R v Hunter

Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused) File Number(s): 2011/397367

remarks on sentence 1On 8 July 2014, Paul Andrew Hunter (the offender) was arraigned before a jury panel and me. The indictment contained a single count alleging that on 20 June 2011 at Dharruk he murdered Jason Dixon (the deceased). The offender pleaded not guilty to murder, and entered no plea with regard to the lesser form of homicide, manslaughter. On 4 August 2014, the jury returned a verdict of not guilty of murder but guilty of manslaughter. The offender comes before the Court today to be sentenced for the offence of manslaughter. 2The maximum penalty for that offence is imprisonment for 25 years. Parliament has created no standard non-parole period. I regard the maximum penalty of imprisonment as an important guidepost in my exercise of sentencing discretion. 3My approach to the determination of any disputed facts is as follows. Any fact that is adverse to the offender, above and beyond the elements of the offence, must be proven beyond reasonable doubt. A fact that is in his favour need be proven on the balance of probabilities only: The Queen v Olbrich [1999] HCA 54; 199 CLR 270. It may be that the evidence will not permit me to determine some facts with complete clarity. It is not my role to try to construe the findings of fact that may have underpinned the verdict of the jury. Rather, I must make my own findings, consistent with that verdict: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587. 4In the circumstances of this verdict, I have also borne firmly in mind the legal principle that an offender is not to be punished for an offence greater than the offence of which he or she has been found guilty: The Queen v De Simoni [1981] HCA 31; 147 CLR 383. Undisputed facts 5Although the offender did not give evidence in the trial, by the conclusion of the final addresses of counsel, the following facts were not in dispute. 6On the afternoon of 20 June 2011, the son of the deceased, Mr Tory Gardner, was sleeping on a couch at his father's home in Dharruk, a western suburb of Sydney. He was woken by his father, a middle-aged man, who told him that someone outside wanted to fight Mr Gardner. The two men went outside. As they did so, Mr Gardner thought he saw his father hide something in the sleeve of his jacket. The time could not have been later than 5:25 PM. 7Outside on the street were the offender and a number of other people. They had been at the home of Mr Bernie Douglas, a neighbour. I am satisfied on the balance of probabilities that many of the people in that group were intoxicated to some degree by alcohol, prohibited drugs, or prescription drugs. I include the offender in that description. 8Words were exchanged about whether there was indeed to be a fight. Without warning, the deceased produced an iron bar about 50 cm long, and forcefully hit the offender to the head with it at least three times. The offender fell to the ground, stunned. He tried to crawl away. Mr Gardner pulled his father away from the offender. 9The offender recovered his senses, got to his feet, and accused Mr Gardner of being involved in the attack upon him by the deceased. Threats were exchanged between the offender and the deceased. Although the evidence of precisely what the offender said was not entirely clear, it was to the combined effect that he would return and inflict revenge upon the deceased and anyone else in his home in the form of physical harm. 10Mr Gardner went back to the home of his father, and the two of them had an argument. As a result Mr Gardner and his partner left the home, and returned to the premises of Mr Douglas. The deceased was at home alone. 11Meanwhile, at about 5:30 PM the offender walked to the home of Ms Sharon Young, who also lived nearby. She noted that he was shaking, had tears in his eyes, and had a lump on the left side of his head. When she asked him what had happened, the offender replied "I got hit Aunty Sharon in the head". The offender asked Ms Young to call a taxi to take him to Mt Druitt to pick up his methadone, and said that thereafter he would travel to Mt Druitt Hospital. Ms Young called a taxi, but by the time it arrived the offender was no longer waiting for it. 12Instead, he walked a short distance to the home of Ms Charmaine Riley. He asked her to drive him to the neighbourhood shops at "old Mt Druitt". He also said that he had been hit to the head, and Ms Riley saw the lump to his head. The offender said "the bloke up the road hit me" and described the deceased as a "cocksucker". 13Ms Riley drove the offender to the shops. The offender entered a pharmacy and was provided with his prescribed dose of methadone. The pharmacist noted that the offender had a lump to his head, and also that "his movements seemed to be a little slow", similar to "that of a person who had just been in a motor vehicle collision". The pharmacist also noted that the offender had secreted under his jacket a cylindrical object that was roughly the width of his shoulders. That object was in fact a very large and heavy socket wrench that the offender had taken from inside or near the home of Mr Douglas. 14The offender then entered a nearby grocery store, and purchased a can of soft drink. He returned to the car of Ms Riley. At that stage, rather than asking Ms Riley to take him to a hospital, the offender asked her to drive him to the home of his brother, the late Mr Wade Hunter. She did so. 15The offender arrived at that home at about 6 PM. Mr Wade Hunter was present, as was the cousin of the offender, Mr Gary Hunter. The partner of Mr Wade Hunter heard the offender say that he had been hit to the head with a metal pole, and needed to go to the hospital. She formed the opinion that the offender was affected by some sort of drug. 16The offender did not travel to the hospital. Rather, he travelled by car with Mr Wade Hunter and Mr Gary Hunter to the home of the deceased. There a brutal bashing was inflicted upon Mr Dixon. It was effected by the use of at least two weapons. An extremely heavy blow was inflicted to the forehead of the deceased, with the effect that that part of his skull was caved in. 17After the assault, the three men departed. The deceased was left, very badly injured and bleeding heavily, on the floor of the living room of his own home. Eventually, at about 7 PM, Mr Gardner and his partner came looking for his father, and found him in that state. 18Meanwhile, at about 6:42 PM, the offender attended Mt Druitt Hospital. A nurse who examined him noted that he smelt of alcohol. Later that evening, another nurse noticed a small lump about the size of a 10 cent piece to the head of the offender. Again, he smelt strongly of alcohol. 19As one would expect, the police commenced an investigation into the assault upon the deceased. On 21 June 2011 a detective informed the offender that he was under arrest for a serious assault. The offender replied "Yeah, I was at Mt Druitt Hospital, you do the maths". That was a lie; as I have said, the offender was in fact at the scene of the bashing. 20Mr Jason Dixon passed away on 23 June 2011. 21Some time later, the police located three weapons secreted in two drains in the vicinity of the assault. At various times, Mr Wade Hunter and Mr Gary Hunter asserted that those weapons had been used in the attack upon the deceased. 22Later, the offender took part in a number of conversations about the offence and its investigation that were captured by telephone intercepts and listening devices. Resolution of disputed facts 23The verdict of the jury that the offender is not guilty of murder means that he did not take part in the fatal assault with an intention to inflict death or really serious physical injury. Nor did he take part in a joint criminal enterprise to assault with either of those intentions. And, although extended joint criminal enterprise murder was not part of the Crown case at trial, I proceed on the basis that he did not engage in such an enterprise foreseeing the possibility that others could form such an intention. 24The Crown case for manslaughter was that the offender was one of those who inflicted the bashing, and that that assault was an unlawful and dangerous act. In the alternative, the Crown case was that the offender was present at the scene and part of a joint criminal enterprise to inflict the bashing. 25On sentence, the learned Crown Prosecutor did not submit that I would be satisfied beyond reasonable doubt of the aggravating feature that the offender was one of those who physically assaulted the deceased. In light of her approach, I put that possibility to one side. 26It follows that I am to sentence the offender on the basis that he was present at the scene and part of a joint criminal enterprise to inflict a bashing on the deceased, but at the time the offender did not intend to kill or inflict really serious physical injury. 27However, the Crown Prosecutor did submit that I would be satisfied as an aggravating feature beyond reasonable doubt that the offender was the moving party in the attack, even though he did not physically participate in it. 28Defence counsel submitted that I would not be so satisfied, and that there was a reasonable possibility that the offender, who actually wished to be taken to hospital, had been talked into involvement in the attack upon the deceased by his brother and his cousin. 29I respectfully reject that submission of defence counsel. I am satisfied to the criminal standard that the offender was indeed the moving party in the attack upon the deceased. In coming to that view, in accordance with the submissions of the parties, I put to one side the undoubted tendency to violence of the offender in the past, as evidenced by his criminal record. I also put to one side the versions of events given by Mr Wade Hunter and Mr Gary Hunter. Each of them gave so many versions of events as to render their credibility negligible. In the case of Mr Gary Hunter, he gave evidence in the witness box that I regret to describe as worthless. Rather, I base my satisfaction about that aggravating feature on the following aspects of the evidence. 30First, the offender was the aggrieved party. There was nothing to suggest that Mr Wade Hunter or Mr Gary Hunter had anything against the deceased. The public attack upon the offender by the deceased, which left the offender injured, humiliated, and upset, provided him with a powerful motive to seek violent revenge. 31Secondly, his return to the scene and the infliction of physical harm upon the deceased was exactly what the offender had said would occur before he left the scene. 32Thirdly, after having left the shops and walked back to the car of Ms Riley, it was quite open to the offender to ask her to take him to the hospital there and then. She had already shown her readiness to take him to the shops. Instead, he asked to be driven to the home of his brother. 33Fourthly, the offender told lies to the police about the evening in question. 34Fifthly, the recorded conversations show that the offender engaged in ongoing efforts to ensure that the truth of the events of the evening would not come out. 35Sixthly, the weapon with which the offender was armed at the time he was in the pharmacy and before he travelled to the home of his brother was, I am satisfied, used as part of the fatal beating of the deceased. Contrary to the submission of defence counsel, I do not consider that the evidence of the forensic pathologist who conducted the autopsy upon the body of the deceased ruled out that possibility. 36Seventhly, I do not believe that the offender was being truthful when he said in the presence of his brother's partner that he wanted to go to the hospital at the stage when the three men left the home. 37In short, I am satisfied beyond reasonable doubt that the offender attended at the home of his brother rather than being taken to hospital in order to advance an attack upon the deceased. I consider that he was the moving party in persuading his brother and his cousin to take part in that joint criminal enterprise. And I consider that he remained the moving party when the plan was put into effect, with fatal consequence. Assessment of objective seriousness 38I turn to consider the objective seriousness of this example of manslaughter. Of course manslaughter can be made out in a large number of ways at law. It can also be committed in countless different ways factually. In those circumstances, it is not easy to assess a particular manslaughter within a coherent hierarchy of seriousness. 39Nevertheless, the maximum penalty of imprisonment for 25 years, the greatest maximum penalty known to law short of imprisonment for life, demonstrates the seriousness with which Parliament regards the worst class of case of manslaughter. Here, the offender orchestrated a brutal attack with the use of deadly weapons on a middle-aged man in his own home. The offender was present, and was the moving party. Two confederates were used to put the plan into action. Although the verdict of the jury demonstrates that the offender intended nothing more than the infliction of actual bodily harm, the unintended result of the intended attack was the death of a fellow human being. As I have said, the deceased was left gravely wounded on the floor of his own home to be found by family members. To my mind, this example of the offence of manslaughter cannot be characterised as anything other than very grave. Subjective features 40I turn from my discussion of the offence to a discussion of the life and character of the offender. 41The offender has maintained his innocence of any criminal involvement in the death of the deceased since the verdict. Although he recently expressed to his brother a generalised regret about what occured, that cannot be regarded as remorse for what he has done, or even an acceptance of responsibility. 42As for the question of motive, I consider that it was to avenge the act of violence that the deceased inflicted upon the offender. To my mind, that is not a matter of mitigation. One may accept that the offender was aggrieved by what he had suffered at the hands of the deceased, but that did not confer on him the slightest entitlement to inflict his version of summary justice in response. 43Defence counsel submitted on sentence that his client was provoked by the deceased. I have approached that submission with caution. The fatal assault took place quite some time after the deceased struck the offender repeatedly with an iron bar. By that stage, the anger of the offender had cooled; for example, it is not as if he was in a rage when he spoke to the pharmacist. As I have said, the assault was planned. It involved a return to the scene, confederates, and the use of weapons. What occurred in the home of the deceased may be sharply contrasted to the situation if, for example, having been hit to the ground, the offender had immediately got up and punched the deceased several times to the head. Nevertheless, having reflected on the matter, I accept that provocation should be taken into account as a mitigating feature, but only to a small degree. 44Defence counsel also submitted that I would accept that the offender was suffering some sort of cognitive deficit at the time of the offence as a result of the combined effect of the blows inflicted to his head and the methadone that he had been prescribed. That submission was founded upon the evidence of the pharmacist, Ms Young, Ms Riley, the partner of Mr Wade Hunter, and the two nurses that attended to the offender at Mt Druitt Hospital. 45It is difficult to disentangle any such effects from the effects of self-induced intoxication by alcohol and non-prescribed medication on the part of the offender at the time. Defence counsel accepted, of course, that those effects could not constitute a matter in mitigation. I also suspect that there was a flavour of dissembling in the presentation of the offender at various stages that evening. Finally, the offender had been on a methadone program for quite some time, and one would not expect it to have affected him unexpectedly. Nevertheless, having reflected on this matter as well, I am prepared to accept on the balance of probabilities that the cognitive functioning of the offender was affected to a limited degree at the time of the offence by the blows to his head. 46Turning to matters of background, the evidence about the life and character of the offender, apart from what one could glean from the evidence in the trial, was based upon two documents: his criminal record, and a psychological report prepared by a highly qualified forensic psychologist. The matters of background contained in the latter document were confirmed by the brother of the offender in the witness box, and I accept them on the balance of probabilities. 47The offender was aged 34 at the time of the offence, and is now aged 37. He is an Aboriginal man, a heritage that he shared with the deceased. 48The offender is one of eight children. Until the age of four, he lived with his mother. Thereafter he was taken from her care, perhaps on the occasion of her imprisonment. He was fostered to an Aboriginal family in Mt Druitt until he was eight years of age. That was a happy and stable time that he remembers fondly. Unfortunately, he was then placed in the care of an aunt who was an alcoholic, and who was trying to care for eight children. While the offender was a little boy he was exposed to violence, and was also the victim of violence at the hands of his aunt and, on occasion, his biological father. When the offender was 11 he was taken by his mother to Mildura, where he lived in a caravan and later on a mission. His mother was imprisoned and the offender ended up living with relatives. Often there was insufficient food for him to eat, and he had to fend for himself as best he could. By the age of 13 years he was detained in a juvenile detention centre; by the age of 15 he was a father. 49By the age of 21, the offender had been introduced to heroin, and he quickly developed an addiction to it. Years later, he commenced to use methadone to break that addiction. He has also abused amphetamines, including in their crystal form, on occasion. At the time of the offence he was, as I have said, taking part in a methadone program, but was also continuing to abuse prescription drugs and alcohol. 50Tragically, two members of the immediate family of the offender, including Mr Wade Hunter, have lost their lives to prohibited drugs. 51I have no doubt that the grossly deprived and disrupted upbringing of the offender, including his exposure to violence and the abuse of alcohol and drugs by others, damaged him psychologically, and predisposed him to engaging in the same activities as an adult. And I accept that he was still suffering from that damage at the time when he committed this offence. 52For many years the offender has been in a loving and stable relationship with his partner, Ms Deanna Dominey. They have three children whom the offender loves and of whom he is proud. 53The psychologist assessed the offender as being of very low intelligence. I accept that assessment; still and all, the recorded conversations show that the offender can defend his interests with foresight and a degree of cunning. As a result of his upbringing the offender cannot read or write; his ambition is to learn to do so. The psychologist assessed his risk of reoffending as moderate to high. I accept that assessment as correct, especially when one considers his criminal record, to which I shall turn in a moment. 54The psychologist has suggested that the offender would benefit from a range of psychological interventions to address the link between his abuse of drugs and his criminality. Again, I accept that that would be highly beneficial, not only to the offender but also to the community as a whole. 55Turning to the criminal record of the offender, it is a lengthy one, and it has a distinct flavour of violence. It began with him being placed on a bond by the Children's Court for the offence of assault in 1993, when he was aged 15 years. After that he committed a number of less serious offences as a child, though it is noteworthy that two serious offences of robbery in company in 1993 led to an order that he perform community service. In 1995 he was given a control order for, amongst other things, assault, malicious wounding, breaching an apprehended domestic violence order, and possession of a prohibited drug. 56In 1999, as an adult, the offender was sentenced to imprisonment for violent disorder. In the same year he was placed on a bond for assault occasioning actual bodily harm. In 2001, he was imprisoned for intimidation of a police officer. In 2003, he received the same punishment for using a weapon to avoid apprehension. In 2008 he was imprisoned for affray. In early 2011 he was placed on a bond for larceny for two years, and breached that bond by the commission of this offence. I consider that the breach of that bond by an offence of violence is a serious aggravating feature of the matter. 57The longest sentence that has been imposed upon the offender in the past was in 2004, when, for an offence of aggravated robbery, he was sentenced to a head sentence of imprisonment for three years with a non-parole period of two years three months. 58In short, on the one hand, it could be said perhaps that the offender was free of convictions for violence between late 2008 (the date of the affray) and the commission of this offence in June 2011. On the other hand, the repeated crimes of violence committed by the offender in the past disentitle him to leniency with regard to the sentence to be imposed for this homicide. They also cause one to be very cautious about the ability of the offender to refrain from violence in the future. Prospects of rehabilitation 59Speaking more generally about the future, it is true that the offender has the benefit of a stable and loving relationship and a supportive family. It is to be hoped that the offender will seek the psychological help that he undoubtedly requires to undo the damage that has been done to him. But in light of his criminal record, the fact that he has been repeatedly imprisoned in the past, and his attitude to this latest example of violent criminality, I think that one can only have, at the most, a very guarded optimism about the prospects of rehabilitation of Mr Hunter. Comparable cases 60The parties helpfully provided me with examples of other sentences previously imposed for the offence of manslaughter by judges of this Court at first instance and on appeal. In accordance with recent authority of the Court of Criminal Appeal, I was not provided with any sentencing statistics for the offence of manslaughter: see R v Wood [2014] NSWCCA 184 at [56]-[59]; Abbas v R [2014] NSWCCA 188 at [41]. I have taken into account all of the materials with which I was provided. Of course, they do not constitute a range that binds me in any sense. Still and all, they do represent the accumulated wisdom of many judges over many years. 61As I have said, manslaughter is well-known to be a highly variable offence. In this case, the offence was committed by a mature man, who has an extensive record for violence, and who has neither pleaded guilty nor expressed any remorse. The attack was planned, involved weapons, featured confederates, and constituted an invasion of the security of the home of a defenceless victim. Many of the cases to which I was referred do not share those characteristics. Various Matters 62I turn to deal with a number of separate aspects of my task. 63First, shortly after the jury delivered its verdict and was discharged, a letter was received in my Chambers that seemingly had been sent by one of the jurors. I provided a copy of it to both counsel, shorn of any identifying features. The letter requested that I approach the sentencing of the offender leniently. Defence counsel submitted that, in an informal way, I could take that request into account as being roughly analogous to a recommendation for leniency made by a jury at the time of delivery of verdict; he invited my attention to the decision of the High Court of Australia in Whittaker v The King (1928) 41 CLR 230. 64Assuming that the letter does indeed come from a juror in the trial, I accept that it was well intentioned. But it was an inappropriate communication, and similar actions in the future are to be firmly discouraged. 65In any event, at best the letter sets out the opinion of one juror. I know nothing of what the remainder of the jury may have felt about what approach to sentencing I should adopt. In the circumstances, I put that letter completely to one side. 66Secondly, I do not propose mechanistically to state the aggravating and mitigating features that I have taken into account for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These remarks on sentence fulfil that role. I have referred to the section, and taken care to avoid double counting. 67Thirdly, the parties were in agreement that any sentence that I impose should commence upon the day upon which the offender came into custody; namely, 22 June 2011. I accept that joint submission. 68Fourthly, defence counsel did not submit that there were special circumstances that would justify a reduction in the statutory ratio between the non-parole period and head sentence. Nevertheless, I have considered that question for myself. The offender has been in custody on many occasions in the past. He is not a young man. The sentence I impose will feature a period on parole that is not insubstantial. In those circumstances, I do not consider that there are special circumstances that should lead to a variation in the statutory ratio. 69Fifthly, I am required by s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender that he may be detained even after the complete expiry of his head sentence, if it is considered that his rehabilitation is insufficient and he is a danger to the community. Victim impact statements 70I was provided with victim impact statements prepared by Ms Angela Weldon, the sister of the deceased; Ms Kellyanne Stanford, the eldest daughter of the deceased; Ms Terrie Sheargold, the second eldest daughter of the deceased; and Mr Jamie Gardner, a son of the deceased. In accordance with the recently amended s 28(4) of the Crimes (Sentencing Procedure) Act, I consider it appropriate to take those statements into account in determining my sentence for this offence. 71I shall not repeat the searingly painful details of those statements. It is enough to say that the family of Mr Jason Dixon has been grievously harmed, very likely irreparably, by his violent death. Many are haunted by his appearance, grossly battered and bruised, in the hours before he passed away. Some feel a wholly misplaced guilt for the decision to turn off his life support. Others have sought relief from their ordeal in prohibited drugs that will themselves be the source of further damage. 72On behalf of the Supreme Court of New South Wales, I extend my condolences to all of those who have suffered, and will continue to do so, as a result of what the offender has done. It could be that the conclusion of the proceedings today will provide some closure; some wounds will never fully heal. Conclusion 73Defence counsel submitted that the offender could receive a sentence that includes a non-parole period of "time served"; that is, a minimum period in custody of about three years four months. I respectfully reject that submission. To my mind, such a minimum term of imprisonment would fail to reflect adequately the objective seriousness of the offence, and the moral culpability of the offender. 74In short, I have taken into account the deprivation suffered by the offender in his early years, and the effect that it has had on the whole of his life, in the ways recently discussed by the High Court of Australia in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and Munda v Western Australia [2013] HCA 38; 249 CLR 600. I have sought to balance those matters against the fatal gravity of what the offender has done. Having said that, I have also held steadily in mind the warning of the High Court that, in doing so, the lives of Aboriginal victims damaged or destroyed by the violence of Aboriginal offenders must never be devalued: see Munda v Western Australia at 619. Imposition of sentence 75Paul Andrew Hunter, you are convicted of the offence of manslaughter. I sentence you to a non-parole period of 6 years, to date from 22 June 2011. There will be a parole period of 2 years that expires on 21 June 2019. The first date upon which you will be eligible for release to parole is 21 June 2017. 76To express my order another way, the offender is sentenced to a head sentence of imprisonment for 8 years with a non-parole period of 6 years.