R v Stewart

Supreme Court of NSW|2008-05-02|Before: Johnson J, Mr P

DECISION : The Offender is sentenced to a non-parole period of seven years and three months to date from 27 July 2006 and to expire on 26 October 2013 with a balance of term of three years and three months to commence on 27 October 2013 and to expire on 26 January 2017. The earliest date upon which the Offender will be eligible to be released to parole is 26 October 2013.

CATCHWORDS : CRIMINAL LAW - sentencing for manslaughter - excessive self-defence - stabbing - use of push dagger - objectively grave offence - importance of general and personal deterrence

Cheung v The Queen [2001] 209 CLR 1 R v Previtera (1997) 94 A Crim R 76 R v FD and JD (2006) 160 A Crim R 392 R v Oinonen [1999] NSWCCA 310 R v Forbes [2005] NSWCCA 377 CASES CITED : R v Hillsley (2006) 164 A Crim R 252 Ahmad v R [2007] NSWCCA 177 R v Trevenna (2004) 149 A Crim R 505 Ward v R (2006) 166 A Crim R 273 R v Cakovski [2005] NSWSC 1001 R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995)

PARTIES : Regina (Crown) Wade John Stewart (Offender)

COUNSEL : Mr TR Bailey (Crown) Mr P Bodor QC (Offender)

SOLICITORS : Solicitor for Public Prosecutions (Crown) Ford Criminal Lawyers (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 JOHNSON J: On 6 February 2008, the trial of the Offender, Wade John Stewart, commenced before a jury upon an indictment alleging that on 24 July 2006 at Port Macquarie, he did murder Brian Sawtell. On 18 February 2008, the Offender was acquitted of murder, but convicted of manslaughter. 2 A hearing on sentence proceeded before me on 2 May 2008 following which the Offender was remanded for sentence until today.

Facts of the Offence 3 It falls to me as the trial Judge to determine punishment and, for that purpose, to make findings of fact relevant to sentencing. The primary constraint is that the view of the facts adopted by me for purposes of sentencing must be consistent with the verdict of the jury. Any findings of fact against the Offender must be arrived at beyond reasonable doubt: Cheung v The Queen [2001] 209 CLR 1 at 12-13 [14]. Any findings of fact adverse to the Offender in these remarks have been reached by application of the criminal standard of proof. 4 As will be seen, an issue for determination is whether the verdict of guilty of manslaughter arose by way of provocation (as submitted by the Crown) or excessive self-defence (as urged by the Defence). 5 The Crown called a number of witnesses in its case at trial and the Offender gave evidence before the jury. There were limited areas of factual dispute, although the areas in dispute were of considerable significance. 6 In June 2006, the Offender entered into a shared lease arrangement for a house in Lake Road, Port Macquarie with a friend, Tania Ross. I should mention that the Offender and Ms Ross were not in a relationship and shared the house as friends. The Offender had previously been in a relationship with Marnie Scowen which had terminated by June 2006. At the time when the Offender and Ms Ross leased the Lake Road premises, there was an agreement between them that Ms Scowen was not to enter the premises. It is clear, on the evidence, that aspects of Ms Scowen's prior conduct had caused difficulties for Ms Ross and others so that Ms Scowen was excluded from entry to the Lake Road house. 7 On 18 July 2006, Ms Ross came home and heard Ms Scowen's voice. Conversation ensued between Ms Ross and the Offender in which the Offender informed Ms Ross that Ms Scowen was to attend court the following Monday (24 July 2006) and would thereafter go to Queensland. The evidence revealed that Ms Scowen remained at the Lake Road premises from 18 to 24 July 2006. 8 On Saturday 22 and Sunday 23 July 2006, celebrations of Ms Ross' birthday took place both in and away from the Lake Road premises. Involved in these celebrations were Ms Ross, her partner (Mr Kain Tuffin), the deceased (Mr Sawtell who was 35 years of age), his partner (Ms Clare Williamson) and others who came and went. Evidence adduced in the trial revealed that alcohol and various drugs were used by persons in the course of these celebrations. Neither the Offender nor Ms Scowen took part in these birthday festivities. 9 In the early hours of Monday, 24 July 2006, the party was continuing to celebrate Ms Ross' birthday with music being played in the house. A loud argument took place between Ms Scowen and the Offender in the Offender's room. According to the evidence of the Offender, Ms Scowen was upset because of loud music emanating from the party and the failure of those involved to pay regard to the Offender's request that the music be turned down. During the course of the argument, Ms Scowen threw an object which smashed a fish tank located in the Offender's room. 10 Other persons in the house came to the Offender's room in response to the disturbance between the Offender and Ms Scowen. The deceased, Mr Sawtell, came into the room with Ms Ross and others. I am satisfied that there was some agitation on the part of Mr Sawtell and others at that time given the events which had transpired between Ms Scowen and the Offender. The Offender produced a knife (which I accept was a Bowie knife) and presented it to those who had entered the room, including Mr Sawtell. Ms Williamson's four-year old daughter was at that time asleep in another room in the house. I accept the evidence of Ms Williamson that Mr Sawtell said words to the effect "If you want to use weapons" (T115.18) to the Offender and obtained a sword from a cupboard in the house. I am satisfied that an incident then ensued in which the Offender held the Bowie knife and Mr Sawtell held the sword whilst facing each other, but that no weapon fight or other physical interaction took place between the two men using these weapons. 11 Soon after, Ms Ross asked the Offender and Ms Scowen to leave the house. Ms Ross made a 000 call to police at 4.35 am on 24 July 2006 in which she said that she wanted Ms Scowen removed from the house and that "she's thrown something and smashed the fish tank" (Exhibit D). 12 Thereafter, Ms Scowen and the Offender departed the premises. There was some dispute between the evidence of Ms Ross and the Offender concerning what precisely had been said by her and the Offender at this stage. Ms Ross' evidence was to the effect that the Offender was departing the house and would not return to live there. The Offender stated that, although he left the house with Ms Scowen, he did not intend to abandon the premises. Given that the possessions of the Offender remained at the house, it seems clear that he would return there at some time. However, it was probably not clear when and for how long the Offender would return to the house, given the heated atmosphere existing prior to the sudden departure of the Offender and Ms Scowen. 13 The Offender and Ms Scowen had left the premises by 5.18 am on 24 July 2006, as Ms Ross made a further 000 call at that time indicating that the Offender and Ms Scowen had departed by taxi and that police attendance was no longer required (Exhibit F). 14 Following the departure of the Offender and Ms Scowen, Ms Ross observed areas of damage in the Offender's room including water damage resulting from the smashed fish tank and burn marks on the floor from candles which had been lit in the room. Ms Ross and her companions packed up the Offender's possessions and placed them in bags and boxes before moving them to the front outside veranda of the house. I accept the evidence of Ms Williamson that these items were stacked neatly at that time (T116.24). 15 When the Offender left the Lake Road premises after 5.00 am on 24 July 2006, he had with him a push dagger - a knife with a transverse handle designed to be gripped in the fist so that the blade protrudes from between the fingers. The push dagger had a nine-centimetre blade. I am satisfied that it was designed for use as a fighting weapon. The Offender admitted in evidence that he had owned this knife for some time. He said that he carried it on him on 24 July 2006 "for safety" (T256.25). He explained that he carried it from time to time as "our families have had problems with Aboriginals in Port Macquarie and I'd received numerous threats that I was going to get bashed and I had it for safety purposes" (T256.37). The Offender said that he carried the knife "because it can be concealed … down the front of [my] pants" (T256.45). The push dagger was carried by the Offender in a leather sheath which was concealed in his trousers. I am satisfied that no person in the house was aware at that time that the Offender was taking the concealed push dagger with him when he left the house. As will be seen, it was the push dagger which the Offender used to lethal effect upon Mr Sawtell later that day. 16 After leaving the house on 24 July 2006, the Offender sent a text message to Ms Ross containing words to the effect "I hope that copper dog is not there when I get back" (T58.15; T275.39). The Offender admitted in evidence at the trial that he sent such a text message soon after he left the Lake Road premises and that the message referred to Mr Sawtell (T259.26). 17 Under cross-examination, the Offender said that the description of Mr Sawtell as a "copper dog" was meant to be insulting (T275.49). He denied the suggestion in cross-examination that he had called Mr Sawtell a "copper dog" because he (Mr Sawtell) had been using his past experience as a security guard to defuse the situation earlier on 24 July 2006 after the fish-tank incident (T275-276). After initially asserting that he did not know how to explain his use of the term "copper dog" (T275.52), the Offender, when pressed under cross-examination, said "When I mean copper dog I meant it in general, because he had been busted growing hydroponics and anyone else that I know who has been busted growing hydroponics gets gaol time" (T276.8). Whatever may be the reason for the Offender's selection of this term, it is clear that this text message demonstrated a significant level of ill-feeling on the part of the Offender towards Mr Sawtell. 18 The Offender accompanied Ms Scowen to Port Macquarie Local Court on 24 July 2006. 19 Some time after 3.00 pm that day, the Offender and Ms Scowen returned to the Lake Road premises. He had not given any prior notice of his intention to return at that time, let alone that he would be in the company of Ms Scowen. 20 The Offender observed his possessions packed up and located on the outside veranda. It had been raining that day and it is likely that some of the Offender's possessions had become wet, although their location on the veranda was in a largely sheltered position. I accept that the Offender became upset when he saw his possessions on the veranda. I am satisfied, however, that the possessions were stacked neatly on the veranda at that time. Later, they were scattered onto the lawn by police when emergency access was required to the premises to treat Mr Sawtell. 21 As the Offender and Ms Scowen approached the front door of the Lake Road premises, a number of persons were located in the house. Mr Sawtell was seated on a chair in the lounge room. Across from him were Ms Williamson and another friend, Ms Donna Schubert. Ms Ross was in the lounge room and Mr Tuffin was also in the house. Ms Williamson's four-year old daughter was also there. 22 The Offender entered through the flyscreen and front door, both of which were unlocked. An argument ensued between the Offender and Ms Ross. I accept the evidence of Ms Williamson that the Offender was asking Ms Ross why his belongings were out the front and that Ms Ross replied that she just wanted him out. Ms Williamson grabbed her daughter and took her to the kitchen. By that time, the Offender and Mr Sawtell were arguing. 23 Having regard to the verdict of the jury, I am satisfied that Mr Sawtell moved towards the Offender who was, at that time, just inside the front door. According to Ms Williamson, whose evidence I accept, Mr Sawtell was angry and upset with the Offender (T172). I accept that Mr Sawtell was upset with the Offender for what he had done earlier in the morning whilst Ms Williamson's daughter was in the bedroom next door and because the Offender had returned unannounced to the house with Ms Scowen. Mr Sawtell was not carrying any weapon at this time (T119.25). 24 I am not satisfied beyond reasonable doubt that the Offender said to Mr Sawtell at this time "Do you want a go mate?", with Mr Sawtell responding "Yeah, as long there's no weapons" (T60.51), as testified by Ms Ross. My assessment of the jury's verdict, against the background of the totality of the evidence in the trial, leads me to the conclusion that the jury did not accept Ms Ross' account of this part of the incident. I am satisfied that Mr Sawtell moved towards the Offender, probably for the purpose of preventing him from moving further into the premises and laid hands on him. Mr Sawtell was unaware that the Offender was carrying the concealed push dagger. Immediately, the two men were punching each other in a manner described, in particular, by Ms Williamson (T118, T174) and Mr Tuffin (T142). 25 As might be expected, the descriptions of the various witnesses vary as to events during the fatal struggle. Some witnesses were anxious to leave the lounge room, in particular, to shield the four-year old girl from the fight.

26 I am satisfied that the Offender extracted the push dagger from the sheath concealed in his trousers and used it in the course of the struggle with Mr Sawtell, striking him on some 12 occasions. According to the evidence of the forensic pathologist, Dr Nadesan, Mr Sawtell sustained 12 wounds, of which 10 were in the chest and abdomen, one on the roof of the neck and one on the left forearm. Injury No. 1 penetrated the left jugular vein resulting in severe bleeding. According to Dr Nadesan, this was the fatal wound (T201.12). Of the other wounds, two were potentially fatal being an incised stab wound which had penetrated the right lobe of the liver to a depth of about 9-12 centimetres from the skin surface (T202.5) and an incised stab wound which entered the abdominal cavity and cut the spleen (T203.16). A further incised stab wound which penetrated the abdominal cavity was serious, but not potentially fatal (T202). In cross-examination, Dr Nadesan agreed that the nature of the injuries indicated that the weapon struck the victim in different angles and that some of the injuries indicated more of a slashing than a stabbing motion (T213). 27 Dr Nadesan considered that several injuries to Mr Sawtell could be considered as "defence wounds to ward off a blow" (T204.17). It was Dr Nadesan's opinion that Mr Sawtell died very quickly and the most obvious reason for death was severe bleeding from the neck wound which severed the left jugular vein (T213.57). 28 I accept Ms Williamson's account that Mr Sawtell fell on top of the Offender and was up against the lounge during the struggle when a picture fell down from the wall (T118). I am satisfied that Mr Sawtell fell on top of the Offender as a result of injuries he had already sustained from the Offender's use of the push dagger. 29 I observe that photographs taken by police of the Offender on 27 July 2006 (Exhibit J) depicted minor injuries to him, comprising an abrasion to the right knuckle, a bruise to the left upper arm and faint abrasions to the right and left forearms. Mr Sawtell, on the other hand, had sustained the repeated wounds to various parts of his body as explained by Dr Nadesan and summarised above. 30 The fatal interaction between the Offender and Mr Sawtell happened quickly. Those present saw profuse bleeding from Mr Sawtell's wounds. 31 I am satisfied that the Offender was well aware that he had inflicted very severe injuries to Mr Sawtell at the time when the Offender and Ms Scowen fled the premises. 32 Mr Sawtell was seen to pick up a glass which he used to apply pressure in an unsuccessful effort to stem the flow of blood from his wounds. He told Ms Williamson that the Offender had stabbed him (T118). 33 At 3.29 pm on 24 July 2006, Ms Ross made a 000 call seeking urgent assistance. As it happened, a police vehicle attended the house at that time following receipt of information that there may be some drug activity occurring there (T157). Senior Constable Brunyee and Constable Williams entered the house whilst Ms Ross was making the 000 call. That call, which was played at the trial, provided a graphic and contemporaneous record of events in the house, including efforts to assist Mr Sawtell. 34 I am satisfied that police disturbed the neatly stacked piles of the Offender's possessions on the veranda to permit access to the house by ambulance officers (T159). Unsuccessful efforts were made by ambulance officers to revive Mr Sawtell during the ambulance journey to Port Macquarie Hospital. A medical practitioner pronounced Mr Sawtell dead upon arrival at the hospital. 35 The Offender was not affected by alcohol or drugs at the time of the offence. 36 After the Offender fled the Lake Road premises, he went to the home of his stepbrother in The Bowsprit, a street in Port Macquarie. According to a Crown witness, Justin Milkovitch, the Offender had blood on his shirt. The Offender told another Crown witness, Adrick Mobbs, that he had had a fight with Mr Sawtell. According to Mr Mobbs, the Offender "looked like he'd been in an argument … he looked a bit aggravated" and he "had cuts on his hands" (T188). The Offender produced the push dagger and asked Mr Milkovitch to get rid of it (T186). Mr Milkovitch threw the push dagger and sheath into bush in a park near The Jib, a street in Port Macquarie. He later took police there and the push dagger and sheath were recovered. 37 At about 4.00 pm on 24 July 2006, Mr Mobbs contacted his roommate, Brendan Tudhope, who met the Offender later that day at Sancrox, near Wauchope. At the request of the Offender, Mr Tudhope drove the Offender to the Queensland border where he left him. 38 Police enquiries revealed that the Offender was in Queensland. On 27 July 2006, the Offender was extradited from Queensland to New South Wales. He was charged with murder and remanded in custody where he has remained until the present time.

Manslaughter by Way of Provocation or Excessive Self-Defence? 39 As mentioned earlier, the Crown submitted that the Court should conclude that the verdict of manslaughter was based upon provocation. Mr Bodor QC submitted that the Court should conclude that the verdict was based upon excessive self-defence. 40 Manslaughter by way of provocation or excessive self-defence were both left to the jury. I should note, however, that the Crown initially opposed provocation being left to the jury upon the basis that it had not been raised on the evidence. After hearing defence submissions on that issue, however, the Crown withdrew its objection (T303-307) and provocation was left to the jury. 41 I am satisfied that the verdict of guilty of manslaughter was reached in this case by way of excessive self-defence, and not provocation. The factual matters which led me to leave provocation to the jury were relatively slight, including the removal of the Offender's property and its placement on the veranda and earlier events involving the Offender and Mr Sawtell in the context of the fish-tank incident. 42 On the other hand, there was evidence in both the Crown and Defence cases which provided some support for the account that Mr Sawtell was moving towards the Offender shortly prior to the physical altercation during which the Offender stabbed Mr Sawtell. I am satisfied that the jury proceeded to acquit the Offender of murder, but convict him of manslaughter, upon the basis of excessive self-defence. 43 I am satisfied that the jury was of the view that there was a reasonable possibility that the Offender personally believed his conduct was necessary to defend himself, but was satisfied beyond reasonable doubt that the conduct of the Offender was not a reasonable response in the circumstances as the Offender perceived them because that response was excessive. 44 The jury, of course, was satisfied beyond reasonable doubt that it was a deliberate act of the Offender which caused Mr Sawtell's death and that the act causing death was done with an intention to kill or, at least, an intention to inflict grievous bodily harm. 45 I will return later in these reasons to assess the objective gravity of the Offender's crime of manslaughter.

Victim Impact Statements 46 Victim impact statements were read at the sentencing hearing by Ms Barbara Sawtell, the victim's mother, and Ms Clare Williamson, the victim's partner. In addition, a victim impact statement was read to the Court on behalf of Mr Glenn Sawtell, the victim's brother. 47 I acknowledge the victim impact statements and make the following comments about them: s.29(3) Crimes (Sentencing Procedure) Act 1999. The statements reveal the profound consequences upon Mr Sawtell's mother, partner and brother resulting from his death. I express the sympathy of the Court and the community to each of them for their loss. One of the purposes of reading victim impact statements publicly in the sentencing proceedings is to bring home to the Offender, and others who might act in a similar way, the appalling consequences of the Offender's actions extending beyond the death of Mr Sawtell. The profound consequences upon those close to Mr Sawtell will be entirely clear to the Offender. The law of this State makes clear that a greater sentence cannot be passed because of the impact of the crime on the victim's family: R v Previtera (1997) 94 A Crim R 76 at 84-87; R v FD and JD (2006) 160 A Crim R 392 at 415-416, 428.

The Offender's Subjective Circumstances 48 The Offender gave evidence at the sentencing hearing. A pre-sentence report dated 22 April 2008 was tendered together with a report dated 29 April 2008 of Marcelo Rodriguez, psychologist, which was tendered in the Defence case. 49 The Offender was 27 years old at the time of the offence and is now aged 29 years. He was born in Sydney and his parents separated when he was about 12 months old. Thereafter, he remained in his mother's care. His childhood was marked by frequent moves from Sydney to Queensland and Victoria. He experienced difficulties with schooling and did not learn to read or write over the course of his formal education. He left school at the age of 13 years after failing to complete the first year of high school. 50 He commenced working as a trolley boy for a local supermarket chain. He worked in a number of short-term casual positions until the age of 19 years and was largely unemployed during his 20s. From time to time, he worked as a plasterer or in fencing, labouring and powder-coating positions. He was unemployed and in receipt of a Centrelink Newstart benefit at the time of the offence. 51 The Offender has been involved in two long-term relationships, the first being with the mother of his seven-year old son. That relationship ended in 2002. The Offender's son resides with his mother and, prior to July 2006, the Offender saw the boy from time to time. The Offender's current partner is a young woman (not Ms Scowen) with whom he commenced a relationship about one month prior to the commission of this offence. According to the pre-sentence report, this young woman stated that she cared for the Offender and will wait for him whilst he serves his sentence. 52 The Offender has taught himself to read and write whilst in custody. He informed the probation and parole officer that he intends to do a small business course either in custody or upon release, and then gain his formal plastering qualifications. 53 The Offender has a history of drug and alcohol abuse. It was common ground, however, that the Offender was not under the influence of alcohol or drugs at the time of the present offence. 54 The Offender came into custody on 27 July 2006 and is currently an inmate of Parklea Correctional Centre classified as an A2 unsentenced inmate. Since November 2007, he has been employed as a wing cleaner. He is said by correctional officers to be a good worker who is quiet and polite. 55 The Offender has a number of criminal convictions. These include a bond for break, enter and steal in the Children's Court in 1995, fines for a range of driving offences and fines for possession and use of prohibited drugs. 56 He has convictions for offences of violence. In 1999, he was sentenced in the Campbelltown Local Court to three months' periodic detention for assault occasioning actual bodily harm. In evidence at the sentencing hearing, the Offender stated that this offence occurred in the context of an argument over the sale of a car and that he used a wheel brace which caused injury to the victim. In 2003, the Offender was given a 12-month suspended sentence for dangerous driving and was fined and placed on a good behaviour bond for resisting an officer in the execution of his duty and intimidating a police officer, as well as being fined and disqualified for driving under the influence of alcohol or a drug. In 2004, a two-year s.9 bond was imposed in the Port Macquarie District Court for an offence of assault. Again in 2004, a 12-month suspended sentence was imposed in the Port Macquarie Local Court for malicious damage to property. In 2005, the Offender was sentenced to four months' imprisonment for dangerous driving, with a concurrent term of imprisonment for one month for failing to appear in accordance with his bail undertaking. 57 The probation and parole officer observed in the pre-sentence report that the Offender had a "moderate history of supervision" with the Probation and Parole Service since 1999 and that "his response to supervision could be best described as superficial". 58 The Offender is taking anti-depressant medication prescribed by a psychiatrist at Parklea Correctional Centre, but there is no evidence of any pre-existing mental illness or mental disorder which relates in any way to the commission of the offence. The Offender suffers from Shwerman's disease which results in severe back pain on a generalised basis, but more severely when engaging in repetitive tasks involving lifting or bending. 59 Mr Rodriguez recommended that the Offender receive ongoing treatment for depression and anxiety, drug and alcohol counselling, assertiveness training and occupational rehabilitation. 60 The author of the pre-sentence report stated that the Offender expressed what appeared to be genuine remorse for having committed the offence and expressed concern for the impact of his offence on the victim's family and friends.

The Offender's Offer to Plead Guilty to Manslaughter 61 As mentioned earlier, the Offender was arrested and charged with murder on 27 July 2006. On 5 July 2007, he was committed for trial from the Port Macquarie Local Court on the charge of murder. On 3 August 2007, the Offender appeared before this Court and his trial was fixed to commence on 4 February 2008. He was arraigned formally on 14 September 2007 and the trial date of 4 February 2008 was confirmed. 62 On 7 December 2007, the matter was mentioned before me as trial Judge. Mr Bodor QC appeared on that occasion for the Offender as did the Crown Prosecutor who appeared at trial. Mr Bodor QC said "I have spoken to the Crown about a plea of manslaughter and the Crown indicated they are not interested" (T3.14). 63 Mr Bodor QC submitted that the Offender's offer to plead guilty to manslaughter as at 7 December 2007 ought be taken into account in his favour on sentence. Mr Bodor QC acknowledged that this was not an early offer to plead guilty, and likewise accepted that this was a case where the Crown quite reasonably determined that it should be left to a jury to decide the case. The Crown accepted that the Offender is entitled to some credit in this respect, albeit for an offer to plead at a late stage. 64 Where an offender is facing a murder charge and offers a plea of guilty to manslaughter, but the offer is rejected by the Crown and the offender is ultimately convicted of that lesser offence, a reduction in sentence may be warranted: R v Oinonen [1999] NSWCCA 310 at [15]-[16]; R v Forbes [2005] NSWCCA 377 at [118]-[121]. 65 In my view, the Crown's rejection of the offer on 7 December 2007 was perfectly understandable. On any view of it, this was a case for determination by a jury whether the Offender was guilty of murder or manslaughter. 66 The Offender did not plead guilty to manslaughter in the presence of the jury. He went to the jury (somewhat faintly) upon the basis that he ought be acquitted of both murder and manslaughter. The trial proceeded and a number of witnesses who were present in the house during the fatal incident were further distressed by the process of giving evidence. 67 Nevertheless, the Offender's willingness to plead guilty to manslaughter two months prior to trial is a factor to be taken into account for its utilitarian value, albeit as a late offer made after committal for trial, arraignment and the fixing of a trial date in this Court. I consider that an appropriate discretionary assessment in this case leads to a 12.5% discount on sentence (see R v Forbes at [121]).

Assessment of Objective Seriousness of Offence 68 The Crown submitted that this was a grave offence of manslaughter, in particular, by reference to the number and nature of the wounds inflicted and the nature of the weapon used by the Offender including its concealed nature. The Crown submitted that, if this be a case of manslaughter by excessive self-defence, then the acts of the Offender went far beyond any reasonable response. The Crown submitted that this was a most serious case of manslaughter by excessive self-defence. 69 Whilst acknowledging the intrinsic gravity of an offence involving loss of life, Mr Bodor QC submitted that the present offence lay at the lower end of the scale of objective seriousness. He pointed to the limited nature of the majority of wounds which, he submitted, had been inflicted in a fast-moving eruption of violence.

70 I am satisfied that this was a most serious case of manslaughter by excessive self-defence. 71 In assessing the objective seriousness of the Offender's crime, an aggravating factor arises from his use of a weapon: s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999. This was not a case where the Offender, in the course of an argument, reached for a knife which happened to be in the vicinity at the time. Rather, the Offender left the house in the early hours of 24 July 2006 armed with the concealed push dagger. His text message to Ms Ross was intended to be insulting to Mr Sawtell. It provides some insight into the Offender's thought processes at that time. It carries with it the suggestion that, if Mr Sawtell was present in the house at the unspecified time when the Offender returned, then some confrontation with Mr Sawtell was likely. I do not accept that the Offender believed that Mr Sawtell would be gone from the premises. 72 The Offender carried the push dagger back to the house when he returned. This was a frightening weapon which the Offender had acquired and had carried before in the event that he needed to resort to it. 73 When the Offender and Ms Scowen returned without notice to the house after 3.00 pm on 24 July 2006, it was expected by the Offender that there would be some dissatisfaction and resistance to their return, given the circumstances of their departure earlier in the day. The Offender's text message to Ms Ross was not expressed in conciliatory terms. Indeed, the contrary was the case. 74 Upon entering the house, a verbal argument ensued between Ms Ross and the Offender and Mr Sawtell stood up and moved towards the Offender and took hold of him. Mr Sawtell was a large and solidly built man. The jury accepted that there was a reasonable possibility that the Offender believed that it was necessary to do what he did in defence of himself. What followed, however, involved a response by the Offender which the jury was satisfied beyond reasonable doubt was not a reasonable response in the circumstances as the Offender perceived them. The Offender extracted the push dagger and used it on a number of occasions with lethal effect. I am satisfied that this was a grossly excessive response. 75 Given the jury's verdict, I am satisfied that Mr Sawtell moved towards the Offender and laid hands on him. However, Mr Sawtell was unarmed. It would not have been apparent to Mr Sawtell, or anyone else in the house, that the Offender was armed with the push dagger. It was concealed in the Offender's trousers. He did not produce it until after the physical struggle with Mr Sawtell had commenced. Even then, it was not obvious to others that the Offender had and was using the push dagger until the blood flow from Mr Sawtell made it obvious that the Offender was using a weapon of some type. 76 The Offender drew and used the push dagger, striking Mr Sawtell some 12 times, with two wounds being potentially fatal and one actually fatal. Although some of the wounds inflicted on the deceased may be explicable as wounds caused during a struggle, the repeated use of the weapon, including the infliction of deep wounds, demonstrated a clear, repeated and grossly excessive level of violence directed by the Offender to the deceased. 77 The earlier incident in which the Offender brandished a Bowie knife and Mr Sawtell obtained a sword, resulting in a stand off between the two men, does not, in my view, assist the Offender on sentence. I am satisfied that it was the Offender who reached for a weapon first in that incident. Although Mr Sawtell responded by obtaining a sword, there was no actual fight between the two men using the weapons. 78 The jury was satisfied beyond reasonable doubt that the Offender acted with intent to kill or, at least, intent to inflict grievous bodily harm. Although the number of wounds caused to Mr Sawtell may suggest an intent to kill, it is necessary to keep in mind the nature of the majority of the wounds. There were, of course, three wounds which were potentially or actually fatal. The incident occurred within a short period of time. Not without some hesitation, I am not satisfied beyond reasonable doubt that the Offender acted with intent to kill. I conclude that the Offender acted with intent to inflict grievous bodily harm. 79 Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case: R v Hillsley (2006) 164 A Crim R 252 at 258 [16]. In this case, I accept that the Offender's intent is less culpable, but given the nature and number of wounds inflicted, it is a grave case of manslaughter involving intent to cause grievous bodily harm.

Determining An Appropriate Sentence 80 The maximum penalty for manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900. I have been referred to other sentencing decisions for manslaughter in the course of submissions. Comparison with sentences in other cases must be undertaken with caution: R v Trevenna (2004) 149 A Crim R 505. Matters of fact and degree arise in all categories of manslaughter with the consequence that it is impossible to establish a pattern or tariff. This applies not only to manslaughter generally, but also to cases of manslaughter by reason of excessive self-defence: R v Forbes at [135]-[136]; Ward v R (2006) 166 A Crim R 273 at 289 [71]. To the extent that cases involving manslaughter by excessive self-defence provide some guidance, I am assisted most by R v Forbes, R v Cakovski [2005] NSWSC 1001 and Ahmad v R [2007] NSWCCA 177. 81 In R v Forbes, Spigelman CJ observed at [133]-[134] that manslaughter is almost unique in its protean character as an offence, that a wide range of circumstances may constitute the crime and that matters of fact and degree arise in all categories of manslaughter. Of course, a constant factor is that manslaughter involves the felonious taking of a human life. This constitutes a starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case: R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995); R v Forbes at [124]. 82 In the circumstances of the present case, I am satisfied that the objective gravity of the crime was of a high order. Grossly excessive self-defence was involved. The Offender was armed with a concealed weapon designed for fighting purposes. He resorted to it, in the context of self-defence, thereafter inflicting multiple wounds to the deceased. 83 The Offender's record of prior convictions for offences of violence does not assist him on sentence, although I am not persuaded that the record of offences constitutes an aggravating factor for the purpose of s.21A(2)(d) Crimes (Sentencing Procedure) Act 1999. 84 I take into account in the Offender's favour his offer to plead guilty to manslaughter in the manner referred to earlier in these remarks. 85 With respect to remorse, the Offender fled the scene and took immediate steps, involving others, to dispose of the push dagger and leave the State. None of this assists the Offender on the issue of remorse. It was not until his counsel raised an offer to plead guilty to manslaughter on 7 December 2007 that the Offender took any step involving an acceptance of criminal responsibility for Mr Sawtell's death. I accept that there is some evidence of recent remorse on the Offender's part, although it is mixed with an element of self-justification extending beyond what is truly available to the Offender on the jury's verdict: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The Offender's explanation at trial of his description of Mr Sawtell as a "copper dog" in the text message does not assist him on the issue of remorse. 86 I accept that the Offender has reasonable prospects of rehabilitation, in particular given steps he has taken in custody so far to improve his education. However, some caution must be exercised in making this assessment given the Offender's superficial response to earlier efforts by way of supervision by the Probation and Parole Service. 87 I find special circumstances for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 by reference to the need for an appropriate level of management in the community to aid the Offender's rehabilitation upon release and matters raised in the psychologist's report. However, the adjustment of the ratio will not be substantial because I consider that the Offender should not have the opportunity of serving any lesser period in custody than the minimum term I am about to impose. 88 The sentence to be imposed must reflect the objective gravity of the Offender's crime and ensure that the Offender is adequately punished for the offence: s.3A(a) Crimes (Sentencing Procedure) Act 1999. An element of both general and specific deterrence is particularly important in this case given the Offender's carrying and use of a concealed weapon: s.3A(b). The sentence must also have regard to the Offender's subjective circumstances and prospects of rehabilitation. 89 After applying the discount of 12.5%, I am satisfied that a head sentence of 10 years and six months with a non-parole period of seven years and three months ought be passed. The sentence should date from 27 July 2006 when the Offender was taken into custody for this matter. 90 Wade John Stewart, for the crime of manslaughter of which you have been found guilty by a jury, I sentence you to a non-parole period of seven years and three months to date from 27 July 2006 and to expire on 26 October 2013 with a balance of term of three years and three months to commence on 27 October 2013 and to expire on 26 January 2017. The earliest date upon which the Offender will be eligible to be released to parole is 26 October 2013. **********

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