R v Kennedy

Supreme Court of NSW|2015-03-13|Before: Wilson J, Barr AJ

Solicitors: Solicitor for Public Prosecutions (Crown) Michael Croke & Co (Offender) File Number(s): 2012/00206026

SEntence

On 25 December 2010 siblings Mary Tarr and Doug Davies sat down together for Christmas lunch. There was an empty chair at the table that day which, but for the events of 19 November 2010, would have been taken by Stanley Bruce Davies. That Christmas lunch of 2010 was to have marked the 75th anniversary of Christmas lunches celebrated together by Mrs. Tarr and Stanley Bruce Davies, and another anniversary of such celebrations with their younger brothers.
That empty chair is symbolic of the loss of the life of Stanley Bruce Davies to his family and to his community, Mr. Davies having been savagely murdered by three young men who entered his home on the evening of 19 November 2010, and beat him so brutally that he died, one week later, on 26 November 2010.

The History of the Matter

Five Christmases have now passed since Mr. Davies was murdered. As that lapse of time suggests, this matter has some history.
A police investigation began after a horribly injured Mr. Davies was found unconscious at his Kempsey home on 20 November 2010. On 8 December 2010 a search warrant was executed by police on premises at Dondingalong. Richard Smith was found there hiding in a cupboard. He was arrested in relation to the murder of Mr. Davies. Also present at the Dondingalong premises that day were Steven Smith and the offender.
On 27 June 2012 Steven Smith was arrested and also charged with the murder of Mr. Davies. Five days later, on 2 July 2012, this offender was also arrested. He too was charged with Mr. Davies' murder.
On 1 February 2013 Richard Smith was arraigned upon an indictment charging him with the murder, and he pleaded guilty.
On 5 April 2013 Steven Smith and the offender were jointly ordered to stand their trial on 7 June 2013 before the Supreme Court sitting at Port Macquarie. That trial date was later vacated.
Steven Smith was re-arraigned on 2 October 2013 and entered a plea of guilty to the indictment charging him with Mr. Davies' murder. He also pleaded guilty to other unrelated offences.
On 6 November 2013 the applicant appeared before Barr AJ in the Supreme Court sitting in Sydney, and was again arraigned upon a charge of murder. On that date the offender entered a plea of guilty to the charge. The sentence proceedings were adjourned for hearing on 15 November 2013.
On 15 November 2013 the sentence hearing commenced, but was not finalised due to the need for two witnesses to attend to give evidence relevant to a factual dispute. The matter was further listed for sentence hearing on 28 February 2014.
On that date, the two required witnesses did not attend Court and warrants were issued by the Court for the arrest of each. The matter was adjourned to 7 March 2014 for further hearing.
On 7 March 2014 the offender withdrew his instructions to his legal representatives and indicated that he wished to withdraw his plea of guilty. The matter was further adjourned.
Thereafter, in June 2014, the applicant filed a Notice of Motion seeking leave to vacate the plea of guilty he had entered on 6 November 2013.
That application was heard before me on 5 December 2014, and refused.
On 13 March 2015 the parties tendered their respective cases on sentence, and made submissions to the Court.

The Facts of the Offence

There was no agreement between the parties as to the facts upon which the offender is to be sentenced and so the task of determining the facts of the offender's involvement in this crime falls to this Court.

The Evidence

Relevantly, the Crown tendered a summary of facts, statements from Glenda Button (Ex. F) and Kirsty Roe (Ex. H), and the transcript of a recording of a conversation between Steven Smith and other persons which took place on 5 March 2011 (Ex. E). All of that material was subject to dispute by the offender.
The Crown's summary of the facts, Exhibit A1, is not agreed. Specifically, the offender disputes the matters referred to in paragraphs [4], [6], [7], [9], [22], and [23] of the document. Oral evidence was called from Glenda Button and her evidence before the Court differed substantially from that which was contained in her statement. The statement of Kirsty Roe was tendered by the Crown pursuant to s 65 of the Evidence Act 1995, and was not subject to cross-examination or any other form of testing. The transcript of the conversation involving Steven Smith was objected to, and admitted provisionally only. Mr. Smith himself was called as a witness, but refused to take an oath or affirmation, and refused to give evidence, even on an unsworn basis. He was subsequently charged with three counts of contempt in the face of this Court, and remains to be dealt with. Finally, the Crown called evidence from Detective Senior Constable Dean Rutledge.
The offender did not give evidence or call evidence relevant to the factual findings to be made.
Glenda Button attended Court in answer to her subpoena on 13 March 2015, although she did not arrive until the early afternoon. When she did appear, her unwillingness to attend Court and to give evidence was palpable. She presented as drug affected, and almost certainly was apprehensive, even fearful. What she may have been apprehensive or frightened of I cannot determine.
Ms. Button acknowledged in evidence having made a statement to police on 17 December 2010, but sought to qualify its contents to a degree by stating that she was drug affected when she made the statement.
Ms. Button told the Court that "some" of her statement was true. In cross-examination by the Crown, leave to do so having been granted pursuant to s 38 of the Evidence Act 1995, Ms Button pointed to paragraphs 25 and 26 of her statement as those which were not truthful. She confirmed that the rest of her 2010 statement was true.
In cross-examination by Mr. Johnston, for the offender, Ms. Button asserted that she made her statement to police because others had told the police she had information about the death of Mr. Davies, and the police "harassed" her to make a statement. She did, however, specifically deny that anyone had placed pressure on her to give a statement, or to say those things that were recorded in it.
In answer to a number of Mr. Johnston's question, Ms. Button claimed not to be able to remember some of the things she had recorded in her statement. She referred to her drug use at the time.
Detective Rutledge was the officer who took the statement from Ms. Button, and also that from Ms. Roe. He gave evidence to the Court by videolink. Detective Rutledge, who had been asked to give his evidence without notice and in circumstances where he had not had any opportunity to review contemporaneous records, had at least some reasonable recall of taking the statements from the two women. He impressed me as entirely candid and genuine.
He deposed that he had spoken to Ms. Button and Ms. Roe together, and that the two had then attended the Kempsey Police Station to make statements. Neither showed any reluctance to give a statement. At the station, he spoke with each woman separately, and obtained a statement. He knew Ms Button to be a user of heroin and cannabis, but she displayed no signs of affectation from either drug, or other substance, when she gave her statement. As an officer with, at that time, 27 years' experience in the Police Force, I consider him able to express such an opinion.
Although Detective Senior Constable Rutledge did not specifically recall reading Ms Button's statement to her, he said he believed that he would have gone through the document with her prior to her signing it, as that was his usual practice. It was his practice to read a statement to or with a witness and make any changes that were necessary, prior to the witness signing the statement. I accept that he followed his usual practice in this instance.
The same procedure was followed in relation to Ms. Roe, and the officer did not consider her to be unwilling to give a statement, or affected by any drug when she did so.
In both instances the statements contain the usual jurat as paragraph one, with each witness acknowledging the obligation to be truthful, the possibility that the evidence contained in the statement could be given in court, and the possibility of criminal charges following any false statement.
Whilst Ms. Button presented as a reluctant witness who was unwilling to say anything that might be adverse to the offender, I am satisfied that, when she gave her statement, she gave a truthful account of matters within her knowledge. I have had regard to the evidence of Detective Rutledge in drawing that conclusion, but also to the fact that Ms. Button could only have known about some of those matters that she referred to in her statement from her own observations or from what the offender told her. That conclusion is strengthened to a degree by the correspondence between those matters connected with the home invasion that she referred to, and other independent evidence (such as medical and forensic evidence) of those same things. The fact that Kirsty Roe gave a consistent account in her statement, albeit untested, also provides some further reason to accept as truthful those things Ms. Button said in her statement, and affirmed in most regards in her evidence.
Although Ms. Roe's statement of 17 December 2010 was unsworn, and not subject to testing, I have had regard to its contents insofar as those contents are supported by evidence independent of Ms. Roe (and of Ms. Button). I do so on the basis that Ms. Roe made her statement willingly and at such a time when she was not drug affected, and she acknowledged within it the obligation on her to tell the truth. Where her statement is consistent with forensic evidence, it may be accepted beyond reasonable doubt.
Steven Smith was called to give evidence on 13 March 2015. His unwillingness to testify was even greater than that of Ms. Button.
Mr. Smith, who is presently in custody serving a lengthy sentence which will see him in prison until at least 7 August 2030, refused to take an oath or affirmation, and refused to answer any questions, even to give his own name. In Court he swore extravagantly and threatened physical violence to court staff and Corrective Services officers, actually raising his fists and moving to strike staff on a number of occasions. His conduct was such that he represented a significant risk to the safety of all officials present in the court room, and I had him removed from the Court.
If Mr. Smith had done as he was directed to do, and taken an oath or affirmation and given truthful evidence, he might have been expected to give evidence about precisely what had occurred inside Mr. Davies' home on that terrible evening. The Crown had a legitimate expectation that Steven Smith could give evidence consistent with his recorded comments made on 5 November 2011, thus providing relevant information as to this offender's role in Mr. Davies' death. In those recorded comments, Steven Smith asserted that the three offenders went to Mr. Davies' home intending to "do the safe". He claimed that the offender and Richard Smith were affected by drugs and, under the influence of drugs, "kept going and going". From the overall context of those comments, it appears that Steven Smith attributed the violence against Mr. Davies to Richard Smith and the offender, including repeated blows to the head delivered by both.
Although the offender did not give evidence and so what he asserts about these events is largely unknown, having regard to evidence before the Court relevant to his application to reverse his plea, it is open to infer that the offender may have expected Steven Smith to resile from the account he gave on 5 November 2011, and support the offender's claims that he had no prior knowledge of the purpose of attending Mr. Davies' home, and did not himself ever strike Mr. Davies, touching him only to try to assist him.
What Steven Smith's evidence would have been can now only be the subject of speculation due to the contempt of the witness in the face of the Court. Both parties thereby lost an opportunity that should have been open to them to obtain or test what would have been highly relevant evidence.
Steven Smith's account of the night of 19 November 2010 was given to associates in the drug using milieu in which he moved. It was not subject to any obligation or promise to be truthful, and ordinary human experience would suggest that it was likely to be a significantly diluted account of events, at least in so far as his own conduct was concerned. What these three men did that night was a shameful thing, such that even hardened criminals might feel constrained from acknowledging their involvement. It is likely that Steven Smith felt that shame at least at some level, and minimised his responsibility for what was done to Mr. Davies in his conversation.
Certainly having seen the violence to which he almost instantly sought to resort in the environment of a court room, where he was not drug affected, and was subject to the supervision of Corrections officers, I would not readily conclude that Steven Smith was innocent of involvement in the assault upon Mr. Davies, as he asserted on 5 November 2011, and as was accepted when he was sentenced.
Accordingly, I cannot be satisfied beyond reasonable doubt as to the veracity and reliability of his unsworn assertions about the role of the offender.
Whilst the transcript of the conversation of 5 November 2011 was admitted provisionally on 13 March 2015, I am not prepared to finally admit the evidence, and such evidence as it contained I have set aside.
The offender neither gave evidence nor called any evidence relevant to the facts that the Court should find.
There was some evidence adduced by him during the hearing of the application to vacate the plea of guilty in December 2014 that could be relevant to this question, but the offender did not seek to rely upon that evidence for the purposes of these proceedings. Since his evidence was not tested in any real sense during the earlier proceedings, it could have had little weight in any event.
The offender has given some limited accounts of the events of 19 November 2010 to others, but such accounts must be treated with considerable circumspection in circumstances where they have not been given on oath: R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369.
To the author of a pre-sentence report requested by the Court the offender gave an account inconsistent with any liability for this crime. I do not accept that untested hearsay account.
To Anthony Diment, a forensic psychologist seen by the offender during the course of the proceedings, the offender acknowledged having a poor memory of the night, but asserted that he did not have any intention of hurting anyone.
I am not prepared to accept that hearsay assertion on the balance of probabilities.
I have had regard to all of the relevant and admissible evidence tendered to the Court in finding the facts to be these.

The Facts Found by the Court

Mr. Davies, the deceased, was a man of 75 years who lived alone at his home in Dangar Street at Kempsey. He had lived in the area all of his life.
In his home Mr. Davies kept a collection of coins in a safe, and he had guns stored in a secure gun safe.
At 6 o'clock on the evening of Friday 19 November 2010 a friend of Mr. Davies called by his home and spoke with him. At the time, Mr. Davies was well and he had no injuries.
On that same evening the offender was also in the Kempsey area. He was staying or living with his parents and other family members at an address in South Kempsey.
Also living at the South Kempsey address at that time with the offender and his family were Glenda Button and Kirsty Roe.
During the late afternoon or early evening of 19 November 2011 the offender told family members and others present, including Glenda Button, that he was going out. Referring to Richard Smith, the offender told those present that "Poochie" had a "house lined up. There is a safe in it and he wants to do it over". The offender said that someone had told Richard Smith, or "Poochie" as he was known, that there were valuable coins kept in a safe at the house. The offender left his home intending to meet Richard Smith and Steven Smith.
When he left the house the offender was wearing a pair of borrowed Nike TN jogging shoes.
At about midnight Mr Davies' neighbours heard banging sounds coming from his home. There was a noise similar to that made by a door when slammed, and then more banging sounds.
The noises were likely to have been made by the three offenders, who entered Mr Davies' house at around this time, intending to steal the property Richard Smith had been told was inside the premises. How the three gained entry is not clear; it may have been as simple as banging on the door until Mr. Davies opened it, and then pushing into the house. The evidence, however, establishes only that the doors and windows of the home were intact, and there was no sign of a forced entry.
Glenda Button recalls the offender saying that, as they were "rushing in the door" Richard Smith tripped and cut himself. This is consistent with forensic evidence. DNA matching that of Smith was recovered from blood stains at the house. It is that evidence that allowed police to arrest and charge Richard Smith in December 2010.
Having entered the house the offenders confronted Mr. Davies and demanded property from him. The fact that the offenders left empty handed is a testament to Mr. Davies' courageous refusal to surrender his possessions to them.
The offenders dealt with Mr. Davies brutally. From the injuries that he sustained, and the drip trails left in blood at his home, it is evident that the offenders assaulted Mr. Davies to the point where he was bleeding heavily, and then propelled him in some way around his house, doubtless in an attempt to force him to hand over keys to his safes, or reveal the location of items of value. In some locations in the house blood had pooled; in other places there were areas of heavy bloodstaining.
From the evidence of blood deposition it is likely that Mr. Davies was viciously assaulted in the lounge room of his home and, bleeding heavily from his injuries, he was then forced from the lounge room, and along the hallway to one of the bedrooms. In that bedroom, apparently a spare room, there was a considerable amount of blood deposited, including impact blood spatter. The room had been ransacked. Cupboard doors hung open and drawers had been pulled from within. The contents of drawers and cupboards had been dragged out and strewn around the room.
A cupboard in that bedroom that was fitted with a deadlock showed signs of having been kicked repeatedly, plainly in an attempt to forcibly open it. The imprint of the shoe worn by the individual who tried to kick his way into the cupboard was left in blood. The blood was that of Mr. Davies. I am satisfied that it was the offender, wearing the Nike TN shoes, who left his bloody shoeprints on the cupboard, and also in the doorway to the kitchen.
A gun safe and another key locked safe were in this bedroom. Each showed signs of the application to them of considerable force, applied in an attempt to gain access to the contents. Tool impressions left on timber around the key locked safe showed that a tool had been used in an attempt to force the safe open.
The amount of blood in this bedroom was such that it is clear that Mr. Davies was again brutally assaulted in this room, inferentially, to endeavour to force him to open the locked safes, or provide the keys to allow the offenders to do so.
The offender said in the presence of Glenda Button, "We got away with nothing, because the bloke wouldn't give us the code to the safe. That was when Pooch was jumping on him, because he wouldn't give the code up".
The offenders must have been inside the home for some period of time, since the house had been comprehensively ransacked, and time had clearly been spent as the offenders tried to forcibly open safes and other secured cupboards.
When they left, they left Mr. Davies on the floor of the bedroom that contained the safes. He was left injured, wedged between a bed and a cupboard.
Glenda Button saw the offender arrive home in the early hours of the morning of 20 November 2010. He went straight to his bedroom without speaking to Ms. Button or Ms. Roe, who were both awake. Ms. Button noticed that the offender appeared to be wearing different clothes to those he had been wearing earlier in the night. It is reasonable to infer that he had changed his clothes, in all likelihood because of blood staining to the clothing he had been wearing earlier.
He later told her about the offence, claiming that Richard Smith had hit Mr. Davies with a hammer. He said that he had thrown away the Nike shoes he had been wearing.
Mr. Davies was not found until the following afternoon, Saturday 20 November 2010. At about 5.30pm Mrs. Tarr, Mr. Davies' sister, went to the house to have dinner with Mr. Davies. She saw the morning newspaper uncollected at the front of the house and, on entering the house, she saw immediately that the lounge room had been ransacked. She called out to her brother but there was no response.
Mrs. Tarr went to the nearby home of her younger brother and the authorities were contacted.
The police went into Mr. Davies' home and quickly found him on the floor of the spare bedroom. He was unconscious and his head was severely swollen. His clothing was drenched with his blood and his shirt appeared to have been ripped from his body. Mr. Davies was taken immediately by ambulance to Kempsey Hospital, and thereafter evacuated by air to the John Hunter Hospital in Newcastle.
Mr. Davies had extensive and irretrievable brain injuries consistent with multiple blows from a blunt object. He could not be saved by medical staff. On 26 November 2010, a life support system was turned off. Mr. Davies died from his injuries that evening.
Dr. Allan Cala conducted a post-mortem examination of Mr. Davies on 30 November 2010. Dr. Cala concluded that Mr. Davies had died as a result of craniofacial trauma with bleeding to the face and into the brain. He found multiple and severe injuries.
Dr. Cala observed evidence of extensive trauma to the head, face and neck, with both zygoma fractured. The hyoid bone was also fractured, suggesting neck compression or blunt trauma to the upper neck. Severe traumatic brain injury had been inflicted with bleeding on and in the brain. Dr. Cala concluded that the overall characteristics of the injuries to the face and head were consistent with a severe, violent, and sustained assault to the head, face, and neck.
There were also injuries to the torso and upper limbs, including "patterned" injuries consistent with an assault using an implement such as a tyre lever or golf club shaft. There were multiple bruises and abrasions to the body, including to the fingers and hands.
The head and facial injuries seem to be entirely consistent with assault using fists, feet, and implements. The offender told Glenda Button that a hammer had been used to strike Mr. Davies, and the use of such a weapon is suggested by the injuries, as is an offender "jumping on" Mr. Davies.
The evidence does not allow me to conclude who of the three offenders inflicted the terrible violence that Mr. Davies suffered. In that this was a joint criminal enterprise to rob Mr. Davies, in some ways the role played by each inside the house is of lesser significance, since each is responsible for the acts carried out in furtherance of the enterprise.
Biological material removed from under one of Mr. Davies' fingernails matches the DNA profile of the offender. It is clear there was physical contact between the two. That the DNA was recovered from underneath the fingernail suggests that Mr. Davies may have scratched the offender, perhaps defensively. That I cannot determine. On all of the evidence, however, I have concluded beyond reasonable doubt that the offender applied force to Mr. Davies during this shameful attack, leading to the deposit of DNA.
It is likely that Richard Smith was responsible for most of the violence to Mr. Davies.
I am prepared to accept on the balance of probabilities that the offender was outside the premises for some part of the time during which this crime was carried out. He told Glenda Button that he was in the car outside when he heard smashing. On entering he saw Richard Smith striking Mr. Davies with a hammer. The offender claimed to have taken the hammer away from Smith. I cannot determine, even on the balance of probabilities, whether that last self serving statement has any truth in it.
Whether or not the offender acted as lookout for part of the time, I am satisfied that he entered the house with his two co-offenders, and was a party to the ransacking of Mr. Davies' house in the hunt for items of value, including by forcefully and repeatedly kicking a locked cupboard in an attempt to gain entry. I am satisfied that he applied force to Mr. Davies, and was present whilst his co-offenders did the same. He, like his co-offenders, did nothing to get aid for Mr. Davies.
This was a crime of considerable gravity. Three young men joined together to enter the home of an elderly man late in the night with the intention of robbing him. They then assaulted Mr. Davies using fists, feet, and makeshift weapons with such brutal force that he was left terribly and mortally injured. The offenders were all drug users, and the only motivation for this horror was to obtain money or other valuables that could be used to acquire drugs. This was a vicious and cowardly attack on a very much older man who should have been safe inside his home. One elderly man was readily overpowered by three younger men who used both their numbers and their greater strength in an attempt to affect their aim of robbery. Having grievously injured their victim the offender and his co-offenders then callously abandoned him to his fate. Mr. Davies lay horribly injured and alone for many hours until he was eventually found.
The evidence is readily capable of establishing the offender's liability either as a participant in a joint criminal enterprise to commit an aggravated robbery during which Mr. Davies was assaulted and killed, or, on the basis that the offender, with his co-offenders, jointly assaulted Mr. Davies intending thereby to do him grievous bodily harm, with the motivation of theft.
There is no real distinction in the circumstances of this case; on either approach - constructive murder or intention to do grievous bodily harm - the offender is criminally liable for the murder of Mr. Davies, a murder which is a very grave example of this State's most serious criminal offence.
His moral culpability on either basis is high.

The Plea of Guilty

The history of the offender's entry of and application to withdraw his plea of guilty can be found in R v Raymond Kennedy [2014] NSWSC 1921.
A plea of guilty must be taken into account by a sentencing court: s 22 Crimes (Sentencing Procedure) Act 1999. The question is in what way it is here relevant to the sentence to be imposed.
Ordinarily a plea of guilty is relevant in two ways. It will generally attract a reduction in the sentence that would otherwise be imposed to reflect its utilitarian value to the justice system. Also, a plea of guilty may be considered as indicative of some acceptance of responsibility, and expression of remorse, by the offender for his or her crime.
In submission both parties suggested that, by virtue of the application to withdraw the plea, the offender is not entitled to any discount for the utilitarian value of his plea. I do not believe those submissions to reflect the law in that regard. Despite the withdrawal of the plea, there may still be some utilitarian value in its entry, and I have considered the question of any discount on that basis.
The plea was a very late one and it was made consonant with a significant factual dispute. The lateness of the plea diminishes any discount to be applied. Additionally, the Court was required to determine a factual dispute which involved evidence being called and tested. In the circumstances of this case, the utilitarian value flowing from the plea is minimal, but should still be recognised by a minimal discount, in the order of five per cent.
Having regard to the application to vacate the plea, and the offender's claims to the author of the pre-sentence report and to Mr. Diment, the plea is not a reflection of remorse or contrition.

Proceedings Against the Co-Offenders

By reason of their earlier pleas of guilty Richard Smith and Steven Smith have already been sentenced for the murder of Mr. Davies. The Crown tendered material from those sentence proceedings, and I have had regard to that information, as it is relevant to the proper application of the principle of parity.
Richard Smith was sentenced by Schmidt J on 23 August 2013 for the murder of Mr. Davies. The factual basis of the case against him was similar to that established by evidence against the offender. Richard Davies acknowledged in comments to a psychologist that he had struck Mr. Davies, although he blamed the offender and Steven Smith for the worst of the violence. He claimed to have been drug affected at the time, and in need of money to fund his drug use. He expressed remorse to the psychologist for what he had done. He was of limited intellectual capacity.
Richard Smith was nine years older than the offender. He also is an Aboriginal man. His childhood years appear to have been unremarkable until his mother formed a new relationship when Richard Smith was about 12 years old. His new step-father was violent and abused alcohol. Smith began truanting and absenting himself from home, and he fell into drug use and crime.
Richard Smith had a lengthy criminal history which started when he was about 15 years (although there is conflicting evidence in the tendered material as to his date of birth). There were numerous Children's Court entries for offences of larceny, steal motor vehicle, and break and enter offences. He had convictions as an adult for like offences and had served periods of imprisonment. He was subject to parole at the time of the commission of the offence.
Richard Smith received a discount of eighteen per cent on the sentence that would otherwise have been imposed upon him, to recognise the utilitarian value of his plea of guilty, entered after committal but before trial.
But for that discount, the sentence imposed upon Richard Smith would have been 28 years imprisonment. With the discount, her Honour sentenced Smith to a term of 22 years and 11 months imprisonment, with a non-parole period of 17 years and 2 months imprisonment. His earliest possible release date is 2 January 2029.
Steven Smith was sentenced on 14 November 2013 by Barr AJ for the murder of Mr. Davies, and also for two offences of armed robbery. The latter offences were committed in company with Richard Smith and involved the violent robbery of two elderly people.
The factual basis of the case before the Court relevant to Steven Smith was a little different to that established by the evidence in the offender's case, principally because of the admission into evidence of Smith's conversation of 5 November 2011. In that conversation Smith had minimised his involvement in the brutality against Mr. Davies, and blamed Richard Smith and the offender for the violence. He was sentenced on the basis that he played no physical part in the assault upon Mr. Davies, and tried to give some limited first aid to him.
Like the offender, Steven Smith is an Aboriginal man. He is about five years older than the offender. He had a dysfunctional upbringing marred by substance abuse and violence and was himself dependent upon alcohol and drugs. He had attracted a number of entries against him for Children's Court offences, of a like nature to those of the offender, but additionally had been convicted in the District Court of aggravated break, enter and commit serious indictable offence. Smith was subject to parole for that offence at the time of Mr. Davies' murder, that being an aggravating feature to his crime.
A psychological report was in evidence and that established that Steven Smith functioned at a low level intellectually.
His Honour was not able to make any positive finding as to the prospects of rehabilitation, although he was satisfied that Smith was remorseful. There was a discount to reflect the utilitarian value of the late plea.
Steven Smith was sentenced to a term of 20 imprisonment, with a non-parole period of fourteen years, for the murder of Mr. Davies. His earliest possible release date is 7 August 2030, the sentences having been partially concurrent with the sentences imposed for the robberies. The principle of totality may well have affected the length and structure of the sentence to some degree. Absent the discount, his sentence would have been 22 years and 3 months imprisonment.
As the High Court noted in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462, the principle of parity "applies to co-offenders whose culpability and antecedents are comparable" (at [117]).
Broadly, that is the case here, although the offender's criminal record is not as extensive as that of either of his co-offenders and, at 18 years of age at the time, he has a greater claim to youth than his co-offenders, although that cannot greatly ameliorate the sentence in the circumstances of this case. The offender was already a parent, living with and supporting his partner and children. His lifestyle was not that of a child, or someone of childlike immaturity. Conversely, the co-offenders were dealt with on the basis that each was remorseful for the crime, and there was a discount applied to sentence of 18 and 10 per cent respectively.
I have concluded that the principle of parity applies, subject to those qualifications.

Other Relevant Evidence

The offender was aged 18 years and 7 months at the time of the commission of this offence. He is now just short of his 23rd year.
His first recorded criminal offences occurred in October 2005 when the offender was 13 years old. Warrants were issued for the offender's arrest for a string of offences, including multiple counts of aggravated break enter and commit serious indictable offence. Bonds and cautions in the Children's Court followed.
There were also offences of assault, destroying property, and receiving stolen property.
In May 2006 there were further offences of destroying property and of having goods in custody. The offender was made subject to two bonds without conviction by the Cobham Children's Court.
Later that same month a larceny offence was dealt with by a caution in the Children's Court, and a further such offence the following month saw another bond imposed upon him in the Children's Court.
In April 2007 the offender was dealt with by way of a community service order for an offence of robbery. He also appeared in relation to charges of being carried in a conveyance, and break enter and steal. Probation orders were imposed for those latter offences by the Children's Court.
In 2008 the offender received short control orders for receiving stolen property and two counts of stealing from the person. That appears to have been his first and only experience of a custodial environment, prior to his arrest and remand on 2 July 2012.
The only offences the offender has as an adult are driving offences, which are of no relevance to these proceedings.
Whilst being held on remand the offender has incurred some disciplinary offences within the prison system, but none of them involve incidents of violence.
The evidence tendered on sentence by the offender is very limited, and there is little information to allow the Court to fully understand his background and circumstances.
The offender is one of four children to his parents' union. While his early childhood was uneventful, it appears he became exposed to drugs and alcohol at the age of about nine when his parents turned to illicit drug use after a house fire that claimed the life of a relative. The following eight years were marred by drugs, domestic violence and neglect, resulting in the offender and his siblings being cared for by members of the extended family. However, the offender still enjoys a positive and supportive relationship with his family and siblings. Indeed, family members have been present in Court on each occasion the matter has been listed, to offer support to the offender.
The offender has two children to his current partner of four years, and a seven year old child from a previous relationship. While the offender has only sporadic contact with his eldest child, he has a close relationship with his younger children and his partner.
The offender has attained primary school education only, having failed to complete Year 7. The years he did complete were characterised by truancy, disruptive behaviour and suspensions. He has never held any form of employment due to the lack of literacy and numeracy skills and has been in receipt of unemployment benefits since his adolescence.
He commenced gambling at the age of 17, which had developed into an addiction by early 2010, leading the offender to engage in criminal activities to fund his addiction.
The offender commenced drinking alcohol at the age of 11. By the age of 14 he was consuming alcohol on daily basis. He started consuming cannabis at the age of 12, but ceased after experiencing hallucinations and paranoia and a resulting drug induced psychosis. At the age of 16 he turned to amphetamines, quickly escalating to daily use.
The offender reported one period of abstinence from drug use in 2009 when he commenced the relationship with his current partner. He participated in a residential rehabilitation program in that same year, but failed to complete it due to arguments with staff. He subsequently returned to illicit drug use in 2010. While the offender expressed some willingness to engage in substance rehabilitation, there is no evidence he has participated in any such programs whilst on remand.
Since entering custody in July 2012, the offender has participated in a literacy and numeracy course and engaged in some employment in 2012, receiving positive evaluation and feedback. However, the pre-sentence report of 12 December 2013 notes that he had not engaged in any further employment since 2012 until the preparation of that report. There is no evidence before the court as to his conduct and time in custody since December 2013, other than the offender's comment to Mr. Diment that he doesn't "do much at all here now".
The pre-sentence report also notes the offender had received two institutional misconducts and is disruptive and abusive towards the correctional staff. As noted, there were no offences of violence.
The offender told Ms. Eastman, the author of the pre-sentence report, that he suffered an episode of drug induced psychosis at the age of 13 when he was admitted to Port Macquarie Hospital. He claimed he has experienced depressive episodes ever since this first onset, leading to further hospitalisation in 2011. He has been prescribed medication over the years, including whilst on remand, but habitually ceases to take it, claiming he does not like to take medication and self-medicates with illicit drugs. According to his partner, the offender has attempted suicide in the past by slashing his wrists and by hanging whilst in custody. There is no objective evidence of suicidal ideation; Mr. Diment expressed the view that there was no suicidal ideation.
The offender was seen by Mr. Diment, consultant psychologist on two occasions, in July 2014 and more recently in January of this year. Having administered a number of tests, Mr. Diment opined that the offender was cognitively impaired with intellectual functioning falling in the extremely low range with an IQ of 70. This conclusion is supported by Dr. Susan Pulman, who interviewed the offender on 1 September 2014 for the purposes of assessing his fitness to plead.
Mr. Diment expressed a view that the offender met the criteria for a major depressive disorder. He observed that the symptoms of depression were more pronounced in January of this year than on his previous visit and that the offender was being medicated by Avanza, for depressive symptoms. Unsurprisingly, the offender himself attributed his depression to his current inmate status, unsuccessful application to withdraw his plea, and the uncertainty of these sentence proceedings. He remained of a firm view he was not guilty of the offence.
The history provided by the offender to Dr. Nielssen differs in some regards to that given to the authors of other reports, but is indicative of an adolescence marred by drug and alcohol abuse. Dr. Nielssen opined that the offender met the criteria for substance abuse disorder and substance induced psychosis in remission. Dr. Nielssen did not elicit any connection between symptoms of mental illness and the commission of the offence, and nor did he conclude that imprisonment would have any detrimental effect on the offender's mental health, or prove more onerous to the offender than it would to other prisoners.
Dr. Nielssen was unable to offer any opinion as to the offender's prospects of rehabilitation or his risks of future offending, and it is impossible for this Court to make any conclusions in that regard. Predicting what may occur years in the future is an inexact science at best, and the evidence available to the Court does not justify the attempt.
The offender's future prospects are simply unable to be guessed at.
Whilst the offender argues that there should be a finding of special circumstances in his favour, I am unable to make such a finding. Having regard to the length of sentence required to be imposed upon the offender, the ordinary ratio of sentence should provide a period of parole that is sufficient to offer adequate supervision and assistance to him to aid him in reintegrating into the community. There is no evidence that justifies a conclusion that a longer period than that which will flow in the ordinary course is necessary. There is no evidence that justifies a conclusion that the offender would make good rehabilitative use of such a period to his and the community's benefit if it were allowed him.

Other Considerations

This was a gravely serious offence where three young men viciously preyed upon a much older man in what should have been the safety and comfort of his home, with the sole purpose of extracting valuables from him that could be used to obtain drugs.
This Court must have regard to the principles of both specific and general deterrence. Whilst the offender submits that less weight should be given to these principles because of the matters referred to in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the reduction can only be small in my view. The evidence relevant to the offender's background and the impact of it upon him in both his formative years and more recently is very slight, and unsupportive of more.
The sentence imposed must be a stern one.

ORDErs

Raymond Anthony Kennedy you are convicted of the offence of murder.
You are sentenced to imprisonment for 21 years, to date from 2 July 2012 and expiring on 1 July 2033. There will be a non-parole period of 15 years and 9 months, expiring on 1 April 2028. The earliest date upon which you will become eligible for release to parole is 1 April 2028. . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2015

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