R v Scott (No 6)

[2015] NSWSC 678

Supreme Court

New South Wales

Medium Neutral Citation:	R v Scott (No 6) [2015] NSWSC 678
Hearing dates:	29 May 2015
Date of orders:	29 May 2015
Decision date:	29 May 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Sentenced to a term of imprisonment of: A non parole period of 18 years to date from 6 April 2013 and expire on 5 April 2031; An overall term of imprisonment of 24 years to expire on 5 April 2037.
Catchwords:	CRIMINAL LAW – sentence – murder - verdict of guilty at trial – fact finding implicit in jury’s verdict - use of a knife - reliance on excessive self-defence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Isaacs (1997) 41 NSWLR 374
Category:	Principal judgment
Parties:	Regina Michael Scott
Representation:	Counsel: Mr. J. Bowers as Crown Prosecutor Mr. W. Flynn (Offender) Solicitors: Solicitor for Public Prosecutions Archbold Legal (Offender)
File Number(s):	2013/104881

Judgment

1. Michael Vincent Scott (the offender) was arraigned on 10 March 2015 upon an indictment which charged him with the murder of Riley Dehn, on 5 April 2013, at Cessnock in this State. He entered a plea of not guilty. A jury was empanelled and his trial commenced.

2. On 30 March 2015 the offender was re-arraigned before the jury at his own request. He pleaded as follows:

I plead not guilty to murder, but guilty to manslaughter based on the grounds of self defence.

3. The plea to the alternative charge of manslaughter was not accepted by the Crown in discharge of the indictment, and the trial continued.

4. The jury was sent out on verdict on the afternoon of 7 April 2015. A verdict of guilty to murder was returned on 10 April 2015.

5. Section 19A of the Crimes Act1900 provides a maximum penalty of life imprisonment for murder. The Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 fixes a standard non-parole period of 20 years. These are the statutory guideposts that the Court must take into account, along with the other facts and circumstances relevant to the assessment of sentence.

6. Under s 61(1) of the Crimes (Sentencing Procedure) Act1999 the Court is to sentence an offender convicted of murder to life imprisonment if:

“… the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

7. The Crown does not submit such a finding should be made and s 61 has no application in this matter.

The Facts of the Offence

8. The jury having returned a verdict of guilty, it is for this Court to find the facts proven on the evidence, consistent with the jury’s verdict: R v Isaacs (1997) 41 NSWLR 374.

9. As is to be expected of the observations of those watching or involved in a dramatic and fast moving event, and particularly when the witnesses are intoxicated and the event occurs in a darkened location at night, the evidence given by those who were present during the incident in which the deceased was stabbed differed in some regards. Where there is a material difference in the accounts of witnesses, I have generally preferred the evidence of Leina Uaongo to that of others. Ms. Uaongo, alone of the witnesses to the incident, had not been drinking heavily, and was not intoxicated. With one exception – relating to her recollection of the offender as having a stick in his possession when she first saw him – I regarded her as a reliable witness whose evidence was credible, and who could be accepted beyond reasonable doubt.

10. Although the offender gave the police an account of the incident in his interview with them on 6 April 2013, I do not accept his account as truthful, except insofar as there exists reliable independent evidence capable of supporting his assertions. As a general statement, I regard the offender’s account to police as having been fabricated for self-serving purposes.

11. The Court finds the facts established by the evidence to be these.

12. On the evening of Thursday, 4 April 2013, Riley Dehn was one of a number of young friends who had met up at the Cessnock Hotel in Cessnock for a drink, and to enjoy the karaoke that was typically held there on Thursday nights. Others of his friends and acquaintances present that night included Jake Burrage, Aiden Bowen-Duff, Charmaine Allen, Leina Uaongo, Brodie Jobson and Connor Young.

13. Mr. Dehn spent the evening chatting with friends and hotel staff over drinks, and playing pool. He was observed by friends to be in a happy mood.

14. Also present at the hotel that evening was Hayley Orchard and her friend Melanie O’Neil. Hayley Orchard was at that time involved in a relationship with the offender, although the relationship was troubled, and in its final days. The two had been staying with friends at a unit in Hunter Avenue at Cessnock, but the offender had been frequently absent from the unit, without telling Ms. Orchard where he was and without answering her telephone calls and messages. Such was the position on this evening, and Hayley Orchard was angry and upset with the offender.

15. Throughout the evening Ms. Orchard telephoned and sent text messages to the offender, querying his whereabouts. Her mood was agitated, as she suspected the offender of seeing another woman. Ms. Orchard became increasingly drunk, and increasingly loud as the evening wore on.

16. After shouting at and abusing hotel staff, Ms. Orchard and her friend were asked to leave by security officials. She argued with them, but did leave the hotel, it then being shortly before closing time at 2.30am on 5 April 2013. Having left, Ms. Orchard and her friend sat at a picnic table in a small park adjacent to the hotel, on its western side.

17. Sitting at the table Ms. Orchard continued her attempts to reach the offender by telephone. She had a bottle of alcohol she had stolen earlier in the day, and was drinking from it. She was very intoxicated.

18. At around that time the offender was at an address in Northcote Street at Aberdare with a young woman he had just began a relationship with, Kayla Houston. He and Ms. Houston played a game on the offender’s mobile telephone during the course of the evening and, in that context, Ms. Houston saw and read a number of text messages sent from Ms. Orchard to the offender’s telephone. They were each framed in aggressive and offensive terms and, amongst other things, demanded that the offender come to the Cessnock Hotel.

19. Ms. Orchard also telephoned the offender repeatedly and managed to speak with him on at least one occasion. In that conversation, Ms. Orchard complained of having been ejected from the hotel, and told the offender that a security guard had referred to him as “a weak cunt”. She told the offender to come to the park and pick her up.

20. The offender left Ms. Houston’s home and went to Cessnock, evidently on foot. At around the time that the hotel was closing and patrons began to leave, the offender walked down Wollombi Road towards the park where Ms. Orchard sat. The offender had in his possession his wallet, mobile telephone, house keys, a torch, and a tool variously referred to in the evidence as a “Leatherman” and a “multi-tool”.

21. Also walking toward the park, although from the opposite direction, was Mr. Dehn, who had just left the hotel from its rear exit with Mr. Jobson, Ms. Uaongo, and other friends. Some of the group, including the deceased, were intending to walk to West Cessnock and stay at Mr. Jobson’s home for what remained of the night.

22. Of the group, only Leina Uaongo was not intoxicated. She had consumed three mixed drinks of whiskey and cola between 10pm on 4 April and 2.30 the following morning. Her companions had all been drinking for longer and more heavily. The deceased, from whom a blood sample was later taken, had a blood alcohol reading of 0.174 grams per 100 mililitres, a reading which – to put it in some familiar context - is significantly above the high range prescribed concentration of alcohol. There was also present in his blood an amount of methylamphetamine of less than 0.05 miligrams per litre, and evidence of the consumption of both prescription medication and cannabis.

23. The group of friends walked out of the back exit of the hotel and across to the park in which Ms. Orchard had been sitting, taking a small bridge that ran over a storm water drain to cross onto Wollombi Road. During that short walk Hayley Orchard was yelling abuse towards the group, but the deceased and his friends largely ignored her. They continued walking, crossing Allandale Road and walking a short distance along Wollombi Road.

24. Located on the corner of Allandale and Wollombi Roads is the Cessnock Public Swimming Pool. The entrance to the pool complex is in Allandale Road; on the corner extending down Wollombi Road is a small car park for the use of pool visitors.

25. As the friends reached the footpath on the corner Hayley Orchard and Melanie O’Neil came up behind them. Hayley Orchard was still yelling abusively, directing some of her comments to Connor Young. The offender was with Ms. Orchard.

26. Connor Young made a comment back to Ms. Orchard, and the offender immediately responded, accusing Mr. Young of saying something to his “missus”. An argument developed between the two, with Mr. Young calling the offender a “fuckwit” and telling him to go home, whilst the offender yelled at Mr. Young, calling him “a little cunt” and challenging him to “have a go”.

27. As the offender told Connor Young that he was going to “hit” and “get” Young, Hayley Orchard fed the flames, yelling “this little cunt is gunna get it” and like statements. Although Mr. Young had at first told the offender to “get over it”, he soon became agitated himself, and accepted the offender’s challenge, saying to him, “you want to do this, you want to go”. The offender’s response was “Let’s do this, let’s do this right now”.

28. The men moved into the car park adjacent to the swimming pool. Each tore his shirt and cap off, and raised his fists. The offender shouted, “You want to go you little cunt, I’ll cave your head in”; Connor Young responded in similar vein. Hayley Orchard continued to yell aggressively, demanding of the offender, “Hit the putrid cunt, flog him. This cunt deserves everything he gets”.

29. As the two protagonists paced around each other in a circular movement, the offender struck out at Connor Young, landing a blow to his face that knocked Mr. Young to the ground. Mr. Young got immediately to his feet and moved to hit the offender, but the offender managed to land another blow, again knocking Connor Young to the ground, at a location close to a pair of black metal gates leading into the pool grounds.

30. Ms. Uaongo, who was standing close to the pair, saw the offender raise his leg in a motion that suggested he was about to kick Connor Young as he lay on his back on the ground. Seeing this, Ms. Uaongo immediately pushed the offender back against the gates and grasped him in what she described in her evidence as “like a bear hug”. The gates moved slightly inwards under the pressure of the movement of Ms. Uaongo and the offender.

31. Ms. Uaongo managed to hold the offender for a couple of minutes, despite his constant attempts to break free from her grip, and despite being kicked by both the offender in front of her and Mr. Young on the ground behind her, as each man tried to kick the other. Ms. Uaongo let the offender go only when he dropped his mouth to her shoulder in an attempt to bite her.

32. Charmaine Allen had come towards the three and taken hold of Ms. Uaongo in an attempt to pull her away from the fight. As Ms. Uaongo released her hold on the offender she saw him reach into his pants pocket and pull out something that she thought looked like a pocket knife. He flicked the implement in a fast moving downward motion, as if flicking a blade out.

33. Ms. Uaongo recognised the implement as similar to a device she had once had when a cadet with the army. She described it as a device which had a number of tools in one, including a screwdriver and a knife.

34. Ms. Uaongo stepped back as she saw the offender raise his arm, apparently to hit her. At that moment, to assist his friends Mr. Dehn moved quickly towards the group and moved to hit the offender. The offender was already in motion, with his arm swinging upwards in Ms. Uaongo’s direction. As the deceased struck out with his fist towards the offender, the offender completed the upward movement of his arm, striking Mr. Dehn, with the implement in his hand. The blade portion of the tool was extended, with the other tools enclosed in the offender’s hand. Ms. Uaongo saw the offender slash Mr. Dehn’s arm with the blade.

35. She next saw Mr. Dehn hit the offender, and the offender hit Mr. Dehn for a second time.

36. Although neither Ms. Uaongo nor any of the other people in the car park at this moment saw the blade in the offender’s hand as this second blow was struck, consistent with the verdict of the jury I have concluded that the offender in fact had the blade in his hand at this time. As he struck out at Mr. Dehn for a second time, his intention was to do him grievous bodily harm.

37. It is likely that Mr. Dehn did not immediately notice that he had been stabbed by that blow. The fight continued for what may have been as much as a few minutes, with the younger Mr. Dehn quickly getting the better of the offender. As the pair moved away from the metal fence in the direction of a low wooden fence towards the rear of the car park, Mr. Dehn landed as many as twenty blows on the offender, eventually taking hold of him by the throat and forcing him back against the low fence.

38. Connor Young was yelling to Mr. Dehn to stop, and he ran to him and grabbed his friend, preventing Mr. Dehn from striking the offender again. Mr. Dehn released the offender. The offender got up from the fence holding his throat. Mr. Dehn said, “I’ve got your back” to Connor Young.

39. The offender got his telephone from his pocket and made a call. Ms. Uaongo heard him say “I want my boys down here now […] this is going down”. He then walked away towards the road telling Hayley Orchard “We’ll be back”. Ms. Orchard, still calling abuse to Connor Young, followed him.

40. Jake Burrage was standing nearby berating Connor Young for starting a fight, telling him that the offender, whom he referred to by the nickname of “Cycle”, was related to him. Ms. Orchard walked towards Mr. Burrage and punched him in the face, abusing him as she struck him. She then hit him across the head with the liquor bottle from which she had been drinking. (Ms. Orchard was charged over this assault and later sentenced before the Local Court.)

41. As Leina Uaongo moved towards Jake Burrage to see if he was alright, she heard Riley Dehn call out as if in pain. When she turned to look at him, she saw him holding each arm with the other hand, as if bracing his arms. He then ran off in the direction of the nearby police station. He was yelling “I need to get help, I need to get help”.

42. The offender was moving in the opposite direction, calling back “You’re gunna get it” to Connor Young. Soon after, a car travelling along Wollombi Road pulled in to the kerb, and the offender and Hayley Orchard got into the car. The car drove around and came past Connor Young. Hayley Orchard screamed abuse at Connor Young, and then threw a bottle at him, which missed its target. The car drove away.

43. Riley Dehn had run on towards the police station on Wollombi Road at Cessnock, obviously intending to get assistance there. Sadly, he collapsed just before reaching the police station, and sank to the footpath. A passing motorist stopped to help him, and a crowd quickly gathered. Melanie O’Neil ran to the police station for aid, and officers came to Mr. Dehn and commenced CPR on him. An ambulance was summonsed.

44. All efforts to save Mr. Dehn were futile, and life was pronounced extinct at 3.23am on 5 April 2013.

45. Later on 5 April 2013 Dr. Brian Beer of the Newcastle Department of Forensic Medicine conducted an autopsy on the body of Riley Dehn. Dr. Beer determined the cause of death to be a single stab wound to the central chest, at the level of the sternum, which was transected. The wound, which was between 70 – 80 millimetres long, had passed completely through the heart and caused significant bleeding in and around the heart and into the cavity surrounding the left lung.

46. There was also a small superficial incised wound to the left side of the body, adjacent to the fatal wound. An incised wound was defined by Dr. Beer as one which is longer than it is deep. The doctor interpreted the two wounds to the knife having “gone in as a stab and come out as an incised wound”. He considered the heart wound as being consistent with one inflicted by a small pen knife or flick knife.

47. Almost two litres of blood, that being about a third of the body’s blood, had flowed into the left pleural cavity and the pericardial cavity, and it was the wound to the heart coupled with the significant blood loss that led quickly to death.

48. Dr. Beer additionally saw “through and through” wounds to the left forearm, midway between the wrist and the elbow. He regarded these injuries as consistent with the implement that caused the wounds entering the skin of the forearm on one side and coming out on the other side. The entrance wound was 36 - 39 x 11 millimetres, with the exit wound being 12 - 13 x 4 millimetres in size. Dr. Beer regarded these wounds as “classic defence type wounds”.

49. Some minor facial abrasions were noted.

50. The injuries observed at autopsy by Dr. Beer are consistent with having been inflicted by the offender using the blade of a multi-tool. The through and through wound to the left arm is the first of the injuries inflicted by the offender, in the upwards thrust Ms. Uaongo saw the offender make with the multi-tool blade in his hand. The second blow with the blade of the multi-tool was that which caused both the fatal chest wound and the incised wound. The facial lacerations are attributable to the fist blows to the face in the course of the fight that followed.

51. Dr. Beer opined that a fit young man such as the deceased could sustain a wound of the nature inflicted upon Mr. Dehn, and keep moving for some considerable distance and period of time until, ultimately, so much blood had flowed into the pericardial sack that the heart could no longer pump, and it stopped.

Events After the Stabbing

52. Having gotten into the car that stopped to pick him and Ms. Orchard up, the offender asked the driver to take him to Hunter Avenue at Cessnock. The offender must have picked up the shirt that he had torn off before the fight with Connor Young before leaving the swimming pool car park, but he abandoned it in Hunter Avenue, on the footpath a short distance from the block of units in which he was staying.

53. The offender went to the unit, and awoke the occupants, Russell Payne and Carole Myles. The offender told Mr. Payne, “I stabbed someone”, and gave him the multi-tool, asking him to wash it. Mr. Payne did as he was asked and washed the blade, which was some seven or eight centimetres in length, in the kitchen sink. Soon after the offender told Mr. Payne to take the knife and get rid of it. Mr. Payne thereafter took the knife out of the unit and went to some garbage bins located in the unit block’s utility area. He dropped the tool into a garbage bin.

54. On returning to the unit Mr. Payne told the offender he had put the knife in a bin. The offender told him that this was too close to the units, and directed him to go and get the knife, and take it further away from the unit block. Mr. Payne retrieved the knife and eventually disposed of it in a storm water drain adjacent to the showground at Cessnock.

55. For what remained of that night and over the following day the offender evaded police.

56. There followed a number of actions by the offender which were intended by him to interfere with evidence of his crime. At his behest, Kayla Houston recovered the multi-tool from the storm water drain and, with the apparent assistance of another friend of the offender, disposed of it in such a way that it has never been found.

52. The offender additionally sought to have Melanie O’Neil, Russell Payne and Carole Myers dissuaded from giving evidence of their knowledge of the events, and endeavoured to have Kayla Houston make a false statement to the effect that the offender was unarmed when he left her home in the early hours of 5 April 2013.

53. The offender himself gave the police a false account of events when he was interviewed on 6 April 2013, going so far as to imply that Hayley Orchard may have been responsible for Mr. Dehn’s death.

54. Even during the course of his trial the offender made an apparent attempt to interfere with evidence to be given to the jury, taking the considerable risk of passing a letter to Kalya Houston in the courthouse cells, urging her to “say the right things” in her evidence so that the offender could “beat this trial”.

55. The Crown relied on evidence of the offender’s attempts to interfere with the trial process as consciousness of guilt. It is of relevance in these proceedings only insofar as it is relevant to determining the facts of the offence for which the offender is to be sentenced, consistent with the jury’s verdict. Having regard to this evidence, the jury plainly rejected the offender’s version of events, as it was ultimately given by the plea entered by him on 30 March 2015. The jury doubtless had regard to the offender’s conduct and lies following the stabbing in rejecting the veracity of the version implicit in the plea to manslaughter.

56. The offender’s conduct after the stabbing cannot, in the circumstances that apply here, make the gravity of the murder any greater. In that regard I have set the post-offence conduct entirely aside. The offender may well face charges over some aspects of his conduct, but there are no charges before this Court.

The Self-Defence Issue

62. The offender’s case at trial was, as I apprehend it, that he acted as he did in self-defence. From 30 March 2015, his case was that he acted from a reasonable belief that he had to act in the way that he did to defend himself, although acknowledging that it was not a reasonable response to the situation as he perceived it to be.

63. The offender did not give evidence before the jury, but a recording of his police interview was in evidence as Exhibit AD. In his interview the offender admitted having become involved in an altercation with “a big tall skinny fella” [Connor Young], an “Islander girl” [Ms. Uaongo] and a “few” others, who had, collectively, gotten “stuck into” him. He said that there had been a “wrestle”, after which he had walked away, saying “Mate, I don’t need the trouble”. He claimed to have no knowledge of how a young man had been stabbed that night.

64. Later in the interview he expanded that account, referring to “another young fella” with whom he had had a “wrestle” in the vicinity of the low wooden fence, the young man having approached him when he was standing near the black gates with Ms. Uaongo. He continued to deny any knowledge of a stabbing, or of how such a thing could have occurred.

65. The offender told the police that he did not own a Leatherman or similar tool, unless there was one in his tool box, and he specifically denied being armed with any kind of blade during this incident.

66. The jury plainly rejected that version, as it had to in light of the offender’s plea to manslaughter entered on 30 March 2015.

67. By its verdict, the jury also rejected the assertion inherent in the offender’s plea to manslaughter, that he acted from a belief that it was necessary to take action in his own defence, albeit excessive to what was required.

68. The jury necessarily accepted the evidence of Leina Uaongo and that of other witnesses as to the circumstances in which Mr. Dehn was stabbed. That is, the jury must have accepted that the offender, having become angry at a perceived insult to Hayley Orchard, picked a fight with Connor Young, and assaulted him. At a point when Connor Young was on the ground, having been knocked down for the second time by a blow struck by the offender, and in a position to do no more than kick his legs out in the offender’s direction, the offender pulled the multi-tool from his pocket and, with a deliberate motion, flicked out the blade. He armed himself in this way even though Mr. Young posed no immediate threat to him, and despite Leina Uaongo having quite bravely placed herself between the offender and Mr. Young in an attempt to stop any further violence.

69. Implicit in the jury’s verdict is the conclusion that the offender flicked out the knife at that point, when he was not under attack and had already bested Connor Young, intending to use it. When the deceased approached him, he swung the blade in an upwards motion, causing the wound to Mr. Dehn’s left forearm. He thereafter swung the knife towards Mr. Dehn’s torso and thrust it into his chest with considerable force, sufficient to penetrate bone and the heart muscle.

70. The offender submits that the jury may have concluded that the fatal wound was inflicted later in the course of the altercation, when the offender was being punched repeatedly by Mr. Dehn but, had that been the jury’s conclusion, then it seems to me there must have been a verdict for manslaughter, on the basis of excessive self-defence.

71. In my view, the partial defence of excessive self-defence was available to the offender later in the course of the altercation. It was not so available at the very early point, when Ms. Uaongo saw the offender produce the tool, flick open the blade, and use it to wound Mr. Dehn. For the facts to be consistent with the jury’s verdict, the fatal wound must have been inflicted at that point.

72. Inherent in an act such as that in light of the whole of the evidence is an intention to cause grievous bodily harm to the deceased.

73. Despite the wounds, Mr. Dehn then rapidly got the better of the offender, and there was no further use by the offender of the knife. The fatal blow had already been struck.

The Gravity of the Offence

74. The gravity of the offence of murder, and the reason the legislature has specified a maximum penalty of life imprisonment for it, is in the taking of a human life.

75. There could be no more moving and eloquent demonstration of why the offence of murder carries such a significant maximum penalty than the two victim impact statements received by the Court this morning. Debra Dehn, Riley’s mother, and his grandparents, Ronald and Delma Dehn, have shared with the Court their pain and loss, and the pain and loss of others who have been terribly affected by this crime, including Riley Dehn’s father and his young daughter.

76. That loss, and that pain reflects the loss to the community as a whole of the life of one of its members. That Mr. Dehn was greatly loved, and that those who love him suffered and suffer still, does not make this murder more serious than any other; it is why all murders are viewed so seriously.

77. Beyond that commonality of the loss of life, there are a wide range of circumstances in which the offence of murder may be committed.

78. The task of this court is to determine where on the spectrum that is represented by the range of penalty culminating in life imprisonment this offender’s culpability falls. The assessment of culpability must be made according to the laws of sentencing that bind this Court. There is a complex interrelationship between the principles that govern sentencing, general and personal deterrence, punishment, retribution, the protection of the community and the rehabilitation of the offender. The purposes of these principles overlap and none can be considered in isolation from the others.

79. It must be acknowledged at the outset that to those who loved Riley Dehn the process of assessing the gravity of the crime of his murder must seem both incomprehensible, and even offensive. For Mr. Dehn’s family and friends there could be no worse crime than the murder of their loved one, and yet the lawyers speak of a range, and the Court engages in the exercise of assessing the gravity of the offence.

80. For Mr. Dehn’s family, the principles of sentencing that perhaps most represent their interests in these proceedings are those which seek to make the offender accountable for his crime, to punish him, and to visit retribution upon him. Those considerations are balanced by others however, some of which, such as the need to consider the offender’s rehabilitation, must seem entirely counter-intuitive to Mr. Dean’s loved ones. It is understandable that they might expect to see the depth of their loss, pain, and grief reflected in the sentence imposed. That is unlikely to occur simply because no sentence that this Court can impose could ever truly compensate them for that loss.

81. Acknowledging that the process of assessing the objective gravity of the crime for which the offender is to be sentenced is likely to distress those present to represent their lost loved one, the Court endeavours in this assessment to inform the offender and the public, including Mr. Dehn’s family, of the reasons for the sentence to be imposed.

82. This was a crime committed in the early hours of the morning in a public place when a number of people were in the vicinity.

83. Whilst the Crown case as it was put to the jury included a contention that the offender had gone to the area of the Cessnock Hotel in an angry mood and looking for a fight because of disparaging comments supposedly made by security guards about him and conveyed to him by Hayley Orchard, I cannot draw that conclusion beyond reasonable doubt.

84. It is at least as likely that the offender went to the area of the Hotel for no reason other than to collect Hayley Orchard. It would have represented no great detour in his journey from Aberdare to Hunter Avenue Cessnock to do so and, since Ms. Orchard had repeatedly asked him to collect her, and the offender had not been able to persuade her brother to undertake that role, he may have gone to the location simply to take her home.

85. Ms. Uaongo was clearly in error in identifying the offender as the man with a stick, at the point at which she first saw him, and so I cannot conclude beyond a reasonable doubt that it was the offender whom she was referring to when she described the man with the stick as seemingly angry, agitated, and pacing about before the dispute broke out.

86. After arriving there, however, the offender quickly became angry because of comments that he understood Connor Young to have directed to Ms. Orchard. He involved himself in the aggression of his then partner to the extent of challenging Mr. Young to fight. His willingness to engage in violence in a public street when people were milling about sets the scene for what followed.

87. The offender was armed, but in the circumstances of this case I do not think that his possession of a blade prior to the point at which he withdrew it from his pocket increases the gravity of his crime. A multi-tool is an implement carried by many people for legitimate purposes, and the mere possession of an implement of this nature cannot establish that the offender was going about the streets armed in the way that phrase is ordinarily applied in the criminal law. A multi-tool can be used as a weapon, but equally it can be used for many wholly legitimate purposes. Carrying a multi-tool is not an offence, unlike the act of carrying a cutting implement.

88. Mr. Payne gave evidence that the offender generally carried a Leatherman tool in a brown case that was ordinarily looped onto his belt. Given that the offender was described as someone who frequently rode a pushbike, carrying a tool of this type on his person could be readily attributable to the sort of running repairs cyclists on occasion have to make. I cannot conclude that he carried it for nefarious purposes.

89. The fact that the offender was willing to quickly resort to the use of a knife blade on the tool is, however, a feature which heightens the criminality of this offence in my view. The appellant introduced a weapon into what had been a fist fight, and he showed a ready willingness to use the weapon with lethal force against an unarmed man.

90. The Crown submitted that the Court should not have regard to the use of a knife as an aggravating feature pursuant to s.21A(2) of the Crimes (Sentencing Procedure) Act 1999. Mr. Flynn for the offender made the same submission, but additionally submitted that the use of the knife did not make this particular offence of murder more serious, and the Court was not entitled to have regard to it.

91. Whilst I accept the former submission, I do not agree with the latter submission. Although I do agree that the use of a weapon per se does not necessarily make a murder any worse in terms of its factual seriousness, it seems to me that that is a question to be determined on the facts of an individual case.

92. Here, a knife was introduced into a fist fight, and the offender’s readiness to introduce a weapon does heighten the offender’s moral culpability to a degree in my view. The use of the knife was the means of committing the murder, and to that extent, it cannot make the offence any more serious, but it can and does evidence a readiness to resort to a weapon to solve a grievance that has some relevance to the offender’s moral culpability.

93. The offence was committed spontaneously, with no forethought or planning.

94. Mr. Flynn submitted that this feature of the matter alone must place it below the mid-range of seriousness, but I am aware of no authority to that effect, and do not accept that that is the law. That an offence was committed without any forethought is simply one of the features to be taken into account in assessing the gravity of the offence. Certainly, it is a feature that can indicate that a particular crime may well fall below a notional mid-point, but it is necessary to consider all relevant features before reaching that conclusion.

95. Having spontaneously engaged in a fist fight, the offender was angry and, probably equally spontaneously, he drew out the multi-tool with the intention of producing the blade. He flicked it open immediately, intending to use it, probably upon Connor Young or Leina Uaongo, although I cannot be satisfied of that beyond a reasonable doubt. When Mr. Dehn approached him the offender immediately struck out at him, with the knife in his hand. Having caused the wound to the deceased’s arm, the offender struck a second, forceful blow, towards Mr. Dehn’s torso.

96. The second blow was struck with the intention of causing grievous bodily harm to Mr. Dehn. Whilst a murder committed with the intention of inflicting really serious bodily harm can place the crime within the middle of any notional range of objective gravity, the assessment in this regard also, must be made in light of all the relevant surrounding circumstances.

97. Mr. Flynn submitted that the gravity of the crime was diminished by at least an element of self-defence, albeit not sufficient to constitute a defence or partial defence. However, at the point at which the fatal blow must have been struck, the offender was on the offensive. Self defence cannot, therefore, have a mitigating role in terms of culpability.

98. The offender willingly engaged in a fist fight in a public street where a number of people were present. He quickly resorted to the use of a weapon, which he introduced into a fist fight, and used without hesitation against an unarmed man. He struck two blows towards the deceased, the second of which was propelled by sufficient force to cut through bone, and the heart, a major muscle.

99. Although he was well aware that he had stabbed Mr. Dehn, since he said so soon after to Mr. Payne, the offender did nothing to render aid to Mr. Dehn, or even to check on his condition. Instead, he left the scene, shouting that he would be back. Mr. Flynn contends that there was some threat to the offender and so he may have felt that he could not stop and render aid to Mr. Dehn. That may be so, but the offender had a mobile telephone, and it would have been open to him to telephone an ambulance, even if he did so anonymously and having left the scene. He took no such action.

100. The maximum penalty for any offence is reserved for the worst example of that offence. That is, one that is so objectively heinous that matters personal to the offender leave little or no scope for any amelioration of the penalty to be imposed. This offence does not fall within that category. Necessarily, the penalty will be lower than the maximum available.

101. The Crown has submitted that this offence is one which is at the middle of the range of objective seriousness for an offence of murder. The offender submits that his crime falls below that point.

102. It is not necessary to express a conclusion as to the objective gravity of the offence by reference to a range. Insofar as language of that nature may make the conclusions of the Court clear however, in my view this matter falls at or very slightly below the mid-point of objective gravity.

103. In making that assessment, the court acknowledges that it may well do nothing to address the pain Mr. Dehn’s family and friends have suffered, not just by the death of their loved one, but also through being subjected to what can be the distressing processes of the criminal justice system itself.

104. Mr Dehn’s mother Debra referred in her victim impact statement to the pain of being instantly caught up in that process, even when seeing her son for the last time. She was prevented from holding her child, because his body was said to be evidence. The shock and grief at such an experience must have been overwhelming.

105. Since being informed of the death of a son, grandson, father, and loved one, they have found themselves in an unfamiliar environment that may appear to discount them almost entirely. They have had to deal with their grief from within that environment. The giving of a victim impact statement is some opportunity to tell the Court how Riley Dehn’s death has affected them all.

106. As I said a short time ago, the depth of the pain felt by Riley Dehn’s family and friends is demonstrative of his loss to the community, the significance of that loss being the reason why murder is viewed as our community’s most serious crime. Here, a young man of 21, father to an infant girl, a son, grandson, and friend, has been taken away from his family and the community.

107. This Court must sentence the offender according to law, acting impartially, with objectivity and by the rigorous application of legal principle. However, no-one could fail to be moved by Ms. Dehn’s expression of the impact that this offence has had on the Dehn family, or in hearing of the pain of Mr. and Mrs. Dehn’s loss, and that of their grandson’s father.

The Offender’s Personal Circumstances

108. The offender was born on 13 July 1971 and was 41 years old at the time of the offence. He is now 43 years of age.

109. Mr. Scott has a lengthy criminal history which commenced in October 1987 when he first appeared at Cessnock Children’s Court. He was then aged 16 years. He has been consistently before the courts from that time until this.

110. By far the majority of the offender’s criminal history relates to offences of violence or intimidation. On my calculation from sentence Ex. A, the offender has 22 entries against him for contravening an apprehended domestic violence order (ADVO), such offences often involving violence or the threat of it; 26 entries for assault; thee for assault occasioning actual bodily harm; five for intimidation, and one for intimidation of a police officer; three entries for assaulting police officers in the execution of their duty; and 10 for resisting police in the same circumstances; and one for Aggravated Break Enter and Steal, where the elderly home occupier was assaulted with a weapon.

111. Eight of the offender’s crimes involved the use of a weapon and, on five of those occasions, the weapon was a knife.

112. His record is such as to disentitle him to a measure of leniency that might otherwise have been extended to him.

108. Over the years a range of sentencing options have been utilised by the courts, and there are a number of sentences which have required the offender to participate in rehabilitative programmes, including programmes addressing drug and alcohol use, and those seeking to address his obvious problem with anger management and the use of violence to solve difficulties with others.

109. The offender has been sentenced to imprisonment on more than 25 separate occasions and has seen parole revoked on a number of occasions.

110. That was the case for parole with respect to the offence of aggravated break enter steal from July 1999 where the offender, in company with another, used an implement to inflict injury upon an elderly man, in the course of taking property from that man’s house.

111. Before the Court as part of Ex. B are two documents from the sentence proceedings relevant to that offence. Although each dates from 1999, and the passage of time diminishes their weight to a degree, they do provide some evidence of the depth to which the offender’s problem with violence is ingrained in him.

112. He has continued to behave violently in prison with his custodial history showing many breaches for violent incidents. In the period March 1995 to April 2015, there are something like eight entries for fighting, two for assault, and others for intimidation, abusive behaviour and the like. In September last year, whilst awaiting trial for this matter, the offender was breached for fighting or other combat. Just last month there was a breach for damaging property.

113. Those most recent entries can do nothing to demonstrate any positive basis for finding that there are reasonable prospects for rehabilitation.

114. It is that pattern of violence over many years that has culminated in this offence.

115. Despite the many opportunities the offender has had to rehabilitate himself with the assistance of the parole authorities, he has not taken advantage of them. A report tendered on his behalf today, Ex 1, suggests that the offender has completed rehabilitative courses in custody but, if so, they do not appear to have aided him in breaking free from a recidivist lifestyle. Of course, in circumstances where the offender has given no evidence, untested assertions to another must be treated with a degree of circumspection.

116. The offender has a long standing issue with alcohol abuse, having taken up alcohol use at the age of 13.

117. The offender had a somewhat fractured upbringing, with his parents separating when he was an infant, and he thereafter being raised by his father, grandmother and, later, aunt. The deaths of his aunt and grandmother have been the cause of longstanding grief with the offender telling Dr. Adams that his mood deteriorated following the death of his paternal aunt when he was 12, and his paternal grandmother at the age of 16.

118. Ordinarily, the offender has told Dr. Adams, his mood is “pretty good” and that his emotional state is reasonably stable. He did concede that he had difficulty controlling anger when someone provokes him. He acknowledged his history of engaging in violence. He did not, however, acknowledge engaging in any aggression without some provocation or, at least what he perceived as provocation.

119. The offender told Dr. Adams that his father was an alcoholic who physically abused him until, at 13 years, he began to fight back.

120. He has children, who are now young adults.

121. There is nothing in the report from Dr. Adams, the only evidence in the offender’s case, that establishes that the offender is remorseful for anything other than his own situation. Despite the offender’s plea to manslaughter entered on 30 March this year the offender told Dr. Adams “if I did it it was self defence.” One can take nothing of remorse from that comment.

122. The offender has told Dr. Adams, and the doctor appears to agree, that his current mental health is reasonable.

123. The subjective case for the offender is indeed slight. There is no evidence of any mental health condition which has relevance to either the commission of the offence or to his future prospects and conditions of custody.

124. There is no basis upon which to make any positive assessment of the offender’s prospect of rehabilitation. While such an assessment involves making a prediction of conduct years hence, all of the evidence before the Court would suggest that the offender, having done little to address his offending conduct in the past, may follow a similar pattern. I can make no finding either way with respect to his prospects of rehabilitation.

125. Mr. Flynn submits that the penalty to be imposed upon the offender should be ameliorated to reflect the utilitarian value of the plea of guilty to manslaughter but it was entered at a very late stage, after the most significant evidence had been called, and it seems to me that any utilitarian benefit was negligible. In those circumstances I do not propose to award any discount.

126. Neither the Crown nor Mr. Flynn submit that there is any basis upon which to find that special circumstances exist and that is a sensible approach. There will in any event be a significant period of parole in this case by the simple operation of the ordinary statutory ratio of sentence. Such a period should be sufficient to give Mr Scott such assistance as he requires. Whether he accepts and utilises the advantages that that assistance will give him, will be entirely a matter for him.

127. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a Court may impose sentence on an offender. They are:

(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.

133. I have had regard to each of those purposes, multiple as they are, and in some regards pulling in opposite directions, in fixing the penalty to be imposed on the offender.

Sentence

134. The offender, Michael Vincent Scott, is convicted.

135. He is sentenced to a term of imprisonment comprising a non parole period of 18 years which is to date from 6 April 2013 and expire on 5 April 2031. There is an overall term of imprisonment of 24 years which will expire on 5 April 2037. The offender will be eligible for release to supervised parole upon the expiration of the non parole period on 5 April 2031.

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Decision last updated: 01 June 2015