R v Matthews

Supreme Court of NSW|2014-12-12|Before: Davies J, Matthews AJ, In Hoeben CJ

Solicitors: Solicitor for Public Prosecutions (Crown) Watsons Solicitors & Barristers (Defendant) File Number(s): 2011/60340

Remarks on sentence

On 3 October 2014 the offender pleaded guilty to the manslaughter of Scott Miller on 22 February 2011. The maximum penalty for manslaughter is 25 years imprisonment.
Before dealing with the facts surrounding the death of the deceased it is necessary to say something about the history of the matter.
The offender was first charged with the murder of the deceased. The indictment was laid on 2 April 2013. The offender stood trial before Matthews AJ and a jury at a trial that commenced on 2 April 2013 and concluded on 16 April 2013. On that latter date the offender was found guilty of murder.
On 27 May 2013 the offender was sentenced by Matthews AJ to a non-parole period of 11 years commencing 19 September 2011 and expiring 18 September 2022 with a balance of term of five years expiring 18 September 2027: R v Matthews [2013] NSWSC 659.
An appeal against his conviction was brought to the Court of Criminal Appeal. On 8 August 2014 that Court allowed the appeal, quashed the conviction for murder, directed a verdict of acquittal on the charge of murder and directed a new trial on the charge of manslaughter: Matthews v R [2014] NSWCCA 151.

Background facts

The following facts concerning the offence are largely taken from a Statement of Agreed Facts.
On 19 February 2011 the offender went to the Courthouse Hotel, at Taylor Square, at about 8.30am or 9.00 am. He was joined an hour or so later by Jayson Bell. He left the hotel later that morning and took his son for lunch at Chinatown. In evidence at the trial before Matthews AJ the offender estimated that he would have drunk three or four schooners of beer during the course of the morning. After lunching with his son, he returned to the hotel, at about 2.00 pm, and remained there until 6.30 pm. During that time he was again talking to Jayson Bell. He was also gambling on the horses, and consumed six to eight schooners of full strength beer. He described himself as "drunk, but not overly drunk". At 6.30 pm Mr Bell told him that he was going home for a meal, and the offender also decided to leave and go to his own home.
Scott Miller, the deceased, came to the Courthouse Hotel earlier that afternoon. He was sitting in the courtyard area at the front of the hotel when Mr. Bell and the offender passed him on their way home. Mr Miller and Mr. Bell were close friends, and lived in the same apartment block in Surry Hills. Mr. Bell told the offender that he was going home, and suggested that he come too.
In Hoeben CJ at CL's judgment in the Court of Criminal Appeal his Honour noted an incident the prior evening which helps to put what follows into some context. His Honour said at [6]: The following matters appear to be uncontroversial. The applicant and the deceased were acquainted with each other as they had a number of mutual friends. There seems to have been underlying tension between them. The evening before the killing, an incident took place at the Courthouse Hotel at Taylor Square. The deceased apparently had "issues with money", having previously been a problem gambler. On this occasion, the applicant was openly displaying a large amount of cash. The deceased said to him "Stop throwing it around. I don't need to see it". The applicant responded "Mind your own business, I can do what I want". The incident ended there but it seems to have left an impression on both of them.
After they left the hotel, Mr Bell and the offender then continued to walk south along the pedestrian extension of Bourke Street, until they were near the front of Kinsella's Hotel. At about that point Mr Miller came up to the offender and, according to Mr. Bell, said words to the effect of, "What is your problem? What have I done? I've done nothing to you." He then moved a short distance away. The offender said to Mr Bell: "I don't like this bloke."
Shortly after that verbal confrontation a physical fight started between the offender and Mr Miller, with punches being thrown on both sides. The fight moved from the initial location near the front of Kinsella's Hotel, east towards Flinders Street, and then south, along the side of a building known as "T2". During the course of the fight Mr Miller was seen to punch the offender to the ground. As the fight progressed the offender punched Mr Miller to the head several times. Mr Miller fell back, hitting his head on the iron railing of a pedestrian fence before falling to the ground.
Friends of the men, who had seen the fight from their positions at Kinsella's Hotel and the Courthouse Hotel, intervened and tried to break up the altercation. Some people who had intervened, dragged the offender away from where Mr Miller was lying on the ground. Mr Miller was bleeding from an eye, the mouth and ears. Witnesses called out for the assistance of police and an ambulance.
Police officers happened to be in the vicinity, attending to an unrelated incident at the intersection of Bourke and Campbell Streets. These police responded to the call for help. Police chased the offender down a laneway but he avoided them and ran away from the area.
An ambulance attended the scene and assistance was rendered to Mr Miller. The ambulance officer could not locate a pulse. Cardiopulmonary Resuscitation was commenced on Mr Miller and he was conveyed to St Vincent's Hospital at Darlinghurst. On admission to the hospital, he was found to be suffering from a Grade 5 subarachnoid haemorrhage.
Mr Miller's condition deteriorated and he was pronounced "brain dead" on 21 February 2011. On 22 February 2011, "life support" was withdrawn and he died on 22 February 2011.
Dr S Wills, Forensic Pathologist, found that the cause of death was acute subarachnoid haemorrhage. He found that there was a ruptured vertebral artery aneurysm. A CT scan revealed a 7mm diameter vertebrobasilar aneurysm. Subsequent neuropathological examination confirmed a basal subarachnoid haemorrhage originating from a ruptured saccular aneurysm at the dorsal aspect of the junction of the left vertebral artery with the basiliar artery.
Dr Wills gave evidence at the trial that Mr Miller died from an acute subarachnoid haemorrhage. He said that an antecedent cause was a ruptured vertebral artery aneurysm. He explained that an aneurysm is a weakness in the wall of an arterial vessel which can burst, causing a subarachnoid haemorrhage. Some people are born with a propensity to them. They are also referred to as a 'berry aneurysm'. The vast majority of these spontaneous ruptures can happen in someone's sleep. They can be caused by straining to go to the toilet. Most of the time they occur without any particular preceding event. In the vast majority of cases the subarachnoid haemorrhage has nothing to do with assault or trauma, but in a small proportion of cases there is a link to trauma. In this case Dr Wills said that he could not separate how much was caused by direct physical trauma and how much was caused by changes to blood pressure.
On the morning of 23 February 2011, police executed a search warrant at the offender's home. He was not at the premises. On the afternoon of 23 February 2011, the offender surrendered himself to police at the Sydney Police Centre. He declined to be interviewed by the police, and was later charged in relation to the matter.

Objective seriousness

The offender submitted that the basis for the manslaughter should be an unlawful and dangerous act in the context of a congenital weakness of the deceased unknown to the offender. I accept that submission.
It is not clear how the fight started nor who was responsible for it. The accounts of the various witnesses are set out in the judgment of Hoeben CJ at CL in the Court of Criminal Appeal. No finding can be made, even on the balance of probabilities let alone beyond reasonable doubt, about who punched whom first and what provocation may have preceded the fight beyond the exchange I have set out at [11] above. What does seem clear, however, is that the offender had the opportunity to walk away after he had been knocked to the ground by Mr Miller. He chose, however, to continue the altercation in circumstances where (as I shall refer presently) he should never have consumed alcohol nor been in the position of assaulting someone.
The fight took place in a public place where other people were in fact present. That is a matter of some seriousness as has been emphasised in cases such as R v Grenenger [1999] NSWSC 380 at [13], Hopley v R [2008] NSWCCA 105 at [47] and approved recently in R v Loveridge [2014] NSWCCA 120 at [101]. Against that is the fact that, unlike Loveridge and similar cases, the deceased here was not the victim of a random attack. He and the offender were known to each other, there were obviously issues between them, and it is not clear who started the altercation which led to punches being thrown.
I note further the observations of Matthews AJ at [17] that without the peculiar vulnerability Mr Miller had it is probable he would have suffered no permanent injuries from the fight. Her Honour noted that, apart from the effects of the brain haemorrhage, the injuries suffered by Mr Miller consisted of three areas of facial bruising consistent with the application of blunt force, as well as bruising on the upper limbs, particularly the hands and fingers. Those latter injuries are consistent with punches inflicted by him on the offender.
Taking these matters into account I consider that the objective seriousness of the offending was a little below the mid-range.

Plea

On 5 December 2011 counsel then appearing for the offender wrote to the Office of the Director of Public Prosecutions indicating that he had instructions that the offender would plead guilty to manslaughter. That offer was declined on 16 December 2011. A committal hearing took place on 13 June 2012 and the offender was committed for trial.
I have noted already that the offender pleaded guilty to manslaughter at the first Arraignments List after the matter had been sent back for trial on that charge by the Court of Criminal Appeal.
It seems to me, therefore, that the offer to plead guilty to the present offence charged was made at the earliest opportunity, and the offender is entitled to a discount of 25% for its utilitarian value.

Subjective features

The offender was born on 10 October 1974. At the time of the offence he was aged 36 years and he is now 40 years old.
He had a very disadvantaged upbringing. He never knew his biological father. His mother was an alcoholic who was frequently violent towards him. He was sexually abused at the age of 14 years by an older woman which was a source of shame and embarrassment to him.
He claims to have been assaulted by the principal of Fort Street Public School where he attended to Year 5. He had learning difficulties at school including struggling to read and write. He moved from Balmain Christian Brothers to Glebe High School in Year 8 because of behavioural problems. He left school at Year 8 having been kicked out of home. He associated with negative peers who influenced him to drink alcohol and smoke cannabis. He was an angry child who was prone to aggression.
He has had a lengthy history of heavy drinking from the age of 16-17 years. In his mid to late 20s he was drinking what he described as "massive amounts" to the point of being very intoxicated. He was dependent on alcohol between 2008 and 2010. He knew that drinking made him more prone to being "triggered". It made him angry and aggressive and led to fighting. He had been under the care of Dr John Roberts, a psychiatrist and Mr Peter Walker, a psychologist, in an endeavour to address his alcohol and mood problems. He had been treated with Campral, Naltrexone and Antabuse for a few months but had relapsed into drinking.
He had also engaged in heavy cannabis use from the age of 14 until 25 years of age. He also used cocaine on a recreational basis.
He has had three serious relationships and has had children with each of his former partners. At the time of the offence he was, and now, is in a relationship with his third partner who has a severely disabled daughter.
After he was placed into custody for the present offence his 16 year old son committed suicide. Prior to that the offender had only recently become close to his son.
In 2001 he was hit with a bottle in the face and stabbed in Woolloomooloo during an attempted armed robbery. He suffered a punctured lung.
When he was drinking at the Shakespeare Hotel in Surry Hills in 2007 a man picked up a knife and stabbed him in the neck. Both of these incidents have caused him to suffer from high levels of anxiety as well as symptoms of depression.
Both Dr Furst and Dr Olav Nielssen, who also examined him, considered that the offender suffered from Post Traumatic Stress Disorder arising from the incidents in 2001 and 2007. Dr Nielssen diagnosed him as suffering from Substance Abuse Disorder with Dr Furst considering he suffered alcohol dependence and Obsessive-Compulsive Disorder.
The offender's criminal record commences in December 1988 when he was 14 years of age. Although a number of offences on his record are property offences and relatively minor drug offences, his record in New South Wales also contains a number of offences of assault, assault occasioning actual bodily harm and a number of contraventions of Apprehended Domestic Violence Orders. In respect of three convictions for offences of personal violence he has been sentenced to periods of imprisonment. His record in Victoria also contains convictions for assault in respect of which he was imprisoned. That he has been convicted of these offences involving personal violence is a matter of aggravation. His record generally disentitles him to leniency.
Of some significance is the fact that at the time of the present offence the offender was subject to an Intensive Correction Order that commenced on 16 December 2010 for two offences of shoplifting and an offence of using an offensive weapon with intent to commit an indictable offence. It was a condition of the Intensive Correction Order that the offender was not to consume alcohol. That order was imposed only two months before the events which led to Mr Miller's death.
It is a matter of aggravation that the offender was on conditional liberty and the more so when alcohol was clearly of significance in the present offending and his conditional liberty forbade him from consuming alcohol. The matter is compounded because, as Matthews AJ found at [28] of her Remarks on Sentence, the offender's capacity to control his anger is directly and negatively linked with the amount of alcohol he has consumed. That is also my conclusion from reading the reports of the psychiatrists and psychologist who have examined him. For example, the offender told Dr Furst that he knew that drinking alcohol was more prone to make him angry and aggressive.

Remorse and rehabilitation

The Crown submitted that the offender showed no remorse at least at the time of the offence because he fled the scene. The offender's Senior Counsel submitted that there was no evidence that the offender had any idea when he left the scene that Mr Miller had suffered life-threatening injuries. However, the agreed facts state, Some people who had intervened, dragged the offender away from where the deceased was lying on the ground. He was bleeding from an eye, the mouth and ears.
Moreover, the offender was chased by the police but evaded them. I am satisfied beyond reasonable doubt that the offender knew at that time that Mr Miller had been seriously injured in the fight as a result of punches thrown by the offender which caused Mr Miller to fall to the ground. He knew, therefore, that he had likely committed an offence. Yet, he did not go to the police station until four days later and after police had executed a search warrant at his home.
The offender did not give evidence at the sentence hearing. I accept the Crown's submission that he showed no remorse at the time. The first time I can find any remorse is when he went to the police station.
The offender has, however, subsequently expressed remorse for his actions to both Dr Furst and the psychologist Dr Milic. Although I am able to give less weight to expressions of remorse given to doctors and others but not to the Court directly (see Butters v R [2010] NSWCCA 1 at [18] and Pfitzner v R [2010] NSWCCA 314 at [33]), I do not think that in the present case I should do that. Having read what he said to the doctors in the context of the loss of his own son shortly after these events, I consider that the offender has for some time been genuinely remorseful for his actions because he understands the loss which Mr Miller's parents must have experienced and continue to experience.
Each of Mr Miller's parents read a victim impact statement to the Court. It is clear that each of them enjoyed a close relationship with their son. Their sense of loss is considerable. That loss was made worse because a decision had to be made to turn off the life support he was on when in St Vincent's Hospital following the fight. The Crown asks me to take these statements into account pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I consider that I should do so. I express again to Mr Miller's parents and his family the Court's sympathy for his untimely death.
As far as the offender's rehabilitation and his likely future offending is concerned, there was some evidence from Dr Furst and a counsellor Tracey Radford, who was seeing him during 2014, of improvement in the offender's insight into his behaviour and particularly the relationship between his anxiety, his consumption of alcohol and his aggression. He acknowledged to both Dr Furst and Dr Milic that abstinence from alcohol after his release may be a challenge, and both of them thought that he would need professional help for some time after completion of his term of imprisonment. He said that he could not promise not to drink again. Whilst that might be a frank assessment by him it emphasises the likely problem with rehabilitation when he is back in the community.
Dr Furst thought that the offender had a moderate risk of reoffending but that this could be safely managed in the community provided that he was abstinent from alcohol and drugs, and continued to participate in counselling and rehabilitation.
The Crown submitted in the light of decisions such as R v Windle [2012] NSWCCA 222 at [55] and R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [58] that the offender's prospects of rehabilitation were poor and that protection of society militated against a finding of special circumstances.
From the reports of those who have examined and counselled the offender, I consider he has some realistic prospects of rehabilitation. I note his progress whilst in custody. I find special circumstances to justify a small adjustment to the statutory ratio, bearing in mind the offender's criminal record to date and the need for protection of the community. He will require a greater period to deal with his need for alcohol when back in the community and to have his psychiatric problems adequately managed.
I have read a number of references from people who speak positively of the influence he has had on young people through the Police and Community Youth Club and boxing. He is clearly capable of making a good contribution to the community if he can get a control on his drinking and drug-taking.

Deterrence

The Court of Criminal Appeal in Loveridge emphasised the significance of both general and specific deterrence in cases such as the present which involve a death after alcohol-fuelled violence. The Court said: [214] Two particular points emphasised in the United Kingdom cases have currency in this State as well. [215] Firstly, it is not meaningful to speak of one-punch or single-punch manslaughter cases as constituting a single class of offences. The circumstances of these cases vary widely and attention must be given to the particular case before the sentencing court. [216] Secondly, the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place, is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. The United Kingdom decisions involve statements of serious concern by the courts of the type expressed in this State in Hopley v R; R v Carroll and Pattalis v R concerning a similar form of violent offending. [217] General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet: R v Williscroft [1975] VR 292 at 299. [218] Additional considerations arise where an offender has a history of alcohol-fuelled violence, and where further offences of this type are committed whilst the offender is subject to conditional liberty. In such circumstances, specific deterrence is magnified as a factor to be taken into account on sentence.
Further, in Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 the majority said at [44]: …[T]he inability [of the offender] to control the violent response to frustration may increase the importance of protecting the community from the offender.
I have also had regard to what was said in Loveridge concerning the role of other sentencing decisions on sentence at [221]-[227].
It is necessary to have some regard to the sentence imposed by Matthews AJ, although that sentence was imposed on the basis of the offending being "in the lower range of objective seriousness for murder".
The matters which make the present offence a serious one are the fact that it resulted from alcohol-fuelled violence committed in a public place by a person who had a most unsatisfactory record for violence in circumstances where he had recently been placed on conditional liberty with a requirement not to drink alcohol. Against that is the fact that the combatants were known to one another with prior issues between them rather than Mr Miller being an unsuspecting stranger, that it is not clear who started the fight, and that were it not for the fact that Mr Miller had the aneurysm the offender would probably have only been facing sentence for an assault occasioning actual bodily harm.
The offender's senior counsel drew my attention to cases (Donaczy v R [2010] NSWCCA 143 and R v O'Hare [2003] NSWSC 652) which were said to provide some guidance as similar cases. He also drew my attention to Judicial Commission statistics for manslaughter sentences. Of all offences, statistics for sentencing for manslaughter are the least useful because of what Spigelman CJ referred to in R v Forbes [2005] NSWCCA 377 at [133]-[134], that manslaughter is of a protean character, that a wide range of circumstances may constitute the crime and that matters of fact and degree arise in all categories of manslaughter.
Although of some assistance both Donaczy and O'Hare need to be read in the light of the statements in Loveridge to which I have made reference.
I consider that the appropriate starting point is a sentence of 10 years. Taking into account a 25% discount for the early offer of a plea the offender should be sentenced to a non-parole period of 5 years with an additional term of 2 years 6 months. The offender has been in custody since 19 September 2011 related to this offence. The sentence should be backdated to that date.
Mr Matthews, for the unlawful killing of Scott Miller on 22 February 2011 I sentence you to a non-parole period of 5 years commencing 19 September 2011 and expiring 18 September 2016 with an additional term of 2 years 6 months expiring 18 March 2019.

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: 17 February 2015

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