R .v. FARRELL

[2002] NSWSC 375

CITATION:	R .v. FARRELL [2002] NSWSC 375
FILE NUMBER(S):	SC 70051/01
HEARING DATE(S):	19 February 2002 to 22 February 2002, 25 February 2002 to 28 February 2002 & 12 April 2002.
JUDGMENT DATE:	2 May 2002
PARTIES :	Regina Jason Edward Gordon FARRELL
JUDGMENT OF:	Barr J at 1

COUNSEL :	Mr D.U. Arnott for the Crown Mr A.C. Haesler for the Offender
SOLICITORS:	S.E. O'Connor for the Crown Legal Aid Commission of NSW for the Offender
CATCHWORDS:	Criminal law - sentencing - murder
DECISION:	See Judgment at Paragraph 31

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

Graham Barr J

Thursday, 2 May 2002

70051/01 Regina v Jason Edward Gordon FARRELL

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Jason Edward Gordon Farrell, 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 Daniel James Ezold and a young person I shall refer to as P, were living in a flat in Wollongong. The offender ordinarily lived in Melbourne and had no fixed place of residence in Wollongong. He was using the premises according to some casual arrangement he had made with the occupants. The deceased, Liam Salter-Tully, used to come occasionally to the same premises and sleep there. Presumably he, too, lacked a permanent place to live. Sometimes he broke into the flat in order to sleep there and thereby made himself unwelcome.

3 Ezold and P decided to put a stop to the deceased’s visits. The offender, who had by then been living at the flat for about a week, and was spending time in the company of Ezold and P, knew about the problem they were trying to solve. A couple of days before the events giving rise to the charge they spoke about the matter and decided to take action to ensure that the deceased would not return. The offender told the police that he, Ezold and P agreed to smack the deceased over the head or give him a bloody nose and tell him not to come back. He said that they put their hands out, as in a pact, like the Three Musketeers.

4 The offender joined in the agreement even though he scarcely knew the deceased. There was no evidence to suggest that he himself was irritated or discomfited by or had any reason to resent the deceased’s conduct.

5 The offender was born on 16 January 1981 and brought up in suburban Melbourne. He was the second oldest of four children. He and the eldest child, a brother, suffered violence at the hands of their mother and father. By the time the offender was thirteen years old the parents had separated, and he and his elder brother were staying with their father. Officers of the Department of Health became very concerned about their welfare. Although the family arrangements changed from time to time the offender’s overall position did not improve. He was the subject of repeated action by officers of the Department.

6 He began to use marijuana when he was thirteen and alcohol when he was fourteen. There was heavy use of marijuana up to the age of seventeen but from the time he began to drink he abused alcohol heavily. There was some use of amphetamines beginning at age fourteen or fifteen. He began using LSD at age sixteen.

7 From the age of thirteen to the age of fifteen years he lived in supported accommodation arranged by the Department. However, he did not adjust well and attempted unsuccessfully to return to his mother. After the age of fifteen he left the care of the Department and supported himself living in refuges, with peers and on the streets. He spent about eight months after leaving school working as a roof plumber. He travelled around Australia, supporting himself in itinerant work. He found himself unable to achieve stability and formed no long-term relationships. His interest was in singing rock music.

8 By the time he began living with Ezold and P he was addicted to the use of alcohol and well accustomed to using LSD.

9 On 15 November 2000 the offender, Ezold, P, a young person I shall call T and several other young people were at a flat occupied by some friends of theirs in Wollongong. They were drinking alcohol and the offender was handing out LSD. He took some of the drug himself. He gave a dose to T and she took half of it at the flat. Later on most or all of the group went to the Oxford Hotel, Crown Street, Wollongong. The offender, Ezold, P, the deceased and T were present. Young people joined or left the group from time to time during the evening. A good deal of alcohol was drunk. At the hotel T took the second half of the dose of LSD the offender had given her.

10 During the evening various members of the group bought alcohol from the hotel bottle shop. Two bottles of Passion Pop were purchased. The manager of the bottle shop noticed the offender during the course of the evening and decided that if he asked for more alcohol he would not serve him because he was well under its influence.

11 Several members of the group walked towards the beach and spent some time there. Then they turned southwards as though to walk to Port Kembla. Two of them left the group and went home by themselves, taking with them one bottle of Passion Pop. The remainder of the group continued to walk along the beach. Then present were the offender, the deceased, Ezold, P and T. The party left the beach and walked inland, eventually arriving close to the place where the deceased was killed. I am satisfied that Ezold directed the party to that place. He knew it because he had worked there not long before. It was secluded and nobody was likely to be there at that time. It was then the early hours of the morning. I think it no accident that the group went with the deceased to that remote place because I think that at least the offender and Ezold intended to kill him and hide his body.

12 As they walked along T heard them talking about the pact that they had made. I think that if the intention had been merely to smack the deceased on the head or give him a bloody nose they would not have found it necessary to take him to such a remote place. Such things could easily have been done on the beach.

13 Either the offender or Ezold started the attack by hitting the deceased on the head with the empty Passion Pop bottle. T thought that it might have been the offender, though she later doubted whether it was. The offender told the police that it was Ezold. I am satisfied that whoever landed the first blow they both hit him savagely and that things moved very fast once the attack was under way. The deceased fell where he was, which was on the level concrete forming the end of a culvert by which a tidal creek ran under a railway embankment. The offender, perhaps assisted by Ezold, pushed the deceased off the culvert and he fell about two metres onto the creek bed below. The offender made his way down to the creek bed and continued the attack without the assistance of Ezold or P. The attack was savage. He kicked the deceased and during the attack broke his jaw. The deceased was lying still with his face in the water. T thought that he might have been unconscious. The offender continued to bash and hold him, telling him that that was how Melbourne boys did it. He demanded to know the deceased’s mother’s maiden name, though the evidence does not suggest why he did so. He called for help and Ezold and P descended to the creek bed. The evidence does not suggest whether either of them assisted the offender. He caused the deceased to drown there and then. The others helped him drag the body into the culvert.

14 Even though he hardly knew the deceased and had no reason to wish him harm, the offender led the attack. After the execution of the pact he continued to lead. He immediately exhibited concern that others might discover what had happened. Something he did or said made Ezold think that T was a concern to the offender, but he assured the offender that T would not tell anyone. Before the group left the place the offender warned the others not to tell anyone, threatening to “top them off” if they did. He made them pick up all the cigarette ends they had dropped. He searched for the Passion Pop bottle. He was unsuccessful and police found it later on.

15 The creek bed was muddy and they all had mud on their footwear and clothing. When they arrived back in Wollongong the offender took them to the beach and made them wash their footwear and clothes in the sea to remove the mud.

16 After the killing the offender skipped and sang and expressed the intention of celebrating.

17 When the trial commenced the accused pleaded not guilty of murder but guilty of manslaughter. He made it plain by his counsel that he admitted having done the act causing the death of the deceased. As a result the only live issue at the trial was whether when he killed the deceased the offender intended to kill him or do him really serious injury. The circumstance put forward as raising a reasonable doubt about that intent was the effect upon the offender of the alcohol and the LSD he had taken. The jury rejected the defence contention, of course. I mention this matter because there was tendered on sentence a report of a psychiatrist, Dr Carne, dated 8 April 2002, more than a month after the jury found the offender guilty. I find myself unable to place any weight on the opinions expressed in that report because it relies to a substantial degree on an account given by the offender and accepted at face value by Dr Carne.

18 Dr Carne said something about the effects upon persons generally of alcohol and LSD, and it may be accepted that those effects have been observed from time to time by professionals. It does not follow, however, that the accused suffered from any of them on the night he killed the deceased. Dr Carne concluded that when he killed the deceased the offender was intoxicated with alcohol and LSD with the effect that his behaviour was not fully within his control. He says that the offender’s ability to control anger and behaviour would have been profoundly diminished.

19 I do not accept that opinion. It seems quite clear to me from the evidence of T that, notwithstanding the effects of alcohol upon him and notwithstanding the condition in which the manager of the bottle shop found him during the course of the previous evening, the offender was well in control of his faculties immediately before, at the time of and immediately after he killed the deceased. Persons like the offender who are used to consuming large amounts of alcohol develop ways of dealing with the effects of the drug. That is what I think happened over the hours separating the two events. The offender knew that there was a pact and he spoke about it as they walked along. He went in a businesslike way about the attack, calling for help when necessary, particularly when the time came to conceal the body. He directed a careful search designed to remove incriminating evidence from the scene and from the garments of the participants. He threatened anyone who would inform the authorities. He exhibited signs of having being pleased with what he had done.

20 I accept the evidence of T that during the course of the evening the offender complained that the LSD he had taken was of poor quality and had not had the desired effect. I am prepared to accept that the effect of alcohol and LSD, to the extent that they still bore upon him at the time of the killing, was to disinhibit his behaviour but I do not consider that a mitigating feature.

21 I am satisfied, contrary to the submissions of his Counsel on sentence, that the murder was premeditated.

22 It was submitted by Counsel for the offender that he was genuinely remorseful and had good prospects of rehabilitation. The claim for remorse was based principally on a letter written by the offender on 12 April 2002 and tendered on sentence. It says this in part -

I cannot change what took place, all I can do is take responsibility for the actions I took so I have to stay in the bed I made. I think about what happened every day and I will for the rest of my life and I will never be able to deal with the things that occurred. And this is the regret and guilty shown that I will have to deal with. I wish that this hadn’t happened.

…

But I deserve this punishment for my actions taken and a hefty punishment is needed to even start to rectify my actions taken. And I have to live with my convictions but it was never my intention for this action to be taken. But in my actions taken a young man has died which is the most horrible thing that I have done. I have to step up to the plate and take responsibility for my actions and hope that my punishment will give others peace of mind.

…

The torment will live inside me because life is a very special thing and because of my actions taken Liam’s life has been taken away so I hang my head in shame. All I can do is try and better myself and pay the price.

23 I have difficulty in accepting these statements at face value, first because the manner in which the letter was put before the Court made them untestable. The offender did not give evidence on sentence. Secondly, the offender has continually given accounts to others which have been at once untruthful and designed to put him and his actions in the best light. For example, he gave the police a graduated series of accounts, beginning by expressing doubt whether he knew anyone called Liam and claiming to remember nothing about the evening, so badly was he affected by alcohol. Then, presumably because he realised that the police had been given a detailed account of his movements, he said that three of them just smacked the deceased and that it was nothing serious. He then said that the violence occurred all of a sudden and that he only punched the deceased. He said that when he left the deceased he was not dead and was moving a little bit.

24 Thirdly, the facts as I have found them show that it was false for the offender to say in his letter that it was never his intention for his action to be taken.

25 Accordingly, I think that he exaggerates.

26 Even though he is not yet prepared to come to a full and open acknowledgement of what he has done, I think that the offender is sorry that things happened as they did. He is young and has no relevant criminal record. Notwithstanding his unfortunate family circumstances he has the firm support of an uncle who has been visiting him regularly in custody.

27 I accept that the offender’s resort to alcohol and other drugs has been at least in part in response to the difficult circumstances of his upbringing and I accept the evidence of Dr Lennings, psychologist, that he has a major alcohol problem and may have become dependent on the drug. It is to the offender’s credit that he has attended regularly on a drug and alcohol counsellor and on a psychologist during his time in custody.

28 I think that the offender has some prospects of rehabilitation and that he may make good progress during the long time he must spend in custody and the substantial period he will have on parole afterwards. I agree with Counsel that a lot has to be done to achieve the offender’s rehabilitation, but not that an extended period of parole is thereby indicated.

29 The plea of guilty to manslaughter at the commencement of the trial effected no significant shortening of the trial and was not, I think, intended to have any such effect. Consequently it does not sound in mitigation of sentence. No submission was made to that effect.

30 Counsel submitted that the offender’s sentence should be no greater than that passed on Ezold. In deciding upon the sentence that I should impose I have taken into account all the circumstances I have discussed. I think that the offender’s sentence should exceed that imposed on Ezold and the significant features that make this necessary are that the offender did the act causing death and that then and at other significant times he directed the activities of those concerned. There are also my reservations about the offender’s claim to be fully contrite.

31 Jason Edward Gordon Farrell, you are sentenced to imprisonment for a period of eighteen years commencing on 19 November 2000 and expiring on 18 November 2018. I fix a non-parole period of thirteen years six months which will expire on 18 May 2014. You will be eligible for release on parole on that day.

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Last Modified: 05/16/2002