R v Cavanagh, McIvor and O'Keefe

[2021] NSWSC 746

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Cavanagh, McIvor & O’Keefe [2021] NSWSC 746

Hearing dates:

22 April 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

BARRY PAUL CAVANAGH is convicted of the murder of Jamie Phillips. The offender is sentenced to a non-parole period of 15 years and 9 months commencing 11 April 2020 and expiring 10 January 2036 with a balance of term of 5 years and 3 months expiring on 10 April 2041. The offender is first eligible for parole on 10 January 2036.

SEAN DAVID O’KEEFE is convicted of the murder of Jamie Phillips. The offender is sentenced to a non-parole period of 15 years and 9 months commencing 10 October 2019 and expiring 9 July 2035 with a balance of term of 5 years and 3 months expiring 9 October 2040. The offender is first eligible for parole on 9 July 2035.

NATHAN McIVOR is convicted of the murder of Jamie Phillips. The offender is sentenced to a non-parole period of 15 years commencing 7 March 2019 and expiring 6 March 2034 with a balance of term of 5 years expiring 6 March 2039. The offender is first eligible for parole on 6 March 2034.

Catchwords:

CRIME – sentence – murder – joint criminal enterprise – where three co-accused found guilty of murder by jury – where victim died of stab wound – co-accused and victim at premises of well-known drug dealer when offending occurred – witness heard co-accused and victim fighting and subsequently saw body of the victim – victim’s body dumped on side of road– alternative bases put forward at trial by Crown – joint criminal enterprise to inflict grievous bodily harm or joint criminal enterprise to assault deceased where parties contemplated the possibility that grievous bodily harm would be inflicted – evidence not sufficient to prove beyond reasonable doubt that offenders agreed to inflict grievous bodily harm on deceased – offending just below mid-range of objective seriousness – parity amongst offenders – no finding of special circumstances – two offenders on parole at time of offending - importance of deterrence

SENTENCING – sentencing procedure – victim impact statements – where parts of statements attacking offender, expressing opinions about length of sentence, or giving evidence about medical condition rejected – where rest of statements taken into account

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 26, 28, 30E, 30F

Crimes Legislation Amendment (Victims) Act 2018 (NSW)

Cases Cited:

Jonson v R [2016] NSWCCA 286

R v Lulham [2016] NSWCCA 287

R v Qutami [2001] NSWCCA 353

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Crown
Barry Paul Cavanagh (Offender)
Nathan McIvor (Offender)
Sean David O’Keefe (Offender)

Representation:

Counsel:
C Taylor (Crown)
W Terracini QC (for the Offender Barry Paul Cavanagh)
N Steel (for the Offender Nathan McIvor)
R Pontello SC (for the Offender Sean David O’Keefe)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Voros Lawyers (for the Offender Barry Paul Cavanagh)
Jamieson Criminal Law (for the Offender Nathan McIvor)
The Defenders (for the Offender Sean David O’Keefe)

File Number(s):

2019/113050; 2019/74438; 2019/111830

Publication restriction:

Non-publication order pertaining to any material relating to childhood sexual abuse of any of the offenders

Judgment

1. On 25 October 2018 Jamie Phillips died from a stab wound inflicted at premises occupied by Sharyn Gallagher at 3 Defarge Way, Ambarvale. His body was found naked at the side of a house in Rosemeadow at about 1:00pm on that day. In addition to the stab wound, Mr Phillips had sustained a series of blunt force injuries which resulted in nasal bone fractures, abrasions, bruises and a laceration to the scalp and face, bruising of the neck muscles, and a fracture of the left superior horn of the thyroid cartilage in his neck. There were other injuries to his arms and legs.

2. Barry Cavanagh, Nathan McIvor and Sean O’Keefe had been present at the Ambarvale premises along with Sharyn Gallagher on the night of 24 October and into the early hours of the morning of 25 October.

3. In early 2019 each of those three men was arrested and charged with the murder of Mr Phillips. They stood trial before a jury of 12 presided over by me in January and February 2021.

4. On 16 February 2021 the jury returned verdicts of guilty in respect of each of the accused, and in doing so they must have rejected a defence put forward on behalf of Mr O’Keefe of self defence.

5. The offenders now come to be sentenced by me for that murder. The maximum sentence for murder is life imprisonment and there is a standard non-parole period of 20 years’ imprisonment.

6. The Crown does not submit that the level of culpability of the offenders is so extreme that a life sentence should be imposed.

Facts concerning the offending

7. The offenders had been in one another’s company during the course of 24 October. At about 7pm they were at Mt Druitt Railway Station. At some time that evening they travelled to Campbelltown where, as a result of an arrangement between Mr Cavanagh and Sharyn Gallagher, they picked Ms Gallagher up in Mr McIvor’s car and drove to her house. Ms Gallagher said that she had met Mr Cavanagh previously on one occasion, but she did not know Mr McIvor or Mr O’Keefe.

8. Jamie Phillips had arrived at Ms Gallagher’s place at some time during the afternoon of 24 October 2018. Earlier in the day he had eaten a meal with his brother, stolen about $900 from him, and had set off to go to Ms Gallagher’s premises. Ms Gallagher was a well-known drug dealer in the area, and people went to her premises to be supplied with drugs by her.

9. Whilst Jamie Phillips was at her premises, it was evident to persons present at Ms Gallagher’s house at various times that afternoon and evening that he had consumed methylamphetamine, to which he was addicted at the time. He was also in possession of more methylamphetamine, because he was seen injecting himself with it at Ms Gallagher’s premises that night. Those who saw Jamie Phillips that afternoon and night described him as being well under the influence of drugs.

10. At one stage in the early hours of the morning, Ms Gallagher went to the bathroom. She could hear a banging noise from the bedroom which adjoined the bathroom. It sounded like furniture moving. She also heard voices. Ms Gallagher banged on the bedroom door and asked what was going on. She tried to open the door but it had been locked. She said that either Mr O’Keefe or Mr McIvor called out, “It’s all right Shaz, it’s just us boys sorting out our shit”. She told them to sort it out elsewhere.

11. She went into the backyard. Shortly after Mr McIvor came out and asked her to go back into the house saying “Everything was alright”. She went to her bedroom and a few minutes later Mr McIvor walked in with a knife in his hand. She also saw Mr O’Keefe with a knife in his hand, and with the knuckle on his right hand bleeding a little. She claimed to be effectively prevented from leaving her bedroom, although when she needed to go to the toilet at one point she was escorted there by Mr O’Keefe who stood outside the door. At that time, she again heard voices emanating from the adjoining bedroom, and she said that the voices sounded like those of Mr Cavanagh and Mr McIvor.

12. When she came out of the bathroom she looked into the bedroom because the door was slightly open. At that stage she said she could see the bottom of a shoe with the sole facing upwards on the floor. It belonged to Jamie Phillips who was, at that time, dead or dying on the floor of that bedroom.

13. Ms Gallagher said she was then prevented from leaving her room again for more than half an hour, until she was let out of the room by Mr Cavanagh, who, she observed, had a couple of drops of blood on his shoe.

14. The body of Jamie Phillips was taken from the house and put in Mr McIvor’s car while Ms Gallagher said she was locked in her bedroom. Mr McIvor and Mr O’Keefe then drove around, first intending to go to the hospital, but ultimately taking Jamie’s body to the place where it was found. Before the body was placed there, Mr O’Keefe removed Jamie’s clothes. Subsequently Mr McIvor and his girlfriend burnt those clothes in a 44 gallon drum in the bush off the Appin Road later that day.

Objective seriousness

15. The Crown put the case on alternative bases. The first was that there was a joint criminal enterprise by the offenders to inflict grievous bodily harm upon the deceased. The alternative case was that there was a joint criminal enterprise to assault the deceased, but that each of the participants contemplated the possibility that grievous bodily harm would be inflicted upon him. Either case is consistent with the jury’s verdict.

16. I cannot be satisfied beyond reasonable doubt that the offenders agreed to inflict grievous bodily harm on the deceased. Although, of course, a motive to assault or to inflict grievous bodily harm is not an element of the offence, the discernment of a motive may provide an understanding as to which of the alternatives is more likely.

17. It does not appear that any of the offenders knew Jamie Phillips before they met him on the day of the murder. It appears that the cause of the fight which occurred between one or more of the offenders in the first instance and the deceased, and went on to involve the other offenders, arose from the intention of one or more of the offenders to take either money or drugs from the deceased. Witness A said that Mr Cavanagh told him (using Witness A’s words):

There was an altercation, that they were sort of wigging out or something and it was sort of a drug deal or something gone wrong, something to do with drugs.

It was not the Crown case that the joint criminal enterprise was to rob the deceased. However, Witness A’s evidence was the only evidence that suggested a motive for the assault on Jamie.

18. It is also significant that there was only one stab wound. I accept that some of the blunt force injuries sustained by Mr Phillips constitute grievous bodily harm. However, it is clear that they were sustained during a fight, and I cannot be satisfied beyond reasonable doubt that there was an intention to cause grievous bodily harm in relation to those blunt force injuries.

19. Although it is not my task to guess the approach that the jury adopted, it ought to be mentioned that the jury sought further directions on extended joint criminal enterprise immediately before returning their verdicts. That was the second enquiry by the jury about that matter.

20. By their verdicts, the jury accepted that each of the offenders was a party to a joint criminal enterprise which ultimately resulted in Mr Phillips’ death. Nevertheless, it is important to discern, as far as can be ascertained, what the role of each offender was. In theory, a participant in such an enterprise who carries out the stabbing would have a greater moral culpability than one who merely stood by ready to assist.

21. The difficulty in the present case is knowing what role each of the offenders played in Mr Phillips’ death. On Ms Gallagher’s evidence, all three of the offenders were in the room with Mr Phillips when she heard the shouting and banging. As noted earlier, she said that both Mr McIvor and Mr O’Keefe came down to her bedroom where she was sitting. Each of them was carrying a knife, and Mr O’Keefe had a little bit of blood on his right knuckle. Although that was Ms Gallagher’s evidence, there was, as I have said, only one stab wound.

22. Witness A gave evidence of discussions with Mr Cavanagh and Mr O’Keefe which led Witness A to think that Mr Cavanagh had stabbed Mr Phillips, but that Mr O’Keefe was going to take responsibility for it because he felt responsible for the situation. Witness A also said that Mr Cavanagh told him that Mr O’Keefe was in the lounge room at Ms Gallagher’s house, and Mr Cavanagh heard noises coming from the lounge room, so he and Mr McIvor ran to that room and became involved in the fight. The evidence that the fight took place in the lounge room is entirely inconsistent with Ms Gallagher’s evidence of where it took place.

23. Mr McIvor’s girlfriend, Amanda Robinson, gave evidence of what Mr McIvor said to her later on the day of the offence as follows:

He told me a fight broke out between him, his mates and he said a Samoan guy at the time. So one of his mates was fighting with Jamie at the time and then another friend jumped in and had a fight with him. That’s when Jamie supposedly dropped to the ground. Nathan then said that he done CPR and that’s when one of his mates said that it was too late, he’s been shived.

24. It was submitted on Mr McIvor’s behalf that this should be regarded as an admission against interest, and that it should be inferred that Mr McIvor was not aware of the knife or that Mr Phillips had been stabbed until after he had been informed of that by one of the other offenders. Alternatively, it was submitted that the court could not be satisfied beyond reasonable doubt that Mr McIvor was ever aware that one of the offenders was armed with a knife prior to the deceased being stabbed. The account given by Mr McIvor was not a statement entirely against his interest, because it minimised Mr McIvor’s involvement.

25. Mr O’Keefe gave evidence at the trial (repeated at the sentence hearing) that he was the person who stabbed Jamie, but in self-defence. While the jury certainly rejected self-defence, there is no certainty that they rejected his admission that he stabbed Jamie. Ms Gallager’s evidence of Mr O’Keefe holding a knife with blood on his knuckle tends to support his admission to stabbing Jamie. However, the jury may have accepted the evidence of Witness A that Mr O’Keefe was going to put his hand up for the crime, and be taken care of for doing so. The inference the Crown sought to have drawn from this evidence of Witness A was that it was not Mr O’Keefe but Mr Cavanagh who had stabbed Jamie. In that regard, the Crown in his final address to the jury pointed to Mr Cavanagh as being the person responsible for stabbing Jamie.

26. The evidence does not enable me to conclude beyond reasonable doubt which of the offenders stabbed Mr Phillips, but I do find on the balance of probabilities in Mr McIvor’s favour that it was not Mr McIvor. However, that finding does not help me to differentiate the moral culpability of the offenders. Mr Phillips was also badly beaten as the blunt force injuries demonstrate, and some of those injuries constituted grievous bodily harm. There is no evidence to show who was responsible for those and the other injuries. At some stage all three offenders were involved in the fight.

27. While the dumping of Jamie’s body by Mr O’Keefe, aided by Mr McIvor, was an aggravating factor, Mr Cavanagh’s role, on the basis of Ms Gallagher’s evidence, was to ensure that she stayed in her room while Jamie’s body was taken out to the car, and then to wash the blood off Mr Cavanagh’s shoes before he left her place. The removal of Jamie’s body from the house and his abandonment in the place he was found was all part of the joint criminal enterprise. I do not differentiate the moral culpability of any of the offenders.

28. The offending was aggravated by being carried out in company. Whilst I accept that a knife was used, the use of a weapon, and a knife in particular, is such a common aspect of murder that its presence may be regarded as only a slight aggravation.

29. Although the Crown submitted that the offence was aggravated by being committed in Sharyn Gallagher’s home, relying on s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), I do not consider that it is so aggravated. Such a reading of paragraph (eb) would mean that every offence committed in any person’s home, even if the victim had little or no connection to that home, would be aggravated. It seems to me clear from what was said by the Court of Criminal Appeal in Jonson v R [2016] NSWCCA 286 that the purpose of the section was one that accepted that a home is a place where a person should feel safe and secure – see at [40] per Bathurst CJ (Beazley P, Hall, Bellew and N Adams JJ agreeing); and see also R v Lulham [2016] NSWCCA 287 at [5].

30. Ms Gallagher’s home was not such a place. It was a notorious residence for the supply of drugs by Ms Gallagher, what is known as a ‘crack house’, and the people who resorted to it, as the facts of this case show, did so for the purpose of obtaining drugs. In that sense, it had all the hallmarks of commercial premises, albeit illegal commercial premises. No person resorting to that house had any basis for expecting it to be a safe place from anyone else who was there with the express or implied consent of Ms Gallagher. It might be different if the injury or death arose from a home invasion at the property.

31. The offending does not appear to have been planned, at least not until a very short time before the altercation took place. On Ms Gallagher’s evidence, the purpose of the offenders travelling to her place was to meet Daniel Zammit, and none of them knew Mr Phillips beforehand or, seemingly, that he would be at her premises.

32. In my opinion, particularly given my finding that the original intention was only to assault Mr Phillips, the offending is just below the mid-range of objective seriousness.

Subjective matters

1. Barry Cavanagh

33. Mr Cavanagh did not give evidence either at the trial or at the sentence proceedings.

34. The only evidence put forward on his behalf was a report by the forensic psychologist, Anne Lucas, from Duffy Robilliard Psychologists. Mr Cavanagh’s account to Ms Lucas was of a background of drugs, violence and neglect. His father was violent towards his mother. After his parents separated, his mother entered into several relationships, and some of those men bashed Mr Cavanagh, even as a child under ten years of age.

35. His mother smoked cannabis regularly and may have used amphetamines. While she was not an abusive parent she was a disengaged and uninterested one.

36. Mr Cavanagh ran away from home aged about ten years to avoid family violence. He was made a State ward at the age of 12, but absconded from different placements and lived on the streets when he was not in homes. He described a lifestyle heavily influenced by drug taking and by committing crimes to obtain illicit drugs. He has never been in a permanent relationship and he has no children.

37. For a period of time he was treated with Suboxone (Buprenorphine) whilst in the community, but had to cease using it because of the cost. Whilst he has been in custody more recently, he has been on the Methadone program, and he reported that Methadone worked sufficiently to quell any urge to use illicit drugs.

38. Mr Cavanagh began using cannabis aged 12, started smoking heroin at 16 and injecting it at around 17 or 18. He said he began to use methylamphetamine during his last prison sentence, and then continued to use the drug on his release.

39. He did not claim to suffer any cognitive incapacity or disability. He was assessed on the Wechsler Abbreviated Scale of Intelligence and the Wechsler Adult Intelligence Scale as being in the Low Average to Average range. He was assessed for risk of future violence on the Historical Clinical Risk Management-20 (HCR-20) and, based on the presence of numerous risk factors Ms Lucas concluded that he represented a high risk of further violence. She said that, whilst Mr Cavanagh did not openly endorse violent attitudes, he engaged in cognitive distortions which minimised, normalised and justified the use of violence.

40. Ms Lucas concluded that the risk assessments conducted pointed to a range of factors or criminogenic needs which, if addressed as part of his rehabilitation, should lower his risk of reoffending at the time of eventual release.

33. Ms Lucas concluded that professional literature indicates that children exposed to violence and neglect are more likely to have difficulty in school, abuse drugs or alcohol, act aggressively, suffer from depression or other mental health problems, and engage in criminal behaviour as adults. She said:

The emotional detachment he now presents with is potentially a consequence of the difficulties he described having been subject to as a child. He has described having been exposed to severe family violence, subjected to direct violence and has now reported being [otherwise] victimised in an environment where he was supposedly under the protection of the Department of Communities and Justice.

42. I note in that regard other matters disclosed by Mr Cavanagh’s legal representatives to the psychologist concerning other abuse suffered by Mr Cavanagh whilst he was in State care, and in respect of which he has brought proceedings against the State.

43. Mr Cavanagh’s criminal record commences in 1996 when he was 13 years of age. He came before the Children’s Court for offences of break, enter and steal, stealing a motor vehicle, receiving stolen goods, and having goods in custody. There were a number of appearances for similar offending over the next 12 months, but by early 1997 the offending had escalated to offences of violence, including against the police.

44. In 2002 and 2008 he was convicted of six separate counts of robbery armed with an offensive weapon, and he spent most of the years 2001-2016 in custody. At the time of the present offending he was on parole in relation to a sentence imposed upon him for armed robbery on 6 June 2008. That is an aggravating factor.

45. After his arrest for the murder, Mr Cavanagh was sentenced on two separate occasions for other offences committed after the murder. I will return to those offences later in this judgment, but they point clearly to a poor prognosis for his rehabilitation and risk of further offending.

46. Mr Cavanagh’s criminal record entitles him to no leniency.

47. Mr Cavanagh did not give evidence, even to the extent of affirming the truth of what he told Ms Lucas. Nevertheless, whilst noting the principle derived from R v Qutami [2001] NSWCCA 353 and similar cases, I accept what is contained in Ms Lucas’s report concerning Mr Cavanagh’s background. The connection that she makes between his offending and her observations of, and conclusions about, him on the one hand, and his childhood trauma and background on the other, justifies the acceptance of the material.

48. Given the extent of Mr Cavanagh’s offending, and the length of time he has spent in custody during his adult life, I consider that without sustained and intensive professional assistance, his risk of reoffending is high and his prospects of rehabilitation are poor. He maintains his innocence in relation to the offending and I do not find that he is remorseful. Ms Lucas noted that he did not freely offer any empathy for Mr Phillips.

1. Nathan McIvor

49. Mr McIvor did not give evidence either at the trial or at the sentence proceedings. He relied on a psychological assessment report from Dr Kala Ram and a medicolegal report from Associate Professor Michael Robertson.

50. The report from Dr Ram discloses that Mr McIvor reported having a “good upbringing” in a nice neighbourhood in a family that never struggled financially, although his parents argued a lot.

51. His problems appear to have begun, according to both Associate Professor Robertson and Dr Ram, from a time when he said that he was sexually abused by a Marist brother at St Gregory’s College in Campbelltown where he attended in Years 7 and 8. He said that he was sexually assaulted by the Brother on two separate occasions. After that time he began to get into trouble at school. He transferred to Patrician Brothers at Liverpool in Year 9, but left in term 3 of Year 10 before completing his School Certificate.

52. It appears to be at this time that he commenced drinking alcohol and using cannabis. By the age of 15 he was using heroin, first by smoking it and then, at the age of 16, by injecting it. He claimed that it numbed his psychological pain.

53. At the age of 17 after he had commenced an apprenticeship in painting, he was involved in a serious car accident. Both his legs were broken and he sustained injuries to his kneecap. He was bed-ridden for approximately three months, and spent another eight to nine years recovering from his injuries. He underwent a number of operations. He said that he still suffers chronic pain, especially during winter.

54. From about the age of 18 Mr McIvor started to gamble, and after receipt of a lump sum of $30,000 from Workers Compensation as a result of the car accident, he spent all of the money on drugs and gambling in one month.

55. For some three years he received Suboxone injections by his general practitioner which allowed him to be drug free for those three years.

56. In 2013 he tried other drugs when in gaol, including methylamphetamine. Heroin, however, was his drug of choice.

57. Professor Robertson’s report was prepared as part of Mr McIvor’s claim for damages for his abuse at school. Professor Robertson diagnosed him with Post Traumatic Stress Disorder, comorbid with Substance Abuse Disorder. Professor Robertson said Mr McIvor’s detailed account of the sexual abuse supported the conclusion that his history was truthful. He said that false accusations of childhood sexual abuse have been shown to be rare.

58. Professor Robertson said that Mr McIvor was morbidly preoccupied with the motivations of the perpetrator. He said, as Mr Cavanagh’s psychologist had said, that there was a strong causal relationship between childhood sexual abuse and both problem drug use and psychiatric disorder. He said that Mr McIvor had little work capacity for paid employment because of his chronic psychiatric and drug use problems, and his limited educational attainment. He thought his prognosis was poor, because childhood sexual abuse is associated with a poor prognosis for mood and anxiety symptoms. He said Mr McIvor had limited social supports outside his family.

59. Dr Ram administered a series of psychometric tests. Mr McIvor scored above the cut-off score for individuals who might benefit from PTSD treatment. Mr McIvor’s profile on the Paulhus Deception Scale was one,

usually found in individuals who are aware of their problems and whose responses are not unduly influenced by what others may think of them. Individuals with this profile tend to be blunt and direct in style, and their responses to inventories are likely to be honest and valid.

60. On the Personality Assessment Inventory (PAI), Dr Ram found no evidence to suggest that Mr McIvor was generally motivated to portray himself as being relatively free of common shortcomings or minor faults. There were also indications suggesting that he tended to portray himself in a consistently negative or pathological manner, which could be indicative of a “cry for help” or an extremely negative evaluation of himself.

61. Dr Ram considered that the configuration of the clinical scales in the PAI suggested Mr McIvor was a person with a history of substance abuse problems who was experiencing prominent stress and anxiety. His pattern of responses revealed that he was likely to display a variety of maladaptive behaviour patterns aimed at controlling the anxiety. Dr Ram thought that the sexual abuse was related to the recurrent episodes of anxiety.

62. Dr Ram assessed Mr McIvor on the HCR-20-Version 2. His score placed him at moderate risk for future violence. Dr Ram said that it was noteworthy that most of Mr McIvor’s overall score was attributable to historical/stable factors that remain stable across time.

63. Dr Ram said that Mr McIvor expressed remorse and some insight for what had occurred. Mr McIvor’s father swore an affidavit in which he said that his son had expressed to him on a number of occasions how disappointed he was in being involved in the events, and that he felt terrible that Mr Phillips had lost his life.

64. Dr Ram had regard to Professor Michael Robertson’s report, and diagnosed Mr McIvor as suffering from PTSD, and Major Depressive Disorder with Anxious Distress. On the basis of Mr McIvor’s report that he had abstained from drugs whilst in gaol, Dr Ram considered that that was a significant protective factor in assessing his risk of recidivism. Additional protective factors included the strong support of his family, realistic direction for his future, stable accommodation, insight and a willingness to engage in therapy to resolve his longstanding, unresolved traumas, as well as no current drug or alcohol concerns. Dr Ram said that all of those factors supported a positive prognosis and a reduced risk of recidivism.

65. Mr McIvor was born in 1982. He first came before the Courts at the age of 18 when convicted of being an accessory after the fact to an attempted break and enter, and larceny. In 2002 he was sentenced to two years’ imprisonment for two robberies in company. In 2003 he was sentenced to five years and six months’ imprisonment for armed robbery. In 2008 he was convicted of two armed robberies and an assault with intent to rob in company. An overall sentence of nine years and six months was reduced on appeal to an overall sentence of eight years’ imprisonment. His criminal record does not entitle him to any leniency.

66. His father said in his affidavit that he intends to continue to support Mr McIvor. He says that he believes he is someone who is capable of being a responsible member of the community.

67. Although Dr Ram thought that Mr McIvor’s abstention from drugs in prison was a significant protective factor in assessing his risk of recidivism, Dr Ram also noted that prison was a controlled environment. Mr McIvor has been on the methadone program while in custody, and that has been efficacious. Nevertheless, taking into account his background and drug history, I consider that his prospects of rehabilitation and the risk of reoffending should be assessed as guarded.

68. I am prepared to accept, particularly from the unchallenged evidence from his father, that Mr McIvor is remorseful for what happened.

1. Sean O’Keefe

69. Mr O’Keefe gave evidence both at the trial and at the sentence hearing. The import of his evidence at the trial was that he was the person responsible for stabbing Mr Phillips, but that he did so in self-defence. By its verdict, the jury must have rejected Mr O’Keefe’s account.

70. At the sentence hearing Mr O’Keefe continued to maintain that he stabbed Mr Phillips in self-defence, but he accepted that, because he had been found guilty, it now did not matter what he said about the circumstances of the killing. Mr O’Keefe also said that he told the truth to Dr Simonelli, a psychiatrist, and Dr Ashkar, a neuropsychologist, whom he saw and on whose reports he relied. The report from Dr Ashkar was prepared in April 2018, prior to Mr Phillips death, for the purpose of assisting with his rehabilitation and treatment planning at a time when he appears to have been on parole from earlier offending, which will be mentioned shortly.

71. What emerges from those reports is that Mr O’Keefe grew up in a religious Irish Catholic family where his father was very strict. He was diagnosed with Attention Deficit/Hyperactivity Disorder around the ages of eight or nine. At an early age he demonstrated features of Conduct Disorder and was expelled from multiple high schools. He claimed to have been arrested for a break and enter offence at the age of 14, with his criminal behaviour continuing until he first entered an adult prison at the age of 18. He said that he had “mainly been in gaol since 2000”.

72. His criminal record does not bear these matters out. In fact, his first offending appears to have taken place when he was aged 18 and until he was first imprisoned in 2001 he was either fined for his offences or received probation. The explanation for this inaccurate reporting is probably explained from what appears throughout the reports of Dr Simonelli and Dr Ashkar, that Mr O’Keefe’s memory is extremely poor, both because of the number of traumatic injuries to his head he has sustained generally as a result of physical violence, and from his heavy drug use from early adolescence.

73. Mr O’Keefe told Dr Simonelli that he first used alcohol and cannabis at the age of 12. He used cannabis regularly for two years and then commenced using heroin at the age of 14 years. He first injected heroin at the age of 15 and was injecting regularly by the age of 18. Since that time he told Dr Simonelli that he had used all types of illicit substances including speed, ice, cocaine, benzodiazepines, and party drugs. He said that he had been on Methadone since the age of 23. That differed a little from what he told Dr Ashkar, which was that he had used cocaine, amphetamine, methamphetamine and heroin when aged 14 or 15 years old, and used those drugs heavily from the age of 17, with heroin being his drug of choice.

74. Mr O’Keefe has been scheduled a number of times under the Mental Health Act, generally in the context of drug use.

75. Mr O’Keefe gave evidence of a number of assaults he had sustained whilst in prison at various times. As a result of these assaults he has suffered brain injury which has affected his memory.

76. Dr Simonelli diagnosed him suffering from Traumatic Brain Injury - Mild to Moderate, Post-Traumatic Stress Disorder, Opiate Misuse Disorder – in forced remission, Anti-social Personality Disorder and Adult ADHD, the last of these requiring further testing to confirm.

77. As noted earlier, Mr O’Keefe’s first instance of offending occurred about six months prior to his 18^th birthday. He was first imprisoned in August 2001 and it is fair to say that he has spent most of his life up to the present time in prison. His offending has chiefly consisted of property offences with a large number of break and enters. While the only clear offence of violence on his record was a common assault committed in 2008 for which he received a term of imprisonment of four months, he has been convicted three times of having custody of a knife in a public place.

78. In addition, an offence of aggravated break, enter and commit a serious indictable offence involved him being armed. That was an offence for which he was sentenced on 17 April 2014 to imprisonment for six years. That means that he was on parole at the time of the present offence. Further, whilst on that parole he was convicted of having goods in custody suspected of being stolen, and having custody of a knife in a public place. He was placed on two s 9 bonds for 12 months on 29 June 2018. He was, accordingly, both on parole and those bonds at the time of the commission of the present offence. That is a seriously aggravating matter.

79. Subsequently to going into custody, he was convicted of, and sentenced for, a larceny committed a little under one month after the murder.

80. His record generally consists of the type of offending one sees for persons who are addicted to drugs. His criminal record does not entitle him to any leniency.

81. Evidence was given on Mr O’Keefe’s behalf by Julie Sneddon, the CEO of Cana Communities Incorporated. She also provided a written reference for him. Cana Communities is a charity which works with people who have complex issues, who have been in gaol over long periods of time, and/or who have been living on the streets. Cana works closely with Corrective Services New South Wales. It assists people with employment and provides them with mentors.

82. Ms Sneddon had known Mr O’Keefe for about five years. She spoke well of him. She said he had volunteered at a farm run by the charity, and he also worked on a project at Government House. She said that those at the charity had never had any issues with Mr O’Keefe. She said that Mr O’Keefe’s involvement in the murder was out of character for what she knew of him, particularly the violence involved.

83. Given that Mr O’Keefe says that he was responsible for stabbing Mr Phillips, it is a little difficult to see much use that can be made of her evidence that his involvement in the murder was out of character. It seems also clear that she did not know him at the times he was involved in violent or potentially violent offending such as the assault or the armed break and enter. I am not being at all critical of Ms Sneddon, whose evidence tends only to show that she did not know his complete criminal history, and that up until the murder, Mr O’Keefe was making some progress as far as she knew. In fact, of course, he was continuing to offend, sometimes seriously, in the five year period Cana was endeavouring to help him, and even after the murder.

84. At best, Ms Sneddon’s evidence shows that in some periods Mr O’Keefe was capable of constructive work and a pro-social life. That is relevant to questions of rehabilitation, but considering that Mr O’Keefe appears to have continued to reoffend during the time he was being assisted by Cana, I would assess his prospects of rehabilitation as being poor, and his risk of reoffending being high without sustained pharmacological and psychological treatment, as Dr Simonelli advises.

85. Mr O’Keefe gave evidence that he thinks about Jamie every day, that he feels terrible for what happened and the hurt that he caused Jamie’s family, and that he wished he could change what happened. He said he would have to live with the guilt for the rest of his life. I find that he is genuinely remorseful.

Victim impact statements

86. Victim impact statements were read by Hayley Drew and on behalf of Kylie Morris, Jordan Phillips, Hannah Phillips and Jamie’s mother, Cheryl Phillips.

87. Objection was taken on behalf of Mr O’Keefe to highlighted portions in each of the victim impact statements that became exhibits B, C, D, E and F at the sentence hearings. I will not set out those portions to which objection has been taken, but it is sufficient to say that the material consisted either in personal attacks on the offenders, statements about what sentence the maker of the statement felt should be imposed and, in the case of Kylie Morris, hearsay evidence that certain medical issues which she suffered had resulted from the effect of Jamie’s death on her.

88. The present proceedings are governed by Div 2 of Pt 3 of the Sentencing Act prior to its amendment by the Crimes Legislation Amendment (Victims) Act 2018 (NSW). That is because the Amendment Act only applies to proceedings commenced after the commencement date of that Act. That Act commenced on 22 May 2019 and the Court Attendance Notice commencing these proceedings against Mr O’Keefe was filed on 10 April 2019. Section 26 of the Sentencing Act defined victim impact statement as meaning:

A statement containing particulars of:

(a)   …

(b)   In the case of family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family.

89. Statements that amount to attacks on, or vilification of the offenders, and statements expressing opinions about the length of the sentence, do not fall within the concept of “the impact of the primary victim’s death” on the person making the statement. Nor is it appropriate for a person making the statement to give hearsay evidence concerning their own medical condition, and whether or not that has been brought about by the death of the primary victim.

90. I do not consider that the position is any different even if regard is had to the terms of s 28 of the Sentencing Act as amended by the 2018 Amendment Act.

91. I would reject those highlighted portions in relation to Mr O’Keefe. I note that no objection was taken to them by those acting for Mr Cavanagh and Mr McIvor. However, s 28 its unamended form, and ss 30E and 30F of the Act as it now stands, accord a discretion to the Court with regard to how the statements are used. I do not intend to have regard to the highlighted portions in relation to any of the offenders.

89. It is clear from hearing and reading the victim impact statements that Jamie was greatly loved by his family, and his death has had a considerable and lasting impact on them.

90. The Crown applied under s 28(4) of the Sentencing Act that the victim impact statements should be considered and taken into account by the court in connection with the determination of the punishment of the offenders. No submissions were addressed on behalf of the offenders about that application.

91. I consider that I should take those statements into account in connection with the determination of the punishment of the offenders. While Jamie had his own problems, and those problems put him into the dangerous situation that led to his death, the impact on the members of Jamie’s family is certainly an aspect of harm done to the community, in circumstances where his murder most likely arose out of a dispute involving illegal drugs.

92. I again extend on behalf of the Court condolences for his loss to all the members of Jamie’s family.

Special circumstances

96. There is nothing to indicate any special circumstances for any of the offenders. Each is in need of significant assistance to effect their rehabilitation towards being law abiding and pro-social members of society. There will be sufficient time on parole in the sentences to be imposed, during which I hope that can be achieved.

Deterrence

97. Murder is the most serious crime in the criminal calendar. Nothing can replace a life taken away. Families are left devastated and nothing is the same for them again. Sentences for murder must serve as a deterrent to others. Offenders must themselves be deterred from continuing to offend. In the present case that applies most particularly to Mr Cavanagh and Mr O’Keefe.

Parity

98. I have already indicated that I do not consider there is any difference in the moral culpability amongst the three offenders as far as their involvement in the killing is concerned. When the background and subjective circumstances of each of the offenders is considered, except as far as their criminal records are concerned, I cannot distinguish amongst them. Mr Cavanagh’s family life was such that he scarcely stood a chance from the outset. While Mr McIvor’s family life was a good one, his own circumstances were permanently impaired from being sexually assaulted at a young age. Mr O’Keefe suffered from ADHD from an early time which led to the behavioural problems and eventual drug use.

99. The significant difference between Mr McIvor and the other offenders relates to their respective criminal records. In the first place, although Mr McIvor’s early offending involved a number of armed robberies, the last time he was in prison for any offences prior to the murder was September 2015. His minor offending since that time has resulted only in modest fines and a 12 month s 10 bond.

100. Quite apart from the extent of the criminal records of Mr Cavanagh and Mr O’Keefe, they were not only on parole at the time of the murder, and Mr O’Keefe was also on bonds, but both of them went on to commit further offences after the murder. The former, as I have said, is an aggravating factor, and the subsequent offences mean that the need for specific deterrence is greater in their cases, and their prospects for rehabilitation and no further offending are much poorer.

101. The distinction I have made in the sentences to be imposed reflect those differences.

Sentence

102. Mr Cavanagh was arrested on 11 April 2019 whilst he was in custody on remand for offences of possessing an unauthorised pistol and ammunition on 20 December 2018. He went into custody on remand on 21 December 2018. At the time of the murder and his arrest for it he was on parole, having been sentenced on 6 June 2008 to 10 years’ imprisonment for robbery armed with an offensive weapon. The sentence expired on 9 September 2020. At some time his parole appears to have been revoked.

103. On 7 June 2019 Mr Cavanagh was sentenced in the Penrith Local Court for possessing or using a prohibited weapon without a permit to imprisonment for four months commencing 16 January 2019 and concluding 15 May 2019. On 8 October 2020 he was sentenced in the Parramatta District Court to imprisonment for two years commencing 15 June 2019 and concluding on 14 June 2021 with a non-parole period of 18 months concluding 14 December 2020 for the offence of possessing the unauthorised pistol on 20 December 2018. After that non-parole period expired, he remained in custody on remand for the present offence.

104. His time on remand for the present murder charge is, therefore, referable also to those two sentences. Taking into account principles of totality, his sentence for the present offence should commence on 11 April 2020.

105. Mr O’Keefe went into custody on 15 January 2019 when he was apparently arrested for four serious motor vehicle offences committed on 2 January 2019. He was remanded in custody. He was arrested while in custody and charged with the murder of Jamie Phillips on 10 April 2019. Before the motor vehicle offences were dealt with, he came before Campbelltown Local Court on 29 May 2019 to be sentenced for a larceny committed on 20 November 2018. He was sentenced to four months’ imprisonment commencing 7 February 2019. He was then sentenced on 12 December 2019 for the motor vehicle offences. The sentence was an aggregate sentence of 12 months with a non-parole period of nine months commencing 8 June 2019 and concluding on 7 March 2020.

106. His time in custody from the time of his arrest on 10 April 2019 until 7 March 2020 has not been solely referable to the murder charge. In the circumstances, I propose to commence his sentence on 10 October 2019.

107. Mr McIvor was arrested on 7 March 2019 and has been in custody since that time. His sentence will commence on that day.

108. BARRY PAUL CAVANAGH: I convict you of the murder of Jamie Phillips. I sentence you to a non-parole period of 15 years and 9 months commencing 11 April 2020 and expiring 10 January 2036 with a balance of term of 5 years and 3 months expiring on 10 April 2041. You are first eligible for parole on 10 January 2036.

109. SEAN DAVID O’KEEFE: I convict you of the murder of Jamie Phillips. I sentence you to a non-parole period of 15 years and 9 months commencing 10 October 2019 and expiring 9 July 2035 with a balance of term of 5 years and 3 months expiring 9 October 2040. You are first eligible for parole on 9 July 2035.

110. NATHAN McIVOR: I convict you of the murder of Jamie Phillips. I sentence you to a non-parole period of 15 years commencing 7 March 2019 and expiring 6 March 2034 with a balance of term of 5 years expiring 6 March 2039. You are first eligible for parole on 6 March 2034.

111. I am obliged to warn each of you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

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Decision last updated: 25 June 2021