Director of Public Prosecutions v O'Connor

[2018] VCC 1897

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01491

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARRY RAYMOND O'CONNOR

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2018
DATE OF SENTENCE:	31 October 2018
CASE MAY BE CITED AS:	DPP v O'Connor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1897

REASONS FOR SENTENCE
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Subject:  

Catchwords:             One charge of culpable driving – defendant rode motorcycle whilst intoxicated at speed in excess of limit and in circumstances of inexperience carrying a pillion passenger – early remorseful plea of guilty and excellent prospects of rehabilitation – some unusual aspects including recent death of defendant’s wife prior to date of offending causing defendant to self-medicate with alcohol – unresolved grief, anxiety and depression, severe guilt over causing death, symptoms of PTSD and concern over leaving children who had recently lost their mother without his care and support – some extra curial punishment by way of physical injuries, which prevent defendant from working – some mercy warranted for sake defendant’s children – total effective sentence 7 years and 9 months with non-parole period of 4 years and 9 months.

Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr K Doyle	Solicitor for the Director of Public Prosecutions
For the Accused	Mr M Dempsey	Tony Hargreaves & Partners

HER HONOUR:

1       Garry Raymond O’Connor, you have pleaded guilty to one charge of culpable driving causing death, which carries a maximum penalty of 20 years’ imprisonment.

2       The circumstances of your offending are outlined in the Summary of Prosecution Opening (Exhibit A). 

3       On Saturday, 17 December 2017 you and three companions, Shaun Biggs, Malcome Allen and Darren Edwards, played golf together at Whittlesea Golf Club.  You commenced playing shortly after 12.30pm and completed the game at 5.00pm.  You conceded that you had consumed a six-pack of beer whilst playing the round of golf.  The four of you then remained at the clubhouse drinking alcohol until shortly after 8.00pm.  During the time at the clubhouse, you apparently consumed five full strength Corona beers.  Whilst speaking with your companions, you became emotional whilst discussing your wife, who had died very suddenly less than three months earlier, as you showed pictures of her and your family on your mobile phone.  You also mentioned that some three weeks previously you had purchased a Harley Davidson motorcycle, which you had ridden to the golf course that day.

4       Mr Allen and Mr Edwards, who appear to have drunk less alcohol than yourself, tried to encourage you not to ride the motorcycle from the golf club.  In particular, Mr Allen made an offer that you stay at his house nearby and it would be possible to collect your motorcycle the next morning.  The offer was apparently made a number of times, but you indicated that you would ride your motorcycle. 

5       At approximately 8.11pm, the four of you left the clubhouse and yourself and Mr Biggs can be seen on CCTV footage (Exhibit “D”) getting ready to travel on the motorcycle together.  Mr Edwards and Mr Allen, who were leaving in a motor vehicle, pulled up near the motorcycle and, again, urged you not to ride the motorcycle home, and pointed out that there was only one helmet between the two of you.  Yourself and Mr Biggs assured them that you would be fine, so the others left. 

6       The CCTV footage shows you to be somewhat affected by alcohol, in terms of your coordination and, in particular, you seem to take a long time to clip the motorcycle helmet onto your head, after first having offered it to Mr Biggs, who appears to have declined it.  Mr Biggs appears to be holding a can of Jack Daniels as he sits onto the back of the motorcycle.  The CCTV footage depicts a slightly wobbly departure on the motorcycle, as the two of you leave the golf club. 

7       After leaving the golf course, you travelled west on Humevale Road, which becomes very windy after a short time.  You failed to negotiate a left hand curve in the road and the motorcycle fell on its side and slid across the bitumen surface and off the road, before colliding with a letterbox and flipping.  Mr Biggs came off the motorcycle and came to rest near the letterbox.  You continued along with the motorcycle and came free of it before its final resting place, which photographs show to be partway through a post and wire fence.  The fence was on the grass verge on the opposite side of the road to that upon which you had been travelling.

8       Mr Biggs suffered grave abdominal injuries and was airlifted to the Alfred Hospital, where he was found to have suffered an intraperitoneal bleed.  He was resuscitated, but died soon after from multiple injuries sustained in the motorcycle incident. 

9       At the time of the incident the road was dry, the sun was setting, and visibility was still good.  An examination of the collision scene was conducted by expert police reconstructionist, Dr Jenelle Mehegan.  She noted that the relevant speed limit was 60 kilometres per hour and estimated that you had been travelling at a minimum of 80 kilometres per hour when you failed to negotiate the left hand curve.  She noted that you tried to steer late, causing the vehicle to fall to its left side and, when it began to slide, it was already on the incorrect side of the road.  She stated that the reason you failed to take the curve is not known, as it can be ridden at a 115 kilometres per hour or more without risk of sliding out due to excessive speed.  No mechanical fault was found with the motorcycle.

10      The Crown case was that, although you were travelling at a speed in excess of the permissible limit, you failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in the circumstances.  This was because you were so intoxicated as to be incapable of having proper control of the motorcycle and, also, because you lacked the requisite experience in riding the motorcycle, particularly with a pillion passenger on it.  In addition, you failed to ensure that your pillion passenger wore appropriate head protection.

11      You are presently aged 56, having been born on 1 September 1962.  You come before the court with only one prior court appearance.  This was at Horsham Magistrates’ Court over 23 years ago.  This was for an offence of driving with in excess of the prescribed concentration of alcohol in your blood (.139 per cent) on 15 May 1995.  You were fined $400 and all licences were cancelled, and you were disqualified from obtaining a licence for 13 months.  Except for demerit points for relatively minor speeding offences, none of which have accumulated to result in a suspension of your licence, you have no other prior or subsequent criminal matters.  Your counsel, Mr Dempsey, stated that you had been the holder of a licence to drive for approximately 40 years. 

12      In a plea on your behalf, Mr Dempsey stated that you should be given credit for pleading guilty to this offence at an early stage, and not putting the family of Mr Biggs through a contested committal.  He invited the court to accept your plea as a remorseful one, as indicated not only by the plea of guilty, itself, but by the fact that you had taken steps to put your life in order and accepted your fate by requesting that your bail be revoked on 31 August 2018, so that you could commence your sentence, which you did as from that date.  In addition, you have been at pains to try to apologise to Mr Biggs’ family, although you have expressed that you understand that they may not be ready to deal with any apology yet.

13      Tendered as Exhibit “3” was a handwritten letter from you to the Biggs family, asking for forgiveness and stating that you go to sleep each night and wake up each morning wishing that you could change the decision that you made to get on your motorcycle that night.  You acknowledge what they are going through because you say that you have seen your own family go through such a hard time following the death of your wife and your children’s mother, just three months before this offending.  You also refer to the stupidity of your behaviour on that night, which has resulted in your children now not having their father there for them, after having lost their mother.

14      A report from Mr Patrick Newton, clinical and forensic psychologist, dated 1 October 2018 was tendered as Exhibit “1” on the plea.  He had assessed you at his rooms on 1 August 2018 and conducted a follow-up consultation on 1 October 2018 via video link once you had surrendered yourself into custody.  He noted that you were the youngest of five children and that you had grown up in South Australia, where your father worked for a rural supplies company.  Your father was a heavy drinker and you were regularly exposed to him being drunk at home and aggressive towards your mother.  They ultimately separated when you were in early secondary school, and you had no counselling in relation to this.  You ceased school at the end of Year 11, as you were more oriented towards manual work than academic studies.  Since leaving school, you apparently have an excellent work history in physically demanding semi-skilled or unskilled positions, including labourer, abattoir worker, farm hand and sheet metal worker. 

15      Mr Newton noted that you were initially married at age 21, and that marriage last 10 years.  You have a daughter, Cassandra, from that marriage, who is now aged 33 and has two children.  You are close to Cassandra and visit her and her children regularly in South Australia. 

16      You married again in 1995.  This was to Mandy, who was to be your wife for 22 years and by whom you have four children: Zoe (22), Kayla (20), and twins, Braydon and Tyler (18).  You had been living in Whittlesea with your three younger children and your wife.  Not quite three months prior to the date of your offending, your wife died suddenly and shockingly at home from a ruptured brain aneurysm.  You told Mr Newton that you had tried to stay strong for your children after this shocking loss, but your consumption of alcohol increased significantly.  It seems that you used alcohol as a means of assuaging your distress, having previously been a moderate social drinker. 

17      Following the death of your much-loved wife, you would drink when you felt lonely or sad or wistful, or to help you relax and sleep, or also to help you talk socially with others.   You described to Mr Newton feeling very angry with yourself knowing that you had drunk alcohol when you had your motorcycle at the golf club, and described the consequences as appalling. 

18      Following the offending, your general practitioner referred you to a psychologist for counselling, and you stated that this had been helpful for you.

19      You told Mr Newton that you had no memory of the collision, itself, and I here note that you received significant injuries to which I will later refer.  You told him that you were devastated that you heard that Mr Biggs had died.  You told him, “I’ve only just gone through severe grief so I know how hard it is, and I keep thinking about his family, his kids and how they must be feeling. It’s on my mind every day and if I could go back in time and swap places with him, I would.” 

20      Mr Newton assessed you as being burdened by a strong sense of guilt.  He considered that you accept responsibility for the collision and the distress that you feel having caused the death of Mr Biggs has interacted with your own unresolved grief at your wife’s death to cause you a particularly strong emotional response.  He noted that you suffer mild symptoms of both anxiety and depression.  He considered that your response indicates insight, but your distress is also underpinned by persistent feelings of shame which have undermined your self-esteem and left you feeling inadequate and insecure and your internal dialogue is harshly self-critical.  He stated that you now question your own abilities in many areas of life and such ruminations are likely to become more intense following sentence, such that he recommended that you be provided with appropriate support and monitoring during the period immediately after sentence.  He did not consider that your symptoms were sufficiently severe to warrant a diagnosis of Post-Traumatic Stress Disorder, a Major Depressive Disorder or any other psychological symptom.  He considered that in many ways this reflected the benefits you derived from the treatment you have received, the support around you and your own resilient approach, although you still continue to experience a range of distressing symptoms.

21      Mr Newton stated that the heavy drinking in which you had engaged following your wife’s death to assuage your grief and assist with sleep and facilitate social interaction was instrumental in the offending.  He considered, that at the time, your insight into the risks associated with heavy drinking was relatively limited and, although you were able to estimate the number of standard drinks in the various beverages you typically consumed, at the time of the collision you utilised an inaccurate and outdated formula to estimate the likely effects of a given level of alcohol consumption.  He noted that you also over-estimated the speed at which your body would metabolise alcohol.  As a result, you expressed considerable shock at the reading that was recorded, almost three hours following the collision, which was 0.125 per cent.  He noted that the psychologist whom you had seen for counselling had corrected your understanding of these matters and, prior to requesting that your bail be revoked, you had reduced your consumption of alcohol to a significant degree, having no more than two beers during the course of an evening.  You expressed an intention to only ever drive in the future if you had a zero blood alcohol reading. 

22      Mr Newton considered that in the period after your wife’s death, leading up until the date of the collision, your alcohol dependence would have been sufficiently severe to meet the DSM-5 criteria for a mild alcohol use disorder.  Otherwise, he noted that your personality adjustment is normal, you have no psychopathic or antisocial personality traits and no impairment of cognitive function.  He noted that you are compassionate and caring and place a high value on loyalty in friendships, are dedicated to the welfare of your family and have a clear and pro-social code of ethics by which you strive to live.

23      I note that Mr Newton’s assessment of your personality and values are reflected in the 12 character references tendered on your behalf as Exhibit “2”. 

24      Each of your five children provided a reference to the Court.  Cassandra, your daughter from your first marriage, now aged 33 and married with two children of her own, speaks glowingly of you as a loving father and grandfather and expresses her belief that, in the deep grief that you were suffering following the death of your wife, Mandy, you tried to put on a brave face and bought the motorcycle in order to go out riding to escape the deep hurt that you were suffering.  The four children of your marriage with Mandy also speak of the deep love and care and nurturing that you have given them as a father and how, on top of the devastation of the death of their mother, it is so hard not to have you with them.  Zoe, Kayla and your twin sons, Brayden and Tyler, all in their own way, describe the very loving and caring family environment that you and Mandy provided, the terrible grief at the loss of their mother and what a good father and hardworking, honest, reliable and trustworthy man you are.  They express how hard it is still dealing with the grief of their mother’s death and now missing you, and know that you worry a great deal about how they are coping. 

25      All of the other references from various sources including one of your siblings, long term friends, members of the Whittlesea community and also Mr David Stanley, a well-known public health practitioner of many decades, who has come to know you since the accident, speak of your crippling remorse over causing the death of Mr Biggs.  Mr Stanley comments that you stated to him, “I know how Shaun’s wife feels, I'm living the pain – the pain I have caused her and her family.”  There is a common theme throughout the references of you being an outstanding and responsible family man, who was always decent and hardworking, generous and provided congenial company.  Many of the references refer to your community mindedness and things that you have done to help others, but also your deep grief following Mandy’s death and your compromised mental health following the motor cycle collision, with a desperate urge to want to apologise to Shaun’s family.  It is clear that prior to the death of your wife in September 2017, you were a very loving husband and father and sibling and a loyal and caring friend, who was very much loved and respected as a generous, community minded person, who was regarded as a person of high moral character.

26      Mr O’Connor, it is an unhappy fact that many people who come before this Court on a charge of culpable driving have previously led blameless lives.  There is a cruel irony in the fact that, after suffering the sudden and shocking loss of your wife, Mandy, without any opportunity for you or your children to say goodbye, you have caused Shaun Biggs’ family to suffer the same terrible shock and grief and loss, just one week before Christmas last year.  The Victim Impact Statements filed on behalf of his family as Exhibits “B” to “J” speak volumes about the deep hurt and terrible loss of a good and loving husband, father, brother and son. 

27      Shuan Biggs’ wife, Amanda, courageously and with dignity, read a heartfelt Victim Impact Statement about the loss of her best friend and confidante of 25 years and the tide of emotional distress that she has suffered since, including witnessing and worrying about her two sons and their loss and pain, her inability to focus so that she could return to work, which she had formerly enjoyed, and daily startling reminders of Shaun’s death.

28      Shaun Biggs’ oldest son, Nathanial, aged 23 years, describes his daily struggle to deal with his father’s death and how he could never have imagined that at the age of 23, he would have to get up in front of family and friends to pay tribute to his father at his funeral.  He speaks of all the hopes and dreams that he has in the future, which he will never be able to share with his father.

29      Joshua, Shaun Biggs’ younger son, aged 22, recalls painfully the last memory of he and his father being together, the excruciating and shocking moment when the doctors at the hospital conveyed that he had died and the difficult aftermath of his father’s death.  He describes his father as a man who would have done anything for him and made him feel safe and was always there for him, and articulates his distress at seeing his mother and Nathanial struggling every day with their grief.

30      Shaun Biggs’ sister, Rebecca, who lives in Queensland, describes the shock and distress of receiving the call with the news of the death of her brother, a person with whom she grew up so closely and shared so much.  She writes of all the experiences they will now miss together as she is left as the only child of her mother, who has already lost two husbands.

31      Shaun Biggs’ mother, Sonia, writes of the unfathomable loss of the child to whom she gave birth and with whom she had such a strong bond and how empty her future will be without her beloved son, Shaun, as well as the terrible impact on her daughter-in-law and grandchildren and daughter.  Wisely, she states, “All this heartache could have been avoided if it wasn’t for someone’s decision to drink and drive.  People say time heals all things but my broken heart will never heal and I will need to learn to live with it.  It’s not just our family that is suffering.  I can imagine that the other family would be suffering as well and I feel terribly sorry for them.”

32      The loss of a precious life, like that of Shaun Biggs, cannot be assigned a price.  There is no one sentence appropriate for the death of another human being caused by culpable driving.  I must determine a sentence on the basis of the circumstances of this offence and you own personal circumstances, bearing in mind the gravity of the offending as indicated by the maximum penalty of 20 years’ imprisonment.

33      Mr O’Connor, this Court knows that you did not intend to cause any harm to Mr Biggs.  Culpable driving is an offence which involves a gross departure from the standard of care required by a reasonable person driving or riding on our roads.  One could not help but have compassion for your shock and grief following the startling loss of your much-loved wife of 22 years, the mother of your four younger children and such a vital member of your close knit family unit.  One can understand the human frailty of your drinking too much alcohol as some form of self-medication in your grief, while you attempted to keep soldiering on for the benefit of your children.  However, it was clearly a foolish decision to take your motorcycle to the golf club on the day in question and a very grave error of judgment in deciding to ride home on it, at all, but particularly with Mr Biggs as a pillion passenger.

34      The circumstances are aggravated by the fact that both Mr Edwards and Mr Allen urged you not to ride your motorcycle home. Mr Edwards had apparently monitored and restrained his alcohol intake because he was the designated driver. The offer was made to drive you and Mr Biggs from the club in his car. Mr Allen offered for you to stay overnight at his home, which was nearby, and to drive you back to the Golf Club the next day to collect your motorbike.

35      There is so much senseless death and serious injury on our roads due to such grave errors of judgment.  You presented a danger to every other road user that night, in your intoxicated state riding a vehicle which you had only had for three weeks and taking a bend too fast.  The prosecution has acknowledged that Mr Biggs did not take care for his own safety in accepting a lift as your pillion passenger and declining your offer of the helmet.  It may be that his judgment was clouded by having drunk alcohol himself.  However, ultimately he would not have come to harm had it not been for your foolhardy decision to get onto that motorbike after drinking all afternoon.  The law is that the driver of a motor car or the rider of a motor cycle has a duty to all road users, including his own passengers and, when riding a motor cycle, this involves ensuring that a passenger have protective headwear.  Hence, any reduction in sentence by reason of Mr Biggs’ want of care for his own safety should be moderate.

36      There can be no doubt that, in sentencing for this serious offence, which is unhappily so prevalent, the Court must denounce your conduct and emphasise general deterrence and just punishment. This is so that others who are minded to take foolish risks of driving whilst affected by alcohol and at excessive speed, particularly in circumstances where they lack the relevant experience, will know that, if they cause injury or death, they will receive appropriate punishment. Your counsel has acknowledged, and you are painfully aware, that a substantial custodial sentence must be imposed in this case.

37      In your favour, I take into account your plea of guilty.  In circumstances where you apparently have no recollection of the collision, itself, I regard it as a remorseful plea.  Indeed, the fact that you requested that your bail be revoked so that you could start serving your sentence shows a clear acceptance of your responsibility. The many references tendered on your behalf, the report of Mr Newton and the letter of apology written by yourself to the family of Mr Biggs, leave me in no doubt that you are truly and deeply remorseful and are very genuine in your sorrow for Mr Biggs’ family, as you know only too well the deep pain of losing a loving and caring partner and parent to children, just as you have caused to Mr Biggs’ family. By reason of your early and remorseful plea of guilty, you are entitled to a high discount on the sentence which, otherwise, would have been imposed.

38      You have held a driver’s licence for 40 years. Your only appearance before a court was in excess of 2 decades ago. Although it is for a drink-driving offence, there has been no repetition of such offending and there are no pending charges. Prior to the death of your wife, Mandy, there is no suggestion that you drank alcohol to excess. You took to drinking to excess in the distressing, dislocated state that you found yourself after her unexpected death. It is to your credit that, since this collision, you have reduced your alcohol consumption and engaged in psychological counselling to help you deal with your grief at losing Mandy and the deep shame and distress you feel at causing the death of Mr Biggs. You have a history of hard work, and positive family and community values. You have strong support from your family and friends. I consider your prospects of rehabilitation to be excellent.  In your circumstances, I consider that there is now no need for particular emphasis upon specific deterrence.  I consider it highly unlikely that you will ever again offend in this way. Having said that, many people who come before this Court on charges of culpable driving have no or minimal criminal history and excellent prospects of rehabilitation, and these factors cannot overshadow the primary emphasis in sentencing which must be upon general deterrence.

39      Leaving aside your remorseful plea of guilty and excellent prospects of rehabilitation, there are a number of unusual aspects of this case which, in combination, I consider to merit the court approaching your sentence with some sympathy:

1)    You were in a fragile psychological state after the confronting and sudden death of your wife less than three months prior to the offending. In endeavouring to come to terms with your loss and the challenges of being a single parent to your four grieving children, you took to self-medicating yourself with alcohol. This is a very particular context leading up to the offence. I accept Mr Newton’s analysis that the Mild Alcohol Use Disorder which you developed from September to December 2017 was instrumental in your offending.

2)    You are 56 years old and for the first time find yourself in the prison system, which is an environment totally unfamiliar to you — a man who has lead his life in a hard-working and pro-social way. You have unresolved grief over your wife’s death causing you symptoms of anxiety and depression, but also the worry of leaving your children, who are already grieving the loss of their mother, without your love and support. Layered upon this, is your strong sense of guilt and shame at having caused the death of Mr Biggs and left his wife, children, mother, sister and other family bereft. I am satisfied that you will find serving a sentence of imprisonment very hard because of these factors and accept Mr Newton’s assessment that, because of these factors, your self-esteem has been eroded and you are harshly self-critical. In addition, you suffer symptoms of post-traumatic stress disorder relating to the collision. I accept that this constellation of factors put you at risk of developing further psychological difficulties in custody, such that Mr Newton has recommended that psychological treatment be available to you.

3)    You have suffered some extra-curial punishment already. Apart from the symptoms of post-traumatic stress disorder, you sustained significant physical injuries in the collision. These include concussion, a fractured right arm necessitating the insertion of a plate and ongoing physiotherapy, a dislocated right elbow, two fractured ribs and a dislocated left shoulder. Your left shoulder is visibly deformed and requires corrective surgery. You are a man who has engaged in hard physical work all your life and are now unable to lift more than 10 kilograms and unable to work. This resulted in you being unemployed for the first time in your life after the collision and it limits what work opportunities may be available to you in custody, making you feel useless.  I accept your counsel’s submission that your idleness in prison is a factor which weighs heavily upon you.

4)    I have already referred to your four motherless children now being without your care and protection whilst you are in prison. Whilst this factor does not amount to exceptional circumstances, it is one which, in my view, does call for some mercy for the sake of your children. It is plain that all four of your children to Mandy are keenly suffering the shocking and sudden loss of their mother and, now, they have lost your physical, emotional and financial support. You have been as responsible as you could be about paying off the family home so that Kayla and the twins can continue to live there. However, each of your children has already suffered enormously through their mother’s death and they are suffering, too, by seeing what has happened to you. Kayla, at only 20 years of age and having just been diagnosed with the serious condition of type 1 diabetes, has the onerous obligation of running the household for herself and your twin sons, Brayden and Tyler aged 18 years.  Your sons were studying Year 12.  They ended up leaving school without completing it and have taken modestly paid jobs locally at Kentucky Fried Chicken and the IGA supermarket, so they can contribute financially to help keep the family home running as smoothly as possible. I accept that they are anxious about how you will manage in prison and they miss you greatly. The significant ramifications of the absence of their father so soon after the death of their mother, in any view, does merit some exercise of mercy in sentencing for their sake.

40      These somewhat unusual factors which I have mentioned, over and above your remorseful plea of guilty and excellent prospects of rehabilitation, cause me to temper the sentence which I might, otherwise, have imposed on this very serious charge.

41      On One charge of culpable driving causing death you are convicted and sentenced to be imprisoned for a period of 7 years and 9 months.

42      I direct that you serve a period of 4 years and 9 months before becoming eligible for parole.

43      I declare a period of pre-sentence detention of 61 days to be time reckoned as already served under the sentence imposed this day.

44 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the sentence imposed would have been 9 years’ imprisonment with a non-parole period of 6½ years.

45 Pursuant to s89C of the Sentencing Act, I find that this offence was committed while you were under the influence of alcohol, which contributed to the offence.

46 Pursuant to s89(1) of the Sentencing Act all licences to drive a motor vehicle are cancelled and you are disqualified from obtaining a licence for a period of 24 months. I note that you surrendered your driver’s licence when you asked for your bail to be revoked and you were remanded in custody on 31 August 2018. In all of the circumstances I order that the period of disqualification operate from 1 January  2023.

47 Pursuant to s464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of the offending together with the fact that this order is not opposed by you.

48      This involves you taking a swab of saliva from inside your cheek.  Mr O’Connor, you must realise that, if you do not cooperate with police in obtaining such a sample, then police are entitled to use reasonable force to obtain one.  I am sure this will not happen in your case.

49      Would you please take Mr O’Connor from the Court.

50      I thank the family and friends of Mr Biggs and the family and friends of Mr O’Connor for their dignity and self-control during what has been a very painful experience for you all.

51      Mr Dempsey, I will endorse custody management issues on the orders concerning Mr O’Connor’s psychological state and attach Mr Newton’s report.  I will also note the need for surgical assessment of his left shoulder as soon as possible.

MR DEMPSEY:        Thank you, your Honour.

52      Please adjourn the Court, Mr Tipstaff.