R v Knight

The Offence

1. It is necessary to briefly outline the detail of the offence. The applicant and deceased were both members of the Indigenous community in the rural township of Bourke. They had been in a domestic relationship for approximately 30 years, and have eight children together, ranging in age from 10 to 28 years. As of 12 March 2021, the deceased was residing at an address in Bourke with four of her own children and four grandchildren. The applicant was subject to an enforceable Apprehended Domestic Violence Order (ADVO) naming the deceased as the person in need of protection. The ADVO prohibited the applicant from assaulting or threatening the deceased, or from approaching or being in her company for a period of 12 hours after drinking alcohol.
2. On 12 March 2021, after the deceased had left for work, the applicant commenced drinking alcohol. Later that day, they both attended the Bourke Bowling Club. They drank alcohol and socialised until about midnight when the Club closed. The applicant drank a substantial amount of alcohol. There is nothing to suggest that there was any tension between the applicant and the deceased during that evening.
3. They left the Club at about 12:05am and were driven home by the courtesy bus. The applicant was heard to ask the victim: "am I staying at home tonight or do you want me to stay at Leighlan's?" The applicant and deceased were dropped off at the same location and entered the house where the deceased was residing with her children and grandchildren.
4. The applicant and deceased argued. The deceased did not want the applicant to sleep with her. The applicant was heard to say that he would go to his sister's house and the deceased told him to go. The applicant walked into the kitchen and obtained a black handled knife. He approached the deceased, grabbed her by the shoulder, and stabbed her once in the back with the knife. This was witnessed by their 14-year-old daughter.
5. In response to a question asked by his daughter as to why he stabbed the deceased, the applicant responded: "because she doesn't love me anymore". A call was made to triple zero. The police later attended. By this time, the deceased was unresponsive, and she was pronounced dead at the scene. When the police arrived, the applicant got up and staggered towards the police vehicle and said: "take me away". He was later arrested.
6. Experts engaged could not agree about the applicant's blood alcohol concentration at the time of the stabbing. However, they agreed that based on his history of drinking, the applicant would have consumed an amount of alcohol equivalent to at least 22 standard drinks prior to the incident.
7. Dr Robertson opined that: "…the ingested alcohol significantly affected Mr Knight's mental and physical capabilities…Mr Knight's ability to perceive and think clearly and rationally, control his emotional reactions, understand and appreciate the likely or possible consequences of his actions would have been significantly disrupted. It is likely he was unaware of the severity of his actions at the time of the (offence)".
8. Dr van Nieuwenhuijzen noted that the applicant "would have had a very high blood alcohol level". Dr van Nieuwenhuijzen went on to say that: "as a result of his intoxication, (the applicant's) cognitive abilities and psychomotor abilities would have been impaired, most likely severely impaired. The intoxication of Mr Knight would have resulted in him being unable to think clearly and make rational decisions. He would have been more impulsive and more aggressive than when he is not affected by alcohol".

The Application

1. The Crown accepts that relevant facts established on the application include: 1. the applicant has expressed a preference that he remain at Clarence Correctional Centre and appear by AVL; 2. there are appropriate AVL facilities available at Bourke Court House; and 3. to transport the applicant physically to Bourke, and house him there, would be inconvenient and involve a lengthy journey with considerable logistical difficulties and a drain on local police resources.
2. The Crown also accepts the procedural history as set out in the applicant's submissions. There is no dispute about the effects and meaning of s 5BB(1) of the Act.
3. The Crown opposes the application, relying upon the affidavit evidence of Mr Jonathan May, solicitor at the Office of the Director of Public Prosecutions. Importantly, the Crown relies upon representations made to Mr May by the deceased's sisters that the applicant should attend his sentencing proceedings in-person and on country. The Crown emphasised the importance of recognising Indigenous cultural values and principles in the criminal law. In support of that submission, the Crown referenced R v Fernando (1992) 76 A Crim R 58; Bugmy v The Queen (1013) 249 CLR 571; the Bugmy Bar Book; and the NSW District Court Walama List.

Consideration

1. Section 5BB(1) provides that: 5BB Accused detainee to appear by audio visual link in criminal proceedings other than physical appearance proceedings (1) An accused detainee who is charged with an offence and is required to appear (or be brought or be present) before a NSW court in criminal proceedings concerning the offence (other than physical appearance proceedings) must, unless the court otherwise directs, appear before the court by audio visual link.
2. Section 5BB(4) provides that: (4) The court may make such a direction only if it is satisfied, after taking into account any factors that are relevant in the circumstances of the case together with any factors that are specified in rules of court, that it is in the interests of the administration of justice for the accused detainee to appear physically before the court.
3. I am not assisted by any authority on the interpretation of the "interests of the administration of justice" in the current context where the Crown is opposing an application made by the applicant that he appears by AVL for his sentencing proceedings.
4. It is important to commence by acknowledging that the importance of recognising Indigenous cultural values and principles is increasingly accepted in the criminal law in New South Wales and in Australia more broadly. For example, the Bugmy Bar Book is increasingly relied upon as a resource capable of assisting judicial officers in making informed decisions in a range of matters. Some chapters of the Bugmy Bar Book deal specifically with the impact of intergenerational trauma brought about by cultural dispossession, and the impact on members of the stolen generations and their descendants.
5. The Walama List provides a therapeutic approach to sentencing of Indigenous offenders and incorporates some elements of restorative justice. The Sentencing Conversations are led by Elders and Respected Persons who provide essential cultural perspectives, values, and principles. The process acknowledges the importance of cultural authority to healing.
6. The current sentencing proceedings are not, however, being conducted in the therapeutic and restorative environment of the Walama List. In addition, the Crown does not rely upon the Bugmy Bar Book in support of the contention that there is a cultural imperative for the applicant to appear in-person for his sentence.
7. I acknowledge the strong view of the deceased's sisters that the applicant should attend his sentence in-person and on country. However, I am not persuaded that it is in the "interests of the administration of justice" that the applicant attends in-person, given that the sentencing proceedings will be conducted in the usual way, rather than pursuant to a restorative justice model.
8. The proceedings will be conducted in the local area where the offence took place and will allow family and community members to attend and observe the proceedings. The applicant will be present, albeit virtually.
9. Given that the sentencing proceedings will not be conducted pursuant to a restorative model of justice, it is difficult to see how his attendance in-person would better fulfil the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely, to make the applicant accountable for his actions, to denounce his conduct, and to recognise the harm done to the deceased and the community.
10. The purposes of sentencing will be addressed in the sentencing remarks and reflected in the ultimate sentence to be imposed on the applicant.
11. The Crown is to be commended for highlighting the importance of recognising Indigenous cultural values and principles in the criminal law. In an appropriate case where there is sufficient evidence, it may be wholly appropriate that cultural values and principles would dictate that a direction is made for an offender to appear in-person at sentencing proceedings.
12. In the present case, I am persuaded that the orders sought by the applicant should be made. There is a statutory presumption in favour of the applicant appearing by AVL for his sentence. The unchallenged evidence is that if he were directed to appear in-person, the applicant would have to endure onerous conditions of transfer, which include the following: 1. a 6-hour transfer and at least one night in either Shortland or Cessnock Correctional Centre; 2. a 2.5-hour transfer to Sydney (either via Long Bay Correctional Centre or the Metropolitan Remand and Reception Centre); 3. a 5-hour transfer to Wellington Correctional Centre via Bathurst Correctional Centre, where he may remain for a night prior to his transfer to Wellington; 4. on Tuesday, 28 March 2023, the applicant would have to be transferred from Wellington Correctional Centre to the Dubbo Court Cells; 5. on Wednesday, 29 March 2023, the applicant would have to be transferred from Dubbo Court Cells to Bourke Police Cells; and 6. the applicant would remain at Bourke Police Station (in the cells) until the matter is finalised.
13. The cells are adjoined to the Bourke Police Station charge room. The facility consists of four cells and two docks. The charge room is primarily used to secure arrested persons during the charge process. Because the applicant is a corrective services inmate, he must be secured separately to arrested persons. Accordingly, he will be housed in a police cell for the duration of his stay. There is no exercise yard or access to natural light. Other than the period he is in Court, he will be secured in the cell. He will not have access to visitors or phone calls.
14. Additional police resources will be required to oversee the applicant's custody while he is in Bourke. His transfer to Bourke Police Station will result in the need to have a dedicated custody manager on shift for the duration of the applicant's stay. This will result in one less officer able to respond to incidents within Bourke and other sectors. If the applicant appears in-person, two officers will be required to escort him and remain on each side of the dock in Court for the duration of the proceedings. This will be a significant burden on police resources locally.
15. In all the circumstances of this particular case, I am persuaded that the statutory presumption that the applicant appear by AVL, is not displaced. Accordingly, I make the following orders: 1. Pursuant to s 20F of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the direction that Kenneth Knight appear in-person at the Supreme Court of New South Wales at Bourke for Sentence on 30 March 2023 and 31 March 2023 is revoked; and 2. A warrant is issued for Kenneth Knight's appearance at the Supreme Court of New South Wales at Bourke for Sentence on 30 March 2023 and 31 March 2023 by way of audio-visual link in accordance with s 5BB(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

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