1 HIS HONOUR: On 7 August 2003 James Dean O'Connor ("the offender") was indicted before me on a charge that he on 25 January 2002 at Cartwright in the State of New South Wales did murder Wayne Anthony Myers. To this charge the offender pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the plea in full satisfaction of the indictment.
2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 NSW). At the outset it is necessary for me to state the facts that I have found in relation to the offence. There has been placed before me by consent Exhibit "A" which is a Crown case summary.
3 At approximately 10pm on Friday 25 January 2002 the deceased met up with his niece Melissa Lloyd at the home unit of Jodie Williams. Her home was in a large block of units overlooking Bendigo Place, Cartright. There were a number of persons present at this gathering. They included the deceased, Craig Chester, Garry McCormack, Gabriel Paleaae and Melissa Lloyd.
4 At about 11 o'clock Jodie Williams called a taxi and it was agreed that Melissa Lloyd and Gabriel Paleaae would give McCormack and the deceased a lift home. The two young women went down to Bendigo Place to wait for the taxi. They were soon joined by McCormack and the deceased. The group sat together in the gutter.
5 Shortly afterwards while they were waiting for the taxi, the group was approached by four males who came walking down a laneway. These were Danny Avakian, Kasey Glover (to whom I shall refer as K R G), Michael Whitmore and the offender.
6 Melissa Lloyd and the offender, who knew each other, commenced a short general discussion. The offender was drinking from a bottle of beer at that time. Avakian asked the deceased his name and then accused him of stealing mobile phones from young persons in the area. Avakian told the deceased that he had a gun and pointed a silver object at the deceased's head. Melissa, Gabriel and McCormack all believed that this was a gun being held at the deceased's head although it was in fact a silver mobile phone. Avakian made the deceased get down on his knees and said to him several times "Are you prepared to die tonight?" and "You are going to die tonight".
7 At that point the girls who had been sitting in the gutter ran from the scene in panic. Melissa Lloyd ran crying upstairs to Jodie Williams' unit to seek assistance. She told Jodie Williams and Craig Chester, "They have a gun".
8 A resident who lived in a home unit in a block about 50 metres away saw one of the young men pull the deceased's jacket down towards his arms restricting his movements. This witness saw the young men take turns to jump on the deceased's head and to kick him. The only person who this witness recognised was Michael Whitmore.
9 Another resident, Troy Dawson, saw a number of incidents while looking through the screen door of his nearby single storey home. He saw the group of young men punching the deceased. He saw the deceased try to run away. He, was however, chased by two of the young men, slammed into a brick wall and punched further. He saw the deceased then fall to the ground. Dawson told his mother that someone was being bashed and she called an ambulance.
10 During the assault the deceased was stabbed by one or more of the accused. None of the witnesses saw the stabbing take place. It is accepted by the Crown that the deceased was not stabbed by the offender. It is also accepted by the Crown that the offender did not possess a knife that night. There is no evidence to suggest the offender was aware that any of the other accused was in the possession of a knife on that evening.
11 After the deceased fell to the ground, the persons involved in the attack ran from the scene. They ran past Jodie Williams' unit. She saw two offenders jump the fence first. She recognised Whitmore standing near the fence and she recognised the offender when he was climbing the fence.
12 After some delay an ambulance arrived. The deceased was taken by ambulance to Liverpool Hospital and there was pronounced dead. Post-mortem examination revealed that the deceased had died from a stab wound to the chest. The stab wound had a wound track estimated between five to ten centimetres in length. The anterior wall of the pericardium had been cut so that there was a 3.5cm hole. The anterior wall of the pulmonary outflow track and valve had also been cut. There was also bruising to the soft tissue of the pulmonary track and aorta. In brief, all this means that the deceased was stabbed in the heart.
13 There was a second stab wound to the deceased's back. The entry wound was above the right buttock and the wound track was from six to seven centimetres deep. Physical examination showed that the deceased had sustained multiple bruising accompanied by abrasions to the face, head, shoulders, back and torso. There were lacerations to his face and torso, some swelling and bruising to the mouth, chin, cheek and nose. The only fracture was to the nose of the deceased. There was also bruising extending from the right eye and a petechial haemorrhage either side of the cornea of the left eye. In addition, there was bruising on the deceased's scalp extending around the back of the scalp under the hair.
14 At around 3.30am on 26 January 2002 the offender returned to the vicinity of Bendigo Place. There he spoke with Jodie Williams and Craig Chester. He said words to the effect "It was not supposed to happen. I didn't know anyone had a knife". At the time he was "crying, very upset, he was distressed". The offender, after this brief conversation, left the area.
15 On 27 January 2002 the offender had decided to hand himself in. He was with his mother and stepfather and knew police were looking for him. He was on that day arrested and taken into custody. He has remained in custody "bail refused" since that time.
16 It is common ground, for the purposes of this sentencing procedure, that the offender is to be sentenced for manslaughter by an unlawful and dangerous act. The basis of this, it is agreed, is that the offender was acting in concert with the other young men with a shared intention to assault the deceased. This carried with it an appreciable risk of serious injury. I am satisfied beyond reasonable doubt that the facts I have found establish that manslaughter on the agreed basis was committed by the offender.
17 Before outlining the offender's criminal history and examining his subjective case in some detail, it is desirable that I say something about the manner in which this young man comes before me for sentence.
18 I was the judge nominated to preside over the trial of all four accused. They were the four persons I have mentioned previously, namely Danny Avakian, Michael Whitmore, the present offender and K R G. Shortly prior to the commencement date of the trial, the Crown indicated that the accused Whitmore wished to plead guilty to a charge that he did assault Wayne Anthony Myers thereby occasioning actual bodily harm to him, while in the company of other persons. Whitmore in fact pleaded guilty to this charge and the Crown indicated that it proposed to take no further proceedings in relation to the murder indictment. Shortly after the assault, Whitmore had on 30 January 2002 gone to the police of his own volition and submitted to an interview. Later he took part in an ERISP which provided a number of the details of his version of what had happened at Bendigo Place on the evening of the killing. Whitmore indicated his willingness to give evidence in the event that charges were brought against the other young men involved in the assault on the deceased. In those circumstances, the Crown asked that he be sentenced prior to the commencement of the trial. On 5 August 2003 Whitmore was convicted of the offence to which he had pleaded namely, an offence under s 59(2) of the Crimes Act 1900 NSW. This offence carried with it a maximum penalty of imprisonment for seven years.
19 On that same day, the offender Whitmore was sentenced to a term of 18 months imprisonment with a non-parole period of 11 months taken to have commenced on 5 June 2003 and which will expire on 4 May 2004. As my remarks on sentence in that matter indicate, it was my view that an appropriate sentence in the circumstances of that matter prior to discount was an overall sentence of three years imprisonment. That sentence however, was discounted by 50% to reflect the utilitarian value of the guilty plea to the charge, contrition and level of assistance to law enforcement authorities. I found special circumstances so as to warrant a variation of the statutory proportion between head sentence and non-parole period.
20 The trial against the remaining three accused was then scheduled to commence on Wednesday 6 August 2003. On that day, however, the Crown made an application for an adjournment of the trial until the following morning. This followed discussions between the Crown and Mr Turnbull of counsel for the present offender. On that day the offender entered the plea which, as I have said, was accepted by the Crown in full satisfaction of the indictment. The substantial portion of the sentence hearing was stood over until the 3 November 2003 on which date submissions and evidence were received. I then stood the matter over until today for the pronouncement of sentence.
21 The trial involving the remaining two young men namely, Danny Avakian and K R G commenced on 6 August 2003. After a number of days of hearing, the accused Danny Avakian was, at his request, re-arraigned. This occurred on the afternoon of 12 August 2003. At that time he pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment and the sentencing proceeding was adjourned until 7 November 2003 when evidence and submissions were received. It will be my intention to sentence the offender Avakian today shortly after I have imposed sentence on the present offender.
22 A fresh indictment was presented against K R G on the afternoon of 12 August 2003. This indictment charged that the accused on 25 January 2002 at the Cartright in the State of New South Wales did assault Wayne Anthony Myers thereby occasioning actual bodily harm to him while in the company of other persons. To this charge K R G pleaded guilty and the Crown announced that it would thereupon proceed no further with respect to the indictment for murder and its alternative of manslaughter so far as K R G was concerned.
23 Essentially because of the youth of K R G - he was then 17 years of age - and the fact that he had been in detention since 26 January 2002, it was decided to accelerate the hearing sentence proceedings in his case. Evidence and submissions were received on 14 August 2003 and on that day I determined first that the young person should be dealt with under Division 4 Part 3 of the Children's (Criminal Proceedings) Act 1987. Secondly, I ordered the release of K R G on probation on that day, the period of probation to be for a period of 12 months subject to certain specified conditions.
24 It is necessary only to refer to two matters of importance arising out of the remarks on sentence made in relation to K R G. First, I was satisfied on the evidence placed before me that the deceased was not stabbed by K R G nor did K R G possess a knife on that night. I was also satisfied that there was no evidence to suggest that K R G was aware that any of the other participants in the assault was in the possession of a knife that evening. Secondly, for the reasons stated therein, I was satisfied that there were significant differences between the situation of K R G and that of Mr Whitmore. These related to the difference in age between the two young men and to the special considerations arising under the legislation under which K R G came to be sentenced.
25 I should now say something about one further matter which, in my view, is important not only in relation to this present offender but in relation to all the co-offenders.
26 The deceased was a young man whose life was taken quite needlessly and quite brutally. He died from a stab wound to the heart. Although the deceased was assaulted to one degree or another by all of the co-offenders, none of their kicks or blows killed him or for that matter were likely to kill him. It was, as I have said, the stabbing with a knife that ended the life of the deceased. The Crown has accepted pleas to manslaughter in the case of both Avakian and O'Connor, notwithstanding that they were originally indicted for murder. The Crown in the case of Whitmore and K R G presented fresh indictments for assault in company against each of those two young men, notwithstanding that they had originally been charged with murder.
27 At that stage, the Crown indicated that it would not proceed with the murder charges against Whitmore or K R G. Each in turn pleaded guilty to the assaults and has been dealt with on that basis.
28 All this means that, whoever it was that stabbed and killed the deceased, - and it may well have been one of the four offenders I have dealt with - has not been brought forward for punishment to face the full level of criminal responsibility arising from the knifing of the deceased. It is no doubt the case that the Crown has taken the approach it has because it simply cannot prove beyond reasonable doubt who it was that struck the blow with the knife in Bendigo Place on the evening of 25 January 2002.
29 As disappointing as it may seem from the point of view of legitimate community expectation that such a situation results, especially in the case of an apparent murder, this is the reality that must and does from time to time confront both the Court and the community. Importantly, from the court's point of view, it then becomes necessary to state that it is not the court's role to punish any of the young men who were involved on the basis that it was he who stabbed the deceased. It would indeed, be contrary to proper principle to do so.
30 Rather, especially in the case of the manslaughter pleas, the basis of punishment can only be, as I earlier indicated, that each person coming forward for sentence accepts that he was acting in concert with the other young men with a shared intention to assault the deceased. Neither O'Connor or Avakian are to be punished because their actual assaults brought about the death of the deceased. They plainly did not and could not have done so. On the other hand, each offender accepts that the overall consequence of the joint criminal enterprise was that the deceased did in fact die. This is an important distinction and it needs to be recognised in the sentencing process.
31 I turn now to consider the present offender's criminal history. In 1994 the offender was placed on a bond to be of good behaviour for a period of six months. This bond was ordered by the Lidcombe Children's Court and related to the illegal use of conveyance. In 1995 a control order was imposed on the offender relating to a charge of sexual intercourse with a child under the age of 16. There was an appeal to Parramatta District Court which resulted in the dismissal of the appeal and the substitution, in place of the control order, of a probation order for two years.
32 In 1996 the offender was fined for possession of an offensive implement in the Lidcombe Children's Court. In that same year he was dealt with in Campbelltown Local Court and received a sentence of periodic detention for three months relating to the illegal use of a conveyance. There was also a fine imposed in 1997 in relation to a charge of disorder. Finally, in the Liverpool Local Court in 2001 the offender received a small fine for possession of a prohibited weapon without permit.
33 I turn now to consider the offender's subjective circumstances. Mr O'Connor gave evidence before me. He is 25 years of age and has been in Parklea Prison since 27 January 2002, bail refused. He has found this a very difficult experience but has done his best to use his time sensibly and usefully while in custody. He produced a series of certificates which demonstrate that he has attempted to address anger management issues as well as alcohol and drugs prevention. In particular, he has enrolled in TAFE courses which will enable the continuance of his apprenticeship as a Welder/Boilermaker. He expressed a wish to make his career in this field and it is clear that he has made progress in this area while in prison. There are other certificates as well which generally support the proposition that the offender has taken a number of positive steps towards rehabilitation. He is hopeful that he will get his job back when he is released from custody. The offender said that the experience of gaol has changed him so as to want to become a better person. He described his way of living before the commission of the offence. It appears that it was quite common for him to get drunk or take drugs on weekends and "hang around" with the wrong people. The offender maintained that as a result of his experiences in prison he will be a better person when he comes out into the general community.
34 The offender wrote a letter for the benefit of the court and read this during the giving of his evidence. He expressed his regret to the family of the deceased for his death and asked for their forgiveness. He reiterated his resolve to become a useful member of society and confirmed that he had worked at the Engineering Department at Parklea for 18 months. He apologised to his own family for putting them through the stress of his criminal activity and his resultant time in gaol.
35 The offender's mother also gave evidence. She has been a resident of Cartright for about 13 years. She is presently in a de facto relationship and has a young child of two years and three months from that relationship. She also has a 17 year old son - the offender's half-brother - from another relationship. She is a primary school teacher. Mrs O'Connor's evidence confirmed that the offender had got in with the wrong crowd in the year or so leading up to the assault upon the deceased. She was told by the offender that he was using amphetamines and she knew he was drinking too much. She said that he looked very unhealthy at that time but that, strangely enough, his time in gaol has meant that he is much fitter and more healthy than he was prior to the assault. She confirmed that he had expressed contrition and remorse for the death of the deceased and also for the distress that it has caused his family. She said that his decision to plead guilty was made in the context of sparing both the deceased's family and his own from putting up with the trial. Mrs O'Connor has kept in constant touch with her son and sees him about once a week or once a fortnight in Parklea Prison. She said that he was a person who was easily led and a person who lacks judgment about people. She believes however that his judgment may be now better as a result of his experiences. She is hopeful that he will be rehabilitated in the family environment and indeed, she is proposing to move the family from the Cartright/Miller area once her 17 year old son has finished his Higher School Certificate this year.
36 There is a lengthy report from Dr John Taylor, a Clinical Forensic Psychologist who saw the offender on 30 October 2003.
37 First the history given to Dr Taylor confirms that the offender was raised, during his early years, in a dysfunctional and unstable family environment. His father was an alcoholic, was abusive to his mother and left the family home when the offender was about seven. His mother, however, has been very supportive of the offender and he has maintained a close relationship with her. Secondly, the offender was quite a poor student at school and his present level of ability is assessed at being within the low average range. Thirdly, his personality tests do not reveal any personality or emotional disturbance although he does have some instability in his functioning. Dr Taylor thought there was a low likelihood of recidivism in general with about an average likelihood of violent recidivism provided that the offender refrained from abusing alcohol and drugs. Finally, the offender expressed to Dr Taylor considerable regret in relation to his behaviour in relation to the subject offence. Dr Taylor thought the offender had gained insight, into a number of aspects of his life particularly in relation to his substance abuse.