R v O'Keefe; R v McIvor; R v Cavanagh

[2024] NSWDC 659

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v O’Keefe; R v McIvor; R v Cavanagh [2024] NSWDC 659

Hearing dates:

9 and 11 October 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [135]-[137].

Catchwords:

CRIME – SENTENCE

1. Manslaughter by excessive self defence.

2. Assault occasioning actual bodily harm prior to death.

3. Accessory after the fact to manslaughter.

GUILTY PLEA DISCOUNTS – Where all 3 offenders originally charged with murder, then manslaughter – Only one offender guilty of manslaughter – Operation of EARLY GUILTY PLEA scheme – 25% discount allowed to each offender – Belated acceptance by Crown of principal offender’s plea of guilty.

Legislation Cited:

Crimes Act 1900, ss 349, 350, 421.

Crimes (Sentencing Procedure) Act 1999, s 21A(2)(e), Pt 3 Div 1A.

Criminal Appeal Act 1912, s 8.

Criminal Procedure Act 1986, ss 20-21.

Cases Cited:

Black v R [2022] NSWCCA 17.

Doyle v R [2022] NSWCCA 81.

Ke v R [2021] NSWCCA 177.

R v Amanda Robinson (17 December 2020, unreported, Ingram SC DCJ).

R v Doudar [2020] NSWSC 1262.

RvFaulkner [2000] NSWSC 944 at [14], [17], [21], [23]-[24].

R v French [2021] NSWSC 1531.

R v Galea, RvYeo, [2000] NSWSC 301 at [7].

Rv Johnson [2014] NSWSC 1254 at [2], [13].

R v Lavender (2005) 222 CLR 67.

RvMR (No 5) [2024] NSWSC 912.

Rv Nguyen [2002] NSWSC 536.

RvQuach [2002] NSWSC1205 at [2].

TTv R [2014] NSWCCA 206 at [10], [12], [15].

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (NSW)
Offender – Sean David O’Keefe
Offender – Barry Paul Cavanagh
Offender – Nathan Rodney McIvor

Representation:

Counsel:
Crown – Mr Tabuteau, G.
O’Keefe – Mr Brock, J.
McIvor – Mr Pullinger, D.
Cavanagh – Mr Schuadin, S.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
O’Keefe – Benjamin Leonardo Criminal Defence Lawyers.
McIvor – McGowan Lawyers.
Cavanagh – Voros Lawyers.

File Number(s):

2019/00111830; 2019/00074438; 2019/00113050.

Publication restriction:

Non-publication order – Relevant paragraphs redacted.

Judgment

1. HIS HONOUR: Sean David O’Keefe, (O’Keefe), Barry Paul Cavanagh, (Cavanagh), and Nathan Rodney McIvor, (McIvor) appear for sentence as a consequence of pleading guilty to charges in an indictment dated and presented on 12 September 2024. That indictment charged O’Keefe with the manslaughter of Jamie Phillips. Each of Cavanagh and McIvor were charged with assault occasion actual bodily harm of Jamie Phillips prior to his death and also with being an accessory after the fact to the manslaughter of Jamie Phillips.

Background to Proceedings

2. The events giving rise to the charges occurred on Thursday, 25 October 2018, almost six years ago. There has been a long and tortuous history since that time. It must be considered because it is relevant to certain events. As I said, the crimes were committed on 25 October 2018.

3. On 7 March 2019, McIvor, who was at liberty in the community, was arrested and charged with murder. On 10 April 2019, O’Keefe, who was in custody at the time, was arrested in connection with these proceedings and charged with murder. On 11 April 2019, Cavanagh, who was in custody at the time, was arrested in connection with these proceedings and also charged with murder.

4. They were committed for trial by the Local Court to the Supreme Court. On 3 July 2020, they were arraigned on indictment charging each of them with murder. They entered pleas of not guilty. The Supreme Court fixed a trial date of 11 January 2021. The trial did commence on 11 January 2021, before Davies J and a jury. On 16 February 2021, the jury returned verdicts of guilty of murder in respect of each of the three offenders. Davies J held a sentencing hearing on 22 April 2021. His Honour delivered his remarks on sentence and sentenced the offenders on 25 June 2021.

5. His Honour sentenced Cavanagh to a non-parole period of 15 years and 9 months, with a balance of a term of 5 years and 3 months, in essence, 21 years imprisonment. His Honour sentenced O’Keefe to a non-parole period of 15 years and 9 months, and a balance of 5 years and 3 months, essentially a sentence of 21 years. His Honour sentenced McIvor to a non-parole period of 15 years with a balance of a term of 5 years, essentially 20 years’ imprisonment.

6. Each of the offenders appealed to the Court of Criminal Appeal. A hearing of the appeal was held on 2 November 2022. The Court of Appeal gave judgment on 30 June 2023. The convictions for the crime of murder were quashed. The Court of Criminal Appeal, acting pursuant to s 8 of the Criminal Appeal Act 1912, remitted each of the offenders to this Court for retrial on a charge of manslaughter. It directed that the matter be listed before the Criminal List Judge on 14 July 2023 for arraignment in this Court.

7. On 14 July 2023, the Crown presented an ex officio indictment bearing date 11 July 2023. The offenders were arraigned on it, and each pleaded not guilty. The Court fixed a trial date of 9 September 2024, with an estimate of 5 weeks. At a readiness hearing on 9 August 2024, and again at a callover on 5 September 2024, this Court was told that the matter was ready to proceed to trial. On 9 September 2024, the date on which the matter was listed for trial in this court, no trial judge was actually allocated as the parties were in discussions. Those discussions proceeded for most of the week and on Thursday, 12 September 2024 an amended indictment was presented to ML Williams SC DCJ and the offenders pleaded guilty to the charges contained in that indictment. His Honour fixed the matter for a sentencing hearing on 3 October this year, which was yesterday week, and today I give my reasons and will pass sentence on each of the offenders.

Facts

8. The parties have agreed to a set of facts. The set of facts is the same in respect of each offender. I make findings accordingly.

9. The facts are these: Jamie Phillips was 46 years old at the time. He was a friend of Sharyn Gallagher. Gallagher resided in a three-bedroom house in DeFarge Way at Ambarvale. On occasions, Gallagher would supply drugs from her house. Phillips arrived at Gallagher’s residence sometime during the afternoon of Wednesday, 24 October 2018. It was still daylight. At the time, Gallagher observed that the deceased seemed highly drug-affected and was acting erratically. She described his talking to himself and seemingly to be delusional. Gallagher observed this behaviour to continue into the night. After arriving at Gallagher’s house, Phillips consumed the drug known as ice, methylamphetamine.

10. O’Keefe, Cavanagh and McIvor knew each other. On that Wednesday, 24 October 2018 they met at about 7pm at Mount Druitt Railway Station. McIvor was driving a blue Ford Fiesta in which he, O’Keefe and Cavanagh then travelled together. Sometime after midnight, Gallagher left her residence and, obtaining a lift from a friend, went to Campbelltown RSL, arriving there at 57 minutes after midnight. At 1.30am, Gallagher left the Campbelltown RSL. She had no transport to get home and made contact with Cavanagh, whom she knew, and he told her that he was in the area and would pick her up and give her a lift home. At 1.50am Cavanagh arrived in the blue Ford Fiesta, which was driven by McIvor. O’Keefe was also in the car. Gallagher got into the car and all four went to Gallagher’s house in DeFarge Way, Ambarvale.

11. Once at her house, Gallagher decided she needed cigarettes, so McIvor drove her to a 7-Eleven service station at Helens Park, where they also picked up food. McIvor and Gallagher then returned to Gallagher’s house after about 45 minutes. At some point later, during the early hours of Thursday, 25 October 2018, the deceased was inside bedroom 3 of the house. An altercation broke out between the three offenders and the deceased. The door to bedroom 3 was kept closed throughout the altercation except when one or other of the offenders came out of bedroom 3 or went into bedroom 3. What took place in bedroom 3 appears to me to be what could be shortly described as a melee. During the course of the altercation, O’Keefe stabbed the deceased, and prior to that, each of McIvor and Cavanagh assaulted the deceased. In stabbing the deceased, O’Keefe used force that involved the infliction of death and was conduct which was not a reasonable response in the circumstances as he perceived those circumstances to be, but was conduct which he believed was necessary to defend himself.

12. When Gallagher was inside the house during the altercation, she could not gain access to bedroom 3 in which the altercation occurred. The door was locked. She heard banging noises from bedroom 3, such as furniture or something being moved, such as a dresser, and a thump now and again.

13. During the altercation, when Gallagher used the bathroom, she heard from bedroom 3 one or other of the offenders say, “Shut the fuck up, bro.” And “Just be fucking quiet.” At one point, Gallagher needed to use the bathroom. Coming back out of the bathroom, which was adjacent to bedroom 3, the door to bedroom 3 was slightly open, and Gallagher caught sight of the deceased’s shoe with the shoe sole facing upwards. By these facts, the Crown acknowledges that it cannot prove to the requisite standard that when the offenders, McIvor and Cavanagh, each assaulted the deceased, either did so in company.

14. While Gallagher was still inside her room, bedroom 1, Cavanagh, McIvor and O’Keefe carried the deceased’s body out of bedroom 3 and out of Gallagher’s house to the blue Ford Fiesta where the body was placed in the car to take it away. That action is the sole fact relied upon by the Crown to establish that Cavanagh was an accessory after the fact. Once the deceased’s body was loaded into the car, O’Keefe and McIvor, who I assume was still driving, drove from Gallagher’s premises at DeFarge Way, Ambarvale. Gallagher was allowed to leave her home, at which time only Cavanagh was still there. O’Keefe and McIvor had gone when she was leaving, and Jamie Phillips, the deceased, was no longer there. Cavanagh then left Gallagher’s premises when it was daylight or coming on daylight. The Crown has tendered meteorological evidence as to the time of daybreak on that day which was shortly after 6am.

15. At about 12.34pm that day, the offenders O’Keefe and McIvor, in the blue Ford Fiesta, drove to a housing area in Benvenuta Way, Glen Alpine, where they dumped the deceased’s body. The deceased’s clothing had been removed from the deceased and placed in plastic bags. O’Keefe and McIvor then drove off from Benvenuta Way. Later that afternoon, the offender McIvor, with the help of his then girlfriend/de facto, Amanda Robinson, obtained a 44‑gallon drum and a container of petrol and drove up a fire trail off the Appin Road, Appin, to a remote bushland area where the plastic bags containing the deceased’s clothing and effects were put into the drum, set on fire with petrol and burned. The fire spread to the surrounding bushland, resulting in the Rural Fire Service being called and attending the scene.

16. Earlier in the day, at about 1.05pm, a local couple located the body of the deceased at Benvenuta Way, Glen Alpine, and notified an off-duty police officer who, having checked the deceased, contacted 000. Police then attended and conducted a forensic examination of the crime scene.

17. According to Exhibit C3, the body of the deceased was dumped at some time between 12 midday and 12.34pm in Benvenuta Way at Glen Alpine. The body was discovered at 1.05pm by the local couple who notified the off-duty police officer who then called 000. The timing of the discovery of the body can be taken from the time of the 000 call. Accordingly, it took local residents only 30 minutes to discover the body. An autopsy was conducted on 29 October 2019 by a forensic pathologist, Dr Dianne Little. That autopsy revealed this:

1. A stab wound on the left side of the chest with the entry wound in the anterior axillary line measuring 21mm in length and approximately horizontally orientated. The wound penetrated into the left pleural cavity and entered the pericardial sac that is around the heart and then into the left ventricle of the heart.

2. The total distance from the skin surface to the inner surface of the left ventricle was approximately 14cm. The direction of the wound was from left to right and slightly upwards.

3. Haemorrhage had occurred into the left chest cavity from the wound in the heart and approximately 1.3 litres of blood remained in the pleural cavity at the time of the autopsy. The autopsy report concluded that that stab wound was the direct cause of the deceased’s death.

18. Other injuries noted were these:

1. fractures of the nasal bone;

2. abrasions, bruises and a laceration to the scalp and face, occasioned by blunt force injuries to the head;

3. bruising of the neck muscles;

4. fracture of the left superior horn of the thyroid cartilage which is in the neck, occasioned by a blunt force injury to the neck; and

5. blunt force injuries to the arms and legs.

19. Blunt force injuries are generally caused by punches or kicks or collision with objects.

20. On 2 November 2018, the police executed a crime scene warrant at Gallagher’s house. During the execution of the warrant, police located blood within bedroom 3. The blood was situated in small areas of splatter on the walls and furniture, along with a larger pool area on the floor towards the north-east corner of that room. That blood was later confirmed to contain the DNA of the deceased. The other forensic examination revealed material containing Cavanagh’s DNA located in a fingernail of the deceased, and in bedroom 3 on a wardrobe, a palm print of Cavanagh was located above the blood of the deceased.

21. Material with the same DNA profile as McIvor was located on the ring site of the deceased’s fifth finger, on the deceased’s right ankle and on the deceased’s fingernail. McIvor’s fingerprint was found on the mirrored cabinet that was found in bedroom 3. O’Keefe’s DNA profile was located on the front passenger cushion of the blue Ford Fiesta as well as the rear of the back seat of the vehicle. O’Keefe’s fingerprint was located on the inside of the front entry door to the Gallagher’s house of DeFarge Way, as well as on a bottle located on the floor of bedroom 3.

22. Police located a mobile telephone handset of the deceased under the bed in bedroom 3. That handset was confirmed for the deceased’s mobile phone service. Data obtained from the phone indicated that it was no longer in use from 2.09pm on 25 October 2018, but I am concerned that the pm might be a mistake for am. The only remaining facts relate to the date on which the offenders were arrested, but I have already referred to that. I shall later describe the crimes, but it is convenient at this stage to consider the personal circumstances of each of the offenders.

Personal Circumstances

Personal Circumstances - O’Keefe

23. There is a large volume of material concerning O’Keefe. In fact, I have four complete psychiatric or psychological reports that outline his history. Indeed, I also have quotations from other psychiatric and psychological inquiries. The first reference I have is to a report of Dr Olav Nielssen, although Dr Nielssen’s surname has been misspelt. Dr Nielssen saw O’Keefe in March 2014 and generated a report. The synopsis of it is contained in the report of a psychologist, Dr Peter Ashkar, dated 17 April 2018. Dr Ashkar summarises Dr Nielssen’s report in this fashion:

“Mr O’Keefe reported that he was diagnosed with Attention Deficit/Hyperactivity Disorder and prescribed Ritalin around the age of eight or nine years. He did not have any other learning difficulties and did not repeat any years of school, but changed skills often because of conduct problems. He said he was diagnosed with bipolar disorder at the age of 22 during a period of incarceration, (based on over‑analysing, not sleeping, and anxiety rather than episodes of abnormally elevated mood), and prescribed the anti-psychotic Olanzapine (Zyprexa). He mentioned episodes of severe depression and anxiety for which he had never received treatment, and attempts at self-harm. He also reported several seizures while withdrawing from sedative medications. His medical history was significant for many injuries to the head…, a stabbing to his eye (he has an artificial lens and is blind in one eye), and hepatitis C. His substance use history was significant for alcohol poisoning at the age of 12 years, regular use of cannabis throughout his teenage years, increasing use of stimulants (ie amphetamine and/or methamphetamine) and heroin from the age of 14 years.

On mental state examination, Mr O’Keefe was increasingly restless and fidgety. Dr Nielssen formally diagnosed him with a substance use disorder and substance-induced psychotic illness (in remission). The diagnosis of traumatic brain injury was considered on the basis of his account of numerous blows to the head, (any of which Dr Nielssen reported might have caused brain damage), and his reported experience of impaired memory function. There was no obvious impairment in cognitive functioning regarding slowness of responding, comprehension, or long-term memory, (with his provision of a reasonably sequential personal history). The history of numerous assessments because of conduct problems from late childhood and the early interest in drugs suggested the presence of an impulsive and sensation-seeking temperament.”

24. Dr Ashkar examined O’Keefe on 12 February 2018, that is before the crimes now in question. He was seeing him at the request of the Compulsory Drug Treatment Correctional Centre at Parklea. From the paperwork that was sent to him, Dr Ashkar said this:

“Mr O’Keefe has been the subject of several violent assaults, leading to possible brain injury. He was kicked in the head when he was 22, resulting in a loss of consciousness, (duration unknown), and overnight hospitalisation. He received a blow to the head from a tyre lever when he was 28, (with no loss of consciousness or hospitalisation). He was kicked in the head when he was 28, resulting in a loss of consciousness, (duration unknown), broken jaw, and hospitalisation for one day.

He was kicked in the head again at the age of 34, resulting in a loss of consciousness (duration unknown) and hospitalisation for one day. He reported other potential insults to the brain from vehicle accidents, sporting injuries, falls, alcohol and drug use, (including overdoses), seizures, and suicide attempts. He mentioned associated difficulties with attention and concentration, slowed information processing, short-term memory, organisation, communication, anger/frustration, impulsivity, headaches, dizziness and fatigue.”

25. Later in the report, Dr Ashkar provided a short offending history and experience with the Compulsory Drug Treatment Correctional Centre. It is this:

“Mr O’Keefe’s offending history dates back to the age of 13 years or thereabouts, (he was not certain, and I did not have access to an official criminal history). He told me that most, (if not all) of his offending behaviour has been drug-related property crime, (eg, break, enter and steal, robbery, et cetera) committed to support his substance use or committed during periods of intoxication. His first experience of incarceration was the age of 19, and he has spent most of his adult life within the correctional system.”

26. The substance use history taken by Dr Ashkar quotes largely what he was told by the offender. It is this:

“He told me he started using alcohol in late childhood, cannabis at the age of 12, and other drugs (including cocaine, amphetamine, methamphetamine and heroin), at the age of 14 or 15 years (he told me when he was in year 9 at school):

‘Because they were there...No reason...I remember trying it...I liked it and I kept on doing it’.

He reported heavy use of these drugs from the age of 17 years and told me heroin was his drug of choice:

‘I know they’ve caused me a lot of damage...It’s fucked me up...It’s ruined my life...I’ve missed out on so much...I still love heroin...It’s a love-hate...I used to like ice as well...I like ice for the first fucking hour...After that, it’s putrid...But heroin, I just like it... it’s euphoric...It’s like bam...it clears my mind, stress....I feel just relaxed man.’”

27. Dr Ashkar’s report is ten pages in length. It ends with this summary:

“Mr O’Keefe is a 36-year-old man with a long history of multiple head injuries and other possible insults to the brain (including heavy substance use from late childhood/early adolescence and heroin overdose) on a background of long-standing behavioural dysregulation (diagnosed in childhood as attention deficit/hyperactivity disorder and in adulthood as bipolar disorder). He has an associated history of drug‑related offending behaviour (mostly non-violent and reactive) and he was seen for neuropsychological assessment to assist with his rehabilitation and treatment planning.

Mr O’Keefe’s pronounced behavioural dysregulation is the main finding to emerge from this assessment and it is his primary treatment need. This has been a life-long difficulty for him and predates his history of head injury. His history suggests that his behavioural dysregulation is underpinned by psychiatric factors (i.e. an underlying attention deficit/hyperactivity disorder) and exacerbated by episodes of multiple head injury and chronic substance abuse. He is functioning as an adult with attention deficit/hyperactivity disorder and he requires treatment for this condition in the first instance (pharmacologically with stimulant medication and psychologically with cognitive behavioural therapy for stress management). Psychiatric referral is recommended for an appropriate assessment of his medication needs.

Cognitively, Mr O’Keefe has impaired memory and impaired higher level/executive attention skills. He has difficulty learning and retaining auditory/verbal and visual material, and his learning difficulties increase with the complexity of the material. His learning does not improve (or improves minimally) with repeated exposure to material, which suggests neurological damage to the temporal lobes and underlying hippocampal structures of the brain. This neurological damage and impairment in his memory is likely explained by his long history of substance abuse (including drug overdose and possible hypoxia), and episodes of head injury. These impairments in his cognition will need to be supported in his treatment program through the use of external memory aids…and the simplified delivery of information…or with other aspects of his intellectual and cognitive functioning involving simple attention and concentration, information processing speed, verbal intellectual skills, nonverbal intellectual skills and a higher level abstract reasoning and concept formation skills are intact.

Mr O’Keefe also demonstrates vulnerabilities in his personality structure...which contribute to his behavioural dysregulation and emotional/psychiatric difficulties, (including thought dysfunction). Treatment that helps him to understand and manage these aspects of his personality function will help to support his emotional/psychiatric functioning and rehabilitation in the long term.”

28. The next report before me is one from Professor Ian Coyle, a psychologist. He examined O’Keefe on 16 May 2020. That examination was at the request of a solicitor who is acting for him in connection with proposed or actual civil proceedings. I leave that report to one side, not because it is not helpful, but because it might be thought to be partisan in the circumstances.

29. [REDACTED].

30. [REDACTED].

31. [REDACTED].

32. [REDACTED].

33. One of the documents in Exhibit K1 is a letter from the offender’s mother bearing date 17 November 2023. It describes his early childhood and his growing up with other family members.

34. [REDACTED].

35. That letter goes on to indicate that the offender will need some transitional care before he can return to the family home. There are also in the same exhibit a number of letters from Cana Communities Incorporated, a not‑for‑profit charity which cares for men who have been discharged from imprisonment, and they provide a service which allows such men to transition back into the community whilst they reside at premises provided by Cana Communities.

36. They have been involved with the offender since about 2016. It is clear that that body is prepared to offer the offender care once he has been released from custody at one of its transitional centres, and one of those is, in fact, a farm. It would appear that they are prepared to take the offender into their community to help him transition from incarceration to life in the normal world.

37. The effect of the offender’s addictions and of his mental illness must have had some part to play in the melee which occurred at Gallagher’s house on 25 October 2018. It is, in my view, a mitigating factor.

Personal Circumstances - Cavanagh

38. I now turn to the personal circumstances of Mr Cavanagh. The most succinct statement of Mr Cavanagh’s life is contained in his letter to me, which is Exhibit C2. I shall quote it a little later. First, I turn to a report of a forensic psychologist, Ms Anne Lucas, who examined Cavanagh on 2 March 2021, and prepared a report dated 18 April 2021. The first part of her report is crucial to understanding Cavanagh’s position. It is this:

“Mr Cavanagh advised he was born in the western suburbs of Sydney. He reported that his father had been of Maori descent. His parents separated when he was seven years old, however his father was not said to have been a presence in the family prior to that for several years, with Mr Cavanagh advising that his father had been incarcerated, for unknown offences, from the time Mr Cavanagh was about five years old. On his release from prison, his father was apparently returned to New Zealand and had no more interaction with the family.

Prior to his father’s incarceration, Mr Cavanagh revealed his father as having been violent towards Mr Cavanagh’s mother. Mr Cavanagh could not recall his father having abused Mr Cavanagh or Mr Cavanagh’s sister. After his parents’ separation, Mr Cavanagh described his mother having been engaged in several relationships. According to Mr Cavanagh, some of his mother’s partners had ‘bashed’ him. He described experiencing beatings, being whipped and hit with objects as a child under 10 years. Mr Cavanagh claimed that he had begun to run away from home from around the age of 10 years to avoid the family violence. He reported that typically he had been returned home when he was found and then subject to further beatings.

He recalled his mother as having been frequently absent from the home and that he and his sister, who is one year younger, required to take care of themselves. He recalled his mother had smoked cannabis regularly and suggested that she may have used amphetamines with, at least, one of her partners. He did not remember his mother drinking alcohol excessively. He did not remember his mother as having been an abusive parent, rather it appeared from his description that she had been a disengaged and disinterested parent, whom he felt had not been protective of [him] or his sister.

According to Mr Cavanagh, he was made a ‘state ward’ at the age of 12 years. He described having absconded from different placements, living on the streets and coming to the attention of child protection authorities on multiple occasions. For some time, he said he had lived at St Andrew’s Boys’ Home in Leppington, following a Care and Control Order being issued.

Mr Cavanagh reported that he spent his adolescence (13-17 years of age) either living in the streets or in juvenile detention/boys homes. He advised he was unable to estimate how many periods of time he was detained as a juvenile. He advised that as he aged, his periods of detention continued, although in adult correctional facilities, with him living on the streets during time in the community. He described a lifestyle which was heavily influenced by drug taking and by committing crimes to obtain illicit drugs. It was Mr Cavanagh’s opinion that, for the entirety of his adolescence and adult life, he had lacked support and stability. He reported that he had few, if any, friends he could count on, noting that his associates had tended to be heavily drug-involved. According to Mr Cavanagh, he has never been in a permanent relationship and has no children.”

39. [REDACTED].

40. [REDACTED].

41. Ms Lucas recommended a residential drug rehabilitation program to assist the offender overcoming his drug addiction. Whether the long period that he has been in jail has enabled that to occur, I do not currently know, but it is clear that Mr Cavanagh’s problems stem from poor parenting and neglect during his formative years, for which he cannot be held to be responsible.

42. I now turn to his letter to me, which is Exhibit C2, and which shows his insight into his problems:

“I appear for sentence as a 42-year-old man. I have spent most of my life in jail as a kid and as an adult. I’m not proud of it. I’ve spent the amount of time in jail that I have because I did the crimes. I’ve hurt people. I’m not proud of my history, but I can’t hide from it. I have been in jail this time since April 2019. I have found that this stretch the most difficult time. That’s been because of COVID and I’m getting old. With COVID, when I was going around, I would spend weeks in my cell because of constant lockdowns. I have no kids and I can’t remember the last time I had a girlfriend. I have no one to blame but myself. I have lots of charges in custody because of bad behaviour. In the last 18 months or so, my behaviour in custody has improved. I put this down to going on to methadone at 16/80 mils. I came into jail on to Suboxone. They switched me over after a year. All my charges are related to my drug habit and I’ve had that for years and years. Over the last year or so I get out of my [cell] for an hour every three days, if that. It’s because where I am, I’m on non-association now and that’s to make sure that if I can’t get into contact with anyone I can’t get any charges. I’ve been on NA [non-association] for over 15 months or so.

When I get out I want to go to my sister’s house at Mount Druitt. She says she’ll have me at her place. My niece lives there. Once I’m able, I’d like to go to Queensland to live with my mum. I want to keep taking my methadone and stay out of trouble.

I know that’s going to be hard because I’ve got such a bad record.

To the family of the victim, I am heartbroken for them. They’ve lost their son and brother. I express my condolences to them, but don’t expect them to accept it, and I understand that they won’t. I didn’t stab the man, but I pleaded guilty to what I have done, and I deeply regret it.”

43. Mr Cavanagh’s criminality is also attenuated by his unfortunate personal circumstances which led to addiction, and addiction led to crime. I should add this, I have consulted the records in Exhibit CA provided by the Department of Community Corrections. They show that the offender was admitted into custody on 6 April 2001, when he was 18 years old, soon to turn 19 years old. He was discharged on parole on 27 June 2006, over five years later. But parole was revoked and he returned to custody on 4 September 2006. Again he was then 24 years old. He was given parole again on 11 September 2018 at the age of 36, but was taken back into custody on 21 December 2018 when he was still 36. It was in that short period between 11 September 2018 and 21 December 2018 that he was at Gallagher’s house and was involved in the melee in bedroom 3. He remains in custody to this time.

Personal Circumstances - McIvor

44. I turn now to consider the personal circumstances of Mr McIvor. I have been provided with a report of Associate Professor Michael Robertson, a consultant psychiatrist. The Associate Professor examined McIvor on 7 October 2020. That examination was conducted whilst Mr McIvor was awaiting trial in the Supreme Court. Mr McIvor provided an affidavit sworn on 30 September 2024, which is Exhibit M1. He was not required for cross-examination. He was born in Camden in March 1982. The Associate Professor’s report tells me this:

“Mr McIvor reported that his mother grew up in the Philippines and had an extremely poor upbringing, although he believed that she did not have a traumatic or abusive childhood. His parents met when his father was on holiday, in the Philippines. Mr McIvor was one of three children. His father was self-employed as a backhoe operator and worked for many years as a subcontractor. His mother was a homemaker.

Mr McIvor described a ‘good family life’. He had ‘no complaints’ and cited his siblings’ normal life trajectories as evidence of good family life. There was no reported domestic violence, parental substance misuse, mental illness or marital disharmony. Mr McIvor attended St Thomas More Primary School, during which he demonstrated capabilities playing rugby league and gained entry into St Gregory’s, Campbelltown, a well-known ‘rugby league nursery’. Mr McIvor was to play club rugby league and school rugby league with several boys who would go on to success in the ARL competition.”

45. [REDACTED].

46. [REDACTED].

47. [REDACTED].

48. [REDACTED].

49. Exhibit M2 is a report of a psychologist, Dr Kala Ram, dated 16 April 2021. That report gives a history of the offender commencing an apprenticeship. It is this:

“At age 17 years, Mr McIvor reported that he commenced an apprenticeship in painting, however, was involved in a serious motor vehicle accident. He explained that where he lived, his house backed up onto a highway and advised that his boss would pick him up on the highway to take him to work. Mr McIvor indicated that it was early morning when he crossed the highway and subsequently, was hit by a car. He indicated that he sustained significant injuries to his knee cap and both his legs were broken. He indicated that he was bedridden for approximately three months in hospital and spent another eight - nine years recovering from his injuries. He advised that his knee was held by wires and screws, requiring several operations to remove them over time. Mr McIvor confirmed that he continues to suffer from chronic pain, especially during winter season.

From 2005 to 2006, Mr McIvor reported that he worked in a factory as a forklift driver for New Wave Logistics. From 2006 - 2015, he advised that he was in gaol. Following his release from custody in February 2015 Mr McIvor reported that he worked as a labourer in a factory, unloading containers three days a week for a few months.

Mr McIvor reported that he saw a counsellor in the community through a job network agency...from February - September 2018. Phone consultation with [the business manager of that agency] and case documents…confirm same. At the time of Mr McIvor’s index offence, he confirmed that he was not employed.”

The index offence was, of course, his arrest following the crimes now in question on 7 March 2019.

50. [REDACTED].

51. The following paragraphs list in tabular form the courses that Mr McIvor has conducted. He tells me in paragraph 17 of his affidavit that he has received no misconduct offences or notations since he had been incarcerated at the Macquarie Correctional Centre. He then refers to the COVID restrictions, which are referred to both in the personal material from Mr O’Keefe and Mr Cavanagh, and then tells me finally of his future plans which are positive. It is unfortunate that Mr McIvor got himself involved in the visit to Gallagher’s home on 25 October 2018. His attitude is positive, his plans are positive, and the prospects of rehabilitation are good, and as will become clear, he has probably spent far too much time in custody since his arrest.

52. An affidavit has also been sworn by the offender’s father. It is Exhibit M4. His father continues to support him, and it is clear that the offender has the support of all his family and the cooperation of his sister, with whom he proposes to live after he is discharged from custody.

Victim Impact Statements

53. I wish now to turn to the Victim Impact Statements. There are before me 6 Victim Impact Statements. Three of them were read in open court on 3 October, that is yesterday week. The ones read in open court were the one made by the deceased’s mother and one made by each of the deceased’s two sisters. There are, in addition, a statement made by the offender’s former partner and a statement made by each of the daughters of the deceased and his former partner. It is clear that the death of Jamie Phillips has had a profound effect on each of these ladies.

54. Unfortunately, there is some bitterness in what they have said. However, it is clear that they each, in particular his mother, sisters, and daughters, had a love for the deceased, that they cherished and revelled in his company, and that their loss has been profound. It is clear, also, that they probably do not accept that those who were present at the Gallagher’s house on the morning in question are sorry for what they did, that they have remorse, but I am satisfied on what I have read and heard that the offenders are remorseful and realise that the death of any member of our society has consequences that are grave for many, many people.

55. As Davies J said when the Victim Impact Statements were read in the Supreme Court:

“It is clear from hearing and reading the Victim Impact Statements that Jamie was greatly loved by his family, and his death has had a considerable and lasting impact on them.”

As did his Honour, I express the sympathy of this Court for the loss that the members of Jamie’s family have experienced.

Discount on Sentence for Guilty Pleas

56. The next issue to which I turn is the question of the discount that the offenders are entitled to receive because of their pleas of guilty. This is a very technical issue and a complicated one involving statutory interpretation.

57. This issue is governed by the Crimes (Sentencing Procedure) Act 1999, Part 3 Division 1A which provides:

“25A Application of Division

(1) This Division applies to a sentence for an offence that is dealt with on indictment, other than—

(a) an offence under a law of the Commonwealth, unless the regulations otherwise provide in the case of a particular offence or class of offences, or

(b) an offence committed by a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence.

(2) A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.

25B Definitions

In this Division—

negotiations document means—

(a) if an offender was represented by an Australian legal practitioner in proceedings—

(i) a case conference certificate (including any later plea offer) filed in committal proceedings for the offence concerned under the Criminal Procedure Act 1986, or

(ii) any other document that records an offer made by the offender to plead guilty to an offence specified in the document, served on the prosecutor in proceedings for the offence—

(A) following committal for trial or sentence, or

(B) after an indictment containing a new count offence is filed, or

(b) if an offender was not represented in proceedings, any document served on the prosecutor in the proceedings that records an offer made by the offender to plead guilty to an offence specified in the document.

new count offence means—

(a) an offence the subject of an ex officio indictment, or

(b) an offence for which the count is inserted in an indictment by amending the indictment (the original indictment).

sentence means a term of imprisonment, fine or the term of an intensive correction order, a community correction order or a conditional release order.

25C Timing of pleas and notice requirements

(1) In this Division—

first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated.

(2) For the purposes of this Division, an offender complies with the pre-trial notice requirements if the offender serves a notice on the prosecutor at least 14 days before the first day of the trial of the offender accepting an offer by the prosecutor to plead guilty to the offence or offering to plead guilty to the offence.

25D Sentencing discounts for guilty plea for offences dealt with on indictment

(1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(3) Discount variations—new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(a1) a reduction of 25% in any sentence that would otherwise have been imposed, if—

(i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and

(ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.

(4) However, the discount in subsection (3) (a) does not apply if—

(a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or

(b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.

(5) Discount variations—person found fit to be tried after committal for trial The discount for a guilty plea by an offender who is found fit to be tried after the offender is committed for trial, and whose matter was not remitted to a Magistrate for continued committal proceedings, is as follows—

(a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offender pleaded guilty as soon as practicable after the offender was found fit to be tried,

(b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) does not apply and the offender—

(i) pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii) complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

(6) Opportunities for legal help to be taken into account For the purpose of determining under subsection (3) or (5) whether the offender pleaded guilty as soon as practicable after an ex officio indictment was filed or the original indictment was amended or after a finding of fitness to be tried, the court is to take into account whether the offender had a reasonable opportunity to obtain legal advice and give instructions to his or her legal representative (if any).”

58. Section 25E is not relevant. s25F contains a number of different provisions. The following subsections may be relevant:

“(5) Offender to establish grounds for discount The burden of establishing that grounds exist for the sentencing discount lies on the offender and must be proved on the balance of probabilities.

…..

(7) Discount information to be given to offender by court The court must indicate the following to the offender when passing sentence for an offence and must record the matters indicated—

(a)  if the sentencing discount is applied, how the sentence imposed was calculated,

(b)  if the court determines in accordance with this section not to apply or to reduce the discount, the reasons for the determination.”

59. As far as Mr Cavanagh and Mr McIvor are concerned, the Crown submitted that ss 25D(3)(c) and 25D(4) applied and that the discount to be applied was 5%. Their Counsel submitted that s25D(3)(a) applied and that they were entitled to a discount of 25% in respect of each offence that they committed.

60. Each of the three offenders was committed for trial in the Supreme Court on a charge of murder. They were each arraigned in the Supreme Court on 3 July 2023 and charged with murder. The quashing of the convictions of murder discharged the original indictment. They were initially arraigned in this Court on 14 July 2023, and each was charged with manslaughter. That Indictment must be categorised as an ex officio Indictment, as there was no committal procedure prior to its being found. An amended indictment was presented on 12 September 2024 and each offender pleaded guilty to each of the charges relevant to him.

61. The Criminal Procedure Act 1986 provides this:

“20   Amendment of indictment

(1)  An indictment may not be amended after it is presented, except by the prosecutor—

(a)  with the leave of the court, or

(b)  with the consent of the accused.

(2)  This section does not affect the powers of the court under section 21.

(3)  For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)  If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

(2)  If of the opinion—

(a)  that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b)  that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

(3)  If of the opinion that the postponement of an accused person’s trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.

(4)  An order under this section may be made either before trial or at any stage during the trial.

(5)  The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial—

(a)  if the order is made during the trial, the court may order that the jury be discharged from giving a verdict—

(i)  on the count or counts in respect of which the trial is postponed, or

(ii)  on the indictment,

as the case may be,

(b)  the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,

(c)  subject to the Bail Act 2013, the court may commit the accused person to a correctional centre.

(6)  Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.”

62. The amended indictment presented on 12 September 2024 was clearly done with the consent of each of the offenders. As far as Cavanagh and McIvor are concerned, the amended Indictment dropped the charge of manslaughter and, in respect of each of them, charged each with assault occasioning actual bodily harm of the deceased, and a charge of being an accessory after the fact to the manslaughter of Jamie Phillips.

63. Prima facie, these were “new count offences” whether the Indictment presented on 12 September 2024 were either an “amended Indictment”, as I have described it, or a new ex officio Indictment. Under s25D(3)(a), that entitles them to a 25% discount, unless subsection (4) applies. The Crown relies on par (a) of subs(4). The application of s25D(4)(a) turns on whether the “facts” are evidence that establish the elements of the “new counts” are “substantially the same as those contained in the brief of evidence or other material served on the offenders by the prosecution” at the time of the presentation of the ex officio Indictment (14 July 2023). That must be so as there were no “committal proceedings” (other than when murder was alleged) and Counsel have proceeded on this basis.

64. Mr Schuadin (for Cavanagh) referred me to R v Doudar [2020] NSWSC 1262 (Hulme J), and R v French [2021] NSWSC 1531 (Dhanji J). I have also had regard to Ke v R [2021] NSWCCA 177, Black v R [2022] NSWCCA 17, and Doyle v R [2022] NSWCCA 81. Mr Schuadin also tendered the Crown Case Summary dated 11 July 2023 and the Crown Case Summary Updated of 3 September 2023 (Exhibits C3 and C4). The first 5 paragraphs of Exhibit C3 are:

“1. The Crown alleges that the accused are criminally responsible for manslaughter on the basis that they participated in a joint criminal enterprise to assault the deceased, agreeing or contemplating the possibility that one of them would stab the deceased with a knife.

2. In the early hours of 25 October 2018. At the residential premises of Sharyn Gallagher at 3 Defarge Way, Ambarvle, New South Wales (Gallagher’s Residence), Cavanagh, McIvor, O’Keefe and Jamie Phillips (the Deceased) went into a bedroom. Cavanagh, McIvor and O’Keefe engaged in a sustained physical assault upon the Deceased resulting in injuries including:

i) Nasal bone fractures;

ii) Abrasions bruises and a laceration to the scalp and face occasioned by blunt for injuries to the head and neck;

iii) Bruising of the neck muscles;

iv) Fracture of the “left superior horn of the thyroid cartilage” (neck/larynx);

v) Blunt force injuries to the arms and legs;

vi) A stab wound to the heart.

3. The Deceased died from the stab wound.

4. The knife wound was the act that caused the death.

5. The body of the Deceased [46 years old], was found naked, dumped in Rosemeadow on 25 October 2018 at approximately 1.00pm.”

65. I should state that there is evidence that the deceased’s body was wrapped in plastic at the time it was found: R v Amanda Robinson (17 December 2020, unreported, Ingram SC DCJ):

“This offender also reported that ….McIvor told this offender things concerning the body of the deceased including “they wrapped [the deceased] up in plastic.””

……

“The body was then disposed of by McIvor and O’Keefe, who left it wrapped in plastic in a street.”

66. Robinson was a partner of McIvor at the time of the death of the victim. The Crown case against Cavanagh was summed up in this fashion in Exhibit C3:

“21. The case against Cavanagh relies upon evidence to establish the following:

(a) The Common Facts (ie the Facts alleged in paragraphs [6] – [20] herein are common to each accused);

(b) That Cavanagh was known to Gallagher [phone records]

(c) That Cavanagh, O’Keefe, McIvor were together on the night of the incident [CCTV footage];

(d) That a handprint links Cavanagh to the crime scene;

(d) That DNA evidence links Cavanagh to the Deceased;

(f) That Cavanagh made admissions to a witness.”

67. The Crown case against McIvor was summed up in this fashion in that exhibit:

“26. The case against McIvor relies upon evidence to establish the following:

(a) The Common Facts;

(b) That he was with O’Keefe and Cavanagh on the evening before the incident [CCTV footage];

(c) That McIvor sustained injury [statement from treating Doctor];

(d) That he was involved in dumping the body [CCTV footage of vehicle]

(e) That McIvor’s blood was located in the bedroom where the Deceased was stabbed;

(f) That McIvor’s DNA was on the Deceased’s body;

(g) That McIvor made admissions to another witness [name withheld].;

(h) That telephone intercepts implicate McIvor.”

68. Exhibit C4 commences with this:

“2. Each accused is charged with manslaughter over the death of Jamie Phillips (the deceased).

3. Manslaughter is committed where the accused causes the death of a person by an act which is both unlawful and dangerous.

4. A dangerous act is where a reasonable person would have appreciated that the act was one which, in the circumstances, exposed another to the risk of serious injury.

Criminal responsibility of accused

5. The Crown alleges that the accused were parties to an agreement to assault the deceased, and each contemplated the possibility of infliction of harm on the deceased, by which he would be exposed to an appreciable risk of sustaining serious bodily injury.

6. That is in fact what occurred in the assault, when one of them stabbed the deceased with a knife, and which resulted in his death being caused.

7. A Joint Criminal Enterprise and Extended Joint Criminal Enterprise is [sic] alleged.”

69. The facts set out in this Crown Case Statement are greater than those in Exhibit C3, but remain centred on implicating each of the offenders in a joint criminal enterprise that caused the unlawful killing of the victim. Accepting that Exhibits C3 and C4 accurately reflect the contents of the brief of evidence initially served on each of these two offenders. I am not satisfied that the facts or evidence contained in the original Crown brief establish the elements of the new count offences.

70. Mr Schuadin succinctly summarised Cavanagh’s position on this issue in his written submissions, MFI C2, thus:

“25. In this case the offender was charged with and went through a committal for murder. The Crown case as disclosed within the trial judge’s remarks on sentence … at paragraphs 15, 17, 19, 20 and 27 reveal the offender was pursued on the basis he was a party to a joint criminal enterprise. When rearraigned on the substituted charge of ‘manslaughter’, once again the Crown were pursuing a case based on ‘joint criminal enterprise’.

26. The plea indictment and the agreed facts, at paragraph 14, show the case against the offender shifted in a material way. It could not reasonably be anticipated accessory after the fact to manslaughter or AOABH would have been accepted in full satisfaction for a murder charge during committal. Murder carries with it an intention to inflict grievous bodily harm or death. Manslaughter by unlawful and dangerous act does not.

27. Given the circumstances of this matter the offender submits he is entitled to a discount of 25% for the utilitarian value of the plea. A six-week trial was averted.”

71. Counsel’s “six-week trial” is hyperbole: the estimate fixed on 14 July 2023 was 5 weeks, but estimates are often exceeded.

72. Accordingly, I allow a discount of 25% for the utilitarian value of the pleas of guilty to the two new count offences to each of Cavanagh and McIvor.

73. I turn now to O’Keefe’s case on this issue. O’Keefe gave evidence on oath at his trial in the Supreme Court and also evidence on oath at the sentencing hearing before Davies J. Part of his evidence in chief and in cross examination at the sentencing hearing is contained in Exhibit K1 between pages 164 and 169 (red numbers). His cross-examination commences thus at page 167:

“Q   Mr O’Keefe, do you accept the verdict of the jury that you committed murder?

A   Look I didn’t, no. It was self defence. It was an accident. I didn’t mean to kill him but I’ve been found guilty so it doesn’t [matter] what I say now anyway. I understand what’s going to happen from it now.

Q   Do you maintain that, as you say, stabbing Mr Phillips was in self defence, is that what you maintain?

A   Yes, when I stabbed him was on my back, on the ground yeah.”

74. Davies J, in his remarks on sentence, [2021] NSWSC 746 made these observations on this issue:

“69. Mr O’Keefe gave evidence both at trial and at the sentencing hearing. The impact of this evidence at the trial was that he was the person responsible for stabbing Mr Phillips but he did so in self defence. By its verdict, the jury must have rejected Mr O’Keefe’s account.

70. At the sentencing hearing Mr O’Keefe continued to maintain that he stabbed Mr Phillips in self defence, but he accepted that, because he had been found guilty, it now did not matter what he said about the circumstances of the killing.”

75. In short, O’Keefe disclosed his view of what occurred in sworn evidence. If that evidence had been accepted, then an issue would have arisen under the Crimes Act 1900 s421 as to whether his conduct was a reasonable response in the circumstances as he perceived them. If the conduct were not objectively reasonable, he would be not guilty of murder, but guilty of manslaughter.

76. The Court of Criminal Appeal was composed of Rothman and Fagan JJ and R.A. Hulme AJ. R.A. Hulme AJ said this:

“408 …… I should first explain why manslaughter in an extended joint criminal enterprise still remains a viable basis upon which each of the applicants could have been convicted.

409 The evidence was capable of establishing each of the applicants were parties to an agreement to assault the deceased and that they each contemplated the possible impact of harm by which the deceased would be exposed to an appreciable risk of sustaining serious bodily injury. That is in fact what occurred and resulted in death being caused.”

77. His Honour then went on to discuss the factual matters that led him to that conclusion.

78. The quotation which I just made oversimplifies the result of the successful appeal to that Court, as each of the three Judges gave different remarks on the various grounds of appeal and there was not unanimous agreement on all grounds. I quoted what I said to explain why the Court of Criminal Appeal on 30 June 2023 remitted the offenders to this Court for retrial on a charge of manslaughter. The Court of Criminal Appeal listed the matter on 14 July 2023 before the Criminal List Judge, when the Indictment dated 11 July 2023, containing one count of manslaughter was presented and upon which the offenders were arraigned and pleaded not guilty. The only count on that indictment was this:

“on or about 25 October 2018, at Ambervale…did unlawfully kill Jamie Phillips.”

79. That is a generic pleading for all types of manslaughter.

80. MFI K4 is a series of emails between the ODPP and O’Keefe’s solicitors following upon the delivery of the Court of Criminal Appeal’s decision on 3 July 2023 at 4:35pm, Ms Despina Panagiotopoulos of the ODPP sent to each of the offender’s solicitors an email the substance of which is this:

“I refer to the above matters, which are listed for Arraignment in the District Court on 14 July 2023.

I have been allocated as the ODPP solicitor with carriage of the re-trials on the charge of manslaughter.

Could you please kindly confirm:

1. whether you and/or your respective Counsel will represent you client in the re-trial?

2. the unavailable dates for re-trial of you and/or your respective Counsel.

I am in the process of ascertaining unavailable dates of the Crown witnesses from the trial in 2021 and will convey these once obtained.

A new Indictment and Crown Case Statement will be prepared and served as soon as practicable.”

81. A reply was sent on behalf of O’Keefe on the same day at 5:27pm, the substance of which is this:

“I have sought a grant of aid and am awaiting the outcome of that application.

If I am granted legal aid, I will be appearing at the trial. I intend on appearing on 14 July 2023 to take a date.

With respect to available dates:

My only unavailable dates are from 8 April to 3 May 2024.

There are two enquiries that I have with respect to potentially resolving this matter:

1. If Mr O’Keefe were to plead guilty to manslaughter, would the Crown agree to that plea being on the basis of excessive self-defence?

2. If the matter was resolved, what would be the Crown’s position with respect to the discount for that plea in light of the circumstances.?

Thank you[.]”

82. That email drew this reply on the same evening at 5:36pm:

“Thank you for your reply in turn and for your enquiries.

Your enquiries will need to be considered by a Crown Prosecutor and, depending on the view they take, the Director following consultation with relevant stakeholders. A Crown Prosecutor has not yet been allocated, and I am still familiarising myself with this matter, having been allocated it this morning. I will also consider your enquiries and will ensure to apprise the Crown briefed [sic] so that a response can be provided as soon as practicable. I cannot say whether the Crown will be in a position to respond by the time of Arraignment.”

83. The next email in MFI K4 bears date Wednesday, 4 September 2024 at 10:29am. That day was the Wednesday prior to date listed for trial, Monday 9 September 2024, and 1 year, 2 months and 2 days after the emails exchanged on 3 July 2023. It was sent by O’Keefe’s solicitor to Ms Samantha Lejeune at the ODPP. It is this:

“I am instructed to renew past correspondence (see e-mail to Ms Panagiotopoulos on 3 July 2023 below) with the prosecution that calls for consideration as resolving the matter with a plea to manslaughter. The plea would be entered based on excessive self-defence.

It is noted that this offer is consistent with the sworn evidence my client gave at trial. It is observed that the only direct evidence on what occurred at the house came from Ms Sharyn Gallagher. Ms Gallagher’s account suffers serious credibility issues. But, moreover, even if her account is accepted, she is unable to shed any light as to the specifics of what occurred within the bedroom. Therefore, should the matter proceed to trial there is no safe evidential basis that could eliminate our client’s account of self-defence beyond a reasonable doubt. Even if not accepted as fact by the jury, the challenge within the evidence meeting the criminal standard means that our client has reasonable prospects of an acquittal.

The proposed offer would ensure a conviction on the current charge. In that sense it would meet the need for the charge to reflect the essential criminality involved (DPP Guideline 4.3(1)). It is a resolution that is in line with the available evidence that is essentially incapable of safely contradicting the suggested resolution (Guideline 4.3(2)). It represents a significant cost saving given a trial that is estimated to last some four to five weeks (Guideline 4.3(3)). It will also reduce the stress on witnesses – noting that the trial will unavoidably need to revisit the personal circumstances of the deceased (Guideline 4.3(4)). Furthermore, at this point, any sentence imposed will likely be similar between a plea and if the matter proceeds to trial and a finding of guilt is returned.

To assist in considering the charge resolution, we attach an initial proposal as to the factual foundation. Noting that there are two other accused, the facts have attempted to separate facts that may be common ground between all three and those specific to the offender. Naturally, there is scope for further discussion on the facts.

We look forward to hearing from you.”

84. It appears from the opening sentence of that email that no communication concerning resolution of the matter had been exchanged in that 1 year, 2 months and 2 days, and that it was the ODPP which still had to reply to O’Keefe’s solicitors’ “enquiries” of 3 July 2023. One can understand why the parties were seeking resolution when they came to Court on the day listed for the trial to commence, 9 September 2024, and why an amended indictment was presented on 12 September to which O’Keefe pleaded guilty. The agreed facts are based on the use of excessive force by O’Keefe in his self defence, what he sought on 3 July 2023, but there obviously is no agreement on the question of the discount available to O’Keefe.

85. Manslaughter can be committed in various ways. The primary differentiation in manslaughter is whether it be voluntary manslaughter or involuntary manslaughter. Voluntary manslaughter is where there is present in the offender a state of mind that would support a conviction for murder but the culpability of the offender’s conduct is reduced by reason of excessive self defence, by provocation or by substantial impairment due to abnormality of mind. Involuntary manslaughter involves neither intent to cause death or grievous bodily harm to the victim, nor any other mental element necessary for murder: R v Lavender (2005) 222 CLR 67. There are a number of forms of involuntary manslaughter: (1) by unlawful and dangerous act, and (2) by gross negligence (sometimes called criminal negligence). The first “enquiry” made on behalf of O’Keefe on 3 July 2023 was essentially asking the Crown to state that what was alleged against him was voluntary manslaughter because of excessive self defence. That is now what the parties agree.

86. Written submissions on behalf of O’Keefe MFI K2 state this at [10]:

“10. It is submitted by defence that s25D(3)(a) Crimes (Sentencing Procedure) Act 1999 applies to allow for a discount of 25%. It is submitted this section applies given the following:

a. A proposal was raised on 4 July 2023 on behalf of the offender to resolve the matter with a plea to manslaughter based on excessive self-defence.

b. An ex officio indictment was filed on 13 September 2024 meeting the description in s25D(3)(a) Crimes (Sentencing Procedure) Act 1999. A plea of guilty was entered that day.

c. The facts establishing the elements of the new count offence are substantially different to those contained in the brief of evidence pre-committal – see s25D(4)(a) Crimes (Sentencing Procedure) Act 1999.”

87. In MFI 1 (Crown Submissions concerning all three offenders) the Crown submitted at [80] that, as far as O’Keefe is concerned, s25D(2)(c) applies and a reduction in sentence of 5% is the appropriate discount. I accede to Mr Brock’s submissions that O’Keefe is entitled to a 25% discount pursuant to s25D(3)(a). The first time the Crown agreed to allege that the manslaughter he committed was because of excessive self defence, he pleaded to it, in the indictment presented on 12 September 2024. That he would so plead ought to have been clear to the Crown from the evidence he gave in the Supreme Court both at trial and at the sentencing hearing and from his solicitors’ email of 3 July 2023. This is not a case of a “late plea” which the legislative scheme introduced by Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 was to cure, but, with respect, initially overcharging the three offenders, and then unexplained lassitude between 3 July 2023 and the week before the date fixed for hearing in this Court 9 September 2024.

Consideration - Assault Occasioning Actual Bodily Harm

88. I now turn to consider the assaults occasioning actual bodily harm on the deceased prior to his death, to which charge both Mr Cavanagh and Mr McIvor have pleaded guilty. If prosecuted in this Court, the maximum penalty for assault occasioning actual bodily harm is imprisonment for five years. If prosecuted in the Local Court, the maximum penalty that that court can impose is imprisonment for two years. Most cases of assaults occasioning actual bodily harm are prosecuted in the Local Court.

89. I have consulted the statistics kept by the Judicial Commission of New South Wales. Between April 2020 and March 2024, 15,101 cases of assault occasioning actual bodily harm were heard and determined in the Local Court. A sentence of imprisonment was imposed in 2,752 cases, that is 18.2% of the cases heard in that Court. The median head sentence was imprisonment for 12 months. The median non-parole period was 6 months. In the period from 29 September 2018 to 31 December 2023, only 215 cases of assaults occasioning actual bodily harm were the subject of sentences passed by this Court. A sentence of imprisonment was imposed in 134 of the cases, that is in 62.3%. The average head sentence was either 18 months or 2 years imprisonment, and the median non-parole period was 12 months.

90. As the agreed facts state, injuries identified other than that which caused the deceased’s death were:

1. Nasal bone fractures;

2. Abrasions, bruises, and a laceration to the scalp and face occasioned by blunt force injuries to the head;

3. Bruising of the neck muscles;

4. A fracture of the left superior horn of the thyroid cartilage occasioned by a blunt force injury or injuries to the neck; and

5. Blunt force injuries to the arms and legs.

91. The Crown has conceded that the fracture of the left superior horn of the thyroid cartilage might amount to grievous bodily harm. Without further medical evidence, I would also consider that fractures, plural, of the nasal bone might amount to grievous bodily harm, depending on the extent and nature of the injuries. Most of the external nose is not bone but cartilage. The actual nasal bone is quite small and is actually part of the skull. Without evidence as to the effect and nature of the bone fractures and as to whether it might result in either partial or permanent anosmia, I will not take into account the nasal bone fractures because, as I said, it could amount to grievous bodily harm. The offenders have only pleaded guilty to assault occasioning actual bodily harm.

92. As I said earlier today, the blunt force injuries are likely to have resulted from blows struck by a fist or kicking, if there were any kicking, or could be caused by somebody bumping heavily into something such as a wall or a door or a piece of furniture. There is nothing in the evidence to enable me to ascertain who caused what injuries or how. By their pleas of guilty, each of Mr Cavanagh and Mr McIvor accepts that he caused some actual bodily harm. But it is quite possible that, before using the knife, Mr O’Keefe could have inflicted some actual bodily harm as well. Hence, I am unable to state whether a bruise or the like was caused by a punch thrown by one of the two offenders, or a kick, or some other blow such as crashing into a piece of furniture.

93. The term bodily harm is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim but such hurt or injury need not be permanent; it must be more than transient and fleeting. For example, a slap across the face might cause some fleeting redness or discolouration and pain, but it goes away rapidly and leaves no trace. That would not amount to actual bodily harm. Actual bodily harm generally includes bruising, black eyes, a fracture of the soft tissues of the lips, or blows to the eyebrows which might cause bleeding. Any injury which is more substantial, which could be termed a really serious injury, is grievous bodily harm, and I am not sentencing for any such form of harm. Considering that the victim’s death soon followed any injury that may have been caused to him by either Mr Cavanagh or Mr McIvor, the extent to which the victim suffered may have been no greater than, say, for an hour or even less. Again, the period of suffering is important. There is nothing in the evidence that would warrant imposing a greater sentence for this offence on one rather than the other. Parity is clearly called for.

94. Doing the best that I can, I would start this sentencing exercise with a sentence of 2 years’ imprisonment. Discounting that by 25% for the utilitarian value of the pleas of guilty by each of the offenders, provides a head sentence of 1 year and 6 months. Applying the statutory nexus between the head sentence and the non-parole period, rounded down in favour of the offenders as I am required to do, that provides a non-parole period of 1 year and 1 month.

Consideration - Manslaughter

95. I turn to the charge of manslaughter to which Mr O’Keefe has pleaded guilty. The maximum penalty for this offence is imprisonment for 25 years. There is no standard non-parole period.

96. I have been provided by Mr Brock of counsel, who appears for Mr O’Keefe, with a table of cases of manslaughter by excessive self-defence prepared by the Public Defenders as a guide. The guide consists of 32 cases ranging from R v Nguyen [2002] NSWSC 536, a decision of Greg James J, to R v MR(No 5) [2024] NSWSC 912, a decision of Huggett J. The guide also refers to appeals from first-instance decisions. That table and the statistics available from the Judicial Commission of NSW suggest that with a plea entitling an offender to a 25% discount, the most common sentence is seven and a half years’ imprisonment with a non-parole period of 5 years or four and a half years.

97. Pertinent to the sentence to be imposed upon Mr O’Keefe are his personal circumstances, which I have already canvassed, the fact that he has, unfortunately, become institutionalised, and his experience of custody. He has sworn an affidavit on 23 September 2024, upon which he was not required for cross-examination. It contains the following:

“2. My time in custody has been hard. There are a number of things that have happened since entering into custody, including:

i. The COVID-19 pandemic;

ii. Physical health issues;

iii. My ex-partner’s death.

3. When COVID-19 first started, I was in custody at MRRC. The first thing that happened when the pandemic hit was that the correctional centre cut off all visits. As a result of visitations being cut off, inmates were on edge. There was a lot of violence at that time in gaol. There were heaps of lock-ins at the time, where we would be locked in our cells. We were told that this was due to ‘COVID,’ or that the correctional centre was short-staffed because of COVID. We would sometimes be locked in our cells for a couple of days at a time. I was always worried about my mum and dad, who are elderly. We would have no notice as to when they were going to lock us in, we would find out on the day.

4. At some point, I was transferred to Long Bay Correctional Centre. At the start of my time there, COVID did not have too much of an effect. Gradually, it got worse. There were lock-ins due to staff having COVID, or because they were short-staffed. Again, we would not have any notice. Whilst in Long Bay, I was locked in my cell for four days in a row because my cellmate had a cold. Visitations were cut off too, so inmates were on edge during that period.

5. In and around 2021, I was transferred to the Clarence Correctional Centre (Clarence). I have served most of my time in Clarence. Is located up north in Grafton. In Clarence, there [were] heaps of lock-ins during the COVID period. In Clarence, there was one occasion when we were locked in for ten days in a row. We were then let out for three or four days, before being locked in for ten days in a row again.

6. In 2022, my former partner died. She is the mother of my son. I asked Clarence to watch the funeral on live stream, but they did not allow it. I ended up watching the recorded version of her funeral nine weeks later after she was buried. They would not even let [me] keep a photo of her. She died suddenly. She was hit by a car and sustained a cut on her leg. She recovered from the hit by the car, but then died of blood poisoning from a cut sustained during the accident.

7. I am shattered. I always thought that we would get back together when I got out one day, but it was not to be. I feel sorry for my son. He has lost his mum, and his dad is in gaol. It shatters me. He currently resides with my mother and father.”

98. The affidavit goes on to describe the problems that Mr O’Keefe has had with his health, including back pain from degenerative disc disease in his lumbar spine, problems with his digestive system, which led to a loss of weight and fear because his brother had died from cancer when the offender was two and a half years old and because his father had bowel cancer.

99. In paragraph 12 of the affidavit, O’Keefe complains about being unable to attend rehabilitation courses as frequently as he might because of his health problems. In particular, difficulties he has had in attending Narcotics Anonymous meetings and other drug courses, because theoretically he could have been in gaol for a lengthy period of time and the courses were being allocated to those with shorter non-parole periods. In the last two paragraphs of the affidavit, he refers to how his mental health has been affected by the crime that he committed and how terrible it has made him feel.

100. He also again extends an apology to the deceased’s family and to the community for his actions. The antepenultimate paragraph of the affidavit refers to Mr O’Keefe’s positive plans for his life after he is discharged from custody. Mr O’Keefe’s experience of COVID-19 in custody is mirrored in Mr Cavanagh’s letter to me, which I have already read, Exhibit C2, paragraph 2, and in Mr McIvor’s affidavit of September 2024, Exhibit M1, paragraphs 8 and 18 to 23.

101. I also accept that Mr O’Keefe is generally remorseful for his actions. He was using a knife in the melee that led to the victim’s death. I accept that this has affected his mental health as the medical reports also attest. As to the objective gravity of the offence, I have been greatly assisted by Mr Brock’s submissions (MFI K2) and his aide-memoire to the contents of Exhibit K1, that aide-memoire being marked MFI K3. I will do my best to summarise that.

102. Firstly, the use of the knife appears to be spontaneous. When examined by Dr Antonio Simonelli, a consultant forensic psychiatrist, in about April 2021, Mr O’Keefe told Dr Simonelli that he could not recall exactly where he gained possession of the knife, but that he acquired it in some location in the house. I pointed out to Mr Brock that Mr O’Keefe had been convicted on a number of occasions of possession of a knife in a public place, but he promptly advised me that the offender had no conviction previously for the use of a knife, which is quite correct.

103. The next point Mr Brock made is that there were knives throughout the house. I have carefully looked at the photographic evidence contained in the Crown bundle in respect of each of the offenders, and it is clear that the house of Gallagher was chaotic. There were knives visible in numerous places. And the house had every appearance of being a place from which drugs were often peddled. In those circumstances, I accept that it was likely that Mr O’Keefe did pick up a knife in the house rather than bring it to the house, and that again appears to suggest that the picking up the knife was because he may have feared what was going on and thought he might need to defend himself.

104. The next proposition put to me is that the deceased was highly affected by drugs. That is highly likely. In evidence in Exhibit K1 is a report of Dr M J Christie. That gentleman’s doctorate is in philosophy rather than medicine, but he is a consultant pharmacologist. He was provided with a certificate of analysis made by the forensic pathologist, Dr Dianne Little, who carried out the autopsy, and he was also provided with a supplementary certificate prepared by Radmilla Mitrevski of 29 November 2018. The report includes this matter:

“4.2. The certificate of analysis...and supplementary certificate...for post-mortem samples collected at autopsy indicated presence of drugs in a post-mortem femoral blood sample in the concentration as follows:

(i) amphetamine 0.32 milligrams per litre;

(ii) methylamphetamine 6.7 milligrams per litre; and

(iii) delta 9 THC-acid 0.003 milligrams per litre

4.3. The Forensic Toxicology Laboratory report...indicated the list of drugs that are screened for by the analytical methods of LC QTOF MS and immunoassay. Any substances detected at a concentration above the LOD (limit of detection) would have been quantified and included in the certificate of analysis.”

105. The doctor then said this:

“There is no doubt that the levels of methylamphetamine amphetamine found in the post-mortem blood were very high and well within the toxic and potentially life-threatening range at the time of death.

The very large dose of methylamphetamine the deceased must have used prior to death would have produced profound intoxication and high likelihood of the severe adverse effects, including greatly increased risk of psychotic symptoms and violent or aggressive behaviour.

The deceased must have consumed a very large dose of methylamphetamine in the hours before his death. It is well established that high-dose, regular use of methylamphetamine is strongly associated with the induction of psychosis, which would increase the likelihood of a person such as deceased behaving in an irrational manner. Independently of whether or not the deceased had actually suffered from psychotic symptoms resulting from consumption a very large dose of methylamphetamine in the hours before his death, it is well established that high-dose use of the drug increases propensity to behave in a violent or aggressive manner.”

106. Mr Brock then submitted that there was evidence to establish that Mr O’Keefe perceived the deceased as a threat. In a call between Mr O’Keefe and his mother whilst he was in gaol, Mr O’Keefe said a number of things. A transcript of the call is included in the exhibit. Mr O’Keefe said this to his mother:

“The victim, the guy that died, he had that much ice he was, he was out of control. Yeah, was um yeah...unrational. Talking to himself, he was like, he was gone...he was like, he was very aggressive. Yeah...well he, well yeah he just kept having more, he wouldn’t stop he just wigged out...but, he went crazy you know but anyway oh well.”

107. In the report of Dr Simonelli, the doctor said this:

“Mr O’Keefe has a complex mental condition involving multiple disorders affecting and impacting various aspects of his mental and psychological functioning. Some of the key aspects to this are his cognitive impairment (brain damage, brain disorder) and personality structure (psychological disorder). This will have all had a role in the offence.”

108. That is confirmed, of course, by the opinions of Dr Ashkar about Mr O’Keefe being dysregulated. Those submissions indicate to me that the act was not planned or premeditated, it was reactive and impulsive. It was unfortunate. In fact, it was more than unfortunate. It has been a disaster for the deceased’s family, and a disaster for Mr O’Keefe, himself. But it was not planned or premeditated, it was impulsive. That means, of course, that Mr O’Keefe’s culpability for the crime is attenuated.

109. I start the sentencing exercise in this case with the starting point of 9 years and 6 months. I apply the discount of 25%, which gives me a head sentence of 7 years and 3 months. I apply the statutory nexus between the head sentence and the non-parole period. The non-parole period ought be 5 years and 3 months. However, there are, in this case, special circumstances. As I pointed out, Mr O’Keefe has been institutionalised. He needs to be discharged from custody, and he needs special care in the community to reverse that process.

110. As his mother accepts in her letter to me, and as is evidenced in the material from Cana Communities Incorporated, a short amount of time may be required to allow for appropriate arrangements to be made. I will fix a non‑parole period of 5 years and 1 month.

Consideration - Accessory after the Fact to Manslaughter

111. I turn now to the charges of accessory after the fact to manslaughter, to which each of Mr Cavanagh and Mr McIvor have pleaded guilty. The maximum penalty for this offence is imprisonment for 5 years pursuant to section 350 of the Crimes Act 1900.

112. Section 349 of the Crimes Act provides that:

“Every accessory after the fact to murder shall be liable to imprisonment for 25 years.”

113. Section 350 provides that:

“An accessory after the fact to any other serious indictable offence is liable to imprisonment for five years, except where otherwise specifically enacted.”

There is no specific enactment about being accessory after the fact to manslaughter. As the maximum penalty for manslaughter is 25 years imprisonment, it is not a “minor indictable offence” which is defined to be punishable for with a term of less than five years.

114. Some guidance to the term to be imposed is provided in the judgment of Hamill J in R v Johnson [2014] NSWSC 1254, where his Honour set out at [13] a non-exhaustive list of relevant factors in the case of being an accessory after the crime of murder. His Honour quoted what he said in that case in TT v R [2014] NSWCCA 206, a decision given almost one month later. In TT v R, his Honour wrote the only principal judgment, as Macfarlane JA and Fullerton J agreed with him. At [15] of TT v R, Hamill J repeated the not exhaustive list:

“In R v Johnson [2014] NSWSC 1254 I suggested that an assessment of the objective gravity of offences of this kind (in that case accessory after the crime of murder) involves a consideration of a number of factors which include, but are not limited to:

(1) The circumstances of the homicide itself.

(2) The extent of the knowledge in the accessory of those circumstances.

(3) The precise act, or acts, which constitute the offence of being an accessory after the fact.

(4) The length of time over which the offender assisted the principal offender in escaping justice.

(5) The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender.

(6) The motivation of the offender in committing the crime.

(7) The offender’s conduct in being motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender.

(8) The disposal or destruction of a corpse. These cases generally fall at the upper end of the range of criminality for the offence.”

115. A little earlier, at the end of [12], His Honour had said this:

“...where, an accessory is involved in the disposal of a corpse, that fact is likely to take the case into the more serious end of the spectrum of crimes contemplated by s 350. There is ample authority to support this: see R v Quach [2002] NSWSC 1205 at [11] (Simpson J); R v Cowen [2008] NSWSC 104 at [19] (Buddin J); R v Galea, R v Yeo [2000] NSWSC 101; R v Faulkner [2000] NSWSC 944.”

116. The question which arises is, what is meant by “disposal of a corpse”. In TT v R, at [19], His Honour said this:

“The applicant’s criminality in the present case went well beyond her involvement in arranging for the disposal of the victim’s dead body. She also involved herself over a lengthy period of time in remarkably deceptive and callous conduct, in which she (and other members of her family at her direction) told lies to a series of people as to the whereabouts of the victim. At all times she maintained that the victim was alive and well. These lies included deceiving the victim’s mother as to the plight of her daughter. By her actions in perpetrating that deception and in arranging for the young woman’s body to be buried, she successfully diverted the police investigation for a period of more than two years. The sentencing judge had no doubt that the victim was dead by 13 October 2008, on which date the applicant arranged for a man to dig a hole, telling him that she needed to ‘bury a dog’. The pretext that the victim remained alive continued until 28 February 2011. On that day, the police discovered her decomposed remains.”

117. I have considered a number of other cases. The first is R v Galea, R v Yeo, [2000] NSWSC 301 where Grove J said at [7]:

“that assistance included disposal of the body of the victim and cleaning the flat in an effort to obliterate evidence of what had occurred there....participated in the dismemberment of the body of the victim.”

The victim’s head was found discovered in a bag in the Cooks River.

118. In R v Faulkner [2000] NSWSC 944 (Wood CJ at CL). His Honour said at [17]:

“They dug a grave for the two men and lightly covered them with sand. The larger tarpaulin was placed over the area that had been disturbed. The prisoner erected a tent nearby. He remained on the beach for the rest of the day guarding the site...”

119. His Honour also pointed out that the offender helped move the cars of the victims at [14], helped in the burning of the bodies at [21], buried a tin containing the car keys of the victims at [23] and housed the rifle of the convicted murderer in his caravan and threw cartridges from the rifle into a river [24].

120. In R v Quach [2002] NSWSC 1205, Her Honour recorded this at [2]:

“At Tran’s request, the offender assisted to secure the body in a plastic wrap by using sticky tape. Both men then carried the body to Tran’s car and placed it in the boot. Tran drove for some distance in a direction chosen by him to an area of bushland in or near Moorebank. Together the two men removed the body from the car. At this point they were wearing gloves. The offender assisted Tran by helping to carry the body. Tran then dropped the body over a fence in bush and made some attempt to conceal it. The two men then returned to the offender’s home.”

121. For that offence Her Honour imposed a sentence of two years imprisonment, but suspended execution of the sentence after one year and nine months. It appears likely that the two-year sentence represented Her Honour’s view of the objective gravity of the facts of the case, but the suspension of execution of the sentence after one year and nine months may have represented some personal difficulty for the offender.

122. Finally, there was the decision in Johnson itself, where His Honour pointed out at [2] that the offender assisted his brother in moving the deceased’s body from the premises to some nearby premises, and later transported by the offender and his brother using the offender’s full-size sports utility vehicle, and eventually the decomposed remains of the deceased were found in bushland at Londonderry.

123. For that offence, the sentence imposed was an 18-month non-parole period with an additional term of eight months. Of course, all those “disposal of the body” circumstances were much more serious than what was done by the offenders in the present case.

124. The facts of the present case are very different.

Cavanagh

125. As far as Mr Cavanagh is concerned, his offending was confined to paragraph 15 of the agreed facts; that he assisted Mr O’Keefe and Mr McIvor in carrying the body a short distance from Bedroom 3 to the car parked either at the front of the house of Ms Gallagher or in the driveway of that house. The time would have been very short in which to do that. In Mr Cavanagh’s case, I commence with a head sentence of one year and four months. I reduce that by 25% so that it becomes a head sentence of 12 months. That gives a non-parole period of nine months.

McIvor

126. The involvement of Mr McIvor includes what he did with Mr O’Keefe and Mr Cavanagh in moving the body out of the house into the car. However, his offending continues until paragraph 20 of the agreed facts. The victim’s body was dumped at a place where it was highly likely that it would be discovered. It was discovered within an half hour. Other than being stripped of its clothing, the body was otherwise undamaged and readily identified. Whilst the body had been removed from the place where the homicide occurred, little attempt was made to hide it.

127. The purpose of what occurred appears to have been to destroy items containing the DNA of the offenders. Since it appears that all of them participated in the melee in Bedroom 3 of Ms Gallagher’s house, the motive of Mr McIvor in doing what he did was both to protect himself and both Mr O’Keefe (mainly) and Mr Cavanagh.

128. Bearing in mind the maximum penalty and the list of relevant factors made by Hamill J and all the circumstances of Mr McIvor personally, I commence with a sentence of three years imprisonment. I reduce that by 25% for the utilitarian value of his plea of guilty. That gives me a head sentence of 2 years and 3 months. The non-parole period rounded down to the benefit of the offender is 1 year and 8 months.

129. I have not taken into account that those offences were alleged by the Crown to have been “committed in company”, the aggravating factor referred to in the Crimes (Sentencing Procedure) Act 1999 s 21A(2)(e). That is because of s 21A(1)(a), as in my view it is not relevant to these offences.

130. Being in company is often highly relevant. For example, a victim confronted by two or three offenders who are prepared to assault him, to rob him, or to demand money from him. Similarly, a householder who hears strange noises in her house during the early hours of the morning and is confronted by three intruders, housebreakers, is likely to be extremely frightened and less able to defend her property than if there were only one intruder in her home.

131. Three men moving a body in the early hours of the morning when no one is around cannot make the crime worse. Doing what Mr McIvor and Mr O’Keefe did after leaving Ms Gallagher’s house in the car does not make their crime worse. It may have made it easier to do what they did, but it does not make the crime worse.

Commencement Date of Sentences

132. The remaining issue concerns when I ought to commence each of the sentences. In Mr McIvor’s case, it is extremely easy. He was at liberty when he was arrested, and his sentence should start on 7 March 2019. As far as Mr O’Keefe and Mr Cavanagh are concerned, that matter was considered by Davies J when he sentenced them for the crime of murder on 25 June 2021.

133. I respectfully adopt what his Honour said about Mr Cavanagh and Mr O’Keefe. He said this:

“[102] Mr Cavanagh was arrested on 11 April 2019 whilst he was in custody on remand for offences of possessing an unauthorised pistol and ammunition on 20 December 2018. He went into custody on remand on 21 December 2018. At the time of the [manslaughter] and his arrest for it, he was on parole, having been sentenced on 6 June 2008 to ten years imprisonment for robbery armed with an offensive weapon. The sentence expired on 9 September 2020. At some time his parole appears to have been revoked.

[103] On 7 June 2019, Mr Cavanagh was sentenced in the Penrith Local Court for possessing or using a prohibited weapon without a permit, to imprisonment for four months, commencing on 16 January 2019 and concluding on 15 May 2019. On 8 October 2020 he was sentenced in the Parramatta District Court to imprisonment for two years, commencing on 15 June 2019 and concluding on 14 June 2021 with a non-parole period of 18 months concluding on 14 December 2020 for the offence of possessing the unauthorised pistol on 20 December 2018. After that non-parole period, he may remain in custody on remand for the present offence.

[104] His time on remand for the present murder charge is, therefore, referable also to those two sentences. Taking into account principles of totality, his sentence for the present offence should commence on 11 April 2020.

[105] O’Keefe went into custody on 15 January 2019 when he was apparently arrested for four serious motor vehicle offences committed on 2 January 2019. He was remanded in custody. He was arrested whilst in custody and charged with the murder of Jamie Phillips on 10 April 2019. Before the motor vehicle offences were dealt with, he came before Campbelltown Local Court on 29 May 2019 to be sentenced for a larceny committed on 20 November 2018. He was sentenced to four months imprisonment commencing on 7 February 2019. He was then sentenced on 12 December 2019 for the motor vehicle offences. The sentence was an aggregate sentence of 12 months with a non-parole period of nine months commencing 8 June 2019 and concluding on 7 March 2020.

[109] His time in custody for the time of his arrest on 10 April 2019 until 7 March 2020 has not been solely referable to the murder charge. In the circumstances, I propose to commence his sentence on 10 October 2019.”

134. As I said I will accept the commencement date for the current sentences at the dates specified by Davies J.

Sentences

O’Keefe

135. Sean David O’Keefe, you are convicted of the manslaughter of Jamie Phillips. I sentence you to imprisonment for a non-parole period of five years and one month commencing on 10 October 2019 and expiring on 9 November 2024. I impose a further period of imprisonment of two years and two months to commence upon the expiration of the non-parole period and expiring on 9 January 2027. The total sentence is therefore seven years and three months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be released on parole at the expiration of the non-parole period. Mr O’Keefe, if the parole board acts promptly, you should be out of prison and in the care of Cana communities in four weeks’ time. I will allow that time so that the appropriate arrangements can be made.

Cavanagh

136. Barry Paul Cavanagh, you are convicted of assaulting Jamie Phillips and of being an accessory after the fact to his manslaughter. For being an accessory after the fact to his manslaughter, I sentence you to imprisonment for a non-parole period of nine months commencing on 11 April 2020 and expiring on 10 January 2021. I impose a further period of imprisonment of three months to commence upon the expiration of the non-parole period and expiring on 10 April 2021. For assaulting Jamie Phillips, I sentence you to a non-parole period of one year and one month commencing on 11 January 2021 and expiring on 10 of February 2022. I impose a period of imprisonment of five months to commence upon the expiration of the non‑parole period and expiring on 10 July 2022. That non-parole period having expired, unless some other sentence remains unexpired you are free to go.

McIvor

137. Nathan Rodney McIvor, you are convicted of assaulting Jamie Phillips and of being an accessory after the fact to his manslaughter. For assaulting Jamie Phillips, I sentence you to a non-parole period of one year and one month, commencing on 7 March 2019 and expiring on 6 April 2020. I impose a further period of imprisonment of five months to commence upon the expiration of the non-parole period and expiring on 6 September 2020. For being an accessory after the fact to manslaughter, I sentence you to a non‑parole period of one year and eight months, commencing on 7 April 2020 and expiring on 6 December 2021. I impose a further period of imprisonment of seven months commencing at the expiration of the non-parole period and expiring on 6 July 2022. That period of parole having expired, unless I hear otherwise from the Crown, you are also a free man.

138. Any further orders sought?

139. PULLINGER: No, thank you.

140. CENTRACO: No, your Honour.

141. LEJEUNE: Thank you, no.

**********

Amendments

03 April 2025 - Amended solicitors for Mr O'Keefe to "Benjamin Leonardo Criminal Defence Lawyers".

03 April 2025 - Amend typographical error in catchwords.

Decision last updated: 03 April 2025