R v Turk

DUBBO: Friday, 13 October 2000 70006/00 - REGINA v Andrew Mark TURK

REASONS FOR SENTENCE 1 HER HONOUR: Andrew Mark Turk was arraigned before me on Tuesday 3 October, 2000 on an indictment charging him that on 11 March, 1999 at Nyngan he murdered Kevin William Forrester. He entered a plea of not guilty to that charge and a jury was duly empanelled. 2 On 12 October, 2000 the jury returned a verdict of guilty. Evidence was led on the sentence hearing and I heard submissions from counsel on that day. 3 Both the prisoner and the deceased were residents of Nyngan at the time of the relevant events. It appears that there was a history of animosity between them. Evidence was led of an incident on 12 February, 1999 when the deceased approached a car in which the prisoner was seated pulling him out of it and assaulting him. This incident took place in daylight in a main street of Nyngan in the presence of two of the prisoner's male friends. It was not suggested that the prisoner did anything to provoke this attack, or that he offered any resistance to it. 4 There was some evidence that after this incident the prisoner made enquiries with a view to finding out where the deceased was living. However, there was no evidence that he actively sought out the deceased in the period between 12 February and the date of the killing. 5 On the evening of Thursday 11 March, 1999 the accused called to the home of a woman named Nicole Rogers. He was having a relationship with Ms Rogers at the time. Not long after his arrival the deceased called to Ms Rogers' home asking for cigarettes. It appears that when the prisoner saw the deceased he ran and hid in a spare room. The deceased chased him into the room and punched him. Ms Rogers saw the prisoner recoil at the blow. She described him as staggering along her hallway. The deceased went and obtained a knife from the kitchen and returned and threatened the prisoner with the knife. He told the prisoner that Ms Rogers' husband was away and that he, the prisoner, should not call to her home. Shortly after this both men left Ms Rogers' premises. 6 The prisoner went to the home of an acquaintance located not far from Ms Rogers' house and asked if he could wash his face under the tap. He had a minor injury to the side of his nose which was bleeding. He told the occupants of the house, Heath Cobcroft and Shane Gristwood, that he had been assaulted by the deceased. The deceased appears to have been known by the nickname of 'Boof'. Shane Gristwood recalled the prisoner saying words to the effect: "I'm going to get Boof". 7 Not long after this encounter the prisoner spoke with a group of young men outside premises at 11 Bogan Street, Nyngan. He said that he had been in a fight with Boof earlier on and that Boof had pulled a knife on him, and that he proposed paying him back. He produced a knife which was housed in a plastic sheath and waved it around. As he did so he said: "I'll go and stab him. See how he likes it". 8 At the time the deceased was known to be staying at premises at 7 Bogan Street which were occupied by Bill Ryan and his wife Fiona. 9 The prisoner left the young men outside 11 Bogan Street and entered the Ryans' premises. Fiona Ryan gave evidence that the prisoner approached the deceased who was seated on a couch saying: "Do you think it's funny now?". She saw the prisoner crouching down making punching gestures towards the deceased. She got up, jumped over a couch, and went and hid in a bedroom. 10 Shortly after she heard the prisoner leave the premises. She walked to the back of her premises and saw the deceased lying in a pool of blood on the cement apron outside the back-door. As the prisoner left the premises he was heard to call out repeatedly: "Get to hospital you maggot". He walked down Bogan Street towards Nyngan Street and disposed of the knife by throwing it into an area of grass located near the Bogan River levy bank. 11 The medical evidence showed that the deceased sustained three wounds to the chest. Two wounds penetrated in the vicinity of the left nipple. The fatal wound was approximately 200 millimetres long. It passed between the third and fourth ribs cutting through part of the third rib, passing through the upper lobe of the left lung and entering the sac which surrounds the heart. It severed the pulmonary artery. 12 The second wound in the vicinity of the left nipple passed between the third and fourth ribs and between the lung and the structures inside the lung. It was not possible for the doctor to determine the length of this wound since it ended in a space in the chest cavity. 13 The third wound was to the lower left chest. It penetrated the body to a depth of 180 millimetres passing through the diaphragm and stomach. 14 The deceased sustained another wound to the right upper arm which penetrated through the arm together with a number of cuts to other parts of his body. The wound to the arm and the various cuts may all have been defence wounds. 15 I turn firstly to a consideration of the prisoner's intention at the time he delivered the three wounds to the chest. Notwithstanding that two of the wounds were inflicted in the vicinity of the heart, I am not satisfied to the requisite standard that the prisoner had formed an intention to kill the deceased at the time he stabbed him. I do not consider that an intention to kill can be inferred from the character of the things said by the prisoner to various people prior to the stabbing. 16 I bear in mind that the events inside the premises at 7 Bogan Street unfolded very quickly from the time when the prisoner first produced the knife. 17 I approach the matter upon the basis that the prisoner was angered by the deceased's assault upon him in Ms Rogers' home earlier that evening. As a result of that assault the prisoner determined that he would get even with the deceased. At the time he stabbed the deceased he intended to do him really serious bodily harm. 18 Although evidence was led of a history of antagonism between the two men dating back at least to 12 February, 1999 I do not find that the prisoner had been planning to exact revenge on the deceased over that period, rather I approach the matter of sentence upon the basis that the decision to stab the deceased was arrived at relatively shortly, probably less than half an hour before it was carried into effect. 19 A question which next arises is whether after the assault on him at Miss Rogers' house the prisoner went and armed himself with the knife or whether he had the knife on him and that he simply followed the deceased from Cannonbar Street to the Bogan Street premises. I do not accept the prisoner's evidence, given at the trial, that he had the knife on him because he had used it earlier that afternoon fishing. 20 On one view of the evidence there was sufficient time for the prisoner to go to his family home in River Street, Nyngan and collect the knife before walking to Bogan Street. Some support for this view might be thought to come from the evidence of Steven Couley that the prisoner approached him in Bogan Street walking from the direction of Nyngan Street, which I note is also the direction from River Street. 21 Further, as the Crown Prosecutor noted, the witnesses Heath Cobcroft and Shane Gristwood gave no account of the prisoner producing a knife in their presence. This is to be contrasted with the prisoner's behaviour in the presence of Steven Couley and his friends. 22 The Crown Prosecutor fairly conceded that the evidence simply does not admit of an affirmative finding on this issue. Accordingly I approach the matter upon the basis that there is no evidence that the prisoner planned the attack by deliberately arming himself. I accept that it is open to conclude that the prisoner was carrying a knife on him at the time of the incident at Nicole Rogers' home. 23 Notwithstanding that the deceased had earlier committed an unprovoked assault upon the prisoner, the killing remains objectively a very serious offence. It was the prisoner's account that he was scared of the deceased and that he wished to keep out of the deceased's way. The evidence showed that in the short period following the assault upon him he deliberately sought out the deceased. Rather than inform the police of his fears, he chose to exact private revenge. 24 The prisoner is aged 31 years. His criminal record is a poor one. It discloses a pattern of criminal offending dating back to when he was aged 14 years. In 1989 the prisoner was convicted of attempting to discharge a firearm with intent to avoid apprehension. The facts relating to that matter show that the prisoner following a dispute in a local hotel collected a loaded rifle and attempted to discharge it while aiming at a police officer. Police had attended the scene in answer to a call concerning the earlier incident at the hotel. The prisoner attempted to discharge the rifle on three occasions. Fortunately on each occasion the mechanism failed and the rifle did not discharge. In the course of a record of interview concerning this incident the prisoner said he had attempted to discharge the rifle because he was mad. He agreed that he had earlier pointed the loaded weapon at the publican saying: "Make my day". The prisoner was sentenced to a term of eight years imprisonment with a non-parole period of five years. 25 Prior to his arrest on that occasion the prisoner had been charged with an assault in respect of which he was sentenced to three months imprisonment. Following his release from custody, after serving the sentence imposed on the firearms charge, the prisoner was convicted of assault occasioning actual bodily harm and of two counts of common assault. In October 1995 he was again convicted of assault occasioning actual bodily harm. On this occasion he was sentenced to a further term of three months imprisonment. 26 I have detailed the prisoner's criminal record at some length not because he should be doubly punished for crimes committed in the past, however, it is the Crown's submission that the present offence illustrates the prisoner's continuing attitude of disobedience to the law in association with his readiness to react with violence when angered. It is submitted that considerations of retribution, deterrence and the protection of society should be given appropriate recognition in the light of this background. I accept that submission bearing in mind that the sentence I impose must not exceed that which is proportionate to the gravity of the offence. 27 The prisoner has exhibited no remorse for his offence. At his trial he maintained that the killer was his friend, Bill Ryan, the occupier of the premises. Mr Ryan had died as a result of a tractor accident in June 1999. The prisoner's evidence at the trial in this regard was to my mind frankly incredible. 28 The prisoner was arrested on 12 March 1999. He has been in custody since that date. On the prisoner's behalf evidence was lead from Ronald Bright of Neiling Station, Girilambone. Mr Bright told me that since the prisoner was a teenager of 14 years or so he has worked for him carrying out a variety of farm tasks. He was one of the best workers Mr Bright had employed. The employment had not been on any regular basis for any sustained period, however, whenever Mr Bright had work available he would contact the prisoner. 29 Little, apart from the prisoner's good work report from Mr Bright, was placed before me on his behalf. It appears that the prisoner has spent his life in Nyngan where his family reside, and that the family is generally supportive of him. I take these matters into account in his favour. I note the contents of the report prepared by Doctor Hammil dated 25 August 1989 which was before his Honour Justice Wood in the earlier sentence proceedings. That discloses that the prisoner as a child suffered from petit mal episodes. In 1988 the prisoner consulted Doctor Hammil complaining of a history of fits consistent with grand mal epileptic fits. Neurological examination was normal. Doctor Hammil considered an EEG should be carried out. There was no evidence that this had been followed up. Justice Wood recommended that the Prison Medical Service arrange for the conduct of an EEG. No evidence was before me concerning the outcome of any investigation of this nature. 30 No submission was advanced that special circumstances exist such as to justify a departure from the proportion as between the sentence and the non-parole period specified in s 44 (2) of the Crimes Sentencing Procedure Act (1999). In my view the evidence does not disclose the existence of special circumstances. 31 Andrew Mark Turk, I sentence you to a term of eighteen years imprisonment. That sentence will be taken to have commenced on 12 March 1999. I specify non-parole period of fourteen years. The first date on which you will be eligible to be released on parole is 11 March 2013.

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