R v Veech

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: On 5 December 2000 the prisoner was indicted for the murder of Brett Van Grecken. To that charge he pleaded not guilty. He was acquitted at his trial of the charge of murder but found guilty of manslaughter. It is clear that, in returning its verdict, the jury found that he had not been acting in self-defence. An issue has however arisen as to whether the verdict returned was one of manslaughter by reason of provocation, or one of manslaughter by reason of an unlawful and dangerous act. For the resolution of that issue, which is of some importance for sentencing purposes, I will need to examine the evidence in a little detail. FACTS 2 The prisoner lived with his de facto partner Jane Ahweto at number 9 Third Avenue, Toukley. These premises were leased through the office of L J Hooker in that suburb. The deceased, who had been a friend or at least an associate of the prisoner for some time, had a history of mental illness and admissions to various psychiatric hospitals over the years in relation to a bipolar disorder and frontal lobe syndrome attributable to a motorcycle accident. Although seemingly free of hospital admissions since 1994, he was known from time to time to enter into manic episodes, in the course of which he spoke quickly, became hyperactive and verbally aggressive. 3 It was the opinion of Dr Barclay that he had not been properly managed in hospital for these conditions and that he needed medication to control his behaviour. At the time of the offence he was, however, out and about in the community, and he was not taking any medication, nor apparently was he under supervision. 4 By reason of his condition he had a minor criminal record for offences of assault and similar matters, some of which were dealt with under section 32 of the Mental Health Act. On one occasion, when stopped by police, he had endeavoured to set fire to a motorcycle. On another occasion proximate to his killing, he had behaved in an aggressive manner towards the owner of a property at Wauchope. This occurred after he had struck a polytank on that man's property with his motor vehicle. His behaviour towards the wife of a close friend had seen him become subject to an Apprehended Violence Order, following an incident in which he threatened her. Several subsequent breaches of that AVO apparently occurred. On another occasion he had been seen by the prisoner to push his girlfriend to the ground. 5 His girlfriend and mother, however, did not consider him to have been entering into a manic state over the days preceding his death. Indeed, his mother said that he had been solicitous towards her and apparently was very happy with his relationship. His girlfriend similarly said that he seemed to be fine, although there had been an incident some weeks earlier when he had set fire to the fringe of an embroidered tablecloth and pushed her aside when trying to put it out. This, it seems, was the incident seen by the prisoner. Additionally, she said, he had been a little snappy and cranky towards her in recent times. 6 The deceased was not in employment but he was a keen home mechanic, and it would seem he was accustomed to carrying out work on motor vehicles of mutual friends at the home of the prisoner, in some form of joint venture with him. During the month or so preceding the offence there were at least three vehicles on the premises awaiting work by him. One was a Ford Falcon owned by Grant Davies, another was a Commodore sedan owned by Adam Beatty, into which the motor from a Holden was to be installed. In return for this work, the deceased was to receive the gear box from the Holden and the old motor from the Commodore. He had a number of items of equipment on the premises, including an engine lifter, an electric arc welder and a bag of tools for use in his work. 7 The presence of the vehicle, and of the various engine parts and tyres, was a cause of concern for the managing agent, who during an inspection on 17 November 1999, as confirmed by a letter, required their removal. A date for further inspection on 29 November 1999 had been fixed. 8 The prisoner admitted that he had been placing urgency or pressure upon the deceased to finish up the work so that the vehicles could be removed. He was also somewhat annoyed with him for making visits to his home, and for speaking to his de facto partner when he was not there. 9 On the night before the shooting, that is on 27 November, the prisoner spoke to the deceased's partner and informed her in explicit terms of these concerns and made some reference to having friends who could "sort Brett out". By this time, he had reached the stage where he had decided that the deceased was causing him problems and had indicated to him that, after he finished the work on the vehicles, he was not to come around any more. 10 The girlfriend of the deceased was not impressed by this conversation and made her feelings known to him. He called in at the prisoner's home at about 11.30pm, knocked on the door, mumbled and growled at him and then left, driving past the house at high speed on his way back to his own home. 11 On the following morning, the deceased arrived at the premises at about 6.30am. He went to the carport and, using the engine lifter, lowered onto the ground the engine that was to be installed into the Commodore, and then removed the engine lifter, the welder and his tools and placed them in the back of a panel van that he had converted into the utility in which he had driven to the premises. 12 There followed a brief confrontation between the prisoner and the deceased at the side gate where the deceased complained of the prisoner bad mouthing him, and the prisoner made some observations about the work he had expected in relation to the motor vehicles. The prisoner said that the deceased was speaking loudly, rapidly and angrily and was "in his face". He added that the deceased swung a punch at him. The prisoner went inside and as he did so, he said, the deceased threatened to "fix him". 13 The deceased walked off to towards his utility. Fearing that he was "going off" and was about to return with a weapon, the prisoner loaded a .22 Browning rifle with a number of Winchester hollow pointed rounds. He went to the front security door where he saw the deceased walking to the rear of his utility. He thought that he saw him reaching into the tray of the vehicle, and he jumped to the conclusion that he was reaching for a rifle or a similar weapon. 14 In order to head him off, he went outside with his rifle. Near the rear of the vehicle he fired one shot which hit the deceased in the left side as he was facing the vehicle. This round passed through his left arm and left side of the chest penetrating each lung. The prisoner fired a second shot which struck the deceased in the back severing his spinal cord. He fell to the ground, being no longer able to maintain any control over his lower limbs. 15 The prisoner then fired two more rounds from close range into his body as he lay on his back. Each shot occasioned major damage to the vessels of the deceased's heart bringing about his almost immediate death. Without these two further wounds, Dr Oettle said that there would have been a reasonable probability that, with medical attention, the deceased could have survived the effects of the first two shots. 16 The prisoner did add that, in the course of these events, he had noticed the deceased at some stage ducking down behind the tray of the utility. He thought him to be playing games, although whether that was the case or whether the deceased had tripped, is a matter which cannot properly be resolved. It is, however, a matter relevant to the prisoner's belief. Following these shots the prisoner walked up to the prone body of the deceased and hit him, without any great force, to the forehead with the butt of the rifle, saying words to the effect "That will teach you to fuck with me". 17 Various neighbours, who observed the events this morning, heard portions of the noisy and angry exchanges, which clearly took place before the shooting, involving both men. Several witnesses heard the deceased complaining to the prisoner that he had upset his missus and calling him outside. He was said to sound very angry and some heard him banging, possibly on the side of the house or on the front door, or on the walls of the garage. 18 In addition, some witnesses heard the deceased asking the prisoner, after he saw him with a rifle, what he intended to do with it, and then inviting him to shoot. Some witnesses also heard him say after the first two shots "You win, I give up". 19 No one, however, saw the deceased reaching into the vehicle as if he was trying to fetch a weapon, nor did any of the witnesses see him with a weapon. No weapon was in fact found on his person, or in his vehicle. The prisoner agreed in the ERISP that he did not see him with any weapon, but he said he was "95 to 100 percent sure" that he had gone to the utility to fetch one. This conclusion, he explained, was based upon the deceased's rage that morning, his belief that he had a history of mental instability, his recollection of him speaking about some, it would seem fictitious, military training and/or experience as a sniper, and his alleged sighting of two weapons, including a Canadian machine carbine, at the home of the deceased's mother a few weeks earlier. 20 No other witness had seen the deceased in possession of weapons of this kind, nor did they have any recollection of him speaking about weapons in a way suggesting that he had some undue interest, or preoccupation, either with them, or with military activities. He did, however, have some training and a past interest in martial arts. 21 The prisoner acknowledged, in the ERISP, that he did not know whether the deceased's tale of military experience and of having been a sniper with the Air Force was true or a fantasy, however, he said that he was not sure of his capabilities and he was not prepared to take a chance, in case the deceased came back with a weapon and attacked him and his de facto in the house. 22 The case was one of excessive self-defence in which the prisoner responded in a way that was not lawful, having leaped to a conclusion for which he had no reasonable grounds. The deceased, it is true, was volatile and unpredictable, but the arguments or differences, that had developed over the few days preceding the shooting, were by no means one-sided. There was clearly a good deal of anger and frustration on the part of the prisoner in relation to the delays over the motor vehicles, which would not have been assisted by the realisation that he was about to be left with an immobile Commodore, and an engine on the ground, while facing an inspection by the real estate agent, and in relation to his de facto's obvious dislike of the prisoner. 23 Having regard to the fact that the prisoner knew of the deceased's problems, yet had chosen to befriend him and allow him to work on motor vehicles with him, he should have made some allowance for his volatility and for the possibility of a disturbed response on his part if criticised, or if placed under pressure. 24 The preceding record of the deceased was mainly one of verbal or threatened aggression. There was no suggestion that he had ever used a weapon against anyone else, nor was there any clear indication that he proposed to do so on this occasion. 25 I am satisfied beyond reasonable doubt that, in the circumstances outlined, this was a case where the prisoner intended by his very deliberate actions in shooting at the deceased twice while on his feet, and twice while he was lying on the ground and also by reference to his acknowledgment that "he did not feel safe" until the deceased stopped moving, as well as by his act of striking the deceased after the last shot, that he intended to discharge the rifle at him with intent to kill. 26 The case is one in which I am accordingly satisfied, beyond reasonable doubt, that the verdict should be regarded as one reached by a reason of provocation rather than one of manslaughter by an unlawful and dangerous act. I am similarly satisfied, in the circumstances outlined, that this should be regarded as objectively a serious offence of its kind. 27 In reaching that conclusion, I have had regard to the three considerations weighing on this issue in provocation/manslaughter cases that were identified by Hunt CJ at CL in Alexander (1994) 78 A Crim R 141 at 144: "A study of those cases - confirmed by the academic article to which I have referred - suggests that three particular matters which have been taken into account in provocation manslaughter cases are:

(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and

(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence." 28 The degree of provocation offered in the circumstances outlined was significant, but not extreme, comprising some implied threats, banging on the fabric of the dwelling, the throwing of the punch and yelling. It was also of an annoying kind, having regard to the delay in the repair of the motor vehicles, the early hour of the visit, and the implicit message of the deceased that he was not going to resume work on the vehicles which had to be removed from the premises. 29 There clearly was a loss of self-control on the part of the prisoner, but that too was a result of mixed motives or emotions stemming from anger at being disturbed early in the morning, frustration in relation to the non repair of the motor vehicles, and also a degree of panic and misapprehension as to the significance of the conduct of the deceased; that is, as to whether he was going to fetch a weapon or was withdrawing from the scene. The response of the prisoner was very deliberate and controlled, so far as it saw him seek out and load a firearm, follow the deceased out to the street, shoot him repeatedly, both while on his feet and after he collapsed, even after it was obvious that he was unarmed, and then strike him on the head, when defenceless and posing no further threat. 30 Although it is clear that the prisoner intended in part to bring an end to the threat that he saw the deceased possibly imposing, he was also determined to punish him for his perceived provocation. There can also be no doubt that, to a degree, the prisoner contributed to the confrontation that developed in the street by reason of the implicit threat that had been made the night before to the deceased's partner, and by reason of the pressure that he had been placing upon him, even though he knew him to be psychologically fragile. 31 The time between the provocative conduct and fatal response, it may be accepted, was short, and his action was spontaneous, that is, unpremeditated. The significance of that is, however, reduced by the circumstance that the prisoner followed the deceased to his vehicle, and there significantly escalated hostilities in a controlled and deliberate way, without waiting to ensure that there was to be an actual presentation of weapon by the deceased rather than a simple departure from the scene. The degree of violence employed by the prisoner can only be categorised as extreme, in circumstances where four shots were fired, two when the deceased was defenceless and offering no resistance.

SUBJECTIVE CIRCUMSTANCES 32 The prisoner is now 26 years of age. He was 25 years old at the time of the offence. He had no criminal record of any moment prior to the offence for which he is now to be sentenced. He did, however, have convictions, recorded on 2 August 2000, for offences of possess prohibited drug and cultivate prohibited plant. This followed from the finding by police of some cannabis, and cannabis plants that were growing hydroponically in a bedroom of his home, when it was searched on the day of the shooting. These offences led to a fine and to his release subject to a two year bond, conditioned upon him accepting the supervision of the Probation and Parole Service for two years and undergoing drug and alcohol counselling treatment. 33 He appeared off bail for trial, although he had spent some 136 days in custody before being released on bail for which he is entitled credit. Following his conviction on 18 December 2000 he has been back in custody. As a consequence, he has, to this day, served 188 days in custody solely in reference to the offence of manslaughter. He is entitled to the full benefit of that presentence period. 34 The presentence report discloses that his progress, whilst subject to the supervision of the Probation and Parole Service, appeared to have been borderline in that he failed to attend a drug counselling programme as directed, and was unreliable in reporting. The explanation offered on his behalf is that the failures occurred in the context of the turmoil he faced while waiting trial for the present offence, and that, for the purposes of counselling, he was directed to report in the Cabramatta area, a location, which it may be accepted, was less than desirable if he was to receive counselling for a drug problem. It follows that I do not think that too much significance should be weighed against him in relation to those apparent failures. 35 The report further disclosed that his parents had separated when he was very young, and that he had had little contact with his father, although he does have supportive relationships with his mother, stepfather, siblings and his fiancee. His schooling was interrupted by many moves, as a boy and adolescent, and was terminated in year 11. He had failed to gain entry into the Air Force and Army and he worked largely in unskilled positions before being involved in a motor vehicle accident in 1993, for which he later received an award of damages. Since then, he had not held down any long-term employment, although he had several short-term sales type positions, and in fact had been employed by the MBF in one such position for the six months or so leading up to his trial. 36 The report also discloses that he began to use cannabis as a teenager and developed a significant habit for it in later years, particularly following the motor vehicle accident, after which time he claims to have used the substance for pain relief. 37 The report recorded him as having expressed some regret and remorse for the offence, although that appeared to be overlaid with concern for his own position and with a perceived resentment or annoyance with the Mental Health authorities, and other authorities, for not having taken more direct or effective action to control the behaviour of the deceased. 38 Dr Westmore, a forensic psychiatrist, who saw the prisoner in November 2000, also noted that he had strong feelings of regret for what had occurred and that he had provided a history of having suffered depression, and of a traumatic stress disorder, after his motor vehicle accident and had been a long-term user of cannabis as well as having experimented with other drugs at parties. The diagnosis at the time of his examination was one of a depressive reaction, no doubt due to the fact that he was facing trial for murder, and of polysubstance abuse. He was not considered to have available any defence of mental illness or substantial impairment, and he was not seen as representing an ongoing risk or danger to the public. Otherwise, the report of Dr Westmore adds little to the presentence report.

THE SENTENCE 39 The offence of manslaughter is a particularly serious crime since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system. See Hill (1981) 3 A Crim R 397 at 402 per Street CJ; McDonald NSW CCA 12 December 1985; and Blacklidge NSW CCA 12 December 1995, where Gleeson CJ said at page 4: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life. That is the starting point for consideration of the appropriate penalty, and a key element is the assessment 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)." 40 The fact that the offence carries a maximum sentence of imprisonment for twenty-five years, provides a powerful indicator as to the seriousness with which it is regarded, and also as to the need to pay particular regard to the objective severity of the case in hand so as to ensure, as the Court of Criminal Appeal made clear in Foulstone NSW CCA 1 July 1990 that the sentence is commensurate with the seriousness of the crime, in the sense that, having regard to all of the proved circumstances of the case, it accords with the general moral sense of the community. 41 The reason for care in this regard, particularly in weighing the objective severity of the offence, lies in the circumstance that manslaughter is an offence characterised by a wide range of sentencing options, since it embraces a great variety of activities, extending from the morally almost innocent to the seriously culpable: See Troja NSW CCA 16 July 1991 per Kirby P. In some cases, of which the present is an example, it arises from acts deliberately carried out with an intention to kill or cause grievous bodily harm, the culpability of which is diminished because of provocation. In other instances, it arises from culpably negligent acts where the perpetrator did not have in mind occasioning any serious harm to the victim. 42 For these reasons comparison with other cases, such as those noted by Hunt CJ in Alexander, and that identified in the submissions of the Crown, including Khan (1996) 86 A Crim R 552 and Dally 2000 NSW CCA 162, or with sentencing statistics are of limited value: Morabito (1992) 62 A Crim R 82 at 86. 43 As I have observed, the objective criminality in this case was significant, although subjectively the prisoner's circumstances are not unreasonable. I accept that there is no reason to suppose that he is likely to reoffend in a similar way or that he is in any particular need of post release supervision to facilitate his rehabilitation, other than in relation to his use of cannabis. 44 Taking those matters into account, it is still necessary in a case such as the present to reflect both personal and general deterrence and in particular to underline the proposition that too ready a resort to firearms or similar weapons in situations of actual or potential conflict is likely to attract the attention of the criminal law. 45 Although the prisoner was entitled to proceed to trial, and is not to be additionally punished for that, his decision to do so disentitles him to the discount which he would have received had he pleaded guilty to the lesser offence of manslaughter. 46 I am satisfied, in all the circumstances outlined, that the present offence is such that the only proper sentence, in accordance with section 51 of the Crimes Sentencing (Procedure) Act 1999, is one of imprisonment. I am also satisfied that it should be a sentence to be served by way of full time detention. I am not persuaded that special circumstances have been shown, that is, in the absence of any particular reason why an opportunity for extended release upon parole should be provided. 47 The only matters that call for consideration in this regard relate to his age, the residual effects of his motor vehicle accident and the possible benefits of supervision and counselling for his drug problem. In that regard, it seems, from Dr Westmore's account, that he has already begun to address that problem by moderating his use of cannabis, and he does have a significant family support network. Additionally, I am of the view that the period of potential release, that I consider appropriate, is sufficient for him to be supervised, particularly if he takes advantage of the programmes that are available within the correctional system to address the problem. It would be appropriate that any residual depressive condition of the kind observed by Dr Westmore be appropriately treated, and for that reason it will be desirable that a copy of Dr Westmore's report accompany these remarks on sentence when they are delivered to the appropriate authorities. 48 For the offence of manslaughter, of which the prisoner has been convicted, I consider an appropriate sentence is one of imprisonment in the order of six years and six months. As I have observed, it is necessary to backdate that sentence to take into account the broken periods of custody already served. 49 After discussion with counsel, it has been agreed that the most appropriate way to reflect the sentencing order which I have in mind, being one which would allow for a head sentence of six years and six months, and for a non-parole period equivalent to three-quarters of that period, is to backdate to 18 December 2000 and then to reduce the sentence commencing from that date, as well as the non-parole period, by 136 days so as to allow for the balance of the broken period of custody. 50 Upon that basis then, I sentence you Damien Justin Veech to imprisonment for six years and six months, less 136 days, that sentence to commence from 1 December 2000 and to expire on 1 February 2007. I specify a non-parole period of 59 months, also less 136 days, to commence from 18 December 2000, that non-parole period to expire 24 June 2005. As a consequence, the earliest day on which you will be eligible for release on parole will be 25 June 2005. 51 In the event that the calculations, made with the assistance of Counsel, turn out to be incorrect as to the relevant dates, the matter can be relisted for correction under the slip rule. Note: 19/02/01: pursuant to slip rule sentence varied by substituting earliest date for release on parole is 4/7/2005 ----------

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