R v Gosling, R v Denton, R v Singleton [2001] NSWSC 850

New South Wales Supreme Court

CITATION : R v Gosling, R v Denton, R v Singleton [2001] NSWSC 850 FILE NUMBER(S) : SC 70200/01; 70004/01; 70201/01 HEARING DATE(S) : 21/09/01 JUDGMENT DATE : 28 September 2001

Regina v Amos Justin Gosling PARTIES : Regina v Scott John Denton Regina v Paul David Singleton JUDGMENT OF : Howie J at 1

J. Kiely - Crown COUNSEL : M. Austin - Accused Gosling B. Stratton QC - Accused Denton E. Kelly - Accused Singleton S.E. O'Connor - Crown SOLICITORS : Legal Aid Commission of NSW - Accused Gosling Nyman, Gibson & Co. - Accused Denton Martin Jilek, solicitor - Accused Singleton CATCHWORDS : Sentence for convictions of murder and manslaughter LEGISLATION CITED : Crimes Act 1900 - s 23A Crimes (Sentencing Procedure) Act 1999 - s 44 DECISION : See paras 51, 52 and 53.

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HOWIE J

FRIDAY 28 SEPTEMBER 2001

70200/01 - REGINA v AMOS JUSTIN GOSLING 70004/01 - REGINA v SCOTT JOHN DENTON 70201/01 - REGINA v PAUL DAVID SINGLETON

SENTENCE 1 HIS HONOUR: On 18 July 2001 Amos Justin Gosling, Scott John Denton and Paul David Singleton were each arraigned on an indictment containing a single count alleging that they murdered Graham Withington on 15 November 1999. Each prisoner pleaded not guilty to the charge and a trial commenced before a jury and myself. On 26 July 2001 the prisoner Amos Justin Gosling was re-arraigned at his own request and pleaded guilty to manslaughter. The Crown did not accept this plea in discharge of the indictment and the trial of all three prisoners on the charge of murder continued. 2 On 13 August 2001 the jury found Gosling guilty of murder and Denton and Singleton both guilty of manslaughter. The prisoners were then remanded in custody until 21 September 2001 for sentence. On that day I received evidence, heard submissions from counsel and adjourned the matter until today in order to determine the sentence that should be imposed. 3 The Crown's case alleged that Gosling was the principal in the killing of the deceased because it was he that shot the deceased at close range with the intention of at least inflicting grievous bodily harm upon him. In convicting him of murder, the jury must have rejected his defence of substantial impairment under s 23A of the Crimes Act. The Crown alleged that Denton and Singleton were party to a joint criminal enterprise with Gosling to threaten the deceased and others and to use force if necessary, and that during the commission of that joint enterprise the deceased was shot. In finding Denton and Singleton guilty of manslaughter, the jury must have found that the firing of the shotgun by Gosling was at least an unexpected incident in the carrying out of this joint criminal enterprise. 4 A significant amount of the evidence at the trial was not in dispute and, therefore, the facts upon which the prisoners are to be sentenced is not difficult to determine and can be briefly stated. Matthew Denton, the elder brother of the prisoner Scott Denton, had received a sum of money by way of compensation for injuries he received in a school sporting accident sometime in 1998. He used this money to purchase a house so that he could avoid, what he saw as, the interference of his mother in his life. Mrs Denton was unhappy with this situation believing that her son was unable to care for himself or manage his own affairs. 5 The house contained a granny flat that Mrs Denton wished to occupy with her younger son, the prisoner Scott Denton. Matthew had other ideas, however, and installed a friend as a tenant. A few weeks before his death the deceased moved into the flat with the person living there in order to help him pay the rent. The presence of these persons infuriated Mrs Denton and on occasions she visited the flat to abuse the tenants and disturb their peaceful occupation of the premises. Matthew Denton attempted to prevent his mother interfering to the extent of obtaining an apprehended violence order against her. 6 On 15 November 1999 there was an altercation between Mrs Denton and the deceased at the granny flat. It is unnecessary to detail what occurred, but it ended with the deceased making some indecent gesture towards Mrs Denton. She returned home in a highly distressed and angry state. She attempted to have her then de facto partner take action against the residents of the granny flat, but he refused telling her to contact the police. Later that afternoon the prisoner Denton, who resided during the week in Lismore where he attended university, returned to his home to find his mother still in a highly emotional state about the incident with the deceased. He was told amongst other things that the deceased had abused her, struck her, and exposed himself to her. Mrs Denton urged the prisoner to take some action in retaliation and to have the tenants leave the premises. 7 Denton went to visit his close friend, the prisoner Singleton, and told him what had happened to his mother earlier that day and generally about the difficulties with the tenants. The pair was considering what they might do, when Gosling telephoned Singleton. Singleton told him what had happened to Mrs Denton and that they were planning to go to the granny flat. Although Gosling and Denton were virtual strangers, Gosling agreed to accompany them. 8 When Denton and Singleton picked up Gosling in Denton's vehicle, Gosling informed them that he knew where he could obtain a shotgun. Both Gosling and Singleton had seen the weapon before and Gosling had been considering purchasing it. The three drove to the premises of the owner of the weapon. Denton waited in the vehicle while the other two went to obtain it. They told the owner that they needed the shotgun to frighten someone and were given the weapon and three cartridges. Having obtained the weapon, the three men then drove passed Matthew Denton's home so that Scott Denton could indicate the premises to the other two. They continued to a shop where Denton purchased something to eat for himself and some beer for Gosling and Singleton. 9 While Denton ate his dinner they discussed what was going to happen later that night. They then drove to an area of bushland about 20 minutes away where Gosling fired one cartridge from the shotgun. He offered both Denton and Singleton the opportunity to fire the weapon but they declined because it was too noisy and Denton was concerned that the police might be informed by the neighbours. The three then made their way back to Matthew Denton's premises but stopped to get petrol at a service station. There they happened to encounter Adrian Stelfox, a friend of Singleton but a stranger to Denton and Gosling. 10 Stelfox appeared to be intoxicated, and initially there was a verbal dispute between Singleton and him about the behaviour of Stelfox's girlfriend. However, Stelfox learned of what had happened to Mrs Denton and what was planned as a consequence and volunteered to accompany them. Stelfox believed that they needed disguises and other weapons. Denton then drove them all to Stelfox's home where they obtained items of clothing to put over their faces and weapons in the form of sticks and a trolley handle. All except Denton consumed cannabis while at those premises. 11 With their disguises and weapons, Denton drove the three men to Matthew Denton's home arriving there at about 10.30 pm. Denton stopped the vehicle a short distance away from the premises, and, when the three men had left the vehicle, he drove to an agreed location to wait for them. Gosling was armed with the shotgun, Stelfox with a stick and a metal bar and Singleton with the trolley handle. 12 In the driveway of the premises the deceased, the tenant of the flat and another young man were working on a motor vehicle. Matthew Denton was inside the main part of the house with his girlfriend. Stelfox reached the top of the driveway and confronted the three men while Gosling and Singleton were still on the grass verge in front of the house. Gosling called out, asking which of the three men on the driveway was Graham. The deceased asked, "who wants to know" and Gosling immediately raised the gun to his shoulder and fired. The deceased was shot in the back from a distance of about six to eight metres. The three then ran to Denton's vehicle and were driven by him from the scene. The deceased died before he reached hospital. 13 The four men returned to the premises from which the weapon had originally been obtained. The shotgun was left there until the next morning when Gosling retrieved it, disassembled it and disposed of the parts in a nearby park. Meanwhile, the police had arrested and interviewed both Denton and Singleton. Gosling was arrested after returning from disposing of the weapon and Stelfox a short time later. 14 There was no dispute at the trial that the cause of death was a gunshot wound to the deceased's back and penetrating to his right chest. The issue before the jury in respect of Gosling was whether he intended to kill or inflict grievous bodily harm when he fired the weapon and, if he did, whether the defence under s 23A of the Crimes Act was made out. In respect of the other two prisoners, the issue to be resolved by the jury was the scope of the joint criminal enterprise in which they were involved when they went to Matthew Denton's home that evening. In particular, the jury had to determine what each of the prisoners foresaw that Gosling might do with the shotgun when he confronted the persons who were at the premises. 15 It is convenient if I first deal with the prisoner Amos Gosling. The jury's verdict that, apart from the question of the defence under s 23A, he was guilty of murder is not surprising in light of the fact that the shotgun was fired after the prisoner took aim generally in the direction of the deceased and was a relatively short distance away from him. Gosling had already fired the weapon once that evening and had some idea of its capabilities. Although there was some suggestion by him in his second recorded interview with the police that he fired the weapon because he believed an attack was imminent on Stelfox, I do not believe that is why he discharged the weapon. Having identified which was the person he believed was responsible for the attack upon Mrs Denton, he simply fired the shotgun at him. 16 When initially interviewed by police shortly after his arrest, the prisoner said that it was Singleton who had shot the deceased. However, as a result of a letter he wrote to the deceased's father in June 2000 in which he admitted that he was responsible for the shooting, the prisoner was re-interviewed by police on 28 July 2000. On this occasion he admitted firing the weapon. He told police that he went to the premises because of what he had been informed about the attack upon Ms Denton and the general character of the persons living in the flat. He said that Scott Denton had told them he wanted to use force to evict the occupants of his brother's premises. He said that their intention was to use the gun to scare the deceased. 17 I believe that Gosling always intended to discharge the weapon during the confrontation if it were necessary to do so. He formed this view at least after they had left the bushland where the gun had been test-fired. I have no doubt that he knew it was loaded when he left Denton's motor vehicle. The probabilities are that being under the influence of alcohol and drugs, angered by Scott Denton's account of what had happened to his mother and the general problems with the persons residing in the flat, and having been excited by Stelfox's involvement with disguises and weapons, the prisoner simply was carried away by what was happening and determined to punish the deceased by firing the weapon at him. 18 If I were to consider merely the objective circumstances surrounding the discharge of the shotgun, I would have little hesitation in finding that the prisoner fired with the intention of killing the deceased, bearing in mind that he took aim before discharging the weapon, the nature of the weapon and the distance from which it was fired. However, there is the psychiatric material that must be considered. This reveals the prisoner to have been a somewhat disturbed young man at the time of the shooting and provides material which indicates that the prisoner may have been prone to act without thinking of the full consequences of what he did. 19 The prisoner was born on 22 August 1981 so that he was just 18 years at the time of the shooting. He has a history of disturbed behaviour including aggressive episodes. At the time of the offence he was on a good behaviour bond as a result of assaulting his father during what appears to have been a suicidal episode. In his early teens he used various drugs including Daytura and psychotropic mushrooms. As a result he suffered from a hallucinogen induced perceptual disorder which resulted in his having occasional distortions of his visual perceptions. Although not directly relevant to the shooting of the deceased, this disorder was part of the complex of personality and other disorders which the two psychiatrists who gave evidence at the trial believed resulted in an impaired capacity of the prisoner to control his behaviour. The mental disorder contributed to a heightened state of arousal and an increased tendency to act on impulse. 20 There was undisputed evidence at the trial that the prisoner was suffering from a mental impairment to bring him within the defence provided by s 23A of the Crimes Act. The prisoner was found to be suffering from a personality disorder with antisocial and borderline traits at the time of the shooting. It was also the view of Dr Nielssen, who gave evidence for the Crown, that he was probably in the early stages of schizophrenia. The prisoner has responded well to anti-psychotic medication both before and since his arrest on murder a fact, which the psychiatrists see as, confirming the diagnosis. 21 Notwithstanding that the jury rejected the defence raised by the prisoner, I believe I should take into account his mental disorder particularly when considering the intent with which he fired the weapon. There were, it seems to me, two difficulties confronting the prisoner so far as the defence under s 23A was concerned. Firstly, the evidence of the disorder was complicated by the prisoner's use of alcohol and cannabis on the night of the shooting, yet that matter had to be disregarded so far as the assessment of his impairment was concerned. The second matter which had an impact on the jury, in my view, was the seriousness of the shooting itself. I can well understand that the jury would not have been satisfied that the prisoner should have been convicted of manslaughter having regard to the objective seriousness of what he did. 22 Of course the presence of a mental disorder which played a part in the shooting of the deceased does not necessarily mitigate his criminality nor does it necessarily require that a lesser sentence should be imposed. However, in the present case there is no suggestion that the prisoner would be a danger to any person on his release, particularly if he continues to take his medication. This is notwithstanding that he was on a bond for an offence of violence at the time of the commission of the murder. However, although I take into account his mental condition in determining his criminality and the appropriate sentence to reflect the objective and subjective circumstances, the need for general deterrence to be reflected in the sentence is, in my view, only slightly diminished in his case bearing in mind the seriousness of the offence and the nature of the disorder. 23 Although the killing may not have been a premeditated act, the enterprise which led up to it was. I have no doubt, as I will indicate shortly, that Scott Denton was in control of this enterprise assisted by Singleton and the prisoner was to some significant degree manipulated by Denton in what he was told and by providing him with alcohol. There was nothing done by either Singleton or Denton to ensure that the prisoner would not discharge, or was not capable of discharging, the weapon. Considering his mental state at that time, it is not difficult to see how he might over-react to the situation which presented itself especially as he was under the influence of alcohol and drugs. This is a case where his use of drugs and alcohol before the offence however is to some degree aggravating. The prisoner was aware that the use of such substances exacerbated his condition: he called this effect "his red". 24 The prisoner is entitled to the benefit of a discount of his sentence by reason of his admission of responsibility for the killing, even though it came somewhat late during the prosecution of the offence. I believe there was some pressure being applied to him by Denton and Singleton to confess his guilt, and I believe he was party with them in manufacturing a version which was intended to exonerate his two co-offenders from any responsibility for the shooting. However, I accept that he was at the time of writing the letter and is now, contrite for the shooting and this is manifest in what he wrote to the deceased's parents, his admissions to police and what he had written by way of graffiti in his cell while on remand and finally his plea of guilty to manslaughter during the trial, even though that plea was rejected by the Crown. 25 The prisoner has been in custody since his arrest. He has spent that period in protection and will spend some if not all of his sentence in that form of custody. This is due to the fact that he is considered to be at risk by reason of his age and his manifest and fervent following of the Jewish faith. Eventually, when he is released from this sentence, he hopes to migrate to Israel and become a minister as is his father. He has also been placed in risk-management because of a suicide attempt. However, he appears to have insight into his problems and is aware of the necessity for his continued use of medication and the avoidance of alcohol and drugs. 26 Notwithstanding his mental disorder which played a significant part in this offence and as a result I am not prepared to find that he had an intention to kill the deceased, the offence was a serious case of murder. But for his youth and mental condition, the sentence would have been a much heavier one than I intend to impose. Because of the length of the sentence, the parole period which results from an application of s 44 of the Crimes (Sentencing Procedure) Act will provide ample opportunity for the prisoner to be assisted on parole and there is no other reason in my view to reduce the non-parole period. Therefore, notwithstanding his age, the fact that this is his first time in custody and his mental disorder and the nature of the custody that he must serve, there are no special circumstances justifying a variation in the statutory proportion of the non-parole period to the head sentence. I will impose the sentence at the end of these remarks 27 The prisoner Singleton is to be sentenced for manslaughter. I have already sentenced Adrian Stelfox for his part in the killing of the deceased. He was sentenced on the basis that he pleaded guilty to manslaughter, gave assistance to the police, was truly contrite and was prepared to give evidence at the trial of these three prisoners. Because of those matters he received a 45 per cent discount of what I considered would have otherwise been an appropriate sentence of 9 years. The question then is whether Singleton should receive that sentence, he not being entitled to any of the discounts that Stelfox received. 28 Singleton was involved in the enterprise, which resulted in the death of the deceased, from its inception. He was party to the obtaining of the weapon with Gosling. He went to the bushland where the shotgun was fired. He armed himself at Stelfox's premises and was only later than Stelfox in reaching Matthew Denton's premises because he had to assist Gosling alight from the vehicle as the back door would not open. He stood beside Gosling when he raised the weapon and fired it. Although there was some suggestion that Singleton may have been less than enthusiastic in participating while at the scene, I do not believe this was an accurate observation. There is nothing in the evidence that indicates to me that Singleton was anything other than a committed participant in the enterprise. 29 There is no doubt in my mind that the prisoner was intending to use force if necessary and, even had the gun not been fired by Gosling, it was virtually inevitable that there would have been physical violence and the prisoner knew this. I do not accept the evidence of the prisoner that he believed that the gun was not loaded, that he had tried to ensure that Gosling would not fire the weapon, that he had counselled Gosling against using violence during the confrontation or that they were simply intending to give an ultimatum to the residents to leave the premises before legal action was taken. The enterprise was intended to punish the deceased and not simply deter the residents from further residing in the flat. 30 The prisoner's involvement was due to his misplaced loyalty to Denton. He was told not only of the attack upon Mrs Denton but the history of their relationship with the tenants. I have no doubt that the deceased and his friends were painted in a very poor light by Denton and that the prisoner was outraged by the allegations. The residents of the flat were painted as taking advantage of Denton's mentally disabled brother. Of course nothing could be further from the truth. I think that the prisoner was under Denton's influence generally and not just in this enterprise. The prisoner is younger and not as intelligent as Denton who could be in my view very impressive in the manner of his speech and the way he portrayed himself. One only has to compare the interviews made by the two prisoners and their evidence before the jury to appreciate the difference in their characters. It was even obvious at the time the jury returned its verdict as the prisoner sought to comfort a distraught Scott Denton, notwithstanding that Denton was responsible for the prisoner's own plight and that Denton had done his best to shift responsibility for the killing onto the prisoner and Gosling during the second recorded interview. 31 However, the prisoner is not unintelligent. He was an outstanding sportsman at school and, in his own way, has impressed persons who have known him in the community. He was born on 8 July 1980 and was 19 years of age at the date of the offence. He has no prior convictions and there was evidence before the jury and before me on sentence that the present offence is completely out of character. He was able to overcome some disadvantages in his early upbringing after his father left the family. He has spent most of his life living with his mother and his grandparents. The prisoner has undertaken various types of employment as he tried to determine what career he wanted to follow. I am prepared to find that he wants to work and could be a worthwhile citizen despite this dreadful set back to his life. Notwithstanding that he faced trial for murder, he enrolled at TAFE while on bail and was found to be a punctual and earnest pupil. Apparently he is generally considered trustworthy and honest, although he has not been completely truthful in my view about his involvement in the shooting. 32 I am satisfied the offence is an aberration and probably an isolated act of criminality. However, it was a very serious offence even though he did not fire the weapon. I believe that it must have been foreseen by the prisoner that there was a possibility that Gosling might fire the weapon even if only to frighten the persons they were to confront. Although there is some evidence of remorse set out in the psychiatric report, I have seen little sign of it. The prisoner has been in my view a party to trying to establish an alibi with Denton immediately after the offence and in manufacturing a false account of the circumstances leading up to the shooting with Denton and Gosling before the trial. He is not to be punished for that conduct but it indicates a lack of remorse for what occurred. His conduct and attitude after the killing can be contrasted with that of Stelfox, who was immediately overcome with remorse and horror at what had occurred and told the police the truth immediately after his arrest. The prisoner only gave a sanitised account of what occurred after he was told that Denton had implicated him. Prior to that time, he was putting forward the false alibi that in my view he had manufactured with Denton. 33 In my opinion there is little difference either in the objective criminality or the subjective circumstances between the prisoner and Stelfox. Although Stelfox was more involved in the actual threat of violence and, according to his evidence, he had overheard a conversation between Denton and Gosling from which he could infer that the weapon might be used, the prisoner was more involved in the inception and the planning of the enterprise than Stelfox. His role at the scene was in my view simply cut short by the firing of the weapon. 34 The prisoner has spent some 9½ months on remand until granted bail on 29 August 2000. He has been on protection since his conviction apparently because of a belief among inmates that he had assisted the police in some way. Because of his very young age, clear record and the impact of the lengthy sentence he must serve, it seems to me that there are special circumstances. However, the non-parole period must reflect the objective seriousness of what he did and the need for general deterrence. 35 It will be clear by now that the prisoner Scott Denton was the instigator of the enterprise which resulted in the death of the deceased. A very substantial part of the moral responsibility for the death falls upon him even though he is criminally less liable for the killing than Gosling. His case was presented to the jury on the basis that he was a foolish young man who bowed to pressure from his domineering mother and was swept away by circumstances and bad decisions on this evening. If the jury were somewhat persuaded by those submissions, it is a tribute to the skill of his counsel. That is not my view of the prisoner at all. 36 He is in my opinion a highly intelligent but cunning and manipulative young man. One has only to read his interviews with the police to see clear evidence of these aspects of his character. At first he boldly tried to distance himself from the killing by the most outrageous lies. For some reason, probably in an attempt to persuade the police to accept his version, he thought it advantageous to himself to pretend that he was a final semester law student. Late in the first recorded interview, when he had simply dug himself into a hole from which he could not extricate himself, he turned on his close and loyal friend whom he had involved in the enterprise which resulted in the death of the deceased. In his off the record interview he immediately implicated Singleton and then, once more, he endeavoured to distance himself from the killing by lies told under the pretext of wishing to assist the police. Further, in my view, he was quite prepared to lie in evidence before me and the jury when it suited him to do so. 37 I believe that after the killing he and Singleton tried to manufacture an alibi, and later they fabricated evidence as to what had been said to Gosling about the weapon when he left the vehicle. The prisoner gave this false account in the witness box but it was obviously rejected by the jury. As I have already indicated in the case of Singleton, this is not to suggest that in any way the prisoner is to be punished for this conduct but it is highly relevant to a consideration of whether he is genuinely contrite or remorseful for his conduct or accepts any responsibility for the killing. 38 I am firmly of the view that he has experienced little contrition at all for the death of Graham Withington or his part in his killing. His tears of grief and despair are in my view all for himself. It is highly significant, in my view, that on learning that someone had been shot when the three returned to his vehicle, his immediate and only concern was that the victim might have been his brother. Never, so far as the evidence before me is concerned, has he shown any genuine sorrow that Mr Withington was killed or accepted his responsibility for the death. Although it is difficult to understand how a young man of otherwise good character and reputation can be so callous about the death of another young man, the answer is to some extent to be found in his attitude to those who were living at his brother's premises. 39 It is clear from the first interview that he shared his mother's view of these people and regarded them with little more than contempt. I do not believe he needed much persuasion or any coercion by his mother to take retaliatory action against those living at his brother's premises. It is also clear that he was not backward in informing the others of the litany of complaints he and his mother held against the residents of the granny flat and embellished them or allowed them to be embellished in the retelling in order to incite the others to action. 40 There has been tendered in evidence today a statement made by the prisoner to police after the second recorded interview. The statement has been placed before me as some evidence of contrition on the part of the prisoner Denton. Although in that statement the prisoner made statements which might be considered to be evidence of genuine contrition for the death of Mr Withington and the reaction of his parents to that death, I take them with a grain of salt. The statement cannot be considered out of the context in which that statement came to be made, and in particular, the way in which the prisoner, in my view, had tried to manipulate the police officers and others in relation to what his involvement was and what his attitude was to the killing of the deceased. 41 Never, in my opinion, has the prisoner given a true version of what occurred on this night or his role in the enterprise. The only person who has told what I consider to be the whole truth was Adrian Stelfox. I still do not believe that the full truth about this enterprise has been revealed in the evidence. But I do believe that the Crown's description of the prisoner as the person pulling the strings of his co-offenders is close to the truth even though some of the puppets had minds of their own. 42 The prisoner was more than happy to go along with the inclusion of Gosling and the use of the shotgun. When the weapon had been obtained, Singleton came out of the house and gave him the thumbs up sign. He was also in my view quite content to have Stelfox join the group even though he was clearly under the influence of alcohol and unusually aggressive. The prisoner raised no objection to Stelfox's desire to obtain further weapons. Notwithstanding that he had never met either Stelfox or Gosling, the prisoner cared so little about what was to happen at the house that he gave these obvious hot-heads full rein while he waited out of harm's way. 43 Not only did the prisoner incite the others to action, the plan could not have been carried out without him. If at any time he had thought that the enterprise was getting out of hand or was taking a course he did not believe appropriate, the prisoner could have brought it to a swift conclusion simply by refusing to participate further and withdrawing the use of his motor vehicle. I have no doubt, as I have already indicate, that he manipulated his co-offenders for his own purposes. From what I have seen, read and heard he was the most mature and probably the most intelligent of them. He remained sober throughout the enterprise while the others consumed alcohol and cannabis. He purchased alcohol for Gosling and Singleton to give them Dutch courage. It is significant that he himself was not going to be a party to the actual confrontation even though there was little or no point in keeping his involvement secret. 44 There is no doubt that the prisoner saw the enterprise as retaliatory for what the residents of the flat had done to his mother and that physical violence was to be part of the retribution. His second interview reveals the true nature of the enterprise so far as he was concerned. He uses terms such as "a pay-back type of incursion" and "an expedition which was geared towards some form of pay-back for Graham Withington". He refers to the activity in the bushland at Currumbin as the "test-firing" of the weapon. In my view he is more culpable for the death of the deceased than both Stelfox and Singleton. 45 The prisoner was born on 3 October 1978 and was aged 20 years at the time of the shooting. As I have already indicated he resided with his mother but spent the best part of his time living away from home to attend university where he was studying for a Bachelor of Arts degree with a major in legal studies. He has no prior convictions of any sort. There was evidence of his normal good character given at the trial and he was described as open and honest and not known to be violent. His academic record at university shows that he obtained credits or distinctions for many subjects. 46 He served a period on remand from 16 November 1999 to 1 September 2000. He has been in custody since he was convicted and has been on protection because of a belief on the part of others that he in some way also assisted the police. I accept that the prisoner was motivated in part to defend his mother and release his brother from what he believed were undesirable associates. But this can hardly explain or mitigate the criminality in what he did by inciting and encouraging the use of violence by other persons to achieve his purpose. While I believe that there was an element of group dynamics operating with the other offenders and directing their behaviour, I feel this is of little or no relevance in the prisoner's case. He was in my view taking advantage of it. 47 I doubt that there are special circumstances in his case notwithstanding that this will be a very substantial period in custody for a young man of good character and sensitivity so far at least as he himself is concerned. I do not believe that he will find it easy in custody and I have the feeling that he will not endear himself to those persons who will comprise the society in which he is to live for a number of years to come. I have moderated to a significant degree the sentence that would otherwise be appropriate in light of his age and background. 48 I cannot leave this matter without noting the completely pointless waste of one young life and the irreparable damage to the lives of four other young men brought about by what I consider to be the selfishness and single-mindedness of one person who has appeared before this Court only as a witness. That person may not be criminally responsible for what can only be described as an appalling tragedy for all concerned but her moral responsibility is very grave indeed. 49 I have already commented when sentencing Stelfox on the victim impact statement that is before me and the manner in which I must approach the death of Graham Withington in the sentencing of the prisoners. The loss to his parents was evidenced throughout the trial by the emotions they displayed to various aspects of the evidence and is set out in some detail in the victim impact statement. 50 In sentencing Adrian Stelfox I noted how difficult it was to send a young man of the good character and potential to prison but that a lengthy prison sentence must be imposed in respect of the criminality in which he and the prisoners were involved. Such a sentence is necessary, firstly, to denounce the type of conduct in which they were engaged, secondly, to state unambiguously that it is completely unacceptable in this society for a group of young men to seek 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, to deter others from embarking on similar activity and particularly where a firearm is to be used. The same considerations are apposite in the case of each of the prisoners. 51 Amos Gosling on the charge of murder I sentence you to imprisonment for 16 years to date from 16 November 1999. There is to be a non-parole period of 12 years to date from that date and to expire on 15 November 2011 the date upon which you are eligible to be released to parole. 52 Paul Singleton on the charge of manslaughter I sentence you to 8 years and 3 months imprisonment to date from 1 August 2001. There is to be a non-parole period of 4 years 9 months to commence from that date and to expire on 31 April 2006 the date upon which you are to be eligible for release to parole. In fixing this sentence I have taken into account the time served by deducting 9 months from the sentence and non-parole period and also backdating the sentence to a period before you re-entered custody after conviction. 53 Scott Denton on the charge of manslaughter I sentence you to 9 years 3 months imprisonment to date from 1 August 2001. There is to be a non-parole period of 5 years 3 months to commence on that date and to expire on 31 October 2006 the date upon which you are eligible to be released to parole. I have taken into account the time served by deducting a period of 9 months from both the sentence and the non-parole period and further back-dating the sentence to a period before you re-entered custody after your conviction. ************