Regina v O'Connor

[2003] NSWSC 1041

CITATION:	Regina v O'Connor [2003] NSWSC 1041
HEARING DATE(S):	04/08/03, 06/08/03, 07/08/03, 03/11/03
JUDGMENT DATE:	21 November 2003
JUDGMENT OF:	Whealy J at 1
DECISION:	Sentenced to a term of 5 years and 2 months imprisonment. The sentence is to commence on 27 January 2002. I set a non-parole period of 3 years and 2 months commencing on 27 January 2002 and ending on 26 March 2005. The offender will be eligible to be released on 26 March 2005. Recommend that, while in custody, the offender receive appropriate counselling including psychiatric counselling and anger management counselling. 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 direction of the Probation & Parole Service in relation to receiving continuing counselling including anger management. Further, that he be counselled and directed as to his use of alchol and illicit drugs during any period of parole.
CATCHWORDS:	Manslaughter plea
LEGISLATION CITED:	s 24 Crimes Act 1900 NSW Children's (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Hill (1981) 3 A Crim R 397 at 402 per Street CJ Macdonald (NSWCCA 12 December 1985) R v Dib [2003] NSWCCA 117 The Queen v Rutter [2003] NSWCCA 306 at para 9
PARTIES :	Regina v James Dean O'Connor
FILE NUMBER(S):	SC 70232/02
COUNSEL:	Ms L Wells - Crown Mr Turnbull - Offender
SOLICITORS:	C. K. Smith - DPP Ross Hill & Associates

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

WHEALY J

FRIDAY 21 November 2003

70232/02 - REGINA v James Dean O’CONNOR

SENTENCE

1 HIS HONOUR: On 7 August 2003 James Dean O’Connor (“the offender”) was indicted before me on a charge that he on 25 January 2002 at Cartwright in the State of New South Wales did murder Wayne Anthony Myers. To this charge the offender pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the plea in full satisfaction of the indictment.

2 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.

3 At approximately 10pm on Friday 25 January 2002 the deceased met up with his niece Melissa Lloyd at the home unit of Jodie Williams. Her home was in a large block of units overlooking Bendigo Place, Cartright. There were a number of persons present at this gathering. They included the deceased, Craig Chester, Garry McCormack, Gabriel Paleaae and Melissa Lloyd.

4 At about 11 o’clock Jodie Williams called a taxi and it was agreed that Melissa Lloyd and Gabriel Paleaae would give McCormack and the deceased a lift home. The two young women went down to Bendigo Place to wait for the taxi. They were soon joined by McCormack and the deceased. The group sat together in the gutter.

5 Shortly afterwards while they were waiting for the taxi, the group was approached by four males who came walking down a laneway. These were Danny Avakian, Kasey Glover (to whom I shall refer as K R G), Michael Whitmore and the offender.

6 Melissa Lloyd and the offender, who knew each other, commenced a short general discussion. The offender was drinking from a bottle of beer at that time. Avakian asked the deceased his name and then accused him of stealing mobile phones from young persons in the area. Avakian told the deceased that he had a gun and pointed a silver object at the deceased’s head. Melissa, Gabriel and McCormack all believed that this was a gun being held at the deceased’s head although it was in fact a silver mobile phone. Avakian made the deceased get down on his knees and said to him several times “Are you prepared to die tonight?” and “You are going to die tonight”.

7 At that point the girls who had been sitting in the gutter ran from the scene in panic. Melissa Lloyd ran crying upstairs to Jodie Williams’ unit to seek assistance. She told Jodie Williams and Craig Chester, “They have a gun”.

8 A resident who lived in a home unit in a block about 50 metres away saw one of the young men pull the deceased’s jacket down towards his arms restricting his movements. This witness saw the young men take turns to jump on the deceased’s head and to kick him. The only person who this witness recognised was Michael Whitmore.

9 Another resident, Troy Dawson, saw a number of incidents while looking through the screen door of his nearby single storey home. He saw the group of young men punching the deceased. He saw the deceased try to run away. He, was however, chased by two of the young men, slammed into a brick wall and punched further. He saw the deceased then fall to the ground. Dawson told his mother that someone was being bashed and she called an ambulance.

10 During the assault the deceased was stabbed by one or more of the accused. None of the witnesses saw the stabbing take place. It is accepted by the Crown that the deceased was not stabbed by the offender. It is also accepted by the Crown that the offender did not possess a knife that night. There is no evidence to suggest the offender was aware that any of the other accused was in the possession of a knife on that evening.

11 After the deceased fell to the ground, the persons involved in the attack ran from the scene. They ran past Jodie Williams’ unit. She saw two offenders jump the fence first. She recognised Whitmore standing near the fence and she recognised the offender when he was climbing the fence.

12 After some delay an ambulance arrived. The deceased was taken by ambulance to Liverpool Hospital and there was pronounced dead. Post-mortem examination revealed that the deceased had died from a stab wound to the chest. The stab wound had a wound track estimated between five to ten centimetres in length. The anterior wall of the pericardium had been cut so that there was a 3.5cm hole. The anterior wall of the pulmonary outflow track and valve had also been cut. There was also bruising to the soft tissue of the pulmonary track and aorta. In brief, all this means that the deceased was stabbed in the heart.

13 There was a second stab wound to the deceased’s back. The entry wound was above the right buttock and the wound track was from six to seven centimetres deep. Physical examination showed that 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 nose of the deceased. There was also bruising extending from the right eye and a petechial haemorrhage either side of the cornea of the left eye. In addition, there was bruising on the deceased’s scalp extending around the back of the scalp under the hair.

14 At around 3.30am on 26 January 2002 the offender returned to the vicinity of Bendigo Place. There he spoke with Jodie Williams and Craig Chester. He said words to the effect “It was not supposed to happen. I didn’t know anyone had a knife”. At the time he was “crying, very upset, he was distressed”. The offender, after this brief conversation, left the area.

15 On 27 January 2002 the offender had decided to hand himself in. He was with his mother and stepfather and knew police were looking for him. He was on that day arrested and taken into custody. He has remained in custody “bail refused” since that time.

16 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. I am satisfied beyond reasonable doubt that the facts I have found establish that manslaughter on the agreed basis was committed by the offender.

17 Before outlining the offender’s criminal history and examining his subjective case in some detail, it is desirable that I say something about the manner in which this young man comes before me for sentence.

18 I was the judge nominated to preside over the trial of all four accused. They were the four persons I have mentioned previously, namely Danny Avakian, Michael Whitmore, the present offender and K R G. Shortly prior to the commencement date of the trial, the Crown indicated that the accused Whitmore wished to plead guilty to a charge that he did assault Wayne Anthony Myers thereby occasioning actual bodily harm to him, while in the company of other persons. Whitmore in fact pleaded guilty to this charge and the Crown indicated that it proposed to take no further proceedings in relation to the murder indictment. Shortly after the assault, Whitmore had on 30 January 2002 gone to the police of his own volition and submitted to an interview. Later he took part in an ERISP which provided a number of the details of his version of what had happened at Bendigo Place on the evening of the killing. Whitmore indicated his willingness to give evidence in the event that charges were brought against the other young men involved in the assault on the deceased. In those circumstances, the Crown asked that he be sentenced prior to the commencement of the trial. On 5 August 2003 Whitmore was convicted of the offence to which he had pleaded namely, an offence under s 59(2) of the Crimes Act 1900 NSW. This offence carried with it a maximum penalty of imprisonment for seven years.

19 On that same day, the offender Whitmore was sentenced to a term of 18 months imprisonment with a non-parole period of 11 months taken to have commenced on 5 June 2003 and which will expire on 4 May 2004. As my remarks on sentence in that matter indicate, it was my view that an appropriate sentence in the circumstances of that matter prior to discount was an overall sentence of three years imprisonment. That sentence however, was discounted by 50% to reflect the utilitarian value of the guilty plea to the charge, contrition and level of assistance to law enforcement authorities. I found special circumstances so as to warrant a variation of the statutory proportion between head sentence and non-parole period.

20 The trial against the remaining three accused was then scheduled to commence on Wednesday 6 August 2003. On that day, however, the Crown made an application for an adjournment of the trial until the following morning. This followed discussions between the Crown and Mr Turnbull of counsel for the present offender. On that day the offender entered the plea which, as I have said, was accepted by the Crown in full satisfaction of the indictment. The substantial portion of the sentence hearing was stood over until the 3 November 2003 on which date submissions and evidence were received. I then stood the matter over until today for the pronouncement of sentence.

21 The trial involving the remaining two young men namely, Danny Avakian and K R G commenced on 6 August 2003. After a number of days of hearing, the accused Danny Avakian was, at his request, re-arraigned. This occurred on the afternoon of 12 August 2003. At that time he pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment and the sentencing proceeding was adjourned until 7 November 2003 when evidence and submissions were received. It will be my intention to sentence the offender Avakian today shortly after I have imposed sentence on the present offender.

22 A fresh indictment was presented against K R G on the afternoon of 12 August 2003. This indictment charged that the accused on 25 January 2002 at the Cartright in the State of New South Wales did assault Wayne Anthony Myers thereby occasioning actual bodily harm to him while in the company of other persons. To this charge K R G pleaded guilty and the Crown announced that it would thereupon proceed no further with respect to the indictment for murder and its alternative of manslaughter so far as K R G was concerned.

23 Essentially because of the youth of K R G – he was then 17 years of age - and the fact that he had been in detention since 26 January 2002, it was decided to accelerate the hearing sentence proceedings in his case. Evidence and submissions were received on 14 August 2003 and on that day I determined first that the young person should be dealt with under Division 4 Part 3 of the Children’s (Criminal Proceedings) Act 1987. Secondly, I ordered the release of K R G on probation on that day, the period of probation to be for a period of 12 months subject to certain specified conditions.

24 It is necessary only to refer to two matters of importance arising out of the remarks on sentence made in relation to K R G. First, I was satisfied on the evidence placed before me that the deceased was not stabbed by K R G nor did K R G possess a knife on that night. I was also satisfied that there was no evidence to suggest that K R G was aware that any of the other participants in the assault was in the possession of a knife that evening. Secondly, for the reasons stated therein, I was satisfied that there were significant differences between the situation of K R G and that of Mr Whitmore. These related to the difference in age between the two young men and to the special considerations arising under the legislation under which K R G came to be sentenced.

25 I should now say something about one further matter which, in my view, is important not only in relation to this present offender but in relation to all the co-offenders.

26 The deceased was a young man whose life was taken quite needlessly and quite brutally. He died from a stab wound to the heart. Although the deceased was assaulted to one degree or another by all of the co-offenders, none of their kicks or blows killed him or for that matter were likely to kill him. It was, as I have said, the stabbing with a knife that ended the life of the deceased. The Crown has accepted pleas to manslaughter in the case of both Avakian and O’Connor, notwithstanding that they were originally indicted for murder. The Crown in the case of Whitmore and K R G presented fresh indictments for assault in company against each of those two young men, notwithstanding that they had originally been charged with murder.

27 At that stage, the Crown indicated that it would not proceed with the murder charges against Whitmore or K R G. Each in turn pleaded guilty to the assaults and has been dealt with on that basis.

28 All this means that, whoever it was that stabbed and killed the deceased, - and it may well have been one of the four offenders I have dealt with – has not been brought forward for punishment to face the full level of criminal responsibility arising from the knifing of the deceased. It is no doubt the case that the Crown has taken the approach it has because it simply cannot prove beyond reasonable doubt who it was that struck the blow with the knife in Bendigo Place on the evening of 25 January 2002.

29 As disappointing as it may seem from the point of view of legitimate community expectation that such a situation results, especially in the case of an apparent murder, this is the reality that must and does from time to time confront both the Court and the community. Importantly, from the court’s point of view, it then becomes necessary to state that it is not the court’s role to punish any of the young men who were involved on the basis that it was he who stabbed the deceased. It would indeed, be contrary to proper principle to do so.

30 Rather, especially in the case of the manslaughter pleas, the basis of punishment can only be, as I earlier indicated, that each person coming forward for sentence accepts that he was acting in concert with the other young men with a shared intention to assault the deceased. Neither O’Connor or Avakian are to be punished because their actual assaults brought about the death of the deceased. They plainly did not and could not have done so. On the other hand, each offender accepts that the overall consequence of the joint criminal enterprise was that the deceased did in fact die. This is an important distinction and it needs to be recognised in the sentencing process.

31 I turn now to consider the present offender’s criminal history. In 1994 the offender was placed on a bond to be of good behaviour for a period of six months. This bond was ordered by the Lidcombe Children’s Court and related to the illegal use of conveyance. In 1995 a control order was imposed on the offender relating to a charge of sexual intercourse with a child under the age of 16. There was an appeal to Parramatta District Court which resulted in the dismissal of the appeal and the substitution, in place of the control order, of a probation order for two years.

32 In 1996 the offender was fined for possession of an offensive implement in the Lidcombe Children’s Court. In that same year he was dealt with in Campbelltown Local Court and received a sentence of periodic detention for three months relating to the illegal use of a conveyance. There was also a fine imposed in 1997 in relation to a charge of disorder. Finally, in the Liverpool Local Court in 2001 the offender received a small fine for possession of a prohibited weapon without permit.

33 I turn now to consider the offender’s subjective circumstances. Mr O’Connor gave evidence before me. He is 25 years of age and has been in Parklea Prison since 27 January 2002, bail refused. He has found this a very difficult experience but has done his best to use his time sensibly and usefully while in custody. He produced a series of certificates which demonstrate that he has attempted to address anger management issues as well as alcohol and drugs prevention. In particular, he has enrolled in TAFE courses which will enable the continuance of his apprenticeship as a Welder/Boilermaker. He expressed a wish to make his career in this field and it is clear that he has made progress in this area while in prison. There are other certificates as well which generally support the proposition that the offender has taken a number of positive steps towards rehabilitation. He is hopeful that he will get his job back when he is released from custody. The offender said that the experience of gaol has changed him so as to want to become a better person. He described his way of living before the commission of the offence. It appears that it was quite common for him to get drunk or take drugs on weekends and “hang around” with the wrong people. The offender maintained that as a result of his experiences in prison he will be a better person when he comes out into the general community.

34 The offender wrote a letter for the benefit of the court and read this during the giving of his evidence. He expressed his regret to the family of the deceased for his death and asked for their forgiveness. He reiterated his resolve to become a useful member of society and confirmed that he had worked at the Engineering Department at Parklea for 18 months. He apologised to his own family for putting them through the stress of his criminal activity and his resultant time in gaol.

35 The offender’s mother also gave evidence. She has been a resident of Cartright for about 13 years. She is presently in a de facto relationship and has a young child of two years and three months from that relationship. She also has a 17 year old son – the offender’s half-brother – from another relationship. She is a primary school teacher. Mrs O’Connor’s evidence confirmed that the offender had got in with the wrong crowd in the year or so leading up to the assault upon the deceased. She was told by the offender that he was using amphetamines and she knew he was drinking too much. She said that he looked very unhealthy at that time but that, strangely enough, his time in gaol has meant that he is much fitter and more healthy than he was prior to the assault. She confirmed that he had expressed contrition and remorse for the death of the deceased and also for the distress that it has caused his family. She said that his decision to plead guilty was made in the context of sparing both the deceased’s family and his own from putting up with the trial. Mrs O’Connor has kept in constant touch with her son and sees him about once a week or once a fortnight in Parklea Prison. She said that he was a person who was easily led and a person who lacks judgment about people. She believes however that his judgment may be now better as a result of his experiences. She is hopeful that he will be rehabilitated in the family environment and indeed, she is proposing to move the family from the Cartright/Miller area once her 17 year old son has finished his Higher School Certificate this year.

36 There is a lengthy report from Dr John Taylor, a Clinical Forensic Psychologist who saw the offender on 30 October 2003.

37 First the history given to Dr Taylor confirms that the offender was raised, during his early years, in a dysfunctional and unstable family environment. His father was an alcoholic, was abusive to his mother and left the family home when the offender was about seven. His mother, however, has been very supportive of the offender and he has maintained a close relationship with her. Secondly, the offender was quite a poor student at school and his present level of ability is assessed at being within the low average range. Thirdly, his personality tests do not reveal any personality or emotional disturbance although he does have some instability in his functioning. Dr Taylor thought there was a low likelihood of recidivism in general with about an average likelihood of violent recidivism provided that the offender refrained from abusing alcohol and drugs. Finally, the offender expressed to Dr Taylor considerable regret in relation to his behaviour in relation to the subject offence. Dr Taylor thought the offender had gained insight, into a number of aspects of his life particularly in relation to his substance abuse.

The sentence

38 It is now necessary to come to a conclusion in relation to the appropriate sentence to be imposed upon the offender in relation to the offence of manslaughter to which he has pleaded guilty. 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. See Hill (1981) 3 A Crim R 397 at 402 per Street CJ; Macdonald (NSWCCA 12 December 1985). (In the latter case the Court of Criminal Appeal emphasised the taking of a human life is a most serious matter. At p 8 the Court stated: -

“In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of a human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide whatever form it takes, has always been recognised by the law as a most serious crime (See R v Hill). The protection of human life and personal safety is a primary object of the system of criminal justice. The value which the community places upon human life is reflected in its expectation of that system.”

39 In Hill, Street CJ said: -

“In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interests of society in protecting itself and its members from criminal activity as, in the present case, the taking of a life.”

40 It is against the background of these principles that I turn to consider the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is also necessary to have regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

41 There are, it is conceded a number of aggravating factors. The offence involved the actual use of violence; the offender has a record of previous convictions and the offence either completely or to a substantial degree was committed in company. The first and third of these matters are to a degree subsumed by the offence itself, having regard to the particular circumstances in this case of the unlawful and dangerous act causing death. The second I consider is of no consequence in the present matter, save as it is likely to impact on parity considerations.

42 There are however, a number of mitigating factors. I am satisfied that the offence was not part of a planned or criminal activity; rather it was something that happened on the spur of the moment. Secondly, I am satisfied that the offender in this matter has shown remorse for the offence. First, there was an element of remorse in the conversation the offender had with Jodie Williams and Craig Chester on 26 January 2002. No doubt, this element was somewhat inter-mingled with the realisation that the offender undoubtedly had as to the predicament in which he was now placed. But, as I say, there was an element of remorse in it. On 27 January 2002 he was on the way to see his solicitor and had decided to give himself up to the police when he was arrested. There were also the statements of contrition made to his mother and the statements made to the court at the time of the sentence hearing as reflected in both his oral evidence and the letter Exhibit 1. Taken together, I think it may be fairly said that the offender has expressed genuine remorse and contrition.

43 Thirdly, despite the fact that he has previous convictions and yet has offended again in relation to the present offence, I think there are reasonable prospects of rehabilitation for this young man. The evidence of Dr Taylor, Mrs O’Connor and the offender himself, I think, entitle the court to come to a cautious conclusion that rehabilitation is a likely prospect. The offender will need continued counselling in relation to anger management and especially in relation to his attitude to drugs and alcohol. I should add that I do not consider that alcohol is to be regarded as either an aggravating or mitigating factor in the present matter. There is no doubt that the offender had been drinking alcohol on the evening of the assault but he was no stranger to alcohol nor to the impact it had on him. It is true as the Crown argued that one of the previous offences in the criminal history of the offender was one in which misbehaviour and alcohol was related. I am not however, satisfied that this is sufficient to satisfy me that alcohol is to be treated as an aggravating factor in the circumstances of the evening of 25 January 2002. The violent attack on the unfortunate deceased began in a completely unplanned and haphazard manner.

44 This brings me to the question of the offender’s plea. I have earlier set out the timing and circumstances of the plea. I am unable to accept Mr Turnbull’s submission that the circumstances demonstrated that the plea had been entered at the earliest reasonable opportunity. 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 7 August 2003. This was some 20 months after his arrest and four months after his arraignment. The plea was not made until the morning of the first day of the trial. I am unable to accept the proposition that the earliest opportunity for plea is at the point of time when the Crown finally indicates to an offender that it is prepared to accept the plea to the lesser or alternative charge in full satisfaction of the indictment. This is especially so in the case of the charge for murder where, as I have said, manslaughter is always an alternative. Further it is necessary to recognise that even where a plea is offered at the first reasonable opportunity, this does not mean that automatically a full discount for the plea should be given (R v Dib [2003] NSWCCA 117) Nevertheless, the offender is entitled to a discount for the plea of guilty (s 22 of the Crimes (Sentencing Procedure) Act 1999). This is to reflect the utilitarian value of the plea and the willingness it recognises on the offender’s part to assist and facilitate the course of justice. In my view, in the circumstances of this case, a discount of 15% is appropriate in relation to the plea.

45 One of the principal arguments advanced by Mr Turnbull related to a comparison of the situation between the offender and the two co-offenders Whitmore and K R G. Of course, Mr Turnbull acknowledged, as he was bound to do, that the principles of parity did not arise in such a comparison. The co-offenders pleaded guilty in each case to a charge of assault in company. I have earlier set out in some considerable detail the situation in relation to each of those two co-offenders. Mr O’Connor however pleaded guilty to a more serious charge, that of manslaughter. The charge was not only more serious but carried a significantly greater maximum penalty. Moreover, one important consequence of the plea to the charge of manslaughter is the recognition that the dangerous and unlawful act, in which the offender was involved, was one which resulted in the death of the deceased. This is a significant matter of contrast to the offences to which Whitmore and K R G had pleaded guilty. Moreover, K R G was dealt with under the legislation relating to offences by children. The situation of Whitmore was also markedly different from that of the present offender in that he was held entitled to a 50% discount for plea, remorse and assistance to the authorities.

46 Notwithstanding this appropriate concession by Mr Turnbull, he nevertheless argued that it would be unfair and unjust, in all the circumstances, were the present offender to receive a substantially greater penalty than had been imposed on the two co-offenders. The basis of this submission was Mr Turnbull’s argument that the factual basis on which all the offenders were dealt with, namely that they were acting in concert with other young men with a shared intention to assault the deceased, justified the approach he advocated. I am unable to agree with this submission The concessions made by Mr Turnbull that the principles of parity do not arise in the present matter really negate the submission. First, the offender’s plea acknowledges that an unlawful and dangerous act for which he was criminally responsible caused the death of the deceased. Secondly, the plea acknowledges that the offender must be sentenced on the basis that the unlawful and dangerous act causing death carried with it, in an objective sense, an appreciable risk of serious injury to the deceased. It needs to be emphasised that the fact that there may arise a disparity between the sentences imposed upon the offender and his co-offenders does not of itself infringe the parity principles. It is only where the disparity cannot be explained by reference to a difference in the criminality of the offenders or their subjective circumstances or the proper application of sentencing principles that the grievance is a justifiable one. (The Queen v Rutter [2003] NSWCCA 306 at para 9).

47 What then is an appropriate sentence to impose in the present matter? The sentence to be imposed must acknowledge the principles I have set out earlier in these remarks in relating to the denunciatory role of sentencing particularly in the case of manslaughter. It is important in my view that those principles not be devalued or debased in any way. Moreover, there is a particular need in the present matter that the penalty be such as to punish the offender for the offence and at the same time to act as a deterrent not only to this offender but towards other persons. The sentence to be imposed must make it absolutely clear that acts of violence in the streets of Sydney and its suburbs are to deplored and denounced by the sentencing process. This is particularly so in circumstances where one person is set upon by, in effect, a gang of young men intent upon doing violence in a brutal and cowardly manner. That said, it needs to be repeated that the offender comes to be sentenced essentially for his involvement in the unlawful and dangerous act committed on the deceased but not for the knife stab which actually killed the deceased. The sentence must of course, also encourage rehabilitation and reform on the part of the offender.

48 I have come to the conclusion, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in the present matter. Indeed, the contrary was not argued by Mr Turnbull. 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. The circumstances that I have earlier outlined recognised that the subjective circumstances of the offender are reasonably strong. 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 offender would plainly benefit from a lengthy period of paroled supervision with conditions requiring general counselling and the continuance of treatment for continued drug and alcohol avoidance.

49 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 imprisonment. After allowing a 15% discount for the plea, the resultant head sentence is a term of imprisonment of five years and two 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. The offender has been in custody, bail refused, since 27 January 2002. I propose to back date the sentence to take into account this period of time spent in custody.

50 James Dean O’Connor, I sentence you to a term of five years and two months imprisonment. The sentence is to commence on 27 January 2002. I set a non-parole period of three years and two months commencing on 27 January 2002 and ending on 26 March 2005. The offender will be eligible to be released to parole on that day, 26 March 2005.

51 I recommend that, while in custody, the offender receive appropriate counselling including psychiatric counselling and anger management counselling.

52 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 direction of the Probation and Parole Service in relation to receiving continuing counselling 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