R v Trevor James STEPHENS

COUNSEL : H Wilson (Crown) T Healey (Accused)

SOLICITORS : S Kavanagh Solicitor of Public Prosecutions (Crown) SE O'Connior (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HER HONOUR: The offender Trevor Stephens pleaded guilty on 30 June 2008 to the manslaughter of David Paul Willoughby upon arraignment on an indictment carrying the single count of murder. The Crown accepted the plea in full satisfaction of the indictment on the basis that the offender's response to a threat of violence offered by Mr Willoughby was unreasonable in all the circumstances. This is commonly referred to in the law as excessive self-defence. 2 The offence of manslaughter carries a maximum penalty of twenty-five years imprisonment. It is a maximum penalty that appropriately reflects the gravity with which the law regards the felonious taking of a human life. The maximum penalty for any offence is reserved for the worst example of that offence. That is, one that is so objectively heinous that matters personal to the offender leave little or no scope for any mitigation.

3 The task of this court is to determine where on the spectrum that is represented by the range of twenty-five years this offender's culpability falls. That task is complicated by the fact that of all offences manslaughter throws up the greatest variety of circumstances affecting culpability, that being a reference to Chief Justice Gleeson's statement in Blacklidge, CCA 12 December 1995. The assessment of culpability must be made according to the laws of sentencing that are binding on this court. There is a complex interrelationship between the principles that govern sentencing, general and personal deterrence, punishment, retribution, the protection of the community and the rehabilitation of the offender. The purposes of these principles overlap and none can be considered in isolation from the others.

4 It must be acknowledged at the outset that to the family and friends of the victim, David Willoughby, the principles that most represent their interest in these proceedings are punishment and retribution. It is entirely understandable that they might expect to see the depth of their loss and grief reflected in the sentence imposed. That is unlikely to occur simply because no sentence can truly compensate for that loss.

5 It is also understandable that they might be bemused and angered by the law's interest in the rehabilitation of the offender, when he has cut short the life of a son, a grandson and a brother. 6 The court acknowledges that these proceedings may well do nothing to address the hurt they have suffered, not just by the death of their loved one, but also at the hands of the criminal justice system itself.

7 Since being informed of David's death they have found themselves in an unfamiliar environment that appears to discount them almost entirely. This experience is one that most people in our community thankfully never have. It is an experience which this court has regrettably seen on many occasions.

8 Whilst understanding that there are aspects of our criminal justice system that contribute to that experience the obligation upon this court to sentence the offender according to law demands impartiality, objectivity and the rigorous application of legal principle. However, no-one could fail to be moved by Mr and Mrs Willoughby's expression of the impact the offence has had on their lives and the lives of their extended family. 9 The following remarks are intended to inform the offender and the public, including the victim's family of the reasons for the sentence to be imposed. Necessarily these remarks are focused upon the objective gravity of the offence within the vast range of excessive self defence cases coming before the court and the extent to which the subjective or personal features of the offender affect the offender's culpability.

10 The facts of the offence as described in the statement of facts which is part of exhibit A attribute some responsibility to David Willoughby for initiating a fight between himself and the offender that ultimately led to the victim's death. Of course, that in no way excuses or justifies the fact that the offender resorted to the use of a knife against an unarmed man but it is critical to an assessment of the offender's criminality. Nothing in these remarks should be interpreted as derogatory of the victim or detracting from the value inherent in his life. They are simply meant to relate what happened and the tragic consequences for the victim, in particular.

11 The offender and the victim were known to each other since at least late 2005. In October 2005 the offender reported an assault to the police allegedly committed upon him by the victim and one other man. However, the offender decided not to press the matter and no charges were laid. In the second half of 2006 the victim had moved into a flat in Ball Street at Mayfield. He invited the offender, who was then homeless, to stay with him for a time. Later there was a dispute between the two men and the victim asked the offender to leave his flat.

12 In about November 2006 the victim complained to a friend that he was having trouble with the offender and that he had told him to leave the premises. The victim told that friend and the victim's father that the offender had come back to the premises after he had left, forced his way into the unit and had engaged in a fight with the victim. The victim said that he was concerned about the offender stealing a pair of small nail scissors from him.

13 Both the victim and the offender were visitors to The Sole Café situated in Denison Street, Newcastle West and operated by The Life Church. The café provides breakfast three days a week to homeless and disadvantaged people in Newcastle as well as providing lunches on some days of the week. The victim had been a regular patron of the café for about three years prior to January 2007.

14 The victim had experienced difficulties following the breakdown of a relationship in about 2000 and had begun to use illicit drugs. For some period of time he had lived on the streets.

15 The victim was friendly with Barry Cameron, a person with whom the victim had shared premises for about three years, at one stage. Mr Cameron was in the habit of visiting the victim about once a week. He and the victim went regularly to the café together to have breakfast and occasionally for lunch.

16 On Friday 12 January 2007 the offender, aged thirty-four, left his home in Telarah early, arriving at The Sole Café some time after 7.45am. Mr Cameron and his girlfriend, Sherri Johnson were also in attendance that day, along with thirty other regular patrons. The victim, aged twenty-seven, was also present, seated across the table from Mr Cameron and Ms Johnson. At about 7.45am the victim assisted the Minister of The Life Church to seat an intoxicated patron.

17 Mr Cameron saw the offender seated in the café having breakfast. The offender appeared to be mumbling to himself. The victim came over to Mr Cameron and Ms Johnson and said: "I'm going to punch him out, he ripped me off a couple of weeks ago and I'm going to have a blue with him."

18 The victim was pointing towards the offender during this conversation. Mr Cameron told the victim to "make sure you do it outside the gates". The victim then asked Mr Cameron if he was going to "jump in" but Mr Cameron declined, although he offered to stand there and watch to make sure that it was one-on-one. The victim then said "I'll go out and wait."

19 Another patron of the café saw the victim walking around the dining room looking agitated and aggressive. He saw the victim walk over and talk to the offender. The victim then walked out the side door of the café and started shadow boxing. The victim came in and out about four or five times on each occasion speaking to the offender. It is not clear what the victim was saying to the offender but it appeared to others that the victim was, in effect, spoiling for a fight.

20 The offender gave an account to a psychiatrist and a psychologist a year after these events to the effect that the victim threatened to kill him. This account was not confirmed on oath in the course of these proceedings and accordingly I attach little weight to it.

21 Mr Cameron could see that the victim was keeping watch from the side door of the café and at some stage had taken off his shirt. The victim asked another patron for a cigarette saying: "I'm waiting to see a bloke in there, I'm going to get him when he comes out. He stole my missus scissors yesterday and I want to see him and get them back."

22 About ten minutes later shortly before 8am the offender walked towards the doors, apparently intending to leave the café. Mr Cameron followed the offender. Mr Cameron told police that he was concerned to make sure that the offender did not have someone else to help him leaving the victim outnumbered. As the offender was getting to the door Mr Cameron saw that he was reaching into his backpack.

23 The victim was moving towards the door from the laneway at the same time as the offender was going to the door from inside the café. The victim and the offender met at the door where the victim pushed the doors open from the outside confronting the offender with "I'm going to smash you." As this was said the offender pulled a serrated kitchen knife out of his backpack and stabbed the victim in the chest just below the left nipple. The victim turned and ran out of the café, and then turned to head back around the side of the café.

24 Mr Cameron said to the offender: "You won't always have a knife with you, I'll catch up with you." 25 The offender looked at Mr Cameron briefly before running out of the front door. The victim had run into the side lane where he told another patron: "Ring an ambulance, he just stabbed me." 26 Mr Cameron went back into the café, told Ms Johnson that the victim had been stabbed and went to the victim's aid. There were about fifteen to twenty people in the vicinity of the victim who were standing outside the side door of the café holding his chest. The victim was gasping for breath and losing a lot of blood. The Ministered arrived and assisted the victim to the ground. At this point the victim arched his back in pain and blood began to gush from the chest wound. The Minister took off his shirt and applied the shirt with pressure to the victim's wound. A nurse who was working at the café also assisted by the application of a dressing to the wound, reapplying the shirt and instructing the Minister to hold the shirt against the wound with pressure. She began to check the victim's pulse.

27 The ambulance arrived at 8am. Police also arrived at about this time. Ambulance personnel were unable to detect a pulse and despite resuscitation attempts the victim died at the scene.

28 A subsequent post mortem determined that the cause of death was a single stab wound to the chest. The track of the wound passed through skin, subcutaneous tissues, external chest muscles, intercostal muscles and rib, damaging the intercostal vessels at that level and then passing through the pleura. The knife then perforated the pericardium and penetrated the left ventricle of the heart terminating in the region of the mitral valve ring. The total length of the track was approximately eleven point three centimetres with approximately five point five centimetres of that track being within the heart muscle. The wound showed a hilt mark which was indicative of the application of heavy force.

29 The knife subsequently found in the offender's backpack was entirely consistent with the injuries observed to the victim, including the overall size and appearance of the hilt mark.

30 At about 8.28am the offender called his housemate saying "I have just stabbed a bloke, what will I do?" The housemate asked the offender what had happened, the offender replied: "A heap of guys came at me, they were going to beat me up, I didn't know what to do."

31 The significance of this comment resides in the fact that the offender clearly apprehended an assault by the victim and others. It is consistent with the fact that Mr Cameron followed the offender from the café and that from the offender's perspective he was at a serious disadvantage. It is also relevant to observe that the offender's mental illness discussed below included a tendency to persecutory delusions.

32 Later that day the offender spoke again to his housemate and was informed that the victim had died. The offender indicated that he was going to flee, however following a phone call from the housemate to police the offender was arrested at his workplace at a Kotara shopping centre at about 2.30pm that day.

33 At the time of his arrest the offender agreed that there was a knife in his bag but refused to say anything further. He later declined a formal interview, although he submitted to certain forensic procedures.

34 The acceptance by the Crown of the offender's plea of guilty to the offence of manslaughter reflects an acknowledgement by the Crown that had the matter gone to trial on the offence of murder the Crown was not able to prove beyond reasonable doubt that the offender did not believe that it was necessary to stab the victim in order to defend himself from an imminent assault.

35 It is important to appreciate in this context that if a jury had thought it reasonably possible that the offender genuinely believed that it was necessary to respond in the manner that he did then the Crown would fail to secure a conviction for murder. The existence of a genuine belief in the offender stood to be assessed by a jury in the circumstances as the offender perceived them at the time, taking into account the fact that the offender suffered from schizophrenia and was possibly affected by drugs and/or alcohol.

36 This is, in many respects, the most tragic feature of this case. The offender's conflicts with the victim in the past, the offender's long standing mental illness and abuse of alcohol and other substances and the obvious aggression exhibited by the victim towards him on that morning all combined to engender a heightened and exaggerated sense of danger which he sought to meet by the use of a knife.

37 The court is not satisfied beyond reasonable doubt that the offender intended to kill the victim, although the force of the blow with the knife to the victim's chest establishes to the requisite standard that the offender intended to inflict grievous bodily harm. The objective gravity of the offence is therefore considerable. The offender carried the knife with him and did not hesitate to use it.

38 Whilst it is accepted that the offender responded to a perceived threat as he approached the exit to the café, the victim had given him ample notice of his intentions. And it was always within the offender's means to seek protection by alerting others to his predicament before he moved to leave. Herein lies the offender's true criminality. It was a grossly disproportionate response to the threat of physical assault in circumstances where, had the offender exercised a moments reflection, the whole confrontation could have been averted.

39 The offender's subjective case is contained within the report of Dr Delaforce of 30 April 2008, together with a report of Mr Taylor of 26 June 2008. It was noted by Dr Delaforce, in particular, that the offender was a somewhat unreliable historian, although this was not the result of deliberate dishonesty on the offender's part.

40 The offender reported a happy childhood in Newcastle, although he reported excessive physical discipline at the hands of his alcoholic father. His parents separated when he was fourteen years of age. The offender continued to live with his mother, although his escalating drug and alcohol abuse eventually resulted in the offender leaving her home at the age of eighteen years. Over the following years the offender lived in boarding houses, sometimes on the streets and in New South Wales Department of Housing premises.

41 The offender was convicted of an assault upon his mother and was subject to an apprehended violence order in 1997. Relevantly there was a further assault upon his mother in March 2002, in the course of which the offender brandished a knife. In addition, the offender was convicted in 2004 of an assault occasioning actual bodily harm as a result of an altercation with a member of the public, whom the offender stabbed with a pair of scissors.

42 His criminal history consists of minor assault and AVO offences, recorded at a summary level, all arising out of drug and/or alcohol abuse, coupled with the offender's mental health issues. To date his propensity to violence has been almost exclusively exhibited in the course of domestic relationships.

43 The offender's relationship with his mother improved from about 2004 until her death in recent times. The offender now enjoys a good relationship with his father. There was no reported family history of mental illness. The offender was educated to the end of Year Nine following his expulsion from school because of violent behaviour and conflict with teachers. Since that time he has been employed in a number of unskilled and semi-skilled labouring positions. He has supported himself from the proceeds of that employment and some Centrelink payments.

44 Between 1993 and 2006 the offender has had a number of psychiatric inpatient admissions to James Fletcher Hospital related to his intoxication by both alcohol and other illicit substances, and associated with property damage, violence or threats of violence to others and self harm. The records of the Hunter New England Mental Health Services include references to the offender's homelessness, the difficulties in his relationship with his parents, in particular his mother, the fact that he was a victim of child abuse, and sexual abuse by an adult male at a tender age, and his inability to form lasting relationships. There are also frequent references to his psychotic symptoms such as auditory hallucinations and persecutory delusions.

45 The offender has been most consistently diagnosed with poly substance abuse, substance induced psychoses associated with excessive cannabis, amphetamine and alcohol use, and a specific diagnosis of schizophrenia. These conditions were extant on 12 January 2007, although there is no reason to think that the offender was relevantly substantially impaired at the time.

46 The offender has never married or had children but was in a de-facto relationship for about one year between 2000 and 2001. Significantly that relationship ended following a conviction for assault upon his partner.

47 Notwithstanding the efforts of various public mental health facilities to assist the offender there are numerous references with in the records to his non compliance with treatment regimes and his failure to undergo rehabilitation programs aimed at kerbing his alcohol and substance abuse. In these circumstances the extent to which the offender's illness ought mitigate the penalty that is otherwise appropriate to the objective gravity of the offence is minimal. There is no suggestion that the offender lacks the cognitive or intellectual capacity to appreciate the consequences of his behaviour. He has chosen, for much of his life, to dull the pain of his existence with alcohol and drugs, thus inducing and exacerbating his schizophrenia.

48 General and specific deterrence play a significant part in the determination of the sentence. Not surprisingly the offender has now expressed a willingness to enter rehabilitation in the realisation that his drug and alcohol abuse has, in effect, led him to his present predicament. I accept that the offender's expression of remorse to both Dr Delaforce and Mr Taylor is genuine. However his prospects of rehabilitation remain guarded.

49 Whilst the offence and the offender's imprisonment provide the impetus for change the offender's acceptance of treatment within the controlled environment of the prison system may not be so readily forthcoming, once the offender is released into the community. It is clear that the offender will require ongoing intensive supervision following his release. However, no great departure from the standard ratio between the non parole period and the balance of term is warranted in this case. The non parole period itself must adequately reflect the objective gravity of the offence.

50 Given the entry of the plea on the date fixed for trial and the fact that it was first confirmed to the prosecution two weeks before the trial date I propose to discount the sentence by fifteen percent. It was always available to the offender to indicate his willingness to plead to manslaughter on the basis of excessive self defence. The fact that the Crown case was not inconsistent with such a plea did not oblige the Crown to make overtures to the offender's legal representatives at an earlier time.

51 Taking all of these matters into account I propose to sentence as follows. Mr Stephens would you please stand.

52 Trevor Stephens you are convicted of the manslaughter of David Paul Willoughby. You are sentenced to a non parole period of seven years to date from 12 January 2007, expiring 11 January 2014 with a balance of term of three years expiring 11 January 2017. You are eligible for release to parole on 12 January 2014. **********

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