R v Hyland, Parry, Yates, Powick and Wall

[2001] NSWSC 470

CITATION:	R v Hyland, Parry, Yates, Powick and Wall [2001] NSWSC 470
FILE NUMBER(S):	SC 70012/00; 70201/00; 70202/00; 70066/00; 70067/00
HEARING DATE(S):	29 January 2001 to 7 June 2001
JUDGMENT DATE:	7 June 2001
PARTIES :	Director of Public Prosecutions Dean William Hyland Robert Owen Parry Barry James Yates Bradley Thomas Powick Darren Russell Wall
JUDGMENT OF:	Ireland AJ

COUNSEL :	Mr M Macadam QC with Mr T Hardman for the Crown Mr J Fitzgerald for Hyland Mr W Warwick for Parry Mr M Austin for Yates Mr R Cruickshank for Powick Mr G Graham for Wall
SOLICITORS:
CATCHWORDS:	Reasons for Sentence - Murder - Home Invasion in circumstances of special aggravation - Accessory after the fact to murder - Incitment to pervert the course of justice - Whether worst case category - Whether warranting imprisonment for life
LEGISLATION CITED:	The Crimes Act 1900 Crimes (Sentencing Procedure) Act 1995
CASES CITED:	R v Rushby (1977) 1 NSWLR 594 R v Purdy (1992) A Crim.R 441 Ibbs v The Queen (1987) 163 CLR 447 R v Holden and Johnstone (1983) 3 NSWLR 245 R v Vusumuzi Twala (NSWCCA 14.11.94 unreported) Veen v The Queen (No.2) (1987-1988) 164 CLR 465 R v Harris (2000) NSWCCA 469 R v Garforth (NSWCCA 23.5.94 unreported) Pearce v The Queen (1998) 194 CLR 610
DECISION:	Sentences as per reasons.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

IRELAND AJ

THURSDAY 7 JUNE 2001

70012/00 - REGINA v DEAN WILLIAM HYLAND
70201/00 - REGINA v ROBERT OWEN PARRY
70202/00 - REGINA v BARRY JAMES YATES
70066/00 - REGINA v DARREN RUSSELL WALL
70067/00 - REGINA v BRADLEY THOMAS POWICK

SENTENCE

1    On 1 February 2001 an indictment was presented which charged Dean William Hyland, Robert Owen Parry, Barry James Yates, Bradley Thomas Powick and Darren Russell Wall as follows:

1. That on 3 October 1998 at Wyong the offenders Hyland, Parry and Yates did murder Alan Roy Brown.
2. That on the same date and at the same place the offenders Hyland, Parry, Yates and Powick entered a dwelling house with intent to commit robbery in circumstances of special aggravation, being armed with dangerous weapons, and whilst therein wounded Paul John Steengraver and Alan Roy Brown.
3. That between 2 October 1998 and 8 October 1998 at Wyong and elsewhere the offender Powick was an accessory after the fact to the murder of Alan Roy Brown.
4. That between 2 October 1998 and 29 January 1999 at Charlestown and elsewhere the offender Wall was an accessory after the fact to the murder of Alan Roy Brown.
5. That on 3 October 1998 at Swansea the offender Wall incited Karen Sproule and Stephen Lester to provide a false alibi with intent to pervert the course of justice.

To each of these charges the offenders pleaded not guilty.

2    Following a trial which occupied some eleven weeks, during which time one juror was discharged for reasons of ill health, the jury of eleven persons returned verdicts of guilty on each charge in the indictment. The offenders were accordingly convicted.

3    On 16 and 17 May 2001 I heard submissions and received evidence on sentence. The offenders are for sentence today.

4    The facts upon which I must be satisfied on the criminal standard for the purposes of imposing sentence are the following.

5    On the afternoon of Friday 2 October 1998 the offender Wall and his de facto wife Renee Russell received a telephone call, in response to which they drove their Ford Falcon Sedan registered number NUR.593 to the home of one Paul Webb at 255 Pacific Highway, Belmont North. This motor vehicle was made available to the four offenders Hyland, Parry, Yates and Powick, who drove off in a southerly direction. The driver of the car was Powick. All four were wearing dark clothing.

6    Prior to its departure the boot of the car was loaded with a revolving pistol, a shortened shotgun and a baseball bat.

7    Shortly after midnight the Ford Falcon, driven by Powick with Hyland, Parry and Yates as passengers, was parked in the near vicinity of the dwelling house at 4 Levitt Street, Wyong. This residence had been owned by a Mr Brian Shearer, who was, on the evidence, a supplier of marijuana, and who had met his death in apparently unrelated events one week previously.

8    The deceased victim Alan Brown and his brother David, who were nephews of Brian Shearer, were present with a number of others in the house that night. Two young men, Daniel Harrison and Derryn King, were outside the front of the house when accosted by Hyland, Parry and Yates. Mr Harrison, who was threatened and struck with a baseball bat, escaped, however, Derryn King, who had been tackled to the ground by the offender Hyland, was forced into the house.

9    The offenders once inside the house were seen to be wearing dark clothing, and were disguised by wearing balaclavas. Nevertheless the evidence adduced from a number of witnesses, and certain distinctive features and clothing, make it plain to the relevant degree that the offender Parry was armed with the revolver, the offender Hyland was armed with the shortened shotgun, and the offender Yates was armed with the baseball bat.

10    The offender Yates was observed to be wearing a distinctive black Metallica T-shirt bearing a large snake emblem and the words “Don’t tread on me”. He was wearing this T-shirt some hours later when spoken to by police (albeit then worn inside out), and surrendered this garment to the questioning police officers.

11    The offender Parry wore his hair in a single long plait which extended down his back. The person so described was observed to be carrying the revolver.

12    The offender Hyland is of stockier build (as described) than both the offenders Parry and Yates. He was armed with the shortened shotgun which he pointed at the head of Derryn King from a distance of some two metres, and ordered him inside the house.

13    The events which transpired once the three offenders had forced their way into the house were horrific in the extreme. Some of the occupants were able to flee, leaving two women and three men at the mercy of the three offenders, who demanded to be told the whereabouts of $20,000 said to be owed by the late Brian Shearer.

14    Mr Paul Steengraver, one of the occupants, was struck on the head and wounded by a blow from the shortened shotgun. The gun was put to his knees and he was told that he would never walk again if he did not disclose the whereabouts of the money, of which he and the others remaining in the house had no knowledge. The shortened shotgun was placed in Mr Steengraver’s buttocks and also in his mouth in the course of the threats to which he was subjected.

15    The baseball bat wielded by the offender Yates was used to administer blows to Mr Harrison, Mr King and Ms Coenradi on repeated occasions whilst they were at times under threat from the revolver held by the offender Parry, and at other times the shotgun held by the offender Hyland.

16    The evidence of the forensic pathologist Dr Oettle makes it plain that Alan Brown had been subjected to beating with the baseball bat prior to him being shot at close range to the side of his neck behind the left ear, the shot severing his spinal cord in what has aptly been described by counsel as an “execution style killing”.

17    The offender Parry, together with the offender Yates, took Alan Brown into the main bedroom, where he was beaten and then shot. The only reasonable inference open on the evidence is that this brutal killing was carried out by the offender Parry in the presence of the offender Yates when the victim was unable to satisfy the demands of the offenders.

18    The offender Parry entered the second bedroom where Mr King, Ms Williams and Ms Coenradi had been ordered to lie on the bed, and held them under threat with the revolver whilst the offender Yates struck Mr King and Ms Coenradi a number of times with the baseball bat whilst demands were made for money.

19    The offender Parry placed the revolver under Mr King’s chin, pulled him from the bed, and took him to the main bedroom where he exhibited the body of Alan Brown; asked him what it was and if he wanted to be “number two”, in an effort to have Mr King tell him where “the money” was. The offender Parry at pistol point escorted Mr King back to the second bedroom, where he was again struck with the baseball bat by the offender Yates.

20    A conversation took place between the offenders in which the question “what will we do with these (three people)” brought a response to the effect that they were to be shot, as one of the occupants had already been shot. Ms Williams, who with Ms Coenradi and Mr King had been ordered to lie on the bed, turned her face to the wall expecting to be fatally shot. The three offenders left the house, the offender Parry having pointed the revolver at Mr King, saying “we will be back”.

21    The three offenders entered the Ford Falcon in which the offender Powick was waiting, and left the scene of the home invasion and murder, heading north along the Pacific Highway. Mr Jody Kiriona, who lived nearby, and whose aid had been enlisted by one of the occupants who had fled from the house, followed the getaway car for some ten kilometres, pausing only to request a group of bystanders to call the police.

22    In a location where the Pacific Highway passes through thick bushland near San Remo, Mr Kiriona flashed his headlights at the Ford Falcon, which pulled over to the side of the road. The three offenders Parry, Hyland and Yates decamped. Mr Kiriona detained the offender Powick, enlisting the aid of a passing taxi driver to direct police to the location.

23    The apprehension of the offender Powick and the detention of the car were highly significant events. The car contained certain items, including two balaclavas, and bore a blood stain which, when combined with items discovered in the invaded house, furnished DNA evidence of great cogency, and virtually ensured the conviction of the offenders Parry, Hyland and Yates once their identity had been established. One cannot but commend in the highest terms the courageous actions of Mr Kiriona, without whose intervention, which resulted in the arrest of the offender Powick and the detention of the getaway car, the Crown case would have been gravely, perhaps fatally, impeded.

24    The knowledge which the offender Powick had as to the purpose of the armed invasion by the balaclava-clad co-offenders, including the possible use of these arms to wound, together with his role as driver of the getaway car, was the basis of his conviction as a principal in the second degree on the charge of house invasion in circumstances of special aggravation. Following his arrest in the early hours of Saturday 3 October 1998 the offender Powick undertook an ERISP with Detective Sergeant Wrice (now Chief Inspector) and Senior Constable Bailey, in which he agreed to have his hands scientifically examined for gunshot residue but declined to answer questions about his involvement in events in the absence of legal representation.

25    On 7 October 1998 the offender Powick undertook a second ERISP with the same police officers, on this occasion specifically declining legal representation. The ERISP comprised of some five hundred questions, the answers to which, on the evidence adduced in the trial, may properly be described as encompassing a tissue of lies, and deliberate misdescriptions of the co-offenders Hyland, Parry and Yates, their names, appearance, ages and background were clearly intended to assist those co-offenders by impeding, misleading and deflecting investigating police officers in their inquiries. Upon the basis of this assistance to the co-offenders the offender Powick was convicted of being an accessory, after the fact, to the murder of Alan Brown.

26    On the morning of Saturday 3 October 1998 the offender Wall received a visit from Mr Paul Webb, the Sergeant at Arms of the Life and Death Motorcycle Club, of which the offenders Parry and Hyland were members and the offender Yates was a nominee. Thereafter the offender Wall met a long term friend, Ms Karen Sproule, whom he informed that his car had been used in a murder. He sought assistance from Ms Sproule and her boyfriend, Mr Stephen Lester, to establish an alibi for the time when he and Ms Renee Russell had handed their car over to the four co-offenders.

27    A false alibi was concocted by the two couples embarking on a camping trip to Gloucester on Saturday 3 October 1998 and thereafter upon their return to the Newcastle area, on Sunday 4 October 1998, the offender Wall, having spoken with the offender Yates, falsely reporting to police that the camping trip had commenced on Friday 2 October and that whilst away the Ford Falcon had been stolen.

28    The offender Wall undertook an ERISP in which he adopted his false statement, and falsely denied knowing the offenders Yates and Powick. The assistance afforded to the co-offenders by his false statement distancing himself from them and endeavouring to break the chain of identification between the co-offenders and himself, was the basis of his conviction for accessory after the fact to murder.

29    The assistance sought and obtained from Ms Sproule and Mr Lester in the form of false statements in support of the false alibi was the basis for the offender Wall’s conviction for intent to pervert the course of justice.

30    In helpful written submissions the Crown has enunciated certain of the principles relevant to the punishment of offenders against the law, which I take into account. These include:

Deterrence : The duty of the Court to ensure that the sentences imposed will operate in a deterrent manner, as a powerful factor in preventing the commission of crimes similar in nature by like minded individuals in the future, and to act as a deterrent to the individual offender himself.
Rehabilitation : An important factor to be taken into consideration, recognising the mutual interest which the community, in common with the offender, has in the restoration of the latter to a useful and lawful existence in appropriate cases.
Retribution : The taking of vengeance for the harm inflicted by the offender is to be considered as an important aspect of sentencing. R v Rushby (1977) 1 NSWLR 594 at 598. Not only should the community be satisfied the offender has been given his just deserts, but also those left behind are entitled to feel that justice has been done. R v Purdy (1992) A Crim.R 441 at 445. Importantly, the sentence must accord with the general moral sense of the community who are aware of the facts as found by the Court and who have taken the opportunity to consider the penalty imposed in that light, as well as any subjective factors in favour of the offender.

31    There remain also considerations of totality of criminality and parity of sentence in cases involving multiple charges against multiple offenders, as in the present case.

32    An offender convicted of murder in contravention of s.19A of the The Crimes Act 1900 is liable to penal servitude for life. S.19A(2) provides that a person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person’s natural life.

33    The Crown submits that the murder of Alan Brown, accompanied as it was by a high degree of cold blooded callousness, is fairly to be described as an atrocious and gravely wicked act in which the degree of brutality exhibited by all three offenders in the execution of an innocent man out of vengeance when they did not get their own way, falls within the worst category of cases.

34    The imposition of the maximum penalty for any offence is a sentencing option reserved for cases which can properly be characterised as falling within the worst category of cases for which that penalty is prescribed; Ibbs v The Queen (1987) 163 CLR 447 at 451-452; R v Holden and Johnstone (1983) 3 NSWLR 245 and see also R v Vusumuzi Twala NSWCCA 4 November 1994 unreported. However, that does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness; Veen v The Queen (No.2) (1987-1988) 164 CLR 465 at 478.

35    In R v Harris (2000) NSWCCA 469 Wood CJ at CL, with whom Giles JA and B. James J agreed, said this:

“84 The features required for qualification in the ‘worst case category’ were defined in Twala NSWCCA 4 November 1994, where it was said:
‘in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed) ...’
85 ‘Heinousness’ has been described as follows:
‘The adjective ‘heinous’ which gives the noun ‘heinousness’ its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one.’ R v Reginald Keith Arhurell (Hunt CJ at CL unreported 3 October 1997).”

36 s.61 of the Crimes (Sentencing Procedure) Act 1999 relevantly provides:

“(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.
(2) ...
(3) Nothing in subsection (1) affects section 21(1).”

37    In reaching a determination as to “worst case category” it is appropriate to consider the whole of the criminal activity which took place at the time of the murder; R v Garforth (NSWCCA 23 May 1994 unreported).

38    The brutal and callous execution style killing of the victim, aggravated by the beating with a baseball bat to which he was subjected, and the further aggravating features of the home invasion with assaults, ill treatment and terrorising of the occupants, including the throwing of the victim Alan Brown against the sitting room wall from the couch where he was seated, amounts to a vicious killing unmitigated by any suggestion of provocation, self defence or other extenuating circumstances, and in my view justifies the categorization of this murder as being in the worst class of such cases.

39 Having said that, I am nevertheless not persuaded that in the terms of s.61(1) the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence.

40 S.21 of the Crimes (Sentencing Procedure) Act 1999, which provides:

“If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term.”

has application.

41    I propose accordingly to impose a determinate sentence upon each of the offenders Parry, Hyland and Yates, reflecting in the sentences the greater degree of criminality attributable to the offender Parry, who fired the fatal shot, and taking also into account the subjective features of these three offenders, to which I shall now turn.

42    The offender Robert Owen Parry, whose date of birth is recorded as 19 December 1963, was aged almost 35 years at the time of the offences and is presently aged 37 ½ years. He has two children as a result of a de facto relationship which has now ceased. Evidence was given by Ms Louise Murrell that she and the offender Parry had become engaged to be married some three months ago. They have been going out together for six months. Ms Murrell has four children from a prior relationship.

43    Exhibit (2D)1 is a resume of work skills, largely of a manual labouring nature, which the offender Parry has engaged in on an apparently intermittent basis.

44    The offender’s brother gave evidence of there being discord in the household between their parents and at a later stage between their mother and their step-father. However, there is no evidence of any detrimental effect upon the offender.

45    The offender Parry has an extensive criminal history dating back to 1982, including offences involving violence and dishonesty as well as numerous offences associated with the driving of motor vehicles. In February of 1995 the offender Parry was sentenced in the Newcastle Local Court to the maximum term of imprisonment available in that jurisdiction, being two years. The minimum term was fixed at 18 months. The offence in question was malicious injury, which involved the apparently unprovoked stabbing in the abdomen by the offender Parry of his stepbrother in November 1994.

46 A number of supporting testimonials have been tendered which include references as to the offender’s good conduct whilst in custody. They offer some hope as to ultimate rehabilitation, however, in view of the parole period which a long sentence mandates there are no special circumstances which would warrant variation of the statutory ratio contemplated in s.44(2) of the Crimes (Sentencing Procedure) Act.

47 The offender Parry has expressed no contrition or remorse with regard to the death of the victim or the events attending the home invasion in circumstances of special aggravation in contravention of s.111(3) of The Crimes Act 1900, an offence which carries a maximum penalty of twenty years imprisonment. On the contrary, the offender’s callous disregard for the consequences of his acts is eloquently expressed in his seeking to profit from the killing by exhibiting the body of the victim as a threat.

48    In consideration of the objective and subjective features, and taking into account the principle of totality of criminality, the sentence to be imposed for the murder charge is 26 years imprisonment with a non-parole period of 19 ½ years to date from 23 January 2000. The offender is to have credit for time spent in custody for the period of 1 year 3 months and 22 days to 16 May 2001, plus 22 days to date, a total of 1 year 4 months and 14 days. I will determine the precise sentence dates at the conclusion of these remarks.

49    On the second count of home invasion in circumstances of special aggravation, mindful of the factual overlapping in the application of the principle of totality and of what has been said by the High Court of Australia in Pearce and The Queen (1998) 194 CLR 610, a fixed term of 11 years imprisonment to commence on 23 January 2000 and to run concurrently with the sentence on the murder count is to be imposed.

50    The offender Dean William Hyland, whose date of birth is recorded as 3 October 1971, was aged precisely 27 years at the time of the offences which occurred on the anniversary of his birthday. He is presently aged 29 ½ years and has one child resulting from the relationship with his de facto wife, and there is also a step child.

51    Evidence was led from the offender Hyland’s father of the offender’s resignation from the Life and Death motorcycle group upon payment of a resignation fee of some three thousand dollars. The offender and his father have rekindled their relationship and parental support after a break of many years. The offender’s father gave evidence of being supportive of his son, whom he said had a “difficult” upbringing. What this means and what effect it has had on the offender is not clear.

52 Some material by way of testimonials form part of Exhibit (1D)1. I have taken these into account, and whilst they offer some hope of rehabilitation they do not amount to special circumstances in terms of s.44(2) of the Crimes (Sentencing Procedure) Act 1999.

53    The offender has a criminal history extending back to 1989. Whilst there is a considerable number of offences involving dishonesty, motor vehicle offences and minor drug offences, the prison sentences imposed on some nine offences were concurrent sentences within a six month time frame, none involving violence of the nature or extent of that associated with the present charges.

54    There has been no expression of contrition or remorse with regard to the death of the victim or the events attending the home invasion in circumstances of special aggravation.

55    The offender Hyland took a direct role in the ill treatment of the occupants of the house, in particular Mr King. Whilst he did not fire the shot which killed the victim, and to some extent his degree of criminality is reduced, this must be seen in light of all three invaders continuing to pursue their nefarious purpose after the shooting and during the period when the victim’s body was used in furtherance of their aims.

56    In consideration of the objective and subjective features, and taking into account the principle of totality, the sentence to be imposed for the murder charge is 23 years imprisonment with a non parole period of 17 years and 3 months, to date from 10 May 1999. The offender is to have credit for time spent in custody for the period of 2 years and 7 days to 16 May 2001, plus 22 days to date, a total of 2 years and 29 days. I will determine the precise sentence dates at the conclusion of these remarks.

57    On the second count of home invasion in circumstances of special aggravation, for the reasons given in para 49 above there will be a fixed term of 11 years imprisonment to commence on 10 May 1999 and to run concurrently with the sentence imposed on the murder count.

58    The offender Barry James Yates, whose date of birth is recorded as 5 March 1970, was aged 28 years at the time of the offences. He is presently aged 31 years. He has two children from a de facto relationship which ended some eight years ago when the offender returned to live with his parents. He has a son from a later de facto relationship of short duration and a daughter from a further relationship. He has had no contact with the children from the two latter relationships, and “minimal” contact with those from the first relationship.

59    The offender was a nominee of the Life and Death Motorcycle Club at the time of the offences for which he is to be sentenced. He informed the psychologist Ms Elizabeth Kusch, whose report forms part of Exhibit (3D)1, that he grew up in a stable, loving and supportive family environment.

60    Following a school career troubled by his disruptive behaviour the offender obtained employment as a machinery operator in Newcastle and rural areas. Apart from working at home on motor vehicles he reports no significant employment since 1995. The offender reported alcohol abuse over a number of years, but whilst in custody the thought of it “goes out of your mind”.

61    In October 1999 the offender sustained a fracture of his seventh cervical vertebra in a motor cycle accident. He was hospitalized for four days and remained in a “halo jacket” spinal brace for three months. He still experiences pain for which he is prescribed Naprosyn.

62    Ms Kusch administered a number of tests which led her to conclude that the offender Yates’ intellectual functioning is in the lowest 8% of the general population, hence being a person who has more difficulty than the average in considering the consequences of his behaviour and may possibly be vulnerable to manipulation by others.

63    The offender’s criminal history dates back to 1982. Whilst there are a number of offences they do not include custodial sentences and are of little significance for present sentencing purposes. I note also the testimonials tendered in Exhibits (3D)1 and (3D)2.

64    I approach the task of sentencing in this case on the basis that the offender was a follower and not a leader, and that he is a person whose intellectual functioning is at a relatively low level. He will, at least in the early days of his incarceration, be disadvantaged in a number of ways by the after effects of his injury.

65    In common with his co-offenders the offender Yates has shown no trace of contrition or remorse, and in similar communion with them continued to pursue their joint aims after the killing of the victim. There must nevertheless be recognised the limitations in mitigation which are available to a follower who willingly and actively participates in the crime of murder in the atrocious circumstances of the present case.

66    As with the co-offenders to the murder charge, it is necessary to take into account the principle of totality as well as the objective seriousness of the crimes and the subjective features of the offender Yates.

67    The sentence to be imposed for the murder charge is twenty years imprisonment with a non parole period of fifteen years, to date from 21 January 2001. The offender is to have credit for time spent in custody for the period of 3 months and 25 days to 16 May 2001, plus 22 days to date, a total of 4 months and 17 days. I will determine the precise sentence at the conclusion of these remarks.

68    On the second count of home invasion in circumstances of special aggravation, for the reasons given in para 49 above, there will be a fixed term of ten years imprisonment, to commence on today’s date and to run concurrently with the sentence imposed on the murder count.

69    The offender Bradley Thomas Powick, whose date of birth is recorded as 11 January 1978, was aged 20 years 9 months at the time of the offences. He is presently aged 23 years and is a single man.

70 As previously observed, the offence of home invasion in circumstances of special aggravation attracts a maximum penalty of twenty years imprisonment. The offender as driver of the getaway car is appropriately to be considered as a principal in the second degree. S.345 of the Crimes Act 1900 provides that every principal in the second degree in any serious indictable offence shall be liable to the same punishment as the principal in the first degree.

71    The second charge of accessory after the fact to murder, of which the offender Powick has been found guilty, carries a maximum sentence of twenty five years imprisonment. It is nevertheless common ground that in the circumstances outlined in the findings of fact to which I have made reference, the more serious offence is the home invasion in circumstances of special aggravation, and that considerations of totality of criminality in relation to the accessorial conviction ought to be reflected in the sentence imposed.

72    From the point of view of his criminal history prior to the offences now for sentence I accept the submission that the offender may be considered as a first offender.

73    The offender enjoyed a stable home relationship and the support of his family, who remain supportive. The material tendered in Exhibit (4D)2, his school reports, make plain that his ability was well in excess of his efforts to make use of it.

74    I find to be farfetched the submission of counsel on the offender’s behalf that with regard to the offence of robbery, regarding which the offender is presently serving a sentence of imprisonment, some merit is to be derived from a claim that the proceeds of the crime were to be used to get the offender home in time to comply with his bail conditions.

75    I proceed to sentence insofar as the accessorial charge is concerned upon the basis only of the offender’s blatant attempts to mislead the police in his ERISP, to which I have previously made reference. There has been no contrition or remorse expressed by the offender Powick.

76    The age of the offender and his efforts whilst in custody favour his prospects of rehabilitation. His present custody for an unrelated offence of robbery was committed whilst on bail on the present charges. The unrelated offence is not to be taken into account in determining the sentence in the present case except to the extent that the sentence now to be imposed is accumulated so as to commence at the expiration of the minimum term (non parole period) presently being served. That being so, principles of totality mandate a reduction of the sentence now to be imposed in light of the accumulation of the sentences.

77 I find there to be special circumstances within the meaning of s.44(2) of the Crimes (Sentencing Procedure) Act 1999 being the offender’s first offence status, his age, his family support and prospects of rehabilitation.

78    In consideration of the objective and subjective features, as well as those other matters to which I have referred, the sentence to be imposed for the charge of home invasion in circumstances of special aggravation is 10 years imprisonment with a non parole period of 6 ½ years to date from 10 May 2002. Recognising time already spent in custody, the sentence I impose will in this instance be partly concurrent with the sentence presently being served.

79    The offender is to have credit for time spent in custody referable to the present proceedings of 59 days, which for ease of calculation I shall deem to be 2 months. I will determine the precise sentence dates at the conclusion of these remarks.

80    The offender Darren Russell Wall, whose date of birth is recorded as 8 July 1968, was aged 30 years at the time of the offences and is presently aged almost 33 years. He has been in a long standing de facto relationship from which there are three children, the eldest of whom suffers from severe cerebral palsy.

81    The offender has a criminal history of relatively minor matters, with one offence in July of 1993 resulting in a sentence of periodic detention for 9 months for cultivating prohibited plant.

82    Whilst the charges which the offender faces of accessory after the fact to murder and incitement with intent to pervert the course of justice are serious offences, the Crown concedes that the involvement of the offender and the degree of his criminality places him in an entirely different category from that of the other offenders.

83    The Crown submits further that the Court might take into account that which became evident during the trial, that is to say, that the offender Wall acted under the influence of the co-offenders in the steps he took to break the chain of identification between himself and the co-offenders giving rise to his conviction on the accessorial charge and the related charge of incitement with intent to pervert the course of justice. I accept the force of those submissions which are borne out by material placed before the court in the sentence proceedings.

84    The offender has a sound work history and prospects within his employment as described in Exhibit (5D)2, the report from his former employer.

85 There are in my view special circumstances within the meaning of s.44(2) of the Crimes (Sentencing Procedure) Act 1999. These include the offender’s family commitments and support and his prospects of rehabilitation and employment.

86    Darren Russell Wall, on the charge of accessory after the fact to murder you are sentenced to 12 months imprisonment, deemed to have commenced on the date you went into custody on 30 January 2001 and concluding on 29 January 2002, with a non parole period of six months deemed to have commenced on 30 January 2001 and concluding on 29 July 2001.

87    On the charge of incitement to pervert the course of justice you are sentenced to a fixed term of five months imprisonment deemed to have commenced on 30 January 2001, and which will expire on 29 June 2001.

88 Pursuant to s.50(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 29 July 2001.

89    Robert Owen Parry, on the charge of murder on which you have been convicted you are sentenced to 26 years imprisonment. Allowing credit for 1 year 4 months and 14 days served in custody to date, your sentence will commence on 23 January 2000 and conclude on 22 January 2026, with a non parole period of 19 ½ years commencing on 23 January 2000 and concluding on 22 July 2019.

90    On the charge of home invasion in circumstances of special aggravation you are sentenced to a concurrent fixed term of 11 years commencing on 23 January 2000.

91    You will be eligible for parole on 22 July 2019.

92    Dean William Hyland, on the charge of murder on which you have been convicted you are sentenced to 23 years imprisonment. Allowing credit for 2 years and 29 days served in custody to date, your sentence will commence on 10 May 1999 and conclude on 9 May 2022, with a non parole period of 17 years and 3 months to date from 10 May 1999 and concluding on 9 August 2016.

93    On the charge of home invasion in circumstances of special aggravation you are sentenced to a concurrent fixed term of 11 years commencing on 10 May 1999.

94    You will be eligible for parole on 9 August 2016.

95    Barry James Yates, on the charge of murder on which you have been convicted you are sentenced to 20 years imprisonment. Allowing credit for 4 months and 17 days served in custody to date your sentence will commence on 21 January 2001 and conclude on 20 January 2021, with a non parole period of 15 years commencing 21 January 2001 and concluding 20 January 2016.

96    On the charge of home invasion in circumstances of special aggravation you are sentenced to a concurrent fixed term of 10 years commencing 21 January 2001.

97    You will be eligible for parole on 20 January 2016.

98    Bradley Thomas Powick, on the charge of home invasion in circumstances of special aggravation on which you have been convicted you are sentenced to 10 years imprisonment to commence on 10 May 2002, recognising the conclusion of the minimum term presently being served by you. Allowing credit for time spent in custody referable to the present proceedings of 2 months, your sentence will commence on 10 May 2002 and conclude on 9 May 2012. There will be a non parole period of 6 ½ years, which allowing for the 2 months spent in custody referable to this offence, will commence on 10 May 2002 and conclude on 9 November 2008.

99    On the second charge of accessory after the fact to murder, the facts of which do not overlap with the home invasion charge, there will be a concurrent fixed term of three years commencing on 10 May 2002.

100    You will be eligible for parole on 9 November 2008.

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Last Modified: 06/08/2001