R v Sutcliffe & Ors [2013] NSWSC 715

Supreme Court New South Wales

Medium Neutral Citation: R v Sutcliffe & Ors [2013] NSWSC 715 Hearing dates: 11, 13, 18-22, 25-27 February 2013; 1, 4-7, 11-15, 18-22, 25-26 March 2013; 23-24 May 2013 (sentence) Decision date: 07 June 2013 Before: Grove AJ Decision: See paragraphs 67 to 74 Catchwords: CRIMINAL LAW - sentencing - murder - joint criminal enterprise - victim's provocation mitigating factor - offenders' motive revenge or punishment of victim

CRIMINAL LAW - sentencing - manslaughter - joint criminal enterprise - victim's provocation mitigating factor - absence of intent to cause grievous bodily harm - finding of special circumstances Legislation Cited: Crimes Act 1900 Category: Sentence Parties: Crown (Plaintiff) Sean Robert Sutcliffe (Offender) Darren Michael Hoskins (Offender) Michael Patrick Brown (Offender) Darrin Troy Moulds (Offender) Representation: Counsel: T Thorpe (Crown) P Bodor QC (Sutcliffe) P Young SC (Hoskins) J Stratton SC (Brown) N Mikhaiel (Moulds) Solicitors: R O'Meagher (DPP) V Havryliv (Sutcliffe) M Fulham (Hoskins) D Ryan (Brown) J P Meehan (Moulds) File Number(s): 2011/18174; 2011/18351; 2011/17893; 2011/18099

REMARKS ON SENTENCE 1Following trial, Sean Sutcliffe, Darren Hoskins and Darrin Moulds were found guilty of the murder of Jamie Lafoe and Michael Brown was found guilty of his manslaughter. Accordingly, they appear for sentence. 2The killing arose out of a joint criminal enterprise and therefore many facts and circumstances are of common applicability to all offenders. It is also necessary to recount some background which can provide an indication, if not an understanding, as to how some events came to take place. 3To varying degrees a number of people, including some of the offenders, were interested in motorcars. Over the night of 2-3 December 2010 a Holden Walkinshaw was stolen and stored at a property in Ambarvale. Such a vehicle, I gather, is embroidered with modifications so as to become an object of admiration by motor enthusiasts. Sutcliffe is said to possess a "replica", its modifications presumably having been applied independently of the Walkinshaw factory. On 16 January 2011 the stolen Walkinshaw was itself taken from its storage in Ambarvale. 4On the next day, three vehicles were set on fire in Ambarvale. One belonged to the mother of Jamie Lafoe and the other two belonged to an associate of his. The evidence does not demonstrate, nor was it an issue at trial, that at least Hoskins was in some way responsible for these burnings but I am satisfied that Jamie Lafoe came to believe that this was the case. It is not necessary to explore the basis for such belief. In a statement to police, Hoskins related that he heard him complain about his cars being burned. 5Inspired by this belief, on 18 January Jamie Lafoe and two companions attended Sutcliffe's house at Ruse and spoke to his partner Ms Blinman. One of his enquiries concerned the location of Darren Hoskins. Ms Blinman called Sutcliffe and handed the phone to Jamie Lafoe who had identified himself to her as "Sam". After the conversation the three men left, one, as a result of seeing a child go to a house across the street, remarked "they are probably calling the cops". 6The visit was followed by a number of telephone calls between individuals, after which Moulds arrived at Sutcliffe's house in his Commodore vehicle carrying his brother Jason, Eli Bestwick and the offender Brown as passengers. On the journey they had called at Brown's residence where he acquired a machete. Hoskins also arrived at Sutcliffe's house in his Pajero four-wheel drive carrying Mark Reid, Taulima Krauss and Richard Foster as passengers. 7At the time of these arrivals, Jamie Lafoe and his companions had departed and, after some interchange with Ms Blinman, Moulds and Hoskins and their passengers also left. They did not quit the area and remained with their cars parked nearby. 8In the meantime Sutcliffe arrived home, not in Ms Blinman's car which he had taken to work but as a passenger of his friend Mark Watson. Ms Blinman informed "Sam" by telephone that Sutcliffe had come home. She told him to come down by himself and "sort it out". 9Later, "Sam" (Jamie Lafoe) arrived. Ms Blinman said she saw a "little gun" tucked into the front of his pants and she noticed that his two companions had also arrived. The three men were on foot. 10Next, relevantly, the Commodore and the Pajero came from opposite directions to where she was with Sutcliffe. She described cars screeching and gunfire. Jamie Lafoe was discharging his weapon which was in fact a small .22 calibre pistol. 11Unsurprisingly, given the multiple sources, there are different descriptions of where the pistol appeared to have been aimed but I am satisfied that Jamie Lafoe was principally targeting the two vehicles which had arrived with eight presumably hostile (to him) occupants. At the time he was little more than arms length from those with whom he had been in conversation and they were unaffected by gunshot. However Moulds, who had arrived in his Commodore, was grazed by a projectile, although how this occurred and whether this was a consequence of deliberate aim, I cannot determine. 12The production of the pistol and its discharge were, on any view, provocative acts on the part of Jamie Lafoe. In so saying I am not suggesting that the requirements of s 23 of the Crimes Act 1900 could be fulfilled. Whether provocation operates to reduce the objective seriousness of the subsequently committed offence or whether it is simply a fact of mitigation upon which an offender is entitled to draw may be a matter of some legal debate but there is a clear legislative edict that a mitigating factor to be taken into account in determining the "appropriate" sentence was that the offender was provoked by the victim. 13It matters little whether there is some philosophical difference in approach and I find that the commission of provocative behaviour by Jamie Lafoe is a mitigating factor operating to reduce the sentence which otherwise would be assessed. 14I will apply that mitigation in respect of all four offenders. 15I return to the events of 18 January 2011. The occupants of the Commodore and the Pajero alighted. Brown struck Jamie Lafoe with his machete. I am satisfied that at that point, it was apparent to Brown that Jamie Lafoe was armed and had been discharging his weapon and that this blow by Brown was independent of his later participation in the chase which concluded in the fatality. 16At about the time that Brown struck the blow with the machete, Jamie Lafoe's companions fled. Although they had arrived on foot at the house, a Hyundai Excel vehicle was used to facilitate their flight but this was frustrated by Jason Moulds who commandeered Hoskin's Pajero and rammed the Excel, which was then abandoned. 17Jamie Lafoe fled up the street from Sutcliffe's house on foot. He was pursued by the four offenders. I do not accept assertions that he was continuing to fire the pistol as he fled. By this time it was empty of live ammunition. Of course, the pursuers could not know this but I infer that Jamie Lafoe must have been aware that he was not any longer in a position to use it realistically to threaten anyone and hence I conclude that he was mainly bent on fleeing. In this he was unsuccessful and he either tripped or was tackled or both, whereupon he was set upon by the offenders. 18Among other injuries Jamie Lafoe suffered two stab wounds in the area of his lower back. The significant wound was very deep, measured at post mortem at over 16 cm, and it penetrated a major vein leading to blood loss and thereby to death. 19I interpolate that there was evidence that, as the deceased was fleeing, he was heard to call something along the lines of "get the 9 mil". I agree with counsel that this expression is likely to refer to a weapon. There is, however, no satisfactory evidence that Jamie Lafoe's companions were within earshot nor that such a weapon actually existed and was located in the vicinity. I do not accept assertions that a second weapon was actually seen by anyone. A possibility exists that the call may have been an attempt to bluff the pursuers and I recognise that Hoskins told police that he heard something to this effect when the victim was on the ground. The call amounts to an aspect of provocative behaviour but obviously of lesser consequence when compared to the earlier actual firing of the pistol. 20Before turning to the individual offenders, I should record some further matters of general application. I take into account statutory guideposts to sentence assessment. The prescribed maximum penalties for murder and manslaughter are imprisonment for life and for 25 years respectively. A standard non-parole period of 20 years has been declared for murder except in cases where the victim is in a prescribed category. The exceptions are not pertinent here. 21At the sentencing proceedings, a victim impact statement was read to the court by the deceased's mother on her own behalf and on behalf of the deceased's immediate and extended family. As required by statute I acknowledge receipt of that statement. It requires no comment from me to recognise the sense of anguish and loss that must be felt by her and the family but I record that I find no basis for making it appropriate that that statement's content be injected into assessment of the punishment of the offenders.