R v Dent

1. [1]

   HIS HONOUR: The offender, Anthony Richard Dent, is to be sentenced for the murder and robbery in company inflicting grievous bodily harm of Mr Anthony Thomas O'Grady at Wickham on 25 March 2014. He pleaded not guilty but was found guilty by a jury in a trial in Sydney in February this year.

2. [2]

   The offender is also to be sentenced for three offences of contempt of court to which he has pleaded guilty. These relate to his conduct in court during pre-trial hearings.

Facts

1. [3]

   On the afternoon of 25 March 2014 the offender was at his home, a flat in Hanbury Street Mayfield, in the company of Jeffrey Schott, RC and JM. He consumed the drug ice (methylamphetamine). A discussion took place as to the need to get money in relation to drugs. It was suggested that Mr Anthony O’Grady was a possible target for the commission of a robbery in that he was known to have a lot of money and was in the habit of carrying around about $500. (Mr O'Grady lived in relatively modest circumstances but he had recently received an inheritance from his late mother's estate and was known to be generous.)

2. [4]

   The plan entailed JM, who knew Mr O’Grady, to introduce him to the offender. Mr O’Grady was to be enticed to attend a “party” at Wickham Park on the pretext that there would be alcohol and girls.

3. [5]

   JM and the offender left the Hanbury flat and went to a location where Mr O’Grady was drinking with a friend. JM spoke to him and introduced him to the offender a short time later. They accompanied him to Hamilton. Mr O’Grady purchased a bottle of Jim Beam and then accompanied the offender and JM to Wickham Park.

4. [6]

   Jeffrey Schott and RC had travelled separately to Wickham Park in order to await the arrival of the others.

5. [7]

   The offender, JM and Mr O'Grady walked across Passmore Oval within Wickham Park. Mr O’Grady stopped to roll a cigarette. The offender took the opportunity to strike him heavily to the head causing Mr O’Grady to fall to the ground unconscious.

6. [8]

   The offender sent JM to summon the attendance of Mr Schott and RC who came from a nearby location in the park. At the offender’s request, Mr Schott or RC provided a piece of rope. The offender proceeded to remove Mr O’Grady’s shorts and underpants. He tied Mr O’Grady’s hands to his feet behind his back. The offender then tore Mr O’Grady’s underpants into pieces and tied them together in order to fashion a gag which was inserted in Mr O’Grady’s mouth and tied tightly behind his head. He was left hog-tied face down on the ground as the offenders left the park and went off in various directions.

7. [9]

   The offender went to Hamilton with Mr O’Grady’s bankcard or cards and attempted to use them at an ATM. He was unsuccessful as he did not have the correct PIN. He spent some time at the nearby home of a friend, the late Sidney Ragan, where he left items of Mr O’Grady’s property including the bankcard(s). It seems that from there he returned home.

8. [10]

   Mr O’Grady was found deceased in the park early the following morning. The cause of death was determined to be an acute subdural haematoma. The forensic pathologist, Dr Vuletic, said that a contributing cause was that "he had a gag in his mouth and he was face down which caused asphyxiation". Dr Vuletic referred to the size of the haematoma and said: "Unless medically treated or surgically treated, it was going to be fatal, and you would not expect anybody to survive more than a few hours at the very most."

9. [11]

   Dr Vuletic observed the following injuries:

10. [12]

    Dr Vuletic was asked about the gag around the deceased's mouth. She said it appeared to be very tightly tied around the head. She was asked about its contribution to the cause of death and she said:

11. [13]

    Dr Vuletic said that bruising to Mr O'Grady's face was the result of blunt trauma, likely from direct blows to the middle of the face

12. [14]

    Dr Vuletic allowed for the possibility that Mr O'Grady may have been able to obtain air through his nostrils but even without the gag, the haematoma presented a critical situation. Being bound with his hands behind his back, tied to his legs, possibly could have served to restrict the ability to breathe. In cross-examination, Dr Vuletic said that estimating the time that it might have taken Mr O'Grady to die was somewhat speculative but she thought it was probably less than eight hours.

13. [15]

    A police investigation commenced immediately upon the discovery of the body. At some stage in the early phase of the investigation, Mr Schott came forward and provided an account which assisted the police considerably. JM separately came into contact with police and suggested that the offender was the person who they should seek out in relation to the murder of Mr O’Grady.

14. [16]

    The offender was arrested on 21 April 2014.

15. [17]

    Records from the offender’s phone were tendered in the trial. The call charge records showed that the offender frequently communicated by either text message or voice call to various people up until the morning of 26 March 2014. Thereafter and until the evening of 30 March he confined his communications by telephone to text messages. I infer that he did so in a misguided attempt to avoid any detection of his phone use. Details of text messages sent by the offender during the evening of 25 March and in ensuing days were also before the jury. Of significance was a text message he sent to an unknown person at 11.26am on 26 March 2014 which read as follows:

16. [18]

    Subsequent messages indicated that the offender was concerned about the possibility of the young person JM informing on him. In one message sent to RC in the early evening of 26 March 2014 he made reference to going fishing. At the conclusion of his evidence before the jury, JM was questioned by the Crown Prosecutor about a comment he made in cross-examination to the effect that he did not reveal his own involvement in the matter when he tipped off police because he was scared; although not scared of being charged. He explained that he was scared because, “the next day I got offered [by the offender] to go on a fishing trip and I know what that means”.

Objective seriousness of the offences

1. [19]

   Before saying something about the objective seriousness of the offences it should be made clear that findings that are made which are adverse to the offender are made to the standard of beyond reasonable doubt.

2. [20]

   The objective seriousness of the offence of murder is considerable. It was committed in the company, or at least the presence, of three others (putting aside a young lady who was there but had no involvement) but it is abundantly clear that the offender was the dominant personality in the group. I am satisfied that he manipulated the others to do his bidding.

3. [21]

   I accept that robbery was the stated motive for luring Mr O'Grady to Wickham Park. The offender knocked him to the ground and rendered him helpless against the theft of his property. There was then nothing more to be achieved by any further violence, let alone by tying Mr O'Grady up and tightly gagging him in such a way that he was effectively left for dead, lying half-naked in a public park.

4. [22]

   Consistent with the jury's verdict I am satisfied that this is a case of constructive murder; a killing that occurred in the course of committing a crime carrying a maximum penalty of 25 years or more. However, I am also satisfied that at the time the offender assaulted Mr O'Grady he intended at least to inflict grievous bodily harm. I am also satisfied that when he tightly gagged, hog-tied, and left him face down, if he did not specifically intend that Mr O'Grady should die he at least would have realised that he possibly would. In the end, I do not think he cared one way or the other.

5. [23]

   Epithets such as "callous", "cruel" and "brutal" easily spring to mind but the mere recounting of the facts themselves makes clear that this is a very grave example of the crime of murder.

6. [24]

   The robbery in company inflicting grievous bodily harm offence adds nothing to the offender's criminality over and above the murder. The parties agree that he should be convicted but no penalty needs to be imposed.

Matters personal to the offender

1. [25]

   The offender was born in September 1960 and so he was aged 53 at the time of the offences. According to a report by Dr Stephen Allnutt, forensic psychiatrist, he is a single man with no children.

2. [26]

   He was the third youngest of eight children. He told Dr Allnutt that his parents separated when he was aged two and he was brought up by his sister. He was exposed to domestic violence; he was "belted" by his father; and he had little memory of his mother.

3. [27]

   The offender left school when he was expelled at the age of 14. His employment history is limited to having worked on a fishing boat when he was that age.

4. [28]

   He first used drugs (cannabis) at the age of about 10. He has used heroin from the age of 30 until he went into custody following his arrest for the present matters. He told Dr Allnutt that he was using methylamphetamine as well in the months prior to then.

5. [29]

   The offender has an extensive criminal history which commenced in 1974 when he was aged 14 when he was committed to an institution by the Newcastle Children’s Court for a break and enter offence. Without detailing all of his past convictions, notable entries on the history include the following:

6. [30]

   It is notable that the offender was on bail for the two charges of possess prohibited drug (those for which he was sentenced on 1 December 2014) at the time of the commission of the offences concerning Mr O’Grady on 25 March 2014. The extent to which this operates as an aggravating factor is, however, marginal in the light of the very great seriousness of the primary offence.

7. [31]

   An approximate calculation is that the offender has been behind bars for about 32 or 33 years of his 37 years of adult life. When he has been released on parole he has often breached it and been returned to gaol. That was the situation with the murder sentences for which he was released on parole on 1 July 1992 but within months he returned to custody to serve the balance of parole as well as sentences imposed for offences he committed in breach of that parole. It was also the situation with the sentences imposed on 29 October 2009 where he served the balance of parole until it expired and he was released on 1 December 2013, less than 4 months prior to the commission of the present offences.

8. [32]

   In the light of that history it does not require any expert psychological assessment to conclude that the offender is institutionalised. It is likely his life has been shaped by the unfortunate circumstances of his upbringing and the early introduction to drugs and interaction with a criminal milieu.

9. [33]

   Dr Allnutt concluded that the offender did not manifest any significant symptoms of a psychiatric condition and there was no evidence of any significant cognitive impairment or any major medical problems. He considered that the offender's behavioural problems as a child were likely consistent with a conduct disorder. He made diagnoses of substance use disorder, currently in remission secondary to his custodial situation, and antisocial personality disorder.

Other matters relevant to the assessment of sentence

1. [34]

   The maximum penalty for murder is imprisonment for life. There is also a standard non-parole period of 20 years. The maximum penalty for robbery in company inflicting grievous bodily harm is imprisonment for 25 years. These are statutory guideposts that I am required to bear in mind.

2. [35]

   A life sentence must be considered for the murder if it is characterised as falling into the worst case category or, in accordance with s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), "if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence".

3. [36]

   Mr Austin, counsel for the offender, submitted that the circumstances were not such that a life sentence was appropriate. Learned senior counsel for the Crown accepted that was so, submitting that, having regard to the offender's present age, the "community interest" referred to in s 61 can be met by the imposition of a significant determinate sentence.

4. [37]

   There is almost nothing personal to the offender that would mitigate the penalty to be imposed. It was not submitted that I should find he is remorseful and clearly he is not. He told Dr Allnutt that "he was sorry the deceased had died because he wasn't meant to die" but he maintained his denial of responsibility and the blaming of others. In his evidence in the trial he blamed Mr O'Grady for saying something that made him think that Mr O'Grady was a paedophile which prompted him to "hit him with a combination of punches, knocking him to the ground". He said that when Mr O'Grady started to revive, RC then kicked him in the head three times rendering him unconscious again. This evidence was patently false and found to be so by the jury.

5. [38]

   The one matter for which he must receive some credit is that he did not contest all issues at the trial. He conceded that he was responsible for manslaughter and robbery in company. That left the principal issue for the jury to determine as being whether he was responsible for the infliction of grievous bodily harm to Mr O'Grady (which the jury, unsurprisingly in my view, found proved beyond reasonable doubt).

6. [39]

   The offender's prior criminal record is a substantial one but it cannot lead to the imposition of a sentence which is disproportionate to the gravity of the present offence. Some might think that the fact that he had murdered two people in the past might make the present offence of murder more serious but the law does not operate in that way in relation to the assessment of the objective seriousness of the offence. However, that fact, coupled with the persistent serious criminal offending ever since, leads inexorably to the conclusion that the offender has demonstrated a continuing attitude of disobedience of the law. In such circumstances, retribution, denunciation, deterrence and protection of the community all indicate that a more severe penalty is warranted. In relation to the latter of those objectives of sentencing, I am satisfied that the offender represents a danger to society.

7. [40]

   Promotion of the rehabilitation of an offender is included in the list of "purposes of sentencing" in s 3A of the Crimes (Sentencing Procedure) Act. However, in this case the prospect of the offender rehabilitating is very bleak indeed.

8. [41]

   RC pleaded guilty and was sentenced for offences of manslaughter and robbery in company to a total of 4 years 10 months with a non-parole period of 3 years 7 months. JM pleaded guilty and was sentenced for robbery in company and, having regard to the time he had already spent in custody, he was placed on a good behaviour bond. The circumstances of both men's cases are so different from that of the present offender that no issue of parity arises.

Facts in relation to charges of contempt

1. [42]

   The trial of the offender was listed to commence before me on Monday, 1 February 2016. There were pre-trial issues to be resolved and it was expected that a jury might be empanelled in the following day or two. Each of the offender, RC and JM were arraigned and entered pleas of not guilty to the charges of murder and robbery in company inflicting grievous bodily harm. The matter then proceeded with submissions being made by counsel for the Commissioner of Police as to certain orders sought in relation to the evidence anticipated to be given in the trial of JM by an undercover police officer. Counsel was interrupted at an early stage when, quoting from the transcript, the following occurred:

2. [43]

   That conduct constituted the first charge of contempt.

3. [44]

   The offender was removed from the court. I was then told that prior to coming into court that morning the co-accused RC and JM had made approaches through their lawyers to the Crown with an offer to plead guilty to lesser charges and to give evidence for the Crown in the trial of the offender. I expressed concern that with such offers having been made there should have been some forewarning when the three men were to be placed in the dock together that day.

4. [45]

   A short time later, the offender was returned and occupied the dock on his own when the court moved to deal with a question as to the admissibility of tendency and coincidence evidence the Crown sought to lead in his trial. That evidence related to the offender having committed murder in relation to the two men he killed in Wickham Park on 20 October 1977 when he was 17 years old. In the middle of the Crown Prosecutor’s submissions the following occurred:

5. [46]

   That conduct constituted the second charge of contempt.

6. [47]

   The following morning the co-accused RC pleaded guilty to manslaughter and robbery in company and such pleas were accepted by the Crown in full satisfaction of the indictment. JM pleaded guilty to a charge of robbery in company and stealing a motor vehicle and the former was accepted in full satisfaction of the indictment concerning him. Those two men were shortly afterwards removed from the courtroom and the offender brought up. At this point Mr Austin indicated that the offender had withdrawn his instructions from him and his instructing solicitor that morning. Mr Austin said that the offender indicated that he did not want any legal representation in relation to his trial and he did not wish to participate in the trial process which as far as he was concerned could proceed in his absence. At that point Mr Austin and his solicitor withdrew.

7. [48]

   The offender confirmed that what Mr Austin had informed me was correct. The proceedings that immediately ensued were as follows:

8. [49]

   The offender was then removed from the court. That conduct constituted the third charge of contempt.

9. [50]

   The charges of contempt were read out to the offender when the jury had retired to consider their verdict on the morning of Thursday, 18 February 2016. They were in the following terms:

10. [51]

    The offender was given the opportunity to speak with his lawyers and later that morning he was formally charged and entered pleas of guilty to each of them.

Assessment of sentence for the offences of contempt

1. [52]

   In In the Matter of Steven Smith (No. 2) [2015] NSWSC 1141, Wilson J helpfully provided the following summary of sentencing principles for the offence of contempt:

2. [53]

   To that collection of sentencing principles I would respectfully add reference to Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 where, at 741, it was said that it is appropriate to bear in mind the purposes of punishing the contemnor: emphatic denunciation and effective deterrence.

3. [54]

   The maximum penalty provided for a similar statutory offence may provide a guide as to the seriousness with which such conduct is regarded by the legislature and the community: R v Whiley (1993) 31 NSWLR 314 at 319. The second charge of contempt in this case is similar, but not identical, in nature to the offence in s 326 of the Crimes Act 1900 (NSW) of threatening to cause injury to a judicial officer. The maximum penalty prescribed for such an offence is imprisonment for 10 years. That provides something of a bench mark but it is far from having any determinative significance.

4. [55]

   The gravamen of that part of the second offence which involved a threat of personal physical injury to a judicial officer whilst presiding in court is not so much concerned with the personal dignity of a judge but in protecting from the mischief that will occur if the authority of the courts is undermined or impaired: Prothonotary v Wilson [1999] NSWSC 1148 at [21].

5. [56]

   The contempt of the offender in each of the three instances is a serious example of such an offence. I am satisfied beyond reasonable doubt that they each involved wilful and extreme defiance and disregard for the authority of the court. The third offence is to some degree less serious than the others in that it was confined to the use of foul and abusive language whereas the first involved physical violence which disrupted proceedings and the second involved foul and abusive language, a disruption of proceedings and a threat of physical violence to the presiding judge.

6. [57]

   Unlike many cases of contempt, the offender's conduct is not explained by some disappointment or dissatisfaction with the outcome of the proceedings. Indeed, the proceedings had hardly commenced and no interlocutory ruling adverse to the offender had been made. When Mr Austin of counsel had his instructions restored and announced on Monday 8 February 2016 that he was in a position to proceed with the trial he spoke of potential difficulties with the offender's conduct in the presence of the jury. Included in what he said was the following that might serve as some explanation for the conduct underlying each of the contempt charges:

7. [58]

   Whilst, to some extent, this might serve to provide some understanding of why the offender behaved as he did, it does nothing to mitigate the seriousness of his misconduct. Fortunately, in the presence of the jury through the course of the trial, the offender maintained his composure and behaved himself in a reasonable fashion.

8. [59]

   Pursuant to s 22 of the Crimes (Sentencing Procedure) Act the offender should receive credit for his early pleas of guilty to these charges. The sentences he will receive for them will be reduced by 25 per cent for that reason. There is otherwise nothing in mitigation. There is nothing in the material before me that suggests that the offender is apologetic for his actions, or at least regrets them.

9. [60]

   The sentences for these charges should be distinct and in addition to the sentence imposed for the primary offence. In all the circumstances I am satisfied that no penalty other than imprisonment is appropriate. There are three sentences to be imposed which each will be a fixed term of imprisonment as there is no utility in also setting a non-parole period. I propose to apply the principle of totality by ordering that the sentences be partially accumulated. The first will date from the date the offender was arrested for the primary offence and the sentence for the latter will be wholly accumulated upon them. I see no need or purpose in adjusting the statutory ratio in the sentence for the primary offence because of the accumulation. The parole period I will allow is sufficient.

Family victim impact statement

1. [61]

   Before I proceeding to sentence I wish to acknowledge a victim impact statement provided by Mr O'Grady's brother, Mr Paul O'Grady. They both suffered from the passing of their father in 1999 and their mother in September 2013 and through the offender's actions Mr Paul O'Grady has lost the remaining member of his immediate family.

2. [62]

   Mr O'Grady describes his brother as generous to a fault and considers this to have been his downfall. If I may respectfully say so I think that is probably right. The impact of this crime upon Mr O'Grady has been a heavy one. It has also impacted upon his wife and son. I am grateful for being provided with some insight into the matters set out in the statement which, out of respect, I will not disclose. However, I assure Mr O'Grady that the personal impact this terrible crime has had is fully acknowledged and that he and his family have my sincere condolences.

Sentence

1. [63]

   For each offence: Convicted