R v Lynch

R v Lynch - [2010] NSWSC 952 - NSWSC 2010 case summary — Zoe

[21]

Racheal BARTON walked out of the house and onto the middle of the road and said to the deceased "Oh Fuck off, no one hit you in the head". The deceased refused to leave. After some time the offender came out of the house. The offender, Racheal BARTON and the deceased started arguing. A short time later two more men come (sic) out of the house. Those persons were Jamie COOK and Damien MURPHY. The deceased started to 'shape up' to Damien Murphy. Damien punched the deceased and then the deceased went to push Damien. The deceased had his shirt off and tied around his neck and was engaged in a verbal argument with Damien, all the while adopting a "boxing stance". Racheal BARTON and the three males came up to the deceased and the group were 'in each others face'. The deceased was walking backwards in a fighting stance with his fists up in a boxing style. The deceased was laughing at Racheal BARTON and the three males. The deceased said "Is that all you can do?" The group was making its way down Ocean Avenue towards Fourth Street. The deceased was backing away in a fighting stance all the way. They were arguing while heading towards Fourth Street. Mr. ROWSELL recalled the deceased continuing to laugh at the four as they went along the road. The group got to the corner of Ocean Avenue and Fourth Avenue. Mr. ROWSELL saw a physical confrontation between the males and the deceased at the corner. The incident continued around the corner and out of sight. After the group turned the corner the deceased and the offender were telling each other to "Fuck off" and Racheal BARTON was screaming for them to stop. Racheal BARTON jumped in front of the offender and the deceased pushed her out of the way. The offender became very angry about that and started pushing the deceased around and saying "What did you touch my missus for? Leave my missus alone, she's done nothin', fuck off". The offender and the deceased were swinging punches at each other. The offender and the deceased were wrestling and grabbing each other. It was during this altercation that the offender took hold of his knife that was on his person. The knife was clipped to his shorts and was a knife he used at work to cut plastic ties. He swung the knife at the deceased. The offender's action caused a superficial laceration to the back of the deceased's neck. During the altercation the deceased suffered a more serious wound to the stomach that caused his death. The offender was heard to say "Fuck, I've just stabbed him". The deceased was seen walking away from the offender and the other persons still shouting out abuse. Jamie COOK saw blood on the top of the deceased's collar bone and blood in the lower abdominal area. The offender turned and started to run. COOK, Racheal BARTON and Damien MURPHY followed.

[24]

"There was a stab wound to the left side of the abdomen. The inner aspect of the wound terminated in two sharp cuts and the outer aspect was blunt. This suggested the weapon used was an instrument such as a single sided knife with a sharp edge and a blunt edge. This weapon would have caused the wound with the sharp edge innermost and the blunt edge outermost. There has been some slight movement of the sharp edge of the weapon during an in-and-out thrust to create the two sharp cuts. The wound tract was approximately 120mm in length and the direction was from front to back, left to right ad (sic) upward. In its course the track passed through the abdominal wall, the base of the small bowel mesentery into the retroperitoneal space to terminate in the medial wall of the vena cava. This has resulted in a significant acute blood loss into both the retroperitoneal space and abdominal cavity. Such blood loss as occurred in this case, would, over a few minutes lead to hypovolaemic shock, a decreasing level of consciousness and death." 5 The deceased was a young man, 21 years of age. He was in a defacto relationship with Rebecca Irvine and they had an extremely young family. The Court received a victim impact statement from Ms Irvine, read by her sister, Ms Kylie Booth. The grief and the loss experienced by the loved ones of the deceased is recognised but I must have regard to the decisions given as to the effect of victim impact statements in R v Previtera (1997) 94 ACR 76 and R v Bollen (1998) 99 ACR 510. 6 The Crown presented an indictment charging the offender with the crime of murder. However it accepted the offender's plea of guilty to manslaughter in full discharge of the crime charged in the indictment on the basis that the offender's conduct in killing the deceased was committed under provocation. 7 The Crown does not submit that the offender should be found to have acted with intent to kill, but rather with intent to cause grievous bodily harm. I accept the Crown's submission. The evidence does not lead me to be satisfied beyond reasonable doubt that the offender acted with intent to kill, but I am satisfied beyond reasonable doubt that he acted with intent to cause grievous bodily harm. The offender's conduct and the harm occasioned by him compels that conclusion. 8 The Crown submitted that the objective criminality of this crime is in the mid range for manslaughter on the basis of provocation. Ms Yehia submitted that the culpability of the offender is at the lower level of seriousness for manslaughter on the basis of provocation. His culpability was also reduced, it was submitted, because there was an element of excessive self defence in what he did. 9 In his often cited judgment in R v Alexander (1994) 78 ACR 141 Hunt CJ at CL identified three issues necessarily to be assessed when sentencing in provocation manslaughter cases. What his Honour said at 144 was the following:

[38]

The degree of violence by the offender 14 The offender used his knife to inflict fatal wounding. Having stabbed the deceased in the back of the neck, the offender only stabbed the deceased once in the abdomen, but the severity and gravity of the wound is well described in the passage in the report of Dr Lyons which I set out earlier in these sentencing remarks. However I must bear in mind that this was not a prolonged knife attacked in which many abdominal stab wounds were inflicted. 15 I must carefully weigh the issues identified in Alexander as reviewed in my assessment of the objective gravity of this crime of manslaughter. 16 The offence of manslaughter involves the unlawful taking of human life, and as such it has always been regarded as a most serious offence. See R v Hill (1981) 3 ACR 397 per Street CJ at 402 and R v McDonald (NSWCCA, unreported, 12 December 2005). In R v Morabito (1992) 62 ACR 82 at 85 Wood J, as he then was, referred to the fact that manslaughter, even when committed after a prolonged period of provocation, was to be regarded as a major crime calling for a "grave measure of criminal justice". See also R v Mohamad Ali [2005] NSWSC 334 at [58]. 17 Objectively viewed the offence committed by the offender was a serious one indeed. 18 Before considering the requirements of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) I review the subjective features as emerged on the hearing. 19 The offender was born on 14 March 1985. He comes from an unfortunate background in that his parents separated when he was five or six years of age and it was the offender's perception that his father had been violent to his mother. As a young child he remembers being with his mother and his sister when the father's body was discovered in the flat where he had been living and his father had died a violent death. 20 The offender had the support of his grandparents. He attended high school and achieved his school certificate before enrolling in Manufacturing/Engineering at TAFE. He did not complete this course. The relationship with Ms Barton began when he was 16 years of age. The offender lived for a period in Sydney but then in 2006 moved to the North Coast and settled in Stuarts Point. Here the offender obtained work at the Yarrahapinni Nursery. He was a nursery hand with this employer from September 2006 until November 2007 performing a range of nursery tasks. Ms Dobson, the managing director of the nursery company presented to the Court a glowing reference of the offender and Ms Dobson also attended Court and gave some evidence. Ms Dobson spoke very favourably of the offender and expressed her ongoing willingness to support him when he has served the sentence inevitably to be imposed. The offender left the nursery to work in the concrete industry. He worked on the Bonville Bypass as a concreter, form worker and steel fixer, and then obtained work with Australian Precast Solutions in Macksville where he was working until the time he committed this offence. 21 A significant number of favourable testimonials have been provided to the Court: one from his uncle, Peter David Lynch; one from Stuarts Point carpenter Steven Smith; one from a former employer Colin Leibe; one from a former workmate Keith Megson; one from Stewart Young and Mark Ngo for whom the offender is presently working in the engineering workshop at Parklea Correctional Centre; finally, one from his TAFE teacher Brian Sheekey who has stated that the offender is enrolled in the Certificate III course in Engineering Fabrication Trade. Mr Sheekey reports that the offender is following instructions and shows great enthusiasm and skill towards each task. 22 Anita Duffy, psychologist, assessed the offender on 31 August 2010 and provided a report on 2 September 2010. I have drawn on Ms Duffy's report as well as the offender's affidavit in setting out the back ground pertaining to the offender. Ms Duffy conducted an assessment and following this in the opinion expressed said inter alia:

[40]

Brendon's intelligence test assessment reveals above average abilities and the potential for higher level education and training towards more skilled employment. He should be encouraged to undertake education programmes while in gaol including computers, and has already completed seven modules of his manufacturing engineering certificate course. It would be to his benefit if he were able to return to a gaol closer to his family and continue to work and obtain educational qualifications. He should also undertake more comprehensive alcohol programme to prevent relapse in the future. This can be continued in the community through supervision by the Probation and Parole Service." 23 The offender has no noteworthy criminal history. He was fined in relation to a property damage offence nearly 6 years ago. He was fined and disqualified for a period of 4 months for a low range PCA offence some 5 years ago. 24 This brings me to consider matters arising under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 25 The Crown submitted and Ms Yehia acknowledged that the use of the knife in the commission of this crime was an aggravating factor. The offender gave evidence that he always carried the knife used to stab the deceased. He used it at work frequently and he carried it on social occasions. It had a clip device with which he affixed it to his shorts. On the night this crime was committed, he had gone home after work, had showered, and in dressing clipped the knife back on his shorts. Its use on social occasions was to perform "shotgunning". The offender described this activity as using the knife to puncture a can containing alcohol, so that the alcohol left the can faster and thus expedition in drinking was facilitated. 26 The offender described the knife that he used as being 2½ to 3 inches long when folded up. One side of the blade was sharp. In order to open the knife it was necessary to use fingers. It was not a knife with a spring release. In the agreed statement of facts a description was attributed to Ms Barton of the knife as being one that was usually at home but in his evidence in this Court the offender said that Ms Barton was mistaken about the knife in question which the offender claimed he always had with him. 27 It is indeed disturbing that the knife was carried on social occasions and was used for such a purpose as "shotgunning" but of course it is far far more disturbing that it was used to stab the deceased. The Courts have repeatedly expressed the community's abhorrence of the use of knives in the commission of crime. An often cited expression of the gravity with which such use is regarded is to be found in the judgment of Street CJ in R v Underhill (unreported decision of the Court of Criminal Appeal, 9 May 1986). The Chief Justice said in that case:

[41]

"This Court and other criminal courts have stated repeatedly that those who use knives when perpetrating criminal offences must expect to receive a significant measure of criminal punishment in consequence. The knife is held in universal abhorrence within the community, and this view is shared by the criminal courts." 28 By way of mitigating factors, Ms Yehia submitted that the offence was not a planned offence and the offender acted under provocation. I accept that these are mitigating factors as addressed in s21A(3)(b) and (c). 29 It was next submitted by Ms Yehia that the offender does not have any significant criminal record and that he is a person of previous good character. I accept that is the case and that these are factors to be viewed in the offender's favour: s21A(3)(e) and (f). 30 Next Ms Yehia submitted that the offender is unlikely to re-offend and that he has good prospects of rehabilitation. Again, having regard to the evidence that I have reviewed, those who have written favourably of him and who have expressed their willingness to continue to support him, and having regard also to the assessment of Ms Duffy, I find that provided he addresses his drinking problem, the offender is unlikely to re-offend and that he does have good prospects of rehabilitation and s 21A(3), (g) and (h) are enlivened. 31 Section 21A(3)(k) invites attention to the plea offered by the offender and accepted by the Crown. The offender is entitled to a discount for the utilitarian value of his plea of guilty. Ms Yehia has submitted that a discount of at least 15% would be appropriate. The Crown has submitted that the discount should be somewhat less, in the range of 10% to 15%. 32 It is important to have regard to the timing of the plea. The offender was arrested on 22 March 2009 and was charged then with the murder of the deceased. The offender was taken into custody on that date and has remained in custody ever since. On 4 March 2010 he was committed for trial from Port Macquarie Local Court. When he appeared before Latham J on 9 April 2010 he pleaded not guilty to murder. His trial date was fixed for 16 August 2010, but when the offender came before me on 5 August 2010 I was asked to vacate that hearing date and the matter was fixed for trial on 23 August 2010. At the request of counsel the matter was listed for mention on Friday 13 August 2010 and on that date the offender was again arraigned on an indictment charging him with murder. The offender pleaded not guilty to murder but guilty to manslaughter and the Crown accepted that plea at that time in satisfaction of the indictment. Monday 13 September was appointed for the hearing as to sentence and I received evidence and submissions on that date. 33 In allowing for the utilitarian value of the plea it is appropriate to take into account the fact that a trial likely to have taken approximately 3 weeks has been avoided and the need to bring a witness from Western Australia where that witness is currently detained in custody has been avoided. The Crown has drawn attention to what was said by Howie J in R v Borkowski [2009] NSWCCA 102 at [31]:

[42]

"As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court… It is difficult to see how in the usual case a plea of guilty on arraignment could justify a discount of more than about 15%." 34 With his Honour's judgment McClellan CJ at CL and Simpson J agreed. 35 Having regard to the timing of the offender's plea I propose to allow a discount of 15%. 36 Finally Ms Yehia submitted that the offender has shown himself to be remorseful and that this is a relevant matter by reason of s 21A(3)(i). 37 The offender expressed his remorse in a letter addressed to the Court and he expressed his remorse in a letter addressed to the deceased's loved ones and presented to the Court on Monday last. I accept that the offender is now genuinely remorseful although this was not his immediate reaction after he had stabbed the deceased. Contrary to Ms Yehia's submission I do not find that the offender was immediately remorseful after the commission of this crime. His tearfulness on his return to the house after the stabbing I consider was prompted by concern for himself and whilst the deceased was left so far as the offender was concerned to his own resources out on the street after being stabbed the offender's concern was to dispose of the weapon he had used. The evidence in this Court indicated that he did dispose of the weapon. This occurred before there was any attempt to summon help for the deceased. When help was summoned it was not the offender who called for it. I add that when the offender made a statement to the police on 21 March 2009, he stated he had no knowledge as to how the deceased was killed or by whom. Nevertheless I am satisfied that the offender is now genuinely remorseful and this is a matter to be weighed in his favour. 38 I must carefully weigh the various matters relevant under s21A in my sentencing task. 39 I referred earlier to the basis of the Crown's acceptance of the plea of guilty to manslaughter in satisfaction of the indictment as being provocation. Ms Yehia submitted that I should also find that there is an element of excessive self defence in the conduct of the offender. It was submitted that the deceased was a larger person than the offender. It was only after the offender and the deceased were wrestling and grabbing each other that the offender drew his knife. 40 The deceased was unarmed. He was maintaining an aggressive stance but by the time the stabbing occurred the deceased had moved from Ocean Street into Fourth Avenue. The agreed statement of facts does not afford a basis for a belief by the offender that Ms Barton was in danger. Plainly the use of the knife was not a reasonable response by the offender even in the circumstances as he perceived them to be. Nor do I consider that the offender believed it was necessary for him to stab the deceased in order to defend himself. Even if I took a contrary view, I do consider there is merit in the Crown's alternative submission. The Crown submitted that if contrary to its principal submission a finding of excessive self defence was made this would not lead to a discernible difference in the offender's criminality. It has been remarked in earlier cases (see for instance R v Welsh (2004) 142 ACR 140 and R v Mohamad Ali [2005] NSWSC 334) that it is often not of consequence whether a killing is characterised as coming within any particular category of manslaughter. What matters is to impose a sentence that suitably reflects the objective and subjective features of the case. So it is in this case.

[44]

"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 that can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances and culpability." 42 The task is always to weigh up as carefully as possible features that bear upon the objective gravity of the offence and to bring into account in an appropriate way the subjective features of the particular case. 43 Ms Yehia provided a table of sentences in manslaughter-provocation cases for the consideration of this Court. The table relates to sentences imposed in 14 cases in the past 10 years. The range of sentences varied from a total sentence of 5 years and 6 months in R v Pello [2001] NSWSC 650 (a case in which a plea of guilty was offered) to total sentences of 9 years with non-parole periods of 6 years and 9 months in R v Marlow [2003] NSWSC 1130 and in R v Berrier [2006] NSWSC 1421. In the latter case an appeal was dismissed. In both Marlow and Berrier sentences were imposed following verdicts reached at trial. 44 Ms Yehia focused in particular in her written and oral submissions on the sentence imposed in R v Forrest [2008] NSWSC 301 where the offender was sentenced to a total term of 7 years and 6 months with a non-parole period of 5 years and 9 months. It was submitted that the circumstances in Forrest, both objective and subjective, were such as to put the current case in the position of warranting a lesser sentence. It is to be pointed out that in Forrest the offender was found to have a mental disorder that was directly relevant on the issue of provocation. There was the further circumstance in that case that it was determined that the utilitarian discount of the value of the plea was 25%. 45 Ms Yehia referred to the decision in R v Cardoso (2003) 137 ACR 535. This was a stabbing case in which the sentence first imposed was one of 8 years with a non-parole period of 5 years but on appeal the total term was reduced to 7 years with a non-parole period of 4 years. 46 In R v Walsh [2004] NSWSC 111 the offender was sentenced to a term of imprisonment of 7 years and 3 months with a non-parole period of 5 years and 6 months. In R v Bullock [2005] NSWSC 1071 the trial judge imposed a term of imprisonment of 8 years with a non-parole period of 5 years. In R v Mohamad Ali [2005] NSWSC 334 the Judge sentenced the offender to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. 47 I have not in these remarks closely summarised the facts in any of the above cases, all of which I have considered. Plainly, none of the cases referred to sets a rigid tariff for me in my present task. What a consideration of the cases does is to confirm by way of example what Gleeson CJ said in Blacklidge. 48 The sentence I impose must take due account of considerations of punishment, denunciation and deterrence, especially general deterrence. 49 Ms Yehia submitted that there are special circumstances in this case for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offender is still a young man. This is his first custodial sentence. In the interests of his rehabilitation it is submitted that he would benefit from a longer than usual period of supervision once he is released from prison. 50 I consider there is merit in that submission and I find special circumstances which I have taken into account in structuring the sentence I am about to pronounce. In my sentencing task I am alert to what was said in R v Moffitt (1990) 20 NSWLR 114 and in R v Tobar (2004) 150 ACR 104, and in particular by Simpson J at paras [35] to [39]. The offender evidenced by his conduct on the occasion he committed this crime that he has a drinking problem, a problem which the offender acknowledged to Ms Duffy and which was the subject of comment by Ms Duffy. I consider that the sentence that I am about to express affords adequate provision for the need for supervision following the offender's release. I also consider that the offender should spend no less a period in custody than that which I am about to specify. 51 The sentence to be imposed is to be backdated to commence on 22 March 2009 when the offender was taken into custody. 52 I have made an adjustment for the discount previously expressed. I now pass sentence as follows:

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)