R v Sesoni BASHFORD

Supreme Court of NSW|2007-09-21|Before: Rothman J

CITATION : R v Sesoni BASHFORD [2007] NSWSC 1380

HEARING DATE(S) : 21 September 2007, 28 September 2007

DECISION : Sentenced to imprisonment for a non-parole period of 3 years and 6 months commencing 24 October 2006 and expiring on 23 April 2010, the balance of term being 1 year and 9 months expiring on 23 January 2012; eligible for release on 23 April 2010.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

Hamieh v R [2007] NSWCCA 277 CASES CITED : R v Blacklidge, NSWCCA, 12 December 1995 R v Fernando (1992) 76 A Crim R 58

PARTIES : Regina (Crown) Sesoni Bashford (Accused)

COUNSEL : G J Tabuteau (Crown) R J Button SC (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

SENTENCE 1 HIS HONOUR: On 1 October 2006, the prisoner, Sesoni Bashford, punched Peter Dando once to the left side of the face. Mr Dando fell and hit his head on the concrete pavement from which, two days later, he died. 2 Mr Bashford has pleaded guilty to the manslaughter of the deceased, Mr Dando, for which Mr Bashford is now to be sentenced. It is necessary to set out the facts, which, with one exception, were agreed and to deal with the factors applicable to the sentencing of Mr Bashford. Facts Relating to Offence 3 Mr Dando, 46 years of age, went to the Matraville Hotel to watch the Rugby League Grand Final and have a few drinks. It was his regular hotel and he was a regular patron. He met some friends and they sat in the gaming room drinking and watching the football on television. 4 The deceased was acting a little out of character in that, as described by a friend, Ms Ruby Martin, he was "acting smart", which was out of character. He used the term "dickhead" to two men, Mr Bashford and Mr Bashford's friend, Stephen Ella, who were then in the bar. 5 The deceased, Mr Dando, otherwise appeared to be in excellent spirits and spoke with his partner by telephone. During the half-time break there was an unpleasant "verbal" exchange between Mr Dando and one of three men sitting at a nearby table. The three men were Mr Bashford, and his two friends Mr Satele and another man called "Victor". It is unclear which of the three spoke with Mr Dando, but it seems the exchange was not particularly noteworthy. 6 CCTV footage from the hotel shows Mr Bashford and Mr Satele being in the company of Mr Ella. At about 9.30pm, after the game had concluded, Mr Bashford left the hotel in the company of Mr Ella and Mr Satele. Each of them, at different times, bought bottles of VB Beer from the hotel bottle shop. They drank these bottles on the street. 7 Mr Dando left the hotel through another exit and stayed in its vicinity for some time talking to some people with whom he seemed to be acquainted as they passed by him. 8 Mr Bashford and his two friends were standing outside a pie shop. This also was the subject of CCTV footage. However, the camera alternated between different shots and there are some gaps in coverage as a consequence. 9 Mr Dando, the deceased, entered the pie shop and bought three pies. Mr Bashford also went into the pie shop, standing about half a metre behind Mr Dando. 10 While there is some irrelevant minor inconsistency in the evidence, the version that I accept is that Mr Dando bought three pies, gave them (or two of them) to Mr Ella who distributed one and ate one. Mr Satele bought another pie. In all, each of Mr Bashford and his two friends (Messrs Ella and Satele) had a pie (or part of one), as did Mr Dando, all of them (or all but one of them) purchased by Mr Dando. 11 Mr Dando stood near the bus stop outside the pie shop. There was an exchange between him and Mr Ella, which I find, on the evidence, was overheard by Mr Bashford. It was in or to the following effect: Mr Dando said something that was inaudible. Mr Ella: "What's that brother? What are you saying?" Mr Dando: "I saw your dick when you were fucking your mum." Mr Ella: (angrily) "What's your problem? What'd you say that for? Are you stupid or something?" Mr Dando: "Ah, piss off mate. Fuck off!" Mr Ella: "Do you realise what you just said?" Mr Dando: "Fuck off mate." Mr Ella: "You don't go saying that to people." 12 Mr Bashford attests that Mr Ella moved as if to strike Mr Dando and Mr Bashford restrained him. The restraint seems to have been more in the nature of a hand on Mr Ella's shoulder without the need for physical restraint. It worked. Mr Ella did not approach Mr Dando. The hand on the shoulder (but not the identity of the person who placed it) is confirmed by Mr Ella. 13 Shortly thereafter Mr Dando walked over to Mr Ella and offered an apology and they shook hands. Words to the following effect were spoken: Mr Dando: "Sorry, don't worry about me." Mr Ella: "Sweet as brother, you just stay over there and leave me alone." 14 Mr Ella sat on the bench outside the pie shop, while Mr Dando continued to stand near the bus stop, eating his pie. Shortly thereafter, a car arrived in which Mr Ella with a friend left the scene. On the version that I accept, Mr Bashford "escorted" Mr Ella into the car and he and his friend, neither of whom were driving, left. 15 Remaining at the scene were Mr Bashford, an acquaintance, Mr MoiMoi Vaiika, and Mr Dando. There were customers in the pie shop. That which next occurs was a matter of disputed evidence. 16 A number of customers were called who gave evidence. There is some CCTV footage that does not include the period in which Mr Bashford punched Mr Dando. The events, without any alleged conversation, were that Mr Dando, mobile phone in hand and held to his right ear, was punched by Mr Bashford. Mr Bashford, who was standing near the curb moved toward Mr Dando and punched him on the left side of the face. There was one punch. Mr Dando fell back, hit his head on the concrete footpath and from that he died. The above is not in dispute. The customers attest to it. Mr Bashford admits it and Mr Vaiika also attests to it. 17 Mr Bashford says that Mr Dando said words to him to which he, Mr Bashford, reacted. None of the customer witnesses heard Mr Dando say the alleged or any other words. It would, however, be unusual for persons to pay heed to the words of someone standing a distance from them. They also did not hear Mr Dando speaking on the telephone. All but one of these witnesses conceded that it was possible that words were spoken they did not hear. The one exception was too definite. Despite having heard no words spoken, not even on the telephone, he denied the possibility that anything was said but not heard. I prefer the evidence of Mr Vaiika who was in a position to hear and would have been more attentive. 18 Both Mr Bashford and Mr Vaiika testify that words were spoken. In Mr Bashford's case, almost immediately after the incident, he told his sister of the conversation and his reaction to it. At that stage, Mr Dando had not died, and it is unlikely that Mr Bashford would have been aware of the seriousness of the injury. Further confirmation of the allegation of words being spoken were that, immediately after felling Mr Dando, Mr Bashford said to him words to the following effect: "Don't say shit like that!" 19 It may be that the last-mentioned statement was a reaction to the earlier recounted conversation, but the action of Mr Bashford in calming down Mr Ella and the apology by Mr Dando make that less likely. It may be that Mr Bashford's angry or depressed state (to which I will come) is the reason. However, the most likely scenario is that the testimony of Mr Bashford and Mr Vaiika is correct. 20 I believe Mr Bashford and Mr Vaiika in this regard; their evidence was believable; it was supported by their demeanour in the witness box; and it is consistent with the otherwise known and independently proved facts, including the history given by Mr Bashford to his sister. While it is possible that, in the case of Mr Vaiika, the conversation evidence was recent invention, it is unlikely and I accept the evidence. 21 Mr Bashford testifies that Mr Dando said to him: "Where are you off to? Going to fuck your mother?" 22 Mr Bashford says he was about 1 ½ metres away from Mr Dando when the statement was made. He became very angry, walked straight towards him and hit him. Mr Vaiika confirms the essential features of that version. The terms of the statement are slightly different ("Go and fuck your mother"), but not significantly so. 23 I find that Mr Dando spoke the words to which Mr Bashford testifies and that his punch was a reaction to those words. I will deal later with further aspects of that reaction. 24 I note, only for the purposes of these proceedings, that it was not disputed that after the punch Mr Satele took Mr Dando's wallet. It is not suggested by the Crown that this action was done in concert with Mr Bashford or that the robbery formed any part of the motive for the assault. It occurred when Mr Bashford was already walking away from the scene and the agreed facts imply that Mr Bashford only discovered that Mr Dando had been robbed when Mr Satele told him so, well afterward. Over the next days, Mr Bashford tried to explain events to his family and girlfriend, but became increasingly uneasy about his conduct and the death (as it became known) of Mr Dando. He informed the Police, who were looking for him, he would "give himself up". 25 On 24 October 2006 (the assault and Mr Dando's death occurred on 1 October 2006 and 3 October 2006 respectively), Mr Bashford attended Redfern Police Station in the company of his solicitor, Mr Peter Bugden of the Aboriginal Legal Service. Mr Bashford was charged with murder and he declined to be interviewed. 26 Prior to the service of the prosecution brief, Mr Bashford indicated a willingness to plead to manslaughter. When the matter came before the Local Court for mention on the last of four occasions between 25 October 2006 and 17 May 2007 (both inclusive), the prosecutor amended the charge from murder to manslaughter, to which Mr Bashford pleaded guilty on 24 May 2007. 27 Mr Bashford had been arrested on 24 October 2006 and has remained in custody since that date. It is trite, but ought to be emphasised, that it is for the prosecutor alone to determine the charge to be preferred; it is for the defendant alone to determine the plea to any charge preferred; and, it is for the court alone to determine the sentence, if any, to be imposed: see Hamieh v R [2007] NSWCCA 277 at 20 per Rothman J, James and Harrison JJ agreeing. 28 Nevertheless, it is appropriate in these circumstances to remark that the Director of Public Prosecutions, or his officers, have acted most appropriately in pursuing only manslaughter. I have no doubt on the facts adduced, and the evidence of the independent witnesses, that there is no case for either an intention to kill, an intention to cause grievous bodily harm, or a reckless indifference to human life. Conversely, there is a strong case that the death was caused by an unlawful and dangerous act, deliberately inflicted. "The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900 , s18 ). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, … involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as 'involuntary', do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. 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.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" ( R v Blacklidge , NSWCCA, 12 December 1995, per Gleeson CJ) 29 The criminal law generally punishes conduct that is contrary to the requirements imposed by the legislature for the orderly relations between humans in society. In the area of assault the consequences of the conduct, together with the intent involved, is the determinant of punishment. Thus an assault that would otherwise be a common assault ceases to be a common assault when damage is occasioned and, if serious injury is caused, there are then more serious consequences in the sentence imposed. 30 Here an assault, with no intention to cause serious damage, has caused the death of Mr Dando. He is someone's partner, sibling and family member. Nothing can return him to them. However, nothing I say seeks to belittle the heartbreak occasioned by this death. 31 But this death was caused by one punch to the head. Although it cannot be doubted there was an intention to harm the deceased, there was no intention to cause serious harm. There was no pre-planning. There was no gratuitous cruelty or violence; nor the use of a weapon. But for what now follows (and even including it), this crime objectively would be at the lower end of the range of criminal culpability included in the charge of manslaughter. 32 The exception to that assessment is that this offence was committed whilst Mr Bashford was on conditional liberty, namely, good behaviour bonds. However, the offences for which the good behaviour bonds were imposed were not acts of violence and were of a different character from the manslaughter charge. 33 Two victim impact statements were marked. They reflect the impact one would expect with the loss of a partner and sibling respectively. This offence tragically cuts short the life of a man who cared for his family and was entitled to live to an old age in the company of his family. He was entitled to stand in the street, without being hit. He was entitled even to shout obscenities without suffering this fate. 34 While its motive may be irrelevant, the "abuse" in the conversation with Mr Bashford needs to be explained. In my view, the mood of Mr Dando and his consumption of alcohol caused him to act out of character. It was so described by one of his friends. Nevertheless, I am of the view that Mr Dando was not intending to be abusive. The most likely purpose in the conversation was an attempt to be friendly. This accords with the description by Mr Vaiika that he thought Mr Dando was joking. 35 Because of matters (to which I will come) otherwise affecting Mr Bashford, he did not see it as a joke or as being said jocularly. It is not uncommon for abuse to be used in Australia as a form of friendly interplay. The use of the term "bastards" in various contexts is anecdotally such an example. I have found that the "abuse" occurred and I have found that Mr Bashford, angered by it, reacted by punching Mr Dando. But I do not consider that those findings necessarily express a view that Mr Dando intended to be abusive. Even if Mr Dando did so intend, Mr Bashford was not entitled to react as he did. 36 I have referred to other factors that may have affected Mr Bashford's reaction. The subjective aspects occurring in Mr Bashford's life at the time were significant. I have the benefit of a psychiatric report from Dr Allnut. There are also character references to which I have had regard. There was a conflation of problems for Mr Bashford. 37 At the time of the offence Mr Bashford was 24 years of age, his date of birth being 8 June 1982. As at 1 October 2006, he was living alone and having difficulty with his girlfriend. He had been informed that she was pregnant and he was anxious that there were other men in her life and that, therefore, he was not the father of her child to be. He discovered that she had previously been pregnant to another. 38 Further, about 1 ½ months earlier he had witnessed a close friend at work suffering a heart attack, he had tried to revive him but he had died. Mr Bashford had been depressed for over three months; he became lethargic and had difficulties in concentration. Six months earlier than the offence his best friend had committed suicide over a relationship breakdown. His alcohol consumption increased thereafter. It was at this time that he was informed of the pregnancy. While his girlfriend kept claiming that Mr Bashford was the father, he had serious doubts. 39 On 30 September 2006 (the day before the offence), he had heard rumours that another person was the father of the child. He woke on 1 October 2006 with that issue at the forefront of his mind. He was angry and frustrated. He began drinking that day at about 12 noon at home and continued to drink there, at his sister's house and then at the hotel. His girlfriend had threatened that if he had insisted on a DNA test, that she would deny him access to the child. He continued to drink until about 10pm when he left Matraville Hotel and the offence was committed. 40 His early childhood was also traumatic. His parents separated and Mr Bashford was "devastated" by the loss of his father to whom he had been very close. He began to consume alcohol shortly after his sister's attempted suicide. His brother-in-law also attempted suicide within four months of his sister's attempt. 41 For all of that and his alcoholism, he has strong support from his community and from his acquaintances. He has shown himself to be someone who is a good worker, diligent and responsible. He has been good with children, coaching a local football team and helping out his neighbours. 42 The opinion reached by Dr Allnut is in the following terms: "At the time I saw him, your client manifested mild symptoms of depression, probably residual symptoms of a resolving depression with a depressed mood, derived from his current circumstances. He describes a number of stressful incidents that preceded the alleged offence. These included the death of his friend; the death of a co-worker; his girlfriend's pregnancy and his concerns about his paternity. It appears that in the months leading up to the alleged offence he developed a depressed mood, with associated changes in appetite, energy, motivation, concentration, with the emergence of a depressed mood, social withdrawal, reduced motivation and negative cognitions as well as increased irritability. The symptoms would be consistent with a mild depressive disorder.

He derives from a difficult developmental background. He describes a potentially neglectful relationship with his mother. His parents separated when he was at a young age. He manifested behavioural difficulties in childhood consistent with Conduct Disorder.

He did not manifest any major medical problems, although I have not formally physically examined him.

He is exposed to the current stressors of serious charges and incarceration, and ongoing concerns about his paternity status.

His functioning in my view is mildly impaired secondary to his residual depressive symptoms.

At the material time of the alleged offence there was a number of stressors active as described. Depressive symptoms can contribute to feelings of irritability and Depression can also cause an "abnormality of mind" of [sic] "disease of the mind". However, I do not believe that the depressive disorder was of a severity that his capacity for knowledge of his actions was impaired. Nor do I believe that it was of a nature and severity that it would impair his capacity to know the wrongfulness of his actions. In addition to this, I believe that the mental illness was not of a severity that it would have impaired his capacity to understand events, judge right from wrong, or to significantly diminish his capacity to control himself in order to resist acting in any particular way.

The most likely factors contributing to the offence would have included an [sic] underlying depressive symptoms causing him to be irritable; numerous stressors impacting on him at the time, aggravating that irritability; a recent conflict with his girlfriend in the minutes to hours before the offence occurred; and an intoxicated mental state causing disinhibition." 43 It seems that these stressors caused Mr Bashford to react more aggressively than otherwise and, although it was the comment of Mr Dando that "caused the reaction", it is Mr Bashford's psychological state that contributed to him reacting in an atypical manner. 44 Since the offence Mr Bashford has sought to deal with his alcoholism, participating in and successfully completing an Alcohol and other Drugs Awareness Program. He has also taken his role as a father to the new-born child seriously and has undertaken a course in parenting for that purpose. 45 Reliance was placed on the principles in R v Fernando (1992) 76 A Crim R 58. The principles in Fernando apply irrespective of the ethnic background of an offender and irrespective of whether, in the case of indigenous persons, their upbringing is urban, rural or communal. 46 The dysfunctional home background with abuse of alcohol by his mother and his siblings' attempted suicides explain to a significant degree some of Mr Bashford's problematic reactions. However, I do not pay significant regard to these matters in granting leniency. Mr Bashford is a member of both the Aboriginal and Islander communities. 47 I do not consider that additional punishment is needed for the protection of the community and I consider that there are significant prospects of rehabilitation. I take the view that this kind of offence is most unlikely to be repeated, although some attention needs to be paid to the underlying psychological issues suffered by Mr Bashford and I recommend that he has access to violent offenders' treatment programs and counselling to deal with his anger and underlying problems. 48 Mr Bashford has a criminal record and is not entitled to the level of leniency otherwise reserved for first offenders. The criminal conduct on this occasion is not altogether aberrant; there is some history of violent crime in 2002 and otherwise some criminal conduct not involving any violent behaviour. As earlier implied, there is no great need for specific deterrence as repeat offences of this kind by Mr Bashford are unlikely. General deterrence must, however, form part of the consideration. 49 Lastly I deal with the plea. Mr Bashford indicated at a very early time that he would plead to manslaughter and took the opportunity to plead as soon as practicable after the charge for manslaughter was preferred. He is entitled to a highest range discount, which I fix at 25 percent. Conclusion 50 Manslaughter is a serious offence because it causes the most serious consequences. This particular crime is objectively at the lower end of the range of criminal conduct within that offence. The maximum sentence is 25 years' imprisonment and, as one would expect for a crime with such a broad range, there is no standard non-parole period. 51 Anything less than a full-time custodial sentence would be most inappropriate. I have indicated the matters that I consider significant in fixing the sentence, except for two, with which I will shortly deal. I have considered all of the matters in s 21A(2) and s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. 52 The last two matters to which I turn are the Judicial Commission statistics and the issue of remorse. The Judicial Commission statistics must be applied with care. A mathematical application would be wrong and a self-fulfilling straight jacket. 53 The statistics however confirm the range suggested by counsel for Mr Bashford, with which range the Crown agreed. If anything the statistics may suggest a slightly lower range, but that may take account of the findings I have made on the "provocation" by Mr Dando (i.e. the comment he made). 54 I also take the view that Mr Bashford has displayed remorse. He has expressed it to his mother and others; and, to a lesser degree, in court. I consider that a commencement point of 7 years' imprisonment is appropriate and I apply the discount for the early plea as already indicated. I find, from the above subjective factors, special circumstances such as to vary the statutory ratio but not so as to reduce the non-parole period to an inappropriately lenient level. This is Mr Bashford's first lengthy sentence. From the material, I have a reasonable hope that it will be his last. Conviction and Sentence 55 Mr Bashford, you are convicted of manslaughter in that between 1 October 2006 and 3 October 2006 at Matraville in the State of New South Wales you did cause the death of Peter Dando in circumstances amounting to manslaughter by an unlawful and dangerous act.

I sentence you to imprisonment for a non-parole period of 3 years and 6 months commencing 24 October 2006 and expiring on 23 April 2010, the balance of term being 1 year and 9 months expiring on 23 January 2012.

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