Regina v O'Hare

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: About 5.45pm on 17 October 2001 Mr & Mrs Harold Marks were preparing to close their business for the day. They were the owners of Roylyn Dry Cleaners at 100 Oxford Street Darlinghurst. They had operated this business for more than 14 years at that time. Mr Marks left the shop and walked out on to Oxford Street to collect two plastic and vinyl advertising banners mounted near the front door. At that time, a young man came down Oxford Street in an agitated and angry state. This young man was Jeremy James O'Hare whom I shall refer to as the offender. He was affected by alcohol and he had had an earlier disagreement with his girlfriend which had led to his agitated and angry state. 2 Some words were exchanged between Mr Marks and the offender. Without justification or any provocation the offender swung a full bodied punch at Mr Marks' head. It connected with the left side of his face. Mr Marks was rendered almost immediately unconscious and fell back in a rigid fashion and cracked the back of his head on the footpath as his body hit the ground. The offender left the immediate scene of the accident but was a short time later arrested by police. In the meantime, Mr Marks who did not recover consciousness was taken by ambulance to hospital. His skull was severely fractured from the fall and after admission his condition deteriorated. Tragically Mr Marks died on 23 October 2001. 3 The offender was charged with the murder of Harold Marks on 23 October 2001. I shall hereafter refer to Mr Marks as the deceased. The offender was committed for trial from the Downing Centre Local Court on 17 December 2002 and on 4 April 2003 he was arraigned before Mr Justice Barr and entered a plea of Not Guilty. A trial date was set for 26 May 2003. 4 Thereafter, the offender had the benefit of legal advice. By arrangement between the Crown and Ms McSpedden, who appeared for the offender, the matter was listed before me on 19 May 2003. The offender was re-arraigned and pleaded Not Guilty to the count of murder but Guilty to manslaughter. This plea was entered by the offender and accepted by the Crown in satisfaction of the indictment. The agreed basis of the plea of manslaughter was that it related to the unlawful and dangerous act of the offender in striking the deceased who fell hitting his head on the footpath thereby receiving injuries from which he later died. 5 Submissions on sentence were made before me on Friday 18 July 2003 when the matter was adjourned until today for sentence. The offender was at liberty on bail on 18 July 2003 but on that day I revoked his bail and he has been in custody since that time. As I indicated earlier the offender had been taken into custody and charged on 17 October 2001. He was bail refused until 13 December 2001 when he was admitted to Supreme Court bail on that day. Pre-trial custody accordingly was for a period of one month and 26 days and the offender has been in custody since the conclusion of the submissions on sentence since 18 July 2003. 6 There is little disagreement between the Crown and Ms McSpedden in relation to factual matters surrounding the circumstances of the offence. It is of course, necessary that the facts I find must, so far as they relate to findings of fact against the offender, be findings arrived at beyond reasonable doubt. The onus of proof going to matters of mitigation is on the offender, who must establish such matters on the balance of probabilities. 7 The genesis of the offender's anger and irritation on the 17 October 2001 was essentially that he had become angry about earlier events of the evening which included an argument with his girlfriend. In his record of interview he said that he had a number of drinks at the Court House Hotel at Taylor Square. This drinking bout apparently commenced at about 3.30 on that afternoon. He told the police he had had four Wild Turkey Bourbons during this drinking session. He had an argument with his girlfriend and said that he had broken up with her "on the spot". It was in that state of mind with his anger exacerbated no doubt by the alcohol he had consumed that he set off down Oxford Street and shortly thereafter came into contact with the deceased who was closing his business for the day. In his record of interview he said: - "To both the people I'm deeply sorry. It's, that's totally not like me. I'll do my best to repay them however I can but there was no excuse for my actions. I was totally in the wrong and that's, that's about all I have to say." 8 I should interrupt this narrative to say that the offender had also been charged with maliciously damaging property on 17 October 2001 (s 195(a) of the Crimes Act). He has asked me to take this into account on a Form 1. The circumstances of this offence was that after the offender walked away from the assault scene, he angrily struck a vehicle with his hand and dented the vehicle's bonnet. 9 When I come to discuss the subjective features of the offender's circumstances it will be necessary for me to refer in some further detail to a report from Dr Bruce Westmore, a Forensic Psychiatrist. For present purposes I should mention that this report contains a history given by the offender to Dr Westmore. This history contains more detail than did the record of interview. The offender however did not give evidence before me and hence some caution is necessary in relation to the history recounted in it. First, the history suggests that the offender and his girlfriend drank a bottle of Port between them on the way into town that day. They then had an argument at Kings Cross and separated. It was after this time that the offender went to the Court House Hotel and had a number of drinks as previously described. The offender also said that there was an intermediate period when he had consumed a further four or five spirit drinks with a man he visited for the purposes of borrowing some money. He also described in greater detail the fight between his girlfriend and himself which led to his forming a view that they had broken up. 10 The second matter of greater detail in the history relates to the circumstances of the attack upon the deceased. This part of the history seems to suggest that the deceased may have been abusive towards the offender and that he may in fact have struck at him with an object he was carrying at the time. It also suggests that the offender formed the view that he was going to be struck from behind and it was in those circumstances that he then turned and punched the deceased in the jaw. 11 I am satisfied beyond reasonable doubt that although there may have been some words exchanged between the offender and the deceased there was certainly no provocative action on the part of the deceased. I also find beyond reasonable doubt that the deceased did not in any way strike or threaten to strike the offender. I accept as a possibility that, in his state of extreme agitation and anger, the offender, whose condition was no doubt exacerbated by alcoholic consumption, may have formed in his mind some notion that he was being threatened. I accept however, beyond reasonable doubt, that in fact this was not so. 12 While I have accepted that the offender was affected by alcohol on that day, I do not accept that he was as heavily intoxicated as he told Dr Westmore during his examination on 13 June 2003. Rather, his alcoholic consumption was more likely to have been of the order of that recounted in the record of interview. Moreover, the terms of the record of interview and the statement from Constable Aleshia Murphy of Surry Hills Local Command dated 9 October 2002 confirm that the offender generally had control of his actions and, although affected by alcohol, was well able to act and communicate in a rational manner. 13 The final matter of controversy is whether the offender punched the deceased once or more than once. I have reviewed all of the factual material and on balance I am satisfied that the offender struck the deceased on one occasion only. The evidence is by no means clear and is to a degree inconsistent. Mrs Marks' evidence on the point contained in her statement appears to me to be generally reliable. 14 Before passing to the subjective features and the submissions that have been made by counsel in relation to both subjective and objective matters, it is necessary for me to refer to the Victim Impact Statement I have received. This is a statement from the widow of the deceased Mrs Lorraine Marks. This material of course was not admitted for the purpose of increasing the penalty otherwise appropriate to the crime and has not been taken into account or used by me to aggravate the severity of the crime. 15 Mrs Marks' statement is brief but informs the Court tellingly of the profound and significant effect this tragic and quite unnecessary death has had upon her and also her son Phillip. It is my earnest hope that the opportunity to express these very deeply felt matters of grief and loss may help Mrs Marks in some way to assuage the tragedy that has befallen her. 16 In accordance with well established principle, I do not consider however that it is appropriate to have regard to the contents of the statement in determining the sentence to be passed. (See s 28(4b) of the Crimes (Sentencing Procedure) Act 1999; Regina v Previtera (1997) 94 ACR 76; Bollen v Regina (1998) 99 ACR 510). 17 I turn now to the offender's subjective circumstances. I have the benefit of a pre-sentence report prepared by the Probation & Parole Service and dated 18 July 2003. Further, as I have mentioned I have the report of Dr Bruce Westmore of 19 June 2003 which arises from the examination and consultation which occurred on 13 June 2003. 18 The offender was born on 14 August 1979. He is 23 years of age and spent his youth in Victoria where his family still resides. He is the only child of his parents union. His contact with his natural father was intermittent and unsatisfactory, the last contact being when the offender was about 16 years of age. He had, however, a close relationship with his mother and maintains contact with her at the present time. Apparently, the offender endured a childhood of constant verbal and physical abuse perpetrated upon him by his step-father. Both the pre-sentence report and the psychiatric assessment bear out this unfortunate childhood history. It is quite apparent that the recall of this unpleasant aspect of his upbringing is a matter which still causes considerable distress and pain to the offender and he appears to be unable to confront adequately and cope with the recollection of this aspect of his life. 19 The offender was educated to Year 10 level, although he had a lot of difficulties with his education during his primary school years. Upon leaving school at the age of 16 he worked as a pastry cook and has also worked as motor vehicle mechanic. Generally, he has been in employment. He was working with a tyre fitting company for about two years at the time of the commission of the offence. As a consequence of work place injuries, he has in more recent times been unemployed and in receipt of a fortnightly unemployment benefit. 20 The pre-sentence report suggests that the offender, prior to the present offence, claimed that his alcohol use had been generally moderate. Enquiries of Victorian authorities suggest however that the offender had an alcohol problem at an earlier point of time. The offender had used marijuana regularly between the age of 16 and 21. He commenced using heroin following his first back injury in order to alleviate pain caused by that injury. He had then developed an addiction to that drug, rapidly escalating to daily intravenous use. He told the officer that he also used heroin in order to deal with the painful recall of his offending actions which had resulted in the death of the deceased. He recommenced a methadone program on 6 June 2003. While generally stable on this program the offender has acknowledged intermittent heroin use. He submitted to urine analysis tests during June and July 2003 and the results of these suggest that the offender is not yet successfully addressing his drug problem. 21 During the interview with Dr Westmore he reported being in sobriety from all drugs and alcohol and claimed to have done this on his own initiative without professional assistance. This led Dr Westmore to qualify the offender with a diagnosis of alcohol and poli-substance abuse "both in remission". It seems from the material in the pre-sentence report that this may be an overly optimistic view of the offender's abilities to cope with substance addiction. 22 Dr Westmore's conclusion was that the offender did not have an anti-social personality disorder. He did however, suffer from an adjustment disorder which had arisen because of his behavioural disturbance on that day. He had, in Dr Westmore's views, established a direct and positive relationship between his alcohol intoxication and the matter now before the Court. Dr Westmore thought it unlikely that the offender would re-present before the Courts on a matter of this seriousness again. His opinion was likely to be strengthened if the offender were able to remain in sobriety from all illicit drugs and alcohol. Dr Westmore concluded that the offender has the potential to stabilise his life and, if that can occur, his general prognosis from a psychiatric and forensic perspective is anticipated be a good one. 23 On the other hand, the pre-sentence report suggested a problem in this regard. The offender was described as presenting as "withdrawn and troubled" and he gave the Probation & Parole officer a strong indication that psychological counselling was imperative in his present situation. The officer thought that the offender had unresolved underlying issues which tended to impact strongly on his responses. Of more concern, was the statement apparently made by the offender that he was adamant that he would not undertake psychological counselling because it would be too painful for him to contemplate the issues which were likely to be raised. The report concluded that without appropriate counselling, the offender remained vulnerable to responding disproportionally when confronted by circumstances which unsettle or destabilise him emotionally. 24 Both Dr Westmore and the pre-sentence report acknowledged that the offender had expressed considerable remorse for his actions. This is also clear from the record of interview. 25 The conclusions contained in the pre-sentence report confirmed that the offender would benefit by supervision upon his release from any custodial sentence including referral to individual psychological counselling as well as participation in a departmental anger management program. He was assessed as unsuitable for a Community Service Order and Periodic Detention. This unsuitability was based on his unresolved drug use. 26 The Reverend Thomas Henderson-Brooks, a Minister of St Andrews at Bondi Beach gave evidence on the offender's behalf. He had known the offender's girlfriend for some time and later met the offender when he was first in custody in Silverwater Prison. Mr Henderson-Brookes confirmed the very deep remorse which had been expressed to him by the offender when he first met him at that time. The offender told him that he was very saddened by what he had done and that he wished he could take the time back and not have done what he did. The Reverend thought that the offender was a responsible person who had been, as he described it, "A little bit lost". The offender had helped out with the Bondi Support Centre, encouraging the under-12 children with soccer and in other areas as well. 27 Mr Henderson-Brooks confirmed the general view that I have formed in relation to the offender that he does have some underlying anger issues stemming no doubt from his unfortunate upbringing but that he is reluctant to talk about these matters easily. It is clear that he must accept the need he has to confront these issues and to have counselling in respect to them if he is to return to a normal way of life. 28 Mr Henderson-Brooks was also aware of the fact that after the commission of the offence the offender became involved with heroin use. However, he assisted the offender in relation to commencing a methadone program at Redfern and expressed some hope that these problems would be satisfactorily addressed. The offender has also received considerable support from the Salvation Army here in Sydney and in particular from one officer of the Army who unfortunately was unable to give evidence on the day when sentencing submissions were taken. The offender also has the support of his de-facto wife's mother with whom he has been residing during the period of his bail. 29 I have earlier touched upon the offender's intake of alcohol on 17 October 2001. In my view, the proper place of alcohol ingestion in the present matter is that it should be regarded as neither an aggravating nor a mitigating factor. There is no doubt that alcohol may have played a part in the perception the offender undoubtedly had in relation to his general state of anger and agitation on that early evening. However, the offender was certainly no stranger to alcohol and its impact on him. 30 Both the Crown and Ms McSpedden agree that I am to regard the offender as a person of prior good character. There is an entry in his history for three minor summary offences in June 2000 resulting in fines. There are subsequent entries for dishonesty recorded as at 26 March 2003 at Waverley Local Court. These matters occurred and were dealt with after the commission of the subject charge. 31 The offender has at all times expressed remorse for his actions and I accept that in this regard he is genuine. This aspect of remorse is as well recognised in the plea of guilty which the offender has entered to the charge of manslaughter. I accept that this plea was entered, in effect, at the earliest possible opportunity. I accept in particular Ms McSpedden's submission that the plea was entered at the earliest possible time after the offender had received appropriate legal advice in the matter from counsel engaged for the first time to provide that advice. 32 What then is the appropriate sentence to be imposed in the present case? I am required by s 21A of the Crimes (Sentencing Procedure) Act 1999 to take into account both the aggravating and mitigating factors set out in that section of the Act. The list of such matters is not exhaustive. 33 It will be apparent from the finding of fact I have made that the offender has a strong subjective case. First, the assault upon the deceased, though unpardonable and lacking any justifiable cause, was not pre-mediated or planned in any way. Secondly, the offender was in a highly emotional state being both angry and agitated with his condition exacerbated by alcohol. The last characteristic of course is not in itself in the circumstances of this matter, a mitigating factor but it does nevertheless bear upon an understanding of his emotional state. Thirdly, the offender is to be regarded as a person of good character. Fourthly, he showed remorse when he was interviewed by the police and has continued to demonstrate remorse and genuine contrition for his actions since that time. Fifthly, there are reasonable prospects for the offender's rehabilitation although this will require him to have counselling for anger management and acquire an understanding of the underlying issues which have contributed to his inability to control his anger. In addition, there will be a need for counselling and rehabilitation in relation to the prospects of his recovering from alcohol and drug addiction. This is especially so in the case of his heroin addiction. In these areas, the offender is likely to have the continued support of his de-facto partner's mother, the Reverend Henderson-Brooks and the Salvation Army. 34 Notwithstanding these significant mitigating factors and generally the offender's strong subjective case there are powerful reasons in the present matter why the Court must impose a full-time custodial sentence. Indeed, I have considered all of the other non-custodial options and I have come to the firm and clear conclusion that the full-time custodial sentence must be imposed and that no penalty other than imprisonment is appropriate. 35 The objective facts of the matter are that a significant assault was perpetrated by the offender upon an innocent stranger in a public street. There was simply no warrant for the attack upon the deceased. The deceased was an elderly man and was struck forcefully by an young physically vigorous person with no justification at all. While there can be no doubt that the offender did not intend that his violent action would have the tragic consequences it did, the plain fact is the life of a human being was brought to an end. Indeed, the offender's own life has been ruined by his foolish and angry actions. There is a plain need to denounce the occurrence of violent and unprovoked angry actions in the public streets of New South Wales. There is additionally a need to re-emphasise the principles which have been long recognised in manslaughter cases. Those principles are set out in the Regina v McDonald (NSWCCA unreported 12 December 1995). The Court there comprised Gleeson CJ, the President Justice Kirby and Hunt CJ at CL. The passage which is often quoted is in the following terms at page 8: "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See Regina v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system."

36 In Regina v Hill (1981) 3 A Crim R 397 at 402 Street CJ said: "In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. Sometimes, as in the present case, the personal qualities of a victim of unlawful homicide will serve to focus attention upon this important aspect of sentencing law. This is not because the punishment for homicide varies according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away." 37 It is very important, in my view, that these principles should not be devalued. As I have said, the subjective circumstances of the offender in the present matter are reasonably significant ones. These subjective circumstances however, are not so strong as to disturb the legitimate expectations of the community as to the nature of the punishment which should flow from, as occurred here, the taking of a human life. This is particularly the case where the death has occurred as a result of an entirely unwarranted and unprovoked angry assault upon an innocent bystander in a public street. 38 Although I am satisfied that there is no need for the sentencing process to provide an element of personal deterrence in the present case - I am quite satisfied that with appropriate counselling the prisoner will not offend again - there is a strong element of general deterrence that requires reinforcement and re-emphasis. 39 There are three further matters which require mention. The first is that I am satisfied that there are special circumstances in the present case so as to warrant a variation of the statutory proportion set out in s 44(2) of the Act in relation to the length of the non-parole period. The offender would plainly benefit from a lengthy period of parole supervision with conditions requiring psychiatric counselling, anger management counselling and the continuance of treatment to assist in his continued abstention from drug and alcohol abuse. Secondly, for the reasons I have briefly already mentioned the offender is entitled to a reasonable discount for his guilty plea (see s 22(1) of the Crimes (Sentencing Procedure) Act 1999). I propose to allow a discount of 20%. This is to reflect the personal remorse inherent in the plea, its utilitarian value and the willingness it recognises on the offender's part to assist and facilitate the proper course of justice. 40 The third matter is that in setting the sentence for the offence of manslaughter I will have regard to the matter on Form 1 as I have been requested to do. It is appropriate in my view that I do so. 41 An appropriate sentence to reflect the various considerations I have mentioned is an overall sentence of seven years and six months imprisonment. I do not consider that the criminality involved in the Form 1 matter requires any adjustment to this figure. The circumstances of that offence do not, in my view, warrant any increase to the sentence for any reasons of deterrence or retribution. 42 I propose however, to discount the sentence, as I have indicated, by 20% to reflect the value of the guilty plea to the manslaughter charge. The sentence so discounted will be for a term of six years. 43 In setting a non-parole period I will take into account the special circumstances I have found to exist in this case. The sentence will be back dated to 23 May 2003 to take into account the time spent in custody. 44 Jeremy James O'Hare, I sentence you to a term, of six years imprisonment. I set a non-parole period of three years and six months which is to commence on 23 May 2003 and is to expire on 22 November 2006. 45 The offender is to be eligible for parole on 22 November 2006. I recommend that during his time in prison the offender should be provided with ongoing psychiatric assessment and treatment and should receive counselling for anger management and for alcohol and drug abuse if that facility continues to be available to him. 46 I recommend notwithstanding that it is essentially a matter for the Parole Board, that the conditions of parole are to include conditions as to supervision and that as part of the supervision the offender be required to accept the direction of the Probation & Parole Service in relation to receiving continued psychological counselling including anger management. Further, that he be directed and counselled as to his use of alcohol and illicit drugs during any period of parole. 47 I direct that a copy of my remarks on sentence and a copy of the Pre-sentence report be forwarded to the Corrective Services Department and that a copy of the report of Dr Westmore be forwarded to both the Corrective Services Department and to the Probation & Parole Service to be kept with and as part of files held by each of the Departments in relation to the offender.

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