Regina v Clifford, Regina v AB

HIS HONOUR: On 26 July 2003 Kane David Mason was shot and killed by a shotgun fired by AB in the presence of, amongst others, Michael Douglas Clifford. Moments before, Mr Darren Ward, who was a close friend of Mr Mason’s, suffered a shotgun wound to his head, also fired by AB in Clifford’s presence, although Clifford was not aware of this and AB was unaware that Mr Ward had been hit. AB and Clifford were charged with Mr Mason’s murder. Both offenders were also charged with maliciously causing grievous bodily harm to Mr Ward with intent to do grievous bodily harm to him. They came to trial at Port Macquarie on 15 November 2004.

When first arraigned, AB pleaded not guilty to Mr Mason’s murder but guilty of his manslaughter. This plea was not accepted by the Crown. He pleaded not guilty to the offence relating to Mr Ward. Shortly after the trial commenced, he was re-arraigned at the request of his counsel. He then pleaded guilty to the murder count, repeated his not guilty plea to the second count but guilty to the offence of maliciously inflicting grievous bodily harm. The Crown accepted this plea in discharge of this count. Clifford pleaded not guilty to both counts. The sentence proceedings in respect of AB were adjourned after the prosecution tendered certain material. Clifford’s trial continued and resulted in his acquittal by direction of the charge of murder and the primary charge in respect of Mr Ward and his conviction of manslaughter and maliciously causing grievous bodily harm to Mr Ward by the verdicts of the jury. The circumstances of the offences

Since the extent of the involvement of each of the offenders in the shootings is an important factor in sentencing them, it is necessary to deal with the evidence of the eyewitnesses in some detail. The crucial events were witnessed by Mr Mason’s four companions, and the offenders and a friend of theirs, CD (then aged fifteen years). The various accounts of what occurred given on the night of his death differ somewhat as a result (amongst other things) of intoxication, the natural differences between points of view, the completely unexpected and shocking turn of events and the inevitable reconstruction associated with recounting them at a later time.

Mr Mason, Mr Becker and Mr Ward had driven to Macksville for the weekend, arriving at about 8.30pm. They visited a couple of hotels, where they drank and met friends including Mr Monk. After closing time, they visited another friend and then, buying some more liquor, they made their way across town towards a party to which they had been invited. They were moderately to well affected by alcohol .

The briefest account is that of Mr Ward. He said that, as the five men were walking along Station Street, he saw Clifford – who was a stranger to them all – walk towards them from their left. Clifford passed to his left about five metres away, mumbling something that he did not understand but which did not seem to be directed at anybody in particular. However, he got the impression that Clifford was somewhat agitated by the time he reached Mr Mason, who was about five metres behind him. Clifford said something to Mr Mason which Mr Ward did not hear. Mr Ward said that he and Sam Monk, who was more or less walking in his company, turned around to see Clifford pushing Mr Mason, though whether this was the first push he did not see. Mr Mason pushed back. The force used was obviously trivial and it may be fairly inferred that, in part at least, this was due to the drunken state of the antagonists.

Mr Monk heard Clifford’s mumbles also and heard him say something like, “Where are youse going, what are you youse doing?” Someone (probably Mr Mason, I think) said, “We are going to a party, leave us alone.” Mr Monk said that, suddenly, there was a bit of push and shove between Mr Mason and Clifford and punches were thrown that failed to connect. At some point, he heard Mr Mason say, “I’ve had enough of this.” Mr Monk was not paying attention and obviously did not take the altercation seriously since he turned back to Mr Ward and said, “Come on, let’s go. Don’t worry about it.” By all accounts this was completely reasonable: the fight amounted to little more than the ineffectual flailings of two persons too drunk to do any harm. Mr Monk then thought he heard Clifford say, “Get’em, fuck’n get’em”. Mr Monk said the words were muffled and he put his certainty about the words used at about 60%. Having regard to the circumstances in which this occurred, I am not satisfied to the requisite degree that Clifford said the words recollected by this witness. Whether he said anything like them and, if so, what, is so speculative that no adverse inference can be safely drawn at least to the effect that it amounted to an exhortation to AB to assault anyone, let alone use the weapon. I would accept, however, that words were spoken and they were expressive of anger or aggression.

Mr Monk heard two bangs in quick succession. He turned around and saw Mr Ward had been shot. Mr Monk said that Mr Ward grabbed at his face and called out in pain and, as he looked up, Mr Monk could see him bleeding from all over his head.

It is not consistent with Mr Monk’s account that Mr Mason was ever on the ground or that he was being kicked. That he had not seen this, though he must have done so if it happened, is strongly supported by his suggestion to Mr Ward, in effect, that there was nothing to worry about and they should walk on.

Mr Becker was walking behind Mr Ward and Mr Monk. He was unsure where they were at the crucial time. He first saw Clifford coming up to them from the left, yelling loudly, “Where are youse guys going? You’re not going there. You have no idea.” On the face of it the assertions appear to respond to an unheard answer given to the question. Clifford was also mumbling something in a random sort of way. He thought that the whole group just ignored Clifford at this point. He said that Clifford was still yelling when he reached Mr Mason. The others continued to ignore him but Mr Mason said, “I’ve had enough of this”, took off his shirt and they started throwing ineffectual punches. Mr Becker had continued to walk, took what seems to be a few steps, stopped, turned back and said, “Let’s keep going, Kane.” He was, he thought, about ten metres away.

It was at this point that he heard Clifford call out, “Come and help us. Where are you? Come and help us.” Mr Becker turned around to see who he was calling to. He then saw AB about twenty metres away walking up from his right on the same side of the road as Clifford but from further up across an adjacent park. He was holding something. He went up to about two metres of Mr Mason and must have said something because Mr Mason turned around. He was then shot by AB. The two significant difficulties with accepting the accuracy of this description of events is that Mr Becker refers only to one shot, although there must have been two and there appears to have been (on his account) no opportunity for AB to have shot Mr Ward, as he undoubtedly did. Mr Monk also said that he saw no kicking and, implicitly, that Mr Mason did not fall to the ground. In this respect both Clifford and CD – to whose evidence I will shortly come – state that Mr Mason was on the ground at some point and he was kicked or, at least, a kick was aimed at him by Clifford. It is impossible to reconcile this evidence with that of Mr Mason’s companions but it is not necessary to do so. It is clear that none of the violence offered by Clifford caused anything more than trivial injury, if it caused any injury at all. It is also clear that Mr Mason was on his feet involved in some form of mutual physical confrontation with Clifford when AB came up to him.

It is obvious that significant elements of Clifford’s culpability are what he called on AB to do, what he knew or appreciated about AB having the gun, what he knew or appreciated about whether it was loaded, or might be, and what he thought AB might do, if he thought of it at all.

I should complete this account of what happened when the crucial shots were fired by briefly mentioning the evidence of CD, who was moderately intoxicated, a close friend of AB and an acquaintance of Clifford, who had been in their company earlier that night and had followed them from the house where they had all been drinking and smoking cannabis.

CD was something like thirty to forty metres (this is very uncertain) away from Clifford and Mr Mason, hiding behind a large bush which obscured his vision somewhat. His view of them was also obscured by Mr Mason’s three companions who were between him and them. He heard muffled voices but could not make out what was said. He saw punches and kicks being thrown but it was dark and he surmised that Clifford was involved. He said that one of the two men was on the ground being kicked. As I mentioned, Clifford also said that this occurred. Voices were muffled but CD heard someone say, “Come on, let’s get out of here, it’s not worth it”, probably, I should think, Mr Ward. He next heard Clifford call, “Help [AB], help.” He then saw AB emerge from bushes at the edge of the adjacent park onto the road. This was about thirty seconds after the fight commenced. CD said that AB was “raving and shouting”. He heard him swear at Mr Mason’s group and say, "I’ll kill youse all.” Although I think it is likely that these words or something like them were spoken, the fact that they were not heard or, at least, recalled by Mr Mason’s companions leaves me with a doubt about whether this is an actual recollection or a later reconstruction. Had they been heard by any of Mr Becker, Mr Monk or Mr Ward, it is most unlikely all would have forgotten it. It is, of course, possible (but I think unlikely) that, had this been said, they would not have heard it. I am left with a significant doubt about the reliability of this part of CD’s evidence.

According to CD, he then saw AB take probably two steps onto the road and then fire the shotgun. The gun was held in two hands, with the butt against his hip. This is obviously the shot that struck Mr Ward. CD took some steps out from behind the bush onto the roadway. The fight was continuing. AB continued to walk towards the fight, lowered the gun, pushed Clifford out of the way with his left hand and shot the deceased. The substantial problem with this description of events is that the time gap between shots is much greater than is consistent with all the other accounts. CD was shocked and very upset by what happened and fled the scene.

Having regard to the way in which the jury was directed on the elements of manslaughter, it follows from the conviction of Clifford that the jury found beyond reasonable doubt that, when he called on AB to help, he adverted to the possibility both that AB might have the shotgun and that it might be loaded. It seems to me that, despite my own substantial misgivings about the rightness of this conclusion, I must defer to the jury’s view and sentence on the basis that it is the correct conclusion. It also follows that I must sentence Clifford upon the basis that a reasonable and sober person in Clifford’s position would have realized that to call on someone like AB to help in a fight when he realized he might be armed with a loaded shotgun created an appreciable risk of serious injury. I should say that I have no misgivings at all about this conclusion.

It is obvious that instigating such a risk of serious danger which, in the event, resulted in someone’s death is a serious crime. At the same time, its gravity must also depend to a significant degree on the extent to which the offender actually realized the degree of danger and how serious the outcome might be. The introduction of an intoxicated person armed with a loaded shotgun into a physical altercation is obviously fraught with risk. However, I consider that no reasonable person would or could have expected that, in the circumstances here, AB would have intentionally fired the gun either to kill or cause serious injury to any person. An accidental or foolhardy firing of the gun certainly would have been within the range of danger foreseen by the reasonable person. But in my view what happened here would not have occurred to the mind of any reasonable person.

Perhaps more appropriately phrased, it could not be concluded beyond reasonable doubt that a reasonable person would think it a risk that AB might do what he did to Mr Mason. I have no doubt that Clifford did not for one moment advert to such a possibility. I am sure that it came as a complete shock as, indeed, it had to CD. Moreover, I have concluded that Clifford did not think at any time of the actual possibility that the shotgun might be discharged. As actual advertence to these possibilities is a matter that must be adverse to the offender and, therefore to be proved beyond reasonable doubt if it is to be used against him, it is not necessary that I should be positively satisfied that he had not such an advertence in order to sentence him on the basis that he did not. However, I think it appropriate to state my conclusions about this matter. It follows that I should sentence Clifford upon this view of the facts.

AB ran from the area up Station Street, discarding the gun and the ammunition. Shortly after this he was seen to jump a fence into the yard of one of the houses. CD followed AB up Station Street, stopping to retrieve the gun and ammunition. He later secreted the ammunition in the front yard of a house and ran to the area of the Macksville Railway Station where he jettisoned the shotgun in some long grass. (For obvious reasons CD was charged with being an accessory after the fact. He pleaded guilty and has been sentenced for this offence.) Clifford returned to his flat, giving those present a version of the events. He was obviously extremely upset at least at first. Later CD arrived back at the flat, as in due course did AB.

Mr Becker tried to render assistance to Mr Mason and also rang triple-O. It was obvious that Mr Mason had been killed. In due course, Mr Ward was examined and then transferred to Coffs Harbour District Hospital. He had suffered a number of wounds associated with shotgun pellets, some of which had lodged behind his eyes and one which had lodged in his brain. He was later transferred to the Sydney Eye Hospital for further examination and investigation.

At about 3am, AB spoke on the phone with an acquaintance, one Anthony Dunn. In that conversation, the offender told Dunn that Clifford had been in a fight with a fellow and that he, AB, had fired a warning shot and then had gone over and shot someone. I accept that AB was unaware at this stage that the first shot had actually struck Mr Ward. For that matter, Clifford was also unaware that Mr Ward had been injured. About thirty to forty minutes later the offender met Dunn and told him again that he had shot someone in the chest. Shortly after this AB left the flat with another young man who took him to a friend’s place in Port Macquarie, where he was allowed to stay.

At 12.40pm on Saturday 26 July 2003 police arrested Clifford and CD in relation to the death of Kane Mason. They were taken to Macksville Police Station. Clifford took part in an interview with the police. In the course of his interview Clifford said that he and AB drank half a bottle of whisky each over the course of the night, together with some beer. He said that both of them were “pretty drunk” by the time they left to go to Wall Street. He said he thought AB was about fifty metres away when the fight with Mr Mason started. He said that Mr Mason made some comment which provoked him and he went over and pushed him. I cannot determine whether or not this occurred. It does not matter. It could easily be that Mr Mason simply made some remark to one of his friends, which Clifford misinterpreted. Clifford’s account of the course of the fight differs in a number of respects from the others but it is not necessary to consider these inconsistencies.

Although Clifford identified AB as having shot Mr Mason, he omitted to mention that he called on him to help. He said he only heard one shot fired and knew nothing of the injury to Mr Ward. Clifford denied knowing that AB took the gun from the house. He said that he and AB ran away and that he had not seen AB since then. Aside from not telling the officers about calling on AB to help, denying that he knew AB had taken the gun with him from the house and asserting that he had not seen AB after he fled the scene, Clifford was reasonably candid. Significantly, however, he admitted involvement in a fight with the deceased and the fact that AB shot him.

I am satisfied from CD’s description of events that AB had fired two shots before the warning shot that injured Mr Ward. The first of these was to frighten one of the girls away, who had followed him and Clifford from the house. The second was a short time later, when AB and Clifford struggled for a short time over possession of the gun. I am also satisfied from the evidence of CD that AB and Clifford separated shortly after this, that AB was going on to Wall Street (or, at least, that was his initial intention when they separated) and that Clifford had decided not to accompany him, though I cannot conclude that he was on his way back to the unit when he came across Mr Mason.

At 7.55pm on 26 July 2003 AB was arrested at the flat in Port Macquarie. He was taken to Port Macquarie Police Station where he took part in an electronically recorded interview. He said that after the first shot to frighten one of the girls off, he had walked on to go to Wall Street. He had the gun and the ammunition. AB told the police that he had shot the deceased. He said they weren’t going there, but then his mate ended up over there with four of them and they were yelling out and “he was yelling out me name”. He fired one shot which must have hit one man in the side of the head (although he did not realize it at the time) and the other one did not stop so he went over and shot him and took off. He said Clifford “ended up over there” because he was “a bit of a bluer, always wanting a fight”.

AB said he was in the park near the pond (some distance from Clifford) and that’s when they “must have started into him” and he was yelling out and it got “worse and worse” and then he took the first shot, and pulled Clifford out of the way and shot the other person. He told the police that he had reloaded the gun when Clifford was getting bashed. AB said, “Mick was yelling out, ‘[AB] get over here’ and I wasn’t going to see my friend get bashed”. He went over and pulled Clifford out and “that’s when the other fellow was into him” and he shot him (using to the police an insulting term). He told the police that he had pointed the gun at the man’s chest. He told the police he had had the gun for about six months and that he had taken it to Clifford’s unit because Clifford was on about “everyone going to kill him”. He owed Clifford money for a car and he gave him the gun in settlement of that debt. He said that they took the gun from the house because of “a fella in Wall Street”. He explained that Clifford had punched a (named) person and, as a result, there were a few “big fellas” saying they were going “to kill us and do this and that and that they wanted to see and take us all on. That’s all.” He said they took the gun for safety, as the men at Wall Street were bigger and older, but it was just to scare them. He said that he could not remember who took the gun from the flat but it was probably him, with Clifford inducing him into going over there to back him up. He said they had left the flat to go and “sort out” one of the men at the Wall Street premises. AB said that, after the shooting, when he got back to the unit he, Clifford, CD and the girls talked “a bit” about what happened. He had showered and then left. He told the police that the wet clothing found at the flat during the search warrant was his and he had washed it to get rid of the DNA.

Considering the record of interview and the evidence as a whole, I am quite satisfied that the gun was taken from the house, probably by AB, that Clifford was aware of it, that they had taken it in order to frighten other persons and that they intended to use it to damage a motor vehicle.

Proximity tests conducted in relation to the firearm suggest that the muzzle of the firearm was some .5 to 1 metre from the deceased at the time of discharge.

I am satisfied that AB’s account of what happened was, broadly speaking, truthful. I do not think that he deliberately withheld or misstated any facts although it was also inconsistent in some respects with other accounts.

The state of the evidence does not permit me to determine whether the idea to go to Wall Street with the gun was originally Clifford’s or AB’s, but it does not matter. What is important, as it seems to me, is that both of them started out on an enterprise that involved taking a shotgun into the streets of Macksville and ultimately using (though only against property) a shotgun. There was a deal of evidence about the conduct of AB and Clifford in the hours preceding their departure from the unit with the shotgun. I do not intend to analyse that evidence here. Much of it was confused and incomplete. It is sufficient to state my conclusion that both offenders were significantly intoxicated with alcohol and, probably, cannabis at the time. In combination with their level of problematical psychological functioning, this rendered their possession of a loaded shotgun even more fraught with danger.

I accept that the fight between Mr Mason and Clifford was an unplanned happenstance, essentially brought about by Clifford’s aggressive state of mind made worse by intoxication. When it started, Clifford was not in AB’s company and he had no idea of involving him. The fight was a spontaneous, unplanned and unforeseen act of relatively minor violence and – as I have said – when he called on AB to help, Clifford never thought that AB would attempt to fire the gun at anyone.

Objectively, the offences committed by the offenders are very grave, AB’s offence in particular. I have mentioned that both AB and Clifford were intoxicated. This situation was exacerbated by other psychological features to which I will shortly refer in the context of dealing with their subjective circumstances. However, it should be borne in mind that the particular mental capacity and frame of mind of an offender at the time of the offence, reflecting on his or her intentions, power of self-control and appreciation of the situation (especially of its dangers) are all part of what happened and why it happened as it did. In other words, they form part of the objective circumstances of the offence and are as much to be considered in the assessment of culpability as such things as (say) motive or planning. AB’s subjective circumstances

AB was the subject of a number of reports from Dr Jeremy O’Dea, a forensic psychiatrist, Dr Yolande Lucire (for a limited purpose), also a forensic psychiatrist, Mr Greg Fathers, a forensic psychologist, Mr Jeff Otto, Juvenile Justice officer and Ms Karen Clarke, a psychologist with the Violent Offender Program with the Department of Juvenile Justice.

So far as AB’s childhood and family situation is concerned, most reports contain reasonably consistent accounts in more or less detail. I do not propose to analyse each report. The information they contain comes from various sources including, but by no means confined to, the offender. I am satisfied that the matters which I set out are sufficiently established to be relied on for the purposes of sentence. I do not intend to refer to all the details which I consider to be relevant, since they involve allegations which, although they should be regarded as part of AB’s history for present purposes, involve conduct (by others) of a kind that it would be unfair to make explicit, having regard to the way in which the evidence was presented. For future reference, if necessary, I should state that I regard as reliable the information disclosed in the reports from the Department of Juvenile Justice. The information in these reports is not to be further disclosed or published without order of the Court.

AB is the second child of a couple with an older daughter aged eighteen years at the time. He is now just over nineteen years old and was thus about two months over his seventeenth birthday at the date of the offence.

AB’s father has three children from a former relationship and his mother five children, all significantly older than AB and his sister. All members of the family, including AB, report to being Aboriginal, (by descent from their maternal grandmother) although they do not identify themselves in this way. AB’s father helped his mother raise her children, who resided with them and the new family. One of his half brothers (DE), who has undertaken very much an elder brother’s responsibility for a younger sibling, attempted to help him during his teenage vicissitudes and has continued supportive contact with him since the offence. He gave evidence for the offender at the sentence hearing. I thought he was a careful, candid and reliable witness. He verified the information that he supplied to the Juvenile Justice officers. He was not cross-examined to suggest that what he had disclosed was either untrue or unreliable.

It is always necessary to bear in mind the practical difficulties facing the prosecution in sentence proceedings when evidence of this kind is presented. Alternative versions of events are not easy to obtain. Too much, therefore, should not be made of a relatively non-adversarial approach. However, it is not without forensic significance. In this case, the approach of the Crown prosecutor was that it was appropriate that I should act on DE’s evidence and, for that matter, on the tendered reports to the extent that I considered them reliable. This was not only fair but, if I may say so, completely appropriate.

The relationship between AB’s parents broke down permanently in mid-2001 after many short separations. One of the major reasons for this break-up was continuous domestic violence, some extreme, and alcohol and other drug abuse. AB’s mother has indicated that she is in receipt of a disability pension due to injuries she suffered during her marriage.

AB was brought up in a very small rural community with a population of less than a hundred. During AB’s formative years, his father would take him with him when he went working in the bush, the two of them returning home for weekends before going out again the following week. AB’s father was a violent and in some respects disturbed individual. He was frequently violent towards AB’s mother in the presence of the children. His father used firearms often, which were kept under his bed, when making demands. Sometimes violence was instigated by AB’s mother, on one occasion attacking his father with a knife. There were not infrequent occasions of cruel violence towards animals, which it is unnecessary to describe. On one occasion, in the presence of the children (AB then being seven) the father shot the family dog for having taken a fowl, this despite the dog having some time earlier saved some of the children from drowning.

AB and the other children were frequently subjected to physical and emotional violence at the hands of his father. AB started to resist his father from perhaps as young as ten years. This no doubt increased the occurrence and intensity of their violent confrontations. When each of the children was around sixteen, their father required them to leave home, one of them at the point of a gun. Because of his mother’s concerns about AB’s drug consumption, he was sent to live with his uncle for six months at the age of ten. During this time there was a distinct improvement in his behaviour and he started responding positively at school.

When AB was about eleven years’ old, one of his older sisters telephoned the Department of Community Services to report her concerns about AB being a child at risk. She says that DOCS was not interested. There was no involvement by DOCS with this family.

AB left home at about the age of fourteen (the evidence about why he did so is unclear) moving in with a cousin, with whom and others he drank and took drugs daily. His life was chaotic in almost every respect, amounting to little more than finding enough alcohol and cannabis and, occasionally, amphetamines which he used until he “passed out”. He did not care about his personal hygiene or eating regularly. It appears that this accommodation was, at all events, somewhat casual. At the time of the offence, AB was mostly living with his girlfriend, then in her mid-twenties and pregnant at the time with their daughter, now aged twenty months. This relationship was tumultuous though it has now settled somewhat. Obviously, its future is problematical.

AB’s mother reported the emergence of temper tantrums at the age of ten. In early adolescence AB began to emulate his father’s violence. When his mother attempted to discipline him for this, his father would assault her. Sometimes he paid AB as much as $50 for his inappropriate behaviour. When AB was twelve his father encouraged him to break into a shop and, as a reward, he was given a motorbike.

AB’s mother reported that she had significant alcohol problems in the past but does not now drink. She was a cannabis user for many years. His father has also got significant alcohol and other drug abuse problems. He involved the children in cultivating marijuana. From the age of eleven, AB was required by his father to drive a significant distance to Macksville to take him to a hotel for drinking episodes. AB commenced cannabis use from the age of seven or eight, certainly to his father’s knowledge and he used his father’s stored marijuana, gradually increasing his usage to the age of twelve, when it was at its peak. He says that at this age he was intoxicated all day everyday. He started to drink alcohol when he was ten and was seriously abusing by the age of twelve and his drinking by age sixteen was “really heavy”. He started to suffer blackouts frequently. At the age of eleven AB frequently used hallucinatory mushrooms, ceasing when he was seventeen. From the age of fourteen AB started to experiment with amphetamines and reported using it monthly until he was seventeen. His father supplied him on at least one occasion. He occasionally used LSD when he was fifteen and sixteen years’ old.

AB had employment as a fence post cutter from the age of twelve, a common activity in rural communities. He worked for his grandparents from time to time and has undertaken other short-term and seasonal employment.

AB left school in the first term of year 8, when he was fourteen, having truanted for some of his primary school and most of his high school years. His parents seemed to be unconcerned about this. He had been suspended from attendance on a number of occasions for violence and smoking cannabis. When he left school he was semi-literate.

It is obvious that any child with a family and personal history like that of AB will be likely to exhibit significantly disturbed behaviour. His judgment and capacity for self-control are likely to be adversely affected and these problems will be substantially aggravated by intoxication, whether from drugs or alcohol.

Psychological testing demonstrated cognitive impairment to a greater or lesser extent against almost every measure and suggestive of some frontal lobe damage, related probably to chronic intoxication to some degree since early childhood. In lay terms, one can think of the way in which such a child would be likely to learn the lessons of growing up, not only in a violent dysfunctional home with no other, or next to no other, role models than the parents I have described but also whilst being intoxicated from drugs or alcohol for much of the time. This was a situation for which, of course, AB was not responsible. AB’s state of mind at the time of the offences

I am satisfied that it is likely that, at the time of the offence, AB acted impulsively and angrily. I conclude that although he had deliberately loaded the gun in order to use it in some way, he intended his first shot to be a warning shot and, although his second shot was intended to kill, that was a momentary impulse at a time when AB was far from thinking clearly about what he was doing. It was an act of drunken, confused rage. These conclusions, anyway inferred from all of the evidence, are supported by the results of the psychological testing he has undergone. AB’s background and psychological state by no means excuse the wickedness of what he did. But it bears a completely different complexion to a considered act or, indeed, to the impulsive act of a mature and mentally sound adult. AB was neither mature nor an adult, nor even as nearly adult as his calendar age indicated. The combination of his immaturity, psychological state and intoxication with a loaded firearm made him a catastrophe waiting to happen. Progress since the offences

AB’s own reaction to what happened appeared at first to be defensive and self-justificatory with a marked denial of culpable responsibility. Psychologically speaking, this response is in part explained and described by early reports of Dr Lucire. His ability to articulate, explain and understand his feelings about what happened has been handicapped by the psychological presentation which I have described. With all of the inevitable problems that incarceration in disciplinary institutions brings, AB has nevertheless manifested significant improvement in functioning, in his attitudes, his communication with others and his responses to staff and other inmates.

Since his arrest, AB has been in the custody and under the care of the Department of Juvenile Justice. It was obvious that he was a very troubled and disturbed youth and he was moved to a number of centres as his condition was understood and, after a time, improved. He has been able to participate in a school program, undertaking Year 10 studies and has responded well to aggression replacement training and relaxation groups. His high level of positive behaviour enabled him to re-reclassified to the Strickland Unit at the Frank Baxter Detention Centre, which is a less secure facility, where he has been since October 2004. Despite his evident improvement, he is still significantly depressed, associated with typical symptoms. He has needed anti-depressant medication which is continuing. His relationship with his girlfriend is, not surprisingly, strained and they are waiting for the outcome of this proceeding to decide what they should do about it whilst he is in custody.

AB reports that his recollection of what happened on the night of the offences is confused and patchy. I think that he has always been minded to minimise his awareness of what he was doing but I accept that some of his problem with recollection results from his intoxicated state of mind at the time together with the speed and shock of the events. His plea of guilty to the charge of murder as soon as his psychiatric condition was clarified is potent evidence, to my mind, of an acceptance of his responsibility for Mr Mason’s death; the same should be said of his plea in respect of the charge concerning Mr Ward. He has expressed remorse for his acts. The evidence tendered in the sentence proceedings has persuaded me that this is genuine. He has some way to go but the process commenced (from the point of view of the administration of justice) from his pleas of guilty. This is also significant as a part of the offender’s rehabilitation.

The offender is still relatively young. He will not go to an adult prison until he is twenty-one. Much that is positive has been done and much can still be done. The public interest in his rehabilitation is considerable, not only in terms of common humanity but also with the object of releasing him into the community as a person who is unlikely to offend, or at least not seriously, again. After he has served the non-parole period, it will be for the Parole Board to determine whether he can safely be released before the expiration of the balance of his term of imprisonment. I think that the prospects of rehabilitation are good and the sentence that I impose reflects this judgment. Clifford’s subjective circumstances

Two psychiatric reports were tendered on Clifford’s behalf. Both contain an account of his personal history. The Crown prosecutor has fairly indicated that information available to him suggests that this history is not without foundation. He was aged nineteen and a half at the date of the crime. His family circumstances were chaotic and marked by violence and physical abuse. His parents separated when he was two and Clifford lived with his mother. He says that she has had numerous boyfriends during his childhood all of whom were physically abusive towards him and his mother. He has an older sister and two much younger half-sisters.

Clifford said that his mother used alcohol and cannabis episodically for most of her life and that much of the violence in the home was associated with alcohol abuse. He hated his mother’s boyfriends and was often beaten by them because he was trying to protect his mother. Between the ages of seven and eight years he was placed in a foster home for a few months because, he thinks, his mother was in gaol. He cannot give any further details of this.

Adding to the chaos of Clifford’s childhood were the continuous moves made by his mother. He attended ten different schools where, unsurprisingly, he was not a good student. He is essentially illiterate and has difficulty with even very simple arithmetic. He was an unpopular child at school, where he was often teased and bullied. He reacted with violence on occasions and was often involved in fights. He frequently truanted.

After Clifford left school at year 9 he had short-term employment working on a farm, in a demolition business and as a concreter. His last job was for three months as a security guard at a crushing plant. He had been unemployed for two months as at the date of the offence.

Clifford has used cannabis since the age of fifteen years (and I suspect earlier) and amphetamines and “magic” mushrooms since sixteen. He is addicted to cannabis. In July 2002 he was admitted as an involuntary mentally ill patient to the mental health ward at Coffs Harbour Hospital. I think this occurred at the instance of his mother. The history in the hospital records discloses auditory hallucinations, paranoia and suicide threats. He was very fearful and said he was “sick” of hearing voices and people looking at him. He was angry and aggressive. He had been increasingly unwell for six to seven weeks. The admitting doctor concluded that he was undergoing an amphetamine-induced psychosis with a secondary diagnosis of substance abuse disorder. He settled rapidly on anti-psychotic medication and was discharged three days later. He continued to take the medication for some weeks but continued to have auditory hallucinations and other ESP beliefs (I take it falling short of delusions). Following his reception in prison, Clifford exhibited ongoing psychiatric symptoms. In August 2003, after a psychiatric assessment, Dr Greenberg of the Corrections Health Service concluded that Clifford had been and was then suffering from a mental disorder for which treatment is available but he was not mentally ill. He had not suffered a developmental disability, though there was evidence of low average or possibly borderline intelligence.

Continuing symptoms led to further examinations by Justice Health whilst Clifford has been in custody, culminating in a report of 19 September 2004 by Dr Greenberg. Clifford had by then been diagnosed as suffering from a functional major mental illness, probably that of schizophrenic illness or psychotic disorder not otherwise specified. Dr Greenberg concluded that Clifford probably had residual psychotic symptoms such as auditory hallucinations and some paranoid ideation following his admission to Coffs Harbour Hospital in July 2002. Also of considerable present relevance is Dr Greenberg’s opinion that Clifford’s mental illness probably played an indirect role in his mental state during the time period surrounding the offences. He considered he probably had residual paranoid ideation and low-grade auditory hallucinations at this time. He also had chronic low-grade depression, called a Dysthymic Disorder. Clifford’s state of mind at the time of the offences

Although I have discussed the issue of Clifford’s mental state in the context of his subjective circumstances, this matter forms part of the objective circumstances of the case. It gives significant support to the conclusion that seems reasonable at all events that, at the time of the altercation resulting in Mr Mason’s death, Clifford’s judgment and self-control were significantly adversely affected by both his mental state and the effects of intoxication which must have also affected his capacity to think clearly and make sensible judgments about what was happening or likely to happen. As I have mentioned already, it forms part (as it were) of what was brought by the offender into the situation and explains, in part, how it came about, and his state of mind at the time, that he called on AB to help him.

The immediate reaction of Clifford to the shooting was one of shock. I do not doubt that he was very upset and frightened at the course of events. I do not think that he felt responsible for what had occurred and, indeed, he may still be having difficulty in doing so. The relationship between objective reality and the subjective appreciation of what occurred is, in some cases, not simple, and for some persons more difficult than for others. From Clifford’s point of view this is one of those cases. At the same time, I conclude that he is now indeed remorseful about his involvement in Mr Mason’s tragic death and very sorry that it occurred – quite apart from the punishment to which he has been subjected and which he is yet to receive. I accept that Clifford’s prospects of rehabilitation are good. There are signs that this has already commenced. This factor should be given significant weight in assessing the sentence which should be imposed.

I note that the offender was on a bond for common assault at the date of these offences. However, in the circumstances, I have not given this much weight. Other general factors

So far as aggravating circumstances are concerned, the offenders had set out with a gun and ammunition upon a threatening excursion fraught with danger, albeit there is no suggestion of any intention other than to shoot up a motor vehicle. The crimes which were committed were impulsive and unplanned. I could not and do not find that the offenders ever thought the gun might be used actually to injure someone. But it is clear that some use of the gun was contemplated, if for no other reason than that ammunition was taken. Who actually carried the ammunition from the house I cannot say. They were in company. They were a public danger. The offences were committed without regard to public safety.

Because of some of the evidence and media reports I feel bound to say that I am quite sure that the fact of Mr Mason’s aboriginality played no part whatever in the initiation of the fight or its tragic consequences.

Both offenders have been in custody since the date of their arrest. Relevant sentencing principles

I have said a great deal about the offenders. That is not surprising, since they were on trial and I am bound by law to explain the reasons for the sentences that I have a duty to impose. But the tragic events that give rise to these proceedings have had catastrophic consequences for others, including, of course, the family and friends of Mr Mason and Mr Ward. Both Mr Ward and Mr Mason’s mother have made Victim Impact Statements which were read to the Court by the Crown prosecutor.

In her statement Mrs Mason expresses on her behalf and that of her family the justifiable anger and grief they feel at Kane’s senseless death. It is apparent that this fine and talented young man, with all the hopes of a productive and happy life ahead of him, was a wonderful boon not only to his family and friends but also to the wider community, with a great contribution still to make. Their loss is also our loss. These proceedings cannot in the smallest way compensate them or the community for it, nor can it make right what was so dreadfully wrong, or heal the wounds his death has left, let alone assuage the deep personal agony which his family has suffered and will continue to suffer as the years go by. It is appropriate that Kane Mason’s life should be honoured and his untimely death grieved for and that, to the small extent that this can be done here in the Court, it should be done here.

It is important to understand, however, that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them to be weighed by the Court in the scales of justice. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim's death is the cause of pain or grief to others, however intensely felt or more grave because of the loss of that life, with all its potential for good, to the community. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence for murder because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was honourable, loved and surrounded by friends and family. If this were not so, counsel for the killer might rationally submit that as the victim was of the former character, the crime was less grave, and the sentence should be more lenient, and the Crown Prosecutor, by pointing to a grieving family, angry onlookers, or an indignant media, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.

Perhaps more difficult to accept but also crucial to the due administration of justice is the notion that the value that the law ascribes to the life which has been taken arises from and reflects that same sense of reason and humanity which values the lives of the persons who come before the courts for punishment. The punishment imposed by the courts is measured not by the standards of the criminal but by our standards as a civilised and humane community, not so much by respect for the offender but by our self-respect.

Thus, in dealing with offenders, the court must remain objective and dispassionate. Public justice requires all the relevant facts to be carefully weighed. They include much more than the end result of the crime itself but also the events which gave rise to it, the intentions of the offender, his or her personal characteristics and attributes, and the various explanations for what he or she did. The public interest must be reflected in the outcome. These considerations often will be in tension if not in conflict.

The High Court of Australia said in Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ (at 476) – “…sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions….”

Objectively, all cases of murder are very serious. Yet, even in this class of crime, circumstances can differ widely. It is obvious that, at the most serious end of the scale, are cold-blooded murders committed by mature adults with planning and deliberation for the motive of financial or other advantage or – perhaps even more dangerous – for pleasure or some other personal satisfaction. Towards the other end of the scale are murders committed by offenders such as AB in the circumstances which occurred here. Any just system of criminal sentencing must reflect this difference in the punishment that is meted out.

It appears from Mr Ward’s victim impact statement (which I may and do take into account) that he had lost the sight of his right eye for approximately six months, had teeth shot out of his mouth and has shotgun pellets in his neck, throat, mouth, eye socket, skull and brain. Significantly, some of these, especially those in the eye socket and brain, remain. There is a significant possibility of the onset of epilepsy arising from the lead pellet in his brain. The pain and distress he has suffered must have been extensive and will continue though to a lesser degree. The severity and longevity of injuries caused to a victim is always material to the sentence. Those injuries form part of the charge of which the offenders have been convicted since they collectively constitute the grievous bodily harm inflicted on him and, strictly speaking, cannot be regarded as aggravating the offence. However, it is obvious that the injuries are relevant to the gravity of the offence and are therefore to be taken into account in assessing its objective seriousness. The significance of the offenders’ ages

In each of the present cases it is obvious that the relative youth of the offender is a material factor on the question of sentence. In R v AO (2003) 138 A Crim R 189, Shaw J summarised the law on this point. Although Shaw J dissented on the outcome of the appeal, his Honour’s summary (with one exception) was not controversial and I respectfully adopt it. Shaw J said (138 A Crim R at 198-199) – “ Background principles: sentencing young offenders Section 3 of the Children (Criminal Proceedings) Act 1987 (NSW) affirmatively states that a person under the age of 18 years is a child. However, s 5 of the Act declares that it is “ conclusively presumed” that children over the age of 10 years must bear responsibility for actions classified as criminal. The principle that balances these two provisions is identified in s 6(b) of he Act, which relevantly states: Principles relating to the exercise of criminal jurisdiction A court, in exercising criminal jurisdiction with respect of children, shall have regard to the following principles: … (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and emotional immaturity, require guidance and assistance, The regime for sentencing a child is therefore considerably different to sentencing an adult. [I would respectfully point out that although this observation is correct, the statutory provision quoted does no more than state the common law: Wilkie (unreported, NSWCCA 2 July 1982), Tran [1999] NSWCCA 109, P (1991) 53 A Crim R 112, Hearne (2001) 124 A Crim R 451 at 457-8 citing with approval the reasons for sentence of Wood CJ at CL.] In sentencing any offender, once the minimum period of actual incarceration necessary to reflect the proportionate punishment of an offender has been determined (see Power v The Queen (1974) 131 CLR 623), in some ‘special circumstances’ the assessment that an offender has better than usual prospects of rehabilitation is reflected in a shorter period of incarceration than would otherwise be appropriate to allow a longer than usual period of supervision whilst reunited with the community from which they have been excluded ( R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525). General deterrence is one factor amongst many to be considered in setting that required minimum period of incarceration ( R v Moffit (1990) 20 NSWLR 114; 49 A Crim R 20. However, it is generally accepted that in sentencing young offenders considerations of general deterrence are not as significant as in the sentencing of an adult. This reflects an accepted norm that the community interest reflected in the sentencing of a child is not advanced by using him or her as an example but rather in seizing the opportunity to direct the child into rehabilitative efforts: R v Smith [1963] Crim LR 70 ; Bellavia (unreported, Hunt J, 16 August 1980); R v P per Matthews J. Considerations of deterrence are not displaced by a consideration of the rehabilitation of a child: Broad (unreported, Street CJ. 30 March 1984). In some cases this will override all other considerations: R v AEM [2002] NSWCCA 58. A proper consideration of the appropriate rehabilitative efforts for the child may even result in an assessment that a long period of time in a detention centre is required: see C, S and T (unreported, NSWCCA, 12 October 1989) per Gleeson CJ at [14]. As a point of principle, an assessment that the prospects of rehabilitation are poor should not preclude a consideration of those relevant circumstances that proceed on the basis that children are to be sentenced according to a different regime to adult offenders. This is a statutory direction to the courts as well an ethical, social and intellectual duty for the courts…”

The courts have always taken into account the relative youth and immaturity of an offender. The reasons are obvious. Quite apart from the public interest in rehabilitation there may well be, and usually will be, a significant difference in culpability between an offender who is of a fully mature age and an offender who has not reached such an age: Hearne 124 A Crim R at 438, citing Allam (unreported) NSWCCA, 13 April 1993, WKR (1993) 32 NSWLR 447; 71 A Crim R 95. Of course, this is a matter of degree but the weight to be given to the element of youth does not vary depending on the seriousness of the offence, although “that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones”: Hearne 124 A Crim R at 458 [23-24]. The Court in Hearne also noted (ibid at [26]) that a “similar approach of imposing a sentence less than otherwise appropriate is taken where an offender, though not legally insane, suffers from significant intellectual disability…[taking into account] the extent and significance of the disability”. The Court observed – “It is, at least in part, for a similar reason that the courts have taken the view that, the younger the offender, the greater the weight to be afforded to the element of youth.”

I would add the consideration here that the psychological state of the offenders, especially of Clifford, makes it inappropriate for them to be used as an example for the purposes of general deterrence.

This tragic case bears all the hallmarks of immaturity: thoughtlessness, recklessness and foolish, impulsive bravado. Though both offenders were well aware that taking a loaded shotgun out into the streets of Macksville, intending to damage property and perhaps threaten those associated with it, was criminal behaviour, I do not think that they really appreciated the dangerousness of what they were doing and I accept that they never thought that anyone was in actual danger of injury, let alone death. Their psychological states, intellectual and emotional immaturity and intoxication contributed to this lack of reflection on potential consequences. General conclusions

So far as AB is concerned, his crimes are far more serious, objectively speaking, than Clifford’s: he is guilty of murder, not manslaughter and he intended, though impulsively, to kill Mr Mason whilst Clifford not only did not have this intent but did not even contemplate this possibility; AB knew the gun was loaded but Clifford did not. Subjectively, AB is significantly younger than Clifford and his personal history perhaps more damaging to the development of stable emotions and self-control amongst other elements of personal maturity (though Clifford’s mental disorder is probably more deep-seated). Again, this does not excuse AB’s crimes, though in part it explains them. Even taking this factor into account, a significant degree of personal culpability remains deserving of substantial punishment, involving as it does the intentional killing of Mr Mason and inflicting substantial, long-term injury on Mr Ward.

When the altercation with Mr Mason and his friends was instigated by the angry self-indulgence of Clifford, his calling of AB to the scene was not – as I have already made clear – associated with any thoughts that AB might use the gun to injure anyone. This does not, by any means absolve him from responsibility for the results of his foolish aggression and his call for help with the advertence – confused, thoughtless and momentary as I hold it to be – that AB had the gun which might have been loaded and used, nor from the criminality as he well understood it of being an active participant in taking a loaded shotgun into the streets. The point that I am presently making was that this conduct was influenced and is in some part explained by Clifford’s relative immaturity and mental state. This, of course, is relevant to assessing the objective seriousness of his offences. It is, also, for the reasons I have already given, relevant to the measure and form of punishment that should be imposed on him.

In AB’s case, his plea of guilty should attract a utilitarian discount in accordance with R v Thomson & Houlton (2000) 49 NSWLR 383, 115A A Crim R 104. Having come very much at the last moment, but effectively before the trial commenced, he should receive at least a ten per cent discount on the sentence I would otherwise impose. However, I think that some greater allowance should be given because of the additional circumstance he was prepared to plead guilty to manslaughter and the reason for his not guilty plea to murder in the first place was the medical evidence then available to his advisers. When the Crown prosecutor provided the defence with the reports he had been given, the complexion of the case changed significantly as did (I apprehend) the advice given to the offender. The offender had indicated through his counsel to the Crown that the only real issue in the case was the possible application of s23A of the Crimes Act 1900. Taking the youth of the offender into account and the delay in the advice given to him about his plea, I have allowed a utilitarian discount in the order of fifteen per cent.

By virtue of 19(1) of the Children (Criminal Proceedings) Act 1987 the Court is empowered to make an order directing that the whole or any part of the term of the sentence of imprisonment of a person in the position of AB be served in a detention centre. I do not doubt that special circumstances require a departure from the statutory ratio between the formula relating to the non-parole period and the additional term. Essentially, these circumstances comprise his youth, his severely compromised upbringing, the fact that he will reach maturity whilst in a custodial institution and his need for supervision for a lengthy period upon his release.

So far as Clifford is concerned, special circumstances also exist that make it appropriate to vary the statutory ratio between the non-parole period and the additional term. These include his background, youth and psychological condition. It is clear that he will need an extensive period of supervision after his release.

Counsel have submitted that the crime committed on Mr Ward was so intimately connected with Mr Mason’s murder that the two offences should be regarded as a single criminal episode and thus the sentences should be concurrent. This, of course, is a matter of fact and degree, which in AB’s case I have not found easy to decide. He fired the gun twice within seconds in the course of involving himself in Clifford’s fight at Clifford’s call and the offence of murder (both as to result and the accompanying intention) is overwhelmingly the more serious crime. Although two very different and very serious injuries were caused, I have decided on balance that the sentences should be concurrently served. Clifford’s involvement in these offences is very different to AB’s and can only, I think, be properly considered as a single episode. The result in his case, that the sentences should be concurrent, strengthens my conclusion that the same result should apply to AB.

It is necessary to refer to the provisions of the Crimes (Sentencing Procedure) Act 1999. My account of the relevant factors in this case is calculated to refer to the matters to which the Act makes specific reference. I do not think it necessary to depart from or add to my discussion of the relevant objective and subjective features of the case by listing them against those provisions. Since I have determined that AB should have the benefit of a utilitarian discount, the “standard non-parole period” of twenty years in respect of the charge of murder does not apply except as one of the factors to be considered in sentencing the offender. This I have done. At all events, the circumstances of this case – both subjective and objective – will require a non-parole period sentence that in the result is significantly shorter than the standard period. In accordance with R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, I have had regard to that term together with all the other material factors in the case.

I have referred in another judgment ( R v Pellew [2004] NSWCCA 434) to the fundamental conceptual problem of giving the notion “an offence in the middle of the range of objective seriousness” any meaningful content. I should candidly acknowledge that I have been unable to imagine what the present offence might have looked like had it been a case fitting that description. Moreover, this is a difficulty that, I think, is fundamental in the sense that a judge faced with any murder sentence would necessarily have the same problem. It follows that, whatever the right approach is, it cannot involve a process of this kind. It is, perhaps, worth nothing that the term “standard non-parole period” is not one in ordinary parlance. It is a statutory term with a precise and technical meaning (of some kind) considerably removed from the meaning it might have if it were not for the statutory definition. It is safe to say, I think, that it would convey no sensible content to any student of the criminal law apart from the statutory definition and, even then, its meaning is obscure. Of course, the legislation must be respected and obeyed and I do not suggest otherwise. But it must be rightly understood. Since it is so easy to slide from that very particular meaning to the sense it might have in the usual course of discourse in the criminal law, I thought it desirable to indicate its peculiar character by placing it in inverted commas. The sentences

The following sentences reflect the utilitarian discount of fifteen percent already mentioned. I have rounded down the arithmetical result somewhat. They also reflect my findings as to the existence of special circumstances.

AB is sentenced as follows – (i) In respect of the infliction of grievous bodily harm on Mr Ward (maximum seven years) the term of the sentence is five years and six months to commence on 26 July 2003. I set a non-parole period of two years and ten months to expire on 25 May 2006; the balance of the term is two years and eight months, expiring on 25 January 2009. (ii) In respect of the crime of murdering Mr Mason, the term is fourteen years to commence on 26 July 2003; I set a non-parole period of nine years and six months expiring 25 January 2013; the balance of the term is four years and six months expiring on 25 July 2017. (iii) Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987, the sentences are directed to be served in a juvenile detention centre until the offender reaches the age of 21 years.

Clifford is sentenced as follows – (i) In respect of the infliction of grievous bodily harm on Mr Ward the term of the sentence is three years to commence on 26 July 2003; I set a non-parole period of one year and eight months to expire on 25 March 2005; the balance of the term is one year and four months, expiring on 25 July 2006. (ii) In respect of the offence of manslaughter of Mr Mason the term of the sentence is six years commencing 26 July 2003, I set a non-parole period of three years, expiring 25 July 2006; the balance of the term of three years expires on 25 July 2009.