Citation: R v Paterson; R v O'Brien [2020] NSWSC 221
Court: Supreme Court of New South Wales
Date: 12 March 2020
Judge(s): Rothman J
Background
Two co-offenders, Ryan Vincent Paterson and Benjamin Keith O'Brien, each pleaded guilty to the manslaughter of Jayden Mason at New Lambton Heights on 25 June 2017. Both were convicted on the basis of joint criminal enterprise. The offence arose from an encounter outside the Wyong Leagues Club late at night, following an evening of drinking by both offenders and the deceased.
The deceased had been ejected from the Club after becoming heavily intoxicated and disruptive. Outside, he encountered the group that included the two offenders, who had arrived by courtesy bus. An exchange of words escalated into a pursuit. The deceased ran approximately 165 metres down the road, visibly frightened, attempting to stop passing vehicles to escape.
When O'Brien caught the deceased, he delivered a punch described as "not a big hit" that caused the deceased to buckle. A third person pulled O'Brien away. Paterson then arrived and kicked the deceased in the head with force likened to kicking a soccer ball, kicked him a second time, and stomped on his head with both feet while the deceased was lying unconscious on the ground.
Legal Issues
- What sentence was appropriate for each offender, given their respective roles in the joint criminal enterprise?
- How should the court weigh the objective seriousness of the offence against each offender's subjective circumstances, including intoxication, background, remorse, and prospects of rehabilitation?
- What discount was warranted for each offender's early plea of guilty?
- Whether special circumstances existed for O'Brien justifying a departure from the standard ratio of non-parole period to head sentence?
Decision
Rothman J identified a clear and significant distinction between the two offenders' roles. While both participated in the joint criminal enterprise, O'Brien's punch was described as the lesser act in a confrontation that had already been defused to some extent by a bystander. Paterson's conduct, by contrast, consisted of repeated violent acts to the head of an unconscious man lying on the ground, including stomping with both feet. The court found Paterson's actions to be of a qualitatively different and more serious character.
Paterson had a significant prior criminal history, including offences involving violence. His subjective circumstances offered limited mitigation. The court applied a 25% discount on the pre-discount head sentence of 22 years, reflecting the utilitarian value of his early guilty plea in the Local Court, and took into account Form 1 offences. The resulting sentence was a head sentence of 16 and a half years with a non-parole period of 12 years and 5 months.
For O'Brien, the court assessed the objective seriousness as considerably lower, given his lesser role. It accepted that his remorse was genuine and that he had no prior history of violent offending. A 15% discount was applied for the utilitarian value of his guilty plea. The court identified special circumstances warranting a shorter-than-standard non-parole period, on the basis that O'Brien would need extended time on parole to address alcohol and drug dependency through community treatment. This produced a head sentence of 8 and a half years with a non-parole period of 5 and a half years.
Orders Made
- Paterson convicted of the unlawful killing of Jayden Mason on 25 June 2017; sentenced to a non-parole period of 12 years and 5 months commencing 7 August 2017 and concluding 6 January 2030, with a remainder of term of 4 years and 1 month concluding 6 February 2034; first eligible for parole on 6 January 2030.
- O'Brien convicted of the unlawful killing of Jayden Mason on 25 June 2017; sentenced to a non-parole period of 5 years and 6 months commencing 24 December 2017 and concluding 23 June 2023, with a remainder of term of 3 years concluding 23 June 2026; first eligible for parole on 23 June 2023.
Key Takeaways
- Co-offenders convicted of the same manslaughter on the basis of joint criminal enterprise may properly receive substantially different sentences where their roles, conduct, and subjective circumstances differ significantly.
- A guilty plea entered at the earliest opportunity in the Local Court attracted a 25% discount for Paterson; a later plea by O'Brien attracted only 15%, reflecting the utilitarian value of each plea at the point it was entered.
- Special circumstances justifying a departure from the standard non-parole ratio were established for O'Brien on the basis that a longer parole period was needed to support rehabilitation from substance dependency in the community.
- Objective seriousness in a manslaughter arising from joint criminal enterprise can still vary markedly between participants; acts against an unconscious victim involving stomping and repeated kicks to the head were treated as considerably more serious than a single punch that caused the initial fall.
- Genuine remorse and an absence of prior violent offending were accepted as meaningful mitigating factors in O'Brien's case, contributing to the court's assessment of his rehabilitation prospects.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hunter Quarries Pty Limited v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326
- Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Kutchera v The Queen [2007] NSWCCA 121
- The Queen v Aghili Nategh (No 3) [2019] NSWSC 1892
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64