R v Laures [2003] NSWSC 785 | Case summary

SENTENCE 1 HIS HONOUR: On the presentation of an indictment on 28 July last before this Court, the prisoner Andre Albert Laures pleaded not guilty to the crime of murder but guilty to the crime of manslaughter. The Crown accepted the plea of guilty to manslaughter in satisfaction of the indictment and the prisoner is convicted of that crime. The plea having been entered on 28 July last, the Crown presented evidence relevant to the crime. That evidence was all in documentary form and is contained in binders marked Exhibits A and B. No oral evidence was introduced. The prisoner tendered a medical report prepared by Dr Westmore after his assessment of the prisoner at Silverwater on 30 June 2003. 2 Having received evidence and having heard submissions on sentence, I remanded the prisoner in custody to be sentenced on a date to be fixed, and the prisoner is accordingly before me today for sentence. 3 The material tendered by the Crown included a statement of facts upon the basis of which the Crown accepted the prisoner's plea of guilty to the crime of manslaughter. There was no challenge to the content of the statement, and I act upon it. I am satisfied from my own reading of all the exhibited material as to the accuracy of that statement of facts prepared by the Crown. 4 The deceased died from a stab wound inflicted by the prisoner. It is the contention of the Crown, and I so find, that the act of stabbing was a deliberate and voluntary act committed by the prisoner, but it was an act committed without the intention requisite to establish the crime of murder. It is the further contention of the Crown that the stabbing constituted an unlawful and dangerous act, and I also find this to have been so. Hence it is appropriate that I sentence, and I will proceed to sentence the prisoner, upon the basis that he committed the crime of manslaughter by unlawful and dangerous act. 5 This crime was committed on the night of Thursday 11 July 2002 outside premises at 1 Savage Street, Lawson. The prisoner's victim was his de facto wife and the prisoner had been in a relationship with the deceased for approximately four or five years. The home at Savage Street had been acquired by the couple in the name of the deceased and they commenced to occupy that home in about December 2001. 6 At the time of the commission of the crime the prisoner was sixty years of age, having been born on 24 February 1943. The deceased was then fifty-three years old. Whilst the relationship had endured for four to five years it had been an unsettled one and there had been a number of break-ups. The evidence, including the evidence of two daughters of the deceased who were obviously very close to their mother, satisfies me that the deceased had decided by July 2002 to terminate the relationship and that by that time the relationship had indeed broken down. The prisoner suspected the deceased was involved in a relationship with another man, and he was concerned that contrary to his wishes he would have to move from the Lawson home once separation occurred. On the night he committed this crime the prisoner was annoyed at the presence of three guests in the home who were present at the invitation of the deceased. I am satisfied it was the prisoner's behaviour that influenced those guests to leave the premises shortly before the stabbing took place. 7 The prisoner had been drinking alcohol over a period prior to the commission of the offence. I do not find this to be an aggravating factor or a mitigating factor, although it is possible that its consumption fuelled the prisoner's ill temper. After the guests left, the deceased argued with the prisoner. It is accepted that the prisoner was angry and upset and I find that he picked up a knife from a knife block in the kitchen and carried it outside the house stating it to be his intention to use it upon himself. The deceased followed the prisoner outside the house and it was in the front yard that the fatal stabbing occurred. The prisoner gave no account before this Court as to how he happened to stab the deceased, and he has given no satisfactory account as to this to the police. 8 The knife used by the prisoner was a black plastic handled knife with a blade that was twelve centimetres long and two centimetres wide at its widest point. The knife penetrated the clothing being worn by the deceased and the post mortem examination established that the knife penetrated the body of the deceased at a point above and medial to the left nipple. The knife passed through the rib cage, cutting through intercostal muscle, and extending through the anterior wall of the pericardium. The wounding was associated with extensive mediastinal connective tissue haemorrhage. According to the post mortem report, the estimated depth of the wound from skin to termination was between six to eight centimetres, although it was not possible to identify the precise termination point. What is clear is that this one wound was anything but superficial, and that it penetrated the heart, causing death by blood loss. 9 Having stabbed the deceased, the prisoner tried to assist her and at some time obtained folded clean clothes from the house which he brought outside with the apparent intention of placing them over the wound he had caused. He also called 000 for help, thus summoning the ambulance. The deceased passed away shortly after her admission to the Blue Mountains Anzac Memorial Hospital, to which the deceased was taken directly by the ambulance officers who attended her at Savage Street, Lawson. 10 After the deceased had been taken away from the home, the prisoner stabbed himself, and he too was taken to hospital where he was admitted for treatment. 11 Mr Toner submitted that objectively this crime ought to be regarded as being towards the lower end of the range of culpability. I have given that submission close attention but I do not accept it having regard to the prisoner's behaviour in taking possession of the knife and the use to which he subsequently put it. The Court of Criminal Appeal has repeatedly stressed the seriousness with which the use of a knife as a weapon ought to be regarded by the courts, and whilst the prisoner took possession of the knife for the stated purpose of using it on himself, there is nothing in the evidence tending to reduce the gravity of its use upon the deceased or to indicate that the deceased was other than defenceless when attacked. 12 Dr Westmore identified three significant stressors upon the prisoner. These were that the deceased had told him that the relationship had ended, that he suspected that the deceased was having an affair and, thirdly, the deceased was threatening to sell the house at Lawson. 13 Whilst those stressors identified by Dr Westmore may well have been factors contributing to some extent to the prisoner's behaviour in the use of the knife, they certainly do not afford a satisfactory explanation for his conduct and they do not tend in any way to excuse that unlawful and dangerous conduct which caused the death of the deceased. Nor do these factors lower the objective gravity of the offence. 14 In R v McDonald (unreported, NSWCCA, 12 December 1995) it was said in the joint judgment of the court: "Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402). The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 15 It is very important that what was said in McDonald as to the value and protection of human life should be given continuing emphasis. It is my task to determine upon a sentence which pays due regard to the objective seriousness of this crime as I assess that seriousness to be, heeding all the relevant circumstances. 16 It is also of course necessary that I properly weigh the subjective features emerging from the consideration of the evidence. To that task I now turn. 17 The prisoner has no prior criminal record. He was born in France and grew up there. After leaving school he became an apprentice to an auto electrician, and he later worked as a technician with a home appliance company. He came to Australia in 1970 and has lived in this country since that time. His first marriage ended in divorce when the prisoner was approximately twenty-nine years of age and there was one son of that marriage with whom the prisoner has kept in contact. After his divorce the prisoner had a de facto relationship with another woman that lasted for twenty-three years and there were two children of that union. I infer from statements which those two children gave to the police that each of them has a loving and supporting relationship with the prisoner. 18 It would seem that the prisoner had regular work in Australia and, indeed, that he was operating a cleaning business for some years prior to the commission of this crime. 19 I have drawn to some extent in recording the above matters of history upon what Dr Westmore recorded by way of history in his report of 4 July 2003. The prisoner gave no evidence before the Court. The prisoner did tell Dr Westmore that he had a prostate operation and was subsequently impotent. The operation and the impotence occurred after the relationship with the deceased had begun. The prisoner also told Dr Westmore that he was diagnosed with diabetes some six years ago. The Crown does not challenge those matters of history and I accept them. Whilst the evidence does not really address this, I am prepared to accept that the prisoner's health problems will add to the burden of his imprisonment. 20 The Court was informed that it was only days before the prisoner's trial was about to commence that the Crown first indicated that it would be prepared to accept a plea of guilty to manslaughter. Mr Toner submitted that the Court should accept that the plea of guilty to manslaughter, although offered only on the morning his trial was due to commence, with a jury panel in waiting, was, in the circumstances, offered at the first available opportunity. This submission was not disputed by the Crown and, accordingly, although the plea was late in point of time and hence of reduced utility in consequence, I accept Mr Toner's submission. 21 The case against the prisoner was, in my assessment on the material tendered, a formidable one. Dr Westmore's report adverts to the possibility of a defence of substantial impairment being established but the Crown informed the Court the raising of this possible defence did not influence its decision to accept the plea offered. The evidence that it was the prisoner who had stabbed the deceased was extremely formidable. This fact was never challenged by the prisoner who made many admissions, the first of which was to the attending ambulance officers. The plea offered by the prisoner and accepted by the Crown acknowledged the strength of the Crown case on manslaughter and eliminated the risk that would otherwise have existed that a jury might have found that he acted with the intent requisite to establish the crime of murder. 22 Nevertheless (as s 22 of the Crimes (Sentencing Procedure) Act now provides), the prisoner is entitled to consideration for the utilitarian value of his plea and in this respect it is to be noted that the Court had been informed that the trial would have occupied a period of over three weeks. The need to call many witnesses was avoided. I have regard to what was said in the guideline judgment in R v Thomson (2000) 49 NSWLR 383, especially at paras 152-162, and it seems to me in the circumstances, allowing for his plea, that the prisoner should have a discount on the sentence that would otherwise have been appropriate in the middle of the range expressed in Thomson. 23 The evidence persuades me that the prisoner is contrite and, indeed, the steps he took in arranging for the ambulance afforded early evidence of contrition. I also take this factor into account in the sentence I impose. 24 Mr Toner submitted that I should find special circumstances in this case having regard to the following matters:

(iii) the circumstance that the prisoner has not been in custody before. 25 In R v Phelan (1993) 66 A Crim R 446 Hunt CJ at CL said at 449-450: "'Special' does not necessarily mean 'unusual', but it does mean something more than merely a subjective feature of the case. What does constitute a matter as a special circumstance…is its production of the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole…the starting point is the need or the desirability of a longer than usual [parole period] not the need or the desirability for a shorter than usual [non parole period]." 26 Are there circumstances in this case that warrant a longer than usual parole period compared with the non parole period? 27 I consider that there are. In my view the prisoner's rehabilitation prospects are favourable, but he has not been in prison before and, having regard to this, coupled with his age, it seems to me he is going to need an extended period of supervision to help him to make the necessary adjustment on return to society. I find then that there are special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act. 28 What then is the appropriate sentence in this case? 29 It must be recognised that the variety of circumstances in which the crime of manslaughter can be committed are such that it is difficult to derive guidance from other sentences for manslaughter and hence from available sentencing statistics. This has been repeatedly emphasised in decisions of the Court of Criminal Appeal and by sentencing judges. For instance, in R v Blacklidge (unreported, NSWCCA, 12 December 1995) Gleeson CJ said: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 30 I have in this case nevertheless considered sentences imposed in other cases and I have also given consideration to available sentencing statistics. In doing so I have, of course, recognised the limitations on the usefulness of this exercise by reason of the considerations stressed by Gleeson CJ in Blacklidge. The Crown drew my attention to the cases of R v Sherry [2000] NSWCCA 35; R v Dalley (2000) 115 A Crim R 582; R v Bryant [1999] NSWCCA 181; R v Chami [1999] NSWSC 1268; R v Horton [1999] NSWSC 983; R v Bollen (unreported, NSWCCA, 25 March 1998); R v SMP [1999] NSWCCA 318; R v Moore (unreported, NSWCCA, 16 June 1998); R v Owen (unreported, NSWCCA, 5 June 1997); R v McDonald (supra) and R v Taouk (unreported, NSWCCA, 20 March 1992). In each of these cases the offender was sentenced for a crime of manslaughter that involved the use of a knife. Whilst I have considered these cases, I have decided it would not be useful to review any of them here in detail, depending so much as each of them does upon its own particular facts. The sentences imposed ranged from a head sentence of four years six months with a minimum term of three years four months in Bollen to a head sentence of ten years with a minimum term of six years six months in Bryant. 31 The sentencing statistics provided by the Judicial Commission were based on 110 cases in each of which there was a plea of guilty. According to these statistics, the head sentences were four years and under in fifteen cases, between five and seven years in forty-six cases, between eight and twelve years in forty-six cases, and there were three cases where the head sentences exceeded twelve years. 32 Ultimately, I do not find I am greatly assisted by review of the cases to which I have referred because of the need to focus on the particular features of the present case. Earlier I expressed my rejection of the submission that this case should be regarded as being towards the lower end of the range of culpability in cases of manslaughter. Whilst I do not find this crime was premeditated, the act was a dangerous and deliberate one, employing a knife, and I regard this crime as grave, viewing it objectively. 33 In the sentence I fix I must make due allowance for all the purposes of sentencing. In Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476 Mason CJ, Brennan, Dawson and Toohey JJ said: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others in determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 34 The purposes of sentencing have now been identified by statute in the Crimes (Sentencing Procedure) Act 1999 (see s 3A which came into operation on 1 February 2003). 35 As I trust is apparent from the above remarks on sentence, I have had regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 in determining what I perceive to be the appropriate sentence for this crime. 36 Because this crime was committed before the repeal of s 44 of the Crimes (Sentencing Procedure) Act took effect, the repealed section applies in this case and requires me firstly to set the term of the sentence and secondly to set a non parole period. In setting the term of the sentence I will backdate it to commence on 12 July 2002. The prisoner was taken into custody on that date, and has remained in custody continually since then. 37 I sentence the prisoner to a term of imprisonment of eight years, commencing on 12 July 2002. I set a non parole period of five years, expiring on 11 July 2007. I therefore specify 11 July 2007 as being the earliest date upon which the prisoner will be eligible to be released upon parole. **********

R v Laures

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