R v Jones

Supreme Court of NSW|2016-12-13|Before: Harrison J

REMARKS ON SENTENCE

HIS HONOUR: On 28 November 2016, Kaine Geoffrey Jones pleaded guilty to the manslaughter of Graeme Wilton. He had originally been indicted upon a charge that he murdered Mr Wilton. The Director of Public Prosecutions accepted Mr Jones' plea of guilty to manslaughter on the first day of his trial in full satisfaction of the indictment. The charge of manslaughter carries a maximum penalty of 25 years imprisonment. It does not attract a standard non-parole period.
Mr Jones has pleaded guilty to the manslaughter of Mr Wilton upon the basis of an unlawful and dangerous act. The act upon which the Crown relies is the striking of Mr Wilton on 12 December 2013. That striking caused the death. Mr Wilton died on 10 February 2014.
Manslaughter by unlawful and dangerous act does not involve an intention to kill or to inflict grievous bodily harm. However, the unlawful and dangerous act must be intentional and voluntary and it must be established that a reasonable person in the position of Mr Jones would have realised that he was exposing Mr Wilton to a significant risk of serious injury: Wilson v The Queen (1992) 174 CLR 313 at 333; [1992] HCA 31. The elements of the offence in this case are established by Mr Jones' plea of guilty.
Mr Jones is now to be sentenced for the offence of manslaughter in accordance with a detailed set of agreed facts. Those facts are as follows:

Mrs Wilton

Mrs Wilton read a victim impact statement to the Court. She stated that the emotional impact of Mr Wilton's death was enormous. She described the experiences they had shared together and how much she missed him. She said, "The life I knew and loved has now completely gone … my life has been halved." She said that she had been forced to move home "to escape memories and torment" and that she had to seek the professional assistance of counsellors to help her with insomnia, anxiety and panic attacks while she faces confusion and "relentless pain".
I am mindful, however, of the limitations that apply to evidence of this kind. The loss of all human life is equally regrettable and the sentence that I am bound to impose cannot for obvious reasons be influenced either by the presence or absence of distraught relatives of a deceased victim of such a crime who are understandably prepared and anxious publicly to express their grief.

Mr Jones

Mr Jones gave oral evidence about his background, the incident and his life since. He said that his parents separated when he was very young, "at least three or four". His mother entered into a relationship with another man when he was six or seven years old. Mr Jones did not get on well with him and he was violent towards him, his younger brother and his mother. "Heaps of stuff happened," he said. He recalled his mother's new partner pulling his younger brother out of bed and throwing him around. He said, "He used to do the same with me."
Mr Jones was 15 years old when he finished school. From then until the time of the incident he was gainfully employed, except for one year which he took off.
Mr Jones said that he did not plan to strike Mr Wilton and that he did not think about what he was doing. He accepted that after he struck Mr Wilton he got into his vehicle and drove away. He said that he came back five minutes later with his girlfriend: "Probably why I drove away is because I was scared that he was going to get back up and fight me, like, then, when I left, and I was driving away, he was still lying on the road so that's why I went back, to make sure he was all right."
When the police spoke to him about the incident, Mr Jones inquired about Mr Wilton's welfare. The police told him that he was "in a bad way" and in a coma. Mr Jones said that when he heard this he was in tears. He asked the police to apologise on his behalf, saying, "Just send a message for me. Tell them I am so sorry to his family, I am so sorry". He said, "I just don't want to live anymore. I wish I could trade positions with him".
Mr Jones detailed his time in custody. He stated that while he was in gaol, he received visits from his mother and girlfriend once a week and spoke to them on the telephone almost every day. He said he made an attempt on his life while he was in custody at Long Bay Gaol around April of 2014.
Mr Jones said he had a job in custody working in a print shop in Cessnock. When asked what he wanted to do when he leaves gaol, he said, "Well, I hope to at least have a trade and get in the mines and just, yeah, I want to work away." He said he was planning to learn a trade while in custody and that he had spoken to an officer who had offered him an apprenticeship. Mr Jones' former boss, Robert Brown of Domus Building Service has offered him a job upon his release.
When asked how he felt about what he did to Mr Wilton he said, "like crap". He said hearing Mrs Wilton read out her victim impact statement in court made him feel very upset.
Finally, Mr Jones said that after his sentence he wants to do some anger management courses. He said he thinks that if a similar situation arose when he was released he would be able to deal with it differently.

Cherie Davey

Cherie Davey is Mr Jones' mother. She said she had spoken to her son about the offence and that he said to her he "doesn't want to live anymore". She said it was a "living nightmare" for him. She said he felt awful for the family, especially Mrs Wilton. Ms Davey continues to support her son despite the offence. She said that when he is released he could come to live with her. She said she would be willing to assist him with any counselling or programs. In particular, they had discussed anger management and conflict resolution therapy and she said that Mr Jones was willing to do that.
Ms Davey said she had noticed a significant change in Mr Jones since he had entered custody. She said, "He wants to move forward with his life. He wants to work as part of the community, to help others. He has a much better outlook on life for his family and friends. He has a better understanding of life and respect of life."
Regarding her past relationship with her former partner, Ms Davey said he was violent towards her, towards Mr Jones and towards her younger son. She recounted the incident that led to their separation: "I walked into the garage and my husband at the time was unaware I was entering the garage and he picked up a 1.25 kilo can of dog food and he hurled it at my son. He was just a little boy."
She also recalled another occasion where Mr Jones "mucked up" at the dinner table and was sent to the bathroom to sit on the toilet to finish his dinner. She said this was "a regular occurrence".
Ms Davey said she had talked with Mr Jones about his future plans. She said he has dreams of building a house and having a wife and children. He mentioned to her that he has hopes of entering a trade whilst he is in custody.

Guilty plea

Mr Jones was arrested on 17 January 2014. He was initially charged with inflicting grievous bodily harm with intent before the charge was elevated to murder on 12 February 2014. A committal hearing took place on 26 November 2014 and 4 August 2015. Five witnesses gave evidence.
Mr Jones first made an offer to plead guilty to manslaughter on 11 February 2016. The matter was listed for arraignment on 12 February 2016. That offer was initially rejected by the Crown. The Crown later accepted a plea to manslaughter on what would have been the first day of his trial on 28 November 2016 in full satisfaction of the charges. Whilst Mr Jones did not plead guilty at the earliest available opportunity, there is still significant utilitarian value to the plea. Both the Crown and counsel for Mr Jones agreed that a discount of 15 percent for the plea would be appropriate. I agree with that view.

Contrition and remorse

The Crown submitted that whilst Mr Jones may have expressed regret for his actions, contrition is more valued if it is immediate. The Crown noted that Mr Jones fled from the scene, made efforts to disguise his vehicle and until he was arrested, sought to cover up his actions, rather than accepting responsibility for them. The Crown noted that it was not until five weeks after the event at the police station that Mr Jones expressed remorse.
Counsel for Mr Jones submitted that he was truly remorseful. While it is true that he left the scene immediately upon delivering the punch, he did come back, albeit sometime after the incident, to check on Mr Wilton's welfare. Although he initially attempted to avoid apprehension, he made an inquiry about Mr Wilton at the time he was spoken to by police and also asked them to speak to Mrs Wilton on his behalf.
I have also had the benefit of hearing and seeing Mr Jones give evidence in person. He would appear to have some insight into his offending. I accept that he is genuinely remorseful for his actions and for the impact it has had on Mr Wilton's family, particularly his wife.

Psychological reports

I have been provided with a report from Professor Susan Hayes, a forensic psychologist, dated 29 November 2016. Professor Hayes diagnosed Mr Jones with a mild intellectual disability and particular deficits in verbal reasoning and communication skills. She recorded that his functional age equivalent skills in areas of communication, socialisation and daily living were all low, and his written skills were at an age equivalent of 9 years. She noted that Mr Jones has symptoms consistent with depression, panic anxiety disorder and mild obsessive-compulsive disorder.
Professor Hayes offered the following opinion in her supplementary report dated 2 December 2016: "Mr Jones' intellectual disability was related to his offending behaviour because he has limited executive reasoning capacity, that is, the ability to rapidly consider all the alternative courses of action that may be available to him and to choose an appropriate option."
By way of comparison, however, the Crown elicited from Mr Jones in cross- examination that he had studied for a certificate in real estate, performed tasks on the computer, had driven cars and trucks and that he did not require a carer for performing daily tasks such as going to the bank.

Prospects of rehabilitation

Mr Jones is a young man with no significant criminal record and no prior history of violence offences. However, his assault upon Mr Wilton suggests that he has underlying anger management issues. These will need to be addressed with professional assistance. Mr Jones has stated that he wishes to undergo anger management courses after he is sentenced. These are not currently available to him. Mr Jones also has the support of his mother, who is willing to assist him in this respect. I accept that Mr Jones recognises the problem that he has and that he intends to address it when he is released.
Mr Jones has also expressed a desire to return to full time employment upon release to the community. He has been more or less effectively employed full time since leaving school at an early age. He wishes to undertake an apprenticeship in custody and has explored that possibility.
Taking account of his youth, his work history, his desire to undergo anger management counselling, his stated ambitions to lead a wholesome and productive life, the steps he has taken to further develop his skills and the offer of employment he has upon release, I am of the opinion that Mr Jones has good prospects of rehabilitation. I am encouraged in this view by the opinion of Professor Susan Hayes in her supplementary report dated 2 December 2016: "Mr Jones has good prospects of rehabilitation, primarily for two major reasons. The first is that he found his time in custody a 'terrifying experience', partly owing to the mental conditions of panic anxiety and OCD. He found it difficult to cope in the crowded and often dirty environment in the prison. He is anxious to avoid re-incarceration at all costs. The second reason why his prospects of rehabilitation are positive is the very nature of those two conditions; he is motivated to undertake programs which will alleviate his panic anxiety. Furthermore, his OCD means that once he commences a program, he is highly likely to comply with the conditions and to complete the requirements.. He also has good prospects of rehabilitation owing to his remorse concerning the offending behaviour."

Sentencing for manslaughter

I have been referred to a number of authorities outlining the principles that apply in sentencing an offender for the crime of manslaughter. There is no established range of sentence for manslaughter. The offence carries a maximum penalty of 25 years and no standard non-parole period. It encompasses a wide variety of different factual circumstances with correspondingly varying levels of culpability. It is therefore essential when sentencing an offender for the crime of manslaughter to keep the particular facts of the case constantly in mind. The Court must have regard to the full context in which the death was caused. The surrounding circumstances as well as the moral culpability of the offender are important considerations: R v Loveridge [2014] NSWCCA 120.
It is also important to keep firmly in mind that what is involved in every case of manslaughter is the felonious taking of a human life: R v Blacklidge (unreported, 12/12/95, NSWCCA). This is a necessary consideration informing the appropriate sentence.

Objective seriousness

The Crown submitted that this is an objectively serious matter and for a number of reasons falls into the mid-range of objective seriousness: 1. The attack was unprovoked. 2. Mr Jones made a conscious decision to involve himself in violence. He was in the process of driving away but chose to stop and take the matter further. 3. Mr Wilton was vulnerable by reason of the age disparity and the fact that he was given no opportunity to defend himself. 4. Mr Wilton and Mr Jones were not known to each other. 5. The offence was committed in a public place. 6. Mr Jones left the scene without attempting to render assistance. 7. Mr Jones was on conditional liberty at the time of the offence.
To be balanced against these matters are the facts that the assault did not involve the use of a weapon and there was no escalation of the violence following the punch. The offence was also entirely unplanned.
In my opinion, this offence falls somewhere below the mid-range of objective seriousness for offences of its type.

Deterrence and retribution

The particular circumstances of this case are to some extent unusual but by no means unique. Mr Jones and Mr Wilton were completely unknown to each other before the tragic events that their meeting produced. Mr Jones was not intoxicated or under the influence of drugs of any kind. Mr Wilton did nothing that any right thinking person could regard as provocation or incitement to anger or violence. Indeed, in the limited factual context that is available, Mr Wilton's actions in apparently remonstrating with Mr Jones seem to me to be no more and no less than a reasonable response to Mr Jones' manner of driving on a quiet suburban street. There was no cause or excuse for Mr Jones to strike Mr Wilton in the way that he did or indeed at all. It is regrettable from several points of view that Mr Jones did not take Mr Wilton's concerns about his driving in the spirit in which they were intended.
The simple fact is that Mr Jones took it upon himself to respond to Mr Wilton in an unacceptably angry and aggressive manner. His actions were literally inexcusable. They are inconsistent with the civilised conduct of any normal society. There is no doubt that these actions should be publicly condemned and that this Court's response should include reference to the need generally to deter their repetition. This is not a case in my view where the need for general deterrence should be modified or ameliorated in the light of the events that caused the death. This is, in contrast to many cases of manslaughter, one in which Mr Jones had an opportunity calmly to reflect upon what occurred and to walk away. There is an uncontroversial and recognised need in these circumstances to emphasize that individuals who engage in violent behaviour causing the death of innocent victims should expect to be punished appropriately.
In this last respect I am mindful of what has been said by the Court of Criminal Appeal as recently as 2014 in R v Wood [2014] NSWCCA 184 at [65] - [67] as follows: "[65] This Court has observed on many occasions that 'single-blow' manslaughter cases (by unlawful and dangerous act) are not rare in this State and need to be addressed by sentences that reflect the element of general deterrence: R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45; Loveridge at [103]. [66] The need for general deterrence is not confined to alcohol fuelled violence but includes gratuitous, unprovoked violence on the streets, whether in city centres, or residential areas. People have the right to expect that their streets will be safe: Attorney General's Reference No 60 of 2009 (Appleby and Ors) [2009] EWCA Crim 2693; [2010] 2 Cr App R(S) 46 cited with favour in Loveridge at [209]-[210]; R v McKenna [2007] NSWCCA 113 at [2]. [67] This expectation gathers importance as the number of aged and vulnerable persons in our community increases. It must be clearly understood that violence towards the elderly will not be tolerated. In the circumstances of the present offence, a strong element of general deterrence was called for."
The question of special deterrence is more complicated. I have elsewhere concluded that Mr Jones is remorseful and contrite, has good prospects of rehabilitation and is unlikely to reoffend. However, Mr Jones has a self-confessed problem with the control of his anger. Whether or not that difficulty is ultimately amenable to enduring correction remains to be seen. It is not a tendency that will serve Mr Jones well in the future if it is not brought under control. Despite the prospect of professional assistance, I nevertheless consider that there is at least some need to impose a sentence upon Mr Jones that serves constantly to remind him of the continuing need to exert self-control.

Special circumstances

Mr Jones has referred to his desire to undergo anger management treatment and to seek psychological intervention to combat his symptoms of depression and anxiety as diagnosed by Professor Hayes. In her supplementary report dated 2 December 2016, she outlined a treatment plan which would assist Mr Jones' prospects of rehabilitation. This included psychological counselling to address his symptoms of anxiety, cognitive behavioural therapy, participation in an anger management program and programs to assist Mr Jones with adaptive behaviour skills, especially literacy and communication skills. There is a reasonable case for varying the statutory ratio in this case to optimise the successful administration and completion of these programs.
It was also accepted by the Crown that there is material available upon which a finding of special circumstances could be made. These included, but were not limited to, Mr Jones' comparative youth. The Crown specifically, and in my view quite properly, disavowed any submission against such a finding.

Crimes (High Risk Offenders) Act 2006

Mr Jones is, by reason of the offence for which he is to be sentenced, a person who has committed a "serious violence offence" for the purposes of the Crimes (High Risk Offenders) Act 2006. That Act establishes a regime by which such offenders may become the subject of extended supervision orders or continuing detention orders before the expiration of their sentence. I am required by s 25C(1) of the Act to warn Mr Jones of the existence of the Act and its application to him.

Consideration

The events that give rise to these proceedings are a tragedy for all concerned. The Wiltons have lost an important and well-loved member of their family. Mr Jones has managed in a fit of thoughtlessness to alter the course of his life forever. Both families will have significant difficulties ever being able to come to terms with these tragic events.
Mr Wilton was a vulnerable person with no opportunity to anticipate or prevent what occurred. In one sense, Mr Jones was also unaware of the prospect of these events until they occurred. He did not plan this assault. He has no criminal history that could ever have foretold the likelihood that he might offend in this way. He is in fact unlikely ever to re-offend and has correspondingly good prospects of rehabilitation. However, in the events that occurred I cannot discount the sad fact that Mr Jones fled the scene and failed immediately either to render assistance to Mr Wilton or to confess his responsibility. Indeed, Mr Jones took some steps actively to conceal it. I have no doubt that Mr Wilton's family will themselves have considered and evaluated Mr Jones' expressions of remorse in the light of these admitted facts.
An appropriate sentence cannot be determined without reference to the critical issue of Mr Jones' moral culpability: R v Winter [2013] NSWCCA 218. Culpability is concerned with the assessment of an offender's moral responsibility for what he or she has done. It focuses upon aspects of an offender's conduct and his or her subjective attributes in the light of all the prevailing circumstances. It is relevant to consider an offender's state of knowledge and understanding at the time.
In this respect the Crown drew attention to the following matters. Mr Jones obviously appreciated the significance of what he had done, inasmuch as he attempted to alter the appearance of his vehicle. He also instructed his girlfriend in what to say to the police if she were questioned. The Crown also emphasised that Professor Hayes does not suggest that any psychiatric or psychological condition from which he was suffering contributed to the commission of the offence. Her reports indicate that Mr Jones was suffering from, or had symptoms consistent with, depression, panic anxiety disorder and mild obsessive compulsive disorder. Her report does not suggest that these conditions existed at the time of the commission of the offence or played any part in its commission.
Even though Professor Hayes was of the view that Mr Jones had a mild intellectual disability and certain cognitive deficits, she does not suggest that this contributed to the commission of the offence beyond her opinion that Mr Jones may not have been able promptly to formulate an appropriate response to the situation as he perceived it or so as to restrain an impulsive act. An acceptance of that opinion would necessarily reduce Mr Jones' moral culpability. The Crown did not suggest that there was any such causal relationship in this case.
It is apparent that Mr Jones made a conscious decision to strike Mr Wilton when a moment's pause for reflection would totally have avoided what occurred. The opportunity to do so arose but Mr Jones did not take it. The result was an unprovoked attack on a defenceless victim. I am not satisfied that any intellectual disability of the type identified by Professor Hayes played any significant role in the commission of this offence or that it serves to reduce Mr Jones' moral responsibility for what occurred.
In expressing my earlier view that this offence falls below the mid-range of objective seriousness, I should not be misunderstood to be expressing a view that the offence was not very serious. My opinion about where in the range of objective seriousness this offence lies is no more than a comparative analysis of this offence and arguably similar offences. It is not intended to derogate from the obvious significance of Mr Wilton's death.

Pre-sentence custody

Mr Jones was in custody solely in relation to the present offence from the date of his arrest on 17 January 2014 until 9 September 2014, a total of 236 days. From 25 February 2016 Mr Jones was in custody bail refused with respect to an unrelated matter. He remained on bail during that period for the present offence. However, on 10 March 2016 his bail was revoked. From that date until 2 August 2016 Mr Jones was bail refused on both this matter and the unrelated matter, or a total of 146 days. On 2 August 2016 the unrelated matter was dismissed. From 3 August 2016 to 30 November 2016 Mr Jones has been in custody solely with respect to this matter, or 120 days. Therefore, as at 30 November 2016 Mr Jones had served 502 days pre-sentence custody with respect to this offence. He has now as at 3 February 2017 served a total of 567 days in pre-sentence custody for this offence. For sentencing purposes it follows that it is appropriate to backdate the commencement of any custodial sentence to 17 July 2015.

Sentence

Kaine Jones, for the offence of the manslaughter of Graeme Wilton you are convicted. I sentence you to a term of imprisonment of 10 years commencing on 17 July 2015 expiring on 16 July 2025 with a non-parole period of 6 years expiring on 16 July 2021. The first date on which you will be eligible for parole is 17 July 2021.

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. Decision last updated: 03 February 2017

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