R v McNellee, Tucker and Dalley

[2000] NSWSC 1154

CITATION:	Regina v McNellee, Tucker and Dalley [2000] NSWSC 1154
FILE NUMBER(S):	SC 70025/99; 70207/99; 70045/99
HEARING DATE(S):	26/04/00, 28/04/00, 01/05/00, 02/05/00, 03/05/00 04/05/00, 05/05/00, 08/05/00, 09/05/00, 10/05/00, 11/05/00, 27/10/00
JUDGMENT DATE:	8 December 2000
PARTIES :	Regina Richard Charles McNellee Jeffrey Wayne Tucker Rodney Joel Dalley
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr L Gray - Crown Mr M Austin - McNellee Mr R Greenwood, QC - Tucker S Russell - Dalley
SOLICITORS:	Matthew Coates - Crown Mr G Adler, Legal Aid Commission of NSW - McNellee George Sten & Co - Tucker Nyman Gibson & Co - Dalley
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987
CASES CITED:	R v Thompson and Houlton [2000] NSWCCA 183 R v GDP (unreported) NSWCCA 22.04.91 R v Pham (1991) 55 A Crim R 128
DECISION:	Richard Charles McNellee - sentenced to a term of 14 years imprisonment deemed to have commenced on 03.01.99 - non-parole period of 10 years and 6 months specified - first date eligible for release on parole 02.07.09.; Jeffrey Wayne Tucker - sentenced to a term of 13 years imprisonment deemed to have commenced on 03.01.99 - non-parole period of 9 years specified - first date eligible for release on parole 02.01.08.; Rodney Joel Dalley - sentenced to a term of 10 years imnprisonment deemed to have commenced on 03.01.99 - non-parole period of 6 years specified - first date eligible for release on parole 02.01.05 - direct pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 whole of sentence to be served in a detention centre.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

Friday, 8 December, 2000

070025/99 - REGINA -v- Richard Charles McNELLEE
070207/99 - REGINA -v- Jeffrey Wayne TUCKER
070045/99 - REGINA -v- Rodney Joel DALLEY

SENTENCE

1    HER HONOUR: Richard Charles McNellee, Jeffrey Wayne Tucker and Rodney Joel Dalley each stand convicted of the murder of Glen Reay at Kamarah on 2 January 1999. A fourth man, Frederick Keith Brewer, pleaded guilty to the murder of Glen Reay on Thursday, 30 November 2000 on the fourth day of his trial before me and a jury. The sentence proceedings involving the prisoner Brewer have been stood over to 9 February 2001.
2    It is the Crown case that each of the four prisoners was a party to a common purpose to rob Glen Reay of a quantity of cannabis while they were armed variously with knives, a mattock handle and a machete. In the course of the robbery Glen Reay was stabbed twenty one times and died shortly thereafter. It is not said that any of the three prisoners standing for sentence today inflicted any of those wounds.
3    Richard Charles McNellee pleaded guilty upon his arraignment in this court on 17 September 1999. The matter came before me on 31 March 2000 when evidence was tendered and I heard submissions on sentence. I stood the matter over without passing sentence until the conclusion of the related proceedings involving the co-offenders Tucker, Dalley and Brewer. The trial of all three men was fixed to commence on 26 April 2000. On that date, for reasons which it is not necessary to go into, I directed the separate trial of the prisoner Brewer. The trial of Tucker and Dalley proceeded. On 11 May 2000 the jury returned verdicts of guilty in each case. The trial of Frederick Brewer commenced before me at Griffith on 27 November 2000. As I have noted, he entered a plea of guilty during the course of that trial.
4    I turn firstly to the case involving the prisoner Richard Charles McNellee. An agreed statement of facts was tendered at his sentence hearing. This set out that he travelled from Inverell to Kamarah on Friday, 1 January 1999. He had been invited to stay at premises at 5 Train Street, Kamarah, with Tucker and Brewer, both of whom resided at that address.
5    On Saturday, 2 January, the prisoner, together with his co-offenders arranged to lure Glen Reay to the village of Kamarah ostensibly for the purpose of obtaining a small quantity of cannabis. The prisoner made a number of telephone calls in the course of the day to Glen Reay's home before finally speaking with him at around 9.15 pm that evening. During the course of the telephone call the prisoner arranged to purchase a small quantity of cannabis from Mr Reay for $410.00. It was agreed that the deal would take place in the vicinity of the railway siding at Kamarah.
6    The arrangement having been made, the prisoner and his co-offenders dressed in black clothing and armed themselves with knives and the mattock handle. They went to the meeting place and hid at various locations. Glen Reay arrived at the railway siding driving his Cressida sedan. A man named Frank Cosson accompanied him. The prisoner approached the vehicle and got into the rear seat. He had a short conversation with Mr Reay and inspected the cannabis. He then alighted from the car saying that he would go and get the money. After leaving the vehicle the prisoner signalled to his co-offenders. He picked up a mattock handle. Thereafter a furious attack on the vehicle was staged, during the course of which a number of windows were smashed. One of the men broke the front passenger window and launched an attack on Glen Reay who sustained a stab wound or wounds to the upper part of his body. During this phase of the incident Mr Reay attempted to drive the vehicle away from the scene. Two of the men sought to prevent Mr Reay's escape by leaning through the driver’s window and pulling on the steering wheel, causing the car to come to a halt after colliding with an embankment. Thereafter Mr Cosson was able to get out of the car and flee. Mr Reay got out of the vehicle and was confronted by one or more of his attackers. He was repeatedly stabbed.
7    Some time thereafter the prisoner and his co-offenders left the scene making their way back to Mr Brewer's premises. There they changed from the clothing which they had worn, washing a number of items and cleaning their footwear. The weapons were hidden at various locations around the premises. The prisoner oiled the mattock handle in a bid to prevent detection of glass or paint on it.
8    At about 9.40 am on Sunday, 3 January police executed a search warrant at the Train Street premises. The prisoner was spoken to at this time and made admissions. He assisted the police and participated in a video runaround showing where he and his co-offenders had disposed of weapons and clothing. At the conclusion of the search he was conveyed to the Griffith Police Station.
9    At the Police Station the prisoner participated in an electronically recorded interview. During the course of this interview he made admissions concerning his involvement in the incident. He said that he had been told he would receive a motor vehicle from the co-offender Brewer in return for his part in the venture.
10    In the prisoner's case a report prepared by Anna Robilliard, psychologist, dated 9 December 1999 was tendered. In that report Ms Robilliard sets out the prisoner's version of his involvement in the offence. He informed Ms Robilliard that he had travelled to Griffith with a view to obtaining a job in a car yard operated by Fred Brewer and his father. Some months prior to this time he had been living at a caravan park where he had met Jeffrey Tucker. He said that Tucker had contacted him and suggested that a job could be arranged for him in the Brewer caryard.
11    The prisoner gave an account to Ms Robilliard of the events at the Brewer premises on the evening of 1 January 1999. He said that he and his co-offenders had all consumed some marijuana. Frederick Brewer talked about tying the deceased to a railway track. At the time the prisoner thought that Brewer was speaking codswallop, however, he understood that there was bad blood between the Brewer family and the Reay family. He said that Jeffrey Tucker had not wished to be involved and that Fred threatened that if he did not, he would be next. The prisoner said that he became involved because he did not want to see Jeffrey get hurt.
12    Mr Austin, who appeared on behalf of the prisoner, drew my attention to this aspect of Ms Robilliard's report. He conceded that there were passages which placed a somewhat different complexion on the incident to that which the Crown might otherwise establish. The Crown case was that the four men were a party to a common purpose to rob Mr Reay while armed and that each contemplated that grievous bodily harm might be done to him by one or more of their number, intentionally, in the course of carrying out that robbery. On a view, the Robilliard report was suggestive that there had been some greater degree of planning and that the arrangement to have Mr Reay attend at the location near the railway siding was in order that he might be set upon by the armed men. Mr Austin informed me that his instructions were that the prisoner had been more forthcoming with the psychologist than he had been in the course of his interview with the police. He submitted that the tender of the report (with the concession just made) further instanced the prisoner's contrition.
13    I am not of the view that the statements made to Ms Robilliard admit of a finding that the prisoner attended the scene intending to kill Glen Reay or understanding that one of his co-offenders would do so. Equally, I should record that I am not satisfied upon the balance of probabilities that the prisoner's participation in the venture was because he did not wish to see his co-offender Jeffrey Tucker hurt.
14    The prisoner has been in custody since 3 January 1999. His custody has been solely referable to the subject offence.
15    Ms Robilliard's report contains a detailed history. She notes that from the prisoner's account of his background, it would appear that he was born into an intact but dysfunctional family unit. His parents regularly moved from place to place, forming few friendships and excluding themselves from any extended family network. Violence was a relatively regular feature of home life. As an adult the prisoner's lifestyle has been an itinerant one. From the age of 14 he worked mostly as a farm labourer. He spent 18 months working at Katherine in the Northern Territory and another two years working on a property on the Nullabor Plain. His only close emotional attachment appears to be to his sister and her two young children.
16    The results of intelligence testing reveal that the prisoner falls within the bottom 4 percent of the population. Ms Robilliard notes that he is a rigid and relatively slow thinker who may not always predict the consequences of his behaviour quickly enough, if at all.
17    Ms Robilliard goes on to comment on the prisoner's personality attributes. She describes him as having a schizoid personality. She says the hallmarks of that personality are lack of emotional depth, warmth and sensitivity. Ms Robilliard observes that the prisoner described feeling shocked when the deceased was stabbed. He told Ms Robilliard that he still has nightmares about the incident and on occasions dreams that he is the person being killed and that the deceased is his assailant. Ms Robilliard frankly notes that it was difficult for her to assess the prisoner's feelings concerning the offences as he seldom uses emotive language. She said that on several occasions the prisoner said, "What I did was wrong". On another occasion during the course of the interview he informed Ms Robilliard that he thinks that the death penalty should be brought back. She said that his statements appeared strangely devoid of emotional content. In her opinion, his lack of emotional sensitivity is not to be equated with callousness. She considers that at a cognitive level, his remarks concerning the death penalty represented an attempt to show remorse. She concludes that the prisoner is unable to readily conceptualise the emotional facets of self and relationship. He is, nonetheless, sorry about the death of the victim and is disturbed by nightmares and intrusive recollections.
18    I accept that the prisoner is remorseful for his involvement in this ugly crime. I consider that his remorse is evidenced by his prompt cooperation with the police and his plea of guilty.
19 In R v Thompson and Houlton [2000] NSWCCA 183 the court identified the appropriate range by which sentences might be discounted to reflect a plea of guilty and in particular, the utilitarian value of the plea. That latter consideration requires examination of the timing of the plea and the length and complexity of the trial which otherwise would have been occasioned. It was noted that in a case where the prisoner has additionally provided assistance to the authorities, it may be appropriate to specify a single combined discount.
20    In this case the plea was entered following the prisoner's committal for trial. He was originally charged with five offences arising out of his involvement in this episode in addition to the murder of Glen Reay. He pleaded guilty upon his arraignment before Barr J to an indictment which was framed in different terms to the charges upon which he was committed for trial. He is entitled to a discount which reflects that he pleaded guilty promptly after the indictment was formulated.
21    Considerations of the length and the complexity of the trial as discussed in Thompson and Houlton would not in my view place the discount on this account at the top of the range.
22    The prisoner made admissions not only as to his own participation in the venture but nominating the role played by others. At the scene he pointed out to the police the location of the various weapons which had been hidden. Ultimately, each of the four men was to make admissions in the course of electronically recorded interviews. The prisoner was the first to cooperate with the police and his cooperation was substantial. The account offered by the prisoner in his electronically recorded interview is strongly corroborated by the account of Mr Cosson. I approach the matter of his assistance to the authorities upon a view that it was a significant factor in leading his co-offenders to making the admissions which they made in their interviews.
23    Taking into account the utilitarian benefits of the prisoner's plea together with his assistance to the authorities, I consider he is entitled to a discount of 25 percent off the sentence which I would otherwise impose.
24    This was an objectively serious offence. It is accepted that Mr Reay was lured to the isolated site where he was confronted by the accused and the other armed men. I do not sentence the prisoner upon the basis that he inflicted any of the stab wounds upon the deceased. Nonetheless, his role in the scheme was an important one. He made telephone contact with the deceased setting up the arrangement which brought him to the Kamarah site. He was the one who got into the vehicle apparently to conduct the negotiations over the purchase of the drugs. He returned to the vehicle armed with a weapon thereby lending his support to the man who stabbed the deceased during this phase of the attack.
25    The prisoner has a record of criminal convictions commencing in September 1991 when he was aged 14 years. At the age of 19 he was convicted before the Inverell Local Court of charges including breaking, entering and stealing and breaking and entering with intent. He was sentenced in each instance to a fixed term of 6 weeks imprisonment. Later in that same year he was convicted of further criminal offences including breaking, entering and stealing and breaking and entering with intent to commit a felony. He was sentenced to fixed terms of imprisonment ranging between 14 days and 4 months on that occasion. In 1998 he suffered two further convictions for the offence of goods in custody.
26    The prisoner was unemployed at the date of the commission of the subject offence. I take into account that the history given to Ms Robilliard is consistent with the view that he has shown himself able and willing to undertake employment when the opportunity presents itself. He does not appear to have any major problem with addiction to drugs or alcohol, although he admits to intermittent marijuana use. Overall, I approach the matter upon the basis that he is a person with reasonable prospects of rehabilitation. I consider that this view is reinforced by his cooperation with the police and the evidence of his remorse in relation to the subject offending.
27 I am not of the view that any basis for a finding of special circumstances for the purposes of s 44(2)of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) has been made out. I propose to sentence the prisoner to a term of 14 years imprisonment and to specify a non-parole period of 10 years and 6 months.
28    I turn now to the case of the prisoner Jeffrey Wayne Tucker. The case presented against Mr Tucker was, as I have noted, one of common purpose, murder. Frank Cosson gave evidence that after the prisoner McNellee got out of the Cressida saying that he was going to get the money to pay for the drugs, he heard a whistle. Not long after that a baby-faced blond headed person broke the passenger side window and commenced assaulting Mr Reay. The prisoner McNellee got back into the back seat of the vehicle armed with a machete. It was at this point that Mr Cosson observed a person standing outside the passenger's side of the vehicle with what he believed to be a baseball bat and a knife. The trial was conducted upon the basis that this third man was the prisoner Tucker. I accept that to be the case. Mr Cosson described the prisoner as attempting to come towards the car on a couple of occasions. Mr Cosson kicked his leg out of the window in an attempt to prevent his approach. Mr Cosson was a most impressive witness who, notwithstanding the terror of the evening, appeared to have a reliable recall of the sequence of events. I am satisfied beyond reasonable doubt that the prisoner was holding both a knife and the mattock at the point when Mr Cosson observed him. Mr Cosson said that his kicks did serve to keep the prisoner at bay, notwithstanding that he, Cosson, believed they were ineffective ones. During the course of his evidence-in-chief, he agreed with a proposition put to him by the Crown Prosecutor that the prisoner appeared to be reluctant to come in towards the car as he was kicking at the window. He went on to agree with a further proposition put by the Crown Prosecutor, namely that the prisoner seemed a bit half-hearted about approaching the vehicle. There was no suggestion that the prisoner struck any blow that night.
29    In the course of an electronically recorded interview with police the prisoner made admissions as to his involvement in the venture. In his initial interview with Detective Briggs at the Train Street premises, he said, "We wanted to get some drugs off him and we were going to rob him of some drugs". In that first interview he told police that as far as he could remember, he had a knife.
30    In the subsequent electronically recorded interview the prisoner was asked:
"Q. What was the general plan to be?

A. Well, the general plan, the four of us was going to rob him of his drugs. I chickened out and I just stood there."

31    I accept that the prisoner did indeed chicken out at the scene. His claim received support from the evidence of Mr Cosson.
32    The prisoner was aged 33 at the date of the offence. He was a man of good character with no record of criminal convictions. In the course of his interview with police, on more than one occasion he asserted that he was a person of non-violent disposition.
33    A report of Dr Jolly, psychiatrist, dated 30 March 2000 was tendered on the prisoner's behalf. Dr Jolly described the prisoner in these terms:

"At consultation Jeffrey Tucker presented pleasantly and I must say I was quite surprised by his gentle, rather passive way of responding to me. I have no doubt that he deeply regrets what he got himself into and he is genuinely contrite. In no way would I wish to trivialise the incident, but this man is something of a hillbilly. To some extent his way and quality of life has been emotionally impoverished. He lives a strange existence in a remote part of the state and the past has not been particularly kind to him."

34    Dr Jolly goes on to set out in a more detailed way the history he obtained from the prisoner. The prisoner described a disrupted childhood telling Dr Jolly, "I lived all over the place". He was a sickly child suffering from bronchitis and other chest problems. His father died when he was aged 17. He worked intermittently undertaking casual labouring jobs and some seasonal work. His chest troubles prevented him working consistently. Dr Jolly considered that the prisoner did have the motivation to work.
35    The prisoner moved into the Train Street premises when he was aged 23 after his older sister became engaged to Frederick Brewer Senior. He continued living at those premises until the date of his arrest.
36    The prisoner told Dr Jolly that he had been sexually molested as a child by one of his father's friends. The abuse started when he was aged 8 or 9 and continued until he was 13 or thereabouts. It would appear that the perpetrator may also have been assaulting the prisoner's sister. There was some level of police investigation but it did not extend to an interview with the prisoner. Dr Jolly considered it probable that the prisoner suffered a recognisable psychiatric disorder in consequence of this childhood abuse.
37    Dr Jolly expressed the opinion that the prisoner is not a person disposed to violent behaviour. I accept that assessment. I consider that it finds support from a number of quarters.
38    I note the contents of a reference prepared by E and J Murphy, both members of the Salvation Army, who have known the prisoner since 1988. In their joint reference they describe him as a quiet, helpful and thoughtful man. They considered that he was subject to bad influence by some with whom he was associated at Kamarah. They assert a strong belief that the prisoner is a follower and not a leader. In the light of the whole of the evidence I am inclined to accept that view.
39    Dr Jolly summed up his impressions of the prisoner following his interview with him on 2 March 2000 in this way:

"Mr Tucker presents as a passive man, sexually abused as a child with predictable consequences upon whom the stigmata of subcultural handicap have impacted all his life. In this situation, frailties of coping are evident and these are presented in Mr Tucker's personal history. He probably has been the victim of aggression in adult life and is genuinely fearful of those more powerful, at the same time desirous of fitting in, being accepted and acceptable. I do not see him as intellectually handicapped but I do see him as a man with poor verbal and reasoning skills, someone whose constitutional vulnerability might prevent him from thinking through the consequences of a particular action or plan and thereby determining not to join in. He is not by character someone recklessly indifferent to violence, the harm that potentially might come to others."

40    A viewing of the electronically recorded interview together with the evidence of Mr Cosson and the material tendered on the prisoner's behalf at the sentence hearing as a whole to my mind commend a view that despite the fact that the prisoner was the oldest of the group, his position relative to his co-offenders Brewer and McNellee was a subordinate one.
41    Tendered on the prisoner's behalf is a letter from Captain Carter of the MRRC Chaplaincy Service. Captain Carter has had weekly contact with the prisoner during his period in custody. He notes that the prisoner is well-behaved contributing to the good order of the centre. The prisoner has obtained employment in the laundry section of the MRRC. It is noted that employment is scarce within that facility and is only given to those whom the custodial staff consider can be trusted to carry out tasks without incident. Captain Carter goes on to observe that he has spoken about the offence with the prisoner and has discussed, as he put it, the need to make wise decisions in regard to company and circumstances. Captain Carter notes that the prisoner has good support from his mother. The prisoner attends church in the centre and has support from the church community outside. Captain Carter has discussed the offence with the prisoner and is of the view that he has acquired some insight into the matter.
42    I consider the prisoner's culpability for his crime to be reduced by reason of my acceptance that he did “chicken out” at the scene. This is not to overlook that by his presence he lent support to his co-offenders. The deceased was not to know that the man who stood by the passenger side of the car with mattock and knife had no heart for the attack. The prisoner is entitled to the benefit of some leniency on account of his past good character, as he is entitled to some benefit for the admissions that he made in the course of his interviews with the police. As would be plain from the statement of my reasons thus far, I am of the view that it is unlikely that the prisoner would re-offend by the commission of any offence of violence in the future.
43 The prisoner is a man of limited intellectual resources with a background of abuse as a child who now faces a lengthy term of imprisonment for the first time. I consider that special circumstances exist within the meaning of s 44(2) of the Act and I propose to depart from the statutory ratio as between the sentence and the non-parole period. I propose sentencing the prisoner to a term of 13 years imprisonment with a non-parole period of 9 years.
44    I turn now to the case against the prisoner Rodney Joel Dalley. The prisoner was born in April 1982. He was aged 16 years at the date of the offence. The prisoner participated in an electronically recorded interview with the police on the day of his arrest. Although I do not consider he was wholly frank in the answers he gave, he did make a number of significant admissions and is entitled to credit for that. He conceded that he had understood that it was proposed to rip off Glen Reay of his drugs. He had accompanied the others to the railway siding taking the mattock handle with him. He said that during the course of the incident after the car started to move off he had run forward and grabbed the steering wheel, pulling the car so that it ran into the embankment. I do not find that the prisoner inflicted any stab wounds on the deceased. His role was nonetheless significant in that he actively participated in preventing the escape of the deceased.
45    The prisoner has no record of prior criminal convictions.
46    A helpful background report was prepared by the Wagga Wagga District Office of the Department of Juvenile Justice. It sets out the prisoner's background. He is the youngest child in a family of four children. He was born at Griffith and has been raised throughout his life at Kamarah. It is a small community of approximately twenty to thirty houses built around the grain silo on the railway line. Griffith is the nearest major centre some 70 kilometres to the west. The prisoner attended the Ardlethan school. Ardlethan is some 10 kilometres to the east of Kamarah and is itself a small community. The prisoner's brothers and sisters have remained close to the family unit. His older brother still resides at home with his parents, as does his sister. Additionally the prisoner has other extended family to whom he is close and who have played a significant role in his life. The evidence suggests that up until year 10 at school, the prisoner presented as a well adjusted, helpful young man. He is described in warm terms by members of the local community.
47    This is consistent with character evidence led at the trial on his behalf from Grant Beard who taught him some two to three years prior to the subject events. Mr Beard had since left teaching, however, he remained a resident of Ardlethan and struck me as a person well placed to comment on the prisoner not only as he had been at the time when he was teaching him, but in more recent times. Mr Beard's evidence was most favourable. He described the prisoner as one of the students whom he would call upon first to give assistance in relation to the various community activities with which the school was involved.

"If I asked him to do something, he would do it, it would be done. He'd be willing and always eager to give me a hand and he seemed to like doing it."

48    In the period after Mr Beard ceased teaching he noted that the prisoner would always be friendly and polite towards him when they met in the street.
49    To similar effect were a number of references tendered on the prisoner's behalf at the sentence hearing. Mrs Kathleen Sligar, who is attached to the Ardlethan First Scout Troop, described the prisoner as being a caring and thoughtful person. She said on many occasions he had been the first to offer help to his neighbours. He was an affectionate young man who would run up to her in the street and give her a cuddle. She had noted over the past year a change in his behaviour. It appeared to her that he was becoming involved in bad company and showing signs of antisocial behaviour. She reports that in contact with him since his incarceration, he appears to have returned to his old self.
50    Miss Judith Anderson of Ardlethan in a written reference noted that she had known the prisoner for eleven years. She described him as always being friendly, outgoing and affectionate towards her family. He was a person of cheerful outlook. She said that he had always treated her as an adult with respect.
51    To like effect was a reference from Colleen Stout, the Ardlethan/Kamarah school bus driver, who reported that the prisoner had always been a courteous, polite and well-mannered young boy.
52    David Clarke coached the prisoner in “Aussie Rules” at school and district level over a period of six years. He described the prisoner as having been an asset to the team. He went on to explain that the prisoner's dedication went beyond just playing the game. His attendance in training had been second to none and the prisoner and his mother, Maureen Dalley, between them were involved in everything that helped make a small club function properly.
53    Mr Menzies, another of the school bus drivers, also supplied a written reference attesting to the prisoner's friendly disposition and that he had never been disruptive.
54    It is difficult to understand the prisoner's involvement in this offence against this background. An explanation suggested in the Juvenile Justice report is that about 6 months prior to the subject offence Fred Brewer returned to Kamarah having been involved in some conflict with the criminal law in Queensland. The prisoner was barely 16 at the time. The Brewer wrecking yard is said to have provided an irresistible temptation to him against a background of a small community with relatively few resources for young people. It was his parents' perception that Mr Brewer's boasts about his brushes with the criminal law were also appealing to their son. The prisoner's father did not feel comfortable with the association and warned him against maintaining the relationship, but to no avail.
55    It is to be noted that while generally the prisoner appears to have had a creditable record at school, as attested to by Mr Beard, in the course of year 10 he commenced truanting regularly. There was some indication of him coming to the school principal’s attention adversely. Again this appears to correspond with his association with Fred Brewer.
56    I also had the benefit of a report prepared by John Flockton, psychologist, dated 19 October 2000. Generally the picture which emerges from Mr Flockton's report is that the prisoner does not present with significant problems in terms of his psychological make-up. He describes the prisoner's interpersonal style as being warm, friendly and sympathetic. Notwithstanding the circumstances of the offence, such an assessment finds support in the various testimonials to which I have referred.
57    Assessment of the prisoner in terms of his level of literacy and numeracy showed that he has a basic reading age of 8 and a half years and a mathematical reasoning capacity at the equivalent of 13 and a half years. The results suggest minimal functional literacy with a higher level of numeracy in line with the prisoner's reported academic achievement and vocational expectations for semiskilled or lower level trade employment.
58    Mr Flockton notes that the prisoner appears to have made a reasonable adjustment within the Riverina Juvenile Justice Centre environment. Regular visits from his immediate family and friends have contributed in Mr Flockton's view to the generally positive outlook towards his future. It is to be noted that the prisoner is described as having achieved a satisfactory level of behaviour and he is currently housed in the privileged unit at the Riverina Centre. Prior to his admission he was held at the Kariong Juvenile Justice Centre. A case worker at Kariong reports that he presented no difficulties in terms of his behaviour and participation in programs during his period at Kariong.
59 The prisoner's youth at the date of the offence requires that I apply different principles in sentencing him to those applicable to his co-offenders. These are as set out in R v GDP (unreported) NSWCCA 22 April 1991. Generally in sentencing young persons considerations of rehabilitation are given particular emphasis and general deterrence is not accorded the same prominence as is appropriate with the sentencing of an adult. On occasions when juvenile offenders commit violent crimes this latter principle may have less room for operation; R v Pham (1991) 55 A Crim R 128 per Lee CJ at CL at 135.
60    In this case I do not find that the prisoner Dalley was in any sense a moving force behind the enterprise. I consider that he went along with the scheme because of his immaturity and it is fair to say that his participation in an offence involving violence was uncharacteristic. I consider that he has good prospects of rehabilitation and that the principles enunciated in GDP should be reflected in the sentence which I impose.
61 In the light of his youth, the fact that he will be serving a lengthy term of imprisonment for the first time and the desirability of promoting his rehabilitation, I consider that there are special circumstances within the meaning of s 44(2) of the Act. I intend to give a direction pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the prisoner serve the whole of his sentence in a detention centre. I propose sentencing him to a term of 10 years imprisonment with a non-parole period of 6 years.
62    Richard Charles McNellee I sentence you to a term of 14 years imprisonment. That sentence will be deemed to have commenced on 3 January 1999. I specify a non-parole period of 10 years and 6 months. The first day on which you will be eligible for release on parole is 2 July 2009.
63    Jeffrey Wayne Tucker I sentence you to a term of 13 years imprisonment. That sentence will be deemed to have commenced on 3 January 1999. I specify a non-parole period of 9 years. The first day on which you will be eligible for release on parole is 2 January 2008.
64 Rodney Joel Dalley I sentence you to a term of 10 years imprisonment. That sentence will be deemed to have commenced on 3 January 1999. I specify a non-parole period of 6 years. The first date on which you will be eligible for release on parole is 2 January 2005. I direct pursuant to s19 of the Children (Criminal Proceedings) Act 1987 that you serve the whole of that sentence in a detention centre.

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Last Modified: 01/29/2001