R v CHARMAN

SOLICITORS : Crown: A Halpin (DPP) Prisoner: E Manea (Legal Aid Commission)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner, Nathanial David Charman, has pleaded guilty to a charge of the manslaughter, on 15 March 2006, of Michael Joseph Healy. The nature of the manslaughter was by an unlawful and dangerous act. 2 The prisoner now falls to be sentenced. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the prisoner, while I need only be satisfied on the balance of probabilities of the matters that argue in favour of mitigation - see R v Olbrich (1999) 199 CLR 270; R v Pilley (1991) 56 A Crim R 202.

Circumstances of the Offence 3 The circumstances of the prisoner's offence were as follows. Some weeks prior to Mr Healy's death, the prisoner was approached by a friend to whom I shall refer as "A", who asked whether the prisoner would commit a break and enter of Mr Healy's residence in order to steal a safe that contained $60,000 and some documents relating to a fraud that Mr Healy was alleging A had committed. The prisoner ran the suggestion past another friend whom I shall refer to as "B". B expressed interest in participating and recruited a further person whom I shall refer to as "C". A plan was formulated whereby the prisoner, B and C were to break into Mr Healy's home, 'knock him out' and steal the safe. (I have used pseudonyms to refer to the prisoner's co-offenders because they remain to be tried.) 4 At around 10 p.m. on 11 March 2006, the prisoner, B, C and B's girlfriend "D" met in the driveway of the house with the prisoner was then residing. They then drove in B's car to the vicinity of Mr Healy's home. There the car was parked. B and C walked off to the deceased's residence and the prisoner and D remained in the vehicle to await the others' return. The prisoner occupied the driver's seat. B and C were dressed in dark clothing and were wearing black beanies, and as the prisoner observed, B was in possession of a black torch approximately 30 centimetres in length. 5 After a not inconsiderable period - possibly as long as an hour-and-a-half - B and C returned to the car, apparently empty-handed except for the torch which B placed under a seat of the vehicle. B told the prisoner to "Go! Go! Go!" and the prisoner drove the four back to his residence after which the group separated. 6 The deceased was a man who suffered from intellectual impairment and had limited cognitive functions. On 14 March 2006 neighbours, concerned that they had not seen the deceased for some time, called the police. The deceased's body was then found on the floor of his bedroom. It was apparent that he had been attacked inside that room and had been struck to the head by some sort of weapon at least three times, occasioning severe head injuries. There was significant blood staining to his bed and blood splatter to the bed-head and adjacent wall. The crime scene was consistent with the deceased having been attacked whilst lying in bed. There was no sign of forced entry and when police arrived, the back sliding door was open. Neither then, nor at any other relevant time, had there been a safe in the premises. 7 A few days later the prisoner was approached by B, asked "How he was handling it?", and told that B and C "had planned to gain entry into Healy's house via the back door by smashing a window", but, they found the back sliding door open. B and C then entered the premises and attacked Mr Healy whilst he was in bed. There was an attempt to knock him out but this did not happen as planned and both B and C carried out a further attack which subsequently subdued Mr Healy. The black metal torch was used in this attack. 8 The prisoner maintained - and this account is corroborated by a statement from D and not contradicted - that there was no significant discussion in the car after the attack and not until B called on him some days later. There were, of course, newspaper reports of the deceased's death. 9 On 15 April the prisoner contacted police, informed them that he knew who had killed Mr Healy, and left his contact details. On 17 April he was interviewed and revealed those of the above events in which he had participated. It would appear that prior to contacting the police, the prisoner informed his stepfather of events. 10 Earlier, on 3 and 4 April, the prisoner had also been interviewed by police. On those occasions he denied any knowledge of the offence and this despite police suggesting that he had been overheard saying: "We're gonna tell him (Mr Healy) we're security guards. If Michael invites us in, we're gunna go in, bash him and rob him". In his interview of 17 April he explained these denials as due to being scared of going to prison.

The Prisoner's Subjective Circumstances 11 The prisoner was born on 9 June 1985 and so was aged 20 at the time of the offence. He has no criminal convictions except one for making a false representation resulting in a police investigation for which, on 20 September 2005, he was placed on a section 10 bond. Apart from the fact of the bond I do not regard his prior offending as of any significance. 12 The prisoner's relationship with his mother appears to be close and he has also a good relationship with his stepfather. The prisoner's natural father, who separated from his wife prior to the prisoner's birth, has had no involvement in the prisoner's upbringing and although the prisoner attempted to form a relationship with the latter a few years ago, the attempt was unsuccessful. A child of the prisoner's mother and stepfather is 14 years of age. What I may refer to as his mother's family seems to be law abiding and responsible and it is clear that they are willing to help him upon his release. At the time of the offence, the prisoner was in a relationship with a girlfriend that had lasted some 3 years but this ceased prior to his admissions to the police. 13 Apart from one period for which I would not hold the prisoner responsible, he has been in regular employment, albeit the jobs have been of a casual nature. He has been a pizza delivery driver, labourer, kitchen hand and employee in a wrecking yard. He was working in both of the latter capacities at the time of the offence. He suffers from no substance abuse problems. 14 The prisoner attended three primary and four high schools, it would seem due to the movements of his mother (and, presumably, his stepfather). He completed Year 10. During this time he reported that he achieved reasonable marks and adjusted well enough to the changes due to what he described as his sociable nature. This was despite him being diagnosed as suffering from ADHD at age five, a condition which, until the prisoner was 16, was treated with medication. 15 In this connection there was some concern expressed by his mother that the prisoner is, and always has been, a follower - someone liable to fall in with the wrong crowd and who displays a fairly high degree of bravado. To this end it is worth noting that the prisoner told a psychologist Ms Collins, whose report was tendered during the proceedings, that: "his participation in the offence was motivated by helping friends who had financial problems. He advised that he agreed to help but then did not want to participate, and so remained in the car". 16 Testing carried out by the psychologist led the latter to conclude that the prisoner displayed, inter alia, verbal skills on the low average to average range; non-verbal skills on the average to high average range; possible impaired verbal processing; verbal and non-verbal memory commensurate with his cognitive skills, and poor planning ability: In Ms Collins' view - based, it seems to me, largely on statements of the prisoner's mother - the prisoner lacks insight into the effect of early behavioural difficulties and residual ADHD-like symptoms which remain an ongoing issue. However, Ms Collins' report concludes with the statement that: "Whilst there are no significant clinical factors apparent from assessment, including the fact that anger and substance abuse do not seem to be problematic for him, some help in managing his impulsive behaviour through consultations with a corrective services psychologist may be of benefit."

Plea and Assistance 17 The prisoner pleaded guilty in the Local Court and the Crown accepted that this occurred at the first available opportunity. Without, it would appear, any reward beyond such benefits as I give him, he has undertaken to give evidence against co-offenders A, B, C and, the Crown concedes, D. 18 Section 23 of the Crimes (Sentencing Procedure) Act requires that in this situation regard be had to numerous matters set out in that section. I do not regard it as necessary to canvass them all but it is appropriate that I refer to a number of matters relevant to the demands of the section. Firstly, although the prisoner's later statements or interviews with the police seem to provide fairly comprehensive accounts of events, his credibility will suffer because of the different accounts given in early statements. Secondly, it must be recorded that the police have available to them a deal of other evidence but although the extent of this was not canvassed in detail during the sentencing proceedings, the firm view I have is that the evidence the prisoner can give will be of appreciable significance and very useful. 19 The offer of assistance was timely. I am satisfied on the balance of probability that the information the prisoner has provided on and after 17 April 2006 is truthful, reliable and fairly complete. (I have some concern as to how little he has said about D and about the pre-offence discussions between offenders.) 20 Threats against the prisoner and his family have been made by the co-offender C and the officer-in-charge of the investigation said that he had concerns about the prisoner and the latter's wider family - it may be inferred in consequence. The prisoner is currently on protection and in my judgment of the prison system, the probabilities are that that circumstance is likely to continue. What the precise consequences to the conditions of his incarceration will be is impossible to assess, it being well known that these will depend, inter alia, on what gaol or gaols he is sent to and, whatever the reason may be, prisoners are moved frequently. It is not possible to detail the very many previous cases where offenders coming before me have been on protection, but experience in this Court and the Court of Criminal Appeal leads me firmly to the view that the probability is that the prisoner will suffer some appreciable increase to the harshness of incarceration by being on protection. 21 (I am conscious that in that last paragraph I am differing to some degree with the appreciation of the "on protection" regime apparent in Howie J's remarks in R v Sukkar [2006] NSWCCA 92 at [3, 5] and quoted in a number of subsequent cases, including SZ v R [2007] NSWCCA 19. I certainly accept that one cannot, as one previously could, draw the inference that a prisoner on protection will inevitably or very probably endure significantly harsher conditions of incarceration for the whole period he is on protection. However, my experience is as I have indicated.) 22 It is desirable that I quantify the allowance I propose to make on account of the prisoner's plea and assistance given and offered. It is appropriate to give the prisoner a discount for the utilitarian value of his plea of 25%. Indeed, given that plea followed wholesale admissions, any lower discount would, in light of R v Thomson and Houlton (2000) 49 NSWLR 383 at [160] be inappropriate. 23 On the other hand, it is clear that his assistance is not at the top of the range of assistance - the police would seem to have other appreciable evidence and the prisoner's early statements would provide fertile ground for his cross-examination. In these circumstances it would not be appropriate to allow the prisoner a combined discount for his plea and assistance of 50% and thus, even though I am not in agreement with Howie J's reasons in R v Sukkar [2007] NSWCCA 19 for limiting the discount, other than in exceptional cases, to 40%. 24 This is not an exceptional case. Nor, as I have said, is the prisoner's assistance at the top of the scale. Nevertheless I would allow a combined discount of 40%.

Section 21A 25 Section 21A of the Crimes (Sentencing Procedure) Act requires that I also take into account, to the extent they are present and subject to the limitations set forth in the section, a large number of factors described as "aggravating" or "mitigating". A comparison between what I have said and the terms of sub-section (2) makes obvious that the prisoner's offence involved a significant number of aggravating factors. There was actual use of a weapon and violence (though I am not persuaded more than was necessary to achieve the result of Mr Healy's death), company, the injury was substantial (as it always is in manslaughter), the prisoner was on conditional liberty, the offence involved a series of criminal acts and was part of a planned criminal activity. To some degree the victim was vulnerable, though no more so than a large proportion of the community while they are asleep. However, it is only the entry into Mr Healy's home, the prisoner's conditional liberty and planning to which I propose to have additional regard and which I regard as arguing for an increase in the sentence beyond that otherwise appropriate to the offence charged. 26 I turn to the mitigating factors. Although he had no significant prior convictions, I am not persuaded the prisoner was of prior good character: He too readily agreed to participate in a home invasion and theft for one to conclude that prior or up to that time, he was of good character. On the other hand, I am satisfied that the prisoner is remorseful, has good prospects of rehabilitation, and is unlikely to re-offend. Arguing in favour of one or more of these conclusions are the lack of significant convictions, his regular employment, the fact that his use of drugs has been limited - perhaps by the standards of modern youth, very limited - the fact of his admissions (including to his stepfather) and willingness to assist and what I perceive as the nature of his family.

The Appropriate Sentence 27 The prisoner's offence rendered him liable to imprisonment for 25 years - see Crimes Act 1900, section 24. The difficulty lies in deciding where, within the range available under the section, one should place the prisoner's sentence to reflect his criminality, subjective circumstances and the various purposes of sentencing. In this connection it is appropriate to recall the oft quoted remarks of the Court of Criminal Appeal in R v Blacklidge (Unreported, CCA, 12 December 1995): "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 the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" 28 It can fairly be said on the prisoner's behalf that he did not strike the fatal blows and that what occurred - at least three blows, one or more of which was sufficient to result in blood spatter on the bed-head and adjacent wall - is not what would commonly be expected to flow from an intention merely to knock someone out. However, blows to the head designed to render a victim unconscious are not something capable of precise measurement in advance and do have the clear potential to do more damage than intended. It is hard to believe that proposition is not one of which every adult would be aware. The prisoner joined in an enterprise with those risks and left the others, over whom he then lost all relevant control, to carry out the task. 29 While at liberty on condition he be of good behaviour, he chose to participate in the invasion of the deceased's home and the intention to render by violence the deceased unconscious. Although no doubt this was not the prisoner's intention, in consequence the deceased died. Without intending to be melodramatic, the deceased lost everything. In my view it would not be appropriate to take as a starting point anything less than ten years. That is but 40% of the statutory maximum. I am not persuaded however that it should be more. 30 In arriving at that figure I have, of course, taken into account the subjective features referred to above other than the prisoner's plea and offer of assistance. It also reflects my consideration over the years of numerous sentences imposed in other cases. It also falls within the range of starting points apparent in five cases to which I was referred by the parties and summaries of which I have annexed to these reasons. 31 I acknowledge that it is higher than the starting point in some of those decisions, but sentencing is not so precise that all Judges will arrive at the same conclusion. It may be that in some of those cases I would have imposed a somewhat heavier sentence. There are of course differences between the circumstances of the prisoner and those of the offenders in those other cases. 32 I should say also that I have reflected on the result of the combination of the ten-year period and the discount I have selected as sentencing principles and section 23(3) of the Crimes (Sentencing Procedure) Act require. 33 This is the prisoner's first time in custody and he is relatively young. I do not regard him as needing an extended period on parole, but I do think the circumstances justify a finding of special circumstances. 34 Mr Charman, would you stand up, please. I sentence you to imprisonment for a non-parole period of four years dating from 17 April 2006, together with a further term of two years dating from 17 April 2010. 35 People at the Bar table, are there any matters that I have neglected to deal with? 36 SMITH: No, your Honour. 37 HALPIN: No, your Honour. ********** APPENDIX 38 In R v Sandnes [2001] NSWCCA 385, the offender and his girlfriend had entered the house of the latter's grandmother to steal money with which to buy drugs. The grandmother was home. A struggle ensued and the offender struck the grandmother twice to the head with a half brick he had taken into the house, presumably to use as a weapon. Dunford J sentenced the offender to imprisonment for a total term of 11 years with a non-parole period of 8½ years, periods which reflected discounts of respectively 1 year and 6 months for the offender's plea. The Court of Criminal Appeal regarded the sentence as towards the top, perhaps the very top, of a permissible range but nonetheless declined to intervene. 39 In R v Stelfox [2002] NSWCCA 331, the offender had been sentenced to imprisonment for a total term of 5 years including a non-parole period of 2½ years. Prior to arriving at these periods the sentencing judge had allowed a discount of 45% for the offender's plea, his contrition, an offer of assistance and the fact he would spend much of his sentence on protection. The starting point used was thus about 9 years. A co-offender had shot the victim. The Applicant learned on the way to the area the victim was believed to be that the co-offender had in his possession a gun. He also subsequently armed himself with a broom handle that, during the course of a melee, was used to strike the victim. The Court of Criminal Appeal dismissed an appeal against sentence. 40 In R v Hampton [2004] NSWSC 1215, the offender was sentenced by Bell J in respect of two offences, one of them manslaughter. On that charge the sentence imposed was for a total term of 6 years and 4 months including a non-parole period of three years and four months, a discount of 20% having been allowed for the offender's plea. Her Honour's starting point must thus have been about 8 years. The offender had been part of a group that entered a house with the intent of assaulting an occupier who, during the course of events was killed. The offender was aged 18 at the time of the offence. There was evidence in this case of a substantially disadvantaged background and the involvement of alcohol which the offender had commenced drinking when he was 12, not long after his father dies. 41 In R v VDN [2004] NSWSC 426, the offender was sentenced by Whealy J to imprisonment for 6 years and 9 months including a non-parole period of 3 years imprisonment with a balance of term of 3 years, discount of 15% having been allowed for the offender's plea. The offence was manslaughter. The starting point must thus have been approximately 8 years. He took part in an armed robbery with knowledge that a knife was to be presented, an event which would be an unlawful and dangerous act. A knife was presented and caused the death of the victim. At the time of the offence VDN was aged 17 years and 7 months. He had a small criminal history but the judge described his subjective case as strong. 42 In R v Hung Duc Dang [2001] NSWCCA 321, the sentence imposed for manslaughter was of imprisonment for 7½ years including a non-parole period of 4 years. It was cumulative to another sentence of 2½ years. The circumstances of the offence were, for present purposes, materially similar to those in R v VDN. The offender was 18 or 19 at the time of the offence. He came from a good background and had a supportive family. He had no criminal record, had expressed remorse, although he was assessed as having limited insight. **********

ADDENDUM 43 Earlier this morning I sentenced Nathanial David Charman to imprisonment for a non-parole period of 4 years dating from 17 April 2006, together with a further term of 2 years dating from 17 April 2010. 44 Immediately thereafter I asked the representatives of the parties whether there were any matters either wished to raise and each indicated they did not. The court then adjourned. 45 Some 10 minutes later I received a message to the effect that had I meant 17 April or 17 July. According to the unchallenged evidence put before me during the sentence proceedings, the prisoner had been arrested and from then until now detained in custody. 46 I reconvened the court but the prisoner by that time had been conveyed away from the court premises. 47 I remarked that in the circumstances my reference to 17 April 1006 was a mistake and I invited the parties to obtain instructions. 48 The matter was adjourned for some time. The parties have now returned. 49 The Crown has indicated that it that I re-open the proceedings pursuant to section 43 of the Crimes (Sentencing Procedure) Act and re-sentence the applicant, though the Crown agrees that this should only be done at some stage in the future when the offender is present. 50 Precisely how my error occurred I do not know. I observe, however, that in paragraph 9 of my remarks on sentence I have referred to the prisoner contacting police on 15 April and then being interviewed on 17 April, dates which should clearly have been references to the corresponding dates in July. It seems likely that a mistake once made was simply perpetuated. 51 The sentence imposed, as I have indicated, included a non-parole period of 4 years and a further parole period of 2 years, a total of 6 years in all. 52 The error, so long as it stands, has the effect of reducing the non-parole period by merely 3 months. That is a relatively short portion of the sentence. 53 There would be some hardship on the prisoner were I to re-open the matter and effectively sentence him to an additional 3 months, delaying his possible release and end of sentence dates by that amount. 54 There was nothing which justified commencing the sentence in April 2006 rather than July and no suggestion was made that I should do so. 55 Whether or not in these circumstances it can be said that the penalty imposed was "contrary to the law" within section 43 of the Crimes (Sentencing Procedure) Act or not, I believe that I am entitled to correct the sentence under the "slip" rule simply upon the basis of the nature of the mistake. However, because I have led the prisoner into the state of belief he is presently in and the relatively minor impact of the error, together with the fact that sentencing is not a precise science, I intend to leave things as they are. **********

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