R v SJB and McLean

[2002] NSWSC 1042

CITATION:	R v SJB and McLean [2002] NSWSC 1042
FILE NUMBER(S):	SC 70016/02; 70206/02
HEARING DATE(S):	27/8/02, 30/9/02, 1/10/02, 23/10/02, 24/10/02
JUDGMENT DATE:	6 November 2002
PARTIES :	Regina SJB Matthew John McLean
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	Mr B. Smith (Crown) Mr B. Haverfield (SJB) Ms C. Lyons (McLean)
SOLICITORS:	S E O'Connor D J Humphreys
CATCHWORDS:	CRIMINAL LAW - Sentence - Murder - pleas of guilty.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act, 1999
CASES CITED:	Cox NSWCCA 30 August 1999 R v Craig NSWSC 14 April 1993 R v D NSWSC 8 April 1995 R v DAR NSWCCA 8 November 1995 R v Davison NSWSC 11 September 1992 Regina v Hearne [2001] NSWCCA 37 R v Kama [2000] NSWCCA 23 R v McCabe NSWCCA 14 October 1991 R v MG NSWCCA 11 December 1996 and 13 July 1998 R v Miles NSWCCA 28 March 1995 R v Moore NSWCCA 21 June 1995 R v Oliver NSWSC 17 December 1992 Regina v Palu [2002] NSWCCA 381 Regina v Pham and Ly (1991) 55 A Crim R 128 R v RL NSWCCA 19 February 1992 R v Sharma [2002] NSWCCA 142 R v Sharpe NSWSC 10 September 1992 Regina v SLD [2002] NSWSC 758 R v Tran [1999] NSWCCA 109
DECISION:	SJB: imprisonment for 15 years, to date from 25 July 2001. Non parole period of 10 years, to date from 25 July 2001, and to expire on 24 July 2011. The earliest date for eligibligibility for release is 24 July 2011. Such of that sentence as shall relate to the period until SJB attains the age of 20 years is to be served in a Detention Centre. The balance of the sentence is to be served within the adult correctional system.; McLean: For the murder of Stephen Tonkiss: sentence of imprisonment for 19 years, to date from 25 July 2001. Non parole period of 13 years, to date from 25 July 2001, and to expire on 24 July 2014, being the earliest date for release on parole.; For take and drive a conveyance: imprisonment for a fixed term of 6 Months, to date from 25 July 2001.

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Wednesday 6 November 2002

70016/02 – Regina v SJB
70206/02 – Regina v Matthew John McLean

Sentence

1 HIS HONOUR: The defendants SJB and Matthew John McLean have each pleaded guilty to the murder of Stephen David Tonkiss. McLean has also pleaded guilty to an offence of take and drive a motor vehicle without Mr Tonkiss’ consent. They now appear for sentence.

History of the Proceedings

2 Each of the defendants is entitled to the benefit of pleading guilty to the charges preferred against them. The matter was first listed, in this Court, in relation to each defendant, on 12 April 2002, on which occasion a trial date was fixed for 22 July 2002. It was then stood over for arraignment on 7 June 2002, on which occasion SJB alone was arraigned and entered a plea of not guilty. The arraignment concerning McLean was stood over to 25 June 2002. On that occasion he offered a plea of not guilty of murder, but guilty of manslaughter; as well as a plea of guilty to a charge of larceny of a motor vehicle. The former plea was not accepted but the latter was.

3 When the matter of SJB was listed before me on 16 July, she entered a plea of guilty to murder. As noted hereafter, it was on the following day that she was formally interviewed, and provided to Police her account of the relevant events. Counsel appearing for McLean indicated this day that he would also offer a plea of guilty to murder. It may be noted that his intention to do so was announced and carried into effect on 17 July, that is, before he knew precisely what it was that SJB would say to Police, (although he understood that she did intend to assist them). On that occasion he was reindicted and his plea of guilty to murder was recorded.

4 In relation to the offence involving Mr Tonkiss’ motor vehicle, he was given leave to withdraw the earlier plea of guilty to larceny, and pleaded instead to take and drive a conveyance without consent. That plea was accepted by the Crown.

5 Thereafter the matter was listed for sentence on 30 September, 1 October and 22 to 24 October, being adjourned on 1 October to allow for psychiatric assessment of SJB.

6 In a number of respects there are significant matters in dispute between the defendants concerning the killing of Stephen Tonkiss, which occurred at about 12.35 pm on Tuesday 24 July 2001. What is not in dispute is that he died following an entirely unprovoked and senseless attack on his person, in the course of which he received multiple knife wounds.

7 It is also not in issue that this attack occurred shortly after he had driven SJB, at her request, to the premises at Seaforth, where McLean was living. While there, McLean and SJB armed themselves with a knife each, in McLean’s case, a silver serrated cutlery knife, and in SJB’s case, a Zangler-Icel brand Knife. McLean collected an additional weapon in the form of a relatively large metal nutcracker. Thus armed, they joined Mr Tonkiss in his Mitsubishi Lancer Sedan, and asked that he drive towards Seaforth shopping centre where McLean was ostensibly to be dropped off.

8 When the vehicle reached Ellery Parade, and while it was still in motion, SJB, who was sitting in the rear seat, leaned over and stabbed Mr Tonkiss in the face. Thereafter the defendants repeatedly stabbed him, inflicting a large number of wounds, mainly to his upper body. While this was occurring, the car which he was driving rolled to a halt, sustaining minor damage when it struck the rear of a parked vehicle.

9 A brief struggle ensued between Mr Tonkiss and McLean, before the former managed to escape from the vehicle. He ran some distance to the nature strip outside number 9 Ellery Parade, Seaforth, where he collapsed. While there he received further knife wounds, which I find were inflicted by each of the defendants, and he was punched and kicked.

10 Eventually the two defendants ceased their attack upon Mr Tonkiss, and lifted his body over a low brick wall into the front yard of the adjoining premises.

11 At that point, after taking his wallet, they drove from the scene in his motor vehicle, stopping at St Ives to purchase petrol. They then drove on to Nelson Bay, where they remained until later that night, before driving on to Newcastle.

12 At about 5.35 am on the morning of 25 July, the victim’s car was seen and stopped by Police at Newcastle. The defendants were each arrested and taken to Newcastle Police Station. The knife used by SJB was found inside the glove box of the vehicle. The knife used by McLean had earlier been found on the nature strip outside 9 Ellery Parade. Each knife was bloodstained. DNA recovered from the knives was of the same profile as the DNA of Stephen Tonkiss.

13 While at the Police Station SJB, on legal advice, declined to be interviewed. McLean participated in an electronically recorded interview (ERISP), in which he admittedly told several lies, including an assertion that Mr Tonkiss had stopped the vehicle while they were going for a drive and had held a knife to him, while feeling SJB’s leg. It was his account that he feared that SJB would be raped, and that the deceased was accidentally stabbed when he struggled with him for the knife. He confirmed this version in a later interview the same day.

14 Ambulance officers who had attended the scene at 12.43 pm found the victim to be in cardiac arrest, and not breathing. His life was pronounced extinct shortly afterwards at Manly Hospital.

15 The post mortem examination conducted by Dr Cala on 25 July 2001, revealed that Mr Tonkiss had received 13 separate stab wounds, the most serious of which were the wounds which he numbered 3 and 4. They were respectively a 25 mm stab wound in the left upper chest, which penetrated the deceased’s lung; and a horizontally aligned stab wound in the left chest entering the chest cavity, carrying on through the upper pericardium and through the pulmonary artery, creating a 15 mm wound deficit in the wall of the ascending aorta. The remaining stab wounds which were noted comprised a wound on the left cheek (wound 1), a wound to the right side of the lower neck, penetrating the subcutaneous tissue for a depth of 50 mm (wound 2), a wound in the left anterior shoulder passing into the subcutaneous tissue (wound 5), a wound below the left shoulder on the lateral aspect of the left upper arm passing into the musculature (wound 6), a fish shaped wound on the lateral aspect of the left upper arm which passed into the biceps muscle (wound 7), a further wound on the lateral aspect of the left upper arm which also passed into the left biceps muscle (wound 8), a superficial wound on the lateral aspect of the left upper arm, passing into the underlying superficial subcutaneous tissue (wound 9), a curved wound in the left posterior shoulder region passing into the deltoid musculature (wound 10), a superficial wound in the left upper outer chest (wound 11), a wound in the left mid-outer back region passing into subcutaneous tissue (wound 12) and a wound to the back of the head, passing into subcutaneous tissue (wound 13).

16 A number of other lesser injuries were discovered including incised or stab wounds respectively to the left outer chest, left upper arm, left upper chest, left ear region, right index finger, right middle finger, and left parieto-occipital region. Additionally, abrasions or bruises were seen over the 4 – 5 metacarpels of the dorsum of the left hand, above and below the right knee, left occipital region, left parieto-occipital region, and right back. Some of these additional injuries appear to have been of a defensive type. Others are consistent with blows or kicks to the head and body of the victim.

17 Dr Cala expressed the view that the deceased died as a result of multiple stab wounds, the wounds to the chest numbered 3 and 4 alone having been fatal. He also expressed the opinion that wounds 1, 2, 3, 7 and 9 were most likely inflicted by a person seated behind the deceased, while wounds 4 and 8 were most probably inflicted by a front seat passenger. This observation is of limited value, however, since it assumes that the victim was still in the car when the wounds were occasioned, a circumstance which appears not necessarily to have been the case. Of greater relevance was his observation that of the wounds described, only wounds 3 and 4 were such as to have caused the deceased to collapse on the nature strip.

18 What I have said so far does not explain why it was that the defendants attacked and killed Mr Tonkiss. It is necessary to explore the evidence in this regard, in a little more detail, since it is relevant for an assessment of the objective criminality of each offender. It is also relevant for the question which arises as to their state of mind.

19 There is some common ground in relation to the events leading up to 24 July, as emerged from the evidence given by each defendant, which was supplemented to some degree by the statements of friends and associates, and by call charge records. While each of the defendants gave evidence, the interviews which each had with Police were admissible only against whoever was the maker. Additionally, conversations which SJB had with fellow students were only admitted in relation to her.

20 Before turning to the evidence in more detail, it is to be noted that, at the time of the killing, SJB was aged 15 years, having been born on 3 December 1985. McLean was aged just over 18 years, having been born on 20 April 1983, and Stephen Tonkiss was aged 20 years, having been born on 30 December 1980.

21 McLean and SJB, it is clear, were involved in a close sexual relationship, which had been in existence for about 3 to 4 months before the events of 24 July. SJB had known Stephen Tonkiss for a longer period, and on her account, she had engaged in sexual activity with him on one occasion well before the present events.

22 On Wednesday 18 July 2001 there were a number of telephone calls made by Stephen Tonkiss to SJB, timed at 5.59 pm, 6.24 pm and 6.59 pm, which culminated in an arrangement for them to meet. It appears from the statement of Lorraine Tonkiss that he made those calls in response to a call which had been placed earlier by SJB, in which she had asked whether he was home, and had left her name.

23 It was SJB’s evidence that she received these calls at the home of her friend Gaby. Arising from them, Mr Tonkiss drove her, and Gaby, to the lookout near the Quarantine Station at Manly. Some alcohol in the form of Passion Pop was consumed. At one stage Gaby made herself scarce, and in her absence SJB and Mr Tonkiss kissed in his car. She was somewhat vague in her evidence, as to whether this encounter progressed into further sexual activity, remarking either that she could not remember, or was not sure, because of the alcohol she had consumed.

24 At 8.50 and 8.51 pm, call charge records show that reverse charge calls were made from Mr Tonkiss’ mobile phone to the landline of the premises where McLean lived. Both calls were very brief, and it seems that these were made by SJB.

25 It was SJB’s evidence that Mr Tonkiss drove her back to Gaby’s place, from where her father picked her up, later that night.

26 On Thursday 19 July, it is common ground that SJB missed a planned meeting with McLean. However, by chance they met up on a bus which SJB had caught with her friend Gaby, on their way to the city to purchase some concert tickets. After some uncertainty as to whether she would continue with her journey to the city, SJB eventually left the bus with McLean.

27 They returned to his home, where SJB confessed to him that she had “cheated” on him. I am satisfied that, in addition to saying that she had “kissed or pashed” with Mr Tonkiss, she said enough to indicate to McLean that she had been drunk, and may have gone somewhat further than kissing. She denied however, telling McLean that Mr Tonkiss had raped her, and she accepted that whatever had happened between them was consensual.

28 The accounts which each of the defendants gave, in relation to the discussions which followed upon this revelation, as well as in relation to the events on 24 July, differ substantially, and it is necessary to deal with their versions separately.

29 SJB said, in her evidence, that McLean was very angry when informed that she had cheated on him. She said that he required her to hold a knife to his throat, to prove that she was “true” to him and loved him. He also said words to the effect that “You have to stab Stephen because you cheated on me”, “you can’t live in this world with him here”, and “I don’t want him alive in this world because I don’t trust you in this world with him”. There were several variants in her evidence as to what was said, but this seems to have been the substance of the response which she attributed to McLean.

30 She said that McLean showed her how to stab Mr Tonkiss by stabbing a box of Arnott’s biscuits. He then asked her to do the same, which she did.

31 On her account the exchanges were very emotional, with McLean being angry and she being distressed.

32 It would seem from the evidence that she stayed at McLean’s house until the following Monday, although that is not entirely clear.

33 Whether SJB remained at McLean’s house until the Monday or went home earlier, it is certain that they saw each other on a regular basis over the succeeding days. It is also common ground that a number of attempts were made by them to get in contact with Mr Tonkiss over this period.

34 To this end, on Friday 20 July, telephone calls were placed by SJB to the home of Stephen Tonkiss, which were taken by his brother and mother. In the course of them SJB claimed to be a girl called “Cindy” and indicated that she needed to meet Mr Tonkiss to recover a jumper which she had left in his car. She asked for his mobile number but this was not supplied. She said that McLean gave her instructions on what she was to say to Mr Tonkiss.

35 On Sunday 22 July 2001, at 3.21 pm, a phone call was made from Mr Tonkiss’ mobile phone to SJB’s mobile phone. This call would appear to have followed several calls which had been made by SJB from a payphone, and which were taken by Mr Tonkiss’ sister, in the course of which SJB indicated that she wished to speak to Mr Tonkiss urgently, again referring to her need to recover a jacket which had been left in his car. She repeated her request for his mobile number, but this was again refused. On the third occasion the caller identified herself by the first name of SJB, and left her mobile number so that Mr Tonkiss could phone her. Several further phone calls were made this afternoon to Mr Tonkiss’ home, only one of which, again being a call from SJB, was answered.

36 On Monday 23 July, at 11.41 am, a call was made from the landline service at McLean’s home to the service at Mr Tonkiss’ home, lasting some 22 seconds. This call was taken by the victim’s brother, and was from a female, who made a somewhat bizarre mention of being “Stephen’s daughter”.

37 Tuesday 24 July was the day on which SJB returned to Cromer High School, at the conclusion of the school holidays. During that morning, SJB said that she spoke to some of her friends regarding the holidays, and in particular in relation to the problem in which she had found herself with McLean and Mr Tonkiss. They included SS and ND. She said that she informed SS that McLean had said she was to stab Mr Tonkiss in the head. Statements from these witnesses were tendered in relation to SJB, which confirmed that she had mentioned her problem, and, in the case of SS, that she had gone on to say that McLean had asked her to stab Mr Tonkiss. SS counselled SJB that she could not do this.

38 At 10.53 am, a reverse charge call was made from Mr Tonkiss’ home to SJB’s mobile phone, in which he asked her why she had been calling him. She enquired whether he wanted to meet up. At 11.18 am, SJB used the pay phone at the school to phone McLean at his home. This was a somewhat lengthy call lasting over 5 minutes. She informed McLean that Mr Tonkiss had phoned. He instructed her to arrange for Mr Tonkiss to meet her and drive to his place, to pick him up.

39 At 11.23 am, SJB used the school pay phone to speak to Mr Tonkiss, at his home. In this call she arranged to meet him. A further call was made by SJB from the pay phone at the school to McLean at 11.30 am. This was followed by another call at 12.04 pm from Mr Tonkiss, using his mobile phone, to SJB on her mobile phone, confirming the arrangements for a meeting.

40 She then left school and made her way home. SJB said that, having picked her up outside her home, she asked Mr Tonkiss to drive her to McLean’s home, again using the excuse that she wanted to pick up a jumper. Leaving him in the car parked outside, she went to the door of McLean’s bedroom, off the veranda. She left her school bag behind, and took one of the knives which he handed to her, concealing it in her pocket.

41 After joining Mr Tonkiss in his car, she said that they set off in the direction of the shops. At one point, she said, McLean turned around and looked at her. Taking this as her signal, she told Mr Tonkiss to stop or to slow down. She then stabbed him in the chin, setting off the series of blows which followed, in the course of which Mr Tonkiss fought unsuccessfully for his life.

42 She was somewhat uncertain, in her evidence, as she had been in her ERISP, as to the number of times she had stabbed Mr Tonkiss. She conceded however, having stabbed him three times, first to the chin at the commencement of the attack, secondly while he was struggling with McLean in the car, and thirdly on McLean’s instructions while he was lying on the ground. In this regard she said that McLean had told her, both during the struggle, and while Mr Tonkiss was on the ground, to stab him.

43 It was accepted by her that their plan had been one whereby she and McLean were to meet up with Mr Tonkiss, and that he was to be stabbed. She rejected as untrue the version which McLean gave of meeting up with Mr Tonkiss for the sole purpose of talking to him about the alleged rape and cautioning him not to do it again. It is clear that she entered the car with McLean with the clear understanding that he was to be seriously harmed.

44 It is less clear whether she intended or expected, initially, that he would be killed, although at one point in her cross examination, she said that McLean had told her that he wanted Mr Tonkiss to drive to his home in order to kill him.

45 Her evidence as to her intention when she stabbed him on the ground, was contradictory. In cross examination the following exchange occurred (T 251 and 252):

“Q. It was quite obvious to you that, by the time he’d reached the footpath, he was dying, isn’t that right?
A. Yes.

Q. Yet you stabbed him again, didn’t you?
A. Yes.
Q. You did that knowing that it would help to bring about his death, didn’t you?
A. Yes.
Q. You were spoken to by a number of people from the Department of Juvenile Justice at Yasmar, is that right?
A. Yes.
…
Q. You told those people that McLean said to you, this is whilst Stephen is lying on the footpath to ‘make sure he’s dead’. Remember telling that to those people?
A. Yes.
Q. Is that something McLean said to you on that occasion or is it something you’re making up?
A. I’m not making it up and that’s what he said.
…

Q. And you did stab him further, that is, Stephen?
A. Yes.
Q. You did that in accordance with what McLean said to you, didn’t you, to make sure he’s dead, that’s why you stabbed him?
A. Yes.”

46 In re-examination, however, she said:

“ Q. When you stabbed him Stephen on the nature strip, what was your intention at that time?
A. To listen to Matthew.
Q. When you stabbed Stephen, what did you think would happen to Stephen at that time?
A. That he was going to get hurt again.
Q. He was going to get hurt again?
A. Yes.
Q. You think he might die?
A. I didn’t have thoughts in my head.”

47 She also said that it was Matthew rather than her who took Mr Tonkiss’ wallet.

48 McLean gave a different account in several important respects, concerning the discussions which followed the confession of cheating, and concerning the events of 24 July.

49 He said that when he spoke to SJB on the Thursday concerning her activities over the few days during which he had not seen her, she claimed to have been “raped” by Mr Tonkiss – a claim which he later accepted as having been untrue, although maintaining that this was what she had said.

50 According to him, they were both very upset, but he did not press her for any greater detail concerning the “rape”. The matter he said, was discussed between them over several days, during which time it was mutually decided that they would meet with Mr Tonkiss, tell him that what he had done was wrong, and that if he did it again they would inform Police. The reason for not reporting it immediately, he said, was because they feared that the Police would not believe them, and that Mr Tonkiss would come after them.

51 He added that they each decided to take knives with them, assuming that if Mr Tonkiss saw that they had such weapons, then he would not attack them.

52 He denied telling SJB that she had to kill Mr Tonkiss to prove her love, or that either of them used a knife to stab a packet of biscuits. He also denied that they agreed upon a signal for SJB to commence an attack upon Mr Tonkiss.

53 He agreed that SJB had made a number of phone calls in his presence and otherwise, to the home of Mr Tonkiss, in order to arrange a meeting, but denied giving her instructions as to what she was to say.

54 He asserted that, on 24 July, he had no initial intention to kill or to hurt Mr Tonkiss, but conceded that “when [SJB] was stabbing [him] I lunged out at the last minute meaning intentionally knowing that I was going to do harm”.

55 He said that without any signal from him, and without any preconcert, SJB had instructed Mr Tonkiss to stop the car in Ellery Parade and had gone ahead to stab him. On his account he only stabbed Mr Tonkiss once. He could not explain how the victim had suffered the multiple wounds which were evident.

56 It was also his version of the day’s events that SJB had chased Mr Tonkiss from the car, that he had followed her, that it was at her initiative that the body of the victim had been lifted over the wall, and that it was she who had stolen his wallet.

57 The explanation which he gave for lying to Police was that he had been scared and that he had been trying to protect SJB. He explained that he had not told Police that SJB had said earlier that she had been raped by Mr Tonkiss because he feared that they might then assume that this was a revenge attack.

58 In short, it is clear that his account was one in which he sought to minimise his involvement in the killing, and was one in which he was substantially a follower of SJB. Her version was to the opposite effect, suggesting that she acted under his influence and out of her love for him.

59 In several respects McLean’s evidence strained credulity. It is impossible to accept that he would have allowed Mr Tonkiss to pick up SJB in his car, had he truly believed that she had been earlier raped by him, particularly since, on his account, he did not know the details of what had occurred, yet feared him sufficiently to go to the meeting armed with knives and a nutcracker. His reasons for not reporting the event to the Police, and his assertion that the matter could be dealt with by the conversation and caution which he had in mind, similarly make no sense.

60 I also find it impossible to accept that he and SJB set out armed with knives and a nutcracker solely in order to resist any attack, which Mr Tonkiss might have made, when he was confronted by them with a request not to rape SJB again, on pain of being reported.

61 His credibility as a witness is also weakened by the lies, which he admittedly told to Police, and by his assertion that he only stabbed Mr Tonkiss once in the car. That, I am satisfied, beyond reasonable doubt was untrue, having regard to the evidence of the eyewitnesses, and of SJB and also having regard to the number and nature of the wounds inflicted upon the deceased.

62 The evidence of SJB I am satisfied, beyond reasonable doubt, was much closer to the truth and generally in accordance with the statement of facts tendered in her case (which are to be taken into account subject to the considerations mentioned in Regina v Palu [2002] NSWCCA 381 at para 21). Although I am not persuaded that she used the word “rape” when describing the events at the lookout to McLean, as previously mentioned, I have no doubt whatsoever that she made it clear that she had been affected by alcohol and that whatever was said by her left McLean with the impression that Mr Tonkiss most probably did have sex with her. As a result I am satisfied that he became jealous and angry.

63 Absent any such hint or suggestion, it is impossible to accept that he would have been so upset by a brief interlude of kissing, particularly in the face of demonstrable remorse by SJB, accompanied by apologies and expressions of continuing love, as to have considered it necessary to confront and attack Mr Tonkiss.

64 I am satisfied, beyond reasonable doubt, that a clumsy and ill conceived plan was formulated, to which each was a party, on the Thursday or days following, preceding the first of the phone calls to Mr Tonkiss’ home, to lure him to a meeting and to stab him. While McLean was the initiator of such a plan, it was one in which SJB willingly adhered, even though she had the opportunity to withdraw from it, as at least one of her school friends counselled.

65 Whether there was, at that stage, a specific intention to kill him, and whether there was a demonstration and/or practice with a packet of biscuits, is less certain. I am not prepared to find beyond reasonable doubt that either defendant set out, on the morning of 24 July, with a clear and specific intention of killing Mr Tonkiss, as distinct from having a clear intention, which I do find they shared, to cause him really serious bodily harm.

66 I am, however, satisfied beyond reasonable doubt that, having begun their frenzied stabbing, they each formed an intention that Mr Tonkiss should die.

67 I am also satisfied by reference to the preceding conversations, and the nature and ferocity of the attack, to the same standard, that it was one in which they each willingly and equally joined, and that neither of them should be regarded as having been the ringleader, on that day. Otherwise, however, I am satisfied, by reference to SJB’s evidence, that it was McLean who initially proposed and encouraged the attack.

68 I am similarly satisfied that each stabbed the deceased many times, and that their claims respectively to have done so three times in the case of SJB, and only once in the case of McLean, are untrue.

69 I do not consider that resolution of the number of blows or wounds which each inflicted assists in a determination of their relative culpability. They acted jointly as part of a common criminal enterprise and each is responsible for whatever the other did.

70 The objective criminality of each defendant, in this senseless and savage affair, with its overtones of revenge, jealousy and sexual passion, was extremely high. The attack was premeditated, it was cold blooded, and it involved the use of knives, each being a circumstance of aggravation for the reasons discussed in Regina v Hearne [2001] NSWCCA 37, and in Regina v SLD [2002] NSWSC 758. In this regard I reject entirely the proposition that knives were taken for potential use in self defence.

71 The single mitigating circumstance in the case of each defendant was their youth, their immaturity, their limited intellectual resources, and their impulsiveness which was exacerbated by the condition of ADHD which they shared.

72 Put simply, they were in a mutually destructive relationship in which they should never have been, given those factors, being one which was made worse by their entirely inappropriate use from time to time of alcohol and drugs, although, I am satisfied that it played no direct part in this offence. It was one in which they lost touch with reality, and then behaved in a way which no mature or responsible adult could have sensibly contemplated. The inadequate resources which each had, to deal with the jealous response of McLean, and with the guilt of SJB, in the context of that entirely unsatisfactory relationship, helps to explain the offence, and it does to some degree mitigate their criminality, without in any way justifying it.

73 The offence of murder remains the most serious offence in the criminal calendar, involving as it does, the unlawful taking of another human life. Every human life is precious, but particularly is that so in the case of a young person who has done nothing to justify its loss.

74 The criminality here involved is such that no sentence other than one carrying a significant custodial component can be imposed. Both individual and general deterrence remain important considerations, as do the elements of retribution and punishment. Each does need to be tempered, in this case, by the youth of the two defendants, in accordance with the sentencing principles applicable to young offenders, and to people who qualify at law as still being children, to which I will later refer.

75 The task of sentencing offenders as young as the present defendants is not easy, and reference to decided cases is of limited value having regard to the variations in objective and subjective circumstances involved, and the differences, in particular, which exist concerning the maturity of the offenders in question. I have had the benefit of a table of sentences imposed upon offenders who were aged between 16 years and 20 years, including, in particular, those of McCabe NSWCCA 14 October 1991, RL NSWCCA 19 February 1992, Miles NSWCCA 28 March 1995, Sharpe NSWSC 10 September 1992, Davison NSWSC 11 September 1992, Oliver NSWSC 17 December 1992, Craig NSWSC 14 April 1993, Moore NSWCCA 21 June 1995, D NSWSC 8 April 1995, MG NSWCCA 11 December 1996 and 13 July 1998, DAR NSWCCA 8 November 1995, Cox NSWCCA 30 August 1999 and Hearne supra which bear some similarity in relation to the senseless behaviour and immaturity of those involved.

76 Before passing to the subjective circumstances of the defendants I expressly note that I have examined victim impact statements from the parents and siblings of Stephen Tonkiss, which depict, in considerable detail, their understandable anguish at the tragic loss of their son and brother. Nothing can be said which would explain or minimise their loss. For any parent to lose a child to gratuitous, selfish and wholly unnecessary violence of the kind here displayed, can only be their worst nightmare. I am, however, constrained within the limits of the law as to the use to which victim impact statements can be put.

77 It is entirely appropriate that victims be permitted to express their feelings in response to this kind of event, and subject to the wishes of the makers of these statements, it is also appropriate that offenders be apprised of their contents. However, they do not play a part in determining the length of the sentence, a matter which is dependent upon general sentencing principles.

Subjective Circumstances - SJB

78 SJB is the only child of a supportive, stable and deeply religious family living at Dee Why. Despite her family’s strong Christian beliefs, and strenuous attempts to moderate her behaviour, it does seem that she was very much out of control for some time before the events which now bring her before this Court. She had a history of disobedient and disruptive behaviour at school, which had seen her move between several schools, including the Covenant Christian School, and Stella Maris School, either out of her parent’s choice or because she had been asked to leave.

79 Her difficulties appear to have commenced at about the age of 13 years, at which point she began to rebel against authority figures, including her parents and teachers, although without acquiring a criminal history.

80 She had for some time been engaging in sexual activity which was inappropriate for a girl of her age, and she had been a user of alcohol as well as an occasional recreational user of drugs, including cannabis and ecstasy. Although brought up in the Baptist faith, she had drifted away from being a regular attendee at church, and she appears to have taken, and to have been allowed, substantial liberties in being able to remain away from the home at nights. In these respects, her behaviour differed markedly from that described by family friends and teachers who had seen her in a social environment, and who appear to have regarded her as a lively, although courteous and respectful person, who was not given to violence.

81 Her difficulties at school had attracted medical intervention. In particular, on 5 May 2000, a report was provided by Dr Alex Sevitt, a psychologist to whom she had been referred, confirmatory of the presence of attention deficit hyperactivity disorder (“ADHD”), which had been earlier diagnosed by Dr Copeman.

82 Ritalin and Dexamphetamine were prescribed at various times, but evidence was led from her father in relation to the reluctance of the family to treat her condition with these substances, arising out of their concerns as to its side effects. Sustained release Ritalin was also tried for a while but, when it was learned at the age of 14 years that SJB was staying out overnight, it was discontinued out of fear of its effects in combination with other substances which she might use.

83 While in custody, SJB appears to have effected a dramatic improvement in her former dysfunctional and wayward approach to life. The Chaplain at Yasmar Juvenile Centre has confirmed that she has displayed contrition and remorse, and that she has resumed her bible studies. The reports from Sunning Hill School are favourable and show that she has been working diligently, to the point where she achieved the School Certificate in the year 2001. She is continuing to study in year 11, although not without some difficulties in managing the workload, a circumstance which has led her to follow the “Pathways Program”, which will permit her to complete that year over 2 years.

84 She has achieved some merit certificates, and appears to have been making a reasonable effort, although the teacher supervising her program considered that she appears, by reason of her immaturity and ADHD, to still be impatient, impulsive, and to be having difficulties with concentration. Her performance in the vocational programs seems to have been more positive, opening up future possibilities in the floristry and hospitality industries. Her stated ambition of becoming a missionary, however, appears somewhat unrealistic.

85 The Juvenile Justice Report confirms that she has been “reasonably stable” over the period of remand, such incidents of misbehaviour which have been reported being regarded as not being of a serious nature, and as having been attributable to the anxiety and adjustment required to fit into a custodial environment. This report noted her difficulty in discussing the offence, as well as her embarrassment and remorse for what she had done.

86 This report is generally positive concerning her participation in educational and vocational courses, and also confirms that she is receiving regular counselling and is participating in bible study classes as well as weekly religious celebrations.

87 It discloses, additionally, that Dr Weaver, a visiting psychiatrist who has seen SJB while in custody, has also confirmed that she suffers from ADHD and has recommended that she resume taking Ritalin. Her parents remain opposed to this and at their request, she is instead taking a herbal medication, Efalex. The reports as to its effects are apparently mixed.

88 The report suggests that SJB is still struggling with accepting the reality of her actions, and that as a consequence she needs to be involved in ongoing therapy, in order to understand and take appropriate responsibility for the role she played in the murder of Mr Tonkiss.

89 Her father, who has visited her regularly, reported that she seemed to be very remorseful for what had occurred, but added that she blamed McLean for it, an indication that she is yet fully to confront her wrongdoing. He confirmed that there has been a change in her behaviour while in custody, in so far as she listens to her parents rather than her peers, is attending church and is achieving well at school.

90 Dr Lisa Brown, a consultant psychiatrist who has examined SJB, recorded a history of disruptive and rebellious behaviour commencing at the time of early adolescence, that is, in around year 6 of her schooling. She was reported as having displayed feelings of contrition and remorse, and to appear uncomfortable and distressed in discussing the relevant events. She claimed to be puzzled about her behaviour, to have been “hypnotised” by McLean’s love for her, and to have been fearful of the relationship breaking up if she had not followed his demands.

91 Dr Brown found no signs of any underlying psychiatric illness, or any element of cognitive dysfunction. She did however, think that SJB appeared to be of slightly below average intelligence, an assessment confirmed by the psychologist’s report, which described her level of general intelligence-functioning as falling in the low average to average range.

92 Dr Brown’s review of her academic record, and the records of the Northern Beaches Adolescent Services, tended to confirm the presence of an attention deficit disorder and progressive deterioration in her school performance. In the absence of any signs of a major psychiatric disorder, the ADHD condition she saw as the major factor, which, along with her slightly impaired intellectual functioning, might fairly be considered to have affected her behaviour. Young people with the condition of ADHD, she explained, are impulsive, fool hardy, and less prone to envisage the consequences of their behaviour.

93 She regarded the history as indicative of a young woman who was easily influenced by her peers, and who perhaps was particularly vulnerable because of her strong need for approval and attention. Her long term outcome she thought favourable, given her acknowledgment of guilt, her expressions of remorse, her religious beliefs, and her willingness to seek psychological help and support from her family.

94 Dr Brown expressed concern as to the effects of detention on a person who was easily influenced, when exposed to other antisocial behaviour of the kind which she was likely to encounter. The vulnerabilities, which she currently has, Dr Brown however thought would be likely to dissipate with maturity, particularly if she is able to receive adequate assistance from both social and family supports, and from counselling.

95 Having regard to the concerns which were identified in the Juvenile Justice Report, as to the possibility that over control by her parents, and inattention to her own emotional needs may have unintentionally led to her problems, family counselling, commencing before her eventual release, was recommended, and it seems appropriate. Continuing close supervision and support are obviously also necessary, to allow her to cope with imprisonment and to move forward toward rehabilitation.

96 In her favour is the fact that she had no prior record of violence, and although rebellious and difficult at this stage of her life, her involvement in serious and violent criminality does appear to have been out of character. In all of these circumstances, I am satisfied, subject to SJB continuing to respond to educational and vocational programs, and participating in counselling that she does not pose any significant risk of reoffending.

97 The condition of ADHD, her immaturity, her slightly reduced intellectual functioning and the need for lengthy ongoing supervision and counselling, constitute special circumstances within the meaning of s 44 (2) of the Crimes (Sentencing Procedure) Act, 1999.

98 It is clear that SJB offered her plea of guilty at the earliest opportunity after receiving the legal advice to which she was entitled as a juvenile. Having entered the plea on 16 July 2002, she then participated in a lengthy ERISP. Through her legal advisers, she indicated an intention to assist the prosecution in its case against McLean who, to that point, had offered only a plea of guilty to manslaughter, which was not accepted.

99 She is, in those circumstances, entitled to a discount for the plea and for her offer of co operation, in the order of 25%, so as to reflect the utilitarian value of the plea, and the acceptance of responsibility and remorse attaching: R v Sharma [2002] NSWCCA 142; see also ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1999.

100 In relation to the offer of assistance, it is the case that her evidence relieved the family of the deceased of the distress which would otherwise have attached to the allegation that he had raped her. The ERISP and offer to give evidence against McLean seem not to have made too much difference given his disclosed intention, on 16 July, to also plead. It still should be accepted as having been of some value. Her account I accept substantially, although not wholly as having been true, and while timely in relation to the stage when advice was given, it was, to some degree at least, motivated by self interest. I do not consider that it will lead to harsher custodial conditions; nor will it pose any risk for her, or her family. As indicated elsewhere, I think it unlikely that she will reoffend.

101 By reason of her age, SJB is to be sentenced pursuant to the provisions of the Children (Criminal Proceedings) Act 1987 (particularly s 6) and in accordance with the special sentencing principles attaching to young offenders noted by me in Regina v SLD supra at para 20. In the case of such an offender the interests of rehabilitation assume a particular significance, as does her immaturity and limited intellectual and personal resources, so far as they may have contributed to the commission of the offence: R v Kama [2000] NSWCCA 23 and R v Hearne supra.

102 By virtue of s 19(1) of the Children (Criminal Proceedings) Act, I have a discretion, which I propose to exercise, to order that part of the term of the sentence which I intend to impose, be served in a detention centre. The circumstances already mentioned as relevant for s 44(2) of the Crimes (Sentencing Procedure) Act, also constitute special circumstances pursuant to s 19(5) of the Children (Criminal Proceedings) Act. In that regard her immaturity, her need for specialist education and vocational training and counselling can be far better catered for within the juvenile justice system, than within the adult correctional system.

103 However, given the time which SJB will be expected to serve a custodial sentence, and given the additional maturity which she may be expected to have acquired by the age of 20 years, I am of the view that it is only until such age that a s 19(1) order should be made. My reasons for this lies in the circumstance that it is not in the interests of other younger prisoners, or of the person standing for sentence, to be held too long within the Juvenile Justice System, unless they are close to potential release. The boredom and maturity that can come as such offenders age, and their confinement in an institution designed principally for younger offenders, can lead to difficulties, and it is better, once they have received the benefits of the programs which are there available, that they move on to the next phase of their custody, and in particular to training and rehabilitation opportunities which are more relevant for adults.

104 SJB, having regard to the circumstances outlined, I sentence you to imprisonment for 15 years, to date from 25 July 2001. I fix a non parole period of 10 years, similarly to date from 25 July 2001, and to expire on 24 July 2011. The earliest date on which you will be eligible for release will be 24 July 2011. I direct that such of that sentence as shall relate to the period until you attain the age of 20 years is to be served in a Detention Centre. The balance of the sentence is to be served within the adult correctional system.

Subjective Circumstances - McLean

105 McLean was, at the time of the murder, living with his mother, stepfather and sister, in the family home at Seaforth. He was working on a part time basis at a Pizza Hut, and had previously commenced, but had not completed, an apprenticeship as a spray painter. He has also suffered ADHD as a child and had been affected early in his life by the separation of his parents. He had no history of any specific mental illness.

106 He acknowledges having been an occasional user of cannabis and alcohol, but seems not to have had any drug dependency. His relationships with his natural parents, sister, and stepfather were said to be good, and they all remain supportive of him.

107 His schooling had been somewhat unsatisfactory, having been educated to only half way through year 10. Poor concentration, learning difficulties, and mixed teacher relationships seem to have been the problem. He had no prior criminal history of any moment, having been before the courts once only on a drug matter, which was dealt with without conviction.

108 His behavioural, learning and developmental problems at school, had in fact attracted medical attention between 1990 and 1998, which had led to a diagnosis of ADHD for which treatment was prescribed in the form of Dexamphetamine, Ritalin, and Moclobemide. Family counselling also had been attempted. This treatment seems eventually to have lapsed due to poor compliance, as well as rebound problems from the medication, including depression and aggression.

109 A report was provided by Dr Lennings, a clinical psychologist who had reviewed McLean while in custody, having had, in addition, the benefit of a review of his health records. The history which he took from McLean included reference to a brief period as an aimless and semi homeless existence at Kings Cross, which included the use of illicit drugs, and which I assume came to an end when he was charged with the drug offence. His history also noted that McLean appeared to be experiencing intense feelings of remorse.

110 Dr Lennings’ psychological assessment noted that he had an established diagnosis of attention deficit disorder. He concluded that he was a young man of good intellectual potential who revealed markings of a significant ongoing learning disability, as well as some impairment in cognitive functioning, which could in part be due to the psychological impacts of his current imprisonment.

111 He thought him to be a person with a vulnerability of psychological dysfunction, and that his resolution from ADHD was at best incomplete. His history, he thought, suggested a long-term problem with mood disorder, and of him having a poor capacity for judgment, immaturity and a failure to consider future consequences. His relationship with SJB he described as a rather obsessional infatuation. Dr Lennings thought him in need of ongoing psychiatric and psychological treatment, it being possible that his poor ability to defend himself, physically or psychologically, in gaol could lead to his psychological state deteriorating.

112 Dr Westmore, who also examined him, excluded any element of mental illness, although he gained the impression that he may have some immature personality traits or characteristics. He thought that the relationship which McLean had with SJB had been a very significant one for him. In that regard. Dr Westmore’s impression was that McLean did not seem to be a particularly strong or dominant individual.

113 So far as his appearance in these proceedings may provide any guide to his personality profile, I would not disagree with this assessment. It is also consistent with the fact that he requested a transfer onto protection when taken into custody. This is not an unreal position since he is of slight build, and gives every impression of immaturity and of being a submissive person, who is lacking in self esteem, a circumstance noted in the extensive health file which recorded the attempts to treat his ADHD difficulties, and his problems at school. I would accept, having regard to his prior record, that his involvement in violent and serious criminality of the kind here involved was out of character for him. Rather, it was a product of a somewhat obsessive relationship for which he was emotionally ill equipped, by reason of his somewhat inadequate personality and immaturity.

114 His contrition or remorse in relation to the present offence was not particularly in evidence during the sentence proceedings, although I accept that he very much regrets what occurred, as he reported to Dr Lennings.

115 He has attended some art classes and computer courses while in custody, but appears not to have done a great deal yet towards improving his educational and vocational status. He is receiving medication for depression consequent upon his imprisonment, but will need to make some more positive efforts towards his eventual release, if he is to be rehabilitated to any useful degree.

116 I do not find him to present any danger of reoffending in a violent way, but equally his prospects of rehabilitation will remain somewhat uncertain until he begins to participate more actively in the available courses, including studying for the HSC as he has promised his father. He will, in my view, need counselling and some support while in custody, as well as long-term supervision post release. These factors, along with his age, immaturity, and prospects of spending a good deal of the sentence on protection, qualify as special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act.

117 Although not a child at law, he is sufficiently young to be sentenced according to the principles applicable to young offenders, in which event the interest of rehabilitation is of considerable relevance, although less so where the offence is particularly serious, or involves the kind of conduct normally reserved for older and more experienced offenders: see Regina v Pham and Ly (1991) 55 A Crim R 128 and R v Tran [1999] NSWCCA 109. Similarly, his immaturity is a matter properly to be taken into account, as it was in the case of SJB, so far as it contributed to the offence, for the reasons mentioned in Hearne (supra). He is also entitled to a discount of 20% for the utilitarian value of the plea and for the acceptance of responsibility and remorse attaching.

118 A further matter properly to be taken into account is that McLean is likely to serve at least some of his sentence on protection, with the additional hardship and loss of opportunities associated with that fact. Whether he will need to continue to do so, as he matures and progresses through the classification system, is uncertain.

119 Matthew John McLean, taking these considerations into account, I sentence you, for the murder of Stephen David Tonkiss, to imprisonment for 19 years, to date from 25 July 2001. I fix a non parole period of 13 years, to date from 25 July 2001, and to expire on 24 July 2014, being the earliest date on which you will be eligible for release on parole.

120 The differences between the two sentences reflects the difference in your ages, the fact that SJB offered some assistance to the Police, and the finding, which I make, that your culpability was somewhat more serious than that of SJB. That arises from the fact that absent your angry response and jealousy, I am satisfied this attack would not have occurred, and from the fact that you encouraged SJB to arrange the meeting, and then provided the murder weapons.

121 In respect of the count of take and drive a conveyance, I sentence you to imprisonment for a fixed term of 6 months, to date from 25 July 2001. This was a serious offence of its kind, but it was so interconnected with the murder as not to add to the overall criminality in a way justifying any accumulation of sentence.

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Last Modified: 11/07/2002