New South Wales Supreme Court CITATION : R v SUTCLIFFE; R v McGOLDRICK; R v McGOLDRICK [2000] NSWSC 825 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70095/98; 70015/99; 70203/99 HEARING DATE(S) : 10 September 1999, 10 March 2000, 16 March 2000, 12 April 2000, 26 April 2000, 28 July 2000, 10 August 2000 JUDGMENT DATE : 18 August 2000 Regina v Sean Robert Sutcliffe PARTIES : Regina v Sean McGoldrick Regina v Liam McGoldrick JUDGMENT OF : Adams J at 1 Mr T Hoyle (Crown) COUNSEL : Mr R Hoenig (Sutcliffe) Ms L McSpedden (Sean McGoldrick) Mr J Nicholson (Liam McGoldrick) SOLICITORS : T A Murphy (Sutcliffe) Mark Rumore (Sean McGoldrick & Liam McGoldrick) CATCHWORDS : Manslaughter - sentence - intellectual deficit - rehabilitation - discount for plea of guilty LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Previtera (1997) A Crim R 76 at 85 R v Thomson & Anor [2000] 309 DECISION : See paragraphs 35, 36 and 37 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION ADAMS J FRIDAY 18 AUGUST 2000 70095/98 - REGINA v SEAN ROBERT SUTCLIFFE 70015/99 - REGINA v SEAN McGOLDRICK 70203/99 - REGINA v LIAM McGOLDRICK JUDGMENT ON SENTENCE 1 HIS HONOUR: On 16 March, 3 April and 12 April 2000 respectively, Sean Robert Sutcliffe (see addendum), Liam McGoldrick and Sean McGoldrick pleaded not guilty of murder but guilty of manslaughter upon an indictment charging each of them with the murder of Mark Evans on or about 22 August 1998 at Menangle in the State of New South Wales. The Crown Prosecutor accepted those pleas in full discharge of the indictments. 2 The objective circumstances of the offence may be shortly stated. On the late evening of Saturday, 22 August 1998, Sean Sutcliffe, who was then twenty five years of age, Sean McGoldrick, who was then twenty one years of age, Liam McGoldrick, then seventeen years of age and LC (publication of whose identity is prohibited by order of the Court), who was then sixteen years of age, were together at the home of the girlfriend of Sean Sutcliffe in Bradbury, an outer suburb of Sydney. 3 Much earlier, LC and Liam McGoldrick had planned to go to the movies that night with Sean McGoldrick and were together at the McGoldrick house waiting for him. Sean McGoldrick rang to say that he could not drive them to the movies so LC and Liam McGoldrick decided to stay home, watch some television and play video games. In the early evening Sean Sutcliffe and Sean McGoldrick arrived and told the other two that they were going out for a drive in Sutcliffe's car. Sean McGoldrick was driving because Sutcliffe's licence had been cancelled. The four of them went to Minto for fuel, Sutcliffe bought some flowers for his girlfriend and they drove to his house at Bradbury, arriving there at about 9 30 or 10 o'clock. After watching some television, the group decided to go out for a drive. Liam McGoldrick and LC got into the car and waited for some time until Sean McGoldrick and Sutcliffe came out. As they drove out of the driveway onto the road, Sean McGoldrick stopped the car and Sutcliffe said that there was a problem with the tail light. He and Sean McGoldrick got out of the car and opened up the boot and it seemed that they were trying to fix the tail light. After this, LC said that he heard some banging noise in the back. He asked about this and either Sutcliffe or Sean McGoldrick told him that they were putting some rocks in the back "to get rid of them". The rocks were part of a collection of sandstone, some of which were partially encased in concrete, which had previously been part of a garden wall that had been broken up in 1997. There had not been any discussion about throwing rocks except that Sean McGoldrick and Sutcliffe had obviously previously agreed that that is what they intended to do. 4 After the boot of the car was loaded with rocks, Sutcliffe and Sean McGoldrick re-entered the car and Sean McGoldrick drove off. After driving around the Campbelltown area for a short time, Sean McGoldrick drove to the Glenlee Road Bridge, passing over the M5 freeway at Menangle. Sean Sutcliffe said to the police that they first drove out to another overpass but there was too much traffic coming across it and it was decided to go to Glenlee Road. At this point, the M5 comprises a four-lane highway with two lanes going south and two lanes going north with a parking or emergency lane on each side of the roadways. The roadways were divided by a wide grassy strip. The bridge itself comprised two lanes with a low fence of concrete and steel surmounted by a flat rail about a metre or so from the roadway. 5 There is some dispute as to precisely who did what from this point, although none of the offenders gave evidence about the circumstances and the sources for their assertions are contained in their interviews with the police and with consulting psychologists who interviewed them and prepared reports for the purpose of this proceeding. LC, who pleaded guilty at an early stage and was dealt with by Dowd J on 24 September 1999, gave evidence in these proceedings and was cross-examined. I am satisfied that his evidence was both truthful and substantially reliable and, so far as the facts which I propose shortly to relate are concerned, I am satisfied of them beyond reasonable doubt. 6 Sean McGoldrick parked the vehicle on the overpass and then he and the others removed the rocks from the boot of the car. All of them positioned rocks on the top rail, some on the southern and others on the northern side. As semitrailers came along the roadway to pass under the bridge, the rocks were pushed off. LC, Liam McGoldrick and Sean Sutcliffe were involved in this activity but I am somewhat doubtful whether Sean McGoldrick was, although I accept that he put some rocks onto the rails. It seems that the idea was to hit the trailers of the trucks as they came out from under the bridge, with one or more yelling that the truck was coming as it approached the bridge with the rocks being pushed off the railing as it emerged. I have no doubt that this was a cooperative exercise in which all four offenders were involved. At the end, three rocks were left on the railing. Two of them were pushed simultaneously off the railing by Sean Sutcliffe or possibly one by him and the other by Sean McGoldrick immediately after the others, who were standing together, called out that there was a truck coming, as they saw the headlights of Mr Evans' vehicle approaching the bridge. 7 The two rocks crashed through the windscreen of Mr Evans' vehicle and at least one of them struck him in the chest, causing massive injuries and transecting the aorta, causing virtually immediate death. His vehicle went out of control, veered left striking the guard rail then right and travelled across the nature strip separating the north and south bound roadways, crossing the two northbound lanes and travelling up the western embankment where it came to a rest near a large tree. 8 Only minutes before, a Mr Wayne Shegog was driving his Kenworth road tanker laden with about twenty tonnes of butane gas along the M5 freeway in the same direction as Mr Evans had been driving. As he drove under the Glenlee Road overpass, he saw two large objects, about the size of a football, fall directly in front of his truck and almost at the same time he heard a loud noise as something hit the cabin. He pulled into the breakdown lane where he stopped and, on inspection, Mr Shegog found pieces of sandstone rock in the truck cabin and jammed into the roof area of the sleeper compartment. It is not clear who, of the four persons present on the bridge, had pushed the rocks that caused this damage but I am satisfied that all of them saw Mr Shegog pull into the breakdown lane and stop. It seems almost inevitable that they must have known that the rocks struck the cabin and not the trailer of the vehicle. That the activity continued after this event demonstrates the recklessness of the offenders. Moreover, the mere presence of large broken pieces of rock on a roadway where vehicles were likely to be driven at speeds in excess of 100 kilometres an hour, was also obviously very dangerous. As tragic as Mr Evans' death undoubtedly is, the potential for further injury and death was plainly present. 9 Two rocks were recovered from the cabin of Mr Evans' vehicle. One weighed over 4 and the other over 9 kilograms. Sutcliffe said to the police that they did not throw rocks at cars because they thought it would be dangerous as they could go straight through the roof and "kill someone for sure". As to the trucks, he said that the rocks were meant to hit in the back, I take it, the trailer. 10 When the offenders saw the truck veer off the roadway, they realised the driver had lost control. The four of them ran to their car in a panic. As they drove off, Sean McGoldrick said that they should go down to the truck and see if the driver was all right. They had been on the bridge for about twenty minutes. Sean McGoldrick drove them down to the freeway to where Mr Evans' truck had finished up. I am satisfied that all were shocked at what had happened and that Sean McGoldrick was motivated by a genuine desire to help the driver. Another truck driver, Mr Allen, who had been travelling north, saw Mr Evans' truck on the embankment and had gone to help, just before the offenders arrived. He saw that Mr Evans was slumped over, switched the engine off, applied the handbrake and telephoned the emergency number for police and ambulance to attend. When Sean McGoldrick arrived, he approached Mr Allen and told him that he knew something about first aid. He entered the cabin and tried to find a pulse and checked to see if he was breathing. He also telephoned for an ambulance. The offenders were still at the scene when the police arrived and a constable sighted Sean McGoldrick's licence and recorded his details. After leaving the scene, the offenders agreed that, if questioned by anyone about their movements that night, they would say that they had been for a drive to Wollongong and had heard about the crash over a scanner radio, which had prompted them to drive to the scene to see what had happened. Shortly after their arrival at the scene, police went to the overpass and saw a large rock still sitting on the top of the southern fence. 11 The offenders then drove to some premises at Macquarie Fields where a party of sorts was in progress, attended by some of Sutcliffe's friends. Sean and Liam McGoldrick and LC remained inside the car whilst Sutcliffe attended the gathering for a short time in an attempt to establish some kind of alibi. Sean McGoldrick then drove his brother and LC to his mother's home and he and Sutcliffe then returned to the latter's home, where they spent the night. 12 Sean Sutcliffe was formally interviewed by police shortly before 4pm on 24 August 1998. At first, he denied being on the Glenlee Road overpass on the night of the 22/23 August but then changed his account and admitted that he was involved in putting the rocks in the back of the car, intending to throw them off an overpass, that they went to the Glenlee Road overpass and pushed rocks off the railing, that one or perhaps more landed on the back of a truck and that they had then got into the car and drove to Wollongong, hearing about the incident involving Mr Evans' truck on the scanner, which prompted them to return. However, as the interview proceeded, Sutcliffe admitted that Mr Evans' truck had been struck by a rock dropped from the overpass by one of the group, though he denied that it had been pushed by him. Sutcliffe said, however, that the rock "wasn't supposed to hit, it was supposed to land in the back" and that he had not thought that doing this might cause a driver to lose control, let alone be killed. He expressed what I consider to be genuine contrition. I think that his denial that it was the rock or rocks dropped by him that killed Mr Evans arose from his being unable to accept direct responsibility for such a catastrophe and, accordingly, that it arose from an unexpressed acknowledgment of guilt rather than defiance. However, I have no doubt that Sutcliffe's admission of involvement was prompted by his being informed by the interviewing police officer that Sean McGoldrick admitted that the four offenders had been dropping rocks from the bridge that night, one of which had caused Mr Evans' death. 13 Sean McGoldrick was spoken to by police shortly after 3pm on the afternoon of 24 August at Sean Sutcliffe's premises. He initially denied any involvement but very shortly after made admissions which were later confirmed in a formal interview at the police station. However, he minimised his involvement in the activities of that night, especially what occurred when he got to the bridge. It is obvious from what I have already found that I do not accept a number of assertions made to the police by him which, in essence, were that the rocks were relatively small, that most were simply thrown onto the roadway of the bridge, although he was not sure of what the others were doing, that to his knowledge no one threw any concrete onto the roadway below, that he did not know what had caused Mr Evans' truck to swerve onto the roadway although he concluded, when he saw the damage to the window, that it might have been caused by a rock having been thrown by one of them from the overpass, thinking that "maybe for some reason one of them might have gone astray". 14 Liam McGoldrick was formally interviewed with a solicitor and his mother present, just before 6pm on 24 August 1998. He identified Sean Sutcliffe as having dropped the rock that struck both Mr Shegog's and Mr Evans' trucks but his account, in effect, was that he had nothing to do with what Sean Sutcliffe was doing although he admitted that he had dropped rocks onto the opposite roadway from the other side of the bridge. He said that he had not actually seen Sean Sutcliffe push the rock which killed Mr Evans, although he heard the noise that it made when it struck the truck. During another interview conducted later that day, Liam McGoldrick said that the four offenders were together as Mr Evans' truck came towards the bridge and Sean Sutcliffe pushed the rock off the railing onto it, although he denied that anything had been said at this time. 15 I am satisfied that, whoever thought of it first, Sean Sutcliffe and Sean McGoldrick agreed to go to an overpass, which ultimately proved to be the Glenlee Road overpass, shortly before they loaded the rocks into the boot of Sean Sutcliffe's motor vehicle for the purpose of pushing rocks off the railing onto the trailers of trucks travelling along the freeway. Having regard to the height of the overpass above the roadway, the size of the rocks placed on the top rail and the speed of the vehicles, I think it is inescapable that they realised that what they were doing was extremely dangerous and fraught with risk to life and limb, which they tried to avoid by aiming, ineffectually, for the trailers rather than the cabins of the trucks as they passed below. This risk became all the more obvious when the cabin of Mr Shegog's truck was struck. I have no doubt that Sean Sutcliffe, as with the others, did not intend the rocks he dropped to strike Mr Evans' truck on the cabin, let alone the windscreen. However, I have no doubt that he was, and they were, aware of the risk that this or something like it might happen, even if, as I accept, they had not given it much more than a passing thought. The risk became all the more obvious when two rocks narrowly missed the windscreen of the truck being driven by Mr Shegog and one hit the roof of the cabin. I have no doubt that these three rocks were dropped, one way or another, by Sean Sutcliffe and/or Sean McGoldrick. But even if all were dropped by one or other of them, this has no significant bearing since I am satisfied that all offenders were aware of what happened to Mr Shegog's truck and yet they continued their foolish encouragement, to a greater or lesser extent, of Sean Sutcliffe who dropped the final and lethal stones. Although I think that Sean McGoldrick was fully co-operative with Sean Sutcliffe, and that the idea of dropping rocks off the overpass was, as I have said, agreed to by both of them, I consider that Sean Sutcliffe took a leading role and that, of the four offenders, his culpability is the greatest. Despite the fact that he is of relatively limited intelligence, he was, at the time of the crime, aged twenty five years and more mature than Sean McGoldrick, then aged twenty one years and also of less than average intelligence. Both are certainly immature for their ages. Liam McGoldrick was seventeen years old, as I have mentioned, when the crime was committed and I am satisfied that he, with LC, was really only present accidentally, and got caught up with the activities on the bridge to the extent which rendered him an accomplice in Sean Sutcliffe's act. Although he is of average intelligence, I consider that his culpability was significantly less than that of Sean Sutcliffe and Sean McGoldrick. He also is immature for his age. 16 It is necessary to consider the subjective factors which require consideration in order to fix the appropriate sentence for each offender. 17 On Sean Sutcliffe's behalf has been tendered reports from two psychologists, Professor Susan Hayes and Ms Anita Duffy, a psychiatrist, Dr William Lucas and some information from the Department of Corrective Services, together with a letter addressed by him to Mr Evans' widow but, for proper reasons, not forwarded to her by his solicitor. Also called on his behalf was his mother, Mrs Lucille Sutcliffe. 18 Ms Duffy obtained certain background information dealing with Sutcliffe's personal history and the offence itself and conducted a number of well-accepted psychological tests. In general terms, her assessment of the offender was the same as that of Dr Lucas and Professor Hayes. I do not need, for present purposes, to set out in detail the expert opinions, but a summary of the material overall is necessary. I note, however, that the offender told both Dr Lucas and Professor Hayes that on the night of the offence he had been drinking before going to the overpass and that he was feeling "out of it" when they got there, giving a history to Professor Hayes of occasional bouts of heavy drinking up to the night before the commission of the offence. He told Ms Duffy on the other hand, that he never had a real problem with alcohol and denied drinking to excess. He gave each of the consultants a somewhat different account of the events in question, which may reflect different approaches to questioning taken by each of them but in each case there was a distinct tendency to reduce his own direct responsibility for Mr Evans' death. Even so, he expressed what I consider to be sincere remorse for the crime and bitterly regretted his role. He has consistently said that he was shocked by what happened and I accept this as truthful. I note from the history taken by Ms Duffy that Sean Sutcliffe said that he had received a serious injury to his left eye from a bashing in 1997 and his vision in that eye has been blurred ever since that time. This underlines, to my mind, the recklessness of his behaviour on the occasion in question. In dealing with the inconsistencies in the offender's accounts and his attempts to minimise his role, I observe that the clinical scales indicated extremely high levels of anxiety in response to the consequences of that involvement. Those scales demonstrated that the offender is tense, indecisive, apprehensive and hyper-alert to possible sources of threat or danger. Moreover, on a measure of more severe clinical pathology, his Thought Disorder scale is elevated, suggesting that his thoughts, at least when he was being examined, might be inconsistent, bizarre, fragmented and disorganised. 19 There seems little doubt that Sean Sutcliffe is a highly troubled individual who presented as extremely anxious and apprehensive, who has an impulsive personality, with a tendency to act out without thinking through the consequences, exercising poor judgment in controlling his impulses. The tests revealed him as also highly dependent and I note in this respect his mother's evidence concerning his relative immaturity. The offender's relatively low level of verbal intelligence suggests poor problem solving skills, planning, initiating and reasoning through consequences, together with deficits in practical commonsense and judgment. The tests reveal him as having borderline intellectual ability and he functions at a level lower than 96% of the population. The inability to look ahead to adequately foresee the consequences of his actions, together with his immaturity and impulsiveness, seem to me to have played a significant part in his activities that night. The fact that he was with three others who in different degrees encouraged or, at least, participated in the same activity, rendered it more difficult for him to draw back. Regrettably, the offender's handicaps have to some extent adversely affected his capacity to develop insight concerning, and a mature response towards, the tragedy in which he played a leading role. 20 It is not surprising that Sean Sutcliffe found high school difficult and left as soon as he could. However, he began working immediately as a labourer and a storeman at various factories and then moved on to other jobs requiring some skill. His relationship with a young girl led to a child now four years old, of whom his parents have effective custody. It seems clear that the offender has attempted to do his best for his daughter. He has a son, now aged five, by another woman and was involved in yet another relationship at the time of the offence. Needless to say, these relationships have been immature and unsteady. Presently, the offender has some symptoms consistent with depression. He has been in prison since 24 August 1998 and has for all this time been held on remand, with the consequence that classification to a less than maximum security prison has not been available to him and his ability to attend prison education and other programs is significantly reduced. Furthermore, the offender has been kept in strict protection arising from the nature of his offence and this is a considerably more harsh regime than affects the ordinary run of prisoner. The punishment he has so far undergone is effectively substantially greater than for prisoners who have been sentenced and classified and at large in the general gaol. Even so, the Department of Corrective Services reports that the offender has participated in a number of education programs and has proved to be a keen student. He has successfully completed a number of short courses. Having regard to what I am satisfied is genuine remorse and his behaviour whilst in prison it is reasonable to expect that his prospects for rehabilitation are good and he will not offend again. In sentencing him I must bear in mind the likelihood that he will spend further time in strict protection and also that the intellectual and social deficits which I have described make the prison environment more dangerous and difficult for him than for the general run of prisoner. I am obliged to take these matters into account not out of any sense of misplaced compassion, but because, in so far as it can, it is important that the Court should apply justice equally. 21 I note also and take into account the prisoner's plea of guilty given at the first practicable opportunity, which is consistent with, and supports my findings as to, the genuineness of his contrition. I was somewhat surprised to observe that the indictment presented against all three offenders charged them with Mr Evans' murder. The evidentiary basis for this was, in my opinion, somewhat insubstantial. Accordingly, I think it appropriate to regard the pleas of guilty of manslaughter as evidence of genuine remorse rather than as the consequence of a plea bargain. Moreover, the Crown would have been faced with a number of forensic difficulties in the event that a trial for manslaughter proceeded, not least of which was the need to rely substantially on the evidence of an accomplice who received a substantial benefit from agreeing to give evidence against his co-offenders. Accordingly, a significant allowance must be made for all pleas of guilty in this matter both as demonstrating a real level of genuine remorse and as a utilitarian recognition of saving the community the expense, inconvenience and uncertainties of a trial. 22 I come now to Sean McGoldrick. Tendered on his behalf was a psychologist's report of Ms Anna Robilliard, a pre-sentence report of the Probation and Parole Service and a number of testimonials from various close friends, who speak well of him and believe that his involvement in this serious offence was an aberration and inconsistent with his true character. The psychological tests show this offender as socially uncomfortable and inept with excessively paranoid thinking, constant emotional and psychological disequilibrium and socially maladaptive behaviours. It is clear that he is both anxious and chronically depressed, feeling considerable guilt and pessimism about the future. Although somewhat slower and less creative in his thinking than most persons, he is quite capable of coping with the normal demands of every day life at his own pace, despite his social ineptitude and marked dependency needs. Although he is still very defensive about his role in the death of Mr Evans, he has expressed genuine remorse and contrition for the events of the night in question. That this is not well-demonstrated is probably a result of his marked dysfunctional personality disorder. As I have mentioned, he was only twenty one when he committed the offence. It is not surprising to see that the offender had serious difficulties in fitting in at school, and at twelve, because of his behavioural problems, he was sent to Boystown at Engadine for two years, living in during the week and returning to his mother on weekends. At the end of that period, he returned to live with his mother, and completed two years of high school, achieving his school certificate, apparently getting along well and avoiding trouble. However, when he changed schools at the end of year 10 he did not fit in and after a brief return to his earlier school, he left and obtained an apprenticeship as a mechanic. This employment lasted six months, he then drove tow trucks for a few months and saved up enough money to do a security course, consisting of a two day training session, after which he was granted a security licence and worked in the industry for four years. He lost his licence when he was convicted of theft in December 1998, for which he was fined $150. Since that time, he has worked at a number of short term, unskilled jobs but has been mostly unemployed. 23 It was Sean McGoldrick who suggested that the group should see whether the driver needed help when they saw his truck run off the road. This was, in a sense, extremely naive but I accept that it arose out of real concern and almost certainly because he never thought for a moment that Mr Evans had been killed. Having regard to the history of the matter, I consider that he pleaded guilty at the first reasonable opportunity. He spent twenty six days in custody before bail was granted which I have taken into account. The conditions of his bail were relatively onerous and I have also taken this factor into account. 24 Liam McGoldrick was, at the time of this offence, still at school, enrolled in year 11, and about to complete his year end examinations, when he was arrested. When questioned by the police in the presence of his mother and a solicitor, he made a number of admissions which implicated him in the events of that night but which, in my view, also minimised the involvement of his brother, LC and himself. I have no doubt that he had been shocked and frightened by what had happened and was still significantly affected at the time that he was interviewed. Reports have been tendered on his behalf from Mr Gregory Fathers, a consulting psychologist, Dr Westmore, a forensic psychiatrist and from the Probation and Parole Service. Whilst he was interviewed, he expressed considerable remorse and contrition which, I accept, is genuine. He was an average student at school, although he had some problems with discipline, especially after his father died. After his arrest he was sent to the Kariong Juvenile Justice facility where he remained for three weeks before being granted bail. He said that after his arrest, the principal of his school discouraged him from returning, fearing backlash from the other students. He worked as a labourer for a short period and then took up an apprenticeship with a local firm as a shopfitter. However, in March 2000, after publicity arising from these proceedings, his employer discovered his involvement in the offence and dismissed him. He has not worked since then. 25 I accept that Liam McGoldrick's relative youthfulness and immaturity played a significant role in his participation in the events giving rise to the offence and that, although he appreciated that it was dangerous, especially after seeing Mr Shegog's truck being struck on its cabin roof, he did not fully appreciate the dangers of joining with the others in encouraging Sutcliffe to drop another rock, let alone that he would be regarded as criminally responsible for the consequences. He did not in any sense play a leading role but rather joined in what Sutcliffe and, to a lesser extent, Sean McGoldrick had instigated. I have no doubt that, especially for Liam, his contact with the criminal justice system has acted as a powerful personal deterrent. I accept Dr Westmore's opinion that this young man is likely to mature and develop and, there being no consistent significant or serious early behavioural problems in his life, I consider that there are excellent prospects for his rehabilitation. Although, on testing, average cognitive abilities were demonstrated, Liam is immature for his age and demonstrated some thought disturbance reflecting disorganised thinking, together with emotional lability. He was anxious, tense and impulsive. At the time of testing, he demonstrated a high degree of distress and anxiety. He has a tendency to crave attention and recognition which, in the gaol setting, adds to the significant dangers represented by his youth and relatively slight build. His underlying personality made him vulnerable to be caught up in the events of the night in question. I have no doubt that, left to himself, he would not have been involved in any dangerous behaviour of this kind. 26 A number of testimonials have been tendered on Liam's behalf by a number of persons whom he has known in various capacities. They all speak well of him and it seems clear that they would regard his behaviour on the night in question as being inconsistent with the young man they know. 27 Mark Evans was only thirty years old when he died, earning his living and the means to provide for his family. He was married in 1993, with two young children, now six and something over two years of age. Victims' Impact Statements have been tendered from Mark's parents, his wife and his two sisters. They speak eloquently of their intense feelings of grief, and loss and anger. I think it appropriate that I should read some small parts from two of these statements. Mark's father said, amongst other things - "My wife and myself both have trouble sleeping since Mark's death. I take...tablets for nerves and to help me sleep but they don't seem to do much good. My wife and I used to like to go up to Newcastle to see our youngest daughter but seeing the trucks that Mark used to drive and the Woolworths' trailers on the highway is just too much for us, so we don't go up there as much as we used to. "After Mark's death our two daughters closed themselves off from my wife and myself. We couldn't understand it because we had always been a close family, but then I guess these things affect people differently. We get on OK now. But it was hard not being able to reach out to our family for help. A lot of our friends would cross the street when they saw us coming. That hurt a lot because they don't know what to say. My wife was working full time but had to give up because of Mark's death and people talking about how Mark died. She cries a lot still. "We miss going fishing with him in his four wheel drive and the picnics we used to look forward to with him and his family. Now we go and put flowers on his grave. There is not a day or night goes by that something doesn't remind us of him. We miss him like hell and it really hurts." 28 Mark's widow, Dewita, said - "These and many more things made me love him. His daughter adored him and she was 'my little girl' sharing cups of tea and bikkies and giggling about crumbs in the bed. She still tells everyone that her Daddy got home late Xmas day because Santa's sleigh broke down and he had to deliver the presents. His proof was dirt on the floor of his trailer - from the reindeers! OK so he was loaded out late after being held over and was loaded with potatoes! Hence the dirt. "He also claims fame at Liverpool Hospital - only male to sleep in the gynaecology ward (maternity was full). On Xmas eve! I had been in since early December and could not leave due to high blood pressure (which went when my baby was born). Baby was tiny for the gestation period and the Doctors were worried. So Ash and Dad moved in for the night and Santa delivered. My hubby gave us a great Xmas eve dinner - roast chook and the works (courtesy of Red Rooster) nibbles and even pudding! What a star! "And hospital.....the 2 times I have seen my husband so worried then tears of joy and relief was at the birth of our kids. Second time was as it was the first time - and I had a few problems leading up to Ashley's birth. Then Navarone's (Jan '98) where both Mum and son were in danger. Our son [weighed] 960 grams (not quite 2 pounds - 30 weeks) with cables and tubes hooked up scared and awed us both. His birth drew us together and pulled us apart at the same time as I became an obsessed Mum. Hospital, home, hospital home - my baby girl and hubby were unintentionally pushed aside. But in the end we pulled together and our new addition came home in March. Now we are 4! "Hugs were are still are a big part of our lives. 'Group hug' anyone of us would yell and we'd pile together in a bundle of limbs. Ashley says that group hugs aren't the same because Daddy is missing.." Towards the end of her statement, Mrs Evans says - "Maybe one day songs, photos, movies won't make me cry, my blood pressure may come down, Ashley may stop crying out for Dad in her sleep and anti-depressants will no longer buoy me in the muddy waters of loss." 29 The purpose of these proceedings is, fundamentally, to apply the criminal law to the measurement of punishment to offenders. So far as is possible that process must be objective and dispassionate. But it is nonetheless appropriate that I should acknowledge in these proceedings the dreadful loss that Mark Evans' death has caused to his family and, indeed, to the wider community. 30 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however, intensely felt. It would significantly undermine the moral standards essential to the rule of law if justice were to regard the life of one person as more or less valuable than the life of another or, to put it in another way, the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was obnoxious, stupid and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was loved and loving and surrounded by friends and family. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 31 In dealing with the offenders, the Court, as I have said, must act objectively and dispassionately. It must carefully weigh all the relevant facts. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. The value that the law ascribes to the life which has been lost is a reflection of that same sense of humanity which requires valuing also the lives of the persons who come to be punished. You cannot have one without the other. 32 Rehabilitation is a significant part of the public interest, especially where young persons are concerned, and must be considered together with the necessity for general and personal deterrence. This factor is important in the cases of both Sean McGoldrick and Liam McGoldrick and, even though to a lesser extent, Sean Sutcliffe. Significant cognitive deficits may make it appropriate to qualify the application of the requirements of general deterrence since offenders with these limitations may not be entirely appropriate vehicles for the vindication of public policy in this regard. Moreover, it might to some extent in this case explain behaviour, the crass and dangerous stupidity of which would be completely baffling. So far as Liam McGoldrick especially is concerned, principles of parity require me to take into account the sentence passed by this Court on LC, with the qualifications, of course, that LC was a year younger than Liam McGoldrick and was also prepared to give evidence against his co-offenders and, indeed, did so at this hearing. I am particularly concerned with Liam McGoldrick's vulnerability in the prison environment, the consequences of which, though unpredictable, it would be unrealistic to ignore and which may well have the effect of resulting in a far harsher penalty than would, by any measure, be appropriate. 33 So far as Sean Sutcliffe and Sean McGoldrick are concerned, I am satisfied that special circumstances exist that require the Court to depart from the statutory formula provided by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 34 In accordance with the guidelines enunciated in R v Thomson & Anor [2000] NSWCCA 309, I should state that I have reduced the sentences of Sean Sutcliffe and Sean McGoldrick by 25% to reflect the public policy considerations referred to in that case attached to the utility of pleas of guilty. Having regard to the relationship between the elements relevant to sentencing Liam McGoldrick, together with the sentence which I impose, it is not practically possible to quantify the significance of the utilitarian factor arising from his guilty plea but I have given it substantial influence. 35 Sean Robert Sutcliffe, I sentence you to a term of imprisonment of five years and three months to commence on 24 August 1998. I set a non-parole period of three years. The earliest day upon which you will be eligible for parole is 23 August 2001. I direct that you are to be released on parole on that date and that you are to place yourself under the supervision of the Probation and Parole Service for a period of two years. 36 Sean McGoldrick, I sentence you to a term of imprisonment of four years and five months to commence on 10 August 2000. I set a non-parole period of two years and three months. The earliest day upon which you will be eligible for parole is 9 November 2002. I direct that you are to be released on parole on that date and that you are to place yourself under the supervision of the Probation and Parole Service for a period of two years. 37 Liam McGoldrick, I sentence you to a term of imprisonment of two years and six months to be served by way of periodic detention to commence on Friday 1 September 2000. Addendum Sutcliffe was arraigned before Barr J on 10 September 1999 and pleaded not guilty of murder but guilty of manslaughter. The Crown did not accept this plea in discharge of the indictment. He was rearraigned on 16 March 2000 and pleaded again in identical terms. ********** Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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