R v HOPLEY

R v Day (1998) 100 A Crim R 275 R v Greneger [1999] NSWSC 380 CASES CITED: R v Maclurcan [2003] NSWSC 799 R v O'Hare [2003] NSWSC 562 R v Ristevski [1999] NSWSC 1248 R v Hyatt [2000] NSWSC 773

PARTIES: Crown Clint Hopley

COUNSEL: P. Leask (Crown) S Hanley (Offender)

SOLICITORS: NSW DPP Legal Aid Commission

1 HIS HONOUR: On 15 January 2005 two separate groups of friends went out for a good time. Shane Birss was in one group and Clint Hopley in the other. The two groups came together at the Malborough Hotel in Newtown with tragic results. In circumstances I will shortly explain, Mr Hopley punched Mr Birss twice before departing in a taxi, leaving Mr Birss dying on the ground.

2 The first interaction between the two groups came about when Clinton Hopley's nephew, Clint Wintle began dancing near some women from Mr Birss' group. They took objection to this and another person who was with Mr Birss, Stefan Baltakamens, told Mr Wintle rather succinctly, to "fuck off" and pushed him away.

3 At this stage of the proceedings the offender played the role of a peacemaker, intervening to remove his nephew from the situation and calming him down. In fact he did this on two occasions.

4 The two groups separated amicably. Those present recognised that they were all out for a good time and no one wanted to fight. That was until a man in Mr Birss' group, Scott Delarue, decided to intervene. He appears to have been more interested in violence than having a good time. He attacked one of the offender's friends, Dalley Robinson. This was entirely unprovoked and unnecessary, but it was this act which led directly to what happened next.

5 The whole tragic events were captured on close circuit television footage and, as the Crown Prosecutor submitted to the jury, this enabled me and the jury to be witnesses to what actually occurred.

6 After Mr Delarue attacked Mr Robinson, Mr Birss immediately intervened, dragging his friend, Mr Delarue away, thereby preventing him from coming to harm and also preventing him from harming anyone else.

7 Security personnel from the hotel also intervened and they began removing people from the premises. Mr Delarue was thrown out as were Mr Baltakamens, and Mr Birss. Mr Robinson was also ejected from the hotel. The close circuit television footage reveals that Mr Delarue was very keen to go on with it. He was not satisfied with punching Mr Robinson from behind when inside the hotel and made continual efforts to get to him again when they were both outside. He was thwarted by Mr Baltakamens who put himself in between Mr Delarue and Mr Robinson to stop the former continuing his hot headed attack on the latter.

8 The security footage reveals that when Mr Birss first found himself outside the hotel he walked away for a short distance but then turned around and walked back towards where Mr Baltakamens was dealing with Mr Delarue. As he was walking back towards the door to the hotel the offender also came on to King Street. He walked directly towards Mr Birss and, without warning hit him with his left fist. After that he took a few steps backwards and adopted a fighting stance. Mr Birss seems to attempt to calm the offender, by raising his hands with his palms towards the offender, but the offender would not be calmed. He approached Mr Birss again and struck him a heavy blow with his right fist causing Mr Birss to fall to the ground hitting his head heavily on the roadway as he did so. He suffered a significant injury to his brain and died two days later without regaining consciousness.

9 The offender claimed that he was acting in self-defence, suggesting that he believed that Mr Birss was about to attack him, having been part of a group, a member of which had been violent towards his friends immediately before. That defence was rejected by the jury at the offender's trial and he now stands to be sentenced for the manslaughter of Mr Birss.

10 As the events of the early morning of 16 January 2006 unfolded, a number of people made decisions to do things which were part of a chain of events which led to the death of Mr Birss. However there is one person in particular who was completely blameless. That is Mr Birss himself. I have reviewed the CCTV footage on many occasions and this has enabled me to identify with some precision what Mr Birss did.

11 He did nothing to contribute to any violence whatsoever. To the contrary, he is seen trying to calm Mr Delarue down and once Mr Delarue launches his attack on Mr Robinson, Mr Birss bravely enters the fray to drag his friend away. After that he still tries to calm things down, never once acting in any aggressive way. I am satisfied that the reason he changed direction on King Street and walked back towards the door of the hotel was to help Mr Baltakamens stop Mr Delarue from committing any more stupid acts of violence.

12 The jury's verdict means that they were satisfied beyond reasonable doubt that the Crown had proved either of two things: namely that the offender did not believe it was necessary for him to strike Mr Birss in self defence, or that striking him was not a reasonable response to the circumstances as they perceived them. It is for me as the sentencing Judge to determine the facts on which the offender is to be sentenced.

13 I am satisfied beyond reasonable doubt that the offender did not believe that he was acting in self defence when he struck Mr Birss, at least when he inflicted the fatal blow. There is nothing in Mr Birss' behaviour either inside or outside the hotel which would lead to a conclusion that he was acting aggressively. I am satisfied that the offender was justifiably upset at the cowardly attack upon his friend Mr Robinson by a person from Mr Birss' group and that he wrongly perceived Mr Birss to be part of that attack. I am satisfied that what motivated him to strike Mr Birss was not fear, as he said in evidence, but anger.

14 The offender said that he wanted to get outside to protect Mr Robinson, but once he did come on to the King Street footpath he walked straight passed Mr Robinson, went up to Mr Birss and struck him. It must have become clear to the offender after that first blow that Mr Birss did not want to fight but, motivated by anger as I said, the offender did want to fight and so he hit Mr Birss again. I make this finding primarily on the basis of my close examination of the security footage which was played in Court many, many times.

15 I have made allowances for the fact that the events happened very quickly and at a time when emotions were likely to be running high. The offender was not in a position to calmly reflect upon Mr Birss' actions. Further he had earlier suffered a broken jaw as a result of an unprovoked attack and so this may well have been operating on his mind at the time when he approached Mr Birss. Despite those matters I am nevertheless satisfied that the offender did not believe that it was necessary for him to do what he did in self defence. The security footage reveals nothing which the offender could interpret as an aggressive act on the part of Mr Birss.

16 Further the actions of the offender after Mr Birss fell to the ground were hardly those of a man who believed he had been defending himself and who now recognised that the threat had passed. The security footage, and the evidence of security staff, establish that the offender was continuing to act aggressively up until the time that the left the area in a taxi.

17 Of course the offender regrets what has happened now. His remorse at the death of Mr Birss was obvious both in his electronically recorded interview with police and when giving evidence in Court. And he, somewhat justifiably, places a large part of the blame on Scott Delarue. The offender acted in an entirely responsible and restrained manner until Mr Delarue launched his hot headed attack.

18 When sentencing the offender I will have to bear firmly in mind that he did not go looking for trouble, but trouble came to him and that his decision to hit Mr Birss was made after his friend had been attacked. Clearly this offence was not planned or organised.

19 The offender is 37 years of age, who has an older brother and sister as well as three older maternal half siblings. He was also raised with a cousin whom his parents adopted. His mother provided support to him but his father was often absent from the family home engaging in alcohol abuse, gambling and extra marital affairs. The offender left high school after achieving his school certificate and has worked intermittently since then primarily as a roof plumber.

20 He has had a number of relationships, some of which I will refer to. The first relationship ended after he and his partner had a child who was stillborn. A later relationship produced a son, Codie.

21 The position of Codie occupied a great deal of attention during the sentencing proceedings. Codie's mother and the offender separated when Codie was quite young. Since then she has had comparatively little to do with them. The offender is the primary carer of Codie, a function he has performed with enthusiasm and dedication. He is on all accounts a devoted father. So much so that it is his concern for the welfare of his son and what must happen to him during the offender's incarceration, which has been at the forefront of the offender's mind since he was convicted.

22 Whilst on bail awaiting trial the offender formed a new relationship. His current partner, greatly to her credit, has been caring for Codie since I refused the offender bail. But there is at least the possibility that that situation will change in the event that the offender receives a significant custodial sentence.

23 Various other options for the care of Codie have been considered, some are better than others, but no option is anywhere near as good as the situation where Codie is cared for by his father. There have been reports of changes in Codie's behaviour since being separated from his father.

24 It is now suggested that he is clinically depressed. Professor Quadrio notes that until his father was incarcerated Codie appeared to have been progressing well but is now at an extremely vulnerable stage of his life. Professor Quadrio said,

"In my opinion the risk to Codie's development and future adjustment are extremely serious; he needs his father to be there for him over the next five years, which are critical in his development."

25 I want to interrupt my consideration of the subjective features concerning the offender and his son to say this. Those who have listened to what I have said so far in these remarks on sentence, might be forgiven for thinking that I have forgotten about Mr Birss. That I have forgotten that a young man has died and that his family and friends have suffered an enormous loss. I want to emphasise that that is not so. The death of human being through a criminal act always represents a loss which cannot be remedied. It is important to acknowledge that loss and to remind all of those listening to these remarks on sentence, that Mr Birss, and his death, have not been forgotten. The law recognises that every loss of life is a tragedy and where that death is caused by criminal action that fact must be reflected in the appropriate sentence. The sentence, however, must not only be appropriate to the offence, but also to the offender and the position that he is in. It is for this reason that I have spent some time dealing with the position of the offender's son.

26 The law is that I can only make a significant allowance in sentence for the fact that the offender's incarceration will cause hardship to his son if that circumstance is exceptional. Each case has to be looked at on its own facts. Recognising that the law must be applied in an even handed way, single parents do not automatically receive a lesser sentence because their imprisonment will have adverse consequences on children in their care.

27 But Mr Hanley submits that this is an exceptional case. He points to the very close bond between the offender and his son as well as evidence suggesting that Codie's behaviour has already changed and that he is depressed. Further he points out that there is no obvious solution to the quandary which the family faces in caring for Codie whilst his father is in gaol. Are these matters exceptional? In my assessment they are not. It is perhaps unusual for a single parent who is facing gaol to be a father rather than a mother but that is not a relevant point of distinction. In the vast majority of cases where single parents are facing custody their children will suffer, and significantly so. Depression in such children would be commonplace, if not universal, and in very few cases are there ideal alternatives for the care of children left behind.

28 In R v Day (1998) 100 A Crim R 275 the Court of Criminal Appeal was considering the case of a single father. He had the sole care of his children who were aged 15, 13 and 12. Chief Judge at Common Law Woods, in allowing a Crown appeal, said that not infrequently alternative arrangements have to be made for the care of children for reasons other than the imprisonment of the primary carer and that there is not, for sentencing purposes a special category of offender confined to young single parents with children. I appreciate Mr Hanley says that this is not just a simple case where a single parent is being sentence. But even those features which Mr Hanley relies on as taking this case out of the ordinary are not, in my view sufficiently unusual such as to justify a significant reduction in the appropriate penalty to be imposed.

29 That of course is not to ignore the position that the offender and his son now find themselves in. I am able to take that matter into account as part of the general mix of subjective factors. I also take into account that the offender's time in custody will be much harder because of his separation from his child and because he is all too aware that his son will suffer. The offender's distress at the position his son is in is made obvious in the written material put before me. Part of the distress that the offender feels is no doubt due to the fact that he perceived his own father as being absent for a significant part of his childhood.

30 The offender does have a record of previous convictions. These appear to be mainly offences committed while the offender was under the influence of alcohol and there are suggestions that since Codie's birth the offender has moderated his drinking. However the previous convictions mean that the offender is not entitled to any leniency on the basis that this is his first offence.

31 I am satisfied as I said earlier that the offender is remorseful, indeed deeply so, for what he has done. He, as a person who is very close to his son, is able to empathise with the position of Mr Birss' family. He has expressed his sorrow at the effect that Mr Birss' death has had upon them. The only qualification to that finding of remorse concerns the fact that the offender did not plead guilty and still apparently blames others such as security staff and Mr Delarue for what has happened. True it is that Mr Delarue's actions precipitated what followed and that security staff placed the offender and Mr Birss on the street together. But the responsibility for the offender striking Mr Birss and thus killing him is solely the offender's.

32 The offender does have good prospects of rehabilitation and is unlikely to re-offend. I make this finding even given suggestions that the offender will continue to drink alcohol upon his release from custody.

33 Neither Mr Hanley nor the Crown provided me with any cases of where sentences have been imposed upon offenders convicted of manslaughter in circumstances where a single blow has caused death. Yet such cases are not unknown. I will mention five of them. R v Grenenger [1999] NSWSC 380, R v Maclurcan [2003] NSWSC, R v O'Hare [2003] NSWSC 562, R v Ristevski [1999] NSWSC 1248 and R v Hyatt [2000] NSWSC 773.

34 Since preparing these remarks on sentence the solicitor for the offender referred me to the first of those cases, but as I have made clear I was already aware of it.

35 Of course no two cases are alike, but I have looked at those cases and the sentences imposed in them and particular, in an effort to ensure that the sentence I impose on this offender is consistent with other sentences. As the High Court has pointed out, inconsistency in sentencing is a badge of unfairness and Judges should therefore make every effort to avoid such inconsistency. Part of that requires consideration of other sentences imposed in other cases, bearing in mind the differences between those cases and the present.

36 Mr Hanley submits that given the approximately six months the offender has served in custody, I should impose a sentence not exceeding two years and suspend that sentence. I need not consider this option any further as the sentence I impose I have decided to be appropriate exceeds the two year cut off.

37 Mr Hanley next submitted that I would find special circumstances with the result that the period of eligibility for parole would be extended at the expense of the non-parole period. I propose to do so. Those special circumstances relate to this being the offender's first significant period of incarceration and the fact that upon his release from custody he and his son will need significant support as he resumes caring for his son.

38 This has been a very sad case. The offender's actions have caused significant harm to many people. One young man has died and a child will lose the care of his father for a number of years.

39 But such emotions cannot be allowed to overcome the duty I have to sentence the offender according to the legal principles which bind me.

40 I finally wish to refer to some part of the judgment of Justice Sully in Grenenger. At paragraph 13 his Honour sets out some important matters and this is what his Honour says: "In my opinion there is no gain saying the objective severity of the prisoner's offence. The simple proposition that human life is sacred underpins fundamentally the body of principles of standards and the value that defines the conception of our society as to what is meant by civilization. In such a context any unlawful taking of a human life must be axiomatically a grave offence against social harmony and public order." 41 This is in my opinion even more emphatically the case when as in the present matter an unlawful killing results from a public affray in a place of lawful public resort such as a licensed hotel premises.

42 It ia agreed that to give effect to pre-sentence custody the sentence I impose should commence on 21 May 2006. The offender is sentenced to imprisonment. I set a non-parole period of three years to date from 21 May 2006. I set a head sentence of five years. The offender is eligible to be released to parole on 20 May 2009.

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