R v Clay, Lonsdale and JM

[2006] NSWSC 1220

CITATION:	R v Clay, Lonsdale and JM [2006] NSWSC 1220
HEARING DATE(S):	21/08/2006, 23/08/2006, 28/09/2006. 20/10/2006, 27/10/2006, 10/11/2006
JUDGMENT DATE :	17 November 2006
JUDGMENT OF:	Buddin J
DECISION:	Manslaughter - offender Clay sentenced to a non-parole period of 3 years to date from 5 January 2005 and to expire on 4 January 2008 with the total sentence being one of 5 years to date from 5 January 2005 and to expire on 4 January 2010. The offender is eligible for release on parole on 4 January 2008. Manslaughter - offender Lonsdale sentenced to a non-parole period of 4 years to date from 21 January 2005 and to expire on 20 January 2009 with the total sentence being one of 6 years and 8 months to date from 21 January 2005 and to expire on 20 September 2011. The offender is eligible for release on parole on 20 January 2009. Affray - offender JM is convicted. Pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act, order that he be released on condition that he enter into a good behaviour bond for a period of nine months and that he appear before the Court if called on to do so at any time during the term of the bond.
CATCHWORDS:	Sentence - two offenders pleaded guilty to manslaughter and one to affray - unlawful and dangerous act - offenders acting in concert - strong subjective features - parity
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	MAH v R [2006] NSWCCA 226 Postiglione v The Queen (1997) 189 CLR 295 R v Adamson (2002) 132 A Crim R 511 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v Andrews (2006) 160 A Crim R 505 R v Benitez (2006) 160 A Crim R 166 R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Cameron (2002) 209 CLR 339 R v Coleman (1990) 47 A Crim R 306 at 327 R v Dib [2003] NSWCCA 117 R v FD & JD (2006) 160 A Crim R 392 R v Hamshere [2005] NSWSC 1319 R v Harmouche (2005) 158 A Crim R 357 R v Hearne (2001) 124 A Crim R 451 R v Hemsley [2004] NSWCCA 228 R v Hill (1981) 3 A Crim R 397 R v Imnetu [2006] NSWCCA 203 R v MA (2004) 145 A Crim R 434 R v McDonald (unreported, NSWCCA, 12 December 1995) R v MD, BM, NA and JT (2005) 156 A Crim R 372 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Tangye (1997) 92 A Crim R 545 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Trevenna (2004) 149 A Crim R 505 R v Troja (unreported, NSWCCA, 16 July 1991) R v Voss [2003] NSWCCA 182 R v WKR (1993) 32 NSWLR 447 R v Yildiz (2006) 160 A Crim R 218
PARTIES:	Regina Harley Mason Clay Anthony Lonsdale JM
FILE NUMBER(S):	SC 2005/2002; 2006/283; 2006/1542
COUNSEL:	J Kiely SC (Crown) M Ramage QC (Clay) A Martin (Lonsdale) Dr J Berwick (JM)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Kings Lawyers (Clay) Nikola Velcic & Associates (Lonsdale) John R de Mattia & Co ( JM)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 17 NOVEMBER 2006

2005/2002 - R v HARLEY MASON CLAY
2006/283 - R v ANTHONY EDWARD LONSDALE
2006/1542 - R v JM

REMARKS ON SENTENCE

Introduction

1 HIS HONOUR: The three offenders stand for sentence in respect of their involvement in an incident at Bidwill on 1 January 2005 which regrettably culminated in the death of Shawn Stephen Matthews (the deceased). Harley Mason Clay and Anthony Edward Lonsdale are to be sentenced following their pleas of guilty to manslaughter. That offence attracts a maximum penalty of 25 years imprisonment. The third offender, a juvenile whom I shall refer to as JM, pleaded guilty to affray, an offence which attracts a maximum penalty of 10 years imprisonment when prosecuted on indictment.

2 Originally the offenders Clay and Lonsdale, together with a man named Raymond Remo-Wetere, were each charged with the murder of the deceased. They were also each charged, in the alternative, with maliciously inflicting grievous bodily harm upon Mr Matthews with intent to do so. Finally, they were also each charged with affray.

3 Having been committed for trial, Clay, Lonsdale and Remo-Wetere entered pleas of not guilty to all charges upon arraignment. Their matters were then set down for trial. Because he was a juvenile at the time, the offender, JM, faced a separate committal hearing following which he was discharged. Some seven months later and only shortly before the trial of the other three accused was due to commence, JM was arraigned, following the presentation of an ex-officio indictment in this Court, on the same charges that the other three accused were then facing.

4 In order that all matters could proceed at the one time, the Crown applied to have the trial of JM joined with the proceedings in respect of the other three accused. Ultimately that application was overtaken by other events. When the matter was called on, but before the jury was empanelled, I was informed that the parties were in discussion with a view to resolving the case. It was as a result of those discussions that the offenders entered the pleas to which I earlier referred. Those pleas were accepted by the Crown in full satisfaction of the indictment brought against each particular accused. Proceedings against the accused Remo-Wetere were “no-billed” and he was accordingly discharged.

The factual background

5 A statement of facts was tendered by the Crown without objection. It is agreed that it provides the factual background against which I should proceed to sentence each of the offenders, and I have drawn heavily upon it for that purpose.

6 The fatal incident occurred at about 2 am on New Years Day in Amelia Way, Bidwill. During the course of the evening residents in the street were celebrating the occasion by having a barbecue and calling into one another’s homes for a drink.

7 The deceased’s de facto partner, Narelle Morris, lived at 3 Amelia Way with her daughter, Jamie-Lee, and her son, Stephen. At the time Ms Morris and the deceased were living apart because the deceased was the subject of a court order which prohibited him from entering her premises. Ms Morris’ movements were also restricted because at the time she was the subject of a Home Detention Order in respect of traffic offences which she had committed. The deceased, who was 38 at the time of his death, was living with a man named Chrissy Patiole at 87 Chestnut Crescent, Bidwill. The deceased was 175 cm tall and weighed 112 kg.

8 Notwithstanding the court order to which I have just referred, the deceased went to 3 Amelia Way in order to spend New Years Eve with Ms Morris. That night he and Ms Morris were also responsible for looking after her 16 year old niece, Danielle Porter.

9 As the night progressed various people, including the offender JM, called in to 3 Amelia Way. During the course of the evening it was realised that Danielle was missing. Shortly after midnight the deceased discovered her in the company of a young man known as Midge. The deceased formed the view that the young girl and Midge had been involved in some kind of misbehaviour. He escorted them home from the location at which he had found them. On the trip back the deceased slapped Midge across the face. That incident caused Midge to run back home.

10 When he arrived outside the premises at 11 Amelia Way the deceased upbraided Midge in a loud voice. His actions prompted a man named Shawn Douglass to come out of that house. Douglass became involved in an argument with the deceased during the course of which the deceased punched him to the mouth. The deceased then walked back to Ms Morris’ premises. He remained there drinking for some time before deciding to return to the premises at 11 Amelia Way. He told other people that he was going there in order to apologise to either Douglass or to Midge’s aunt for his behaviour.

11 The deceased then picked up a bottle of Dimple whisky and walked back up to 11 Amelia Way. The offender Clay was in the front yard when he arrived there. Clay became involved in an altercation with the deceased about the deceased having assaulted Douglass. During the course of the argument, Clay punched the deceased to the head. Shortly thereafter the offenders Lonsdale and JM, together with Remo-Wetere, left the premises at 14 Amelia Way where they had been attending a party hosted by Amy Tenaihi. They also became involved with the deceased and a brawl involving a large number of other people then ensued.

12 The offender Lonsdale was armed with a mattock handle which was about a metre in length. At some stage the deceased fell to the ground whereupon the offender Lonsdale struck him with the mattock handle. Whilst the deceased was still on the ground he was kicked and punched by the offenders Lonsdale and JM, as well as by Remo-Wetere. Clay, Remo-Wetere and JM were all workmates. However Lonsdale did not know any of the others and nor was he known to any of them.

13 The offender Clay continued to lend his support to the enterprise by not leaving the scene and by remaining in close proximity to the deceased as he was being kicked and punched.

14 As a result of the incident the deceased suffered bruising, fractured ribs and a ruptured spleen. He returned to Ms Morris’ house after the incident. Police arrived there shortly thereafter, as did an ambulance. However the deceased would not consent to being examined and also refused to be taken to hospital. He remained at 3 Amelia Way resting on a bed. He went to the toilet at about 8 am the same morning whereupon he had a cardiac arrest.

15 The deceased was then taken to Mt Druitt Hospital where staff commenced resuscitation. From there he was taken to Westmead Hospital where doctors removed his ruptured spleen. He was placed on a life support system on which he remained until he died, on 3 January 2005.

16 At post-mortem it was ascertained that the deceased had died from hypoxic encephalopathy, which involves the brain being starved of oxygen. That in turn was caused by the cardiac arrest which followed the rupture of the spleen. The pathologist who performed the post-mortem, Dr Little, provided a report in which she stated that the spleen is a fairly soft organ which has a fairly firm skin or capsular surface. She explained that when the spleen is damaged, the inner part tends to get damaged more easily than the covering. She said that the interior of the spleen has a lot of blood vessels which bleed when ruptured. Eventually, through the accumulation of blood, the outer skin will stretch and rupture. According to Dr Little when the spleen ruptures, there is a large haemorrhage into the abdominal cavity. In the present case it caused the deceased to have a cardiac arrest. Dr Little opined that because the deceased’s heart was not beating, his brain was not getting any oxygen and that as a result, he suffered massive brain damage which led to his death.

17 Dr Little also discovered that the ribs of the deceased (which were positioned over, or adjacent to, the spleen) were fractured. In her opinion the injuries to the ribs and underlying spleen were consistent with having been caused by blows with the mattock handle.

18 According to the Crown, the substantial and operating cause of death were the blows inflicted by the offender Lonsdale which caused the spleen to bleed and then rupture. The fact that the deceased refused medical assistance was not, according to the Crown, an intervening act sufficient to relieve the offenders Clay and Lonsdale of liability for the death of the deceased. Nonetheless the Crown concedes that it is possible that the deceased would not have died if he had accepted medical assistance. However no-one, including the deceased, was aware at the time of the seriousness of the injuries which he had sustained.

19 There is some additional material which is, by reason of its nature, admissible only against the particular offender in question. I will refer to that evidence concerning each offender in turn.

20 The offender Clay was interviewed by police. In that interview he maintained that at the time of the incident he was well affected by alcohol. Dr Starmer, a pharmacologist, was provided with a history of the amount of alcohol consumed by the offender that evening. Based on that history, Dr Starmer estimated that his blood alcohol concentration would have been in excess of 0.440g/100ml at the time of the offence. According to Dr Starmer such a reading is close to the “lethal level for tolerant individuals”.

21 The offender admitted having been in a fight with the deceased but maintained that he had not killed him. He said that the fight had begun because of the way in which the deceased had treated the teenagers and in particular because he had punched one of them. He also maintained that the deceased had come at him and had struck him. He said that he had then hit him back. He said that the deceased had landed on the ground. The offender said that he [Clay] had then got hit with a baseball bat as a result of which he had suffered facial injuries. However I was informed by Mr Ramage QC, who appeared on behalf of the offender, that he would not be raising any issue of self-defence in these proceedings.

22 The offender Lonsdale provided a witness statement in which he gave his version of the events of the evening in question. He said that he had attended a party at the home of his friend, Ms Tenaihi and that he had got “pretty drunk”. He said that a fight had broken out outside her place and that a number of people, who were armed with bats, had been involved in it. He maintained that it was in that context that he had grabbed a bat from Ms Tenaihi’s house in order to protect himself. He said that he had swung the bat at various people whom, he asserted, had been attacking the deceased. He did not at any stage however mention that he himself had assaulted the deceased. Moreover, the offender Lonsdale maintained that he had been attacked the following day in his own home. That assault had been apparently perpetrated by persons acting in retaliation for the events of the previous evening.

23 A woman named Cheryl Archer, who had also been a guest at Ms Tenaihi’s party, provided a statement to police. She too admitted having had consumed a considerable amount of alcohol. She told police that the offender Lonsdale, had come to her house some time after the incident carrying a mattock handle. She heard him say: “I hit some cunt in the back of the head. And I fully cut sick. …I was just swinging the bat around and hitting everyone…Look at me no blood on me.”

24 She said that she then saw him change his clothes. He told her “If I change my clothes and scruff my hair, they won’t recognise me”. She also saw him conceal the mattock handle under his clothing.

25 Later Ms Archer followed the offender Lonsdale as he returned to Ms Tenaihi’s house. When he arrived there, Ms Tenaihi took the bat from him. Ms Archer observed that the offender and Ms Tenaihi were cuddling each other and that the offender was crying. Ms Archer heard him say to Ms Tenaihi, “I did it for you, I did for the family and my girl”. Ms Tenaihi replied, “What do you mean, what are talking about?” (I interpolate to observe that it is accepted by Mr Martin, who appeared for this offender, that he had no such motivation and that I should disregard his comments in that respect. Mr Martin did however draw attention to the oddity of his client’s remarks as being indicative of his disturbed state of mind at the time. Nor did this offender seek to raise any issue of self-defence for the purposes of these proceedings).

26 The offender JM was also interviewed by police. He confirmed that he had gone to the party at Ms Tenaihi’s house with his friends Clay and Remo-Wetere. He too had consumed a reasonable amount of alcohol although he maintained that he was not intoxicated. He said that he recalled a fight had broken out which involved the deceased. He said that he could not remember anything after that, although he did say that he observed the offender Lonsdale strike the deceased with a lump of wood, which apparently caused him to fall to the ground.

27 The Crown concedes that proof of its case would have encountered significant obstacles had the matter proceeded to trial. First, the only lighting available at the time of the incident to enable witnesses to make their observations was street lighting. Secondly, there were a large number of witnesses and most of them were very highly affected by intoxicating liquor and, in some instances, by illicit substances as well.

28 In that context I have been provided with a statement from Dr Perl, a forensic pharmacologist. Based on the histories presented to her of the amount of alcohol consumed by the various witnesses, it is her opinion that at least four of the main witnesses had blood alcohol concentration levels of at least 0.400g/100 ml whilst two of them had readings which were considerably higher than that level. In those circumstances it is hardly surprising that Dr Perl formed the opinion that the memories of a number of the key witnesses would have been “severely impaired and unreliable”. A similar observation could be made about the capacity of those witnesses to have accurately observed the incident in the first place. Furthermore, the reliability of a number of the witnesses would have been further affected by their consumption of what were, in some instances, very substantial quantities of marijuana and other illicit drugs. It was in that context that the Crown Prosecutor observed, somewhat graphically but nonetheless accurately, that the presentation of the Crown case would have given rise to a “factual nightmare”.

29 Unsurprisingly, the various eyewitness accounts vary very considerably. Most notably, whilst some of them indicated that the deceased had fallen to the ground after having being struck to the back of the head by the offender Lonsdale, others asserted that it was a punch from the offender Clay which caused the deceased to fall to the ground. Whilst that issue cannot be satisfactorily resolved, it is nonetheless clear that the deceased was hit, punched and kicked after he fell to the ground.

30 It may be observed that the statement of facts has been drafted with some care. It is also apparent that there are some gaps in the narrative. That is perhaps understandable given that there is considerable confusion as to precisely what occurred. Nonetheless, I am constrained to proceed in accordance with the facts which have been agreed and bearing in mind the offences to which the various offenders have pleaded guilty.

31 I have received victim impact statements from Ms Morris, the deceased’s partner of 22 years, his daughter Jamie Lee Matthews, (whom as I have said was an eyewitness to the fatal incident) and from his sisters, Ms Barbara Chandler and Ms Deborah Hardy. They each express the profound sadness which they have experienced as a result of the death of Mr Matthews. The feelings which they so eloquently express and the grief which they have suffered are entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to all of them my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.

Subjective features
Harley Clay

32 The offender Clay was born on 12 January 1985 and was thus aged 19 at the time of the offence. He has no record other than for minor motor traffic matters.

33 The offender was born in New Zealand. His parents divorced when he was 6. He was not a particularly good scholar and he left school when he was aged 14 or 15. He was however a good sportsman and he excelled at rugby league. Upon leaving school he worked as a warehouse assistant.

34 In due course the offender left New Zealand and came to Australia where his father had been living and working since 1999. The offender found employment in a firm where he worked as a forklift driver and as a chicken catcher. His employer described him as being “reliable, honest and hardworking” and said that he would not hesitate to re-employ him upon his release from custody.

35 The offender has the on-going support of both his girlfriend of 2 years and of his family. His mother came from her home in New Zealand in order to give evidence on his behalf. Furthermore, immediately after being informed of his arrest, she and the offender’s stepfather packed their bags and came to Australia where they remained for nearly a year so that they could visit him and provide support to him.

36 I have received a large number of testimonials which attest to the offender’s personal qualities. He has, according to that material, never previously shown any signs of resorting to violence. Nor does he normally abuse alcohol. He has also expressed his regret for his actions to various members of his family.

37 The material which has been placed before me reveals that the offender has been spending his time in custody in a productive manner. He has completed various courses and in particular has significantly improved both his literacy and computer skills. I have received a letter from the Senior Overseer of the Maintenance Centre at Parklea Correctional Centre where the offender is currently housed. It is in the following terms:

Inmate Harley Clay has been employed within the Maintenance Unit at Parklea Correctional Centre since 16th February 2005. His duties have involved, plumbing, building, electrical, and ground maintenance.
Clay is a co-operative inmate, who has been an asset to our unit since his arrival. Being a part of our maintenance team Clay has shown a level of maturity beyond his years, and is always eager to learn new concepts.
Due to our activity throughout the gaol Clay has been placed in a position of trust and has shown the ability to obey instructions when required. He is a highly motivated worker who has displayed initiative and leadership qualities that have had a positive effect on his fellow workers.
Through my contact with Inmate Clay, I have always found him to be a polite young man who seems to be respected amongst his peers for his pleasant nature and values. He has always shown respect to our staff and fellow inmates during his time with us, and it is without hesitation that I write this glowing reference on his behalf.

Anthony Lonsdale

38 The offender Lonsdale was born on 1 August 1981 and was thus aged 24 at the time of the offence. He has only one prior conviction which was for possessing a prohibited drug, in respect of which he was fined $100. Tendered on his behalf was a report from a forensic psychiatrist, Dr Nielssen. The following material is extracted from that report:

[The offender] said that his father was of Aboriginal extraction from the Armidale district and his mother was born in England but brought up in Australia. He has a complicated family tree, as he said he is the oldest of three children to his parents, but grew up with an older brother from one of his father’s earlier relationships, and had four other half siblings from his father’s subsequent relationship, including a brother and sister aged twelve and ten respectively who were conceived while his parents were still together. He said that his parents only separated when he was twenty-one and his father had gone on to have two further children with his other girlfriend, now aged four and one.
He said that he spent his early life in Bidwill. He said that his father was a metal worker and his mother did not work. He said that he was not subjected to any kind of neglect or abuse and was well cared for during his upbringing. He said that he did not do very well at school and was expelled from schools in year 7 and 8, but returned to TAFE to complete Year 10. He said that he had difficulty with reading but did well in all other subjects and was very good at sports. He described himself as “easy to talk to” and had a large group of friends from a variety of backgrounds. He said that he had never had a long term relationship which he attributed to his previously disrespectful attitude towards women.
[The offender] reported continuous employment from the time he left school, including work as a labourer and at the metal fabricating factory with his father, where he acquired skills in welding. He said that he then worked for six or seven months at a plastic recycling plant and as a cutter in a timber mill. He said that about two years before his arrest he began work with a tiler who lived next door and was making arrangements to have his training accredited prior to his arrest and expected to return to tiling after his release from gaol. He said that he has never been unemployed for more than several weeks.
[The offender] suffered a severe episode of psychotic illness in 1998 that resulted in a four week admission to a psychiatric hospital as an involuntary patient. The diagnosis was of schizoaffective disorder (a chronic mental illness with features of both schizophrenia and manic depressive illness) rather than drug induced psychosis, because of the pattern of symptoms and the persistence of symptoms for some time after ceasing drugs. …
[The episode occurred soon after a serious head injury playing football, as a result of which he was knocked unconscious, admitted to hospital for observation, experienced confusion, headaches and dizziness for some time and was barred from playing football.] …
[CT and MRI scans of the brain showed no abnormality, but a cerebral SPECT scan showed abnormal perfusion in areas of the brain consistent with the presence of a psychotic episode and an electroencephalogram (EEG) was also abnormal].
There was a further involuntary admission to hospital in 2001 with what sounded like a more typical drug induced psychosis that developed after a period of amphetamine abuse. On that occasion his symptoms were irritability, arousal and persecutory beliefs that resolved quickly after he stopped using drugs. There were no reports of typical symptoms of schizophrenia on that occasion and [the offender] quickly returned to work.
The diagnosis of psychotic illness is based on the history of a severe episode of psychotic illness, which suggests a high risk of a further episode of illness later in life. However, the offender has remained free from symptoms since his recovery from the acute episode and there was no evidence of the decline in social performance that often accompanies mental illness in his presentation at interview and his account of his social and occupational function.
[The offender’s] account of his mental state and symptoms at the time of his previous admissions to hospital were consistent with the accounts in the medical records, which suggests that he would have recognised the recurrence of symptoms if they had been present at the time of the alleged offence last year. From his account there was no recurrence of symptoms of schizoaffective disorder or amphetamine induced psychosis around the time of the alleged offence.
[The offender] reported that he was not a heavy drinker and did not have an especially high tolerance to the effects of alcohol. He reported amnesia of some of the events of the evening of the alleged offence, which is consistent with a history of as much as 180 grams of alcohol by a person who did not drink regularly. Moreover, people with impairment in brain function are known to be more susceptible to the effects of alcohol, and the abnormalities in brain function demonstrated in the SPECT scan and the EEG in 1998 suggest that [the offender] may be more susceptible to the effects of alcohol.
[The offender] show (sic) no signs of mental illness at the time of the recent interview and was not thought to need any form of treatment or review by a mental health service. He carries a high risk of further episodes of mental illness at some stage in life, but seemed likely to recognise the return of symptoms and seek treatment.
[The offender] was assessed to have good potential for rehabilitation. He has strong family support, little in the way of criminal history, the capacity to control substance use despite the history of hazardous drug use, good social skills and a history of continuous employment.

JM

39 The offender JM was born on 20 November 1988 and was thus six weeks beyond his 16th birthday when he committed the offence in question. He was arrested on 5 January 2005 and remained in custody until he was discharged by the Magistrate on 19 December 2005.

40 His mother gave evidence on his behalf. She informed me that the offender was the youngest of seven children and that he lives at home with her and her husband. In fact he has spent his entire life in the family home. He left school after completing Year 9 at Mount Druitt High School. He then obtained work as a process worker in the same business in which his mother and father are employed. The offender worked there until his arrest. He has now resumed working there. I have received a testimonial from his employer who speaks in laudatory terms about both his capacity for hard work and his general good character.

41 The offender’s mother gave evidence that she visited her son every weekend whilst he was in custody. She told me that he regrets his conduct on the night in question. She expressed confidence that he would not behave in a similar fashion in the future.

42 The offender had no prior convictions at the time of the offence. However on 17 July 2006 he was placed on a bond, pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987, for a period of 6 months. That penalty was imposed in respect of four offences, committed on 25 June 2006, of aggravated break, enter and steal; common assault; take and drive a conveyance and driving whilst not licensed.

43 The police officer who had carriage of those matters gave evidence before me. The offences, to which the offender pleaded guilty on the first return date, all arose from the one incident. The facts giving rise to that incident can be briefly stated. The offender and his girlfriend formed the opinion that a friend of hers had dishonestly removed money from the girlfriend’s bank account. In an endeavour to resolve the matter, the offender and his girlfriend went to the woman’s place and knocked on the front door. When she did not answer, they then went to the back door and kicked it in. The offender pushed the victim, although his actions did not cause her any injury. He and his girlfriend then took the woman’s car and drove it just up the road to his girlfriend’s house from where it was retrieved by police. The offender participated in an interview with police in which he made full and frank admissions concerning his role in the incident.

Relevant sentencing considerations
Clay and Lonsdale

44 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders, and to the principles enunciated in the authorities which bear upon the issue. It is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. See also R v MA (2004) 145 A Crim R 434.

45 In determining the appropriate sentence for these offenders I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: R v Andrews (2006) 160 A Crim R 505. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element, or if it is an “inherent characteristic”, of the offence charged: R v Yildiz (2006) 160 A Crim R 218.

46 I must also weigh in the balance those matters upon which the offenders are entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Crimes (Sentencing Procedure) Act.

47 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point, so far as the offenders Clay and Lonsdale are concerned, must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be suitably punished: see R v Troja (unreported, NSWCCA, 16 July 1991 at 2) and R v McDonald (unreported, NSWCCA, 12 December 1995). In R v Hill (1981) 3 A Crim R 397, Street CJ said:

It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the
criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 402)

48 In R v Blacklidge (unreported, NSWCCA, 12 December 1995), Gleeson CJ, with whom the other members of the Court agreed, said:

The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. (at 3-4)

49 The offenders Clay and Lonsdale are to be sentenced upon the basis that they assaulted the deceased pursuant to a joint criminal enterprise. Their liability for the offence of manslaughter arises from the fact that in doing so, an unlawful and dangerous act or acts were committed which led to the death of the deceased. It is implicit in their pleas, and so much is recognized by the Crown in accepting them, that although they intended to harm the deceased, they did not intend to kill or inflict grievous bodily harm upon him. The Crown also accepts that the incident occurred spontaneously and that accordingly the offence “was not part of a planned or organized criminal activity”: s 21A(3)(b).

50 So far as each of the offenders is concerned, it is common ground that it is appropriate to have regard to the fact that the offence was committed in company: s 21A(2)(e): R v Imnetu [2006] NSWCCA 203. The victim would inevitably have felt both fearful and helpless in the face of an attack of the present kind.

51 Although each offender is liable for the offence of manslaughter their roles, and their ultimate culpability, differ. The offender Lonsdale used a weapon whereas the offender Clay did not: s21A(2)(c). Furthermore, the offender Lonsdale struck the deceased at least twice with the weapon and thereafter punched and kicked him whilst he was on the ground. These were acts of wanton violence on his part, particularly as there was no discernible reason for his having involved himself in the altercation between the offender Clay and the deceased who were, as I have said, strangers to him. Although the offender Clay struck only one blow it was nonetheless the first punch thrown in the fight. It may be that the offender’s conduct was not entirely unprovoked. However it was that action which apparently provided the trigger for the events which followed. Having said that, there is no evidence of course to suggest that the offender Clay had any awareness of what was to happen in the aftermath of his punching the deceased.

52 As I have earlier indicated, it is not possible to determine to the requisite standard whose conduct it was that caused the deceased to fall to the ground. What is clear is that from that point on the role of the offender Clay was an entirely passive one. Nevertheless he continued to lend his support to the assault upon the deceased by his presence and his readiness to assist if required: see R v Tangye (1997) 92 A Crim R 545 at 556-7.

53 There are a number of mitigating factors which the offenders can call in aid. Although some of these matters are common to all three of the offenders, it is convenient to deal separately with JM’s circumstances. An important consideration in each case is the fact that the offenders have pleaded guilty: see s 21A(3)(k) and s22. In assessing the appropriate discount to be extended to the offenders for their pleas of guilty, I have had regard to what was said by the Court of Criminal Appeal in R v Thomson & Houlton (2000) 49 NSWLR 383.

54 I referred earlier to the circumstances in which the offenders entered their pleas. It is common ground that the pleas of guilty were entered at the first reasonable opportunity available to the offenders following the Crown’s indication that it was prepared to accept them. In considering the significance of the conclusion that the pleas were entered at the first reasonable opportunity, I have nonetheless had regard to what was said by the Court of Criminal Appeal in R v Dib [2003] NSWCCA 117 and in R v Harmouche (2005) 158 A Crim R 357.

55 I was informed that had the matter ran its full course, it would have occupied some 6-8 weeks of court time. I was also informed, as I indicated earlier, that this was a matter which would have involved a great deal of factual complexity. It is also pertinent to observe that the pleas obviated the need for witnesses, some of whom were members of the deceased’s family, from having to give evidence. In those circumstances it can be said that the offenders have each significantly “facilitated the course of justice”: see R v Cameron (2002) 209 CLR 339. Each offender is accordingly entitled to a discount which is towards, if not at the very top, of the range identified in Thomson & Houlton (supra).

56 Furthermore, had the matter run its full course, then given what I have already said about the challenges facing the Crown in the presentation of its case, each of the offenders could reasonably have entertained some optimism as to the ultimate verdicts. That is a factor which is to be appropriately weighed in the balance in assessing the question of contrition. Whilst on that subject, I accept that there is also evidence of contrition over and above that which is implicit in the pleas of guilty: s21A(3)(i) of the Act.

57 Neither of the offenders has a “significant record” of prior convictions: s21A(3)(e). Each of them is, I am satisfied, entitled to be otherwise treated as a person of good character: s 21A(3)(f).

58 I referred earlier to the fact that the offender Clay was aged 19 at the time of the offence. His age is thus a relevant consideration: s 21A(3)(j). The same is true, albeit to a rather more limited extent, of the offender Lonsdale.

59 The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM (Snr) & Ors [2002] NSWCCA 58, the Court of Criminal Appeal said:

It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society. (at par 97)

60 In R v Hearne (2001) 124 A Crim R 451, the Court of Criminal Appeal cited, with apparent approval, the principle that:

In sentencing young people…the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed. (at 458)

61 The court then went on to observe that:

[o]f course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in the less serious ones…However it is, we think appropriate to look beyond the simple difference in facts to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in a case of an adult of more mature years…. the Courts have taken the view that the younger the offender, the greater the weight to be afforded to the element of youth. (at 458-9)

See also R v Adamson (2002) 132 A Crim R 511 at 516-7 and R v Voss [2003] NSWCCA 182.

62 In R v MD, BM, NA and JT (2005) 156 A Crim R 372, the Court of Criminal Appeal observed:

However, as we have indicated, when imposing sentences, apart from considerations of punishment and deterrence a court must assess the offender’s capacity to reform and return to and make a contribution to the community. This must be of particular concern with young offenders where the opportunity to rebuild a life is more likely to be available. Unless the punishment recognises these possibilities and the circumstances of the incarceration made conducive to rehabilitation, some benefits to the community which may come from appropriate sentencing will be lost. (at par 74)

63 I am satisfied that this is a case in which, to use the language employed in Hearne, “immaturity is a significant contributing factor to [the] offence”. Nevertheless, I have endeavoured to strike an appropriate balance between the various competing principles which are to be applied when dealing with young offenders who have committed crimes of the level of seriousness as the present offence. I also acknowledge that the youth of an offender cannot be simply used as a “cloak of convenience”.

64 The offender Lonsdale relies upon the fact that he suffers from a psychotic illness and impairment of brain function as a matter which should ameliorate his sentence. The general principles to be applied in such a case are well settled. In R v Hemsley [2004] NSWCCA 228 Sperling J observed:

Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence ; Israil at [24]. (pars 33-6)

65 It is common ground that, in accordance with those principles, some modest adjustment of the otherwise appropriate sentence should be made. It is appropriate to do so even though there is no direct evidence of a causal relationship between his condition and the commission of the offence: R v Benitez (2006) 160 A Crim R 166. It is to be observed the offender was still sufficiently aware of what he had done to be able, after the incident, to change his clothes in an effort to avoid detection. Similarly I have also had some, albeit limited, regard to the fact that the offenders acted out of character in abusing alcohol: see R v Coleman (1990) 47 A Crim R 306 at 327.

66 Given all the features of the case to which I have referred, I am of the view that Clay and Lonsdale each have “good prospects of rehabilitation”: s21A(3)(g).

67 I am also prepared to make a finding of “special circumstances” in the case of each offender. The Crown did not contend otherwise. I do so because it is the first time that they have been in gaol. Accordingly each will need ongoing supervision and counselling, particularly in relation to issues surrounding their consumption of alcohol, upon their release from custody such as to enable them to reintegrate into the community.

68 That leaves the question of parity between the offenders Clay and Lonsdale. There is of course no such issue in relation to the offender JM.

69 It is common ground that there must be some differentiation between the sentences to be imposed upon the two offenders and in particular to reflect the fact that Clay played a less significant role in the crime and also because he is somewhat younger than Lonsdale.

70 Nevertheless, it will be necessary to maintain “due proportion” between the sentences imposed. The correct principles to be applied were stated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295, in which their Honours said:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (at 301-2)

71 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. Nevertheless, I have derived some assistance from a number of cases which counsel submitted were somewhat comparable to the present case. A schedule of those cases is attached to these remarks. However the limitations of that kind of material are well known: see R v Trevenna (2004) 149 A Crim R 505.

72 Mr Ramage contended that the appropriate range of sentence for the offender Clay was a head sentence of 4½ - 5 years with a non-parole period of 2 – 3 years. The Crown Prosecutor, whose experience in this court is very extensive, submitted that a head sentence of 5 years with a non-parole period of 3 years would, in all the circumstances, be appropriate for this offender. To emphasise the point he made specific reference to R v Hamshere [2005] NSWSC 1319, a case in which coincidentally he appeared for the Crown, where a sentence of that precise length was imposed. It is common ground, for reasons which I have already identified, that a somewhat heavier penalty is required for the offender Lonsdale.

73 So far as the offenders Clay and Lonsdale are concerned, it is necessary to impose sentences which properly reflect the objective gravity of the offences in question. Furthermore, the sentences must give effect not only to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act but also to the maximum penalty prescribed by the legislature. The considerations to which I have just referred apply equally to the non-parole period and to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. This case involves the death of a man following a attack upon him by several men during the course of which a weapon was used. The attack took place on a public street in the presence of a large number of people, among whom as I understand the situation, were family and friends of the deceased. Notwithstanding the circumstances in which the offenders committed these offences, a human being has needlessly lost his life. Nothing less than custodial sentences of some length can thus be countenanced.

74 The offender Clay has been in continuous custody since his arrest on 5 January 2005 whilst the offender Lonsdale has been in continuous custody since his arrest on 21 January 2005. The sentences to be imposed upon the offenders will commence from those dates.

JM

75 I turn now to consider the circumstances of the offender JM. As I have said, he was 16 at the time of the offence and is thus regarded by the legislature as being a child.

76 The Children (Criminal Proceedings) Act deals with the penalties to be imposed upon persons who were children at the time of the offence. The relevant provisions of the Act are set out below:

16 Application
This Division applies to a person:

(a) who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children’s Court,
(b) who was a child when the offence was committed, and
(c) who was under the age of 21 years when charged before the court with the offence.

17 Serious children’s indictable offences
A person to whom this Division applies shall, in relation to a serious children’s indictable offence, be dealt with according to law.

18 Other Indictable offences
(1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children’s indictable offence, be dealt with:
(a) according to law, or
(b) in accordance with Division 4 of Part 3.
(1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters:
(a) the seriousness of the indictable offence concerned,
(b) the nature of the indictable offence concerned,
(c) the age and maturity of the person at the time of the offence and at the time of sentencing,
(d) the seriousness, nature and number of any prior offences committed by the person,
(e) such other matters as the court considers relevant.
(2) For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children’s Court under that Division in the same way as if:
(a) the court were the Children’s Court, and
(b) the offence were an offence to which that Division applies .
(3) If a court, in exercising the functions of the Children’s Court under subsection (2), makes:
(a) an order of recognizance under section 33 (1) (b) or (d), or
(b) an order of probation under section 33 (1) (e),
the court may, on referral from the Children’s Court under section 40 (1A), deal with the order in the same way as the Children’s Court may deal with it under section 40.

77 A “serious children’s indictable offence” is defined in s 3 of the Act. The present offence does not fall within that definition and accordingly s 17 has no application to it. As a consequence s 18 governs the manner in which the present offence is to be dealt with. The discretion which is conferred by s 18(1) is to be determined in accordance with the matters set out in subs (1A): see also R v WKR (1993) 32 NSWLR 447.

78 In view of those matters, it is common ground that the present offence is not such as to require that it be dealt with “according to law”. It will thus be necessary to deal with the offender in accordance with Division 4 of Part 3 of the Act. In doing so I have also had due regard to the principles enunciated in s 6 of the Act.

79 There can be no doubt that the offence of affray is to be properly regarded as a serious offence. Its seriousness in the present instance is demonstrated by the fact that the offender, whilst in the company of others, participated in inflicting violence to the deceased by kicking and punching him as he lay defenceless on the ground. Whilst he took no part in the earlier part of the incident, he nonetheless joined in the assault upon the deceased without having any reason for doing so that I am able to discern.

80 On the other hand, I accept that his offence was not, in any sense, planned. Moreover, I conclude in his favour that he joined in the fight only after the offenders Clay and Lonsdale had become involved. In that sense his role was a subsidiary one. He is of course to be sentenced only in respect of the offence to which he pleaded guilty. For that reason, he bears no responsibility for the death of Mr Matthews.

81 There are a number of matters which ameliorate the sentence which would otherwise be appropriate in the case of this offender. The offender is entitled, in the light of the history of the matter, to be given the maximum discount which is available for the utilitarian value of his plea. As I have said, an ex-officio indictment was not presented against him until seven months after he was discharged at the conclusion of the committal hearing. Moreover, he appeared in this Court on several occasions when there was no obligation upon him to do so. I am also prepared to accept that he is entitled to some additional credit for his contrition, particularly given the problems which the Crown was likely to encounter in proving its case.

82 Furthermore, the offender had no convictions of any kind whatsoever prior to the commission of this offence and there is also evidence of his good character. Moreover his youth, his prior good record and the fact that he has been, and continues to be, engaged in gainful employment are all factors which augur well for his ultimate rehabilitation.

83 Of considerable significance in the case of this offender is the fact that he spent nearly 12 months in custody prior to being discharged by the magistrate. The Crown Prosecutor expressly conceded that the offender had spent sufficient time in custody and that the manner in which I indicated I intended to dispose of his matter was entirely appropriate in the circumstances of the case. That being so, it was agreed that there was no necessity for me to order a background report: s 25(2) of the Children (Criminal Proceedings) Act.

84 For the offence of manslaughter I sentence the offender Clay to a non-parole period of 3 years to date from 5 January 2005 and to expire on 4 January 2008 with the total sentence being one of 5 years to date from 5 January 2005 and to expire on 4 January 2010. The offender is eligible for release on parole on 4 January 2008.

85 For the offence of manslaughter I sentence the offender Lonsdale to a non-parole period of 4 years to date from 21 January 2005 and to expire on 20 January 2009 with the total sentence being one of 6 years and 8 months to date from 21 January 2005 and to expire on 20 September 2011. The offender is eligible for release on parole on 20 January 2009.

86 In respect of the offence of affray, the offender JM is convicted. Pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act, I order that he be released on condition that he enter into a good behaviour bond for a period of nine months and that he appear before the Court if called on to do so at any time during the term of the bond.

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Schedule

R v Grenenger [1999] NSWSC 380
R v Hamshere [2005] NSWSC 1319
R v Khouzame [1999] NSWSC 979
R V King, Bugmy & CJ [2006] NSWSC 161
R v Maclurcan [2003] NSWSC 799
R v MD, BM, NA & JT (2005) 156 A Crim R 372
R v O’Connor [2003] NSWSC 1041
R v Scott [2003] NSWSC 627
R v Trevenna (2004) 149 A Crim R 505

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