R v Tristan LEE

Assessment

1. It will be necessary for me to make an assessment of the seriousness of the matter. Gleeson CJ (Grove & Ireland JJ agreeing) said in R v Blacklidge unrep NSWCCA 12 December 1994: "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."
2. However, the Chief Justice went on to say: "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.)"
3. In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]: "The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510."
4. Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]: "…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly."
5. In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]: "When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61]."
6. Going to another matter of general principle, Mr King in his very helpful and comprehensive written submissions refers to R v MD, BM, NA & JT. The Court said at [65]: "In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it."
7. I will need to go through the facts of the matter presently under consideration in some detail. A sentencing court can only proceed on the material tendered and made available by the parties. Gleeson CJ, Gaudron, Hayne & Callinan JJ said in R v Olbrich (1999) 199 CLR 270 at 281 (paragraph [27]): "As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough that those circumstances are proved on the balance of probabilities.'"
8. I would not want it thought that I am attributing blame to the victim, but the presence of the victim at the home of the offender is very much a part of the factual matrix of this matter. The offender was at home with his partner asleep in the early hours of the morning when a number of uninvited persons including the deceased arrived at the house. Those uninvited persons were looking to purchase drugs, but none were supplied and nor was the offender under the influence of any drug or for that matter alcohol. There is some real force in Mr King's submission that the deceased was taken to the house by Waters and Waters should have known better.
9. The offender's then partner sought to have those people who had attended to leave. The offender's partner then found her phone and money missing and the offender went to investigate. He asked for pockets to be emptied and the deceased resisted this. An altercation then developed between the deceased and the offender.
10. The facts recite that Burgess observed something in the hand of the deceased and that Morgan saw the offender with a knife in his hand. In the absence of anything in the agreed facts I cannot find beyond reasonable doubt other than that the offender took possession of the knife very soon before the observation was made by Morgan. The facts do not indicate from where the knife came or for that matter how it was the offender came to have the knife. In the absence of anything in the agreed facts this court cannot speculate as to the circumstances of the production of the knife. I cannot for example find beyond reasonable doubt that the offender left the house in possession of the knife. I cannot find beyond reasonable doubt that the knife came from the offender's house. On this issue I note that paragraph 9 of the agreed facts sets out that offender told Burgess, "I had to get it off him, he pulled it on me". On the agreed facts I cannot discount that as what actually occurred.
11. The knife was in the hand of the offender, who kept that knife and ran with that knife into the darkness in the course of which the deceased suffered the fatal injuries to his upper thigh. I cannot be satisfied beyond reasonable doubt that the offender had any intention to use the knife at all let alone stab the deceased. I cannot be satisfied beyond reasonable doubt that the offender could see the deceased as he ran through the darkness with the knife in his hand.
12. In the course of taking submissions I put to both counsel that I presumed that the matter was one of unlawful and dangerous act manslaughter. My memory is, although I have no specific note, that both counsel nodded in the affirmative but I am uncertain as to whether anything was said in response. As best as I can determine on the agreed facts without specific submissions from the parties, is that the unlawful act was an assault in circumstances where the assault was a dangerous act noting the offender ran through the darkness carrying a knife. The wound occurred during that act.
13. As Mr King correctly submitted there was no intention to kill or to cause grievous bodily harm. If there was such an intention the matter would be murder and the matter would be in the Supreme Court. On the agreed facts that are before this court I could not be satisfied that the offender had an intention to cause any harm whatsoever.
14. Mr King then went on to describe the matter as an accident, although an accident that fell on the wrong side of Manslaughter. I agree with the learned Crown Prosecutor that to describe the matter as an accident is infelicitous.
15. It was submitted on behalf of the offender that the matter fell at the lowest end of objective seriousness. During the sentence hearing I inquired of the Crown Prosecutor as to whether he wished to respond to that submission. My note and memory of the reply was words to the effect of, "It is a question of degree, but the Crown would not necessarily disagree".
16. Clearly I am obliged to take all of the factual circumstances into account when making an assessment of the seriousness of the matter. Those circumstances include that the offender had a knife. The matter is very much well below the mid-range of seriousness but because of the presence of the knife the matter is not at the lowest end of objective seriousness.
17. The observation of the Court of Criminal Appeal in R v MD, BM, NA & JT at [40] is apposite to this case, namely: "…it must be clearly recognised that the events of the relevant night were a very significant tragedy".

Victim Impact Statement

1. That is an appropriate point at which to deal with the victim impact statement, which is exhibit B on sentence. The victim impact statement was prepared by the deceased's parents but read to the Court by a family friend, Rebecca Milojevic.
2. As I often observe when dealing with victim impact statements, the contents of that statement in this case so clearly and eloquently speak of the loss suffered by the family of the deceased. Clearly the deceased was a popular, much-loved and well-liked member of the community who enjoyed life. It is always regrettable when a young life is lost in circumstances such as are present in this matter.
3. The court offers the parents, family and friends of the deceased its sincere condolences. The court notes that a significant number of the family and friends of the deceased were present in court taking an interest in the sentence proceedings.

Criminal History of the offender

1. The offender was born on 22 July 1988 and accordingly is now 30 years of age and was 28 at the time of offending. He was convicted of Affray in 2008 and released on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act, 1999 for 15 months. He was also convicted in 2008 of Resist Police and Offensive Manner in respect of which modest fines were imposed. The other matters on his record are driving offences, although one matter is Drive While Suspended.
2. In all of the circumstances I agree with the submission of Mr King that the offender should be allowed some degree of leniency because of his limited record, noting in particular the age of the Affray matter. However, that degree of leniency will not be the same as if the offender had no prior matters recorded against him.

Subjective Case

1. No oral evidence was called from or on behalf of the offender, however Mr King read two affidavits, Exhibit 1 on sentence being affirmed by the offender and the deponent in exhibit 2 being Leanne Sanders, a cousin of the offender. Neither the offender nor Ms Sanders were required for cross-examination. In those circumstances the court accepts the contents of those affidavits.
2. The offender gave evidence of having a "pretty good" childhood. He identifies as Aboriginal through his maternal grandmother. He was reasonably good at school but left school part way through year 10. He had commenced using cannabis before he left school.
3. The affidavit continues that he was in a relationship with Ms Burgess for about five years with the relationship coming to an end when he was arrested and taken into custody. He had been using methamphetamine or "ice" for about 12 months before the separation, but is now abstinent. He worked with his father with removals. Both his parents are unwell.
4. Paragraph 9 of the affidavit reads: "I think about what happened a fair bit. I have to live with it. I still have nightmares about it. I've found it hard to sleep. The doctors have prescribed me Avanzas but I still have trouble sleeping. When I have to go through the brief or come back to court I get flashbacks. I never meant for it to happen. It was an accident. I want to say sorry to the family. I want to say sorry to my family and the witnesses who had to come to court and the judge."
5. At paragraph 61 of the report of Ms Wakely (exhibit 3 on sentence, to which I will return in more detail shortly) sets out: "Mr Lee demonstrated remorse for the offence and the victim and is continuing to exhibit trauma symptoms reactive to the offence…"
6. The contents of paragraph 9 of the offender's affidavit, noting he was not required for cross-examination, taken with the contents of paragraph 61 of Ms Wakely's report entitles the offender to a finding on balance that he is remorseful.
7. Ms Sanders at paragraph 5 appears to imply that Ms Burgess had some influence in the offender commencing to use methamphetamine. She paints a much more positive picture of the offender before he commenced the relationship with Ms Burgess. The offender has done volunteer work in the past.
8. Further Ms Sanders sets out that the offender has struggled with identity, meaning his identity as indigenous. She goes into some detail of the family's Aboriginal heritage through the offender's mother. Ms Sanders identifies as Aboriginal. She is very active within the aboriginal community. She is aware of a rehabilitation facility in Robinvale in northern Victoria and is of the opinion that that would be a positive thing for the offender to do. Clearly she intends to support the offender on his release.
9. I return now to the psychological report, Exhibit 3. The offender is now 30 years of age, is the youngest of three children and described his upbringing as "normal". His parents are separated but there no ongoing issues relating to that. The offender continues to enjoy considerable support from his family.
10. At paragraph 8 and continuing of the report the author sets out how the offender recounted to her that the relationship with Katie was positive to begin with but deteriorated when they both began using methamphetamine or "ice". The relationship became toxic. The relationship ended after the offender was taken into custody and the offender sees the ending of the relationship as positive.
11. The offender also told the author of the report that his drug use adversely affected his social network - see paragraph 13. The offender works as a sweeper in gaol. He identifies as Aboriginal and feels that he is accepted by the indigenous and non-indigenous communities.
12. Exhibit 3 sets out the offender is educated to Year 10 level. He left school to work with his father in the home removals business.
13. The offender suffered a head injury in a motor cycle accident some five or six years ago resulting in his sustaining concussion and requiring numerous sutures to injuries to his head and face. He discharged himself from hospital not waiting for results of tests and scans that were done. He does not suffer from any mental illness or condition. There were some issues relating to suicidal ideation when he first went into custody but it would seem that there is no ongoing issue in this regard.
14. The author of exhibit 3 on sentence used the Personality Assessment Inventory. The profile is reflective of someone with a long history of substance abuse and associated negative consequences. Mild depressive symptoms were present. A screening measure for post-traumatic stress disorder was administered and the author of the report indicates the need for what is described as formal intervention.
15. At paragraph 38 of the report the author goes into some detail of the offender's substance use. The offender began using amphetamines in social settings as well as ecstasy and cocaine when he was 18 to 20. He then began using ice which became his drug of choice which had negative impact on him, for example him being late for work and a changing social network. He has used buprenorphine twice in custody. Noting the prison discipline matters within the custodial history this use was illicit. The Crown drew the court's attention to this in the course of submissions.
16. The author of the report assesses the offender as being in the low-moderate range for general and violent recidivism. I note again that the offender has a limited criminal history. I note also the circumstances of the offending. With some minor hesitation I am prepared to find on balance that the offender is unlikely to reoffend.
17. The author of the report goes on to conclude at paragraph 60 that the offender's use of substances throughout the period at the time of the offending would have impacted on the offender's decision making and reactions to the victim.
18. Further, the author recommends that the offender will require assistance to address his substance use patterns and develop alternative coping mechanisms. There are certainly prospects of rehabilitation especially in the circumstances of the offender enjoying good family support. However, I am not prepared to find on balance at this point that there are good prospects of rehabilitation. Much will depend on the manner in which the offender engages with the relevant authorities upon his eventual release from custody.
19. That being said, I am of the firm opinion that there should be a reasonably generous finding of special circumstances in favour of the offender. This is his first time in custody and there is a need for an extended period of supervision to ensure that the offender effectively reintegrates into the community but moreover remains abstinent from illicit substances.

General Remarks

1. Neither party provided the court with the statistics kept by the Judicial Commission. This is hardly surprising given what the authorities say about the crime of manslaughter being one where the facts can vary so significantly. By way of illustration only of that significant variation, I note that the statistics indicate that of those sentences for manslaughter that involve custodial sentences the sentences vary from a total sentence of 3 years to 20 years and the non-parole periods vary from 18 months to 14 years. The sentences towards the upper end of that range are likely to be matters where murder has been reduced to manslaughter by reason of provocation. Mr King in the course of his submissions indicated that he could not find any case that was of any particular assistance in this matter. Given the very unusual factual situation of this case I do not find that surprising.
2. Both counsel for the Crown and the offender addressed on the issue of the seriousness of the matter. I have dealt with those submissions and the authorities to which I was referred in some detail. I have extracted above from the authorities referred to by the Crown Prosecutor. Specifically on the issue of sentence, the Crown submitted on the issue of substance use while in custody going to (as I understood the submission) the matter of likelihood of reoffending and prospects of rehabilitation.
3. Mr King urged that I would find that the offender is remorseful and that he is unlikely to reoffend. I have made those positive findings in favour of the offender. It was also put and I accept that given the offender has been a remand prisoner and having been moved to a number of different correctional centres he has had a very limited opportunity to undertake any courses. It is notorious that remand prisoners have very limited access to courses in custody. Mr King also emphasised a number of aspects of exhibit 3, which matters I have dealt with when summarising the contents of that report. All of those matters are of course, part of the general subjective mix to be taken into account in determining the appropriate sentence. A finding of special circumstances was also urged on the court and I have indicated that I will accede to that submission.
4. I must of course give effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 5(1) of the Act provides in effect that a court should not impose any sentence of imprisonment unless having considered all other options is of the opinion that no other sentence is appropriate. Given the nature of the offending, including that this matter involves the death of a human being and the maximum penalty provided I am firmly of the opinion that no other sentence is appropriate. I did not understand any contrary submission to have been made.
5. The offender has been in custody solely referable to this matter since 16 May 2017 and the sentence and non-parole period should date from that date.
6. Section 3A of the Act sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
7. In all of the circumstances I am of the opinion that the appropriate starting point for the total sentence is one of 6 years imprisonment, which with the deduction of the 25% for the utilitarian value of the plea of guilty results in a total sentence of 4 years and 6 months.

Orders

1. Tristan James Lee, in respect of the offence that you on 16 May 2017 at Tolland in the State of New South Wales, did unlawfully kill Daniel Paul Murdoch, you are convicted.
2. Consequent upon that conviction you are sentenced to a non-parole period of 2 years 9 months to date from 16 May 2017 and which will expire on 15 February 2020. The balance of term of 1 year and 9 months will date from 16 February 2020 and will expire on 15 November 2021.
3. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
4. The non-parole period is approximately 62% of the total sentence. This indicates a finding of special circumstances, the reasons for which have been enunciated within these remarks.
5. Although it is entirely a matter for the parole authorities I recommend that parole be conditioned that the offender obey all reasonable directions of the Department of Community Corrections relating to ongoing treatment and counselling for substance abuse.

Amendments 10 April 2019 - Name of solicitor amended 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: 10 April 2019