New South Wales Supreme Court CITATION : REGINA v Mark Daniel KIRKMAN [2002] NSWSC 1133 FILE NUMBER(S) : SC 70070/01 HEARING DATE(S) : 7/3/02, 8/3/02, 11/3/02, 12/3/02, 13/3/02, 14/3/02, 18/3/02, 19/3/02, 20/3/02, 21/3/02, 22/3/02, 25/3/02, 26/3/02 JUDGMENT DATE : 24 May 2002 PARTIES : REGINA Mark Daniel KIRKMAN JUDGMENT OF : Bell J at 1 COUNSEL : Peter Barnett (Crown) Dina Yehia (Accused) SOLICITORS : SE O'Connor Legal Aid Commission of NSW CATCHWORDS : Sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Previtera (197) 94 A Crim R 76 DECISION : Sentenced to imprisonment for a term of eighteen years; That sentence will be deemed to have commenced on 10 December 2000 and will expire on 9 December 2018; Specify a non-parole period of thirteen years and six months; The first date eligible for consideration for release on parole is 9 June 2014 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J Friday 24 May 2002 70070/01 REGINA v Mark Daniel KIRKMAN JUDGMENT 1 BELL J: On 7 March 2002 the offender, Mark Daniel Kirkman, was arraigned before me on an indictment charging him with the murder of Leroy Cochrane on or about 9 December 2000 at Wee Waa. He pleaded that he was not guilty of that charge. A jury was empanelled and he stood his trial. 2 On 26 March 2002 the jury returned a verdict of guilty. The proceedings were stood over to 10 May 2002 for sentence hearing. 3 The deceased was a twenty-one year old man living in Wee Waa. The offender was born and raised in the Wee Waa area. He attended school with the deceased's older brothers, Alan and Robert. There was a history of poor relations between the offender and the deceased and members of the family of the deceased. 4 On the afternoon of Saturday 9 December the offender called to see a friend, Dale Cameron, who also resided in Wee Waa. He spent much of the afternoon and evening drinking with the Mr Cameron's cousin, Ricky O'Brien ("O'Brien"). During the course of the afternoon the two men became intoxicated. Their talk turned to the deceased. At some stage that afternoon or evening the offender suggested that they should find the deceased and teach him a lesson. 5 Some time around 10:00 pm or a little later the offender and O'Brien saw the deceased in James Hibbens Avenue, Wee Waa. The offender invited the deceased to join him and O'Brien in a session of marijuana smoking. The deceased agreed and got into the back seat of the offender's vehicle. The three drove out to Tulladunna, an area of bushland not far from Wee Waa. There the deceased was stabbed twice in the lower back and beaten about the skull and face with golf irons. He sustained severe injuries to the back of the skull, which were almost immediately fatal. The stab wounds involved significant injury to the internal organs and would have proved fatal. 6 The offender and O'Brien left the scene shortly after the killing. The offender drove back to Wee Waa calling in at his parents' home where he cleaned himself up. O'Brien ran from the scene to his family home. Police spoke to both men the following day. Each gave an account nominating the other as responsible for the whole of the violence done to the deceased. 7 O'Brien participated in a video re-enactment at the scene and in an electronically recorded interview in which he gave an account which was wholly exculpatory of himself. 8 The offender participated in two electronically recorded interviews. In these, while giving an essentially self-serving account, he admitted that he had planned to pick up the deceased and drive him to a location away from his friends in order to assault him. He said that O'Brien's role was to ensure that any fight remained a fair one. Significantly, in the course of his interviews the offender admitted to knowing that O'Brien had placed two golf irons in the rear of the car saying that they might need them for "backup". Thus, while endeavouring to put a good light on his own role in the events of that evening, the offender's interviews with police provided a foundation for a finding that he was liable for the murder of the deceased upon the basis of an extended joint criminal enterprise. 9 O'Brien was not charged in connection with the killing. He gave evidence on behalf of the Crown at the offender's trial. 10 O'Brien's evidence was in conformity with the account that he had earlier given to the police. It was the offender's case at trial that O'Brien was lying and that he had inflicted all of the fatal blows upon the deceased. Generally, the offender maintained the account that he had given to the police in the course of his interviews made on 11 December and 15 December 2000. He was cross-examined about some inconsistencies between his evidence and the earlier accounts. It was put, with some force, that he had moulded his evidence to fit the forensic evidence. 11 Following the offender's conviction he initiated contact with Detective Inspector White, the officer in charge of the investigation. Inspector White spoke to the offender at the Long Bay Prison complex on 24 April 2002. On that occasion the offender said that he wanted to assist the authorities with the prosecution of O'Brien for his role in the murder. He now wished to give the police the truthful account of the killing. The offender considered that O'Brien should be held accountable for the crime because he was said to be equally involved in it and because he hoped that his assistance would be taken into account in sentencing him. 12 The offender proceeded to give a further version of the events of the 9 December 2000 in a third electronically recorded interview ("the third interview"). 13 The offender entered an undertaking to give evidence in accordance with the contents of the third interview at any proceedings against O'Brien for offences arising out of the death of the deceased. In a short statement made on 29 April 2002 the offender stated that everything contained in the third interview was true and correct. 14 The offender gave evidence before me confirming his willingness to give evidence on behalf of the prosecution in any proceedings brought against O'Brien. 15 I propose to sentence the offender upon the account contained in the third interview against a background of the evidence given at the trial. In the third interview the offender maintained his account that during the evening of 9 December both he and O'Brien had spoken of their grievances concerning the deceased. He went on to state: "[W]e talked about going and either having a fight with him, where we found him, or it would be better that we picked him up if we could get him away from his friends, so I could have a fight with him." (A17) 16 The offender described how he and O'Brien had picked up the deceased in James Hibbens Avenue and driven out to Tulladunna. On arrival the offender got out of the car telling the deceased that they were there to fight and not to smoke marijuana. The deceased protested that he had not come out to have a fight, to which the offender replied, "well I did" (A18). The offender threatened to drag the deceased out of the car. The deceased got out of the car at this point saying, "OK then, let's go" (A20). The two commenced fighting. The deceased quickly got the better of the offender who fell onto his back. The deceased was on the top of him. The offender called out to Ricky O'Brien telling him to get the deceased off him and to stop him. 17 It is the offender's account in the third interview, which I accept for the purpose of sentencing him, that O'Brien then stabbed the deceased. Thereafter the offender said: While the actual knife handle broke off in Ricky's hand um, when he rolled off he'd stabbed him and at that time I rolled him off me um, Ricky said that the knife handle had broken off and I said, Well what did you stab him for? And it just went on from there. Ricky went back to the car, to the back of the car and opened up the boot and got the golf clubs up, by the time I'd stood up Leroy was screaming, What are youse doin', I didn't know youse were like this um, I told him to shut up and Ricky was doin' the same. Ricky give me a golf club and I'd hit him first and then Ricky hit him two or three times and then the golf club that he used, his head broke off first and then I'd lost it, I was hitting him more or less simultaneously at the same time and um, the marks that were on his body were from, they were done by me um, the actual head of the golf club had broken off when those marks were made because they were just, I dunno I just, I don know, I just didn't stop um, I just lost it. Ricky pulled, was pullin' me back, he said, he's dead, He's dead, that's enough um, I had blood all over me. Ricky had blood all him, there was blood all over the car um, I can't tell you what thought I was in at that time, what, I just dunno what, what, I just don't know. We went round to the passenger side of the car and um we had a cigarette working out what we were gunna do from there, 'cause we didn't know what to do." (A22). 18 The offender instructed O'Brien to remain at the scene while he returned to Wee Waa and cleaned himself up and got a change of clothing for O'Brien. He planned to return to the scene with a shovel to bury the deceased. 19 In the third interview the offender admitted to knowledge both that O'Brien had the golf irons and that he was armed with a knife. As they were leaving O'Brien picked up the knife saying, "You just, you never know". The offender replied, "Yeah, well fair enough" (A36). 20 The offender admitted: "[W]hen Ricky stabbed that was the point of no return, well it could have been, I could have stopped it and done, put him in the car or whatever, but to me it was sort of a point of no return" (A38). 21 The offender was drinking cans of Southern Comfort and Coke during the afternoon and evening of 9 December. He had consumed at least seven of these and a lesser quantity of full strength beer prior to the trip to Tulladunna. 22 Ms Yehia submitted that I would find that the offender did not set out that evening to lure the deceased to his death. He has consistently given an account that he planned to have a "one-on-one" fight with the deceased. In the third interview the offender maintained that the knife and the golf clubs were taken in order to scare the deceased should the need arise. He told Inspector White "well that's the way I took it, that if you pulled the golf club out he's not gunna keep on fighting if someone's got a golf club in their hand" (A38). 23 O'Brien struck me as a slightly built rather nervous individual. On the offender's account the deceased was an experienced fighter. I was inclined to treat his claim that he had planned to have a fist fight with the deceased (and that the weapons were brought along for no purpose other than to scare the deceased) with a degree of scepticism. However, I take into account the offender's statement to Ms Duffy, a psychologist, in her report dated 30 April 2002,"I was ten foot tall and invincible with alcohol". He made similar observations in the course of his initial interviews with police. I am not satisfied beyond reasonable doubt that the offender planned to kill or to inflict grievous bodily harm with the use of weapons at the time he set out to find the deceased that night. I accept that he may have been emboldened by the alcohol and entertained a view that he could teach the deceased a lesson in a "one-on-one" fist fight. 24 I sentence the offender upon the basis that it had been his intention in luring the deceased to the Tulladunna Reserve to administer a physical beating to him not involving the use of weapons. I am satisfied beyond reasonable doubt that during the course of the assault upon the deceased the offender formed an intention to kill him and that he inflicted one or more of the fatal blows with that intention. 25 This is objectively a very serious crime. The deceased was lured from the protection of his family and friends to a remote location in order that he be subjected to a physical beating. The offender was accompanied by O'Brien and knew that they were equipped with weapons so as to ensure that the deceased did not get the better of him in the course of the assault. When things did not go as the offender had planned, he decided that a point of no return had been reached and he joined in the infliction of shocking injuries on the deceased with the intention thereby of killing him. 26 The deceased was a young Aboriginal man. He was raised by Alfred and Dawn Cochrane as their son from the time he was a baby. Victim impact statements prepared by Alfred and Dawn Cochrane were tendered at the sentence hearing in accordance with the provisions of Pt 3 Div 2 of the Crimes (Sentencing Procedure) Act 1999. The Crown Prosecutor informed me that Mr and Mrs Cochrane had been advised of the approach taken by courts to the reception of victim impact statements in cases of unlawful homicide. This is as discussed by Hunt CJ at CL in R v Previtera (197) 94 A Crim R 76 at 88-87. I bear his Honour's observations in mind in the way I approach the reception of the victim impact statements in this case. 27 Mr and Mrs Cochrane have lived in Wee Waa since 1978. For a time they lived on the riverbank at Tulladunna. They moved into their present home around fifteen years ago. For both Mr and Mrs Cochrane their home is now filled with reminders of Leroy and this is a continuing source of sadness to them. Mrs Cochrane speaks of the tensions that the family's grief has generated. She describes them as "falling apart". The Court extends its sympathy to Alfred and Dawn Cochrane and to their other children, Christine, Brett, Wayne and Robert in their very great loss. 28 The offender is aged thirty-one. I am substantially dependant for evidence concerning his background on the contents of Ms Duffy's report, to which I have already referred. The offender gave evidence at the trial but this did not touch on his background. His evidence at the sentence proceedings was brief and focussed upon his undertaking to give evidence in the proceedings against O'Brien and on the conditions of his custody. 29 The offender was adopted by the Kirkman family as a baby and grew up in Wee Waa. He is one of three brothers. The family is a close and loving one. He was raised in materially comfortable circumstances. He left school at the completion of Year Eleven and commenced working in his father's engineering business as an apprentice fitter and machinist. He completed the first two years of this trade studying the theoretical component at the Tamworth TAFE. He did not complete his apprenticeship. 30 For a time in his late teens the offender gave up employment and spent a good deal of time smoking marijuana. His parents arranged for him to move to Sydney and to work with his uncle at a cinema complex in Campbelltown. The offender settled down and enjoyed his employment as a trainee projectionist. He lived with relatives in the Camden area. After two years the uncle's business closed down. Thereafter the offender worked in a variety of jobs. There were periods of unemployment and these were associated with a significant level of cannabis use. The offender's family support is evident throughout this period. Various arrangements were made to find employment for him either with his father or with other relatives. 31 Around 1995 the offender met his de-facto wife, Louisa. At the time they commenced their relationship Louisa had two daughters by a previous union. The offender assumed responsibility for these children as his own. The couple now have two further daughters, presently aged three and five years. 32 The family moved back to Wee Waa. The offender resumed his trade and returned to his studies at the TAFE. At this time he commenced working casually at the Royal Hotel. In due course he was invited to manage the hotel. He and his family lived at the hotel. In his interview with Ms Duffy the offender described this period of his life as a difficult one. Riots were common and there was a deal of abuse directed towards him. After a relatively short period he resigned from the hotel and the family left Wee Waa and moved to Port Macquarie. There the offender worked at the local RSL. In early 2000 he was made redundant. The family returned to Wee Waa. With the assistance of loans raised from within the family the offender and Louisa purchased the local café and commenced to run this business. 33 In the period leading up to the commission of the offence there were some incidents involving the deceased and the offender. The offender believed that the deceased had wrongly taken the sum of $10 from a young man who had been going out with his older daughter. When the deceased came into the café the offender challenged him with this allegation telling him to leave. There was some further exchange between the two on the footpath outside as the offender was closing up for the night. The deceased, who was affected by alcohol at the time, made an offensive remark relating to the offender's daughter. 34 Three days before the offence there was a further incident. The offender was chased down the street by a group of men. He believed the deceased to be among the group. It would seem that on the afternoon and evening of Saturday 9 December the offender was ruminating about these events as he became increasingly intoxicated. 35 The offender's criminal record includes convictions for relatively minor offences consistent with his history of the use of marijuana. Of greater significance is the circumstance that in July 1990 he appeared before the Narrabri Local Court and was convicted of an offence of assault occasioning actually bodily harm. He was placed on a recognizance to be of good behaviour for two years. In August 1997 the offender was again convicted of an offence of assault occasioning actual bodily harm. He was released on a recognizance subject to the supervision of the Probation and Parole Service on that occasion. In August 2000 he was convicted of a common assault and fined. 36 The only information concerning these earlier offences of violence is that contained in Ms Duffy's report. The offender gave an account of an incident in which he had returned home to find his then partner in bed with another man. He told Ms Duffy that he had "hit the roof" and been charged with assaulting both of them. 37 Ms Duffy carried out personality tests on the offender during the course of her lengthy interview with him. She concluded that he does not present as being an overly assertive or aggressive individual, notwithstanding his history of assault in times in which he has been the subject of emotional turmoil or a perceived threat. 38 Ms Duffy obtained an account from the offender of his alcohol use. He said that he did not drink on a regular basis, but that his consumption of alcohol was quite high on occasions when he attended a party or other social event. The hangovers following binges on such occasions would cause him to stop drinking for several weeks. He said that he had been busy working and had not consumed alcohol for some time prior to the date of the offence. The offender was experienced in the use of alcohol at the date of the offence. The circumstance that the offence was committed at a time when he was significantly intoxicated provides no basis for mitigation. Equally, there is nothing in the material before me to suggest that the past incidents of violence occurred in the context of excessive drinking. In all the circumstances I am not persuaded that the offender's consumption of alcohol on the day of the offence should be viewed as a circumstance of aggravation either. 39 The offender did not give evidence of remorse in the proceedings before me. Ms Duffy states that he expressed extreme remorse over the death of the deceased in his interview with her. He also expressed regret in the course of his interview with Inspector White on 24 April 2002. Following that interview Inspector White observed that the offender appeared to be relieved. Inspector White asked him how he was feeling and he said "much better, I've been wanting to get that off my chest since after I was charged". He also told Inspector White "it should never have happened that way. No-one deserves to die like that." I accept that belatedly the offender has come to some appreciation of the enormity of his crime and that he is remorseful for it. 40 In Ms Yehia's submission further support for a view that the offender is remorseful was to be found in the frankness of his account of the circumstances of the killing given in the third interview. In the absence of these admissions she submitted that he might have sought to persuade me that he should be sentenced upon a view that he did not himself inflict any of the fatal blows on the deceased. Importantly she submitted that, in the absence of the admissions in the third interview, the offender had prospects of persuading me that he ought not to be sentenced upon the basis that he had formed an intention to kill the deceased. The former submission overlooks the evidence at the trial of the blood splatter on the offender and of the change in his account to accommodate this evidence. In the absence of the admissions in the third interview I would have sentenced the offender upon the basis that he was a participant in the infliction of the fatal injuries upon the deceased. However, there is substance to the submission that the frankness of the offender's account given in the third interview is consistent with his stated desire to get matters off his chest. I accept that this evidences remorse. 41 The offender's family remain supportive of him and visit him regularly. Louisa and the children have moved to the Central Coast and see him weekly. The offender's employment history has been a chequered one. He has a criminal record, which, while not extensive, reveals a pattern of offending over a period of a decade. Despite these considerations, having regard to the offender's close family support and to the contents of Ms Duffy's report, I am persuaded that his prospects of rehabilitation are better than average. 42 On the day Ms Duffy visited the prisoner she observed signs of recent injury on him. He told her that he had been assaulted by a prisoner said to be a "cousin" of the deceased. This incident was the subject of evidence at the sentence hearing. The offender said that he had been king hit and kicked. He suffered a black eye. 43 Ms Duffy reported that the offender's scores on personality testing revealed high levels both of anxiety and depression. These appear to have been exacerbated by the threats and harassment to which he has been subject during the period of his custody to date. He expresses fears that he will die in custody. 44 Until his trial, the offender was maintained in conditions of strict protection. He said that the reason for this was because his offence was against an Aboriginal person. Despite being a protection prisoner he had been assaulted on three occasions in the period prior to the trial. He suffered black eyes and bruising on these occasions. Following the trial he was placed on a regime described as "normal protection". After the assault on 30 April he was transferred from the Long Bay complex to the Parklea prison. As at 10 May 2002 the offender was again confined in strict protection. He expects to serve the whole of his sentence in these conditions. This belief flows, in part, from the fact that he has been convicted of killing an Aboriginal prisoner and, in part, from his realisation that in the future he will be identified as a prisoner who has given evidence on behalf of the Crown. Prisoners who serve their sentence in conditions of protection have access to a lesser range of programs and amenities than prisoners in ordinary discipline. I take this consideration into account. 45 Section 23 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") provides that a court may impose a lesser penalty than it would otherwise impose on an offender taking into account the degree to which the offender has assisted, or undertaken to assist, the authorities in the investigation of, or in proceedings relating to, the offence. Section 23(2) sets out, non-exhaustively, ten matters to which the court must have regard in deciding whether to impose a lesser penalty on this account. Among these considerations the court must take into account the significance and the usefulness of the offender's assistance to the authorities. The court must have regard to the truthfulness, completeness and reliability of any information or evidence provided by the offender. 46 Ordinarily the provision of information concerning the role played by a co-offender in the commission of an offence, together with an undertaking to give evidence against the co-offender might be thought to attract a significant discount. In this case the offender's willingness to assist the authorities comes at a very late stage and only after he chose to perjure himself at his trial, falsely asserting his innocence and O'Brien's sole responsibility for the fatal attack. His credibility has been most severely shaken. His usefulness to the Crown as a witness might be thought to be of little value. However, I am required by s 23(2)(b) of the Sentencing Procedure Act to take into consideration any evaluation by the authorities of the assistance either rendered or undertaken to be rendered. I take into account the Crown Prosecutor's submission that it is proposed both to prosecute O'Brien and to rely on the evidence of the offender in those proceedings. The Crown Prosecutor points to a body of independent evidence that tends to provide support for the account given in the third interview. 47 I deal with the offender on the basis that the information provided by him to the police in his third interview is of some significance to the authorities. Its usefulness is lessened by the lateness with which the offender came forward and the circumstance that he has previously given a different account on oath at his trial. 48 I have decided that it is appropriate to impose a lesser penalty than I would otherwise impose upon the offender after taking into account the considerations set out in s 23(2) of the Sentencing Procedure Act. I have already referred to some of these considerations. In determining the extent of the discount I have regard to the evidence that the offender anticipates serving the whole of his custody in conditions of protection. I am conscious that his status as a protection prisoner has, to date, been referrable to the nature of his offence and that this consideration will continue to be relevant in the future. 49 I have decided to discount the sentence that I would otherwise have imposed by approximately fifteen percent. This produces a sentence of eighteen years imprisonment. 50 I have considered whether there are special circumstances justifying a departure from the statutory requirement that the non-parole period be not less than three quarters of the term of the sentence pursuant to s 44(2) of the Sentencing Procedure Act. I take into account that this is the offender's first sentence of imprisonment. It will necessarily be a lengthy term and he will require assistance upon his release into the community. However, I am satisfied that the non-parole period that I propose will admit of a sufficient period during which the offender may have the benefit of conditional release on parole. I am not of the view that there are special circumstances in this case which would justify a non-parole period of less than three quarters of the term of the sentence. 51 Mark Daniel Kirkman I sentence you to imprisonment for a term of eighteen years. That sentence will be deemed to have commenced on 10 December 2000 and will expire on 9 December 2018. I specify a non-parole period of thirteen years and six months. The first date upon which you will be eligible for consideration for release on parole is 9 June 2014. ********** Last Modified: 11/27/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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