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!" On being asked: "Did you do it?" Mr O'Donnell responded, initially, "No, I fucking didn't stab him!" But later remarked: "Yeah, I fucking shanked the cunt!" 24 On being asked why he had stabbed Mr Fuller, Mr O'Donnell, after initially denying it, gave various reasons which included that "he swore at my friend"; "he pushed me first"; "he punched me first" and, ultimately, commented that "he deserved it anyway". 25 I find proved, beyond a reasonable doubt, that Mr Fuller did not push or punch Mr O'Donnell before Mr O'Donnell seized Mr Fuller, and that he did not punch Mr O'Donnell before he, Mr Fuller, had been stabbed. In that regard, I accept the evidence of Mr Mansour, an independent witness, which, in most significant respects, is corroborated by all other witnesses. Mr Mansour, however, unlike a number of other witnesses, heard and saw how the "fight" commenced. 26 The weapon used was a black-handled fold-out knife without a spring loaded opening mechanism, i.e. it was not a "flick knife". As such, interesting questions arise as to how and when Mr O'Donnell opened the knife. I am unable, on the evidence, to make findings in that regard. Even though the weapon was not a "flick knife", it may be able to be opened with one hand and, therefore, may not have been opened before the fight started. However, it would take a deliberate act to open it. And Mr O'Donnell brought the knife to the pub. Medical Treatment and Cause of Death 27 On admission to hospital, Mr Fuller was generally unresponsive and bradycardic. He was examined by the Emergency Department team in accordance with its protocol. He was subject to x-ray. An emergency laparotomy was performed and a Transoesophageal Echo was done in the operating theatre. It did not show any intrapericardial fluid. The left ventricle of the heart was under filled and contracting vigorously. No other structural abnormalities to the heart were evident. The other wounds were sutured. 28 Mr Fuller was admitted to the Intensive Care Unit at 6.40am. At about 10.00am, Mr Fuller required washing, for which purpose he was rolled on to his left side. At that, he became hypotensive and bradycardic. CPR was commenced and another Echo (a Transthoracic Echo) was performed. A pig-tail catheter was inserted intrapericardially, which drained 80-100ml of fluid. On repeat Echo, there was no effusion around the heart, and, therefore, no surgical exploration occurred. 29 The wound to the right ventricle went undetected. It seems this occurred because the muscle in the heart closed the wound and no looseness in the pericardial sac occurred. Because the pressure in the right ventricle is relatively low (pumping blood only to the lungs), the wound remained closed until Mr Fuller was rolled on to his left side, opening the wound, causing blood to enter the pericardial sac (the fibrous bag surrounding the heart) and, amongst other things, causing blood loss to the left side of the chest thereby collapsing the left lung. 30 The stab wound to the chest, inflicted by Mr O'Donnell, caused death. This was the subject of a formal admission under s 184 of the Evidence Act 1995 (Ex PP). The Trial 31 As earlier stated, Mr O'Donnell pleaded not guilty to murder but guilty of manslaughter. His defence to the murder charge was excessive self-defence. As a consequence some issues were formally admitted (see reference to cause of death, above) and a large number of witnesses were not called. 32 The attitude and conduct of Mr O'Donnell in that respect, while not being in the same category as a plea of guilty, or pre-trial assistance to law enforcement authorities (see s 22 and 23 of the Crimes (Sentencing Procedure) Act 1999), would, and are, considered to the credit of Mr O'Donnell as pre-trial disclosures under s 22A of the aforesaid Act. 33 Further, the course taken discloses some contrition and acceptance, by Mr O'Donnell, of responsibility for his actions. I take account, without identifying any specific value, of these factors. Subjective Circumstances 34 Because of the manner in which the trial was conducted, and in particular the reliance by Mr O'Donnell on his alleged psychiatric issues, the Court has the benefit of evidence from two expert psychiatrists, a Pre-Sentence Report and a further written opinion from the psychiatrist qualified on behalf of Mr O'Donnell, relating particularly to his sentencing issues. 35 Mr O'Donnell was born on 30 September 1985 and was 21 at the time that this offence was committed. He had a troubled childhood. His parents separated when Mr O'Donnell was two years of age, and he has lived with his father (and stepmother) for some periods and otherwise lived with his mother. 36 His father was a strict disciplinarian and there is some evidence, which I accept, that, as a young child living with his father and stepmother, he was the subject of some physical abuse, which resulted in bruising, and witnessed domestic violence between his father and stepmother. 37 While Mr O'Donnell's relationship with his father is (or was) poor, his relationship with his mother is a close personal relationship. His mother was institutionalised in a psychiatric facility when he was six years of age, because she was abusing cannabis and hearing voices. Notwithstanding his close relationship with his mother, in his earlier teen years, Mr O'Donnell was abusive towards his mother and took out his frustrations on her. While living with his mother she, for a seven year period, had a relationship with one of the two persons with whom she had been connected since the separation, and, according to Mr O'Donnell, that boyfriend "beat his mother and she sustained fractures to her face and ribs". At that stage, Mr O'Donnell was aged 11 or 12 years. 38 He stopped living with his father from the age of 13 or 14 and had not seen his father for approximately 7 years prior to the incident at the pub. 39 There is evidence consistent with Mr O'Donnell having significant behavioural problems as a child, having to attend different schools and having significant psychiatric or psychological issues. Mr O'Donnell was admitted to Royal Brisbane Hospital as a 14 year old, presenting with Oppositional and Defiant Behaviour for approximately one year prior to his admission. The notes of the Hospital report that Mr O'Donnell had an abusive relationship towards his father's new wife. His mother also had difficulty managing Mr O'Donnell's behaviour. He was, even at that early age, using marijuana on a daily basis for at least a month prior to his admission. He was diagnosed with Oppositional and Defiant Behaviour. The attending doctor felt he may have had a drug induced psychotic disorder although, upon reflection, the doctor opined that he had a factitious disorder with the object of avoiding school. It was also reported that he had chased his mother around the house with a broomstick and lighter. 40 There are significant questions as to whether Mr O'Donnell was suffering (at the time of his admission to Hospital) from post traumatic stress disorder deriving from an assault and bullying by school peers. However Mr O'Donnell denied any auditory hallucinations following the suggested persecution. 41 As earlier mentioned, Mr O'Donnell had significant drug and alcohol problems. He began drinking alcohol at an excessive level at the age of 18 years. At that stage he would drink up to a bottle of bourbon per week and usually binge on the weekends. He admits to alcoholic blackouts, including shaking and early morning drinking. 42 Mr O'Donnell states that he began smoking cannabis at 13 years of age. He discontinued smoking it for a period but resumed the habit and was smoking at least from the age of 18 years to the date of the incident. At some stages he was smoking up to approximately 10-15 cones of cannabis per day. He had also used amphetamines, including crystal methamphetamines, which he usually took by snorting or swallowing but had, on two occasions, administered the drug intravenously. He also occasionally used ecstasy and experimented with cocaine and LSD. 43 According to both Professor Greenberg and Dr Allnutt, Mr O'Donnell was not psychotic and was rational and in control of his own conduct. Nevertheless, while differing in the degree of the condition, each of the psychiatrists agreed that he suffered mild paranoia, which, in Dr Allnutt's opinion, caused him to perceive threat more readily than other persons would and to react as if the threat were greater. 44 Each of the psychiatrists (and the Pre-Sentence Report) opine that Mr O'Donnell has good chances of rehabilitation, provided he has some significant psychiatric intervention, and I accept those opinions. 45 Mr O'Donnell has no prior convictions and is relatively young. While Mr O'Donnell had in his possession a knife, being a dangerous weapon, and the offence was committed with a weapon, I accept that the offence was unplanned and/or unorganised. The Crown submitted that given the admitted drug use, it cannot be said that Mr O'Donnell was a person of good character. On the other hand, his drug abuse, while unfortunate, did not lead to any criminal record or matters that came to the attention of the police, and I am taking into account that, in that regard, he is a person of previously good character with a previously unblemished record with the police or courts. 46 As previously stated, I accept the opinions expressed by the psychiatrists that, with proper attention, Mr O'Donnell has good prospects of rehabilitation. I also accept that, with that treatment, likely to occur while in prison (and which I recommend should occur in prison), Mr O'Donnell is unlikely to re-offend. 47 As earlier stated, Mr O'Donnell has accepted, to some extent, responsibility for his conduct. However, his level of remorse is not at the highest level. I accept that he has acknowledged and is sorry about the injury and consequences of his action, but there is still a degree of lack of acceptance of responsibility for his conduct. Conclusion 48 I do not consider that the offence committed is in the worst category of cases and it certainly does not require an indeterminate life sentence. 49 Were it not for some of the aspects of the subjective circumstances of Mr O'Donnell, the objective circumstances leading to this offence would require condign punishment and in particular punishment that reflected the general deterrence to the carrying of weapons in a public place, which weapons have been used to inflict damage. A knife is not a fashion accessory, and the courts need to make that clear to all. However, almost all murders are committed with a weapon, often a firearm, and the use of the knife, on this occasion, does not take the offence beyond the mid-range. The objective seriousness of the offence is at or about mid-range. 50 However, the subjective elements associated both with Mr O'Donnell's history of psychiatric issues and his youth, render specific deterrence a less important aspect. They also render rehabilitation (on which I have already made findings) a more important aspect. Overall, and bearing in mind the subjective features relevant to Mr O'Donnell, particularly the leniency that should be afforded to a first offender who is spending his first period in prison, I consider that I am able to depart from the standard non-parole period and a sentence slightly under that is appropriate. 51 Because any sentence that is now imposed will involve a substantial potential parole period, I find that the need to be supervised for a significant length of time is satisfied and I do not find special circumstances. Mr O'Donnell needs supervision whilst in the community, particularly to ensure that the psychiatric issues, which I anticipate will be dealt with while in prison, can be translated into communal life and allow Mr O'Donnell, on release, to be more confident and less likely to re-offend. But that supervision is catered for, without a greater period of parole than the statutory formula provides. 52 Murder is the most serious of offences and causes the most serious of consequences. The deceased, Mr Fuller, is a person with a close family and, as one would expect, many people have suffered loss as a result of this crime. Nothing can replace that loss. 53 The maximum sentence is life imprisonment and the standard non-parole period is 20 years' imprisonment. As one would expect with the most serious of offences, a full-time custodial sentence is warranted but, given my earlier comments, something less than the standard non-parole period is appropriate. Because of the past custody of Mr O'Donnell, the sentence will commence from 26 January 2007. 54 I have taken into account the Judicial Commission statistics and a number of cases that have been provided to me by the Crown and the defence. I have particular regard to the spontaneous nature of the crime. Conviction and Sentence 55 Mr Ryan O'Donnell you are convicted of murder in that on 26 January 2007, at Parramatta, in the State of New South Wales, you did murder Allan Stephen Fuller. I sentence you to imprisonment for a non-parole period of 16 ½ years commencing 26 January 2007 and concluding 25 July 2023, the balance of term being a further 5 ½ years expiring on 25 January 2029. You are first eligible for release on 25 July 2023. ********** 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.