ALICE SPRINGS NEWS
April 23, 2010.

R v Doody & Others

PARTIES:    THE QUEEN

    v

DOODY, Scott, HIRD, Timothy, KLOEDEN, Anton, SPEARS, Joshua AND SWAIN, Glen

TITLE OF COURT:    SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:    SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NOS:    20925481, 20925478, 20925476, 20925496, 20925503

DELIVERED:    23 April 2010

SENTENCING REMARKS OF:    MARTIN (BR) CJ

REPRESENTATION:

Counsel:
    Plaintiff:    M McColm
    Defendants:    M Preston, J McBride, R Goldflam, T Whitelum, R Anderson

Solicitors:
    Plaintiff:    Office of the Director of Public Prosecutions
    Defendants:    M Preston, J McBride, Northern Territory Legal Aid Commission, CridlandsMB, Northern Territory Legal Aid Commission

Number of pages:    51
 
 
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v Doody & Ors
Nos. 20925481, 20925478, 20925476, 20925496, 20925503


    BETWEEN:

    THE QUEEN
   

    AND:

SCOTT DOODY, TIMOTHY HIRD, ANTON KLOEDEN, JOSHUA SPEARS AND GLEN SWAIN

   

CORAM:    MARTIN (BR) CJ



SENTENCING REMARKS

(Delivered 23 April 2010)

Introduction
[1]    Scott Doody, Timothy Hird, Anton Kloeden, Joshua Spears and Glen Swain, you have each pleaded guilty to the crime of Manslaughter.  In addition, you Mr Kloeden have pleaded guilty to engaging in conduct that gave rise to a danger of death to a second victim by driving a motor vehicle through a camp being reckless as to the danger of the death of that second victim.
[2]    I have the unenviable task of sentencing each of you.  I say unenviable because this case is a tragedy for all concerned and presents particularly difficult problems for a sentencing Judge.  What began as an unremarkable night in Alice Springs when the group of you set out to have a social night and, elsewhere, the deceased did likewise, ended the next morning with a tragedy from which there are no winners.  First and most importantly, a life has been taken needlessly.  The unlawful killing of the 33 year old male victim is a great tragedy and leaves a legacy of grief, anger and distress among family and friends.  In addition, a violent death through the commission of a crime diminishes our wider community.  Imprisonment of the offenders cannot change these consequences.  Imprisonment will punish and express the strong disapproval of the community, but it cannot compensate for the loss of a life.
[3]    It is also a tragedy that as a consequence of a few seconds of drunken, aggressive and violent behaviour, when five young men acted without thought for the consequences, those five young men of otherwise good character and with good futures now find themselves convicted of manslaughter and facing the inevitable consequence of gaol.  For them, their families and friends, life also seems bleak.
[4]    This case has caused deep and acute divisions in the community of Alice Springs.  The circumstances have justifiably given rise to a suspicion, and in some minds a belief, that the killing was racially motivated in the sense that the deceased was attacked only because he was an Aboriginal person.  In view of the events that occurred in the Todd River bed not long before the deceased was killed, it is not surprising that such suspicions and beliefs exist.  As will appear later in these reasons I am satisfied that there were racial elements in the earlier events and that a tone or atmosphere was set of antagonism towards and harassment of Aboriginal persons that is likely to have influenced the later conduct of all offenders.
Facts
[5]    During the evening of Friday 24 July 2009 the five of you were out and about drinking.  Mr Doody, you had worked all week out bush and, as was your usual practice, you came into town and set out to let your hair down by drinking with friends.  You, Mr Hird, shared a beer with your father early in the night and returned home where you joined in drinking with your friends.  Mr Kloeden, you had a few drinks that evening, but as you were the driver you did not continue with the drinking and when the events happened next morning you were sober. 
[6]    You, Mr Spears, started drinking at about 7pm that Friday night by consuming six cans of rum with a friend.  You then went to Bojangles where you consumed something in the order of four to six vodka and orange drinks, after which you went to the Casino where you were refused entry because of your intoxication.  In the meantime your friends had been at the Casino drinking and you caught up with them when they left.
[7]    You, Mr Swain, drank a full bottle of rum that night which is the equivalent of approximately 20 standard drinks.  You also had a beer at the Casino.
[8]    All of you ended up in a room at the Casino which had been booked by a friend who was not involved in the later events.  After more drinks were consumed, at about 6am you left the Casino in Mr Kloeden’s Toyota Hilux dual cab four wheel drive.
[9]    As I said, Mr Kloeden drove and was sober.  The rest of you were drunk.  Mr Spears was in the front passenger seat and Mr Doody was behind him, with Mr Swain in the centre rear position and Mr Hird behind the driver.
[10]    The deceased had also been drinking that night.  He died at about 6.30am the following morning and, at the time of his death, his blood alcohol reading was 0.220 percent.  This is a very high reading and indicates that during the night the deceased consumed a large quantity of alcohol. 
[11]    I do not know where the deceased had been during the evening, but in the early hours of Saturday 25 July 2009 he walked to a camp of Aboriginal persons in the Todd River bed approximately 120 metres north of the Schwarz Crescent causeway where he stopped to talk to the campers.  He was in the group when it was invaded by Mr Kloeden’s vehicle. 
[12]    I accept that all of you were in good spirits when you left the Casino and you were not ready for the evening to end.  Without any discussion with the others you, Mr Kloeden, decided to take on the challenge of driving along the Todd River bed to the Telegraph Station.  I accept that when you made that decision you did not have in mind harassing anyone, but as you were driving you made the offensive and stupid decision to harass the Aboriginal people camped in the riverbed.  As your counsel put it, you were hooning.  Another word is lairising.  But it must be said that you hooned and lairised in a particularly dangerous and offensive manner.
[13]    Mr Kloeden, you drove the Hilux into the riverbed at the Tunks causeway and travelled at speed in a northerly direction, leaving the riverbed momentarily to travel around the Wills Terrace bridge, before returning to the riverbed and continuing north.  For the sandy conditions, which included quite deep sand, you were travelling quickly, probably in the order of 30 – 35 kilometres per hour.  After crossing over the Schwarz Crescent causeway you continued to drive north and, at speed, you drove towards the group of campers approximately 120 metres north of the causeway.  There were at least six people in the group, including the deceased.  Some of the group had been asleep.  When your vehicle was seen coming at speed, all except the victim of your second offence ran to a nearby tree.  That victim of your dangerous conduct offence is elderly and infirm.  He was unable to rise in time to get out of the way.  He remained on his blanket and your vehicle passed by him only a metre or a little more away.  Your conduct in driving past him in that manner is the basis of the second offence to which you pleaded guilty, namely, engaging in conduct by driving the motor vehicle through the camp being conduct that gave rise to the danger of death of that second victim while you were reckless as to the danger of causing his death.
[14]    Your conduct was not only offensive and stupid.  It was highly dangerous.  I have no doubt that you knew that it was highly likely that some of the people in the camps would have been asleep and some affected by alcohol.  In these circumstances, driving close by someone lying in the sand in the Todd River bed is far removed from driving close by a pedestrian who is crossing a bitumen road.  When drivers hoon or lairise, the risk of things going wrong increase.  In particular, you were driving in soft and deep sand at significant speed.  Vehicles in deep sand do not track straight.  Their tracking is influenced by the conditions of the sand, including wheel tracks, ruts and obstacles.  The skill of the driver is also important.  While you aimed to miss, you made a deliberate choice to harass the people camping and to drive close by their camp.  You did so with an awareness that you were creating a substantial risk to the life of those in the camp and you decided to take that risk.  You created a highly dangerous situation and it is pure good luck that you did not injure or kill people in that camp and, in particular, the victim who was unable to get out of your way.
[15]    After passing the camp you continued to drive the Hilux north along the riverbed and attempted to exit at the Telegraph Station which is approximately two kilometres north of the Schwarz Crescent causeway.  Due to fencing you were unable to exit and, after a number of attempts to find an exit point during which the Hilux lost a reflector, you drove south with the intention of exiting at the Schwarz Crescent causeway.  Retracing your previous route, you again passed close to the same camp.  This time you were so close that you drove over the swag of the victim who had earlier been unable to move out of your way.  Again, you made a deliberate choice to engage in this offensive and dangerous conduct.  It was a continuation of your earlier conduct. 
[16]    When your vehicle was seen coming at the camp, again at speed, one of the female occupants threw a small log or fire stick which struck your vehicle.  You continued south to the Schwarz Crescent causeway where you stopped the vehicle.  Some of you got out of the vehicle looking for damage and some yelled abuse at people in the camp. 
[17]    Mr Kloeden, not content with having driven close and through the camp on the north side of the Schwarz Crescent causeway on two occasions, you then drove the vehicle at speed toward another camp in the riverbed which was located approximately one hundred metres south of the Schwarz Crescent causeway.  Three Aboriginal people had been sleeping and, when they became aware of your vehicle approaching at speed, they ran to a nearby tree.  You drove close by their sleeping area.  You then stopped the vehicle and words were exchanged before you drove out of the riverbed onto the roadway.
[18]    Mr Kloeden, I pause in this sequence to observe that there is nothing in the material before me to suggest that anyone in the car suggested that you drive at or close to either camp.  Nor did they do or say anything to encourage such driving.  This was your decision alone and you did not engage in ordinary lairising or hooning.  I have no doubt you knew that the camp would be occupied by Aboriginal persons.  By driving the way you did, you behaved aggressively and dangerously towards two different groups of Aboriginal people camped in two different locations in the riverbed.  Having regard to the totality of events that night, I am satisfied that underlying your dangerous driving in the river was a negative attitude to, and a complete lack of respect for, those camped in the riverbed because they were Aboriginal people camping in the riverbed.  I have no doubt that if white people had been camped in the riverbed in tents, you would not have set out to harass them in the aggressive manner in which you set out to harass the Aboriginal people who were camped there.
[19]    Returning to the events, a decision was made to return to the residence of Mr Hird and Mr Swain in Spearwood Road to obtain more alcohol.  While at the premises you, Mr Hird, retrieved from a hiding place an imitation Colt 45 pistol and blank ammunition which you had purchased interstate.  It was a pistol that you had previously discharged only in the bush because you believed it was illegal to possess such a pistol in the Northern Territory.
[20]    It is not suggested in the Crown facts that there was any discussion with others about obtaining the pistol.  Your counsel has told me that there was no sinister purpose.  In his words you were being “a complete Galah and showing off”. 
[21]    The five of you returned to the Hilux and Mr Kloeden drove down Undoolya Road to the roundabout at Lindsay Avenue where you, Mr Hird, held your arm out the rear window and discharged the imitation pistol.  It made a loud gunshot sound similar to a real firearm.  The vehicle turned right to follow Mr Spears’ cousin who happened to come through the intersection.  After stopping in Warburton Street to talk to the cousin, Mr Kloeden drove to Schwarz Crescent, but stopped just prior to entering the Schwarz Crescent causeway. 
[22]    Mr Hird, your counsel informed me that you had been encouraged to let off another round, but the pistol had jammed.  While the vehicle was stopped you managed to unjam it and you again discharged it.  Mr Kloeden then drove east across the Schwarz Crescent causeway while you held the pistol out of the rear driver’s side window pointing in a northerly direction.  Pointing in a northerly direction meant that you were pointing in the general direction of the first camp through which Mr Kloeden drove the vehicle twice.
[23]    There was no need to stop before entering the causeway in order to unjam the pistol unless someone wanted to fire off another round at that locality.  I am satisfied the vehicle stopped because someone wanted to do just that for the purpose of scaring the campers north of the causeway.  This is what happened.  Mr Swain told police after the gunshot round a couple of campers got up and started running.  He thought that they obviously feared for their lives.  I do not know whose idea this was, but Mr Kloeden stopped the vehicle and Mr Hird let off the shot, after which Mr Hird held the pistol out the window, pointing it north, while the vehicle crossed the causeway.  I am satisfied that at least Mr Hird and Mr Kloeden wanted to scare the campers.  It was an aggressive act, demonstrative of Mr Hird’s drunken state of mind.
[24]    As the Hilux proceeded west across the causeway, the deceased was walking west along Schwarz Crescent not far ahead.  On seeing the Hilux approaching him, he threw a bottle at the vehicle and it smashed on one of the right hand panels.  This precipitated an angry reaction and, in the next few seconds, the tragedy unfolded.
[25]    Immediately following the impact of the bottle you, Mr Kloeden, quickly executed a u-turn and drove up to the deceased, stopping right in front of him so that he put his hands out and held onto the bullbar.  In itself this was an aggressive and threatening piece of driving.  No doubt frightened, the deceased attempted to escape by running in a westerly direction.  At that time the Hilux was facing east.  Before the vehicle moved, everyone but the driver got out and gave chase.  No one checked for damage before pursuing the deceased. 
[26]    You, Mr Hird, were the first to get out of the vehicle and you ran after the deceased, closely followed by the other three passengers.  While this was happening Mr Kloeden executed a three-point turn in order to drive west.
[27]    I quote the Crown facts as to the ensuing critical events that followed in the space of a few seconds:
“[19]    The deceased fell to the ground where the offender Hird kicked him to the head one time, the offender Swain kicked him twice to the head and by that time the offender Doody was next to Swain; Spears struck the deceased with a bottle.  One of the offenders said during this altercation ‘Don’t fuck with us’.
[20]    The offender Swain yelled out ‘Let’s go, let’s go, let’s go’ and the attackers ran back to the vehicle with Kloeden driving from the area.
[21]    Following this assault the deceased did not move.”
[28]    It needs to be understood clearly that although cowardly and violent, your joint physical attack upon the deceased did not cause any fractures and did not cause any major external injury.  In particular, the deceased’s skull was not fractured.  Externally there were abrasions on the deceased’s face, arms and leg.  An abrasion on the deceased’s right forehead was accompanied by swelling. 
[29]    All the abrasions could have been caused when the deceased fell while running away from the group of you.  It is impossible to know whether your blows caused any of the abrasions. 
[30]    The deceased also sustained a three centimetre laceration on the back of his head.  This cut extended through the soft tissue only.  It was not deep enough to expose bone.  It was accompanied by mild surrounding swelling.  This wound could have been caused in the fall, or it might have been caused by a blow.  It is impossible to know with certainty which was the cause.
[31]    If the deceased had not died, each of you would have been guilty of an assault that caused relatively minor harm.  Ordinarily, it is not expected that a victim of an assault causing such relatively minor injuries will die.  But the deceased did die.  He died from a traumatic subarachnoid haemorrhage, that is, bleeding from a blood vessel at the base of the brain.  It is not known precisely what caused this bleeding, but the most likely cause was the bursting of an aneurysm which existed before you attacked the deceased.  An aneurysm is a little balloon-like swelling on a blood vessel at the base of the brain.  The pathologist who conducted the post mortem examination explained that this swelling can burst spontaneously without any particular cause, or it can burst as a result of physical stress or trauma, even minor trauma such as falling over.
[32]    On the assumption that the bleeding was caused by the bursting of a pre-existing aneurysm, although it is impossible to determine precisely what caused it to burst, it is accepted that your conduct caused the bursting.  The group of you threatened the accused and chased him with the intention of assaulting him.  In fear he ran away and fell over.  The aneurysm might have burst when he ran and fell and, therefore, you are responsible because your threatening conduct caused him to run and fall.
[33]    Alternatively, the aneurysm might have burst when blows were struck to his head.  If the blows were the cause, your physical attack upon the deceased directly caused his death, but it is impossible to know whether it was the blows or the fall. 
[34]    In one way or another, all of you were involved in the threat, chase and violence inflicted upon the deceased.  In this way you are all responsible for the dreadful consequences of your unlawful conduct, notwithstanding that the victim was susceptible to suffering dire consequences as a result of relatively minor trauma.
[35]    Although none of you thought about the possibility of death occurring, and none of you intended to cause serious harm, you are nevertheless guilty of the crime of Manslaughter.  You are guilty of that crime because, in addition to your conduct causing the death, your conduct involved such a great falling short of the standard of care that a reasonable person would exercise in the circumstances, and such a high risk that death would occur, that your conduct merits criminal punishment. 
[36]    In the aftermath, the only one of you who fully cooperated with the police was you, Mr Swain.  You did so after initially giving a false story that you and Mr Kloeden had been at the Finke desert racetrack and fell asleep.  On 1 August 2009 you told police of the movements that night, including the drinking and driving around, the trip along the Todd River and the attack upon the deceased.  You also participated in a re-enactment when police retraced the route taken by the Hilux that morning.  In the record of interview and re-enactment you admitted kicking the deceased twice to the head and described the actions of the others. 
[37]    You, Mr Hird, told police that you went to the Casino with Mr Doody and did not know the whereabouts of Mr Kloeden or Mr Swain that morning.  You, Mr Kloeden, also gave the false story about going to the Finke Desert racetrack and falling asleep.  You told police that the reflector had broken off in an accident at the 2009 Finke Desert race.
[38]    You, Mr Spears, said you had remained in the car when the deceased was attacked.  You also participated in a re-enactment.
[39]    Each of you has admitted responsibility for the death of the deceased in the sense that each of you was aiding and abetting the others in the attack upon the deceased which caused his death and, therefore, each of you is guilty of the crime of Manslaughter.  However, this is not a case where the moral culpability of each of you is identical.  Nor is the physical role that each of you played identical.  I must consider, separately, the individual role that you each played and your individual moral culpability in order to arrive at an appropriate sentence for each of you.  I must also consider your individual personal circumstances.  
Racial overtones
[40]    Before outlining matters personal to each of you, I return to the question of racial overtones.  Each of you has grown up in circumstances that have brought you into close contact with Aboriginal persons.  Each of you has always got on well with Aboriginal people.  However, on this occasion your normal attitude and standards of behaviour were pushed into the background. 
[41]    In considering this question, the following facts are of particular significance:
•    Mr Kloeden drove through the camp north of the causeway on two occasions.
•    When the vehicle stopped on the causeway shortly after a female person in the northern camp threw a log at the vehicle, some of the offenders yelled abuse at the Aboriginal occupants of that camp.
•    Mr Kloeden then drove at speed towards a second camp of Aboriginal persons and drove close by that camp.
•    For no readily apparent reason, Mr Kloeden then stopped the vehicle.  Words were exchanged with the Aboriginal occupants of the camp.
•    Subsequently Mr Kloeden stopped the vehicle short of the causeway to enable Mr Hird to unjam the imitation pistol.  The intention of at least Mr  Hird and Mr Kloeden was to scare the Aboriginal occupants of the northern camp.
•    Mr Hird discharged the pistol, following which he pointed it north in the general direction of the camp.
•    Mr Swain saw people run from the camp in fear after the pistol was discharged.  It is idle to suggest that at least some of the other offenders were not aware that persons had run from the camp in response to the discharge.
[42]    From this combination of facts, and having regard to the events that followed, I am satisfied that as the Hilux crossed the causeway, within the vehicle there was a negative attitude towards, and an atmosphere of antagonism towards, Aboriginal people.  This group of young men was then confronted by an Aboriginal person, the deceased, standing on the roadway holding a bottle.  It is relevant that it was an Aboriginal person who threw the bottle which smashed against the side of the vehicle.
[43]    If a drunk white man had done likewise, I am satisfied that as a group, the offenders would have reacted angrily and sought to confront him.  However, it is difficult to avoid the conclusion that the nature and rapidity of the reaction, and the actions of some offenders in kicking and striking the deceased while he was on the ground were influenced, at least to some degree, by the fact that the deceased was an Aboriginal person.  Ultimately it remains unknown whether the attack would have gone as far as it did if the deceased had been a drunk white person.  I doubt that any of the offenders now know the answer to that question.
Scott Doody
[44]    Mr Doody, as I mentioned, you came into town that Friday night intending to follow your usual practice and let your hair down.  You were very drunk at the time of leaving the Casino.  You remember getting into the car and thought you were going home.  Although you were surprised when Mr Kloeden drove into the riverbed, you were not at all concerned.  Seated in the rear left passenger seat with a limited view, you continued drinking in the car and you did not care where you were going.  You were in a good frame of mind.
[45]    I accept that in your drunken state you were not sure where you went except that you travelled north.  You have a memory of leaving the riverbed several times and of going up to the Telegraph Station where it was rough.  You have a memory of seeing a lady out of the window and of something hitting the car.  You also recall stopping at the causeway and some of the others getting out of the car, and at some stage getting more drinks from the residence of Mr Hird and Mr Swain.  You are not sure of the order of events.
[46]    As to the critical moments on Schwarz Crescent, you recall seeing an Aboriginal person in the middle of the road and you thought he was walking toward the car.  Something hit the side of the car and you remember the quick u-turn and the person being in front of the car.  You were slower than the others and you followed them out of the vehicle.  When you reached the point of the attack, the deceased was already on the ground with Mr Hird and Mr Swain close to him.  Just as you arrived and were standing alongside Mr Swain, you saw him deliver what you thought was a kick.  Almost immediately after that blow Mr Spears arrived and you saw the impact of the bottle hitting the deceased.  You did not hear anybody say “Don’t fuck with us”.  The next thing you recall is someone saying “Let’s go, let’s go” and leaving.
[47]    Mr Doody, I accept that you did not touch the deceased.  You made no attempt to physically attack him.  Nothing was said by anybody before getting out of the car, but you participated in the physical confrontation by being part of the group that chased the deceased.  You are responsible for the consequences because, although you did not say anything, you encouraged the others by your presence and you knew there would be a physical assault.  In your drunken state, however, the possibility of serious harm or death did not occur to you.  Like all the others, in the space of those few seconds you simply did not give any thought to the consequences.
[48]    As to matters personal, you are now aged 24.  You were 23 at the time.  Although you were born in Sydney, you came to Alice Springs with your parents at the very young age of two years and you have spent your life in Alice Springs. 
[49]    Your background is not typical of those who come before the criminal court.  You were raised in a stable and loving family environment and you were a good student displaying no social problems.  You possess a good nature and you were popular at school where you got on well with everyone else, including Aboriginal students.  As you grew up you regularly played happily with Aboriginal children who were neighbours.  Over the years you have played a lot of sport, often with Aboriginal team-mates with whom you got on well. 
[50]    Having completed year 11 at high school, you left during year 12 to commence an apprenticeship as a refrigeration mechanic.  You attended at trade school in Darwin and in 2009 during your final year you transferred your apprenticeship.  This resulted in you undertaking bush work in communities.  Unfortunately you lost all your tools, books and paperwork when the employer’s business folded following a fire.  The employer left town and you did not receive your holiday pay.  Disillusioned, you did not complete your apprenticeship, but undertook employment as a refrigeration mechanic with a property maintenance company in Alice Springs, after which you moved to an engineering firm as a refrigeration and air conditioning technician. 
[51]    It is to your credit that you recovered so well from the setback.  Both employers speak highly of you as a reliable, honest and conscientious employee.  They regard your conduct in becoming involved in this crime as totally out of character.  One of those employers is prepared to consider re-employing you when you have served your time in prison.
[52]    Other referees also speak highly of you as a respectful young man with a quiet nature who has never been involved in physical violence before this offence.  Without exception, all referees regard your conduct on this occasion as totally out of character. 
[53]    Your underlying good character is demonstrated by your conduct in 2009 in connection with the Finke Desert race.  Motor cross sport is your passion.  In 2009 you signed up for the Finke Desert race, but you gave up your own plans to become a team member in support of a paraplegic friend. 
[54]    Prior to this offence, you had never been in trouble with the criminal law.  You are entitled to significant credit by reason of your prior good character; not just for staying out of trouble, but being a person of positive good character.
[55]    As I said, I am satisfied you gave no thought to the consequences.  You have been shocked by the aftermath and you deeply regret the death of the deceased.  Through your counsel you have apologised to the family of the deceased and to your own family who have also suffered as a consequence of your conduct.  You now appreciate how alcohol changes your judgment, appreciation of circumstances and general behaviour.
[56]     Mr Doody, you are a young man who has the capacity to make a good future.  You possess skills that will be in demand and you have proved that you are a hard-working and reliable employee.  I accept your conduct was totally out of character and that you are highly unlikely to become involved in this type of violent behaviour again in the future.
Timothy Hird
[57]    Mr Hird, as to your particular role in the tragic events of that morning, I am satisfied that you were significantly affected by alcohol and that you regarded turning into the Todd river bed as merely some fun.  You thought you were heading for the Telegraph Station and you did not play any role in the decision by Mr Kloeden to drive close to the camps.
[58]    I accept that when you got the pistol from your home you only intended to have fun by firing it and making a loud noise as you were driving around.  However, somewhere in the journey you decided to fire it off in the vicinity of the Schwarz Crescent causeway for the purpose of scaring the people in the camp to the north of the causeway.  In your drunken state, you started behaving like a lout and you were displaying a degree of aggression which was uncharacteristic for you.
[59]    When you became aware that a bottle had been thrown at the car, according to your counsel you have a memory of saying “Let it go”, but Mr Kloeden did the quick u-turn.  I am far from persuaded that you took such a benign attitude.  If you did, your attitude changed very quickly after Mr Kloeden pulled the vehicle to a halt and the deceased ran away.  You were the first out of the vehicle.  Your counsel attempted to explain why you were first out by saying that you were closest to the path that was taken by the deceased, but as nothing was said in the car about getting out of the vehicle, the fact that you were on the side closest to the deceased does not explain why you took off after the deceased so quickly.  I accept that you reacted spontaneously and instinctively, without giving any rational thought to what you were doing, but I am satisfied that you reacted to the perceived insult of the bottle with anger and with an intention of physically attacking the victim. 
[60]    You were the first to reach the deceased who fell to the ground.  He did not pose a threat to anyone.  Rather than confront the deceased verbally, notwithstanding that he had fallen to the ground, you kicked him to the head.  Your counsel has told me that you were wearing soft shoes, but that was purely fortuitous.  You were not thinking about the sort of shoes you were wearing.  In that spontaneous drunken moment you intended to kick the deceased in the head in retaliation for what he had done with the bottle. 
[61]    I accept that in kicking the deceased and being part of the assault by the group of you upon the deceased, you did not give any thought to the consequences.  You were drunk and it all happened too quickly on the spur of the moment.
[62]    Subsequently, when you learnt of the consequences, like the others you were sick with worry about the implications for your own life and you were so unwell that you were unable to go to work.  Eventually when you were arrested you found it to be a relief. 
[63]    I accept that you have grown up indifferent to race and creed and that your response did not come about because the deceased was an Aboriginal person.  As I said previously, however, whether you would have gone as far as you did in kicking a person on the ground in the head if the person had been a drunk white man, remains unknown.
[64]    As to personal matters, you were born in Alice Springs where you have spent your whole life.  You were 21 at the time of the offence.  You grew up in a stable and loving home under the guidance of hard-working and supportive parents who have made a significant contribution to the community. 
[65]    As you grew up you played a lot of sport and, in particular, you excelled at basketball.  As a 12 year old you were a member of the Territory Under 14’s team in a national competition held in Tasmania. 
[66]    After completing year 10 at high school, you spent a brief time at college, but found that you were not suited to academic pursuits.  At the age of 16 you commenced a cabinet making apprenticeship.  You were such a good worker that the employer kept you on for the next five years and you were still in that employment when you were arrested.  That employer has been in court to support you and has provided a reference in which he speaks highly of you growing from a quiet, reserved young person to an ambitious and talented tradesman.  The employer has witnessed you working alongside Aboriginal workers who you took under your wing and trained in different facets of the business.  He expresses the firm view that you are not racist towards Aboriginal people and observes that you have a lot of Aboriginal friends.  The employer would like to re-employ you when you are released from prison and he hopes to support you in your future and play an active role in your rehabilitation.
[67]    The attitude of your employer, and other employers who have offered support to your co-offenders, is to be commended.
[68]    For the last two years you have been in a stable relationship with a woman who is a single mother and a primary carer of her four year old son from a previous relationship.  She says that you are very kind-hearted and respectful and that you play an important role as a father figure for her son.  Your partner has a mixed racial background and she speaks of you and her sharing close bonds with friends from all different nationalities.  You are very fortunate to have the continued strong support of your partner and employer, together with the ongoing support of your parents and wider family.
[69]    Apart from minor involvement with cannabis in 2008, in respect of which you were dealt with without a conviction being recorded, you have not been in trouble with the criminal law.  I will treat you as a first offender.  It is to your credit that you reached the age of 21 without getting into other trouble.  In a very helpful letter your mother has spoken quite frankly and honestly of, in her words, “some turbulent times” during your adolescent years and of you not always making the right decisions, but always accepting responsibility and acknowledging your mistakes.  So it has not always been easy, but you have matured and other referees speak very highly of you and of how you have been a role model to others.  You have earnt respect from a wide range of people and I accept that your behaviour on this occasion was totally out of character.
[70]    I also accept that you are devastated by the consequences of your conduct that night and you profoundly regret being involved in causing the death of the deceased.  Through your counsel you have apologised in open court to the deceased’s family and friends.  The impact of your conduct has struck home, particularly because you have since discovered that some of the friends of the deceased were your friends in your youth.  You are also very sorry for the pain you have caused your own family and friends.
[71]    As to the future, it is important that your conduct on this occasion was out of character and that you have accepted full responsibility.  Apart from this offence, you have been a solid, hard-working young man of good character who has achieved success in his work and obtained the respect of others through your own efforts.  I assess that you have excellent prospects of rehabilitation and I am satisfied that you are highly unlikely to offend again in the future.  You will have strong support and the opportunity to resume your worthwhile employment.
Anton Kloeden
[72]    Mr Kloeden, I have spoken already about your role in driving into the river and through the camps.  You displayed aggression towards Aboriginal people camped in the riverbed and you displayed this aggression notwithstanding that you were sober.  This was your underlying state of mind when you drove past the deceased and heard the bottle smash on the side of your car.  In a spontaneous moment of anger, and with confrontation and retribution flashing through your mind, you did the quick u-turn.  Your action in executing the u-turn and driving up to the deceased amounted to an aggressive threat to the deceased and was carried out in the expectation that the deceased would be attacked physically in some way.  In this way you encouraged a physical assault, which you anticipated would occur, but I accept that you did so without giving any thought to the nature of the physical attack or the possible consequences of it.
[73]    Mr Kloeden, you did not take part in the affliction of physical violence on the deceased because, while the deceased ran away, was pursued and then attacked, you were executing the three-point turn and driving back to the scene.  Your counsel frankly conceded that the reason you did not get out and become involved was the fact that you had to execute the three-point turn.  In addition, when you reached the scene of the attack you were on the wrong side of the road facing the crest of a hill.  As your counsel put it, it was not “moral courage” that led you to stay in the car.
[74]    Apparently you were seen to drive away at a leisurely, normal pace.  I accept that when you drove away you did not realise that the deceased had been killed or seriously injured, but it was obvious that an attack had taken place leaving the deceased lying on the ground not moving.  Your actions in driving away in this manner disclose a lack of concern for the wellbeing of the victim. 
[75]    Subsequently, when you found out that the deceased had died, like the others you were terrified about your own predicament, but you were also appalled at the consequences of your conduct.  Although you knew that you would inevitably be caught, you agreed with Mr Swain to tell a false story.  In the week following the killing, you were in such a state of extreme anxiety that you lost six kilograms in weight. 
[76]    As to matters personal, you were 22 at the time of the crime.  You are now 23.  Born in South Australia, you were raised in a hard-working and loving family.  You commenced your schooling in Queensland, but moved with the family to a community in Central Australia at the age of 14 where your father worked in a store and your mother in education.  You did well academically and you were a good sportsperson.  As you have grown up, you too have lived in circumstances involving close contact with Aboriginal people.
[77]    The beginning of your schooling at secondary level was in Alice Springs, but not having done as well as you had hoped, at the age of 16 you decided to go back to Bundaberg where you had been successful at school.  You completed year 12 in Bundaberg and immediately obtained an apprenticeship to become a boilermaker.  At a young age you were living independently and remotely from your parents, and in 2007 you found life difficult when work was not satisfying and your first serious relationship ended contrary to your wishes.  It was in these circumstances that you punched a housemate with whom you had an unpleasant relationship and who had behaved in a nasty way to you.  That punch resulted in you pleading guilty to a charge of assault occasioning bodily harm, but the offence was obviously at the lower end of the scale of seriousness because the court did not record a conviction.  Apart from that offence, your only other offending is against the road traffic laws.
[78]    After the trouble in Queensland, you returned to Alice Springs where, in September 2008, you commenced employment with an engineering firm and continued your metal fabrication apprenticeship.  With less than 18 months of your apprenticeship remaining, you were still with that firm at the time you committed this offence.  Your employer speaks highly of you as an outstanding apprentice who has always got on well with co-workers and supervisors.  He describes you as a person of intelligence and ability, who possesses a quiet demeanour.  You too are fortunate that your former employer has said that he wants to help you in your future efforts to rehabilitate and move on with your life.  He regards your conduct as very much out of character.
[79]    Your father describes you as a quiet natured, home loving person who has always thought of others before himself.  That view is confirmed by referees who have spoken very highly of you as a quiet, polite and good-natured person. 
[80]    I accept that your conduct on this occasion was totally out of character.  I also accept that you are deeply sorry for what you have done.  People close to you have witnessed your sadness and sorrow for the death of the deceased and the impact it has had on his family.  You are also acutely conscious of the distress your conduct has caused to your own family. 
[81]    As to the future, I am satisfied that you are highly unlikely to offend against the criminal law again, particularly that you are unlikely to commit crimes of violence.  You are a young man with capacities and an underlying good character that will assist you in your rehabilitation and you are likely to have employment available to you.  You have the strong support of your family and of your partner which I am satisfied will be ongoing.  Importantly, notwithstanding that you were not physically involved in attacking the deceased, you have accepted responsibility for your conduct and the consequences.  You understand also that you will have to accept what you have said, in your own words, are “lifelong punishments” of convictions and knowing that a person is dead because of your actions.
Joshua Spears
[82]    Mr Spears, you are now 19.  You were 18 at the time and heavily intoxicated.  You played no role in the decision to drive into the river or where Mr Kloeden drove and you have a limited memory of the events.  You recall discussion about more grog and getting out of the car, but you did not enter the house.  When the group left the home of Mr Hird and Mr Swain at Spearwood Road, you thought you were being taken home.  You lived on the western side of the Stuart Highway.
[83]    After the detour to Warburton Street, you still thought you were being taken home and your first awareness of the deceased was seeing him standing on the rise of Schwarz Crescent with his arm raised.  He appeared to be throwing something and you were aware of an impact with the vehicle. 
[84]    After Mr Kloeden executed the u-turn and stopped immediately in front of the deceased, you were the last of the four who got out of the vehicle and chased after the deceased.  When you reached the group, you were carrying a Strongbow bottle and the Crown facts simply state that you “struck the deceased with a bottle”.  Through your counsel you have now volunteered to the family of the deceased, the Court and the wider community that you struck the deceased on the back of the head with the bottle.  You held the neck of the bottle in your fingers and hand and swung from the shoulder as you were crouched.  The bottle did not break. 
[85]    Your admission that you struck the deceased on the back of the head with the bottle is very much to your credit.  I cannot be satisfied beyond reasonable doubt that your blow caused the laceration to the back of the deceased’s head but, given the position of that cut, it is more likely to be the cause than the fall.
[86]    Your counsel told me that he was instructed by you to acknowledge that what you did, in your counsel’s words, was a “cowardly action” and you do not know why you did it.  You followed and became involved.  You deeply regret your actions.  Your counsel told me that it was a difficult decision to come clean, but now that you have done so you regard it as a life changing process. 
[87]    Like the others, you did not give any thought to the consequences of attacking the deceased.  You followed along with the actions of the others in a spontaneous response to the smashing of the bottle.  You are not a violent person by nature and, not only were you younger than the other offenders, but in my assessment you lacked the maturity to make decisions independent of the collective response to the smashing of the bottle.
[88]    Like the others, you are well aware of the immeasurable loss caused to the family and friends of the deceased and you are genuinely sorry for your role in the killing of the deceased.  You are also acutely aware of the great distress you have brought to your own family, and in your counsel’s words, of the “huge calamity” this killing has caused within the Alice Springs community.
[89]    Mr Spears, you have spent your whole life in Alice Springs in a family with long ties to this community.  Your parents were both born in Alice Springs and are very well-known throughout the district.
[90]    You did not do well at high school, but you managed to complete year 11 at Centralian College following which you commenced a job with a signage company because you possessed a flair for drawing and art.  By May 2007 you appreciated it was not the sort of work that you wanted to do because it mainly involved drawing by way of computer.  You then worked on a station northwest of Alice Springs where your father was working, and continues to work.  In 2008 you returned to Alice Springs and undertook work with a plant hire company where you were working until arrested for this offence.
[91]    Your parents separated when you were 13 and there was a shared parenting arrangement pursuant to which you would live with each of your parents for two weeks at a time.  Your life centred around spending time with your family and looking after animals.  You possess an affinity with animals.  You found it difficult to cope with your parents’ separation and this led to a degree of resistance and rebellion which resulted in you arguing a lot with your mother.  Early in 2009 life was improving because you mended the rift with your mother, had a job and commenced a relationship with a young lady who is still very supportive of you.
[92]    As your counsel put it, you have an “unremarkable history”.  You have been a steady, reliable person, but you have not done anything exceptional.  This view of your life might be seen as somewhat negative, but in reality it is not negative.  Without the positive natural talents possessed by some young people, until this offence you had done very well in your life and you had set yourself up for a good future.  Importantly, you had never come into contact with the criminal law.  Before this offending, you were a person of very good character.
[93]    People who have written references for you all speak very highly of you as an honest, hard working and respectful young person who greatly values your family.  Your former employer on the station where you worked for 18 months has told me that you lived and worked with Aboriginal people.  The station has had a long association with elders and tribes-people of the area.  You were always honest, reliable and respectful to Aboriginal people.  It speaks volumes for you that the owner of the station, and your employer at the time you committed this offence, have both stated positively that you are welcome to resume employment with them when you have completed your prison sentence.
[94]    I repeat, these and other employers are to be commended for their positive and very helpful attitude.
[95]    I am satisfied your conduct was totally out of character.  You possess both the character and capacity to re-establish your life when you are released from prison.  I assess that your prospects of rehabilitation are excellent and that you are highly unlikely to re-offend again against the criminal law. 
Glen Swain
[96]    Mr Swain, as I said earlier you drank a full bottle of rum and you were very drunk at the time the group left the Casino.  You were surprised when Mr Kloeden turned into the riverbed, but not concerned and you did not play any role in Mr Kloeden’s decision to drive close to the camps. 
[97]    From your seat in the middle of the rear of the Hilux, you saw the deceased on the road and you thought he was holding a rock.  As Mr Kloeden swerved slightly to avoid the deceased, you ducked because you thought the rock would be thrown and you heard a loud bang on the side of the car.  As Mr Kloeden was executing the quick u-turn, you sat up wondering what was going on.  There was some swearing in the vehicle, but nothing was said about getting out or doing anything.  When Mr Hird jumped out of the vehicle and ran after the deceased, in a spontaneous reaction you followed on his heels not knowing what to expect or what might occur.  When you came upon the deceased who was already on the ground, and Mr Hird kicked him to the head, you kicked the deceased twice to the head.  No doubt you kicked out in anger and as part of the group attack upon the deceased, but like the others you were not thinking rationally and you gave no thought to the consequences.
[98]    After you had delivered your two kicks, you realised something was wrong because the deceased was lying motionless on the shoulder of the road.  You stopped and, when you became aware of a vehicle approaching, it was then that you called out “Let’s go”.  You called out because you realised the deceased had stopped moving and was unable to defend himself and because there was a vehicle coming. 
[99]    After the event you were appalled at what had happened and your involvement in it and very frightened of what lay ahead of you.  Although you first concocted a story with Mr Kloeden about being out at the Finke Desert racetrack and falling asleep, only a short time later you made a full confession and provided police with many of the details that now form the basis of the Crown facts.  You participated in a re-enactment.  Of the group of five, you were the only person who made a full and frank confession to the police and who gave them every assistance possible.  You are entitled to credit for that. 
[100]    In addition, I have seen footage of your interview with the police in which you made the confession.  The graphic distress which you experienced when talking about the death of the deceased is obvious.  I accept that you are genuinely sorry for what happened to the deceased and his family and friends.  I also accept that you wanted to get the whole thing off your chest and you were relieved when you had done so. 
[101]    As to personal matters, you were born in Queensland and, after living at various places in South Australia, you came to Alice Springs with your mother and stepfather when you were in about year six.  Your biological parents separated when you were aged two and your stepfather became part of the family about 12 months later.  You regard him as your father.  You have a very close relationship with him and you have taken his surname.  From your perspective you have grown up in a normal loving and supportive family who remain strongly supportive of you. 
[102]    After completing year 10 at Alice Springs high school, during year 11 you took up a tiling apprenticeship at the age of 16 at which you worked for a few months before commencing an apprenticeship as a mechanic.  You soon switched to a spray painting apprenticeship, but a lack of funds saw you take up a labouring position before moving to Queensland with a young woman.  Following a breakdown in the relationship you returned to Alice Springs, but your partner followed you and the relationship was re-established in 2007.
[103]    In early 2008 you became a trainee pest controller and you were working in that occupation at the time of the offence.  You raised your skill level significantly and through your studies qualified as a licensed pest technician.  Your employer speaks highly of you and how you have matured as a person during your employment with the company.  He has a high regard for your work and assistance in other areas.  You are fortunate that your good work ethic and underlying good character have earnt you the respect of your employer who has said that he would not hesitate to employ you in the future.
[104]    Other people also speak highly of you and of your strong work ethic and sense of responsibility.  Those people include a local businessman who was a coach and a player of an Australian Rules football team with whom you played in your teenage years.  He says you were a well liked and respected player and friend within the football community which includes many people of Aboriginal background.  He expresses his own opinion, and that of many with whom he has had contact, that your conduct on this occasion was totally out of character.
[105]    Another referee who operates a business in Alice Springs also speaks highly of you and of your underlying values.  He has informed me that you sponsor an underprivileged child from a foreign country with whom you correspond. 
[106]    Mr Swain, you have previously been in trouble with the criminal law for having committed two offences of dishonesty when you were a younger person.  You also have a conviction for driving dangerously.  However, the offences of dishonesty were committed seven years ago and it is apparent from the referees and other information given to me that you have matured and you are a person of underlying good character.  Like your co-offenders, however, on this occasion the combination of circumstances and heavy consumption of alcohol pushed your sense of responsibility into the background and you acted totally out of character. 
[107]    As to the future, I am satisfied that you are highly unlikely to engage in offences of violence.  You have the strong support of your family and girlfriend and you have the capacities, skills and opportunity of becoming employed and re-establishing your life when you are released from prison.  You have accepted full responsibility for your conduct and you are genuinely sorry for what you did and the grief and trauma you have caused to so many people.  I am satisfied that you will make a good future free of trouble with the law. 
Victims
[108]    I have spoken at some length about matters personal to all of you, but in doing so I do not intend to diminish or underestimate either the gravity of your crime or the impact it has had upon the family and friends of the victim and upon the wider community of Alice Springs.  At the heart of your crime of Manslaughter is the unlawful killing of a member of our community.  It is the death which distinguishes this crime from other crimes of violence with which the Criminal Court deals so frequently. 
[109]    The aftermath of this crime is devastation for the family and friends of the deceased.  It is unnecessary and inappropriate to detail publicly the personal and intimate information provided in the victim impact statements.  Not surprisingly, in the words of the deceased’s mother, it felt like “the end of the world”.  She has spoken of how the five of you cut short her son’s life and asked why this happened.  She has asked other questions which can never be answered satisfactorily.  This victim impact statement, in particular, speaks eloquently and sorrowfully of the ongoing enormous grief and sorrow felt by a mother when the life of her child is taken in this way.
[110]    The deceased’s mother also says that all of you should go to gaol for life because you have taken a life, but while this attitude is perfectly understandable, it is not the way in which the law of the Northern Territory works. 
Penalties for Manslaughter
[111]    Sometimes the crime of Manslaughter deserves a sentence of life imprisonment.  However, manslaughter is committed in an infinite variety of circumstances and the sentence is not determined solely by reason of the fact that a life has been unlawfully taken.  A sentence of life imprisonment is reserved for cases in the worst category of manslaughter cases and this crime does not fit into that category.  I emphasise that every crime of Manslaughter is a serious crime, but as with all crimes there is a scale of seriousness.  This crime is toward the lower end of the scale of seriousness for crimes of manslaughter.  For example, if a greater degree of violence had been inflicted, or if the attack had been prolonged, or if the offenders had been aware of a substantial risk of causing the deceased’s death, the crime would have been in the more serious category.  None of these types of aggravating features existed. 
[112]    In particular, I am satisfied that none of the offenders had an awareness of a substantial risk of causing death.  They engaged in the unlawful conduct of assaulting the victim and they are guilty of manslaughter because their conduct caused the death of the deceased in circumstances where their conduct involved such a great falling short of the standard of care that a reasonable person would exercise in those circumstances, and such a high risk that death would occur, that their conduct merits criminal punishment.  It is what is called in the criminal law manslaughter by negligence, and it involves significantly less moral culpability than manslaughter by recklessness which involves an awareness of a substantial risk that death would result. 
[113]    I mention these matters to explain to the family and friends of the victim, and to the community, why the offending is not in the more serious category for crimes of manslaughter.  As I emphasised a moment ago, every crime of Manslaughter is a serious crime, but in arriving at the appropriate penalty for each offender, I must assess where the crime sits in the scale of seriousness for crimes of manslaughter.  It sits toward the lower end of that scale.
[114]    As the crime of Manslaughter is committed in an infinite variety of circumstances, and by a wide range of offenders, necessarily the penalties for the crime of Manslaughter vary considerably.  Over the last ten years, sentences in the Northern Territory for the crime of Manslaughter have ranged from a two year sentence, suspended after service of six months, to 15 years with lengthy non-parole periods.  A significant number of cases resulted in head sentences in the approximate range of four to six years.  None of the individual cases are of particular assistance to me because none of them involved circumstances close or similar to the circumstances of the crime with which I am concerned.
General deterrence
[115]    One of the important factors in sentencing is general deterrence, that is, imposing a penalty that will, hopefully, deter others who are minded to commit crimes of violence.  Your crime of violence arose out of an angry and aggressive reaction to a perceived insult and it is the sort of crime that causes great disquiet throughout our community.  Violence of one form or another is far too common in our community, particularly violence committed in response to a perceived insult or as a means of solving a disagreement with another person.  In certain sections of our community, there seems to be underlying attitude that it is permissible to resort to violence in order to resolve differences or arguments, or in order to exact some form of retribution for a perceived wrong or insult.  It is not permissible or acceptable.  The Criminal Courts of the Northern Territory have been emphasising for many years that this attitude must change and that violent conduct, when it results in serious harm or death, will be met by condign punishment.  Such punishment is required to reflect the need for general deterrence and to mark the disapproval of the community of this type of conduct. 
[116]    It must be recognised, however, that there is a limit to what the courts can do to prevent this type of offending.  In recent years, the Criminal Court has responded to the increasing frequency of crimes of violence and to community concern.  Contrary to the misleading impression conveyed by some commentators, penalties for crimes of violence have increased.  However, although penalties have increased, experience in the criminal courts and extensive research have demonstrated that many offenders are not deterred by the prospect of imprisonment because they commit crimes when they are severely intoxicated and incapable of thinking rationally about the consequences of their actions. 
[117]    Courts are at the end of the cycle of life experiences and events that lead to this type of violence and more is needed than mere punishment through imprisonment.  Heavy sentences of imprisonment have proved ineffective as a deterrent to drunken violence.  Society as a whole must both challenge and work to eradicate the underlying attitude that resorting to violence is acceptable in order to solve differences and to exact retribution for a perceived insult or wrong.  
[118]    This case stands as a stark warning to all members of our community as to how easily tragic consequences can follow from drunken violence.  As has been demonstrated so often in the Criminal Court, relatively minor violence can kill.  In this case, violence of a few seconds causing minor external injuries such as a cut and abrasions resulted in death.  It is a message that needs to go out loudly and clearly to all members of our community.
Sentencing factors
[119]    In the course of these sentencing remarks I have canvassed the various facts and matters personal to each of you which are all relevant to the question of sentence. The most important objective factor is the unlawful killing of the deceased.  Other significant features are as follows:
•    Mr Kloeden and Mr Hird had behaved aggressively towards Aboriginal persons in the riverbed in the way I have described.  Abuse was yelled at Aboriginal persons camped north of the Schwarz Crescent causeway.
•    An atmosphere of antagonism towards Aboriginal persons had been created, primarily by the conduct of Mr Kloeden, but with the contribution of Mr Hird immediately before the critical few seconds.  This atmosphere included aggression towards, and a lack of respect for, those Aboriginal persons who had been camped in the riverbed.
•    The atmosphere having been created, when the bottle thrown by the Aboriginal deceased smashed against the side of the car, Mr Kloeden reacted angrily, aggressively and with retribution in his mind.  This was a spontaneous reaction without giving any thought to whether any damage had been caused to his vehicle. 
•    The action of Mr Kloeden in quickly executing the u-turn and driving up to the deceased amounted to an aggressive threat to the deceased and was carried out in the expectation that the deceased would be attacked physically in some way.
•    When the deceased ran away, again without stopping to look for damage, and again in a spontaneous reaction, Mr Hird jumped from the vehicle and pursued the deceased, closely followed by the other passengers.  Mr Hird reacted in anger and with an intention of physically attacking the deceased. 
•    Mr Spears and Mr Swain also reacted spontaneously with anger and with an intention of physically attacking the deceased.
•    Mr Doody was slower to react.  I am not satisfied that he left the vehicle with an intention personally to physically attack the deceased. 
•    It is an aggravating circumstance that the attack upon the deceased was carried out jointly, that is, it was an attack by each offender carried out in the company of others.
•    It is an aggravating circumstance of particular significance that before the deceased was physically attacked he had fallen to the ground.  He was lying defenceless and incapable of posing any threat to any of the offenders.  When Mr Hird and Mr Swain kicked the deceased, and when Mr Spears struck the deceased with the bottle, they well knew that the deceased did not pose a threat and was defenceless.
•    It is an aggravating circumstance that the kicks and blow with the bottle were delivered to the deceased’s head.
•    It is an aggravating circumstance that a weapon in the form of a bottle was used.
•    The primary motive for the attack was the exacting of retribution for the smashing of the bottle against the side of the vehicle.  None of the offenders bothered to check whether any damage had been caused before setting out to exact that retribution.
•    The responses and actions of Mr Kloeden, Mr Hird, Mr Spears and Mr Swain were influenced to some degree by the fact that the deceased was an Aboriginal person.  However, it remains unknown whether the attack would have gone as far as it did if the deceased had been a drunk white person.
•    Mr Doody is in a different situation.  Not only was he last out of the vehicle, but he did not approach the deceased with the anger and aggression possessed by the other offenders.  In addition, he did not touch the deceased or attempt to touch the deceased.  Nor did Mr Doody say anything to encourage the other offenders.  Mr Doody was caught up in the events and, by getting out of the vehicle as part of the group pursuing the deceased, and by being present when the deceased was physically attacked, Mr Doody encouraged through his presence the attack upon the deceased.
•    Mr Kloeden was sober, but each of the other offenders was drunk.
•    The crime was not planned.  It occurred as a spontaneous reaction to the smashing of the bottle against the side of the vehicle.
•    The attack upon the deceased was not sustained.  The violence was inflicted over a maximum period of five seconds.
•    While cowardly and violent, the attack upon the deceased involved a relatively low level of violence that, at worst, caused relatively minor external injuries in the form of a cut and abrasions.  It is unknown whether the abrasions were caused by the kicks and blow or by falling.  It is likely that the cut was caused when Spears struck the deceased on the back of the head with the bottle, but it could have resulted from the fall and I cannot be certain that it was caused by this blow.
•    The deceased was susceptible to dire consequences from minor trauma by reason of a pre-existing aneurysm.  But for the bursting of the aneurysm, the deceased would have suffered relatively minor injuries and the offenders would have been guilty of an assault at the lower end of the scale of seriousness for offences of assault.
•    None of the offenders intended to kill or cause serious harm to the deceased.
•    None of the offenders foresaw the possibility of death resulting from the attack upon the deceased.  Their crime is a crime of Manslaughter by negligence.
•    All offenders are young and, prior to the commission of this offence, were steady, reliable working persons who had made a good start in life.
•    The criminal conduct resulting in death was, for all offenders, totally out of character.  In particular, Mr Doody, Mr Hird and Mr Spears are first offenders.
•    Each offender has accepted responsibility and each accepts that they must be punished. 
•    Each offender is genuinely sorry for their role in the death of the deceased and for the devastating effects that their conduct has brought to the family and friends of the victim and to their own family and friends.
•    Each offender has excellent prospects of rehabilitation and is unlikely to offend again.
[120]    There is a further fact that should be mentioned.  It concerns what is known as protective custody.  Threats have been made.  All offenders have been kept in less than ideal conditions in order to keep them separated from other prison inmates because of a real possibility of retribution being exacted by other inmates.  It is likely that special arrangements will need to be made with respect to each offender during their period in prison.  I take into account that the conditions are likely to be harsher upon each of the offenders than is normally the situation, but I expect that the Department of Correctional Services will put in place arrangements that satisfactorily ensure the safety of each offender without the imposition of unduly onerous conditions.
Sentence
[121]    All of you are entitled to a reduction of your sentence by reason of your plea of guilty and genuine remorse.  In your case Mr Swain, you have earned a greater reduction by reason of your extensive cooperation with the police, but it is not as large as might otherwise have been because you initially planned a false story with Mr Kloeden and gave it to the police. 
[122]    Each of you is convicted of the crime of Manslaughter.  Mr Kloeden, you are convicted of Recklessly Endangering Life as charged in count 3.
Kloeden – count 3
[123]    I will deal first with Mr Kloeden on count 3, the offence of Recklessly Endangering Life.  This involved driving close to where an occupant of the camp was lying in a manner that gave rise to the danger of death to that occupant while you were reckless as to that danger.  It was conduct accompanied by the racial elements of which I have spoken.  You were sober and there was absolutely no provocation whatsoever.  Your disregard for the safety of the particular victim and others in the camp is well demonstrated by your subsequent conduct in driving back through the same camp.
[124]    In arriving at the appropriate sentence, I must bear in mind that your conduct in the riverbed is to be considered in isolation from your later conduct.  That is, I must not be influenced by any of the facts of the subsequent killing of the deceased.  I must sentence you solely for the conduct in the riverbed as if the events ceased once you reached the causeway.  Dangerous as that conduct was, it did not cause any physical harm.
[125]     Had it not been for your plea of guilty, I would have imposed a sentence of six months imprisonment.  After allowing for your plea of guilty, I impose a sentence of five months imprisonment. 
[126]    If this offence had stood alone, you would not have been required to serve any part of that sentence as it would have been fully suspended.  In these circumstances it is appropriate to direct that the sentence be served concurrently with the sentence I will impose for the crime of Manslaughter.
[127]    In addition, as your motor vehicle was used in committing this offence and the crime of Manslaughter, or at least was used to facilitate the crime of Manslaughter, I cancel your licence and disqualify you from obtaining a licence for a period of three years from the date of your release from prison either on parole or having completed your sentence.
Doody
[128]    Mr Doody, your sentence will be less than the others because you played a lesser role and I assess that your moral culpability was less than the others.  As I have said, you were last out of the vehicle and you did not touch the deceased.  Nor did you say anything to encourage the others.
[129]    Had it not been for your plea of guilty, I would have imposed a sentence of five years imprisonment.  After allowing for your plea of guilty I impose a sentence of four years imprisonment commencing 1 August 2009. 
[130]    In view of your lesser role and lesser moral culpability, and bearing in mind that previously you not only stayed out of trouble, but you were a person of positive good character, I have decided in your case that the interests of the community will best be served by suspending your sentence after you have served 12 months imprisonment.  The operative period of the suspension will be three years.  It is a condition of suspension that for a period of two years from the date of your release you are not to consume alcohol and you are to submit to breath analysis for testing for the presence of alcohol forthwith upon request by a police officer.  Further, for the operative period of three years from the date of your release you are not to use or consume any illicit drug, including cannabis, and you are to provide a urine sample for testing for the presence of illicit drugs forthwith upon request by a police officer.
Hird, Kloeden, Spears and Swain
[131]    Mr Hird, Mr Spears and Mr Swain, in my view there is no significant difference between you in respect of moral culpability for the role that each of you played.  While Mr Hird was first out of the vehicle, Mr Swain delivered two kicks and Mr Spears struck the deceased with a bottle.
[132]    Mr Kloeden, with respect to your moral culpability, as I have said your earlier conduct created the tone or atmosphere and you set the events in train by reacting so quickly and aggressively to the impact of the bottle.  The only reason you did not get out of the vehicle was your need to execute a three-point turn and the fact that the attack was over so quickly.  However, it remains a fact that you did not inflict physical violence upon the deceased.  Viewing the circumstances in their entirety, I regard your moral culpability as the same as that of Hird, Spears and Swain. 
[133]    Overall, I do not see any reason to differentiate between the four of you except in respect of the reduction in recognition of your pleas of guilty and remorse.  In respect of each of you, Mr Hird, Mr Kloeden, Mr Spears and Mr Swain, had it not been for your plea of guilty, I would have imposed a sentence of seven years and six months.  In respect of Mr Hird, Mr Kloeden and Mr Spears, after allowing for your pleas of guilty, with respect to each of you I impose a sentence of six years imprisonment.  Mr Hird’s sentence will commence on 31 July 2009.  The sentences of Mr Kloeden and Mr Spears will commence on 1 August 2009.   
[134]    In respect of each of Mr Hird, Mr Kloeden and Mr Spears, I fix a non-parole period of four years.
[135]    Mr Swain, after allowing for your plea of guilty and your extensive cooperation with the police, I impose a sentence of five years and six months imprisonment commencing 1 August 2009.  I fix a non-parole period of three years and six months.


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