R v Good [2010] NSWSC 402 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: Anthony Peter Good (the offender) was indicted on a charge that he murdered Mario Banovic (the deceased) at St Clair on 7 June 2008. He was acquitted by a jury of that charge but convicted of the alternative charge of manslaughter, the maximum penalty for which is imprisonment for 25 years. There is no standard non-parole period which is applicable to this offence. It is my obligation to sentence the offender, in accordance with well-established principles, for the offence of which he has been convicted. 2 A considerable number of witnesses, including the offender, gave evidence during the course of the trial. Nevertheless, subject to one matter to which I shall refer in due course, the factual background to the offence was not the subject of any significant dispute. 3 The offender and the deceased were well-known to one another. The fatal incident occurred at the 21st birthday party of Erhan Kurtulmus, who was friendly with both of them. It occurred during the course of a fight in which the offender stabbed the deceased a number of times with a knife. 4 The uncontested evidence from Dr Langlois, who performed the post-mortem, was that the deceased sustained six stab wounds in all. Dr Langlois gave evidence that one of the stab wounds to the deceased's abdomen, which proved to be the fatal injury, penetrated his colon and then his aorta causing the deceased to have a cardiac arrest. An ambulance arrived shortly after the incident and immediately transported the deceased to hospital where he underwent emergency surgery. Tragically however the deceased never recovered consciousness and he died a few days later. Dr Langlois and Dr Serena, who worked in the intensive care unit at Nepean Hospital where the deceased was treated, each expressed the opinion that the deceased died from the trauma occasioned to his organs which was the direct consequence of the stab wounds that were inflicted upon him. That said, it was Dr Langlois' opinion that none of the other five stab wounds, one of which was to his abdomen and the remaining four to his back, could have been fatal. He described each of them as falling into the mild category of force. 5 Although the deceased was slightly younger than the offender, it appears that they had become acquainted through mutual friends who had all grown up together in the St Clair area. It seems that from time to time they attended the same social functions as part of a larger group, some members of which had attended high school together. The community at St Clair itself appears to have been fairly close knit. From about the middle of 2006 until October 2007 the offender and the deceased's younger sister, Marina Banovic, were in an intimate relationship. Ms Banovic terminated the relationship with the offender when she discovered that he had also, at least for some of that period, been having a relationship with another young woman named Hannah Ball. That relationship had ended earlier in 2007. In a somewhat ironic twist, it emerged that Hannah Ball had, for some time prior to the fatal incident, been going out with the deceased. 6 After a break of about six weeks, the relationship between the offender and Ms Banovic resumed. Although at no stage did she inform her parents about the existence of the relationship, it would appear that at least prior to October 2007 it was common knowledge amongst the group of young people with whom they mixed that they were a couple. However, when the relationship recommenced it operated in a much more clandestine fashion. The evidence suggests that the offender and Ms Banovic were then much more circumspect about where and when they met. It seems that they also took precautions to avoid being seen by members of their extended social network. 7 It would appear that at least until Ms Banovic terminated the relationship in October 2007, the deceased tolerated their relationship and that he and the offender were on cordial terms. At some stage, for reasons that are not entirely clear, things between them changed. Indeed about six months prior to the fatal incident the deceased initiated a fistfight with the offender, which by arrangement had taken place at a local park. It is common ground that the deceased emerged victorious from the fight. During the course of it, the offender was twice knocked to the ground and then kicked in the stomach by the deceased who at 6'3" in height, was at least 5" or 6" taller than the offender. Some time after the fight, Ms Banovic discovered that she was pregnant. She and the offender decided to terminate the pregnancy, a decision which the offender later came to regret. That, as I understand the situation, precipitated an argument between them. In due course Ms Banovic informed the deceased that she had had a termination. That revelation prompted him to contact the offender and to, in effect, warn him in threatening terms not to contact Ms Banovic. Such contact as the offender and the deceased had in the period leading up to the fatal incident appears to have been acrimonious. Meanwhile, the relationship between the offender and Ms Banovic continued in the clandestine fashion to which I earlier referred. They were in almost constant contact and literally bombarded one another with SMS messages, which were often sent and received in the early hours of the morning, as well as with phone calls. There was evidence before the jury, in the form of call charge records, which revealed the number and duration of those calls. The jury also had available to them extracts from some of the SMS messages. 8 The relationship between Ms Banovic and the offender however remained turbulent and emotionally fraught. Ms Davenport SC, who appeared for the offender, described it as being "doomed". During certain periods there was no contact between them for several days but when contact was resumed it was with apparently renewed enthusiasm. This body of objective evidence would have made it extremely difficult for the jury to have accepted Ms Banovic's protestations that her sole reason for maintaining contact with the offender was because he used to threaten her or because she wanted to "keep the peace". 9 The first occasion on which the offender spent the night at Ms Banovic's home was during the weekend before the fatal incident. He was able to do so because her parents were away in Croatia. She and the offender were then seen together during the evening of the following Monday (2 June) by a friend of the deceased. When the deceased challenged her about that meeting, she lied to him and then endeavoured to maintain the lie the following day. When the deceased discovered the truth of the matter, he sent her a message the next day (3 June) to the effect that if the offender threatened her, he would "fucking smash him". The following day the offender and Ms Banovic exchanged SMS messages in which Ms Banovic continued to display her concern about the fact that the offender had been in a relationship with Hannah Ball. The evidence revealed that Ms Banovic found it awkward when Ms Ball came to the house to visit the deceased because her presence was a constant reminder of the hurt which the offender's infidelity had caused her. The strong indication is that the existence of that relationship also added another level of tension to the relationship between the offender and the deceased. 10 Text messages exchanged on 5 June demonstrated that the offender and Ms Banovic also met up that evening. They then had a lengthy phone call in which, according to the offender, Ms Banovic informed him that the deceased was aware that they had again met up with one another. 11 The following day, 6 June, the offender sent Ms Banovic a number of messages in which he suggested that he should stay at her place for the weekend (her parents being still away). Moreover, it would seem clear that he believed, based on what he had been told by Ms Banovic, that the deceased would be away for the weekend at the snow. Indeed, according to the evidence, it was not until the following day that Ms Banovic herself became aware that the deceased intended to first go to the 21st birthday party before travelling to the snow. There was considerable contact between Ms Banovic and the offender during the course of the Friday as to their respective plans for that evening. Not everything that they said to each other reflected favourably upon them. Later that evening they bumped into one another outside a local nightclub. A confrontation ensued, in which they yelled at each other. It is unnecessary to descend to the details as to what may have led to the argument, but it is clear that as a result of it, Ms Banovic was visibly upset. That prompted her to call the deceased who was understandably angered by what he was told. He, in turn, contacted the accused and told him that he was going to "smash his head in". The offender thereafter endeavoured to speak again to the deceased. The deceased however declined to accept his calls. The offender was clearly frustrated by his inability to provide the deceased with his version of events and to explain how he and Ms Banovic had inadvertently come into contact with one another that evening. 12 In a very real sense, the tension which existed between the offender and the deceased, was the product of miscommunication. As Ms Banovic readily agreed, she only told the deceased of her concerns about the offender when she was upset with him. Moreover, she acknowledged, that she only ever told him "half the story". She omitted to tell him, for example, that she continued to have frequent contact with the offender and that their relationship remained an intimate one. Given the distorted view which she provided to the deceased of their relationship, it is perfectly understandable that he reacted angrily on each occasion that Ms Banovic complained to him about what the offender had most recently done. Nevertheless, it goes without saying that she bears no responsibility whatsoever for the events which culminated in the tragic death of her brother. 13 I turn now to the events of the evening of 7 June. The evidence revealed that the offender was in a jovial mood whilst he was getting ready for the party and indeed whilst he was on the way there. It also seems clear that the offender only learnt that the deceased was at the party when informed of his presence by the host. It is apparent that he then became subdued. On the other hand it would seem from the evidence given by Ms Banovic, that the deceased knew that the offender would be attending. The deceased arrived at the party before the offender. Shortly after the offender arrived, the deceased approached him and they had a heated discussion. However, none of the witnesses were able to hear what was said because of loud music which was being played in the community hall in which the party was being held. The offender maintained that the deceased again threatened him following which he went out the back of the premises where he spoke briefly to some of his friends who had gathered there. The evidence showed that when he returned to the hall, the deceased told the offender to "come outside". The deceased was then seen to go to the front of the premises. As he was on his way out there he was observed handing his glasses to a friend, a gesture that was interpreted by those who observed it as indicating that he was preparing for a fight. The offender then proceeded to follow the deceased to a point outside the hall where they then confronted one other. 14 One guest at the party, Rafaelle Rositano, gave evidence that he saw the offender produce a metal object (which he thought was a key) and hold it up as if he was showing it to the deceased. The offender gave evidence that the object was in fact a knife. He maintained that he had got it from the kitchen drawer of the community hall. In any event, he held it up for the deceased to see and told him that he did not wish to engage in a fight. His purpose in holding up the knife, he said, was to dissuade the deceased from starting a fight. Notwithstanding the presentation of the knife, the deceased proceeded to punch the offender in the head region. At post-mortem, Dr Langlois located underlying bruising on the knuckles of the deceased's left hand. He said that the bruising was consistent with injuries that would be sustained when punching someone and agreed, in cross-examination, that a "fair degree of force" would be required to produce that kind of bruising. The offender reacted to the deceased's blows by stabbing him, as I have said, on six occasions with the knife. The encounter lasted for only about 10 seconds whereupon the deceased slumped to the ground. Although the offender rather heartlessly told bystanders who were rendering assistance to the deceased to leave him alone, and that "the next one, will be a bullet", the Crown candidly acknowledged that the offender was not, at that stage, aware of the tragic consequences of his actions. 15 Shortly thereafter, the offender left the party and went to the home of Sally Eivers, who was the girlfriend of his good friend, Gary Elali. She told the jury that although she could not recall the exact words that the accused had said, he indicated that he had stabbed the deceased a number of times with a knife which he had obtained from his mother's kitchen drawer. The offender in his evidence denied having done so and relied upon evidence given by his mother as support for his account. 16 The offender was arrested two days later as he was on his way to consult a solicitor. In the interim his telephone calls were intercepted, police having obtained a warrant to do so. During one of those calls, the offender told his uncle that: "Yeah, I wasn't copping it no more, man, I wasn't copping any shit off anyone anymore. Everyone was, these guys were giving me death threats and thought they were getting away with it all the time. They got me once before, I wasn't letting them get me again." 17 It is clear from what I have already said that there was a conflict in the evidence as to the circumstances in which the offender acquired the knife that he used to stab the deceased. The Crown case on this aspect of the matter, which depended significantly upon the evidence of Ms Eivers, was that he obtained it from his mother's kitchen drawer and took it with him to the party. Its case was that he did so with the intention of using it should the opportunity arise or should it become necessary to fight the deceased in the event that there was a confrontation between them. I am not disposed to accept, to the requisite standard, that such an inference should be drawn. First, the available evidence indicates as I have said that the offender did not realise until he arrived at the party, that the deceased was going to be in attendance. His belief, I am satisfied, was that the deceased was going to the snow. In those circumstances, there was no reason for him to obtain a knife to take to the party. Secondly, Ms Eivers was not an entirely reliable witness. In the first place she deliberately omitted making any reference to the offender even being at her home on the evening in question when she was first spoken to by police the following day. She also conceded that the events of that evening were frantic as phone calls were constantly made to and by the offender. Moreover, it was not until 18 months later, a period during which Ms Eivers admitted to having been on anti-depressants, that she first told police about what she said she had heard the offender say on the night in question. Furthermore, she conceded that she had heard many contradictory accounts and rumours about the incident from other people in the period before she came forward and provided the police with the account which she gave in court. Thirdly, the evidence concerning the offender's demeanour prior to his arrival at the party coupled with his mother's account about there being no knives missing from her drawer when she looked next day, provide a further reason why the scenario contended for by the Crown should not be accepted. 18 Accordingly, I am of the view that there is no reasonable basis for concluding that the offender went to the party, armed with the knife, for the express purpose of using it in a confrontation with the deceased. Indeed, it would be difficult to reconcile such a view of the evidence with the jury's verdict. That said, I am unable to determine precisely when and how the offender acquired the knife. There was no support from any other witness for his evidence that he obtained it from the kitchen drawer of the premises. Nor does it seem likely, given how quickly events unfolded, that he would have had the necessary time within which to go to the kitchen and search through the drawers in order to find a knife. 19 What the evidence does enable me to conclude however is that once he and the deceased, who clearly demonstrated that he wanted to fight, confronted one another outside the hall the offender produced the knife and showed it to him. That action appears, in all the circumstances, to be consistent with the conduct of a person who was reluctant to engage in a fight. As I have said, the deceased nevertheless proceeded to punch the offender with some degree of force, before the offender retaliated by stabbing him. 20 The alternative verdict of manslaughter was left to the jury on three separate bases. I have little hesitation in accepting that the jury reached its verdict, and that the offender should be sentenced, upon the basis that he was acting in excessive self-defence. I am fortified in that view by Ms Davenport's acknowledgement that I should proceed in that fashion. That is to say that he personally believed that his conduct in stabbing the deceased was necessary, particularly in light of their history of disputation and the deceased's aggression towards him on the night in question, in order to defend himself but that his conduct was not a reasonable one in the circumstances as he perceived them. Although the offender may have had good reason to be fearful of what harm the deceased may have been prepared to inflict upon him, nothing it must be said justified his actions in taking his life particularly as the deceased was unarmed at the time. It is common ground that no issue of provocation arose because the offender in giving his evidence did not assert that he had lost his self-control. Nor, given the medical evidence and in particular the number of occasions on which the offender stabbed the deceased, could his conduct be characterised as an "unlawful and dangerous act". I am satisfied, given the offender's actions and the other evidence upon which the Crown relied, that in inflicting the wounds, one of which ultimately proved to be fatal, that the offender acted with at least an intention to inflict grievous bodily harm. 21 The offender, who was born in January 1986, is now aged 24. He was 22 at the time of the fatal incident. He swore an affidavit for the purposes of these proceedings. It discloses that he is the eldest of three boys and that his parents and younger brothers have never been in trouble with the law and that they are upstanding members of the community. The offender left school at the end of year 11 and has since then been engaged in productive employment. He intends, upon his release, to complete his training at TAFE as a heavy vehicle mechanic. Prior to going into custody the offender played rugby league for a local team having earlier played representative football for Penrith Juniors. This is the offender's first experience of being in custody and he currently has an 'A2' classification. That has restricted his ability to participate in programs within the prison system although he has participated in a Drug and Alcohol program. The offender recognises that as a result of his crime he will not be able to return to live in the St Clair area. His family is apparently already seeking to relocate to another area of Sydney. 22 The offender has a criminal record which commenced in 2003 when he was placed on a bond for a period of 12 months in the Children's Court in respect of an offence of assault occasioning actual bodily harm. In July 2007 in the District Court (on appeal) he received a fully suspended sentence of 16 months, a condition of which was that he be of good behaviour for the period of the sentence, for an offence of assault occasioning actual bodily harm in company. I have been provided with the factual background to that offence. Because he was still on that bond at the time he committed the present offence, the offender was called-up for having breached that bond which was then revoked. On 12 April 2010 in the District Court the original sentence of 16 months imprisonment to commence on that date with a non-parole period of 8 months which will expire on 11 December 2010 was imposed. 23 I have received an affidavit from the offender's solicitor, Mr Peter Katsoolis, which sets out the chronology of these proceedings. On 29 May 2009 the offender was committed to this court for trial on the charge of murder following a paper committal hearing. Mr Katsoolis states that "prior to this date [he] had engaged in oral conversations" with solicitors from the office of the Director of Public Prosecutions requesting that the Crown give consideration to a plea of manslaughter in full satisfaction of the indictment. Mr Katsoolis states that "on every occasion [he] was advised that it was a plea to murder or nothing". Mr Katsoolis gave sworn evidence in which he confirmed that his approach had been upon the basis of instructions from the offender who indicated that he would plead guilty to manslaughter if his offer were to be accepted. The offender was arraigned on 10 July 2009 and entered a plea of not guilty to the charge of murder. On 7 August 2009 the offender's trial was fixed for 1 February 2010. Written representations on behalf of the offender dated 17 November 2009, in which he again offered to plead guilty to manslaughter, were received by the DPP. The offer was rejected on 9 December 2009. 24 I have received a victim impact statement from the deceased's older sister which was prepared on behalf of the entire family. The feelings which she has so eloquently and poignantly expressed and the grief which she and her family have suffered is entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statement. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226. 25 In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case. 26 It is common ground that the fact that the offender used a weapon is a matter of aggravation. Offences of violence involving the use of weapons, such as knives, understandably attract the disapprobation of the courts and the community. In assessing the objective gravity of the offence, I must have due regard to all the circumstances in which the offender took the deceased's life, including the fact that he stabbed him on no fewer than six occasions and that some insight into his state of mind at the relevant time is apparent from what he said to his uncle in the telephone call to which I referred earlier. At the forefront of the sentencing task is the fact that a human life has been needlessly taken because of the offender's unlawful and reprehensible conduct. 27 It is also common ground that in assessing the appropriate sentence to be imposed I must also have regard, as an aggravating feature, to the fact that the offender was on conditional liberty at the time that he committed this offence. The offender's criminal history, whilst not extensive, disentitles him to any leniency particularly as it entails previous offences of violence. That said, I acknowledge that there is nothing in the offender's criminal history which remotely approaches the seriousness of the present offence. 28 There are a number of matters upon which the offender is entitled to rely which serve to ameliorate the otherwise appropriate penalty. As I have said, the offender offered to plead guilty to manslaughter in the circumstances to which alluded earlier. The law provides that he is entitled to an appropriate discount for having done so notwithstanding the fact that the Crown did not accept that offer: see R v Oinonen [1999] NSWCCA 102; R v Borkowski [2009] NSWCCA 102 [at para 32]. It is common ground, in the circumstances which I have described, that the offer was made at the earliest possible opportunity and that a discount in the order of 25% is thus warranted. The offender is entitled to a further measure of leniency for having expressed, during the course of giving evidence at the trial, his remorse for his actions. I am also disposed to accept the submission that the offender's conduct in stabbing the deceased did not demonstrate any real measure of premeditation on his part. His actions represented, in essence, a fairly spontaneous reaction to the circumstances in which he found himself. I accept that the confrontation which culminated in the fatal act was precipitated by the deceased and that some of the things which the deceased said to the offender at relevant times were somewhat provocative. I am also prepared to conclude given his youth, his creditable work record and the fact that he has accepted responsibility for his actions, that the offender enjoys reasonably good prospects of rehabilitation. 29 The Crown submitted that: [i]n the scale of seriousness of offences of manslaughter those arising from the reduction of the offence from murder by reason of excessive self defence fall at the higher end of seriousness. … By way of contrast, offences arising by way of provocation involve a loss of self-control explaining the offence and those arising through substantial impairment by abnormality of the mind involve a substantial impairment of understanding of events, of right or wrong of an impaired ability to control one's actions. Manslaughter by reason of excessive self defence involves willed and intentional actions on the part of the offender making it more serious than those other types of manslaughter. 30 I am unable to accept that submission. In R v Borkowski (supra) Howie J, with the concurrence of McClellan CJ at CL and Simpson J, said: However it was made clear in R v Isaacs (1997) 41 NSWLR 374 at 381 that there is no hierarchy of manslaughter verdicts in which, for example, a manslaughter arising from provocation is necessarily more serious and worthy of a heavier sentence than a manslaughter arising from an unlawful and dangerous act. This is notwithstanding that provocation manslaughter involves an intention to kill or inflict grievous bodily harm. It is the particular facts of the killing and not the class of manslaughter that determines the seriousness of the offending: R v Dally [2000] NSWCCA 162; 115 A Crim R 582. [at par 49] 31 I was referred by Ms Davenport to the decisions of R v Muddle [2004] NSWSC 403; R v Ward [2005] NSWSC 266 and R v Williamson [2008] NSWSC 686. The Crown specifically referred to my decision in R v Boyd [2004] NSWSC 263 in which I sentenced that offender to a non-parole of 4½ years imprisonment with an overall sentence of 7½ years imprisonment. The Crown's submission was that that reflected a more appropriate sentencing disposition than the decisions upon which Ms Davenport relied. I have also had regard to the rather more extensive analysis of 37 cases of excessive self-defence which appears on the Public Defender's website. That said, it is apt to recall that in R v Forbes [2005] NSWCCA 377, Spigelman CJ with whom McClellan CJ at CL and Hall J (with additional remarks) agreed, said that: As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]). It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter. For example where diminished responsibility is relied upon, the extent to which culpability is 'diminished' can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as "child-killing by a parent or carer", it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna (2003) 149 A Crim R 505). That test established by s418 of the Crimes Act is whether "the conduct is a reasonable response in the circumstances as he or she perceives them". Such a test must depend on the characteristics and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another. [at paras 133 - 136] 32 Although I have given due consideration to all that material in the final analysis however, I must exercise my own discretion based upon the various sentencing considerations to which I have referred. 33 It will be necessary, given the sentence which was imposed for the breach of the bond that was attached to the suspended sentence, to consider the manner in which the present sentence should be structured including the date upon which it should commence. In my view, the most appropriate manner in which to do so is to commence the sentence on 9 December 2008 which is 6 months after the offender first went into custody. That approach will ensure that proper regard is paid to that earlier sentence whilst also giving effect to the principle of totality. I am disposed to accept Ms Davenport's submission that there should be a finding of "special circumstances" because of the manner in which it has been necessary to structure the sentence. Furthermore, I accept that the offender's path to rehabilitation will be facilitated by an extended period in the community on parole following what will have been his first time in custody. In setting the non-parole period, I have borne in mind the need to fix the minimum period which the offender must spend in custody.

R v Good

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Judgment (12 paragraphs)

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Cases Cited (11)