New South Wales Supreme Court CITATION : R v Stelfox [2001] NSWSC 630 FILE NUMBER(S) : SC 70034/01 HEARING DATE(S) : 06/07/01, 16/07/01 JUDGMENT DATE : 23 July 2001 PARTIES : Regina v Adrian Luke Selfox JUDGMENT OF : Howie J at 1 COUNSEL : J. Kiely - Crown L. McSpedden - Accused SOLICITORS : S.E. O'Connor - Crown James Fuggle Solicitors - Accused CATCHWORDS : Proceedings after conviction - sentenced for manslaughter - discount for assistance LEGISLATION CITED : Justices Act 1902 - s 51A Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Thompson and Houlton (2000) 49 NSWLR 383 DECISION : The prisoner is sentenced to 5 years imprisonment to commence on 9 July 2001. There is to be a non-parole period of 2 years 6 months to commence on 9 July 2001 and to expire on 8 January 2004, the date upon which the prisoner is to be eligible for release to parole. SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HOWIE J MONDAY 23 JULY 2001 70034/01 - REGINA v ADRIAN LUKE STELFOX SENTENCE 1 The prisoner Adrian Luke Stelfox pleaded guilty before a magistrate on 3 May 2001 to a charge of manslaughter and was committed to this court for sentence under s 51A of the Justices Act. He was originally charged with murder but after committal proceedings had been completed the Crown indicated that it was prepared to charge him with manslaughter and as a result the prisoner pleaded guilty to that offence when it was first offered to him by the Crown. 2 For some reason, which is unclear to me, notwithstanding the plea before the magistrate an indictment for murder was presented in this Court. The prisoner was arraigned on this indictment and pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. 3 An agreed statement of facts is before me together with a chronology, witness statements and other exhibits relevant to the prisoner's guilt of the offence to which he has pleaded guilty. Further, an undertaking by the prisoner to give evidence on behalf of the Crown in the trial against his alleged co-offenders has been placed before me. It is intended that the Crown will call the prisoner to give evidence in accordance with a record of interview that he made detailing what he said was the involvement of himself and the three other persons who have each been charged with murder arising from the incident in which the deceased was killed. 4 There is little dispute about the facts so far as this prisoner is concerned and, therefore, they can be stated relatively briefly. The deceased, a young man by the name of Graham Withington, lived in a flat attached to a house owned by Matthew Denton. Apparently there had been a history of animosity between the deceased and Matthew Denton's mother for some period leading up to the day when the shooting took place. Mrs Denton believed that the deceased and his flat mate were taking advantage of her son's limited mental capacity. 5 On the evening of 15 November 1999 Mrs Denton complained to another son Scott about an altercation that had occurred earlier that day between herself and the deceased. She alleged that the deceased assaulted her, spat at her and behaved indecently by exposing himself in her direction. Scott Denton contacted a friend of his, Paul Singleton, with a view to their visiting his brother's home and assaulting Withington and his flatmate both as a form of retribution for their conduct towards his mother and in an endeavour to persuade them to vacate the premises. Singleton in turn contacted a friend of his named Amos Gosling to assist. Denton drove Gosling and Singleton to the house of an acquaintance of theirs, where Gosling obtained a single barrel 12 gauge shotgun and 3 cartridges. The three then drove to an area in the Currumbin Valley where Gosling loaded the weapon and fired it into the air. He then reloaded the weapon and the three men returned in Denton's vehicle to Tweed Heads in order to carry out their plan to assault and intimidate the deceased and his flatmate. 6 On the way they stopped at a BP service station at Tweed Heads where by chance they met the prisoner who was there intending to make a telephone call. The prisoner knew all three men and was a good friend of Singleton. He learned of the group's plan and asked if he could participate. The others agreed and the prisoner went with them in Denton's motor vehicle to the prisoner's home. There the prisoner found items of clothing so that they could disguise themselves and also obtained a wooden broom handle and two metal rods with which to arm themselves. 7 At this time the prisoner learned that one of the three was in possession of a firearm. Although he has maintained that he did not know whether it was loaded or not, the prisoner overheard a conversation in the motor vehicle after they left his premises on their way to Matthew Denton's home during which Scott Denton told Gosling that if it were necessary for him to use the weapon he should shoot Withington in the leg. 8 The vehicle still driven by Denton passed his brother's premises with its lights extinguished. In the driveway of those premises the deceased and two other persons, Masterson and Kickbusch, were engaged in servicing Kickbusch's landrover. Denton stopped his vehicle about two houses away from his brother's premises and the prisoner, Gosling and Singleton exited from the vehicle. Each of the three had covered his face with an item of clothing to avoid being recognised. The prisoner was carrying half a broom handle and a metal chair leg. Gosling was carrying the shotgun and Singleton a piece of metal pipe. 9 The prisoner was the first of the three to reach the area where the deceased and the two other men were standing near the landrover. He approached the passenger's side of the vehicle and swung one of the weapons he was carrying at Kickbusch. Masterson started to run towards the house. Gosling brought the shotgun to his shoulder and fired the weapon, the shot narrowly missing the prisoner and hitting the deceased in the back. The deceased fell to the ground and the prisoner and his two companions fled from the scene to a pre-arranged location where Denton was waiting for them in his parked vehicle. 10 When the coast appeared to be clear Masterson and Kickbusch left the house where they had sought safety and went to find the deceased. They located him beside the landrover on his back with his eyes opened. When they rolled him over they observed 8 to 10 wounds to his back. An ambulance was summoned and the deceased was conveyed to Tweed Heads Hospital where he was pronounced dead shortly after his arrival. 11 The prisoner and the other two men were driven by Denton to the premises of Chad Meha in Tweed Heads. There the shotgun was placed into a bag and secreted by Meha under his bed. The others then left the premises. 12 The next morning, 16 November, Gosling returned to Meha's house, retrieved the firearm and disposed of it in a park nearby. By the time he returned to the house the prisoner had also arrived there. The police attended the premises shortly thereafter and arrested both Gosling and the prisoner. 13 Immediately after his arrest the prisoner gave an account of the shooting to police indicating that the deceased had been shot by Gosling. He also told police that Denton had arranged the enterprise and had remained in his motor vehicle during the shooting. The prisoner was taken to a police station where he participated in a lengthy recorded interview in which he detailed his involvement in the incident and the part played by the other three men. 14 It is clear from these facts that the prisoner is to be sentenced on the basis that he participated in a criminal enterprise to carry out acts which were both unlawful and dangerous. The prisoner himself intended to inflict harm on persons who were at the premises by arming himself with weapons capable of inflicting serious injury and he knew that one of the participants in the joint enterprise had armed himself with a weapon. Although the prisoner maintained that he did not actually know that the firearm was loaded, it was conceded by counsel appearing for the prisoner that, by reason of the conversation that he overheard, he would have inferred that the weapon was both loaded and capable of being discharged. 15 It was submitted on behalf of the prisoner that I should consider his role in this enterprise at the very lowest having regard to the fact that he was not initially involved in the agreement to assault the deceased and that he was not present at the time the firearm was tested at the clearing. That submission in my view should be rejected. 16 It is clear that the prisoner voluntarily entered into this enterprise fully aware of what was intended even though at that initial stage he was unaware that a firearm was to be used. It was not the case, as counsel initially submitted, that the prisoner had simply accepted an invitation by the others to join their enterprise. Rather the prisoner asked if he could be a party to the activity when he learned what was intended. The prisoner then participated with gusto in that he provided the participants with the means of disguising themselves and with weapons that they might use in the venture. Further, when they arrive at the premises, the prisoner was the first of the group at the scene and the first to engage in physical violence. It may be that the other two participants were delayed somewhat in getting out of the vehicle because of the fact that one of the doors would not open, but the prisoner did not wait for them to join him and at least in the attack upon these persons he can be seen to be the initiator. 17 It has been suggested that the prisoner's involvement in this enterprise was as a result of his intoxication from alcohol and his use of cannabis both prior to meeting the group and afterwards while they were getting ready at the prisoner's premises. It has also been submitted that the prisoner had reacted to the allegations made against the deceased in respect of his conduct towards Mrs Denton by thinking of what he would do if it would have happened to his own mother. However, there is little mitigation in these matters although they may help to explain why a young man of the prisoner's normally good character became involved in such serious criminal conduct. In my view the prisoner's role in this enterprise which resulted in the death of the deceased was substantial and it is a serious case of manslaughter. 18 The prisoner is clearly entitled to a discount of the otherwise appropriate sentence on the basis of the utilitarian benefit of both the admissions he made to police immediately after his arrest and his plea of guilty at an early stage in the proceedings. In my view he is entitled to the full measure of the discount appropriate in such a case as determined in the guideline judgment of R v Thompson and Houlton (2000) 49 NSWLR 383. That discount should be 25 per cent. 19 Further, the prisoner is entitled to a significant discount both by reason of the remorse which he has shown since his arrest and because of his assistance to the authorities in providing an undertaking to give evidence against the three alleged co-offenders. There is little doubt that the prisoner is placing himself in some jeopardy by promising to give that assistance. He must have been aware when he gave the undertaking that his involvement in this serious offence which had such terrible consequences would result in his serving a substantial period in custody notwithstanding the discount to which he would be entitled and that while in custody he runs a real risk of reprisals from other prisoners. He may well have to be isolated from the general prison population for his own protection. 20 Counsel for the prisoner contended that a discount in the range of 60 per cent was appropriate in the circumstances of this particular case. Although it is not unknown for a discount in excess of 50 per cent to be granted to persons, who like the prisoner, have given or have been prepared to give valuable assistance to the authorities, it seems to me that any discount in excess of the normal range of 30 to 50 per cent ought only to be given in a truly exceptional case. This case does not fall into that category even if one has regard only to the assistance given and proffered by the prisoner. But in my view to qualify as a truly exceptional case for this purpose, it is not enough that regard be had only to the nature of the assistance, or perhaps even the consequences for the offender of providing that assistance. There must also be a proper regard to the seriousness of the offence committed by the offender and his role in it. Otherwise the discount may be so great and the resulting sentence so lenient that the fundamental objectives of punishment will be undermined. 21 In my view the overall discount appropriate in this case is 45 per cent having regard to the various matters justifying a reduction in the prisoner's sentence to which I have already referred. 22 The prisoner is aged 21 years. He has no relevant prior criminal record and certainly there is no suggestion that he has ever been involved in an offence of violence before. Evidence has been provided to me both orally and in written form which would support the submission made on behalf of the prisoner that the present offence is totally out of character for him. 23 The prisoner's early life and background are unremarkable. He was provided with a supportive upbringing and given many of the opportunities which some other members of the community have not enjoyed. He comes from a close-knit extended family and he has a good relationship with his parents, his maternal grandparents and other members of his mother's family. 24 Unfortunately for the prisoner, and his family, the prisoner's father left the family home permanently when the prisoner was aged 16 years. As would be expected, this event had a traumatic effect on the family not only in their emotional relationship with one another but also in the capacity of the prisoner's mother to carry on with the family business of managing a café. The departure of the prisoner's father from the family home resulted in the prisoner having to undertake a significant increase in his responsibilities within the family both in caring for his younger siblings and in assisting his mother in running the café. 25 The prisoner still has contact with his father, although generally it is through the medium of the telephone. However, because his father is still unable to face members of the family, he found himself unable to come to court to speak on behalf of the prisoner or to give him moral support by his attendance. This morning I received a letter from the prisoner's father written to this court him being fully aware of the circumstances of the prisoner's criminality in the offence to which he has pleaded guilty. His father, who like other persons who have given evidence before me for the prisoner, finds it hard to understand how the prisoner would become involved in an offence of such seriousness given his general background and lack of any violent behaviour in his past. He, like other members of the family, has recognised the serious and devastating impact the offence has had upon the prisoner and he requests that the Court find some alternative to sentencing the prisoner to imprisonment because of the impact such a sentence would have upon the prisoner. 26 It appears that the prisoner became more reliant upon alcohol and recreational drugs following his parents' separation. It may well be that his use of alcohol and drugs offered him some relief from the pressures and responsibility he felt in relation to his family in the absence of his father. However, there is nothing in his background or circumstances at the time of the commission of the offence that can really explain his desire to join in this serious criminal enterprise or his readiness to inflict injuries upon other persons with whom he had had no personal antipathy. 27 A psychologist who interviewed the prisoner and assessed him for the purposes of sentence reported that the prisoner was suffering from a personality disorder. I have difficulty understanding how this diagnosis was made or its significance in sentencing the prisoner for this offence. Personality tests indicated that the "psychotic and aggressive traits" of the prisoner were within normal limits. The psychologist seems to have formed a view that the prisoner was associating with a "delinquent or criminal sub culture" but other than the associates with whom he committed the present offence, there is no material to suggest that the prisoner was associating with persons who could be described as delinquent or criminal. The psychologist suggested that his personality traits and involvement in a "criminal sub culture" resulted in his use of large quantities of alcohol and illicit drugs. I can find nothing either in the report or in the other evidence before me to support that conclusion. 28 I am not clear of what use I was to make in sentencing the prisoner of the fact that the psychologist found him to have a personality disorder. There is nothing to suggest that it has any particular relevance to his participation in this criminal enterprise, which as I have already indicated seems to have been a complete aberration on the part of the prisoner. In any event the existence of such a disorder would not necessarily be a mitigating factor. Further, there does not seem to me to be any suggestion that treatment of the personality disorder might prevent further criminal activity by the prisoner in the future. Nor, in my view does the existence of a personality disorder of the type described by the psychologist have any role to play in lessening the need for general deterrence to be reflected in the sentence to be imposed upon the prisoner. 29 This appears to me to be simply a case where the prisoner, while being somewhat affected by alcohol and drugs, and perhaps being, as he described it, at the wrong place at the wrong time, chose to participate in serious criminal conduct because one or more of his close friends were involved. Unfortunately, this is not an unusual scenario for young men in our community and certainly does not indicate a significant or relevant personality defect on the part of the prisoner. 30 The prisoner has been in a steady relationship with a young lady since 1999 and they have lived in a de facto relationship for the last 9 months. Immediately after his arrest the prisoner spent seven days in custody before being granted bail. He has been unemployed since his release from custody and his mother believes that he has put his life on hold until the present matter has been finalised. He has, as I have indicated, been severely withdrawn and depressed as a result of his involvement in this offence and the death of the deceased. 31 I have no doubt that the prisoner has been remorseful for his involvement in the offence from the time of his arrest and I believe it was the death of the deceased which made him appreciate the seriousness of the conduct upon which he embarked and its full significance. This may be why he was so keen to assist the police from the outset. He has been ashamed of his involvement in this offence and appreciates the effect it has had not only on himself but upon members of his own family and the deceased's parents. 32 The prisoner is an intelligent young man who I believe could with maturity realise his full potential to live as an honest and worthwhile citizen. I have no doubt that he has more to offer the community than his involvement in the enterprise which resulted in the death of another young man would otherwise suggest. His voluntary involvement in Air-Sea Rescue Club prior to his arrest is some evidence to support this view. Although the psychologist has suggested the need for counselling in order to assist him to avoid criminal conduct in the future, I doubt that this is so. If the consequences of his participation in this offence does not deter him from further criminal conduct then no amount of counselling is likely to make a significant difference. 33 As difficult as it is to send a young man of the prisoner's character and potential to prison, there is no doubt that a prison sentence must be imposed upon him in order, firstly, to denounce the type of conduct in which the prisoner became engaged, secondly, to signify that it is completely unacceptable in this society for a group of young men to take the law into their own hands by the use of violence particularly where weapons are used, thirdly, to seek retribution for the loss of the life of another member of the community, and, finally, in the hope of deterring others from embarking on similar activity and particularly where a firearm is to be used. 34 Counsel for the prisoner, sensibly, did not suggest that I had any alternative other than to impose a gaol sentence on the prisoner notwithstanding his subjective features and the discount of the otherwise appropriate sentence to which he is entitled by reason of his early plea and promise of assistance. It was submitted that I find special circumstances to justify a reduction in the non-parole period that would otherwise result from an application of the provisions of the Crimes (Sentencing Procedure) Act. The Crown did not argue against that submission and I believe that special circumstances do exist, not the least because of the age of the prisoner, his lack of any relevant criminal record and his need for assistance on his release from a significant period of custody, especially in relation to his abuse of alcohol and drugs. It is also apparent that the prisoner will need assistance in confronting his offence and its consequences. 35 I had placed before me a victim impact statement written by the parents of the deceased. It was not admitted for the purpose of increasing the sentence of the prisoner and has not been used by me in any way to aggravate the severity of his crime or to punish him for what he did. But the reception of such evidence permits the family of the deceased to participate in the proceedings by expressing their grief and loss as a result of the death of their son. It reminds the court, if it is necessary to do so, of the real human tragedy involved in matters which come before it. I take this opportunity to expresses the Court's sympathy and understanding to all those who grieve for Graham Withington's senseless and untimely death. 36 I was provided by the Crown with some other sentences imposed for manslaughter and statistics provided by the Judicial Commission. This material is of limited assistance particularly in considering the sentences imposed for manslaughter because the factual basis of this type of offence can vary so significantly. However, having regard to that material it seems to me that the sentence I believe is appropriate to reflect the objective and subjective circumstances of this case is within the range of sentences imposed by other members of this Court. The sentence will be back-dated two weeks to reflect the period that the prisoner spent in custody on remand both after his arrest and after appearing before me last Monday. 37 The non-parole period I am about to specify is the least period which I believe the prisoner should spend in custody both to reflect the objective seriousness of the offence and to deter others from committing an offence of such seriousness as this one. Had it not been for the prisoner's age and antecedents the non-parole period would have been a more significant one. It is still slightly more than that which was sought by counsel for the prisoner but the offence was such a serious one that in my view any lesser non-parole period would not have been sufficient to carry out the purposes of the punishment. 38 The prisoner would have been sentenced to 9 years imprisonment, but applying the discount the prisoner is sentenced to 5 years imprisonment to commence on 9 July 2001. There is to be a non-parole period of 2 years 6 months to commence on 9 July 2001 and to expire on 8 January 2004, the date upon which the prisoner is to be eligible for release to parole. ************ Last Modified: 09/04/2001 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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