R v Lupton

Objective circumstances of the crime

1. The background circumstances leading up to the night on which Hady Jaouhara was stabbed were not significantly controversial in the trials of the offender. They may be summarised from the Statement of Agreed Facts that has now been adopted by both parties for the purpose of sentencing. The offender was born on 22 June 1991 and was therefore 30 years old when the deceased was killed. Sherie O'Neill is approximately the same age. The two of them were boyfriend and girlfriend from their early teens. When they were both aged 19 years Ms O'Neill gave birth to their daughter, to whom I will refer to as AO. Subsequently Ms O'Neill's relationship with the offender came to an end and from about 2014 she formed a relationship with another man, JS, with whom she had two more children. Sherie O'Neill separated from JS in about October 2019 and he retained custody of their two children. From that time Sherie O'Neill and her daughter, AO, resided at Susan O'Neill's house at 20 Magellan Avenue. Sherie O'Neill and the offender endeavoured to recommence their relationship but it was unstable and quarrelsome in late 2019 and early 2020.
2. Susan O'Neill was a long-term user of methamphetamine. In early 2020 that drug was frequently used at her house by herself, Sherie, Melissa Blair, Mr Bayes and visitors to the property. The deceased was introduced to the household in about December 2019 as a friend of Mr Bayes. He also used methamphetamine. The offender frequently visited 20 Magellan Avenue during the first two months of 2020 to see Sherie and his daughter. He supplied methamphetamine and cannabis to the occupants of the house and to many others.
3. In January 2020 the deceased revealed an interest in Sherie O'Neill by storing her mobile number on his own phone against the entry "Sherie Beauty". She became aware of this and told the offender. That may have been the cause of an incident in early February 2020 when the offender encountered the deceased sitting in his parked motor vehicle near 20 Magellan Avenue. The offender punched the deceased to the side of his head through the driver's window and took the ignition keys. He later scratched the word "dog" on the bonnet of the deceased's vehicle.
4. In about January or early February 2020 the offender on one occasion found Mr Bayes and the deceased smoking methamphetamine in the lounge room. He berated them for exposing his daughter to this activity. AO was by this time nine years old. Mr Blake Mooney was a friend of both Mr Bayes and the deceased. On 10 February 2020 the offender sent Mr Mooney an angry message threatening to "stab the fuck outta" him and his friends unless they ceased "hanging around my daughter's house". The offender's aggravation concerning the part of the house in which drugs were consumed and about the exposure of his daughter to drug abuse was futile. Every adult resident of the place was a long-term heavy user of methamphetamine, as the offender was himself, and he was their substantial supplier
5. During the late afternoon of 23 February 2020 Sherie O'Neill and AO were absent from 20 Magellan Avenue. The offender smoked methamphetamine at the house and then slept in the bedroom that was usually occupied by Sherie and AO. At approximately 8:30pm Sherie O'Neill arrived home and tried to wake him. She was initially unsuccessful but eventually the offender woke and the two of them resumed a heated argument that they had commenced earlier in the day. At approximately 11:19pm the offender left the property on his motorcycle. At approximately 11:20pm the deceased arrived there in his car with Mr Bayes as passenger.
6. Sherie O'Neill remained at the house and put AO to bed. At 11:32pm she drove to a house nearby to collect her phone. She had left it there earlier in the evening. The offender returned to 20 Magellan Avenue about two minutes after Sherie had departed, driven by one of his drug customers. The driver waited in his vehicle, parked on the Avenue, while the offender went onto the property to retrieve a set of keys that he had left behind. The offender walked down a driveway at the left-hand side of the house to a shed in the back yard where he thought his keys may have been in a padlock securing the door.
7. In both trials there was a divergence between the Crown's witnesses and the offender as to what occurred next. In each trial the offender gave substantially consistent evidence. According to him, he did not find his keys in the padlock of the shed and he therefore walked back along the side of the house towards the Avenue without having encountered any other person up to that time. He entered the house and saw Mr Bayes seated on a lounge in the living room with a methamphetamine pipe in his hand and the deceased sitting beside him. The offender said to them: What the fuck do you think you're doing? We've already pretty much spoke about this. You have a bedroom, laundry to go to. Why don't you smoke in there? Mr Bayes replied: What are you even doing here, you got told to fuck off.
8. The offender said that Mr Bayes put the pipe on the coffee table in front of him. The offender moved to pick it up and Mr Bayes seized him by the hair at the back of his head, punched him to the face and pulled him onto the lounge on his back. The deceased stood next to the lounge and leaned over its arm rest to punch the offender. Mr Bayes then attempted to stomp on or kick the offender. Although the offender covered his head and face with his arms to protect himself some of the deceased's blows connected with the top of his head and the side of his face. The offender was able to seize Mr Bayes' ankle and then kick him, causing him to fall backwards onto the floor.
9. The deceased continued attempting to punch the offender who then picked up a knife that was on the coffee table and swung it towards the deceased. Mr Bayes got up from the floor and attempted to punch the offender, who swung the knife back and forth towards both Mr Bayes and the deceased. The deceased then stepped out of the living room, through the kitchen and laundry towards the back yard while Mr Bayes left the living room through the main entrance to the house, onto the driveway at the left-hand side. The offender said that he also went out through the main entrance. He walked into the back yard and there found the deceased crouched down. Upon approaching him and telling him to get up he noticed that the deceased had blood on his hand. He then heard his daughter crying inside the house and went in to comfort her. He left the property shortly afterwards, in the car in which he had arrived.
10. In both trials the Crown led evidence from Sherie O'Neill and Mr Bayes from which it asked the jury to find that the stabbing occurred in the back yard, in quite different circumstance from those described by the offender, not involving any physical conflict that could have raised the issue of self-defence. However, in the Statement of Agreed Facts adopted by the Crown when it accepted the plea to manslaughter, the offender's version of circumstances immediately surrounding the stabbing has been accepted. That is the factual basis upon which the Court must assess the objective gravity of the offence for the purposes of sentencing.
11. Par 27 of the Statement of Agreed Facts is as follows: 27 By his plea, the offender accepts that he deliberately inflicted the fatal stab wound to [the deceased's] chest and that he did so because he believed it was necessary for him to inflict a wound upon [the deceased] in order to defend himself against [the deceased], but that it was not a reasonable response to the circumstances that he perceived as necessitating that he defend himself.
12. The forensic pathologist who gave evidence in the second trial said that the force required to deliver the fatal knife blow is very difficult to estimate because it would depend in part upon the sharpness of the blade and whether the deceased was moving or falling towards the offender when the knife was used. The sharpness of the blade is not known because the knife has not been recovered. As an approximation the pathologist said that the force would be similar to that required to slam a door. The knife entered the deceased's body at a location about 100 mm below the base of his neck and 10 mm to the right of the midline of his chest. It penetrated horizontally from front to back, through the cartilage of a rib at its connection with the sternum. The knife passed through the upper lobe of the right lung and was thrust to sufficient depth to reach the pericardial sac, somewhere between 30 and 100 mm below the skin. The knife transected the right internal mammary (or thoracic) artery. The deceased died as a result of blood loss from the severed artery.
13. It is implicit in par 27 of the Statement of Agreed Facts that the offender admits the infliction of the knife wound was accompanied by intent to cause grievous bodily harm. Upon the agreed facts, I am readily satisfied beyond reasonable doubt that grievous bodily harm was intended. A deliberate knife thrust to the upper chest of another person, with sufficient force to pass through the cartilage of a rib and to penetrate to the vicinity of the heart, lungs and large blood vessels, would in many cases support an inference of intent to cause grievous bodily harm. There is no qualifying circumstance in the present case that would stand in the way of the inference.
14. By proceeding upon the basis of the Statement of Agreed Facts the Crown accepts that the offender did not have the knife on his person at the commencement of the altercation. The Crown accepts that he took it up spontaneously and opportunistically from the coffee table.
15. Because the Crown accepted the plea to manslaughter on the basis of the Statement of Agreed Facts, the offender's conduct in stabbing the deceased with intent to inflict grievous bodily harm must be taken to have been "not a reasonable response in the circumstances as he [perceived] them", although he "[believed his] conduct [was] necessary to defend himself" (s 421(1)(c) of the Crimes Act 1900 (NSW)). The objective seriousness of the offending is affected by the degree to which the stabbing exceeded a reasonable response. In order to determine that, the Court is required to make a finding as to precisely what circumstances of threat offender, subjectively, perceived: Smith v R [2015] NSWCCA 193 at [44]. Neither the Statement of Agreed Facts nor the offender's evidence on sentence provide any elaboration beyond the following: He believed it was necessary for him to inflict a wound upon Mr Jaouhara in order to defend himself against Mr Jaouhara.
16. I am satisfied beyond reasonable doubt that the offender did not perceive any greater threat to himself than the infliction of bruising or abrasions from blows delivered with fists or by kicking. He described attempts to stomp on him but his account of the conflict, at trial and as summarised in the Agreed Statement of Facts, includes only a few punches and kicks that landed and there is no description of any phase of the conflict in which stomping actually occurred or in which either of the assailants got to a position where that form of striking may have been carried out. The offender has not claimed that he thought either of his assailants was armed with any sort of weapon.
17. I take into account that the deceased was slightly built, at 178 cm tall and 72 kg body weight. The evidence did not disclose corresponding measures for Mr Bayes but I was able to observe him in court and there was no evidence that his physical condition had changed significantly over the two and a half years that had intervened since the incident. Mr Bayes appeared to be in his 30s, somewhat ravaged in appearance by his extensive use of methamphetamine, of slight build and also approximately 178 cm tall. The offender himself is not of large or particularly muscular build but given the physical characteristics of Mr Bayes and the deceased I am satisfied that even in combination they would not have been perceived by him as constituting a very frightening threat, or as capable of causing him any more harm than bruising or abrasions. The offender had seen both of his attackers on numerous previous occasions and their physical proportions well known to him.
18. My conclusion as to the degree of threat that the offender perceived is also affected by his past experience of the assailants. The incident when the offender punched the deceased to the head through the window of his car occurred within about two weeks before the homicide. The offender evidently felt no fear of Mr Bayes and the deceased on that occasion, when both were present together and when the deceased's friend, Mr Mooney, was also present. Further, it was obvious to the offender that the deceased was passive in response to being severely assaulted and having his car keys taken from him. Hady Jaouhara simply walked away down the Avenue. Mr Bayes gave these answers in evidence to the jury at the second trial: A I seen him throw two punches through the window and it sounded like he connected with one of them. Q Did you see either of those to punches connect? A Not from where I was standing. Q So when Mr Lupton threw the two punches did you see what Hady did, if anything? A Hady was stunned and he was then told to get out of the car and leave and walk home and he did just that. Q […] Do you recall what words Jay said to him? A Not specifically. I just remember him saying to get out and walk. By this time the keys had been taken out of the ignition. Q Who took the keys out of the ignition? A Jay had taken the keys and told him to walk. Q […] Did Hady do anything to fight back at that time? A No he did not. Q Did you see him do anything at all with any part of his body? A No nothing.
19. The offender disputed some aspects of these events but I found Mr Bayes a credible witness and I am satisfied beyond reasonable doubt of the facts that I have recounted concerning this incident. When the deceased later found that the word "dog" had been scratched on the hood of his vehicle, which I am satisfied was done by the offender, the deceased did not attempt any physical retaliation, either alone or in concert with Mr Bayes.
20. The offender's text message to Mr Mooney on 10 February 2020 is another material event that occurred very shortly before the homicide. It followed soon after the offender had berated Mr Bayes and the deceased at 20 Magellan Avenue for smoking methamphetamine in the house. The offender evidently felt no fear of the capacity of Mr Bayes and the deceased for violent retaliation, such as might have restrained him from threatening to "stab the fuck outta" Mr Mooney and his friends, whom the offender knew included Mr Bayes and the deceased.
21. The offender's knowledge of the timidity displayed by the deceased on those recent prior occasions supports my conclusion, beyond reasonable doubt, that the offender perceived no greater risk to himself than superficial injury from punches and kicks. I am satisfied that the offender did not perceive any likelihood of the attack upon himself escalating or being sustained to the point of causing serious injury to himself, having regard to his knowledge of the lack of aggression on the part of both of his assailants in previous encounters.
22. It is inherent in the Statement of Agreed Facts that the defendant believed it was necessary for him to knife the deceased in the chest with intent to cause him grievous bodily harm, as a response to the blows by fists and feet from Mr Bayes and the deceased. As stated by Simpson JA in Smith v R at [56]: The reasonableness of the applicant's conduct was to be measured against the applicant's perception of the circumstances in which he found himself. A relevant and important sentencing question concerns the extent to which his conduct departed from what would have been a reasonable response had the circumstances been as he perceived them.
23. I am satisfied beyond reasonable doubt that the offender's conduct was unreasonable by a very great margin, relative to his perception of a threat that he might sustain bruises and abrasions from punches and kicks. One alternative was that he could have fought back in kind. He did so for a time. He had some success against Mr Bayes in that, from a position lying on the lounge, the offender was able to take hold of Mr Bayes' ankle and kick him to bring him to the floor. Further alternatives open to the offender would have been to continue shielding his head from the blows and/or to retreat from the assault through either of two doors that provided egress from house. Thrusting a knife into the part of the deceased's body containing his vital organs and major blood vessels was extremely disproportionate to the circumstances as the offender subjectively assessed them, on my finding.
24. The facts of R v Horton [2010] NSWSC 1007 provide a stark contrast that throws into relief the objective gravity of the manslaughter the present case. The offender in that case, Lucas Horton, met with the deceased at a deserted location to make a drug purchase. In the course of the transaction the deceased charged Lucas Horton with a knife and stabbed him to the right side of his chest and twice to the right trapezius region, near the shoulder. Lucas Horton believed, reasonably, that the deceased was trying to kill him. The knife became embedded in Lucas Horton's shoulder. He stepped back, pulled it out of his own flesh and used it to stab the deceased in the stomach. In contrast, the offender in the present case was not faced with a life threatening attack and did not perceive it as such. Nor did he perceive the attack as likely to escalate or to be prolonged. He had ample scope to defend himself in a limited fashion or to escape. Instead, he escalated the violence beyond reasonable measure, using a weapon in a manner that was self-evidently highly dangerous to life.

The offender's subjective case

1. The offender tendered the report of a psychologist, Ms Dombrowski, in which she recorded a history of his personal background based upon interview. The offender gave evidence on sentence and confirmed the factual accuracy of the report. He was not challenged concerning his personal history. The offender was raised by his mother and stepfather in a family with 10 siblings. The family had very limited means because neither parent worked. Their material circumstances were very sparse. The offender's stepfather was a heroin addict. He was routinely violent towards all members of the family. The offender says that he also suffered abuse, of a sexual nature, at the hands of three staff members in a youth detention centre when he was aged between 13 and 15 years.
2. The offender was violent and abusive towards other students and teachers at school. He was regularly suspended during his primary and secondary education. In years 8 and 9 he was enrolled at a school specifically for children with behavioural difficulties. His misconduct resulted in him being expelled from that school during year 9. Since leaving school he has only ever worked for five months, in the construction industry at age 17. That came to an end when he was first imprisoned. He expressed to the psychologist no aspiration for employment in the future and acknowledged that, when at liberty, he has been reliant upon criminal activity to support himself.
3. The offender has used illicit drugs since the age of 12, commencing with heroin and adding methamphetamine from the age of 15. He used a range of other drugs during his teens. He used methamphetamine in high quantities over the 10 years leading up to the commission of this offence. The offender has made some attempts to abstain from drugs from time to time and he has resorted to professional assistance with drug rehabilitation on occasions, unsuccessfully. He has now commenced on prescribed buprenorphine, an opiate substitute, and intends to undergo custody-based drug rehabilitation, which he would continue upon his release. That raises the possibility that the offender may yet address the drug intake that has been a significant factor in his criminal history, including the commission of this crime
4. The offender fell into criminal ways from his early teens. Between the ages of 14 and 18 he committed offences of robbery in company, shoplifting, being carried a motor vehicle taken without consent, common assault, possession of a prohibited weapon, destroying or damaging property and remaining on enclosed lands. For a robbery in company committed in June 2006, at age 15, the Children's Court placed him under a control order for six weeks. Otherwise, he appears to have been dealt with in that jurisdiction by way of supervised bonds. The offender's adult offending commenced with an assault occasioning actual bodily harm in December 2009, at age 18. That resulted in a sentence of 12 months with a non-parole period of 7 months. Thereafter throughout his 20s the offender served numerous sentences, with non-parole periods of up to 18 months, for further assaults occasioning actual bodily harm, for affray, numerous instances of aggravated breaking and entering, possession of stolen goods, dishonestly obtaining property by deception and entering enclosed lands. Up to 9 May 2019, aged just short of 28 years, the offender had spent a total of 4 ½ years in full-time custody. On one occasion, having been released to parole after 1 year and 5 months, his parole was revoked on account of a further offence.
5. That record disentitles the offender from leniency on the basis of past conduct. Further, from 9 May 2019 he was placed under a community correction order of 2 years for an offence of dishonestly obtaining property by deception. For three other offences of a similar kind, an intensive correction order of 8 months duration was imposed, also on 9 May 2019. The community correction order was still in force at the time of the manslaughter and the intensive correction order had expired only six weeks earlier.
6. The offender has never been diagnosed with a psychiatric condition but Ms Dombrowski found that he exhibits "emotional and behavioural dysfunction", including a sense of demoralisation and self-doubt with a lack of positive emotional experiences and "anger proneness". Realistically, Ms Dombrowski linked the offender's behavioural dysregulation at the time of the offence to his high rate of usage of illicit substances. She said this: The disturbances to his behavioural functioning are underpinned by substance use, and use of aggression.
7. Ms Dombrowski made the following summation: He was using methyl amphetamine heavily, and heroin and non-prescribed benzodiazepine regularly leading up to and including the day of the subject offence. His substance use very likely impaired his decision-making and judgment (and disinhibited his behaviour) at that time. […] He has used substances […] to manage negative thoughts and feelings associated with his experiences of neglect and abuse (physical and sexual). However, his substance abuse has further undermined the quality of his psychosocial functioning and his ability to regulate and manage his emotions and behaviour.
8. It can readily be accepted that the offender's judgment and self-control were impaired at the time of the offence, by the cumulative effect of years of methamphetamine abuse and his high consumption of the drug on the day in question - 5 grams. That does not mitigate the gravity of his offending. On the other hand, the offender is undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing.
9. At trial the offender claimed that while he swung the knife towards Mr Bayes and the deceased, he was not conscious of having inflicted any wound. He maintained that assertion in his interview with Ms Dombrowski. Even in his evidence on sentence the offender did not squarely acknowledge having made the knife thrust. The deliberate stabbing is, however, admitted in the Statement of Agreed Facts. Notwithstanding the offender's prevarications about this, I will sentence on the basis that he has accepted responsibility for his act. I also accept that he has expressed genuine remorse, both in his evidence on sentence, in his interview with the psychologist and in conversations with his mother, who provided a letter to the Court.
10. I have grave reservations about the offender's prospects of rehabilitation. His acceptance of responsibility for having taken a young man's life is a significant step towards self-restraint against violence, particularly with weapons, in the future. He expressed to the psychologist a lack of interest in pursuing gainful, constructive employment. In evidence during the sentence proceedings he said that he does wish to "get a job, be a normal person" when released. Unfortunately the offender has become habituated to living off others by criminal activity. Up until now his entrenchment in that mode of life has been reinforced by negative, conflictual and aggressive attitudes to everyone around him. A very significant personal upheaval will have to be undertaken for him to avoid returning to crime, of some form or other, after he has served his sentence. Reoffending and reincarceration within 6-10 months has been the pattern of the offender's life for more than a decade. It is to be hoped that he can now break the cycle but, from the present standpoint, that is an uncertain prospect.
11. The offender's counsel has urged me to find special circumstances and to reduce the ratio of the non-parole period to the head sentence in the term that is now to be imposed. However, I am not satisfied of special circumstances. In the sentence that I will fix there will be a reasonably substantial period for which the offender may be released on parole if he can satisfy the State Parole Authority of his good behaviour in custody. The sentence to be imposed will give scope for a sufficient period of parole under supervision, to enable Community Corrections officers to do their best to reintegrate the offender into the community and to set him upon a path to a constructive future.

Orders

1. The first two months of the offender's custody following his arrest are attributable to a sentence passed on 20 November 2020 for possession of a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). The weapon in question is not said to have been the knife used to stab the deceased. It follows that the offence against the Weapons Prohibition Act was unrelated to and not comprehended in the manslaughter. Accordingly, I consider that the offender's sentence for manslaughter should date from expiry of the two months fixed term that was imposed for the lesser offence.
2. The offender is informed that on completion of his sentence the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) will apply to him.
3. For the manslaughter of Hady Jaouhara at Lethbridge Park on 23 February 2020 the offender is sentenced to imprisonment for a term of 9 years commencing on 7 May 2020 and expiring on 6 May 2029 with a non-parole period of 6 years and 9 months expiring on 6 February 2027. The offender will first be eligible to be released on parole on 6 February 2027.

Addendum

1. These remarks were delivered orally. On review of the written form it is noted that my reasons for not finding special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act are not fully expressed. The offender sought such a finding on the basis of a combination of his drug addiction, his need for rehabilitation, his risk of institutionalisation and his experience of restrictive remand conditions due to Covid-19. The first two of these matters are general sentencing considerations that have no special significance for the ratio of the non-parole period. As for institutionalisation, I do not find the offender to be at risk. His past terms of imprisonment have not been continuous. On his own evidence he is not at the point of resigning himself to a future in prison. Covid-19 restrictions during at least two years of the offender's remand would have made that portion of his sentence in some degree more burdensome than it otherwise would have been, but not to a significant extent in his case. I am not satisfied that the lack of access to prison programs during that period has been a significant deprivation, as the offender's interest in such programs has not been expressed until recently. Unavailability of face-to-face visits would have had no more than a modest effect upon the offender in view of his lack of significant prosocial connections even when in the community.

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