R v Paterson; R v O'Brien

Supreme Court of NSW|2020-03-05|Before: Rothman J

Solicitors: Office of the Director of Public Prosecutions (Crown) Panwar Legal (Offender Paterson) Benjamin Leonardo - The Defenders (Offender O'Brien) File Number(s): 2017/200939; 2017/200589

Brief Outline of Facts

On 24 June 2017, the deceased had been drinking and playing cards. He had consumed, with another, half a bottle of gin and the deceased had also consumed two or three cans of premixed bourbon. He left the house at which he had been drinking at about 8 PM and went to Wyong Leagues Club, where he stood in line behind two other males and began talking to them. He played the poker machines with them and drank during that activity. He was "a little drunk, but … wasn't causing any dramas".
After about an hour, the deceased left the two men that he had befriended.
The deceased seemed to become more drunk and enquired of a person who entered the men's bathroom: "are you looking for trouble?" The person described the deceased as having asked that question in a normal tone, but that the deceased sounded pretty drunk.
The deceased played poker machines for another 30 minutes from about 9:30 to 10 PM. During that time he appeared jovial from time to time, but, at one point, became "a bit loud and [was] yelling at the poker machine". A female security officer walked over to the deceased and told him that he had to leave the premises. The deceased responded to the security guard in the following terms: "You're a fuckwit", after which he immediately apologised.
He asked of the security guard if he could finish his games on the poker machine and promised to be "good" and not to "say anything". At that stage, he did not appear aggressive.
Another security guard described the deceased as being agitated and yelling and using the term "fuckwit" repeatedly. The deceased appeared very intoxicated. This second security guard informed the deceased that he was intoxicated and, once more, informed him that he was required to leave the Club. The deceased agreed to leave the Club; the security guard walked behind him while he was leaving; the deceased started to dance on the way out; and, about halfway from the front entrance, the deceased said to the security guard: "I haven't done anything wrong; why am I being kicked out?"
The security guard responded: "Because you are intoxicated"
The deceased continued dancing and walking towards the front door. At the front door, the deceased became argumentative and started swearing. He said, it seems to the security guard, but more generally: "Fuck this, it is my money, I want to withdraw my money and I will walk out". At that point he stopped walking.
The second security guard placed the deceased in a bear hug and started walking him towards the door at which point the deceased became increasingly aggressive and tried to push the security guard away. The deceased was taunting the security guard with racial epithets.
The Security Manager at Wyong Leagues Club was present at the reception and assisted the security guard in escorting the deceased from the premises.
Once outside the Club, and notwithstanding an attempt by an acquaintance to calm the deceased down, the deceased charged at the two security guards who then tackled him to the ground. Eventually he calmed down. One of the security guards was placed between the deceased and the entrance to the Club. There was an attempt at an exchange of punches, each of which missed.
One of the security guards sought to guide the deceased away from the entrance. At this stage, the deceased was crying and then, seemingly without warning, lunged at the security guard who tackled him into a garden bed. No injuries were occasioned by the altercation.
The Duty Manager of the Club made the helpful suggestion that he, the Duty Manager, would return to the Club and obtain whatever money was available on the deceased's membership card, after which he would have to leave. The deceased handed over the membership card and the Duty Manager returned with the deceased's money.
The deceased became aggressive towards the personnel at the Club who were outside and they eventually walked him to the footpath on the main road. The deceased remained on the footpath, but continued to yell at security and swear at them. A close friend of the deceased described him as hysterical and, notwithstanding that the close friend sought to calm the deceased down, the deceased wrestled with him. Notwithstanding the drunken altercation that had occurred, the deceased, at this stage, had suffered no injuries.
The two offenders were in a group of persons who arrived at the Budgewoi Hotel at about 7 PM. They were co-workers.
The group remained at the Hotel until about 9 PM and, according to a witness, no one was overly intoxicated when they left the Hotel. They all travelled on a courtesy bus to the Wyong Leagues Club, stopping off to obtain a six pack of beer. On arrival at the Club, the bus stopped on Lake Haven Drive, on the opposite side of the road to the Club.
One of the persons on the bus described his first sighting of the deceased and described him as having his shirt off and that he was cursing, as he walked up the road. After a while, words were exchanged between the deceased and the persons who had alighted from the bus.
There was a commotion and the two offenders, each of whom had alighted the bus, were both yelling to the deceased "come on cunt". They started walking towards the deceased who, at that stage, was standing near the staff car park entry. The deceased yelled back in the same terms.
As the two offenders walked towards the deceased, the deceased backed away from them, even though he was still making comments. At one stage, Mr O'Brien removed his shirt and this occurred approximately 2 to 3 minutes after the pair had left the bus.
At this point, Mr Paterson attempted to punch the deceased, who was standing on the footpath. The deceased evaded that punch. Mr O'Brien then attempted to punch the deceased, but, again, the deceased evaded the punch. Mr O'Brien attempted to grab hold of the deceased.
This initial altercation between Mr Paterson, Mr O'Brien and the deceased was captured on a mobile phone video recording, which is before the Court and has been seen.
After this initial attempted altercation, the deceased then ran off. He ran in a northerly direction, zigzagging across the roadway, chased by Mr Paterson, Mr O'Brien and a Mr Henry. After some distance, Mr Paterson slipped and fell in the gutter.
On all accounts, the deceased appeared frightened as he ran away. The deceased attempted to stop a vehicle on Lake Haven Drive, running towards the car with both hands in the air, yelling "stop, stop". The driver had to swerve to the right to avoid hitting the deceased and the driver described the deceased as looking "like he was shitting himself; he looked that scared".
Mr O'Brien was running up the middle of the road, his shirt removed, and appeared really aggressive. Mr O'Brien's fists were clenched as he chased the deceased.
The deceased also tried to flag down another vehicle. Investigations have determined that the deceased had run approximately 165 m from the point of the initial altercation to the point at which the final assault occurred.
A non-offender, Mr Henry, described the final assault. He was the third person chasing the deceased. If anything, his version of events is likely to be sympathetic to the two offenders.
Mr Paterson and Mr O'Brien pursued the deceased for the 165 m. As stated, during the pursuit Mr Paterson slipped and fell over onto the gutter. Mr O'Brien reached the deceased first.
Mr O'Brien shaped up, like a boxer, to fight the deceased. The punch that was ultimately landed by Mr O'Brien did not involve any running up to punch and was described as "not a big hit". Nevertheless it was with a clenched fist; a punch in the face, which caused the deceased to fall. The deceased did not fall to the ground immediately, but buckled from the punch. The deceased was conscious and at a position halfway towards the ground. Mr Henry, the third person, pulled Mr O'Brien away and the deceased fell to the ground.
While Mr Henry was holding Mr O'Brien, Mr Paterson came in and kicked the deceased in the head. The deceased seemed unconscious and Mr Paterson kicked him again. At the point of the first kick, it seems the deceased was lying on his side. He then lay on his back. Mr Paterson stomped on the deceased's head with both feet.
The kick to the head was described as like someone kicking a soccer ball and it rendered the deceased unconscious. The second kick and the stomping were affected when the deceased's head was on the ground and he was seemingly unconscious.
The deceased was left lying in a bicycle lane on the road, not moving. The deceased's head was approximately 1 foot (850 mm) from the unbroken line marking the bicycle lane, lying within the bike lane and perpendicular to it. The deceased's feet were nearest the curb. Within moments of the assault, a car hit the deceased and possibly dragged him along the roadway. The car was unable to swerve, in the same way as the cars preceding it, and the deceased's DNA was found on the near side tyre of the car in question.

Joint Criminal Enterprise

As earlier stated, the basis upon which each of the offenders is liable for the conduct that caused the demise of the deceased is joint criminal enterprise. By the principles of joint criminal enterprise, where two or more persons agree to engage in criminal conduct each of the persons that are party to that agreement are liable for the conduct of each other person in the agreement. The agreement may be evidenced by an express agreement or inferred from the conduct of the parties.
In this case, even without the plea of guilty, the conduct of each of the offenders in chasing the deceased with the intention of assaulting him was an agreement or evidenced an agreement to engage in criminal conduct. Mr O'Brien can only be held responsible under that rubric if the conduct to which he'd agreed, namely the assault, was a substantial cause of grievous bodily harm or death. As will be seen, in my view, Mr O'Brien's liability is only just within that definition. As a consequence, each of Mr O'Brien and Mr Paterson are responsible for the conduct that each engaged in and in which the other person engaged.
Further, by the plea of guilty, each offender admits of all of the elements of the offence. Notwithstanding that each offender is liable for the conduct of the other offender, the conduct of each is important in determining the different culpability and the roles played by each offender and, in so doing, determining an appropriate sentence that pays due regard to the difference between the offenders' culpability and or the objective seriousness of the offence in question.
The basis upon which Mr O'Brien admitted, by his plea, the offence in question is that he: took off his shirt intending to fight the deceased; threw a punch at him which missed; knew that Mr Paterson also threw a punch which missed; pursued the deceased with Mr Paterson for 165 m; saw the deceased attempt to stop passing cars; knew that the deceased did not want to fight him; and punched the deceased with a closed fist to the head, causing the deceased's body to buckle and the deceased to fall to the ground.
After Mr O'Brien punched the deceased, the deceased was conscious, but dazed. The conduct represented unlawful and dangerous conduct towards the deceased.
Mr Paterson kicked the deceased to the head on two occasions whilst the deceased was on the ground, which kicks rendered the deceased unconscious. At that point, Mr Paterson stomped on the head of the deceased with both feet off the ground.
The Crown's case against Mr O'Brien includes that Mr O'Brien left the deceased lying on the roadway in a bike lane; and heard a car strike the deceased.
Overall, the offenders agree that each engaged in unlawful and dangerous acts, and engaged in conduct that represented a substantial contribution to the death of the deceased.
The Crown agrees that Mr O'Brien did not anticipate that Mr Paterson would kick the deceased or would stomp on him. Further, Mr O'Brien apologised to the uncle of the deceased after learning that the deceased had passed away. That conversation with the uncle occurred before Mr O'Brien was charged and was an admission of involvement in the offence in question and an acceptance of responsibility.
The facts as they pertain to the assault and conduct of the offenders is, of course, the same for each offender. However, there are differences in the basis upon which the Crown alleges (and Mr Paterson agrees), to the plea as compared to the basis for Mr O'Brien's plea. The facts are the same, save for some additional details relating to the conduct of Mr Paterson.
In particular, Mr Paterson kicked the deceased to the head on two occasions, whilst the deceased was lying on the ground, and those kicks rendered the deceased unconscious. While the deceased was unconscious, Mr Paterson, wearing Adidas sneakers, jumped on the head of the deceased with both feet striking the deceased's head at the same moment; left the deceased lying unconscious on the roadway in a bike lane; and failed to warn approaching vehicles of the deceased's position.
The Crown has agreed with Mr Paterson that the unlawful and dangerous conduct of Mr Paterson towards the deceased fell short of or did not include an intention by Mr Paterson to inflict grievous bodily harm on the deceased. Nevertheless, it was an unlawful and dangerous act (or series of acts) that represents a substantial contribution to the death of the deceased.

The Principle of Parity

During the course of the submissions on sentence, the Crown and Counsel for the offenders each remarked that the parity principle was not applicable or had no work to do in the sentencing of Mr O'Brien and Mr Paterson. On each occasion, the Court took issue with that expression.
As the courts have sought to explain, on a number of occasions, the parity principle in the process of sentencing is an expression of the notion of equal justice, which is fundamental in any rational and fair system of criminal justice. It requires, as the High Court stated in Wong v The Queen (2001) 207 CLR 584 at 608, [65], "identity of outcome in cases that are relevantly identical" and "different outcomes in cases that are different in some relevant respect (emphasis in original)" (per Gaudron, Gummow and Hayne JJ).
As the plurality judgment in the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 said: "Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. … The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision." (Per French CJ, Crennan, Kiefel JJ at [28] and [29]). (See also the reference at [30] of Green v The Queen to Jimmy v R (2010) 77 NSWLR 540 and the practical difficulties and limitations of comparing similar but different crimes, which difficulties do not exclude the operation of the parity principle.)
As can be seen from the foregoing recitation of facts, an application of the parity principle, or the norm of equal justice, to the circumstances of each of the offenders requires the Court to impose upon each offender a substantially different sentence. Each offender, while liable for the acts of the other offender, has engaged in conduct which is significantly different in terms of its objective seriousness. Mr O'Brien is only just liable under the common purpose principles; Mr Paterson's conduct falls only just short of the more serious offence of murder.

Principles of Sentencing

Manslaughter is an extremely serious offence. Society treats human life as sacrosanct. Manslaughter carries a maximum sentence of 25 years' imprisonment. It also involves the unlawful taking of a human life, albeit in circumstances where, relevantly, there is not alleged to be an intention to kill or to cause grievous bodily harm (or really serious physical injury).
Because the circumstances that may amount to manslaughter are so varied, the legislature has not prescribed a standard non-parole period. Nevertheless, the Court is required to look at the purposes of sentencing and to exercise its discretion in fixing a sentence that best achieves those purposes and appropriately reflects the conduct of the offender in question.
The purposes of sentencing are prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and those objectives, in turn, reflect the common law. As the High Court has made clear, the purposes of sentencing include: the protection of society; the deterrence of the offender and of others who might be tempted to offend; retribution; and reform: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at CLR (476) per Mason CJ, Brennan, Dawson and Toohey JJ). As the High Court there said: "The purposes [of sentencing] overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
Sentencing is an intuitive process. It involves the determination of the objectives seriousness of an offence measured not against offences of a different kind, but, rather, within the range of sentences that make up, in this case, manslaughter. It also involves consideration of the subjective circumstances of each offender that has committed the crime.
The intuitive process involves synthesising the objective seriousness of the crime and the subjective circumstances of the offender to arrive at a sentence that best meets the objectives of sentencing to which I have earlier referred.
In considering the issues to which I have referred, it is necessary, also, to have regard to the other provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prescribe aggravating and mitigating factors and other issues that are required to be taken into account in determining either the objectives seriousness of the offence or the sentence to be imposed as a consequence. In determining factors that are aggravating of the offence, it is impermissible to take into account, as an aggravating factor, a circumstance that is part of the element or elements of the offence.

Objective seriousness

As can be seen from the foregoing, and as has already been the subject of comment, the objective seriousness of the offending is significantly different as between Mr O'Brien and Mr Paterson. Leaving aside liability on the basis of joint criminal enterprise for the conduct of Mr Paterson, which, it is agreed, was not anticipated by Mr O'Brien, and which was directly causative of the deceased's unconscious state and serious physical injury, Mr O'Brien's conduct is confined to chasing the deceased and punching him with a closed fist to the head causing him to buckle, but not lose consciousness.
In terms of culpability for the death of the deceased, Mr O'Brien's conduct falls below the midrange of objective seriousness in terms of the role that he played in the joint criminal enterprise. The Court is not entitled to guess at what Mr O'Brien's conduct would have been had he not been constrained by Mr Henry, the third person chasing the deceased.
Mr Paterson's situation is significantly different. Apart from throwing some punches and missing and chasing the deceased for the 165 m, each of which was in or to the same effect as the conduct of Mr O'Brien, Mr Paterson kicked the deceased to the head, while he was lying on the ground, face up. These kicks caused the deceased's lack of consciousness. Even when the deceased was unconscious, having been kicked twice by Mr Paterson, Mr Paterson stomped, with both feet, on the head of the deceased. Any rational or reasonable analysis of such conduct would be that it would cause serious physical injury to a victim.
Nevertheless, the Crown and Mr Paterson agree that there was no intention to cause really serious injury at the time that the kicking and stomping occurred. Were it otherwise, given that the conduct of the offenders was a substantial cause of the death of the deceased, the offence would be murder; and not manslaughter.
During the course of the proceedings, the Court enquired of Counsel for Mr Paterson as to the categorisation of the objective seriousness of the offending and whether Mr Paterson's conduct could be categorised, within the crime of manslaughter, as a worst case. It is no answer to such a question to say that there is a broad range of conduct that can be encompassed in manslaughter. It is also not appropriate to classify conduct as other than worst case, simply because the Court, or Counsel, can imagine a worse scenario. Otherwise, given the nature of the conduct and the obvious and inevitable consequences of Mr Paterson's conduct, the objective seriousness is extremely high.
A relevant distinction between murder and manslaughter, in these circumstances, is the presence or absence, respectively, of an intention to cause grievous bodily harm, or really serious physical injury, which intention may be inferred in circumstances where an offender engages in conduct that has such an inevitable and obvious consequence. In this situation, I do not draw that inference, because the parties are agreed, on the facts that are before the Court, that no such intention existed. Nevertheless, the obvious and inevitable consequences of the conduct of Mr Paterson place his conduct, if not in the highest category of manslaughter, then not much below it.
During the course of submissions, the Crown expressed the view that the moral culpability of Mr Paterson was at the highest end for an offence of unlawful and dangerous behaviour, but not a worst case of manslaughter.
In my view, the Court is not bound by the expression of opinion of the Crown as to the appropriate classification of the objective seriousness of an offence. While, in my view, the judgment of the High Court in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 has been the subject of much misunderstanding, fundamentally the High Court was expressing the view, based on a long line of authority, that the exercise of the sentencing discretion is a matter solely for the judge.
The process of criminal proceedings involves three fundamental propositions: first, the discretion as to whether to prosecute and, if so, what charges to prefer, is solely a matter for the prosecuting authority; secondly, the discretion as to the plea to be entered to the charge that has been preferred is solely a matter for the accused/offender; and, lastly and, in this respect, most importantly, the discretion as to the appropriate sentence to impose is solely a matter for the sentencing judge. See GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [28]-[30]; Jimmy v the Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60, at [267]; Kutchera v The Queen [2007] NSWCCA 121 at [32]-[33]; Hunter Quarries Pty Limited v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 at [61]; and R v Aghili Nategh (No 3) [2019] NSWSC 1892 at [117]-[125] I reiterate, without repeating, the comments I made in a Aghili Nategh (No 3), supra, as to the proper understanding of the judgment of the High Court in Barbaro.
Nevertheless, that rationale involves, also, the proposition that the Court cannot be bound by the opinion of Counsel, either for the Crown or for the accused, as to the proper classification of the objective seriousness of an offence or the ambit created by the different expressions.
Notwithstanding the view that the Court is not bound by the Crown's expression of opinion as to the appropriate classification of the conduct of Mr Paterson or Mr O'Brien, and notwithstanding that it is difficult, because of the conduct of Mr Paterson, to imagine a worse case of manslaughter by unlawful and dangerous act, I accept, in the totality of the circumstances of this offending, that the offence, in its objective seriousness, is not a worst case but, rather, at the highest end of culpability.
All of the foregoing must be considered in the light of subjective circumstances of each of the offenders.

Subjective and other circumstances

The foregoing analysis of the objective seriousness of the offence takes into account the fact that in the case of each of Mr Paterson and Mr O'Brien, the offence was conducted in company. The fact, recited above, that the deceased ran away from the offenders and sought to flag down a passing car to escape the chase, when one considers that there was more than one of them seeking to assault the deceased, must have been a terrifying experience for the deceased. That circumstance significantly aggravates and is included in the foregoing assessment as to the objective seriousness of the offence in question.
There are other factors that require attention. Neither of the offenders is entitled to the leniency that might be shown to a first offender. In the case of Mr Paterson he has a history of offending and a history of violence. Mr Paterson was on parole at the time that this offence occurred.
The offence for which Mr Paterson was on parole was an offence committed on 9 February 2008 involving the offender in recklessly causing grievous bodily harm. Other offences include two counts of common assault; assault officer; steal from person; assault occasioning actual bodily harm on 31 May 2009; and affray and offensive behaviour on 15 May 2010.
The offence of recklessly causing grievous bodily harm was, as is obvious from the foregoing, committed over nine years prior to the offence for which this court is now to sentence the offender. Nevertheless, the offence has some striking similarities. In the 2008 offence, the first blow was struck by the victim, who hit the offender on the head with a metal pole. The incident followed a session of drinking and involved the offender stomping on the head of the victim and leaving him by a roadside.
The 2009 and 2010 offences also involved assaulting another male to the head. It is clear that the previous offences and the sentences imposed for those offences have not had an effect, in any significant way, on the criminal conduct of Mr Paterson. The principles to which the High Court referred in Veen (No 2), supra, render specific deterrence a significant factor in the sentencing of Mr Paterson. I bear in mind that the 2008 assault was a fair while before this offence and that Mr Paterson has spent about 3 years in the community without offending.
However, the fact that Mr Paterson was on conditional liberty for the 2008 offence, at the time of this offence, should have brought to the attention of Mr Paterson the serious consequences of conduct of this kind and the potentially greater consequences that, in fact, followed.
Mr Paterson has some mitigating factors including his plea of guilty for which the Crown submits the Court should provide a 25% discount. Such a discount is for the utilitarian value of the plea. I do not underestimate the utilitarian value of the plea and take into account in assessing the sentence to be imposed, including the discount for the plea, that, had the matter gone to trial, there may have been serious issues about the cause of death, given that the deceased was hit by a car after the assault and the inability of pathologists to differentiate the injuries caused by the kicking and stomping, on the one hand, and the motor vehicle impact, on the other. Nevertheless, the assault was a substantial cause of the fatality, regardless of the ultimate mechanism by which death occurred.
The issue of specific deterrence is also affected by the offences that are sought to be taken into account on a Form 1. Those offences are three counts of the possession of a prohibited drug being, respectively, 4.5 g of cannabis; 27.91 g (a small quantity) of amphetamine; and a further 10.5 g (small quantity) of cannabis.
It does not seem that the drug possession matters require any significantly greater sentence than would otherwise have been imposed for the manslaughter. Nevertheless, the abuse of alcohol and drugs is, on the material that the Court has before it, a major factor in the offending of Mr Paterson, of which, given his previous offending, he should have been aware.
There are a number of other factors to which the Court refers in dealing with the circumstances of Mr Paterson. First, Mr Paterson has a long history of depression and commenced medication for depression at the age of 19. He also had a history, within his family, of physical abuse occasioned by his father on his mother and him; and abuse of alcohol and possibly drugs by both his mother and father.
In his early childhood, Mr Paterson suffered from ADHD and was known to engage in tantrums and self-harm, such as head-butting on a concrete floor.
The violence perpetrated by his family included an incident in which his stepfather had cut his mother's neck and dragged her onto the street. The stepfather also dragged onto the street, in that incident, Mr Paterson's younger half-brother. There were physical fights between his father and stepfather into which he was drawn, albeit indirectly.
According to the report of Dr Dayalan, Forensic Psychiatrist, Mr Paterson reported that his father had been abusive towards him and was an alcoholic. There is independent evidence of Mr Paterson's father being an alcoholic, or a person who abused alcohol. However, Mr Paterson did not give evidence in the sentencing proceedings and the Court is reliant upon Dr Dayalan's recital of that which was said to him by Mr Paterson in an audio-visual attendance.
Mr Paterson started drinking alcohol at the age of 14 years and has a binge drinking pattern. He started smoking cannabis at the age of 17 and, except when in gaol, smoked cannabis daily. Mr Paterson had also experimented with amphetamine, ecstasy and methamphetamines but did not use them regularly. Otherwise, his personal and family history is unremarkable.
Dr Dayalan, given Mr Paterson's history and his conduct as an adult, diagnosed him as having adult attention deficit hyperactivity disorder and I accept that diagnosis as a factor to be taken into account in ameliorating or explaining Mr Paterson's conduct, at least to some degree. Adult ADHD manifests in mood instability, anxiety symptoms, temper outbursts, inattention, disorganisation and poor impulse control.
Dr Dayalan also suggests that a cannabis use disorder may be suggested, but such disorders are commonly associated with ADHD.
While Mr Paterson made statements to Dr Dayalan suggesting that he was "quite distressed by the realisation of the consequences of his offending behaviour", as earlier stated, he did not give evidence. There is a difference between being distressed by the consequences of offending behaviour and remorseful of the offending behaviour. I do not accept, in the absence of evidence, and notwithstanding the plea of guilty, that Mr Paterson is remorseful. I also do not accept that Mr Paterson warrants special circumstances.
I turn then to the subjective and other circumstances relating to Mr O'Brien. I accept that Mr O'Brien has expressed genuine remorse. His telephone contact with the uncle of the deceased, which was made shortly after Mr O'Brien heard of the demise of the deceased, and his expressions in that telephone conversation were a genuine and unsolicited expression of remorse and the acceptance of responsibility for the conduct in which he engaged. It also included an acceptance of the responsibility for conduct which led to the death of Mr Mason, the deceased.
His acceptance of responsibility and his realisation that an apology from him does not bring Jayden Mason back to life was repeated to his clinical psychologist, Mr Borenstein. At the time of the offence for which Mr O'Brien stands to be sentenced, Mr O'Brien was on bail. He had been charged with affray but the charges were later dismissed. He had previously been imprisoned and is not entitled to the leniency shown to a first offender. Further, his attendance at the Club and at this particular time was contrary to the conditions imposed upon him in his bail. I leave aside the obvious breach of bail, being, to be of good behaviour. Nevertheless, I take into account that the charge which warranted bail conditions being imposed was withdrawn. Nevertheless, Mr O'Brien was also on parole for a prior drug offence.
Further, as with Mr Paterson, I take into account that in some respects the catalyst for the assault was the somewhat random and abusive conduct of the victim. I do not, in that regard, place any blame on the victim for the conduct that eventuated.
Each of the offenders could easily have ignored the conduct without consequence and the victim's conduct, while a little provocative, did not involve any violence or any threat of violence. Further, it was plain that the victim did not want to fight and ran to escape the pursuit. In those circumstances, all responsibility lies with the offenders, but, the victim's verbal abuse was probably the catalyst that excited the conduct of both Mr Paterson and Mr O'Brien towards him.
Again, the offence was committed in company and at a time that Mr O'Brien was the subject of conditional liberty.
I have already noted the telephone call that Mr O'Brien made to the deceased's uncle. Further evidence of his remorse is his plea of guilty and the statements he has made to his forensic psychologist. The statements to the psychologist confirm the inference that arises from the telephone call to the uncle.
Mr O'Brien did not plead guilty at the earliest possible opportunity, notwithstanding the telephone call to the uncle. Nevertheless, he was, at that stage, charged with murder.
He did plead to manslaughter as soon as manslaughter was offered and proposed a plea to manslaughter shortly after the arraignment before the Arraignments Judge in this Court. Plainly, that has obviated the necessity for a trial and there is a significant utilitarian value in the plea when it was proposed. I intend to allow a discount of 15% in relation to that utilitarian value.
Notwithstanding Mr O'Brien's earlier offending, he has no offences of violence in his criminal record. Counsel for Mr O'Brien relies upon the application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. In particular, Counsel submits that Mr O'Brien's background is one "characterised by the abuse of alcohol and alcohol-fuelled violence" (see Bugmy at [40]). The evidence before the Court, predominantly from Mr O'Brien's sister, is that the violence that was perpetrated was perpetrated between his father and mother and did not involve abuse of the children. Each of the parents abused alcohol.
The environment in which he was raised was one of alcohol-fuelled violence, but such violence did not, it seems, directly involve Mr O'Brien. As a consequence, while it is a matter that I take into account in the subjective circumstances of Mr O'Brien, it does not feature in a way and to an extent that it would if the environment was more general.
The foregoing should not be seen as underplaying domestic violence between parents and the environment and difficulties that causes to children. This case, as much as any, shows that the cultural tolerance of drunkenness and the violence perpetrated by persons who are drunk is a scourge on society. Further, it must be said, that cultural drunkenness seems to be accepted, if not encouraged, as part of social or societal interaction.
I cannot stress enough that the circumstances of this case show, as do many other cases, the consequences of disinhibition and lack of control associated with excess alcohol or the abuse of drugs and/or alcohol. Drunkenness, however, is not, ordinarily, an ameliorating factor in the commission of any offence.
I have little doubt as to the accuracy of Mr Borenstein's comment that successful treatment of Mr O'Brien's alcohol and substance abuse will render it much less likely that Mr O'Brien will return to the courts for further offences.

Conclusion

Neither of the offenders is young. Mr Paterson is 37 years of age as at the date of sentencing and will be 38 in November of this year. Mr O'Brien will be 32 in August of this year. Each of them is at an age at which greater maturity in decision-making should have been shown and neither of them is entitled to any leniency on account of their youth or immaturity.
In the case of Mr Paterson, as has been made clear, and bearing in mind the subjective factors to which I have referred, this is a very serious offence and one of the most serious for manslaughter. I do not consider that the probability of employment enhances rehabilitation prospects and the need for treatment in the community. I also take account that the offence for which he was serving parole was committed over 8 years before this one.
One of the guideposts to which I must have regard is the maximum sentence prescribed by the legislature, which, in the case of manslaughter, is 25 years' imprisonment. I do not fix the maximum and I do allow, in the case of Mr Paterson, a 25% discount for the plea of guilty at the earliest possible time.
Nevertheless, the starting point for Mr Paterson must be a high one and not much below 25 years. I do not consider that there are special circumstances warranting a shorter than prescribed non-parole period. Further, I bear in mind that whatever discount is applied cannot result in the imposition of a sentence that is inappropriate to the seriousness of the offence in question.
In the case of Mr Paterson I start with a head sentence of 22 years and apply a 25% discount for the utilitarian value of the plea of guilty at the earliest opportunity, namely in the Local Court. In arriving at the figure of 22 years, I have taken into account all of the subjective circumstances and my determination as to the serious nature of the offence and the conduct that led to it. I also take into account the offences that have been notified on the Form 1.
As a consequence, the sentence that I will impose on Mr Paterson is a head sentence of 16 and a half years and a non-parole period of 12 years and 5 months.
In the case of Mr O'Brien, again taking into account all of the subjective circumstances to which I have referred, and bearing in mind the objective seriousness of the offence, I start with a head sentence of 10 years and apply a 15% discount for the utilitarian value of the plea of guilty. He has no prior history of violent offences and his Form 1 offence is the possession of 2.58 g of methamphetamine.
In Mr O'Brien's case, I consider there are prospects of rehabilitation, not on account of the offer of the employment, but on account of the genuineness of his remorse and his acceptance of responsibility, despite his lesser role in the joint conduct.
I take the view that Mr O'Brien will need to rid himself of his alcohol and drug abuse and that will require treatment in the community and an extended period of parole. I find special circumstances warranting a shorter non-parole period than if the prescribed ratio were applied.
As a consequence, I will impose on Mr O'Brien a head sentence of 8 and a half years and a non-parole period of 5 and a half years.
Mr Paterson, please rise: 1. You are convicted that on 25 June 2017 you did unlawfully kill Jayden Mason. 2. Taking into account the offences notified on the Form 1, I sentence you to a non-parole period of 12 years and 5 months, commencing 7 August 2017 and concluding 6 January 2030, with a remainder of term of 4 years and 1 month concluding 6 February 2034. 3. You are first eligible for parole on 6 January 2030.
Mr O'Brien, please rise: 1. You are convicted that on 25 June 2017 you did unlawfully kill Jayden Mason. 2. Taking into account the offence notified on the Form 1, I sentence you to a non-parole period of 5 years and 6 months, commencing 24 December 2017 and concluding 23 June 2023, with a remainder of term of 3 years concluding 23 June 2026. 3. You are first eligible for parole on 23 June 2023.

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