R v Bloodsworth; R v Errington (No 5)

[2018] NSWSC 79

Supreme Court

New South Wales

Medium Neutral Citation:

R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79

Hearing dates:

2 February 2018

Decision date:

08 February 2018

Jurisdiction:

Common Law - Criminal

Before:

Adamson J

Decision:

Rhiannon Bloodsworth:

 

(1) For the offence of manslaughter I impose a sentence of imprisonment commencing on 31 August 2015 with a non-parole period of 7 years and 6 months and a total term of 11 years.

 

(2) The first date on which the offender will be eligible to be released on parole will be 27 February 2023.

 

(3) The sentence will expire on 30 August 2026.

 

Trent Errington:

 

(1) For the offence of manslaughter I impose a sentence of imprisonment commencing on 31 August 2015, with a non-parole period of 6 years and 4 months and a total term of 8 years and 5 months.

 

(2) The first date on which the offender will be eligible to be released on parole will be 30 December 2021.

 (3) The sentence will expire on 30 January 2024.

Catchwords:

CRIMINAL LAW – sentencing – manslaughter by unlawful and dangerous act – joint criminal enterprise – co-offenders hog-tied and gagged deceased and left him in unit – discount for male offender for early offer to plead guilty to manslaughter and agreement to give evidence against female offender – subjective circumstances found for female offender

Legislation Cited:

Crimes Act 1900 (NSW), s 24
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 22, 23

Cases Cited:

GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2015) 228 CLR 357; [2005] HCA 25
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Oinonen [1999] NSWCCA 310
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Regina
Rhiannon Lisa Bloodsworth (Offender)
Trent Errington (Offender)

Representation:

Counsel:
M Hobart SC (Crown at trial)
P Barrett (Crown at sentence hearing)
D Price (Offender Bloodsworth)
D Carroll (Offender Errington)

    Solicitors:
Solicitor for Public Prosecutions (Crown)
PJM Lawyers (Offender Bloodsworth)
Sydney Criminal & Traffic Lawyers (Offender Errington)

File Number(s):

2015/255218; 2015/254857

Judgment

Introduction

1. Rhiannon Bloodsworth and Trent Errington were arraigned on an indictment presented on 16 October 2017 charging them with the murder of Jay Cerin between 28 and 30 August 2015. They pleaded not guilty and were tried by jury. On 27 October 2017 the jury returned unanimous verdicts acquitting them of murder and convicting them of manslaughter.

2. Jay Cerin died as a result of being gagged and restrained in a hog-tied position. He also sustained head injuries as a result of being hit with a cooking pot and punched, as well as lacerations from being stabbed. He survived for a period of about two hours after the blunt force head injuries were inflicted.

3. The factual basis of the sentences to be imposed on the offenders derives from the evidence adduced at the trial and the sentence hearing. Because of the way the trial was conducted, the verdicts indicated that the jury was satisfied beyond reasonable doubt that Ms Bloodsworth and Mr Errington were guilty of manslaughter by unlawful and dangerous act.

4. It follows from the verdicts of not guilty to the charge of murder that the jury was not satisfied that either offender had an intention to kill the deceased or to cause him grievous bodily harm. Nor was the jury satisfied that either offender foresaw the deceased’s death as the probable consequence of their acts. It follows from the verdicts of guilty to the charge of manslaughter that the jury was satisfied that there was an understanding or arrangement between the two offenders whereby they agreed to hit, hog-tie and gag the deceased. They both participated in the implementation of the agreement. The jury must have been satisfied that the punching, hitting, hog-tying and gagging of the deceased carried an appreciable risk of serious injury and that a reasonable person in the position of each offender would have realised this.

The standard of proof and its relevance in the context of sentencing

5. As sentencing judge, I may not take facts into account in a way that is adverse to the interests of each offender unless the facts have been agreed or established beyond reasonable doubt. However, if there are circumstances which I propose to take into account in favour of an offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. There are other matters which can be taken into account in sentencing, or which form part of the narrative, which do not fall into either category: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19]-[24]. In this case, there are many facts which cannot be determined, including several relating to the nature and extent of the participation of each offender in the specific acts that led to the death of the deceased.

Facts

6. In about June 2015 Mr Errington was staying with his father, John Hart, and his father’s partner, Toni Hart, in Mackay. Mr Errington learned that he had a half-brother, the deceased, whom neither he nor his father had met. He contacted the deceased on Facebook and arranged to fly down to Sydney and stay with him for about a fortnight. The deceased was living in a housing commission unit in Hebersham. The deceased’s girlfriend, Ruth Robinson, who lived with her son in the Blue Mountains, used to stay over at his unit from time to time.

7. Not long after the brothers met, their father was diagnosed with pancreatic cancer. The two brothers flew to Mackay on 23 June 2015 and Ms Robinson joined them subsequently. During this visit, for reasons not disclosed by the evidence, Mr Errington punched the deceased with sufficient force to make his nose bleed. Notwithstanding this assault, the deceased wanted his new-found brother to be part of his life. The Harts bought the deceased a car, which he drove back to Sydney with Mr Errington who moved into his unit on their arrival.

8. At around this time, Mr Errington formed a relationship with Ms Bloodsworth, who used methamphetamine, commonly known as ice. She, too, moved into the deceased’s unit and occupied the main bedroom with Mr Errington, while the deceased slept on the lounge in the main room or stayed with Ms Robinson. Mr Errington also used ice during this time. The offenders used ice at the deceased’s unit and left drug paraphernalia there. On at least one occasion the deceased paid his brother’s drug dealer.

9. Ms Bloodsworth told Dennis Rigley, a former boyfriend, that she was staying with “a guy at Hebbo [Hebersham] . . . and getting free drugs.” She also told Luke Duncan, another former boyfriend, of her new relationship. The two men continued to use ice with Ms Bloodsworth from time to time. In mid-August Mr Duncan visited relatives in Moree to get away from Ms Bloodsworth. While he was away she sent him text messages asking him for money. On one occasion he transferred $40 to her account.

10. On 4 August 2015, the deceased reported to Ms Hart that Mr Errington had smashed a bottle over his own head and had glass sticking out of his hand but refused to call an ambulance or go to hospital. The deceased told Ms Robinson that he did not want the offenders around anymore but he could not push them out onto the street because they were “crazy” and would just keep coming back because they were “too far into drugs.” The deceased also told her that he was scared to go back to his own unit. When the deceased told Ms Hart about his brother’s use of ice, she raised the subject with Mr Errington who admitted to her that he was out of control and needed to come home to Mackay to get away from the ice. At around this time Ms Hart tried, unsuccessfully, to persuade Mr Errington to return to Mackay to help care for his father.

11. On 6 August 2015, John Hart died. Ms Hart again urged Mr Errington to come to Mackay so that she could help him stop using drugs. From time to time she transferred money to his account, including to pay drug debts.

12. In mid-August 2015, Mr Errington asked his best friend from school, Chris Barbara, whether he could stay at his place in Mt Druitt, where he lived with his partner, Leiah Munnings, and their young daughter. They made it clear that he could not stay if he was using drugs. Mr Errington stayed for a few nights but on about 23 August 2015, when he arrived at Chris’s home obviously affected by drugs, Chris told him that he could no longer stay there.

13. About a fortnight before the deceased’s death, Mr Errington learned that the deceased had had an argument with Ms Robinson. Mr Errington, apparently in response to the news, rang Ms Robinson and said, “I’m going to smash you.” After that occasion, Ms Robinson told the deceased that she did not want to have anything further to do with his “fruit loop brother” because “he’s had too many drugs”.

14. On Saturday 22 August 2015, Ms Robinson became aware that Mr Errington had posted content on Facebook which said: “Some PPL [people] need a loyalty check. Go sort your own shit out.” Ms Robinson’s evidence was that the deceased understood the message to be directed to him.

15. On about Monday 24 August 2015 Mr Errington rang Ms Hart and asked her to fly him and the deceased to Mackay to hold a funeral for their father. Ms Hart was reluctant to pay the fares as she suspected that Mr Errington was spending all his money on ice. The following day Mr Errington raised the possibility of flying Ms Bloodsworth to Mackay as well. Later that week Mr Errington asked Ms Hart and Jodie Barbara, Chris’s mother, for money.

16. In the period leading up to Friday 28 August 2015, the deceased told his next-door neighbour, Peter Walcott, that the offenders were not contributing to the rent for the unit. He also complained that they were using the bar heater and leaving it on all the time with the windows open. On about Tuesday 25 August 2015, the deceased asked Mr Walcott whether he could stay at his unit.

17. On Thursday 27 August 2015, the deceased told Ms Robinson that he did not want to go home. She agreed that he could stay the night. On Friday morning he asked if he could move in permanently with her because he was scared of his brother. Ms Robinson suggested that he stay the night at Mr Walcott’s place. Late on Thursday night Mr Errington rang the deceased on Ms Robinson’s land line and accused him of stealing his drugs. The deceased responded, “I don’t take drugs and I have money so why would I take your drugs.” Eventually the deceased hung up. He said to Ms Robinson, “He knows I don’t take drugs, he’s going crazy.” Ms Robinson responded, “He’s crazy. You need to get rid of him.” The deceased asked, “How?” There is no evidence that the deceased tried to evict the offenders after this conversation.

Friday 28 August 2015

18. After staying at Ms Robinson’s place on the night of Thursday 27 August 2015 the deceased stayed until 11.30am on Friday morning. When the deceased asked her if he could stay again that night, she suggested that he stay at his mother’s place or with a friend.

19. At about 4pm that day Mr Errington complained to Ms Hart about the deceased asking him for rent and wanting his bedroom back. The evidence does not indicate when the deceased made these requests.

20. At around 5 or 6pm Ms Bloodsworth visited a friend, Alex Petrovski. Some time afterwards, Ms Bloodsworth returned to the deceased’s unit. When Mr Walcott came to the landing to enter his own unit, he saw both offenders inside the deceased’s unit through the front door, which was open.

21. When the deceased finished work as a brickie’s labourer on Friday, he took a four-pack of Jack Daniel’s cans to Mr Walcott’s unit and started to cook shepherd’s pie. In the course of the evening Mr Walcott, the deceased and three others consumed a one-litre bottle of Jack Daniel’s as well as the four-pack brought by the deceased. Mr Walcott, who did not drink much that night, noticed that the deceased had consumed a substantial quantity of alcohol. When Mr Walcott last spoke to the deceased before Mr Walcott went to bed that night, the deceased could walk and talk and seemed reasonably content although he was “pretty drunk” (which is consistent with his blood alcohol level at the time of death of 0.223g/100ml). There was also a relatively small amount of ice in his blood. It is not possible to say when he had taken it or what its effect was at the time he encountered the two offenders that evening in his unit.

22. At some stage that night after the deceased had returned to his unit he encountered the two offenders. It is possible that the offenders were affected by ice. However, the evidence does not permit an inference to be drawn that either or both were intoxicated at that time. I infer that the deceased had an argument with the offenders in the course of which Mr Errington punched the deceased and hit him over the head with a cooking pot which was used as a dog bowl and contained dog food pellets. The evidence is insufficient to determine the cause of the disagreement which led to the assault. The force of the punch and the blow from the dog bowl resulted in diffuse brain haemorrhaging which probably caused concussion and loss of consciousness for at least a few minutes. The deceased was hog-tied, gagged and dragged from the lounge room to the back room.

23. The offenders told others that the deceased had bitten Ms Bloodsworth’s arm or hand in the course of the altercation and that they poured bleach down the deceased’s throat to remove traces of her DNA. There is no forensic evidence to support these statements. Dr Pokorny did not detect bleach during the autopsy and Ms Bloodsworth’s arm and hand were not examined on her arrest. In these circumstances, I am not satisfied that the deceased ever bit Ms Bloodsworth or that either offender poured bleach down his throat, either to remove her DNA or for some other purpose. As the alleged bleach was contained in a Coke bottle, it may have been some other liquid, although the offenders believed it to be bleach.

24. While the deceased was being hog-tied, Ms Bloodsworth’s phone recorded the voice of a male (whom I infer was Mr Errington) saying, “I told you to get something to put in his fucking mouth”.

25. I accept on the basis of the forensic evidence that the deceased was still breathing after he was hog-tied and gagged. Although he may have suffered short-term loss of consciousness as a consequence of the blunt force head injuries, he was conscious when at least some of the assaults that led to his death were committed.

26. When the offenders left the unit after hog-tying the deceased, he was still alive. As a result of the stress of the restraint he either died of suffocation or cardiac arrest within an hour or two of sustaining the head injuries. I accept the evidence of Dr Pokorny that the deceased died as a result of a combination of blunt force head injuries and hog-tying which caused either positional asphyxia (as she described it) or death by restraint (as Professor Duflou preferred to describe it). It is not necessary to determine whether the actual cause of death was compromised breathing (which was Dr Pokorny’s preferred explanation) or a heart attack caused by stress (which Professor Duflou considered to be the most likely cause of death).

27. The two offenders returned to the unit about an hour or two after the attack on the deceased and were shocked to discover that the deceased was dead. They feared detection and prosecution. Neither of the offenders reported the matter to the police. Instead, together and separately, they contacted various friends and associates, including Chris Barbara; Mr Rigley and Mr Duncan; and Kristy Stecum, Ms Bloodsworth’s sister, to obtain money and other assistance to help them escape.

28. That night Mr Errington contacted Chris Barbara, and asked him to come over to the deceased’s unit. When Mr Barbara arrived, Mr Errington told him that the deceased (who was already dead and whose body was in the back room behind the closed door) was out walking his dog. Mr Barbara experienced a “weird feeling” as he had never seen Mr Errington in such a state before. Mr Barbara sensed that something terrible had happened and left the unit at the first available opportunity. He ran down the stairs, got into his car and drove straight home. As soon as he was inside he locked up his house.

29. Ms Bloodsworth contacted friends and associates to find somewhere to stay for the night. She tried Mr Rigley, Mr Duncan, and a friend, Terrence Fensom, with whom she had also used ice. Ms Bloodsworth replayed the recording of the male voice referred to above to Mr Rigley. Mr Rigley interpreted the male’s tone as “menacing”. As the recording was not available to the court it is impossible to test his impression. However, the jury’s verdict is inconsistent with Ms Bloodsworth having been coerced by Mr Errington to participate in the assault, hog-tying and gagging of the deceased.

30. Ms Bloodsworth asked Mr Rigley what she should do and he responded, “Go to the cops.” She told him that she was too scared to do so. Mr Rigley was not cross-examined about this evidence, which I accept.

31. The offenders visited Mr Fensom’s residence some time after 4am and persuaded him to drive them to St Mary’s railway station in return for a Crusty Demons poster.

32. Ms Bloodsworth spoke to Mr Duncan in the early hours of the morning to see if she and Mr Errington could stay at his house at Kingswood. Mr Duncan, who was in Moree, asked Ms Bloodsworth why she was asking permission when she had often broken into his house when she needed somewhere to stay.

33. Later on Saturday morning the two offenders went their separate ways. Ms Bloodsworth sought help from Mr Petrovski. Mr Errington contacted Ms Hart, who encouraged him to catch the train to Mackay.

34. At 2.49pm on Saturday 29 August 2015 a text message was sent from Ms Bloodsworth’s phone to the deceased’s phone at a time when both offenders knew he had been dead for some hours. Although the content of the message implies that it was Mr Errington who wrote it, it is possible that Ms Bloodsworth might have sent the text in order to exculpate Mr Errington. The message said:

“Don’t ever ring me agaun stick ya chatty house up ya self biw bud an just remember u said it im not ur brother aie get off the alcohol mate ur a fukin idi.”

35. I do not accept that this text provides any reliable indication of the subject of the disagreement between the offenders and the deceased which led to the assault.

36. Later on Saturday afternoon, at 4.14pm, Mr Errington used Ms Bloodsworth’s phone to message Chris Barbara, who told him that he would not be welcome because he wanted to spend the night with his partner, Ms Munnings. I infer that by this time the two offenders were together again. Later that afternoon, at about 5.30pm, Ms Bloodsworth rang her sister, Kristy Stecum, and told her that the deceased was dead. Ms Stecum’s partner also heard the conversation as the phone was on speaker mode. They heard a male voice in the background, which I infer was Mr Errington’s, saying to Ms Bloodsworth in a fearsome tone, “What are you crying for?” I do not regard the tone used on this occasion as bearing on the dynamics between the offenders at the time of the offence. Ms Bloodsworth repeatedly begged her sister to visit Ms Bloodsworth’s daughter, who was then about four years old. At around 7.30pm Mr Errington used Ms Bloodsworth’s phone again to ring his former partner to speak to his children. These conversations are consistent with both offenders realising that they were at risk of arrest and were considering fleeing from New South Wales.

35. At about 4.30am on Sunday, Mr Errington arrived at Chris Barbara’s home alone. He was very upset and admitted to Chris that he had killed his brother. Chris and later, Ms Munnings and Chris’s mother, Jodie Barbara, urged him to report the matter to police. Despite Mr Errington’s frankness to Chris Barbara, Ms Barbara and Ms Munnings about what he had done to the deceased which resulted in his death, he lied about his motivation for his violent acts. Both offenders persisted in telling others, falsely, that the attack on the deceased was justified because the deceased had tried to rape Ms Bloodsworth.

36. Later on Sunday 30 August 2015, the two offenders caught a taxi from Chris Barbara’s house, with the intention of going to Rooty Hill railway station. There was a disagreement between the offenders in the taxi, during the course of which they yelled at each other. Subsequently Ms Bloodsworth got out of the taxi when it stopped at an intersection and left Mr Errington inside the taxi. There is no indication in the still photographs from the CCTV camera inside the taxi or the evidence of the taxi driver that Mr Errington tried to prevent Ms Bloodsworth leaving or pursued her after she got out of the taxi. Mr Errington returned alone in the taxi to Chris Barbara’s place. Ultimately Ms Barbara drove Mr Errington to Maryong railway station. In the course of the trip he told her that he had hog-tied the deceased and he could do it to anyone. He demonstrated the position of a hog-tied victim, which terrified Ms Barbara.

37. Later the two offenders met again and were ultimately arrested at Central Station on Monday 31 August 2015 at 6.45am where they were trying to buy tickets so that they could travel to Mackay.

38. Mr Errington was interviewed by police that day. He told several lies but, when he appreciated that Chris and Jodie Barbara had already spoken to police and that the unit had been investigated, he made numerous admissions, including that he had killed his brother and that his previous statement that the deceased had been trying to rape Ms Bloodsworth was a lie. At the conclusion of his recorded interview, Mr Errington offered to sign a statement adopting the contents of the interview as evidence which he was prepared to give against Ms Bloodsworth. The police took a DNA sample, which was later found to match DNA detected on some of the ties which bound the deceased and other items found at the deceased’s unit, including the dog bowl.

39. Ms Bloodsworth exercised her right to silence and declined to be interviewed by police. A sample of her DNA was taken. Her DNA was not detected on any of the items of interest.

40. When Ms Bloodsworth was in gaol on remand for this offence Mr Petrovski visited her there. She told him she was in another room, did not know what was happening, and had to help Mr Errington clean up because of threats to her own life and her daughter’s life. This version of events was rejected by the jury.

Sentencing - manslaughter

43. It is well recognised that manslaughter can be committed in a wide variety of circumstances affecting culpability. Consequently there is a substantial range in the sentences imposed for this offence: The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [22].

44. The starting point for sentencing in such cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he or she must be sentenced to imprisonment. Principles of punishment, retribution and deterrence play their part. Particular regard must be had to the features referred to above relevant to the seriousness of the offence as well as any mitigating circumstances.

Maximum penalty

45. The maximum penalty is of considerable importance as a yardstick in sentencing: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. The maximum term of imprisonment for manslaughter is 25 years: s 24 of the Crimes Act 1900 (NSW). There is no standard non-parole period.

Seriousness of the offending conduct

46. As parties to a joint criminal enterprise to hit, gag and hog-tie the deceased, each offender is responsible for the acts of the other. They are both equally guilty of the crime regardless of the actual part played by each in its commission: McAuliffe v The Queen (1995) 183 CLR 108 at 114; [1995] HCA 37. However, it does not follow that the objective seriousness of their respective offending is identical. Where it is possible to distinguish between the acts or involvement of co-offenders so as to attribute greater responsibility to one rather than the other, this should be reflected in different assessments of objective seriousness: Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ); [1984] HCA 46.

The participation of each offender

47. The jury accepted the Crown case that each offender participated in a joint criminal enterprise to assault and restrain the deceased which resulted in his death. Notwithstanding the limited evidence of what actually occurred and the respective participation of each offender, I am obliged to make such findings as are available, having regard to the standard of proof. As different evidence was admissible against each offender at the trial, it is necessary to distinguish between them when making findings relating to what occurred in the course of this altercation. In particular, Mr Errington’s admissions are admissible against him but not against Ms Bloodsworth and the statements he made in his interview about her involvement cannot be used to determine her participation.

Ms Bloodsworth

48. There is no forensic evidence indicating that Ms Bloodsworth was involved in any physical act leading to the deceased’s death. Her admissions were not sufficiently specific to make a finding as to her involvement beyond the minimum required by the jury’s verdict. Although she admitted to Ms Munnings on Sunday 30 August 2015 that she was “looking at affray” I am not satisfied that Ms Bloodsworth understood the meaning of the word. When Ms Bloodsworth sought accommodation and money from Mr Duncan after she discovered that the deceased had died, she referred to his cousin having been charged with murder and asserted, apparently contrary to the fact, that Mr Duncan had helped his cousin in those circumstances. I infer from her reference to Mr Duncan’s cousin that she saw herself as being in a similar predicament. This admission, however, does not provide any detail about the level of her actual participation beyond knowing that the deceased had died.

49. Mr Price submitted on behalf of Ms Bloodsworth that it should be inferred that Mr Errington was the instigator of the crime and the perpetrator of all relevant physical acts and that she was merely a fearful bystander who was coerced by Mr Errington to assist, despite her reluctance to do so. He submitted that I should infer from Mr Errington’s greater age, size and physical strength, his long criminal history of violence (as to which see further below), his fraternal relationship with the deceased, Ms Bloodsworth’s history of being involved in abusive relationships with men and her relative youth and immaturity that he was, in effect, responsible for all physical acts and that she participated only by her presence.

50. I reject these submissions as inconsistent with the jury’s verdict which requires me to sentence her on the basis that she was present and at least stood by, ready to assist Mr Errington to implement their agreement or understanding, since this is the minimum basis on which she could have been convicted of manslaughter. As I have said, Ms Bloodsworth, as a party to the joint criminal enterprise, is responsible for his criminal acts within their agreement.

51. Further, the present case presents too complex a picture to draw an inference in Ms Bloodsworth’s favour that Mr Errington was the dominant participant, taking into account all relevant matters, and not merely the physical acts against the deceased. Although Mr Errington had a history of violence, including with the deceased (whom he punched once, as referred to above) and bragged to Jodie Barbara that he had hog-tied the deceased and could do it to anyone, there was no evidence that he had ever laid a hand in anger on Ms Bloodsworth or was otherwise abusive to her. The CCTV stills of the pair in the taxi after the offence did not provide any indication that Mr Errington had any hold on Ms Bloodsworth, who appeared to have decided impulsively to get out of the taxi. Mr Errington did nothing to stop her. There was some evidence at trial of Ms Bloodsworth’s capacity to manipulate men to achieve her ends, as she had done with Mr Rigley and Mr Duncan. She had also been, at times, violent. Her criminal history revealed that she has two prior convictions for common assault in a domestic situation. In these circumstances it is not possible to make any determination of the balance of power between the offenders in the formation and implementation of their joint criminal enterprise.

Mr Errington

52. As against Mr Errington, I make the following findings about his participation on the basis of the evidence admissible against him (including his admissions). Mr Errington punched the deceased. When the deceased put his hand out to defend himself, Mr Errington stabbed him in the arm. He also stabbed the deceased in the back of the neck. Mr Errington hog-tied him, using fabric ties, ropes and electrical cords. The deceased asked Mr Errington why he was doing it to him when he was his brother. Mr Errington hit him over the head with the dog bowl in order to get him to “shut up” because he could not stand to listen to the deceased’s pleas for mercy. Mr Errington admitted that he dragged the deceased into the back room of the unit.

The relative objective seriousness of each offender’s conduct

53. Because each offender is responsible for the acts of the other, I regard the objective seriousness of the two offenders’ criminal offending as relevantly indistinguishable except for one matter which has the effect of making Mr Errington’s conduct marginally more serious. I am satisfied from the circumstantial evidence of Mr Errington’s and Ms Bloodsworth’s relative weight, height and physical capacity and the forensic evidence that Mr Errington was solely responsible for punching the deceased and subsequently hitting him over the head with the dog bowl. These acts of violence were necessary in order to disable the deceased so that he could be hog-tied and gagged before he regained consciousness and the capacity to resist.

54. In all the circumstances, I regard Mr Errington’s initial use of force against the deceased as a relevant difference between the two offenders for which allowance ought, as a matter of justice, be made: Postiglione v The Queen (1997) 189 CLR 295 at 301-302 (Dawson and Gaudron JJ); [1997] HCA 26; cf. GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [19]-[20].

Other matters relevant to objective seriousness

55. There was no indication of any planning. The evidence does not reveal whose idea it was to assault or hog-tie the deceased or to what ultimate end he was to be hog-tied. Thus, the motives of the respective offenders cannot be determined. While they both had an interest in continuing their occupation of the unit, the evidence does not permit an inference to be drawn that the argument which preceded the assault related to their accommodation.

56. As referred to above, the offenders’ acts which resulted in the death of the deceased were not done with any intention to kill him or cause grievous bodily harm. Nor were they done with recklessness as to human life, since the offenders did not foresee death as a probable consequence. The infliction of blunt force head injury and the hog-tying were the deliberate, unlawful acts of the offenders and formed part of their joint criminal enterprise. As the jury found, the acts which caused death carried with them an appreciable risk of serious injury. A reasonable person in the position of the offenders would have appreciated the risk.

57. The offenders were indifferent to the potential results of their actions and, when the consequences ensued, they were taken aback and scared of being caught. Although they expected their confidants to keep silent, they knew that, sooner or later, the deceased would be discovered and that they would be suspected. Their intention at the time of the acts that caused death was not only to immobilise and silence the deceased but also to subjugate and traumatise him. The deceased must have suffered considerable physical pain, fear and anguish as a result of being bashed, stabbed, gagged and hog-tied and left in a position where he was at the mercy of the offenders. The deceased must have appreciated that he had no real prospect of being rescued because of his position in the unit, the gagging that rendered him mute and the hog-tying which made him immobile.

58. The acts of the offenders were impulsive. Neither offender bore any longstanding animosity or hostility towards the deceased, although the offenders’ conduct in the deceased’s unit and their failure to contribute to rent had caused friction. Mr Errington was, at other times, anxious to foster the fraternal relationship. Though impulsive, the offenders’ acts were nonetheless deliberate and took place over some time. The photographs of the deceased in the hog-tied position indicated that he was bound by numerous ties, including shoelaces, silk ties and electrical cords, and gagged with several garments. The ties, though not designed to strangle, were nonetheless tight and intended to constrain. The offenders knew that the deceased was unable to call out for help or move from his confined position in the back room. It cannot be determined whether or when the offenders intended to release the deceased had he survived the period of his initial captivity.

Assessment of objective seriousness

59. Although it is difficult to rank the objective seriousness of this offence in the context of other manslaughter offences by reason of the wide variety of circumstances in which the offence, which comprises voluntary and involuntary manslaughter, can be committed, an assessment of the objective seriousness of this offence must be made for the purposes of taking into account the maximum penalty. As was accepted by counsel for both offenders, the present case is a serious example of the offence of manslaughter by unlawful and dangerous act. It is aggravated by having been committed in company, in the home of the deceased, and because it involved gratuitous cruelty. I regard it as above mid-range but not in the most serious category as neither offender intended to kill the deceased or cause him grievous bodily harm (as would be required for voluntary manslaughter) and it did not involve planning.

Subjective circumstances

Ms Bloodsworth

60. At the time of the commission of the offence, Ms Bloodsworth was 22 years old. Her criminal history began in 2007 with an offence of stalk/intimidate intend fear of physical/mental harm which was dealt with in the Children’s Court. As an adult she was convicted of several offences, including two counts of common assault (domestic violence), but all offences were dealt with either by way of bonds under ss 9 or 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) or the imposition of fines. In these circumstances, I regard her criminal history as relatively insignificant and not such as to disentitle her from leniency on that account. She had not been in custody before being refused bail following her arrest for the present offence. She finds custody onerous and has made attempts on her life, one of which resulted in her being confined in isolation.

61. Ms Bloodsworth relied on three character references, including one from her sister, Kristy Stecum, who gave evidence at the trial. I place limited weight on these references to the extent to which they were not supported by sworn evidence.

62. Ms Bloodsworth relied on the report of Jason Borkowski, forensic psychologist, which was substantially based on statements she made to him. As she did not give evidence at either the trial or the sentence hearing, I do not have evidence of the truth of many of her statements. Therefore only limited weight can be given to his opinion and diagnoses in so far as they are based on her statements. However, I accept the following, which was not controverted by the Crown and which is generally consistent with the evidence at trial, including from Ms Bloodsworth’s sister, Ms Stecum.

63. Ms Bloodsworth had a troubled childhood and grew up in an abusive environment. Her parents abused alcohol and drugs. Her care was inconsistent. In her early teens she ran away from home and used drugs and alcohol. She has attempted suicide more than once while in the community and has also engaged in self-harm. She gave birth to her daughter when she was 18 years old. The father of the child was violent towards Ms Bloodsworth. Ms Bloodsworth’s abuse of drugs and alcohol increased when her daughter was removed from her care as an infant. Ms Bloodsworth has been in other abusive and dysfunctional relationships. As referred to above, there was no evidence, that her relationship with Mr Errington was abusive. I accept that Ms Bloodsworth suffers from substance abuse disorder. The circumstances of her childhood would appear to predispose her to borderline personality disorder, which is one of the diagnoses made by Mr Borkowski, and which I accept. There is no admissible evidence directly linking the offending conduct with Ms Bloodsworth’s mental health. However, I accept that her difficult upbringing; nomadic life; transient, unstable relationships; and drug addiction has inclined her to act for short-term gain (particularly regarding use of drugs) rather than in her long-term interests. Justice demands that allowance be made for the adversities of Ms Bloodsworth’s childhood and adolescence, which have deprived her from a young age of any real opportunities.

64. Ms Bloodsworth has a long-standing substance abuse disorder and has not engaged in any drug rehabilitation program. I am not persuaded that her prospects of rehabilitation generally are good.

65. I am persuaded that it is appropriate to make a finding of special circumstances and accordingly to make some adjustment to the statutory ratio between the non-parole period and the balance of term. Ms Bloodsworth is still relatively young and this is her first time in custody. She will require significant supervision and assistance in the community to overcome her substance abuse disorder and equip her to live in permanent housing rather than, as prior to her arrest, living as a temporary lodger wherever she could find a place to sleep. The reason the adjustment is not greater is that it is necessary that the non-parole period reflects the minimum period of incarceration that is appropriate having regard to all relevant factors, including, in particular, the seriousness of the offence.

66. I am not satisfied that Ms Bloodsworth has shown any remorse or contrition. She defended the charge on the basis of what she told Mr Petrovski when he visited her in gaol. The jury’s verdict indicates that it rejected this version of events beyond reasonable doubt. At the sentence hearing, she indicated, through her counsel, that she maintained her innocence. Mr Price put on behalf of Ms Bloodsworth that the offer she made on 12 January 2017 to plead guilty to accessory after the fact and conceal serious indictable offence (which was rejected) ought be taken into account as evidence of remorse and contrition. I reject this submission. Although I accept that Ms Bloodsworth is sorry that the deceased died, this falls short of remorse and contrition, which are inconsistent with her continued denial of guilt. Her offer to assist the Crown by giving evidence against Mr Errington was dependent on the Crown accepting her offer to plead guilty to substantially less serious offences. In these circumstances I do not regard her offer of assistance as something that ought be taken into account in mitigation.

Mr Errington

67. Mr Errington was 29 years old at the time of the offence and is presently 31 years old. His first criminal conviction was in 2002 as a juvenile when he was convicted of armed robbery for which he received a suspended sentence with a control order. He was subsequently convicted of another armed robbery when he was 18 for which he was sentenced to 18 months’ imprisonment, with a non-parole period of 9 months. In 2005 he was convicted of robbery in company for which he was sentenced to 2 years 6 months’ imprisonment with a non-parole period of 15 months and 6 days. In 2013 he was convicted of possess shortened firearm, unauthorised firearm and prohibited weapon for which he spent a further period of 13 months in custody. In January 2015 he was convicted in his absence of use carriage service to threaten to kill and stalk/intimidate intend fear/physical harm (domestic). A warrant was issued for his arrest pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act but he was not sentenced for this offence before being arrested for the present offence on 31 August 2015. Mr Errington’s criminal history disentitles him from leniency on that ground.

68. Mr Errington relied on a report of Ann-Marie De Santa Brigida, psychologist. The fact that Mr Errington did not give evidence on sentence affects the weight of the report as much of it is based on his statements. Nonetheless I accept many of the subjective matters in the report relating to his childhood and upbringing which were accepted, or not controverted, by the Crown or which was evident from the evidence at trial.

69. Mr Errington is indigenous. Although his mother is in permanent employment and has no history of problems, his father and two older brothers have criminal histories associated with violence and substance abuse. He was exposed to substance abuse at a young age. He began to copy his older brothers by using heroin at the age of 13 and, later, amphetamines, including ice. He was regularly in trouble at school: he was suspended from one school and expelled from two others. He was first in custody when he was 18. He was last employed when he was 20 or 21. He underwent drug rehabilitation as an inpatient when he was 26, but was required to leave after two months when he left the premises without permission.

70. Ms De Santa Brigida diagnosed various mental disorders, including substance abuse disorder, attention deficit disorder, conduct disorder and intermittent explosive disorder. I accept these diagnoses and that these mental conditions derived from the unhappy circumstances of Mr Errington’s childhood, upbringing and drug use. Although Ms De Santa Brigida considered that Mr Errington “falls into the high range for the risk of recidivism”, I do not regard her assessment of future risk as warranting a longer sentence. Justice demands that allowance be made for the adversities of Mr Errington’s life, which have deprived him from a young age of any real opportunities.

71. Mr Errington has shown remorse and contrition for the killing of his brother from the time he accepted responsibility for his death in the recorded interview on 31 August 2015. His lies in the course of the interview soon gave way to truthful admissions, once he realised that Chris and Jodie Barbara had reported the matter to police. He admitted in the interview that the allegation that the deceased had tried to rape Ms Bloodsworth was a lie.

72. Mr Errington offered to plead guilty to manslaughter on 5 October 2016 and specified that the plea was to manslaughter by unlawful and dangerous act on 23 November 2016. His plea was not accepted by the Crown. The Crown accepted at the sentence hearing that it was open to me to give him the maximum discount allowed under s 22 of the Crimes (Sentencing Procedure) Act for his offer to plead guilty to the offence of manslaughter (by unlawful and dangerous act) of which he was ultimately convicted. This acknowledgment is consistent with long-standing authority: R v Oinonen [1999] NSWCCA 310 at [15]-[18] (Grove J, Spigelman CJ and Sully J agreeing). I am persuaded that it is appropriate, as a matter of fairness to Mr Errington, to discount his sentence by 25% for his early offer to plead guilty.

73. I am satisfied that Mr Errington is also entitled to a discount under s 23 of the Crimes (Sentencing Procedure) Act because of the assistance he offered to provide to authorities when he agreed to give evidence in the trial of Ms Bloodsworth. As his offer to plead guilty was not accepted and he therefore did not give evidence in the trial of Ms Bloodsworth, who was tried jointly with him, this offer did not provide any benefit to the Crown. However, he is nonetheless entitled to have it taken into account in his favour. As referred to above, although he told lies at various times in the interview, by the end of the interview he had admitted responsibility for several physical acts and also admitted that the story about the deceased having tried to rape Ms Bloodsworth was false. I am persuaded that his evidence against Ms Bloodsworth would have had some value, as he was the only other person present when the crime was committed against the deceased. Although his credibility could be impugned by prior inconsistent statements, it would have been open to a jury to accept his evidence as to her role, particularly as it does not appear that he tried to minimise his involvement by unduly implicating her. In his record of interview, Mr Errington said that Ms Bloodsworth tied the deceased’s wrists behind his back and helped him drag the deceased into the back room. According to Mr Errington, she also helped gag the deceased. As his offer of assistance was not accepted it is not necessary to consider any potential adverse consequences to him had it been accepted. The offer was in the past. There is no relevant offer of future assistance.

74. Having taken into account its weight, timeliness and potential value, I consider it to be appropriate to allow a discount of 10% for Mr Errington’s offer to give evidence against Ms Bloodsworth.

75. The length of the sentence I propose to impose on Mr Errington will leave sufficient time for supervision in the community if parole is granted. I am not persuaded that there are special circumstances.

Other matters concerning both offenders

Facilitating the administration of justice

76. Defence counsel conducted the trial on behalf of the offenders in an efficient manner. Concessions were made and agreements reached, including as to certain facts and the admissibility of evidence, which shortened the length of the trial. I take this matter into account on sentence in favour of both offenders.

Statistics and comparable cases

77. The Crown provided me with statistics relevant to sentences imposed for manslaughter. The parties provided me with sentencing judgments which they contended were similar and ought provide guidance. I have considered the statistics and the cases to which I have been referred. However, because the aim of sentencing is to provide individualised justice and because any sentence imposed takes into account objective and subjective matters as well as legislative guideposts, comparisons with other cases are rarely helpful particularly for a crime such as manslaughter which can be committed in such a wide variety of circumstances. Care must be taken in using what has been done in other cases: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55].

Time in custody

78. As referred to above, both offenders have been in custody since their arrest on 31 August 2015. Their sentences will date from that day.

Parity

79. The parity principle applies. Because of Mr Errington’s initial acts of violence against the deceased and his disentitlement to leniency by reason of his criminal history, the starting point of his sentence is marginally higher than that for Ms Bloodsworth, although not as high as it might have been but for his remorse and contrition. The differences between their sentences are otherwise principally explained by the considerable total discount of 35% applied to Mr Errington’s sentence by reason of his early offers to plead guilty and give assistance; and the finding of special circumstances in favour of Ms Bloodsworth.

Loss of the deceased

80. I acknowledge the victim impact statement which was read out by the deceased’s mother in court at the sentence hearing. She has lost her only son and mourns not only the loss of his life but the fact that he did not live long enough to have his own children.

81. The loss suffered by the deceased and his loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I take this opportunity to acknowledge the loss of Jay Cerin to his family and friends to whom I extend my personal sympathies for his untimely death.

Orders

82. Rhiannon Bloodsworth:

1. For the offence of manslaughter I impose a sentence of imprisonment commencing on 31 August 2015 with a non-parole period of 7 years and 6 months and a total term of 11 years.

2. The first date on which the offender will be eligible to be released on parole will be 27 February 2023.

3. The sentence will expire on 30 August 2026.

83. Trent Errington:

1. For the offence of manslaughter I impose a sentence of imprisonment commencing on 31 August 2015, with a non-parole period of 6 years and 4 months and a total term of 8 years and 5 months.

2. The first date on which the offender will be eligible to be released on parole will be 30 December 2021.

3. The sentence will expire on 30 January 2024.

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Decision last updated: 08 February 2018