R v Nickolas Wayne Galbraith; R v Brendon David Galbraith; R v Robert James Galbraith

[2013] NSWSC 284

Supreme Court

New South Wales

Medium Neutral Citation:

R v Nickolas Wayne Galbraith; R v Brendon David Galbraith; R v Robert James Galbraith [2013] NSWSC 284

Hearing dates:

4 March 2013

Decision date:

05 April 2013

Jurisdiction:

Common Law - Criminal

Before:

Harrison J

Decision:

Nickolas Wayne Galbraith

1. For the offence of causing grievous bodily harm to Luke Blundell with intent, sentenced to a term of imprisonment of three years consisting of a non-parole period of 2 years which, having regard to the period of 9 weeks and 3 days already served, will be taken to have commenced on 29 January 2013 expiring on 28 January 2015 with a balance of term of 1 year commencing on 29 January 2015 expiring on 28 January 2016.

2. For the offence of affray, sentenced to imprisonment for 6 months commencing on 5 April 2013 expiring on 4 October 2013.

3. The first date upon which the offender will be eligible for release will be 29 January 2015.

Brendon David Galbraith

1. For the offence of recklessly inflicting grievous bodily harm, sentenced to a term of imprisonment of 1 year and 8 months which, having regard to the period of 9 weeks and 2 days already served, will be taken to have commenced on 30 January 2013 expiring on 29 September 2014. Suspend the execution of that sentence pursuant to s 12 Crimes (Sentencing Procedure) Act until 29 September 2014 and direct that the offender be released from custody on condition that he enters into a good behaviour bond for a term expiring on 29 September 2014.

2. For the offence of affray, direct that the offender enters into a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of two years to date from today.

Robert James Galbraith

1. For the offence of recklessly inflicting grievous bodily harm, sentenced to a term of imprisonment of 1 year and 8 months which, having regard to the period of 9 weeks and 2 days already served, will be taken to have commenced on 30 January 2013 expiring on 29 September 2014. Suspend the execution of that sentence pursuant to s 12 Crimes (Sentencing Procedure) Act until 29 September 2014 and direct that the offender be released from custody on condition that he enters into a good behaviour bond for a term expiring on 29 September 2014.

2. For the offence of affray, direct that the offender enters into a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of two years to date from today.

Catchwords:

CRIMINAL LAW - sentence - causing grievous bodily harm with intent, recklessly inflict grievous bodily harm and affray - prior altercation at house party attended by young people in late teens - victim later apprehended by offenders in public street - possession of weapons not proved beyond reasonable doubt - offenders with no prior criminal records - remorse as a mitigating factor s 21A(3)(i)

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Martin [1981] 2 NSWLR 640
Pearce v The Queen [1998] HCA 57 (1998) 194 CLR 610
R v Elphick [2010] NSWCCA 112

Category:

Sentence

Parties:

Regina (Crown)
Nickolas Wayne Galbraith (Offender)
Brendon David Galbraith (Offender)
Robert James Galbraith (Offender)

Representation:

Counsel:
W Creasey (Crown)
S Walsh (Nickolas Wayne Galbraith)
J Barnett (Brendon David Galbraith)
M Paish (Robert James Galbraith)
Solicitors:
Director of Public Prosecutions (Crown)
CJ Boyd Solicitors (Nickolas Wayne Galbraith)
Viney William Lawyers (Brendon David Galbraith)
Blue Water Legal (Robert James Galbraith)

File Number(s):

2010/51899 2010/52496 2010/52404

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Between 24 October 2011 and 28 November 2011 each of the offenders stood trial in Newcastle before a jury on an indictment charging a series of counts. These were that they:

1. On 27 February 2010 at Port Macquarie in the State of New South Wales did murder Mitchell Reginald Voysey.

2. On or about 27 February 2010 at Port Macquarie in the State of New South Wales did cause grievous bodily harm to Luke Blundell with intent to do grievous bodily harm.

3. On or about 27 February 2010 at Port Macquarie in the State of New South Wales did assault Zac Kenzig thereby occasioning actual bodily harm to him while in company of one another.

4. On or about 27 February 2010 at Port Macquarie in the State of New South Wales did use unlawful violence towards Luke Blundell, Mitchell Voysey and Zac Kenzig by conduct such that a person of reasonable firmness if present at the scene would have feared for their safety.

1. To all of these charges the offenders pleaded not guilty. On 28 November 2011 the jury returned verdicts in respect of all offenders of not guilty on the first and third counts in the indictment. The jury was unable to agree upon verdicts that they were directed to consider in the alternative to each of the first and third counts. The jury returned verdicts of guilty in respect of all offenders on the fourth count.

1. Between 6 November 2012 and 28 November 2012 each of the offenders again stood trial in Newcastle before a jury on an indictment, this time charging two counts that they:

1. On 27 February 2010 at Port Macquarie, in the State of New South Wales, unlawfully did kill Mitchell Reginald Voysey.

2. On or about 27 February 2010, at Port Macquarie, in the State of New South Wales, did cause grievous bodily harm to Luke Blundell, with intent to do grievous bodily harm.

1. To each of these charges the offenders pleaded not guilty. On 28 November 2012 the jury returned verdicts of not guilty in each case on the first count in the indictment. On the second count the jury found Wayne Galbraith guilty of causing grievous bodily harm to Luke Blundell with intent and Brendon Galbraith and Robert Galbraith each guilty of recklessly inflicting grievous bodily harm.

1. The offence of causing grievous bodily harm with intent is an offence contrary to the provisions of s 33(1)(b) of the Crimes Act 1900. It carries a maximum sentence of 25 years imprisonment and is subject to a standard non-parole period of 7 years. The offence of recklessly causing grievous bodily harm is an offence contrary to s 35(2) of the Crimes Act. It carries a maximum sentence of 10 years imprisonment and is subject to a standard non-parole period of 4 years. The offence of affray is an offence contrary to the provisions of s 93C(1) of the Crimes Act. It carries a maximum sentence of 10 years imprisonment. It is not subject to a standard non-parole period.

The circumstances of the offences

1. During the afternoon of 26 February 2010 a number of young people aged in their late teens began to gather at the home of Tara Mulholland. Ms Mulholland lived with her family in a house situated at the end of Locksley Place, a cul de sac in suburban Port Macquarie. It is uncontroversial that a party of some sort had been organised to take place there on the afternoon and continuing into the evening of that day. Approximately twenty or so teenagers gathered at the house and played music and drank alcohol. The group included Zac Kenzig, Luke Blundell, Kiera Costmeyer and Mitchell Voysey. A number of the people at this gathering ultimately became involved in a series of ugly incidents that included throwing punches and damaging the property of neighbours and cars parked in the street.

1. Brendon Galbraith lived in a house at the end of the same cul de sac opposite Ms Mulholland's house at the time. During the course of the evening, some of the teenagers at the party acted in an aggressive way towards him when he came out of his house expressing some concern for what was happening in the street. He asked the teenagers to clean up broken glass on the roadway that would appear to have come from damage done to a car window. His letterbox was ultimately ripped from the ground and his front door was attacked. One of the young men at the party also damaged his utility motor vehicle that was parked nearby. In due course Brendon Galbraith managed to calm the situation down and invited a number of the teenagers into his garage to play pool. However, the police attended in response to calls from other neighbours.

1. A short time later Zac Kenzig, Luke Blundell, Kiera Costmeyer and Mitchell Voysey finally left the party on foot. They ended up walking as far as Lake Road, Port Macquarie where the events that give rise to these proceedings took place.

1. Before that occurred, Wayne Galbraith arrived at Brendon Galbraith's house in his red Corolla sedan. Their younger brother Robert Galbraith and his friend Bradley Clenton accompanied him. It appears that Robert Galbraith and Bradley Clenton had been walking home after having seen a movie together at the local cinema when Wayne Galbraith called or sent a text message to Robert Galbraith to find out where he was. Wayne Galbraith was at that time at his home, having apparently himself received a call from Brendon Galbraith who asked him to come over. Wayne Galbraith drove from his home to Brendon Galbraith's home and picked up Robert Galbraith and Bradley Clenton on the way.

1. Many of the teenagers at the party gave evidence at the trials. That evidence included observations of what happened when Wayne Galbraith and the others arrived at the cul de sac in his car. It is at least clear that the occupants of the car entered Brendon Galbraith's house, or possibly his garage, and that a short time later emerged from the house with him and re-entered Wayne Galbraith's car and drove away. Some of the witnesses gave evidence that when the men emerged from Brendon Galbraith's house they were carrying what have variously been described as weapons or poles or bars. No single consistent or regularly reoccurring description has prevailed. One witness described what she saw as a crow bar. Another witness suggested one of the men was carrying what looked like a pool cue. This issue is referred to in more detail shortly.

1. Bradley Clenton gave evidence at both trials. He was originally charged with offences along with the Galbraiths, including murder. On 14 October 2011, shortly before the commencement of the first trial, the Attorney General gave him an indemnity. Mr Clenton provided an induced statement. He gave evidence that the offenders were armed with gear locks or club locks used to secure motor vehicles against theft. He drew a diagram of such an implement as part of his evidence. Bradley Clenton said that the offenders gathered these items before they left Brendon Galbraith's home in the red Corolla. He denied that he was carrying any such implement.

1. In the course of driving in Wayne Galbraith's car after leaving the cul de sac, the occupants came upon Zac Kenzig, Luke Blundell, Kiera Costmeyer and Mitchell Voysey in Lake Road. The vehicle came to a sudden stop and all four of its occupants alighted. Mr Clenton said that the Galbraiths did so armed with the items he described. Each of the offenders denied in their ERISPs having any such implement in their respective possession when they did so or that they had such items in their possession on that evening at any time at all.

1. Upon alighting from his car in Lake Road, Wayne Galbraith immediately approached Luke Blundell and struck him a single blow to the side of his head. Mr Blundell immediately fell to the ground where he lay motionless. Wayne Galbraith placed him into the recovery position in the spot where he lay on the side of the road. Mr Blundell sustained a fractured skull as a result of this assault upon him.

1. Evidence was given at the first trial that Brendon Galbraith assaulted Zac Kenzig at about the same time. That alleged incident formed the basis of the third count on the original indictment. None of the three offenders was found guilty of any offence specifically based upon such an assault having taken place and I find on the balance of probabilities that it did not occur.

1. Mitchell Voysey was nearby when Luke Blundell was struck and proceeded to run from the scene. Brendon Galbraith and Robert Galbraith immediately pursued him. Although it is not possible to say with certainty, the chase lasted only a comparatively short time and covered only a relatively short distance. At some point Brendon Galbraith gave up the chase because of his asthma. Robert Galbraith did not. The chase ended when Mitchell Voysey veered onto and across Lake Road while running from his pursuers, and into the path of an oncoming car driven by a Mr Arscott. Mrs Arscott was sitting in the front passenger seat. Mitchell Voysey collided with the front of the vehicle, causing minor damage to the bonnet and smashing the windscreen with his head. He rolled across the car and onto the roadway on the passenger side where he lay motionless. Mitchell Voysey died as a result of the injuries sustained by him in this way.

1. Neither Mr nor Mrs Arscott described having seen any of the offenders armed with weapons of any kind.

1. Robert Galbraith and Brendon Galbraith did not remain at the scene of that event or render assistance of any kind to Mitchell Voysey. Instead they turned immediately and ran back to where Wayne Galbraith's car was still located in the position where it had stopped on Lake Road. All four of its original occupants re-entered the vehicle and drove directly to Wayne Galbraith's home.

1. Wayne Galbraith later called the police from his home and advised that there had been an incident at Lake Road. The police attended his home a short time later. The offenders and Bradley Clenton were still there when the police arrived. All three offenders participated in ERISPs.

1. Wayne Galbraith was arrested and taken into custody on 27 February 2010. He remained in custody until released on conditional bail on 4 May 2010, being a total period of 9 weeks and 3 days. Brendon Galbraith and Robert Galbraith were arrested and taken into custody on 28 February 2010. They remained in custody until released on conditional bail on 4 May 2010, being a total of 9 weeks and 2 days.

1. With one exception, I am satisfied beyond reasonable doubt, and consistent with the juries' verdicts that have been returned, of these relevant circumstances relating to the offences in the ways just described. I am similarly satisfied with respect to the findings that I have made in the context of the objective gravity of the offences. These findings are dealt with later in these remarks.

Weapons or no weapons

1. The exception to which I have just referred relates to the question of whether or not the offenders were armed with weapons or implements of any kind. This issue needs to be analysed separately.

1. It is generally not possible to know or to ascertain precisely what it is a jury may have accepted. In criminal proceedings where the nature of the charge and the nature of the verdicts of the jury do not necessarily or in all respects identify for the judge or for anyone precisely what facts the jury has accepted as being proved to its satisfaction beyond reasonable doubt, I am required as the basis for sentencing to form my own view of the facts within the ambit of the verdicts and of the charges: R v Martin [1981] 2 NSWLR 640. In forming that view, I must be satisfied beyond reasonable doubt. I am not, however, restricted to a version of events that is most favourable to the offenders.

1. The question of whether or not any of the offenders were armed with anything that may generally be described as a weapon was the subject of considerable evidence during both trials and figured prominently in the respective final addresses of counsel to the juries. As I have indicated, no consistently reoccurring description emerged from the evidence in a way that pointed persuasively in only one direction.

1. Mr Mudford was a witness who lived in an apartment immediately adjacent to the events that occurred in Lake Road. He said in an apparent reference to one of the offenders, "I think this male may have been carrying something in his right hand." He said, "The item looked to be about one foot long and thin" or that "It may have been a thin bar." He described seeing something that appeared to have "caught the street lights" in the hands of one of the offenders. His evidence was not at all specific as to the possible nature of the item in question.

1. Ms Mulholland spoke of seeing the offenders emerging from Brendon Galbraith's house carrying "things". She said, "I seen two of them carrying, like, crow bar looking things, with a hook on the end." She went on to say that "I didn't know what they were, so I just seen that the things had, like a hook on the end, and then I've always known that a crow bar has kind of got a hook on the end, so that's the only way I could have described it". She later referred to one of the offenders carrying a pool cue.

1. Ms Costmeyer gave evidence that she saw what she described as "the other three men run back to the car and get in the car with their weapons." She gave no detailed description of what the weapons may have been. Ms Costmeyer was able to give the police an accurate report on the number plate of Wayne Galbraith's car. She was, however, completely confused in her recollection of what happened to Mitchell Voysey, whom she described as having been beaten by some of the offenders rather than as having been struck by Mr Arscott's car.

1. Bradley Clenton's evidence was in contrast particularly detailed. His hand drawn sketch of the implements he said the offenders were carrying is a fair representation of what might be generally understood as a locking or anti-theft device for a vehicle. He was in the presence of the offenders at all times when it is alleged these implements were acquired or carried. He rode in the car with the offenders when the items were allegedly present. He was also in the car when driving to Wayne Galbraith's house following the incident at Lake Road. He was present at Wayne Galbraith's house when the items were allegedly still there.

1. Bradley Clenton was, however, a person who might reasonably be supposed to be criminally involved in the events that gave rise to the proceedings. He had avoided prosecution for his involvement in any of the events at Lake Road in the way that I have briefly described. I gave the juries warnings and directions about how to approach Mr Clenton's evidence in those circumstances. His evidence necessarily needs to be considered by me in the same light, and having regard to the same warnings and possible doubts about his reliability and truthfulness to which I directed the juries at the trials.

1. There was also medical evidence given upon the question of whether or not the blow struck upon Luke Blundell was consistent only with a weapon having been used or whether the same injury could have been sustained from a blow from a punch with a closed fist. The evidence about this was not entirely satisfactory. There was, however, evidence from one of the doctors who were called that supported the proposition that an unarmed assailant could have caused Mr Blundell's injuries.

1. There is in addition the question of whether or not a finding that weapons were present could be regarded as consistent with the juries' verdicts in any event. The jury at the first trial acquitted the offenders of the charges of murder. The jury at the second trial acquitted the offenders of the charges of manslaughter. Ms Walsh argued on behalf of Wayne Galbraith that those results were alone or together inconsistent with any finding by me beyond reasonable doubt that the offenders had weapons. Her proposition was that on both the occasion of the first and the second trials weapons were relied upon by the Crown as the foundation of the murder charge and later the manslaughter charge. Those acquittals are therefore said to be inconsistent with any finding that weapons were present at or used in the commission of any of the offences of which the offenders have been found guilty.

1. By way of emphasis of this point, Ms Walsh reminded me that the juries' respective verdicts of not guilty of murder and not guilty of manslaughter were logically or at least arguably at odds with Mitchell Voysey having been pursued to his death by either Brendon Galbraith or Robert Galbraith armed with a weapon. Her contention was that verdicts of acquittal on those charges were inconsistent with a finding by me beyond reasonable doubt that these offenders, or any of them, could have been armed.

1. I do not consider that I have to resolve that argument. The state of the evidence is not in my opinion capable of supporting a finding on the balance of probabilities, let alone beyond reasonable doubt, that the offenders were armed. No weapons were recovered. In that respect I note that I rejected applications to lead evidence of a search that was said to have been conducted by a police scientific officer in the underfloor area of Wayne Galbraith's home some many months after 27 February 2010. That search was inspired by latter day evidence from Bradley Clenton that he and Robert Galbraith had secreted the weapons in that location in anticipation of the police coming to the house on the morning of the offences.

1. Electronically recorded interviews with the offenders were tendered in the Crown case against each offender. None of the offenders admitted, and all frankly denied, that they had anything with them in the nature of the items variously described by the witnesses who had given statements to the police about them. On one view the style and content of the protests offered by Wayne Galbraith in his ERISP when confronted with these allegations or accusations might excite some suspicion about their truth. That is however very far removed from a positive finding in accordance with any applicable standard that he or his co-offenders had armed themselves with weapons as alleged.

1. I cannot be satisfied beyond reasonable doubt, and I do not find, that any of the offenders were armed in any way at the time of the commission of the offences for which they stand to be sentenced by me.

Objective gravity of the offences

1. The tragic events of this evening require no assistance from me in order to remain forever locked in the minds and hearts of all those who were either directly or indirectly involved or affected. The most significant consequence of that night is obviously the death of Mitchell Voysey whose life was taken as the result of a collocation of circumstances that no-one foresaw and no-one intended. Although at a personal and private level, those who are suffering in the wake of that loss may take or have a desire to express a different view, no part of the sentencing exercise upon which I must embark is concerned with making reparation for that death or with allocating responsibility for it. Most importantly, I make it plain that in light of the juries' verdicts, none of the offenders has been found liable for Mitchell Voysey's death and none of the offenders is to be sentenced as if they had been. Whatever conclusion I come to concerning the objective seriousness of the offences for which the offenders are to be sentenced, it is axiomatic that that conclusion is not and should not be informed in any way by that death.

1. The Crown had submitted that the offences all involved some element of planning. That submission is based upon evidence that Brendon Galbraith requested Wayne Galbraith to come to his house with Robert Galbraith where the offenders foregathered before setting out in search of Mitchell Voysey. There is no doubt on the evidence, and I find beyond reasonable doubt, that the sequence of events was as I have described them. The issue that arises is whether when the offenders left Brendon Galbraith's house they did so in order to go looking for Mitchell Voysey, which would be consistent with some degree of planning, or whether they intended to drive directly to Wayne Galbraith's home in order that Brendon Galbraith would not be at his home following the aggressive and threatening behaviour to which he had been subjected. The presence of weapons, which I have discounted, would have been consistent with such a plan. The absence of weapons is not necessarily inconsistent with it.

1. Brendon Galbraith gave evidence at the sentencing proceedings that the plan was to go directly to his brother's house. He denied that he was intentionally seeking out people who had been at the party. He agreed in cross-examination, however, that when they came upon the group in Lake Road he said to his brother Wayne Galbraith words to the effect of "that's them" and the car stopped. He agreed that when he alighted from the car he indicated that "there was another guy across the road" who then commenced to run. That was Mitchell Voysey who was then chased.

1. The offenders have all submitted that they were driving directly to Wayne Galbraith's house with no plan or intention to seek out or to find anyone who may have been at the party that evening. It was, according to this submission, no more than a chance encounter when they came upon the group and stopped the car nearby. That submission is inconsistent with Brendon Galbraith's concession that he said "that's them", or words to that effect, when the group was spotted. It is consistent with the offenders being on the lookout for the group as they were driving. The plan may have been ill-conceived and unstructured. So much appears to emerge from Brendon Galbraith's frank and somewhat troubling concession that he still to this day does not know why he chased Mitchell Voysey when he commenced to run.

1. I find beyond reasonable doubt that the offenders planned to find the group, or more precisely any of the teenagers from the party that may have included Mitchell Voysey and to confront them in some way. I cannot be satisfied that what the offenders did when they found that group was also planned or even known in some general sense to the offenders beforehand. In other words, even though the offenders planned to find the group, the assaults and the conduct amounting to an affray was the unplanned and spontaneous result of coming across the group in the road. In the relevant sense, therefore, I am not satisfied that the offences were part of a planned or organised criminal activity or that planning amounts to an aggravating factor for sentencing purposes.

1. Some of the offences were also committed in company. Caution must be exercised, however, in purporting to allocate significance to that as an aggravating feature in the present circumstances. In the first place, the fact that the offenders were in company cannot be a separate aggravating factor in the affray offences that increases their seriousness. That follows from the terms of the relevant section as follows:

"93C Affray

(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.

(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1)."

1. Having regard to the terms of s 93C(2), the fact that the offenders were in each other's company is necessarily a feature or element that already forms part of the affray offences for which the offenders are to be sentenced. The fact that the offenders were together in a group directly contributed at least to the conduct likely to cause a person of reasonable firmness if present at the scene to have feared for his or her safety, but so much already flows from the subsection. No independent aggravating feature arises for consideration.

1. In the second place, at least with respect to the s 35(2) offences for which Brendon Galbraith and Robert Galbraith are to be sentenced, the juries' verdicts are consistent with the fact that they did not physically assault or attack Luke Blundell. There is no evidence to suggest that they did so and I am otherwise satisfied of the fact that they did not do so beyond reasonable doubt. Their criminal culpability accordingly arises from their participation in a joint criminal enterprise with at least Wayne Galbraith who caused the relevant physical harm to Luke Blundell. Any regard by me to the fact of either of them being in company as an aggravating feature of these offences would therefore constitute an impermissible double counting of that feature and I have therefore not separately considered it.

1. The offences were committed in the presence of persons under the age of 18 years. I do not, however, consider that that is an aggravating factor adding to the objective seriousness of any of the offences in this case. It is not a matter in the circumstances of these cases that I consider should be afforded any weight.

1. The Crown submitted that the affray offences were serious, involving a significant interference with public order and a high level of actual or threatened violence. That submission was advanced not in the sense that I should inappropriately take into account any super added factors that already form part of the affray offences but in aid of the submission that these affray offences were of a serious kind. To that submission must be added the countervailing consideration that the offences took place in a relatively isolated location, being a light industrial precinct with few, if any, residences nearby, and at a time of night when few, if any, members of the public were present. Video evidence of the street scene captured on CCTV footage suggests that there were no people apart from the offenders and the victims present at the time of the commission of the offences apart from the occasional passing car.

1. In considering the objective seriousness of these offences I also remind myself that the assault offence for which Wayne Galbraith stands to be sentenced is legally and factually different from the assault offence for which his brothers are to be sentenced. I also remind myself that the affray offences arise out of facts that necessarily include the facts that encapsulate the assault offences and that the offenders are not to be punished twice for what amounts at least in part to the same things. In this last respect I have had regard to the joint judgment in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623 and to the useful analysis of the issue undertaken by Grove J in R v Elphick [2010] NSWCCA 112.

1. Wayne Galbraith's offence of intentionally causing grievous bodily harm to Luke Blundell is in my opinion a very serious example of an offence of its kind. Wayne Galbraith's own description of the incident, given in the course of his electronically recorded interview with the police, bears chilling witness to that fact. Wayne Galbraith said this:

"I've just come across from the side and cracked him in the yeah, gave him a, a hit up the side of the head and he just went straight down...Yeah, just sort of hit him. I was just yeah, yelling at him while he was down, sort of scrambling around a little bit...That's when I've cracked him, he went down and I was yelling at him...That just happened there 'cause when I like, punched the fella that I, I hit and the way he's sort of gone down there..."

1. It is clear from the description that he gave that Luke Blundell's legs in effect gave way beneath him as the result of the blow to the side of his head and he slumped immediately upon the roadway. That suggests that the force of the blow was sufficient to render Luke Blundell immediately, or almost immediately, unconscious. More would that appear to be so inasmuch as the absence of a blunt object used in the assault tends to suggest that the force of the blow with no more than a hand or fist must have been considerable to cause the injuries that were inflicted. The evidence makes it clear that Luke Blundell then lay motionless following the blow to his head. The other evidence confirms that he suffered a fractured skull and that he sustained permanent deafness in one of his ears.

1. To the extent that it remains helpful or informative to do so, I find that Wayne Galbraith's assault upon Luke Blundell was above the mid range of objective seriousness for offences of this kind.

1. With respect to the s 35(2) offences committed by Brendon Galbraith and Robert Galbraith I have already observed that they did not personally or independently cause direct relevant physical harm to Luke Blundell. To that extent at least there is a very significant overlap between the conduct constituting those offences and the conduct on their part that constitutes the offences of affray. Their culpability for the s 35(2) offences consists in their participation in a joint criminal enterprise with Wayne Galbraith in the way I have earlier described.

1. The affray offences are not the most objectively serious examples of offences of this kind. Apart from the circumstantial matters to which I have already referred, the only conduct that I can find beyond reasonable doubt and consistently with the jury's verdict to have occurred, not otherwise subsumed as an element of the other offences, is some loud and aggressive yelling and the chasing of Mitchell Voysey. The timeframe over which that conduct took place was also limited. I have disregarded any conduct occurring after the point when Mitchell Voysey was struck, as the evidence suggests that the offenders were all then in varying respects retreating to the car in obvious anticipation of leaving the scene. That would not in my opinion amount to conduct qualifying as likely to cause the fear contemplated by the section.

1. I also reiterate that the death of Mitchell Voysey might reasonably be thought to have had a connection to the activities of the offenders on the evening in question. That connection is not such as to have given rise to any criminal culpability on their part. In particular, in the context of the affray offences, Mitchell Voysey's death is not a legally relevant matter for the purposes of sentencing the offenders on those counts.

1. In my view the affray offences fall below the mid level of objective seriousness for offences of that type.

Mitigating features

1. I have already determined that none of the offences was part of a planned or organised criminal activity.

1. Counsel for Brendon Galbraith submitted that his client was entitled to take the benefit of the fact that he was provoked by "the victim" as a mitigating factor. There are a number of problems with that submission in my view. First, the evidence does not reveal that Luke Blundell, who is the only relevant victim for present purposes, provoked Brendon Galbraith in any way at all. Luke Blundell gave evidence. He was cross-examined. There is no suggestion available from any part of his evidence that he was concerned directly or indirectly in any aggressive or threatening confrontation with Brendon Galbraith at his home at Locksley Place. Even though the conduct of others from the party could be characterised as amounting to some kind of provocation, no such conduct could be attributed to Luke Blundell.

1. Secondly, I have accepted the offenders' submissions that the offences were not part of a planned or organised criminal activity. That finding includes an acceptance of the fact that he at least did not seek out the victim with some criminal purpose in mind. Brendon Galbraith's approbation of that finding is in my view inconsistent with a simultaneous contention that he was provoked. The notion that he may have been provoked includes the concept that he did what he did in response to the events at his home. Brendon Galbraith has denied that.

1. Thirdly, limiting myself to the concept of provocation for the purposes of the sentencing exercise, I am even so not persuaded that the attack upon Luke Blundell was sufficiently closely connected with the allegedly provocative conduct. It was not connected closely in time. That much is apparent from the fact that the group of which Luke Blundell was a member had walked a considerable distance to the location in Lake Road before the offenders confronted them. The response by the offenders was also wholly disproportionate to the allegedly provocative conduct, which I repeat was not the conduct of the only relevant victim.

1. Counsel for the respective offenders fairly indicated that provocation in this case was a difficult concept. In my view it is completely irrelevant as a feature mitigating the seriousness of any of the offences being considered.

1. By way of contrast, none of the offenders has any record of previous convictions. That significant fact is also relevant to whether or not the offenders are persons of good character, whether they are likely to reoffend and whether they have good prospects of rehabilitation. Although it will be necessary to revisit some of these concepts in the context of my consideration of the offenders' subjective circumstances, I should indicate immediately that all of the offenders are entitled to the benefit of these matters as mitigating features. None of the offenders is likely in my view to reoffend and each offender has good prospects of rehabilitation. It follows as well that the concept of special deterrence does not figure prominently, and on one view ought not to figure at all, in the particular and unusual circumstances of these cases.

1. Each of the offenders submitted that they were entitled to the benefit of their remorse as a mitigating feature. It is clear from the terms of s 21A(3)(i) that remorse shown by an offender is available for this purpose,

"but only if...the offender has provided evidence that he...has accepted responsibility for his... actions, and...has acknowledged any injury...caused by his...actions".

1. In the events as they ultimately occurred, each offender gave evidence in the sentencing proceedings. That did not occur without some urging from me, and in at least one case some faintly persistent urging. However, adverse inferences that may be thought to arise from these erstwhile forensic prevarications cannot be visited upon these offenders with the benefit of whose decisions to give evidence I was finally provided. It is difficult in my view properly to understand and accommodate submissions about remorse without the benefit of such evidence. Expressions about such things so often to be found in psychiatric and psychological reports tendered on behalf of offenders are a poor substitute for a first hand account and may on one view not even amount to evidence of the kind contemplated by the subsection.

1. Wayne Galbraith said he was "devastated" when he was informed that Mitchell Voysey was in a coma. He said that when he learned of his death he was "traumatised". He spoke of the Voysey and Blundell families and said that he was "just sorry that it happened at all". Mr Galbraith also said he was sorry "because this was not a foreseeable outcome of stopping [his] car and having an argument, and it turned into much more than that." He said he was sorry for everyone involved in the whole situation, including himself.

1. Brendon Galbraith was asked by his counsel how he felt sitting in the witness box about all that had happened. He said he felt "terrible" and that he thought about it every day. He went on to say, "More to the point it's affected someone's life I don't even know."

1. Robert Galbraith said that when he thought about what happened that night, the whole thing scared him to death. He said he felt very sorry for everyone and wanted to say he was sorry for everything.

1. None of the offenders could be described as particularly articulate. It was obvious and understandable that their public expressions of remorse in the setting of a courtroom surrounded by the victim and the families of Mitchell Voysey and Luke Blundell could not have been particularly easy for them. In so saying I intend to express no particular sympathy for that minor predicament. I mention it to emphasise that the genuineness of expressions of remorse should not be influenced by the quality of their delivery.

1. I accept that each of the offenders is genuinely remorseful for what they have done and for the extraordinary and damaging consequences of their actions. There is no doubt that each offender is deeply concerned and worried about his own uncertain future: any expression of regret for what happened will understandably if not inevitably be somewhat self-indulgent. I do not take the view that such self-interest necessarily has a depreciating effect upon the worth of an otherwise apparently genuine statement of contrition for the wrong that has been done to others. The particular circumstances of each offender must ultimately intersect with his ability to persuade a potentially hostile audience that what he says is worthy of acceptance.

1. It is to those particular individual features and circumstances that I now turn.

Subjective circumstances

1. Wayne Galbraith was born on 2 October 1982. He is now 30 years of age and was 27 years of age in February 2010. He is the second of seven children. He is married with three children aged ten, six and five. He was formerly in full-time employment with a supermarket chain but was stood down from that job upon his release from custody in what appears to have been an atmosphere of concern that the charges he faced were inimical to the interests of his employer. His wife now works as the principal breadwinner and Mr Galbraith takes care of the children.

1. Wayne Galbraith was educated to Year 12 level. He has a history of stable employment. He has no criminal record of any kind. As a result of the adverse local publicity attending the events that generated these proceedings, Mr Galbraith's family have changed their surname for what his counsel described as "their own safety". There has been an unfortunate collateral impact upon the family that has in turn affected this offender. At least up until the commission of the offences, Wayne Galbraith and his wife also took care of his brother Robert, who lived with them as he had no alternative accommodation.

1. As a result of the economic problems that were experienced following Mr Galbraith's original incarceration, he and his wife could not afford to continue to live in and simultaneously maintain repayments on their house that had been purchased only some weeks beforehand. The family therefore had to move out and is presently living with Mrs Galbraith's parents in a four-bedroom house containing six adults and their three children. They occupy the garage. Their own house is now rented.

1. Wayne Galbraith called the police within hours of the commission of the offences. He frankly admitted striking Luke Blundell as earlier described. That admission was not qualified and his description of the assault upon Mr Blundell wholly accorded with descriptions given by others.

1. Wayne Galbraith had no known psychological history. He had no issues as a child and had never had counselling prior to these events. He reported both depression and anxiety since committing the offences but has not been treated. He takes no drugs but would appear to have developed an alcohol dependency. He drinks heavily on a daily basis, amounting to as much as two cartons of full strength beer every week.

1. A report prepared by Dr Natalie Green, who I assume to be a psychologist, following an assessment conducted on 21 February 2013, was tendered in the sentencing proceedings. I have had regard to the contents of that report.

1. Brendon Galbraith was born on 22 February 1985. He is now 28 years of age and was almost 25 years of age at the time of the offences. He is in a relationship and he and his partner have two children and are expecting a third. Each has a child from a previous relationship. The relationship remains strong although it has been placed under considerable strain in the current circumstances.

1. Since completing Year 10 Brendon Galbraith has been gainfully employed for the most part in the transport industry. Employment that he had followed at the time of the offences during the previous six years was terminated following his arrest. He is currently employed on a casual basis with a local tree removal company and receives a Centrelink benefit at a reduced rate. He is reported to be an honest and reliable worker and a valued member of the team. He has prospects of more work in the event that he is not incarcerated. Mr Galbraith has no prior record of criminal convictions.

1. Brendon Galbraith reported that he has become estranged from his brothers as a result of the events of the night in question and the subsequent legal proceedings.

1. Robert Galbraith is the youngest of the offenders. He was born on 29 September 1990. He is currently 22 years of age and was only 19 years of age at the time of these offences. He was educated to Year 10. His literacy and numeracy skills are reported to be poor. He repeated Year 6 as a result of inadequate progress. He was diagnosed with ADHD at primary school, as well as what is referred to as Oppositional Defiance Disorder. He was medicated on Ritalin for that condition until the age of 13 years. He did not have good relationships with his teachers.

1. Mr Galbraith is currently unemployed and in receipt of a Newstart allowance. He has previously worked with his father doing work experience as a metal fabricator. He has so far been unable to secure an apprenticeship. He has never been in any form of paid employment despite repeated efforts to find work in the Port Macquarie area.

1. Mr Galbraith gave evidence of current sleep difficulties and nightmares, including recurrent thoughts and memories about the death of Mitchell Voysey. He has experienced reactive depressed moods. He constantly ruminates about the events of the night in question. He formerly drank excessively but has modified his alcohol intake recently. He denied that he became aggressive when intoxicated. He has not been diagnosed with a psychiatric disorder other than ADHD and has never attended formal interventions for mental health matters.

1. A report dated 28 February 2013 prepared by Mark Howard, a psychologist, was tendered in the sentencing proceedings. I have had regard to the opinions expressed in that report.

Special circumstances

1. It was not suggested that any of the offenders can demonstrate the existence of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

General deterrence

1. I have already indicated that I see no useful role for special or specific deterrence in the formulation of sentences for these offenders. I accept however that particularly to the extent that these offences can be characterised as having been generated by a (misguided) desire to avenge a previous wrong, they should be unambiguously denounced.

Disposition

1. Each of the offenders in his own way has expressed what amounts to disbelief that he is in the position in which he now finds himself. Each is a first time offender, of good character, with no relevant health or substance abuse problems, from the same good family and with no known or demonstrated propensity for violence or antisocial behaviour of any kind. The victims of their offences were not even known to the offenders prior to the afternoon of the previous day, and then only to one of them. The events of the early morning of 27 February 2010 could hardly have been anticipated to occur as they did, or to affect so many people so painfully.

1. It seems likely that disbelief also finds itself sandwiched between a series of somewhat more fundamental emotions in the direct and indirect victims of these events. Luke Blundell was walking home minding his own business with companions in a well lit street not far from the commercial district of Port Macquarie. They were causing no harm. Whatever may have happened earlier in the evening should by then have passed into irrelevance.

1. I remain at a loss to understand the ferocity of the assault upon Luke Blundell committed by Wayne Galbraith. He had no axe to grind with Mr Blundell. As far as is known, their paths had never crossed. Mr Blundell represented no threat to Wayne Galbraith and offered no resistance to his attack. His injuries were severe and he is permanently disabled as a result.

1. I am confronted with a sentencing exercise in which competing considerations of substantial proportions are mounted on opposite sides. On the one hand, Wayne Galbraith's subjective circumstances are arguably as strong as one could be expected to encounter in the case of any offender facing a sentencing for these offences. On the other hand, the unprovoked viciousness of the attack upon Mr Blundell marks it out as a serious crime.

1. Brendon Galbraith was clearly at the epicentre of the events that appear to have inspired these offences. His role in their commission is not of the same character. His liability is derivative. He caused no injury to Luke Blundell although he remains to be sentenced for the consequences of his participation in the events that included the assault upon him. The juries' verdicts in my opinion reflect what appears to be a well-considered appreciation and understanding of that role.

1. Alike with his brother Wayne Galbraith, Brendon Galbraith has the benefit of a very strong subjective case. He is a person of otherwise good character with no criminal history, no history of violence, no problems with drug or alcohol abuse or dependence and with strong family and community ties. His chances of reoffending appear to be negligible to non-existent. His prospects for rehabilitation are correspondingly very high.

1. Robert Galbraith has clearly grown up with great respect and admiration for his elder brothers. I suspect he has long tried to emulate them in all things. The events of 27 February 2010 are probably no exception. It seems likely that he has no acceptable idea to this day why he became involved in the situation that led to his convictions apart from an unquestioning desire to follow his brothers. In my view Robert Galbraith is socially and intellectually more vulnerable than his co-offenders. That may to some extent be the result of his age but not entirely. He also seems to me to be considerably less robust than his brothers even though he may not be prepared to acknowledge it. Although his prospects of rehabilitation are also good, and the chances of reoffending equally small, I consider that Robert Galbraith would benefit from some close attention and therapeutic counselling and vocational assistance from the Probation and Parole Service if at all possible.

1. In the same way as Brendon Galbraith, Robert Galbraith's liability is also derivative. The sentence that I intend to impose upon him ought to be informed by similar considerations.

1. I have considered all possible alternatives to imprisonment. Subject to what follows, I am satisfied that no penalty other than imprisonment is appropriate.

Sentences

Nickolas Wayne Galbraith

1. For the offence of causing grievous bodily harm to Luke Blundell with intent you are convicted. I sentence you to a term of imprisonment of three years consisting of a non-parole period of 2 years which, having regard to the period of 9 weeks and 3 days already served, will be taken to have commenced on 29 January 2013 expiring on 28 January 2015 with a balance of term of 1 year commencing on 29 January 2015 expiring on 28 January 2016.

2. For the offence of affray you are convicted. I sentence you to imprisonment for 6 months commencing on 5 April 2013 expiring on 4 October 2013.

3. The first date upon which you will be eligible for release will be 29 January 2015.

Brendon David Galbraith

1. For the offence of recklessly inflicting grievous bodily harm you are convicted. I sentence you to a term of imprisonment of 1 year and 8 months which, having regard to the period of 9 weeks and 2 days already served, will be taken to have commenced on 30 January 2013 expiring on 29 September 2014. I wholly suspend the execution of that sentence pursuant to s 12 Crimes (Sentencing Procedure) Act until 29 September 2014 and direct that you be released from custody on condition that you enter into a good behaviour bond for a term expiring on 29 September 2014.

2. For the offence of affray you are convicted. I direct that you enter into a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of two years to date from today.

Robert James Galbraith

1. For the offence of recklessly inflicting grievous bodily harm you are convicted. I sentence you to a term of imprisonment of 1 year and 8 months which, having regard to the period of 9 weeks and 2 days already served, will be taken to have commenced on 30 January 2013 expiring on 29 September 2014. I wholly suspend the execution of that sentence pursuant to s 12 Crimes (Sentencing Procedure) Act until 29 September 2014 and direct that you be released from custody on condition that you enter into a good behaviour bond for a term expiring on 29 September 2014.

2. For the offence of affray you are convicted. I direct that you enter into a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of two years to date from today.

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