R v Castle

Circumstances of the offence 4The facts of the offence can be stated succinctly. On the evening of Friday 16 January 1998, Jennifer Smith met up with family and friends for dinner. The group proceeded to attend a number of establishments in Newtown and, from about 2.00am, she and her brother Andrew went on to other places in Kings Cross and Darlinghurst. At about 4.30am they parted ways, Ms Smith telling her brother that she intended to see a friend who lived in Hordern Street, Newtown. 5At about 4.50am Ms Smith knocked on the door of the friend's home but there was no answer. She walked around the corner and down King Street until she arrived at a shop where she purchased a kebab. She then walked back to Hordern Street. A man crossed King Street and entered Hordern Street behind Ms Smith. A scream was heard. A witness in King Street went to the corner of Hordern Street to investigate. He saw Ms Smith standing in the gutter wrestling with a man. Other witnesses heard Ms Smith yelling at the man to leave her alone. The witness called out, "Leave her alone you bastard." He then saw the man hit Ms Smith with a swinging arm. This caused her to fall behind a parked car, which obscured the witness' view. The assailant then walked off. The witness attempted to raise the alarm (I have not been told how) but to no avail. He did not check on Ms Smith's condition; instead he boarded a bus in King Street and left. 6Ms Smith was found lying in the gutter in Hordern Street at about 5.45am. She was deceased. Her body was taken to the morgue at Glebe where she was later formally identified by family and friends. A post mortem examination found widespread bruising over the back of the head, an extensive break of the bottom of the skull, a blood clot over the surface of the brain, and a laceration of the upper lip. Various samples were taken but they were not tested for DNA. Fortunately they were stored. 7Police established that Ms Smith's handbag was missing. Video security footage from an ATM in King Street showed that at 5.15am Ms Smith walked along King Street towards Hordern Street. 14 seconds later a man approached the ATM and gave the appearance of conducting a transaction. He looked over his shoulder in the direction of Ms Smith and then back to the machine. He looked a second time, this time leaning backwards, enabling him to see around a wall and further along King Street. He then stepped away from the ATM and walked along King Street in the direction of Ms Smith. Although he was at the ATM for some 20 seconds, he did not attempt to make any transaction. 8Police identified the offender as the man at the ATM. They interviewed him as a suspect on three occasions in April and May 1998. He confirmed that he was the person in the video security footage but denied any involvement in the death of Ms Smith. He denied having seen her and denied following her. 9In July 1998 the offender gave police a pair of shoes that he claimed to have worn on 17 January 1998. They were scientifically examined but no traces of blood were detected. They were not tested for DNA but remained in police custody. 10At the conclusion of an extensive police investigation into Ms Smith's death a coronial inquiry was held in September 1999. Many witnesses gave evidence, including the offender. He maintained the version he had earlier provided to the police and denied any involvement in the death of Ms Smith. The coroner terminated the inquest and referred the papers to the Director of Public Prosecutions (DPP). The DPP determined that there was insufficient evidence to commence a prosecution. 11In 2008 the Unsolved Homicide Team of the NSW Police Homicide Squad established a task force to further investigate the matter. A DNA profile not belonging to Ms Smith was found on her fingernail clippings. It matched a DNA profile obtained from the offender's shoes. 12The strike force then undertook physical and electronic surveillance of the offender, and an undercover operation. There were a number of meetings between undercover officers and the offender, culminating in him making a confession to an officer on 18 April 2011. I heard evidence in camera as to the methodology employed in this operation. In short, the offender was tricked into making the confession; it certainly was not the product of any regret or remorse. He told the operative that he had taken Ms Smith's bag, destroyed evidence, and that he had deceived the police in 1998 by giving them shoes that he had not in fact worn on 17 January 1998. 13The offender was arrested on 2 May 2011 and charged with murder. On legal advice he declined an offer to be interviewed. A DNA sample was taken. Analysis supported the proposition that he was Ms Smith's assailant. 14A year later an offer to plead guilty to manslaughter was accepted by the DPP. That plea was entered and he was committed to this Court for sentence.

Sentencing for manslaughter 15As the Crown has accepted the offender's plea to manslaughter in lieu of the murder charge it is appropriate that I point out an important difference between the two offences. They both, of course, involve the unlawful taking of a human life and that is the primary feature taken into account in sentencing. Murder, speaking generally, involves the commission of an act which causes death that is accompanied by an intention either to kill, or to inflict grievous bodily harm, or is done with a realisation of the probability that death will result. Manslaughter, on the other hand, in a case such as the present, is the commission of an unlawful and dangerous act which results in death. An assault is unlawful. It will be dangerous if it exposes the victim to an appreciable risk of sustaining serious injury. That is what the offender has pleaded guilty to. He assaulted Ms Smith by punching her in the course of robbing her of her handbag. Clearly, it exposed her to the risk of, and did in fact result in, a serious injury being sustained. 16I do not know how much has been explained to the large number of family and friends of Ms Smith who are present today about the approaches to sentencing for murder and manslaughter. I would expect that there has been an explanation to some extent. I would simply emphasise that the maximum penalty for murder is imprisonment for the term of a person's natural life and for manslaughter it is imprisonment for 25 years. The law provides that the maximum penalty for any offence is reserved for cases that fall within the worst category of objective seriousness. 17Manslaughter is an offence that can be committed in an enormously wide variety of circumstances. Cases in which a victim sustains an unintended head injury after falling to the ground because of a punch are, regrettably, not uncommon. Although all cases must be determined upon their own unique facts and circumstances, there are types of manslaughter that are more objectively serious. 18Sentencing statistics maintained by the Judicial Commission of New South Wales show that the median sentence imposed for murder in the past eight years is 22 years imprisonment and 80 per cent of sentences imposed have ranged from 18 years to in excess of 25 years. By contrast, for manslaughter the median sentence is 7 years and 80 per cent of sentences have fallen in the range of 4½ years to 12 years. The sentence I will impose in this case is not derived from any analysis of statistics. I mention them only to illustrate that there is a substantial difference in sentencing for manslaughter as opposed to murder.

Seriousness of the offence 19It is my duty to impose a sentence that is proportionate to the gravity of the offence. In assessing that I have taken a number of matters into account. They include that it was not committed with anything more than a modicum of forethought. It was more opportunistic than planned. The act which resulted in death was a single punch that had the consequence, not specifically contemplated by the offender, of Ms Smith falling to the ground and striking her head. It was, however, done in the course of a robbery and that is a significant matter. And, after Ms Smith must obviously have been in a gravely distressed condition on the ground, the offender thought only of himself and callously left her lying in the gutter, literally for dead, in order to avoid his own detection and apprehension. The Crown Prosecutor submitted that the offence entailed "a cowardly attack upon a vulnerable female in the early hours of the morning for financial gain". That is an apt description. This is a serious example of manslaughter committed with a single punch.

Circumstances of the offender 20The offender was born in 1958 and so he was aged 40 at the time of the offence and is now 54. 21He has a criminal history that commences with him being arrested at the age of 21 for three offences of demanding money with menaces and one of armed robbery. He was sentenced to a total term of 7 years imprisonment. There follows convictions for supplying a drug, various types of fraud (and many of them), stealing, assault, contravening apprehended domestic violence orders, assault occasioning actual bodily harm, and drug possession. He served another prison sentence at the age of 37 for about 15 months. He was released in January 1997 but was back in gaol again for a little over a month in May-June 1997 before being released on a community service order. This is a record which denies to the offender the leniency that would otherwise be extended to a person without previous convictions. 22The offender was seen by Dr Richard Furst, a forensic psychiatrist, at Long Bay Correctional Centre on 1 November 2012 for the purpose of preparing a report that was tendered at the sentence hearing. 23The history provided by the offender to Dr Furst included that he is single with no dependents. He had been married in 1978 and again in 1987 but the marriages did not last. He had two further serious relationships. He subsequently lived with his mother in Forest Lodge and then, after she died in 2007, on his own in Glebe. His father had passed away in 1987, a sister died at birth, and his older brother died in about 2002. 24The offender had worked as a storeman, cleaner and kitchen hand. He was receiving a disability support pension in recent years as a consequence of cervical spine problems and nerve compression. 25The offender was educated to Year 10 level. There was nothing eventful about the circumstances of his upbringing. 26There have been no issues with alcohol but there have been with illegal drugs. He smoked cannabis and used amphetamines. There were periods of abstinence but it seems he relapsed when he was depressed or feeling under stress. He resumed using cannabis and amphetamines after he was released from gaol in 1997 and continued using until around 2000. He told Dr Furst that his brother was ill after he was released from gaol but that he felt abandoned by him which added to feelings of depression. He used drugs in order to cope. He told Dr Furst "I was always there to help everybody, but no one was there for me. I feel like I have been used all my life." 27The offender also told Dr Furst that at around the time of the offence he had just lost a cleaning job, had no money, and was feeling depressed. He could not recall much of the offence aside from grabbing the handbag and the victim falling. He could not recall hitting her, but accepts that he did. He presumes that he must have been motivated by wanting money. He was under the influence of drugs but Dr Furst said that there was no indication that he was unaware of his actions or their wrongfulness. 28He said that he denied involvement to the police because he was scared. He destroyed the handbag and disposed of it because he was fearful of being caught and returned to gaol. Ever since he found out that Ms Smith had died he experienced some depression; he had questioned himself as to why he had done it. He found his appearance at the Coroner's Court stressful, telling Dr Furst of having been chased by people with cameras. He said, "In my head I knew I had been punished." 29Dr Furst's report includes: "He expressed remorse about his actions and said he 'felt for the victim's parents,' especially given the losses of a number of close family members he endured himself." 30Later in the report he wrote: "[The offender] found it hard to talk about the incident in question as he was quite tearful. He was flat and depressed in his mood. He said, 'I am devastated the woman is deceased. If I had known she was hurt, I wouldn't have left her there'. He appeared to be quite remorseful about the events, regretted his actions and expressed much guilt." 31The offender provided the Court with a letter expressing his regret for the death of Ms Smith (Exh 3). He wrote that the "shame, sorrow and guilt" would remain with him forever. He also gave evidence at the sentence hearing to that effect. 32The offender has been in custody since his arrest. He has found employment both at Parklea and Long Bay gaols. He has not engaged in any counselling or seen a psychiatrist. He has not been provided with any antidepressant medication. He said in his evidence that he had no close relatives. There was a person who visited him in gaol but not very often. 33He has a number of physical ailments. He suffered a neck injury in 1995. There were inconsistent accounts given to Dr Michael Fearnside, a neurological surgeon, and in evidence as to the cause of this but nothing turns on that. He suffered another neck injury when he was hit by a car in 2008. He said that he was in constant pain in his legs and arms. A report by Dr Fearnside confirmed that the offender has cervical spine problems and is sufficiently impaired to prevent him working. There is also a suggestion of thyroid and prostate issues, and the possible need for a knee replacement. 34Dr Furst was of the opinion that the offender was depressed, and had unresolved grief and guilt issues. He felt that by virtue of the depression and psychological problems a custodial sentence would weigh more heavily upon the offender than for the average inmate. He suggested that he should receive psychiatric assessment of his depression and need for antidepressant medication, and that he should receive psychological counselling. Another suggestion was that the offender attend a relapse prevention program for his substance abuse issues. It was Dr Furst's assessment that the offender's prospects of rehabilitation were "reasonable".

Assessment of sentence 35I have already mentioned that I must determine a sentence that is proportionate to the objective gravity of the offence. There are some other matters that have to be taken into account. 36General deterrence is a significant matter, particularly in light of the fact that the death of Ms Smith was the result of a physical assault committed in the course of a robbery of a woman in a vulnerable situation. Punishment, denunciation and making the offender accountable for his actions are also relevant considerations. 37The offender must be given credit for his plea of guilty. It was common ground that the plea was entered at a relatively early stage and that there should be a reduction of the sentence of 25 per cent. 38I have doubts about the offender's claim of being genuinely remorseful. I acknowledge that he said things to that effect to Dr Furst as well as in his evidence and in his letter (Exhibit 3). However, he told Dr Furst that if had known that Ms Smith was hurt he would not have left her there. The fact is that he flattened her with a single punch and she struck her head. It would have been plain to all but the most self-absorbed individual that she had been hurt. 39The offender said in his evidence that he had carried the guilt and the shame for what he had done for a long time. He told Dr Furst that it had "not sat right with him ever since he found out the victim had died". He also said that "he felt for the victim's parents especially given the losses of a number of close family members he endured himself". These close family members included some who had died many years ago. If that experience prompted him to think about Ms Smith's parents, he would have experienced such thoughts for much of the past 14 years. But when in early 2011 he was made aware that the police were reinvestigating the incident by being asked to provide a DNA sample, he refused. 40Remorse involves a genuine acceptance of responsibility. The fact that the offender only confessed when he was tricked into it, and did not openly acknowledge that he had any involvement in the death of Ms Smith until after he was charged, makes a claim of being genuinely remorseful very difficult to accept. I do think he realises that he has done a dreadful thing and feels guilty. His letter included: I sincerely hope that the family and loved ones of Ms Smith will find it in their heart to understand my grief and sorrow for their loss. It is my impression that he is looking for absolution to assuage his own feelings of guilt. His primary concern is for himself; I am not persuaded that there is a true empathy for the plight of Ms Smith and her family. 41It was not submitted that I should find that the offender's rehabilitation prospects are any more than "reasonable". If he engages in the types of relapse prevention programs suggested by Dr Furst there will be a reduced likelihood of re-offending. 42It was not submitted that I should adopt the opinion of Dr Furst and take into account that the offender's time in custody would be more onerous because of his depression and physiological issues. Even if that were to be the case (of which I am not convinced) it would not be a matter of any great significance. There also does not appear to be any basis to conclude that imprisonment will be more burdensome because of his various physical ailments. I note in this respect his evidence that he has been working while on remand. 43The offence occurred in 1998, and if sentencing patterns had changed since then it would be necessary for me to have regard to the sentencing patterns prevailing at the time of the offence: R v MJR (2002) 54 NSWLR 368. However in Scott v R [2011] NSWCCA 221, James J, with whom the other members of the Court agreed, held (at [67]) that sentencing patterns for manslaughter in 2000 were not significantly different to what they were in 2010. Having regard to that conclusion, I do not believe it could be said that there would be any significant difference between sentences imposed in 1998 and 2012. 44It was submitted by Mr Stratton SC that I should find that there are special circumstances and thereby reduce the proportion of the sentence that is represented by the non-parole period. I have considered that submission but, with respect, do not accept it. 45The sentence will be backdated so as to take into account the time the offender has been held in custody since his arrest.

Sentence 46Convicted. 47Sentenced to imprisonment comprising a non-parole period of 5 years 8 months and a balance of the term of the sentence of 1 year 10 months. 48The sentence will date from 2 May 2011. The offender will become eligible to be released upon parole after the non-parole period expires on 1 January 2017. 49That is a sentence of 7 years 6 months to expire on 1 November 2018. If not for the offender's plea of guilty it would have been one of 10 years.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2012