Regina v Stelfox [2002] NSWCCA 331

Reported Decision : (2002) 133 A Crim R 288

New South Wales Court of Criminal Appeal

CITATION : Regina v Stelfox [2002] NSWCCA 331 FILE NUMBER(S) : CCA 60575/01 HEARING DATE(S) : 31 July 2002 JUDGMENT DATE : 12 September 2002

PARTIES : Regina (Respondent) Adrian Luke Stelfox (Applicant) JUDGMENT OF : Santow JA at 1; Hidden J at 2; Adams J at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : SC 70034/01 LOWER COURT JUDICIAL Howie J OFFICER :

COUNSEL : E A Wilkins (Crown) S E Kluss (Applicant) SOLICITORS : S E O'Connor (Crown) James Fuggle (Applicant) CATCHWORDS : CRIMINAL LAW - severity of sentence - discount for early plea of guilty - discount for assistance to authorities - parity of sentence with co-accused. LEGISLATION CITED : Crimes (Sentencing Procedures) Act 1999; s23 CASES CITED: R v Thomson & Houlton (2000) 49 NSWLR 383 DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60575/01

SANTOW JA HIDDEN J ADAMS J

12 SEPTEMBER 2002 REGINA -v- Adrian Luke STELFOX Judgment 1 SANTOW J: I agree with Adams J. 2 HIDDEN J: I agree with Adams J. 3 ADAMS J: Graham Scott Withington, who was only twenty-three years old, died as a result of a shotgun wound to his back fired by one Amos Gosling who was at the time in the company of the applicant and two others. Withington with two other men (Kickbush and Masterson) were working on the former's motor car in the driveway of the premises occupied by Withington. The applicant pleaded guilty before the Magistrate at the committal proceedings on 3 May 2001 to a charge of manslaughter and was committed to the Supreme Court for sentence. His accomplices, Amos Gosling, Scott Denton and Paul Singleton, were charged with murder and went to trial in the Supreme Court at Grafton on 18 July 2001. 4 In the Supreme Court on 23 July 2001, the applicant, having been arraigned for murder, pleaded guilty to manslaughter. This plea was accepted by the Crown in full discharge of the indictment and Stelfox and was sentenced by Howie J to a term of five years' imprisonment with a non-parole period of two years and six months. He received a reduction in his sentence of 45% by reason of his undertaking to give evidence for the prosecution in the trial of the other offenders, his plea of guilty and his evident contrition. His Honour specified that this discount included a 25% discount as the "full measure…appropriate…as determined in the guideline judgment of R v Thomson & Houlton (2000) 49 NSWLR 383". His Honour stated that the applicant was entitled also to a significant discount, not only because of the remorse which he had shown since his arrest but also because of his assistance to the authorities including his undertaking to give evidence. His Honour also took into account (in reduction of sentence) that the applicant placed himself in jeopardy by promising to give assistance and the real risk of reprisals from other prisoners would lead to the necessity for isolation from the general prison population for his own protection. His Honour summed up the position as follows - "Counsel for the prisoner contended that a discount in the range of 60 per cent was appropriate in the circumstances of this particular case. Although it is not unknown for a discount in excess of 50 per cent to be granted to persons, who like the prisoner, have given or have been prepared to give valuable assistance to the authorities, it seems to me that any discount in excess of the normal range of 30 to 50 per cent ought only to be given in a truly exceptional case. This case does not fall into that category even if one has regard only to the assistance given and proffered by the prisoner. But in my view to qualify as a truly exceptional case for this purpose, it is not enough that regard be had only to the nature of the assistance, or perhaps even the consequences for the offender of providing that assistance. There must also be a proper regard to the seriousness of the offence committed by the offender and his role in it. Otherwise the discount may be so great and the resulting sentence so lenient that the fundamental objectives of punishment will be undermined. In my view the overall discount appropriate in this case is 45 per cent having regard to the various matters justifying a reduction in the prisoner's sentence to which I have already referred." 5 It is obvious that, as the applicant was to be called to give evidence against the other offenders, he should be sentenced before he did so. In due course he did give evidence that was consistent with his statements to police and there can be little doubt that this was a significant factor in securing the convictions of the co-offenders. On 13 August 2001, the jury found Gosling guilty of murder and Denton and Singleton guilty of manslaughter. 6 The factual context for the applicant's sentence was taken by his Honour from an agreed statement of facts that was tendered together with a chronology, witness statements and other relevant exhibits, together with the undertaking to give evidence. As his Honour remarked, there was little dispute about the facts so far as the applicant was concerned and, in what follows, I have very largely adopted the narrative set out in Howie J's reasons for sentence. 7 The deceased lived in a flat attached to a house owned by one Matthew Denton who was affected somewhat by limited mental capacity. There had been a history of animosity between Withington and Matthew Denton's mother for some time before the shooting, Mrs Denton claiming that Withington and his flatmate were taking advantage of her son. On 15 November 1999, shortly before the shooting, Mrs Denton complained to another son, Scott, about an altercation that had occurred earlier that day between herself and Withington, alleging that he had assaulted her, spat at her and behaved indecently by exposing himself in her direction. Scott Denton contacted a friend of his, Paul Singleton, proposing to assault Withington and his flatmate to punish them for their conduct towards Mrs Denton and persuade them to vacate the premises. Singleton, in turn, asked Gosling, who was a friend of his, to help them and the three men were driven by Denton to the house of a common acquaintance where Gosling obtained a single barrel 12-gauge shotgun and three cartridges. The three men then drove to an area in the Currumbin Valley where Gosling loaded the weapon and fired it into the air. He reloaded the weapon and the men then drove to Tweed Heads for the purpose of assaulting and intimidating Withington and his flatmate. On the way, they stopped at a service station at Tweed Heads where, by chance, they met the applicant who was there intending to make a telephone call. The applicant knew all three and was a good friend of Singleton. He was told what they intended to do and asked if he could take part. The others agreed and the four of them were driven by Denton to the applicant's home where he found items of clothing which could be used as disguises and also obtained a wooden broom handle and two metal rods with which to arm themselves. It was at about this time that the applicant learnt that one of the others had brought a shotgun, although he claimed to police that he did not know whether it was loaded. However, as Howie J found, the applicant had overheard a conversation in the motor vehicle after leaving his premises on their way to Matthew Denton's home during which Scott Denton told Gosling that, if it were necessary for him to use the weapon, he should shoot Withington in the leg. It was conceded by counsel appearing for the applicant that he would have inferred from this conversation that the weapon was both loaded and capable of being discharged. 8 Denton extinguished the lights of his vehicle as it passed his brother's premises and stopped about two houses away. The applicant, Gosling and Singleton alighted from the vehicle, each having covered his face with an item of clothing to avoid recognition. The applicant carried half a broom handle and a metal chair leg, Gosling the shotgun and Singleton a piece of metal pipe. The applicant was the first of the three men to reach the area where Withington and, as I have mentioned, Masterson and Kickbush were standing. He approached the passengers' side of the Land Rover which they had been working on and swung one of the weapons he was carrying at Kickbush. Masterson started to run towards the house. Gosling brought the shotgun to his shoulder and fired, hitting the deceased in the back, as it happened the shot narrowly missing the applicant. The deceased fell to the ground and the applicant and his two accomplices fled the scene and met Denton in the car at a pre-arranged location. 9 Shortly after the three assailants had departed, Masterson and Kickbush left the house where they had sought safety to find their friend. He was beside the Land Rover on his back, apparently dead. They rolled him over and saw eight to ten wounds on his back. An ambulance conveyed the deceased to Tweed Heads Hospital where he was pronounced dead shortly after. 10 The four men then drove to premises in Tweed Heads of another acquaintance where the shotgun was concealed. Gosling returned the following morning to retrieve and dispose of it. In the meantime, the applicant had gone to Gosling's house and, shortly after Gosling returned, the police attended and arrested both of them. Immediately after his arrest, the applicant gave an account of the shooting to the police, indicating that the deceased had been shot by Gosling and that Denton had arranged the enterprise and had remained in his motor vehicle whilst the others undertook it. When he was taken to the police station, he gave a detailed account in a recorded interview both of his involvement in the incident and the parts played by the others. 11 Howie J concluded, in my opinion rightly, that it was clear that the applicant participated in a criminal enterprise to carry out acts which were both unlawful and dangerous and that he, himself, intended to inflict harm on the persons at the premises with weapons capable of inflicting serious injury. Furthermore, the applicant knew that one of the other men had armed himself with a loaded shotgun. His Honour concluded that the applicant's involvement was not only voluntary but in the full awareness that considerable violence was intended even though, initially, he was unaware that a firearm was to be brought and used, "if necessary". He did not simply accept an invitation to join in but asked if he could do so when he learnt what was intended and then, as his Honour said, "participated with gusto" in the attack, providing means of disguise and weapons and being the first to engage in physical violence, in which respect it was fair to consider him to be the initiator. His Honour appeared to accept that the applicant was intoxicated by alcohol and cannabis and had reacted to the allegations made against the deceased by Mrs Denton. His Honour considered, however, that these matters provided only "little mitigation" although they might "help to explain why a young man of the prisoner's normally good character became involved in such serious criminal conduct". 12 In my respectful opinion, Howie J correctly concluded - "In my view, the prisoner's role in this enterprise, which resulted in the death of the deceased, was substantial and it is a serious case of manslaughter." 13 It has been contended by counsel for the applicant that, so far as the discount for the plea of guilty and assistance to the authorities was concerned, the appropriate allowance was 60%. His Honour, in accordance both with principle and practice, observed that "any discount in excess of the normal range of 30%-50% ought only to be given in a truly exceptional case", into which category the present case did not fall. His Honour pointed to the countervailing consideration that the sentence must reflect a proper regard to the seriousness of the offence committed by the offender and the role that he played in it since otherwise the discount could result in a sentence that undermined the fundamental objectives of punishment. Section 23 of the Crimes (Sentencing Procedures) Act 1999, giving a court discretion (more accurately confirming the court's power at common law) to impose a lesser penalty than otherwise appropriate where the offender had assisted law enforcement authorities specifically provides that the penalty thus imposed "must not be unreasonably disproportionate to the nature and circumstances of the offence" (s23(3)). It was not submitted that his Honour erred in taking this principle – also, in my view, a principle of the common law of sentencing – into account. It is submitted, however, that when the whole of the circumstances are considered, the discount given by his Honour from the sentence otherwise appropriate was appealably wrong as it did not sufficiently take into account the extent of the assistance given by the applicant and the undoubted remorse and contrition that he demonstrated. It is submitted that the extent of the appropriate discount did not become evident until (or was demonstrated as inadequate) after the applicant had given evidence at the trial of his co-offenders. It is also submitted that the sentence failed to adequately take into account (despite his Honour's express mention of the matter) the need for an adjustment arising from the substantially more onerous conditions under which the appellant must serve his sentence. 14 Howie J said that the applicant would have been sentenced to nine years' imprisonment but for the discount to which I have referred and, as a consequence, was sentenced to five years' imprisonment commencing from 9 July 2001. His Honour, finding special circumstances existed, imposed a non-parole period of two years and six months expiring on 8 January 2004. 15 Whilst I agree that, in all the circumstances, Howie J could have given the applicant the benefit of a larger discount I am unable to see any error either in his Honour's approach or to conclude that the figure his Honour applied was so wrong as to bespeak concealed error. Accordingly, I would not allow the appeal on this ground. 16 It is further submitted on behalf of the applicant that principles of parity require a readjustment of his term of imprisonment. This argument depends upon a comparison of the relative culpability of the applicant and Singleton, who was sentenced to a term of eight years and three months' imprisonment dating from 1 August 2001 with a non-parole period of four years and nine months expiring on 31 April 2006. His Honour stated that, in fixing this sentence, he took into account the time served by deducting nine months from the sentence and non-parole period and also backdating the sentence to a period before he re-entered custody after conviction. It is therefore submitted, not unreasonably, that Howie J's commencement point for both Singleton and the applicant was nine years imprisonment. This must be significantly qualified by the fact that, as his Honour observed, the approximately nine months that Singleton spent on remand was on protection because of a belief on the part of others that, in some way, he assisted the police. It is submitted that, because the applicant joined the enterprise after Singleton and had only learned of the possible use of the shotgun from a comment in the car on the way to the attack (after the shotgun was test fired by Gosling in the company of the others), the applicant's culpability for Withington's death was significantly less than that of Singleton. However, the applicant was an enthusiastic volunteer, as has been pointed out, and contributed disguises and weapons to the planned assault. Furthermore, as his Honour found, Singleton apparently held back whilst the applicant was the first to attack and, even after the gun was fired, he went on to strike one of the victims. 17 The differences between the involvement of Singleton and the applicant are, to my mind, insignificant when compared to the overall criminality exhibited by both the applicant and Singleton. In truth there is no real or substantial difference in culpability between them when weighed against the seriousness of the crime to which both were willing parties. The parity argument must therefore fail. 18 I consider that, taking the circumstances as a whole, no error is demonstrated in the sentence imposed on the applicant. Accordingly, I would grant leave to appeal against the sentence imposed but dismiss the appeal.