R v HARRIS

R v Dally [2000] NSWCCA 162 CASES CITED : R v Horton [1999] NSWSC 983 R v Sherry [2000] NSWCCA 35 R v Whiting [2002] NSWSC 827

PARTIES : Regina Peter HARRIS (Offender)

COUNSEL : P Barnett SC (Crown) G Turnbull SC (Offender)

SOLICITORS : S Kavanagh Murphys Lawyers (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 BELL J: On 5 October 2007 Peter Brian Harris was arraigned on an indictment that charged him with the murder of Michelle Irene Sparkes at Long Jetty on 21 December 2005. He pleaded that he was not guilty of murder, but guilty of manslaughter. The Crown accepted the plea in full satisfaction of the indictment. 2 The offender is to be sentenced for the manslaughter of the deceased on the basis of a statement of agreed facts, which forms part of exhibit "A". 3 At the date of the offence the offender, who was 53 years of age, was living in rented premises in Long Jetty. Also residing at the premises were the deceased, who was aged 41 years, and a man named Raymond Winch. 4 The offender and the deceased were both alcoholics who spent time together and who socialised within the same group. In addition to abusing alcohol, the deceased was prone to illicit drug use and to the abuse of prescribed medication. The combination made her aggressive at times. The two of them had a volatile relationship, which included verbal and physical confrontations. 5 On 20 December 2005 the offender was observed by staff at the local Liquorland store with a cut to the top of his head and a bloodshot eye. He said that the deceased had caused his injuries. Whatever tension there may have been between the two of them that day it does not appear to have been of any moment and they commenced 21 December on amicable terms. 6 Generally the offender, the deceased and Raymond Winch were on good terms. On 12 December the offender made a reservation for three at a local hotel for 23 December with a view to celebrating the deceased's 42nd birthday. 7 At 8.00am on the morning of 21 December the offender and the deceased called to neighbouring premises where they shared a drink with some friends. A little before 11.00am the offender purchased two four-litre casks of wine from Liquorland. Around midday he and the deceased returned home. 8 The deceased was fatally injured around 4.00pm that afternoon. She sustained a stab wound to the left chest, which was inflicted with a serrated edged steak knife. The path of the wound was downward and slightly backward, penetrating the apex of the heart and travelling through the diaphragm into the abdominal cavity and passing through the left lobe of the liver. The approximate depth of penetration was 13 centimetres. There were no defence wounds, which points to this being an unexpected stabbing. 9 Blood and urine samples taken during the post-mortem examination revealed that the deceased had a blood alcohol level of 0.08. The alcohol level was declining at the time of her death. There were also signs that the deceased had ingested antidepressants and methylamphetamine. The levels of these drugs in combination with the alcohol suggest that the deceased was intoxicated at the time of her death. 10 The offender was interviewed by the police commencing at 6.27pm that night. He said that the deceased had been "pilled out" and that she was going "off her bloody head, yelling and screaming and all this" and that she picked a knife up from the kitchen table, "and fell over and that's what happened to her" (A 173). I have viewed parts of the recording of the interview. The offender's presentation is somewhat bizarre throughout. 11 I am satisfied that the offender was intoxicated at the time he stabbed the deceased. The account that he gave to the police and the accounts that he has since given to Mr Taylor, a psychologist and Ms Roberts a neuro-psychologist, are inconsistent and do not assist me to determine the circumstances of the stabbing. The offender admits by his plea that he stabbed the deceased. 12 A series of telephone calls were made to the accident and emergency service from the offender's home telephone. At 4.07pm a female speaking in a distressed voice told the operator that she that she felt dizzy and that she needed an ambulance. The operator heard a male voice saying, "I didn't mean to do it". The call was then terminated. 13 Dr Nadesan, a forensic pathologist, described the injury as being a necessarily fatal one. He estimated that it would take a matter of minutes from the time the injury was sustained to death. 14 Raymond Winch arrived home and saw the deceased making the telephone call to the emergency service. At 4.08pm a male made a call to the accident and emergency number. The call was quickly terminated. 15 At 4.10pm a male identifying himself as "Ray" telephoned the accident and emergency number and asked for an ambulance. He said, "she's been stabbed" and "Paul done it". The operator could hear another male voice yelling loudly in the background. The operator advised Mr Winch to locate the wound and how to try to stop the bleeding. Winch, with the assistance of the offender, cut away a portion of the deceased's shirt, and located the wound and commenced attempts to resuscitate the deceased. 16 The call to the accident and emergency service was terminated with the arrival of the police and the ambulance at 4.18pm. 17 The deceased was found lying on her back on the floor in the kitchen/dining room. Vital signs were absent. 18 A bloodied serrated edged knife was located on the telephone table. 19 The deceased was pronounced dead at 5.05pm. 20 The offender's account given at the scene was, "look she's schizophrenic, she just went mad and king hit me. She just fell on a knife". 21 Raymond Winch told the police that he had been at home on 21 December. When the deceased and the offender returned home both appeared to be affected by alcohol. He left home to walk to the Entrance and buy some alcohol. He had been away for about one hour. When he returned he saw the deceased trying to make a telephone call. She threw the telephone down and walked around the house, going out the back door. She returned and collapsed onto the kitchen/dining room floor. She said, "Peter's stabbed me". She did not give further details. 22 The offender started crying and saying, "I didn't mean it". The offender gave the deceased mouth-to-mouth resuscitation when she was on the floor. Winch thought that the offender was "doing the best he could". 23 The deceased had a lengthy history of poly-substance abuse and mental illness. She was frequently non-compliant with her antipsychotic medication. Her doctor, Dr Sachawawars, who gave evidence at the committal hearing, described her normal presentation at his surgery as "intoxicated". Dr Sachawawars said that the offender had from time to time attended his surgery with the deceased purporting to support her in maintaining appropriate treatment. 24 The Crown accepted the offender's plea to the offence of manslaughter on the basis that the stabbing was an unlawful and dangerous act, which caused the death of the deceased. I sentence the offender on the following facts. After drinking continuously from around 8.00am he and the deceased became involved in some form of confrontation, in which he lashed out with a knife, inflicting the fatal wound. The stabbing was a deliberate, spontaneous, act unaccompanied by the intention either to kill or to do grievous bodily harm. 25 The maximum sentence for the offence of manslaughter is 25 years' imprisonment. 26 The offender has been in custody since the date of his arrest on 21 December 2005. 27 Apart from two related convictions for larceny that were recorded more than thirty years ago (and for which he was released on a bond to be of good behaviour) the offender's only other convictions are for drink driving offences. In 1993 he was sentenced to two months imprisonment for a drink driving offence. In May 2003 he was convicted of a high range PCA offence and sentenced to imprisonment for nine months. The sentence was wholly suspended upon him entering into a bond conditioned that he attend Alcoholics Anonymous. 28 The offender did not give evidence at the sentence hearing. 29 A report prepared by W John Taylor, a psychologist, contains a history to which I will refer. The offender is the oldest of three children. He describes a stable family life and maintains a close relationship with his parents. They reside on the far north coast. Both attended the sentence hearing and provided written testimonials in support of their son. 30 The offender completed the Higher School Certificate. He matriculated but did not pursue tertiary studies. By his late teens the offender was abusing alcohol. He worked at various short-term labouring jobs before obtaining employment as a clerk with an engineering firm with whom he remained for about three years. He travelled overseas for a year. On his return he worked at various jobs. Ultimately he completed a course and became a qualified gas service layer. He worked in this occupation for around 10 years. 31 The offender married at the age of 25 and has two children by the marriage. The marriage broke down after 14 years as the result of his chronic alcohol abuse. 32 At the age of about 48 the offender commenced a de facto relationship with a woman named Rose. She was a chronic alcoholic and in September 2004 she died from liver disease. The offender was very attached to Rose and deeply distressed by her death. He had given up work to care for her and after her death his drinking became more pronounced. He experienced episodes of delirium tremens. He told Mr Taylor that in the 15 months prior to the offence he had been "drinking myself to death".

33 The offender's attempts at alcohol rehabilitation to-date have been superficial. He attended the Langton Clinic in 1987 but left after three days. He attended Alcoholics Anonymous regularly for a period in compliance with the Court order. After completing the bond he stopped going to meetings.

34 Mr Taylor administered a number of psychological tests to the offender. The results were consistent with the offender suffering substance abuse disorder, but do not point to any other emotional or psychological disorder. Mr Taylor comments that there are no indications that the offender has a personality disorder and that generally he is "pro-social in his thinking and attitudes". I am satisfied that is so having regard to the evidence of his character witnesses. His successful completion of the requirements of the supervised bond seem to me to support Mr Taylor's assessment, notwithstanding that he lacked the motivation to continue with the Alcoholics Anonymous program. 35 Ms Roberts, a neuropsychologist, assessed the offender at the Parklea prison on 31 May 2007. She reports that neuropsychological testing revealed significant cognitive deficits primarily affecting executive skills in a man assumed to be of average premorbid intellectual ability. The pattern of cognitive deficits revealed by the tests is consistent with the long-term effects of excessive alcohol consumption involving impairment of the functioning of the frontal lobes of the brain.

36 Mr Harris describes the offender as being very caring and loyal, with a strong sense of commitment to his family. He says that his son's whole life has been dominated by alcohol. Mr Harris states that the offender is a kind person who has always shown himself willing to help others. Mr Harris has no knowledge of the offender behaving violently. Mrs Harris describes her son as a kind person whose life has been undone by alcohol.

37 The offender's landlord, Alfred Russ, provided a written reference and gave oral evidence at the sentence hearing. He has known the offender for over 10 years. The offender was a reliable tenant and a generally trustworthy and honest individual. Mr Russ considers the offence to be out of character.

38 Allan Tonks provided a written reference and also gave oral evidence at the sentence hearing. Mr Tonks employed the offender in his business, Central Coast Gas, as a gas service layer. The offender started work for Mr Tonks in late 1995. He continued in his employment until Mr Tonks sold his interest in the business in 2002. Mr Tonks observed the offender's distress following Rose's death. Throughout the time that the offender worked for Mr Tonks he was loyal, hardworking and well liked by his workmates. He showed no signs violence. Mr Tonks considers the offence to be out of character. 39 The offender wrote a letter addressed to the Court expressing his sorrow for the family of the deceased and stating that "her death was a devastating blow to me when I realised what had happened". 40 I accept that the offender is truly remorseful for his offence. 41 I am required to have regard to the purposes of sentencing that are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 42 It was not submitted that any sentence other than a sentence of imprisonment was appropriate. I am satisfied for the purposes of s 5 of the Sentencing Procedure Act that no penalty other than imprisonment is appropriate. 43 The plea of guilty was entered late. The Court was informed that this course was proposed one week prior to the date that had been fixed for the trial. I will discount the sentence by approximately 12 per cent to reflect the utilitarian value of the plea. 44 The offender is presently being held in the protection section of the Parklea Prison. I was informed by Mr Turnbull SC, who appeared on the offender's behalf, that the offender applied to be placed on protection. There was no further information concerning the conditions of his custody as a protection prisoner. I do not consider the material touching on the offender's protection status is such as to make it appropriate to discount the sentence on this account.

45 Mr Turnbull acknowledged that the offence is aggravated by the fact that it involved the use of a weapon. This is the only aggravating factor. 46 The Crown submitted that I would not find the offender to be a person of good character, since he had a significant record of convictions for drink driving offences. These offences are eloquent of the offender's chronic alcoholism. The evidence satisfies me that he is a person of otherwise good character who has managed to make a positive contribution to the community through his kindness to others despite his addiction to alcohol. His good character is a mitigating factor that is to be taken into account in determining the appropriate sentence for his offence. 47 The offender's prospects of rehabilitation are good. He is not an anti-social individual and I consider it unlikely, given his general character and his age, that he will re-offend. He is likely to respond well to supervision and after a lengthy period of enforced sobriety there exists some prospect of him coming to terms with his illness provided he has adequate support. Taking this need into account, I have determined that special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act justify a departure from the statutory proportion between the non-parole period and the overall sentence. 48 Mr Turnbull referred me to four cases involving the sentencing of offenders for manslaughter in circumstances which were said to be broadly comparable with the present: R v Whiting [2002] NSWSC 827; R v Dally [2000] NSWCCA 162; R v Sherry [2000] NSWCCA 35 and R v Horton [1999] NSWSC 983. I have had regard to these decisions. It remains that each case is to be decided by giving appropriate weight to its particular objective and subjective features in light of the factors to which s 21A of the Sentencing Procedure Act directs attention. 49 I have determined that the appropriate sentence after allowance of the discount for the plea of guilty is seven years. The sentence will be expressed to commence on 21 December 2005. I propose to fix a non-parole period of four years. 50 Peter Brian Harris I convict you of the manslaughter of Michelle Irene Sparkes and sentence you for that offence to a non-parole period of four years to date from 21 December 2005. The first date on which you will be eligible for release on parole is 20 December 2009. I specify a balance of term of three years commencing on 21 December 2009 and expiring on 20 December 2012.

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