New South Wales Supreme Court CITATION : Regina v Raymond Bruce REID [2001] NSWSC 1084 FILE NUMBER(S) : SC 70086/01 HEARING DATE(S) : 12/11/01, 13/11/01, 14/11/01, 15/11/01 JUDGMENT DATE : 16 November 2001 PARTIES : Regina Raymond Bruce REID JUDGMENT OF : Bell J at 1 COUNSEL : Howard Hamilton (Crown) Mark Smith (Accused) SOLICITORS : S E O'Connor Legal Aid Commission of NSW - T A Murphy CATCHWORDS : Sentence Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED : Regina v Fernando (1992) 76 A Crim R 58 DECISION : Three years and three months imprisonment; Sentence deemed to have commenced on 29 April 2000; Non-parole period of twenty-one months; First date eligible for consideration for release on parole is 28 January 2002 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION BELL J FRIDAY 16 NOVEMBER 2001 70086/01 - RAYMOND BRUCE REID SENTENCE 1. HER HONOUR: Raymond Bruce Reid was arraigned before me on 14 November 2001 on an indictment charging him in count one with the murder of Michael William Jones at Wagga Wagga on 29 April 2000. Count two charged the prisoner in the alternative with maliciously inflicting grievous bodily harm upon Michael William Jones. The prisoner entered a plea of not guilty to count one and a plea of guilty to count two. The Crown accepted his plea of guilty to the lesser charge in full discharge of the indictment. 2. The offence of which the prisoner stands convicted is provided by section 35 (b) of the Crimes Act 1900 . It carries a maximum penalty of seven years imprisonment. 3. The facts upon which I proceed for the purpose of sentence are as follows. The prisoner and his cousin Kevin John Jones were, as at 29 April 2000, living in a squat frequented by homeless men in Wagga Wagga. The prisoner was alcoholic. Michael Jones was a resident of the Edel Quinn Shelter for homeless persons, which was located close to the squat. He too was alcoholic. He appears to have been on friendly terms with the prisoner. The prisoner was drinking with Kevin Jones and a man named Jack during the course of the morning of 29 April 2000. He came to learn of some incident that had occurred between Michael Jones and Kevin Jones earlier that day. He understood that there had been a run-in between the two over the suggestion Michael Jones had stolen some wine. Kevin Jones was said to have got the better of Michael Jones in the course of that incident. 4. On the afternoon of 29 April the prisoner was drinking with Kevin Jones and the man Jack at a spot frequented by alcoholics behind the Beaurepaires shop in Wagga. Michael Jones approach the group. A fight broke out between Kevin Jones and Michael Jones. During the course of that fight Kevin Jones punched and kicked Michael Jones. The prisoner joined in this fight and himself kicked Jones on one occasion. Thereafter he assisted Kevin Jones to drag Michael Jones over to an industrial waste bin. He helped Kevin Jones to place Michael Jones inside that bin. It appears that subsequently methylated spirits was poured over Michael Jones and he was set alight. He died on 29 April 2000 as the result of a combination of injuries to his head and chest, smoke inhalation, and alcohol toxicity. The prisoner is not being sentenced in respect of the unlawful killing of Michael Jones. 5. The prisoner and Kevin Jones were spoken to by police on the evening of 29 April 2000. They were arrested and both were charged with the murder of Michael Jones. While the prisoner was being held in custody he was approached by Detective Sergeant Jones, who asked if he wished to participate in an identification parade. He responded by telling Detective Sergeant Jones that there was something he wished to talk to him about. Thereafter he participated in an electronically recorded interview. In the course of that interview he gave an account of the assault upon Michael Jones by Kevin Jones, including the fact that Michael Jones had been placed inside an industrial waste bin, and that he had assisted Kevin Jones in that task. He did not admit to kicking Michael Jones himself. He went on to give an account of the aftermath, nominating Kevin Jones as being responsible for setting fire to the deceased. 6. The prisoner was jointly arraigned with Kevin Jones on Monday, 12 November 2001. The counts charged against him in that indictment were framed in the same terms as the indictment presented against him on 14 November. He entered pleas of not guilty to both counts. This was against a background that the Crown had indicated that it was not willing to accept a plea to the lesser charge in discharge of the indictment. 7. Upon the application of Kevin Jones' counsel I directed that Kevin Jones be tried separately from the prisoner. A jury was empanelled on Wednesday, 14 November 2001, to try Kevin Jones. Shortly thereafter the prisoner was rearraigned on a fresh indictment and entered the pleas to which I have referred. He has given an undertaking to give evidence in conformity with his electronically recorded interview, and with subsequent statements, provided to the police, at the trial of Kevin Jones. 8. In sentencing the prisoner I propose to take into account his assistance to the authorities in the investigation of the assault upon, and subsequent murder of, Michael Jones. I also propose taking into account the prisoner's undertaking to give evidence on behalf of the Crown at the trial of Kevin Jones. I consider it appropriate to discount the sentence that I would otherwise impose to reflect these considerations; s 23 of the Crimes (Sentencing) Procedure Act 1999 (NSW). I also take into account the prisoner's plea of guilty. This was entered at the first opportunity. I propose to reflect the utilitarian value of the plea of guilty by means of a discount of 15 per cent. This discount reflects, among other things, my view that the trial of the prisoner would neither have been complex or lengthy. 9. I propose to allow an additional discount to reflect the prisoner's assistance to the authorities, including his undertaking to give evidence at the trial of Kevin Jones. In the light of the provisions of s 5DA of the Criminal Appeal Act 1912 I consider that I should separately identify this discount. In so doing I take into account that the evidence which it is anticipated the prisoner will give is of considerable significance to the Crown case against Kevin Jones. I also take into account the evidence that the prisoner has been assaulted while in custody, apparently as the result of his assistance to the authorities in connection with this matter, and that he has served and will continue to serve his sentence in conditions of protection. 10. I propose allowing a further discount on sentence in the amount of 20 per cent to take account of these matters. 11. I turn now to a consideration of the prisoner's subjective circumstances. The prisoner is an aboriginal man aged 27 years. He is the seventh of eight children born to Pam Johnson. When he was aged three his mother left the family, after making arrangements for the children to be placed in foster care. The prisoner's sisters were sent to Minda in Sydney. The five boys were placed with a white foster family at Manilla. They ranged in age from one to ten years. After a time some of the prisoners brother's were sent back to their mother. The prisoner was moved from his initial foster placement in Manilla to a number of different foster homes. He was made a ward of the Minister. 12. At the age of nine the prisoner returned to live with his mother, who was then living in Narrabri. At this time she was involved in a domestic relationship with a violent and alcoholic man. The household was one characterised by a high level of alcohol abuse. The mother's boyfriend meted out vicious beatings both to her and to the prisoner. On one occasion the prisoner was deliberately run over by a motor vehicle driven by his mother's boyfriend. He was admitted to the Narrabri District Hospital for treatment following this incident. 13. It was the prisoner's observation that his mother was pleasant in her behaviour to her other sons, but that she constantly denigrated him, telling him that he was worthless and that he would end up in gaol. He says, and I accept, that he continues to be troubled by memories of these taunts. 14. Three months after his discharge from the Narrabri Hospital the prisoner spent a weekend at a friend's home. When he returned he found that his mother, her boyfriend, and his youngest brother had left Narrabri. There had been no prior notice of their move. The prisoner learned that his two eldest brothers had gone to Peak Hill, where their father lived. The prisoner made contact with his sister at Coolah and went to live with her for a time. He was twelve years old. He had difficulties relating to the sister's boyfriend and so after a matter of months he moved to Peak Hill, where he stayed for some years with his step-father and his older male siblings. 15. From around the age of twelve the prisoner commenced abusing alcohol. During his early childhood years he attended a number of different primary schools. He was expelled halfway through Year Six and did not return to school thereafter. His teenage years spent at Peak Hill with his step-father, a chronic alcoholic, were characterised by alcohol abuse. 16. During the years from 13 to 18 the prisoner had various encounters with the criminal law and was convicted of a range of offences, including burglary, theft, and criminal damage. He was sentenced to serve periods in youth training centres. 17. At the age of 19 the prisoner formed a domestic relationship with a lady named Regina Parkes. They met in Mildura while he was working as a casual fruit picker. Generally in the years between 19 and 26 the prisoner obtained casual employment fruit picking and cotton chipping. He lived with Ms Parkes and fathered five children during this period. His life was characterised by heavy drinking. The family moved about rural New South Wales and Victoria undertaking seasonal work. 18. The prisoner engaged in a variety of self harming activities in his young adult-hood. These included cutting himself, burning himself with cigarettes, attempts to hang himself, and to kill himself in staged motor vehicle accidents. He was admitted to Mildura Hospital in relation to these difficulties and appears to have obtained some counselling there. He was prescribed medication, including Sinequan and Prozac, and appears to have been diagnosed as suffering from some form of depressive condition. 19. In late 1999 he separated from Regina Parkes, who was no longer able to tolerate his excessive drinking. In November 1999 he found himself in Wagga Wagga, where he obtained accommodation at the Edel Quinn Shelter. He was convicted at the Wagga Local Court of assault occasioning actual bodily harm, resisting an officer in the execution of his duty, and larceny. In total he received fixed term sentences of three months. He was released on 26 March 2000, and returned to Wagga. 20. Ultimately he ended up living in the squat near the Edel Quinn Shelter. His life at this time was characterised by drinking substantial quantities of cask Moselle in the company of men by and large a generation older than he. He met Kevin Jones on the day of the offences. They found themselves drinking at the rear of the squat where both were staying. He learned that Jones came from Peak Hill, and that his step-father was Jones' uncle. This appears to have created a bond between the two on the day. 21. The offence occurred in the context of alcohol intoxication. It is an objectively serious instance of the malicious infliction of grievous bodily harm. The prisoner joined in the assault at a time when Michael Jones was being subjected to a vicious beating by Kevin Jones. In evidence the prisoner said that Kevin Jones had encouraged him to kick Michael Jones. He offered as his explanation for doing so that he had become frustrated by Kevin Jones entreaties. His conduct on his own account in joining in this assault was cowardly. Thereafter the prisoner assisted Kevin Jones to place Michael Jones inside an industrial waste bin at a time when it was apparent that Michael Jones was unconscious and that he had suffered significant injuries. In the light of the acceptance of the plea to the lesser count I confine my consideration of this circumstance to the callous attitude displayed by the prisoner to the victim of his assault. 22. In the course of his evidence the prisoner offered as his reason for not telling the police that he had joined in on the assault upon the deceased (albeit admitting to assisting Jones to place him in the industrial waste bin) that he was ashamed of his conduct. He confirmed this in evidence, I accept that to be the case. I accept that the prisoner is remorseful for his conduct. 23. The prisoner has a criminal record both in this State and in Victoria. As an adult he was convicted before the Oatley Magistrates Court in June 1992 for the offence of carrying a dangerous article, relating to his possession of a knife and sheath. He was convicted and fined in relation to that offence. In the following months he appeared before the Kerang Magistrates Court charged with a variety of offences, including theft of a motor vehicle, burglary, criminal damage and receiving. In relation to these matters he was sentenced to a community based order for twelve months. He was required to perform 150 hours of unpaid community work. 24. Subsequently he was convicted before the Kerang Magistrates Court in October 1992 of burglary and theft, and sentenced to serve six months in a youth training centre. In May of 1994 he was dealt with for a breach of the orders imposed by the Prahran Magistrates Court. The community based order was cancelled and he was sentenced to serve three months imprisonment. 25. In the interim, in New South Wales, he was convicted before the Parkes Local Court of the offence of breaking and entering with intent to steal, and stealing motor vehicle. This was in February 1993. He appealed against his conviction. The appeal was dismissed in the District Court, his sentence was adjusted to one comprising a minimum term of nine months and an additional term of nine months. This appears to be the longest sentence of imprisonment to which the prisoner has been subject prior to the instant offence. 26. In the mid 1990s the prisoner appeared before the Magistrate's Court in Victoria on a number of occasions on charges including resisting police, being drunk in a public place, and shop stealing. In relation to these offences he was dealt with variously by community based orders and fines. 27. I do not propose reciting all the entries. It is to be noted that in October 1999, following his conviction before the Mildura Magistrates Court for offences including being drunk in a public place, the use of indecent language, assault police, and an offence described as "intentionally cause injury", the prisoner was sentenced to an aggregate of six months imprisonment to be served by way of an intensive correction order. The conditions of that order included that the prisoner attend the Mildura Community Corrections Centre, and in particular that he attend specified programs, including alcohol and other drug treatment programs. 28. The prisoner's case management file maintained by the Department of Corrective Services was tendered in his case at the sentence hearing. An examination of that file reveals that in January 2001 the prisoner was assaulted by a number of inmates while at the Metropolitan Remand and Reception Centre. He told staff that he believed that he had been assaulted because he had "given-up" his co-accused. Thereafter he was placed on protection. In the course of his oral evidence he said that he is currently housed in a protection cell furnished with nothing but a bed and a toilet. He is permitted to exercise in a courtyard for one hour per day. As I have noted, I have taken into account these considerations in the discount which I propose. 29. The Department of Corrective Services' file is generally confirmatory of the prisoner's evidence as to his history of deliberate self harm and to his outpatient treatment for psychiatric disorders. 30. In sentencing the prisoner I have regard to his Aboriginality. I take into account the principles stated by Wood J as he then was in Regina v Fernando (1992) 76 ACR, 58 at 62 and 63. In particular I note his Honour's observations at 62 (E): "While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects." In Fernando his Honour was dealing with an aboriginal prisoner who normally resided on an Aboriginal reserve. 31. Certain of the principles which his Honour enunciated in Fernando do not seem to me to have a place in the exercise of my sentencing discretion in this case. The prisoner is not a person with little experience of European ways for whom a lengthy period of imprisonment may be unduly harsh. However, his deprived background, steeped as it was in alcohol abuse, violence, and neglect, is reflective of the dislocation and demoralisation of many Aboriginal persons living in rural areas of New South Wales. I consider that notwithstanding his history of criminal offending, he remains entitled to a measure of mitigation of sentence on account of this consideration. It remains necessary to give due weight to the objective seriousness of this offence. 32. In my view this offence, taking into account the prisoner's subjective circumstances, absent the discount for the plea of guilty and the prisoner's assistance to the authorities, calls for a sentence of five years imprisonment. Applying a discount of 35 percent reduces that sentence to one of three years and three months imprisonment. 33. I next turn to a consideration of the non-parole period. The prisoner's history of long standing alcohol dependence, his pattern of self harm and associated psychiatric difficulties suggest that he will need a longer period of supervision on parole than the ratio provided by section 44 (2) of the Crimes (sentencing Procedure) Act 1999 would provide. I consider that there are special circumstances in this case which make it appropriate to depart from the statutory proportion as between the non-parole period and the overall sentence. 34. Raymond Bruce Reid, in respect of your conviction for the malicious infliction of grievous bodily harm upon Michael William Jones, I sentence you to three years and three months imprisonment. That sentence will be deemed to have commenced on 29 April 2000. I specify a non-parole period of 21 months. The first date on which you will be eligible for consideration for release on parole is 28 January 2002. ********** Last Modified: 12/17/2001 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.