R v William Nicholas Charles POCOCK [2008] NSWSC 1435

New South Wales Supreme Court

CITATION : R v William Nicholas Charles POCOCK [2008] NSWSC 1435

JUDGMENT DATE : 17 December 2008

JUDGMENT OF : Latham J

DECISION : SENTENCED to a non parole period of 14 years and 9 months, to date from 14 March 2007, expiring 13 December 2021, with a balance of term of 4 years and 9 months, to date from 14 December 2021, expiring 13 September 2026

CATCHWORDS : CRIMINAL LAW - sentence - murder - plea of guilty - intention to inflict grievous bodily harm - vicious assault on stranger whilst on conditional liberty - young offender

CATEGORY : Sentence

PARTIES : Regina (Crown) William Nicholas Charles POCOCK (Offender)

FILE NUMBER(S) : SC 2008/5908

COUNSEL : P Barnett (Crown) John Booth (Offender)

SOLICITORS : S Kavanagh Solicitor of Public Prosecutions (Crown) Bourke Elphick & Mead (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION EAST MAITLAND

LATHAM J

17 DECEMBER 2008

2008/5908 R v WILLIAM NICHOLAS CHARLES POCOCK

SENTENCE 1 HER HONOUR : The offender pleaded guilty on 6 November 2008 to the murder of Darren John Peachman. The trial was listed to commence on 10 November 2008 but was later re-listed for 24 November 2008. 2 The offence carries a maximum penalty of life imprisonment and attracts a standard non parole period of 20 years. The Crown submissions contend that this offence falls below the mid range of objective gravity. For the reasons that follow, I agree with this submission. Hence, it is appropriate to bear the standard non parole period in mind as a reference point or benchmark. 3 The offence was committed on 10 March 2007 in a suburb of Newcastle. The offender was at that time just short of 21 years of age. During the late afternoon of that day, the offender attended a 21st birthday party at Mayfield. Mr Jordan Wilson, an acquaintance of the offender, also attended the party. The offender consumed a quantity of alcohol and, according to his evidence on sentence, took four ecstasy tablets in the course of the evening. Nonetheless, he was able to hold a conversation and walk without difficulty. 4 Some time after 10:30 p.m., the offender received a phone call from a close friend, Elley Walmsley, and was informed that her handbag had been stolen from her residential unit at 4 Harvard Close, Jesmond. Ms Walmsley's flatmate had seen a male hand, wearing a sports watch, reach into the lounge room and take the handbag, although this was not communicated to the offender. The offender asked a number of people for a lift to Harvard Close. Ms Ryan, Mr Wilson's ex-de facto partner and Mr Wilson agreed to drive the offender to that address. During the journey the offender asked Mr Wilson if he could borrow Mr Wilson's blue and white running shoes, in place of the leather shoes that the offender was then wearing. Mr Wilson agreed and the offender changed shoes in the car. 5 By the time the offender reached Harvard Close, Ms Walmsley was speaking to a police officer about the theft of her handbag. A short time later the police officer left. Ms Walmsley then informed the offender that she had earlier spoken to a man (the victim) in Harvard Close who was acting suspiciously. As it happens, the victim lived at unit 10, 14 Harvard Close and had left his unit at around 10:30 p.m. to undertake a search of the bins in the local shopping centre for items of interest. Ms Walmsley's flatmate noted that the victim was not wearing a sports watch. 6 Mr Wilson and the offender walked down Harvard Close together. They went to unit 4 of number 14 Harvard Close where the offender thought he overheard the occupants of the unit talking about stolen goods. The offender knocked on the door of the unit, which opened but then closed in the offender's face. Mr Wilson and the offender returned to no. 4 Harvard Close. 7 Shortly thereafter, Ms Walmsley and her flatmate saw the victim walking in Harvard Close and pointed him out to the offender. The victim was identified as the person who had previously been seen acting suspiciously. The offender then walked in the direction of the victim. At this point in time, Mr Wilson was in the car. Mr Wilson, wearing nothing but socks on his feet, got out and followed the offender. 8 The offender confronted the victim and asked him about his movements that night and whether he had stolen handbags. The victim started to open his bags to show the offender the contents. The offender then punched the victim to the head, causing the victim to fall to his knees. The offender then pushed the victim to the ground and commenced to kick the victim to the head a number of times. The offender then stomped on the victim's head at least once. 9 Mr Wilson attempted to restrain the offender, but was pushed aside. The offender continued to kick the victim to the head. Ultimately, Mr Wilson came between the victim and the offender and push the offender way. Mr Wilson and the offender then walked back up Harvard Close towards number 4, during which time Mr Wilson was trying to calm the offender down. The assault and the conversation between the offender and Mr Wilson were overheard by local residents. Mr Wilson was heard to say "don't worry mate it will be all right". The offender was heard to say "shit" or "fuck". 10 The offender got into a car driven by Ms Walmsley's flatmate. They left Harvard Close by driving close to the victim, who was then lying on the roadway, and doing a U-turn. As they were driving past the victim, the offender asked "do you want to check the bag?" The offender, Ms Walmsley and her flatmate drove to the home of another acquaintance, who noticed blood on the shoes then worn by the offender. The offender gave an account of having struck the victim, only after the victim had swung a punch at the offender. The offender made no mention of having kicked or stomped on the victim's head. In the days following the assault on the victim, the offender spoke to various people, giving similar accounts, consistent with the offender reacting to a perceived physical threat from the victim. 11 At about 2 a.m. the following morning, the offender and others left that home and travelled into Newcastle. The offender was dropped at the CBD hotel in Newcastle where he was depicted on CCTV footage wearing the white running shoes. 12 The victim was discovered unconscious in the roadway at around 1 a.m. by a taxi driver who had dropped a passenger in Harvard Close. The victim never recovered consciousness and was pronounced dead later that day. The post-mortem established a pattern of contusions on the left side of the face, extensive contusions of the scalp on both the right and left sides, an acute subdural haemorrhage on the right side, patches of subarachnoid haemorrhage over the surface of the cerebral hemispheres and extensive contusion of the brain stem, extensive contusion on the left side of the neck, a fractured thyroid and hyoid cartilage on the right side and large amounts of aspirated blood and mucus in the air passages and lungs. These injuries were said to be consistent with a violent kicking of the victim's head in a number of directions while the victim was on the ground. 13 On the afternoon of 14 March 2007, the offender volunteered himself to police at Waratah. He declined to be interviewed and was charged. He has remained in custody since that date. On 16 March, Mr Wilson was interviewed by police. His account of the assault refuted any offer of violence on the part of the victim and described the offender during the assault as "just going mental". I accept unreservedly that the victim offered no threat to the offender whatsoever. 14 The victim was aged 36, 165 cm in height, weighed 54 kg and was of a thin build. By way of contrast, the offender was approximately the same height but 75 kg in weight and was reasonably fit. He had commenced training for the football season and was aware of the potential damage occasioned by blows, let alone kicks, to the head. I have determined to approach sentence on the basis that the offender intended to cause grievous bodily harm. 15 Notwithstanding that finding, the brutal, callous and cowardly attack upon Mr Peachman, the failure to render him any assistance and the offender's attempts to somehow excuse the assault to his friends and associates discloses criminality of a significant order. The offender's conduct is all the more reprehensible when account is taken of the fact that the offender was subject to a bond imposed for precisely the same kind of offence, committed upon a hapless stranger while the offender was moderately under the influence of alcohol. 16 On 11 May 2004, the offender committed an assault upon a young male at a bus stop in Hunter Street, Newcastle West when the offender was moderately affected by alcohol. A sentence of two months imprisonment was appealed and replaced by a two year bond, expiring 6 December 2006. 17 On 11 September 2005, the offender assaulted and occasioned actual bodily harm to a young male in the toilets of a Newcastle nightclub. A patron of the nightclub entered the toilets and saw the offender kicking the victim in the head about four or five times as the victim lay on the floor. The offender was dragged away from the victim. The victim was rendered unconscious but recovered later in hospital. The offender pleaded guilty to that offence on 20 February 2006 and was sentenced to four months imprisonment, expiring on 19 June 2006. 18 On 10 August 2006 the offender was called up for breaching the bond imposed at Newcastle District Court as a result of the successful severity appeal. Miraculously, the offender was placed on yet another bond for a period of 18 months, to date from 10 August 2006, expiring 9 February 2008. The offender was therefore subject to this bond at the time of the assault upon Mr Peachman. 19 In terms of the objective gravity of the offence, it is not so far below the mid range that the standard non-parole period ceases to have a significant influence on the sentencing discretion. 20 General deterrence is a particularly important factor in the imposition of the sentence for this offence. The community of Newcastle has recently taken steps to address the excessive consumption of alcohol by young males in particular, in the light of numerous reports of violence committed by the intoxicated patrons of a number of local hotels and nightclubs. This offence serves to highlight the truly tragic consequences of the combination of alcohol and latent male aggression. Specific deterrence is also a relevant factor. 21 Whilst some explanation was sought to be advanced on the offender's behalf for his behaviour, the offender's subjective circumstances are not so remarkable. The offender was born in New Zealand and spent his early years in a suburb close to Auckland airport. His father was a carpenter of Fijian and European extraction and his mother was from Tonga. The offender is the eldest of four boys, one of whom was the product of his mother's second relationship. His parents separated when he was seven or eight years of age and his mother's second relationship exposed the offender to a violent and alcoholic stepfather. 22 The family moved to Sydney, settling in the western suburbs and then moving to the Central Coast. The offender's mother ended her second relationship when the offender was 13 years of age. Thus, the offender's exposure to domestic violence and the abuse of alcohol occurred over a period of approximately 5 years. There is nothing else to indicate that the offender's family background contributed to his excessive resort to violence on random occasions when he is angered or frustrated. 23 The offender attended a number of secondary schools before completing year 10 at TAFE. He described learning difficulties which were said to be due to the events at home and disruption to his education because of frequent moves. However in recent times his literacy has improved. He was reputedly a talented footballer. The offender has been continuously employed since leaving school, initially as a scaffolder and steel fixer, then in rubbish collection and at the time of his arrest as a labourer for an air-conditioning company. To his credit, the offender has undertaken a major role in the support of his family, who continue to support him. 24 Clearly, there is an association between the offender's consumption of alcohol and the commission of offences of violence. However, the presentence reports prepared on 15 November 2004 and 20 February 2006 in relation to the offender's early court appearances place more emphasis upon the lack of impulse control and the need for the offender to undergo anger management programs. The offender completed such a program but failed to maintain contact with his supervising officer. It seems that the offender did not at that time appreciate the true nature of his shortcomings, despite acknowledging that he was aware of the connection between his consumption of alcohol and his offending.