R v Towney (No 2)

[2016] NSWSC 97

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Towney (No 2) [2016] NSWSC 97

Hearing dates:

16 February 2016

Date of orders:

16 February 2016

Decision date:

16 February 2016

Jurisdiction:

Common Law - Criminal

Before:

Fagan J

Decision:

1. For the murder of John Frail at Gilgandra on 20 July 2013 Trent Towney is sentenced to a non-parole period of 18 years to commence on 24 December 2014 and to expire on 23 December 2032 and a balance of the term of 6 years to commence on 24 December 2032 and to expire on 24 December 2038.

2. The offender will be eligible for release on parole at
the expiry of the non-parole period.

3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to him and the offending the subject of these proceedings.

Catchwords:

CRIMINAL LAW – sentence – murder – intention to kill – knife wounds – not guilty plea – provocation – excessive self-defence – disadvantaged background – record of previous convictions – committed in presence of child – offender on conditional liberty – consideration of comparable cases for consistency

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes Amendment (Provocation) Act 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Beldon v R [2012] NSWCCA 194
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Carr v R [2009] NSWSC 995
Collon v R [2009] NSWCCA 187
R v Fernando (1992) 76 A Crim R 58
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
JB v R [2012] NSWCCA 12
R v Barlow [2013] NSWSC 217
R v Hines (No 3) [2014] NSWSC 1273
R v Hunt [2014] NSWSC 1919
R v Jones [2012] NSWSC 1433
R v Mbele [2013] NSWSC 1394
R v O’Donnell [2009] NSWSC 42
R v Shee [2012] NSWSC 1422
R v Shiels [2011] NSWSC 1177
Wilson v R [1992] HCA 31; (1992) 174 CLR 313
Wong v The Queen (2001) 207 CLR 584
ZZ v R [2013] NSWCCA 83

Category:

Sentence

Parties:

Regina (Prosecution)
Trent David James Towney (Accused)

Representation:

Counsel:
Mr Pat Barrett
Mr Ian Nash

  Solicitors:
Mr Chris Day
Ms Rebecca Hubbard

File Number(s):

2013/221096

Publication restriction:

Nil

Judgment

1. At Orange on 1 February 2016 Trent Towney was arraigned before me on a charge that he did murder John Frail at Gilgandra on 20 July 2013. He pleaded not guilty to murder but guilty of manslaughter.

2. A jury of twelve was empanelled but on the second day of the trial I discharged one juror. This juror informed the Court initially by message through the Sheriff’s officer and subsequently on oath when I examined him that he had a tenuous connection with the family of the deceased. Before selection, whilst he was a member of the panel in waiting, the juror in question had heard the names of the accused, the deceased and the potential witnesses. Those names were announced by the Crown. The prosecutor also gave the panel a brief outline of the Crown case before selection commenced.

3. This juror had not sought to be excused at that time because he did not realise the connection to the deceased’s family of a person known to him. That realisation came when the person concerned entered the gallery of the Court, after the Crown had opened, to listen to the evidence.

4. I discharged the juror because he declared expressly on oath that he did not feel able to bring a detached judgment to the case. For reasons given on 2 February 2016 I ordered that the trial continue with 11 jurors. The jury brought in a verdict of guilty on the single count of murder on 11 February 2016 after about an hour and 50 minutes of deliberation.

Circumstances of the murder

5. The Crown case which must be taken to have been accepted in full was as follows. On 19 July 2013 and into the early hours of 20 July the offender hosted a gathering of friends and relatives at his house at 200 Warren Road Gilgandra. This house is on the corner of Warren Road and Federation Street in that town. The offender was born 15 October 1992 and was therefore 20 years old at the time. Up to about 20 people of similar age and younger were present at times during the evening and into the early hours of Saturday 20 July 2013.

6. John Frail attended the gathering during the late evening of Friday 19 July 2013 but left not long after midnight. At that time the offender’s girlfriend Jade Hunt and his sister Karah Towney were present. Karah is 11 months older than the offender. These young women thought that John Frail was behaving strangely, pacing about. He asked Karah Towney personal questions and made both her and Jade Hunt feel uncomfortable. He left the party after midnight because they asked him to. He was then apparently well affected by alcohol. The offender was made aware that John Frail was being asked to leave.

7. Shortly before 3am on 20 July John Frail returned to 200 Warren Road. He knocked loudly at the front door and when it was answered by Karah Towney he insisted that he be readmitted. Karah Towney refused. Pushing and shoving developed between these two. John Frail seized Karah Towney’s arm. She punched him on the cheek.

8. This commotion brought the offender to the front door. He accused John Frail of having hit his sister. Despite Karah Towney telling her brother loudly that she was all right the offender engaged in a fist fight with John Frail outside the front of the house. This progressed onto the surface of the road onto which the offender’s house faced.

9. John Frail was a young man of 21 years at the time, his date of birth was 28 January 1992. Both he and the offender stripped off their shirts and traded blows. Karah Towney and two other young women came between them and tried to separate them. This fist fight ceased when Trent Towney turned from it with words to the effect “Wait here” and “I will get a knife.”

10. He went swiftly back inside his house to a kitchen bench, a distance of some 25 metres. There he took a knife from a collection of knives in a block on the bench. The knife chosen was about 30 centimetres long overall with a blade of about 20 centimetres. He turned and went back out through the front door towards John Frail. As the offender went through the house to fetch this knife and as he returned with it a young friend, Brody Roach, implored him to “calm down” and to “stop.” But the offender continued with deliberation.

11. By the time the offender re‑emerged from the front door of his house Karah Towney had prevailed upon John Frail to leave the area. John Frail walked east from the location of the fist fight and stepped over a metal traffic barrier on to Federation Street. He began to cross that road. He called out from the roadway to the others present “Tell Trent I will be back in the morning to have a proper go”, or something to that effect.

12. John Frail had walked about 10 or 12 metres from the location of the fist fight when the offender, pursuing him quickly, leapt over the traffic barrier. He caught up to the deceased on the roadway of Federation Street and stabbed him repeatedly. The fatal wound was inflicted to the right side of John Frail’s neck. The blade passed through the neck at an angle into the left lung. It severed the right and left carotid arteries and the trachea. It partially transected the oesophagus and the aorta. This necessarily fatal wound was approximately 17 centimetres deep, nearly the full length of the blade used to inflict it.

13. Given that John Frail was standing upright when he received this wound it must have been delivered by the knife being raised overhead and plunged downward off the vertical. Two close by eye witnesses described such a stabbing action by the offender, as his first strike when he closed on John Frail. I am satisfied beyond reasonable doubt that it was the first strike and that it was as described.

14. Two further injuries were inflicted by two further knife strokes, one to the deceased’s right bicep and one to his right forearm. I am satisfied beyond reasonable doubt that these arm wounds were not inflicted by the same stroke as that which resulted in the neck wound. I do not see how this would be possible and there were eye witness accounts of multiple knife strokes.

15. Mortally wounded John Frail moved on across Federation Street. He collapsed against the wall of the building on the far side. Police and ambulance officers arrived within a few minutes in response to an emergency call from Karah Towney but John Frail could not be saved. He died soon after. Post mortem examination showed that he had had a blood alcohol content of 0.227 grams per 100 millilitres of blood when he was attacked and killed.

16. Having inflicted the stab wounds the offender went back inside his house still carrying the knife. Jade Hunt washed the blade. The offender went to bed and slept. When woken and arrested next morning by Sergeant Tighe of the Dubbo detectives he claimed not to remember the events of the previous evening.

Provocation and loss of control rejected

17. The offender neither gave evidence nor called any witness in his defence. His counsel cross-examined the Crown witnesses, most of whom had been guests at the party at 200 Warren Road, to try to create a foundation for the partial defence of provocation. In closing address defence counsel submitted that the jury would not be satisfied the Crown had excluded a reasonable possibility that John Frail’s conduct, upon his return to the party, had provoked the offender and caused him to lose his self control to the point of forming an intention to kill or cause grievous bodily harm to the deceased.

18. The law of provocation applicable to the case was s 23 Crimes Act1900 (NSW) in the form it took before the CrimesAmendment (Provocation) Act 2014 (NSW) came into force from 13 June 2014. The jury were directed accordingly. Their verdict shows that they either found that there was no reasonable possibility that the alleged provocative conduct relied upon by the offender had caused him to lose self control or that there was no reasonable possibility that the provocative conduct could have caused a reasonable person, in the offender’s position, to lose control.

19. The putative provocation was identified in defence counsel’s final address. He relied upon the deceased having loudly and aggressively pressed to be readmitted to the party, having refused to leave when rebuffed at the front door by Karah Towney and having instead become involved in a physical clash with her. Defence counsel also referred to John Frail having engaged in the fist fight with the offender and thereafter, as contended by counsel, having loitered on Federation Street instead of departing the area.

20. In this last respect defence counsel relied upon evidence of Rebecca Trudgett. She said that after the fist fight John Frail stood in front of 200 Warren Road and that he and the offender yelled at each other. I reject that evidence. It is inconsistent with the evidence of every other witness. All of the others said that John Frail moved away onto Federation Street after the fist fight stopped. He must have done so for the final deadly clash to have taken place where it did. All the other witnesses described John Frail having called back only one comment namely, as mentioned before, “Tell Trent I’ll be back in the morning to have a proper go”. These were words of parting.

21. I am satisfied beyond reasonable doubt that the offender suffered no loss of control and certainly none caused by John Frail’s actions or words. There was a conflict between John Frail and the offender which became physical when the aggression of both of them rose at the same time and they stripped off their shirts. This was a mutual conflict over a slight matter, not a one sided provocation by one of the other. The clear inference from the offender’s actions is that having fought inconclusively with his fists he resolved to end the conflict decisively in his favour by introducing a lethal weapon. The course of the offender’s action was to stride purposefully into the kitchen, deaf to the entreaties of Brody Roach, select a weapon and proceed deliberately straight back out to John Frail – who was by then plainly retreating – and immediately deliver a deadly blow to a vital part of the victim’s body. This is quite inconsistent with loss of control.

22. I infer from these actions as the only rational hypothesis a conscious and thought-through determination to kill John Frail, formed as the offender broke off from the fist fight and sustained over the duration necessary to get the weapon, catch up with the retreating victim and administer the blow.

Self defence rejected

23. Some of the Crown witnesses said that as the offender closed upon John Frail on Federation Street the latter turned to face his attacker and moved towards him. Two witnesses said that John Frail put his hands and arms up in front of himself in a manner which I infer to have been defensive. The location of blood from the deceased on the roadway provided a possible basis for inferring that John Frail may have retraced his own course for some metres towards the scene of the fist fight and towards the offender before the offender reached him and used the knife.

24. The offender relied upon this evidence, in the course of the trial, as a basis for asking the jury to find a reasonable possibility that he had perceived an attack upon himself by John Frail and had felt it necessary to defend himself by wounding with the knife. He relied upon self serving letters he had written whilst on remand in custody on this charge, which contained assertions that he had taken up the knife only to “scare” John Frail away. In final address defence counsel conceded that the fatal neck wound was a disproportionate response to the alleged occasion for self defence. See s 421 Crimes Act 1900. His case in this respect was for a verdict of manslaughter on the ground of excessive self defence rather than for outright acquittal.

25. The jury clearly were satisfied beyond reasonable doubt that the offender did not, at any relevant time, consider it necessary to defend himself against John Frail by wielding the knife. John Frail was unarmed. There was no evidence that the offender thought or could reasonably have thought otherwise. It was far fetched to suggest that the offender, having deliberately armed himself and chased John Frail with a weapon in hand should suddenly have changed from being an attacker to one who apprehended danger from his unarmed, intoxicated victim. Given the way the case was left to the jury their finding on this point, beyond reasonable doubt, is perfectly clear. Independently I agree with it.

Intention to kill

26. Lastly, the offender put in issue the question of whether he had held an intention either to kill John Frail or to cause him grievous bodily harm. The jury were directed that if they felt a reasonable doubt about the intention requisite for murder, in these alternatives, they would be required to return a verdict of not guilty on the murder count and a verdict of guilty of manslaughter in accordance with Wilson v R [1992] HCA 31; (1992) 174 CLR 313. The verdict returned shows that the jury found beyond reasonable doubt that the offender intended at least to cause grievous bodily harm.

27. For the purposes of determining the degree of seriousness of the offence, being a matter of central importance in fixing the appropriate sentence, I must make a finding (if the evidence will permit) as between intention to kill and intention to inflict grievous bodily harm. I am satisfied beyond reasonable doubt that the offender’s intention was to kill John Frail. I have described the overhead plunging knife stroke which caused the fatal wound. The only other way such a wound could have been inflicted would have been if the victim’s upper body had been bent over from the waist to a near horizontal position and if the knife had then been used in a near horizontal plane, either thrusting forward or held for the deceased to charge onto it and impale himself.

28. There was no evidence that John Frail ever assumed such a posture and therefore no basis upon which, as a reasonable possibility, the critical wound could have resulted from anything other than a knife stroke of the type that I have found. It is true that two witnesses described other knife strokes. Rebecca Trudgett described lunging or thrusting strokes, more or less horizontal. Kade MacKenzie described upward swinging strokes. These could have been what caused the wounds to the deceased’s right arm. Given the evidence of John Frail’s stance and movements these other strokes cannot have caused the deep neck wound. The overhead plunging stroke to the neck, as the first knife stroke of the encounter, cannot have been intended to have caused any harm short of death.

29. The crime was one of a swift and spontaneous homicide. Without long premeditation but neither with any provocation, even of an order which could mitigate the objective seriousness of the killing. A young man’s life was taken on a violent impulse, pointlessly without reason.

Maximum penalty and standard non parole period

30. The maximum penalty for murder is life imprisonment. This may be reduced to a specific term of years. By force of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the reduction to a specific term may not be made if “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” a sentence of life imprisonment. In such a case a life sentence would be mandatory.

31. I am not satisfied that this case satisfies the statutory test in s 61(1). I consider that I must fix an appropriate finite term of imprisonment. In doing so I will have regard to the standard non‑parole period of 20 years which applies to the offence of murder under Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999.

Offender’s background

32. Trent Towney is of Aboriginal descent and is now aged 23 years. According to evidence of his sister Karah given during the trial there was significant domestic violence throughout their upbringing. Their father was a shearer often absent from home. When he was with his family he frequently drank heavily and this would end with him physically abusing the mother of the offender and of Karah. There were two other younger siblings in the household and two more half siblings in the family. Domestic violence of this nature continued up until the sudden death of the offender’s mother in 2005 when Trent Towney was about 13 years old.

33. I received evidence in statement form from the offender’s maternal grandfather, Mr Camkin. He and his wife were witness over many years to the dysfunction, violence and struggle of the offender’s early years. Mr Camkin has confirmed the physical and psychological abuse of their adopted daughter, the offender’s mother, by her husband. He also testified to the failure of Trent Towney’s father to bring home any money from his tours as a shearer and of the consequent deprivation of the family. Mr Camkin’s description of the sudden death of the offender’s mother and its impact upon the offender explains another setback in Trent Towney’s life.

34. The family lived in the Wollongong area until 2005 and then moved to Dubbo. Trent Towney and his two younger full siblings remained living in Dubbo with the father for some years. Karah Towney soon returned to Wollongong. By July 2013 the offender’s father had become seriously ill. By the date of the events which ended in John Frail’s death, the offender was aware that his father’s illness was terminal. The father died in September 2013.

35. The offender attended school until year 12 which must have been in 2010. But he did not complete that year. After leaving school he worked for three months in a café during 2010 but he has never had any other employment. He was supported on Centrelink benefits at the time of his arrest.

32. The offender was in a relationship with Jade Hunt as at July 2013. She was then 18 years old. She was unstable and troubled, a product of a very unhappy, neglected and damaging early life. Jade Hunt was convicted and sentenced as an accessory after the fact of this murder for her part in having tried to destroy evidence of the offender’s commission of the crime. The remarks on sentence of Button J in R v Hunt [2014] NSWSC 1919 contain a more detailed account of Jade Hunt’s character and antecedents, to which I have had regard.

Offender’s substance abuse

37. A presentence report on the offender was prepared by Miss Angela Croker dated 10 November 2015 in connection with sentence proceedings in the District Court at Dubbo before North DCJ. In those proceedings the offender was dealt with for two offences of aggravated breaking and entering committed in March 2013. The presentence report is sufficiently current for the purposes of the present sentencing exercise. It has been tendered and I have had regard to it.

38. The offender told Miss Croker that he commenced daily consumption of alcohol at age nine years and cannabis use at age 13. By 15 he was using amphetamines and methylamphetamine or “ice”. Prior to July 2013 he had for a period used all three substances daily but he said that he had ceased all use of drugs and alcohol upon learning earlier in 2013 that Jade Hunt was pregnant. The offender had resolved to help support Jade and the expected child although he recognised that it was likely he was not the father. Jade Hunt’s baby was born 25 May 2013. Despite the offender’s intentions with respect to ceasing substance abuse, evidence given in the trial proved that he drank alcohol throughout the night of 19 and 20 July 2013. On the unchallenged evidence of Miss Trudgett he smoked either “a couple” or “a few” cones of cannabis that night as well.

Offender’s mental condition

39. The offender told Miss Croker that he had attempted suicide at age 15 or 16 years which would have been in about 2007 or 2008 and again in 2013. There are no medical records to substantiate these dates. A report from the Wollongong Emergency Department dated 7 August 2011 records that on that day he made “an impulsive attempt at hanging while mildly intoxicated following argument with his girlfriend.” No evidence of psychosis was found by the psychiatric registrar who attended him at Wollongong nor did the registrar find any then current thoughts of self‑harm or of harm to others.

40. The registrar said that engagement with psychological services and abstinence from intoxicating substances would be of most benefit to the offender. It is clear from subsequent history that this advice was not followed, at least not for any lasting period.

41. On 18 December 2011 the offender presented at Shellharbour Emergency Department reporting voices in his head. Hospital staff were informed that he had had “a couple of episodes” that day “in the context of relapse of THC and alcohol abuse after around [six months] of significant reduced substance abuse.” Some depressive symptoms were noted.

42. The significant feature of all this evidence with respect to mental health is that the offender has never been diagnosed with or treated for any clinically recognised psychiatric disorder or condition.

Allowance for background of disadvantage

43. The decisions of the New South Wales Court of Criminal Appeal in R v Fernando (1992) 76 A Crim R 58 and of the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 are applicable to this case. In determining an appropriate sentence I must take into account the disadvantages to the offender, in his development, from having grown up in what appears to have been a chaotic and disordered family setting where domestic violence was frequent and severe, where alcohol abuse was an example set and where the following of that example by the offender from childhood went unchecked.

44. From the same environment the offender’s sister Karah has grown into a mature, steady and impressive young woman. She gave her evidence in the trial under the most difficult circumstances imaginable with composure and dignity. But that does not refute that Trent Towney, with a different inherited makeup, has absorbed the adverse effects of the early family life that I have described and has suffered accordingly.

45. I take these considerations into account, recognising at the same time other conflicting considerations which must be balanced. On the one hand there is a need to make allowance for the offender’s poor start in life and the weight to be given to general deterrence, for that reason. On the other hand there is a need to protect the community. This is discussed explicitly in Bugmy v The Queen at [44] to [46].

Criminal history of the offender

46. The offender has relevant prior convictions for the following offences, committed on the dates indicated as follows:

1. 27 March 2011 aged 18 years:

1. custody of an offensive implement in a public place;

2. assault.

2. 27 November 2011 aged 19 years:

1. assault occasioning actual bodily harm;

2. stalk and intimidate.

3. 4 April 2012 aged 19 years:

1. stalk and intimidate;

2. contravene apprehended violence order.

4. 15 February 2013 aged 20 years:

1. armed with intent to commit an indictable offence;

2. destroy or damage property;

3. assault occasioning actual bodily harm.

5. 3 March 2013 aged 20 years:

1. enter building with intent to commit an indictable offence;

2. destroy or damage property.

6. 19 March 2013 aged 20 years: aggravated break and enter and commit a serious indictable offence – two counts, comprising the breaking and entering of two separate commercial premises.

47. The evident escalation in the offender’s criminal conduct from late 2011 over 16 months up to March 2013 resulted in increasingly stern sentences. Unfortunately he was able to go on to perpetrate all the offences of 2013, groups (4), (5) and (6) referred to above, whilst at liberty under supervised bonds for the offences of 4 April 2012, group (3). He was eventually called up on the bonds. Terms of imprisonment of three and four months were imposed but only after John Frail had been murdered. The offences of 19 March 2013 (being group (6), the two aggravated break and enters) were committed after he had been arrested and bailed for the offences of 15 February 2013, (group (4)).

48. The murder for which the offender is now to be sentenced was committed whilst he was under supervised bonds for some offences and on bail for others. All of the offences in group (4) committed 15 February 2013, group (5) committed 3 March 2013 and group (6) committed 19 March 2013 have only been dealt with by the Court since his arrest for the murder of John Frail. They have attracted sentences of full‑time custody which he has served since his arrest for the murder.

49. Those sentences expired on 1 May 2015. Commencement of his sentence on the present conviction for murder would be backdated initially to 2 May 2015. Then it must be backdated a further 129 days for the period he was on remand for the murder before he commenced to serve sentences for the other offences. That time served must count. Therefore the offender’s sentence for murder will be ordered to commence on 24 December 2014. This is an agreed date if there is to be no concurrence with the sentences for earlier offences, which he has served during his remand.

50. There would be no justification for making the sentence I am now to impose for murder to any extent concurrent with the sentences served between 5 November 2013 and 1 May 2015 for the offences in groups (4) – (6) inclusive (see [46]). There is no commonality of facts in the underlying offences. The circumstance that Trent Towney was committing increasingly frequent and serious offences of other kinds up to the date he murdered John Frail provides no basis for diminishing the impact of the penalties for those discrete episodes by allowing any degree of concurrence with the sentence to be imposed for the murder.

51. The offender’s criminal history shows a rapid descent into increasing criminality at a rate the justice system could not keep up with. Well intentioned efforts to keep him out of custody and to rehabilitate him with bonds under supervision and to allow bail pending the hearing of charges were abused. The orders allowed the offender the opportunity to commit increasingly serious crimes.

Prospects of rehabilitation

52. The presentence report shows that Trent Towney’s disregard for the law and for authority continues and is, for the time being, apparently entrenched. He has had numerous misconduct charges laid against him whilst in custody, some quite serious concerning drugs and testing for drugs.

53. Miss Croker considers the offender at a high risk of re‑offending. This conclusion was addressed to such risk with respect to offences like the break and enters for which he was before the District Court when her report was prepared. It is not a conclusion directly transferable to the conviction for murder in respect of which I am considering sentence. However the following part of Miss Croker’s report has application:

“The inmate has a history of illicit substance abuse which appears to have a direct impact on his violent/aggressive behaviours and ultimately his offending. Mr Towney appears to have no insight into his criminogenic factors and takes no responsibility or demonstrates no remorse for his actions.”

54. I accept this assessment except that the last conclusion “takes no responsibility or demonstrates no remorse for his actions” is not applicable to the murder of John Frail. The offer of a plea of guilty to manslaughter inherently involved some acceptance of responsibility for John Frail’s death. He has repeated what I take to be a sincere recognition of that responsibility on oath in his evidence before me in the sentence proceedings. He fought the charge of murder on weak grounds and failed. He has thereby unsuccessfully denied the full measure of his intent and culpability. But I do not doubt that he feels remorse for having caused John Frail’s death.

Victim impact statements

55. By s 28(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) it is provided that if the Court considers it appropriate to do so it may receive and consider a victim impact statement at any time after convicting and before sentencing an offender. I have considered it appropriate to receive “family victim” impact statements from both of the deceased’s parents and from five siblings either of full relationship or part, including a twin brother of the deceased. These statements have been received pursuant to subs (3) of s 28 which provides that a court, in a case where a primary victim has died, “must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate”.

56. The victim impact statements which I considered it appropriate to take into evidence were tendered in writing and most of them were read aloud to the Court by the deceased’s aunt, Deborah Frail. It is apparent from these statements that John Frail was a much loved young man. At the time of his death, he was cheerful, forward looking, hopeful of forming a lasting relationship with a young woman he had met, whom he thought was the one for him, and that he was determined to make himself a better man to meet her expectations.

57. The devastation to all of these immediate family members who had shared life with John Frail was impressed upon me by the statements read. In accordance with the legislation I take this into account in connection with the determination of punishment for the offender, as an aspect of harm done to the community.

Aggravating and mitigating circumstances

58. My remarks to this point have taken account of those aggravating circumstances within s 21A(2) of the Crimes (Sentencing Procedure) Act1999 which are applicable: most importantly, paras (d), (ea) and (j). Paragraph (ea) is applicable because Brody Roach was present when John Frail was murdered and he was less than 18. His witnessing of this murder was a very significant and necessarily damaging experience in his life.

59. I have not found that John Frail was vulnerable for the purposes of para (l) of s 21A(2) because the evidence does not permit me to conclude the degree to which his state of sobriety impeded any attempt he may have made to defend himself. It seems likely that he would have been rendered significantly helpless to ward off a knife attack with a blood alcohol reading of 0.227 but I do not have, from any eyewitness, any description of how he was handling that degree of intoxication. Nor can I draw a conclusion whether the offender perceived his victim to be vulnerable by reason of intoxication. The important feature of the knife attack is that it was swift, lethal from the first blow and made against a man known to the attacker to be unarmed.

60. I do not treat paras (b), (c) or (g) of s 21A(2) as aggravating factors. These are the use of violence, the use of a weapon and substantial injury. They are inherent in the offence of murder as it was committed here.

61. None of the mitigating factors listed in s 21A(3) is applicable. In particular, I cannot be confident of the offender’s prospects of rehabilitation (para (h)). In light of his criminal history, Ms Croker’s report and his poor record with respect to discipline in prison up to this date, the capacity of the offender to respond to attempts to rehabilitate him remains to be demonstrated. I accept the evidence he gave on oath in the sentence proceedings that he will pursue anger management and drug programs in prison and that he will seek education there. The limitation of this is that I cannot mitigate sentence in expectation of great, early progress on rehabilitation.

62. With respect to para (c) of s 21A(3) I do not accept that the offender was provoked to inflict the fatal stab wound on John Frail by anything that the deceased did. I have referred to this to some extent already. In the conduct of John Frail, there was barely reason for the two to have had their fist fight. In common sense and reason, at worst their differences should have ended with John Frail’s departure across the street, as he had been requested, after they had exchanged blows. To that point there was no provocative conduct by John Frail which could sensibly be related to the murderous knife attack which followed.

63. I reject the offender’s evidence, given before me in the sentence proceedings, that he believed John Frail had attempted to rape Jade Hunt earlier in the evening, before John Frail was excluded shortly after midnight. The offender would have known that there could not have been any such attempt in such a small house without him having seen it or become aware of it. And if he had had that thought, it is inconceivable that a man of his volatility and lack of inhibition would have failed to speak the allegation. He did not. No witness in the trial described any event which could have given the offender this idea nor reported any statement by him that suggested he had formed it.

Premeditation, post-offence conduct, intoxication

64. I take into account that the attack was not long planned or premeditated. In forming a view about the appropriate penalty I have also had regard to the indifference shown in the offender’s post offence conduct. He was to some degree (it is uncertain how great) affected by alcohol when he committed the crime. The jury were clearly not satisfied that this gave rise to any reasonable doubt about his culpable state of mind and intent. Such self induced intoxication has limited relevance to sentencing for a crime of violence: ZZ v R [2013] NSWCCA 83 per Johnson J at [110] – [112]. There has been no attempt to show that the effect of alcohol caused the offender to act in a way that was out of character on this occasion.

Consistency with sentences passed in like cases

65. In fixing a period of imprisonment for the offender’s crime I am bound to try to achieve consistency with sentences passed on other offenders for similar crimes, making due allowance in the comparison for points of difference in the objective seriousness of the offences under consideration on those other occasions and also allowing for differences in the offenders’ respective subjective circumstances, pleas and aggravating or mitigating circumstances. I am obliged to strive for consistency in this way by the High Court’s decisions in Wong v The Queen (2001) 207 CLR 584 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.

66. In Collon v R [2009] NSWCCA 187 a 21 year old offender who was the product of a dysfunctional, abusive upbringing and who had abused drugs from the age of 12 stabbed a 24 year old victim with whom he shared a home unit. The unit was made available to the two of them by a charity. Without it they would have been homeless.

67. While the offender was intoxicated by alcohol and having sniffed butane he argued with the victim about allegedly stolen cigarettes. The argument progressed to a fist fight and then the offender inflicted numerous wounds with a carving knife, a smaller knife and a pair of scissors. A stab wound to the neck of the victim, and an incised wound across his neck and a penetrating wound into the pleural cavity from the back had been fatal. It was found that the offender had intended to kill the victim. The Crown accepted that the crime was the result of a loss of control. The offender was shocked by his own actions and he himself had called police and an ambulance to the scene.

68. In addition to his dysfunctional background and substance abuse the offender suffered attention deficit hyperactive disorder and had a mild intellectual disability characterised by, amongst other things, impulsivity. A plea of guilty was entered shortly before the offender’s trial was to begin, for which a 15% discount was allowed.

69. The Court of Criminal Appeal declined to interfere with a sentence comprised of a non-parole period of 14 years and 6 months and a balance of term of 6 years and 6 months. The offender had a prior criminal history involving violence. Without the discount, for comparison with the position of the offender before me whom I do not consider entitled to any utilitarian discount, the starting point sentence would have been 17 years non-parole period with a balance of term of 7 years and 7 months – an overall term of 24 years and 7 months.

70. The offender’s loss of control in that case, his mild abnormality and his conduct immediately after the killing were all factors which tended to mitigate sentence in Collon but are not present in relation to Trent Towney. Also, the learned sentencing judge evidently found that special circumstances warranted increasing the proportion of the total sentence which could be served on parole pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. I find no such special circumstances in this case.

71. R v O’Donnell [2009] NSWSC 42 concerned a stabbing by a 21 year old offender at a dance venue. The victim, who was affected by alcohol, stepped on the foot of a young lady on the dance floor. The offender did not know the young lady but saw the incident. He demanded that the victim apologise, which was rejected aggressively. The offender approached the victim and stabbed him at least four times in a punching motion to the chest. One stab wound penetrated the heart and was fatal. The learned sentencing judge did not expressly find that there had been an intention to kill and I assume that his Honour fixed sentence on the basis that the intent was no higher than to inflict grievous bodily harm. The knife was of a fold out type which the offender had brought to the venue. He denied having stabbed the victim when first asked about it but then asserted that the deceased had “deserved it”.

72. O’Donnell pleaded not guilty to murder but guilty of manslaughter and was convicted of murder. The learned sentencing Judge took account of the impact upon the offender of his parents’ marriage having been violent and having eventually dissolved. His mother had been institutionalised in a psychiatric facility when he was 6 years old. He had had no contact with his father in the 7 years up to the commission of the offence. O’Donnell had commenced drinking to excess at the age of 18 years and was smoking cannabis and using ice and other drugs up to the date of the offence.

65. His Honour accepted a degree of remorse and good prospects of rehabilitation. It was considered that the offender’s psychiatric issues (mild paranoia) and the good prospects of rehabilitation, especially if psychiatric care should be addressed to the paranoia, warranted less weight being given to general deterrence. A non-parole period of 16 years and 6 months was imposed with a balance term of 5 years and 6 months, total 22 years. The absence of a finding of intention to kill and the favourable prospects of rehabilitation, coupled with the reduced need for general deterrence, were all factors which led to the sentence of O’Donnell being less than would be appropriate to Trent Towney. O’Donnell had no prior convictions.

66. In R v Jones [2012] NSWSC 1433 the offender was 24 years old when he fatally stabbed a victim who had been knocked to the ground in a fight between them. A third man was involved on the offender’s side so that the murder was aggravated by it being committed in company. However, the learned sentencing judge accepted that there was no premeditation and that the offender had not brought the weapon to the party where the fight erupted. The fight had begun on a ground which was never established. Further his Honour allowed that the offender had only intended to inflict grievous bodily harm. The offender had a criminal history which disentitled him to lenience. He pleaded guilty during the course of a retrial and received no discount. His Honour accepted that the offender had shown genuine remorse by his change of plea and that he had some prospects of rehabilitation. He had had a dysfunctional family background. His father had left him when he was 5 years old, his mother had been addicted to heroin and his stepfather had died of a drug overdose when the offender was 17. A non-parole period of 14 years was imposed with a balance of term of 4 years and 8 months.

67. Features of Trent Towney’s case which would cause a longer sentence than this to be imposed include theTrent Towney’s intent to kill, the absence of any change of plea to reflect recognition and acceptance of the full measure of his culpability and my finding that there are not demonstrated favourable prospects of rehabilitation.

68. In R v Mbele [2013] NSWSC 1394 the offender was 22 years old when he stabbed to death a boy of 16 years 9 months. He was found guilty of murder following his trial. He was part of a gang which confronted another group in Bankstown late one afternoon. The offender had asserted to the opposing group that he “ran Bankstown”. He traded insults with the group and then engaged in a physical struggle with the victim, who gained the upper hand. The offender left the scene and later sought out the victim, armed with a dagger, with a premeditated intention of having a further confrontation. When he found the victim he sought to goad him into making the first attack.

69. Eventually the victim thew a punch and the offender then stabbed him once, fatally, in the heart. The learned sentencing Judge found that the knife had been used with the intention of inflicting grievous bodily harm knowing that the victim was of imposing size and that the offender was at a disadvantage without a weapon. There was no remorse. The offender was on conditional liberty at the time of the offence. He had no relevant history of drug or alcohol misuse. The objective seriousness of the offence is closely comparable with that of Trent Towney’s offence. Mbele acted with greater premeditation than Trent Towney but not with intent to kill. Mbele’s background was not as severely disadvantaged as that of Trent Towney. The learned sentencing judge assessed that Mbele’s prospects of rehabilitation were reasonable. The sentence imposed was a non-parole period of 18 years with a balance of term of 8 years, a total of 26.

70. In addition to those decisions I have considered and read carefully five others which were cited to me, each of which was in some degree comparable but each of which includes one or more features, either objective or subjective, which distinguishes it from the case before me in such a degree that I do not find it useful or necessary to recite the points of comparison or difference. These cases are Carr v R [2009] NSWSC 995, R v Shiels [2011] NSWSC 1177, Beldon v R [2012] NSWCCA 194, R v Shee [2012] NSWSC 1422, JBV v R [2012] NSWCCA 12.

71. Two other cases, R v Barlow [2013] NSWSC 217 and R v Hines (No 3) [2014] NSWSC 1273, each involved combinations of objective and subjective factors fairly comparable with those of the case before me. I have considered those two cases in detail in forming my view about an appropriate sentence on the present facts, having due regard to the objective of achieving consistency.

Sentence

80. Taking all of these considerations into account the sentence I impose is as follows.

1. For the murder of John Frail at Gilgandra on 20 July 2013 Trent Towney is sentenced to a non-parole period of 18 years to commence on 24 December 2014 and to expire on 23 December 2032 and a balance of the term of 6 years to commence on 24 December 2032 and to expire on 24 December 2038.

2. The offender will be eligible for release on parole at the expiry of the non-parole period.

3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) the offender is notified that the provisions of the Act apply to him and the offending the subject of these proceedings.

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Amendments

29 August 2016 - Coversheet:
Citation amendments

Decision:

[36], [43], [65] - citation amendments

[38] - grammatical correction

22 February 2016 - [1], [21], [36], [50], [62], [74] spelling error correction

[45],[47],[62] grammatical error correction

[53] insert "District" before "Court"