R v Horan

[2008] NSWSC 990

CITATION:	R v Horan [2008] NSWSC 990
HEARING DATE(S):	25-29 August, 1-10 September 2008
JUDGMENT DATE :	18 September 2008
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Studdert AJ
DECISION:	Sentenced to imprisonment for a non parole period of four years commencing on 17 July 2006 and expiring on 16 July 2010. Balance of the term of the sentence to commence immediately thereafter for a further two years to expire on 16 July 2012. The first date upon which the offender is to become eligible to be released on parole is 16 July 2010.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Firearms Act
CASES CITED:	R v Charman [2007] NSWSC 1177 R v Oinonen (1999) NSWCCA 310 R v Cardoso (2003) 137 A Crim R 535 R v Sukkar (2007) 172 A Crim R 151 R v Thomson and Houlton (2000) 49 NSWLR 383 Lowe v The Queen (1984) 154 CLR 606 R v Blacklidge (NSWCCA, unreported, 12 December 1995)
PARTIES:	Regina v Zethan Horan
FILE NUMBER(S):	SC 2007/5112
COUNSEL:	P. Barnett SC (Crown) P. Boulten SC (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Giddy & Crittenden Solicitors (Accused)

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

STUDDERT AJ

Thursday 18 September 2008

2007/5112 REGINA v ZETHAN HORAN

JUDGMENT

1 HIS HONOUR: The offender, Zethan Horan, stood trial at Bathurst charged with the murder of Michael Healy. The jury found him not guilty of murder but guilty of manslaughter and he is now before the Court for sentence for that offence.

2 The evidence which emerged at the offender’s trial established that he was party to a criminal enterprise which involved some degree of prior planning. The victim, Michael Healy, lived alone in a residence at Orange. In the course of discussions which preceded the commission of the crime, it was decided that his home would be entered to steal a safe which was believed to be inside the premises. That safe was thought to contain a large sum of money, estimates varying from $20,000 to $60,000. It was believed that the safe also contained some documents of relevance to an alleged fraud.

3 I do not propose to name the participants in the discussion who await trial. I refer to them only by pseudonyms. One of these persons, referred to as “A”, was anxious that the documents relating to the alleged fraud be recovered; the other offender facing trial I will refer to as “B” and his interest in obtaining the money was shared by the offender now for sentence before me. Also interested in the money in the safe was Nathaniel Charman, who has already been sentenced by Hulme J for his part in the criminal enterprise: see R v Charman [2007] NSWSC 1177.

4 The offender Horan made a visit to Michael Healy’s residence in the company of Nathaniel Charman on an occasion prior to the night on which the crime was committed. The earlier visit was in the nature of a scouting visit to check on the alarm system at the victim’s home. The offender and Charman assumed false identities, posing as security officers, and they engaged Michael Healy in conversation about the security system as part of the planning for the enterprise, and the evidence also establishes that the offender was party to a number of discussions about the criminal scheme.

5 On the night of 11 March 2006 the offender and his girlfriend travelled with Charman and B to the street in which the deceased lived. Some observation of the premises was made and the house was observed to be in darkness. The offender and B left the car and proceeded to the victim’s home whilst Charman and the offender’s girlfriend remained in the car. The offender’s girlfriend gave evidence that she and Charman remained in the car in the vicinity of the victim’s home for so long as the offender and B were away from the car but Charman said that he and the offender’s girlfriend travelled in the car to another part of Orange with the objective of there creating some sort of a disturbance to distract police away from the Healy residence. I found Charman’s evidence about this to be preferred.

6 Having left the car, the offender and B proceeded around to the rear of the Healy residence and climbed over the side gate before walking to the rear door of the residence. Entry was here gained because, unfortunately for the deceased, the screen door and the inner door were both unlocked. Evidence at the trial disclosed that B entered the premises then in darkness carrying a Magnalite torch which had been provided by the offender Horan. Horan’s evidence was that he did not want to enter the premises; he remained outside whilst B entered. At the very least, the offender Horan acted as a lookout and he had communication by mobile telephone with those in the car so as to be informed when the car had returned to the vicinity of the deceased’s home. According to the offender Horan, after a considerable period of time he heard a noise inside. He then entered, thinking that the deceased had discovered B and was hitting him. When he reached the bedroom where the deceased’s body was later found, the offender Horan observed B striking the deceased with the Magnalite torch. According to the offender Horan, he made some ineffective attempt to prevent B from striking the deceased again. The two men left the residence, not having found any safe, any money or any documents pertaining to the alleged fraud.

7 The body of the deceased was found on his bedroom floor on 14 March 2006 after neighbours, concerned that they had not seen him about for some time, called the police. It became apparent to those observing the condition of the bedroom that there had been significant blood loss; there was much staining of the deceased’s bed and there was blood spatter to the bedhead and to the walls. The evidence established that the deceased had been attacked whilst lying in the bed.

8 The evidence of Dr Cala, the forensic pathologist, given before the jury was to the effect that the deceased had sustained a number of heavy blows, a minimum of three, causing extensive fracturing of the deceased’s skull and underlying brain damage.

9 The case presented against the offender Horan at trial was advanced on a number of bases:

(a) that it was Horan who attacked the deceased;

(b) alternatively, that it was B, acting in pursuance of a joint criminal enterprise, and that Horan was guilty of murder on this alternative basis because B intended to kill or inflict grievous bodily harm and Horan perceived he may have had that intention;

(c) constructive murder.

10 In seeking to establish a case that the offender Horan inflicted the fatal blows, the Crown relied upon admissions allegedly made by the offender to his girlfriend after the crime was committed. It is clear from the jury’s verdict that the jury did not accept that those admissions were made in the terms alleged. If they were made, the jury did not accept that the admissions were true. As to the latter issue, the offender did admit that he had told his girlfriend that he had struck the deceased but he said he did so only to discourage her from going to the police.

11 It is clear that the jury was not satisfied that the offender Horan caused the death of the deceased; rather, the jury found that it was B who inflicted the blows. So it is that the offender Horan is to be sentenced for the crime of manslaughter by unlawful and dangerous act or unlawful and dangerous acts, the acts committed by B incidental to the carrying out of the criminal enterprise to rob or to steal from the deceased. It emerged in evidence that the offender contemplated that the deceased might be harmed if he was found to be at home and that he attempted to stop efforts to remove the safe, the money and the documents.

12 It was not until 17 July 2006 that the offender Horan was arrested. There was a lengthy interview in which he made admissions as to his involvement in what had occurred at the deceased’s residence.

13 Whilst the offender did not expect the torch to be used to attack the deceased about his head, some force was contemplated by the offender as a possible happening in the course of the criminal enterprise and the deceased was vulnerable, being alone in his home and in bed. In addition, the deceased suffered from some mild degree of mental handicap. The offence was committed in the setting of a planned criminal activity and I am mindful of these matters when addressing s 21A(2) of the Crimes (Sentencing Procedure) Act. Overall, I consider that the objective features of the crime for which the offender is now to be sentenced to be indeed serious.

14 I turn to the subjective circumstances of this case.

15 This offender was born on 18 September 1985. He is an only child and he has been brought up by parents in a stable family environment. He won a scholarship to Scots College, Bathurst for years 6 and 7 and he was then educated at All Saints College at Bathurst, where he completed his High School Certificate year in 2003. His evidence was that he did not apply himself to his study and his High School Certificate results were disappointing. He decided to repeat his High School Certificate year at Blayney High School and thereafter he received a placement at university at Orange and started to do a degree course in equine business management, intending thereafter to pursue a veterinary science degree course.

16 The offender abandoned his university course during the first semester. He said that he was working at the same time and he found that he could not manage to study as well.

17 The evidence does establish that the offender was in employment from the time he left school. He worked for a time on the production line in a bakery at Orange and he had a second position with Blayney Frozen Foods. He obtained full time work fixing coffee machines. Then in September 2005 he met Mr Lawry, the proprietor of Holmwood Car Wreckers. Mr Lawry gave evidence before me the offender made a favourable impression upon him and he offered the offender a position. That offer was in due course accepted and Mr Lawry was favourably impressed by the offender as an employee, working in the office doing work involving the use of a computer. Mr Lawry’s willingness to give evidence here demonstrates his ongoing support for the offender, which support is also evidenced by the fact that he has visited the offender whilst in custody. Mr Lawry would be willing to provide employment for the offender in the future.

18 The offender’s mother gave evidence. Mrs Horan said that her son was always in employment from the time he left school. Mrs Horan knew him only as a social drinker. However, he did speak to his mother about being in debt and about his concerns that his girlfriend was planning to go to Wagga to pursue her education there.

19 The offender advanced as his explanation for his involvement in the criminal enterprise his need for money to discharge indebtedness on his motor vehicle and also to put himself in funds in the event that his girlfriend went to Wagga and he had to look for employment there himself.

20 The offender has no prior convictions. Evidence at the trial established that he contemplated participating in stealing from a drug dealer at Blayney. The planning about this did not come to fruition and overall it seems to me that the offender is entitled to have his record brought into account in his favour for the purposes of sentencing.

21 The offender gave evidence as to his remorse and I accept that evidence as being genuine. I accept that the offender is contrite. His mother gave evidence to this effect and so too did Mr Lawry.

22 I consider that the offender’s prospects of rehabilitation are favourable.

23 The offender offered to plead guilty to manslaughter when arraigned before the jury. That plea was not accepted by the Crown. A plea of guilty to manslaughter was first offered prior to the committal proceedings and the offender is entitled to be sentenced upon the basis that a plea of guilty to manslaughter was offered at the first available opportunity: see R v Oinonen (1999) NSWCCA 310 and R v Cardoso (2003) 137 A Crim R 535.

24 The offender has expressed his willingness to give evidence against A and B. He has given an undertaking to give evidence, which undertaking is Exhibit B in these sentencing proceedings. The provisions of s 23 of the Crimes (Sentencing Procedure) Act are to be considered in relation to the offender’s offer of assistance. In the proceedings pending against B, the evidence the offender has expressed a willingness to give directly implicates B in inflicting the fatal harm. In the proceedings against A, the offender’s evidence would implicate A as being the person to propose taking the safe and the offender would implicate A as being a party to the criminal enterprise.

25 Addressing s 23(2)(g), it is to be expected that the offender’s custodial conditions will be influenced by the circumstance of the offender’s cooperation with the authorities in giving evidence against A and B. I am nevertheless mindful of what Howie J said in R v Sukkar (2007) 172 A Crim R 151 about the “on protection” regime.

26 Hitherto the offender has been detained in circumstances of strict protection. The offender gave evidence of a less severe custodial regime at first, with a degree of limited association. He was housed in a single cell but shared a small common area, mixing with a few prisoners for 4-5 hours per day. Then he was moved to a different cell and shared a small yard with two other prisoners. After eight months in custody, he was afforded access to a gymnasium for one hour per week and had use of the gymnasium for six months. However, since January 2008 conditions of detention have been more burdensome. He has been located in a single cell with an exercise yard measuring 3 metres x 2 metres. He has no access to the library and limited access to educational courses. He does enjoy art lessons fairly regularly on a one on one basis, and an example of his artwork was put in evidence as Exhibit 3.

27 A letter from the Assistant Director of Inmate Classification and Case Management with the Department of Corrective Services reveals that between July 2006 and January 2008 the offender was managed as a “Limited Association” inmate. Since January 2008 the offender has been managed as a “Non Association” inmate. This information is consistent with the evidence which the offender gave and to which I have referred. It is appropriate that I have regard to the conditions of custody for the offender thus far and that I have regard to what will occur in the future as best I am able to determine.

28 The offender is entitled to a discount on the sentence I would otherwise impose to bring into account the utilitarian value of his plea and his willingness to assist in relation to the matters considered above. See as to this R v Thomson and Houlton (2000) 49 NSWLR 383 and Sukkar, in particular the judgment of Howie J at [3]-[6] as to the quantification of the discount.

29 It seems to me in the circumstances of this case that it is appropriate that the total discount for the willingness to plead guilty to manslaughter at the first available opportunity and for the assistance offered is a discount of 40 percent.

30 I made reference earlier to the sentencing of the co-offender Nathaniel Charman. Hulme J sentenced Nathaniel Charman to imprisonment for a non parole period of four years and to a further term of two years. I note that in that case also the sentence attracted a discount of 40 percent having regard to a plea of guilty to manslaughter offered at the first available opportunity and having regard to assistance offered which, of course, included the giving of evidence in the proceedings against this offender Horan. The sentence imposed in Charman’s case invites consideration of the issue of parity and the application of the principles in Lowe v The Queen (1984) 154 CLR 606.

31 Like this offender, Charman was engaged in the planning that preceded the entry into the premises of the deceased. Like this offender, Charman participated in the earlier visit when he and this offender posed as security personnel. Like this offender, Charman travelled to the deceased’s home on the night the crime was committed. Whilst this offender remained at the back door of the deceased’s home, Charman participated in his diversionary tactic before returning to the vicinity of the deceased’s home to await the return of the offender and B to the vehicle.

32 It was Charman who introduced this offender Horan to the contemplated enterprise. It was Horan who introduced B to be a participant and it was Horan who provided the torch albeit not for the purpose for which B used it. Horan equipped himself with gloves and provided a pair to Charman. Horan eventually entered the deceased’s house, whereas Charman did not.

33 Looking at subjective features, both this offender and Charman were of about the same age. Charman was not as intelligent as this offender. Both offenders were motivated to commit the contemplated crime for financial gain. Both offenders had regular employment. Charman was on a s 10 bond for making a false representation but Hulme J observed: “Apart from the fact of the bond, I need not regard his prior offending as of any significance.”

34 In relation to this offender, the operation of s 32 of the Crimes (Sentencing Procedure) Act has been enlivened. I have been asked to take into account three scheduled matters arising under the Firearms Act. This offender was found to have in his possession a .22 calibre rifle modified by the attachment of a pistol grip. The firearm was not registered. The offender’s explanation for having the rifle in his possession was that he had found it near a creek. He had used it only for the purpose of firing “a few shots at cans”. He said he had had the weapon in his possession for over 12 months.

35 The contraventions of the Firearms Act are not to be treated as trivial contraventions. On the other hand, when one considers Charman’s case, he was engaged in the planning for and the participation of the criminal enterprise whilst on a bond.

36 The Crown submitted that there was not a great deal to differentiate the criminality of this offender and that of Charman and the Crown further submitted that considerations for the plea and the assistance given by each offender should weigh equally.

37 There was an error in the starting date for Charman’s sentence. I will return to that presently. However there has been no submission advanced that there was any error of principle affecting Charman’s sentence, or that the sentence imposed upon him was outside the permissible range.

38 Having had occasion to reflect upon my sentencing task, I have concluded the offender Horan would have a justifiable sense of grievance if he was to be given a longer sentence than Nathaniel Charman.

39 The maximum penalty for the category of crime for which the offender is to be sentenced is imprisonment for 25 years: s 24 of the Crimes Act. The circumstances in which the crime of manslaughter can be committed may differ so greatly that it is not easy to determine a general sentencing tariff. In the much cited judgment of the Court of Criminal Appeal in R v Blacklidge (NSWCCA, unreported, 12 December 1995) it was said:

“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 the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402)”

40 I consider that there are special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act. In so finding I have regard to the offender’s age, the fact that the sentence I am about to impose will be the offender’s first term of imprisonment following which there will be a need for an extended parole period.

41 There is one further matter arising from the sentence imposed on the co-offender Nathaniel Charman. In sentencing that offender, the learned sentencing judge backdated the sentence to 17 April 2006. That was a mistake and had the effect of reducing the non parole period of the sentence by three months. His Honour later declined to fix a later starting date, for the reason that he considered that that would impose hardship on the prisoner as the earlier sentence had led him to believe he would effectively be serving three months less.

42 In the present case the correct starting date for the sentence I am about to impose is 17 July 2006, that being the date upon which this offender was taken into custody. It would not be appropriate to adjust that sentence in order to reflect the error which occurred in Charman.

43 I adjust the sentence I would otherwise have imposed to allow for the discount to which I have referred and accordingly I now pass sentence as follows: I impose a sentence of imprisonment for a non parole period of four years commencing on 17 July 2006 and expiring on 16 July 2010. I set a balance of the term of the sentence commencing immediately thereafter at a further two years to expire on 16 July 2012. The first date upon which the offender is to become eligible to be released on parole is 16 July 2010.

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