New South Wales Supreme Court CITATION : R v Taber & Styman [2005] NSWSC 1292 HEARING DATE(S) : 19 September - 2 November 2005 JUDGMENT DATE : 15 December 2005 Common Law Division JURISDICTION : Criminal List JUDGMENT OF : Studdert J DECISION : TABER: Aggravated robbery - 10 years imprisonment to date from 26 March 2001; Manslaughter - 18 years imprisonment to date from 26 March 2002 and to expire on 25 March 2020, with a non parole period of 13 years 6 months to commence on 26 March 2002 and to expire on 25 September 2015. The first date upon which the offender is to become eligible for release on parole is 25 September 2015. STYMAN: Aggravated robbery - 10 years imprisonment to date from 26 March 2001; Manslaughter - 18 years imprisonment to date from 26 March 2002 and to expire on 25 March 2020, with a non parole period of 13 years 6 months to commence on 26 March 2002 and to expire on 25 September 2015. The first date upon which the offender is to become eligible for release on parole is 25 September 2015. Crimes Act, ss 24, 112 LEGISLATION CITED : Crimes (Sentencing Procedure) Act, ss 21A, 44 Markarian v The Queen [2005] HCA 25 Pearce v The Queen (1998) 194 CLR 610 R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Bollen (1998) 99 A Crim R 510 R v Forbes [2005] NSWCCA 377 CASES CITED : R v MD, BM, NA, JT [2005] NSWCCA 342 R v O'Donnell [2002] SASC 183 R v Previtera (1997) 94 A Crim R 76 R v Styman; R v Taber [2004] NSWCCA 245 R v Trevenna [2004] NSWCCA 505 Regina v Peter David Taber PARTIES : Regina v Ian Craig Styman FILE NUMBER(S) : SC 2002/120; 2002/118 A. Robertson (Crown) COUNSEL : G. Wendler (Accused Taber) G. Kumarasinhe (Accused Styman) Office of the Director of Public Prosecutions (Crown) SOLICITORS : Van Houten Solicitors (Accused) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST STUDDERT J Thursday 15 December 2005 2002/118 REGINA v PETER DAVID TABER 2002/120 REGINA v IAN CRAIG STYMAN SENTENCE 1 HIS HONOUR: The offenders Peter David Taber and Ian Craig Styman were both found guilty of the manslaughter of Joy Golbie Alchin, whose body was found in her home at 23 Spies Avenue, Greenwell Point on 19 January 2001. The verdicts of the jury on 2 November 2005 followed a lengthy trial which began on 19 September 2005. 2 Both accused stood trial previously charged with the murder of the deceased. They also stood trial previously charged with breaking entering and committing a serious indictable offence in circumstances of aggravation (which I will call "aggravated robbery" for the purpose of these remarks). They were further charged with sexual intercourse without consent in circumstances of aggravation. The jury following the earlier trial found both offenders guilty of murder and aggravated robbery. They were found not guilty of the sexual offence charged. Following conviction, each offender was sentenced to imprisonment for life for the crime of murder and to imprisonment for twenty years for the offence of aggravated robbery. 3 There was a third offender joined at the earlier trial, namely Shannon Styman, who was the nephew of Ian Craig Styman. Unlike the other offenders, Shannon Styman pleaded guilty to the aggravated robbery charge and was convicted accordingly. Also unlike the other offenders, he offered a plea of guilty to the crime of manslaughter. Whilst the Crown did not accept that plea, the jury found Shannon Styman guilty of manslaughter. Following his conviction, Shannon Styman was sentenced to fourteen years imprisonment for manslaughter with a non parole period of nine years, and to eight years imprisonment for the aggravated robbery. Against those sentences, Shannon Styman did not appeal, and he is presently serving those sentences. 4 However, both offenders presently before the Court did appeal and the convictions of murder were quashed (R v Styman; R v Taber [2004] NSWCCA 245). The Court of Criminal Appeal determined, having regard to the 000 call I shall refer to later, that it was not open to the jury to conclude beyond reasonable doubt that at any time before she died, the offenders fully realised that the deceased would probably die unless they rescued her (see p 117 of the joint judgment at para [326]). Hence it was determined that the convictions for murder could not stand. The court proceeded to order that the offenders stand trial again, charged with manslaughter. The court did not disturb the convictions for aggravated robbery but it did quash the sentences imposed for that offence. 5 In the circumstances each offender is now to be sentenced for the crime of manslaughter and for the crime of aggravated robbery. The maximum penalty for which s 24 of the Crimes Act makes provision for the crime of manslaughter is twenty-five years imprisonment. Section 112(2) of the Crimes Act provides a maximum penalty of twenty years imprisonment for the offence of aggravated robbery. 6 This brings me to a consideration of the objective features of these crimes. 7 The deceased was seventy years of age. According to Dr Bradhurst, who performed the post mortem examination, she weighed forty-eight kilograms and was 1.49 metres tall. Hence, she was a slight lady. The deceased was found in her bedroom, securely bound. Her wrists were tied behind her back. Silver coloured duct tape and black plastic cable ties were used (see Exhibit B, photograph 27). The ankles of the deceased were also bound together and photograph 29 shows silver coloured duct tape around those ankles as well as black plastic cable ties. There was a pillowslip placed over the head of the deceased, with the opening of the pillowslip secured loosely around the neck with duct tape. Underneath that there was a gag made up of a wad of underpants and that was held against the mouth with grey duct tape wound around the mouth, face and neck. Dr Bradhurst said it was not clear how many times that tape was wound around the face and neck, but that it was wound around tightly (T 938). 8 The body was found lying face down on the floor near the side of the deceased's bed. There were lacerations to the left corner of the mouth where Dr Bradhurst said she had received a blow; there was bruising of the upper and lower lips; and there was bruising of the lower part of the left upper arm. There were also abrasions over her left shoulder blade and right buttock, consistent with having been caused by dragging of her body. 9 Following post mortem examination, Dr Bradhurst concluded that the cause of death was smothering and dehydration associated with restraint. 10 It is apparent from the photographs in Exhibit B that the wrists and ankles were both tightly secured. 11 The manner of restraint was cruel indeed. 12 The deceased lived by herself in her modest one-bedroom home at 23 Spies Avenue, Greenwell Point, where the evidence discloses she led a lonely life. She did not drive and rarely ventured out of the house. She was dependent upon others to bring food, other supplies and newspapers to her. Mr and Mrs Reeves were shop keepers who made deliveries to her. According to Mrs Reeves, the last delivery was made on 5 January 2001 and it was Mrs Reeves who carried out that delivery. Because the Reeves were concerned when the deceased failed to place later orders, Mr Reeves attended the home of the deceased on 19 January 2001, having been unsuccessful in reaching her by telephone. His visit led to the discovery of the body of the deceased. 13 There was a 000 call made at 4.54 am on 7 January 2001. I shall refer to this call again later but I am satisfied beyond reasonable doubt that shortly before that call was made the deceased had been bound, gagged and robbed by these offenders, together with Shannon Styman, and had been left secured in the manner in which she remained secured at the time her body was discovered. 14 According to a neighbour of the deceased, Mrs Batchelor, she noticed a terrible smell some three days or so before the body of the deceased was found, but Dr Bradhurst considered the time of death was likely to have been between 16 January and 18 January 2001. Dr Bradhurst observed early decomposition was occurring but said this: (T 940) "In view of the post mortem appearances, the regional temperatures for the period and taking into account Dr Ryan's assessment (with which I agree), in my opinion death most likely occurred two to four days prior to the autopsy, that is, any time between 16 and 18 January 2001, but death occurring even before 16 January cannot be entirely excluded." 15 Dr Ryan, the Government Medical Officer for the Nowra Police District, attended the deceased's premises before the body of the deceased was removed. His assessment was that the deceased had been dead for some seventy-two hours, which would fix the time of death as being on 16 January or thereabouts. 16 I accept the opinions expressed by the two medical experts and find that the deceased in all probability died no earlier than 16 January 2001. This means, of course, that the deceased lay bound and gagged with her head secured inside the pillowcase for nine days, or a period approaching nine days, before death by smothering and dehydration. Her fate was truly horrific. 17 The deceased used to keep large sums of cash in her house. Her sister, Margaret Jones, said that the deceased did not believe in banks and that she horded her money (T 378). In the year 2000, the deceased lent $22,000 to her sister, Cheryle Ravell. The loan was in cash, including a lot of old $100 notes and some old $50 notes. According to Cheryle Ravell, the money had a musty smell and was presented to her in the deceased's home in a brown paper bag. Following a disagreement with her sister, Cheryle Ravell repaid the loan in full in November 2000. 18 Cheryle Ravell's daughter, Melinda, borrowed money from the deceased in 1999. The amount lent was $3500, and Melinda Ravell described the cash as including old grey $100 notes that had a smell about them. One or two months later, the deceased advanced to Melinda an additional sum of $20,000, again in old $100 notes in lots of $1000 secured by rubber bands. Melinda repaid the loan in full, having engaged a solicitor after there was some disagreement with her aunt. 19 Leonie Ravell was aware of the loans by the deceased to her mother and to her sister, Melinda. Indeed, she was with Melinda when Melinda picked up her substantial loan. Leonie Ravell formed a relationship with the offender Peter Taber, who went to live with Leonie at 211 Old Southern Road in September 2000. 20 The offender, Peter Taber, had no trade qualifications but he had periodic employment erecting prefabricated sheds. The evidence established that he was frequently short of money. He had no significant funds in any bank account and he often pawned tools and other items. Two pawnbrokers gave evidence of their dealings with him. Mr Edwards had dealings with him from July 1999 onwards. As late as 30 December 2000, Peter Taber pawned a number of tools for $300. He paid the redemption sum on the day after the aggravated robbery. Mr Mitzikis had dealings from May 2000 onwards. As late as 3 January 2001, the offender pawned a drill and a circular saw for $100 and they were not redeemed. 21 The offender Peter Taber had discussion with Leonie Ravell about going for a holiday in Queensland. According to her, there was discussion with the offender Taber about borrowing money from Leonie's family to fund the holiday. Peter Taber asked Melinda for a loan but this was declined. According to Leonie, the offender suggested that an approach be made to her Aunt Margaret and also to the deceased, but Leonie declined to make any such approach. 22 Her evidence differed in this respect from the evidence of Donyelle Turner who was living in December 2000 at 211 Old Southern Road. According to Donyelle Turner, she was present when Leonie and Peter Taber had a discussion about borrowing money. Donyelle Turner gave evidence that Peter Taber made a telephone call to Melinda and when that proved unsuccessful he suggested that he go with Leonie to see the aunt at Greenwell Point. It was submitted that Donyelle Turner was not a reliable witness, principally because of her drug abuse. Moreover, she searched Leonie Ravell's wallet whilst Leonie was out. Notwithstanding those matters, I consider her evidence was credible and I accept that she heard the offender Taber and Leonie discussing the making of an approach to the deceased to borrow money. 23 The offender Peter Taber denied any approach to the deceased for money, but whether there was an actual approach or not, the evidence does establish that at the time of the commission of the crimes on 7 January 2001 Peter Taber was short of money, and I am satisfied that he knew of the deceased and that she kept substantial sums of money in her house. 24 The offenders were very good friends who spent much time in each other's company. Ian Styman did work on computers and Playstations and, whilst he claimed to work long hours in his garage at home, he, too, seemed to be short of money. He had no funds in his bank account, although he claimed to keep money at home in the drawer where he kept his socks. He did assembly work with Peter Taber and from time to time each did security work. Ian Styman was drawing pension benefits, as was his wife. 25 There was an unsuccessful attempt to break into the deceased's home just before Christmas 2000. Constable Shepherd, who attended on the deceased, advised her to take security measures, and the deceased acted to have a security door fitted at the rear of her home. Mr Bennett attended to install the security door on 8 January 2001. Tragically, he was unaware of the deceased's plight as she lay bound and gagged a short distance from where he was working on the installation. 26 Shannon Styman was living at Old Erowal Bay in December 2000. He had a close relationship with his uncle, Ian Styman, and spent much of his time in Ian Styman's company. He refused to give evidence at the second trial, but the evidence that he gave at his own trial was introduced and he claimed he was recruited to join the two offenders in breaking into the deceased's home with a view to robbing her. He claims the proposed crime was discussed with the other offenders on 4 January, 5 January and 6 January. His evidence was that all three men entered the deceased's home where the deceased was bound and gagged in the manner I described earlier. He asserted that $23,300 in cash was found before the three men left 23 Spies Avenue. According to Shannon Styman, on the distribution of that cash Peter Taber took $14,000, Ian Styman received $7000 and Shannon Styman $2300. Of the $14,000 Peter Taber took, he gave half of that to Leonie. 27 The evidence establishes that it was Ian Styman who called 000 at 4.54 am on 7 January. Ian Styman gave the police operator a false account of what had happened. I refer to the evidence concerning the text of the conversation which he had with the operator: "V2: No one there V1: Hello V2: Oh, Hello V1: Could you send a car out please? V2: Where to? V1: Spies V2: Where? V1: Spies Avenue, Greenwell Point V2: What's happening there? V1: There was a couple of blokes that went in with guns, second house from the corner. V2: What do you mean,…a couple of blokes went in? V1: That went in the house, there's a little old lady there… V2: Break and enter? V1: I can't talk but there there here V2: What, What number?… CALL TERMINATED BY CALLER" 28 The call line indicator alerted the operator to exactly where the 000 call was coming from and the operator was aware that the caller was ringing from a position sixteen kilometres from Spies Avenue, Greenwell Point. Of course, Ian Styman lied to the operator concerning what he had claimed to have seen at Spies Avenue. 29 The 000 call was not acted upon by the police and the deceased was left in her helpless condition. The verdicts of the jury reflect that the jury rejected the submission advanced on the offenders' behalf that the making of the 000 call and the failure to respond to it broke the chain of causation. In my opinion the jury was correct to do so. The Crown proved beyond reasonable doubt that the conduct of binding and gagging the deceased, and abandoning her in that condition was causative of her death. 30 I do not propose in these remarks to review in any detailed way the evidence in the Crown case. 31 Andrew Peake gave evidence concerning the activity and behaviour of the offenders on the day he claimed to have journeyed with them to Spies Avenue on what could be described as a reconnaissance mission. On that same day he claimed to have seen the two offenders using cable ties to secure the wrists the one by the other. The credibility of this witness was attacked by the offenders, and the attack may have created uncertainty as to whether the drive-around he described in December 2000, as the witness claimed, took place. He also gave inconsistent accounts about who he saw tying who with the cable ties. Nevertheless, it was well open to the jury to find the evidence to have been reliable in all material respects even if he was wrong about the date at which that happened. 32 There was a considerable body of circumstantial evidence pointing to the guilt of the offenders: there was evidence that each was in possession of substantial funds on 7 January and each had available old $100 notes. These notes were removed from circulation on 15 May 1996 (T 1059). The offenders each spent money on motor vehicles; Peter Taber to buy a Ford utility and Ian Styman to buy a Suzuki. There was a deal of evidence as to the moneys that became available to Leonie Ravell on and shortly after 7 January and the spending on items for the house at 211 Old Southern Road. $1700 was spent at K Mart alone on household appliances. Meegan Herne went shopping with Leonie Ravell about 14 January, and described Leonie's wallet as being "too fat to fold" (T 351). The witness said that the wallet was "full of old $100 bills", ½ - ¾ cm thick (T 351). 33 On 24 January 2001 a search warrant was executed at 211 Old Southern Road. In the course of that search warrant being executed, cable ties were found in the lounge room and rolls of duct tape in an unused state were found in the bedroom occupied by the offender Peter Taber. Further duct tape was found on the grass in the backyard and further duct tape was found scrunched up in the back of Peter Taber's utility. The tape in the utility was later straightened and closely examined. It was found to have coarse wool, consistent with carpet wool, adhering to it. That fibre had blood on it, which was described by the forensic scientist, David Royds, as being thoroughly infused into the fibre. Scientific evidence established that the blood found in that fibre matched the blood in the pillowcase that had been removed from the head of the deceased. DNA testing established that the blood on the pillowcase matched the blood of the deceased. According to the forensic scientist, Ms Sutton, the DNA profiles obtained from the pillowcase and from the blood-soaked fibre on the duct tape were indistinguishable from each other at ten regions of the DNA. Ms Sutton's unchallenged opinion was stated thus: "It can be stated with ninety-five percent confidence that the true frequency of the DNA profile as identified from both items is between 1 in 13.6 billion and 1 in 39.1 billion in the general ACT population." 34 That, of course, is only a statistical figure, but what it does point to is the extreme likelihood of the blood found on the tape in the back of the offender Peter Taber's utility being the blood of the deceased. 35 I do not propose to review further the circumstantial evidence upon which the Crown relied. In my assessment, Shannon Styman's account of events was broadly consistent with the other evidence upon which the Crown relied. 36 According to Leonie Ravell, the offenders were in each other's company and the company of Shannon Styman on the evening of 6 January 2001 at 211 Old Southern Road prior to the time that she fell asleep shortly after 8.00 pm. The offenders were in each other's company early on 7 January, when, with Leonie Ravell and Shannon Styman, they set off for Sydney for the purchase of the motor vehicles. It was altogether understandable that the jury rejected the offenders' version as to what occurred overnight. 37 The offender Peter Taber gave evidence Shannon Styman appeared back at 211 Old Southern Road at 3.00 am or 4.00 am on 7 January, stating he had robbed a drug dealer. Peter Taber said that the appearance of Shannon Styman and his assertion prompted Peter Taber to ring Ian Styman and a meeting was arranged to consider what was to be done. Later, after Ian Styman joined the others at the appointed meeting place, Shannon Styman was alleged to have changed his account and to have given an account of the robbery at Spies Avenue. This in turn was claimed by both offenders in their evidence to have prompted Ian Styman to make the 000 call. 38 Both offenders claimed that Shannon Styman gave them substantial sums of money out of the proceeds of his crime. The offender Peter Taber asserted that whilst he was at a caryard in the company of Shannon Styman and Ian Styman on 7 January, Shannon Styman handed him a wad of cash folded in half, and according to Peter Taber he could not recall what Shannon Styman said at that time. A similar account was given by Ian Styman. He said that whilst he was in a caryard Shannon Styman gave him $5000 in cash, and when doing so said "Buy something decent and pay us back when you can" (T 1451). Plainly, and understandably, the jury rejected the assertions of the two offenders, on whose versions Shannon Styman was alone responsible for taking the money from the deceased. 39 The jury obviously disbelieved the evidence given by both these offenders and, in my opinion, they were correct to do so. The accounts given by both offenders were simply incredible. I hasten to record that neither offender is to have his sentence increased because of the evidence that he gave. 40 The Crown put the case on manslaughter in two ways: (i) manslaughter by unlawful and dangerous act; (ii) manslaughter by criminal negligence. 41 I am satisfied beyond reasonable doubt that the elements of manslaughter by unlawful and dangerous act were established. This was a joint criminal enterprise and the acts of binding and gagging and abandoning the deceased were unlawful and, viewed objectively, dangerous. 42 I am also satisfied beyond reasonable doubt the necessary elements of manslaughter by criminal negligence have been established. Unquestionably, the offenders owed a duty of care to the deceased and having deliberately bound and gagged the deceased and left her in the manner in which they did, the actions of each offender fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk of really serious bodily harm that the offenders' conduct merited criminal punishment. 43 I consider this was a most grave crime of manslaughter. The offenders acted in a most callous and uncaring fashion. There is no suggestion that either of them made any attempt to find out whether the 000 call had been acted upon and they each manifested an indifference as to the deceased's fate over the many days that the deceased continued to live after the offenders left her home. 44 Viewed objectively, the aggravated robbery was also an extremely grave crime. The elements of aggravation charged were being in company and depriving the deceased of her liberty. Both were proved beyond reasonable doubt. 45 The evidence established that there was considerable planning which preceded the commission of the aggravated robbery. A key was fashioned, reconnaissance was undertaken, cable ties and duct tape were used in tying up the victim, the offenders wore gloves and restrained their victim, and the bindings were applied very tightly, as is evidenced by the photographs introduced into evidence. 46 I pass to a consideration of the subjective features concerning these offenders. Peter Taber 47 The offender Peter Taber was born on 29 July 1973, so that he is presently thirty-two years of age. He comes from a stable family background and his mother, who is now living with the offenders' father at another son's property in Western Australia, came over from Perth to give evidence on her son's behalf in these sentencing proceedings. 48 Mrs Taber, whose evidence I accept, informed the Court that her son Peter was born in Camden and that the family moved to Singleton in 1978 where they spent some fourteen years. The offender left school in year 9. He has two brothers, Andrew aged thirty-four and William aged thirty-two. He did have two sisters, both of whom had tragic lives. One sister died in an accident in 1980 and the other sister was severely disabled before her death. Mrs Taber said that the accidental death of the daughter had a devastating effect upon the family. 49 Mrs Taber said that after the offender left school he was an apprentice chef for some eighteen months before going into the building industry. Mr and Mrs Taber went to live in Nowra in 1991, and so did the offender. The offender continued to live with his parents after they purchased a home in Jervis Street, Nowra, and he lived there until about September 2000 when he moved into 211 Old Southern Road with Leonie Ravell. 50 According to Mrs Taber, the offender paid board at Jervis Street, Nowra and was not the source of any trouble to his parents. 51 It was towards the end of the year 2000 that Mrs Taber was offered a position managing a nursing home in Queensland, and she moved to that State to take up that position. Mr Taber stayed behind to sell the home. When her son was arrested in March 2001, Mrs Taber resigned her position in Queensland to be with the family. Subsequently, the home in Jervis Street was sold and Mr and Mrs Taber went to Western Australia to join another son there. 52 In Western Australia the offender's parents endeavour to keep in touch with the offender but because of distances Mrs Taber has only visited him in prison approximately five times. Other contact has been by telephone and in writing. 53 Peter Taber gave evidence that after he was taken into custody there were death threats, and he was moved into protection. He has been in protection ever since and the protective custody affords him some two hours per day out of his cell. He is limited to one phone call per day. He said that access to welfare officers and doctors is slow. He was moved to Goulburn after he was sentenced by Barr J, but is presently at the MRRC at Silverwater, where he awaits placement following the sentences shortly to be imposed. 54 The only conviction that the offender has as an adult was a conviction for a high range PCA offence, and the penalty was by way of fine and disqualification. That conviction is of no significance in the present context. 55 Taber has endeavoured to further his education in custody (see Exhibit 1). The opportunities are somewhat restricted by the circumstances of his confinement. 56 A psychologist's report dated 30 January 2003 was tendered. It refers to consultations with this offender on 16 January and 22 January 2003. I do not find that report upon consideration to be of assistance in my present task. 57 I have regard to the provisions of s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999. Notwithstanding submissions to the contrary, I am satisfied beyond reasonable doubt that the offences committed were part of a planned activity. Their commission involved the element of violence and the victim was vulnerable by reason of her age and build and the circumstance that she lived alone. 58 Taber has shown no remorse or contrition and, as reflected by his evidence, has continued to maintain his innocence. I am unable to find that he has good prospects of rehabilitation. Ian Styman 59 Ian Styman was born on 17 April 1963, so he is presently forty-two years of age. He was educated at Liverpool Boys High School until year 9. After leaving school he worked in a variety of positions, including working in an engraving shop, working with boats, concreting, tiling and more recently with computers and Playstations. For the last twelve years, he has been pursuing work with computers, having trained himself to do so. 60 Ian Styman has been married twice. He has two teenage sons now living in Western Australia, and then by his second union he has two daughters who are aged twelve and seven years. He has not seen those daughters for two years, although he has had some contact with them. He does see his father and his brothers, and he said his current wife, who was called to give evidence in these proceedings for the Crown, has visited him. 61 This offender gave evidence about his experience in custody. He commenced in main stream confinement at MRRC but hot water was poured over his head whilst he was in a toilet cubicle and after that incident he was put on protection, where he has remained ever since. He is allowed two hours per day out of his cell. He says that access to medical assistance is limited and medication can only be prescribed by a doctor, which involves up to four weeks waiting time for an appointment. He is suffering from irritable bowel syndrome, as is evidenced by his medical records (see Exhibit 1). Ian Styman has sought to further his education whilst in custody. 62 This offender has a criminal record. He was dealt with for offences of dishonesty and driving offences in the Children's Court. In 1981 he was sentenced to eighteen months imprisonment for larceny of a motor vehicle and to six months imprisonment for escaping lawful custody. There have been other offences for dishonesty as an adult and also driving offences. In 1990 he was convicted of receiving in the Casino Local Court. Other driving offences followed in 1991 and 1992. Then, in 1993, he was sentenced to imprisonment for three months on two counts of break enter and steal. His record discloses no offences since then. Whilst I have referred to his record, I do not consider that it should impact upon the sentences to be imposed. 63 As in the case of Taber, I have regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act. The evidence establishes that the offences committed were part of a planned criminal activity and, as earlier observed, the victim was vulnerable, being an elderly lady living alone. There was the violence to which I earlier referred. 64 Like his co-offender, this offender has shown no remorse or contrition. He has continued throughout this trial to deny his participation in the events within 23 Spies Avenue. I am unable to find that he has favourable prospects of rehabilitation. Victim impact statements 65 The Court has received victim impact statements from the daughter of the deceased and a sister of the deceased. I have considered these statements and readily accept what each of the authors have written. However, it is well settled that the content of such statements as these cannot be taken into account in determining the appropriate punishment for the crime of manslaughter: see R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510. The submissions of counsel 66 Both Mr Wendler, on behalf of the offender Peter Taber, and Mr Kumarasinhe, on behalf of the offender Ian Styman, made similar submissions. Both counsel submitted that this crime of manslaughter was not in the worst category of case, particularly having regard to the 000 call. 67 I have referred earlier to the features of that call, which the evidence establishes was made by the offender Ian Styman to the knowledge of the offender Peter Taber. The information in the call was false, but Ms Maher, who received it, whilst appreciating that the caller was calling from a location sixteen kilometres from where he claimed to have seen the events referred to, perceived that all calls should be taken seriously. However, according to Ms Maher, the supervisor told her "not to send it to the police because it was a hoax call" (T 638). Whether that be so or not, it is not altogether clear just why the message was not relayed in the normal way. Had it been, then notwithstanding the shortcomings of the message conveyed by Ian Styman, it is likely that the deceased would have been found and rescued. I accept the submission that that is a circumstance to be taken into account. 68 However, I do not consider that in making that incomplete and false call the offenders did all that the law required of them. Neither offender was entitled to assume that the false call would be acted upon. Neither offender was discharged from any further responsibility because the call was made. The call having been made, neither offender took any further step towards the release of the deceased. There were many ways in which the offenders could have found out whether the call had been acted upon. Available avenues included inquiries through the Ravell family; after all, the offender Peter Taber was living with the niece of the deceased and at a location not far distant from the home of the deceased, and Cheryle Ravell was living at Greenwell Point in January 2001. Inquiries could have been made of the relevant public utilities, including the ambulance service as to whether there had been an attendance at 23 Spies Avenue. By doing nothing, the offenders each behaved in a callous manner and in complete disregard for their victim's wellbeing, and in consequence the deceased died what must have been an extremely lonely and dreadful death. 69 Both Mr Wendler and Mr Kumarasinhe submitted that I ought not to find a high level of planning of these crimes. I have already expressed a contrary conclusion. It was submitted that I would not accept the evidence of Mr Peake, having regard in particular to his contention that the occasion on which he travelled with the offenders to Greenwell Point was in December and the telephone records in evidence record no relevant telephone call on either of the Tuesdays in December, which Mr Peake's evidence indicated as being the likely days of the journey there. Further, the witness gave differing accounts as to who he saw tying whose wrists. 70 I accept, as counsel submitted, that the jury could well have found each accused guilty without necessarily accepting the evidence of the witness Mr Peake. His evidence, if accepted, adds to other evidence which indicates that this home invasion and what happened there was carefully planned. His evidence points to reconnaissance by the offenders on the occasion that he journeyed with them. 71 Notwithstanding the submissions of counsel, I found the evidence of Mr Peake to be credible evidence. He was submitted to extensive cross examination and I considered his demeanour throughout to be the demeanour of a person who was telling the truth. Even without his evidence however, it seems to me that the evidence establishes that the criminal activity on 7 January 2001 was carefully planned. There was no evidence of forced entry into the premises at 23 Spies Avenue. Entry was through the rear door, using a filed-down key. The offenders brought with them into the house cable ties and duct tape for the purpose for which those items were used. There was nothing about the appearance of the deceased's home to attract spontaneous entry. The home was small and modest and the garden was overgrown. It is no coincidence that Peter Taber happened to be living with the niece of the deceased and this was the home that was broken into on 7 January. The conclusion is inescapable that he was well aware of the circumstances in which the deceased was living and of the fact that she kept quantities of cash in her house. This I find, notwithstanding Peter Taber's assertions to the contrary. 72 Mr Wendler submitted that I should not bring into account in my sentencing task the sentences which Barr J imposed upon Shannon Styman, even though there was no appeal from those sentences. Mr Wendler submitted that the Court of Criminal Appeal found error in Barr J's sentencing approach, that the approach that was taken was contrary to Pearce v The Queen (1998) 194 CLR 610 and that, in any event, the sentences were imposed prior to the decision of the High Court in Markarian v The Queen [2005] HCA 25. Moreover, Mr Wendler argued that Shannon Styman had a formidable record which bore upon determination of the appropriate penalty in his case. 73 The Crown submitted to the contrary. The Crown submitted that I would be guided by the sentences imposed by Barr J. The Crown submitted that there was no error by the trial judge in the way of departure from the principles in Pearce. On the contrary, it was submitted that Barr J paid careful regard to Pearce and the Crown referred to a passage in the remarks on sentence of Barr J (at [81]), which I do not find necessary to set out here. 74 My task differs from the task which Barr J had in sentencing Shannon Styman. I must determine what sentences are appropriate to impose upon each of these offenders for each of the crimes for which sentences are to be imposed. I must have regard to the objective and the subjective features in each case, and there are many points of distinction between these offenders and Shannon Styman. These points emerge from the remarks on sentence expressed by Barr J when he sentenced Shannon Styman. His Honour said (at p 21 [74]-[77]): 74 During a pre-trial hearing on 27 June 2002 counsel for Shannon Styman offered on his behalf that he would plead guilty to manslaughter and aggravated robbery but not guilty of the offence of sexual intercourse without consent in circumstances of aggravation if the Crown would accept those pleas in discharge of all offences in the indictment. The last charge was based upon evidence of internal injuries found on the body of Mrs Alchin. The Crown refused the offer. On 3 September 2002, before the commencement of the trial, he pleaded guilty to the aggravated robbery count. His and the Crown's attitudes were unchanged on the other counts, so he went for trial on them. The jury's verdicts accorded exactly with the pleas he had offered in June. As it turned out, no hearing time was saved because of the need to try all offenders jointly, but Shannon Styman is entitled to consideration in his sentence for his willingness by making his pleas to facilitate the course of justice by containing the trial by reducing the issues. Also to be regarded as facilitating the course of justice is the manner in which his truthful evidence at trial assisted the Crown case against the other offenders. He is entitled to consideration for the economical and realistic way in which his counsel conducted his case. 75 He is entitled to a reduced sentence for the assistance he gave the police in the account he gave under interrogation, particularly because of what he said about the telephone call to emergency services. 76 His offer to plead guilty before trial to the offence of manslaughter supports his expressions of remorse. It is to be noted that his counsel never invited the jury to find him not guilty. 77 I find these matters persuasive in assessment of the offender's prospects of rehabilitation. I accept that he is genuinely sorry for what he has done and I think, notwithstanding his troubled past, that there are good prospects that he will genuinely try to live a responsible life when released from prison. I think that during the custodial part of his sentence he will work towards that end." 75 Barr J did not quantify any discount he afforded to Shannon Styman by reason of the willingness to plead guilty and the assistance given to the police. Of course, it is to be borne in mind when considering the competing submissions concerning the sentencing of Shannon Styman that Barr J went on to impose sentences of life imprisonment on the two offenders that I now have to sentence and that these sentences were found by the Court of Criminal Appeal to have been imposed in error. 76 Shannon Styman was sentenced for aggravated robbery, having pleaded guilty to that offence. Shannon Styman was sentenced for manslaughter after having offered such a plea prior to his trial. Shannon Styman provided assistance to the police. Shannon Styman was enlisted by these offenders to join in the commission of the crime. 77 Whilst Ian Styman had a more significant criminal record than Peter Taber, I have determined that it is appropriate that the same sentences should be imposed upon each offender. No basis exists for distinguishing the criminality of Peter Taber from the criminality of Ian Styman, and I conclude after also considering the subjective features relevant to each offender it would be inappropriate to treat these two offenders differently. 78 In sentencing each offender I must heed the principles in Pearce at 623 [40]: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt, that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done: it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts." 79 I am also required by Pearce, of course, to fix an appropriate sentence for each offence and then to consider questions of accumulation or concurrence, as well as questions of totality: see Pearce at 624 [45]. 80 In re-sentencing the offenders for the aggravated robbery, I must heed what the Court of Criminal Appeal determined in the earlier appeal pursued by these offenders. The court there determined that Barr J had erred in approaching his sentencing task upon the basis the jury was entitled to be satisfied beyond reasonable doubt that both these offenders realised that the deceased would probably die (see para 4 above). The error detected by the Court of Criminal Appeal was expressed at 118 [331]: "In our opinion, particularly in light of their findings in relation to Shannon Styman, the jury were not entitled to be satisfied beyond reasonable doubt that Ian Styman and Taber realised that Mrs Alchin would probably die. Barr J found, in respect of the facts upon which the appellants were sentenced for the offence of aggravated breaking entering and stealing, that the appellants realized after twenty four hours that the 000 call was ineffective and thus that they left her bound and disabled for an indefinite period (up to the point of death), knowing that she probably would not be rescued in that time. This was regarded by his Honour as a serious aggravating feature of the offence of aggravated breaking entering and stealing. In light of our view on this matter, this finding cannot stand. It follows that the sentences for aggravated breaking and entering and committing a serious indictable offence must be quashed since, to some extent, less severe sentences are 'warranted in law' (see s 6(3) Criminal Appeal Act )." 81 Whilst it follows from the above conclusion that the finding of Barr J addressed by the Court of Criminal Appeal is not open, the offenders must have appreciated that if the 000 call was not effective there was a very real risk that nobody would come to the aid of their victim before she expired. They would certainly have appreciated that the victim was incapable of freeing herself from the restraints they had put in place. This is an important consideration to be brought into account for the crime of manslaughter. I must be careful not to punish the offenders twice for elements that may be regarded as common to both offences for which sentences are to be imposed. The fact of the death of the deceased is, of course, only to be brought into account in the punishment of the offenders for the crime of manslaughter. The taking of the money of the deceased is only to be brought into account in punishing the offenders for the crime of aggravated robbery. To avoid punishing the offenders twice for common elements of both crimes, I intend to impose sentences which are substantially, but not completely, concurrent. 82 It has frequently been observed that the circumstances that may constitute the crime of manslaughter are so varied that little assistance is to be derived from considering sentences in other cases. 83 In R v Blacklidge (unreported, NSWCCA, 12 December 1995) Gleeson CJ said (at p 4): "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402. )" 84 Recently, in R v Forbes [2005] NSWCCA 377 Spigelman CJ said (at [133]): "As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39])." 85 In R v Trevenna [2004] NSWCCA 505 Santow JA carried out an analysis of sentences that had been imposed in manslaughter cases, and, more recently still, Hall J conducted a further review in Forbes (supra). In none of the cases considered in those two reviews was a head sentence in excess of ten years imprisonment imposed, apart from a South Australian case of R v O'Donnell [2002] SASC 183 where the sentence was one of twelve years with a non parole period of eight years. However, none of the cases referred to in those reviews was similar to the case with which I am here concerned. Cases involving excessive self defence or provocation involve consideration of features not present in this case. 86 In R v MD, BM, NA, JT [2005] NSWCCA 342 in their joint judgment in a case in the Court of Criminal Appeal, McClellan CJ at CL and Simpson and Howie JJ considered sentencing statistics of the Judicial Commission, as to which their Honours made the following observation (at [21]): "The sentencing statistics of the Judicial Commission, covering the period January 1998 to December 2004, reveal that not all persons convicted of manslaughter received custodial sentences. Of those that did the sentences imposed ranged from 18 months to more than 20 years. In relation to the non-parole periods or fixed terms, the range varied between 1 year and 16 years. The middle 80 percent of cases fell in the range of 2 years to 8 years." 87 Caution has to be exercised when considering statistics, particularly when the crime for which sentence is to be imposed is the crime of manslaughter. 88 One feature to be carefully considered here is that this is a case of involuntary manslaughter. However, it does not follow that a case of involuntary manslaughter is necessarily to be regarded less seriously than, say, a case where murder has been reduced to manslaughter by reason of provocation or diminished responsibility. What has to be stressed is that each case must be judged on its own particular circumstances. The particular circumstances of this case of manslaughter I regard as being very grave indeed. There was ample time for the offenders to have taken effective measures to bring about the release of the deceased before it was too late and yet, after the 000 call, neither offender took any step at all. There was an ongoing, prolonged and total disregard for the wellbeing of this unfortunate lady who the offenders had rendered so helpless. 89 Because of the date of the commission of these offences, the now repealed s 44 of the Crimes (Sentencing Procedure) Act applies. 90 In the sentences I am about to impose on each offender, I take account of the conditions of imprisonment referred to earlier. I record that I do not find special circumstances under s 44(2) of the Act and I have determined in any event that no less a minimum term than I shall now fix in the case of each offender should be served. 91 I will backdate the aggravated robbery sentences to the date that each offender was arrested, namely 26 March 2001. 92 I now pass sentence as follows: Peter Taber 93 For the offence of breaking and entering a dwelling house and committing therein a serious indictable offence in circumstances of aggravation, I impose a sentence of imprisonment for ten years to date from 26 March 2001. In view of the further sentence I am about to impose, I decline to set a non parole period. 94 For the crime of the manslaughter of Joy Golbie Alchin, I impose a sentence of imprisonment for eighteen years to date from 26 March 2002 and to expire on 25 March 2020. I set a non parole period of thirteen years six months, to commence on 26 March 2002 and to expire on 25 September 2015. I specify 25 September 2015 as the first date upon which you are to become eligible for release on parole. Ian Styman 95 For the offence of breaking and entering a dwelling house and committing therein a serious indictable offence in circumstances of aggravation, I impose a sentence of imprisonment for ten years to date from 26 March 2001. In view of the further sentence I am about to impose, I decline to set a non parole period. 96 For the crime of the manslaughter of Joy Golbie Alchin, I impose a sentence of imprisonment for eighteen years to date from 26 March 2002 and to expire on 25 March 2020. I set a non parole period of thirteen years six months, to commence on 26 March 2002 and to expire on 25 September 2015. I specify 25 September 2015 as the first date upon which you are to become eligible for release on parole. ********** 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.