New South Wales Supreme Court CITATION : REGINA v. MORAN [1999] NSWSC 874 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70102 of 1999 HEARING DATE(S) : 23.8.99, 24.8.99 JUDGMENT DATE : 24 August 1999 PARTIES : REGINA v. MORAN, Bradley John JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: P. Barnett Prisoner: T. Thomas SOLICITORS : Crown: S.E. O'Connor Prisoner: Ramsland & Associates CATCHWORDS : Conceal serious offence - limited opportunity to comply with legal duty - intoxication - confusion - prior good character - continuing alcohol problem creating vulnerability. ACTS CITED : Crimes Act 1900 CASES CITED : De Simoni v. The Queen (1981) 147 CLR 383 DECISION : Sentence deferred upon recognisance IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70201 of 1999 GREG JAMES, J. NEWCASTLE: TUESDAY 24 AUGUST 1999 REGINA v. BRADLEY JOHN MORAN SENTENCE 1 HIS HONOUR: The prisoner Bradley John Moran was indicted on 23 August 1999, for that he, between 12 and 15 November 1998 at Beechwood in the State of New South Wales, knowing Troy Clayton Davis and Dean Richard Lulham to have committed the serious offence of murder, failed without reasonable excuse to bring information which might be of material assistance in the prosecution of those persons to the attention of a member of the Police Service. To that indictment he pleaded guilty. That plea was entered to that charge after he received the advice of counsel, and at the first opportunity. He had been previously charged with murder and conspiracy to murder. The plea was accepted in full discharge. 2 He had remained in custody a period of some 14 days until he was granted bail by the Supreme Court in November 1998. At committal in June 1999 he was discharged on the original charges, committed for trial on a charge of accessory after the fact to murder, but upon consideration, indicted eventually on the charge to which he has pleaded. 3 It would be an error for me to have regard to any of the other charges in the sense of finding any facts adverse to him which might amount in law to a more serious charge - De Simoni v. The Queen (1981) 147 CLR 383. I do not do so, of course, but I do remark that on the evidence as it has come forward before me, and on the statement of facts, it would seem unlikely that a charge of even accessory after the fact would have been successful. 4 To the charge of conceal serious offence to which he has pleaded, he responds that he did come to possess the necessary information, but it came into his possession at a time at which he was very drunk indeed, and that whilst he was in possession of that information for a period which might have been as long as about 20 hours, he was drunk and most of the time he was asleep. There can be no doubt, however, that during that period he came to appreciate the seriousness of the information. That is confirmed by the detail of the facts which are set out in the statement of facts provided on the plea and marked Exhibit E. 5 I summarise: At approximately 11.30 pm on Thursday 12 November, Troy Clayton Davis shot and killed Robert Christopher Spradbrow in circumstances I find, in this prisoner's case, amounting to murder. He used a gun which had been provided to him by his half-brother Dean Richard Lulham, who had driven him to Kooree Island where the killing occurred. Lulham provided lighting to assist the shooting, incited, counselled and procured Davis to the shooting. The two brothers acted out of a belief in various grievances they had arising, so they asserted, because of the conduct of the deceased. 6 Initially the death was not viewed as suspicious, but by about 2.00 pm on 13 November the authorities came to the realisation that the death may have been criminally caused. 7 The prisoner was a friend of the two brothers. He had been consuming alcohol on the evening of 12 November 1998 from some time early in the evening. Both in the statement of facts and in evidence before me he confirmed that whilst he was in the presence of the two brothers he heard Dean Lulham "egging on" Troy Davis to shoot the deceased. At one stage during the evening he was at the hotel with Ernice Davis, the mother of the two brothers, the prisoner who I have sentenced earlier today. Later at the hotel, at a time at which the prisoner's inebriation had grown greater, he was put into the back of a Range Rover motor vehicle owned by Lulham's employer, a farmer. He expected to be driven home, but was driven instead to Kooree Island. At this time he appears to have been dozing intermittently, no doubt because of the effects of the alcohol. 8 He became aware of a conversation between Lulham and Troy Davis. He saw Davis leave the car with a gun. He heard a shot. Davis returned to the car and it drove off, stopping near the Beechwood cemetery where he saw Troy Davis throw an item out the window. The car then went to Lulham's home and the prisoner and Davis apparently continued drinking. 9 At about 4.00 am the suggestion was made by Davis that he wanted to get his mother's car for the purpose of shifting the gun. The prisoner went with Davis for this purpose. They were interrupted by the mother as efforts were being made to move the car down the driveway. Mrs. Davis refused to allow them to take the car and agreed to drive them herself because they were too intoxicated. 10 They went to the area of the cemetery. There the prisoner and Troy Davis searched for the gun, which the prisoner located, and handed it to Troy Davis, and the gun was taken to another spot where it was secreted by Davis. 11 They returned to Mrs Davis' house where some time during the morning or towards lunch time the prisoner heard a conversation between Lulham and Troy Davis in which Troy admitted killing the deceased, and at that point the prisoner thought about going to the police but did not because he was afraid something would happen to him. Neither in his electronically recorded interview with suspected person nor his evidence did he articulate precisely what it was that scared him. This is not surprising, given the state of his inebriation and confusion on the night in question, and that the events themselves must have carried with them a degree of severe effect upon him. Whether it be that he was scared of any one individual, or simply scared because of the situation, is not at all clear. 12 He continued to drink and sleep as I have said through the balance of the day, until about 2.00 am on Saturday 14 November, the police arrived at the house with a search warrant. He, Troy Davis and Ernice Davis were arrested and taken to Port Macquarie Police Station. 13 At 5.35 am on Saturday 14 November he entered into the electronically recorded interview to which I have referred, during which he gave a version of the events which, bearing in mind his condition at that time as can be gauged from the amount of alcohol he had had to drink over the preceding 48 hours and the time of day at which that record of interview was taken, was somewhat confused. 14 He told the police that when he got in the car he did not know what was going to happen. He also said it was too dark at Kooree Island to see much of what occurred. He did, however, provide information concerning the conversations he had heard between Dean Lulham and Troy Davis; the presence at Kooree Island of the brothers, and Troy Davis with the gun; the hearing of the shot; the attempted shifting of the murder weapon; and the involvement of Mrs. Davis. 15 The offence is committed in those circumstances, he having failed to bring to the attention of police the information he had received, which was received at least by lunch time on 13 November, and his arrest at 2.00 am on Saturday the 14 November. It would seem therefore that that period of twenty hours to which I have referred represents the relevant period taken at its widest. 16 The value of his evidence and his admissions is, of course, affected severely by the degree of intoxication under which he was labouring that evening. Nonetheless he has provided an undertaking to give evidence in respect of any proceedings against Dean Richard Lulham. The reason for the undertaking being in that form was that prior to his undertaking being provided, Troy Davis had already, on arraignment, pleaded guilty to the murder. That undertaking is in the usual form, undertaking active cooperation, and is Exhibit A in the proceedings. Subsequently Mr. Lulham has pleaded guilty. 17 When one looks at the criteria under s.439 this is a matter in which he has not only pleaded guilty, but pleaded guilty at the earliest possible occasion when this charge was preferred by the Crown. His admissions are such that one can only say he has at all times admitted the role to which he has now pleaded guilty. His sentence will be reduced accordingly. 18 When one has regard to s.442B of the Crimes Act it can be seen that his sentence should be reduced not only because of s.439 but also s.442B, notwithstanding that the nature and extent of his assistance or promised assistance is somewhat restricted by reasons of the effects of alcohol and by reason of his limited perception of what was occurring that evening. 19 The offence with which he stands charged is punishable by a maximum penalty of two years imprisonment. He has already, as a consequence of the refusal of bail, spent some 14 days in Cessnock Gaol. He gave evidence it frightened him. There was evidence from Mr. Francis Moran, and I accept his evidence as well as the prisoner's evidence on this aspect, that the effect of the imprisonment upon him was to "frighten him a terrible lot". 20 He is presently aged 20. He was 19 at the time. When he gave evidence before me, he has confirmed by way of sworn testimony his account of the events, thus providing an account which is of utility to the Crown, and on which he might if necessary be cross-examined. 21 He has a limited prior record, which he admits, involving two Children's Court matters, one involving malicious damage requiring the payment of compensation of $133.80 and in respect of which he was placed upon a two year recognisance, the other stealing from a motor vehicle. I am told that he was not a principal, but was one of a number of young boys, one of whom stole from a motor vehicle. He was placed on a recognisance until 18 years of age and was directed to pay compensation of $67.00. 22 He works at the Bindi Aboriginal Cultural Centre as a labourer, horticulturalist and artist. He has done a TAFE course in horticulture. 23 He is supported by his family. His sister supervises twenty employees at that cultural centre. He has resided with her from time to time during the bail period, and she has given evidence on his behalf and favourable to him. 24 He is involved in sport, and in that regard I have been provided with written references confirming his involvement with the Wauchope Bindi team and his willingness. There have been further written references provided by John O'Raw as to his politeness, punctuality and general good character; by Mr. Geoff Carson concerning his horticultural training; by Deanna Wilmot as to his conduct, particularly in the context of his Aboriginal cultural environment at the educational centre and at Bindi. 25 The Probation and Parole Service refers to him as suitable for those non-custodial options which might be available in the area in which he lives. Ms. Yvonne Rennard of that service has given evidence before me concerning the appropriateness in his case of supervision by the service, particularly in relation to programmes to address his substance abuse, that relating to both the effects of marijuana, which he had ingested that night - though what role it may have played I know not - and the period of heavy drinking about which he gave evidence and about which his father Mr. Francis Moran and his sister also gave evidence. I have no doubt from their evidence and from his own that he is contrite, shocked and frightened because of what went on that night and its consequences for him. 26 I have no doubt that he was thoroughly drunk and thoroughly confused, but that by the time of entering into the ERISP he was starting to realise the awfulness of what he had involved himself in by his drinking and his association with Troy Davis. 27 I am told by both Mr. Moran and Mr. William Smith, a Kamilaroi man and law man for the Aboriginal community, a chairperson of the local land council, that he is a person who respects his elders and will abide by tribal law as well as the law of the land. 28 His father described him as a quiet, easy going boy, good with his nephews and nieces, who is obedient and respectful. I am told by him, his father, Mr. Smith and his sister that as a consequence of these events he now does not drink, nor take marijuana, that he is conscientious at work, and that he loves his art. 29 His father and Mr. Smith have made it clear that they are prepared to afford him support to ensure that the supervision of the Probation and Parole Service is complemented by the activities of the Aboriginal community in this regard and by his family environment. I have been told that indeed so far is their confidence in his rehabilitation that elders of that community would be prepared to go surety for him on a recognisance. 30 The work that he does at Bindi is work involving both training and also the production of Aboriginal artefacts for sale. 31 Bearing in mind the difficulties inherent in the local area and in transport, the appropriate course in my view is to defer passing sentence and to impose a recognisance. Because the Aboriginal elders have evinced their preparedness to go surety for him and because, as Mr. Smith put it, his community and elders will watch him, and a man who has been through the law will fulfil that watching role within his community, as well as Mr. Smith, his uncle, looking after him, I would not require that there be formal sureties, since, as I expressed prior to the luncheon adjournment, I am fully persuaded that the role of the formal sureties will in fact be carried out by the Aboriginal elders in any event. 32 In all the circumstances, this is a matter in which, however, it is appropriate the prisoner be convicted, and I do so, but otherwise I defer passing sentence upon the prisoner entering into a recognisance himself in the sum of $1,000 for a period of three years to be of good behaviour and to come up for sentence if called upon. 33 That recognisance is to be conditioned upon the prisoner submitting himself for the supervision and guidance of the Probation and Parole Service for such duration of the term of the recognisance up to the whole term of the recognisance as that service deems appropriate, and to obey all reasonable directions of that service as to participating in such programmes as are designed to avoid the abuse of alcohol and other substances as the service might consider necessary. 34 HIS HONOUR: Is there anything further, gentlemen? 35 THOMAS: No your Honour. 36 BARNETT: There is one matter I wish to raise, your Honour. Could I take your Honour to s.353A of the Crimes Act, in particular to subsection (4). I draw your Honour's attention to the notation on the record, which was Exhibit A, I believe. I am just asking for an order that he submit himself to the officer-in-charge of Police at Newcastle for the purpose of being fingerprinted. 37 HIS HONOUR: Mr. Crown, why? 38 BARNETT: If your Honour recalls, that document indicates he was not fingerprinted in relation to this matter. 39 HIS HONOUR: Mr. Thomas, would you have a look please at the stamp on Exhibit B? 40 THOMAS: I find that difficult to believe, your Honour, if he was arrested and then taken into custody. 41 HIS HONOUR: Mr. Thomas, whether you find it difficult to believe or not, it is not designed to be punitive. 42 THOMAS: No, I know, your Honour. I have no objection to his being fingerprinted. 43 HIS HONOUR: Do you want to explain it to him? 44 THOMAS: I will explain it to him, yes. 45 HIS HONOUR: Would you hand back the exhibit, and I will give this explanation. The order sought by the Crown is, because very simply, that it appears that a procedural step usual in such matters has never been carried out, and that is that the present prisoner has never been fingerprinted. Such a course can often be appropriate, not only for the purpose of identifying the prisoner with any particular criminal offence, but in order to prevent other people's offences being attributed to him, which has occurred on a number of occasions when, unfortunately, you get a record and a prisoner with a reasonably common name. 46 I am prepared to make that order, and I do. 47 BARNETT: If your Honour reads the very last sentence -- 48 HIS HONOUR: I warn the prisoner, Mr. Thomas, that a failure to comply with the order may result in the prisoner having to be apprehended in accordance with subsection (6). 49 THOMAS: Yes your Honour. He will go directly now. As soon as the recognisance has been entered he will go to the police station, and I presume there will be an officer here connected with the case who can take him there. 50 HIS HONOUR: The recognisance may be taken before a magistrate. 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