23 April, 2010

Minding his own business...

TJ and her boyfriend DK were at their friend Peter Wilson’s flat in Taree one Sunday evening in February 1998. They were all in their late teens, and were drinking together for most of the night. At some point in the early hours of the following morning, they all left with the plan of robbing somebody, to get more money for drinking.

Ernest Coles was a small 67-year-old man who was sitting on a park bench, quietly minding his own business, eating chips. The bench was near at ATM.

Wilson brutally attacked Ernest, punching him about ten to fifteen times around his head. Although he was clearly the main offender, DK also took part in kicking Ernest, and TJ joined in. Wilson eventually called ‘000’ and fled the scene with the others in tow.

When she was first spoken to by police, TJ denied any involvement in the fight, but she returned to police a few days later with her mother, volunteering to be interviewed a second time. On that occasion she admitted that she had joined in kicking Ernest, but had later pleaded with Wilson to stop the assault when she saw Ernest was bleeding profusely, and that she had been the one to convince Wilson to call '000'.

Later, she made a third statement, in which she said it was actually DK who did the kicking, and the only reason she’d confessed before was to protect him. However this was not accepted by the Judge, who found that she had actively taken part in the assault.

Ernest was found with his pockets turned out, and Wilson stole his brown leather coat, which he was wearing when he was arrested.

All three were charged with murder. Wilson pleaded guilty to manslaughter on the basis of diminished responsibility. Two doctors agreed that while his attack definitely constituted murder, in that he intended to kill or at least seriously harm Ernest, he suffered from schizophrenia, and was having an active episode of the illness on that particular night, since he had stopped taking his medication.

Wilson was 18 years old at the time, and sentenced to eight years in prison, with a non-parole period of four years.

TJ also pleaded guilty to manslaughter, but on the basis that she had committed an unlawful and dangerous act. This meant she did not intend to kill or inflict grievous bodily harm upon Ernest, but was aware that what she was a part of risked serious harm to Ernest.

TJ was sentenced to six years in prison, with a non-parole period of three years. She appealed the sentence on the grounds it was too severe, given her limited part in the killing, and the fact that she was only 16 at the time. Her defence also argued that the Judge had not taken into account her background, in that she was aboriginal, and from a large family where her father had been violent to her mother. She had been expelled from school at 14, and had been abusing alcohol and pot since she was around 11 or 12 years old, and indeed was drunk at the time.

The Appeal Court found the Judge did take these things into account, as well as the fact she had only a minor criminal record, and had been making improvements in Juvenile Justice since her arrest, studying TAFE course and excelling in arts and crafts. His Honour had also taken into account her good rehabilitation prospects, as well as her plea of guilty, and her assistance to police in (eventually) identifying DK as the third offender.

The Appeal Court pointed out despite all this she was on a good behaviour bond at the time of the offence, imposed for an earlier assault and robbery. Although she claimed to be heavily intoxicated, her record of interview shows she was well aware of what was going on at the time, and knew exactly what she was doing. Also, the value of her so-called assistance to police ended up being quite dubious, as she went back on her promise to give evidence against DK. As a result, all charges against him were dropped.

Furthermore, although Wilson was clearly the main aggressor, TJ took an active part in an attack that resulted in the death of an elderly man who was innocently going about his own business. The Courts are not inclined to take such actions lightly and as it stated “the community is entitled to regard offences of that kind with particular abhorrence”. Wilson himself would have received a more severe sentence had it not been for his mental illness.

TJ’s appeal was rejected. She was released in February 2001, aged 19.

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