Supreme Court New South Wales Medium Neutral Citation: R v PERRY, Steven William (a/k/a BABBAGE, Steven William) [2012] NSWSC 1645 Hearing dates: 17 August 2012 Decision date: 17 August 2012 Before: Hidden J Decision: Offender sentenced to FT imprisonment of 16 months, 21 days commencing on 28 March 2011 and expiring on 17 August 2012. Catchwords: CRIMINAL LAW - sentence - plea of guilty - conceal serious offence (manslaughter) Legislation Cited: Crimes Act 1900 Category: Sentence Parties: Regina (Crown) Steven William Perry (offender) Representation: Counsel: P Barrett (Crown) T Hoyle SC(offender) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) S E O'Connor - Legal Aid Commission (offender) File Number(s): 2011/99301 remarks on sentence 1HIS HONOUR: The offender, who is best known as Steven Perry, was charged with Neil Madden with the murder of a man called Daniel Sullivan on 8 January 2011. That charge is now not proceeded with against either man. Mr Madden has pleaded guilty to the manslaughter of Mr Sullivan and his proceedings on sentence have been adjourned. 2Today, Mr Perry pleaded guilty to a charge of concealing a serious offence, the relevant serious offence being the manslaughter of Mr Sullivan by Mr Madden. He now stands for sentence for that offence. That is an offence under s316 of the Crimes Act which carries a maximum sentence of two years. The offender has been in custody since his arrest on 28 March 2011, a period which I understand is some 16 months and 17 days. So he has now been in custody for something fairly close to the maximum sentence prescribed for this offence. 3I have the benefit of a statement of facts, exhibit A in these proceedings, which is as follows: "The Pleas Madden has pleaded guilty to the manslaughter of Daniel Sullivan on the basis of a dangerous and unlawful act. The dangerous and unlawful act involved Mr Madden throwing a quantity of methylated spirits on the coat of the deceased and igniting that liquid with a cigarette lighter. Perry has pleaded guilty to the offence of concealing a serious offence, namely, the manslaughter of Sullivan by Madden. Perry had been informed by police on the morning of 9 January 2011 that Daniel Sullivan was deceased. Facts Generally Neil Madden was living with a woman at Parramatta until 31 December 2010. He was a chronic drug user and alcoholic who had for many years been homeless. His relationship with Maree Campbell ended on New Year's Eve when she told him to leave her home at Parramatta. Madden and his close friend, Stephen Perry, who was also a homeless alcoholic, then went to the home unit of Daniel Sullivan at Iwunda Street, Lalor Park, where they stayed until the night of the fire on 8 January 2011. Daniel Sullivan lived alone in the Housing Commission unit. He was suffering serious ill-health, malnutrition and alcoholism and was reputed to have weighed about 35kg at the time of his death. Madden and Perry stayed at Sullivan's unit where they consumed large quantities of alcohol and reportedly some illicit drugs, mainly cannabis. Sullivan, like Madden, was known to become aggressive or at least argumentative when intoxicated and in the days before his death told neighbours that he wanted Madden to leave. Arguments between Madden, Sullivan and sometimes Perry were overheard by neighbours during that time. Around 10pm on 8 January 2011 neighbours heard arguing and loud voices coming from Sullivan's unit. A neighbour below the unit heard loud voices from an argument shortly before hearing a thud on the floor, which she believed was not furniture falling, which she had earlier heard, but someone falling to the floor. A few moments later other neighbours observed that Sullivan's unit was on fire and that the front door was closed. One of the neighbours unsuccessfully tried to open the door, believed it was locked and kicked it in. He was unable to enter the unit because of the heat and flames that had engulfed the interior. The body of the deceased was found, severely burned, on the floor of the living room adjacent to the lounge. The fire had engulfed the unit and the complex was severely damaged. Post-mortem examination of Sullivan was unable to establish a cause of death, however, from the absence of inhaled soot, fire or heat injury to the trachea or lungs and a normal carbon dioxide level in the blood the deceased died before the fire took hold. The most likely mechanism of death is that the deceased suffered some form of cardiac arrest upon, or immediately following, having been set on fire. Additional facts Perry Within minutes of the fire starting a passer by saw and spoke briefly to Perry who was standing near the letterboxes outside the unit complex. He was joined a few moments later by Madden who was wearing only shorts and carrying some cloth who said to him 'let's go' and they walked away. Perry left the scene and walked to Seven Hills railway station (his image captured on CCTV) where he caught a train to Central Station (his image again captured on CCTV) then Kings Cross railway station. He went to the 'shelves' (an underground car park at Woolloomooloo used as shelter by homeless people) where he remained the rest of the night before attending the Matthew Talbot hostel at Woolloomooloo for breakfast. Outside the hostel he spoke to Vincent Curtis and said: 'Neil did something bad last night ... You'll read about it in the papers'. At the time Perry was seen to be upset. He told the same thing to Robert Campbell whilst having breakfast at the hostel. A short time later two police officers (Detectives Anderton and Papandrea) walked in and Perry said 'I hope they're not cops'. On 9 January 2011 he was spoken to by investigating police at Matthew Talbot and at the police station and he told the police that he left the unit after waking up, hearing an argument and smelling smoke. He said nothing about the events that led to the lighting of the deceased or the unit by Madden. Perry was again interviewed by police on 28 March 2011 and while he agreed to be interviewed declined to make any comment about the circumstances surrounding the death of Daniel Sullivan. During the intervening period he was in frequent and regular contact with Neil Madden and they talked about the events surrounding the death of Sullivan. Madden told Perry to tell the police that he (Perry) had gone. Madden told Perry to stick to the story agreed earlier." 4The plea of guilty is not entered on the basis that Mr Perry had knowledge of everything Mr Madden did leading to the death of the deceased, but it is entered on the basis that he was privy to information material to the investigation of that crime and that he failed to bring that information to the attention of the authorities. 5Subjectively, I have to say the offender presents as a rather sad figure. It is unclear when he was born; all that can be said is that it was some time in the early 1960s. He has no family and for some years has been homeless. It appears he has some significant health problems about which his counsel, Mr Hoyle SC, told me, but I don't need to go into the detail of those. 6He has a criminal history which includes, significantly, a conviction in 1985 for murder. In the following year that conviction was set aside and a verdict of guilty of manslaughter was substituted by the Court of Criminal Appeal and he was sentenced to a term of imprisonment for 15 years with a non-parole period of 10 years. I have no information about that case except that I'm given to understand that his liability for that homicide was accessorial. 7I am told that, notwithstanding the non-parole period set by the Court of Criminal Appeal, he was in fact released in 1990. Since that time he has a few sporadic entries on his criminal history but nothing of any great significance. So it can fairly be said that his criminal history in recent times is favourable. In these circumstances I am satisfied that the time he has already served awaiting sentence is adequate, quite possibly more than adequate to mark the criminality of the offence to which he has pleaded guilty. 8What he will do upon his release is unclear. It seems likely that he will need to seek assistance from residential care for homeless people such as the Matthew Talbot Hostel. It is hoped that in due course some more permanent arrangement can be made for him. 9In a perfect world one might impose a sentence comprising a non-parole period and balance of term, so that he had the benefit of parole supervision upon his release and the assistance which that would afford him. To do so in this case would be an error of principle involving a total sentence greater than the offence calls for, and close to, if not actually, the maximum sentence prescribed for the offence. The appropriate course in my view is to impose a fixed term which expires today. The Crown Prosecutor very properly has put no argument to the contrary. It is for those reasons that I decline to set a non-parole period. 10Please stand, Mr Perry. For the offence to which you've pleaded guilty you are sentenced to imprisonment for a fixed term of 16 months and 17 days commencing on 28 March 2011 and expiring today, 17 August 2012. HIS HONOUR: Any other matters? CROWN PROSECUTOR: No, your Honour. HOYLE: No, your Honour. CROWN PROSECUTOR: Before your Honour rises, one matter I might raise, given that Mr Madden's matter is still continuing; that it would be expected that Mr Perry would not approach any witnesses in the case in the interim. HIS HONOUR: I understand that, which would be expert witnesses? CROWN PROSECUTOR: Any witnesses. HOYLE: No problem. My friend raised this with me. I have spoken to Mr Perry. HIS HONOUR: I see Mr Perry nodding in the dock. OFFENDER: I don't want to see him. HIS HONOUR: I accept that, that you won't approach them. Amendment The length of sentence was miscalculated in Court. His Honour's intention was that the expiry date was the date on which sentence was passed, 17 August 2012 (see [11] above). Accordingly, the sentence was amended to a fixed term of imprisonment for 16 months and 21 days, commencing on 28 March 2011 and expiring on 17 August 2012. ********** 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: 22 February 2013