R v O'Brien; Williams; McManus

File Number(s): 2011/22689 2010/419230 2011/285776

REMARKS ON SENTENCE 1HIS HONOUR: On 11 July 2012, Christopher William O'Brien, Bryce Marc Williams and Thomas Hugh McManus pleaded not guilty to the charge that they on 12 November 2010 did murder Alfred Lee. Each offender entered a plea of guilty to the manslaughter of Mr Lee. 2The offenders pleaded not guilty to a further charge of the attempted armed robbery (in company) of Mr Lee and others and the wounding of Mr Lee contrary to ss 98 and 344A Crimes Act 1900. Each offender entered a guilty plea to the charge that they, being in company with each other attempted to rob Mr Lee and others of a quantity of prohibited drugs contrary to s 97(1) Crimes Act. 3The pleas of guilty were accepted by the Crown in full satisfaction of the indictment. 4The maximum penalty for the crime of manslaughter is 25 years imprisonment. An offence of attempted robbery in company is punishable by imprisonment for 20 years. 5Mr Lee was part of a group who had arranged to supply ecstasy to the offenders. He died from a gunshot wound to the head during an attempt by the offenders to rob the suppliers of the prohibited drug. 6The Crown has made the following concessions: (a) the Crown could not prove beyond reasonable doubt who fired the gun that killed Mr Lee. (b) the Crown could not prove beyond reasonable doubt that the offenders knew that there was a gun present; and (c) the acts of the offenders were not done with an intention to kill or to cause grievous bodily harm. 7Accordingly, each offender must be sentenced on the basis that he did not fire the gun that killed the deceased and did not know of, or contemplate the presence of the weapon prior to the shots being fired, and their acts were not done with an intention to kill or to cause grievous bodily harm. 8The pleas of guilty to the offence of manslaughter were entered by the offenders and accepted by the Crown on the basis that the offenders went to Albany Lane with the intention to commit a robbery and it was within their contemplation that there was the possibility of some harm, less than grievous bodily harm, being inflicted on members of the deceased's group during the course of the attempted robbery. 9The principle of parity is of importance when sentencing co-offenders. It is sometimes necessary to assess an offender's degree of criminality by defining his role and the level of actual participation in the common offence. However, the Crown and counsel for the offenders submitted that the offenders should each bear equal responsibility for the commission of the offences. In any event, it is not possible on the agreed facts and concessions made by the Crown to determine the role that each of the offenders played in the manslaughter. In this case, each offender is to be sentenced on the basis that he is equally responsible for the offences. Nevertheless, their subjective cases are to be separately considered: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462. 10During the proceedings on sentence, Mr T Thorpe appeared for the Crown, Mr J Trevallion appeared for Christopher O'Brien, Mr P Williams for Thomas McManus and Mr P Little for Bryce Williams. 11Statements of agreed facts in identical terms were tendered by consent. The agreed facts are: "On 9th November 2010 the offender McManus was given use of a green Hyundai Elantra registration AM13BI ... At 1.31pm on Wednesday 10th November 2010, the offender Williams contacted Bobbie-Joan McDonald and asked her if she knew someone who could supply 2000 tablets of the prohibited drug 3, 4 MDMA commonly known as "ecstasy." Bobbie McDonald confirmed that she had a source for the drugs and contacted Matt Van Oosten by sending him a message on the social networking website "Facebook." Arrangements were made for Van Oosten to supply the 2000 pills on Friday 12th November 2010 for the price of $11.50 per pill, being a total of $23,000. Later that day McDonald attended Van Oosten's address and obtained a sample of the pills, which she subsequently provided to the accused Williams about 9pm on Thursday 11th November 2010. On Friday 12th November 2010, Williams sent a number of messages to Hewson indicating that he would come to Hewson's house. At 2.28pm Williams sent a message to Hewson saying "out front cuz". About 2.30pm Hewson left his house and entered the green Elantra in the company of O'Brien, Williams and McManus. The four drove around the Panania area in the vehicle before dropping McManus at the Padstow Hotel where he obtained a white Nissan NX Coupe, registration BH78QN from his mother. About 5pm on Friday 12th November 2010, Williams picked up McDonald from her home address in the green Elantra. This vehicle was driven by O'Brien, Williams was in the passenger seat of the vehicle and McDonald sat in the back-seat with Hewson. The four were going to travel to Artarmon to meet Van Oosten to further the drug transaction. Williams and O'Brien were accompanied by McManus, who was driving in convoy with them, in the white Nissan NX Coupe. These two vehicles were accompanied by a third vehicle containing another associate, believed to be Cameron Cook. Regular SMS messages between Williams and Cook have established that Cook was driving in unison with Williams destined for Artarmon. At 5.55pm McManus sent a message to Williams saying "Lad, pull into a servo". At 6.05pm the green Elantra stopped at Coles Express Service Station on Wattle Street, Ultimo, where CCTV footage depicts Williams and O'Brien as they exit the vehicle, refuel, make payment and return to the vehicle. Evidence obtained of the communications between Williams and McManus includes directions that he was "one car behind" Williams on his way to Artarmon. Upon arrival in Artarmon, McDonald left the vehicle and met with Van Oosten's and two of his associates Nicholas Ivers and Aaron Kelk at Van Oosten's business, a pizza shop. The deceased Lee was at this time at the pizza shop eating with his family. At 6.46pm they walked to Hampden Lane, Artarmon, where they met with Williams and O'Brien at the car. Negotiations occurred between the parties and Van Oosten indicated he had not yet obtained the drugs which were to be sold. As a result, it was agreed that the transaction would occur in the vicinity of the McDonalds Restaurant, Stanmore around one hour later. During this meeting, Van Oosten was unaware of the presences of McManus and Cook in the vicinity. At the conclusion of negotiations, McDonald returned to the green Elantra with Williams, O'Brien and Hewson and left. Williams sent an SMS message to Cook in the other vehicle directing him to "Stanmore Maccas". About 7.45pm Cameron Cook left the area and returned to the Panania area, where he later reported on bail at Revesby Police Station. At 7.10pm, the green Elantra failed to pay the toll on the Sydney Harbour Bridge and was photographed as it passed the toll booth travelling towards the city. It was immediately followed by a white Nissan NX Coupe which was being driven by -McManus. This vehicle was also photographed. After dropping McDonald at home, Williams, O'Brien and Hewson arrived at the McDonalds Restaurant, Parramatta Rd, Stanmore in the green Elantra At 8.34pm CCTV footage recorded the arrival of the green Elantra immediately followed by the white Nissan NX coupe. CCTV video footage depicts the two vehicles stopping together in Bridge Rd, Stanmore where the occupants of the two vehicles appear to have a brief discussion. Between 8.34pm and 8.52pm, a variety of CCTV video cameras recorded the white Nissan NX Coupe circulating in the streets surrounding Bridge Road Stanmore, where Williams, O'Brien and Hewson were parked in the green Elantra. About 8.10pm Van Oosten, Kelk and Guy Wells arrived at the McDonalds Restaurant, Stanmore in a black Holden Caprice, owned by Kelk. Their intention was to complete the sale of the drugs to the accused persons for $23,000. At this time, Williams, O'Brien and Hewson were parked in their vehicle AM13BI a short distance away in Bridge Road, Stanmore. About 8.37pm, after an SMS message from McDonald, Van Oosten and his associates left the car park of the McDonalds restaurant and drove the short distance along Bridge St, to where Williams, O'Brien and Hewson were parked. Van Oosten and his associates recognised Williams and O'Brien as well as the green Elantra and resumed their earlier negotiations in Artarmon. Agreement was made for Van Oosten to go and get the drugs and return to Williams and O'Brien where the transaction would be completed. Van Oosten had previously arranged for his friend, the deceased Alfred Lee, to be picked up nearby in Stanmore with the 2000 pills to be sold to the offenders. Lee had obtained the drugs from a man called Bengt Oskarsson who lived in Salisbury Road Stanmore, only a short distance away, however Lee had only been able to obtain 1600 pills. After confirming the deal would go ahead, Van Oosten and his associates drove to Salisbury Rd Stanmore, where they picked up Lee who was in possession of the 1600 tablets that he had collected. Lee entered the vehicle and sat behind the driver Kelk in the back seat, before the vehicle returned to Bridge Rd. As Van Oosten's party approached the accused's car in Bridge Road, they turned left into nearby Albany Lane with the intention of completing the drug transaction in this darkened laneway. When Van Oosten's vehicle parked in Albany Lane, ... Williams approached it on foot and leant into the back seat to be shown the drugs by Lee. Subsequent forensic examination of the rear passenger side window of the Kelk's vehicle located a number of fingerprints of the accused Williams Lee told Williams that there were only 1600 pills rather than the 2000 previously sought and directed Williams to go and get the money. After Williams had confirmed that the drugs were present in the vehicle, he ran back towards the parked green Elantra. O'Brien was standing a short distance away It is the Crown case that the offenders did not intend to pay for the drugs and that they intended to rob Van Oosten and the others of the drugs. A short time later the white Nissan driven by McManus entered Albany Lane. It approached Van Oosten's vehicle from behind, passed it and stopped apparently in order to block its forward movement. The Elantra, containing Williams, O'Brien and Hewson, entered the lane and came to a stop immediately behind Kelk's car blocking its rearward movement. Williams, O'Brien and Hewson got out of the car. Suspecting they were about to be robbed of the drugs, Kelk attempted to drive around the white Nissan being driven by McManus, clipping the kerb as a result. As his vehicle drew level with the Nissan, two gunshots were fired from the vicinity of the green Elantra The first of these rounds penetrated the rear windscreen of Kelk's vehicle striking the deceased in the head, killing him instantly. The vehicle drove a short distance to Fitzroy Lane, Newtown, where Van Oosten got out of the vehicle and went to the rear passenger door where he removed the body of the deceased. He also removed the drugs that were in the vehicle. Kelk drove from the scene, leaving Van Oosten and the body of the deceased. Witnesses saw Van Oosten chase the vehicle calling out for it to stop. Leaving the deceased's body in the lane, Van Oosten ran to the nearby railway line and threw a jar containing approximately 600 pills onto the tracks. This jar and its contents were subsequently recovered by Police and weighed 133 grams of the prohibited drug 1-benzylpiperazine. Each tablet weighed 0.35 grams per tablet. He also discarded a re-sealable plastic bag containing approximately 1000 pills which have never been recovered. Van Oosten hailed a passing car which took him to Newtown Police Station where he spoke to police." 12I make findings of fact in accordance with the agreed facts for the purpose of sentencing the offenders. 13The offenders had no intention of paying for the ecstasy pills that they had agreed to purchase. I am satisfied beyond reasonable doubt that the robbery was carefully planned and motivated by the offenders' desire to 'on sell' the drugs for financial gain. The original agreement with Van Oosten was for the supply of 2000 ecstasy pills for the price of $11.50 per pill, being a total of $23,000. The potential financial gain from the robbery was not insignificant. 14Mr Crown invited me to find as a factor of aggravation that the offence of attempted robbery was committed "in company." I decline to do so as being "in company" is an element of the offence contrary to s 97(1) Crimes Act. I do not find that being "in company" is an aggravating factor of the manslaughter, as it is an element of the foundational crime. 15Although the offending did not involve an intention to kill or to inflict grievous bodily harm upon the deceased, the offenders unsurprisingly, contemplated that there was the possibility of some harm, albeit less than grievous bodily harm being inflicted on members of Van Oosten's group during the robbery. The attempt to block Kelk's vehicle in Albert Lane precipitated what then happened. Mr Lee was shot when Kelk tried to escape the blockade. The occurrence of Mr Lee's death in the course of the attempted robbery increases the objective seriousness of the manslaughter, whereas the offenders' lack of knowledge of the presence of a weapon reduces its objective seriousness. Nevertheless, these to my mind are objectively serious offences of manslaughter by an unlawful and dangerous act and attempted robbery. 16The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v Hill (1981) 3 A Crim R 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have the conduct denounced by a sentence appropriate to the circumstances of the case: R v Macdonald (unrep, NSWCCA 12 December 1995). The starting point in the present sentencing exercise, as in all offences of manslaughter, is that the life of Alfred Lee has been unlawfully taken: R v Blacklidge (unrep, NSWCCA 12 December 1995). 17When considering the sentences to be imposed for the attempted robbery, I bear in mind the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 per Spigelman CJ at [161]-[165]. 18Each of the offenders pleaded guilty on 11 July 2012. The trial had been fixed to commence the next day. Acting on instructions from Williams, Mr Little had initiated discussions with the Crown concerning a plea a few weeks before the trial. The estimated length of the hearing was 4 to 6 weeks and involved issues arising from the principles of joint criminal enterprise and accessorial liability that were complex. Notwithstanding the lateness of the offenders' pleas, I assess their utilitarian value to be 15 per cent. 19With no disrespect to the offenders, I will refer to them furthermore by their surnames during these sentencing remarks. 20O'Brien was born on 19 March 1991. He was 19 years old at the time of the offence and is now 21 years old. His prior criminal history discloses that on 17 March 2008, for a charge of malicious wounding, he was released on probation for 2 years, which was subject to Juvenile Justice supervision. On 5 February 2009, the Campbelltown Youth Drug Court adjourned a charge of robbery in company under s 33(1)(c2) Children (Criminal Proceedings) Act 1987 and the present offences were committed whilst O'Brien was in the Youth Drug Court Program. 21The offender's criminal history does not entitle him to leniency but it is not such that it is a matter of aggravation. It is an aggravating factor that O'Brien committed the offences at a time when he was in the Youth Drug Court Program. Having regard to his criminal history, I give more weight to considerations of personal deterrence and the protection of the community than otherwise would be the case: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; R v M.A.K, R v M.S.K [2006] NSWCCA 381; (2006) 167 A Crim R 159. 22O'Brien did not give evidence during the proceedings on sentence. His subjective circumstances are drawn from the history provided to Dr Stephen Allnutt (a forensic psychiatrist), and a Probation and Parole pre-sentence report dated 31 August 2012. O'Brien is the eldest of three sons. He completed Year 10 and obtained a sheet metal apprenticeship. After completing three years of the apprenticeship, he terminated his employment and then worked in casual occupations. He was unemployed when the offences were committed. 23The offender first used cannabis, ecstasy and alcohol at age 13. He drank alcohol on a daily basis and in a binge fashion on weekends. At the time of the offending, he was using cocaine at least three to four times a week, ecstasy on weekends and cannabis daily. He had also been taking steroids since age 17. I take into account O'Brien's family background and personal history. 24In a report dated 5 October 2012, (ex O'B 1) Dr Allnutt expressed the opinion that when he saw O'Brien, he was manifesting some mild paranoid ideas. Dr Allnutt detailed a number of factors that supported the conclusion that O'Brien has a psychotic disorder. He stated that "there is cause for significant concern that [O'Brien] has chronic psychotic disorder such as paranoid schizophrenia triggered, aggravated or unmasked by substances, and on balance I would conclude a diagnosis of paranoid schizophrenia." (ex O'B 1 p8). 25Mr Trevallion contended that although there was no direct causal connection between O'Brien's mental condition and the offences, it would have impacted upon his ability to reason. Mr Crown argued that Dr Allnutt's report was only of assistance as to the offender's subjective background, but did not provide an explanation as to why the offender had committed the crimes. 26Dr Allnutt reported that at the time leading up to the offending, O'Brien had "used significant amounts of substances, experiencing paranoid ideation consistent with a psychosis along with anxiety symptoms and depressive symptoms, also likely triggered by substances" (ex O'B1 p8). At the time of the commission of the offences, O'Brien was using cocaine and cannabis heavily. He has a history of early behavioural problems with mental health involvement and a family history of paranoid schizophrenia. I accept that he was experiencing paranoid thoughts at that time. I do not find on the probabilities, however, that a direct causal connection existed between the paranoia and the offender's participation in the robbery, but I do find that his mental condition and continuing drug use reduced his ability to reason clearly and exercise judgement, which is a mitigating factor. I make it clear that the offender's severe drug habit is not of itself a mitigating factor: Henry per Wood CJ at CL at [273]. 27The offender's mental condition reduces the weight that I give to general deterrence in the sentence. 28Mr Trevallion submitted that the offender's paranoid schizophrenia will increase the hardship of a custodial sentence. The offender has received psychiatric treatment and has been prescribed medication whilst in custody. It is clear that the offender's mental condition can be adequately managed within the prison system and that imprisonment will not be a greater burden for him by reason of that condition. The principles in R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315 are not enlivened so as to mitigate the offender's sentence: see also R v Badanjak [2004] NSWCCA 395. 29Remorse as a mitigating factor is qualified by s 21A(3)(i) (i)-(ii) Crimes (Sentencing Procedure) Act 1999 which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. By his pleas of guilty, O'Brien has accepted responsibility for the offences. 30Dr Allnutt observed that O'Brien presents as an individual who expresses remorse about his offending, takes responsibility for it, accepts that he has a substance abuse problem which needs to be addressed and voices motivation to pursue drug and alcohol counselling. Whilst noting that O'Brien's desire to overcome his substance abuse problems needs to be viewed "in light of his earlier admonitions to rehabilitating his life", Dr Allnutt believed it would be fair to consider "the effects of maturation and age":(ex O'B1 p9). 31Tracey O'Brien, the offender's mother, in a letter dated 8 November 2012 writes of her son's feelings of great sorrow when they discussed the death of the deceased, and that he is very remorseful. Mrs O'Brien visits the offender on a weekly basis and he has the support of his family. Three references were also tendered in which the authors refer to the offender in complimentary terms. 32I accept that O'Brien is remorseful. I take into account his remorse as a mitigating factor. 33Although he is remorseful and it appears that his substance dependence is currently in remission, that his mental condition has received treatment and he is a young man with family support, I am unable to make a positive finding on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. His previous failures to benefit from the Youth Drug Court Program and Juvenile Justice supervision do not encourage an optimistic view being taken. Much will depend on his ability to avoid relapsing to alcohol/and or drug misuse upon release from custody. 34O'Brien was a young adult at the time of the offending. That does not mean that the principles relevant to sentencing a young offender are irrelevant, but I am unable to conclude that the offender's behaviour had anything to do with immaturity. The intended robbery was well planned and the possibility of harm was contemplated. As has been said, youth is not a cloak of convenience behind which those who commit serious crime can shelter from the consequences of their conduct: see R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306; per Sully J at [20]. 35I take into account that he is a young adult in giving weight to his need for rehabilitation. 36I find that special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of term of the sentence, being his need for rehabilitation, psychological, and drug and alcohol counselling upon release. 37McManus was born on 7 March 1991. He was 19 years old at the time of the commission of the offence and is now 21 years old. His prior criminal history reveals an offence of robbery in company for which he was released on 12 months probation by the Children's Court on 29 January 2009 that was subject to Juvenile Justice supervision. On 6 January 2010, he was fined and disqualified from driving by the Waverly Local Court for driving a vehicle with illicit drugs present in his blood. That criminal history deprives the offender of the considerations of leniency to which he may have been entitled if the current offences were isolated acts of criminality. 38McManus did not give evidence during the proceedings on sentence. His subjective circumstances are drawn from the history provided to John Machlin, a clinical psychologist. He was born in Sydney and has a younger full sister and an older half sister on his mother's side. The offender's parents separated when he was about 8 years old. He and his younger sister remained with their mother. After his parents separated, McManus and his sister would spend weekends at their father's which he depicted as "sitting around watching him drink with his mates." By the time the offender was 15, the weekends with his father had stopped and their contact has been occasional since that time. 39Mr Machlin reported that McManus did not have any specific academic or literacy problems at school, but the offender told him that he rarely applied himself. He was asked to leave Picnic Point High School in Year 10 and was transferred to East Hills where he failed to see out a probationary period and was expelled for fighting. He was an apprentice in carpentry for two years until his employer's bankruptcy. His subsequent employment included work as a labourer and a glazing apprenticeship that he would like to return to when able. McManus described himself mainly as a social and recreational user of alcohol, marijuana and ecstasy. He said that he had given up all drug use in the final weeks before his arrest. I take into account the offender's family background and personal history. 40Mr Machlin considered that at the time of the offence, McManus "would probably have met the DSM-IV-TR criteria for a Substance Use Disorder, given that his alcohol and drug use was causing clinically significant impairment to his social, behavioural, and vocational functioning": ex M1 p7. The psychologist opined that McManus is not otherwise suffering problems on the scale of a diagnosable mental health condition. Mr Machlin was of the opinion that it is possible that the offender suffers a bipolar disorder and if so, it is not severe and not meaningfully connected to the offence. The psychologist noted that "psychometric testing identified a dependent personality style". Mr Machlin observed that McManus is prone to depressive reactions and the effects of past traumas, which he considered would be likely to add to the hardship of custody. 41Mr Williams submitted that McManus was 18 years old at the time of the offences and was the youngest of the offenders by a couple of months. The significance of this was said to be the offender's high score on the dependency test which indicated that he was someone who was easily led. Mr Williams submission about the offender's age is mistaken as the records disclose that he was 19 years old at the time of the offending. He is a dozen days younger than O'Brien. In any event, I am not satisfied on the balance of probabilities that McManus participated in the attempted robbery because he was led into it by his co-offenders or that his behaviour had anything to do with immaturity. 42Mr Machlin recounted that McManus accepted responsibility for his knowing involvement in the attempted robbery and indicated an understanding of the gravity of the offence involving the death of the victim, but his depth of remorse was difficult to ascertain. Mr Machlin noted that the offender's mother had discussed the offence with her son during prison visits and said that he had "shown remorse and tears over the death of the victim, and a kind of helplessness in not knowing what he should say to the widow": ex M1 p6. Mr Machlin concluded that the offender "is aware of the gravity of his offence; he acknowledges the loss of the victim's life and the devastation to the victim's family, but has had difficulty articulating his emotional reaction in the context of the current interview": ex M1 p7. 43Jo-anne Wallace and Colleen Nickel gave evidence during which they spoke of McManus's sorrow and regret for the death of the deceased and of his intention to be a better person. Mrs Wallace said that there was work available for him as a bricklayer upon release. Written references from both Mrs Wallace and Ms Nickel were also tendered. 44I accept that McManus is remorseful. By his pleas of guilty, McManus has accepted responsibility for his actions. I take into account his remorse as a mitigating factor. 45The offender's prospects of rehabilitation are not as uncertain as those of his co-offenders. He has not previously breached conditional liberty and has a less serious drug and alcohol problem. Provided he avails himself of the therapeutic resources suggested by Mr Machlin, I consider that McManus is unlikely to re-offend and has good prospects of rehabilitation: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. Accordingly, personal deterrence does not have a significant role to play in my task of sentencing McManus. I do, however, give weight to general deterrence. 46I take into account that he is a young adult in giving weight to his need for rehabilitation. 47I find special circumstances being his need for rehabilitation, psychotic monitoring and counselling. 48Williams was born on 8 October 1987. He is the eldest of the offenders being 23 years old when the offences were committed and is now 25 years old. His prior criminal history discloses that for two charges of assault occasioning actual bodily harm, he was placed on 6 month good behaviour bonds by the Lidcome Children's Court on 20 April 2005. For offences of destruction of property and common assault, Liverpool Local Court imposed community service orders on 22 June 2007. He was placed on a 100 hours community service order for an offence of assault occasioning actual bodily harm and a s 9 bond to be of good behaviour for 9 months for an offence of common assault by the Bankstown Local Court on 10 March 2010. Upon being called up for breaching the community service order, he was sentenced to imprisonment for one month commencing 17 December 2010 and expiring 16 January 2011. 49The offender's criminal history does not entitle him to leniency but it is not such that it is a matter of aggravation. At the time of the commission of the offences, the community service order had not been completed and Williams remained subject to the s 9 bond. It is an aggravating factor that Williams abused his conditional liberty by his offending. Having regard to his criminal history, I give more weight to considerations of personal deterrence and protection of the community than otherwise would be the case: R v McNaughton; R v M.A.K, R v M.S.K. 50I give weight to general deterrence. 51Williams did not give evidence during the proceedings on sentence. His subjective circumstances are principally drawn from the testimony of his father Gary Williams and the history provided to Michelle Player, a clinical psychologist. Williams' mother died in January 1997 when he was 10 years old. He and his father found his mother deceased in bed before he left for school. Mrs Williams had been dependent on heroin and had died from an accidental overdose of alcohol and anti-depressant medications. 52Gary Williams said in evidence that after the death, his son had become "a lot more withdrawn." Michelle Player reported that Williams' academic performance declined after his mother's death and he commenced drinking alcohol from the age of 12 years. He was introduced to the use of cannabis at the age of 11 years and he was using cannabis daily by Year 9. Williams engaged in recreational weekend use of ecstasy and amphetamine from the age of 15 years. Williams used methamphetamines from age 19 years, but ceased taking this prohibited drug for 12 months from age 21 to 22 years. However, he recommenced using methamphetamines over a two-day period on a weekly basis, interspersed with weekend use of ecstasy and/or cocaine. He became dependent on the prescription drug Xanax, when he was 22 years old. 53Williams attained his Year 10 Certificate before leaving school and commenced an apprenticeship in French polishing and furniture finishes. Williams had been employed in an apprenticeship as a French Polisher with a company in Bankstown for four years, but after the company experienced financial difficulties, he was unable to obtain any substantial employment. He completed all of the TAFE based theory and work-based practical experience and had one TAFE term to complete before he went into custody. Williams told Ms Player that he planned to finish the course upon his release. 54I take into account the offender's family background and personal history. I accept Mr Little's submission that Williams' tragic early life was on the probabilities causative of his descent into alcohol and drug abuse at an early age. 55Ms Player expressed the opinion that Williams' main psychological vulnerability "is his unresolved grief response which has contributed to substance abuse and poor expression of anger, particularly when intoxicated": ex W1 p8. Ms Player suggested that Williams' involvement in the present offences "was, in part, underscored by his frozen grief response and maladaptive use of substances to try to cope at that time." She assessed his risk of re-offending with the HCR - 20 clinical risk assessment guide and found that the offender presents an overall low-moderate risk of violent recidivism. The psychologist's recommendations include that Williams access individual psychological therapy whilst in gaol. Ms Player observed that the offender "appeared genuinely remorseful for the death of the victim and willing to participate in interventions to address his recidivism risk." 56Gary Williams testified that his son was aware of the grief he caused to the victim's family and to his own family. Mr Williams recounted that his son had said to him, "I've totally grown up and I'm just so sorry that the whole thing's happened": T 10 37-38. Mr Williams said that the offender wished to complete his HSC and his apprenticeship. Upon the offender's release from custody, the plan was for him to move to Adelaide with his elder brother who is a mining manager and to take up employment in the mining sector. 57Williams took the initiative in instructing his counsel to have discussions with the Crown concerning a plea. By his pleas of guilty, Williams has accepted responsibility for his actions. I accept that Williams is remorseful. I take into account his remorse as a mitigating factor. 58I am unable to make a positive finding on the balance of probabilities that Williams is unlikely to re-offend or has good prospects of rehabilitation. Notwithstanding his family's support, the prospects of employment and his remorse, his failure to be of good behaviour during the term of the s 9 bond and community service orders detracts from an optimistic view being taken. As in the case of O'Brien, much will depend on Williams' ability to avoid relapsing to alcohol and or drug misuse upon release. 59In considering his need for rehabilitation, I take into account that Williams is a comparatively young man. I find special circumstances being his need for rehabilitation, drug and alcohol counselling and psychological therapy. 60A victim impact statement from Khan Hood, the deceased's sister and Lynette Weaver, the deceased's fiancée were read to the Court and a victim impact statement from Louissa Hood, another sister was tendered. The contents of the statements cannot be used by me to increase the offenders' sentences: R v Previtera (1997) 94 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them. 61My attention was drawn to Judicial Commission sentencing statistics for offences of manslaughter but the limited use that may be made of these statistics is further diminished by the wide embrace of offending that might amount to the crime of manslaughter: R v Woodland [2001] NSWSC 416 at [27]-[30]. Various cases have been cited by counsel which have been of assistance, but each case depends on its own circumstances. 62In structuring the sentences to be imposed on the offenders, I have fixed an appropriate sentence for each offence and then considered questions of cumulation or concurrence as well as totality. As these offenders' actions in reality reflect one course of criminal conduct, I conclude that the sentence to be imposed for manslaughter can comprehend and reflect the criminality of the attempted robbery. I do not accept the Crown's submission that there should be some partial accumulation of the sentences. 63The agreed date for the commencement of the sentences of O'Brien and Williams is 17 December 2010. The agreed date for the commencement of McManus's sentence is 3 March 2011. 64After applying a discount of 15 per cent the total term of O'Brien's sentence for manslaughter is 7 years 10 months. I have found special circumstances. 65Christopher William O'Brien for the offence of manslaughter, I sentence you to a term of imprisonment with a non-parole period of 5 years 6 months which is to commence on 17 December 2010 and to expire on 16 June 2016. I set a balance of term of 2 years 4 months which is to commence on 17 June 2016 and will expire on 16 October 2018. 66Christopher William O'Brien for the attempted robbery, I sentence you to a fixed term of imprisonment of 4 years 3 months which is to commence on 17 December 2010 and is to expire on 16 March 2015. 67The earliest date that you will be eligible to be released on parole is 16 June 2016. 68After applying a discount of 15 per cent the total term of McManus' sentence for manslaughter is 7 years 8 months. I have found special circumstances. 69Thomas Hugh McManus for the offence of manslaughter, I sentence you to a term of imprisonment with a non-parole period of 5 years 4 months which is to commence on 3 March 2011 and is to expire on 2 July 2016. I set a balance of term of 2 years 4 months which is to commence on 3 July 2016 and will expire on 2 November 2018. 70Thomas Hugh McManus for the attempted robbery, I sentence you to a fixed term of imprisonment of 4 years 1 month which is to commence on 3 March 2011 and is to expire on 2 April 2015. 71The earliest date that you will be eligible to be released on parole is 2 July 2016. 72After applying a discount of 15 per cent the total term of Williams' sentence for manslaughter is 8 years 1 month. I have found special circumstances. 73Bryce Marc Williams for the offence of manslaughter, I sentence you to a term of imprisonment with a non-parole period of 5 years 9 months which is to commence on 17 December 2010 and to expire on 16 September 2016. I set a balance of term of 2 years 4 months which is to commence on 17 September 2016 and will expire on 16 January 2019. 74Bryce Marc Williams for the attempted robbery, I sentence you to a fixed term of imprisonment of 4 years 6 months which is to commence on 17 December 2010 and is to expire on 16 June 2015. 75The earliest date that you will be eligible to be released on parole is 16 September 2016.