AA, AC, Ss, Tatchell and Wildsmith v R

[2010] NSWSC 495

CITATION:	AA, AC, SS, Tatchell & Wildsmith v R [2010] NSWSC 495
HEARING DATE(S):	19-21.10.09 26-27.10.09 30.10.09 2-6.11.09 9-13.11.09 16-19.11.09 23-27.11.09 30.11.09 1-4.12.09 8.12.09 10-11.12.09 14.12.09 5.3.10 29.3.10
JUDGMENT DATE :	28 May 2010
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	AA: Imprisonment with a non parole period of 3 years 7 months to date from 9 January 2008 and to expire on 8 August 2011, with a total sentence of 6 years 3 months to date from 9 January 2008 and to expire on 8 April 2014. Eligible for release to parole on 8 August 2011. AC: Imprisonment with a non parole period of 3 years to date from 8 January 2008 and to expire on 7 January 2011, with a total sentence of 5 years 3 months to date from 8 January 2008 and to expire on 7 April 2013. Eligible for release to parole on 7 January 2011. SS: Imprisonment with a non parole period of 3 years 4 months to date from 9 January 2008 and to expire on 8 May 2011, with a total sentence of 5 years 11 months to date from 9 January 2008 and to expire on 8 December 2013. Eligible for release to parole on 8 May 2011. Tatchell: Imprisonment with a non parole period of 13 years 6 months to date from 8 January 2008 and to expire on 7 July 2021, with a total sentence of 18 years to date from 8 January 2008 and to expire on 7 January 2026. Eligible for release to parole on 7 July 2021. Wildsmith: Imprisonment with a non parole period of 12 years to date from 9 January 2008 and to expire on 8 January 2020, with a total sentence of 16 years imprisonment to date from 9 January 2008 and to expire on 8 January 2024. Eligible for release to parole on 8 January 2020.
CATCHWORDS:	CRIMINAL LAW - murder - manslaughter - sentencing - joint criminal enterprise - conflict in evidence - difficulty in determining role - some convicted murder, others manslaugher - murder: below mid range - youth and immaturity - parity of co-offenders - offer plead to manslaughter - discount - special circumstances - whether serve in juvenile detention centre
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987
CATEGORY:	Sentence
CASES CITED:	Regina v CW [2009] NSWSC 1155 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93 Nguyen v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267 Apps v R [2006] NSWCCA 290 R v Spathis; R v Patsalis [2001] NSWCCA 476 R v Oinonen [1999] NSWCCA 310 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 Regina v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 R v Previtera (Supreme Court of New South Wales, Hunt CJ, 27 May 1997, unreported); (1997) 94 A Crim R 76
PARTIES:	Regina AA AC SS Luke Tatchell David Wildsmith
FILE NUMBER(S):	SC 2009/3729; 2009/3746; 3009/3747; 2009/3748; 2009/4327
COUNSEL:	P Barrett (Crown) J Stratton SC (AA) R Pontello (AC) M Austin (SS) A Webb (Tatchell) G Brady (Wildsmith)
SOLICITORS:	L Burgoyne - DPP (Crown) K Kyriacou (AA) O'Brien Solicitors (AC) J Grix - LAC (SS) S Boyages - ALS (Tatchell) L Premutico (Wildsmith)

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

JUSTICE DAVID KIRBY

Friday 28 May 2010

2009/3729 REGINA v AA
2009/3746 REGINA v AC
3009/3747 REGINA v SS
2009/3748 REGINA v Luke TATCHELL
2009/4327 REGINA v David WILDSMITH

JUDGMENT ON SENTENCE

1 KIRBY J: On 26 December 2007 at St Clair, James Tautari was repeatedly assaulted by a number of young men, some with weapons. He was severely injured. His injuries included a ruptured spleen. He was rushed to hospital where he underwent emergency surgery. He died the following day.

2 In January 2008, AA, AC, SS, Luke Tatchell and David Wildsmith were arrested and charged with his murder. Each pleaded not guilty. On 14 December 2009, after a jury trial, AA, AC and SS were each convicted of manslaughter. Luke Tatchell and David Wildsmith were convicted of murder.

3 It remains for me to pass sentence upon each offender. In order to do so I must, in each case, determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour the offender, it is enough that they should be established on the balance of probabilities.

Background.

4 James Tautari, at the time of his death, was almost 50 years old. He was a big man. He was 187 cm tall and weighed 138 kg. Some years before his death, he formed a relationship with the aunt of the offender SS. From time to time she made allegations to her daughter, Angela and others, that she had been physically abused by the deceased. Her daughter was the girlfriend of one of the offenders, AC, and indeed was living with him. One infers that the allegations of abuse thereby came to the notice of AC, SS and other members of the group.

The assault.

5 Let me turn to the circumstances of the assault. On the afternoon of Boxing Day 2007, a group of friends decided to have a swim at Bent’s Basin in the west of Sydney. They arranged to meet at the McDonald’s Restaurant at St Clair. AC, driving a red Pulsar SSS, drove to McDonald’s with his girlfriend Angela, and a passenger Sergio Fresco. Another vehicle, a white Daewoo driven by SS, arrived at approximately the same time. The closed circuit television footage showed both vehicles arriving shortly after 3.30 pm.

6 At about 3.40 pm, Angela noticed the victim, James Tautari walking along Bennett Road on the footpath opposite McDonald’s. When she made that observation, she was with members of the group. She pointed to him saying: “There is that Jimbo guy.” In response to a question, she elaborated: “There’s that guy about my mum – the guy that used to hit my mum.” There followed a discussion. Some of the offenders, although not all, were present and either joined in the discussion or heard what was said.

7 Within a short time, AC drove his vehicle from the McDonald’s car park. Angela remained at McDonald’s. Two from the group, Luke Tatchell and Sergio Fresco, went with him. They drove to Luke Tatchell’s home which was nearby. Luke Tatchell got out and returned a short time later with three weapons, which were placed on the rear seat. One was a small metal pole, the handle of a shopping trolley. Another was a wooden axe handle and the third was a golf club. AC then drove back to a car park opposite McDonald’s. The journey took a little over six minutes. Once at the car park, David Wildsmith got into his vehicle.

8 Soon thereafter AC’s vehicle and that of SS came together. There were three passengers in SS’s vehicle, AA, Jesse Morrish and Justin Richards. Both vehicles drove in convoy down Bennett Road, with SS in front. They passed James Tautari, who was still walking along Bennett Road. They went across a small bridge and entered a side street where they doubled back to a park known as Concorde Place. Everyone then got out. The eight occupants of the two vehicles walked towards the bridge on Bennett Road. The weapons were carried from AC’s vehicle. There was an underpass beneath the bridge, where they assembled. The weapons were distributed.

9 The group then waited for James Tautari to pass overhead. They could see his shadow as he walked across the bridge. Once he got to the other side, they rushed up the embankment onto Bennett Road. Some arrived at the top sooner than others. A number immediately approached James Tautari and began assaulting him. Others stood close by.

10 The assault began on the road itself and ended in the front yard of a house on Bennett Road next to Concorde Place. The owner of that house opened her front door and saw the victim covered in blood. She asked him what had happened. He told her that he had been hit with sticks, “a lot of sticks” (T 128). He said there were six or eight of them, referring to the number in the group. They had called him a “black cunt” and started hitting him. The woman asked where they had gone. He pointed in the direction of Concorde Place. She then ran to the side of her house and saw a red car. The three passenger doors were open and there were legs hanging out. She heard laughing as the occupants entered the car. The car then drove off. She then returned to the victim.

11 Meanwhile, other neighbours, who had heard the commotion, had gone to investigate. They, likewise, assisted the victim. One said that she had heard swearing and thuds, as though someone was hitting a punching bag. A passing motorist saw the victim staggering towards the front yard of the home on Bennett Road. The motorist stopped and gave assistance. He noticed the head of a golf club lying nearby. The shaft of that club was later found in the adjacent park, along with the branch of a tree. The next day an axe handle was found. The police did not recover a metal pole.

12 A 000 call was made at 3.53 pm, by which time the crime was complete and the group had gone. Therefore, thirteen minutes had elapsed between the time Angela pointed to James Tautari walking past McDonald’s and the time of that call.

13 The victim was taken by ambulance to the Nepean Hospital. He was found to have hypovolemic shock, caused by loss of blood. He had lacerations to the head and extensive long linear bruising to the back as well as the left thigh. He died within less than 24 hours from complications arising from the removal of the ruptured spleen.

14 So that is the broad picture. Before convicting an offender of either murder or manslaughter, the jury was obliged, by written directions, to be satisfied beyond reasonable doubt of, amongst other things, the following:

1. That on 26 December 2007, there was a joint criminal enterprise, that is an agreement, to assault James Tautari by physically hitting him;

AND

2. That the accused whose case you are considering was a party to that agreement;

AND

5. That at the time of the assault the accused whose case you are considering either:
(a) had an offensive weapon, namely a golf club, a metal bar or a piece of wood;

OR

(b) was aware that one or more parties to the joint criminal enterprise had an offensive weapon (or weapons).

15 Consistent with the verdicts, therefore, it is clear that each offender was party to a joint criminal enterprise to hit James Tautari and knew of weapons. In assessing the criminality of each offender it is plainly desirable, if the evidence allows, to define the level of his participation in that enterprise (Regina v CW [2009] NSWSC 1155 per Hall J at [75]).

16 However, here there are difficulties in doing so. Apart from AC, none of the offenders made a statement to the police or gave a record of interview. Whilst AC gave a record of interview, the account he provided was demonstrably false. It may be put to one side. None of the offenders gave evidence at trial. None gave evidence on sentence. Each, after conviction, was interviewed by an officer either from Juvenile Justice or Probation and Parole, and in some cases, by a psychologist. In the context of an exploration of contrition, questions were asked about the offence. Some, but not all, provided limited information. The information was confined to the offenders’ own participation, rather than a description of what had happened.

17 Accordingly, in attempting to define the role of each offender, one is obliged to return to the evidence of the Crown at trial. Fundamentally the Crown case depended upon the evidence of three witnesses, Sergio Fresco, Jesse Morrish and Justin Richards. Each was uncomfortable giving evidence. Each had friends amongst those charged. Each gave contradictory accounts on a number of issues. Some acknowledged repeatedly lying, including lying on oath. Each was part of the group at McDonald’s when Angela pointed out James Tautari. Each was thereafter transported either by AC or SS to the underpass. Each was present when the attack took place. There were differences, and sometimes marked differences, in the description each gave of what happened. To some degree that is perhaps unsurprising, since the attack lasted about a minute and the interaction of those involved was complex and confusing. There are, nonetheless, obvious difficulties in determining beyond reasonable doubt, the findings that should be made against each offender.

18 I shall begin by examining the evidence in relation to those convicted of manslaughter.

The offenders convicted of manslaughter.

19 Dealing first with the case against AA, Sergio Fresco and Justin Richards both gave evidence that, in the course of the attack, he struck the deceased once with a golf club. Fresco said the blow was to the head and that the golf club broke, the shaft separating from the aluminium head. At first Richards said that the blow landed on the deceased’s upper body. However, he gave evidence late in the day and was enjoined by the Crown to refresh his recollection from a statement he had made shortly after the incident. The next morning he altered his evidence. He said he had been mistaken. The blow from the golf club was to the head.

20 The third witness, Jesse Morrish, gave an entirely different account. He was not a particular friend of AA, having only met him shortly before the incident. He said that AA only became involved at the very end and then in a way which was entirely innocent. He and SS appeared to recognise that the attack had gone too far and attempted to stop Luke Tatchell from further hitting the deceased.

21 The police, when they searched the scene, found the head of the golf club not far from the place where Mr Tautari had been assisted by neighbours (Exhibit J). The shaft was later recovered from Concorde Place (Exhibit S). The deceased had a number of wounds to the scalp, which were reasonably extensive (Exhibit P). There was also bruising and swelling to the back of the skull (T 800). The objective evidence therefore rather supported the account given by Fresco and the revised account given by Richards.

22 However, a specialist in Emergency Medicine, who treated Mr Tautari upon his admission to the Nepean Hospital, gave evidence which cast doubt upon the suggestion that the victim had been forcefully struck on the head with the metal head of a golf club. The doctor believed that, had he received such a blow, there would have been a significant risk, indeed a probability, of skull fracture or at least cerebral contusion. A CT scan taken on the day of his admission revealed neither.

23 AA was interviewed by the Probation and Parole Service after his conviction. According to their report, he “accepts responsibility for his offending behaviour and the poor choices he made on the day of the offence when he decided to become involved” (Exhibit A, report p 3). In circumstances where a number of individuals with a number of weapons had struck the deceased, I cannot be satisfied beyond reasonable doubt that AA struck him on the head with a golf club. I accept, however, that he was physically involved and struck the deceased with a weapon. I also accept as probable that his involvement was limited. The more difficult issue concerns the accuracy of the favourable account given by Jesse Morrish, that AA and SS intervened towards the end, pulling Luke Tatchell away. Morrish was, to my mind, the least impressive of the Crown witnesses. He was a friend of SS and clearly sympathetic to him. However, let me defer that issue for the moment and go to the evidence concerning the involvement of SS.

24 Sergio Fresco gave evidence that, as the group assembled in the underpass, SS was given a wooden pick axe handle. It will be remembered that such a weapon had been obtained by Luke Tatchell from his home. According to Fresco, as the attack unfolded, SS hit the deceased many times, both to the body and the head (T 463/4).

25 The evidence of Jesse Morrish supported the suggestion that SS was given the pick axe handle at the underpass (T 678). However, Morrish asserted that SS had a far more limited involvement. He struck the deceased once on the leg and then threw the piece of wood away (T 680/1). Later SS and AA tried to pull Luke Tatchell off the victim (T 684).

26 The account by the third witness, Justin Richards, was rather different. He could not recall SS being involved in the early stages as others struck the victim with their weapons (T 901). He said that SS intervened halfway through the attack and started punching the deceased (T 901). He did not have a weapon.

27 Miad Shahidi gave evidence relevant to SS’s involvement. He was a most reluctant witness, who described himself as SS’s “best mate”. He was in Melbourne at the time of the incident and returned to Sydney shortly after. He then spoke to SS. Within a matter of days he was himself interviewed by the police and made a statement. According to his statement, SS said these words:

“We didn’t mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs, I was screaming to the other guys, ‘don’t hit him in the head’.”

28 After the jury returned its verdict, SS was interviewed by a counsellor from Juvenile Justice. He said that, during the commission of the offence, he reassessed what was happening. He grabbed one of his co-offenders and yelled: “Let’s go.” (Exhibit C, report p 2). He also gave a rather more expansive account to a clinical psychologist on 10 February 2010. He claimed to have hit the deceased twice on the legs with a piece of wood, which he then discarded. He denied punching him. He claimed to have pulled one of the co-offenders off the victim (Exhibit 1(S), report para [41]).

29 I accept that SS struck the deceased with an axe handle twice. I cannot be satisfied beyond reasonable doubt that he struck him more than twice, as suggested by Sergio Fresco. I think it likely that the blows were delivered to the victim’s legs. The victim had a number of bruises to the left thigh (Exhibit P). Again, as with AA, the more difficult issue is whether, as a matter of probability, SS recognised that, at a certain point, the battering had gone too far and intervened, as suggested by Jesse Morrish. Richards, when cross examined by Mr Stratton SC for AA said this: (T 937)

“Q. Mr Richards, did you see the man Ali try and pull people off Mr Tautari towards the end of the fight?
A. Not that I can recall, no.
Q. I notice you hesitated for a long time before you answered that question. Is that because you’re not sure?
A. I’m not a hundred per cent sure. I can’t -- ”

30 SS’s conversation with his friend shortly after the incident, although self-serving, is generally consistent with the suggestion that he knew the attack had gone too far. That insight makes it likely that he did intervene, as he asserts. I therefore accept that it is probable that he and AA did ultimately bring the attack to an end by pulling Luke Tatchell away from the victim.

31 The evidence relating to AC was rather more clear. The Crown plausibly pointed to his clear motive. He was living with Angela, the daughter of SS’s aunt. It will be remembered that SS’s aunt had been in a relationship with James Tautari and, reputedly, had been abused. She was, supposedly, the beneficiary of the group’s intervention.

32 AC was at McDonald’s when Angela pointed to James Tautari walking by. Within a short time he drove Luke Tatchell to his home, where weapons were obtained. I am satisfied that he knew of the plan to hit James Tautari, at least by the time the weapons were placed in the back seat of the car. He then returned to the car park opposite McDonald’s and thereafter drove behind SS to Concorde Place. He then went with the others to the underpass. He was present during the attack. He did not have a weapon. Neither Fresco, nor Morrish, nor Richards suggested that he joined in the attack. He thereafter transported his companions from the scene.

33 I accept that, consistent with the verdict, AC as well as AA and SS, had the intention to hurt James Tautari, but not cause him really serious bodily injury. Nor did they contemplate that their companions may inflict such injury with intent.

34 Counsel for AC forcefully argued that the culpability of AC was less than that of either AA or SS. Unlike his companions, he had not taken up a weapon and did not strike the deceased. Although present, and ready to give aid, the Court should find that such aid was limited to transportation from the scene, as duly occurred.

35 The Crown, however, suggested that AC played a far more pivotal role. His close association with Angela provided him with a strong motive. It was that motive, shared by SS, which was ultimately driving the group. Although AC was not physically involved, he substantially facilitated the offence, which entailed a group of youths surprising the victim and attacking him with weapons when he was defenceless.

36 Dealing with these submissions, I do not accept that the aid and encouragement provided by AC was limited to transportation from the scene. He had a far greater role, as suggested by the Crown. Balancing their differing roles, including the assistance given by AA and SS in ending the attack, I believe the culpability of each of those convicted of manslaughter should be regarded as the same.

The offenders convicted of murder.

37 I then come to the two offenders convicted of murder. In respect of Luke Tatchell, there was little controversy concerning his role. Justin Richards described the commotion at McDonald’s after Angela pointed to James Tautari. There was a discussion as the group watched the person Richards described as “a big dark islander” (T 890). AC then drove Luke Tatchell to his home, where weapons were obtained. I infer that Luke Tatchell was part of the discussion at McDonald’s and recognised the need for weapons to deal with a person of James Tautari’s size. I accept that, before this incident, he knew nothing of SS’s aunt or the alleged abuse of her by James Tautari. He made the following comment to a psychologist after his conviction: (Exhibit 1(T), report p 8)

“(I) don’t even know how I got involved. (I) didn’t even know the guy, had nothing against him. (I) just thought that it would be cool to help the guys out. I don’t really know what I was thinking.”

38 Having procured the weapons, Luke Tatchell distributed them to others as they waited in the underpass, retaining the metal pole for himself. However, he was not the only source of weapons. At least one other weapon, a tree branch, was procured by another member of the group (Exhibit T).

39 Sergio Fresco gave evidence that Luke Tatchell was the first to reach the victim as the group ran up the embankment. He struck him with the shopping trolley pole and others then joined in. There were many blows, perhaps as many as twenty. In cross examination it was put that Luke Tatchell had delivered no more than five blows. Fresco disagreed (T 622).

40 Jesse Morrish, however, said that SS delivered the first blow (T 681). Luke Tatchell then repeatedly struck the victim, including to his head, dislodging his hat (T 682). He delivered many blows, to the point where AA and SS pulled him away (T 684).

41 When cross examined about the number of blows, Mr Morrish was reminded of evidence he had given in the lower court, where he had provided an estimate of five or ten. It was suggested that that was a more realistic estimate. Mr Morrish disagreed (T 757).

42 Justin Richards simply described Luke Tatchell as having the metal pole which he used to strike the victim. He did not attempt to quantify the number of blows.

43 When interviewed by the Probation and Parole Service, Luke Tatchell acknowledged his responsibility. He said he followed other members of the group “like a sheep” (Exhibit D, report p 4). The victim remained standing. Apart from the obvious gash to the head, which was bleeding profusely, there was no visible injury. The injury which proved fatal, the ruptured spleen, was not visible. The head injury, although dramatic, was ultimately not life threatening.

44 Counsel for Mr Tatchell, in helpful written submissions, conceded that Luke Tatchell joined in the attack relatively early and delivered multiple blows. He submitted the Court should proceed to sentence on the most conservative estimate. The Crown did not suggest an intention to kill, either at the trial or in its submissions on sentence. The case was presented upon the basis that members of the group, including Tatchell, intended to inflict grievous bodily harm.

45 The offence was committed in company and involved the use of weapons. The Crown did not suggest these were matters of aggravation in terms of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), but rather, features of the joint criminal enterprise which should inform any judgment concerning the seriousness of the offence. I will approach the matter upon that basis. There was some planning, although it was minimal. The Crown submitted, and I accept, that it was an opportunistic crime, conceived within a short time of Angela seeing James Tautari at 3.40 pm. The assault itself was short-lived, and probably less than a minute. From the beginning (3.40 pm) to the end (the ‘000’ call at 3.53 pm) it took 13 minutes. Plainly, none of the eye witnesses counted the number of blows delivered by Mr Tatchell. Each had an impression. The estimates which each provided were necessarily unreliable. I accept that there were multiple blows.

46 Under the Crimes (Sentencing Procedure) Act 1999, a standard non parole period of 20 years has been fixed for the offence of murder. The standard represents “an offence in the middle of the range of objective seriousness” (s 54A(2) of the Act); R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; MLP v The Queen [2006] NSWCCA 271; (2006)164 A Crim R 93). The Crown acknowledged that the mid range must include offences where the perpetrator had an intention to kill. Since here there was no intention to kill, but an intention to inflict grievous bodily harm, the Crown submitted that the offence should be viewed as close to, if not within, the mid range.

47 Counsel for Mr Tatchell drew attention to a number of additional matters relevant to the characterisation of the offence. In his submission, they make it appropriate to view the offence as below the mid range. First, in characterising the offence, the state of mind of the offender was relevant. Here, Luke Tatchell was a few months beyond his 18th birthday and immature. Secondly, you would expect of a mid range offence greater planning than was evident here (cf Nguyen v The Queen [2007] NSWCCA 363; (2007) 180 A Crim R 267 per Smart AJ at [143]). Here the plan was conceived in haste and made on the run, evolving in the short interval between McDonald’s and the underpass. It was, in counsel’s words, “ill advised, ill planned and ill thought out”. I accept that his decision to become involved in the offence was a reflection of his immaturity.

48 In Apps v R [2006] NSWCCA 290, Hunt AJA (Simpson and Whealy JJ agreeing) made the following observations relevant to the characterisation of a mid range offence:

“[4] The crime of murder has a wide variation in the states of mind which must accompany the act which caused the death of the deceased. That particular state of mind is directly relevant to the determination of the objective seriousness of the crime charged, in that it is related to the commission of the crime itself. ...
[5] The intention to kill must therefore be directly relevant to the sentencing judge’s assessment of the objective seriousness of the crime, and whether, in the particular case, that crime falls above or below the mid-range of seriousness.”

49 I accept that the offence of Luke Tatchell was somewhat below the mid range. It was more serious than that committed by David Wildsmith, whose case I will consider in a moment, but still below the mid range.

50 Moving to the evidence in relation to David Wildsmith, the three Crown witnesses, Fresco, Morrish and Richards, each said that he was physically involved in the attack upon James Tautari. He had joined in when others were using offensive weapons to strike the deceased. Nonetheless, there were significant differences as to what he had done.

51 Sergio Fresco said that, as SS and Luke Tatchell hit the victim with their weapons, David Wildsmith ran up to the victim with a small black canister. He sprayed him with what looked to be pepper spray from a distance of approximately a metre, with his arm outstretched (T 643). Indeed, he did so more than once and perhaps as many as three times (T 645). Fresco said that, although the man was moving a great deal, he was confident that the spray hit him on the body and face (T644). On his account, David Wildsmith did not use a weapon to strike the deceased (T 633).

52 The evidence of Jesse Morrish was broadly similar. He said that David Wildsmith produced a black canister from his bum bag, either at McDonald’s or in the underpass. He said it was mace. When the attack was underway, “Wildy”, to use his words, “pulled out the mace and maced him” (T 680). In cross examination, however, he retreated from that account. He said he did not see the spray come out of the can (T 760). He ultimately said that he saw his arm outstretched. However, he could not say whether he sprayed the mace or not (T 765). He thought he had. He agreed that, at no time, had David Wildsmith hit the deceased with an offensive weapon.

53 The account provided by Justin Richards was quite different. He also said that David Wildsmith had pulled a can from his bum bag and said it was mace (T 905). During the attack, however, he was carrying a metal pole, which he used to strike the deceased (T 900). On his account, a passing motorist, driving a ute, pulled up during the attack. David Wildsmith then rushed over to the motorist and sprayed mace through the window (T 911).

54 There were other references to mace in the Crown case. The sunglasses and cap worn by the deceased were scientifically examined. The examination did not disclose the presence of the chemical constituents of mace or pepper spray. When the victim spoke to a paramedic, in the front garden of the residence in Bennett Road, he did not complain of the symptoms you would expect had he been sprayed with mace, such as burning eyes or skin. There was, according to the paramedic, nothing suggesting injuries inflicted by mace.

55 There were two eyewitnesses to the assault who were driving in Bennett Road as the attack was unfolding. Neither saw mace sprayed. One remembered a ute stopping. However, he did not see the driver of the ute being sprayed with mace (T 184).

56 David Wildsmith, when interviewed by the Probation and Parole Service after conviction, on advice, did not wish to discuss the offence beyond acknowledging that he was there. He did say, however, that Luke Tatchell was “like a younger brother” to him.

57 According to Sergio Fresco, only one metal rod was taken from Tatchell’s home to the underpass, which was then used by Luke Tatchell. The police search did not locate any metal rods. However, when cross examined, Fresco did say that David Wildsmith had a metal rod after the attack at the home of a co-offender. He acknowledged that he had made no reference to that matter in his police statement (T 654). Jesse Morrish, when cross examined, likewise referred to David Wildsmith later saying something about a metal bar and “metho-ing the bar” (T 777).

58 In making a finding, I must be guided by what is necessarily implicit in the jury verdict and my own impression (R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196]). To my mind, Fresco, notwithstanding blemishes, was the most impressive of the three Crown witnesses. Counsel for Mr Wildsmith urged a finding that his client had no weapon other than mace, that he assisted by the use of mace, or encouraged the attack once it began, supporting his friend Luke Tatchell who was like a younger brother. He did so knowing that Tatchell had an offensive weapon. He contemplated the possibility that his friend would use that weapon with an intention of causing grievous bodily harm. I am persuaded that such a finding is appropriate.

59 Attention was drawn to a further aspect, relevant to the objective seriousness of Mr Wildsmith’s actions. The CCTV footage demonstrated that David Wildsmith was part of the group at McDonald’s who gathered immediately after Angela pointed out James Tautari. According to Fresco, whose evidence on this issue I accept, David Wildsmith said to the group: “Not today”, to which Luke Tatchell responded: “Don’t be a pussy”. Tatchell then went with AC to his home and obtained weapons. David Wildsmith, in contrast, can be seen on the CCTV footage walking away. The Crown, in addressing the jury, accepted that he was, at that point, reluctant and indeed “the voice of reason”. AC returned with Tatchell and Fresco a little over six minutes later, to another car park opposite McDonald’s. David Wildsmith then got into AC’s car. It was submitted, and I accept, that it was a spur of the moment decision, in which his youth and immaturity were significant factors. He was not involved in the planning or preparation for the offence. His decision to become involved was the product of his close association with Luke Tatchell. He personally did not intend to inflict grievous bodily harm. His complicity arises through a contemplation that his friend, Luke Tatchell, may use his weapon with intent to cause such harm.

60 How, then, should the objective seriousness of Mr Wildsmith’s offence be characterised in relation to the mid range offence? Plainly, the criminality exhibited by his actions and intent was less than that of Luke Tatchell. He joined the enterprise after Tatchell. He did not strike the deceased with an offensive weapon. Although party to a joint criminal enterprise to hurt James Tautari, he did not personally intend to inflict grievous bodily harm. As stated above, the objective seriousness of his actions was below the mid range and below that of Luke Tatchell.

Subjective case of Manslaughter offenders.

61 Let me move from the offences to the offenders, and begin by dealing with the subjective cases presented on behalf of those convicted of manslaughter.

62 AA was born in Kuwait in May 1990. He was 17 and a half years old at the time of the offence. He is now 20 years. He is the third youngest of nine children. His family came to Australia in 1998, when he was eight years old. His father had qualifications as an engineer. He attended a number of schools. In 2005 the family moved to Adelaide in order that his father could obtain further qualifications and seek employment. One gathers that there were difficulties. He, his parents, and most of his siblings returned to Kuwait in January 2007, where most remain. However, in September 2007 AA returned to Australia, where he lived with two of his brothers. He re-enrolled at St Clair High School, intending to complete his Higher School Certificate. AA was arrested on 9 January 2008. He has been in custody in a juvenile detention centre since that date. After a hesitant beginning, he has used his time extremely well. He has undertaken a significant number of courses, including educational courses in respect of Year 11. He has acquired many skills including brick laying. He presently works in the kitchen and as a barber. He is universally described as polite and co-operative. He has recently been made a mentor for prisoners with behavioural issues.

63 AA has the support of his family. His mother and father separately came to Australia to see him in the months following his arrest. His brother and his brother’s partner have continued to see him whilst in custody. The Prison Chaplain, in a reference, has referred to his growing maturity and “range of positive qualities”. He expressed the view that he had excellent prospects, once released from prison. The Probation and Parole Service expressed the same view. According to their report, AA does not have a history of difficulties with either drugs or alcohol.

64 A number of documents tendered on behalf of AA referred to his profound remorse. They included a report from Mr Watson-Munro, psychologist, and the probation and parole report.

65 There are, accordingly, a number of matters in mitigation. AA has no criminal record and was of prior good character (s 21A(3)(e) and (f) Crimes (Sentencing Procedure) Act 1999) (“the Act”). I accept that he feels remorse for his part in the offence (s 21A(3)(i)). I further accept that he is unlikely to re-offend (s 21A(3)(g)) and has good prospects of rehabilitation (s 21A(3)(h)). I also accept that his youth and immaturity were relevant to his offending behaviour (cf s 21A(3)(j)). Shortly before the trial began he offered, through his solicitors, to plead guilty to manslaughter. That offer was rejected by the Crown. Whilst that rejection was understandable in the circumstances, the offer is relevant as a matter in mitigation (s 21A(3)(k); R v Oinonen [1999] NSWCCA 310 at [15]; R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [121]). A discount of 10% is appropriate.

66 A year remains before AA will turn 21 years. Nonetheless, application was made for an order that he remain for the time being in a juvenile centre. Under the Children (Criminal Proceedings) Act 1987, such an order may be made where there are special circumstances (s 19(3)(a)). “Special circumstances” are defined to include the following:

“s 19(4) A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise:
(a) ...
(b) that the only available educational, vocational training or therapeutic programs that are suitable to the person’s needs are those available in detention centres.”

67 The Crown did not oppose the making of such an order, were AA eligible. The efforts he has made since arrest to further his education are certainly impressive. However, the material before me, including the probation and parole report, does not permit a finding that the only available educational or vocational training programmes suitable for his needs are those available at the detention centres. Although sympathetic to the application, I do not feel able, on that material, to make such an order. Since the issue arose during the course of the sentencing hearing, I give leave to AA to make a further application supported by further material for such an order, if so advised. It would be appropriate in my view to make such an order, if transfer to an adult prison would require him to abandon courses which he has begun.

68 Nonetheless, I do make a finding that there are special circumstances in his case for varying the statutory ratio between the non parole period and the balance of the term (s 44(2) of the Act). He is a young man. It is his first time in custody and his rehabilitation will be assisted by such a variation.

69 Let me next deal with AC, who was born in July 1990. He was 17 at the time of the offence and a few months younger that AA. He is now almost 20 years old. He is the oldest of two children. He began Year 11 in 2007 but thereafter decided to leave school. He had various jobs and on 8 January 2008, when arrested, was working in carpentry, installing timber floors.

70 AC’s parents noticed a change in him approximately six months before the offence. After conviction, he was interviewed by an officer from Juvenile Justice. He spoke frankly and displayed insight into the changes in his behaviour which his parents had observed. He was, at that time, pursuing what he termed “a party lifestyle”, using a variety of drugs. He acknowledged that his life was chaotic and that he had lost control of it. He accepted responsibility for his part in the offence. According to staff at the juvenile centre, he has responded maturely to his incarceration. His parents see him regularly. They have noticed a change in his focus and attitude. He has, according to the report from Juvenile Justice, “put his hand up for all programs offered”, including drug and alcohol counselling. He has successfully completed a number of TAFE courses.

71 There are a number of matters in mitigation. AC has no criminal record. A number of people spoke highly of his character (s 21A(3)(e) and (f)). Counsel urged that, for a number of reasons, he was unlikely to reoffend and had good prospects of rehabilitation (s 21A(3)(g) and (h)). He had very good family support. He had a solid work history before his arrest and the prospect of work after release. He accepted responsibility for his part in the offence. He had insight into his youthful mistakes, including his lifestyle which involved drugs. He had behaved well in custody, taking every opportunity to further his rehabilitation.

72 I accept these arguments. I believe that he is unlikely to reoffend and has good prospects of rehabilitation. As with AA, I also find that his youth and immaturity were relevant to his offending behaviour (cf s 21A(3)(j)).

73 An offer was made on behalf of AC to plead guilty to manslaughter on 23 September 2008. The offer was declined on 24 November 2008. The offer was renewed on the first day of the committal (9 March 2009) and again rejected. It was again renewed, in writing, on 28 April 2009 and again declined. The repeated offers are consistent with remorse, as is the acceptance of responsibility (s 21A(3)(i)). The offers to plead are relevant matters in mitigation (s 21A(3)(k)). A discount of 25% is appropriate.

74 Should a finding be made under s 19(3)(a) of the Children (Criminal Proceedings) Act 1987 that AC remain, for the time being, in a juvenile centre? Again, I do not have sufficient material to make such an order. As with AA, I give leave to make a further application for an order under that section.

75 I make a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 for the same reasons that I made such an order in the case of AA.

76 Turning to the subjective case presented on behalf of SS, he was the youngest of those convicted. He was born in mid December 1990, so that he had just turned 17 years at the time of the offence. He has been in custody since 9 January 2008.

77 SS is the second of four children. His parents came to Australia from Scotland. However, they separated when he was still quite young. His father has since remarried. His parents remain friends and he gets on well with both. His mother has relocated the family to the Central Coast in order to be nearer to him, whilst he remains in gaol.

78 Before the offence, SS consumed alcohol on a regular basis and marijuana occasionally. Indeed, he had consumed a significant quantity of alcohol in the Christmas period immediately before the offence. He believed this was a factor in what he described as his “poor decision making” on the day.

79 Since entering custody, his progress has been outstanding. With minor exceptions, he has been of good behaviour. He has been reclassified a number of times. He was examined by a psychologist, Mr Peter Champion, who said he has a superior intellect. He has undertaken a number of courses. Most importantly, he has completed Year 11. He is currently enrolled in Year 12. He hopes to complete his Higher School Certificate and ultimately attend university. The Assistant Principal of the school in which he is enrolled described him as an A Grade student and the best student he had seen in custody. He has received a number of awards, including an award from the Newcastle Herald.

80 SS had no criminal record at the time of his arrest (s 21A(3)(e)). He was of good character (s 21A(3)(f)), with many accomplishments. He had been School Captain at his primary school and had excelled at sport. The report from Juvenile Justice included a comment that he had shown considerable remorse. The psychologist, Peter Champion, made the same observation. SS, in an affidavit, said this:

“17. I am very sorry for what I have done. I wish I could undo it. No words can express how sorry I am. I understand Jim’s family must hate us because we took someone away from their family.”

81 I accept that SS is remorseful (s 21A(3)(i)). I also accept that he is unlikely to reoffend (s 21A(3)(g)) and has good prospects of rehabilitation (s 21A(3)(h)). As the youngest in the group, I believe his youth and immaturity were relevant to his offending behaviour (s 21A(3)(j)). An offer was made on his behalf to plead guilty to manslaughter shortly after he had been committed for trial (s 21A(3)(k)). A discount of 15% is appropriate.

82 In SS’s case there is a significant body of evidence concerning the courses he is presently undertaking at the Juvenile Justice Centre, including the completion of his HSC. There is no evidence that such courses are only available in Juvenile Detention Centres, as required by s 19(4)(b) of the Children (Criminal Proceedings) Act 1987. As with AA and AC, I give leave to make a further application under that section, providing further evidence. I also find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act for the same reasons as in the cases of AA and AC.

Subjective case of the murder offenders.

83 That brings me to the subjective cases presented on behalf of the two offenders convicted of murder. Luke Tatchell was born in June 1989. He was 18 and a half years old at the time of the offence. He is now almost 21 years.

84 Mr Tatchell was the only child of his parents. They separated when he was five years old. He remained with his mother, with whom he is very close. He gets on well with his father and his step-parents. He believes he had a happy childhood.

85 Mr Tatchell showed early promise in football and was awarded a scholarship to a prestigious school. However, he left school once he obtained the School Certificate. He was then 16 years old. He told a psychologist, Ms Debbie Case, that he began abusing drugs and alcohol at the age of 13 years. According to the Probation and Parole report, that abuse escalated once he left school. He has had little work since that time. In 2007 he was involved in what was described as “a drunken pub brawl”, sustaining significant injuries to the tendons of both hands. He required surgery. One gathers that he had a prolonged convalescence. He remained unemployed. He told the psychologist that, throughout that period, he was depressed. His consumption of drugs and alcohol significantly increased. He described himself as “binging”, consuming a variety of substances, including cocaine, ecstasy and the drug Ice.

86 Mr Tatchell was arrested on 8 January 2008. Because of the ethnic background of the victim, he was placed in Protection, where he remains at his own request.

87 His behaviour, once in custody, has, at least until recently, given rise to concern. In the period February 2008 to April 2009, he committed six misconduct offences, some involving aggression. Indeed, such was the concern of the gaol authorities that he was admitted to an intensive programme – Inmate Management Plan – in July 2008. His behaviour thereafter improved and he was permitted to return to the regular Protection environment.

88 More recently he has, according to the Probation and Parole report, been relatively compliant. On a number of occasions he has undergone urinanalysis. On one occasion, in October 2009, he returned a positive result. He explained that result by reference to the stress occasioned by the trial, which was about to begin.

89 At the time of the offence, Mr Tatchell was on bail charged with five offences, including possess prohibited drug, intimidate police officer in execution of his duty and assault officer in the execution of his duty. The fact that he was on bail is a matter of aggravation (s 21A(2)(j)).

90 Against this bleak background, there are some positive signs. Both the psychologist and the Probation and Parole officer state that Mr Tatchell does appear to have insight into his offending behaviour. The Probation and Parole officer added that his poor custodial history appears to be a manifestation of his immaturity. He recognises that he has been easily influenced by what he termed “a negative peer group”. He appears to recognise the adverse effects upon his behaviour of drugs, although he continues to struggle with the temptation to use such substances in times of stress. He has undertaken a number of courses. He said that he did so at first as a way of filling in time. However, with time, he came to recognise the benefits which training and counselling can bring to his long term future.

91 Counsel for Mr Tatchell drew attention to the way in which the case was conducted on his behalf. He accepted responsibility. He acknowledged that he had repeatedly struck the deceased with a weapon. He expressed remorse to the psychologist (Exhibit 1(T), p 8). Family members, in letters to the Court, also referred to his remorse. I accept that he probably does feel remorse (s 21A(3)(i)). I have made reference to Mr Tatchell’s incarceration in Protection. I have no evidence that this has occasioned him any significant disadvantage.

92 What, then, are his prospects of rehabilitation? The Probation and Parole Service states that Mr Tatchell “is suitable for medium/high level intervention by this service, commensurate with the assessed risk” (Exhibit D, p 6). The psychological report states that there is a high probability of Substance Dependence Disorder (Exhibit 1(T), p 9), although no indication of severe personality pathology or disorder (p 10). These assessments suggest one must be guarded about his future.

93 However, he is a young man, not yet 21 years. Inevitably, I must impose a significant term of imprisonment, during which time he can be expected to mature. Balancing these matters, I assess his prospects of rehabilitation as moderate.

94 Turning finally to the subjective case presented on behalf of David Wildsmith, he was born in late January 1987. He was therefore a month short of his 21st birthday at the time of the offence. He is now a little over 23 years old. He was the oldest member of the group. He comes from a close knit family where he is the youngest of three children. He had an uneventful childhood, although he was diagnosed with Attention Deficit Hyperactivity Disorder when still at school. The drug Ritalin was prescribed. His education was limited. He left school part way through Year 9. He thereafter undertook an apprenticeship in roof tiling. Unfortunately, the owner sold the business after six months. David Wildsmith then abandoned his trade. His employment thereafter was infrequent and casual in nature. From time to time he found work as a labourer. He had been unemployed for approximately six months before the offence occurred.

95 Mr Wildsmith began consuming alcohol at the age of 16 years, binge drinking during weekends. By the age of 18, he had moderated his consumption to some extent, but was still binge drinking. He was, at the same time, experimenting with drugs, including cocaine, amphetamines and ecstasy. According to the records of the Probation and Parole Service, he also acknowledged using marijuana on a daily basis for several years, including days before the offence.

96 In 2005, he was charged with various driving offences, some more serious than others. However, on 4 February 2007, he was charged with assault. On 11 May 2007, the Court imposed a s 9 bond for a period of 12 months. That bond was current at the time of the present offence, and is a matter of aggravation. The terms of the bond required supervision from the Probation and Parole Service for so much of the 12 months as the Service believed necessary. Mr Wildsmith was obliged to accept counselling in respect of anger management, as well as drug and alcohol rehabilitation. According to the Probation and Parole report, his participation in the anger management programme was deemed unsatisfactory. This notwith-standing, supervision by the Service was terminated.

97 Mr Wildsmith was arrested on 9 January 2008. In February that year he was the victim of a serious assault in gaol, apparently perpetrated by persons of the same ethnic background as the victim, a reprisal for this offence. His shoulder was dislocated, his nose broken, his tooth chipped and his jaw fractured. He was thereafter moved to Protection where he remains. The attack constitutes extra curial punishment which should be taken into account. There was, however, no evidence that being in Protection has placed him at a disadvantage.

98 Whilst in custody, in the period between June 2008 and March 2009, Mr Wildsmith was dealt with on five occasions for misconduct. The charges against him have included intimidation and twice failing, or refusing, to supply a urine sample. On 8 July 2008, he was required to undertake a special management intensive programme to address behavioural issues. During the course of the programme he breached its requirements by using another inmate’s phone account. He was permitted to leave the programme on 16 September 2008.

99 Mr Wildsmith has undertaken a course in brick laying, which he completed. However, it is recorded in the Probation and Parole report that he was regarded as disruptive, such that he would not be considered for further courses unless he demonstrated a significant improvement in his behaviour.

100 The officer preparing the Probation and Parole report spoke to Correctional Officers involved in Mr Wildsmith’s supervision. Enquiries were made in about February 2010. He was described as previously not compliant and having stood over other inmates. The officers, however, also reported an improvement in behaviour and compliance “over the past few months”.

101 The subjective case in respect of Mr Wildsmith is therefore distinctly negative. There are some positive signs. He has family support, and his recent behaviour may signal that he is maturing. Inevitably I must impose a significant gaol term. It is perhaps likely that he will further mature in that time. Nonetheless, any prediction concerning his future rehabilitation must be guarded. The Probation and Parole Service, in its report, assessed Mr Wildsmith as “suitable for medium/high level of intervention by this service, commensurate with the assessed risk” (Exhibit E, p 5).

102 Counsel for each offender has urged me to find special circumstances. There is no question that Mr Tatchell and Mr Wildsmith each have a number of issues which they must deal with, including drugs. They will need an extended period of supervision. However, necessarily the parole period which I must fix in each case must itself be significant. I believe, in each case, the parole period will be sufficient without adjustment.

Appropriate sentences.

103 Let me turn to the appropriate sentences. Murder has always been regarded as the most serious criminal offence. That seriousness is reflected in the maximum penalty, which is life imprisonment. It is also reflected in the standard non parole period, which has been fixed at 20 years. Absent extraordinary circumstances, a conviction for murder calls for a substantial sentence to serve the interests of punishment. Such interests include denunciation and general deterrence, although, in the context of young offenders, the Court of Criminal Appeal has said this (Regina v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451): (at [458])

“In sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.”

104 The Court also observed: (at [458-9])

“Of course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in the less serious ones ... However it is, we think appropriate to look beyond the simple difference in facts, to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years ... the Courts have taken the view that, the younger the offender, the greater the weight to be afforded to the element of youth.”

105 Manslaughter is a lesser crime than murder, although still a very serious crime, involving as it does the felonious taking of another life. Again, that seriousness is reflected in the maximum penalty which is 25 years imprisonment.

106 The death of James Tautari occurred in circumstances which were shocking and brutal. Those involved may, through immaturity, have imagined that they were avenging some wrong. However they did not know the facts. They set aside the rule of law and acted as a vigilante gang. It was a cowardly attack upon a defenceless man, in which they used surprise, their weapons and their numbers to inflict serious and ultimately fatal injuries.

107 During the proceedings many members of James Tautari’s extended family have been present. In the course of the sentencing hearing, the Crown tendered Victim Impact Statements from the wife and sister of the deceased. Each statement was a poignant reminder of the continuing pain that has followed James Tautari’s brutal and senseless death. One of his children was only seven years old at the time of his death. He and his siblings have been deprived of the joy and assistance of their father. The Court extends its sympathy to members of the deceased’s extended family. I must, of course, deal with this material in a manner consistent with R v Previtera (Supreme Court of New South Wales, Hunt CJ, 27 May 1997, unreported); (1997) 94 A Crim R 76 at [85].

108 In the case of each offender, the sentences will be back dated until the day they entered custody. In respect of those offenders convicted of manslaughter, the appropriate sentence in each case is 7 years imprisonment with a non parole of 4 years. Each offender is entitled to a discount by reason of the offer to plead guilty before the trial. As I have already indicated, the offers were made at different stages each attracting a different discount, and the sentences imposed reflect these differences. The figures have been rounded.

109 AA, I sentence you to imprisonment with a non parole period of 3 years 7 months to date from 9 January 2008 and to expire on 8 August 2011, with a total sentence of 6 years 3 months to date from 9 January 2008 and to expire on 8 April 2014. You will be eligible for release to parole on 8 August 2011.

110 AC, I sentence you to imprisonment with a non parole period of 3 years to date from 8 January 2008 and to expire on 7 January 2011, with a total sentence of 5 years 3 months to date from 8 January 2008 and to expire on 7 April 2013. You will be eligible for release to parole on 7 January 2011.

111 SS, I sentence you to imprisonment with a non parole period of 3 years 4 months to date from 9 January 2008 and to expire on 8 May 2011, with a total sentence of 5 years 11 months to date from 9 January 2008 and to expire on 8 December 2013. You will be eligible for release to parole on 8 May 2011.

112 Luke Tatchell, I sentence you to imprisonment with a non parole period of 13 years 6 months to date from 8 January 2008 and to expire on 7 July 2021, with a total sentence of 18 years to date from 8 January 2008 and to expire on 7 January 2026. You will be eligible for release to parole on 7 July 2021.

, I sentence you to imprisonment with a non parole period of 12 years to date from 9 January 2008 and to expire on 8 January 2020, with a total sentence of 16 years imprisonment to date from 9 January 2008 and to expire on 8 January 2024. You will be eligible for release to parole on 8 January 2020.

**********