R v Ryan O'DONNELL [2009] NSWSC 42

New South Wales Supreme Court

CITATION : R v Ryan O'DONNELL [2009] NSWSC 42

HEARING DATE(S) : 13 October 2008-17 October 2008, 20 October 2008-24 October 2008, 27 October 2008-31 October 2008, 3 November 2008-5 November 2008

JUDGMENT DATE : 13 February 2009

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

DECISION : Sentenced to imprisonment for a non-parole period of 16 1/2 years commencing 26 January 2007 and concluding 25 July 2023, the balance of term being a further 5 1/2 years expiring on 25 January 2029; eligible for release on 25 July 2023.

CATCHWORDS : CRIMINAL LAW – sentence – murder – knife wound – fight in hotel – plea not guilty to murder, but guilt of manslaughter – admissions – sentence for murder

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995

CATEGORY : Sentence

PARTIES : Regina (Crown) Ryan O'Donnell (Offender)

FILE NUMBER(S) : SC 2007/2300

COUNSEL : E Wilkins SC (Crown) J Trevallion (Offender)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) John Byrnes & Associates (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

ROTHMAN J

12 FEBRUARY 2009

2007/2300 R v Ryan O'DONNELL

JUDGMENT 1 HIS HONOUR: In the early hours of 26 January 2007, Mr Ryan O'Donnell stabbed Mr Allan Stephen Fuller, one of the stab wounds piercing Mr Fuller's heart. Mr Fuller was admitted to Westmead Hospital, but died between 10.35am and 11.28am that day. 2 On 14 September 2007, Mr O'Donnell was indicted for the murder of Mr Fuller. When his trial commenced on 13 October 2008, Mr O'Donnell was re-arraigned and pleaded not guilty of murder, but guilty of manslaughter. The Crown did not accept the plea in satisfaction of the charge. The trial proceeded, and, on 5 November 2008, a jury found Mr O'Donnell guilty of murder. 3 Traditionally the crime of murder has always been regarded as the most serious of crimes because it involves the felonious taking of human life with like intent or state of mind. The legislature has set a maximum sentence of life imprisonment for the worst category of murder and a standard non-parole period of 20 years. These are the guideposts by which the sentence that I now impose must be measured. 4 As is clear even from the difference between the maximum penalty and the standard non-parole period, even within a crime perceived as the most serious because of our society's view of the sanctity for human life, there is a range of culpability associated with the crime. In order to determine the objective features, which measure the culpability of Mr O'Donnell and then deal with his subjective circumstances, it is necessary to set out the circumstances of this offence. Before doing so I should briefly set out the purposes of sentencing in a case such as this. Sentencing Principles 5 The purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes, such as murder, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of those factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances, viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions. Circumstances of this Offence 6 The circumstances of the offence are fairly straight forward, although one eye witness, Ms April Stephenson, whose evidence I considered to be unreliable, gave a very different account from all other relevant witnesses. 7 On the evidence before the Court, and consistent with the jury verdict, the events of the night of 25 January 2007 can be briefly summarised and are clear. Mr O'Donnell had commenced work as a clerk in the public service, working at a call-centre. He had not worked there long, and had previously had difficulty obtaining employment. 8 Workplace drinks were organised for P.J. Gallagher's Irish Pub at Parramatta and, it seems, Mr O'Donnell was keen to go and be part of the social group. While Mr O'Donnell has, and had, a continuing drug (cannabis) dependency problem, he did not consume drugs on 26 January 2007 and last smoked cannabis the night before the stabbing. I find that Mr O'Donnell was not directly affected by cannabis at the time of the stabbing. 9 However, Mr O'Donnell did consume alcohol. There are differences in evidence as to the amount consumed. He consumed the better part of a soft drink bottle (600ml) full of bourbon, together with a number of drinks bought for him, during the night, from the bar. 10 When Mr O'Donnell first went to the pub, he sat in the beer garden area, where he ate pizza and bread, drank the bourbon from the bottle (which he poured into plain coke or bourbon and coke, ordered from the bar). 11 After eating and drinking in the beer garden, Mr O'Donnell went downstairs. He says he remembers being downstairs but not the move from the beer garden. He also recalls being affected by alcohol, namely, not sober, but not "extremely intoxicated". Downstairs he danced, and continued to drink. 12 At about 9.00pm that night, Mr O'Donnell was dancing and lifted one of his female colleagues and was told by security to put her down. The security guard spoke to Mr O'Donnell at or about that time because of his exuberant behaviour. The guard described Mr O'Donnell, when the issue was raised with him, as apologetic, as in control of himself rather than drunk, and generally as a "gentle giant", "out for a good time". The security guard assessed Mr O'Donnell's sobriety and noticed that he was walking straight, speaking fluently and appeared excitable, but not intoxicated. That was also the assessment at about midnight, when the security guard spoke again to Mr O'Donnell, this time for spitting chewing gum. I find that Mr O'Donnell was affected by alcohol, but was not drunk, and was certainly not so affected as to hinder the formation of his intention, or, except in an indirect manner to which I will refer later, as to impact upon his control of his actions. 13 At about 2.00am in the early hours of 26 January 2007, the deceased, Mr Fuller, who was affected to some degree by alcohol, entered the area adjacent to the dance floor from the male toilet. The area was crowded, and he was a little unsteady on his feet. As he walked through the crowd to return to the area at which he had previously been standing and drinking, he stepped on Ms Stephenson's foot. Ms Stephenson was neither a friend of, or known to, Mr O'Donnell. 14 Mr O'Donnell called to Mr Fuller and insisted that he apologise to Ms Stephenson. Mr Fuller's response was brusque. There are two versions, each to the same effect. Mr Fuller said words the effect of: "Fuck you", to which Mr O'Donnell replied in kind. Notwithstanding my general view that Ms Stephenson's evidence was unreliable, I accept that the initial response by Mr Fuller may have sounded aggressive. 15 After this exchange, Mr O'Donnell approached Mr Fuller and, in a seemingly confrontational statement, asked him "to step outside". Mr Fuller responded sceptically, or unbelievingly, and refused. 16 With his left hand, Mr O'Donnell grabbed Mr Fuller by the right shoulder at or about the same time as their foreheads met. There is no evidence that either head-butted the other. Rather, it seems, that they were grappling and positioned themselves "like props" in a scrum (not properly bound). 17 Mr O'Donnell pushed Mr Fuller down and moved his right hand in a motion that was described, by all the witnesses who noticed it, as a punching motion, or series of punches to the body of Mr Fuller. 18 It is a necessary inference from the evidence adduced that Mr O'Donnell was holding a knife and stabbing Mr Fuller during these "punches". 19 Mr O'Donnell inflicted four stab wounds and a laceration to the left forearm. There were other injuries. One of the stab wounds was to Mr Fuller's right shoulder, which seems to have occurred either when Mr Fuller was falling or being pushed over the arm of a bench seat or when Mr Fuller parried a blow which resulted in the knife cutting the top of Mr Fuller's right shoulder. The laceration to the left forearm is consistent with an injury occasioned by Mr Fuller seeking to defend himself. 20 One of the stab wounds was a 4-5 cm stab wound to the chest, which, it was discovered after his death, had punctured the pericardial sac into the right ventricle of the heart, ultimately causing death. 21 After the stabbing, there was more "wrestling" and a few punches may have been thrown, albeit weakly, by Mr Fuller. 22 Blood spattered in a wide arc and pooled on the floor. The security guards, who had by that time arrived (the incident did not take very long), subdued Mr O'Donnell, took him to clean himself so as to check for wounds (of which there were none) and attended to Mr Fuller. 23 Mr O'Donnell had a conversation with a number of the security guards. The guards were concerned, amongst other things, to ensure Mr O'Donnell did not still have a weapon. Mr O'Donnell, the guards say, did not seem drunk. Mr O'Donnell was searched and, initially, denied any knowledge in words to the following effect: "Fuck off; I don't have anything on me; I don't have the fucking knife; I don't know what you are talking about." And he also said: "There is no knife!"