (in which the offender had a significant prior history including a conviction for murder), those cases suggest that a head sentence in the order of 7½ years to 9 years with a non-parole period of 5-6 years may be appropriate in a case such as the present. Notwithstanding the well recognised limitations of that kind of material and although the exercise of the sentencing discretion is for the Court alone, I am disposed, in what the Crown aptly described, as the unique circumstances of the present case, to have some regard to what those authorities indicate. 137 I am prepared, in each case, to make a finding of "special circumstances". The Crown did not submit that it was not open to me to do so. I make that finding largely to reflect the fact that each offender is serving their first term of imprisonment and will need an extended period upon their release from custody within which to re-integrate into society. I also do so because the sentences are to be partially accumulated. 138 It is appropriate in the case of each offender, other than Elizabeth Jones, to order that the sentences imposed upon them commence on the day of their arrest. Each of those offenders has been in continuous custody since that time. In the case of Adam Samuel Jones, the relevant date is 9 October 2005. So far as Samuel Jones and Adam Jones are concerned, the relevant date is 26 October 2005. So far as Samuel Mark Jones is concerned, the relevant date is 27 June 2007. I was informed that Elizabeth Jones had been in custody for 33 days following her arrest before obtaining bail. She then remained on bail until 2 July 2007 when I remanded her in custody following the jury's verdicts. It is common ground that I should order that her sentences commence on 30 May 2007 to reflect that earlier period of custody. It is pertinent to observe that whilst on bail she was subjected to stringent conditions, including a requirement that she report to police three times a week. 139 That leaves the case of the offender, Lydia Jones. The Crown submitted, correctly in my view, that the offender's actions "had the potential to frustrate the prosecution of her husband" and that they were motivated by a desire to protect him. I accept that her actions took place within a limited timeframe and that they represented a spontaneous response to what was clearly a dramatic situation. I also accept that any assistance which may have been provided by her in wiping down the weapons would have been of minimal utility given that she placed the weapons outside her caravan in a position in which they were readily located by police. It is also to her credit, as the Crown accepted, that she played a peacekeeping role in the period whilst preparations were being made for the looming battle. For those reasons I would assess her criminality as being at the lower end of the spectrum of offences of this kind. I have already referred to her powerful subjective case. In my view, the various factors to which I have referred are of such a kind as to entitle me to adopt a rather more lenient approach than might otherwise have been the case for what, on the face of it, remains a serious crime. I am fortified in that view by the very proper stance taken by the Crown that a custodial sentence is not called for in her case. 140 In R v Dileski [2002] NSWCCA 345, Hidden J, with whom Adams J agreed, observed that "in many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by full-time custodial sentences" [at par 17]. Those remarks are particularly apposite to this case, especially as they were made in the context of a case involving an accessory after the fact to murder. 141 In R v Abdulrahman [2007] NSWSC 578 Studdert J reviewed a number of cases in which offenders have been sentenced for being an accessory after the fact to manslaughter. In the main, those offenders had assisted in the concealing or disposing of the body of the deceased, conduct which I regard as being rather more serious than anything which the present offender did. 142 In the final analysis, it is necessary to impose sentences which properly reflect the objective gravity of the offences in question. Furthermore, the sentences must give effect not only to the various matters referred to in s 3A of the Act but also to the maximum penalty prescribed by the legislature. The considerations to which I have just referred apply equally to the non-parole period and to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. This case involves the death of a man following an unrestrained attack upon him by a number of persons during the course of which a number of dangerous weapons were used. Another man was badly injured when he attempted to assist the deceased. The attack took place in the presence of, and was witnessed by, a number of members of the deceased's family, including relatively young children. A message must be sent out that the community will not tolerate disputes, even those of an apparently private nature, being resolved in the fashion in which the present one was. Notwithstanding the circumstances in which the offenders committed these offences, a human being has needlessly lost his life. Nothing less than custodial sentences of some length can thus be countenanced.

Adam Samuel Jones 143 For the offence of malicious wounding of Noah Henry Smith, the offender is sentenced to a fixed term of 18 months imprisonment to commence on 9 October 2005. I decline to impose a non-parole period because of the sentence which I am about to impose. 144 For the offence of manslaughter of William Smith, and taking into account the matters on the Form 1 document, the offender is sentenced to a total term of 8 years 3 months consisting of a non-parole period of 5 years 3 months with the balance of the term being 3 years. Each term will commence on 9 July 2006. The total term will expire on 8 October 2014 and the non-parole period will expire on 8 October 2011 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 9 years imprisonment with a non-parole period of 6 years.

Adam Jones 145 For the offence of malicious wounding of Noah Henry Smith, the offender is sentenced to a fixed term of 18 months imprisonment to commence on 26 October 2005. I decline to impose a non-parole period because of the sentence for manslaughter which I am about to impose. 146 For the offence of common assault upon Mary Rose Smith, the offender is sentenced to 4 months imprisonment to commence on 26 July 2006. I decline to impose a non-parole period because of the sentence which I am about to impose. 147 For the offence of manslaughter of William Smith, the offender is sentenced to a total term of 8 years 3 months consisting of a non-parole period of 5 years 3 months with the balance of the term being 3 years. Each term will commence on 26 July 2006. The total term will expire on 25 October 2014 and the non-parole period will expire on 25 October 2011 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 9 years imprisonment with a non-parole period of 6 years.

Samuel Mark Jones 148 For the offence of malicious wounding of Noah Henry Smith, the offender is sentenced to a fixed term of 18 months imprisonment to commence on 27 June 2007. I decline to impose a non-parole period because of the sentence which I am about to impose. 149 For the offence of manslaughter of William Smith, the offender is sentenced to a total term of 8 years 3 months consisting of a non-parole period of 5 years 3 months with the balance of the term being 3 years. Each term will commence on 27 March 2008. The total term will expire on 26 June 2016 and the non-parole period will expire on 26 June 2013 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 9 years imprisonment with a non-parole period of 6 years.

Samuel Jones 150 For the offence of malicious wounding of Noah Henry Smith, the offender is sentenced to a fixed term of 18 months imprisonment to commence on 26 October 2005. I decline to impose a non-parole period because of the sentence which I am about to impose. 151 For the offence of manslaughter of William Smith, the offender is sentenced to a total term of 7 years 9 months consisting of a non-parole period of 4 years 9 months with the balance of the term being 3 years. Each term will commence on 26 July 2006. The total term will expire on 25 April 2014 and the non-parole period will expire on 25 April 2011 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 8 years 6 months imprisonment with a non-parole period of 5 years 6 months.

Elizabeth Jones 152 For the offence of malicious wounding of Noah Henry Smith, the offender is sentenced to a fixed term of 12 months imprisonment to commence on 30 May 2007. I decline to impose a non-parole period because of the sentence which I am about to impose. 153 For the offence of manslaughter of William Smith, the offender is sentenced to a total term of 7 years consisting of a non-parole period of 4 years 6 months with the balance of the term being 2 years 6 months. Each term will commence on 30 November 2007. The total sentence will expire on 29 November 2014 and the non-parole period will expire on 29 May 2012 on which date the offender will be eligible for release on parole. The total effective sentence is thus one of 7 years 6 months imprisonment with a non-parole period of 5 years.

Lydia Jones 154 For the offence of being an accessory after the fact to the manslaughter of William Smith, the offender is released on a bond to be of good behaviour for a period of 2 years. It is a condition of that bond that she appear before the court if called upon to do so at any time during the term of the bond. It is a further condition of that bond that she obey all reasonable directions of the Probation and Parole Service. For that purpose she is to report to the Blacktown office of the Service within 7 days. **********

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