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[2008] NSWSC 1208
Supreme Court of NSW
2008-11-28
Kirby J
Original judgment source is linked above.
Background. 4 Mr Gerard Fleming was a man in his mid thirties. He suffered from Asperger's Syndrome, which is a form of autism. He lived alone in a flat at Narrabeen. He did not work and was in receipt of a disability pension. 5 Mr Fleming was homosexual. There are, on the Warringah peninsular, as there are throughout Sydney, locations known to some where homosexual men meet at night and engage in consensual sexual intercourse. The toilet block on Berry Reserve at Narrabeen was one such location. Mr Fleming occasionally attended that toilet block at night in order to meet other men and thereafter engage in consensual intercourse. 6 CR was born in August 1990. At the time of the incident he was 16 years old. He was two months short of his 17th birthday. He was still at school, in Year 11.
The incident. 7 Some time after 10.00 pm on Saturday 16 June 2007, Mr Fleming went to the toilet block on Berry Reserve at Narrabeen. The block is set back from the road. It remained open after dark. In June 2007, there was no lighting within the block. There were, however, ventilation openings at the top of each side wall which permitted the penetration of some light from the surrounding area. It was a dark and stormy night. It may be assumed that inside the toilet block was very dark, even after one's eyes became used to the dark. 8 CR went to the toilet block at about 10.30 pm. He said, and I accept as probable, that he did not know that it was a meeting place for homosexual men. His purpose was to go to the toilet. He had attended a number of parties that evening. Although under age, he had, over a number of hours, consumed a significant quantity of beer as well as a bourbon and coke. The quantity of alcohol consumed was not unusual. He, like many of his contemporaries, had been drinking each weekend since the age of about 14 years. On this evening he was not drunk, but he was not sober. The alcohol he consumed was, I believe, a factor in the misjudgement he ultimately made later that evening. 9 CR was carrying a knife. It was a folding fishing knife that he first acquired about a year before. It had a reasonably lengthy blade and was obviously dangerous. He had, some months before, been attacked by a number of youths and injured, although not seriously. He said that occasionally thereafter he carried a knife for his own protection. Unfortunately, he had the knife with him on this evening. His foolishness in having such a weapon at his disposal was demonstrated by what later occurred. 10 Having gone to the toilet block to urinate, CR went outside to an area which was a carpark. He had with him a plastic bag. Inside the bag were several cans and several small bottles of beer, the remnants of the beer that he had taken to the various parties. One gathers that, to some extent, he was filling in time. He had made arrangements to spend the night at a friend's house, who lived nearby. In the course of the evening he had become separated from his friend. Each, however, had a mobile phone and planned to make contact by that means. 11 Before that occurred and whilst CR was outside the toilet block, Mr Gerard Fleming came out of the block. One infers that he had been inside the block when CR first entered. The two began talking. CR said that he did most of the talking. He did not notice that Mr Fleming was disabled, although it registered with him that he spoke a little more slowly. CR said that he offered Mr Fleming a beer, which he accepted. Together they drank and talked. It then began to rain. In order to continue their conversation they went inside the toilet block, sheltering from the rain. 12 After a time, CR said that he needed to go to the toilet again, this time to move his bowels. He entered a cubicle and closed the door. The door had been cut down so that it did not offer complete privacy. Mr Fleming continued to talk to him from outside the cubicle. At one point he came over and lent on the door, looking directly at CR, who was then seated on the toilet. CR said that this made him feel uncomfortable. He asked Mr Fleming to move away from the door, which he did. 13 However, Mr Fleming later returned to the same position. Again CR, according to his account, which I accept as probable, asked him to move back. Again he did so. 14 Ultimately, CR left the cubicle and washed his hands. They continued to talk. He offered Mr Fleming a second beer, which was accepted. Together they drank. Mr Fleming then went to the end cubicle to go to the toilet. CR asserted, and I accept, that when he emerged a short time later he had his trousers around his knees. His underpants were still on. 15 CR said that again this made him feel uncomfortable. He told Mr Fleming to pull his pants up. Mr Fleming, however, asked whether "he had ever tried to wedgie someone". As he said this, Mr Fleming approached CR and touched his hips with both hands, one hand on either hip. CR pushed him back. He again felt uncomfortable and nervous. He claimed he had no interest in a homosexual encounter. 16 Mr Fleming, however, appeared to regard CR's reaction as a joke. Again he approached him, chuckling and continuing to talk about "wedgies". On this occasion, however, he placed his arms around CR and locked his hands behind CR's back in a bear hug. According to the account of CR, which I accept, he held him very tightly. The result was that his arms were pinned to his sides. 17 CR had his hands in the pockets of his jeans. They were baggy jeans with large pockets. In the right hand pocket he had the knife. He asked Mr Fleming to let go of him. He also struggled to free his arms. He repeated his request to let him go. The struggle continued for five or ten seconds, whilst Mr Fleming continued to talk about "wedgies". 18 Ultimately, CR opened the blade of the knife and managed to free his right hand sufficiently to stab Mr Fleming twice. The first wound was to the abdomen. It was delivered with some force. The second followed a split second later. CR said that he thought that he had missed with the second blow. In fact he had not missed. The second wound, one infers, was the wound to the heart that proved fatal. 19 CR, in his evidence, described his state of mind at the time he used the knife. He said that he was in a "shocked mood". He did not know what to do. He was panicking. It all happened very fast. He just wanted to get the other man off him. Mr Fleming appeared to CR to be a much bigger man. At the time this all happened CR was much shorter than at the time of the trial, a year later. He was also much lighter. The deceased was 170 cms tall (5 foot 7 inches). He weighed 85.5 kilograms (13 and a half stone). CR, at the time, was about the same height or perhaps a little shorter. He weighed about 65 kilograms. He said that as Mr Fleming held him in a bear hug, he feared that he may be raped or sexually assaulted. His perception was no doubt affected by the alcohol he had consumed. He said, and I accept, that he is not homophobic. 20 I accept as probable CR's account of his state of mind even though, with the wisdom of hindsight, I also accept that the deceased had no such purpose in mind. He was, by all accounts, a gentle and childlike man who was utterly benign. His only interest was in consensual sex. This was, in every sense, a tragedy arising from a failure to communicate and a misunderstanding. Counsel for CR described what happened as the collision of two different worlds, with catastrophic consequences. The tragedy was made possible because CR happened to have at his disposal, in his pocket, a lethal weapon which, in the agony of that moment, he chose to use. His action was a reaction to the conduct of the deceased. I accept that, in the state of mind I have described, and in the circumstances as he perceived them, he felt it necessary to defend himself by stabbing the victim. However, the use of a knife and the infliction of two wounds was plainly not reasonable and was excessive. CR at no stage lost control. Unquestionably he appreciated that the knife would inflict very serious injuries. However, there was no intention to kill the deceased.
Subjective case. 21 Let me pass from the offence to the offender. CR was, as mentioned, 16 years old at the time of the offence. The offence was in June. He turned 17 in August. He is now 18 years old and still a young man. 22 CR did have a conviction arising out of an incident in February 2006, when he was 15 years old. He and an older friend were charged with assault occasioning actual bodily harm. The victim was punched with a closed fist to the right eye, causing fractures to the surrounding bones. In October 2006, the Children's Court, by way of penalty, imposed a six month bond without supervision. The victim was alleged to have thrown fire crackers at a dog, who ran onto the road and was injured. The dog died two weeks later. 23 A report of Mr Greg Robertson, an experienced social worker with the Department of Juvenile Justice, was tendered. Mr Robertson interviewed CR a number of times. He spoke to his parents at their home. He also made contact with CR's Principal and others. CR did not seek to minimise his offence. He appreciated the enormity of what he had done. He accepted responsibility. CR said, and Mr Robertson accepted, that he felt deep remorse for his actions. Indeed, the effect upon him has been profound. He has found living in custody emotionally difficult. He is now somewhat withdrawn and emotionally guarded. 24 The report dealt with CR's prospects of rehabilitation. There is much to be said that is positive. He comes from a close and loving family, who continue to support him. He is the middle child of three. He gets on well with both his brothers. 25 It will be remembered that CR was in Year 11 when the offence was committed. He attended a private school at Warriewood. He was well liked by students and staff. He had no history of violence or aggressive behaviour. He was described as an average student, who completed his work as required. 26 CR was arrested on 25 July 2007. He has been in custody since that date. He has used his time well. He enrolled in a correspondence school and has completed three courses for his Higher School Certificate. He hopes to become a carpenter. He excelled in the subject of Construction when at school. 27 The report deals with the risk factors of reoffending. CR's crime was impulsive. There was no significant pattern of violent or aggressive behaviour. The only worrisome feature, according to Mr Robertson, was his abuse of alcohol from an early age and, to a lesser extent, his use of cannabis. 28 I accept that CR is remorseful. A great many people wrote letters on his behalf which spoke of their regard for CR and his family. I accept that he has very good prospects of rehabilitation.
Sentence. 29 The maximum penalty for manslaughter is imprisonment for 25 years. The starting point in sentencing is the fact that a human life has been taken. Human life is sacred. There is a community expectation that it will be protected and those responsible for taking it will be punished. But, manslaughter, perhaps more than any other offence, varies in the criminality which it comprehends. Each case of manslaughter very much depends upon the circumstances. In Queen v Hill (1981) 3 A Crim R 397, Street CJ said this at: (402) "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 the 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 such a case as the present, whether 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 interests of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 30 Here, CR's impulsive act arose out of panic. But for the fact that he had a knife in his possession, both parties would have walked away, each recognising that there had been a misunderstanding. The catastrophic consequences which followed for each can be directly traced to the knife which CR chose to take that evening, so that it was available as a weapon when he felt that he was under attack. As Hidden J has recently said, when passing sentence on another young offender, "the prevalence of young people carrying knives, and the community's abhorrence of it, hardly need to be emphasised" (R v SSA & Siose [2007] NSWSC 1202 at [28]). 31 Nonetheless, contrary to the submission of the Crown, I do not believe that this was a juvenile committing an adult crime, where the fact of his youth was largely immaterial. CR's decision to take the knife that evening, supposedly for his own protection, was the product of immaturity, as was his decision to use the knife in the unusual situation in which he found himself (cf TM v The Queen [2008] NSWCCA 158, per Hall J, para [33]). 32 Nonetheless, CR's conduct which led to the death of Gerard Fleming remains a significant offence, where the sentence imposed must reflect this Court's denunciation of such conduct and must be such as will deter others from like behaviour. 33 The suffering that has been induced by CR's crime has been enormous. Gerard Fleming was a much loved and gifted man who was well known in the community in which he lived. His mother read a poignant victim's impact statement to the Court where she described the devastation to her and to her family through his senseless death. She stated that Gerard was precious to her and the family and, in reality, was no threat to anyone. I must, of course, deal with such material in accordance with the principles set out in R v Previtera (1997) 94 A Crim R 76. 34 Counsel for the Crown and for CR have provided me with a number of cases in which the offender has been sentenced for manslaughter arising in circumstances of excessive self defence (R v SSA & Siose (supra): R v Ward [2005] NSWSC 266: Ward v The Queen [2006] NSWCCA 321; (2006) 166 A Crim R 273: Vuni v Regina [2006] NSWCCA 171). I have also been provided with statistics from the Judicial Commission. The statistics are of limited value, since they only involve eleven offenders and give no insight into the circumstances of each offence. Each case very much depends upon its own facts. I am, however, assisted by the recommendations of Mr Robertson in the report from Juvenile Justice, where he said this: (p 10) "The writer notes the seriousness of the matters before the Court and the limitations in sentencing options available given the severity of the offence. It is therefore recommended that in this case a shorter period of incarceration followed by a longer period of parole supervision as provided under the Crimes (Administration of Sentences) Act 1999 would be appropriate given the circumstances outlined in the writer's assessment. This would support community re-integration and community based therapeutic treatment. In this circumstance, the Court may wish to impose specific conditions in a parole order. The writer strongly recommends that [CR] be given the opportunity to engage in immediate therapeutic intervention that is offence focus given his current level of empathy and remorse and acceptance of responsibility for the matters before the Court." 35 I adopt each of these recommendations. I find special circumstances, for the reasons given by Mr Robertson. I recommend that CR be given the opportunity to engage in immediate therapeutic intervention whilst in custody. 36 CR you are sentenced to a non parole period of 3 years and 6 months, commencing on 25 July 2007 and expiring on 24 January 2011; with an additional term of 3 years and 6 months expiring on 24 July 2014. The total term, therefore, is a period of 7 years imprisonment in which there is a non parole period of 3½ years. 37 I make an order, under s 19(1) of the Children (Criminal Proceedings) Act 1987, directing that CR's sentence be served as a juvenile offender. **********
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Queen v Hill (1981) 3 A Crim R 397 R v SSA & Siose [2007] NSWSC 1202 TM v The Queen [2008] NSWCCA 158 CASES CITED : R v Previtera (1997) 94 A Crim R 76 R v Ward [2005] NSWSC 266 Ward v The Queen [2006] NSWCCA 321; (2006) 166 A Crim R 273 Vuni v Regina [2006] NSWCCA 171