Supreme Court New South Wales

• Medium Neutral Citation: R v James DEAN-WILLCOCKS [2012] NSWSC 107
• Hearing dates: 26-28/10/2011; 31/10/2011; 01-04/11/2011; 7/11/2011, 03/02/2012
• Decision date: 24 February 2012
• Before: Garling J

Decision

(a) I sentence you to a term of imprisonment without parole of 4 years to commence on 10 October 2009 and to conclude on 9 October 2013.

(b) I sentence you to a balance of term of 3 years and 6 months, to conclude on 9 April 2017.

(c) The first day on which you will be eligible for release from custody is 9 October 2013.

• Catchwords: CRIMINAL LAW - Sentence - Manslaughter - Random and sustained attack on stranger in street - Fatal brain injury when head struck footpath during tackle - Intoxicated offender - Likely blood alcohol concentration of 0.3 - No memory of attack - Conduct racially motivated - Vulnerable elderly peripatetic victim - Attack unplanned - No significant prior convictions - Previous good character - Remorse - Good prospects of rehabilitation - Alcohol problems being addressed - Strong family support - Employment prospects - Discount for guilty plea - Special circumstances for varying statutory ratio for non-parole period
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900; Criminal Case Conferencing Trial Act 2008
• Cases Cited: APT v R [2009] NSWCCA 230; Cheung v The Queen [2001] HCA 67; 209 CLR 1; KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571; Lowe v The Queen [1984] HCA 46; 154 CLR 606; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Mill v The Queen [1988] HCA 70; 166 CLR 59; Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154; Pearce v The Queen [1988] HCA 57; 194 CLR 610; R v Adamson [2002] NSWCCA 349; 132 A Crim R 511; R v AJC [2010] NSWCCA 168; R v Blacklidge (NSWCCA, 12 December 1995, unreported); R v Borkowski [2009] NSWCCA 102; R v Carroll [2008] NSWCCA 218; R v Edwards (1996) 90 A Crim R 510; R v Isaacs (1997) 41 NSWLR 374; R v Johnson [2003] NSWCCA 129; R v MacDonell (NSWCCA, 8 December 1995, unreported); R v Oinonen [1999] NSWCCA 310; R v Pham; R v Ly (1991) 55 A Crim R 128; R v Previtera (1977) 94 A Crim R 76; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; R v Way [2004] NSWCCA 131; 60 NSWLR 168; Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
• Category: Sentence
• Parties: The Crown; James Dean-Willcocks
• Representation: T Thorpe (Crown); P Boulten SC (Offender); Solicitor for Public Prosecutions (Crown); Giddy & Crittenden (Offender)
• File Number(s): 2009/226038
• Publication restriction: Nil

Judgment

1 On 10 October 2009, James Dean-Willcocks killed Magno Alvarado in Elouera Road, Cronulla, NSW.

2 He did so, having encountered him randomly on the footpath of Elouera Road, by chasing and assaulting him and then finally, by pursuing him along the footpath, tackling him forcibly from the rear, causing him to fall to the concrete footpath. There, whilst Mr Alvarado was prone and not moving, he body-slammed him on two occasions.

3 The assault, tackling and body-slamming caused multiple fractures of Mr Alvarado's skull, multiple lacerations and abrasions, serious brain injury and serious neck and rib injuries. He did not recover and later that day, died in St George Hospital without regaining consciousness.

4 Mr Dean-Willcocks was arrested at about 6am on 10 October 2009, and has been in custody ever since. He was charged with murder.

5 On 28 September 2010, at the Local Court, Mr Dean-Willcocks offered to plead guilty to manslaughter. The Crown declined that offer.

6 On 26 October 2011, when indicted in front of the jury, Mr Dean-Willcocks pleaded not guilty to the charge of murder, but guilty of the offence of manslaughter. The Crown again declined to accept his plea in full discharge of the indictment.

7 The trial proceeded to Monday 7 November 2011, when the jury returned a verdict of not guilty of murder, but guilty of manslaughter.

8 It is now time for Mr Dean-Willcocks to be sentenced for his crime.

9 The Crimes Act 1900 provides a maximum term of imprisonment for the offence of manslaughter of imprisonment for 25 years. There is no standard non-parole period fixed by legislation.

Judicial Task on Sentencing

10 In the circumstances of this present case, it is appropriate that I remind myself of the judicial task on sentencing.

11 In the present system of criminal justice, I must exercise a discretion as to what sentence should be imposed upon Mr Dean-Willcocks by applying well identified principles of law to the facts which I find: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at 1-2.

12 The principles of law are well established and are conveniently summarised in the following way:

"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury...;

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings ...;

3. The primary constraint upon the power and duty of decision-making ... is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury ...;

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt ...;

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender ...".

R v Isaacs (1997) 41 NSWLR 374 at 377-378; see also Cheung v The Queen [2001] HCA 67; 209 CLR 1.

13 The appropriate approach to sentencing is to identify all of the factors that are relevant to sentencing, identify their significance with the particular circumstances of the offence and then to make a value judgment as to what is the appropriate sentence having regard to the purpose for which a sentence is to be imposed: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51] per McHugh J; Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 at [26].

14 I will apply these principles in the course of this sentence.

The Relevant Legislation

15 The Parliament of NSW has determined the purposes for which a court may impose a sentence on an offender. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that those purposes are:

"(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community."

16 Part 3 of the Crimes (Sentencing Procedure) Act sets out the relevant provisions that deal with sentencing procedures generally. Of particular importance are the terms of s 21A, which relevantly are as follows:

" 21A Aggravating, mitigating and other factors in sentencing

(1) General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) ...

(b) the offence involved the actual or threatened use of violence,

...

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

...

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

...

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) ...

(b) the offence was not part of a planned or organised criminal activity,

...

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

...

(k) a plea of guilty by the offender,

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence."

Principles of Sentencing

17 The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These common law principles are to be found in decided cases.

18 In summary, the common law principles include:

(a) proportionality - namely that the sentence should be proportionate to the gravity of the offences: Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ;

(b) parity - namely, that any difference between sentences imposed upon co-offenders for the same offence, ought not be such as to give rise to a justifiable sense of grievance, and to give the appearance that justice has not been done: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 617 per Dawson J, Gibbs CJ and Wilson J agreeing;

(c) totality - namely, that when a person stands for sentence for a number of offences, the Court must look at the totality of the criminal behaviour and determine what the appropriate sentence is for all of the offences: Mill v The Queen [1988] HCA 70; 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ;

(d) avoidance of double punishment - namely that a person should not be punished twice for the same conduct: Pearce v The Queen [1988] HCA 57; 194 CLR 610.

19 The importance of these principles is that s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [56]-[57]; Muldrock at [18].

20 As well, factors established by the common law as affecting sentence, such as whether prison may be particularly burdensome, are also to be taken into account in accordance with s 21A: Muldrock at [19].

The Facts

21 I find the facts of the matter to be as follows.

22 Mr Dean-Willcocks was born on 9 October 1986. Accordingly, he had just turned 23 at the time he killed Mr Alvarado. Mr Alvarado was a complete stranger to him and there is no evidence to suggest that they had ever seen each other before this day.

23 Prior to October 2009, Mr Dean-Willcocks lived at home with his parents at Illawong. He was employed as a carpenter at Harbour Port Consulting Pty Ltd at Cronulla. He started working there during 2006 as a general bridge and wharf carpenter, and became the manager of its pontoon manufacturing factory.

24 He regularly socialised with a group of young people from the Cronulla area. It was apparently his regular habit to go out on a weekend with various members of the group. When he did so, he was accustomed to drinking between 12 and 15 stubbies of full strength beer. This consumption did not usually lead to him showing any signs of significant intoxication.

25 On 9 October 2009, it was decided to celebrate Mr Dean-Willcocks' 23 rd birthday and the birthdays of two other of his social companions. They planned to head into the central business district of Sydney where a hotel room in Bond Street had been booked.

26 Mr Dean-Willcocks completed work in the ordinary fashion. Because it was his birthday, his employer gave him an additional $40 by way of wages so that he could celebrate by purchasing a carton of beer. After work, he returned home to the family home at Illawong. There he consumed, according to what he told the police, about four full strength beers.

27 He was then driven to an apartment of a friend of his, Mr Jack Barnier, which was in Elouera Road.

28 Although various of the participants in the social group arrived at different times, it appears likely that Mr Dean-Willcocks arrived at about 5.30pm. There he consumed some further full strength beer. Estimates varied as to the quantity which he consumed, but I am satisfied that he consumed at least three stubbies of full strength beer.

29 There was also in the premises, and available for use, a drug called "speed". Although it is not clear precisely when Mr Dean-Willcocks partook of that particular drug, I am satisfied from the blood tests which took place after the assaults, and whilst Mr Dean-Willcocks was in custody, that he must either at Mr Barnier's place or in the CBD, have consumed some of the speed. However, I accept Dr Perl's evidence that the drugs which Mr Dean-Willcocks had consumed had no effect whatsoever upon him and had no causal relationship to the events which occurred.

30 Mr Dean-Willcocks, in the company of others, left Mr Barnier's apartment at about 7pm and proceeded to Bond Street in the CBD. Mr Dean-Willcocks arrived at that hotel room at 7.30pm. He remained there until about 4am on the following morning.

31 During his time in the hotel room, Mr Dean-Willcocks commenced drinking full strength beer, probably in the order of five or six stubbies. Thereafter he commenced drinking Southern Comfort from the 1.1 litre bottle, which he had purchased en route to the city. Some of the spirits that he drank were mixed with Coca Cola. At other times, he was seen to be drinking the spirits neat without any mixer. It is undoubted that he consumed a great deal of alcohol and probably most of the bottle of spirits, although it is not possible to make a definitive finding as to precisely how much of the bottle was consumed by him.

32 By about 12.30am on 10 October 2009, Mr Dean-Willcocks was well affected by alcohol. By that time he was having a great deal of difficulty standing up and moving properly. He was stumbling and bumping into walls, spilling drinks on himself and elsewhere in the room and he had knocked a large wall mirror and a bedside table lamp. He then collapsed onto a couch in the room and passed out. He was deeply asleep from about 1am to about 4am.

33 At about 4am he awoke and attempted to go to the bathroom. He was unable to do so by himself and required assistance. He was stumbling, slurring his words and was observed to be extremely drunk and was making a degree of noise and being generally oppositional.

34 It was decided amongst a number of his friends, in particular Mr Aaron Brooker and Mr Jack Barnier, that they should take Mr Dean-Willcocks back to Cronulla. He was in no fit state to be taken home to his parents' house at Illawong and accordingly, it was decided that he should go back to Jack Barnier's unit in Elouera Road to recover from his intoxicated state.

35 A little after 4.30am, Mr Dean-Willcocks left the hotel room. He was supported on the arms of Aaron Brooker and Jack Barnier. As he approached the lift, he was seen to fall over, pulling Chloe Barnes down on top of him. He was then helped into the lift. The CCTV footage of the group of four leaving the hotel shows that Mr Dean-Willcocks was unsteady on his feet and he needed to be led by the hand from the building into the street.

36 A taxi was hailed and Mr Dean-Willcocks and his three companions were driven to Cronulla.

37 The taxi was directed to pull up in Elouera Road and did so at a point about 200 metres or so south of Mr Barnier's apartment. All of the passengers left the taxi. Mr Dean-Willcocks was observed to be slow in leaving the taxi and having difficulty in getting out of it. It is likely that he was holding a bottle of beer, which fell to the ground and shattered on the road surface as he alighted from the taxi.

38 Mr Brooker and Ms Barnes commenced walking back to Mr Barnier's unit, and Mr Barnier and Mr Dean-Willcocks followed about 10 metres or so behind. During the course of that short walk, Mr Barnier stopped to relieve himself and lost sight of Mr Dean-Willcocks. The other two also lost sight of him and the three continued back to Mr Barnier's apartment believing that Mr Dean-Willcocks would meet them there. They did not see him again prior to his arrest.

39 Mr Dean-Willcocks made his way along the western footpath of Elouera Road, which runs in generally north/south direction. Near 117 Elouera Road, which is the block of apartments adjacent to the intersection of Bourke Road and Elouera Road, Mr Dean-Willcocks encountered the deceased, Mr Magno Alvarado. There then began a sequence of events, which it is necessary to describe, which culminated in the death of Mr Alvarado.

40 Mr Alvarado was a man in his late 60s. It was his habit to rise early in the morning and wander the streets of Cronulla collecting items at random such as crushed aluminium cans, sifting through sand to see what he could find and generally in an entirely harmless manner, following his peripatetic ways. Any items of potential value were sent back to the Philippines to be sold at markets there. The moneys received were used for the benefit of Mr Alvarado's relatives in the Philippines.

41 On that morning, Mr Alvarado was dressed in about five layers of clothing on his upper body. He was carrying a soft blue cloth bag in which there was a large strainer or sieve.

42 I am satisfied that the initial confrontation which occurred outside 117 Elouera Road related to the blue bag because one of the residents of 119 Elouera Road heard an exchange between two men in which one yelled " give it back " and " you're not going anywhere ". This appeared to come from outside 117 Elouera Road.

43 From where Mr Alvarado and Mr Dean-Willcocks were, outside 117 Elouera Road, they went from the footpath to the area of the parked cars in front of 119 Elouera Road. Mr Dean-Willcocks chased Mr Alvarado around those cars at a time when Mr Alvarado was yelling at him to leave him alone and go away.

44 Mr Alvarado ran out onto the road and tried to flag a passing car down and seek help from the occupant of that car. The car did not stop but rather drove around Mr Alvarado, who had tripped on the road surface, tooting its horn.

45 The chasing and struggle continued in front of 119 Elouera Road. There was a struggle between the two men. Mr Dean-Willcocks was heard to yell out " fuck off Japanese cunt, fuck off back to Japan ". Mr Alvarado was heard to call out for help. At that time I am satisfied that Mr Dean-Willcocks was attacking Mr Alvarado. He had hold of him by his outside jacket. He was punching him and throwing him to the ground. When this scuffle was interrupted by the yelling of the occupants of 119 Elouera Road, Mr Alvarado, in an attempt to escape from Mr Dean-Willcocks, ran to where the cars were parked and again tried to place a car between himself and Mr Dean-Willcocks.

46 He was pursued further south by Mr Dean-Willcocks onto Elouera Road where he was tackled and a struggle ensued. At that time Mr Joshua Doyle, a most impressive witness, was driving his car along Elouera Road and came across the two men struggling on the road.

47 I accept Mr Doyle's evidence of what then occurred. It involved the following:

(a) A struggle on the ground with the two men rolling around. Mr Dean-Willcocks managed to roll on top of Mr Alvarado, created a distance between them and then threw three punches which connected with Mr Alvarado's face.

(b) Mr Doyle alighted from his vehicle, went to the two men and in an assertive manner, spoke to them and tried to break up the fight. This took a number of attempts.

(c) He spoke with Mr Dean-Willcocks and said " What's going on mate ". Mr Dean-Willcocks responded " You don't understand, he's Japanese ". Mr Dean-Willcocks repeated this statement on a number of occasions.

(d) As that was happening, Mr Alvarado slowly got off the ground and started to walk off towards the western footpath, then turned and headed in a southerly direction. There was another man, apparently on his way to work, who was walking south along that footpath from whom I am satisfied Mr Alvarado sought help.

(e) Mr Alvarado having asked the man who was apparently on his way to work for help, and being ignored, then screamed out " help, help, help me ".

(f) As that happened, Mr Dean-Willcocks suddenly turned, and ran off the road and towards Mr Alvarado. He did so by running through the cars then turning left onto the footpath.

(g) Mr Doyle followed and by the time he arrived on the footpath and looked south he observed, about 20-25 metres along the footpath, Mr Alvarado lying on the ground as was Mr Dean-Willcocks.

(h) He then saw Mr Dean-Willcocks stand up and perform what he described as a " full body-slam " on Mr Alvarado. He meant that Mr Dean-Willcocks jumped into the air and with the full force of his elbow and body, slammed down on the prostrate Mr Alvarado.

(i) This was repeated one more time with somewhat less force.

48 It is apparent from other evidence of eyewitnesses, in particular Mr Abdelmessiah, that Mr Dean-Willcocks ran along the footpath after Mr Alvarado, approached him from behind and tackled him around the waist and top of his legs. Mr Alvarado who had been looking back over his shoulder to see where Mr Dean-Willcocks was, fell to the ground and hit the back or side of his head on the footpath. This was a hard collision, because a number of witnesses described what they heard as a " crack " as Mr Alvarado's head hit the concrete footpath.

49 I am satisfied that the most serious injury which resulted in a skull fracture, extensive subdural and subarachnoid haemorrhage and brain injury which led to death, was occasioned when Mr Alvarado's head struck the footpath when he was tackled by Mr Dean-Willcocks. I am also satisfied that the other principal injuries to Mr Alvarado's neck and ribs occurred when Mr Dean-Willcocks performed his two body-slams onto Mr Alvardo's body whilst he lay motionless on the footpath.

50 As Mr Doyle rendered assistance to Mr Alvarado, Mr Dean-Willcocks walked away, heading north along the footpath. When Mr Doyle called out for him to be detained by some of the neighbours who had arrived on the footpath, Mr Dean-Willcocks commenced running quite fast and hard in that direction, I infer, intending to go to Mr Barnier's apartment. He was tackled, brought to the ground and restrained until the police arrived.

51 Mr Alvarado was taken to St George Hospital. He never regained consciousness and died later that day.

Intoxication Evidence

52 The observations of those who saw the events on Elouera Road were that Mr Dean-Willcocks was intoxicated. Those observers variously commented that he was unsteady on his feet, he was slurring his words, what he said made no sense and he was clearly behaving in an irrational manner.

53 The police who arrested Mr Dean-Willcocks observed that he was very intoxicated. When he was taken back to Miranda Police Station, he came under the care of Leading Senior Constable Lochrin, who was the custody manager at Miranda Police Station.

54 Mr Lochrin was an impressive witness and I am satisfied that he was able accurately to assess Mr Dean-Willcocks' state of sobriety. He formed the view that, upon his arrival at the police station, Mr Dean-Willcocks was well affected by alcohol, he was having difficulty standing unaided, his speech was considerably slurred and it was not appropriate for him to be interviewed.

55 Mr Lochrin placed Mr Dean-Willcocks into a "time-out" which prevented the investigation team from carrying on their investigations involving Mr Dean-Willcocks and suspended the running of time.

56 At about 7.55am, Mr Lochrin spoke to Mr Dean-Willcocks. He observed that his speech was still very slurred and his eyelids were drooping heavily. He was again observed at 9.33am and Mr Lochrin formed the opinion that Mr Dean-Willcocks was still somewhat groggy from the residual presence of alcohol and lack of sleep. It was not until 10am that Mr Lochrin permitted the investigation to continue.

57 I am satisfied that at the time of the events in Elouera Road, Mr Dean-Willcocks was well intoxicated and his conduct was affected by that intoxication. Dr Perl, an expert pharmacologist, expressed the opinion, which I accept, that at about the time of the incident, the likely blood alcohol concentration of Mr Dean-Willcocks was between 0.165 grams per 100 millilitres and 0.355 grams per 100 millilitres. Dr Perl agreed that, as Mr Dean-Willcocks was a young, fit male who was accustomed to drinking heavily, and therefore had a high tolerance to alcohol, it was likely that he would have been at the upper end of that range.

58 I am satisfied that at the time he assaulted and tackled Mr Alvarado, that Mr Dean-Willcocks' blood alcohol concentration was likely to be no less than 0.3 grams per 100 millilitres of blood. This is a very high level. It is six times the legal limit for driving a motor vehicle and twice the limit for the offence of high range PCA.

59 I am satisfied that at the time of the offence, as Dr Perl opined, Mr Dean-Willcocks was extremely intoxicated, that he had a significant cognitive impairment and that, so disrupted were his mental processes, it is unlikely that the consequences of what he was doing were a factor in his consideration. I am satisfied that his cognitive function was severely impaired and his processing skills were also severely impaired.

60 It was in that state that Mr Dean-Willcocks attacked Mr Alvarado, wholly without justification, and then persisted in chasing him and bringing him to the ground whilst uttering racial slurs which were wholly unjustified.

61 Mr Dean-Willcocks' intoxication is an explanation for what occurred. It does not justify it. He did not attempt to justify what he did.

62 Mr Dean-Willcocks has no memory of the offence or of the period surrounding it.

Procedural History

63 Mr Dean-Willcocks was taken to the Miranda Police Station and, after the "time-out" previously described, was interviewed. That interview was recorded electronically. He told the police officers that he had no recollection of what occurred, he was quite unclear as to how he had returned from the city to Cronulla and when confronted with a version of events and asked for a comment, he accepted the description of what had occurred and described himself as being a " dickhead ".

64 After the police learned of the death of Mr Alvarado, Mr Dean-Willcocks was charged with his murder. Mr Dean-Willcocks has been in custody since 10 October 2009.

65 At trial, Mr Dean-Willcocks pleaded not guilty to murder, but guilty to manslaughter on the basis that, such was the extent of his intoxication, that he did not form any specific intention to cause grievous bodily harm to Mr Alvarado and accordingly was not guilty of murder. Mr Dean-Willcocks accepted that he had assaulted Mr Alvarado, that the assault was unlawful, that the tackle which he carried out on Mr Alvarado was both unlawful and dangerous and that his conduct had occasioned the death of Mr Alvarado. He therefore pleaded guilty to manslaughter.

66 I am satisfied, consistent with the jury's verdict that Mr Dean-Willcocks did not have any specific intention to kill or cause grievous bodily harm to Mr Alvarado. I am satisfied that he engaged in unlawful and dangerous conduct, which conduct caused the death of Mr Alvarado.

Aggravating Features

67 As stated at [16], section 21A of the Crimes (Sentencing Procedure) Act identifies a number of matters as aggravating factors to which regard must be had in determining the appropriate sentence to be imposed.

68 The first which is relevant to this matter, is that the offence involved the actual use of violence: see s 21A(2)(b). However, given the nature of the crime, I am satisfied that this aggravating factor is accounted for as being an element of the offence and that I should not have additional regard to it.

69 The second matter is whether the injury caused by the offence was substantial: s 21A(2)(g). Again, this is not an aggravating matter to which I ought have any additional regard.

70 A particular aggravating feature which the legislation calls attention in s 21A(2)(h), is whether the offence was

"...motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged, such as people of a particular ... racial or ethnic origin ..."

71 Although the offence was committed whilst Mr Dean-Willcocks was heavily intoxicated, I am satisfied that the motivation for this otherwise senseless attack is to be found in what he called out from time to time whilst he was assaulting, scuffling with, chasing and tackling Mr Alvarado. Mr Dean-Willcocks obviously formed the opinion that Mr Alvarado was a Japanese or Asian man. His racial abuse of Mr Alvarado, yelling out that he ought to go back to Japan and leave Australia, as well as his justification to Mr Doyle namely, " you don't understand, he's Japanese ", leave me in no doubt that this was an offence motivated by prejudice against people from Japan or perhaps more generally from Asia. This is an aggravating feature of the conduct that I will take into account.

72 During the course of his submissions on sentence, senior counsel for Mr Dean-Willcocks submitted that, having regard to the evidence given on sentence, I should not be persuaded that Mr Dean-Willcocks' conduct was racially motivated. The evidence on sentence was clear, namely, that prior to the attack on Mr Alvarado, Mr Dean-Willcocks had not demonstrated, either by his conduct, or his words, any hint of racism, or being anti-Japanese or anti-Asian. His words, and conduct, on that morning were said to be aberrant and completely out of character.

73 Whilst I accept that Mr Dean-Willcocks was not a person who acted or spoke contrary to the interests of any racial group, that does not tell against, on this occasion, his being motivated by hatred or prejudice against a specific racial group. The persistent use by him of racially directed comments whilst assaulting Mr Alvarado leaves no real room for debate that what he was doing was racially motivated.

74 I am unable to convincingly rationalise why there is such a difference of Mr Dean-Willcocks' attitude. I do not believe that I am obliged to. Perhaps it was the extent of his inebriation that led him to make the comments which he did. After all, as his senior counsel accepted in submissions, it has been at least since Pliny the Elder wrote his encyclopaedic work Naturalis Historia in AD 77-79, that the phrase " in vino veritas " has been used to explain the appearance of unexpected behaviour in inebriated individuals. However that may be, I am simply not in a position to satisfactorily rationalise all of the evidence on this issue.

75 Another aggravating factor to which the legislation calls attention is that the victim was a vulnerable person, for example, that the victim was very old: see s 21A(2)(l). It is not essential for the application of this aggravating factor for the victim to be " very old ". What is necessary is that the Court makes a determination as to whether the victim was a vulnerable person or not.

76 I am satisfied that Mr Alvarado was a vulnerable victim. He was in his late sixties. He was clearly not an agile man. He was wandering the streets in a peripatetic fashion, collecting items which to him appeared to be of value, but which to the objective observer were of no value at all. He was a harmless, completely inoffensive individual seeking out meagre pleasure on the streets of Cronulla in the early morning. He was entirely vulnerable. He was picked on, in my judgment, in part because of this vulnerability. He was an easy target. This is an aggravating feature of Mr Dean-Willcocks' behaviour to which I will have regard.

Mitigating Features

77 There are a number of mitigating factors identified by s 21A(3) of the Crimes (Sentencing Procedure) Act to which I am required to have regard and to which I do. They are:

(a) that the offence was not part of a planned or organised criminal activity: s 21A(3)(b). I am satisfied that the offence had no feature of planning or organised criminal activity. It was entirely opportunistic. This, in the particular circumstances, has only a small mitigatory effect.

(b) that the offender had no prior criminal convictions and was a person of good character: ss 21A(3)(e) and 21A(3)(f). Here, Mr Dean-Willcocks had a prior conviction for mid-range PCA in 2007. I do not regard that conviction to be of any relevance to the offence for which sentence is being passed. The Crown accepted that Mr Dean-Willcocks was otherwise of good character. There was unchallenged evidence from his employer, Mr Craig Turner, that that was so. I accept that prior to this offence, Mr Dean-Willcocks was of good character and I take this mitigating factor into account.

(c) Mr Dean-Willcocks' prospects of rehabilitation and likelihood of reoffending: ss 21A(3)(g) and 21A(3)(h). Having regard to all of the circumstances, and in particular the extent of intoxication, Mr Dean-Willcocks' age and immaturity, and his acceptance of both criminal and moral responsibility for what he has done, I am satisfied that he has good prospects of rehabilitation and that there is only a slight chance of any reoffending in the future; and

(d) remorse: where an offender has shown remorse that can mitigate any sentence: s 21A(3)(i). I am satisfied by his plea of guilty to manslaughter which was entered at a reasonably early opportunity, that Mr Dean-Willcocks has shown true remorse and that he is entitled to the benefit of that remorse. I also accept his evidence, and that of his father before me to like effect.

(e) plea of guilty: s 21A(k). This will be discussed later at [91].

Seriousness of the Offence

78 The courts have recognised for many years that sentencing for the crime of manslaughter is a difficult task. That is because the range of conduct which can result in the death of an individual is very great. In all cases of manslaughter, matters of fact and degree arise. Views as to the relative importance of particular facts and matters will undoubtedly differ.

79 However, one principle which is important for a sentencing judge to always keep in mind when considering the crime of manslaughter is that the starting point for consideration of the appropriate penalty, and a key element in assessing the gravity of the objective circumstances of the case, is that what is involved in this case, and in every case of manslaughter, is the felonious taking of a human life: See R v Blacklidge (NSWCCA, 12 December 1995, unreported), per Gleeson CJ.

80 Manslaughter, as an unlawful homicide, however it occurs, has always been regarded by the law as a most serious crime. That is because the protection of human life and personal safety is a primary objective of the system of criminal justice: See R v Edwards (1996) 90 A Crim R 510, per Gleeson CJ (James and Ireland JJ agreeing).

81 In my opinion, the criminality involved here was serious. The general course of conduct followed by Mr Dean-Willcocks leading up to the tackle was opportunistic and unplanned.

82 I am satisfied, consistent with the jury's verdict, that I should find that this was a thoughtless act committed whilst Mr Dean-Willcocks was heavily intoxicated. Mr Dean-Willcocks did not intend to cause Mr Alvarado any serious physical injury by tackling him. It was a cowardly, senseless, stupid and entirely unnecessary attack.

83 As I have already said, manslaughter is regarded as a most serious offence. But in the circumstances of this matter, I am persuaded that the conduct of Mr Dean-Willcocks demonstrated a degree of immaturity, and the effects of his heavy intoxication with alcohol.

84 I accept, as the jury must have, that Mr Dean-Willcocks never thought that his actions would cause really serious physical injury to Mr Alvarado. But what he did was dangerous and unlawful. He sought to express his emotions with violence. It resulted in the death of Mr Alvarado.

Subjective Features

85 Mr Dean-Willcocks was just 23 years old at the time of the offence. He was raised in a family consisting of his parents and three siblings. He had a good relationship with his family. He was educated at both primary and secondary school until the end of Year 10.

86 He found a variety of employment positions having left school. By the age of about 19 or 20, he commenced working as a bridge and wharf carpenter in the business in which he was working at the time of the offence. He was regarded as a good worker and after a period of time he was engaged in the task of managing the pontoon manufacturing workshop.

87 Mr Dean-Willcocks was regarded as a responsible employee and one who could both manage deadlines demanded by work and also his fellow workers. He was not known to be aggressive or violent whilst at work. His employer has offered to re-employ him if his business exists at the time of his release from prison.

88 Since his arrest, and whilst in custody, he has undergone a number of courses to deal with his alcohol abuse and anger management issues.

89 Prior to the offence, it is clear that Mr Dean-Willcocks was accustomed to drinking very heavily, but mainly on the weekends. He seemed to take alcohol on most days of the week but not always to excess. He was, in my judgment, an alcoholic.

90 The evidence satisfies me that since his arrest and whilst he has been in custody, Mr Dean-Willcocks has been well supported by his family with whom he seems to have a continuing close and supportive relationship. They will help his rehabilitation upon his release from prison.

Early Plea of Guilty

91 On 28 September 2010, in the Local Court, during a case conference, Mr Dean-Willcocks indicated that he was prepared to plead guilty to manslaughter on the basis, seemingly, that his level of intoxication meant that he did not have the necessary specific intention to constitute the crime of murder. That is, he did not have the intention to cause grievous bodily harm to Mr Alvarado. He accepted then, as he has at all times since, that he did engage in an unlawful and/or dangerous act which caused Mr Alvarado's death. The Crown rejected Mr Dean-Willcocks' offer and accordingly he was tried for murder before the jury.

92 The case conference was conducted in accordance with the Criminal Case Conferencing Trial Act 2008. Both the Crown and senior counsel for Mr Dean-Willcocks agreed that the effect of these statutory provisions, in the events which have happened, is to require the Court, when imposing a sentence of imprisonment for a term, to give a discount of 25 per cent on the term which would otherwise have been imposed.

93 However, even if the Act did not apply, and I was dealing with the usual sentencing principles, I would have arrived at the same result.

94 Section 22 of the Crimes (Sentencing Procedure) Act provides that in passing sentence, a court must take into account a plea of guilty and some associated circumstances. However, the legislation requires that any lesser penalty imposed must:

"... not be unreasonably disproportionate to the nature and circumstances of the offence."

95 The nature of this crime does not call for either the maximum sentence, or such a long sentence, that any discount is inappropriate. The two exceptions enunciated by Spigelman CJ in R v Thomson ; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [157] and [158] have no application to the circumstances of this offence.

96 It is entirely appropriate to recognise the offer to plead guilty which, if accepted, would have achieved a utilitarian benefit for the efficiency and effectiveness of the criminal justice system as a whole. The matter was still in the Local Court and had the plea been accepted, it would have been a substantial benefit to the administration of justice in NSW.

97 Mr Dean-Willcocks adhered to the plea on subsequent occasions and in particular upon arraignment in this Court and then when indicted before the jury.

98 Had the plea been accepted in those circumstances by the Crown, a discount of 25 per cent would have been appropriate. As Grove J, with whom Spigelman CJ and Sully J agreed, said in R v Oinonen [1999] NSWCCA 310 at [15] having regard to the then relevant legislation:

"There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted."

See also: R v Johnson [2003] NSWCCA 129 at [37]-[43] per Bell J, Giles JA and Carruthers AJ agreeing; R v Borkowski [2009] NSWCCA 102 at [32] per Howie J (McClellan CJ at CL and Simpson J agreeing).

99 Such an approach seems to me to accord with the incentive and the public interest benefit which underlay the provision of a discount for an early plea: see Thomson at [115] and [122] per Spigelman CJ.

100 Accordingly, I am satisfied either by application of the statute, or else by application of sentencing principles, that in this case it is appropriate to allow a 25 per cent discount for Mr Dean-Willcocks' offer to plead guilty to manslaughter and to his subsequent plea of guilty to that offence.

Victim Impact Statement

101 The effect which Mr Dean-Willcocks' conduct has had on Mr Alvarado's son and grandson has been expressed by Mr Nelson Alvarado in his victim impact statement which was read aloud to the Court. I acknowledge the contents of this statement. I express my sympathy to Mr Nelson Alvarado and his son for their tragic and senseless loss.

102 I will have regard, in fixing the appropriate sentence, to that statement in the way in which the law allows me: s 28 Crimes (Sentencing Procedure) Act ; R v Previtera (1997) 94 A Crim R 76.

Custodial Conditions

103 The unchallenged evidence before the Court on sentence was that Mr Dean-Willcocks is presently serving his time in custody in protection as a result of at least one assault upon him. It was also accepted that the conditions under which Mr Dean-Willcocks is presently serving his sentence are more restrictive and more harsh for him than if he were to serve his term of imprisonment in the mainstream.

104 It is submitted on his behalf, which I accept, that he is likely to serve the balance of his time in custody with the same restrictions.

105 This is a matter to which I am entitled, and will, have regard, as a relevant matter to consider when determining the length of any non-parole period which I impose.

Sentence

106 Mr Dean-Willcocks is a relatively young man. He was of good character, reasonably educated and an apparently responsible individual who was in good employment. His prospects of rehabilitation are good. They will be enhanced if he refrains from drinking alcohol and taking illicit drugs.

107 Since his crime involved the taking of a life, any sentence which I impose must mark out the Court's obligation to protect life and mark its disapproval of any crime in which a life is lost. General deterrence is, in this case, a matter of importance.

108 But it would not be right to crush all hope of rehabilitation, which is a matter to which I must also give proper account.

109 Ordinarily, but for the plea of guilty, I would have sentenced Mr Dean-Willcocks to a term of imprisonment of 10 years. In light of the fact of his plea offer, that term will be reduced by 25 per cent.

110 Mr Dean-Willcocks, for the offence of manslaughter of Mr Alvarado, taking into account your plea of guilty, I will sentence you to an overall term of 7 years and 6 months.

111 Section 44 of the Crimes (Sentencing Procedure) Act requires, as a statutory ratio, that you should serve three-quarters of that term as a non-parole period.

112 However, in your case, I am satisfied that there are special circumstances which enable me to reduce that non-parole period, thereby increasing the period of time you are on parole, because that would be beneficial for the purpose of your rehabilitation and in particular any treatment which you may obtain to deal with your excessive drinking.

113 The special circumstances which I find are the fact that you are still a relatively young man, the fact that this is your first period of incarceration and you will require a lengthy period of supervision in the community in order to ensure that your rehabilitation has good prospects of success.

114 These facts all combine to mean that I should vary the ratio of 75 per cent fixed by the law so that your non-parole period is about 55 per cent of the total sentence, which means that I have decided that you should serve a period in custody of 4 years. That term should commence on 10 October 2009, which was the day you were taken into custody for this offence.

115 I am satisfied that such a non-parole period properly reflects the criminality involved in this offence and all of the factors to which I am required to have regard.

116 Mr Dean-Willcocks, I impose the following sentence upon you:

(a) I sentence you to a term of imprisonment without parole, of 4 years, to commence on 10 October 2009 and to conclude on 9 October 2013.

(b) I sentence you to a balance of term of 3 years and 6 months, to conclude on 9 April 2017.

(c) The first day on which you will be eligible for release from custody is 9 October 2013.

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Decision last updated: 24 February 2012