ALICE SPRINGS NEWS
April 23, 2010.
R v Doody & Others
PARTIES: THE QUEEN
DOODY, Scott, HIRD, Timothy, KLOEDEN, Anton, SPEARS, Joshua AND SWAIN,
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
JURISDICTION: SUPREME COURT OF THE TERRITORY
EXERCISING TERRITORY JURISDICTION
FILE NOS: 20925481, 20925478, 20925476, 20925496,
DELIVERED: 23 April 2010
SENTENCING REMARKS OF: MARTIN (BR) CJ
Plaintiff: M McColm
Defendants: M Preston, J McBride,
R Goldflam, T Whitelum, R Anderson
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
R v Doody & Ors
Nos. 20925481, 20925478, 20925476, 20925496, 20925503
SCOTT DOODY, TIMOTHY HIRD, ANTON KLOEDEN, JOSHUA SPEARS AND GLEN SWAIN
CORAM: MARTIN (BR) CJ
(Delivered 23 April 2010)
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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
 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.
 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.
 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.
 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.
 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.
 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
 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
 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”.
 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
 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
 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.
 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
 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.
 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.
 I quote the Crown facts as to the ensuing
critical events that followed in the space of a few seconds:
“ 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’.
 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.
 Following this assault the deceased did not
 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.
 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
 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
 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
 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.
 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.
 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.
 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.
 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.
 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.
 You, Mr Spears, said you had remained in the car
when the deceased was attacked. You also participated in a
 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
 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.
 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
• 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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,
 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.
 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.
 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
 The attitude of your employer, and other
employers who have offered support to your co-offenders, is to be
 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
 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.
 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.
 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.
 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.
 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
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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
 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.
 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
 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.
 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.
 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.
 I repeat, these and other employers are to be
commended for their positive and very helpful attitude.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
• 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
• 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 attack upon the deceased was not
sustained. The violence was inflicted over a maximum period of
• 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
• 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.
 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.
 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.
 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
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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
 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.
 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
 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.
 In respect of each of Mr Hird, Mr Kloeden and
Mr Spears, I fix a non-parole period of four years.
 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.