CRIMINAL LAW - Sentence - Murder - Joint Enterprise - Acquired brain Injury - Impulsive and uncontrolled behaviour - Psychiatric condition - Comparison with co - offender - Protection of the community - 24 years imprisonment; n.p.p of 20 years.
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Joel Parker Henderson, on 7 August 2015 you were found guilty by a jury in this Court of the murder of a 14 yearold autistic boy, Timothy, known generally as Timmy, O'Brien. The murder occurred in the early hours of 5 January 2013 at a house at 12 Carlyle Street, Scarsdale near Ballarat. A cooffender, Darren Wilson, has already been sentenced in respect of Timmy O'Brien's murder and other related serious offences after a trial before King J. In that case Her Honour imposed on Wilson a total effective sentence of 30 and a half years imprisonment with a nonparole period of 26 years in respect of his conviction for the murder and two charges of incitement to murder arising out of attempts to dispose of witnesses. It is now the duty of this Court to sentence you in respect of Timmy O'Brien's murder according to law. You were convicted of murder only. You were not charged with any other offences.
As I have already observed, Timmy O'Brien was autistic. He attended Ballarat Special School and lived in Smythesdale, not far from Scarsdale, with his mother, Debra O'Brien and his mother's partner, Peter Williams. Mr Williams who suffered a mild intellectual difficulty, treated Timmy as his stepson. Their relationship was close, and to some extent at least, mutually dependent. Mr Williams supplemented a disability pension by doing odd jobs, such as mowing lawns and the like, around the area of the home he shared with Timmy's mother; jobs in which Timmy often participated. Mr Williams was, in fact, the cousin of your cooffender, Wilson, but they were, and had been for some time, on less than friendly terms at the time of the events with which this case is concerned.
The Scarsdale house in which Timmy O'Brien was murdered was occupied at the relevant time by a young woman, Rachel Curtis, and friends of hers, Jess Connery and her boyfriend, Dylan Hamilton.
In the early hours of Saturday 5 January 2013, you, Wilson and another young woman, Lisa Tresize, and her two children travelled to Scarsdale after meeting up in Ballarat. You brought with you the axe that was to become the weapon with which Timmy O'Brien was eventually murdered together with a large, vicious looking, knife. The purpose of the trip was apparently to inflict harm on Peter Williams after luring him to the Scarsdale house from his residence in Smythesdale.
After arrival at Scarsdale the plan I have briefly described was put into effect with the assistance of Tresize, Curtis and Connery. The plan involved Curtis, and to a lesser extent the other young women, going to Williams' house and inducing him to come to the Scarsdale house by claiming that they were concerned about a prowler, or prowlers, in the vicinity and needed Mr Williams' assistance. In fact you and your cooffender, Wilson, were also at the Scarsdale house waiting for your unsuspecting victim.
Unfortunately, as was his wont, Timmy O'Brien insisted on accompanying Mr Williams on the short drive to Scarsdale. He took with him a torch and a baseball bat for protection. Upon arriving at Scarsdale Peter Williams began checking the rooms in the house, only to be ambushed by your cooffender and you. In the course of the altercation which followed Timmy O'Brien, in defence of his stepfather, struck Wilson, causing him to fall to the floor. Shortly thereafter, for the same reason, he struck you.
Timmy then left the house, chased by you. You followed him, armed with the axe you had brought with you from Ballarat. You caught Timmy and then struck him with your fists and then with the blunt side of the head of the axe. Despite protestations from the females present, one or more of whom called out words to the effect, "Leave him alone, he's only a little boy, he has special needs," you persisted. When Lisa Tresize tried to intervene you said, "Keep out of it you stupid fucking bitch," or words to that effect. You struck Timmy a number of times to the head. At or about the time you did so, you shouted at him, "Die, cunt, die."
A short time after you attacked Timmy you were joined by Wilson who, in your presence, picked up the axe you had provided, and whilst Timmy was on the ground, struck him to the head a number of times with the blade of the axe. You did nothing to stop this assault. Shortly after, you and Wilson left Timmy where he lay and left the scene together in the car you arrived in with Lisa Tresize. You returned to Ballarat.
Police were called but by the time they arrived at the Scarsdale house Timmy O'Brien was dead, and probably had been for some time. His injuries, described to the Court in clinical terms by the pathologist who conducted a postmortem examination, Dr Woodford, were horrific. They were principally deep penetrating injuries to his head and to his brain, to the extent that some of his brain was in fact outside his skull. He also had injuries to his body including the amputation of a finger. There is no need for these injuries to be described any further. It is sufficient to note the pathologist's evidence that Timmy O'Brien's death was caused by a "constellation of head injuries" inflicted in the course of his being assaulted as I have already described.
The Crown case against you was that you and Wilson killed Timmy O'Brien in the course of and pursuant to a joint criminal enterprise which you entered into with the intention of killing or inflicting really serious injury upon him. Your motive appears to have been retaliation for this young autistic boy having stood up for his stepfather.
The jury accepted the Crown case as proved beyond reasonable doubt and accordingly rejected your defence that Wilson assaulted Timmy O'Brien independently of you and not pursuant to any agreement, tacit or otherwise, between you and him.
In his plea in mitigation on your behalf Mr Georgiou of senior counsel emphasised a number of matters. First he sought to characterise your contribution to Timmy O'Brien's murder as being distinguishable from and less than that of Wilson. Secondly, he relied heavily on the circumstances of your upbringing and the violence and other privations to which you were subject as a child. Thirdly, he relied upon the effects of an acquired brain injury which you had suffered as a result of a suicide attempt by carbon monoxide poisoning in May 2003, as having been responsible or partly responsible for your conduct at the time of Timmy O'Brien's death. That injury had led you to being the subject of an administration order whereby your financial and other affairs were controlled thenceforth by State Trustees, until that order was revoked not long before Timmy O'Brien's death.
I am unable to accept Mr Georgiou's submission that your participation in Timmy O'Brien's death should be characterised as less heinous than that of your cooffender. You clearly assented to Wilson using the axe you had provided to attack Timmy, which assent was in the context of your having already assaulted Timmy with the axe and expressed your view that he should die. You rebuffed attempts by one or more of the females to stop hitting him when you were doing so. If there is to be a distinction between your responsibility and that of Wilson for this crime, that distinction must be found in circumstances personal to you, notably, your acquired brain injury and the consequences of a turbulent and violent childhood and adolescence.
You were born on 20 January 1973, so that you are now 42 years of age. You were almost 40 when Timmy was killed. Your early life was spent in Warrnambool in a family in which violence was common. That violence was directed by your father towards your mother and sometimes also towards you. When you were nine your parents separated and your mother moved to Ballarat with you and a new partner, where it appears your home life was little changed; your mother's new partner was also violent.
When you were 13 you returned to Warrnambool to live with your father who continued his violence towards you until you left at the age of 16 to return to Ballarat, where you lived on the streets. Somehow you acquired some education, perhaps to the end of Year 10. At the age of 20 you formed a relationship with a young woman and subsequently had two sons. This relationship did not last, but you soon met another woman and fathered another two children. Subsequently in about 2001 you engaged in a business venture with your then partner in Koroit, but again the relationship failed and you attempted suicide which resulted in your suffering the brain injury referred to, the consequences of which have compromised your mental and psychological health.
Statements by your mother and other close relatives admitted into evidence without objection by the Crown and without crossexamination attest to the history I have briefly outlined. Unfortunately, many people convicted of violent crime in the courts of this country can point to similar backgrounds.
Your personal circumstances also include a number of prior convictions acquired both here and interstate. That criminal history commenced in 1993 when you were 20. The offences include dishonesty offences and drug offences as well as a conviction for assault with a weapon. In the present context these convictions are of little significance, although they do deprive you of the advantage of being able to assert a criminal free history before this Court.
In the almost three years you have been in custody since committing the offence for which you are now to be sentenced you have acquired a number of certificates as to your participation in education and other activities, which suggest that you have taken some advantage of the opportunities you have been given to use your time in custody to your advantage. This indication, and the continued interest and concern of your mother and your aunt in your welfare are, perhaps, positive indications with respect to your eventual rehabilitation.
The third matter argued by your counsel was that because of the acquired brain injury in 2003 your moral culpability for this crime should be assessed as somewhat diminished.
There are before the court numerous medical, psychological and psychiatric reports containing material relevant to this submission. None of the experts who wrote those reports was called to give evidence and the reports were tendered without demur by the Crown and without crossexamination. I have read them all carefully. As would be expected there is much repetition across those reports, such that for present purposes I regard it as necessary to refer to only three of them briefly.
About five months before you and Wilson committed this crime you were assessed by a psychologist, Ms Louise Bannister, for purposes connected with your wish to be released from the supervision of State Trustees, such supervision having been imposed by an administration order made not long after your suicide attempt.
In her report Ms Bannister reviewed your psychological history and detailed her findings following an examination. She expressed the view that you exhibited, "Poor impulse control, planning, self-monitoring and error correction ...," and that you lacked insight into these impairments, despite having shown some significant cognitive improvement since an earlier examination upon which the order appointing State Trustees as your administrator was made. Ms Bannister's opinion appears to have almost predicted the sort of behaviour you engaged in at Scarsdale in January the following year.
Recently you were assessed by Dr Lester Walton, a well-known forensic psychiatrist, who expressed the opinion that, "Careful consideration would need to be given as to how dangerous you may be in a community setting." He considered that you required close monitoring "for the foreseeable future."
Even more recently, on 23 October 2015 you were assessed by Mr Jeffrey Cummins, a forensic psychologist. You told him that you had no memory at all of the incident which led to Timmy O'Brien's death. He considered that your mental health problems were at that time severe, that you had been psychologically vulnerable at the time of this offence and that your mental health has probably significantly deteriorated further since that time.
Your counsel relied upon your psychological status as reducing your moral culpability for the death of Timmy O'Brien. The Crown did not contest this submission. However, whilst you may be able to claim a diminution in your moral culpability for Timmy's death, your legal responsibility is not diminished by your psychological state. It was not suggested at trial that you did not know what you were doing at the time of Timmy's death or that what you were doing was wrong. Whilst it is appropriate that your apparent mental state at the time of the offence be taken into account as diminishing your moral responsibility, there are other serious factors which tilt the scales in the opposite direction.
Protection of the community is an important function of the sentencing process, and in a case such as this, it must be given appropriate consideration having regard to all the circumstances of the case including your apparent lack of insight and the reduction in your capacity to control violent impulses. Whilst your mental condition, both at the time of this offence and now, will be taken into account in the sentencing process, the need for protection of the community will also be taken into account.
Your counsel also submitted that both general and specific deterrence should be moderated as sentencing considerations in your case having regard to your psychological deficits, and that consideration should also be given to Mr Cummins's opinion that serving a sentence of imprisonment will weigh more heavily upon you than it might on someone not so psychologically impaired, particularly having regard to the likelihood of your serving some or all of your sentence in protection. These matters have been considered.
Your counsel referred to the length of time you have been on remand, now almost three years, the progress you have made in prison as witnessed by the certificates already referred to, the character references before the court admitted without crossexamination by the Crown, the fact that the attack on Timmy O'Brien was not premeditated and occurred only in response to Timmy's actions in attempting to protect his stepfather, and that the question of your sentence must relate appropriately to the sentence imposed on Wilson having regard to his greater criminality. All of these matters have also been considered.
There are before the Court three victim impact statements filed by Timmy O'Brien's mother, his sister and his stepfather. They attest eloquently to the devastating loss suffered by their authors as a result of your and your cooffender's appalling behaviour. They have each of them suffered in their own way directly and indirectly. Timmy's mother and sister both miss him, as would be expected. That Timmy was himself in need of care and protection because of his disability, of which you were made aware, simply adds to the heinousness of your conduct. Timmy's stepfather misses him as a companion and as a workmate.
The maximum penalty for murder is life imprisonment. It is clear from what I have said that the sentence to be imposed upon you must in all the circumstances be a heavy one. The Court must denounce the conduct you engaged in, deter you and others from engaging in such conduct, and to the extent possible, protect the community from any similar offending by you in the future.
For the murder of Timothy O'Brien you are convicted and sentenced to be imprisoned for 24 years. It is further ordered that you serve a minimum of 20 years before being eligible for parole. I declare that you have served 1,042 days in respect of that sentence not including today. I direct that this declaration and its effect be entered in the records of the court. Remove the prisoner.