Sentence Reduced as Judge Overstated the Objective Seriousness of the Offence

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By Paul Gregoire and Ugur Nedim

At around 9.50 pm on 24 June 2017, Jayden Mason was forcibly ejected from the Wyong Leagues Club for being drunk and disorderly.

On his way out of the premises, the 21-year-old commenced threatening staff, and as he walked down Lake Haven Drive, he continued this same behaviour with passers-by.

At that time, the club’s courtesy bus turned up, and as Ryan Paterson and Benjamin O’Brien alighted, they were subjected to a barrage of abuse. And the two passengers went over to Mason, both attempting to punch him. However, Mason evaded their blows and took off down the road.

Paterson, O’Brien and a third man, a Mr Henry, ran after Mason. And it became obvious he was afraid, as he tried to flag down passing cars.

O’Brien first caught up with Mason 165 metres down the road, and the pursuer punched the fleeing man in the head, causing him to drop to the ground.

Henry then grabbed Mason and held him, while Paterson kicked the now unconscious young man in “the head like a soccer ball”. And the assailant continued to lay in another kick, before stomping on Mason’s head with both his feet.

The three assailants then left the man lying, unmoving, on the side of the road, in the bike lane. Several cars passed by as they left the scene of the crime. And O’Brien heard one of the vehicles strike his victim, which mostly likely dragged Mason along the road a short distance.

An unintentional killing  

On 2 October 2019, Paterson pleaded guilty to one count of manslaughter, contrary to section 18(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment.

The offence of murder and manslaughter both involve the unlawful killing of another person.

Manslaughter is the lesser crime, and involves the unintentional killing of someone via actions or omissions, whereas murder is the killing of another done intentionally or via reckless indifference.

NSW Supreme Court Justice Stephen Rothman noted Paterson had served time for a number of violent offences in the past, and, at the time of the attack, he was out on parole, having been in gaol for another assault involving “striking similarities”, which included stomping on the victim’s head.

His Honour found the offender did not show remorse, nor did he have good prospects of rehabilitation. And despite his physically abusive and traumatic upbringing, Justice Rothman did not consider Paterson’s case warranted a finding of special circumstances.

Special circumstances

Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that a parole period must not exceed a third of the time an offender has to remain in prison. However, if a judge finds special circumstances more time can be spent in the community under supervision.

Justice Rothman sentenced Paterson to 16 years and 6 months prison time on 12 March last year, with non-parole set at 12 years and 5 months. His Honour found the objective seriousness of the crime to be at the “highest end of culpability”.

This sentence reflected a 25 percent discount made to it, due to the utilitarian value of Paterson’s early guilty plea.

And for his part in what his Honour labelled a “joint criminal enterprise”, O’Brien was sentenced at the same hearing to 8 years and 6 months inside, with a non-parole period of 5 years and 6 months.

Seriousness misconstrued 

So, Paterson appealed the length of his sentence to the NSW Court of Criminal Appeal (NSWCCA) in September this year, based on three grounds.

The first asserted that the judge had made an error in considering the objective seriousness of the crime being at “the highest end of the range”.

The second involved a lack of parity between Paterson’s prison sentence and the one handed down to his co-offender. And the third ground was that the sentence was manifestly excessive.

In his findings, NSW Chief Judge at Common Law Robert Beech-Jones initially made clear that the sentencing judge was wrong in considering the crime a joint criminal enterprise, as rather both Paterson and O’Brien were principal offenders in “an unlawful and dangerous act”.

His Honour continued that in relation to the first ground, there are two separate aspects involved in determining the objective seriousness of an offence: one being the severity of the crime itself, and the other the moral culpability of the offender.

However, Justice Beech-Jones pointed to statements made by the primary judge that suggest he merged these two aspects into one, which led to the wrong assertion that the offender’s culpability was “at the highest level”. And this then gave cause to the claim of a manifestly excessive sentence.

The justice went to give consideration to the sentencing statistics around manslaughter, although he warned that this is a method that has its limitations.

Yet, what he found was of 66 manslaughter cases heard between September 2013 and December 2020, only one resulted in a total sentence imposed of over 14 years.

Justice Beech-Jones further outlined that whilst Paterson’s crime was “a very serious instance of manslaughter by unlawful and dangerous act”, cases going back further which had incurred similar sentences to it involved “significantly worse” criminality.

The starting point for Paterson’s sentence was 22 years prior to the discount being applied, his Honour explained, and he went on to detail a number of other cases, in which the offending was demonstrably higher than that involved in the current case, yet the penalties were far less.

Therefore, the NSWCCA upheld both grounds one and three.

“Serious as it was, the offender’s conduct did not warrant any characterisation of it as something close to or towards the worst category of manslaughter,” Justice Beech-Jones said, adding that the question of parity didn’t now need to be deliberated upon, but rather reflected in the new sentence.

The orders given

On 19 November, Justice Beech-Jones ordered the original sentence be set aside. And in handing down the new prison term, his Honour explained that it would take into account Paterson’s background in terms of lessening his culpability, but he didn’t find special circumstances.

In line with section 25C of the Crimes (High Risk Offenders) Act (NSW) 2006, the NSWCCA warned Paterson that this legislation does apply to the offence of manslaughter by an unlawful dangerous act.

This means that it’s possible for the Supreme Court to place him on a continuing detention order if it’s considered he poses an ongoing risk to the community. Such an order can see an offender detained for up to five years after their initial sentence expires.

And NSWCCA Justices Robert Allan Hulme and Natalie Adams agreed with the orders the Chief Judge at Common Law imposed.

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