R v RC; R v JM

[2016] NSWSC 98

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v RC; R v JM [2016] NSWSC 98
Hearing dates:	5 February 2016
Decision date:	08 February 2016
Before:	R A Hulme J
Decision:	RC Robbery in company: imprisonment for a fixed term of 3 years. Manslaughter: imprisonment for 4 years 10 months with a non-parole period of 1 year 3 months.  JM For each offence, ordered to enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a period of 6 months subject to the conditions.
Catchwords:	CRIMINAL LAW – sentence – manslaughter – robbery in company – joint criminal enterprise – lesser role than co-offenders – guilty pleas – assistance to authorities in trial of co-accused – on parole at time of offence – long history of substance abuse including heroin and methamphetamine – extensive criminal history – limited intellectual and cognitive functioning – specific deterrence of more significance than general deterrence – remorse – some prospects of rehabilitation – minimal prospects of re-offending   CRIMINAL LAW – sentence – robbery in company – victim lured into park – key role in planning of the robbery – age 17 at time of offence – acting under duress – guilty pleas – assistance to authorities in trial of co-accused – subjective circumstances attract leniency – neglectful and abusive childhood – drug use from early age – physical health issues – limited mental capacity – insignificant criminal history – prior good character – remorse – reasonable prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 (NSW) ss 18, 97(1), 154F Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 Criminal Appeal Act 1912 (NSW) s 5DA
Category:	Sentence
Parties:	Regina RC JM
Representation:	Counsel: Ms M Cunneen SC (Crown) Mr P Rosser QC (RC) Mr R Cavanagh (JM)   Solicitors: Solicitor for Public Prosecutions Legal Aid NSW Lambton Law Pty Ltd
File Number(s):	2014/236978; 2014/123482

Judgment

1. HIS HONOUR: The trial of RC and a juvenile known as JM was due to commence on Monday 1 February 2016. It was indicated on that day that they had offered to plead guilty to lesser charges. Later that day the Director of Public Prosecutions accepted such offers. On Tuesday 2 February they were arraigned and pleaded guilty: RC to manslaughter and robbery in company and JM to robbery in company and a related summary offence of stealing a motor vehicle.

2. Each of the offences is contrary to provisions of the Crimes Act 1900 (NSW). Manslaughter is an offence contrary to s 18 and the maximum penalty is imprisonment for 25 years. Robbery in company is an offence contrary to s 97(1) and the maximum penalty is imprisonment for 20 years. Stealing a motor vehicle is contrary to s 154F and, when dealt with summarily, the maximum penalty that may be imposed is imprisonment for 2 years.

3. The offences were committed on 25 March 2014. The victim was Mr Anthony O'Grady. In short, Mr O'Grady was lured to a park in Wickham, an inner suburb of Newcastle, where he was robbed and beaten to death by a co-participant in a joint enterprise of four men: Anthony Dent, Jeffrey Schott, RC and JM. JM subsequently went to Mr O'Grady's home and stole his car.

Facts

4. Separate statements of facts were tendered in relation to each offender. The essential narrative is the same although some details appear in one but not the other. I will sentence each man in accordance with the statement of facts tendered in their respective cases but there is not much difference.

5. The statement of facts in JM’s case include that he was living on the streets and in that context he met Jeffrey Schott and stayed with him for at least one night. As at the date of the offences JM had known Dent for about a week.

6. Sometime during the day of 25 March 2014 at a meeting of RC, Dent, Schott and JM at Dent’s home, a plan was hatched to lure the deceased to a park at Wickham in order to rob him. The plan was to have JM introduce the deceased to Dent. They were to entice him to the park by suggesting that if he brought some alcohol there would be girls who would have sex with him. RC and Schott were to hide in the park with rope. Dent was to tie Mr O’Grady up and obtain his bank account personal identification numbers ("PINs").

7. JM went to the deceased’s home and told him that he should come down to Islington Park because there was a party there. JM said that if the deceased brought the beers there were going to be plenty of girls at the party for everybody.

8. Between about 6.00pm and 8.00pm, text messages were exchanged between JM, Schott and Dent, mostly between the latter two (but none involving RC), in which they relayed the progress of the luring of Mr O’Grady in the company of JM to the park. The tenor of the messages indicates that Dent was primarily involved in giving directions in response to information relayed mostly by Schott and in one instance by JM. The statements of facts include reference to a female being present at least by the time everyone got to the park, but who she was and how she came to be present is not clear. It is not evident that she was involved in the joint enterprise or played any role.

9. Ultimately, at about 8.00pm when Mr O’Grady was in the park in the company of JM, the female and Dent, the latter started to hit Mr O’Grady causing him to fall to the ground. Dent struck him some more and started to take his pants off. JM and the female walked some distance away.

10. RC and Schott were nearby. Dent had his foot on the deceased’s back trying to subdue him. He obtained some rope from Schott. (In his evidence in the sentence proceedings, RC said that both Dent and Schott tied Mr O'Grady up.) Dent removed the deceased’s pants and checked his pockets. He used the deceased’s underpants to gag him. He threw the deceased’s car and house keys to JM and told him to go to the deceased’s house and take his car and all his belongings. JM left the park in the company of Schott and the female.

11. JM and the female went to the deceased’s home and took his car which had a trailer attached. They did not go inside the house because people were there. JM drove the car away and met Schott at a nearby park. (What happened to the female is not apparent.) After Schott had entered the car he received a call from Dent who told him that he was going back to the park to get the PINs from the deceased. (Dent had made an unsuccessful attempt at using the deceased’s bank card to withdraw money at an ATM.)

12. JM and Schott drove to an isolated area along Ash Creek. Schott manoeuvred the car so as to drive it into the creek. In the statement of facts in RC’s case it is said that JM and Schott then went to Dent’s home. There, in the presence of RC, Dent told them something about the deceased’s PINs not working.

13. At about 6.15am the following day (26 March 2014) the deceased’s body was found in the park. Police were called and an investigation began.

14. JM was spoken to by an undercover operative on 17 April 2014. He said that if he had known that Dent was going to assault Mr O’Grady he would never have taken part in the enterprise.

15. JM was arrested on 24 April 2014. On 29 September 2014 he participated in an interview with police. He said that he did not want Mr O'Grady hurt during the robbery and claimed that Dent told him that he was not going to hit him. (JM was granted and released on bail on the day of this interview but he breached the bail which was revoked on 5 November 2014.)

16. RC was arrested in Queensland and extradited on 9 October 2014. In a police interview he admitted that he had known Dent from having met him in gaol and had run into him some three weeks before the incident involving the deceased. He admitted that an arrangement had been made to rob him.

17. RC was again interviewed on 4 November 2014. He said that he went to the park with Schott and that he saw Dent punch the deceased. He said he (RC) took a backpack from the deceased which he left at Dent’s home. He also said that he knew he was going to the park in order to rob the deceased and that force would be used. He knew Dent had been in custody in the past for a double murder and that he was a man who was prone to violence.

18. The statement of facts tendered in RC’s case concludes with a statement of his criminal liability:

“On the 25th March 2014 RC agreed to and participated in the robbery of the deceased at Wickham Park, Hamilton (Common purpose). The person Anthony O’Grady died as a result of the robbery which was an unlawful and dangerous act. The offender RC knew the co-accused Dent for a lengthy period of time and that he had a propensity for violence and that participating in the robbery was unlawful and dangerous.”

19. The statement of facts tendered in JM's case concludes with a statement as to his criminal liability:

"On the 25th March 2014, [JM] arranged and participated in the robbery of the deceased at Wickham Park, Hamilton. Due to [JM's] limited knowledge of the co-accused Dent it was not within his contemplation that the accused Dent would inflict grievous bodily harm upon Anthony O'Grady and cause his death."

Further material derived from RC’s interview

20. A transcript of the police interview of RC on 4 November 2014 was tendered in his case. In that interview he provided a version of events which at the end of the interview he indicated was one he was prepared to give in evidence. In addition to what is disclosed in the statement of facts, RC told police that he had been staying at Dent's flat for about two weeks. He had met Dent in gaol a few years earlier when Dent had told him that he was "in for double murder". He said Dent was "all right in gaol"; he spoke well and was never violent.

21. The plan to rob Mr O'Grady was made on 25 March 2014 when the four men were at Dent's flat. They had been using drugs (ice) and wanted to get some money to acquire more drugs. JM said that he knew a man who had come into a lot of money and was in the habit of carrying $5000 around at times. Dent said he wanted to rob this man. RC understood that Dent would rob Mr O'Grady once he had been lured into the park and that the others would be present to assist in some unspecified way if required. RC expected to receive drugs acquired from the proceeds of the robbery.

22. RC told police that Dent was yelling at Mr O'Grady, "Give me your money". Mr O'Grady said that he did not have any. Dent punched him to the face and then kicked him in the face as Mr O'Grady was falling to the ground. RC said that "they" were ripping Mr O'Grady's clothes off and Schott helped Dent to tie Mr O'Grady up. He heard Mr O'Grady saying, "Please stop" and "Please leave me alone". He said that Mr O'Grady had been trying to get up but he was too weak "and then they rolled him over on his belly and got the rope and started tying him". Schott had brought the rope from Dent's flat. (I note that in his oral evidence, RC said that he was not aware of the rope until they were at the park.) Dent also put something in Mr O'Grady's mouth, his underpants or shorts he (RC) thought. Dent gave RC the man's backpack and told him to take it back to Dent's flat. Dent took Mr O'Grady's bum bag which RC saw contained his wallet and credit cards.

23. RC returned to Dent's flat and waited there. He understood that Dent went elsewhere to acquire drugs. He said that he was worried and really scared of Dent "doin' something stupid. Like, 'cause he'd killed someone he was gunna come back after all of us so he had no witnesses". In a telephone call he heard Dent saying that he needed to get rid of all witnesses; "all witnesses have got to go". RC said that he was frightened and he panicked. He fled from Dent's flat, leaving his possessions behind. He made his way to Queensland where he was ultimately arrested.

24. RC was asked why he had given a different account when first spoken to by detectives. He said: "I was just frightened. I am frightened of Tony Dent. I'm scared. Scared to death of him." In his evidence last Friday he explained: "I was scared he'd do what he'd done to the deceased and I still am scared".

Further material derived from JM's conversations with police

25. In the case of JM, also tendered were statements of two police officers and transcripts of his conversation with the undercover operative on 17 April 2014 and his police interview of 29 September 2014. The two police statements indicate that in a random interaction with JM on 4 April 2014 he raised the subject of the recent murder at Wickham and told the officers that Tony Dent was the person police should speak to.

26. In the conversation with the undercover operative, JM gave a detailed account of what occurred on 25 March 2014. It included that he walked away when Dent commenced to assault Mr O'Grady. However, Dent called to him to get the rope and JM relayed that request to Schott. Dent then "hog tied" Mr O'Grady with no pants on. JM described Mr O'Grady as "my best mate"; "he fed me, bought me food, shouted me to my first brothel".

27. The version JM gave in the interview of 29 September 2014 was preceded by him making the usual acknowledgment that it represented the evidence he would be prepared to give in court as a witness and that it was true to the best of his knowledge and belief. He said that Dent was in debt to drug suppliers and money was needed to pay the debt and to obtain more ice for Dent, RC and Schott. The plan to rob Mr O'Grady was first suggested by Schott. JM said he was not agreeable but Dent insisted that JM point out Mr O'Grady to him, "otherwise he was gonna hurt me". During the events in the park, Dent made threats that if JM did not do as he was told he would be killed. JM took such threats seriously because, he said "every few words out of that man's mouth were, 'I've already done two life sentences, I'm not afraid to go back to gaol'". Dent had shown him old newspaper articles concerning a murder in Wickham Park.

Personal circumstances of RC

28. RC was born in 1968 and so he was aged 46 at the time of the offences. He was the youngest of four children. His parents have been deceased for some time. He told a psychologist, Ms Rima Nasr, that his sisters and brother were pro-social in terms of having secure employment, stable housing and families whereas he had led a largely itinerant lifestyle and had only antisocial peers since the age of 13. He was forced to leave the family home at around that time. Although he was not the subject of any abuse or neglect, his parents found his behavioural issues difficult to control. He was expelled from school on the second day of Year 7 for having thrown a teacher down some stairs. Accordingly, his education has been extremely limited and his literacy is poor. He has not worked since the age of 21, having subsisted on government benefits, and has no desire to work in the future.

29. RC was closest to his father who died 22 years ago and from that time he ceased caring about anything, engaged in increased substance use and antisocial behaviour and disregarded authority by "not listening to anyone". He ceased contact with his siblings from that time. He has a long history of substance abuse including heroin and then methylamphetamine (ice). There have been no significant periods of abstinence. He failed to complete a Drug Court program five years ago. When withdrawing from substances he typically experienced paranoid symptomatology. Whether there is a mental condition of any significance was found difficult by Ms Nasr to gauge, given the limited periods in which he has been abstinent, but she considered it important for him to have a mental health assessment in custody in order to determine whether he needs psychotropic medication.

30. RC has had one long term relationship from the age of 17 to 41 which saw the birth of six children but said he had been repeatedly unfaithful and had five other children to different women. He does not have any relationship with any of the children.

31. He has an extensive criminal history which commenced in the Children’s Court in 1985. He was first gaoled in 1989 for stealing a car when he was aged 20. There are quite a few entries for dishonesty and driving offences, the latter to the extent to which he has been gaoled on a number of occasions for driving whilst disqualified. There have been only a few instances of violent offences and they are relatively minor; they include an assault in 1988 (fined); the serious assault of a police officer in 2000 (suspended sentence); intimidating and resisting a police officer in 2001 (fined); and another assault in 2010 (fined). His longest gaol sentence (2 years 7 months) was imposed in 2006 for an offence of break, enter and commit serious indictable offence in company.

32. In May 2013 at the Warwick Magistrates Court RC received a sentence of 12 months' imprisonment. A parole release date of 17 October 2013 was specified. It has been conceded that he was therefore on parole as at 25 March 2014. This represents a significant aggravating factor.

33. Ms Nasr conducted a psychometric assessment. In determining his intellectual functioning RC was found to have a verbal ability in the extremely low range (better than 0.5% of the normative sample for his age). He was in the low average range (better than 21%) on a scale assessing perceptual reasoning. The latter is said to be indicative of him having difficulty understanding and weighing up the consequences of his actions, resulting in impulsivity and lack of forethought. He was found to struggle with more complex cognitive tasks such as analysing and comprehending information on the basis of him being in the borderline range on the working memory scale (above 4%). He was also in the borderline range (better than 8%) on a scale measuring processing speed.

34. Overall, RC presented with intellectual capacities that fall within the borderline range. He performed better than 3% of his normative age group. This was said to be indicative of impaired overall skill level such that RC is a man of limited cognitive resources. I consider this to be a particularly significant aspect of his subjective case. To a modest degree it reduces his moral culpability in respect of the offences. General deterrence is of less significance than it otherwise would be; but the need for personal deterrence is a countervailing consideration.

35. Ms Nasr recommended that RC access substance use intervention and said that he requires skills and support to address at least harm minimisation as he continues to exhibit an ambivalent attitude at working towards abstinence.

Other matters relevant to the assessment of RC’s sentence

Seriousness of the offence

36. I accept that RC played a lesser role in the commission of the offences than any of the other participants. He was present during the planning and present during the commission of the offences but did not play any actual physical role. His liability is as a participant in the joint criminal enterprise with the three other men. It is not insignificant, however, that he had known the principal participant, Anthony Dent, for quite some time. He knew him to be a criminal who had served time for two murders. The Crown Prosecutor conceded that there was an element of duress involved having regard to the dominance of Dent.

37. Despite his lesser role it remains that RC’s offence of manslaughter is quite serious. Mr O'Grady was tricked into going to Wickham Park where it was intended that he would be robbed of a significant sum of money. He received a brutal beating at the hands of one of the participants who the others knew had a propensity for violence. He was then gagged, bound and left for dead. Whilst the robbery was clearly the subject of planning, I accept the submission of RC’s counsel, Mr Rosser QC, that the violence went beyond anyone's expectation (aside, perhaps, from Dent).

Threats of retribution by Anthony Dent

38. I have already referred to Mr Dent's threat to eliminate witnesses (i.e. his co-participants in the joint criminal enterprise) which prompted RC to immediately flee, ultimately to Queensland. I have also mentioned that when he was returned to New South Wales he lied to police in his first interview on 9 October 2014 out of fear of Dent.

38. RC gave evidence (which was not challenged) that he spent some time on remand at Long Bay. At first he was in the mainstream population of inmates but Dent came to his yard one day and struck him from behind, calling him "a dog". The ensuing fight, in which Dent was getting the better of him, was broken up by correctional officers. Thereafter RC went into a form of protective custody but still received threats by others; he said "they told me, like, 'You're going to cop it in the yard tomorrow when you come out and – 'cause of Tony – dogging Tony up and that'". He remained in his cell for the next three weeks and was then transferred to another gaol.

39. Mr Dent assaulted RC (and JM) when they were all in the dock on the morning of Monday 1 February 2016. Each of them had been arraigned and entered pleas of not guilty. The matter immediately proceeded to the hearing of legal argument on a point not presently relevant. It was soon interrupted by Dent delivering heavy blows towards JM. Some four or five blows made contact before JM tumbled down the steep flight of stairs leading to the cell complex. Dent then turned his attention to RC, delivering five or six heavy punches to the top of his head while saying, "Fuck off. If I see you again you fat dog I'll kill both of you". Order was restored and Dent was removed by custodial officers.

40. I was then informed by the Crown Prosecutor that counsel for both RC and JM had made approaches to her that morning in relation to the prospect of them pleading guilty to lesser charges. I was later informed that the proposal had included that each were prepared to give evidence against Dent. (I have separately expressed my concern that the Court was given no prior warning of a potential security issue.)

Pleas of guilty and assistance

42. RC’s pleas of guilty on 2 February followed his pleas of not guilty to the more serious charges the previous day. I was informed that there had been some tentative inquiries made of the Crown for some time as to the prospect of pleas being accepted to lesser charges. It is, however, the utilitarian benefit flowing from a plea of guilty that informs the level of discount that a person should receive on sentence. In my view, RC’s sentences should be reduced by 10 per cent.

43. RC has undertaken to give evidence in the trial of Dent. Jeffrey Schott is presently a prosecution witness and I was told that the authorities would consider whether he should be charged after Dent's trial has concluded. RC also undertook to give evidence in any trial concerning Schott. In both cases he said he would do so in accordance with the version he gave in his interview with police of 4 November 2014 which the Crown Prosecutor described as perhaps the most truthful of any account given by the various participants in the enterprise.

44. The evidence of RC will be significantly useful in the prosecution of Mr Dent and will also be if Mr Schott is to be prosecuted. Providing such assistance puts RC at risk, not only whilst he is in custody but he will likely need to take care for his safety after his release. The assault by Dent last week is indicative of that.

45. RC indicated at the conclusion of his interview of 4 November 2014 that he was prepared to give that version in evidence. I do not know what happened after that; all I know is that the offer to assist was renewed last Monday morning. There has been no suggestion of RC having already gained some benefit for providing assistance. There is no suggestion of him suffering harsher custodial conditions as a result; he is in a form of protective custody but the conditions do not seem to be much, if at all, different to those experienced by the general inmate population.

46. For his undertaking to assist authorities by giving evidence in future proceedings I will reduce the sentences to be imposed by 30 per cent. In making this assessment I have been mindful of the need to ensure that the ultimate sentence is not disproportionate to the nature and circumstances of the offences.

47. Combining these, the sentences to be imposed will be reduced by about 40 per cent (there will be some rounding for practical purposes).

Other subjective matters

48. I accept that RC is remorseful for his offending conduct. His willingness to tell police the truth was evident from the day after his first, concededly untruthful, interview of 9 October 2014. He told detectives the following day that he wanted to tell the truth and it was only because of logistical and operational difficulties that he could not be further interviewed until 4 November 2014. He expressed his regret for what occurred in the course of his evidence in the sentencing hearing last Friday. He might not be the most articulate of men but I get the distinct impression that he is trying to do what is right to make up for his wrongdoing, even though it entails significant risk to his wellbeing.

49. Mr Rosser submitted that his client had "some prospects" of rehabilitation and I think that is the highest it can be put. He said in his evidence that he has been undertaking literacy courses in gaol and aspires to attain a Year 10 level of education. Hopefully he will make some gains in those respects but he really needs to give serious attention to dealing with his entrenched drug problem and the acquisition of some vocational skills; his prospects of not re-offending are significantly dependent upon him doing so. However, I think it is fair to say that his prospects of re-offending in a fashion similar to the index offences are minimal given the absence of anything so serious in his past and also that these offences were committed largely because of RC’s short-lived association with Anthony Dent.

Other matters relevant to sentence for RC

50. It was common ground that the criminality involved in the robbery offence was subsumed within that in the manslaughter offence and for this reason the sentences should be ordered to be served concurrently. I accept that to be correct.

51. The sentence for the offence of robbery in company will be less than the non-parole period specified for the offence of manslaughter. For this reason there is no utility in setting a non-parole period for the former.

52. It was also common ground that RC has been in custody bail refused since 9 October 2014 and his sentences should be backdated accordingly.

53. No submission was made that I should find special circumstances justifying enlargement of the parole period of the sentence at the expense of the non-parole period but I have considered the issue nonetheless. In the end I have concluded that RC’s prospects of rehabilitation are insufficiently promising to think that he would benefit from a longer period of parole supervision.

Personal circumstances of JM

54. JM was almost 18 years of age at the time of the offence. His father lives in Mayfield and his mother in Melbourne. He is close to his father. His parents separated when he was 18 months old and he lived with his paternal grandparents until he was aged 8 or 9. He was diagnosed with type 1 diabetes at age five. His grandmother did not look after him well. He nearly drowned in a swimming pool at the age of 9 and, after a stay in Westmead Children's Hospital he was placed in foster care. He was a ward of the State from that time because his father was not considered suitable to care for him.

55. JM's father told Dr Mary Jurek, psychiatrist, that JM's mother used illicit substances during the pregnancy and used to hit her belly against door jams, possibly to cause an abortion. Dr Jurek said that this may have caused intrauterine damage and the development of Foetal Alcohol Spectrum Disorder.

56. He experienced many hospital admissions during his teenage years as a result of hyper and hypo glycaemia, including whilst he has been in gaol. He has had seizures and fallen over but has not had any investigations or tests for brain function or acquired brain injury.

57. JM told Dr Jurek that in one of his various foster home placements he was given a shot of heroin and raped by his carer. In another placement he was sexually abused by two male adults. He reported this abuse to his father, police and a foster care service provider but he was not believed.

58. He started using drugs from the age of 13 and has a preference for ice because it helps him to forget. He said he was coming off ice at the time of the robbery of Mr O'Grady.

59. JM told Dr Jurek that his education ceased in Year 6. He was bullied at school because he often came in dirty clothes and without any food. He had been diagnosed with ADHD and was prescribed Ritalin from the age of 6. He also had a learning disability. He ceased using Ritalin when he left school. In recent years he has had ambitions to become a motor mechanic; he attended a TAFE program for about a month. He also wanted to complete his secondary education at TAFE. Prior to going into custody he was receiving a disability support pension because of his learning disability and his diabetes.

60. JM was homeless in the months preceding the offence. He had been living with his stepmother but she evicted him after an argument. He went to stay with his father who he claimed was an alcoholic and he was asked to leave the boarding house after a physical fight. It was in the context of being homeless that he was introduced to Jeffrey Schott who knew Mr O'Grady as well as Anthony Dent. He told Dr Jurek that he was bashed by the latter (but no further detail appears in the doctor's report).

61. JM gave an account to Dr Jurek about the formation of the plan to rob Mr O'Grady that was consistent with what he had told police but there is the additional detail that Dent had a knife and threatened JM with it when he expressed reluctance about the plan. His account of the robbery and its aftermath was also broadly consistent with his earlier accounts.

62. JM reported that he had dreams and "flashbacks" about the assault of Mr O'Grady who he regarded as his friend. He told Dr Jurek that he copes with the memories by using heroin and buprenorphine in gaol. He uses dirty needles and is at risk of Hepatitis C and HIV. He also said he hears voices telling him to kill himself but these stopped after he was placed on Seroquel 18 months ago.

63. There have been suicide attempts on many occasions and JM has been admitted to psychiatric units as a child and young person. Dr Jurek noted scars on his left forearm and wrist from self-harming. He told her that he does not want to live any more. He swallowed six razor blades in early 2015.

64. JM told Dr Jurek that he suffers from depression and mood instability. He described being chronically depressed except when he is on drugs.

65. JM has an insignificant criminal history in that there have been only six driving offences for each of which no penalty was imposed.

66. In the "mental state examination" part of her report, Dr Jurek included that JM has a facial appearance suggestive of Foetal Alcohol Spectrum Disorder. He was not deeply depressed in mood and was not actively suicidal. He impressed as being a poorly educated young man in the low average to borderline range of intelligence. No formal testing was carried out.

67. Dr Jurek made the following diagnoses:

1   Neuro-developmental Disorders: Attention Deficit Hyperactivity Disorder and Learning Disability.

2   Type 1 Diabetes – poorly controlled with frequent hypo and hyper glycaemic episodes.

3   Chronic substance abuse – cannabis, heroin and methamphetamine – possible drug induced psychosis in the past.

4   Seizures – possibly due to epilepsy or secondary to diabetes or other cerebral insults. Investigations are required.

5   Personality Disorder – Cluster B – borderline / antisocial traits. Chronic self harm behaviours and suicide attempts.

6   Chronic depression / dysthymia – possibly related to complex psychosocial problems.

7   Some features of Post-Traumatic Stress Disorder.

8   Possible Acquired Brain Injury due to near drowning, poorly controlled diabetes, seizures and chronic substance abuse.

68. Dr Jurek considered that JM exhibited poor self-esteem, self-confidence and self-assertiveness. She said that having chronic medical problems as a young person would also contribute to his low self-esteem and put him at risk of being manipulated by others.

Other matters relevant to the assessment of JM's sentence

Seriousness of the offence

69. JM played a key role in setting up the robbery. Overall, it was a serious robbery in that it was committed by four men in company, albeit with only one playing a direct active role. There was clearly planning involved with the luring of the victim to the isolated location where it was to be carried out.

70. As between the various participants, Dent was obviously the dominant one. I have no doubt that JM was acting under a level of duress (as the Crown conceded) having regard to the physical size of Dent as compared to JM; what JM understood about Dent's violent past; the threats that Dent made to JM; and the assessment by Dr Jurek that JM was prone to manipulation by others. There was no challenge to his evidence that he reluctantly became involved and that he had an understanding that it would not involve Mr O'Grady being physically hurt. His moral culpability is reduced for these reasons.

Fear of Anthony Dent

71. Whilst JM had not been assaulted by Anthony Dent prior to the incident in the dock last Monday (as to which see above at [40]), he gave evidence that Dent told him that day "that if I was to testify against him he will kill me".

72. JM has been held in a form of protective custody. He said that this was "partly because of Mr Dent and a few assaults in the main population". No evidence was adduced as to whether this involved JM experiencing harsher custodial conditions than usual. I accept, however, that there will be concern about his personal safety both in custody and following his release.

Pleas of guilty and assistance

73. Like RC, JM pleaded guilty last Tuesday following his pleas of not guilty to murder and robbery in company inflicting grievous bodily harm the day before. If sentences of imprisonment were to be imposed in JM's case, they would be reduced by 10 per cent.

74. When giving his evidence last Friday he gave an undertaking to give evidence in the trial of Dent and, if necessary, in any trial of Schott. My reasoning in relation to RC on this topic applies equally in the case of JM. If sentences of imprisonment were to be imposed, they would be reduced by 30 per cent because of his undertaking to assist authorities in the future.

75. Accordingly, there would have been a combined reduction of 40 per cent.

Other subjective matters

76. The sentence to be imposed upon JM must be mitigated on account of his lack of a significant criminal history. In that respect he could also be regarded as a person of prior good character but this is diluted by the fact of his longstanding use of illicit drugs and the fact that he told Dr Jurek that when he was homeless he "used to rob people to survive".

77. Although he did not say so in terms when giving evidence, I get a sense from all of the material before me that JM is remorseful for what occurred. It is clear that he regarded Mr O'Grady as his "good friend" and he expressed gratitude for the assistance he had received from him in the context of JM being homeless. He said he felt relieved when Dent told him later on the night of the offence that Mr O'Grady had "gone"; JM thought that this meant he had not been seriously hurt and had managed to leave the park. He told Dr Jurek, however, that when he found out the next day from news reports that a body had been found "he cried because he knew it was his mate". Like RC, it seems to me that, despite the risk, JM is trying to do what is right to make up for his wrongdoing.

78. The fact that JM was a juvenile at the time of the offence is significant, even if he was only a matter of weeks short of turning 18. This, considered in combination with his terrible background, his limited mental capacity and, in that context his surprisingly clear criminal record, calls for an assessment of sentence that reflects a considerable degree of leniency. That said, having regard to the objective seriousness of the offence I am satisfied that it is appropriate to deal with the matter according to law rather than in the manner provided for dealing with sentencing in the Children's Court. (It was not contended otherwise.)

79. I am satisfied that, on balance, JM has reasonable prospects of rehabilitation and that there is a reasonable possibility of him not re-offending. I do not see his prospects in these respects as "good" only because of his entrenched drug use which has continued even since he has been in gaol. Further, there is the observation of Dr Jurek that he is prone to the manipulation of others. In these circumstances there would ordinarily be a real need for JM to receive the benefit of parole supervision for a lengthy period of time. The Crown conceded that a finding of special circumstances was open to be made.

80. The car stealing charge represents additional criminality over and above the robbery but to such a modest degree that I would not order any accumulation of sentences.

81. JM was in custody for some 5 months before being released on bail but returned to custody for some unknown reason. The Crown indicated that to reflect the total period of pre-sentence custody the sentence should date from 11 June 2014. I have had regard to the correct dates apparent from JusticeLink as to periods in which JM has been in custody and have determined that any sentence of imprisonment would date from 31 May 2014.

Conclusion as to the sentence to be imposed upon JM

82. If there was no reduction of sentence on account of JM's plea of guilty and future assistance to authorities I would have imposed a sentence of 3 years for the robbery in company and 6 months for the stealing of the motor vehicle. However, reducing the individual sentences by 40 per cent and refraining from finding special circumstances because it would have no utility would result in a sentence that would have seen JM entitled to release on parole as at 29 September 2015 and the overall term expiring on 29 February 2016.

83. I have mentioned that there is a significant interest in JM being supervised by Community Corrections following his release. The interest is not only JM's but it is likely for the benefit of the community as well. A potential period of parole supervision of 3 weeks is wholly inadequate. I have resolved to take into account the fact that he has been in custody over 1 year 8 months and to adopt a less punitive sentencing outcome by ordering that he enter into good behaviour bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It will be a condition that he accepts the supervision of Community Corrections and also that he comply with his undertaking to give evidence. (I am imposing the latter because it provides for an expeditious manner of dealing with a failure to comply than proceedings under s 5DA of the Criminal Appeal Act 1912 (NSW) yet preserves an opportunity to appeal pursuant to s 5(1)(c) of that Act).

Sentence

RC

For each offence, convicted.

Robbery in company: sentenced to imprisonment for a fixed term of 3 years commencing 9 October 2014 and concluding 8 October 2017.

Manslaughter: sentenced to imprisonment comprising a non-parole period of 3 years 7 months with a balance of the term of the sentence of 1 year 3 months. The sentence is to date from 9 October 2014. The non-parole period will expire on 8 May 2018 at which time RC will become eligible for release on parole. The total term will expire on 8 August 2019.

(Without the reduction of sentence for the pleas of guilty and assistance, the sentence for robbery in company would have been 5 years and the sentence for manslaughter would have been 8 years.)

JM

For each offence, convicted.

For each offence, ordered to enter into a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a period of 6 months subject to the conditions that the offender:

(i) be of good behaviour;

(ii) appear before the court if called on to do so at any time during the term of the bond;

(iii) accept the supervision of Community Corrections and obey all reasonable directions given by its officers;

(iv) attend at the Newcastle office of Community Corrections at Level 2, 7-9 Kelton Street, Cardiff NSW 2285 within 7 days;

(v) comply with the undertakings made when giving evidence on 5 February 2016 (refer transcript pp. 25 and 30-31); and

(vi) notify the Registrar of the court of any change of residential address during the term of the bond.

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Decision last updated: 19 February 2016