R v Jim MILLS

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

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

REMARKS ON SENTENCE 1 HIS HONOUR: The offender was committed for sentence on a charge of manslaughter arising from the death of the deceased, Peter Hawke, on 17 December 2007. He adhered to his plea of guilty in this Court and is to be sentenced for that offence. 2 The facts are contained in a statement tendered to the Court. No material from the prosecution brief was placed into evidence except for the autopsy report and certificates of analysis of substances taken from the body of the deceased and the accused. At the date of the killing the deceased was aged 44 and the offender aged 40. They were acquainted with one another. The deceased was in a relationship with Melissa Cawood and she knew the offender. 3 On the morning of Sunday 16 December 2007 the deceased went to the unit of a long-term friend, Salvatore Sansone, in Redfern, requesting to stay the night as he wanted company. They drank some wine before the deceased left the unit for a short period. During his absence Ms Cawood arrived and introduced herself to Mr Sansone as the deceased's girlfriend. She waited in the unit until the deceased's return at about 2 pm. He brought some wine that the three of them drank together. 4 Later in the afternoon the offender turned up at the unit. At some stage the offender and the deceased became engaged in a heated conversation, apparently arising from an allegation by the deceased that the offender's son had stolen drugs from the deceased. The two ended up in fisticuffs until Sansone intervened. The deceased had a bloody nose. Sansone told the offender to leave and he apologised. He left the unit, the deceased explained to Sansone that the offender was drunk. 5 The statement of facts continues as follows:

About 8.30 p.m. [Sansone] took a sleeping tablet and went to bed and fell asleep. The deceased and Cawood continued to drink alcohol and watch television in the lounge room. Sometime during the evening Cawood fell asleep on the lounge. At 2 a.m. the next morning, that is Monday 17 December, Cawood woke up. Cawood told police that when she woke up she was in the lounge room and saw the deceased and the offender eating a toasted sandwich or something in the kitchen and they appeared to be getting on fine. Cawood then said that she heard arguing coming from the kitchen. She went to the kitchen and saw the deceased slumped over on the kitchen floor. The offender was standing nearby. Cawood did not see the offender stab the deceased and did not notice that he was holding anything. Cawood rang 000. The offender at some point, either before or after this, left the unit. Sansone woke up to the sound of Cawood crying. Cawood went into Sansone's bedroom and said to him something like "Jimmi stabbed Peter". Sansone went to the kitchen and saw the deceased lying on the floor between the bin and fridge. The deceased had blood on him. 6 Although ambulance officers arrived a short time after they were summoned, they were unable to assist the deceased and he was pronounced dead on arrival at the hospital. Death was caused by a single stab wound to the chest that injured the heart. 7 While the police were present at the unit, the offender returned. He appeared despondent, upset and dazed. He was intoxicated and, after his arrest, a breath analysis gave a reading of 0.175. Analysis of his blood revealed the presence of various drugs including methadone and cannabis. Ms Cawood was also heavily intoxicated and appeared to be affected by drugs. An analysis of the deceased's blood returned a reading of 0.304. There was also the presence of drugs including methadone and nordiazepam. 8 Although the offender was initially charged with murder, he pleaded guilty in the Local Court to manslaughter after aborted committal proceedings. The offence is based upon an unlawful and dangerous act being the infliction of the knife wound to the chest of the deceased. The circumstances in which the stabbing occurred are not clear but apparently it was in the course of a drunken argument between the two men. Although a knife was used by the offender, which is an aggravating factor, it seems that he picked up the knife in the kitchen. The offender has no recollection about the circumstances surrounding the killing. 9 The offender has a criminal record dating from 1986 when he was before the Local Court and was fined for an assault. He has been convicted of a number of assault offences sometimes where actual bodily harm has been occasioned. However since 1989 he has been before the court only for, what are often referred to as, street offences. Between 2004 and 2008 he has been convicted of possessing drugs and on each occasion was fined. This record does not seem to me to be of any significance. It is of course the offender's first time in custody. 10 The offender has a history of drug and alcohol usage from his teens. In the 1980's he was admitted to a psychiatric hospital as a result of suffering a drug-induced psychosis. On another occasion he was admitted because of a fear of self-harm. He gave evidence before me that he had a period of sobriety for about 8 years until 2002 or 2003. He has been taking methadone for the last 15 years. On the day of the killing he was affected by both alcohol and drugs and this is no doubt the primary reason for his loss of temper and the use of the knife. 11 There is little in his upbringing of relevance given his age and the nature of the offence. His father was an alcoholic and violent. The offender left home at the age of 15 living an itinerant lifestyle "on the streets". He has had only one significant relationship, as a result of which he has two teenage children. He has a good relationship with them and they have visited him in gaol. The offender has been on a disability support pension since 1992 and has not worked for about 20 years due to his alcoholism. He was living with his 15 year old son at the time of the offence. 12 There is in evidence an affidavit from the offender's daughter, aged 17. She is working part-time in a bank but is studying to become a primary school teacher. She is distressed by the situation her father is in and finds it difficult to accept that he committed the offence because she has never seen him violent. She supports him, as does her brother, and hopes that he can seek assistance when released from gaol to overcome his drug and alcohol problems. In his evidence the offender apologised to his children as he did to the deceased's daughter. 13 Neither the prospects of rehabilitation or the likelihood of reoffending are matters of any real import in this particular sentencing exercise. This was a single act of violence arising from a particular situation and no doubt fuelled by the intoxication of both men. Dr Westmore believes that he requires drug and alcohol counselling. If he is not prepared to seek or accept counselling then he will no doubt continue to use prohibited drugs and drink to excess. But these are matters that he will need to address if he hopes to be released to parole at the earliest available date. In evidence the offender said he had not consumed any alcohol or non-prescribed drugs while in custody. He has been having counselling with a drug and alcohol officer once a month. 14 A psychologist who prepared a report on the offender believes that he would benefit from engaging in "offence-specific intervention through the Violent Offender's Programme". Again this is a matter for him and his participation or lack of participation will affect his prospects of being released to parole. He is being treated by Justice Health while in custody for mental health issues but the psychologist believes he may also need medication to assist in breaking his dependence on drugs. 15 The psychologist submits that he should be sentenced to allow for his maximum opportunity for rehabilitation. Of course that is not my major concern. I am to punish him for taking a human life by the use of a weapon, albeit while under the influence of alcohol and drugs. However the offender appears to be genuinely remorseful for the killing and if this senseless act that took the life of an acquaintance does not induce him to rehabilitate himself, I doubt that any other motivation could do so. 16 The Very Reverend John McIntyre, a Bishop in the Anglican Church, gave evidence. He had been parish priest in Redfern and met the offender and his wife about 15 years ago. He remembered the offender's wife leaving the family and the offender's problems with alcohol. Yet he formed a genuine friendship with the offender. He was shocked that the offender could have killed another person as he had never appeared violent. He hoped to be able through his contacts in the Redfern area to offer the offender support on his release. 17 There is a victim impact statement from the school-aged daughter of the deceased. She lived with her mother but was hopeful that her father might have been given custody of her. They had plans to go on holidays together. She regrets that she did not have the opportunity to share time with him as she grew older and gained her independence. 18 Although the offender pleaded guilty in the Local Court, that was about 12 months after he was charged and after committal proceedings were to be heard, but were aborted when the Crown witnesses failed to attend. It seems to me that a discount of 20 per cent is appropriate. 19 There are special circumstances in light of the assistance that the offender will require to maintain his endeavours to overcome his drug and alcohol dependency. I assume that if he is being released to parole at the first opportunity he will have continued to address these problems while in custody. If he does not, then he is unlikely to be released. 20 The offender is sentenced to a term of imprisonment consisting of a non-parole period of 4 years 6 months and a balance of term of 2 years 9 months. The sentence is to commence from 17 December 2007 and the non-parole period expires on 16 June 2012 the date upon which the offender is eligible to be released to parole. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.