R v Welsh
[2019] ACTSC 344
•10 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Welsh |
Citation: | [2019] ACTSC 344 |
Hearing Date: | 2 and 5 December 2019 |
DecisionDate: | 10 December 2019 |
Before: | Mossop J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender less culpable than one other offender – offender more culpable than one other offender – significant criminal history – guarded prospects for rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT), s 15 |
Cases Cited: | R v Booth [2019] ACTSC 345 R v Vickerstaff (No 2) [2019] ACTSC 343 |
Parties: | The Queen (Crown) Dean Welsh (Offender) |
Representation: | Counsel R Christensen (Crown) J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender) | |
File Number: | SCC 273 of 2018 |
MOSSOP J:
Introduction
The offender, Dean Phillip Welsh, pleaded guilty to one count of manslaughter by joint commission contrary to s 15 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 20 years’ imprisonment.
Facts and objective seriousness
He is being sentenced at the same time as two co-offenders and the reasons that I now give must be understood in the context of the reasons given in those cases: R v Vickerstaff (No 2) [2019] ACTSC 343; R v Booth [2019] ACTSC 345. The facts upon which Mr Welsh is to be sentenced are recorded in an agreed statement of facts. I have summarised those facts in my decision in R v Vickerstaff (No 2). I adopt what I have said there.
In short, Mr Welsh along with Colin Booth and Graeme Vickerstaff attended the house of the victim, Bobby Allan, in the early hours of the morning of 17 December 2017. When the front door was opened Mr Vickerstaff had a violent altercation with Mr Allan in which he deployed a baseball bat to strike him on the head two or three times. Mr Allan escaped from the house and went down the road to find assistance. He ultimately died from a combination of factors which would not have occurred without the assault. Mr Welsh opportunistically stole some items of value from the premises after Mr Allan had been assaulted and removed the baseball bat that had been involved in the assault.
Mr Welsh’s involvement was that he was at the door with Mr Vickerstaff in circumstances where he prevented Mr Allan from escaping in that direction. He did not however have any physical contact with Mr Allan. His culpability is substantially less than that of Mr Vickerstaff and somewhat greater than that of Mr Booth.
I have taken into account the victim impact statements which are referred to in my decision in Vickerstaff (No 2).
Subjective circumstances
The subjective circumstances of Mr Welsh are described in the pre-sentence report. To the extent to which the evidence in that report is inconsistent with statements made by counsel for Mr Welsh which are not supported by evidence, I adopt what is said in the pre-sentence report.
Mr Welsh identifies as an Aboriginal man born and raised in Coonamble, New South Wales (NSW). He was one of four children from his parents' relationship. Mr WeIsh described a stable family environment throughout his formative years and advised the author of the pre-sentence report that he continues to maintain a supportive relationship with his father, who resides in NSW. Prior to the offending he remained close to his siblings.
Mr Welsh reported the last intimate relationship he was involved in ended during 2000. He noted he remained in contact with his ex-partner in order to co-parent their children, currently 22 and 15 years of age. He remains close to his two children. Mr Welsh reported to the author of the pre-sentence report that three of his step-children passed away during 2017, which has had a significant impact on him and his ex‑wife.
Mr Welsh reported he was homeless for approximately 12 months prior to being remanded in custody at the Alexander Maconochie Centre (AMC).
Mr Welsh reported he completed Year 10 and described an employment history as a linesman with a national telecommunications provider, a youth worker and a labourer in the construction industry. He advised he received the Newstart benefit from Centrelink for approximately six months before his admission to the AMC during 2017.
He reported that he commenced smoking cannabis at the age of 18 years, using up to approximately 1 gm per month. He advised he began using methylamphetamine at the age of 25 and was smoking it daily before his arrival at the AMC. Mr Welsh reported he had been prescribed a pharmacotherapy treatment when he was in the community and had continued with the treatment in custody at the AMC.
Mr Welsh reported his acquaintances and friends were involved in an illicit substance use subculture. He acknowledged that he lacked consistent involvement in prosocial activities prior to the current offence.
He reported no mental health conditions or significant physical concerns. However, he stated he continued to experience grief and loss issues related to the deaths of his stepchildren during 2017.
Mr Welsh’s description of his involvement in the offence was consistent with the Statement of Facts. He acknowledged consumption of illicit substances prior to offending and indicated that this had contributed to his offending. During the interview for the pre‑sentence report, he engaged in a discussion to explore other contributing factors for his offence. He noted unaddressed grief and loss about the death of his stepchildren as having a significant impact on him.
The author of the pre‑sentence report expresses a conclusion as follows:
Mr Welsh is an Aboriginal man with a long and versatile criminal history who has been assessed as medium risk of general reoffending. Should he continue to discuss his offending behaviour in a therapeutic setting, and meaningfully engage in the in‑custody Solaris Therapeutic Community Program, his risk of reoffending may reduce. Other interventions that address illicit substance use, grief and loss, unemployment and antisocial attitudes may also assist with reducing his risk of reoffending.
Criminal history
In the ACT Mr Welsh has a significant criminal history which includes some relatively modest periods of imprisonment. It includes dishonesty offences, violence offences and driving offences. In NSW he has a number of sentences of imprisonment for a similar mix of offending.
Plea of guilty
Mr Welsh pleaded guilty on 5 September 2019. That occurred after Mr Booth had pleaded guilty and provided a statement to police. Mr Welsh declined to provide a statement to police. His plea of guilty was, therefore, not accompanied by the same level of cooperation nor, having regard to its timing, was it of significance in the way that Mr Booth’s plea was. In the circumstances a discount of 10% is appropriate on account of the plea of guilty.
Time in custody
Mr Welsh was taken into custody on 31 January 2018. From 1 February 2018 until 30 April 2018 he was serving sentences of imprisonment on other charges. Taking into account the one day (31 January 2018) prior to the commencement of the sentences, the appropriate backdate date is 30 April 2018.
Consideration
The circumstances of this case are distinct from the comparable cases to which I referred in my reasons in R v Vickerstaff (No 2), because this case involves an offence of joint commission in which the roles of the offenders, and hence their culpability, varied significantly. Mr Welsh’s offending is clearly significantly less serious than that of Mr Vickerstaff. The degree of leniency that may be afforded to him is limited having regard to his significant criminal history. His prospects of rehabilitation are guarded having regard to his personal and drug use history.
The appropriate starting point is a sentence of imprisonment of four and half years (54 months). This is reduced by 10% on account of the plea of guilty and gives a sentence of 48 and a half months. The sentence will commence on 30 April 2018 and end on 14 May 2022. There is no reason to reduce the non-parole period below 70% of the head sentence. This gives a period of 34 months.
Orders
The orders of the Court are:
1. On the charge of manslaughter (SCCAN3788/2019) the offender is sentenced to imprisonment for 48 months and 15 days commencing on 30 April 2018 and ending on 14 May 2022.
2. The non-parole period commences on 30 April 2018 and ends on 28 February 2021.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 18 December 2019 |
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