R v O'Leary

[2004] NSWSC 821

CITATION:	R v O'Leary [2004] NSWSC 821
HEARING DATE(S):	15/06/04, 16/06/04, 17/06/04, 13/08/04, 03/09/04
JUDGMENT DATE:	3 September 2004
JUDGMENT OF:	Buddin J
DECISION:	Sentenced to 16 years imprisonment to commence on 27 December 2002 and to expire on 26 December 2018 with a non-parole period of 11 years to commence on 27 December 2002 and to expire on 26 December 2013.
CATCHWORDS:	Criminal law - murder - intent to inflict grievous bodily harm - plea of guilty and other favourable subjective features
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Cameron v The Queen (2002) 187 ALR 65 R v Chan [2002] NSWSC 544 R v de Souza 70105/94, NSWSC unreported, 10 November 1995 R v Eberlin 70054/99 NSWSC unreported 2 September 1999 R v MA [2004] NSWCCA 92 R v Merritt (2004) NSWCCA 19 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Thomson v Houlton (2000) 49 NSWLR 383 Veen v The Queen (No2) (1988) 164 CLR 465
PARTIES :	Regina Michael Thomas O'Leary
FILE NUMBER(S):	SC 70044/03
COUNSEL:	P Cattini (Crown) J Hart (Offender)
SOLICITORS:	S Kavanagh (Crown) Donnelly Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 3 SEPTEMBER 2004

70044/2003 – REGINA v MICHAEL THOMAS O’LEARY

REMARKS ON SENTENCE

1 HIS HONOUR: On 15 June 2004 Michael Thomas O’Leary (the offender) pleaded guilty to having murdered Maxwell Gordon Abbott at Windang on or about 15 December 2002. The offender is now aged 24. He was 22 at the time of the offence. He has been in custody since his arrest on 27 December 2002 and it is appropriate that the sentence to be imposed upon him should commence from that date.

2 A statement of facts was tendered on sentence. It is agreed that it constitutes the factual basis upon which I should proceed to sentence the offender. Subject to minor amendments, it is in the following terms:

The deceased, Maxwell Gordon Abbott, aged 60 years, was the occupier of site 812 at the South Pacific Village Caravan Park at 138 Windang Road, Windang. This site contained a two bedroom relocatable home.

The deceased was in the habit of attending at the Illawarra Yacht Club at Northcliffe Drive at Warrawong where he would meet friends including Pam Bryant. The offender was introduced to the deceased by Mrs. Bryant and they became further acquainted through the attendance by the offender at the Yacht Club from time to time.

Initially the offender was residing with his girlfriend Elizabeth Bogojevic at 170 Waples Road, Unanderra. However, around the beginning of December 2002 the offender and his girlfriend separated and she had requested that he move out of her home. The offender sought accommodation with his grandparents but they were unable to provide a place for him in their home. His father was overseas and the offender did not enjoy a good relationship with his father’s wife and so there was no prospect of accommodation with his father.

The offender then entered into an agreement with the deceased whereby the offender would live with the deceased at South Pacific Village Caravan Park. The offender was to pay $50-00 per week by way of rent and otherwise share in other living expenses.

The offender was unemployed at the time of the offence, he having been dismissed from his employment as an apprenticed plant mechanic with Gough and Gilmore in April, 2002. He had virtually absented himself from work in December, 2001 and had failed to adequately explain his absences. The offender was not in receipt of any social security benefits and had no income at all. He had been surviving by writing cheques without any funds in his bank account. He had also been borrowing money from friends and family. His behaviour was out of his previously known character and he had become depressed. He had also begun to tell many lies to everybody with whom he had contact, on all manner of topics.

On or about the 4th December, 2002 the offender moved in with the deceased. On that day he brought with him 4 cases of beer and four bottles of wine. These items were purchased from Theo’s liquor store at Warrawong by passing a valueless cheque drawn on the offender’s account with the ANZ Bank at Figtree.

On or about the 9th December, 2002 the offender purported to pay rent to Michael Gales, the manager of the South Pacific Caravan Park, on behalf of himself and the deceased by passing a valueless cheque in the sum of $348-00 drawn on the offender’s account with the ANZ Bank at Figtree. This was later returned to Mr. Gales who spoke to the offender about it. The offender made promises to Mr. Gales which were never honoured. Mr. Gales believed that there was no problem as the deceased had been meticulous in his dealings with Mr. Gales and always promptly paid his rent.

On 11th December, 2002 the offender had an argument with his girlfriend and punched the windscreen of her car causing damage. She apparently made application for an apprehended violence order restraining the offender as a result of this incident.

On 15th December, 2002 Carolyn Humphries, another resident at the South Pacific Caravan Park saw the deceased in his premises. She gave the deceased $20.00. The deceased complained to Ms. Humphries about the offender, saying that the offender had not paid any money towards rent and food and beer. The deceased told Ms. Humphries that the offender “would have to go soon”. This was the last known sighting of the deceased by anybody other than the offender. The deceased did not attend at Ms. Humphries’ van later that day as agreed.

Some time during the day of 15th December, 2002 the offender and the deceased argued. The deceased told the offender he was to leave. The offender has given a version of the argument stating that he was punched by the deceased and that he retaliated by punching the deceased, and that the deceased hit an object of furniture in the lounge room and fell to the floor. The offender has admitted striking the deceased whilst he was on the floor and that the deceased bled from a cut to his eye region. The offender attempted to clean up the blood that had fallen from the deceased and himself onto the carpet.

Later examination of clothing of the offender confirms the presence of blood on the t-shirt said to have been worn during this altercation. Further examination has revealed DNA profiles matching the profiles of the offender and the deceased. The Crown concedes that it is not in a position to disprove the version given by the offender, that is that he was struck by the deceased causing the offender’s nose to bleed.

The offender stated to police that he thought that the offender was merely unconscious and decided to put him into the wardrobe in the deceased’s bedroom. The offender left the caravan park shortly thereafter taking the deceased’s car. He visited various places before going to his girlfriend’s house at Waples Road, Unanderra late in the evening of 15th December, 2002. Police attended at those premises and informed him of the existence of the Apprehended Violence Order. The offender told them that he had been driven to the premises by his father. He did not tell the Police about the deceased’s car. The Police then took him to Port Kembla Police Station and then drove him back to the deceased’s van site.

The offender has maintained that the next morning he discovered the deceased still in the wardrobe and obviously dead. He believes that he attempted to obtain some money by using the deceased’s keycard at an Automatic Teller Machine at a nearby service station without success. He also attempted to obtain money being kept by Pam Bryant on behalf of the deceased, being the deceased’s share of the profits of a punters club in which both Mrs. Bryant and the deceased were participants. Mrs. Bryant refused to give the offender that money. The offender then maintains that on Monday 16th December, 2002 he attended at ACE CASH ADVANCE at Dapto with a video cassette recorder belonging to the deceased and obtained $30-00. This transaction was recorded on video. The offender maintains that he then left Dapto and travelled to Dunlop in the Australian Capital Territory where he stayed with the biological mother of the offender’s adopted sister.

However, the offender did not leave the premises of the deceased until Tuesday 17th December, 2002. This is established through the following evidence:
On searching the premises of the deceased a television programme guide was open at Monday 16 December, 2002.
The offender sought accommodation at the Oasis Caravan Park at Windang on 16 December, 2002.
Telephone records of the deceased’s service show telephone calls made on Monday 16 December to the premises at Dunlop in the ACT and on Tuesday 17 December 2002 to the Commonwealth Bank at Warrawong.
The transaction at Ace Cash Advance at Dapto took place on Tuesday 17 December, 2002.
The owner of the premises at Dunlop in the ACT recalls the offender arriving on Tuesday 17 December, 2002.

The two sons of the deceased had been trying to contact the deceased as Christmas approached obviously without success. Pam Bryant had also been trying to contact the deceased and eventually on Christmas Day 2002 Mr. Gales and others from the South Pacific Caravan Park gained entry to the deceased’s premises through a window and discovered the body of the deceased in the wardrobe in his bedroom.

On 26th December, a post mortem examination was conducted by Dr. Paul Botterill at Glebe. He concluded that:


“ in plain terms, autopsy findings included many broken ribs, bruising over the front and the back of the muscle of the chest wall, bruising beneath the skin over the left side of the face and left forehead, bruises of the left arm and both legs.

As at the time of autopsy the cause of death was believed to be the combined effects of chest and head injury although the possibility of concurrent inebriation could not be completely excluded at that time. Testing for drugs and poisons showed a spleen fluid alcohol of 0.073 g/100 mL, consistent with decompositional effect. The chest and head injuries are consistent with multiple blunt force contacts and would be consistent with actions such as the use of knees or stomping”.


Dr. Botterill found fractures of the anterior aspects of the left 1st, 2nd, 3rd, 4th and 5th ribs, of the lateral aspects of the left 2nd, 3rd, 4th, 5th and 6th ribs, and of the posterior aspects of the left 3rd, 4th and 5th ribs. Fractures were also seen of the lateral aspect of the right 4th, 5th, 6th and 8th and 9th ribs and of the anterior aspect of the right common rib.

The skin of the scalp was reflected and bruising over the left frontal scalp subcutis was found. There was also found extensive subcuticular haemorrhage beneath the area involving the left cheek, left temple and left angle of the mandible.

On Friday 27 December, 2002 Detectives Smith and Church of New South Wales Police attended at Dunlop with officers from the Australian Federal Police and arrested the offender. He was interviewed and gave the following version of events:
“The afternoon that it actually happened, I’d just got home, I’d been around to see my grandmother, and as soon as I walked in the door, he just started yellin’ at me, and he was, he was blind drunk himself, I come home and he was just sittin’ on his couch just watchin’ TV, just yellin’ at me, you know, like, to clean the room up and just everything, anything he could find something to whinge about, he did, and then I had a couple of beers, and I went and laid down for a while and then I woke up, and Max is just standin’ above me and just swore at me again, so I sat up and then he, he just thumped me right across the mouth,. I pushed him, and he went back, and then I ran up and I punched him once in the mouth and then once in the eye, we were in the lounge room at this stage, he went down on the floor, and I was just holdin’ his throat, just to try and scare him a little bit, and then I just thought he was unconscious, and I thought I’d scare him so I dragged him into, into his bedroom and put him , just put him in the closet, because I thought he’d wake up and huff and puff, and then I went back into the lounge room and tried to clean up the little bit of blood that was on the floor from me and him.”


The following day he was extradited to New South Wales where he was charged with the murder of the deceased.

The offender was subsequently interviewed at Burwood on 30 January, 2003. The offender admitted responsibility for the death of the deceased. The following exchanges took place:

Q.48 Could you tell us what dates you think you and Max had the argument on, the fight on?
A. It was Sunday morning, would have been the 15th of December.
Q.49O.K. No, going back to that date, can you tell me what the argument was over?
A Well, like I told you before, I was, I was sound asleep, Max just came in and he was blind drunk, this is about 9.00, 9.30 in the morning and he just was standing over me, demanding money off me so he could go and buy some more beer, I said no, and a few other words, then he told me it’s probably best if I move out and I said I will and then, I don’t know, I just must have ticked something and he just started whaling (sic) into me, like while I was laying down in bed and then I got up and retaliated.

He said that he was hit in the nose by the deceased and there was some blood from his nose. He then went on to say at Q.65:
Yeah, I walked out and I pushed him, and that’s when he hit into his entertainment unit and then he fell to the ground and that’s when I, when he was on the ground, I punched him one in the face and that hit him just above the eye and then I put my hands around his throat for a second then after that, he just he wasn’t, wasn’t conscious. I just checked to make sure he was, like he was still breathing, things like that.
Q.70 How did he come to be on the floor?
A. Because I pushed him and he bounced off, like he hit the TV cabinet pretty hard and then he fell to the ground straight after that. Plus, he was very, very drunk too at that stage.

Q. 71 Did you hit him at all when he was standing up?
A. No, not when he was standing up. No, when he went down to the ground, I did. I did pop him one when he was on the ground and that’s when I put my hand around his throat and then I realised that he was unconscious.

Q.72 Why did you hit him when he was on the ground?
A. It was just a rage going through me, that’s all I can say. I was just angry for him losing it at me.
Q.155 Do you think after you hit Max the first time, was he capable of hitting you back, I think after that?
A. I wouldn’t know, I just hit him once and then just hit him again and again.


By his plea the offender has abandoned defences of Provocation, Self Defence and Substantial Impairment. Nevertheless, it is common ground that the offender was to some extent impaired.

Dr. Stephen Allnutt interviewed the offender on 30 December, 2003 and concluded:

“In my opinion and with reasonable medical certainty your client (the offender) was suffering from a mental disorder; namely, a combination of Post Traumatic Stress and Depressive Disorder symptoms at the material time that the alleged offence occurred. Both of these conditions in my view would be regarded by psychiatrists as meeting the legal criteria for an “underlying condition” causing an “abnormality of mind”.
In my opinion at the material time of the alleged offence, your client would have been compromised in his capacity to interpret and judge events due to his symptoms. Individuals who suffer from moderate to severe symptoms of anxiety and depression are more prone to misinterpretation and exaggerated interpretations of their environment in a negative way.”

Dr. Olav Nielssen interviewed the offender on 4 June, 2004 for the purposes of providing opinion to the Crown. His report included the following opinions:

“Psychiatric Diagnoses
Adjustment disorder with depression and anxiety
Alcohol abuse disorder.
Summary and Opinion
Mr. O’Leary’s psychiatric disorder resulted in an abnormality of mind that was present in the period leading up to the offence and was not a transient condition. The combination of disorders resulted in subjective distress and also significant social disability.

The presence of depressed mood is unlikely to have significantly affected Mr. O’Leary’s capacity to understand and interpret the events leading to the offence. His depressed state may have affected his capacity to judge whether his actions were right or wrong to a minor degree, in that depressed mood often results in a reduction in concern about the possible consequences of one’s actions. The increased irritability and anger that is often associated with depression may also have resulted in a degree of impairment in Mr O’Leary’s capacity to control his aggression.”

3 I have received victim impact statements from the deceased’s sister and his sons respectively. Each of them detail the impact which his death has had upon them and the rest of the family. They each express their anguish and sense of despair at having lost someone whom they loved dearly. The feelings which they express are entirely understandable. I am aware of course that the effect of his death upon his relatives is not, for present purposes, a relevant consideration. See R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death.

4 Pursuant to s 19A of the Crimes Act 1900, the crime of murder attracts a maximum penalty of imprisonment for life. Section 21(1) of the Crimes (Sentencing Procedure) Act 1999 nevertheless enables a court to impose a determinate sentence. It is common ground that this is not a matter which attracts the operation of s 61 of that Act. In sentencing the offender, it is necessary to proceed upon the basis that the offence to which he has pleaded guilty is the most serious in the criminal calendar. The starting point must be to recognise that a human life has been taken. The community expects that the sanctity of human life will be protected by the law and that those who take it will be appropriately punished. I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. It is in the following terms:

3A . The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.

5 The Court of Criminal Appeal in R v MA [2004] NSWCCA 92 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment which were described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. A majority of the court, in a passage which is particularly apposite to the present case, said:

[s]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (At 476)

6 I must also, in determining the appropriate sentence, have regard to the various aggravating factors which are set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known, it is not necessary as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance.

7 It is not easy to determine precisely how the events unfolded which led to the death of Mr Abbott. Whilst the offender acknowledged his responsibility for causing the death, both to police in the interviews conducted with him and by his plea in this court, it is apparent that the very significant injuries occasioned to the deceased could only have resulted from a number of blows of considerable force having been struck by the offender. It is common ground that the blows which the offender inflicted upon the deceased were done with an intention to cause grievous bodily harm. Whatever may have precipitated the accused’s actions, nothing however justified the nature and extent of the violence which he visited upon a man who was not only considerably older than he was, but who was undoubtedly in an intoxicated state at the time. Likewise the accused’s conduct subsequent to Mr Abbott’s death in, for example, pawning his video recorder and taking his motor vehicle and his keycard do not reflect well upon him. However, it is common ground that it is not conduct of such a character as could be regarded as a matter of aggravation.

8 That said, there is nothing to suggest that Mr Abbott’s death was in any sense, planned by the offender. On the contrary, I accept the submission that it was not premeditated and that the relevant intention, to which I earlier referred, arose only during the course of the incident which culminated in Mr Abbott’s death.

9 The Crown concedes that it cannot exclude the reasonable possibility that the accused’s version of events, to the effect that the deceased verbally abused him and punched him before he retaliated, is true. Accordingly it also properly concedes that it is thus appropriate to take into account in the offender’s favour the fact that he was, to some degree, reacting to provocative conduct, albeit not of a kind that would entitle him to rely upon the provisions of s23 of the Crimes Act. Similar considerations apply to the question of excessive self-defence.

10 Of even greater significance is the possibility that the accused could, but for his plea of guilty, have brought himself within the scope of s 23A of the Crimes Act and thus relied upon the “defence” of “substantial impairment”. As has earlier been observed, the offender was examined by Dr Allnutt who provided a report in which he set out the circumstances which were said to be capable of supporting such a “defence”. Extracted below are relevant parts of that report:

[The offender’s] difficulties began in approximately January 2002 when he was involved in a motor vehicle accident. While he was not himself a victim of the accident he was a witness to a significant accident in which he watched a police car going out of control and people flying out of the car. He was the first witness on the scene and found a trainee police officer hanging out of the car. He checked the police officer’s pulse, checked he was breathing and he tried to assist at the scene. He found out later that the policeman was brain dead.
The experience distressed him. He was distressed by the limited assistance that he was able to provide the struggling trainee police officer and the lack of involvement of other witnesses.
Your client told me that since the accident “I just wasn’t sane anymore”. At the time of the accident he was involved in a stable relationship with his girlfriend of one year and was working as an apprentice mechanic performing adequately in his work.
Following the accident he recalled a change in his demeanour at work, in his relationship and socially. He made more mistakes at work because he was not paying attention. He was preoccupied about the possibility that his girlfriend may be involved in a car accident. These ruminations intruded on his capacity to focus on his work. He began attending work less and less because of loss of motivation or interest in work. As a consequence his performance deteriorated to the extent that he was finally fired from his job.
He became overly protective of his girlfriend. He said, “I stopped allowing her to have a life. I would need to be with her all the time”. His predominant concern was that, if he was not with his girlfriend something untoward would happen to her and he would lose her. He lost weight and his motivation and energy diminished. He said “I didn’t want to do anything”. He lost interest in his usual activities such as bike riding and walking. He argued with his girlfriend frequently due to increased irritability and short temper. He said that this was something that was not present in their relationship prior to the accident. His sleep deteriorated and on some nights he was unable to sleep. He later noticed that his sex drive diminished.
In an effort to cope he increased his alcohol consumption. Prior to the accident he drank approximately once a week, following the accident he found himself drinking on a daily basis approximately six beers a day and this further contributed to increasing tension in his relationship.
He said, “The image of seeing the car fly like that was like an explosion. It never left my head.” He thought continually about how bad things happened so easily. The image of the accident kept recurring in his mind. He denied that he began to experience any nightmares. He avoided socialising and spent his time with his girlfriend. He became more “jumpy” when he was driving and tended to be over cautious. He said “I paid double attention to everything after that”. I was always watching out. He said when he thought about the accident he felt “horrified”. He felt this way when he had “mental images in my head”. He became emotionally more distant from his girlfriend after the accident.
“I then started to lie about everything and anything”. After he was fired he continued to tell his girlfriend that he had a job. “I didn’t want to seem to be a failure” (although he felt himself to be a failure). He engaged in a number of deceptive behaviours, which he then said was uncharacteristic. He recalled going to car dealers and writing up cheques for cars, driving the car away and then having the car removed from him when the cheque bounced. He said he incurred approximately $80,000 worth of forged cheques. “At the time I began to believe my own lies, I was trying to please virtually everyone”. He told people that he was a mechanic. He believed that he was able to buy a house with his girlfriend. He said he was motivated by a desire to make his girlfriend happy and to get her what she wanted. At the time he thought he “had no problems about getting a house”. He recalled that he became impulsive “I did spur of the moment things, I would have no concern for the consequences. At the time I didn’t think there was anything wrong with me”, “It was like I had to please people, like my girlfriend and my parents”. I attempted to explore his motivation for this in greater depth; but found it difficult as he found his behaviour himself to be inexplicable.

11 The circumstances of the accident which the offender observed are set out in greater detail in the statement which he provided to police at the time, a copy of which was tendered in evidence before me.

12 Dr Allnutt also interviewed the offender’s father and his girlfriend. His report includes the results of those interviews:

Both his father and his girlfriend knew him as a reliable and honest individual. His girlfriend told me she had been going out with him for three years. His girlfriend made note that in the three years that she had been in a relationship with him he had never lost his temper with her and she had never had any cause for concern for intimidating behaviour on his part.
His father clarified that your client had never been under police arrest prior and had not manifested symptoms of conduct disorder or juvenile delinquency in childhood.
Both agreed that after being witness to the accident in 2002 there was a substantial change in his behaviour. He became more emotional. He began breaking down and crying more easily. His girlfriend said, “It was like there was a wall around him”. He began accidentally hurting himself at work, noting that he worked as a heavy machine mechanic. He was not sleeping well. She would wake up and find him sitting up at night. He would complain to her that he was too afraid to close his eyes because he would see the eyes of the dead police officer if he did this. His father informed me that he became withdrawn from the family and when approached he would be reluctant to talk about his feelings. Both agreed that he seemed emotionally “detached”. Both agreed that he appeared to be suffering emotionally but was not open to communicating this with them.
His girlfriend informed me that overall the relationship had been good. They had similar interests, they spent their time together bush walking and camping. After the accident he appeared detached and “emotionally very upset all the time, he cried a lot, he seemed to be unable to communicate his feelings”. On other occasions he told his father that he was going “nuts”. He told his father at times that he didn’t know why he was doing things; but he seemed to be doing things without considering the consequences. His father, becoming concerned, arranged counselling, which he attended in approximately June 2003 on one or two occasions in Wollongong.
His girlfriend told me that he seemed to be “worried all the time”. She specifically noted that he was afraid for her to get in the car and drive alone. He would want to accompany her every time she drove the car. He wanted to make sure that he was there with her at all times to protect her. His father confirmed that his son appeared to have a fixation on his girlfriend’s safety. His father made note that when he visited his son in gaol he continued to be concerned about people’s driving and advised both his father and girlfriend about driving carefully…..
Prior to losing his job, he started taking time off work, which again was uncharacteristic. They made note that he “never missed a day at work, he used to go to bed early, he even worked on weekends”. His girlfriend told me that she first became aware that he was writing illegal cheques in about August 2002. Both father and girlfriend agreed that this was something that was out of character. This caused conflict in his relationship with his girlfriend.
They noted that his alcohol consumption increased in October 2002.
His girlfriend was of the view that it was possible that his cheque writing had to do with a desire on his part to be in control and protective of her.

13 Dr Allnutt arrived at the following conclusions:

Following the motor vehicle accident your client describes a notable decline in his mental state. His mental state was likely further aggravated by the assault that he suffered in August 2002. Based on the information provided, there appears to have been a significant deviation from what would usually be regarded as normal behaviour for him. He became emotionally volatile; he manifested difficulties in concentration and attention; he became over-anxious; hyper-vigilant; he describes becoming more impulsive in that he began behaving in a manner without concern for consequences. He became more irritable and angry, manifesting lowered frustration tolerance. These are the kinds of symptoms that can compromise an individual’s ability to exert behavioural control and can increase the risk for impulsive aggression.
I am of the view that his capacity for volitional control would have been significantly compromised. He was predisposed, due to symptoms of PTSD and Depression and underlying conditions.
In my view I believe there are grounds to pursue the partial defence of substantial impairment.

14 Mr Smith, a clinical psychologist, also prepared a report. In it he refers to two incidents which occurred in 2001 which preceded the tragedy which the offender witnessed in early 2002. The following extract is taken from the report:

In January 2001 and at the beginning of the third year of Mr O’Leary’s apprenticeship, two incidents adversely compounded his poor coping. The first involved him happening to be on his way home behind an offender when the police arrested this person at gun point. Witnessing this caused him caused him (sic) emotional adjustment issues. He said his coping then slowly deteriorated. The second incident was that his girlfriend’s home was burgled in the May. Her father asked him to spend more time with her to increase her protection. He became very concerned for her safety and took many precautions to protect her.

15 Those incidents, whilst clearly not causing an impact of the magnitude of the one which the offender experienced the following year, do provide some context for an understanding of the reaction which he experienced to that latter incident.

16 As I have already indicated, it is common ground that this material should be taken into account in the offender’s favour either on the basis that it reduces the overall objective gravity of his conduct or as a mitigating factor in that it shows that the offender was not fully aware of the consequences of his actions because of his mental condition at the time. In the circumstances it is appropriate to give less weight to general deterrence than would otherwise be the case. See generally R v Merritt (2004) NSWCCA 19 at para 55.

17 I must also weigh in the balance those other matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty. See s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. Of particular relevance are (b) (c) (e) (f) (g) (h) (i) (j) and (k).

18 I have been provided with information concerning the offender’s background by way of the reports of Dr Nielssen, Dr Allnutt and Mr Smith. I have also had the benefit of sworn evidence from his father, Barry O’Leary and his girlfriend.

19 The offender was adopted shortly after birth. His two sisters were also adopted. His adoptive mother died from pancreatic cancer after a long illness, when he was about ten years old. Although this was a devastating experience for the offender and indeed for the entire family, the offender seems to have otherwise had a comfortable upbringing in a close knit family. His father eventually remarried, although that relationship has now broken down.

20 The offender struggled academically and was something of a “loner” at school. Nevertheless he appears to have excelled at various sports, including rugby league and ten-pin bowling. He was employed in a number of part-time jobs whilst completing school, including at a bowling alley. Whilst he was there he did volunteer work organising bowling days for disabled people. He also assisted disabled children to learn to sail. He obtained an apprenticeship after leaving school as a mechanic. He was initially enthusiastic about that position, which he had won over 200 other applicants, but eventually lost interest in the work and became disillusioned with the job. As was observed earlier, he was eventually dismissed from that position in April 2002 and was unemployed at the time of the offence. At some stage in 2002 the offender applied to join the Australian Army. In August 2002 he was accepted into the Army but at the last moment he turned down the offer.

21 The offender is entitled to an appropriate measure of leniency on account of his plea of guilty. That is a matter that I expressly take into account in his favour. See s 22 of the Crimes (Sentencing Procedure) Act 1999. Whilst the plea of guilty was not entered at the first available opportunity, it was entered before the jury was empanelled. It is, of course, a significant step for an offender to take to plead guilty to murder. It is apparent from the admissions which he made that the offender accepted responsibility from the outset for having caused the death of Mr Abbott. He thereafter explored, as was his entitlement, the issue of substantial impairment before determining what plea he should enter. I was informed that had the matter proceeded to trial then it would have occupied at least three weeks of hearing time. That time has of course been saved. It may also be observed that his plea has obviated the necessity for a number of witnesses, who were close friends of the deceased, having to undergo the ordeal of giving evidence. As I have said, the offender did not plead at the first available opportunity, but I am of the view that a discount at about the mid-point of the range identified in R vThomson v Houlton (2000) 49 NSWLR 383 is called for in the circumstances of the present case.

22 The offender is also entitled to have weighed in his favour the fact that he has expressed contrition for his actions. First and foremost the offender made admissions concerning his involvement in this offence when questioned by police. True it is that the finger of suspicion had by then descended upon him as the likely perpetrator. True it is also that the offender was probably not entirely candid in revealing the full extent of the injuries which he inflicted upon his hapless victim. Nevertheless, he did make sufficient admissions to render his conviction all but inevitable. He has now clearly accepted full responsibility for the legal consequences of his actions and has thus demonstrated a “willingness to facilitate the course of justice”. See Cameron v The Queen (2002) 187 ALR 65. That is particularly so because of his decision not to seek to rely upon any “defence” or other material which may have had the consequence of reducing his culpability for this crime from murder to manslaughter. I accept that the opinion of Dr Allnutt, in particular, may have given him some cause for optimism in that respect.

23 Furthermore, the offender went into the witness box and expressed remorse for his conduct. He also apologised to the friends and relatives of the victim. Accordingly, he is in those circumstances, entitled to some credit over and above the discount which I have identified for the utilitarian value which his plea of guilty entails.

24 The offender is of course still a young man. It is to his credit that he has no prior convictions. There is also evidence before me as to his prior good character. I take those matters into account in his favour. It is also common ground that in light of those considerations, and because of the opinion of Dr Nielssen that the offender has “largely recovered from depression during the eighteen months he has spent in custody without treatment”, that he has good prospects of rehabilitation. I am fortified in coming to that view by the evidence which shows that he has spent his time productively whilst he has been in custody. He has already completed two courses and plans to undertake further studies with a view to improving his employment prospects when he is eventually released.

25 Dr Nielssen also expressed optimism about the likelihood that the offender would not reoffend. In this context it is to be noted that the offender enjoys the ongoing support of his father and girlfriend. She remains committed to the relationship notwithstanding the prospect that the offender will be in custody for many years into the future.

26 It is again common ground that it is appropriate that I should find “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. In making such a finding, I have, in particular, had regard to the fact that this is the offender’s first time in gaol and that upon his eventual release from custody, he will require considerable supervision and assistance to facilitate his re-integration into the community. In reaching that conclusion, I have not overlooked the need, in setting the non-parole period, to fix the minimum period which the offender must spend in custody. See R v Simpson (2001) 53 NSWLR 704; R v MA (supra).

27 I have been provided with statistical information from the Judicial Commission which provides some indication as to the appropriate range of sentence for this kind of offence. I have also had regard to sentences imposed in other cases which may be said to bear some comparability to the present case. As has been well recognised that material has only limited value in assisting me in the exercise of the sentencing discretion. I have nonetheless derived some guidance from the decisions in R v de Souza 70105/94, NSWSC unreported, 10 November 1995 per Dunford J; R v Eberlin 70054/99 NSWSC unreported 2 September 1999 per James J and R v Chan [2002] NSWSC 544 per Ireland AJ.

28 Notwithstanding the offender’s favourable subjective matters and the other features of the case to which I have referred, it is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999. This case involves the senseless and tragic loss of human life and accordingly nothing less than a substantial custodial sentence can be countenanced.

Sentence

29 For the crime of murder, I sentence the offender to 16 years imprisonment, to commence on 27 December 2002 and to expire on 26 December 2018, with a non-parole period of 11 years, also to commence on 27 December 2002 and to expire on 26 December 2013, which is the first date upon which the offender is eligible for release to parole.

**********

Last Modified: 09/24/2004