Regina v Avakian

[2003] NSWSC 1042

CITATION:	Regina v Avakian [2003] NSWSC 1042
HEARING DATE(S):	04/08/03, 06/08/03, 07/08/03, 11/08/03. 12/08/03, 07/11/03
JUDGMENT DATE:	21 November 2003
JUDGMENT OF:	Whealy J at 1
DECISION:	Sentenced to a term of 5 years and 6 months imprisonment. Sentence is to commence on 21 October 2002. Set a non-parole period of 3 years and 6 months commencing on 21 October 2002 and ending on 20 April 2006. The offender will be eligible to be released to parole on that day, 20 April 2006. Recommend that, while in custody, the offender receive appropriate counselling including psychiatric counselling, anger management counselling and counselling in relation to the control of drug and alcohol abuse. Further recommend that, upon release pursuant to any parole order, the Probation & Parole Service consider, as part of any supervision programme relating to the offender, that he be required to accept the directions of the Probation & Parole Service in relation to receiving continuing counselling generally but extending to and including anger management. Further, that he be counselled and directed as to his use of alcohol and illicit drugs during any period of parole.
CATCHWORDS:	Plea to Manslaughter
LEGISLATION CITED:	Criminal Procedure Act s 24 Crimes Act 1900 NSW Cfrimes (Sentencing Procedure) Act 1999
CASES CITED:	Hill (1981) 3 A Crim R 397 at 402 MacDonald (NSWCCA 12 December 1985) Cardosa [2003] NSWCCA 15
PARTIES :	Regina v Danny Avakian
FILE NUMBER(S):	SC 70233/02
COUNSEL:	Ms L. Wells - Crown Ms D. Yehia - Offender
SOLICITORS:	C. K. Smith - DPP Legal Aid

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

FRIDAY 21 November 2003

70233/02 - REGINA v Danny AVAKIAN

SENTENCE

1 HIS HONOUR: The trial of Danny Avakian (“the offender”) commenced before a jury presided over by me on 7 August 2003. On the afternoon 12 August 2003, in the presence of the jury, the offender was at his own request re-arraigned on the indictment that charged that, on 25 January 2002 at Cartright in the State of New South Wales he did murder Wayne Anthony Myers (“the deceased”). The offender pleaded not guilty to murder but guilty to manslaughter. Thereupon the Crown accepted that plea in full satisfaction of the indictment.

2 In accordance with s 157 of the Criminal Procedure Act the Court then accepted the plea and discharged the jury from giving a verdict. The offender was thereupon found guilty of the manslaughter of the deceased and that finding took effect as if it were the verdict of the jury. The jury was then formally discharged.

3 Evidence and submissions on sentence were taken on 7 November 2003 and the matter was stood over until today for sentence.

4 The maximum penalty for the crime of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 NSW). At the outset it is necessary for me to state the facts that I have found in relation to the offence. There has been placed before me by consent Exhibit “A” which is a Crown case summary.

5 The agreed facts are generally the same as those I found in the matter of the offender O’Connor whose sentence I imposed earlier today. Accordingly, the facts I find in this matter are identical with the factual findings expressed in the remarks on sentence relating to the offender O’Connor. To those will be added however one further matter agreed between the Crown and Ms Yehia who appeared for the offender Avakian.

6 The facts may be briefly summarised as follows. The deceased, two young women and another man, Garry McCormack, were waiting in Bendigo Place, Cartright for a taxi on the night of 25 January 2002. They were sitting in the gutter talking when a group of four males came down a laneway and approached them. These males were the present offender, James Dean O’Connor, Michael Whitmore and a young person identified as K R G. There was a brief general discussion between people in the two groups.

7 The offender K R G requested a cigarette. The present offender asked the deceased his name and accused him of stealing mobile phones from little kids. The deceased put his hand in or towards his pocket and the offender said “What’s that a knife? what is a knife going to do against a gun?” The offender told the deceased he had a gun and pointed a silver object which the two young girls and McCormack believed was a gun at the deceased’s head. It was in fact a mobile phone. The offender said several times “Are you prepared to die tonight?” and “You are going to die tonight” or “You are going to cop it”.

8 Whitmore was seen to kick the deceased. The two girls ran from the scene in panic and to seek assistance. A nearby resident was looking from a window on the first floor of a unit block 50 metres away. He saw one of the young men pull the deceased’s jacket down his arms. He described each of the attackers however, he only recognised one of them namely, Whitmore. Troy Dawson was watching through the screen door of his nearby single storey home. He saw a group of young men punching the deceased. He saw the deceased try to run away. The deceased was chased by two of the young men who took hold of him. He was further punched by members of the group and then fell to the ground. Dawson told his mother that someone was getting bashed and she called an ambulance.

9 During the assault the deceased was stabbed. None of the eyewitnesses saw the stabbing take place. The deceased was not stabbed by the present offender nor did the present offender possess a knife that night. There was no evidence to suggest the offender was aware that any of the other offenders was in possession of a knife that night. The offenders all ran from the scene. After some delay an ambulance arrived. The deceased was taken by ambulance to Liverpool Hospital and there was pronounced dead.

10 Post-mortem examination reveals that the deceased had died from a stab wound to the chest. In essence, he had been stabbed in the heart. There was a second stab wound to the deceased’s back. This wound was above the right buttock. Physical examination showed the deceased had sustained multiple bruising accompanied by abrasions to the face, head, shoulders, back and torso. There were lacerations to his face and torso, some swelling and bruising to the mouth, chin, cheek and nose. The only fracture was to the deceased’s nose. There was also bruising around the eyes and on the deceased’s scalp extending around the back of the scalp under the hair.

11 On 7 February 2002 the offender surrendered himself to the police. He was by that time aware that the police were looking for him in relation to his possible involvement in the assault upon the deceased. The offender made contact with a solicitor and in those circumstances surrendered himself, as I have said, to the police. He has been in custody since 7 February 2002.

12 It is common ground, for the purposes of this sentencing procedure that the offender is to be sentenced for manslaughter by an unlawful and dangerous act. The basis of this, it is agreed, is that the offender was acting in concert with the other young men with a shared intention to assault the deceased. This carried with it an appreciable risk of serious injury. The offender’s actual participation in that assault was to punch the deceased several times. I am satisfied beyond reasonable doubt that the facts I have found establish that manslaughter on the agreed basis was committed by the offender.

13 In my remarks on sentence in the matter of O’Connor, I set out in some considerable detail the circumstances in which the four young men involved in the assault upon the deceased came before me for sentence. I also described in summary form the basis of the sentences imposed on Whitmore and K R G. I do not propose, in these remarks on sentence, to repeat those matters. It will be necessary however for regard to be had to the statement of those circumstances as if they were incorporated in these remarks on sentence.

14 I turn now to consider the present offender’s criminal history. It is not a history that does him any credit. The offender who is now 21 years of age has the following matters recorded.

15 In April 2000 the offender received a Community Service Order and was placed on probation in relation to charges of maliciously wound and common assault. On 11 January 2001 at Liverpool Local Court he was fined in relation to an assault charge. On 16 May 2001 he was sentenced to periodic detention for 12 months. These sentences related to possession of a prohibited drug, assault occasioning actual bodily harm and assault on a police officer in execution of duty. On 12 September 2001 at Liverpool Local Court he was fined for the use of offensive language in a public place and he was placed on a bond for two years for wilfully obstructing an officer in the execution of duty.

16 As indicated earlier the offender has been in custody since 7 February 2002. The Periodic Detention orders to which I have referred were converted to full-time custody however, with the consequence that, the offender’s time in custody between 17 February 2002 and 21 October 2002 related to the commuted periodic detention sentence to which I have referred. To take account of this situation, it is my intention, in imposing a sentence for the present matter, to backdate it to 21 October 2002. This is intended to give the offender the benefit of the time he has spent in custody bail refused, leaving to one side the period of time in detention relating to the earlier offences.

17 I turn now to consider the offender’s objective circumstances. The offender did not give evidence before me. His mother gave evidence however that he was the eldest of her six children. He was born when his mother was 18 years of age and at a time when his father had left her to go to the Northern Territory. It fell to Mrs Avakian to raise her young child on her own during these early years. It appears that she did not cope well with this situation at all. The offender’s major care giver was consequently his grandmother who throughout her life had a very close relationship with the offender. In fact, Mrs Avakian gave evidence that not only did she not cope with and care for her child but that she used to beat him constantly when he was quite young.

18 The offender’s father however, returned to the family and over the years the other five children were born. The father apparently left to go back to the Northern Territory on occasions but returned from time to time.

19 It appears the offender took on his father’s role so far as helping his mother with the younger children, at least while the father was absent. When the offender was about ten or eleven he was told by his grandmother of the unfortunate circumstances at his birth when his mother had been left alone and not able to cope with having her first child. This revelation affected the offender badly and he became less loving and compassionate towards his mother. He also began “to skip school”. It then transpired as he moved into his middle teenage years that the offender began mixing with boys who were not a good influence on him or, for that matter on one another. His mother became aware by the time he was 17 that he was using marijuana. She has always remained supportive of him during his time in gaol and has been going to see him on a regular basis. Mrs Avakian said that she would continued to be supportive of him once he is released.

20 The evidence includes a psychologist’s report from Katherine Barrier (Exhibit 1). Mrs Barrier interviewed the offender on 30 October and 4 November 2003.

21 The offender gave Ms Barrier a history of the offence. He told her that he had gone out with the boys that evening to celebrate K R G’s birthday. He said that he had been drinking heavily and had been using speed and ecstasy. He felt “spaced out, intoxicated, floating”. He said that had an argument with the deceased, although he does not recall what the argument was about. He said “I did not intend for him to die, it was a fight that went wrong, I feel very sorry for him and his family”.

22 Ms Barrier also took the history of the upbringing and background of the offender. This confirms that he is currently 21 years of age and was born on 3 February 1982 to an Armenian father and an Indigenous Australian mother. He described the family as “a loving family, but there were some problems”. He believed these problems had resulted in his parents separating and then reconciling on more than one occasion during his earlier years. However, from about age six, he believed his father was “there mainly”. The offender had a particularly difficult and unsettled time at school. He was a student at Lurnea and Miller Primary Schools followed by the High Schools in those areas. He was unable to master reading and writing but hid this fact from his classmates and teachers throughout primary school. Part of the way he disguised his problems was to behave in class by “acting the clown”, so that he spent lots of time in the principal’s office. He described a growing resentment against authority and an increasing cycle of acting out his resentment and hostility in various ways at school and in his home. He was invited to leave Miller High School halfway through Year 9 or be expelled. He said that he later acquired literacy skills by attendance at various TAFE courses and at remedial classes at Burnside.

23 Apart from some brief work in tiling and concreting, the offender has mostly been unemployed. He indicated that he had difficulty in accepting directions from employers.

24 The offender described a pattern of “binge” drinking in the community. About every third day he would drink to the point of intoxication preferring spirits, particularly bourbon. He began using cannabis at the age of 14. At 15 he began snorting speed and cocaine. He nominated amphetamine as his probable drug of choice. He claimed that, as he has not been using drugs or alcohol in gaol: “I am pretty much over it”.

25 The offender had a serious suicide attempt at the age of 15 or 16. This happened after the death of his maternal grandmother. He had tried to hang himself but was cut down in time for his life to be saved.

26 The intelligence assessment tests reflected a marked difference between his capacity for verbal school related skills and non-verbal performance tasks. The former fell in the well below average range while the latter area was in the “Sound Average” range. Ms Barrier was uncertain whether he had a specific learning difficulty but thought he had potential and that attention should be given to his attendances at educational and vocational training to improve his chances of obtaining employment upon release. Personality tests indicated that his level of chemical abuse was highly relevant to his anti-social behaviour. Ms Barrier said that the offender would be well advised to attend relevant alcohol and other drugs counselling courses to develop relapsed prevention skills and learn about the damaging affect of substance abuse.

27 The personality assessments also gave further indication that the offender was a young man with very poor self-esteem and one whose social adjustments to date had been poor. Ms Barrier recommended courses addressing conflict resolution, anger management and stress management for the offender.

28 Evidence was given before the Court by Charlie Fruean, the Team Leader and Case Manager for Miller Youth Centre; and by Henry Jackatine, a Pastor with the Christian Life Centre. Mr Fruean said that he had known the offender for about six years and he confirmed that he had in July 2003 provided a written reference for him. He said that he had found the offender to be a very responsible young person. He had in fact been something of a role model for the younger people who were involved in the courses arranged by the Miller Youth Centre. These courses were essentially endeavouring to boost self-esteem and improve numeracy and literacy skills with a view to improving prospects for employment in the community. Mr Fruean was enthusiastic in his view that he would be able to help the offender upon his release in relation to counselling for drug and alcohol abuse and generally to assist him with rehabilitation and increasing his prospects of employment.

29 Pastor Jackatine met the offender a number of years ago when he was running a “breakfast club” in Miller. This was a special program to assist young people in the Miller area in the age bracket of about 15-24. The program provided some training and was basically an attempt to assist young people gain employment. For example, Pastor Jackatine helped the offender prepare a resume and he described his subsequent attempts to find work although they were, in the end, unsuccessful. It was his view that, although the offender did not obtain employment, “it was not for lack of trying”. He too thought that he would be able to assist the offender upon his release and help him to get some work experience.

30 There were other references provided as well. Liz Mackie, the Outreach Co-ordinator of Miller College (South Western Sydney Institute of TAFE), gave evidence of the offender’s attempts to make up for gaps in his education between 1999 and 2001. She said he was a good student, well behaved and caused no trouble. Captain Andrew Carter the Anglican Chaplain involved at Silverwater provided a reference dated 7 November 2003. In this he said:-

“Danny is a co-operative inmate, obeying lawful orders given and generally adding to the good order of prison life. He has obtained and kept employment here at the Centre Library. This reflects his high level of trust and conduct, as employment in remand is competitive to obtain. This work is only given to those who can be trusted to carry out the tasks without incident. In fact, Danny’s employment is a sensitive position, dealing with all the different areas of the Centre. Only trusted inmates are employed here as offences can affect all parts of the Centre.”

31 Later in the reference, Captain Carter said “due to his current situation, I believe Danny has a vastly different outlook on life than previously. I believe he is more open to positive input. Where I can I offer to give positive support for Danny, both in custody and upon release.” There are also a number of certificates and awards relating to the offender’s achievements in prison.

32 Mr Peter Avakian, the offender’s father, provided a brief note to the court dated the 7 November 2003. This confirms that he has visited his son regularly while he has been in custody. Mr Avakian said that he had been a jeweller carrying on business for over 24 years. He said his son was now interested in the idea of working with him upon his release from prison. Mr Avakian suggested that when this time arrives, it will be possible for his son to go to the Northern Territory with him where they could work together in a new jewellery business.

33 The Sentence

It is necessary now to consider the relevant factors in relation to the appropriate sentence to be imposed upon the offender in relation to the charge to which he has pleaded guilty. The starting point is a recognition that the offence of manslaughter is a particularly serious crime since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system. ( Hill (1981) 3 A Crim R 397 at 402; MacDonald (NSWCCA 12 December 1985)). Secondly it is necessary to have regard to the purposes of sentencing as set out in s 3A Crimes (Sentencing Procedure) Act 1999 . Thirdly it is necessary to consider the matters set out in s 21A of the same Act, both as to aggravating and mitigating factors.

34 There are a number of aggravating factors. First, the offence involved the actual use of violence. This matter however is completely subsumed within the essential ingredients of the offence and does not call for any increase in sentence. Secondly, the offence was committed in company. This factor also appears to me to be largely subsumed within the agreed basis on which the Court has been invited to approach the sentencing task in the present matter. The nature of the joint criminal enterprise to assault the deceased necessarily involved actions in company. The third matter is that the offender has a record of a number of previous convictions. It is agreed between the Crown and the offender in the present case that I may have regard to certain aspects of the offender’s criminal history for the purposes of finding aggravating factors. This arises from the fact that the offender was subject to periodic detention orders at the time of the commission of the offence and was also on a bond. They are matters which, in my view, clearly aggravate the offence.

35 In addition, the Crown has argued that the offender was the instigator of the assault upon the deceased. Ms Yehia has denied this proposition. Counsel concedes that her client, by his actions and conversations, instigated the situation that led to the physical assault but denied that there was any evidence that permitted the Court to find that he led the physical assault upon the deceased. Generally I accept the Crown’s submission in relation to this aspect of the matter. It needs to be recalled that the present offender, when he confronted the deceased face to face, demanded to know his name and accused him of stealing children’s mobile phones. This was in a situation where the other young men had surrounded the deceased on the remaining three sides. There is no doubt that it was the offender Avakian who confronted the deceased in the manner I have described. Moreover, his actions in producing a silver object from his pocket, pretending it was a weapon; and then making the very threatening remarks I have described earlier in this decision, especially in circumstances where the deceased was forced to his knees, sparked the flash point for the assault which followed. It may well be the case that it was not the offender Avakian who struck the first blow; but nevertheless his role in the events of the evening was a pivotal one leading to the escalation of violence which culminated in the very serious assault upon the deceased. The offender is a powerfully built tall young man and his physical presence, in the circumstances I have outlined. would have been quite intimidating. Although it is agreed that the offender did no more than punch the deceased on two or three occasions; nevertheless, I think it may be properly said that he was the instigator of the events leading up to the assault. This in my view is an aggravating factor which needs to be taken into account in the imposition of an appropriate sentence.

36 There are, it is generally conceded by the Crown, a number of mitigating factors. It is quite clear that the offence was not part of a planned or organised criminal activity. I should say that I am satisfied beyond reasonable doubt that the offender was not, in any real sense, provoked by the deceased. Ms Yehia did not submit otherwise but made a submission that the offender may have been affected by alcohol and drugs to the extent he perceived the deceased may have been about to draw a knife from his pocket. There is, of course, absolutely no evidence that the deceased had a knife. The offender, in any event, did not give evidence before me that this was his perception. It is necessary for me to state that I reject any suggestion that there was any provocation offered by the deceased towards the offender or to any of the other young men who were confronting him in such an intimidating manner.

37 The next matter requiring consideration is whether the offender has shown remorse for the offence. Again it is necessary to say that the offender has not given evidence before me as to this aspect of his response to the death of the deceased. There is, however, a statement in the report by Ms Barrier that the offender is contrite regarding the fate of the deceased and the loss to his family. There is very little beyond this, however, to indicate any depth of remorse. Ms Yehia did submit that the offender’s plea and the fact that he gave himself up to the police on 7 February 2002 support the proposition that he has demonstrated remorse. There is some substance in each of these propositions although it must be conceded, I think, that the offender’s actions in giving himself up to the police occurred in circumstances where his identity was by then well known to them and where the only other alternative available to him at that time would have been flight. In all the circumstances I propose to find that there have been expressions of remorse on the part of the offender and I am unable to say that they are not genuine.

38 I turn now to consider the plea of guilty. The plea was not entered of course until 12 August 2003, some days after the trial had commenced. Ms Yehia has asked me to accept that on 15 July 2003 a letter was sent by the offender’s solicitors to the Director Public Prosecutions indicating that the offender was then asking the Crown to consider a plea of guilty to “an alternative charge” to murder in full discharge of the indictment. This request was made on the basis that any plea of guilty would be founded on the fact that the offender had struck the deceased several times causing some of the abrasions and bruises referred to in the post-mortem report. It was also proffered on the basis that the offender had not been armed with any weapon, that he did not stab the deceased and was not aware that any of the co-accused possessed the weapon; and, further, that he did not contemplate the use of a weapon during the assault. The Crown accepted that a letter to this effect had been received and that the Crown did not accept the offer made in the letter at that point of time.

39 I am unable to accept Ms Yehia’s submission that the circumstances I have described demonstrated that the plea was entered at the earliest reasonable opportunity. As I stated in the remarks on sentence in the matter of the co-offender O’Connor, the charge of murder always carries with it the alternative of manslaughter. The offender was first arraigned on 4 April 2003. He did not offer a plea of guilty to manslaughter on that occasion and, indeed, did not do so until 12 August 2003. Ms Yehia relied upon the decision in Cardoso [2003] NSWCCA 15. However, it seems to me that the argument in the present matter must fail if for no other reason than that the letter from the offender’s solicitors in July 2003 did not offer a plea of guilty to the charge of manslaughter. In its terms, it was equally consistent with being no more than an offer to plead to a charge of common assault. The plea which was ultimately accepted by the Crown in full satisfaction of the indictment was in relation to a specific and more serious charge. Secondly, as I have said, it was open to the offender to offer a plea of guilty to the charge of manslaughter as an alternative to murder well before he did. This is not to say that the offender is disentitled from claiming a discount for the plea of guilty. (s 22 of the Crimes (Sentencing Procedure) Act 1999). Indeed, I am satisfied that the offender is entitled to a discount to reflect the utilitarian value of the plea and the willingness it recognises on the offender’s part to assist in and facilitate the course of justice. In my view, in the circumstances of this particular matter, a discount of 15% is appropriate in relation to the plea.

40 The final mitigating factor which needs to be examined is the question of the prospects of rehabilitation for this young man. As I said earlier, his criminal record does him little credit and, for that reason, must give the Court considerable pause as to his prospects of rehabilitation. On the other hand, his family situation appears to be particularly sound and loving. The problem with the offender in the past has been that he appears to have repeatedly turned his back on his family and those who have wanted to help him. The question which arises is whether there is sufficient evidence before the Court to satisfy it that there is some reliable prospect of a turn-around for him. It is quite apparent that his abstinence from drugs and alcohol while in custody has been to his benefit, both in terms of his mental state and his physical health. Moreover, his progress in custody is quite promising. This appears especially from the evidence provided by Captain Carter.

41 In my view, the offender has a hard road ahead of him, since it will be necessary for him to control the more destructive urges in his personality, his substance abuse and the problems that arise from mixing with friends who are bad for him. He will also need to further his education, obtain work experience and ultimately enter the workforce. None of these matters will be easy for him. He will require assistance and will need to show greater determination than he has in the past. On the other hand, his father is prepared to take him to the Northern Territory and to work with him in his proposed jewellery business. In addition, there are the others who have given evidence on his behalf and are prepared to “go into bat” for him upon his release.

42 I accept, with some considerable degree of hesitancy and caution, that there are reasonable prospects for the rehabilitation of Mr Avakian. Time alone will tell whether my cautious optimism is misplaced or not.

43 As with the offender O’Connor, I have come to the conclusion in this matter that I should regard the use of alcohol as neither an aggravating or mitigating factor. While there was a reference in the history given to Ms Barrier of the offender’s state of intoxication at the time, I think it may be said, that, in his case, he was no stranger to alcohol. Further, I do not think that, having regard to the overall circumstances revealed by the facts in the evidence, alcohol played any substantial part in the events of that evening.

44 It is necessary now to fix an appropriate sentence to recognise all the circumstances revealed by the facts I have outlined. The sentence must acknowledge the principles I have set out earlier in relation to the denunciatory role of sentencing particularly applicable to the crime of manslaughter. It is necessary for the Court to enshrine and uphold those principles as matters of singular importance. The sentence to be imposed must make it quite clear that acts of violence in the public streets of the suburbs of Sydney are to deplored and must be denounced by the sentencing process. This is especially so in circumstances where one person is set upon by, as happened here, a gang of young men intent upon doing violence in a brutal and cowardly manner.

45 Notwithstanding these matters, it is necessary to state, as it was in the case of O’Connor, that the offender’s level of criminality in relation to the crime to which he has pleaded guilty is circumscribed by the nature of his actual involvement in the fracas. He punched the deceased several times but it was not he who stabbed the deceased.

46 I discussed the relevant distinction in the matter of O’Connor. Without repeating all that was said on the topic in that decision, I state again that it is an important distinction in determining sentence in this matter as well and for the same reasons. The person who in fact stabbed Mr Myers will regrettably not be punished for his apparent murder. The application of proper principle however requires me to place that unfortunate consequence completely to one side in the present sentencing process.

47 I have considered all possible alternatives, but have come to the conclusion that no penalty other than imprisonment is appropriate in the present matter. The sentence to be imposed, however, must denounce the prisoner’s actions and must recognise the seriousness involved in a dangerous and unlawful act which has led to the death of another human being. It will be apparent from what I have said earlier that the subjective circumstances of the offender are reasonably strong, especially those which recognise his youth and the prospects for his rehabilitation with appropriate counselling. In addition, it is clear that special circumstances exist in the present case so as to warrant a variation of the statutory proportion between head sentence and non-parole period. The reason for this is that the offender would clearly benefit from a lengthy period of paroled supervision with conditions requiring general and specific counselling and the continuance of treatment for continued drug and alcohol abstention.

48 Although no specific submissions were directed to me, I have given consideration to the parity situation arising between the present offender and his co-accused O’Connor. In a number of respects, their situations are in the ultimate very similar. The present offender is four years younger than O’Connor, but on the other hand O’Connor appeared to be a rather small timid person; and indeed a person who was easily led in the assault upon the deceased. The present offender was, by contrast, a tall well-built young man and was, for the reasons I outlined earlier, the instigator of the incident leading to the commencement of the assault. The criminal record of the present offender is more serious than that of O’Connor but, in essence, there is not a great deal of difference between them in relation to that aspect of the matter. The subjective circumstances of the present offender are probably evocative of greater sympathy than those of O’Connor, although again there is not a major difference between their situations. Finally, the prospects of rehabilitation are probably greater in the case of O’Connor but this is, in my view, not a major point of distinction between them.

49 There are two areas however, where a comparison of the objective criminality of each offender in relation to the present offence leads to a difference. First, the fact that the present offender was the instigator of the incidents leading to the assault is a matter of aggravation that requires recognition in the sentence to be imposed upon him. Secondly, the fact that he was serving a periodic detention at the time and subject to a bond requires specific recognition in this sentencing process.

50 In my view, an appropriate sentence to reflect the various considerations I have outlined is, prior to discount for plea, a sentence of six years and six months imprisonment. After allowing a 15% discount for the plea, the resultant head sentence is a term of imprisonment of five years and six months. In setting a non-parole period, I will take into account the special circumstances that I have found to exist in the present case. It is agreed that I should back date the sentence to 21 October 2002.

51 Danny Avakian, I sentence you to a term of five years and six months imprisonment. The sentence is to commence on 21 October 2002. I set a non-parole period of three years and six months commencing on 21 October 2002 and ending on 20 April 2006. The offender will be eligible to be released to parole on that day, 20 April 2006.

52 I recommend that, while in custody, the offender receive appropriate counselling including psychiatric counselling, anger management counselling and counselling in relation to the control of drug and alcohol abuse.

53 I further recommend that, upon release pursuant to any parole order, the Probation and Parole Service consider, as part of any supervision programme relating to the offender, that he be required to accept the directions of the Probation and Parole Service in relation to receiving continuing counselling generally but extending to and including anger management. Further, that he be counselled and directed as to his use of alcohol and illicit drugs during any period of parole.

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Last Modified: 12/01/2003