R v Isherwood [2013] NSWSC 1868

Supreme Court of NSW|2013-12-12|Before: Latham J

The co-offender, Harley Page, was found guilty by a jury on 18 October 2013 of assault with intent to rob in company with wounding pursuant to s 98 of the Crimes Act 1900 and manslaughter. On 30 October 2013 he was sentenced to 9 years' imprisonment including a non-parole period of 6 years.

At approximately 4 am on 26 August 2011, the offender and Mr Page were both in an intoxicated state when they boarded a train at Hamilton that was travelling to Sydney. On the train they encountered and assaulted the deceased, Mr Angelo Kaloudis, a 76 year old homeless man who often travelled on the train between Newcastle and Sydney.

The offender stands to be sentenced according to an agreed statement of facts. Much of that document refers to the movements and observations of other persons who were in and around the same carriage of the train when the assault upon the deceased took place. It is not necessary to refer to the detail of the statement of facts. The offender's plea brings with it an admission as to an assault in company upon the deceased, with the intention of robbing him, thereby causing wounding, and that the infliction of grievous bodily harm was a contingency which the offender had in mind : R v Sharah (1992) 30 NSWLR 292.

The offender submits that it was the co-offender Mr Page who initiated contact with the deceased through the making of verbal demands and threats. The statement of facts asserts that a voice associated with that of Mr Page said to the deceased, "Give me some money, Give me ten dollars", and "ohhhh now you're a scared cunt, take a swing at me". For the purposes of this sentence, whether it was the offender or Mr Page who initiated contact with the deceased carries little weight, given that both the offender and Mr Page participated in the assault upon the deceased and in the light of the offender's statement to an acquaintance, Ms Hall, shortly after midnight, suggesting that he was going to get onto a train and "fight someone".

The offender and Mr Page were seen raining down upon the deceased a series of punches. During the course of the assault, a pane of heat-treated glass was broken. When the train arrived at Cardiff Railway Station, the offender and Mr Page alighted from the train directly onto the tracks and walked onto the platform. The offender was observed to have a cut to one of his hands and blood on his left nostril. The offender said to a station officer "I got robbed but don't call the cops, it's alright. ... When we were on the train a bloke tried to rob me for my last ten bucks. The bloke that was robbing me shouldered the window out of the train and tried to hit me with it, that's how I cut my thumb. No-one robs me, that was my smoke money, my last ten bucks." Later, the offender said "Old mate on the train can go through to Central for all I care, that will teach him, messing with me."

These words were an attempt by the offender to accuse the deceased of assaulting him with the intention of robbing him. More importantly, in attributing responsibility to the deceased for the removal of the glass pane and its breakage, the offender demonstrated a consciousness of guilt that lends support to the Crown submission that it was the offender who struck the deceased to the head with the pane of glass. I am satisfied beyond reasonable doubt that there is no other reasonable inference to draw from the offender's statements, but that he was acting out of a consciousness of guilt.

Passengers who boarded the train and entered the relevant carriage saw smashed glass and blood on the floor and seats in the rear mezzanine area and found the deceased covered in blood and in pain. The deceased complained of pain to his head and said : "Three hit me, hit me, hit me bottle." I interpolate these words as signifying that the deceased thought that there were three assailants and that he was struck with a bottle. This complaint is consistent with the deceased being struck to the head with the pane of glass.

The deceased later died of his injuries, specifically a closed head injury.

In the Autopsy report prepared for the Coroner, Professor Lyons found:

(a) The findings at post mortem were consistent with an assault. In particular there were a number of injuries to the face...

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(d) A CT scan on admission showed there was a large predominantly right sided subdural haematoma with significant mass effect...

(e) The primary cause of death was a closed head injury.

After being shown a panel of glass of the type smashed in the train, Prof Lyons said:

A possible scenario was that [the deceased] had been struck on the head area with the glass. Because the glass has a wide flat surface it may not have led to a significant observable scalp injury but led to direct transfer of forces to within the cranial cavity [sic]. In consideration of this scenario it is possible the glass has fractured on impacting the head, or impacted against an internal component of the carriage leading it to become shattered."

Prof Lyons further noted that had the deceased been struck with a blow to the head with the force required to shatter heat treated glass of the type located in the carriage, it would have been highly unlikely that the deceased would have been able to get up and move around the carriage. Recognising that the deceased was seen to move after the offenders left the train, the only reasonable conclusion to draw is that the deceased was struck to the head with the glass pane, which then impacted with a part of the carriage, causing it to shatter.

I therefore reject the submission on behalf of the offender that it is not open to find that the impact of the glass panel with the deceased's head was the cause of death. I also reject the submission that there is no evidence to identify which of the co-offenders struck the blow. I am satisfied beyond reasonable doubt that it was this offender based on the following factors :-

(1) The deceased's blood was found on the shoes worn by the offender.

(2) The DNA profile of the offender was extracted from a bloodstain on the inner handle of a right rear entry/exit door to the relevant carriage.

(3) The deceased's blood was found on shattered safety glass and an unbroken piece of safety glass. The unbroken piece of glass was consistent with having come from the doors that allowed access to the seating area of the carriage. That piece of glass contained blood staining which matched the DNA profile of the offender.

(4) The offender's fingerprints were found on the unbroken piece of glass.

(5) The cut to the offender's right-hand when he emerged from the train.

(6) The statements made by the offender to the station officer at Cardiff Railway Station.

These reasons in combination warrant a finding to the requisite standard that the offender played the principal role in the assault. The offender claims no real memory of the incident. Thus, the finding is not contradicted by any other account of the assault put forward by the offender.

Whilst the offender was intoxicated on the night, the degree of intoxication is difficult to ascertain. The statement of facts contains observations by a number of witnesses that suggest that the offender and his co-offender were moderately intoxicated. However, I note that the offender has a long history of alcohol abuse and may well have appeared less intoxicated than he in fact was. Assuming for present purposes that the offender was grossly intoxicated, that does not operate as an excuse or justification, although it partly explains the commission of the offence. It appears that the offender was intent on obtaining more money for alcohol and that he made the cowardly choice of an aged and defenceless man as the source of those funds and as an outlet for his aggression.

I acknowledge that the assault upon the victim was relatively short lived, that is, something in the order of six minutes. I do not accept the submission on the offender's behalf that the assault upon the victim was spontaneous and opportunistic. For the reasons which I have already set out above, the offender had a general intention to assault someone for the purposes of obtaining money at least four hours before he boarded the train at Broadmeadow.

The objective gravity of the offence must necessarily be less than a murder carried out with the intention to inflict grievous bodily harm. Whilst I acknowledge that there are statements to the effect that constructive murder is not necessarily to be regarded as less serious than other categories of murder (R v Jacobs [2004] NSWCCA 462; (2004) 151 A Crim R 452 at [332] per Wood CJ at CL), each case falls to be assessed on the basis of its own individual circumstances.

The prevalence of drunken and random violence on the streets in urban areas late at night is an unwelcome, almost daily feature of social commentary. Innocent lives are lost because mindless, grossly intoxicated and drugged young men appear to place no value on their own lives or the lives of others. The offender has had this lesson driven home to him ; I accept his expressions of sheer disbelief to Dr Adams, psychiatrist, that he was involved in such an offence. Specific deterrence plays a minor role for these reasons, but general deterrence remains at the forefront of the sentencing exercise.

That said, this vicious attack upon a vulnerable victim in the early hours of the morning on public transport, at a time when the offender was on conditional liberty, places it just below the middle of the range of objective gravity for this particular type of murder. Whilst the standard non-parole period operates as a guide to the judicial instinct in arriving at a sentence which is appropriate to the objective and subjective circumstances, it does not strictly apply in the circumstances of this case.

I turn to the offender's subjective circumstances.

The offender was 28 years of age at the time of the offence and is now 30 years of age. His parents separated when he was 11 years old. He has one sister who is 31 years of age and is still supportive of the offender. The offender's sister gave evidence on sentence which confirmed the offender's background and that the offender was genuinely remorseful. He lived with his mother after his parents separated but continued contact with his father.

He attended school until year nine and then undertook courses at TAFE which he did not complete. He did not engage in any formal education after leaving school. He left home at 16. He has been employed in a variety of manual jobs since that time and worked in the hospitality industry in his 20s. The longest period of employment stability is 18 months.

The offender commenced abuse of alcohol at the age of 12 or 13. He commenced abusing cannabis at the same age and amphetamines at the age of 16. In his later teenage years, the offender was abusing alcohol and both drugs on a daily basis. At the age of 20, the offender attended the William Booth program and completed 10 months. He has not undertaken any further drug and alcohol rehabilitation programs.

The offender resumed use of alcohol and cannabis following his discharge from rehabilitation although he did not resume amphetamine abuse until he was 24/25 years of age. In the months prior to the offence he was using ice every few months and alcohol and cannabis on a daily basis. On the evening prior to the offence he had used alcohol, cannabis and ice.

The offender's record of previous convictions is not lengthy, commencing in 2002. Apart from a conviction for supply prohibited drug, for which he received a 12 month suspended sentence, the offender's convictions are primarily for summary public order offences. On 20 May 2013 the offender received two terms of imprisonment of three months and six months respectively, both commencing on 30 August 2011, for offences of violence. Only 23 days before the commission of the murder, the offender assaulted a number of members of the public at night in Newcastle. He was on bail for these offences when he assaulted the victim.

This is the offender's first time in custody. Since coming into custody, the offender's mother was diagnosed with cancer and died on 22 August 2013. Her death has affected him profoundly. He has no major mental illness, mood disorder, anxiety disorder or psychotic disorder. It is submitted, and I accept, that he has good prospects of rehabilitation provided that he accepts supervision. The offender claims to have developed a degree of insight into his drug and alcohol abuse.

The offender's plea of guilty was notified to the Crown on 18 September 2013, two weeks before the morning fixed for trial. A discount of 15% on the sentence that would otherwise be imposed is warranted. I make a finding of special circumstances based upon the offender's relative youth, the fact that this is his first time in custody and that his release after a reasonably lengthy non-parole period will pose significant difficulties for him in reintegrating himself into the community and obtaining gainful employment. The degree of alteration to the statutory ratio will however be moderate, given the length of the sentence.

Considerations of parity do not in my view strictly apply. Whilst Mr Page was a co-offender for the purposes of the assault with intent to rob with wounding, he was ultimately convicted of manslaughter, not murder, and his role in the assault which ultimately claimed the victim's life was of a much lesser order.

In all of the circumstances, I regard a sentence of 17 years' imprisonment as appropriate to the objective and subjective circumstances of the offence, after the application of the discount for the plea of guilty.

Nathan Isherwood, you are convicted of the murder of Angelo Kaloudis. I impose a non-parole period of 11 years, to date from 30 November 2011, expiring 29 November 2022, with a balance of term of 6 years expiring 29 November 2028. You are eligible for release to parole on 30 November 2022.

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