R v Ari Hayden Bullock [2005] NSWSC 1071 | Case summary

The facts 3 An agreed statement of facts was tendered at the sentence hearing and I have drawn heavily upon that statement in setting out the factual background of the offence. 4 On the evening of Saturday 10 July 2004 the deceased was drinking at the Lakemba Hotel in Haldon Street, Lakemba. 5 At about 1 am on the morning of 11 July 2004, Tamu Poigatule, Stacey Leishman, David Samuela and Shannon Stanley arrived at the hotel. They went into the back bar where there were tables including a pool table. There were about ten people in the back room when they arrived. Among them was the offender who was sitting at one of the tables. 6 At some stage before 2.30 am, the deceased joined Poigatule, Ms Leishman, Samuela and Ms Stanley at their table. The atmosphere was tense because Ms Leishman, who had only recently broken up with the deceased after a lengthy relationship, had commenced a relationship with Poigatule. The deceased was very upset and agitated at this turn of events. Indeed he and Poigatule got into a fight in the back bar after the deceased made insulting remarks about Ms Leishman. 7 Although the offender and the victim were not close friends they were acquainted with one another. At about 2.30 am, the deceased accused the offender of trying to hit him with a pool cue. The offender denied having done so. None of the other people who were present saw the offender hit the deceased with a pool cue although they were all in a position from which they could have been expected to have observed such an incident (had it occurred). 8 The deceased punched the offender several times in the face. The offender tried unsuccessfully to retaliate. After being assaulted the offender repeatedly asked the deceased why he had accused him (the offender) of hitting him (the deceased) with a pool cue. 9 The offender and the deceased went outside the hotel where they continued to argue for a few minutes before returning to the back bar. At some stage the offender went to the toilet where he washed himself in the sink. 10 As a result of the attack upon him, the offender sustained a broken nose, as well as a swollen left eye and right jaw. He also had blood coming from his nose and mouth. 11 The deceased and other members of his group then left the hotel. They were standing outside near the entrance when the offender came out of the hotel and said to the deceased, "You're going to die tonight". 12 The offender then walked to his father's unit which was nearby. When he arrived there he knocked at the door. His father's flatmate, who had recently returned home from work, answered the door. The offender's father was dozing in front of the television. 13 The accused went straight into the kitchen where he selected two knives. The first knife was a small black-handled kitchen knife which had a 110mm handle, a 120mm blade and a maximum blade width of 15mm. The second knife was a large black-handled kitchen knife with a 120mm handle, a 210mm blade and a maximum blade width of 40mm. 14 After a short conversation with his father the offender left the unit. He then walked quickly back to the hotel. It was estimated that the journey from the hotel to his father's unit and back to the scene took the offender between 10 and 15 minutes to complete. 15 By this stage the deceased was standing in a position about 50 metres away from the Lakemba Hotel. In the interim he had been involved in a further fight with Poigatule. He was still clearly agitated. Samuela, Ms Stanley and Josephine Miller, a bar maid from the Lakemba Hotel, were also standing near the deceased. 16 The offender was carrying the larger knife in his right hand and the smaller knife in his left hand. As he approached the deceased he shouted at him, "Why did you hit me?" The deceased attempted to punch the offender. The offender then stabbed the deceased in the chest several times using an underarm action. He also stabbed the deceased in the neck and to his back. 17 The deceased doubled over and then fell to the ground. The offender immediately dropped the knives and yelled at people to get help. The offender remained near the deceased and kept calling out for someone to obtain assistance. He kept repeating the words, "What have I done?" Samuela held the deceased and tried to comfort him whilst Ms Stanley picked up the knives and placed them out of the offender's reach. 18 Police arrived at the scene at approximately 3.10 am. Ms Stanley pointed the offender out to them. The offender voluntarily kneeled down. He placed his hands behind his head and told police, "I did it". 19 The deceased died at the scene notwithstanding the efforts of the police and ambulance officers to revive him. Police took possession of the knives. Subsequent testing revealed that the deceased's blood was upon them. 20 The offender was arrested and cautioned. During a conversation at the scene with police, the offender fully admitted his involvement in the offence. He was then taken to Burwood Police Station where he adopted those admissions in an electronically recorded interview. At the conclusion of the interview the offender said to police, "Oh no, he can't be dead, I didn't want that". 21 During the course of the interview the offender told police that he had been drinking at the Lakemba Hotel during the previous afternoon. He said that he had then gone to his father's residence, where he had slept for a short time before returning to the hotel at about 5 pm. He remained at the hotel until he was assaulted by the deceased at about 2.30 am. He said that he was drinking schooners of full-strength VB and estimated that he had consumed about seven to eight schooners that night. 22 Dr Szentmariay conducted a post-mortem upon the deceased. His blood alcohol reading was 0.222g/100ml. The doctor said that the cause of death was multiple stab wounds. Some of the wounds were deep and had caused significant haemorrhaging, both internal and external. The deceased's left lung was partially collapsed. His aorta had been cut, and there was substantial bleeding into the lung. The deceased's sixth rib had been completely transected. His left tibia bone had been damaged by the knife in a manner which suggested that a significant amount of force had been used. In all there were six stab wounds and four superficial cuts on the deceased's body. The doctor expressed the view that death would have occurred within a couple of minutes.

Sentencing factors 23 As I have said, the sole matter in issue at trial was the question of provocation. In assessing, as I must, the significance of that factor in the sentencing process, I have had regard to the following three matters identified by Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141: (1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and (3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence. (at 144) 24 It is convenient to consider each of those matters in turn. At the time of the incident in the hotel the deceased was clearly in an agitated state, no doubt occasioned by his emotional reaction to seeing his former girlfriend there with her new boyfriend. It was against that background that he unleashed an unprovoked attack upon the offender. The not insignificant physical injuries sustained by the offender during the assault upon him are apparent from the photos which were taken later that night by police. Moreover, the deceased falsely accused the offender of having been the initial protagonist, without any apparent basis for doing so. The offender was entitled to regard the deceased's behaviour as totally unexpected. I am satisfied, in those circumstances, that the offender was subjected to a significant measure of provocation at the hands of the deceased. 25 It is clear that although the offender lost self-control and remained in that state, some 10 to 15 minutes elapsed between the time when he expressed his intention that the deceased should die and his return to the scene with the knives. In other words, his response was not entirely spontaneous and was, in my view, in part occasioned by his losing his temper. Indeed, at one stage the offender observed to police that the deceased "deserved it". There were other answers in the ERISP which suggest a degree of resentment on the part of the offender at what had happened to him. Moreover, the offender's actions in going to his father's place to collect the knives reveal at least some degree of deliberation and planning on his part. Nevertheless, it is true that the deceased began throwing punches at the offender upon his return to the scene. 26 Finally, the number of stab wounds inflicted by the offender and the extent of the deceased's injuries suggest that a not inconsiderable measure of violence was exhibited by the offender. 27 The Crown urged that I should find that it had established to the requisite standard that the offender had acted with an intention to kill the deceased. In support of that submission it relied upon the "nature of the attack, the location and severity of the wounds and [the offender's] statements", namely "you're going to die tonight" and "he deserved it". Given the offender did not know the deceased had died when he passed the latter remark, it cannot advance the Crown case. 28 The earlier remark certainly provides some indication of his intention but needs to be understood in the context in which it was uttered. It must also be assessed in the light of an answer that the offender gave to police in his ERISP, that he had "come out with the intention of harming him .. but not killing him" and his remark, to which I earlier referred, that he had not wanted the deceased to die. The other matters to which the Crown referred do not, in my view, resolve the issue. In the circumstances, although I do not think that a great deal turns upon it, I am not disposed to conclude that the offender acted with an intention to kill as distinct from an intention to cause grievous bodily harm. 29 Ms Flannery, who appeared on behalf of the offender, tendered a report from Dr Westmore together with a number of references. 30 That material reveals that the offender is now aged 26 and that he was 25 at the time of the offence. He is of Maori descent and was born in New Zealand. His parents separated when he was eleven. Thereafter he and his younger sister were placed into foster care on a number of occasions because of their mother's abuse of alcohol and because their father was, and indeed remains, a merchant seaman who was frequently away at sea. The offender indicated that his mother was frequently violent towards him. He subsequently lived with an uncle and his family. 31 The offender came to Australia in 1999. His mother, from whom he was estranged, died two or three years ago. He maintains a close relationship with his father. 32 The offender has been in steady employment since arriving in this country. At the time of the offence he was working as a steel fixer during the week as well as delivering furniture at weekends. He had previously worked in various jobs, including an extended period as a spray painter. He was highly regarded by past employers who said that he was a dedicated and industrious worker. He has also been gainfully employed whilst he has been in custody and has engaged in other activities which indicate that he has been spending his time there productively. Other references speak of his personal qualities and suggest that he is normally a person of gentle disposition. 33 The offender informed Dr Westmore that he was in the habit of consuming ten to fifteen schooners of beer five times a week. He also told him that he began smoking cannabis at the age of 12. Since then he had experimented with a variety of illicit drugs. It appears that he consumed cannabis on the day of the offence. This body of evidence prompted Dr Westmore to observe, correctly in my view: [i]n terms of his longer term rehabilitation he would benefit from an extended period of drug and alcohol counselling. He may need some anger management training and it is likely that there are unresolved issues from his childhood. 34 Finally Dr Westmore expressed the opinion that, although the offender had suffered a number of head injuries prior to the offence, he had no "past or current psychiatric history". 35 The offender has a minor criminal record. In 2002 he was convicted in the Local Court of charges of assaulting and resisting an officer in the execution of his duty, and behaving in an offensive manner. In respect of these offences he was fined and placed on a s 9 bond. He was also convicted in the same year in the Local Court of using offensive language, for which he was also fined. Each of those offences was committed at a time when the offender was well affected by alcohol. 36 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders, and to the principles enunciated in the authorities which bear upon the issue. It is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 37 The Court of Criminal Appeal in R v MA (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment described by the High Court in Veen v The Queen (No2) (1988) 164 CLR 465. In a passage which is particularly apposite to the present case, a majority of the court in Veen (No2) said: [s]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence but sometimes they point in different directions. (at 476) 38 In determining the appropriate sentence I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. The only aggravating factor to which I need to have regard for present purposes is subs (2)(c), that is the actual use of weapons, in this case the two knives. The community rightly expects that its citizens will be protected from the indiscriminate use of knives when they are used, as they were here, as dangerous weapons. 39 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be suitably punished: see R v Troja (CCA, 16 July 1991, unreported at 2) and R v McDonald (CCA, 12 December 1995, unreported). In R v Hill (1980) 3 A Crim R 397, Street CJ said: It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 402) 40 In R v Blacklidge (CCA, 12 December 1995, unreported) Gleeson CJ, with whom the other members of the Court agreed, said: The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as "involuntary", do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. (at 3-4) 41 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. 42 It is common ground that the offence did not constitute a planned or organised criminal activity within the meaning of subs (3)(b). The offender is entitled to have weighed in his favour his plea of guilty: see subs (3)(k). Whilst he did not plead guilty to manslaughter at the pre-trial arraignment hearing, the Court was nonetheless informed at that stage that provocation would be the sole issue at trial. The offender's legal representatives then approached the Crown in advance of the trial with a request that it accept a plea to manslaughter. Although, as I have said, the Crown did not accept the plea, that communication had the effect of significantly reducing the number of witnesses which the Crown was required to call. In that sense alone the offender facilitated the course of justice: Cameron v The Queen (2002) 209 CLR 339. The offender is, as the Crown quite properly conceded, entitled to an appropriate discount for the utilitarian benefit of his plea notwithstanding the fact that the Crown did not accept it: R v Cardoso (2003) 137 A Crim R 535. 43 Furthermore, the offender is entitled to additional consideration on account of his having demonstrated, by his words and conduct, genuine remorse for his actions: subs (3)(i). As the Crown acknowledged, insofar as the offender immediately identified himself to the police as the perpetrator and made admissions of a character that ensured his conviction of at least some form of unlawful homicide, he provided assistance to the authorities within the meaning of subs (3)(m). 44 Finally, in view of the offender's age and his attitude to his present offending I am inclined to the view, in accordance with subs (3)(h), that he has good prospects of rehabilitation so long as he addresses the matters referred to by Dr Westmore in his report. 45 Given that this is the offender's first time in custody, it is likely that he will require an extended period of supervision when he is released upon parole, particularly in order that he can deal with the issues of his alcohol and drug dependency. In those circumstances I am prepared to find "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 46 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. Nevertheless I have been provided by each of the parties with what are said to be comparable cases, which include the schedule attached to the decision of Hulme J in R v See [2001] NSWSC 776, and with statistics held by the Judicial Commission in relation to sentences imposed for manslaughter. I have also had regard to a number of other decisions to which counsel did not refer. Despite the proposition just mentioned, I have derived some assistance from these materials notwithstanding the limitations inherent in them. 47 It is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect not only to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 but also to the maximum penalty prescribed by the legislature. The considerations to which I have just referred apply to the non-parole period as well as to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. This case involves the death of a man following a frenzied attack with knives. Notwithstanding the fact that the offender was acting under provocation, his response to the situation was entirely unwarranted and a human being has needlessly lost his life. Nothing less than a custodial sentence of some length can thus be countenanced.

R v Ari Hayden Bullock

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