Regina v Stuart Carrick; Regina v Leslie James Parkes

[2002] NSWSC 707

CITATION:	Regina v Stuart Carrick; Regina v Leslie James Parkes [2002] NSWSC 707
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 70007/02; 70203/02
HEARING DATE(S):	31 July 2002; 2, 6 and 8 August 2002
JUDGMENT DATE:	9 August 2002
PARTIES :	Regina v Stuart Carrick Regina v Leslie James Parkes
JUDGMENT OF:	Buddin J

COUNSEL :	M Barr - Crown C Davenport - Offender Carrick J Gordon - Offender Parkes
SOLICITORS:	SE O'Connor - Crown Legal Aid Commission of NSW - Offender Carrick Jeffreys & Associates - Offender Parkes
CATCHWORDS:	Homicide charges "no billed" - pleas of guilty to non-homicide offences at "first reasonable opportunity" - malicious wounding and related offences committed upon a vulnerable victim - application of s 21A of the Crimes (Sentencing Procedure) Act 1999 - lengthy period of time spent in maximum security awaiting disposal of matters - "special circumstances" - need for rehabilitation of alcohol dependent offenders - need for proper relationionship between sentences of persons not strictly co-offenders
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
CASES CITED:	Cameron v The Queen (2002) 187 ALR 65 De Simoni v The Queen (1981) 147 CLR 383 Maxwell v the Queen (1995) 184 CLR 501 Pearce v The Queen (1998) 194 CLR 610 R v Doan (2000) 50 NSWLR 115 R v Simpson [2001] NSWCCA 534 R v Taylor NSWSC, unreported 20 April 2002 R v Thomson & Houlton [2000] 49 NSWLR 383
DECISION:	Carrick - Count 1- common assault - sentenced to a fixed term of 6 months imprisonment to commence on 21 August 2000 and to expire on 21 February 2001. Count 3 - assault occasioning actual bodily harm - sentenced to a fixed term of 18 months' imprisonment to commence on 21 August 2000 and to expire on 21 February 2002 to be served concurrently with the sentence imposed in respect of count 1. Count 2 - maliciously inflict grievous bodily harm - sentenced to 3½ years imprisonment to commence on 21 February 2002 and to expire on 20 August 2005 with a non-parole period of 15 months' imprisonment to expire on 20 May 2003; Parkes - count 6 - malicious wounding - sentenced to a fixed term of 9 months imprisonment to commence on 21 August 2000 and to expire on 21 May 2001. Count 4 - malicious wounding - sentenced to a fixed term of 18 months' imprisonment to commence on 21 August 2000 and to expire on 21 February 2002 which is to be served concurrently with the sentence imposed in respect of count 6. Count 5 - malicious wounding - sentenced to a term of 3½ years imprisonment to commence on 21 February 2002 and to expire on 20 August 2005 with a non-parole period of 15 months to expire on 20 May 2003.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

9 August 2002

70007/02 – REGINA v STUART CARRICK
70203/02 - REGINA v LESLIE JAMES PARKES

SENTENCE

1 BUDDIN J: On 31 July this year each of the offenders pleaded guilty to various offences which involved the infliction of some form of injury to Michael Francis Smith at Riverwood in August 2000. The offender Carrick pleaded guilty to three offences, namely to an assault upon Mr Smith which occurred on or about 7 August; to maliciously inflicting grievous bodily harm upon him which occurred on or about 15 or 16 August and to an assault occasioning actual bodily harm to him which occurred on 21 August. The offence of maliciously inflicting grievous bodily harm attracts a maximum penalty of imprisonment for seven years whilst assault occasioning actual bodily harm and common assault have maximum penalties of imprisonment for five years and two years respectively.

2 The offender Parkes pleaded guilty to three separate counts of malicious wounding which occurred on or about 15 August; on or about 15 or 16 August, and on or about 19 August respectively. The maximum penalty for that offence is imprisonment for seven years.

3 Each of the offenders has been in continuous custody since their arrests on 21 August 2000. Accordingly I intend to order that the sentences, which I am shortly to pronounce, will commence on that date.

4 It is necessary to record some of the background history of the matter. Each of the accused was originally charged with the murder of Mr Smith who died on 23 August 2000. They faced a committal hearing. A “bill” was subsequently found in respect of each of the offenders on a charge of murder alone. At a directions hearing shortly before the trial was due to commence the Crown foreshadowed its intention to present an indictment in a rather different form. The Crown indicated that a number of alternative charges, not amounting to a homicide, were to be included in the indictment together with a number of separate charges alleging various forms of assault that could not in any way be said to have contributed to the death of Mr Smith. The Crown candidly acknowledged that the alternative charges had been included in the indictment because of the possibility that the jury may not be persuaded that the relevant act or acts alleged against the particular accused had caused the death of Mr Smith. It has now become apparent that the scope and content of the indictment was thereafter subject to considerable discussion between the parties.

5 The foreshadowed indictment itself underwent a number of changes although the count for murder and an alternative count for manslaughter remained upon it at all relevant times until 31 July. By that stage the Crown acknowledged, having received further medical reports, that it could not establish its case to the requisite degree upon the issue of causation in relation to either murder or manslaughter. It may be observed that at the time of his death Mr Smith was found to be suffering from meningitis, pneumonia and overwhelming sepsis. It is not suggested that either of the offenders were aware of the existence of those conditions.

6 In all the circumstances the Crown concedes that the date upon which the offenders pleaded guilty was the first occasion upon which they were afforded the opportunity to plead to the indictment in its final form.

7 The Crown informed me that in consequence of the pleas of guilty that the murder and manslaughter counts would be “no billed.” It is trite to say, subject to considerations that are not presently relevant, that it is a matter for the prosecuting authorities alone to determine what course will be taken in relation to the acceptance of pleas of guilty in full satisfaction of any indictment or foreshadowed indictment which it is minded to present. See Maxwell v The Queen (1995) 184 CLR 501.

8 It is axiomatic that I will be sentencing each of the offenders only in respect of the matters to which they have pleaded guilty. Indeed it would be contrary to principle to proceed upon any other basis. See De Simoni v The Queen (1981) 147 CLR 383. Accordingly, it is no part of my function to have any regard to the fact that Mr Smith died shortly after the incidents for which each of the offenders have accepted responsibility. Furthermore it is to be noted that the offenders have pleaded guilty to individual counts. I will therefore proceed to sentence them upon that basis having regard only to those matters which have been proved against each of them individually.

9 It is appropriate to say something about the context in which the offences occurred. The offender Carrick had known the deceased for a period of about eight years. It appears that they had originally met at a refuge for homeless people. They had met up again at some stage in the months before the events which culminated in Mr Smith’s death.

10 Some time after they had met up again, the offender Carrick had invited the deceased, whom he described as being “in a bad way”, to move into his Housing Commission flat with him. It was a very modest bedsitter in Riverwood. The deceased, who was intellectually impaired, was in poor health and by August 2000 was suffering from pneumonia. On 31 July 2000 he was struck by a car whilst he was out walking and as a result was hospitalised. The offender Parkes lived in the next door unit and for a short period of time the deceased also stayed with him. It appears however that he soon wore out his welcome and was thereafter “barred” from entering those premises.

11 The offender Carrick had a fiancée named Helen Davies. At various times one or other of them requested that the deceased move out of the flat owned by the offender Carrick. On those occasions the deceased slept in the laundry at the rear of the block of flats or underneath the flats.

12 All four of them, that is the deceased, the two offenders and Ms Davies, were heavily dependent upon alcohol and regularly drank to excess.

13 The relationship between each of the offenders and the deceased was volatile. Although there were occasions on which they enjoyed friendly relations, it is clear that there were also times of considerable hostility and acrimony. On a number of occasions each of the offenders accused the deceased of stealing money from them. It would appear that each of the offenders reacted unfavourably when they felt that their hospitality was being abused.

14 I now turn to consider the facts which are relevant to the individual counts to which the offender Carrick has pleaded guilty. In relation to count 1, William Gibbs, a neighbour, saw the deceased on the day in question with bruises all over his face. When Mr Gibbs asked the offender Carrick what had happened, he was told that he (the offender) had given the deceased a couple of punches because the deceased had “flogged stuff” from him. Some time later the offender Parkes had entered the unit. He proceeded to place a saucepan, which he had obtained from the kitchen, over the deceased’s head and had then said “watch this.” He had then picked up a metal pipe with which he had then hit the saucepan a number of times. (It is to be noted that there are no charges against the offender Parkes in respect of this incident). The offender Carrick who was intoxicated at the time had then appeared and had proceeded to kick the deceased in the ribs on his left side. The offender Carrick had then retrieved the pipe from the offender Parkes and returned it to the kitchen.

15 In relation to count 2, it is to be noted that there is considerable confusion as to precisely when the incidents in question occurred given the imprecision in the recollections of the various witnesses who observed them. On a day around about 15 or 16 August a neighbour named Dieter Shaar heard shouting coming from the units occupied by the two offenders. He then observed that the deceased was bleeding from the face. He heard Ms Davies call out “My arm, my arm, the bastard, Stuart kill him.” William Gibbs spoke to the offender Carrick who told him that “we just made Mick clean up all his blood off the toilet walls.” Mr Gibbs then went to the toilet where he observed specks of blood on the wall. He also noticed that the deceased had blood all over his head. There was a big gash on the back of his head that had been bleeding. He also observed bruising. He then helped the deceased to clean himself up.

16 Mr Gibbs was having a conversation with the offender Carrick in the latter’s flat when the offender Parkes arrived. Parkes went into the toilet area where the deceased was and hit him a number of times “left, right and centre” with a metal pipe. At about this time the offender Carrick kneed the deceased to the chest and stomach area and then punched him in the ear causing him to lose a portion of his ear. The blows also caused the deceased to have black eyes. Mr Gibbs intervened and pulled the offender Carrick away. Carrick then calmed down and pulled Parkes away from the deceased who was at the time cringing on the floor. He then removed the metal pipe from Parkes.

17 The offender Carrick told police that his involvement in this incident had been precipitated by an attack by the deceased upon Ms Davies and himself with an object, which was variously described as either an iron bar or a curtain rod, causing an injury to her wrist. It is quite possible that that altercation arose from an argument about the payment of money for the purchase of alcohol. Ms Davies visited a doctor on 17 August in respect of the injury to her wrist. In the circumstances the Crown does not dispute the version put forward by the offender Carrick. That being so, I accept the submission that the offender Carrick’s actions were not entirely unprovoked. Nevertheless, as was conceded on his behalf, his response was quite disproportionate to what was called for in the circumstances.

18 The offender Carrick told another witness, who had seen the injuries to the deceased, that “he ripped me off so I bashed him…he deserves it and he’ll keep copping it.” A few days later he was observed by two other neighbours with what looked like a smeared dried blood mark on his shoes. The offender Carrick told them that the deceased was a thief. He said “I really let him have it this time I took a bit out of his ear. Look at me shoes where I kicked the little bastard in the head.” The offender Carrick told Dr Nielssen that he had repeatedly punched the deceased with fists “causing bruising around both eyes, bleeding from the nose and mouth and that he had tor[n] off a piece of earlobe.”

19 On 21 August the offender Carrick was told by the local bottle shop owner that he should ease up on the deceased. The offender Carrick agreed and said that “[h]e has had enough.” He then said that “[h]e cops a hiding well, he hasn’t complained once.”

20 Before I pass from a consideration of the facts pertaining to count 2, it is necessary to refer to a further matter about which a factual dispute has arisen. The Crown alleges that at the time the offender tore the deceased’s ear he also kicked the deceased breaking some of his ribs. The offender Carrick denies having kicked the deceased in the ribs. He also puts in issue the contention, assuming that it was found against him that he had kicked the deceased in the ribs, that he had thereby caused his ribs to break.

21 The Crown relies primarily upon the evidence of Mr Gibbs to establish that the kicking in the ribs occurred on an occasion which it asserts was about 15 or 16 August. There is a reference in that witness’ statement to the offender Carrick having kicked the deceased in the left side on one occasion. It is clear however that it is this incident which gives rise to count 1 in the indictment which, it is agreed, occurred on about 7 August 2000. So far as count 2 is concerned, the particular injuries which the Crown seeks to attribute to the offender Carrick were those discovered by Dr Cala when he performed an autopsy upon the deceased on 24 August 2000. He found that there were “fractures of the left fourth to seventh ribs at the front, that is anteriorly, and on the right side of the chest, again at the front, the right fifth to eight ribs.”

22 The only reference in Mr Gibbs’ statement that could possibly relate to this contested factual issue emerges from his assertion that, at the relevant time “Stewy (that is the offender Carrick) layed (sic) a couple into him by kicking him.”

23 Although I did not have the opportunity to make an assessment of Mr Gibbs in the witness box, I was provided with the transcript of his evidence from the committal hearing. A fair reading of that transcript leads me to conclude that by the time he came to give his evidence he had very little independent memory of the events in question. Moreover the cross-examination revealed that he had significant problems recalling the sequence in which events took place and indeed the days or dates upon which they were said to have occurred. He was not so much an untruthful witness as an unreliable one in material respects.

24 The only other material upon which the Crown relies is a short extract from a letter which the offender wrote to a nun in April this year. In it he included within the description of the deceased’s injuries the fact that he had sustained two broken ribs. That material, in the form in which it has been provided to me, is not sufficiently unambiguous in my view to be treated as an admission in the present context. Accordingly, having regard to the state of the evidence I am unable to conclude to the requisite standard that it was the action or actions of the offender Carrick, that caused the deceased’s ribs to break. Accordingly I disregard that matter for the purposes of sentencing.

25 Evidence was also called by the Crown from Dr Cala and on behalf of the offender Carrick from Dr Gatus upon this question of what may have caused the deceased’s fractured ribs. It is common ground that shortly prior to the arrival of the ambulance which transported the deceased to hospital on August 21, that a neighbour named Mathew Barry, in an inexpert endeavour to administer CPR to the deceased, punched him several times in the chest area. Dr Gatus, although not having had the advantage that Dr Cala had of conducting a microscopic examination of the deceased’s ribs, nevertheless formed the opinion that it was the administration of the CPR by Mr Barry which caused the ribs to fracture. Dr Cala disagreed. He gave evidence that the fractures would have occurred at an earlier point in time than the occasion on which CPR was administered. It must be said however that his evidence as to precisely when it was that the fractures did occur is not entirely clear. It is certainly not conclusive upon the issue. Nevertheless given the views which I have earlier expressed about this issue, I do not have to finally decide the matters raised by the medical evidence.

26 In relation to count 3, Mr Barry, who lived upstairs, heard yelling and shouting coming from the direction of the offender Carrick’s flat. When he arrived there he observed that the deceased was sitting on a chair on the landing outside the unit. Both offenders and Ms Davies were also in the vicinity. The deceased was trembling and holding his hands up in an apparent attempt to protect himself. Mr Barry told the offenders to stop yelling at the deceased and that he had had enough. He told them that they were going to kill him. He told the offender Carrick that he should not hit the deceased. The offender Carrick told Mr Barry that the deceased had opened a package of bread and left it out in the sun. The offender said that he had only clipped the deceased across the back of the head. He subsequently told police that he had “clipped him on the ear today.” He also told police that he was mucking around when he hit the deceased because the latter was being cheeky.

27 Mr Barry went back upstairs. Fifteen minutes later he heard Ms Davies yelling to the offender Carrick to stop and to get off the deceased. He returned downstairs and observed the offender Carrick kneeling over the deceased. Because the deceased appeared to be unconscious, Mr Barry told them to call an ambulance. Mr Barry was able to observe that the deceased’s head was bleeding. He also noticed blood on the carpet behind his head. An ambulance officer observed, when he arrived some time later, that there was an open wound on the back of the deceased’s head about 2 – 3 centimetres in length. He also noticed bruising to the deceased’s face and lacerations to his head and facial area. When police arrived they observed that there were bloodstains around the tiled entrance to the inner courtyard stairs. There was also blood on the white railing adjacent to the stairs.

28 When asked by another neighbour what had happened to the deceased, the offender Carrick replied that he had “slipped on a piece of paper.” When spoken to by a police officer at the scene about the deceased’s condition he said that “We done everything by the book. Mate I’ve known that bloke for flaming 10 years, why the hell would I want to do that to him. Why the hell would I want to hurt him?”

29 I now turn to consider the facts which are relevant to the individual counts to which the offender Parkes has pleaded guilty. In relation to count 4, Mr Gibbs saw the offender Parkes hit the deceased about three times with a metal pipe. It caused his skin to break but there was no bleeding. He heard the offender Parkes say “Count your days, your number is coming up.” Mr Gibbs observed that there was a split about 7 cm long and a lump on the deceased’s head. He said that the deceased appeared to be a little bit groggy.

30 So far as count 5 is concerned, I have already adverted to the nature of his participation in this offence when I was referring to the facts which constituted the offender Carrick’s involvement in count 2. It involved, in short, the offender Parkes hitting the deceased an unspecified number of times with the metal pipe. Even after Mr Gibbs intervened to get the offender Parkes off the deceased, Parkes continued to kick and punch him. On 17 August the deceased’s face was observed by Mr Barry to be covered in bruises and abrasions.

31 On 19 August the offender Parkes told neighbours that he had hit the deceased for stealing $1.30 from him. He showed them his hand which was bruised and swollen. On the same day the offender Parkes asked Sam El Chami to take a photo of the deceased. Those photos are in evidence before me in the case against each offender and they graphically reveal the extent of the deceased’s facial injuries.

32 A photo of the metal rod used by the offender Parkes in the commission of the offences which are counts 4 and 5 in the indictment is also in evidence. Suffice it to say that it is a weapon that it is clearly capable of inflicting significant injury. Moreover it is apparent from a description of his injuries, from the photos taken by Mr El Chami and from further photos taken during the post-mortem, that significant head and facial injuries were in fact inflicted upon the deceased. Nevertheless I take into account as a matter entitling the offender Parkes to some mitigation of the otherwise appropriate penalty the fact that he said that he too was provoked by the deceased hitting him with an iron bar at the same time as the attack upon Ms Davies. He said that he had responded by giving the deceased a “backhander” which resulted in the injuries to which I have just referred.

33 In relation to count 6, Mr Skiadopoulos, a neighbour of the offender Parkes, saw the deceased attempting to climb up the stairs whilst tied to a box trolley. He was dragging himself along with a rope which tied his feet to the trolley. He also had a rope tied around his neck that was also attached to the trolley. The deceased’s face was swollen and bruised and there was blood dripping from his mouth. The offender Parkes told Mr Skiadopoulos that the deceased was a thief and that he deserved everything that he got.

34 There is no issue about the fact that by the time the ambulance was called to attend upon the deceased that he was at a very low ebb both physically and mentally. His physical injuries were extensive. Each of the offenders must accept their share of responsibility for the condition in which the deceased then found himself. Not only was he a man of considerable vulnerability because of his intellectual deficits but his physical condition was also compromised. He had been subjected to attacks of varying severity upon a number of occasions by each of the offenders in the preceding days. Although it may be accepted that some provocation may have been offered, there is no question but that there was a degree of callousness in some of their responses. It would appear that the deceased, for the most part, did not or indeed was not capable of offering any resistance. Moreover the deceased’s vulnerability would have been apparent to each of the offenders. So too would have been the fact that his condition was deteriorating as time went by. The use of a weapon by the offender Parkes, it scarcely needs to be said, is a factor which aggravates the offences in which he was involved.

35 I turn now to consider those matters which are personal to each of the offenders. Neither offender gave evidence during the sentence proceedings. Background details about the offender Carrick however emerged from reports about him prepared by Dr Nielssen, who is a forensic psychiatrist and by Dr Lennings who is a psychologist. He is now aged 41. He was adopted at an early age and has a twin brother with whom he has had a difficult relationship and from whom he is now estranged. He did not perform well at school and was often in trouble. He seems to have acquired few vocational skills and has only worked on an intermittent basis during his adult life.

36 He was married for a period of two and a half years during which time a son was born. However he has no contact with the boy who is now aged 16. He has two other children from another relationship which has now also ended. Those children are in the care of the Department of Community Services.

37 The offender Carrick has always had difficulty making and maintaining relationships with other people. It is clear that most of his friendships have been with other dysfunctional people in which a mutual dependency upon alcohol has figured prominently. Interpersonal conflict, fights and disharmony have been a feature of his relationships.

38 He has also periodically suffered during adulthood from depression. He informed Dr Nielssen that he had on several occasions attempted to take his life after events, which he found to be traumatic, had occurred. Although he has used illicit drugs at various times, it is clear that his main drug of abuse has always been alcohol. Indeed Dr Nielssen diagnoses him as suffering from alcohol dependence syndrome. In short, alcohol has shaped much of his life since the age of 10 or 11. Regrettably it appears that he has never undergone any treatment for his dependency upon it. Nevertheless he told Dr Lennings that he had been sober whilst he has been in custody. That factor alone suggests that he has some prospects of rehabilitation.

39 Dr Lennings concluded, having administered a psychological assessment of the offender that he has “severely limited cognitive skills”. He also concluded that his score “places him in the bottom of borderline mentally retarded range for ability, or better than only the bottom 4% of the population. Such a result suggests extremely low levels of social functioning and is consistent with his history.” This is a consideration which to some extent ameliorates the significance of general deterrence.

40 Notwithstanding his long history of alcohol abuse, Dr Nielssen found that there “was no history of medical complications of alcohol abuse, including episodes of withdrawal delirium, which are particularly associated with alcohol related brain damage.”

41 The offender Carrick has a criminal record dating back to 1980 when he was before the District Court in respect of four counts of larceny of a motor vehicle. He was placed on a recognisance. Although he has had a number of convictions since then they have all been in the Local Court. For the most part they have involved driving offences. It may be noted that he has been dealt with on no fewer than six occasions for driving a vehicle whilst there was present in his blood the prescribed concentration of alcohol. Indeed he was on a bond for such an offence at the time of these offences, a fact which is itself to be treated as a matter of aggravation. The only other matter of relevance concerning his criminal record is that he has on three previous occasions been convicted of assault. On the last occasion in 1999 he was imprisoned for a month. Alcohol appears therefore to have been a factor not only in relation to the present offences but in connection with many of his previous convictions.

42 Background material in respect of the offender Parkes was provided in a report by Mr Anthony Diment, who is a consultant psychologist. Although I have had regard to the entirety of that report, its main findings are summarised in the extract which is set out below:

Mr Lesley Parkes, has had a sad and difficult life with an early upbringing permeated with physical abuse at the hands of his violent, alcoholic father. He was close to his mother but developed an early alcohol dependence, heavier at times of pressure in his life. Although he has had productive periods of sobriety and despite several detoxification attempts he has not fully resolved his alcohol dependence. He has however appreciated the alcohol-free period while in custody…”I know what I’ve got to do to get off it…I’ll lose my legs if I don’t.”
He is in poor health (was at times in obvious pain from his legs) and suffers from coronary heart disease, poor circulation, high blood pressure, arthritis and non-insulin dependent diabetes (of which he has poor knowledge and puts him at risk of complications such as heart attack, blindness and kidney failure. It may be the case he already has only one kidney but I have no verification of this).
He has [been] assessed as clinically anxious and depressed on reliable measures and with whatever sentence he received his mood state should be monitored well into the future by appropriate medical health professionals.
He expressed deep regret for his actions in relation to these offences and he appeared genuine in this and his desire to move on…”move away and keep out of trouble as well as get on top of the grog…all I can do really.”

43 It may be noted that there are medical records in evidence which provide verification for the existence of various of his physical problems.

44 Although there have been periods in his life when he has worked productively, the offender Parkes’ life has also been largely shaped by his chronic alcoholism. As Mr Diment observes he is also said to have been free of alcohol since his incarceration. Indeed he went through a process of detoxification when he first went into custody. He seems to have had little formal education and has acquired few vocational skills. He was married for a period of time but the marriage ended in acrimonious circumstances. He has been receiving an invalid pension since 1991 and prior to moving into the premises at Riverwood in 1998 he lived “on the streets” for a couple of years. At one stage he lived in “a container at the Opera House.”

45 The offender Parkes is aged 57. He too has a criminal record having first appeared in the Childrens Court on a stealing charge when he was aged 12. He has a number of entries for matters of dishonesty. In 1983 and 1984 he served relatively short terms of imprisonment for break enter and steal and other stealing offences. Nevertheless since 1986 he has only come to notice on two occasions. In 1996 a charge of common assault, his only previous entry for matters of violence, was dismissed pursuant to the provisions of s 556 A of the Crimes Act. In 2000 he acquired his fourth conviction for driving whilst there was present in his blood the prescribed concentration of alcohol.

46 It is apparent from what I have already said that the offenders were arraigned for the first time on 31 July 2002. Section 21A of the Crimes (Sentencing Procedure) Act 1999 commenced operation on 15 April 2002. Section 21A(5) provides that the section “does not apply to the determination of a sentence if proceedings (other than committal proceedings) for the offence were commenced in a court before the commencement of this section.” Although the matter is not entirely free from doubt, proceedings in this court are generally accepted to have been instituted once an indictment has been presented and the accused is arraigned. See R v Taylor (NSWSC, unreported, 30 April 2002) per Whealy J. See also s 56 of the Criminal Procedure Act. I do not, for present purposes, discern any material difference between the use by the legislature of the word “instituted” in one context and the use of the word “commenced” in another. In those circumstances it appears that the present proceedings were commenced after s 21A began its operation and that accordingly the general sentencing principles referred to in the section apply to these proceedings. In any event not much may turn on this issue since the principles enunciated in s 21 A seem to do no more than reflect the pre-existing common law position.

47 Section 21A (1) requires a sentencing court to “impose a sentence of a severity that is appropriate in all the circumstances of the case.” For that purpose the court must take into account the matters enumerated in ss (2) insofar as they are “relevant and known to the court.” It is necessary in assessing the overall criminality of each of the offenders in the present case to pay particular regard to subparagraphs (a) (b) (c) (d), (f) (g) (h) and I have proceeded upon that basis.

48 I have also taken into account those subjective features of the case which are properly to be weighed in the balance and which mitigate the otherwise appropriate penalties. In that respect I have had particular regard to subparagraphs (e) (i) (j) of s 21A(2) of the Crimes (Sentencing Procedure) Act. Of most significance are the offenders’ pleas of guilty. I have earlier referred to the circumstances in which each of the offenders pleaded guilty. The Crown, as I have already observed, concedes that they should be regarded as having been entered at the first reasonable opportunity. See Cameron v The Queen (2002) 187 ALR 65. Moreover, each of the offenders (and in particular the offender Carrick) made admissions to having committed various of the assaults upon the deceased during the course of the ERISP interviews which were conducted with them by the police upon their arrest. The Crown also concedes, and properly so in my view, that in those circumstances a discount for the pleas of guilty towards if not at the top end of the appropriate range referred to in R v Thomson & Houlton [2000] 49 NSWLR 383, is called for.

49 I am also prepared to extend some leniency to each of the offenders on account of their having demonstrated contrition. It exists not only by reason of the admissions which were made but also because each of them was prepared to plead guilty to particular offences which, upon the material with which I have been supplied, the Crown may have had some difficulty in establishing given the reliability of the witnesses upon which its case depended.

50 Apart from their pleas of guilty and their contrition, I have also taken into account their mental and physical health and their significantly increased prospects for successful rehabilitation given that they have been free of alcohol for two years. I also have taken into account the fact that each of the offenders has had to endure, for a period of nearly two years, the anxiety associated with having a charge of murder hanging over their heads. Furthermore each of them has, by reason of that fact, been held in maximum security for the entirety of their time in custody. Had they been afforded the opportunity to be sentenced at an earlier point in time, it is quite clear that they would not have been subjected for all of that period of time to the more rigorous custodial arrangements that pertain to persons held in maximum security. The fact that an offender will serve or has been serving his or her sentence in significantly more onerous circumstances than would otherwise be the case is a relevant sentencing consideration. See also s 21A(3) of the Crimes (Sentencing Procedure) Act.

51 It was also submitted that I should make a finding of “special circumstances”, within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act. The Crown conceded that it was appropriate to do so. In that respect I have had regard to the relevant considerations referred to in R v Simpson [2001] NSWCCA 534. In my view there are several matters which, in the case of each offender, entitle me to find “special circumstances.” The most significant factor is that each of the offenders would clearly benefit from having access to community based organisations which can assist in their overall rehabilitation and in particular their efforts to remove themselves from the throes of alcoholism.

52 Although in one sense the offences to which the offenders pleaded guilty can be characterised as a single episode of criminality, it would not be appropriate in my view given the overall criminality displayed to impose wholly concurrent sentences in respect of all offences. It is also necessary to observe the requirements of Pearce v The Queen (1998) 194 CLR 610 and the principles of totality. In my view the interests of justice are best served by imposing sentences which are effectively partially cumulative.

53 Given all the circumstances of these offences, it is also necessary to ensure that there is a proper relationship between the sentences imposed upon each of the offenders notwithstanding the fact that they are not, strictly speaking, co-offenders in the technical sense. I had originally given consideration to differentiating to some limited extent between the sentences to be imposed upon the two offenders. Notwithstanding the fact that on the face of it, the offender Parkes’ criminality was of a higher order than that of the offender Carrick by reason of the offences to which he pleaded guilty and because of the use of a weapon, I have been persuaded from taking that course by Mr Gordon. Against those considerations must be weighed other matters including the injuries actually inflicted upon count 2 by the offender Carrick and the fact that in respect of count 3 the offence is aggravated by having been committed after the magnitude of the deceased’s injuries, as revealed in the photographs taken on August 19, had become apparent to the offender Carrick. Mr Carrick was also on a bond at the time of these offences and had been convicted on three previous occasions for matters of assault. His offences also stretched over a longer period of time. Having taken those and other matters into account and given them appropriate weight, I have come to the conclusion that the same sentences in their overall effect should be imposed on each offender. The Crown acknowledges the appropriateness of that approach.

54 It was also submitted that I should take into account the fact that the matters upon which the offenders stand for sentence could, had the consent of the prosecution been forthcoming at the time, have been dealt with in the Local Court where there is a jurisdictional limit upon the maximum penalties that can be imposed. See R v Doan (2000) 50 NSWLR 115. I am prepared to take that matter into consideration and give it due weight although it must be said that the totality of the criminality exhibited by each offender warrants an overall sentence which exceeds the sentence or sentences which could have been imposed in the Local Court.

55 The parties have addressed me upon the question of the appropriate range of penalties for these offences. Ms Davenport submitted, at least at the outset, that an overall effective head sentence of 5 years’ imprisonment would be appropriate but that that figure should then be discounted by 25% on account of the pleas of guilty. I indicated a preliminary view that a head sentence of 5 years’ imprisonment might be appropriate but that would be after the discount referred to by Ms Davenport had been accommodated. The Crown conceded that the imposition of sentences of that order would be within the appropriate range and would not constitute appealable error.

Order
Stuart Carrick

56 In respect of count 1, I sentence you to a fixed term of 6 months imprisonment to commence on 21 August 2000 and to expire on 21 February 2001. In respect of count 3, I sentence you to a fixed term of 18 months’ imprisonment which is also to commence on 21 August 2000 and to expire on 21 February 2002 and which is to be served concurrently with the sentence imposed in respect of count 1. In respect of count 2, I sentence you to 3½ years imprisonment to commence on 21 February 2002 and to expire on 20 August 2005 with a non-parole period of 15 months’ imprisonment to expire on 20 May 2003 at which time you will be eligible for release on parole. Such parole should include conditions as to the supervision of any treatment found to be appropriate and necessary for the addressing of the offender’s alcohol problems.

Leslie Parkes

57 In respect of count 6, I sentence you to a fixed term of 9 months imprisonment to commence on 21 August 2000 and to expire on 21 May 2001. In respect of count 4, I sentence you to a fixed term of 18 months’ imprisonment which is also to commence on 21 August 2000 and to expire on 21 February 2002 and which is to be served concurrently with the sentence imposed in respect of count 6. In respect of count 5, I sentence you to a term of 3½ years imprisonment to commence on 21 February 2002 and to expire on 20 August 2005 with a non-parole period of 15 months to expire on 20 May 2003 at which time you will be eligible for release on parole. Such parole should include conditions as to the supervision of any treatment found to be appropriate and necessary for the addressing of the offender’s alcohol problems.

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Last Modified: 08/28/2002