New South Wales Supreme Court CITATION : R v Lamb & Thurston [2002] NSWSC 1025 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70209/01; 70066/01 HEARING DATE(S) : 15 April - 10 May 2002 JUDGMENT DATE : 1 November 2002 Regina (NSW) PARTIES : Stanley Joseph Lamb (Prisoner) Edward George Thurston (Prisoner) JUDGMENT OF : Dunford J MA Macadam QC - Crown COUNSEL : PM Paish - Lamb AI Parker - Thurston SE O'Connor - Crown SOLICITORS : Ross Hill & Associates - Lamb Legal Aid Commission of NSW - Thurston CATCHWORDS : CRIMINAL LAW - sentencing - murder. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s 44(2) R v Fernando (1992) 76 A Crim R 58, CASES CITED : R v Ceissman [2001] NSWCCA 73, 119 A Crim R 535, R v Fernando [2002] NSWCCA 28. DECISION : See paras 46 & 47. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J Friday, 1 NOVEMBER 2002 70209/01 R v Stanley Joseph LAMB 70066/01 R v Edward George THURSTON SENTENCE 1 HIS HONOUR: Stanley Joseph Lamb and Edward George Thurston have been found guilty of the murder of Terrence Patrick Byrne who was savagely kicked and stomped to death in a park in Tamworth on 29 October 2000 between about 7.45 and 8.45 in the evening. 2 The prisoners are stepbrothers who grew up together on the mission station at Collarenebri. Stanley Lamb had been living in Tamworth for some months and Edward Thurston, having left his de-facto wife in Dalby following domestic disagreements, was on his way to Sydney when he stopped over in Tamworth on the weekend of 28 and 29 of October and went to visit Lamb's older brother, Frank Murray, at his home at 12 Kenny Drive in Coledale, a suburb in Tamworth. 3 On Sunday 29 October both Stanley Lamb and Edward Thurston spent most of the day drinking Moselle cask wine with a number of other Aboriginal young people in the Coledale area. Evidence was given by a number of witnesses concerning this drinking and it is apparent that Stanley Lamb in particular was significantly affected by the amount of alcohol he had drunk. During the afternoon they also, in the company of others, each smoked a couple of cones of marijuana in a bong. 4 Stanley Lamb had a verbal argument with Bradley French during the afternoon, and later he had a more intense argument with Anthony Slater because of which he removed his shirt and wanted to fight Anthony Slater. On both of these occasions Edward Thurston acted as a restraining influence and told him to calm down, and in the case of Anthony Slater he actually physically restrained him. 5 After the argument with Anthony Slater it appears that the prisoners walked towards Granny Munroe Park and shortly afterwards they were seen on the grassed area of the car park of the Coledale Community Centre where Stanley Lamb again became abusive towards Michael Marshall who was passing by, calling him "a white motherfucking cunt". The prisoners then walked through the car park onto the pathway that leads across Granny Munroe Park to Matheson Street. 6 Meanwhile at the Locomotive Hotel the deceased purchased a cask of Moselle wine and a packet of Drum tobacco. He did not have sufficient cash on him to purchase the wine and to pay for a taxi to his home in Fleming Drive which was on the far side of Granny Munroe Park, but the publican gave him five dollars and called him a taxi. The deceased asked the taxi driver to take him as far as his money would take him towards his home, and he was taken to the corner of Kenny Drive and Warral Road which was at the corner of Granny Munroe Park, where he was dropped off at about 7.45pm. 7 At 10.22pm a "000" call was made, apparently by Stanley Lamb, from 12 Kenny Drive, the home of Frank Murray, requesting that an ambulance be sent to Granny Munroe Park because there was a man dead in the park. The caller said he was calling from Sydney but the operator was able to identify the source of the call as 12 Kenny Drive, Tamworth and notified the ambulance and police accordingly. 8 When police went to 12 Kenny Drive they found Edward Thurston asleep on the lounge, his top inside out, with blood on his jeans, his top and his shoes. He was arrested and taken to Tamworth Police Station for questioning, where he said in effect that he came across the deceased lying on a path in the park between 6 and 7pm, went to assist him and in doing so picked up the deceased's head and checked for breathing and a pulse, he then panicked when he realised the deceased was dead and dropped his head, went home and went to sleep. He was scared because he thought he might get the blame for it. He also told a number of other lies in the interview and denied being involved in any way with the death of the deceased, and denied being present at the time of his death. 9 Meanwhile police went to 144 Duri Road where they found and arrested Stanley Lamb. He had in the meantime changed his clothes, and the clothes he was wearing that evening were not located until the following day. He was taken by police to Tamworth Police Station and when interviewed said that he was with Thurston in the park where they and the deceased were drinking together. After they consumed some wine they asked the deceased for money, but the deceased walked away and as he was walking away he called Lamb and Thurston "black cunts". 10 He said that he then punched the deceased to the head knocking him to the ground, whereupon Edward Thurston went crazy and started kicking him. He said that Thurston would have kicked him about 100 times, that whilst doing so was saying, "kill him, kill him", and that he required Lamb to help him by also kicking the victim, and he head butted Lamb to this end. Lamb said he would have kicked the deceased 15 times, three times in the head, including stomping on his head. This was not evidence against Thurston. He later went with police to the scene and took part in a video walkthrough with them. 11 On 31 October the accused Thurston was visited by his then de-facto wife, Kellie Burleigh, in the cells. He told her that he was present, but that Lamb had killed the deceased and that the motive was robbery, although it was not clear from the evidence, whether he said "it was a roll that went wrong" or "he [meaning Lamb] wanted to roll him and it went wrong". She urged him to tell the truth to the police and he told the police that he wished to make another statement because he had told lies to protect "his brother", meaning Lamb. The police arranged for him to see a solicitor before making any further statement, and apparently the solicitor advised him not to say anything further. This, of course, was not evidence against Lamb. 12 The injuries inflicted on the victim were horrific. The autopsy revealed the presence of multiple blunt force injuries to the head, neck and trunk including extensive bruising to the face and scalp, fractures of the facial bones and skull, and injury to the underlying brain. The injuries to the neck included fractures of the larynx. Ill-defined areas of bruising and numerous abrasions were also present on the upper limbs and trunk, there were numerous fractured ribs on both sides of the chest and bruising of the lungs. There was injury to the heart and to a number of structures around the heart. There was also a small amount of bleeding around the left adrenal gland. The pathologist, Dr Sugo, identified 27 separate lacerations or areas of bruising to the head and neck, fractures of all ribs on both sides, except the first, and the ribcage was in effect crushed. All injuries sustained were consistent with kicking and stomping on the deceased while he lay on his back, on the ground, and it can only be described as a frenzied and vicious assault by two young men on a defenceless man considerably older than themselves. 13 Stanley Lamb did not give evidence at the trial but Edward Thurston did. He said in effect that in the evening after the afternoon's activities they were sitting in the park in the children's playground area when they saw the deceased walking past with a cask of wine in a plastic bag. They asked him for a drink and he gave them each a drink, and then when they asked for another he said that this would be the last as he wanted to keep the rest for the following day. 14 The deceased then started to move off but Lamb said he was going to "roll him", meaning rob him but Thurston did not respond, he was dozing for a period, and then he got up and followed them down the path where he saw Lamb kicking and stomping on the deceased. He said he pushed Lamb away and wiped blood from the deceased's face, thus explaining the transferred blood found on the sleeves and an area of the top he was wearing at the time; however subsequently Lamb returned to the deceased and continued the assault until he pulled him away again. 15 Thurston defended the case on the basis that he was not involved in the assault although present during part of it, whilst Lamb claimed that Thurston was the major aggressor and that on account of his intoxication he did not form the relevant intent, and alternatively that he was provoked by the deceased calling him a "black cunt". By their verdicts, the jury have rejected these various defences and for very good reason. 16 Although Thurston in his sworn evidence denied being involved and sought to explain the blood on his clothing by reference to his efforts to pull Lamb away from the deceased and his wiping the deceased's face and head with his shirt, the marks of projected blood in particular, as well as transferred blood on his jeans and shoes, indicated his involvement; and this was reinforced by the evidence of the linear bruise on the deceased's left forehead matching the pattern on the heel of one of the shoes worn by the prisoner. 17 As regards Lamb, the evidence established that he was a regular drinker to excessive amounts, and apparently had a high tolerance to alcohol. Although aggressive earlier in the evening, his actions were deliberate and showed an ability to reasonably form an intention to do various things after the killing, including to make the 000 call but claim he was making it from Sydney, to leave 12 Kenny Drive and walk across to 144 Duri Road on the other side of the railway line and then change his clothes and hide them, not in his own room, but in Betty Dennison's room, before the police arrived. 18 The jury also rejected his defence of provocation, and the evidence was that the deceased was a mild-mannered, polite and courteous person who got on well with the local Aboriginal community, a number of whom lived in the same area as he did, so that it seems most unlikely that he made the remarks attributed to him, and in any event it is difficult to see how such remarks could have caused Stanley Lamb to lose his self control when he had been making similar remarks at white persons earlier in the evening. 19 Like the jury, I do not accept the versions put forward by either of the prisoners, that is by Lamb in his recorded interview with police (which is only evidence against him) or by Thurston in his evidence in the trial, although I am satisfied they each contain some elements of truth. I am satisfied that after they met up with the deceased in Granny Munroe Park and had a drink of his Moselle, they asked for another drink which the deceased gave them, but indicated it would be the last as he wished to keep it for the following day. 20 He then went to leave and as he did so either Lamb or both of them decided to rob him of his wine and any cash he had on him, and for this purpose Lamb punched him to the head, knocking him to the ground whereupon, no doubt inflamed by the alcohol they had drunk, they both lost their self control and kicked and stomped on him until he was dead. 21 Having regard to the fact that Lamb had been behaving aggressively to other persons earlier in the evening whilst Thurston had been trying to restrain him, and on his own admission Lamb had started the assault by punching the deceased and knocking him to the ground, I am satisfied that he was, initially at any rate, the principal aggressor; but I am also satisfied that Thurston subsequently played an equally aggressive part. I therefore regard the objective culpability of Lamb as somewhat greater than that of Thurston. 22 The deceased apparently had a high blood alcohol reading at the time of his death and apparently was a chronic alcoholic but I am satisfied that this in no way contributed to his death. He had no money of significance on him and the only proceeds of the robbery were a nearly full cask of cheap Moselle wine and a packet of Drum tobacco. 23 Stanley Lamb was born on 19 November 1977 and is now almost 25. He is the youngest of nine siblings and step-siblings and grew up on the Aboriginal Reserve at Collarenebri. His parents separated when he was approximately four years old and he remained with his mother but maintained a strong and positive relationship with his father, who died from lung cancer when the prisoner was aged 17. He left school at the age of 12, without completing his final year of primary education and he is for practical purposes unable to read or write. 24 He left home at the age of 14 or 15 after an argument with his mother and lived on the streets for some time. He subsequently moved to Tamworth and formed a relationship with a young lady which resulted in the birth of a daughter in 1997. The Pre-Sentence Report suggests that this remains a mutually supportive partnership despite periods of separation and violence on the part of the prisoner, but there was evidence at the trial that at the time of the offence the mother was not permitting the prisoner to see their daughter, and this was the cause of the argument he had with Anthony Slater during the course of the afternoon. He has had occasional jobs in shearing sheds and cotton picking but no regular employment. 25 He has an extensive history of drug and alcohol abuse, having started the use of cannabis at the age of nine with petrol sniffing at 13, progressing to alcohol and amphetamines at the age of 14 and subsequently heroin and cocaine. He has a large number of convictions dating back to 1992, including 13 for assault of various kinds and all of his offences have been associated with excessive use of alcohol. 26 What I find particularly disturbing is that some of the offences bear unfortunate similarities to the present. On 12 April 1995 he was convicted of assault occasioning actual bodily harm, the circumstances being that having asked the victim for alcohol and being refused, he became aggressive, was told to leave the house, which he did, but he later returned and kicked the victim to the head as the latter was lying on the ground watching television. 27 Subsequently he was convicted on 10 May 1999 of assaulting his then de-facto partner by punching her a number of times to the head, and when she doubled over as a result, he kicked her to the head and stood on her head a number of times resulting in extensive bruising to her ribs, cheek, eye and jaw area. 28 He has served a number of short sentences of imprisonment and in addition has been granted parole, community service and supervised recognisances, none of which he has complied with. 29 According to the Pre-Sentence Report, he tends to be aggressive, and in particular has an inability to control his behaviour when intoxicated by drugs and/or alcohol. The prisoner has acknowledged this, and during previous custodial sentences has attended drug and alcohol counselling and attracted positive reports in relation thereto, but despite extensive attempts to assist him via referral to a variety of agencies and facilities, he has on his release failed to avail himself of these opportunities and immediately returned to past patterns of behaviour, even when attendance at further counselling or a residential rehabilitation centre has been made a condition of his parole. There has been a similar lack of positive response when such conditions have been imposed as terms of bonds. 30 Anita Duffy, psychologist, assessed him as being of below average intelligence with low self-esteem bound up with his literacy problems. Personality testing revealed depressive, dependent and avoidant traits with high levels of anxiety, and his results were also significant on the paranoid and schizatypal scales suggesting he was suspicious and constantly vigilant to criticism and suspicious of others. Since being in custody he has undertaken courses in literacy, oral communication and Koori cultural values. He also suffers a heart condition which may require surgery in the future and has been referred to a cardiologist. 31 He is also said to be currently on protection in the prison system, but his counsel was not able to inform me of the reason for him being on protection, or precisely what restrictions were placed upon him as a result of such protection. Ms Duffy described him as being on strict protection and constantly vigilant to threat or harm from other inmates. In those circumstances it cannot be assumed that he will remain on protection for the whole of the sentence he is required to serve and the number of certificates and other records that have been produced concerning the education that he has undertaken indicate that he has not been deprived of educational facilities as a result of being on protection. I have nevertheless taken into account that protection entails a more severe form of punishment. 32 He has expressed remorse for his actions and claims that is why he telephoned the '000' number, although the deceased was dead by the time the call was made. 33 Edward Thurston was born on 8 May 1975 and is now aged 27 years, the youngest of seven children. His parents separated when he was two years old and, after a time in welfare homes in the Grafton area he returned with his siblings to live with his mother in Coonamble. She moved to Collarenebri when he was about five years old and she married the father of Stanley Lamb. He then grew up in Collarenebri where they lived in tin humpies on the Aboriginal Reserve until they got a government built house, but in 1987 their mother died, whereupon the family split up and moved away. His biological father died in 1989 and he remained with his stepfather until he was 16 years old when he left the family home and he has been in trouble since shortly after that time. 34 He lived in Sydney for a while but in about 1998 he moved to Dalby where he formed a de-facto relationship with Ms Davidson with whom he had a child, born on 2 February 1999, but later that year this relationship broke down, mainly due to his drinking and verbal abuse of his partner. He then formed a relationship with Kellie Burleigh but this also came to an end a couple of days before he arrived in Tamworth, due once again to his drinking and physical violence towards her. He left school at about the age of 12 at the Year 6 level and is barely able to read and write. After leaving school he went to work cottonchipping and shearing with his stepfather. 35 He admits to extensive drug and alcohol use since the age of about 11. He apparently first smoked cannabis at about the age of seven and was a regular drug abuser from the age of 16. He also sniffed petrol when younger. He told Dr Nielson that he drinks all the time and has experienced several severe withdrawal deliriums. He has been using amphetamines since about the age of 16 and has also used heroin on a regular basis. He commenced using cocaine about six years ago. Whilst in custody he has commenced on the methadone program and is currently receiving 40mls daily. 36 He has a criminal record extending back to 1993 when he and other youths attacked some businessmen at Lavender Bay Wharf and robbed them of their wallets. The victims were assaulted with a piece of timber and kicked to the head and body and Thurston admitted to assaulting the victims and kicking one of them to the head about twice. He has other convictions for robbery whilst armed (with a pair of scissors), assault police, resist arrest, behave in a disorderly manner, possess prohibited drug and breach of a domestic violence order. 37 Since his arrest on this matter he has been convicted of assault occasioning actual bodily harm arising out of an incident in prison where he assaulted the victim by punching him about 10 times to the head, provoked, he claimed, by derogatory remarks made towards him by the victim. For this he was sentenced to a fixed term of imprisonment of 6 months from 16 July 2001 to 15 January 2002. 38 Notwithstanding his previous convictions, when released on parole no steps appear to have been taken to curb his alcohol and other drug abuse. Whilst in prison on remand for this offence he was seen by the Drug and Alcohol Service, but by the time programs were made available to him, he declined to be involved, and he has never attended any formal drug rehabilitation. 39 Julie Hendy, neuropsychologist, concluded that he probably fell at the low end of the normal range of intelligence and that his reading and writing skills were consistent with those expected from a child aged about seven and a half years. She was of the view that his anxiety and stress levels are in the mild to moderate range and his depression level in the extremely severe stage, although these assessments appear to have been made in January 2002, that is before his trial (see date at top of each page of her report, except the first page). 40 He also has been in protection, apparently because of the risk of self-harm, and whilst in custody he has been undertaking courses in oral communication. He told the person who prepared the Pre-Sentence Report that he "feels bad" about the offence. 41 Both prisoners come from a deprived Aboriginal background which is unfortunately common, particularly in the western areas of this State where deprived living conditions, low self esteem and lack of education, lack of opportunity or motivation to obtain employment, coupled with alcohol and multiple drug abuse from an early age lead to lives with little hope or prospect, increased use of alcohol and drugs and the commission of crimes of violence. 42 The principles for sentencing such persons were discussed by Wood J in R v Fernando (1992) 76 A Crim R 58 at 62-63, and more recently in R v Ceissman [2001] NSWCCA 73, 119 A Crim R 535 at [29]-[33], and R v Fernando [2002] NSWCCA 28 at [66]-[68]. 43 Aboriginal persons who commit crimes of violence are not to be accorded special treatment by the imposition of lighter sentences but, although drug or alcohol abuse is not normally a mitigating factor, it can be taken into account when, as here, it reflects the socio-economic circumstances and environment in which the prisoners have grown up and their lack of opportunity for self improvement. But at the same time, it must not be overlooked that the objective gravity of the offence is very serious and a human life has been unlawfully and unjustifiably taken in what must have been a slow, painful and undignified agony for the victim. 44 Accordingly the sentences imposed must be substantial, but having regard to my findings on the facts, that in respect of Edward Thurston will be slightly less than that in respect of Stanley Lamb. They have both been in custody since 30 October 2000 and Lamb's sentence will be backdated to commence on that date. In respect of Thurston it is necessary to have regard to the six-month sentence that has been served by him on account of the subsequent assault and his sentence will accordingly be backdated to 30 January 2001 to take account of that other sentence and make it partially, but not wholly, concurrent. 45 As regards the non-parole periods, no submissions were made to the effect that I should find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act 1999, but although there are a number of factors which could in combination amount to special circumstances, having regard to the gravity of the offence and what I regard as the minimum time each should serve in full time custody, I am satisfied that no adjustment should be made to the proportion fixed by the section. 46 Stanley Joseph Lamb, for the murder of Terrence Patrick Byrne I sentence you to imprisonment for 18 years, the sentence to date from 30 October 2000. I fix a non-parole period of 13½ years. The earliest date on which you will be eligible for release on parole will be 29 April 2014. 47 Edward George Thurston, for the murder of Terrence Patrick Byrne I sentence you to imprisonment for 17 years, the sentence to date from 30 January 2001. I fix a non-parole period of 12 years and 9 months. The earliest date on which you will be eligible for release on parole will be 29 October 2013. ********** Last Modified: 11/12/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.