R .v. Ezold

[2002] NSWSC 129

CITATION:	R .v. EZOLD [2002] NSWSC 129
FILE NUMBER(S):	SC 70017/01
HEARING DATE(S):	3rd December 2001 - 6th December 2001, 10th December 2001 - 14th December 2001, 17th December 2001
JUDGMENT DATE:	20 February 2002
PARTIES :	Regina Daniel James EZOLD
JUDGMENT OF:	Barr J at 1

COUNSEL :	Ms L.K. Wells for the Crown Mr J. Gordon for the Accused
SOLICITORS:	S.E. O'Connor for the Crown Hansons Lawyers for the Accused
DECISION:	See Judgment at Paragraph 38

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

Graham Barr J

20 February 2002

70017/01 Regina v Daniel James EZOLD

SENTENCE

1 HIS HONOUR: The offender, Daniel James Ezold, has been found guilty by a jury of the murder on 15 or 16 November 2000 at Coniston of Liam Salter-Tully.

2 The offender and others, including one Jason Farrell, lived in a flat in Wollongong. The deceased, who perhaps had nowhere to live, used to come to the flat on occasions to sleep. Sometimes he broke in in order to do so and thereby made himself unwelcome.

3 The occupants became annoyed and decided to put a stop to his visits. At the end of an evening during which they consumed a substantial amount of alcohol and took LSD, they went for a walk along the beach and into a secluded place in the Tom Thumb Lagoon Wetlands. There they attacked the deceased with a drink bottle and with their hands and feet.

4 The offender was the first to strike a blow, beating the deceased without warning on the head with a bottle. The deceased was pushed off the top of a culvert and fell about two metres on to the bed of a shallow tidal drain. There he was punched and kicked as he lay. His jaw was broken. He was held face down in the water and drowned. Farrell was the one who did the act causing death.

5 The offender was born on 8 July 1981. He had a normal career through school. He was an artistic, sensitive person. He decided to leave high school at the end of year ten and pursue a course of study at Illawarra Institute of Technology. In 1998 he completed a course of study in fine arts, including drawing, sculpture, printmaking and kindred subjects.

6 In January 1999 he obtained a job as a bush regenerator. His employer and those who worked with him were impressed with his attitude to work. He was offered a full-time position at the end of his traineeship. He was quiet and gentle and apparently an adherent to the Buddhist religion. He would not harm animals or insects. He was a peaceful young man.

7 During 2000 he realised that a lifelong female friend of his had become addicted to the use of illegal drugs. He did what he could to help her overcome her difficulties but it may have been those events that led to his own use of illegal drugs which then ensued.

8 In April 2000 he began dating a young woman his mother described as a punk. His work colleagues noticed a change in him. He began to drink alcohol to excess. He began keeping company with a group of young people who abused drugs and alcohol. He left home.

9 One of the members of the group was Jason Farrell. Farrell had a strong personality and was violent. He would overbear and lead the other members of the group. By November 2000 the offender was living in the flat I have mentioned with Farrell and a young person I shall call P.

10 On the evening of 15 November 2000 the group gathered at the Oxford Hotel, Crown Street, Wollongong. The offender, Farrell, P and the deceased were present. So were a number of other young people who joined the group or left it from time to time as the evening progressed. A lot of alcohol was drunk. The deceased was in the bar of the hotel exhibiting the kind of obsessive behaviour of one under the influence of LSD.

11 The offender saw him and spoke about it to another member of the group. He joked, remarking that the deceased could not cope with the drug. He added, "Oh yeah, we're going to fuck him up later."

12 During the evening various members of the group bought alcohol from the hotel bottle shop. Two bottles of Passion Pop were purchased. The group walked down to the beach and then continued southward as though walking to Port Kembla. Two of them left the group and went home by themselves taking with them one bottle of Passion Pop.

13 The remainder of the group continued to walk along the beach. Then present were the offender, the deceased, Farrell, P, and a young person whom I shall refer to as T.

14 The group left the beach and walked inland, eventually arriving close to the place where the deceased was killed. The offender knew the place well because he had worked there during the course of his employment. A railway embankment crossed or skirted the wetlands and the creek ran through a concrete culvert under the railway.

15 The attack on the deceased took place at one end of the culvert. The culvert was made of concrete and rectangular in shape, about two metres high and several metres wide, divided into a number of channels or tunnels. I am satisfied that it was no accident that the group arrived in this place and that the offender selected it or had something to do with its selection.

16 It is not clear what the intention of the accused was whilst he and the others were at the Oxford Hotel or during the time that the final group of five walked along the beach and into the wetlands. At the earlier stages of the evening it is possible that the offender had decided to teach the deceased a lesson but in a manner about which he had not finally decided.

17 I am satisfied, however, that he had formed the intention to kill the deceased before they arrived at the place of the attack.

18 In a letter that he wrote after the events which I accept as factual he said that he told another or others that it would be a good place to go if one wanted to get rid of someone. I am satisfied that it was the offender who led the group to the place of the attack.

19 There was a level concrete ledge formed by the end of the culvert where it emerged from the earth railway embankment. It was there that the deceased was first attacked. The offender struck the first blow, hitting him on the back of the head with the bottle. He kicked him. Then Farrell snatched the bottle and repeatedly hit the deceased about the head, stunning him. The two rolled the deceased over the edge of the culvert and he fell to the creek bed. There were a few inches of water there. The offender descended to the bed and kicked the deceased again, then walked back up the embankment and sat with T somewhere on the bank.

20 Farrell continued to kick and punch the deceased and to drive his head into the water and silt. He called out for the offender and P to come and help him because apparently he was having trouble holding down the struggling man. They did so. The offender tried to take hold of the deceased's leg but took hold of Farrell's by mistake. There was an altercation and the offender withdrew and returned to where he had been sitting.

21 The deceased was still alive, gasping and kicking. Farrell continued to hold him down until he drowned. After he was dead the offender descended once again to the creek bed after Farrell and P had dragged the body into the culvert to hide it.

22 The group walked home and some of them, including the offender, washed their clothes in the sea to get rid of any evidence that they might have borne.

23 The offender was arrested and interviewed by the police. He was at pains during the lengthy interview to stress the amount of alcohol he had drunk and that he had taken LSD. He repeatedly referred to the effect those substances had had upon him. He professed to have no memory of the later stages of the evening, including of anything that had happened at the Tom Thumb Lagoon Wetlands. He did say, however, that the deceased had given him "the shits".

24 The offender remained in custody and was overcome with remorse. On 1 December 2000 he wrote a letter to the friend whom I have already mentioned. It contained a detailed confession of the part that he had played in the planning and the killing of the deceased. The detail of the account which I have given in this judgment is for the most part taken from what the offender wrote in the letter.

25 The police found out about the letter and interviewed the offender a second time on 24 January 2001. Faced with the letter, he was unable to continue to affect a lack of memory and he agreed that he had hit the deceased over the head with the bottle. He said that he remembered kicking the deceased while he was on the creek bed. He said that he did not assist Farrell in pushing the deceased's head into the water. He said that the deceased was a nice guy and did not deserve to die.

26 He did not give evidence at his trial and put counsel to the difficult task of trying to throw doubt on the reliability of the letter by reference to what he had said in the other interviews. It was a hopeless exercise but one carried out in exercise of the offender's right to be tried. It will not result in his receiving a longer sentence but, of course, he forwent, by exercising his right, the benefit he would have received if he had pleaded guilty.

27 His attitude at trial and his decision not to give evidence on sentence raises for consideration the question whether he continues to have the remorse which he undoubtedly did have when he wrote the letter.

28 His mother gave evidence in the sentencing hearing and I found it impressive and realistic. I am satisfied because of that evidence that, notwithstanding the matters to which I have referred, the offender is genuinely remorseful.

29 He has been in custody continuously since his arrest, so his life has not been exactly his own, but I am satisfied that he has sworn off the use of drugs and the abuse of alcohol. He has written letters to his former employer and to his family expressing his apologies and blaming no one but himself. During his early days in custody he became depressed but he now appears to be returning to a better state of mind.

30 A report made on him by the prison chaplain says that he has explored with a psychologist and with drug and alcohol workers the issues that brought him to prison. He has participated in individual interviews and in group interviews. He has participated in education classes, including classes in anger management. He has shown himself to be an industrious and reliable worker, participating in Corrective Services industries and has been respectful towards and cooperative with the prison officers and other prison staff. His general conduct has been exemplary.

31 His parents stand by him and visit him. He has a particular young woman friend who visits him and will stand by him and wait for his release from custody. All the indications are that the offender is in the process of returning to the habits and attitudes that he had before he underwent the fundamental change that took place in his life in 2000.

32 I do not regard his reluctance to give evidence in the trial of his co-accused Farrell as throwing any doubt on these conclusions.

33 It was Farrell who did the act causing death and the offender was convicted because of his part in the joint criminal enterprise to kill him. He was the first to land a blow. He led the group to a place where a body might be concealed. His culpability was great. However, I think that he must have been under the strong and brutal influence of Farrell. I am statisfied that the offender and others must have feared him as a man who did not like being crossed. But for his leadership this event might never have happened.

34 The offender was at least moderately under the influence of alcohol and of the drug he had taken but I think in the end that this is no more than one of the factors that explains what happened and why. I do not regard the intoxication of the offender as either an aggravating or mitigating feature.

35 The offender has no prior convictions. He was nineteen and a half years old at the time of the offence. He has been in custody continuously since his arrest on 19 November 2000.

36 It was submitted by counsel for the offender that there were special circumstances justifying the fixing of a non-parole period less than three-quarters of the term of imprisonment. Counsel pointed to remorse evidenced in various ways, and which I accept as genuine, and to the offender's reversion to a useful life. He is a model prisoner. It was submitted that there was a very high chance of complete rehabilitation. I accept those submissions also.

37 In my view however, none of these features individually or collectively produces the need for a non-parole period which is less than three quarters of the term of the sentence I shall impose. Mr Ezold would you please stand.

38 Daniel James Ezold, you are sentenced to imprisonment for a period of 16 years commencing on 19 November 2000, and expiring on 18 November 2016. I fix a non-parole period of 12 years which will expire on 18 November 2012. You will be eligible for release on parole on that day.

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Last Modified: 03/14/2002