R v King; R v York

Agreed Facts

1. Lengthy joint Agreed Facts were tendered on sentence. A significant portion of them outlined the movements of the two couples in the days leading up to the killing. I have not extracted all of the Agreed Facts and I have reworded them in parts. I have focussed on the circumstances the offender Mr King would have perceived about the relationship between his sister and the deceased. Given that two persons are named King, I propose to refer to Tenille by her first name when recounting the facts in the interests of readability. Similarly, given that I am sentencing two "offenders" I propose to refer to them by name to distinguish them from each other.
2. Mr Tattersall commenced an intimate relationship with Tenille on 22 August 2022, although they knew each other prior to that time.
3. Around 6 September 2022, Mr King contacted Mr Tattersall and asked if he could stay for one night with him at 11A Bateup Drive, Hamlyn Terrace (11A) to see his sister. Tenille collected her brother from the train station and they collected Ms York on the way. I pause here to note that on 2 August 2022 Mr King had been granted bail in relation to an aggravated robbery to reside at a full-time rehabilitation centre. He was asked to leave that rehabilitation centre a few days prior to the offending due to a dispute with another resident.
4. That night Mr Tattersall and Tenille went out for dinner whilst Ms York and Mr King stayed the night at 11A as arranged.
5. The following day (7 September 2022), Mr Tattersall was arrested for an unrelated matter and released on bail. There was noted to be escalating tension from Mr Tattersall towards Tenille that night. Ms York and Mr King stayed with them for a second night.
6. On 8 September 2022, Mr King and Ms York had an argument at 2.30am which woke up Tenille, who then woke up Mr Tattersall. Mr Tattersall then said "threatening and offensive things" to Tenille and went to sleep in the loungeroom. At about 5.00am, Mr Tattersall woke Tenille up by throwing a pillow in her face and demanding to know where his work clothes were. She drove with him to work in silence. They remained angry and did not communicate with each other when they saw each other at Wyong Court later that day.
7. Mr Tattersall arrived home at about 5.30pm. This time, he was angry with Tenille about an issue with the CCTV. He went outside and ripped the CCTV camera from the eave and threw it down the side of the house. They then had a fight and Tenille told him to take his belongings and leave. At about 6.10pm, whilst Mr Tattersall was in the bedroom screaming, Tenille gave Mr King her car keys and told him to sit in the car. She told him that she would take he and Ms York back to Ms York's home and then proceeded to do so. Meanwhile Mr Tattersall sent Tenille a message telling her to drop Mr King at the Dam Hotel and to, "fuck Maddison off".
8. Mr King and Mr Tattersall then had a loudspeaker Facebook telephone call and agreed to meet up at the Dam Hotel. At 6.58pm, Tenille dropped Mr King at the front entrance to the Dam Hotel. Mr King and Mr Tattersall met up and had a beer together inside the poker machine area and at 7.18pm were seen to embrace.
9. At about 7.24pm, Tenille collected her brother from the Dam Hotel and Mr King, Tenille and Ms York drove towards Hungry Jacks at Lake Haven. Mr Tattersall remained at the Dam Hotel. Ms York and Mr King had a fight in the car and once at Hungry Jacks, Ms York got out of the car and walked off.
10. Mr Tattersall had a telephone call with his mother and told her he was having dinner at the pub alone and that he was angry with both her and Tenille. He ended the call angrily but texted his mother to apologise. Tenille sent Mr Tattersall a message to ask him if he wanted some dinner and if he wanted to be picked up. Mr Tattersall sent her a photo of his dinner.
11. Meanwhile Ms York got back in the car and continued to argue with Mr King as Tenille drove them back to her home. Tenille told them that they should collect their things and she would drive them to Gorokan. When they arrived home Tenille left her car running while Mr King and Ms York packed their things.
12. The three travelled towards Gorokan during which time Mr King argued with Tenille about choosing Mr Tattersall over her family. Mr King and Ms York got out of the car. The Agreed Facts then state the following: "25. Tenille tried to call and text Mr Tattersall. Eventually Mr Tattersall answered, Tenille said, 'Tyler is really angry and I need to come and get you and I'm worried he's gonna do something. I can't do this game anymore and I really need to come and get you.' Mr Tattersall said, 'I'm going to fucking kill that cunt.' 26. Tenille arrived at the Dam Hotel about 8.00pm. She called Mr Tattersall and he said that he was on his way and was going to stop at the bottle shop first. Mr Tattersall walked to the car with a 4 pack of double strength Jack Daniel bottles. He got in the car and they drove off. As they were driving Mr Tattersall opened one of the bottles. While driving Mr Tattersall asked what had happened. Tenille explained that Mr King had disowned her. Mr Tattersall became angry and agitated and then said to Tenille, 'Is that what he even said you lying gronk cunt?' Mr Tattersall grabbed and punched the steering wheel so that the car veered towards oncoming traffic. Tenille yelled at him to stop and grabbed the steering wheel. Mr Tattersall said, 'Pull the fuck over cunt I'm getting out.' Tenille pulled over on Minnesota Road, about 300 metres from the Dam Hotel. Mr Tattersall got out of the car, he said, 'You want to fucking hope I'm not home when you get there or I'm gonna fucking kill ya. Tenille said, 'I can't do this anymore. Please call your mum and go to hers.' Tenille drove away. 27. It started to rain and Tenille received a text from Mr Tattersall, 'You expect me to walk in the rain cunt.' Tenille pulled over near Virginia Road and called Donna and told her what had happened. Mr Tattersall walked in the direction of 11A."
13. I pause here to note that during submissions reliance was placed on a portion of Donna Tattersall's statement not included in the Agreed Facts where Ms Tattersall advised Tenille to "… lock the doors and call the police…Don't let him in". Returning to the Agreed Facts: "28. Tenille called Mr King and told him she was scared and asked him to come to the house with her. Between 8.05-8.10pm Tenille collected Mr King and Ms York from Evangeline Road. They returned to 11A. Tenille parked in the garage and locked the roller door. The front security screen and timber door were both locked. 29. Ms York and Mr King went to the back bedroom. Tenille asked Mr King to make sure the bedroom window was locked. Tenille went to the first bedroom and put a bag on the bed. She looked for a bag in the front bedroom. When she could not find a bag, she walked to the kitchen. Mr Tattersall arrived at 11A and banged open the gate. The kitchen and living area were in darkness. Tenille was fearful and pressed record on her mobile phone. Mr Tattersall walked to the front door and started yelling at Tenille. Mr Tattersall said, 'You've got three seconds to open the fucking door for me, cause you know i'll fucking open it aye.' Mr Tattersall demanded that Tenille open the door, he counted backwards from 10 while continually demanding access to the home. Mr Tattersall said he wanted his things. He accused Tenille of being on 'crack.' Tenille and Mr Tattersall both said they would call the police. 30. As Mr Tattersall was saying he would call the police, he presented his mobile phone to the window in the front door. The call log screen had 000 dialed. Mr Tattersall continued to yell at Tenille. He was tugging on the handle of the screen door. Tenille unlocked the solid timber door. As soon as she opened the door Mr Tattersall kicked through the screen door. He kicked the door once, causing it to break and he was able to enter the house. Mr Tattersall 'did one roundhouse kick and it just went straight through.' 31. Tenille stood at the open door. Mr Tattersall grabbed Tenille's head and hair with his left hand. With his right hand he hit her in the face, with a closed fist. Mr Tattersall dragged and pulled Tenille to the ground by the hair. Tenille was screaming and Mr Tattersall was saying some horrible things. Tenille was struggling against Mr Tattersall. Tenille tried to pull away, Mr Tattersall pulled her towards the dining table, he let go of her head and grabbed her right arm and 'went whack' into the metal leg of the table. Tenille was in immediate pain. Tenille kept trying to get away from Mr Tattersall. Mr Tattersall was screaming at Tenille. 32. From the far end of the house Mr King yelled, 'Oi.' Mr Tattersall was crouched over Tenille. Mr Tattersall raised his fist and went to punch Tenille. Mr King ran and grabbed Mr Tattersall from behind by the back of the neck of the shirt and 'reeled him off' Tenille. Tenille turned her head away. Mr King let go of the shirt. Mr Tattersall spun around. Mr Tattersall and Mr King were facing one another. Mr Tattersall threw a chair at Mr King, which struck the wall leaving a hole. Mr Tattersall said, 'Sorry bro, I'm sorry bro. I won't hit her again...' Mr King hit Mr Tattersall. By this time Mr King and Mr Tattersall were between the lounge and the wall in the lounge room area. Mr Tattersall hit Mr King. They were in a scuffle, 'like a head lock thing.' Mr Tattersall was not standing to his full height he was slightly bent and continued to say, 'I'm sorry bro.' The scuffle continued to the wall opposite the lounge. Mr Tattersall grabbed Mr King by the head and forced his head into the wall causing a hole in the gyprock. They were hitting each other and saying nasty things to each other, including a comment by Mr Tattersall, 'You should see what I do to her (Tenille) in the bedroom.' 33. Mr King retrieved a black handled knife with a silver blade from the kitchen. Mr King had the knife in his right hand. Mr King had his arm bent at the elbow, he pulled his arm back past his hip and then at hip height he stabbed the knife into the left side of Mr Tattersall's body and then pulled the knife away. Mr Tattersall was near the wall on an angle near the TV and Mr King was opposite Mr Tattersall with his back in the direction of the kitchen. Tenille realised there was a knife and jumped up. Mr Tattersall was still trying to hit or grab Mr King. Tenille ran to them. Mr King stabbed Mr Tattersall a second time to the left side of his body, Tenille grabbed Mr King's hand and the handle of the knife and pulled it back. Tenille thought she prevented the knife from penetrating Mr Tattersall's skin. Mr King grabbed her hand and pushed it away, and said, 'No-ones gonna fuckin hit you again, no ones gonna ever hurt you again...' Mr King pushed Tenille to the ground. Mr King stabbed Jesse a third time on the left side of Mr Tattersall's body. Mr Tattersall was bleeding heavily from his wounds. Ms York was standing in the hallway, Tenille told her to call the police. Ms York stood watching. 34. Mr Tattersall tried to get away. He ran towards the front door. Mr King chased him and Mr Tattersall hit the corner of the couch and fell. He was crouched down so that the small of his back was pressed against the front of the lounge. Mr King was over the top of Mr Tattersall and Mr Tattersall and Mr King were punching each other. They were still screaming nasty things to each other. Mr King stopped, he stepped back. Mr King said, 'Fuck' Mr Tattersall realised Mr King had stopped, he jumped up and ran from the house. 35. Mr Tattersall made his way to the doorway of 11 and knocked loudly. Without unlocking the door Lenehan [the next-door neighbour] said, 'Who is it?' Mr Tattersall said, 'It's Jesse'. Lenehan said, 'What's up?' Mr Tattersall said, 'She stabbed me.' Stufano [the other next-door neighbour] looked through the glass panels in the front door and recognised Mr Tattersall. Mr Tattersall was slumped at the front door, he had blood dripping from his fingers and Stufano saw blood on his forehead. Lenehan called for an Ambulance. Stufano said to Mr Tattersall, 'I will call the Police. I am sorry but I can't open the door.' 36. Mr King ran to the bathroom and got into the shower in his shorts. He got out of the shower and towelled himself. (At this time Ms York became an accessory.) Ms York handed him a clean pair of shorts and packed them some things in a Coles shopping bag. Ms York was mumbling words of support to Mr King. Tenille was screaming and crying. Tenille went into the first bedroom and called Partridge then she called Donna. Mr King and Ms York walked down the hallway. Mr King and Ms York left the house. They crossed the street and went into a vacant lot at the end of the cul de sac. 37. At 8.41pm Stufano called triple zero. At 8.42pm another neighbour called triple zero. 38. At 8.46pm Paramedics arrived in Bateup Drive. They drove along the street and identified Mr Tattersall slumped down in the doorway of 11 Bateup Drive. About the same time, NSW Police Officers, arrived in Bateup Drive. Paramedics approached and began to treat Mr Tattersall. Mr Tattersall was not breathing and a pulse could not be detected. 39. Police officers found Tenille in 11A. They searched 11A and did not find anyone else." (italics in original) [3]

Post offence conduct

1. The Agreed Facts disclose that the offenders made their way to Middletree Close, Hamlyn Terrace. Ms York ordered an Uber and at 8.54pm an Uber driver accepted a job to pick "Maddison" up from that address. She then had a Snapchat conversation with an unknown person saying she would be there soon, that she was hiding in a bush, to stop asking her questions and that she would not be answering her phone.
2. The offenders were picked up by the Uber driver at 9.01pm. They were dropped at the premises of Alexandra McCulloch in Gorokan. She was annoyed that they were there as she did not like Mr King. When another person present asked Ms York what was going on she said, "there was a stabbing going on." Mr King had a shower and changed his clothes.
3. Meanwhile, resuscitation efforts were continuing on Mr Tattersall who was taken by an ambulance to be transported by helicopter for treatment but he was declared deceased before that could happen.
4. Police arrived at Gorokan and arrested Ms York at 9.25pm. This was about 45 minutes after the stabbing (based on the ambulance having been called at 8.41pm). When police asked Ms York where Mr King was, she said, "I don't know, I left him…all the way back there, he's not here." While waiting for a Police car, Ms York said to an officer, "then she fuckin stabbed him or he fucking stabbed himself. We were in fucken bed man. I don't know why you're recording now, I'm just gonna do a statement down at the fucking statement anyway, down the station" and, "I got hit by a fuckin chair to (sic) by him, fucking maggot."
5. Mr King was located nearby and arrested and both offenders were taken to Wyong police station.

Ms York's interview with police

1. Ms York was interviewed by police. She provided the following account, which largely reflects the Agreed Facts with the obvious exception that she initially told police that the deceased had stabbed himself. The Agreed Facts include the following summary of what she told police: 1. She had been in a relationship with Mr King for ten months and she knew Tenille was his sister. 2. She arrived with Mr King at 11A two days ago. 3. Tenille and Mr Tattersall fought for the entire two days. 4. On 8 September 2022, when Ms York arrived home, she could tell Mr Tattersall and Tenille had been fighting throughout the day. 5. Mr King and Mr Tattersall went to the pub. 6. Ms York and Tenille went to the service station. Mr King asked to be picked up from the pub. Ms York was told she was not allowed to return to 11A. 7. Mr King and Ms York returned with Tenille to 11A. They collected their things and left. After they left, Tenille called and asked them to return, saying she was scared. Tenille told them about Mr Tattersall's behaviour in the car. Mr King and Ms York returned to 11A. 8. Mr King and Ms York got into bed. 9. Ms York heard Mr Tattersall arrive, kick the door in and then start "bashing into Tenille". Tenille was screaming and fell to the ground. 10. Ms York and Mr King ran from the bedroom to the hallway/loungeroom. Mr Tattersall threw chairs at them, giving Ms York a bruise. 11. Mr Tattersall grabbed Mr King and started belting him. He was bashing into his body and "face and shit". 12. Mr King screamed and then there was blood everywhere. Mr Tattersall said, "lm sorry, brah, I'm sorry brah". Mr Tattersall stabbed himself and threw Mr King onto the lounge. Tenille stood over the top of them and started bashing into Mr Tattersall. It all stopped and Mr Tattersall left. 13. Mr King and Ms York left. 14. Ms York described Mr Tattersall stabbing himself as, "I just saw him fucking put, like, you know, himself with something, and then, and then he pulled it and then blood was just going everywhere." 15. Ms York grabbed her phone, vape and charger and left with Mr King. 16. Ms York booked an Uber. Ms York and Mr King went to 41 Mary Street. 17. Soon after they arrived, she was arrested. 18. When directly asked Ms York said that Mr King did not stab Mr Tattersall. 19. When directly asked if Mr King showered at 11A after the stabbing Ms York said, "I don't know. Honestly, I don't know..."

Injuries

1. Mr King had a laceration on his left thumb, small scratches/injuries/abrasions on his right wrist, left side of his chest, top lip, right shoulder blade, back of the neck, inner right arm and left leg.
2. Tenille King had a sore and swollen right wrist and hand. Some of her hair was pulled out and she had an abrasion on the back of her head and neck.

Post mortem results

1. Mr Tattersall had a stab wound to the left anterior chest, penetrated through chest wall into right chest cavity and into the right upper lobe of the right lung. He also had a large associated right haemothorax (approximately two litres of blood within the right cavity). Two other sharp force injuries to the chest were superficial. He had a defensive wound on his left hand between his pointer and middle finger.
2. Mr King's DNA was detected underneath four of Mr Tattersall's fingernails.

Basis of liability

1. The Agreed Facts conclude in this way: "56. By his plea Mr King admits criminal responsibility for the death of Jesse Tattersall on the basis that whilst he believed his conduct was necessary to defend Tenille, his conduct was not reasonable in the circumstances as the Offender perceived them. 57. By her plea Ms York admits that she knew of the acts committed by Mr King leading to the death of Mr Tattersall and that she assisted Mr King knowing that the crime had been committed. Ms York admits that she assisted Mr King by; i. Handing Mr King shorts after he had showered at 11A, while muttering words of encouragement to him. ii. Fleeing with Mr King. iii. Ordering an Uber, so they could flee. iv. Taking Mr King to 41 Mary Street, Gorokan, a place where Ms York considered they would find safe refuge. v. Lying to Police at 41 Mary Street about Mr King's whereabouts and what had happened at 11A. vi. Lying to Police during her interview at the Police Station about what happened at 11A."

Mr King

1. The Crown tendered the Crown bundle comprising, inter alia, the Statement of Agreed Facts dated 14 November 2023, the criminal and custodial history, victim impact statements of Donna Tattersall (mother of the deceased), Kylie Fegan (the deceased's aunt), and [XXXX] (daughter of the deceased), and the Statement of Agreed Facts in relation to an earlier matter (aggravated robbery) with remarks on sentence in relation to that matter dated 11 October 2023. The victim impact statements of Donna Tattersall and Kylie Fegan were read in court.
2. On behalf of Mr King the following documents were tendered: a report from Caroline Hare, forensic psychologist, dated 31 January 2024, a letter from Tyler King dated 26 April 2024, a letter from his mother Julie King dated 9 April 2024 and an undated letter of Jeff King (his father).
3. Mr King did not give evidence on sentence nor call any witnesses.

Ms York

1. The Crown tendered the Crown bundle comprising, inter alia, the same Statement of Agreed Facts dated 14 November 2023, and Ms York's criminal and custodial history.
2. On behalf of Ms York the following documents were tendered: a report of Dr Paul Pusey, forensic psychologist, dated 6 April 2024, a letter of Maddison York dated 9 February 2024 and Corrective Services documents in relation to programmes in which Ms York participated (Remand Addictions Program participation in 2022, Remand Addictions letters of attendance dated 1 and 5 September 2023, Theory in Hygiene Operations Achievement Award undated, and a certificate of successful completion of training in Working Safely: A Guide to Safe Working Practices completed on 24 August 2023).
3. Ms York did not give evidence on sentence nor call any witnesses either.

Victim impact statements

1. The Crown tendered three victim impact statements. The first was written by Donna Vera Tattersall, the mother of the deceased, and read to the court by her sister Eloise Tattersall. The second was written and read to the court by Kylie Fegan, the aunt of the deceased. The third was written by [XXXX], the daughter of the deceased, and was not read in court.
2. The victim impact statements described the death of Mr Tattersall as the most traumatic loss imaginable. Donna Tattersall described the deceased as her first true love. She described his death as taking away the mother she once was. She described physically feeling the moment he died. As his aunt Kylie Fegan set out eloquently in her letter to the court, he was a "golden child" to his mother Donna "even in moments when he was wasn't in the eyes of many others". Donna loved and supported him fiercely through all his journeys in life - both good and bad. The relationship between Mr Tattersall and his mother was described as "powerful". As Ms Fegan stated, his death has "forever placed a dark cloud in her heart. A grief so deep, one no mother should know".
3. A third victim impact statement, written by the deceased's daughter, [XXXX], was tendered but not read in court. [XXXX] was 14 when Mr Tattersall was killed. She described how she feels isolated from her friends because they do not relate to the complicated grief of losing a father. She described feeling anxious and reluctant to form new relationships as a consequence of losing her father.
4. I am grateful to these women for sharing their deep grief with the court. I know that it cannot have been easy to read these letters in court. On behalf of the court, I extend my condolences to Jesse Tattersall's family and friends.

Objective seriousness

1. The first issue to be determined is whether at the time of the fatal stabbing Mr King intended to kill the deceased or to inflict grievous bodily harm on him. The Crown submitted that I would be satisfied beyond reasonable doubt that he intended to kill the deceased whereas Mr King claimed that he only intended grievous bodily harm.
2. In resolving that dispute, I have had regard to the sentencing principle that I may not take facts into account in a way adverse to Mr King's interests unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to him are established on the balance of probabilities. [4]
3. The evidence in support of these competing submissions is to be found in the Agreed Facts and is of limited compass.
4. The Crown contended that I could find beyond reasonable doubt that Mr King intended to kill the deceased based on his comment to his sister to the effect that nobody would ever hit or hurt her again, said by him prior to the stabbing of the deceased. The Crown also relied upon the fact that the deceased was unarmed, that he was stabbed three times and that he was stabbed in the chest.
5. Mr King, on the other hand, relied on the fact that after the deceased had been stabbed and there was a further fist fight, the deceased was allowed to leave. Mr King did not prevent the deceased from leaving the premises and approaching the neighbour's house for assistance.
6. I have considered these competing submissions and the Agreed Facts overall. It seems to me that Mr King's exhortation to his sister prior to the stabbing that nobody would hurt her again is open to two interpretations: in addition to suggesting an intention to kill the deceased (so that he could not assault his sister again), it could also mean that Mr King would use the assault to teach the deceased a lesson to deter similar conduct to his sister in the future.
7. As for the three stab wounds, two were superficial, there is no evidence as to in which order they were inflicted, and the Agreed Facts disclose that Tenille intervened and thought that she had physically prevented one of the impacts.
8. Although the matter is finely balanced, I am ultimately unable to be satisfied beyond reasonable doubt on this limited material that Mr King intended to kill the deceased. I propose to sentence him on the basis that he intended to inflict grievous bodily harm on him.
9. All offences of homicide are serious and the process of deciding the appropriate sentence and evaluating the objective seriousness of the offence must begin and end with an acknowledgement that a precious life has been taken away. But what is unusual about the offence of manslaughter is that it throws up the greatest variety of circumstances affecting culpability. [5]
10. The offender has pleaded guilty to manslaughter on the basis of excessive self-defence. This means that he stands to be sentenced on the basis that although he believed it was necessary to stab the deceased in order to defend Tenille, that was not in fact a reasonable response in the circumstances as he perceived them. [6]
11. The relevant principles were explained by Simpson JA in Smith v R. [7] It is necessary to identify the circumstances as the offender perceived them and what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself, [8] so that an assessment can be made of the reasonableness of his conduct.
12. The Crown noted that by the time the offender grabbed the knife he had already separated the deceased from his sister and that from this point she was no longer in danger. The Crown submitted that the fact that the deceased was unarmed supported a finding that the offender's actions comprised a significant departure from reasonableness in the circumstances as perceived by him. Not only was his sister no longer in danger, she and Mr King could have left the premises. Instead, Mr King retrieved a knife, returned to the location, and stabbed the deceased three times. The use of a weapon is an aggravating factor. Although it was acknowledged that the offender's actions occurred over a short period of time, it was submitted that this did not diminish the seriousness of the offence to any significant degree.
13. Mr King, on the other hand, submitted that I would find that the circumstances as he perceived them were that his sister was being violently assaulted by a man of whom she was very scared. Tenille had told him that she was scared of the deceased and asked him to come to the house to protect her. After that, the deceased had "smashed" his way into her property through a security door and immediately begun to violently assault Tenille. She was defenceless against his attack.
14. The offender submitted that it was in these circumstances that he intervened in the dispute. He was met with violent resistance from the deceased such that a subsequent struggle ensued. It was acknowledged that Mr Tattersall apologised for his actions to the offender during the fight, but the offender submitted that this apology had little weight as the deceased continued to disparage Tenille, including by saying "you should see what I do to her in the bedroom" and continuing the fight with the offender. Reliance was also placed on the fact that only one of the three wounds was significant.
15. I note that during the earlier fight between Mr Tattersall and Tenille, Mr Tattersall threatened her and told her that if she was present when he returned, he was going to kill her. Tenille told his mother about this threat who told her to call the police and not let him in. Although Tenille also told the offender she was frightened of the deceased, and the Agreed Facts show that Ms York told police that Tenille called them and told them "about Jesse's behaviour in the car", the Agreed Facts do not disclose that Tenille specifically told Mr King about the death threat from the deceased to her.
16. In assessing the objective seriousness of this offence, I have had regard to the high degree of aggression and violence shown by the deceased to Tenille in bashing down the door and then assaulting her. He was clearly determined to assault her. I accept that to some degree the offender acted out of fear and panic when he saw that. His assault on the deceased was unplanned and did not last long. The deceased not only assaulted Tenille but also continued to assault the offender. On the other hand, the offender armed himself with a knife and accepts that in stabbing the deceased he departed from a reasonable response to the circumstances as he perceived them.
17. At the time of the assault by the deceased on Tenille, the deceased no doubt thought she was alone in her home and he could assault her freely. There is no evidence that when he commenced his physical assault on her he knew Mr King was present. It is a feature of domestic violence offences that they often occur at home with no witnesses. When Mr King came to his sister's aid to defend her, the deceased apologised to Mr King but not to the victim of his assault, Tenille. Despite that apology to Mr King, the deceased continued to say demeaning things about Tenille whilst grappling with Mr King.
18. Having regard to all of these factors it is clear that this excessive self-defence manslaughter is to be viewed in the context of the offender's over-reaction to seeing his sister as the victim of domestic violence at the hands of the deceased. His use of a knife is an aggravating factor. Although I am not required to fix the objective seriousness as being on a range, I am prepared to find that the objective seriousness falls at the lower end of the broad mid range of objective seriousness.

Moral culpability

1. It was not suggested that Mr King's moral culpability was reduced by reason of either a mental illness nor a deprived childhood.

Mr King's subjective case

1. Mr King is a 27-year-old Aboriginal man, raised in Mt Druitt by his loving parents who met when they were 18. His family later moved to the Central Coast. He is the middle of three children. His older sister, Tenille, is estranged from the family.
2. He has described his childhood and early family life as being loving and supportive. His father owns a construction company. Both parents are prosocial and imposed strict boundaries. He was not exposed to any mental illness, ongoing substance abuse, or physical violence within his family home.
3. The offender described school as being a positive experience for him. He received average grades and was integrated into the social life of his school. The only exception to his positive schooling was that he has described being the victim of sexual abuse by a teacher at his school and is pursuing legal action in relation to that abuse.
4. His mother described him as being an active child with an interest in sports. He chose motorbike riding as his sport to focus on and won numerous State titles. When he was 15 years old, he was run into a wall at an event in Tamworth and broke his tibia, fibula and talus. After three surgeries and three months of recovery, he went back to speedway racing.
5. When he was in Year 9, he travelled to the United Kingdom to pursue a professional speedway racing contract. The contract did not transpire and when he returned to Australia, he did not return to school. This seems to be when his life took an unfortunate turn. Instead of returning to school he formed a new friendship group. Although he continued to race, his new friends prioritised drug taking and "partying" over speedway racing. He worked for his father for some time but was unable to continue this due to his escalating drug use. His parents did not approve of this and he was asked to leave home. He later started to fund his drug use by illegal activities.

Drug and alcohol history

1. The offender began using MDMA and smoking cannabis at the age of 16. He began using cocaine at 17 and crystal methamphetamines at age 20. His predominant drug use since that time has been of crystal methamphetamines. He attributes his drug use initially as an effort to feel accepted by his peers but then became addicted. This case is another sad example of the devastating effects that the drug ice can have on a person and those around them. It is worth noting that the deceased suffered from the same addiction.
2. Since March 2023, the offender has been on the Buprenorphine programme in custody, and he plans to continue this treatment into the future.

Prior criminal history

1. The criminal history of the offender commences in 2020 and comprises a large number of property and drug related offences.
2. In 2020, Mr King was fined for offences of possess prohibited drug and shoplifting. In 2021, he was dealt with for ten offences of shoplifting, for which he received a sentence of 12 months with a five month non-parole period, and three further offences of shoplifting for which he received an aggregate sentence of ten months with a five month non-parole period.
3. In 2021, he was also dealt with for 38 offences of dishonestly obtain property by deception, ten offences of larceny and one offence of drive conveyance without consent for which he received an effective sentence of 12 months imprisonment with a non-parole period of five months.
4. On 21 March 2022, he was arrested for a serious aggravated robbery. He was released on bail on 2 August 2022. He accepts that the fact that he was on bail at the time of the offending is an aggravating factor for the purposes of sentencing.
5. On 11 October 2023, Mr King was sentenced to two years and seven months imprisonment with a non-parole period of 16 months commencing on 22 July 2022 for the aggravated robbery offence. The non-parole period expired on 21 November 2023 and the head sentence will expire on 21 February 2025.

Totality

1. The offending occurred on 8 September 2022, from which time Mr King has remained in custody bail refused.
2. Counsel for the offender submitted that the latest that the sentence should date from is 21 November 2023, being the date at which Mr King was first eligible for parole. The offender accepted that, given the aggravated robbery is unrelated to the present offence, there should be some partial accumulation but submitted that it should be modest in the interests of totality.
3. It was accepted on behalf of the Crown that having regard to the principle of totality I could commence the sentence on any date during the 14 month period from 8 September 2022 (when he first entered custody on remand for this offence) until 21 November 2023 (when his non-parole period for the armed robbery offence expired).
4. The previous offence was unrelated and the offender was on bail for it when he killed Mr Tattersall. Having regard to the principle of totality, I propose to backdate the sentence to 21 April 2023 to reflect some but not all of the time that he has spent on remand for the manslaughter offence.

Remorse

1. The offender provided a letter to the court expressing his deep remorse for the pain he caused to Mrs Tattersall and the rest of Mr Tattersall's relatives. The letter expressed genuine remorse and detailed the offender's planned steps to turn his life around. The offender did not attempt to deflect responsibility for his actions.
2. The report of Mr King's psychologist Ms Hare also included observations that Mr King was tearful discussing the impacts of his actions, offering remorse and empathy for the impact of his actions on the victim's family and his own family.
3. I have considered this material and I am satisfied that the offender is genuinely remorseful.

Plea

1. The offender entered a plea of guilty on 21 November 2022 in the Local Court. He is thus entitled to a 25% reduction in his sentence.

Prospects for rehabilitation

1. It was submitted that Mr King's prospects for rehabilitation are reasonably good given his young age, prosocial family background and ongoing family support. He is close with his younger sister and maintains a good relationship with his grandmother. Whilst his parents remain supportive of him, they continue to set and enforce appropriate boundaries. The offender has the opportunity of employment upon his release and has indicated his motivation to accept professional intervention to support him in maintaining sobriety whilst in custody and upon his release.
2. The report of Ms Hare assessed the offender's overall risk profile as within the high-risk range but having applied the "HCR-20 V3" [9] she was satisfied that he presented a "moderate" risk which warranted some specialist intervention strategies. This assessment relied on factors such as antisocial peers, a history of antisocial behaviour and an antisocial pattern.
3. I am well satisfied that the offender's most significant risk factors are his drug addiction and negative peers. He is still relatively young and has strong family support. He has ceased contact with Ms York as she is a drug user, and he wishes to disengage with other drug users. It seems to me that he has gained some insight into the ways in which his drug use has impacted his life and seems determined not to return to that lifestyle. Of course, the difficulty with the drug ice is that it is so addictive.
4. I am satisfied that the offender has reasonable prospects of rehabilitation should he be able to remain drug-free. Despite this, he will need significant support on his release to avoid relapsing.

Special circumstances

1. The Crown submitted that in light of the gravity of the offence, applying the statutory formula would provide sufficient time for supervision on parole. [10]
2. Counsel for the offender submitted that Mr King's substance abuse issues together with his need for assistance to reintegrate into the community, his newfound insight into his behaviour, and his need for professional assistance, warrant a variation of the statutory ratio between the head sentence and the non-parole period.
3. For the reasons I have already described, I am satisfied that the offender will need support whilst on parole to assist him in remaining drug free. For that reason, I am satisfied that this is an appropriate case in which to vary the statutory ratio on the basis of special circumstances being the need for interventions whilst on parole to address his drug issues.

Comparative cases

1. The Crown annexed the Public Defender Sentencing Tables for Excessive Self-Defence to his submissions. Although I have had regard to that Table, I have not gone behind it to read all of the 89 cases referred to therein. The Crown specifically relied on four decisions [11] whereas the offender relied on three decisions. [12]
2. In Charters, the deceased had broken into the home of his ex-girlfriend and the offender. The offender had hit him over the head with a heavy object to render him unconscious. Ierace J assessed that offending as being below the mid-range and imposed a sentence of four years and nine months imprisonment with a non-parole period of two years and nine months. That offender had a significant record for serious personal violence offences.
3. In Newburn, the CCA re-sentenced an offender to seven years and six months imprisonment with a non-parole period of four years following an early plea of guilty. The deceased had attacked the offender's home with a golf club late at night and verbally abused the offender. The offender took a knife and left his home to confront the victim. A fight ensued and the victim was stabbed.
4. Muddle is another similar case in which the offender and deceased were drinking in the offender's home when an argument developed, and the deceased threatened to kill the offender. When the deceased later broke into his home, he was stabbed by the offender. He received a sentence of six years imprisonment with a non-parole period of three years.
5. Although I accept that there is no "range" of sentences for self-defence manslaughter, I have considered these decisions and the principles derived from them and have found them to be of some assistance.

Objective seriousness

1. My assessment of the objective seriousness of this offence also falls to be made in the context of the Agreed Facts.
2. The Crown submitted that I would find the Agreed Facts to "speak for themselves" in relation to the objective seriousness of the offending. The Crown submitted that it is of particular significance that Ms York lied to the police about what occurred inside the premises.
3. The factors to have regard to when assessing objective seriousness were enumerated by Hamill J in TT. [13] His Honour observed that an assessment of the objective gravity of offences of this type involves a consideration of a number of factors which include, but are not limited to: 1. The circumstances of the homicide itself. 2. The extent of the knowledge in the accessory of those circumstances. 3. The precise act, or acts, which constitutes the offence of being an accessory after the fact. 4. The length of time over which the offender assisted the principal offender in escaping justice. 5. The extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender. 6. The motivation of the offender in committing the crime. 7. The offender's conduct in being motivated by a sense of misguided loyalty or emotional attachment to the principal offender. This is a circumstance of particular significance in cases where a family member assists the principal offender.
4. The offender's actions were not premediated and occurred over a very short period of time. They did not involve any of the more serious acts which are covered by this offence such as destroying evidence, burying or hiding a body, or evading police over a significant period of time. The offender was young and vulnerable and in a volatile relationship with Mr King. Her actions did not delay or thwart the investigation of the principal offender's crime. I am satisfied that she had a feeling of misplaced loyalty. Based on what she told Dr Paul Pusey, her forensic psychologist, she may also have had a fear of how Mr King might react if she did not assist him, although I am unable to make a positive finding in that regard.
5. When discussing the offence with her psychologist she described her involvement as booking an Uber for her then boyfriend in a "fight or flight moment". She admitted that she was not thinking at that time.
6. The acts establishing this offence are confined to Ms York handing Mr King his shorts whilst mumbling words of encouragement to him, ordering an Uber for them both, and arriving at a friend's place where police apprehended her within 45 minutes of the killing. The most serious aspect of her conduct was lying to police but she pleaded guilty in the Local Court very shortly thereafter, implicit in which there was an acceptance of Mr King's guilt. Thus, she did not maintain that lie for very long.
7. Although any conduct which assists an offender to evade police is serious and is to be deterred, I would not find this to be a particularly serious case of being an accessory after the fact to manslaughter. I would find it towards the lower end of the range.

Ms York's subjective case

1. The offender was only 19 years old at the time of the offending. She had a profoundly dysfunctional and tragic childhood. She is the youngest of two children. Her mother died when she was 18 months old, and her father was incarcerated from when she was aged two until 12 years old. Her father is again presently incarcerated.
2. As a result of her mother's death and her father's absence in custody, Ms York was "passed around the family" and experienced frequent changes in residential circumstances as a child. Often these changes involved the intervention of DOCS (now FACS). She attended multiple primary and high schools. She was sexually assaulted and bullied leading her to leave school having only completed Year 7.
3. After leaving school, she enrolled in a hospitality course but she did not complete it. She was unemployed at the time of the offence and in what she described as a "toxic" relationship with Mr King in which they would take drugs and drink alcohol. She felt socially isolated and described her partner's controlling nature as "having a significant influence on her choices". She also admitted that she was "young, dumb and in love." She was with Mr King from the ages of 18 until 20. They met via Facebook. She stated that she "made this stupid choice to choose him" over her family. She was quite tearful and distressed when discussing the relationship with Dr Pusey and stated that "if I could, I would go back and change so many things".
4. Ms York has struggled with her mental health and has been diagnosed with PTSD and borderline personality disorder. She now takes Fluoxetine and feels much better on it. She described that her head has been clearer. She has been on medication for six to seven months. She was not receiving treatment for her mental health when she was in the community prior to her incarceration although she did see a school counsellor when she was at Erina High School.

Drug and alcohol history

1. Ms York commenced using illicit substances when she was 13. Her drug of choice was ice. She described taking it "to numb the pain of everything, my childhood trauma and all that stuff". Her longest period of abstinence was three to four years when her nephews and nieces were born and she was around her family, but she started to use it again later because it was around. She also tried "liquid G" for a short period of time.
2. She admitted to using ice every day for five months before she came into custody, a period she describes as her "most unhealthy period".
3. The offender also commenced using alcohol when she was 13 saying that she "had a problematic relationship with it, but not anymore" and that she would now only have it on special occasions.

Remorse

1. Ms York tendered a letter titled "The Presiding Judge" in which she apologised to Mr Tattersall's family and expressed her remorse for the grief they have suffered following his murder. Counsel for Ms York also drew me to comments she has made to Dr Pusey, which are indicative of her remorse regarding her actions and involvement in the death of Jesse Tattersall.
2. The report of Dr Pusey notes that Ms York acknowledged feelings of guilt and remorse. Ms York stated that she "hate[s] herself because I know what it's like to grow up without a mother. I don't know anything about her, I don't even have any photos with her because she died when I was 18 months old. I often wonder if my life would have been different if I'd known her, and to know that I was a part of Jesse's kids losing their father, and his family losing a member of their family, my condolences go out to them. I hate myself for leaving the scene and I live daily with the thought that if I'd stayed Jesse could be with them. No one deserves what he and his family have been through including having to go through the process of trying to get justice for him."
3. I am satisfied that Ms York is genuinely remorseful.

Plea

1. The offender entered a plea of guilty on 22 November 2022 in the Local Court. She is thus entitled to a 25% reduction in his sentence.

Criminal history

1. The offender does not have any previous history of offending as an adult. This was her first period of incarceration and her first offence.

Prospects for rehabilitation/reoffending

1. As for Ms York's risk of reoffending, she acknowledged that if she was able to stay away from "dropkicks" and "off the drugs" and just "live a normal life", that nothing like this would happen again. She explained that that day was a big "wake up call" for her and that she does not want to be one of those girls who "comes in and out of gaol". She acknowledged that she will not find the life she wants in custody. She told Dr Pusey that if she had made social changes or not been on the drugs, she would have been home with her family and not where she was that night. She accepts that there is a strong relationship between her drug use and her offence based decision-making.
2. While in custody the offender has completed a certificate in cleaning and worked as a hygiene worker.
3. Ms York was a relatively young offender at the time of the commission of the offence with no criminal history. I consider her guilty plea, acceptance of responsibility and insight into the seriousness of the offence as being positive factors relevant to my assessment of her prospects of rehabilitation. I am satisfied that her motivation is genuine. She has also engaged in rehabilitation programs available to her in custody.
4. Despite a tragic childhood and previous drug addiction, I would assess her prospects of rehabilitation as favourable, especially having regard to the fact that this is her first interaction with the criminal law.

Moral culpability

1. As was observed in Paterson, [14] an assessment of an offender's moral culpability extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the wrongfulness of their actions or control their conduct.
2. One such factor relevant in Ms York's case is her childhood of deprivation as noted by the High Court in Bugmy v The Queen. [15] I have considered the material placed before the court regarding the offender's background and am well satisfied that it was one of profound deprivation. Although there is no requirement for there to be a causal connection between that deprivation and the offending, [16] I am satisfied that in this case there was such a connection. Accordingly, I am satisfied that her moral culpability is reduced on this basis.

Comparative cases

1. I have considered the case of Hannah Quinn [17] as I consider it to be similar. Although Ms Quinn was subsequently acquitted on appeal, [18] that does not detract from the relevant sentencing principles. That offender was sentenced in relation to being an accessory after the fact to an excessive self-defence manslaughter by her boyfriend. Ms Quinn did many more acts to support the principal offender over a much longer period of time than Ms York did. I did not accept Ms Quinn's submission that her offending was at the very lowest end of the range and nor was Ms Quinn's subjective case as strong as this offender. Ms Quinn was sentenced to a Community Corrections Order ("CCO").
2. Section 5(1) of the Sentencing Act [19] provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
3. The Crown did not challenge any of the subjective material relied upon by Ms Quinn and made no specific submission as to whether the offence warranted a full time custodial sentence in circumstances where the maximum penalty is only 5 years imprisonment.
4. Having had regard to the finding of objective seriousness and Ms York's strong subjective case, I am not satisfied that the s 5 threshold has been crossed in this matter. I am satisfied that her actions were towards the lower end of criminality, her subjective case was strong and her moral culpability reduced. Had she been on bail at the time of sentencing I would have sentenced her to a CCO.
5. The choice of placing Ms York on a CCO is precluded because s 86 of the Sentencing Act provides that a CCO cannot be backdated. Section 24(a) of the Sentencing Act provides that I am required to take into account the one year, seven months and nine days imprisonment Ms York has already spent on remand.
6. I have considered the sentencing option of imposing a sentence of imprisonment to reflect the time Ms York has already served but there are at least three problems with this. First, I have not found that the s 5 threshold has been crossed. Secondly, even if I had, I would have placed her on an intensive correction order which, like a CCO, cannot be backdated. [20] Thirdly, imposing a sentence far greater than is appropriate in the circumstances only acts to distort the relevant statistics.
7. Under the Sentencing Act there are only two other sentencing options available to me: a conditional release order under s 9 of the Sentencing Act or a s 10A conviction without further sentence.
8. I have considered whether to impose a conditional release order but given that Ms York has already served a longer period in custody than the length of any CRO I would have placed her on, imposing a further court order would be excessive.
9. That leaves me with the only remaining sentencing option available in the Sentencing Act.

Tyler King

1. But for your plea of guilty I would have imposed a sentence of 9 years imprisonment. Having regard to your early plea of guilty and applying a 25% discount to that sentence, the sentence I impose is reduced accordingly.
2. For the offence of manslaughter Tyler King is convicted and sentenced to: 1. Imprisonment for a term of 6 years and 9 months to commence on 21 April 2023 and to expire on 20 January 2030. 2. The non-parole period is 4 years and 3 months commencing on 21 April 2023 and expiring on 20 July 2027. 3. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), Tyler King is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

Maddison York

1. In sentencing Maddison York, I have taken into account that she has already served 1 year 7 months and 9 days in custody. 1. For the offence of accessory after the fact to manslaughter Maddison York is convicted and released with no other penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure Act) 1999 (NSW).

Endnotes

1. R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [22] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
2. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51].
3. Names within Agreed Facts adopted consistently with the remainder of the remarks.
4. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
5. R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep).
6. Crimes Act 1900 (NSW) s 421(1).
7. [2015] NSWCCA 193.
8. Newburn v R [2022] NSWCCA 139 at [39] (per Leeming JA, Garling and Lonergan JJ).
9. Historical-Clinical-Risk Management 20 Version 3.
10. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).
11. R v Stanley (No 2) [2023] NSWSC 74; R v Nancarrow [2022] NSWSC 455 ("Nancarrow"); Newburn v R [2022] NSWCCA 139 ("Newburn"); Fuller v R [2022] NSWCCA 203.
12. R v Muddle [2004] NSWSC 403 ("Muddle"); R v Charters [2020] NSWSC 842 ("Charters"); Nancarrow.
13. TT v R [2014] NSWCCA 206.
14. Paterson v R [2021] NSWCCA 273 at [31].
15. (2013) 249 CLR 571; [2013] HCA 37.
16. Dungay v R [2020] NSWCCA 209.
17. R v Hannah Quinn (No 1) [2021] NSWSC 493.
18. Quinn v R [2023] NSWCCA 229.
19. Crimes (Sentencing Procedure Act) 1999 (NSW).
20. Crimes (Sentencing Procedure Act) 1999 (NSW) s 71. 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: 24 May 2024