Director of Public Prosecutions v Holt
[2023] VSC 515
•29 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0165
| DIRECTOR OF PROSECUTIONS | Crown |
| v | |
| JAMIE HOLT | Accused |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 11 April, 25 August 2023 |
DATE OF SENTENCE: | 29 August 2023 |
CASE MAY BE CITED AS: | DPP v Holt (Sentence) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 515 |
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CRIMINAL LAW – Sentence -Murder – Jury verdict – Joint trial – Principal offender stabbed victim three times with knife – Accused and another co-offender intentionally assisted and encouraged principal offender – Accused struck victim with bottle and restrained victim while being stabbed – Serious instance of offence – Accused having substantial criminal record -Moral culpability reduced by effects of abusive and dysfunctional upbringing – Effects of Post Traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder – Difficult circumstances of accused in custody – Parity.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Glynn and Ms D Manova | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused Holt | Mr R Backwell | Ann Valos Criminal Law |
HIS HONOUR:
Jamie Holt, you, together with Benjamin McCartin and Candice Harper, have been found guilty, by the jury empanelled on your trial, of the murder of Ricky Rowlands on 10 October 2020. I have already heard pleas on behalf of McCartin and Harper, and I have sentenced them. It was necessary to adjourn your plea, part heard, in order that a neuropsychological assessment could be conducted to ascertain whether you have suffered any deficit as a result of an injury that you sustained following the incident in which Ricky Rowlands was murdered. That assessment has now been undertaken, and I am in a position to sentence you.
The incident, in which Rowlands was killed, occurred near the intersection of King Street and Bourke Street, Melbourne shortly after 9:30 pm on 10 October, in the course of an assault by McCartin, Harper and you on Rowlands. In that assault, McCartin stabbed Rowlands three times with a knife, once in the lower back, once in the abdomen and once in the chest. As a result of those wounds, and a head injury that he sustained when he fell in the course of the assault, Rowlands died later that evening in the Royal Melbourne Hospital. At the time at which Rowlands was stabbed, you Jamie Holt, and Candice Harper were each assisting and encouraging McCartin to assault and stab Rowlands.
At the trial, the principal issue raised on behalf of you, Jamie Holt, was whether the prosecution had proven, beyond reasonable doubt, that, at the time at which you assisted and encouraged McCartin to stab Rowlands, you intended that McCartin would kill Rowlands or cause him really serious injury.
By its verdict, the jury was satisfied, beyond reasonable doubt, that you intentionally assisted and encouraged McCartin to stab Rowlands with a knife, and that in doing so, you knew that McCartin intended to kill Rowlands or cause him really serious injury, and that you knew that McCartin was not acting in defence of himself or another person or other persons from a threat of death or really serious injury.
At the time of the incident, you, and Benjamin McCartin and Candice Harper, were residing in the Ibis Hotel, which is located on the west side of King Street a short distance south of the intersection of Bourke Street. At that time, the hotel was providing accommodation to people such as yourself who were otherwise homeless, and who needed appropriate accommodation during the COVID-19 pandemic. You were then living with Candice Harper at the hotel as your partner. Harper was the former partner of Ricky Rowlands, by whom she had a daughter, Shanay Rowlands, who was then sixteen years of age.
At that time, Shanay was living with Ricky Rowlands in Princes Hill. At the trial, she gave evidence as to some relevant background circumstances, and also as to some events that occurred on the evening of the incident shortly before Ricky Rowlands was stabbed and killed. In her evidence, Shanay said that about four years previously, Rowlands had suffered a head injury, following which his behaviour had changed. He was given to becoming intoxicated, and, in that state, leaving home and ‘hanging out’ in the central business district, where he would start fights with other people. As a result, Shanay had been summoned to attend at various locations in order to try to persuade her father to return home, so as to keep him out of trouble. Shanay said that sometimes her father would go to the Ibis Hotel, where he would interact with Candice Harper. On some of those occasions, an argument would occur, and there would be some physical interaction between them, with Harper and Rowlands pushing and shoving each other.
On 10 October 2020, Ricky Rowlands attended outside the Ibis Hotel some time before 8:00 pm. It is clear from the evidence, including CCTV footage, that he was then affected by alcohol, and he was acting in an aggressive and provocative manner. At about 7:57 pm, McCartin and you were also outside the hotel. As you were both about to re-enter the hotel, Rowlands commenced to have an altercation with McCartin. In the course of that altercation, Rowlands placed McCartin in a headlock, and threw him onto a parked car. McCartin and you then went back inside the Ibis Hotel.
After re-entering the hotel, you and McCartin then went to the room occupied by Candice Harper. Very shortly after you arrived there, Harper made a number of attempts to telephone Shanay. At 8:39 pm, she managed to make contact with her. In the course of the telephone call, she told Shanay that her father was intoxicated and causing trouble, and that he was going to end up getting himself bashed. Shanay told Harper that she would come to the Ibis Hotel to speak to Rowlands and take him home.
In the meantime, Rowlands had remained in the vicinity of the hotel. He was observed to walk up and down the footpath of King Street on a number of occasions. At one stage, he approached Samir Chmait, the security guard at the door of the hotel, and attempted to gain access to it, but he was refused entry. It is clear that his conduct at the time was aggressive. He asked Chmait, who was a very tall, well-built man, whether he wanted to have an altercation with him. He told Chmait that he wanted to bash each of the three of you.
In the meantime, Shanay Rowlands had set out to attend at the Ibis Hotel. When she had not arrived there, Candice Harper telephoned her to find out when she would arrive at the hotel. In her evidence, Shanay said that at that point, Harper sounded quite frustrated and panicked.
At about 9:30 pm, you, with McCartin and Harper, came out of Harper’s room on the third floor of the hotel. While you were making your way down to the entry lobby, McCartin and you met up with Dale Miller. Miller had attended outside the hotel earlier that evening with his partner Jacinda Brown in order to try to purchase heroin.
You and McCartin, Harper and Miller then descended to the foyer area of the hotel. Harper went outside and sat on the stairs in front of it. She was then on the telephone speaking to Shanay.
Dale Miller then proceeded outside, followed by you and McCartin. At about 9:33 pm, you and Harper joined Miller and Brown in a group close to the entrance to the Ibis Hotel. Shortly after that, McCartin also joined the group. Miller then backed up to Candice Harper, and showed her a knife that he had in the back of his trousers. He then extracted it and showed it to the rest of the group.
Harper then left the group and started to walk north up King Street towards Rowlands. She walked up and down the street on a couple of occasions. Rowlands at that time was approaching the group from the direction of Bourke Street. I am satisfied, on the balance of probabilities, that Harper, at that time, went to meet Rowlands in order to try to persuade him to leave, and not to engage in any further violent altercation with her friends. As Harper approached him, Rowlands started to make his way around her. As he did so, you took possession of the knife that Miller and Brown had with them, and you and McCartin then made off together at a fast pace towards Rowlands.
You both then physically confronted Rowlands. McCartin started to push Rowlands backwards across King Street, while you brandished the knife at him. At first you were quite close to Rowlands, but you did not attempt to stab him. As McCartin pushed Rowlands across the lanes of King Street, you and Harper followed him. You were continuing to brandish your knife at him. By then, you were about one lane’s width from him. Ultimately, when McCartin had forced Rowlands out onto the far lane of the north-facing traffic, that phase of the altercation temporarily came to an end, when it was interrupted by motor vehicles that were trying to drive past. The three of you and Rowlands ceased to engage with each other, and you and McCartin walked back towards the footpath. As you did so, Harper further verbally engaged with Rowlands. Although on the CCTV footage, her demeanour looked quite heated, I am satisfied that she was still endeavouring to persuade him to leave and not engage in further aggressive conduct.
You and McCartin then made your way back towards the Ibis Hotel. You were followed by Rowlands some distance behind. As Rowlands followed the two of you, Harper then ran up from behind him to intervene. In response, Rowlands grabbed hold of the neck of her jumper and slung her out onto the roadway. She stumbled, but did not fall.
At that point, you and McCartin saw what had just occurred. McCartin took from you the knife that you had been holding. The two of you then made your way towards Rowlands. Harper was already advancing toward him, and he was backing away from her. Then McCartin intervened approaching Rowlands with the knife in his hand. At that point, you and Harper were attempting to grapple with Rowlands, and, in doing so, you attempted to punch him. As Rowlands backed further onto King Street, McCartin purposefully took about ten half steps towards him, while holding the knife by his waist in his right hand. It is quite clear that, at that point, McCartin was lining Rowlands up in order to stab him. As he did so, Rowlands backed away from him, with his hands raised defensively. At one point, you had stumbled to one side, but you quickly regained your balance, and you and Harper also shuffled alongside Rowlands, as McCartin lined him up with the knife. As the three of you and Rowlands reached the intersection with Bourke Street, you threw a bottle at him, striking him on the head, and causing him to fall onto the ground. As he did so, McCartin stabbed him with the knife. Rowlands then regained his feet, and the three of you advanced onto him, forcing him back onto the ground.
You and Harper then wrestled Rowlands as he was on the ground, holding him down, while McCartin stabbed him twice more with the knife. McCartin then walked away, followed by you. Harper remained, initially because Rowlands held onto her jumper, and took a swing at her. Rowlands was then standing, but he was bleeding profusely from the waist area. He then fell backwards and released his grip on her. Harper then stood over him and spoke at him for the next sixty seconds or so, berating him in angry terms.
Following the incident, the police and ambulance were summoned. Rowlands was conveyed to the Royal Melbourne Hospital where he underwent an emergency operation in respect of the stab wounds that he had sustained, as well as a skull fracture and a subdural haematoma he had sustained as a result of falling forcefully to the ground after he had been stabbed. Despite being resuscitated, he was deemed to have unsurvivable injuries, and he passed away at 6:00 am on 11 October.
In the meantime, you had returned to the hotel. You entered the room that you and Harper shared, and, a few minutes later, you exited that room, wearing different clothing. As you walked around the hotel, the CCTV footage depicts you deliberately avoiding police on a number of occasions. Subsequently, at about 1:40 am, you jumped over a waist-high wire mesh at a fire escape on the fifth floor of the hotel, and landed five floors down, on the ground floor. As a result, you suffered significant injuries to your skull, back, neck, and lungs. After you were eventually discovered, you were conveyed to hospital with injuries that were then life-threatening. You were placed under arrest while you were in hospital. Subsequently, after you were discharged from hospital, you were transferred to prison.
As I have discussed, by its verdict, the jury was satisfied, beyond reasonable doubt, that when McCartin stabbed Rowlands, he intended to kill him or to cause him really serious injury. Further, by its verdicts, the jury was satisfied beyond reasonable doubt, in respect of each of you and Harper, that you intentionally assisted and encouraged McCartin to stab Rowlands with the knife, and in doing so, you each knew that McCartin intended to kill Rowlands or to cause him really serious injury. For the purpose of sentencing you, it is necessary to reach a conclusion as to the time at which you formed the relevant intention that Rowlands be killed, or suffer really serious injury.
I am satisfied that you did not have such an intention either before or during the first phase of the incident, that is, the part of the incident in which you took possession of the knife from Miller and Brown, and then the three of you forced Rowlands onto the roadway, where the altercation came temporarily to an end when interrupted by the traffic. At that point, you had possession of the knife. As I have stated, at one point, you came quite close to Rowlands, but while you brandished it at him, you did not attempt to stab him. In the remainder of this phase of the incident, you remained about one lane width away from Rowlands, brandishing the knife, as if to deter him or frighten him away.
Further, after you had seen your partner, Harper, slung by Rowlands and when you allowed McCartin to take the knife from you, I could not conclude beyond reasonable doubt that you then intended that McCartin use it to stab and kill Rowlands, or to cause him really serious injury. However, consistent with the verdict of the jury, I am satisfied, beyond reasonable doubt, that you had formed that intention, at the latest, when McCartin lined up Rowlands with the knife, and shuffled toward him. At the same time you shuffled alongside Rowlands, attempted to punch him and you then struck him on the head with the bottle. You then helped to hold him down, preparatory to McCartin stabbing him with the knife. Thus, you are to be sentenced on the basis that, at and from the time at which McCartin lined Rowlands up with the knife, you intentionally assisted and encouraged him to stab Rowlands, with the intention that he kill Rowlands or cause him really serious injury.
You have been convicted of murder, which is the most serious criminal offence in our justice system. The maximum sentence for murder is life imprisonment, reflecting the fundamental seriousness of that offence, and the value which our society rightly places on each human life. There were a number of serious factors attaching to your offending. It involved an attack by you, with your two colleagues, on an unarmed person, with McCartin armed with a knife. McCartin’s use of the knife, and the fact that he carried the knife in confronting Rowlands, was entirely unnecessary. It was quite clear, from the first phase of the incident, that McCartin had been able to physically get the better of Rowlands. There was no need for him to carry the knife, let alone to stab Rowlands three times with it.
On the plea, it was submitted on your behalf that I should conclude that your intention was to cause Rowlands really serious injury, but not to kill him. As the Court of Appeal has noted, the distinction, between an intention to kill and an intention to cause really serious injury, is, at the most, a very fine one. In the present case, which involved three forceful stab wounds inflicted to the upper body, there is, in my view, no relevant difference between an intention to kill and an intention to cause really serious injury. For the purpose of sentencing, each such intention is equally culpable.
At the time of his death, Ricky Rowlands was 46 years of age. I have read, and re-read, the victim impact statements of Ricky Rowlands’ daughter Shanay Rowlands, his son Trae Rowlands, his sisters Tracey Rowlands and Angela Rowlands, his brother Matthew Osbourne, and his partner, Bethany Micaleff. Four of those statements were read aloud in court in the course of the plea. While Ricky Rowlands was the principal victim of your crime, nevertheless it is clear that those members of his family, and others, are also real victims of it. Ricky Rowlands was a much loved and valued father, brother and partner.
The victim impact statements are relevant because they are a salutary reminder of the extent and depth of the grief and suffering that have been, and will continue to be, the inevitable consequence of the offence which you committed. While your sentence is to be based on a rational analysis of the facts of the case, and the application of relevant sentencing principles, it is important to keep in mind the grave effects of the crime that you have committed, and the profound and enduring sorrow and pain that has been, and will continue to be, a direct consequence of it.
You have a long and most substantial criminal history. It commenced, at the age of 18 years, with an appearance before the Warrnambool Magistrates’ Court in July 1995. During the following 28 years, you have come before the courts on numerous occasions on a number of charges, which included for offences of violence, robbery, burglary and offences of dishonesty. As a result, you have spent a substantial part of the last 25 years serving terms of imprisonment. Those court appearances include (but are not limited to) the following.
In July 1996, you were sentenced by the Warrnambool County Court to 12 months’ imprisonment, to be served by way of intensive correction order, on one charge of intentionally causing serious injury. Subsequently, in September 1997, you came before the Melbourne County Court, having breached the intensive correction order. The order was cancelled, and you were sentenced to serve the unexpired portion of 123 days’ imprisonment.
Following that, between June 2000 and June 2003, you came before the courts on three separate occasions, on each of which you were sentenced to various terms of imprisonment, the longest of which was five months, on charges that included resist police, possession of a controlled weapon without an excuse, and burglary.
In January 2005, you were sentenced by the Melbourne County Court to 3 years’ imprisonment with a non-parole period of 18 months on one charge of armed robbery. Three months later, you again came before the Melbourne County Court on charges of recklessly causing injury and behaving in an offensive manner in a public place, for which you were sentenced to 18 months’ imprisonment, 12 months of which was to be served concurrently with the sentence imposed for the charge of armed robbery.
Subsequently, in December 2009, you were sentenced by the Melbourne County Court, on charges that included robbery and attempted armed robbery, to a total effective sentence of 4 years and 6 months’ imprisonment, with a non-parole period of 3 years. In the same month, you were also before the Melbourne Magistrates’ Court on a number of charges that included assault police, assault with a weapon, going equipped to steal, and dealing with property the suspected proceeds of crime. You were sentenced to further period of 4 months’ imprisonment to be served concurrently with the sentence you were then undergoing.
Subsequently, between August 2010 and August 2016, you came before the courts on four further separate occasions on charges that included recklessly causing injury, assaulting an emergency worker on duty, intentionally causing injury and burglary. On each occasion, you were sentenced to a term of imprisonment, the longest of which was a sentence of eight months’ imprisonment imposed by the Sunshine Magistrates’ Court in August 2016.
In February 2018, you came before the Melbourne Magistrates’ Court on charges that included robbery, and dishonestly undertaking in the retention of stolen goods. You were sentenced to a term of 15 months’ imprisonment, to be served by way of a drug treatment order. Subsequently, in November 2019, you were before the Melbourne Magistrates’ Court for breach of the drug treatment order. That order was cancelled and you were sentenced to serve the unexpired portion of 232 days’ imprisonment. On the same date, you were sentenced to a term of 200 days’ imprisonment on a number of charges of dishonesty and also road traffic charges, including driving a motor vehicle while you were impaired by a drug.
That, then, is an abbreviated summary of your substantial criminal history. You are not to be punished again for any of the previous offences committed by you. However, your previous convictions are relevant particularly to the principle of specific deterrence. I now turn to matters personal to you that are relevant to the determination of your sentence.
You were born in October 1977, and are now 45 years of age. As a young child, you were exposed to domestic violence between your parents. Your parents separated when you were eight years of age. Following their separation, you and your twin brother resided with your father for about two years until your father was sentenced to a lengthy term of imprisonment. You then had to live with your mother and her boyfriend. During that time, both your mother and her boyfriend were physically violent towards you, and they would beat you with a cricket bat and punch you. Your mother’s boyfriend was particularly violent when he was intoxicated. When you knew that he was drinking, you would stay away from home and live on the streets, usually at Flinders Street station. On one occasion, you were hospitalised due to injuries you sustained as a result of a beating by him.
You were placed in State care from about the age of 10 years, and then in Turana from the age of 16 years. You were sexually abused by staff and other older boys while you were in institutional care between the ages of 10 and 15 years. It would appear that you were in youth detention on some occasions from about the age of 17 years, and as I have noted, you were first sentenced to a term of imprisonment at the age of 18 years.
During your childhood and early teenage years, you attended about 10 to 15 schools. Although you ultimately completed your education at Year 9, at that time you were still illiterate. In fact, you learned to read and write when you were subsequently serving a term of imprisonment in Pentridge. After you left school, you worked in a number of different jobs, including wood chopping, and picking and packing for Australia Post. However, you have not worked since the age of about 17 years, and since then, you have been the recipient of a Centrelink Newstart allowance.
You have had a number of relationships over the years. When you were 19 years of age, you were in a relationship which lasted for some six months. Your partner had a son by you, and he is now 26 years of age. You then commenced another relationship, which lasted for some eight years. You and your partner had two daughters, who are now aged 23 and 21 years old respectively. Your partner left you because of your persistent drug use, and because you were in and out of custody. In recent years, you have reconnected with your daughters. Your next relationship was with a woman named Caroline, and that lasted some six years. She died of an overdose of drugs during one period in which you were serving a term of imprisonment.
You then commenced a relationship with Candice Harper in 2011. Since you have been remanded in custody for the current offence, you have maintained telephone contact with her, but she and you do not regard yourselves as being in a relationship any further.
You have a long history of polysubstance abuse, including cannabis, heroin and alcohol. You commenced using cannabis at the age of 13 years, alcohol at the age of 15 years, and amphetamine at the age of 16 years. Subsequently, you were introduced to heroin while you were serving a term of imprisonment, and you developed an addiction to that drug from the age of 19 years. Over those years, you regularly injected heroin, using up to one gram each day. You have been on the methadone program since your arrest. Currently, you are medicated with 85 millilitres of methadone, and previously your dosage has been some 145 millilitres. On the day of the offending, you had used synthetic marijuana, and heroin, as well as taking Seroquel. You also had consumed some six to eight cans of alcohol.
As I have mentioned, shortly after Rowlands was stabbed, and you returned to the Ibis Hotel, you either fell or jumped from the fifth floor of the hotel. As a consequence, you fractured your thoracic vertebrae at some four levels and your lumbar vertebrae at two levels, and you suffered fractures of the skull, ribs, sternum and humerus. In addition, you sustained a traumatic subarachnoid haemorrhage and multiple inter-cerebral and cerebellar haematomas, and you suffered crushed lungs. As a result of your fall, you have no recollection of the circumstances of the offending, and it would appear that you have suffered problems with your short-term memory. You were an inpatient at the Royal Melbourne Hospital for some thirty days.
For the purposes of the plea, you were examined by Ms Alison Mynard, a clinical psychologist, in March of this year, and Ms Laura Scott, a neuropsychologist, in July. Copies of their reports were tendered on your plea.
Ms Mynard concluded that you have a number of mental health issues. In particular, she diagnosed you to suffer from a complex post-traumatic stress disorder, major depressive disorder, a generalised anxiety disorder, and drug-induced psychosis. She considered that, at the time of the offending, having abused illicit substances, you were floridly psychotic and had delusions. As a consequence, she expressed the view that your judgment was highly impaired and your ability to reason and use sound thinking processes was limited. She also considered that your post-traumatic stress disorder played a role in your actions. Ms Mynard considered that your symptoms were particularly severe at the time of the offending due to your psychosis and drug intoxication.
I interpolate that, quite correctly, your counsel, Mr Backwell, did not rely on the diagnosis of psychosis by way of mitigating your personal responsibility (moral culpability) for the offending. First, it is not evident, from your actions, that you were in any form of psychotic state at the time. Secondly, and in any event, to the extent to which any psychosis played some role in your offending, it was drug-induced. In view of your history, in which you had regularly abused drugs and, as a result, suffered episodes of psychosis, any psychosis, which may have affected you at the time at which you participated in the murder of Ricky Rowlands, does not constitute a specific mitigating circumstance.
Ms Scott, in her report, also noted that you have previously been diagnosed to have post-traumatic stress disorder and, in addition, you have a childhood history of attention deficit hyperactivity disorder (‘ADHD’). She expressed the view that your symptoms of post-traumatic stress disorder and ADHD would have made you more vulnerable to over-reaction in response to relatively minor threats, and that they would have reduced your capacity to stop and think in the moment, and to contemplate the future consequences of your actions.
I accept that those psychological conditions do, to a limited extent, reduce your subjective culpability for your offending. In that regard, your dysfunctional and abusive upbringing, which was the context in which you developed your drug addiction, is also relevant to an overall assessment of your responsibility for the murder of Ricky Rowlands. In view of your upbringing, the difficult circumstances of your early years, and the effects that that had on your psychological wellbeing and your lifestyle, your conduct at the time of the offence could not be judged in the same way as the conduct of someone who has not been through and endured the difficult circumstances of your early life. To that extent, your moral culpability is reduced.
Three matters were referred to on your plea, which are relevant to the circumstances in which you will serve the term of imprisonment which I am to impose on you. The first issue concerned the injuries that you sustained as a consequence of your fall when you were seeking to escape from the Ibis Hotel after the incident in question.
Ms Scott conducted a detailed series of tests in order to determine whether, as a consequence of your fall, you have sustained an acquired brain injury. As a result of that testing, she concluded that you sustained some moderate to severe impairments in your higher attentional abilities, and in aspects of your memory function, with some other mild impairments, which include to your capacity to process information at an appropriate speed. Otherwise, your cognitive function is intact, including your working memory, your verbal and visual skills, your intellectual abilities, and most aspects of your executive functioning. Ms Scott considers that, as a combined result of your acquired brain injury, your post-traumatic stress disorder and your ADHD, you are likely to experience some significant functional impairments in your daily life, which, I accept, may make your time in prison more difficult. Ms Scott has also expressed the view that your symptoms of post-traumatic stress disorder would be vulnerable to further deterioration as a result of an extended period of incarceration.
The second matter, that relates to your circumstances in prison, concerns a serious health problem that you suffered earlier this year. On 18 April, you were admitted to St Vincent’s Hospital, suffering from nausea, diarrhoea, lethargy and a dramatic loss of weight. You were diagnosed to suffer an acute ulcerative colitis. Your condition was initially managed on medication, but it did not improve. As a consequence, on 3 May, you underwent surgery, which, in effect, removed most of your bowel and created a stoma, requiring the use of a colostomy bag. As correctly accepted on behalf of the prosecution, that circumstance is likely to increase the burden of a term of imprisonment on you.
In determining your sentence, I also take into account, as a mitigating circumstance, the onerous conditions of incarceration which applied after your arrest as a result of steps that were taken by the authorities to prevent the spread of the COVID-19 virus within the prison population. As a consequence, some of the time that you have spent in custody, since your arrest, was more burdensome for you. While those restrictions have been removed, I do take into account that it is possible that during the ensuing years, some of them may be required to be re-implemented, in order to protect the prison population, with the result that your circumstances in custody will again become more burdensome.
Those, then, are the matters that are personal to you. In summary, as I have discussed, the offence committed by you was most serious, involving the intentional taking of the life of another person. In addition, there were some serious aspects to it. On the other hand, I also take into account that the offending by you was not premeditated, and that you formed the intention to kill or cause really serious injury to Rowlands only shortly before McCartin stabbed him. The offending occurred in dynamic circumstances, which involved aggressive and provocative conduct on the part of Ricky Rowlands, and in which Candice Harper had sought to defuse the situation by contacting her daughter, Shanay, and also by trying to verbally persuade Rowlands to depart. Further, your offending occurred, after the first phase of the incident, in which McCartin, Harper and yourself had tried to physically confront Rowlands with the intention of persuading him to leave the area.
In sentencing you, I also take into account the personal matters that I have discussed as mitigating circumstances. They are relevant, and it is necessary to accord them appropriate weight.
The principles, which apply to the determination of your sentence, are well established. It is necessary that the sentence be sufficient to adequately express the condemnation by the Court, and by the community, of your offending, and to vindicate the value of the life of each member of our community. In addition, the sentence must be sufficiently severe to serve as a general deterrent to others, by constituting a clear message to any person, who might be minded to engage in such violence against another person, that that conduct will be met with a stern sentence, involving the deprivation of the offender’s right to be at liberty in society for a substantial period of time. In addition, it is important that the sentence, that I impose on you, is sufficient to ensure that you learn that any further acts of violence of the kind in which you engaged in this case, will be met with severe consequences.
As the offence was committed after February 2018, I take into account that the standard sentence prescribed by the Sentencing Act for murder is 25 years’ imprisonment. Pursuant to the Act, that period is described as a sentence for an offence of murder that, taking into account only the objective factors, is in the middle range of seriousness. As the Court of Appeal has noted, the standard sentence is only one factor to be taken into account in determining your sentence, and it is to be treated as a legislative guidepost.
In addition, in determining the sentence that I am to impose on you, I have had regard to current sentencing practices. In that respect, I have been assisted by sentencing decisions since the commencement of the standard sentencing system to which both the prosecution, and counsel for McCartin, have referred me. In considering those decisions, I bear in mind that no two cases are alike, either in terms of the nature of the offending, or in respect of the various mitigating circumstances that may be relevant to the particular offender. Nevertheless, the decisions, to which I have been referred, do, in a broad sense, assist to indicate the current sentencing practices that are relevant in respect of the offence committed by you. As the High Court has emphasised, current sentencing practices are but one factor out of many which are relevant to the determination of your sentence.
In determining the term of imprisonment to which you are to be sentenced, it is necessary to give appropriate effect to the principle of parity of sentencing. In that respect, it is apparent that the role played by Benjamin McCartin was more serious and more substantial than that played by you. It was McCartin who took the lead in attacking Ricky Rowlands with the knife. While both you and Candice Harper were encouraging him to do so, nevertheless it was McCartin who, with knife in hand, advanced on Rowlands, lined him up, and then stabbed him with the knife. Again, while Harper and you were assisting to grapple with and take hold of Rowlands, it was McCartin who decided to again twice more stab him with the knife. In those circumstances, his offending was, both from an objective and a subjective point of view, more serious and substantial than that of yourself and of Candice Harper.
On the other hand, as I have set out in some detail, you have a very substantial criminal record, involving a number of terms of imprisonment, and, in particular, consisting of offences that were sufficiently serious to bring you before the County Court. McCartin also has a lengthy criminal record, but all of his offending was dealt with in the Magistrates’ Courts, and was, generally, of a less serious nature than your previous offending. In respect of your past history, as I have discussed, your dysfunctional and disadvantaged upbringing is relevant to an assessment, both as to the circumstances in which you became engaged in drug abuse and previous offending, and also, in the way I have discussed, in assessing the level of your culpability for the offending in the present case.
In respect of the question of parity between yourself and Candice Harper, you were more physically aggressive than Harper in the final phase of the incident; in particular, by attempting to punch Rowlands as he was backing away from McCartin, and then, by striking him on the head with a bottle immediately before McCartin first stabbed him. Further, you have a more substantial criminal record than Harper. Each of Harper’s previous matters have been dealt with in the Magistrates’ Court, and she has not previously been sentenced to a term of imprisonment. Further, since the offending, Harper has developed a genuine insight into the issues that led to her involvement in the murder of Rowlands, and, in particular, into the nature and deleterious effect of her drug abusing. She has taken very positive and constructive steps to address those issues, and her prospects of rehabilitation are, in my view, more positive than your prospects.
Taking those matters into account, I sentence you as follows.
For the murder of Ricky Rowlands, I sentence you to 20 years’ imprisonment. I fix a minimum non-parole period of 14 years and 6 months. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 1052 days (not including today’s date) be reckoned as served under this sentence, and I shall cause a declaration to that effect to be noted in the records of the Court.
As required by s 5B(5) of the Sentencing Act, I note that the sentence that I impose on you is less than the standard sentence. I have imposed that sentence, having regard to the standard sentence specified for the offence of murder, and based on my assessment of the seriousness of your offending, my assessment of your subjective culpability for the offending, your past criminal history, and the mitigating circumstances that I have outlined.
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