R v Sutcliffe & Ors

Sean Sutcliffe 22Sutcliffe was one of the offenders who participated in the physical attack on the deceased in the driveway of the premises in which his body was eventually located. I reject his assertions to police that he did not come within relevant proximity of the victim. The initial questions are what part did he play in the attack and what was his intention at the time. 23As earlier recounted, the fatal wound to Jamie Lafoe was a deep stab wound. I am satisfied, to the necessary standard, that it was Sutcliffe who inflicted it. Obviously one of the attackers did so and Jason Moulds gave evidence at trial of Sutcliffe's admission to that affect. I am conscious of criticism about the credit of that witness however the admission was not made privately, as it were, to Jason Moulds but to all those present when Sutcliffe returned down the street from the scene. There is now fortification for the truth of the content of the admission in the evidence of Brown, the only offender who elected to give evidence in the sentencing proceedings. His testimony included incorporating the truth of what he had told police in his interview where he had related seeing Sutcliffe performing the act of stabbing. Of course, the content of Brown's interview was not available evidence against Sutcliffe at trial but it was not sought to challenge him at the sentencing hearing. The absence of challenge is more surprising in the light of Sutcliffe's accusation that Brown was the perpetrator of the actual act of stabbing as recorded by the psychologist Mr Borenstein in his report of 16 May 2013. It was reported in the context of the somewhat curious inquiry by Mr Borenstein as to whether Sutcliffe felt that he had been adequately heard in relation to his version of events. It does not appear whether Mr Borenstein was informed that Sutcliffe had elected to remain mute at trial and gave no version of events. The version, in effect that he was always at a distance from the attack, which he gave to police was simply not credible. 24The depth of the fatal wound is highly suggestive that it was made with an intent to kill however in the whole of the circumstances I am unable to be satisfied that Sutcliffe had that intention beyond reasonable doubt but I am satisfied that at the time of striking Sutcliffe certainly intended to cause grievous bodily harm. 25Motive is not an essential ingredient of the crime but the Crown argued that the offenders, including Sutcliffe, acted out of revenge or a desire to take the law into their own hands and punish Jamie Lafoe. There is much force in the argument and particularly in the absence of any credible contradiction I find this to have been the case. In particular, I am not satisfied of a probability that Sutcliffe attacked the victim for the purpose of containing any perceived threat to himself, his family or others which existed at the time of the attack. 26Sutcliffe is now 40 years of age and was 37 at the time of the offence. His relationships and family responsibilities are detailed in Mr Borenstein's first report and need not be recited. His relationship with Ms Blinman and the children appears to have been stable and his care for them appears to have been suitably responsible. I have noted the difficulties reported in relation to an eight year old child. The stability has been achieved despite a matter of some concern in his prior record. For present purposes other matters in that record can be ignored but that one cannot. 27On 18 August 2000 Sutcliffe was sentenced in this Court to imprisonment for five years three months with a non-parole period of three years for manslaughter. The remarks on sentence of the presiding judge have been tendered. With others, the boot of his car was loaded with rocks and the group proceeded to an overbridge from which they cast the rocks onto traffic passing below on a four-lane highway. The targets were said to be trailers hauled by large prime movers, however two rocks crashed through the windscreen of a driver's cabin and at least one of them killed the driver by its impact. A finding by the sentencing judge was that Sutcliffe took a leading role and that, of four offenders, his culpability was the greatest. Two of those four offenders were aged 16 and 17 at the time and Sutcliffe was about 25. 28Apart from the obvious seriousness constituting that offence, the credibility of Sutcliffe when he is reported to have made various assertions is not assisted by his explanation to Mr Borenstein that this offence arose out of "hanging around with the wrong people". That explanation is scarcely compatible with the finding of greatest culpability. Mr Borenstein recorded that he had read the remarks on sentence but made no comment on this apparent discrepancy. This prior conviction operates to inhibit the grant of leniency to which Sutcliffe might otherwise appeal. That is not to say however that he has no entitlement to some mitigatory weight being applied to sentence assessment. Submission by senior counsel acknowledged the provocative behaviour of the victim above described was the sole matter to which he could make appeal. This concession is understood to be qualified by a submission about the onerousness of the circumstances of his custody. 29I note that Sutcliffe does not accept the verdict however that is not a matter which intrudes into sentence assessment. Recognising that the offence must attract a lengthy period of custody, it was submitted that the statutory proportion of potential parole should be extended but I am unpersuaded that special circumstances exist so as to trigger variation and the period of potential parole will be in any event ample for rehabilitative purposes. 30The circumstances of Sutcliffe's custody and associated events are set out in his and Ms Havryliv's affidavits of 24 May 2013. Therefore I do conclude that Sutcliffe is unusually burdened and likely to be so affected in future and an element of mitigation will be applied to assessment. 31I have already mentioned the statutory guideposts. Absent the matters of mitigation arising out of the provocation of the victim I would assess a head sentence of imprisonment for 24 years. Against that assessment there needs to be given account to the provocation emanating from the victim. In this instance that was no minor matter. Jamie Lafoe came armed with a lethal weapon, used it in a threatening fashion and enhanced the threats by discharging shots in and around the area in which persons were present. That provocation was, of course, no excuse for chasing him down with the intent of causing him grievous bodily harm, and in the event death, as he was fleeing from the scene. Nevertheless I have assessed that the high level of provocation in the circumstances of this case should be reflected by a mitigation of one third against what otherwise would be an appropriate head term of imprisonment for this crime.

Darren Hoskins 32I accept the submission that the evidence does not establish that Hoskins was aware, as I have found, that Sutcliffe was armed with the knife which he used to inflict the fatal wound. Hoskins was, I find, a participant in a joint criminal enterprise to inflict grievous bodily harm by some means on the victim and he is liable for the murder which was committed accordingly. 33On his own version to police, Hoskins entered the fray with a baseball bat which, although he dropped it at one point, was retrieved and used, although he claimed that he may or may not have made contact. Certainly no major injury to the victim could be associated with a heavy blow by the bat but I reject the contention that Hoskins' purpose was to disarm Jamie Lafoe. As I have said his intention was to cause grievous bodily harm and punish him. 34It is not insignificant that Hoskins came to the scene after collecting passengers in circumstances where it was obvious that there was potential for trouble of some sort and the numbers of men would give an advantage in a physical sense to any confrontation. The departure after first arrival, the waiting nearby and the return are all indicative of Hoskins preparedness to become engaged in whatever trouble might erupt. Added to his knowledge of the additional four men in the Moulds vehicle, the Crown description that they were preparing for ambush was quite accurate. Hoskins was aged 36 at the time of the offence and is now aged 39. He is in poor health as a result of an injury to his back and deterioration of his spinal stability. Treatment in gaol was inadequate which led to a grant of bail the reasons for which were expressed in a lengthy judgment by the judge who made the order. I have no reason to think that the situation is likely to be markedly different in the future during Hoskins' incarceration. 35Counsel has also pointed to his status in protective custody. These two aspects, health and protection, are likely to make his service of sentence more onerous than the usual and some allowance will be made in assessment. 36Hoskins' prior record contains some matters, the more concerning of which relate to bonds granted on two occasions for common assault. These assaults were obviously in connection with matters far removed from the present but they do show that he has on occasions resorted to violence. 37Material was tendered concerning his back condition and I have no need to comment beyond what I have already said. I also note the letter from an employer which is favourable to Hoskins. Finally I have read the psychologist's report. Much of the opinion therein lies outside what I would consider the expertise of a psychologist. The report does not record application of specific psychological tests and their results. A number of documents were listed as having been examined. I do not doubt the sincerity of the reporter but I can only conclude that her favourable predictions may or may not come to pass and I make no finding as to probability. 38To the date of the sentencing hearing Hoskins had been in custody for one year eight months and 20 days. He was on bail for a total of 229 days. 39A specific amelioration of sentence assessment was sought on account of the notion that strict conditions of bail amounted to a quasi-custody in the presentence period. Such a notion has been recognised by authority. Exactly what were the strict conditions leading to the result were not specified but I take them to be the conditions of daily reporting to police and curfew. It has been calculated, allowing for actual custody, the sentence would be dated to commence on 20 September 2011. I make a further allowance of 60 days, approximately a quarter of the time of bail, in response to this submission and will date the sentence from 4 July 2011. Application is made to vary the formula for division of head sentence from that specified in the applicable statute by reason of special circumstances. I accept that health can operate as such but I am unpersuaded to make a special circumstances finding in this instance. 40Hoskins was a participant in an enterprise which led to death and there is no need for me to stress the seriousness of the criminality involved. Taking into account and balancing the mitigating matters to which I have referred, with the exception of the issue of provocation by the victim I would assess an appropriate head sentence of 18 years imprisonment. In so doing I have of course, paid heed to the statutory guideposts above mentioned. 41I repeat that in this case there was provocative behaviour by the victim of no minor scale. I do not repeat what I have said when dealing with the issue concerning Sutcliffe save to reiterate that it was Jamie Lafoe that brought a firearm to the confrontation and discharged shot in the vicinity of people present. 42As I have said, the statute expressly provides that provocation by a victim is a matter to be given allowance and on the facts of this case I would assess that allowance as one third of the penalty otherwise assessed.

Darrin Moulds 43In his first interview with police Moulds said that he had hit the victim on the head with a crowbar although he prefaced the admission by asserting that "all my mates came running up and they're started laying into him with weapons" which was a seeming attempt to minimise his own involvement. Of course, no blow other than the stabbing was causative of the death. 44I consider that Moulds' statement on that occasion that he acted as he did in retaliation for the gun being fired was truthful and I find that this was the case. His state of mind at the time was confirmed in revealing text messages which he later sent from hospital on that night. These included statements that he hoped "the other guy" was dead and that "he had it coming". 45I do not ignore that a bullet fired by Jamie Lafoe impacted Moulds who told police that they (that is attending personnel at Campbelltown Hospital) "said the bullets just grazed my head. There was no fragment bullets or no bullets in my actual skull". The impact must have happened as one of the discharges when the two cars arrived at Sutcliffe's premises. In answer to specific questions Moulds told police that the victim did not aim the firearm at him as he was running away nor did he do so when Moulds tackled him. 46On 9 February 2011 Moulds was reinterviewed by police as a consequence of his own request communicated through his mother. Although information was forthcoming on this occasion, to the extent that Moulds made self-serving statements either to the contrary of or embroidering what he had previously said, I do not regard the later statements as dependable. 47I find that Moulds, inspired by a desire for revenge or retaliation for the discharge of the firearm by Jamie Lafoe, joined in chasing him down as he fled and then participated in the attack on him with the intention of causing him grievous bodily harm. I accept the evidence does not show he had advance knowledge of Sutcliffe's possession of a knife but it is obvious particularly from the statements in the text messages, including that he hoped that "the other guy" was dead, that he was aware that the attack had inflicted a high level of damage. 48Similar to the situation concerning Hoskins, Moulds came to the scene in circumstances where trouble of some sort was anticipated. The occupants of the two vehicles constituted eight men who were available, in the vernacular, to provide muscle if required. Again like Hoskins, when there was no one relevantly there on first arrival, he did not depart the area but stayed nearby and returned after being informed that Jamie Lafoe and his companions had come back. 49Moulds was aged 28 at the time of the offence and is now aged 30. He has a minor prior record which may be ignored for present purposes. Tests by a psychologist place Moulds in the mild to borderline range of functioning and this is consistent with his history of special education and diagnosed developmental disability. 50His conduct since being in custody, and I incorporate the material from Superintendent Benson, leads me to a finding that his prospects of rehabilitation are favourable. I note that he is presently kept in protection and I anticipate that this is likely to continue. 51A submission was made concerning a pre-trial offer to plead guilty to a lesser offence than the murder of which he stands convicted. I do not conclude that such offer was a demonstration of willingness to facilitate the course of justice and I infer that the offer was conditional upon acceptance of the plea to the lesser offence. As, in the events of trial, Moulds elected not to give evidence at all, an offer while he sought to negotiate conviction for a lesser offence, does not create an allowance for mitigation. 52A disturbing aspect of Moulds' situation is the callousness revealed in the text messages to which I have made earlier reference. Overall, an objective assessment of Moulds' culpability including striking the victim, non fatally, with an iron bar, would tend to make his culpability higher in scale than that of Hoskins but of course less than Sutcliffe who performed the stabbing. 53However, taken altogether I consider Moulds' favourable subjective factors exceed those available to Hoskins with a result that I would consider a similar head sentence. 54A submission was made seeking a finding of special circumstances but I am unpersuaded to make such a finding. The potential parole period will be ample to provide supervision and assistance for reintegration into the community. 55There remains the issue mitigation by reason of the provocative conduct by the victim which I have, in each case, dealt with separately, from other mitigatory factors where they existed. I do not repeat what I have already said about the major quality of that provocation. 56Accordingly I would assess the head sentence of 18 years imprisonment to be reduced by one third on account of provocation by the victim. Calculation produces a term of 12 years and there remains a claim for allowance on account of assistance to authority. For obvious reasons, I do not publish detail of this. In any event, the information which I have is not elaborate but I note the assessment of accuracy and scale of assistance. Although I have no testimony as to intention, I also note what was said to officers in that regard. For past and anticipated future assistance I will reduce the term previously stated by two years.

Michael Brown 57Brown was found by the jury to be not guilty of the murder of Jamie Lafoe but guilty of manslaughter. The availability of that verdict was left on alternative bases of what I might shortly call excessive self defence or unlawful and dangerous act. After several days of deliberation the jury advised that they were unanimously agreed upon verdicts in respect of three accused but not the fourth. This advice was communicated just before a luncheon adjournment. A standard direction was given including the possibility of 11 of 12 jurors being in agreement. However, after the adjournment the jury advised that they were unanimous in respect of all accused and returned the verdicts which I have set out at the beginning of these remarks. 58Brown is considerably younger than all the other offenders. It would be less than candid of me not to record that I consider it highly likely that the verdict on the fourth accused related to Brown and was reached as a merciful verdict for this young offender. I raised this consideration with counsel and both the Crown Prosecutor and senior counsel appearing for Brown submitted that I should not make such a determination and they both invited me to approach sentence on the basis that Brown was responsible for an unlawful and dangerous act. The Crown Prosecutor recognised that on such basis, at the time of his participation Brown must have acted without an intention to cause grievous bodily harm. 59I have concluded that I should find in accordance with the urging advanced by both counsel. Inevitably this will operate to reduce considerably the level of Brown's culpability even for the lesser offence. I have already recounted that the blow to the victim's leg struck by Brown preceded the joint attack on him as he fled. That striking by Brown was at a time when Jamie Lafoe was at least flourishing, if not in fact firing, the pistol. 60Brown was 20 years of age at the time of the offence and is now 23. I am told that there was what was described as an informal offer to plead guilty to manslaughter when the charge of murder was before the Local Court but nothing came of it. 61This offender's background is one of deprivation, the incidents of which cannot but cause sympathy for his plight. He is an Aboriginal person who was born when his mother was 17. He never met his father. A relationship between his mother and another man provided seven siblings. At one stage he was made a state ward and placed in the care of grandparents. He did not complete school and left without learning to read or write to any substantial degree. In custody he is seeking to rectify this. He is on protection and is likely to remain there. 62Brown is diagnosed as having mild intellectual disability. Despite his handicaps he has, since leaving school, been in fairly continuous employment mainly in labouring jobs. 63He has been in a de facto relationship since a very young age and has a small daughter. His expressions of sorrow when interviewed soon after the event convey sincerity. 64His prior record is not lengthy and indeed, given his background deprivation and handicaps, it could be regarded as admirable although there is a disturbing entry of an offence of recklessly causing grievous bodily harm about which I have no detail but I can observe that he kept the terms of a suspended sentence which was expired before the current offence was committed. 65As with the other offenders Brown is entitled to an allowance for the mitigating element arising out of the provocation by the victim. I will make a similar allowance of one third as against term of sentence otherwise assessed. 66A critical matter in assessment of sentence for Brown is the absence of intent to cause grievous bodily harm for his offence of manslaughter. Nevertheless, Brown was a participant to a lesser degree than the others in an attack which resulted in the loss of human life. Absent the issue of provocation by the victim I would assess a head sentence of seven years six months. A submission was made that I should extend the potential parole element of the sentence because Brown would benefit from an extended period of supervision within the community. In his case, I consider that that is so, particularly in the context of his handicaps and disabilities. Therefore I make a finding of special circumstances which will be reflected in the ancillary orders accompanying the imposition of sentence. 67Sean Robert Sutcliffe for the murder of Jamie Lafoe you are sentenced to imprisonment of a total of 16 years consisting of a non parole period of 12 years commencing on 18 January 2011 and expiring on 17 January 2023 with a balance term of four years commencing on 18 January 2023. 68The earliest date of your eligibility for parole is specified as 17 January 2023. 69Darren Michael Hoskins for the murder of Jamie Lafoe you are sentenced to imprisonment for a total of 12 years consisting of a non parole period of nine years commencing on 4 July 2011 and expiring on 3 July 2020 with a balance term of three years commencing on 4 July 2020. 70The earliest date of your eligibility for parole is specified as 3 July 2020. 71Darrin Troy Moulds for the murder of Jamie Lafoe you are sentenced to imprisonment for a total of 10 years consisting of a non parole period of seven years and six months commencing on 18 January 2011 and expiring on 17 July 2018 with a balance term of two years six months commencing on 18 July 2018. 72The earliest date of your eligibility for parole is specified as 17 July 2018. 73Michael Patrick Brown for the manslaughter of Jamie Lafoe you are sentenced to imprisonment for a total of five years consisting of a non parole period of three years commencing on 18 January 2011 and expiring on 17 January 2014 with a balance term of two years commencing on 18 January 2014. 74The earliest date of your eligibility for parole is specified as 17 January 2014.

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