Supreme Court New South Wales Medium Neutral Citation: R v J Shedden [2012] NSWSC 759 Hearing dates: 17-18/04/2012 Decision date: 06 July 2012 Before: Fullerton J Decision: Imprisonment for 9 years comprised of a non-parole period of 6 years and 9 months to date from 7 July 2010 and to expire on 6 April 2017 with a balance of term of 2 years and 3 months to expire on 6 July 2019 Catchwords: CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - joint criminal enterprise - planned offence - disregard for public safety - use of weapon - offence committed in company - parity - guilty plea Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Ibrahim v R [2009] NSWCCA 15 Kauwenberghs v R (Cth) [2008] NSWCCA 98 R v Ehrlich [2012] NSWCCA 38 R v Forbes [2011] NSWSC 1547 R v Taufahema [2007] HCA 11; 228 CLR 232 Wilson v R (1992) 174 CLR 313 Category: Sentence Parties: The Crown John Wayne Shedden (Offender) Representation: Counsel P Barnett SC (Crown) P Rosser QC (Offender) Solicitors Director of Public Prosecutions (Crown) Armstrongs Solicitors (Offender) File Number(s): 2010/226908 REMARKS ON SENTENCE 1HER HONOUR: On 16 April 2012 the trial of the offender for the murder of Joshua Maynard at Raymond Terrace on 29 June 2010 was listed for trial. On 17 April 2012 he was arraigned on that charge to which he entered a plea of not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment. 2The Crown's willingness to accept a plea to manslaughter was first made known to the offender at the time of committal proceedings - an offer which remained current up to and including the date fixed for trial. Accordingly, the plea of guilty cannot attract the sentencing discount that would otherwise accompany an early plea. The Crown conceded however that the plea should attract a discount in the order of 10 per cent reflecting its utilitarian value which, together with the discount which the offender will be afforded for his past assistance to the authorities, will be productive of a reduction in sentence. The extent of the reduction for assistance will need to be expressly stated to comply with the operation of s 23 of the Crimes (Sentencing Procedure) Act 1999 (see R v Ehrlich [2012] NSWCCA 38). In this case, additional factors bear upon the quantification of the discount for assistance, in particular the conditions of the offender's remand since his arrest (see Kauwenberghs v R (Cth) [2008] NSWCCA 98 at [99]-[103]). The evidence in the sentencing proceedings 3A document headed "Summary of Crown Evidence" was tendered by consent as part of a folder of materials upon which I was invited to find the facts for sentencing purposes. The document was also separately tendered as an attachment to a certificate issued pursuant to section 35A of the Crimes (Sentencing Procedure) Act and signed by the Crown prosecutor on behalf of the Director of Public Prosecutions. Section 35A is designed to facilitate the fact-finding exercise for sentencing purposes following charge negotiations. The form in which the "Summary of Crown Evidence" was initially tendered failed to meet the requirements of a statement of agreed facts under s 35A(2)(b) since it failed to identify with any clarity the offender's objective criminality by reference to relevant and provable facts. Most critically, it obscured altogether his role as one member of a group of men (and some boys) who launched a violent and premeditated attack upon another group of young men of which the deceased was a member, or the extent to which the offender appreciated the risk that serious injury would or might result from that attack. 4These deficiencies were compounded by the tender of transcripts of a number of conversations the offender had with police both prior to and after his arrest on 7 July 2010, including, in particular, a lengthy interview at a time when he denied any active participation in the events leading to the death of the deceased (to the extent of inviting the police to accept that he tried unsuccessfully to intervene to prevent it), and where he prevaricated about his knowledge of the roles played by others including, in particular, his brother, Chad Shedden. 5It is not the function of the sentencing judge to wade through materials tendered on sentence with a view to discerning what the offender's role in any given offence might be, still less to attempt to discern what an offender proffers as the ultimate explanation for their involvement. Where the offender's role in the commission of the particular offence and his or her knowledge of material matters is to be the subject of argument in the sentencing proceeding, the evidence bearing upon these questions should be able to be succinctly stated to enable submissions to be made about it unless the offender elects to give evidence and to have the issues in dispute resolved in that way. 6After identifying for counsel what I regarded as the critical deficiencies in the materials tendered by consent, an addendum to the "Summary of Crown Evidence" was produced and tendered by agreement. Unless otherwise specified, the facts for sentencing purposes which I am satisfied are established to the criminal standard are drawn from that composite of material. 7The offender did not call any evidence. His subjective circumstances were addressed in submissions by his counsel. It was not submitted that there were any factors in s 21A of the Crimes (Sentencing Procedure) Act which mitigated the objective seriousness of his offending. The facts 8The deceased died as a result of a shotgun wound to the chest delivered at close range after he emerged from the back seat of a car that had been lured into a suburban street in Raymond Terrace where the offender and others lay in wait. 9It is not the Crown case that this offender discharged the gun or that he was at any time armed with it. It was and remains the Crown case that his older brother, Chad Shedden, was armed with the gun and that he discharged it with the intention of killing the deceased, or at least with the intention of inflicting grievous bodily harm, at a time when the offender was present and participating in a joint criminal enterprise to assault the deceased and the other young men in his company. By accepting the plea of guilty the Crown acknowledges that it could not have proved to the requisite standard that the offender participated in the joint criminal enterprise with others to assault the deceased with the intention that he (or his companions) would be killed or suffer grievous bodily harm, or that he contemplated the possibility of harm of that kind occurring and continued to participate in the joint criminal enterprise with that degree of forethought. Were that the case the offender would be liable to be convicted of murder (see R v Taufahema [2007] HCA 11; 228 CLR 232). The offender's liability for manslaughter is as a consequence of his participation in an agreement to assault the deceased and his companions using, amongst other things, knives, metal bars and other makeshift weapons (including his belief that one of his group had a gun) such that the intended victims of the assault were exposed to an appreciable risk of suffering serious injury (see Wilson v R (1992) 174 CLR 313). The facts 10At about 9pm on 29 June 2010 Daniel Forbes was walking with his friends, Chris Wilson and Blake Russell, when a red Commodore in which the deceased and his younger brother were travelling as passengers stopped and the deceased alighted. The deceased was aged 20 and his younger brother 19. Daniel Forbes and his two friends were aged 18. They had been celebrating Blake Russell's 18th birthday and were well affected by alcohol. While the precise circumstances which precipitated the confrontation between these two groups of young men is the subject of some controversy, the evidence establishes that Chris Wilson was punched by the deceased causing facial injuries from which he bled profusely. Daniel Forbes was also assaulted. 11Daniel Forbes and his friends ran from the scene to his home where he telephoned the offender. The offender was at that time aged 31. Having learnt of the assault the offender invited Daniel Forbes and his friends to come to his home at Links Drive. They arrived armed with various weapons, including knives. 12The offender permitted the young men to use his home as a base from which a retaliatory assault could be planned and launched. The offender also arranged for his older brother, Chad Shedden, and another friend, Bradley White, to join them. The offender dispatched one of his friends to collect Bradley White. He was overheard to say to his brother, "Some of the young boys have been beaten up and they need our help". 13After Chad Shedden arrived he was seen by Daniel Forbes to remove a shortened shotgun from his jacket. He was also seen to open the breech and remove and replace a cartridge. There is no evidence that the offender was present when this occurred, or that he was otherwise aware that his brother was armed with a loaded firearm until it was discharged, killing the deceased some time later. However, he is to be sentenced on the basis that he was aware that one of the people who had grouped together in his house had a gun, having overheard someone on the telephone attempting to obtain another gun. It is conceded that he made no enquiries as to who had the gun or whether it was loaded. 14As Bradley White was driven into Links Drive, the red Commodore also arrived. Members of the offender's group had by that time positioned themselves in various locations on the street from where they launched a surprise attack at the car using weapons of various kinds. None of the occupants of the red Commodore got out of the car. The offender was armed with a metal rod which he threw at, and which struck the back of the car. 15The red Commodore sped off pursued by Bradley White in his car. There is no evidence as to any contact between the two vehicles, or the occupants of the two vehicles, before Mr White returned to Links Drive where he regrouped with the offender, his brother Chad Shedden, and the other young men. Still armed with weapons of various kinds they then moved around the area on foot looking for the red Commodore and its occupants without success before returning to Links Drive where they again concealed themselves in anticipation of the red Commodore returning. At this time the offender knew that the group was variously armed with metal rods, a hammer and knives in anticipation of a fresh confrontation with the occupants of the car. I am also satisfied that he remained of the continuing belief that one member of the group had a gun. 16Meanwhile, the occupants of the red Commodore armed themselves and made their way back to Links Drive in a blue Commodore in substitution for the damaged red Commodore. On this occasion the car was met at the corner of Links Drive and an intersecting street by someone who, I am satisfied, must have been dispatched to lure the car into the street for the purposes of being ambushed by those in the offender's group. There is no evidence as to who directed that this be done. The overwhelming inference is that this was part of the planned attack in which the offender actively participated. 17As the vehicle drove into the street it was struck with broken pieces of paving bricks causing the car to stop. The offender and those in his group then surrounded the car, striking it with the obvious intention of causing damage. 18The offender was at the rear of the car brandishing a metal rod when the deceased emerged from the front passenger seat armed with a machete or knife of some kind and moved toward the rear of the car. He was heard to say, "Who wants to get stabbed?". As he approached the rear of the car he was shot by Chad Shedden who was standing close to the offender. Before the shot was fired Chad Shedden was heard to tell the offender to move out of the way. He was heard to say to the deceased, "Do you want to get shot? Do you want to get shot?". 19The deceased died en route to the hospital from a single shotgun injury to the chest. 20Shortly after midnight a crime scene was declared and a detailed examination of Links Drive undertaken. Assorted debris consisting of broken paving bricks and smashed glass were located on the roadway. A black handled knife, pieces of metal or plastic grill from a motor vehicle, a hammer, a black machete and portions of a knife handle were also located in the area. 21Although the offender denied any involvement when first spoken to by police as a resident of Links Drive, after participating in a lengthy record of interview on 7 July 2010 following his arrest, he ultimately directed police to an area near the Irrawang Bridge on the northern bank of the Hunter River where the gun that was used to kill the deceased was located by police divers the following day. I accept that were it not for the offender providing that information the weapon would not have been found. At that time the offender claimed that he had been told where the gun had been disposed of, although it later transpired that the offender disposed of the gun either at the direction of his brother or with his agreement. I am satisfied that at the time the offender provided this information to police he had a well founded fear of retaliation by his brother (and perhaps by other members of his family) were he to have identified his brother as the shooter and that he also had a legitimate fear that his wife and children would be at risk. Within a very short period of time he nominated his brother as the shooter to police. 22He has been in protective custody since the date of his arrest not only because of fears of retaliation from members of the family and friends of the deceased but from members of his own family including, but not limited to, his brother Chad whose trial was pending at the time of the sentence hearing on 17 April 2012, and against whom, at that time, the offender had undertaken to give evidence. 23On 27 April 2012, the day listed for sentence, that offer was withdrawn. His legal representatives also sought, and were granted leave to withdraw. On 3 July 2012 I was informed by newly appointed legal representatives that no further submissions would be advanced on sentence. Objective criminality 24I am satisfied that the offender played a principle role in the joint criminal enterprise in the course of which the deceased was shot and killed. Rather than counselling Daniel Forbes and his friends (very much younger men) against retaliation for the assault they suffered at the hands of the deceased, he recruited others to join with him for the specific purpose of mounting a retaliatory attack and then participated in that attack in the belief that one of the members of his group had a gun. In addition, apparently not content with having damaged the red Commodore in the first attack, the offender was party to planning and launching a second armed attack after the blue Commodore was lured into Links Drive. While this does not constitute organised criminal activity as that concept is understood in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, the assault was the subject of some planning, however amateurish. The offending is further aggravated by the complete disregard for public safety associated with a planned violent assault on a suburban street with the knowledge that one person was armed with a gun (s 21A(2)(i)). Other aggravating factors under s 21A(2) (including the use of a weapon and the offence being committed in company) have been taken into account in the assessment of the objective criminality of the joint criminal enterprise. 25While I accept that the offender could not have known that the occupants of the blue Commodore would get out of the car, it was part of the planned attack that it would be stopped by missiles of various kinds being thrown at it. In those circumstances it was inevitable that there would be a physical confrontation between the two groups of men with a real risk of serious injury being inflicted given the offender's knowledge that members of his group were armed with knives and other makeshift weapons. Although the evidence does not establish that he knew that the gun in the possession of one of the men in his group was loaded until his brother and the deceased confronted one another and the gun was discharged, this does not diminish the objective seriousness of his criminal offending to any significant degree. Subjective circumstances and the question of special circumstances 26The offender has a criminal record with entries for violence as a juvenile and convictions for offences involving violence as an adult, the most recent being possession of a knife with the intention to commit an indictable offence in 2008 which attracted a term of imprisonment of 18 months. 27The offender was married with a young family at the time of the offence. Since that date his wife has commenced divorce proceedings and his children are under the care of the Department of Community Services at the instigation of his mother. He has had no visits from, or contact with, his former wife or his children and no contact of any kind with his mother or his other siblings. It would appear that this is as a direct result of the past assistance he has given to police. This is a heavy price to pay. 28The offender has been in protective custody since his arrest on 7 July 2010. I accept that at least until 17 April 2012 the conditions of his custody were harsh in that he had no association with anyone other than the staff of Corrective Services and that his access to physical exercise was limited to one hour in each 24 hours when he was permitted to leave his cell and move about an open but caged area. 29It was also submitted that situation was likely to persist for the duration of his sentence thereby inhibiting his prospects of rehabilitation, including the opportunity to access prison-based programs to address deficiencies in his literacy and numeracy which have impacted negatively in the past on his capacity for paid employment. There is no evidence that there has been a relaxation of the conditions of his custody despite withdrawing his offer to give evidence against his brother although it may well be that the circumstances of his current custody may change at some time during the term of his sentence. These are matters I have taken into account in appointing the discount for past assistance. 30The submission that without some extended supervision by the parole service his personal circumstances are unlikely to improve after his release, and that I should find special circumstances on that account, was maintained. In light of the length of sentence to be imposed I am not persuaded that any extension of the parole period would enhance the offender's prospects of rehabilitation although I would, of course, encourage him to undertake all courses offered to him which might improve his skill base whilst in custody. I also recommend that when the conditions of his custody permit it, he be given access to appropriate facilities in the prison system where his illiteracy and innumeracy can be addressed. 31There is no material aside from the offender's plea of guilty and his past assistance to the authorities to allow me any insight into his attitude to his offending, or whether he appreciates how his conduct contributed to the death of another person. Parity 32Daniel Forbes was sentenced by Harrison J for his role in the manslaughter of the deceased to imprisonment for 3 years with a non-parole period of 1 year and 6 months (see R v Forbes [2011] NSWSC 1547). 33The facts found by his Honour for sentencing purposes are materially different from the facts upon which this offender is to be sentenced. His Honour found that Mr Forbes failed to appreciate the likelihood that the planned retaliatory attack would result in physical violence; that he was not armed at any time; that he had no opportunity to prevent the fatal shooting or withdraw from the enterprise even on the theoretical assumption that he was aware from what he had been told of what was likely to occur. His Honour also found that he was vulnerable to the influence of the offender and his brother as older men. In the result, his Honour was satisfied that Mr Forbes' criminality was at the lower end of the scale. 34His Honour was also satisfied that leniency should be extended because of Mr Forbes' age, the fact that he had no criminal record and other favourable subjective circumstances. The sentence that might otherwise have been imposed was also discounted by 50 per cent, representing the combined effect of an early plea of guilty and Mr Forbes' undertaking to give evidence against this offender and Chad Shedden. 35In accordance with settled authority, the offender's counsel did not submit that the principles of parity apply in these circumstances. The combined discount for the plea of guilty and assistance 36Is not necessary to undertake any detailed analysis of the offender's past assistance. Both counsel at the time of submissions on sentence accepted that a discount of 10 per cent properly reflected the weight to be given that assistance as provided for in s 23 of the Crimes (Sentencing Procedure) Act. I also propose to make some additional allowance for the offender's custodial circumstances and the impact of his past assistance on his family relationships. Accordingly, I propose to allow a combined discount of 25 per cent for the plea of guilty and past assistance. Sentence 37Neither counsel referred to any comparable cases or statistics from the Judicial Commission by which the sentence to be imposed in this case might be considered. Doubtless this was in recognition of the fact that in the context of manslaughter where, by definition, circumstances resulting in the death of another person vary wildly, even within the category of manslaughter by unlawful and dangerous act, other cases and statistics are of limited assistance (see Ibrahim v R [2009] NSWCCA 15). Matters of fact and degree operate to inform the degree of objective seriousness where manslaughter has resulted from an unlawful and dangerous act and, in that way, provide a framework within which sentence is imposed. That said, the statutory maximum of 25 years for manslaughter reflects the fact that the taking of human life is one of the most serious crimes in the criminal calendar, as it does the community's expectation that any sentence imposed against that statutory maximum will reflect the allied sentencing principles of denunciation and punishment. 38In this case I am satisfied that the offender's role reflects a high degree of criminality which is untempered by any matters in mitigation. I am also satisfied that the nature of the joint criminal enterprise in which he apparently took a leading role was different in a range of respects from the circumstances frequently encountered in cases of manslaughter in this category. While I am obliged to accept that the death of the deceased was not something that the offender contemplated, and that it was ultimately the result of a stand-off between two armed men, his conduct in planning and joining with others in an armed attack of the kind that was launched (and on two separate occasions on the one night in a suburban street), carried with it the risk of someone suffering serious injury. This must attract a sentence capable of deterring others from behaviour of the kind in which these two groups of men participated as well as punishing this offender and denouncing his conduct publicly. I am not unmindful of the need for the sentence to carry with it the expectation that he will take steps to address his rehabilitation during the term of his imprisonment and that the prison system will afford him that opportunity. 39After taking into account the combined discount for the plea of guilty and assistance to the authorities, I impose a sentence of imprisonment for 9 years, comprised of a non-parole period of 6 years and 9 months to date from 7 July 2010 and to expire on 6 April 2017 with a balance of term of 2 years and 3 months to expire on 6 July 2019. ********** 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. Decision last updated: 18 October 2013