Supreme Court New South Wales Medium Neutral Citation: R v Anthony Jones [2012] NSWSC 1433 Hearing dates: 2 October 2012 - 4 October 2012; 8 October 2012 - 16 October 2012; 9 November 2012 Decision date: 23 November 2012 Jurisdiction: Common Law - Criminal Before: Barr AJ Decision: For the murder of Edan Brown, the offender, Anthony Jones, is sentenced to imprisonment. Set a non-parole period of fourteen years which will be taken to have commenced on 15 June 2010 and will expire on 14 June 2024. The balance of the term will be 4 years and 8 months, expiring on 14 February 2029. The first day on which the offender will become eligible for release to parole will be 14 June 2024. Catchwords: CRIMINAL LAW - Sentencing - Murder Category: Sentence Parties: Regina - Crown Anthony Jones - Offender Representation: B. Hughes SC G. Brady Director of Public Prosecutions Conaghan Lawyers File Number(s): 2011/148330 REMARKS ON SENTENCE 1The offender, Anthony Jones, is to be sentenced for the murder of Edan Brown at Dee Why on 23 May 2010. The offender and the deceased, who were friends, met at a party in the backyard of a house in Dee Why on the evening of 22 May 2010. The offender arrived first and sent the deceased a message suggesting that he attend the party, but there is no suggestion that he did so out of any intent to do him harm. The deceased arrived at about 11:00pm. 2There were upwards of a dozen people at the party and most were drinking alcohol. There was a garage in the backyard of the house and some surrounding lawn, and a number of those attending the party were in the garage or on the grass nearby drinking alcohol. 3Shortly before 1:00am there was a heated exchange between the offender and the deceased. The evidence does not establish why. The offender and the deceased fought and the deceased was knocked to the ground. Two men, one of whom was the offender, fought the deceased as he lay and struggled on the ground. 4During the struggle, the offender delivered two blows with a knife. One blow struck the left side of the back of the lower chest of the deceased. The resulting wound terminated in soft tissue without entering the left pleural cavity. Not much force would have been needed to inflict the wound. The second blow was fatal. It struck the deceased on the right side on the back of the lower chest. The knife penetrated fatty tissue and went between ribs before entering the bottom of the lower lobe of the right lung. It continued on to end in a superficial portion of the top of the liver. 5The knife produced no bony injury and no great force would have been necessary to inflict the wound. As it passed between the ribs it severed an artery. The right lung collapsed. The deceased died because of loss of blood from the severed artery and because he could not breathe properly. 6The knife used by the offender was never found. The house was the residence of Tylah Maaka and his partner, Awhina Noble. During the evening, Ms Noble was in the kitchen of the house preparing food for the guests. The offender entered the kitchen and spoke to her. Above the stove was a block of cutlery including a set of six serrated steak knives. 7After these events, police came to the premises and asked the guests and the occupants to leave. They were not permitted to take their things with them. When Ms Noble returned to the house, she realised that one of the knives from the set was missing. 8The pathologist who gave evidence, Dr Istvan Szentmariay, was supplied with a knife from the set. He expressed the opinion, which I accept, that the wounds suffered by the deceased were consistent with having been caused by the knife. In coming to his opinion, Dr Szentmariay observed a number of features of the knife, such as that it was sharp on one edge but not on the other and that it was serrated. The width of the blade was consistent with the shape of the wounds. It had a sharp point and its length was sufficient to have caused the wounds. 9There is no explanation of how the missing knife went missing or of how wounds consistent with its use came to be inflicted unless the offender removed the knife from the set and used it when attacking the deceased. If that is what happened it shows two things, first that the offender did not take the knife to the party, confirming my impression that at that time he bore the deceased no ill will, and secondly, that he lay hands on the knife at some time, however long or short I cannot say, before he began to attack the deceased. It is not as though he snatched it opportunistically as the fight was beginning. I think that he took it from the kitchen. 10Mr Maaka pulled the offender and the other man off the deceased. The deceased got to his feet, left the premises and walked up the street seeking help. He knocked on the window of a nearby premises and roused Mr Al Yaman Al Khayer, who called another neighbour, Mr Ibrahim Khala. Mr Khala and Mr Al Khayer were very helpful and resourceful. They did what they could to stem the bleeding from the deceased's wound. They telephoned the emergency services so that ambulance officers came to the house. Mr Al Khayer and Mr Khala are to be commended. The ambulance officers attended to the deceased as best they could but unfortunately he died on the way to hospital. 11The deceased knew who had stabbed him and named the offender when speaking to the neighbours and to the ambulance officers. Immediately after stabbing the deceased the offender left the premises in company. Within hours of the attack, having been told that the deceased had died, he described how he had stabbed him. From then on and for the next few days he avoided his ordinary place of residence and stayed in hotels in places away from the suburb where he ordinarily resided. 12Although Mr Maaka did not identify the men he pulled off the deceased and although there was no direct evidence identifying the offender as the one who stabbed the deceased, there was a respectable Crown case. 13This was the offender's second trial on this charge. His first trial was held in February 2012. He gave evidence denying his involvement in the crime. The jury were unable to agree. The second trial, which was held before me, began on 3 October 2012 and continued until 16 October 2012 when the accused asked to be arraigned again and pleaded guilty to the charge. 14At both trials, counsel for the offender told the jury that there was a reasonable possibility that another man and not the offender inflicted the wound that caused the death of the deceased. Counsel named the other man. He was present at the party. The offender's change of plea came when the Crown case was more than half over. About 30 witnesses had given evidence and the named man was due to give evidence. 15The offender was born on 4 January 1986. He knows very little about his father, who left home when he was 5 years old. When he was 7, his mother began a relationship with a man who became his step father, but he died of a drug overdose in 2003. The offender's mother is addicted to heroin. He has a half-brother, a half sister and two step brothers. For most of his childhood he was raised by his half-brother. The offender attended a number of schools and apparently did not do well academically. He was keen on sport and attended a high school that encouraged sport but he was frequently involved in fights and was asked to leave. That he did after year nine. The offender began an apprenticeship but did not complete it. He did a number of manual jobs. 16The offender was dealt with in the Children's Court for a number of offences of violence and dishonesty, some of them associated with alcohol. In 2003 he was dealt with in the District Court for stealing in a dwelling house and aggravated robbery with wounding. A short term of imprisonment was imposed. On 19 November 2004, he was sentenced in the District Court to a 5-year term of imprisonment with a non-parole period of 3 years for aggravated robbery. The non-parole period ended in January 2007. There had been a number of control orders in the Children's Court from time to time for offences of violence and dishonesty. The offender's most recent custodial sentence was a 1-month term of imprisonment imposed in the Local Court expiring in August 2011. 17In recent times the offender has worked part-time as a labourer and has completed a certificate in personal training at a fitness institute. He was working in that capacity when he was arrested. He is not married and has no children. 18A consulting psychologist, Mr Tim Watson-Munro, provided a report for the Court. Most of the offender's history that I have related has been extracted from the report. According to Mr Watson-Munro, the offender was disappointed when he was injured and could not make a career playing football. With the end of his prospects in that direction, his reliance on alcohol increased. This led to offending. It is reported that the offender drank alcohol heavily the night before the party and on the night of the party. On the day before the offence, he had snorted cocaine and consumed alcohol. According to Mr Watson-Munro, the offender concedes that this behaviour affected his judgment and impulse control. 19Mr Watson-Munro administered standard psychological tests and concluded that the offender had severe depression as well as increasing anxiety as his sentence approached. The offender felt guilty and expected to be punished. Mr Watson-Munro is of the opinion that the offender's change to his plea indicates his genuine remorse. 20Earlier in these remarks I set out the history of the offender's defence of the charge at his first trial and at this one in order to give an appreciation of the position he found himself in when he changed his plea. It would be correct to say that ordinarily a plea which came late and in the face of a strong Crown case would not be regarded as evidence or much evidence of remorse. However, the circumstances are unusual. Mr Watson-Munro has called them unprecedented in his long experience and I am prepared to accept the offender's statement, even though it was not made directly to the Court, that his change of heart resulted from his increasing embarrassment, shame and feelings of guilt. I accept that the offender feels sympathy for the family of the deceased. 21The plea of guilty, coming as late as it did, is of minimal utilitarian value. 22There are aggravating features of the offence. It was committed in company. A knife was used. The offence was committed in the house of another. The offender was on conditional liberty at the time, having been charged and bailed on 26 January 2010. He was also subject to a bond to be of good behaviour for 12 months, dating from 4 June 2009 for resisting or hindering police and assaulting a police officer in the execution of his duty. Although there was no long term planning, the offender took the knife from the kitchen anticipating trouble. 23The offender has a considerable criminal history including offences of violence, but I do not consider it so serious as to aggravate his criminality. Of course, his record disentitles him to leniency. 24I do not regard his use of alcohol or drugs as relevant other than to explain how things came about. Their effect on him neither aggravated nor mitigated his criminality. 25There are mitigating features. The offender has now admitted his involvement and a small utilitarian benefit flows to the community from that. More importantly, he has pleaded guilty and is remorseful. 26The evidence does not satisfy me that the offender intended to kill the deceased. He should be dealt with as having intended to do him grievous bodily harm. 27The offender was arrested on 15 June 2010 and has been held in custody since then. His sentence should begin on that day. 28The standard non-parole period for murder is 20 years' imprisonment. I shall bear it in mind when fixing the sentence as I take into account the features I have summarised. 29I must impose a substantial period of imprisonment upon the offender. While he is in custody he will be offered programs which will encourage and help him to master his use of alcohol and drugs and moderate his violent behaviour. His genuine remorse is a good indicator that he is prepared to seize the opportunities he is given. There are prospects of rehabilitation. I cannot find that he will not reoffend but there are encouraging prospects that he will learn to live a more useful and law-abiding life. 30A victim impact statement was received from the mother of Edan Brown, Mrs Wendy Brown. I know that Mrs Brown has been informed that the matters contained in it cannot be taken into account in determining the sentence to be imposed. Nevertheless, I have read the statement and it is proper to acknowledge the pain and suffering that the loss of her son has caused her. I wish to express the sympathy of the Court to Mrs Brown and her family and all that have been touched by these tragic events. It is to be hoped that now that these proceedings are finished Mrs Brown and others concerned will have healing and comfort. 31I have considered whether there are circumstances justifying an increase in the parole period of the sentence I shall impose and a corresponding reduction in the non-parole period. The matters put forward by Mr Brady on behalf of the offender as justifying such a course were the very length of the sentence I must impose and the need for the offender upon release to be supervised to ensure appropriate psychological treatment and a drug free lifestyle. 32I accept that these are genuine concerns but I find it difficult to judge what period of supervision will be necessary to control his desire for the use of drugs. I would expect that those having the control of the offender during his non-parole period will offer him assistance in changing his attitudes towards such substances. Significant progress should have been made by the time the offender is granted parole. The pressures on release will be different, of course, and he will need additional help, but I am not satisfied that it will be necessary to extend his period of parole in order to reach a satisfactory result. 33Anthony Jones for the murder of Edan Brown I sentence you to imprisonment. I set a non-parole period of fourteen years which will be taken to have commenced on 15 June 2010 and will expire on 14 June 2024. The balance of the term will be 4 years and 8 months, expiring on 14 February 2029. The first day on which you will become eligible for release to parole will be 14 June 2024. 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: 23 November 2012