R v Robertson; R v McArthur

Supreme Court of NSW|2014-10-13|Before: Harrison J

REMARKS ON SENTENCE 1HIS HONOUR: The deceased died on 5 December 2011 at industrial premises in Minchinbury where he conducted a business called "HB Automotive". He was aged 15 years at the time of his death. He died at the scene when he was unexpectedly confronted, attacked and stabbed by Darren McArthur in the early hours of the morning just before the workshop opened for the day. Mr McArthur had been driven to the scene by Darren Robertson. 2Each of the accused was indicted upon a charge alleging that on 5 December 2011 they did murder the deceased. 3Mr Robertson pleaded guilty to the manslaughter of the deceased following his arraignment, but well before the commencement of the trial, which the Crown only accepted in complete satisfaction and discharge of the indictment on the first day of the trial. The offence of manslaughter carries a maximum penalty of 25 years imprisonment. 4Mr McArthur pleaded guilty to the murder of the deceased on the first day of the trial. The offence of murder carries a maximum penalty of life imprisonment. 5There was an agreement concerning the facts for sentencing purposes in the case of Mr Robertson. No such agreement was reached concerning Mr McArthur.

Mr Robertson - agreed facts 6On the day of the incident, Mr Robertson and Mr McArthur drove from the Central Coast area of New South Wales to Minchinbury in western Sydney. Mr Robertson drove the car, which belonged to his then partner Chelsea James. Mr McArthur travelled in the front passenger seat. If Mr McArthur carried a knife with him at that time, there was no evidence that Mr Robertson was aware of that fact. 7Mr Robertson and Mr McArthur drove to an industrial complex that contained the premises of HB Automotive. CCTV footage captured at the time shows the car arriving at about 5.40am. Over the course of the next two hours, the vehicle is seen to be driving around in the area and past the premises of HB Automotive. 8The deceased and his father arrived at the premises at about 7.50am that day. After opening the business, the deceased's father drove away, leaving the deceased alone in the workshop. At about 8.13am, Mr McArthur left the car and walked into the factory complex. He entered the workshop and assaulted the deceased. About six minutes later, Mr McArthur walked out of the factory complex and back to where Mr Robertson was waiting in the car, around a corner and out of view of the premises. The two men then drove away from the area. 9At about the same time as Mr McArthur was walking away from the premises, Mr Wayne Quinnell, an employee of HB Automotive, arrived at work and found the deceased lying on the floor of the workshop severely injured. Despite Mr Quinnell's attempts to assist the deceased, and later those of attending ambulance personnel, the deceased died from his injuries. 10The direct cause of death was a stab wound to the deceased's chest that penetrated his left lung and thoracic aorta. The deceased sustained a series of other injuries, including a cluster of non-lethal sharp force injuries to his right lower leg. 11An examination of the clothing worn by the deceased contained DNA material matching that of Mr McArthur. In particular, such material was found on three areas of the lower right leg of the deceased's trousers, one area on the lower left trouser leg, on both of the deceased's work boots and on a band worn by the deceased on his right leg. None of Mr Robertson's DNA was located on the deceased or at the scene. 12At the time of the incident, the offender was in a relationship with Ms James. On the day before the offence, Mr Robertson and Ms James had the following conversation: "Robertson: I have been offered to do a job tomorrow for a mate for good money. James: What sort of job? Robertson: All I have to do is go to Minchinbury to rough up and scare some bloke that owed some money to a friend and has ripped off some people. James: What the hell, no way, don't be stupid. Where did all this come from? Who is the friend? Robertson: Nobody. Don't worry about it. I could get $2,500 for doing it. It will be fine. I have been down there and scoped it all out. He is a big bastard but I won't be alone. It's in an industrial area in a shed up the back of Minchinbury..." 13Mr Robertson does not agree that he said that he could be paid $2,500. 14In the days following the death of the deceased, Mr Robertson told Ms James that he had organised for Mr McArthur to do the job with him and that a person known as "Macca" was to pay him for the job. Mr Robertson disputes that he organised for Mr McArthur to do it. 15Mr Robertson was part of a joint criminal enterprise involving an unlawful and dangerous act, namely to "rough up" or assault the deceased in return for payment. In doing so, Mr Robertson was aware that he was exposing another person to an appreciable risk of really serious injury.

Mr McArthur - factual findings 16There was no agreement with respect to the facts for sentencing purposes in the case of Mr McArthur. It was necessary in those circumstances for evidence to be led on matters of significant dispute. Those matters were the identification of the particular implement used by Mr McArthur that caused the death of the deceased and the related issue of whether or not Mr McArthur came armed with it, as well as whether or not Mr McArthur intended to kill the deceased or merely to cause him really serious injury. 17Dr Matthew Orde is a forensic pathologist who gave evidence by video link from Canada. Dr Orde is the medical specialist who carried out the autopsy upon the deceased on the day following his death. He prepared a report dated 23 May 2012 that was tendered without objection. 18Dr Orde gave the following evidence concerning the question of what implement may have caused the fatal injury to the deceased: "Q. You have described the edges of the wound, in the last sentence of the second paragraph under 'torso', 'the inferior edge was somewhat shallow and the top edge was slightly undercut'. Firstly, might you explain that and also indicate what that could mean, what conclusion it is possible to draw as to a knife with a sharp edge and the other side of the knife being the blunt side? A. I looked at this injury carefully, looking for signs which may point to a particular weapon. And there are difficulties in attempting to do that because we know that various weapons can produce various pattern injuries. There is not always a correlation. In this case, I noted the one end was somewhat squared and the other end was what more pointed which, to me, suggests that the weapon, probably a knife or similar, would have had one cutting edge and probably one relatively noncutting edge. The shelving is probably, for the purpose of this, neither here nor there. It just reflects the underlying trajectory of the wound path into the tissues." 19Dr Orde was also asked about the grazing type wounds to the deceased's leg. He said the following: "A. [Photographs] 115 and 116, so we can see there in those photographs, towards the back of the lower part of the leg, the lower part of the calf, there are multiple fairly parallel scratches or shallow cuts to the leg. The spacing of these cuts suggests to me that these cuts would have been made by a serrated edge, as may be seen on a knife..." 20Dr Orde was cross-examined on this issue as follows: "Q. Now the wound to the chest, could that be caused by something like a screwdriver being forced into the chest? A. It is always difficult to make certain conclusive comments about the object which caused an injury like a stab wound. The shape of the wound to the skin and to the deep structures depends upon many variables, not least the speed at which the object was thrust into the person's body but also the relative angle and movement between the weapon and the victim. Having said that, I think the injury to the left upper part of the chest was characteristically that of a cutting weapon such as a knife. I certainly wouldn't favour a screwdriver. I think the width that went into the skin would be too long to be accounted for by such a mechanism, so I simply favour a cutting object for that injury. As to the injuries to the right lower leg, again I would favour a cutting object with a longer, broader cutting edge, rather than something like a screwdriver. Q. You use the term 'like a knife' some object that at least has one edge that is somehow sharpened is what you think would cause those two injuries, is that right? It needs one sharpened edge? A. There may be two sharpened edges, I can't be certain? Q. But at least one? A. At least one sharp edge. I would favour something like a knife and looking at the deeper aspect of the stab wound to the chest, the injury gradually tapered to a smaller width as it went deeper, so I would favour a knife which had a pointed, tapered end. But again, it is difficult to be certain as to that sort of aspect of these injuries. Q. The difficulty is, it is much easier to make a conclusion about the possibility of a particular injury being caused, if you are provided with a weapon to use for comparison to the injury, is that correct? A. Yes, the best thing we can do is, if we are shown a weapon, obviously a pathologist will be able to say yea or nay. But it is difficult for me to describe the likely shape of any weapon, just looking at the injuries." 21In re-examination, Dr Orde was not particularly enthusiastic about the suggestion that the fatal injury to the deceased could have been caused by a screwdriver, as the following evidence reveals: "Q. The suggestion that it could have been a screwdriver that caused the stab wound to the chest, what differences, if any, would you expect to see from what you have seen in this if a screwdriver had been used? A. If a screwdriver - again, it all depends upon the nature of the screwdriver, the width of the blade, the length of the blade, its sharpness and all the rest of it. So again, many variables come into play. But assuming we are talking about a typical, fairly small diameter screwdriver with a small shaft, then one would expect a smaller injury to the skin. That need not always be the case, of course, because the screwdriver might move relative to the body and then extending the wound. But in this case, if you look at photograph 41 you can, I think, appreciate there that the edges of the injury to the skin are quite clearly cut along the whole length of this wound. So I don't think you could account for that by something like a screwdriver, which has a relatively blunt edge. This means an injury caused by a sharper edged object such as a knife, rather than a screwdriver." 22Chelsea James gave evidence. She confirmed the terms of her conversation with Mr Robertson, referred to earlier at [13], and adhered to what she said when challenged about it by Mr Stratton SC for Mr Robertson. She was also asked about Mr McArthur, as the following passage reveals: "Q. The other matter I wanted to ask you about is what Mr Robertson said, if anything, about Darren McArthur. Do you understand, I want to ask you about an aspect of that? A. Um. Q. I will ask you specifically. You said some things in your statement about the interactions between Mr Robertson and Mr McArthur, correct? A. Yes. Q. What I want to ask you is did he say anything about how Mr McArthur came into this job or became involved or why? A. From what Darren had told me is that he asked Darren McArthur to help him with it. That's he asked him to go with him." 23Linda Sharon Monsuere gave evidence that she knew Mr McArthur, and that about three or four days before 5 December 2011 he told her that he had a job to do in Sydney. She said that on an occasion in late November 2011, Mr McArthur was at her home and told her that "a boy had died on him". Ms Monsuere said that she had known Mr McArthur to carry a knife in the waist of his pants. 24A couple of days after the death of the deceased, Mr McArthur again visited Ms Monsuere. She gave evidence about what was said as follows: "Q. Did he say anything about the death of this young man? A. Yes. Q. What did he say? A. That the kid died on him, that he wasn't supposed to die. Q. The following week, did he come around to your house and did he talk about money? A. Yes. Q. What did he say? A. He was wanting the money that he was owed for doing the job." 25It would appear that following this conversation some phone calls were made to Mr Robertson from Ms Monsuere's mobile phone. 26Mr McArthur gave evidence. He maintained that what had happened was a mistake. He said: "I was just told to ask for the owner and to punch him in the mouth." He said that he was asked to do the job by someone called Macca, and that he would be paid in drugs. He was using ice at the time of the offence and had been regularly using illicit drugs. As he said, "I was a bad junkie at the time." Mr McArthur said this in evidence: "Q. How you came to go down to Minchinbury in Sydney and entered this factory? What led you to do that? A. I was just asked to give someone a hand. Q. Who asked you? A. Darren asked me. Q. And what did he say? A. He just said, 'Give us a hand. We are just going down to Sydney to talk to someone'. Q. Was there anything other than talking to someone suggested? A. No, I just thought it was just to bash someone or something." 27Mr McArthur was asked about what happened when he entered the premises. He said this: "A. I couldn't see anybody in there. I didn't think there is anybody there but the roller door was up. I went outside, I was on the driveway a bit and I went back and I heard something. When I walked in there was someone down the back of the factory. I started walking towards the person. I said, 'are you the owner?' They said, 'yeah'. I tripped over something just before I got to the person. I tripped and landed on them. The person pushed me back like that and I just freaked out. Because I landed on him, the way I walked towards him he must have thought something was up and he started lunging at me and I spun out. I didn't know what was going on. I was just going to hit somebody. So as I am falling over, I am trying to get back out, I was thinking of running out. Trying to get to my feet, I tripped over something, I grabbed something and I was just lunging at him. He was coming towards me, I had hold of him and he had hold of me. He went flying over, he went over my head, sort of thing, as I tripped over. He hit the ground. His legs was up this end of me. I slashed at his leg. He didn't move. I just shit myself and then I left, walked out and just ran down the road." 28Mr McArthur denied that he entered the premises armed with anything, including a knife. He said that he stabbed the deceased with something that came to hand on the floor of the premises as he was struggling with the deceased. His evidence was as follows: "Q. You say you took hold of something. Do you know what it was you took hold of? A. Um, it was like a saw or something like that. I am not sure, it was just like sharp. It was a piece of metal about [30cm] long." 29Mr McArthur admitted that he took hold of the item in order to stab the deceased. However he was unable with any particularity to describe the implement. He said that he threw it from the car as he was driven away by Mr Robertson. He agreed that he slashed at the deceased's legs with the implement. He described it when cross-examined as "a long piece of metal".

Subjective circumstances 30Mr Robertson was born in April 1970 and is now 44 years old. 31Mr Robertson tendered a report from Dr Olav Nielssen, a psychiatrist, dated 24 August 2014. Dr Nielssen took a history from Mr Robertson that included the fact that he has been held as a non-association protection prisoner since his arrest on 6 September 2012. His classification had been determined by prison authorities who had received advice that he was in danger because the family of the deceased were associated with the Lone Wolves Outlaw Motorcycle gang. 32Mr Robertson told Dr Nielssen that a person named Jamie McAndrew had asked him to drive Mr McAndrew to a certain location so that he could speak to Gary Burnes [the father of the deceased], who Mr Robertson had been told had kidnapped a friend and had stolen some money. Mr Robertson understood that there would or could therefore be a confrontation. Mr Robertson told Dr Nielssen that Mr McAndrew "went there to have words with him...it was 8.30 in the morning...I just stayed in the car." 33Mr Robertson told Dr Nielssen that he did not know that a person had been killed until that evening. He said that "when they [sic] came out of the shed where the offence took place, they [sic] were 'cool as a cucumber', and there were no signs that any violence had taken place." Mr Robertson told Dr Nielssen that he only discovered what had actually happened after reading the brief of evidence. 34Mr Robertson did not report any notable or relevant medical history of physical or psychiatric illness. He grew up in Maroubra and attended Daceyville Public School and South Sydney High School. He left school in Year 9 to start an apprenticeship as a spray painter, but would have preferred to pursue a career as a professional footballer. 35Mr Robertson married for the first time at the age of 22 to a policewoman, but they separated in 1995 after five years and had no children. After the separation, he moved to England where he lived and worked for four years. Upon his return to Australia he worked as a security guard at the Eastern Suburbs Leagues Club. He also worked in a houseboat hire business. 36Mr Robertson met his second wife in 1998 and they have three sons. He maintains regular contact with his wife and children. 37Dr Nielssen diagnosed Mr Robertson with a substance abuse disorder that was in remission and an anxiety disorder (PTSD) apparently related to an assault in 2011. Mr Robertson was reactive in his emotional responses and did not appear to be pervasively depressed. There were no odd usages or abnormal speech patterns suggesting any underlying psychotic illness or brain injury. Mr Robertson was found by Dr Nielssen to be alert with intelligence in the normal range. There were no historically based or other indications of future dangerousness. 38Mr Robertson has only one prior conviction, for rebirthing motor vehicles. He has no convictions for matters involving violence.

Mitigating factors 39In my opinion, Mr Robertson is unlikely to reoffend and has reasonable prospects of rehabilitation. This is because he has no history of violence, his historical drug use does not ever appear to have been chronic or entrenched and he appears otherwise to have good family and community support.

Aggravating circumstances 40The offence involved the actual or threatened use of violence. Even though the offence also involved the actual use of a weapon, there is no evidence to suggest that Mr Robertson was aware of this and so this factor does not aggravate his offence. The offence was also part of an organised criminal activity.

Objective seriousness 41Mr Robertson was part of a joint criminal enterprise to assault someone who turned out to be the deceased. As already noted, there is no evidence that Mr Robertson was aware that his accomplice Mr McArthur was armed with a knife or indeed with any weapon at all, or that he contemplated that Mr McArthur would attack another person with the intention of killing or inflicting grievous bodily harm upon that person. His account of what occurred given to Dr Nielssen is, however, somewhat difficult to reconcile with what is otherwise agreed or established. For example, Mr Robertson spoke of driving "Mr McAndrew" to the location to collect a debt and so forth. Mr McAndrew has never been identified as a person present when the offence took place. Secondly, Mr Robertson speaks in terms suggesting that more than one person returned to the car following the assault upon the deceased, when only Mr McArthur did so. Mr Robertson did not give evidence and these unexplained inconsistencies remain unexplained. 42Mr Robertson's role was one that kept him removed from the commission of the actual violence that led to the death of the deceased and otherwise passively unconnected to Mr McArthur's lethal actions. His liability for the death of the deceased is, to that extent, generated in circumstances where he was not immediately present when the death occurred and where he did not see what happened or participate in the performance of actions that directly caused or contributed to the death of the deceased. He was, however, acutely aware that Mr McArthur was proposing to inflict some kind of violent assault upon a person within the workshop premises of HB Automotive and he actively participated in and facilitated the execution of that disastrous plan. It is trite to observe that, but for the active assistance given by Mr Robertson in transporting Mr McArthur to Sydney, and delivering him to the Minchinbury premises, the senseless and tragic death of a young man most certainly would not have occurred. Mr Robertson's liability and criminal responsibility for the death of the deceased must necessarily be considered and assessed having regard to these circumstances. 43The death of the deceased is a definitively serious matter, and the offence of manslaughter is an unquestionably serious offence. The range of circumstances that are capable of establishing the offence of manslaughter is, however, wide and effectively unconstrained. For present purposes, I am only concerned to place the offence committed by Mr Robertson in some meaningful comparative context by reference to its objective seriousness. It seems to me that Mr Robertson's offence falls at about the mid-range of objective seriousness for offences of this type.

Deterrence 44Having regard to Mr Robertson's prospects of rehabilitation, and to the insignificant likelihood that he will offend again, there seems to me to be little need to factor into his sentence any notable element of special deterrence. 45I consider that a quite different view needs to be taken concerning general deterrence. The particular circumstances of this case indicate that Mr Robertson was given or took a measured approach to his involvement in the events that caused the death of the deceased. The offence did not occur in the heat of the moment, or in a rush of passion or revenge, or in response to a direct personal attack upon him or where he had otherwise little time to reflect upon or to consider his actions. Indeed, quite the opposite is true. Whatever might be said about the utility or wisdom of general deterrence in those circumstances, such criticisms are less relevant where the offence in question is the product of a calm and considered, albeit entirely misguided, approach. 46It is entirely inimical to life in a civilised society for any member of the community to assume to himself or herself the role of a violent enforcer or settler of scores. A measured and considered decision to rough someone up or to teach them a lesson, or whatever other insidiously euphemistic description one chooses to adopt for such conduct, is obviously entirely unacceptable. Even the slightest consideration by any right thinking and reasonable person would make that clear. I am entirely satisfied that Mr Robertson was aware that what he proposed to do was dangerous and criminal. He made a conscious decision to proceed with the plan notwithstanding. To the extent that sentences for violent crimes are capable of educating and deterring similar conduct by others, the sentence that Mr Robertson should serve seems to me to offer considerable scope for general deterrence.

Plea of guilty 47Mr Robertson formally pleaded guilty to the manslaughter of the deceased on 8 July 2014. This was what turned out to be the first day of the trial. He had previously offered to do so some weeks beforehand but that offer was not originally accepted by the Crown. It is accepted that the relevant date for sentencing purposes is therefore the date of Mr Robertson's first offer to plead guilty. There is a suggestion that Mr Robertson's plea was the precipitating event for Mr McArthur's plea of guilty to the murder of the deceased. I have no direct evidence of that fact, although it seems to me to be a not unreasonable inference in the particular circumstances of this case. 48There is a considerable utilitarian value to Mr Robertson's plea. I consider that he is entitled to a discount of 15 percent for that plea.

Remorse 49Although Mr Robertson pleaded guilty, and is entitled to be given credit for what that plea says as an admission of his guilt, Mr Robertson did not express any remorse in his interview with Dr Nielssen and did not do so in evidence before me. There is evidence to suggest that he was physically ill when he learnt of the death of the deceased. However, a reaction of that type does not appear to me to have anything to do with remorse as much as it does with Mr Robertson's concern for his own position. 50There may be forensic reasons why Mr Robertson chose not to subject himself to the prospect of cross-examination, had he chosen to give evidence concerning any feelings that he has concerning the death of the deceased, or his role in the events that led to it, or to express any regret for what he has done or sympathy for the family of the deceased. It is difficult in the circumstances to conclude that Mr Robertson has any feelings of genuine remorse for his role in the death of the deceased. It is not therefore possible for me to take it into account as a relevant matter: see s 21A(3)(i) Crimes (Sentencing Procedure) Act.

Special circumstances 51There does not appear to be any material before me upon the basis of which it is appropriate to vary the statutory ratio of parole to non-parole periods. I have considered Mr Robertson's likely custodial conditions separately.

Subjective circumstances 52Mr McArthur was born in September 1975 and is 39 years old. He has a 14 year old son from a former relationship. He is a cabinet maker and builder by trade. Mr McArthur was unemployed at the time of his arrest, last having worked about four years ago. Mr McArthur has been in custody solely referable to this offence since 2 October 2012. 53Mr McArthur tendered two reports prepared by Dr Richard Furst dated respectively 3 March 2014 and 15 August 2014. Dr Furst is a psychiatrist. Mr McArthur reported to Dr Furst that he was born in New Zealand and migrated to Australia as a child. He attended Woy Woy High School to Year 10. He underperformed at school and was suspended on a couple of occasions. There are no indications that he suffers from an intellectual disability. 54Mr McArthur's parents separated when he was very young and he grew up with his mother before moving to live with his father on the Central Coast. He reported regular beatings from a series of stepfathers. 55Mr McArthur fell into drug use, including amphetamines, heroin and methadone from the age of 16 or 17 years. He had previously sniffed glue and smoked cannabis from an early age. Mr McArthur continued to use "ice" and amphetamines into his thirties, as well as drinking and using heroin. His drug use was excessive in the year prior to his arrest. He denied any history of serious mental health problems and has never been admitted to a psychiatric facility. He once presented to hospital after taking an overdose of heroin. Dr Furst considered that Mr McArthur had an unstable personality structure. He takes antidepressant medication since being incarcerated. Mr McArthur is hepatitis C positive. 56Mr McArthur told Dr Furst that "[the offence] should never have happened". He said that he was sick and using drugs. He said, "It was the wrong person". He told Dr Furst that all he did was "ask if the person was the owner and [the deceased] said 'yes'." He told Dr Furst that he tripped over and generally gave an account of what occurred that was also given in evidence before me. He told Dr Furst that Mr Robertson asked him to go. He said "there was no offer of money" and "I was there to back him up." He also said, "I was hanging out. I wanted to get on. Get some heroin." Had been drinking and using ice. 57Mr McArthur expressed remorse to Dr Furst. He said, "I've ruined so many lives. I should be dead myself. I feel terrible. I only agreed to go because I needed drugs and that. I wasn't living anywhere. I was just backing [Mr Robertson] up." He also told Dr Furst that "[the deceased] was only 15". He said, "I can't imagine how his family feels. Their son was taken away from them for no reason at all." 58Mr McArthur also added that, "It all feels like a dream." He said that he did not understand why it had happened or why he even went there. He said, "I was that messed up." 59Mr McArthur told Dr Furst that he has had no contact with his family and no visits while in gaol. He has been threatened and expects to be killed in custody because of the deceased's father's connections with a motor cycle gang. He holds these fears despite the fact that he is in protective custody. 60Dr Furst did not observe any indications of severe depression, mania or psychosis. Mr McArthur was not suicidal or threatening. His thought form was organised and his attention span was good. He concluded that Mr McArthur did not appear to suffer from a major mental illness such as schizophrenia or bipolar disorder. However, his anxiety, low mood and insomnia would appear to warrant ongoing prescription of antidepressant medication. Dr Furst considered that Mr McArthur would require community psychiatric follow-up and drug and alcohol counselling with a focus on relapse prevention, together with supervision through the Probation and Parole Service. 61Dr Furst considered that Mr McArthur's risk of reoffending could be reduced if he abstained from drugs of abuse and engaged in psychiatric and psychological treatment programs.

Mitigating factors 62Mr McArthur expressed his remorse both to Dr Furst as well as in the witness box at the sentencing hearing. He said many times that "it should never have happened". He said that he did not know why he did what he did. He thought every day about what he had done and was sorry for his actions. He also said this: "Q. Is it the case that you have a son of a similar age? A. Yeah, that's right. I've ruined so many people's lives through stupidness, you know. I want to apologise to the family and that but I, I don't feel I even have the right to even speak, like to insult them by even saying sorry, like. I understand why, why threats have been made against me. That's what I deserve, you know. I deserve, I shouldn't be here today. I should be dead, you know. I never had any intentions, never had any intentions for hurting your son or anything like that. I didn't even have any idea at the time. I was messed out, like, on drugs. Those few years leading up to that I hardly ever slept. Just, like I shouldn't even have been walking around." 63I think that it is important, in an appropriate case, to recognise and acknowledge the very real difficulty of confronting the relatives of the deceased in a case such as this, with admissions of such terrible conduct. Indeed, it is not uncommon that the victims of a crime most directly affected by what has occurred are themselves emotionally and physically unable to present their own statements to the court without assistance. Mr McArthur chose to offer his apology in a room that was crowded with people who clearly despised him. He said what he had to say in those circumstances. 64Mr McArthur has not had the benefit of a comprehensive education. He clearly was not used to public speaking or to the expression of remorse or quiet emotion. It is, however, a mistake to conflate an infelicity of expression or public humiliation with insincerity. The Crimes (Sentencing Procedure) Act makes specific provision with respect to the circumstances in which an offender's remorse can be treated as a mitigating factor. I am satisfied that Mr McArthur has expressed remorse that can be used in that way.

Aggravating circumstances 65The offence involved both the use of violence and a weapon. The offence was also part of a planned criminal activity. It is unclear whether or not the offence was committed for financial gain. While some evidence suggests that Mr McArthur expected to receive payment in the form of drugs, the evidence about this is wholly unsatisfactory. It does not permit me to conclude that the relevant aggravating factor applies in this case.

Objective seriousness and intention - factual findings 66It is at the centre of Mr McArthur's plea in this case that he was neither armed with a knife when he entered the deceased's workshop premises nor that he went there with the intention of killing anyone. I note in that last respect that Mr McArthur concedes that he went to the premises with the intention of confronting the owner of the business, and that he had been told or assumed that the owner was the father of the deceased. Accordingly, any intention that he may have had when he entered the premises is to a certain extent informed by that fact. However that may be, the important intention for present purposes is that which Mr McArthur had at the time when he committed the act or acts that caused the death of the deceased. 67Mr McArthur killed the deceased by stabbing him. Photographs tendered in these proceedings clearly depict a wound in the deceased's left upper anterior chest. It is tempting to conclude from the size and shape of that wound that it was caused by the blade of a knife. There are two reasons why that conclusion cannot be based upon the photograph. First, Dr Orde was himself unable to say so, armed as he is with specialized knowledge in the field. Secondly, it is not open to me to form my own opinions and conclusions from photographs without the benefit of expert guidance in what the photographs depict. I am able to conclude that the deceased sustained a penetrating wound to his chest, but I cannot by simply viewing the same photographs ascertain the precise nature of the object that caused it. 68The deceased sustained other injuries. Mr McArthur accepted that they were inflicted by him. He said: "I don't know how he got that. Like obviously I've done it, but it was when I was trying to get away and I've slashed at his leg and he didn't move." 69Dr Orde opined that the scraping-type injuries to the deceased's leg could have been caused by a knife with a serrated blade. There is no evidence or other suggestion that Mr McArthur armed himself at any time with more than one weapon or implement. I am satisfied beyond reasonable doubt that the implement or weapon that caused the injuries to the deceased's leg is the same implement or weapon that caused the fatal penetrating wound to his chest. 70Mr McArthur's description of the item has been referred to already. It was notably general and entirely lacking in detail. He also gave this evidence about it: "Q. There seems to be two wounds to the bottom of his right foot. Do you see that? A. Yeah. Q. I suggest you were using a knife to do that. What do you say about that? A. No, I don't know. Q. Could you have been using a knife? A. No. Q. Why do you say that? A. I might have been, I don't know, whatever I picked up. I thought it was a piece of metal, just jagged metal." 71Mr McArthur gave other evidence about this as well: "Q. So I suggest that under those circumstances you consciously took your knife in with you. What do you say? A. No, not at all. Q. Definitely not? A. No. Q. You don't know what you held in your hand? A. Yeah. It was like a piece of metal like a handle thing on it. Q. Like what? A. I don't know, it had something. I don't know, I just chucked it when we left." 72Mr McArthur gave evidence that he still had possession of the weapon when he returned to the car to re-join Mr Robertson. That is clear from the fact that he said he disposed of it by throwing the implement out of the car somewhere along the highway. Allowing for the fact that Mr McArthur is likely to have been in an agitated state at the time, he appears to have had, on his own account, the presence of mind to dispose of something that was likely to inculpate him in some way if he retained it in his possession. It is curious at least, in those circumstances, that Mr McArthur is unable to provide a considerably more detailed description of precisely what he used to kill the deceased. 73I listened very carefully to Mr McArthur's description of what occurred. He repeated the version of events that had him tripping over and falling into or upon the deceased. He said that he "freaked out." It was in the course of the struggle, as described by him, that Mr McArthur reached for and somehow acquired the mysterious item that he then used to injure and ultimately kill the deceased. 74I reject this version of what happened. One of the significant features of the incident is that Mr McArthur went alone in search of the owner of the business. Whether or not that was the original plan, or whether Mr Robertson was supposed to accompany him as "back up" is now beside the point. Mr McArthur went into premises unaccompanied to assault someone with whom he was unfamiliar. That is clear from the fact that, on his own account, he asked the deceased if he was the owner. Mr McArthur clearly had no idea of the size or characteristics of the person he was there to confront. Mr McArthur was himself slight. I do not accept that Mr McArthur went into the premises unarmed in those circumstances. 75The particular nature of the wounds inflicted upon the deceased also gives some guidance on the issue of what may have been used by Mr McArthur to cause them. I think that it is important to record precisely what Dr Orde had to say about these wounds in his autopsy report: "Around the posterior and lateral aspects of the distal right lower leg there was a collection of complex sharp force injuries extending from between 130 and 200 mm above the heel, and extending from the dorsomedial aspect of the anterolateral aspect of the circumference. Posteriorly these injuries comprised two broad transverse bands of obliquely aligned, from 11-5 o'clock, discontinuous linear superficial incised defects consistent with having been caused by a serrated edge or similar. There was a zone of discontinuity measuring some 19 mm in width between the two bands of injury. The superior posterior band of these oblique incised defects measured 9 mm in width, and the inferior posterior band measured predominantly 45 mm in width, though on the dorsomedial aspect of the leg one of the oblique incised defects was seen to extend over 78 mm in length. The approximate interval repeat distance between these probable serrated marks varied between 3 and 5 mm in width. To the lateral aspect of the lower leg, in line with the previously described bands of injuries, there were two essentially transversely aligned fairly deep gaping somewhat irregular incised defects. Fat and muscle tissue and focally tendinous tissue was present at the depths of these defects, though the tendons appeared essentially intact, with the anterior part of the main lateral tendon passing posterior to the lateral malleolus (peroneus longus) having been only focally cut through its anterior part, up to 2 mm in depth. The adjacent deep muscle tissue was also focally incised at this point." 76I am satisfied beyond reasonable doubt that Mr McArthur armed himself with a knife that had a serrated blade. I have reached that conclusion in light of the fact that the uniform scraping wounds on the deceased's leg are consistent with the use of a knife with a serrated blade and not otherwise consistent with or explained in any way by Mr McArthur's own description of what he used to cause them. The deep slicing wounds on the deceased's legs appear to me necessarily to have been caused by a sharp implement, and do not sit easily with Mr McArthur's somewhat anodyne and limited description of "a piece of metal". 77I am unable to determine whether or not the deep wound to the deceased's scalp says anything at all about whether or not Mr McArthur was armed with a knife. Dr Orde described it as "a deep laceration... with a forked anterior end" with "unequivocal tissue bridging across at least part of the wound." It would not appear that this injury was caused by the implement that caused the death of the deceased. 78It will be apparent that my finding that Mr McArthur was armed with a knife that he brought to the premises does not also automatically dispose of the question of his intention at the time he killed the deceased. Having entered the premises alone, it is conceivable that Mr McArthur took the knife for his own protection and nothing else. I do not, however, consider that that is a proper analysis of why he was so armed. Having concluded that Mr McArthur used his own knife in carrying out his attack upon the deceased, I am satisfied beyond reasonable doubt that he used it at least with the intention of inflicting really serious injury. The extent and location of the chest wound is inconsistent with any other conclusion. 79I am unable to be satisfied beyond reasonable doubt that Mr McArthur attacked and wounded the deceased with the intention of killing him. I accept immediately that the relatives of the deceased may feel that the fact that death resulted from the wound that was inflicted itself generates such a finding as a matter of common sense. It does not. The evidence does not support the existence of a plan to journey to the premises in order to kill the deceased. For example, there is no independent electronic surveillance material or recovered telephone product that assists in this regard. Nor is there any later material, either by way of formal admissions or secretly recorded conversations that point to such a conclusion. Any such finding must be made beyond reasonable doubt. Mere suspicion is not enough. I am however satisfied beyond reasonable doubt that Mr McArthur stabbed the deceased with the intention of causing him to sustain really serious injury. 80I have on several occasions referred in the past to the significance of such a finding in any event. In my opinion there is, or ought to be, little difference for sentencing purposes. The crime of murder is committed in circumstances both where the intention was to kill as well as where it was limited to an intention to inflict grievous bodily harm. Mr McArthur has pleaded guilty to the murder of the deceased. 81Mr McArthur has correctly said on a number of occasions that this death should never have happened. The plan to attack the deceased, and the carrying out of that plan, were both senseless acts of vicious and tragic stupidity with terrible and permanent consequences. The deceased was young and blameless. He was innocently going about the ordinary business of his working day. He had no grievance with his attacker and his attacker had none with him. The deceased was unarmed and unsuspecting. The suggestion that the deceased was assaulted by mistake for his father cannot be easy for his surviving family to accept. 82I consider that this is an objectively serious case of the crime of murder. In my opinion it falls to be determined as a crime somewhere above the middle of the range of objective seriousness for crimes of this type.

Deterrence 83The same general considerations apply in this context with respect to Mr McArthur as apply in the case concerning Mr Robertson. This was an offence planned at a temporal and physical remove from the crime. It was neither spontaneous nor reactive. It amounted to a considered, albeit ill considered, plan to perpetrate a violent assault. Such conduct must be unequivocally and emphatically denounced and deterred. To the extent that the sentence that I impose upon Mr McArthur is capable of having that general effect, it should be structured to do so. 84There is in my opinion no present requirement for special deterrence over and above the need to punish and denounce Mr McArthur for his crime. In this respect I note that I am mindful of the terms of s 3A of the Crimes (Sentencing Procedure) Act and I intend to give effect to them in sentencing Mr McArthur. However, Mr McArthur's prospects of reoffending are likely to be a function of his age at the time of his release to parole and correspondingly diminished for related and obvious reasons.

Plea of guilty 85Mr McArthur pleaded guilty on the first day of the trial. The plea is therefore of limited utility. However, I acknowledge that the trial was listed with an estimate of approximately four to five weeks. The community has therefore been saved the expense of a trial and the several witnesses have been spared the ordeal or inconvenience of attending court and giving evidence. I consider that Mr McArthur is entitled to a discount of ten percent for the utilitarian value of his plea.

Special circumstances 86Based upon the findings and recommendations of Dr Furst, I consider that Mr McArthur is likely to require considerable supervision and assistance in the community upon his release. Having regard to the likely length of his parole period, however, there do not appear to be any indications for adjusting the statutory ratio to any significant extent. I have also considered Mr McArthur's likely custodial conditions separately.

Custodial conditions 87Both offenders contended that they were entitled to favourable consideration upon the basis that they had been and were likely to remain incarcerated in some form of isolation or protection and that their time in custody was likely to be more onerous than otherwise would be the case if their sentences were served as members of the general prison population. Mr McArthur gave evidence about this and Mr Robertson made submissions without evidence. In the events that have occurred, these contentions are controversial. 88The sentencing proceedings were reopened on 13 October 2014 in order for further evidence to be received. The Crown relied upon an affidavit sworn by Melanie O'Connell on 24 September 2014 that was read without objection. Ms O'Connell was not cross-examined. In addition, the Crown called Michael Hovey, a senior officer in Corrective Services New South Wales. His statement dated 7 October 2014 was also tendered. Mr McArthur read an affidavit of Daniel Pace sworn 10 October 2014. That affidavit was read without objection and Mr Pace was not cross-examined. This evidence now establishes the following. 89Section 11 of the Crimes (Administration of Sentences) Act 1999 authorises the Commissioner or a General Manager or delegate to direct that an inmate be held in protective custody if he or she is of the opinion that the association of the inmate with other inmates constitutes, or is likely to constitute, a threat to the personal safety of the inmate. Section 11(3) of that Act authorises the General Manager or delegate of a correctional centre to place an inmate in protective custody at the written request of the inmate. The General Manager or delegate must revoke the protective custody direction if requested by the inmate. 90Special Management Area Protection, or SMAP, is a location or area within a correctional centre where a protective custody inmate is housed following an assessment of his or her individual circumstances. Such decisions are usually made as part of the reception process, following a change in circumstances or following receipt of a written application from the inmate. A special management area can only be created with the direct approval of the Assistant Commissioner, and where the inmates remain able to associate freely and have access to programs and services similar to normal discipline inmates at that centre. 91There are also other locations or areas within a correctional centre that can be utilised to accommodate protective custody inmates. Some of the inmates in these areas are known as Protection, Limited Association inmates or PRLA. The main difference between SMAP and PRLA inmates is that the latter have association issues with other normal protection inmates, which limits the number of people with whom they can freely associate. 92The highest level of protection available is Protection, Non Association or PRNA. These are inmates housed in single accommodation cells who otherwise cannot be accommodated in SMAP or PRLA areas. The placement of an inmate in a non-association cell is not considered automatic and such decisions are only made following a full assessment of all the factors pertaining to the inmate's circumstances. 93Mr Hovey indicated that Mr McArthur came into custody on 9 February 2012 at Wyong Court cells, on a matter unrelated to his current charge. Later that same day, he was transferred to the MRRC at Silverwater, where he was initially placed in "D" Block. On 10 February 2012, he was moved to "G" Block, in Pod 14 where he remained until his transfer to Bathurst Correctional Centre on 20 February 2012. Mr McArthur remained in general discipline until 8 August 2012 when increased media coverage relating to his current matter led to a determination that he should be placed on a PRNA order. 94On 9 October 2012, Mr McArthur's protection status was downgraded to SMAP. He remained a SMAP inmate housed at Goulburn Correctional Centre until 27 April 2013, when he transferred to Cessnock Correctional Centre and was placed on a self-initiated PRNA order for 12 days until 8 May 2013. This was due to the fact that Mr McArthur was giving evidence against an inmate held as a SMAP at Cessnock Correctional Centre. Whilst he was held at Goulburn Correctional Centre, Mr McArthur associated with an average of 56 other inmates, which is comparable to general discipline housing units at that centre. On 8 May 2013, Mr McArthur reverted to SMAP status, where he has remained. He is currently housed in F7 Pod at the MRRC, associating with 63 other inmates, which is comparable to general discipline housing units at that centre. 95Mr Robertson came into custody on 6 September 2012 at Sutherland Court cells and later that same day was transferred to the MRRC at Silverwater, where he was placed in "D" block. Mr Robertson has only ever been housed at the MRRC or Goulburn Correctional Centre. He is currently held as a SMAP inmate at Goulburn, where he is employed as a wing "sweeper". Mr Robertson has spent just under half of his current incarceration on PRNA, all at his own request. Mr Robertson signed off PRNA to be housed in the SMAP at Goulburn Correctional Centre. 96It appears that as a result of the deceased's father's membership of the Lone Wolves Motorcycle Club, Mr McArthur and Mr Robertson both hold fears for their safety in prison. They have brought these concerns to the attention of the Corrective Services officials. Their respective classifications have from time to time reflected a perceived need to separate them from the general prison population in one or other of the ways explained by Mr Hovey. There is no evidence to suggest that their current SMAP status will not continue for the indefinite future. 97To the extent that there are real or perceived threats to their personal safety arising from the particular identity of the deceased, Mr McArthur and Mr Robertson are the authors of their own destiny. Their position is to be distinguished from an inmate who provides information to police leading to the conviction of an offender whose associates also populate the prison system. By the same token, the public identification of the deceased's father as the alleged source of the threats that Mr McArthur and Mr Robertson have received or suspect must to a considerable and obvious extent ameliorate the likelihood of them materialising. 98In the case of Mr McArthur I was also provided with two statements made by him to police in relation to another matter. Mr McArthur was a witness to certain events following the death of a woman. He was not criminally concerned with the incident but offered material to police in order to assist them with their investigation. Although the evidence that Mr McArthur was able to provide appeared to be valuable, Mr McArthur was unable or unwilling to reproduce this evidence when ultimately called as a witness at the trial of the offender charged with the woman's death. 99I am informed by Mr Austin of counsel for Mr McArthur that this material assists me in the sense that it shows that Mr McArthur was willing when at liberty in the community to offer assistance to the police but became reluctant to do so once he was incarcerated. He submitted that this was in effect a practical manifestation of Mr McArthur's concern not to be labelled as an informer, or as a person willing to assist the police, having regard to the way in which such people are often treated within the prison system when that information is known. Mr Austin emphasised that Mr McArthur did not actually provide assistance and was not seeking a discount for having done so. The material was prayed in aid of a contention that Mr McArthur was a contributing member of society and accordingly entitled to be considered to have good prospects of resuming such a role following his release. 100In all of the circumstances I accept that both Mr McArthur and Mr Robertson will for some time at least be classified as SMAP prisoners, thus limiting their movements and associations while in custody. However, to the extent that their access to rehabilitation programs and educational courses is thereby restricted, the effects upon them will not be severe. In the case of Mr Robertson, his employment history and family support in the community suggests that he will require little intensive assistance for reintegration upon his release. In the case of Mr McArthur, he will in my view inevitably be reclassified over the several years of his non-parole period in a way that will expose him to the benefit of rehabilitative programs well before he returns to the community.

Victim impact statements 101Victim impact statements from the deceased's mother and grandmother were read aloud to the Court by a family friend. They spoke in measured terms of their own personal reactions to the death, including the continuing consequences for them and the rest of the family. These people would all appear, quite understandably, to be labouring with the burden of grief in various and personal ways. The death of the deceased is undoubtedly a terrible and unending fact of life for all of them. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and the friends who will always remember him. 102Section 28 of the Crimes (Sentencing Procedure) Act applies to the present proceedings. That section is relevantly as follows: "28 When victim impact statements may be received and considered (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) .... (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community. (4A) Subsection (4) does not affect the application of the law of evidence in proceedings relating to sentencing. (5)..." 103I remain however mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and Bollen v R (1998) 99 A Crim R 510. The conclusions to which I have come, and the sentences that I consider are appropriate, are the conclusions that I would have reached and the sentences that I would have imposed even without the benefit of the very helpful and informative statements to which I have referred.

Conclusions and sentences 104Mr Robertson has been in custody on remand for this offence since 6 September 2013. 105Although Mr McArthur was arrested for this offence on 6 August 2012, he was then serving a sentence for a previous offence. The non-parole period of that sentence expired on 1 October 2012. Even though his parole for that offence was revoked upon his arrest for the murder of the deceased, he has effectively been in custody solely referable to the current offence since 2 October 2012. 106Darren Stewart Robertson, for the manslaughter of xxx you are convicted. I sentence you to a term of imprisonment of 10 years and 8 months commencing on 6 September 2013 and expiring on 5 May 2024 with a non-parole period of 8 years expiring on 5 September 2021. 107Darren James McArthur, for the murder of xxx, you are convicted. I sentence you to a term of imprisonment of 25 years and 2 months commencing on 2 October 2012 and expiring on 1 December 2037 with a non-parole period of 18 years and 10 months expiring on 1 August 2031.

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: 15 October 2014

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