[2001] NSWCCA 534
The Queen v Olbrich (1999) 199 CLR 270
Source
Original judgment source is linked above.
Catchwords
[2001] NSWCCA 534
The Queen v Olbrich (1999) 199 CLR 270
Judgment (16 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions
McGirr Lawyers
File Number(s): 2016/337044
[2]
Judgment
HIS HONOUR: Henry Charles Walcott (the offender) is to be sentenced for the unlawful killing of Cameron Bradley at Leura on 10 November 2016. He stabbed Mr Bradley in the chest with a large knife causing a wound from the point of entry just below the collar bone, down through the left lung and into the pericardium where it perforated the ascending aorta. Mr Bradley died quite quickly.
At trial, manslaughter by way of an unlawful and dangerous act as well as by way of excessive self-defence were both left to the jury as alternatives to the primary charge of murder. The offender's case was that he was not guilty of both murder and manslaughter. The jury returned a verdict on 25 February 2019 of not guilty to murder but guilty to manslaughter.
The maximum penalty for manslaughter is imprisonment for 25 years. [1]
I am satisfied that excessive self-defence is the appropriate basis upon which to proceed to sentence. There is no sensible alternative explanation for why the offender killed a man who was his friend other than that there is a reasonable possibility he believed that it was necessary in order to defend himself. The manner in which the offender killed the deceased leaves no room to doubt that he intended to kill or at least cause grievous bodily harm.
The offender and Mr Bradley had been friends since they met in about June 2016. Mr Bradley was a customer at what was referred to as a "pork roll" shop in Petersham where the offender worked as a sandwich hand. The offender became a regular visitor to Mr Bradley's home where drugs were consumed.
Mr Bradley used a variety of drugs but particularly methylamphetamine (ice), to which he was addicted.
Mr Bradley was experiencing some turmoil in his personal life. His mother had died in November 2013. His brother, Andrew Bradley, gave evidence that Mr Bradley commenced using ice in the context of stresses associated with their mother's illness. [2] He had been in an intimate relationship with a woman which broke down. He anguished over this, as well as his perceived abandonment by friends who were in his former girlfriend's social circle. His brother became concerned about his mental health. There was suicidal ideation but no physical attempts at such. One friend thought that Mr Bradley made self-harming comments for their "shock value". [3] Another said that she never saw or heard of him attempting suicide; "it was always talk". [4]
A woman with whom Mr Bradley had a short relationship in mid-2016 described him as becoming "obsessive and intensely paranoid" when using ice. [5] Various text and social media messages sent by Mr Bradley were indicative of him having some very dark and disturbing thoughts, including by making references to a mass school shooting and to a serial killer in the United States. However, there was evidence to the effect that Mr Bradley was never aggressive or violent. The offender himself said that Mr Bradley had never behaved in such a manner towards him, or when he was in his presence. [6]
The offender had a habit of smoking cannabis and taking MDMA. He said in his evidence that his usage increased after the death of his mother in December 2015. However, in about September 2016, he commenced a period of abstinence from all drugs.
The offender arranged to go away with Mr Bradley to the Blue Mountains just west of Sydney where they were to stay at the house of a friend in Leura. They drove up there late on the afternoon of Tuesday 8 November with the intention of staying for two nights. From their arrival until the early hours of Thursday morning, they consumed drugs including cocaine, GHB, and ice. They slept little, if at all.
At just after midday on Thursday 10 November 2016, the offender rang the triple-0 emergency number and reported that he had "killed someone", a friend, with a knife. The operator asked, "What's all this stem from" and he told her that he did not know.
In a statement he wrote at the Katoomba Police Station that night, the offender provided an account of some rather bizarre conversations he had had with Mr Bradley, which included Mr Bradley indicating that only one of them would be leaving the house alive and that, "if I was not willing to go ahead with it then he would". The offender picked up a large knife from the kitchen bench. A struggle ensued and they fell to the ground. He wrote:
"There was a bit more of a struggle but I took a stab at him and bounced off. After this I tried again and I think there was some kind of puncture around the chest I think. But when seeing that these attempts had been fairly futile, I noticed that there was a very clear path for the neck area, so I took it trying to cut across, after this blood started appearing everywhere …"
In his evidence before the jury, the offender described "some strange conversation". He said that it included Mr Bradley saying, "Can't you see how fucked that is" and then, sometime later, "You should have realised something like this was going to happen". There came a point at which Mr Bradley went into the kitchen and picked up a knife. He said Mr Bradley said something about being "cornered". He then put the knife down on the kitchen bench and said something like, "I was going to get a gun, but I thought it would be more fun this way". [7]
Those events occurred sometime before the killing because the offender then described the pair then sitting down and talking. The offender said that in the course of this conversation, he asked Mr Bradley, "Can't we just talk about this and then go home?" [8]
He said that he had thought of leaving prior to this point. At one stage when he thought there was something "sinister" going on, he had walked "very briskly" to the front door and turned the door handle, but Mr Bradley said to him, "Where are you going to go? It's your friend's house, you know, I am still going to be here when you have to come back." He said there was another occasion when he "had gotten up and I'd gone to leave, and Cameron said to me, 'I don't want to have to chase you to the door and tackle you'." He claimed that there were two occasions when Mr Bradley had told him that he had "armed himself". [9]
The offender said that in the 30 minutes leading up to the killing, he thought Mr Bradley was in "an aggressive sort of mode … He was saying things to me, including and also similar to, 'I've been very patient with you and it's time to make a decision about this'. He also said that he - I'm fairly sure he said, 'I'm not a violent person, but at some stage I am going to feel cornered and I am going to have to do something'." The offender said that this made him feel "terrified". He said that was because he thought Mr Bradley was going to attack him. [10]
The offender picked up the knife from the kitchen bench. He walked in the direction of the front door but close to where Mr Bradley was standing. He said he was holding the knife "reasonably close to the side of my leg". [11] Mr Bradley approached him and said, "Get the fuck back over there" (meaning back in the kitchen [12] ). The offender said he kept walking until they "came to the same place". He said he "held the knife out away from my body and as he stepped towards me, I kind of lowered my shoulder and tackled him". [13]
The offender said that they both hit the ground and there was a struggle. He was holding the knife in his hand and Mr Bradley was trying to get it out of his hand. He said that for maybe a minute or so, "I was trying to push it towards him and he was trying to push it towards me". [14] The offender said that his hand then broke free and "I tried to stab him". It came into contact somewhere on Mr Bradley's arm and had no effect. [15]
The struggle continued and "then I tried to stab him again … just around the chest area". This had no effect. He said, "We continued to struggle and I sort of tried to go for his neck area … that's when he stopped struggling". Shortly after that he noticed a large amount of blood. [16] He then dragged Mr Bradley, who was not moving, into the bathroom where the body was later found. [17]
The offender gave evidence of his subsequent actions. He paced within the house. He cleaned the blood off his hands. He then went out to his car and drove away. After a few minutes he decided that he should return to the house. He then paced around some more, smoked a couple of cigarettes, and then called triple-0. [18] (The call was made at 12.07pm and it seems to be common ground that the killing occurred at about 10.00am.)
At the conclusion of his evidence in chief, there was the following exchange:
Q. Can you tell the Court what you were thinking at the time you walked towards Mr Bradley?
A. I was just in fear for my life. I thought that Cameron wasn't going to let me leave and that I wanted to get out. [19]
The offender agreed in cross-examination that he deliberately stabbed Mr Bradley in the chest. In doing so, he said he was "trying to subdue him". He denied thinking of the level of harm this might cause; he was "just trying to injure him". [20] However, he agreed that when he tried to cut across Mr Bradley's neck, he was trying to kill him. [21] The Crown Prosecutor submitted to the jury that by saying in his statement to the police that the previous "attempts had been fairly futile", the offender was indicating that he had the same intention with the earlier attempts as he did a short time later when he tried to cut Mr Bradley's throat, namely to kill him.
The offender agreed that Mr Bradley was unarmed. The last time he had been armed "would have been maybe two hours before". [22] With reference to the evidence of the forensic pathologist, he agreed that there were six or seven occasions when the knife actually penetrated Mr Bradley's skin but he could only remember stabbing him three times. [23]
[3]
Family victim impact statement
Mr Andrew Bradley, Cameron Bradley's eldest brother, provided a family victim impact statement.
The statement sets out in considerable detail the significant emotional and psychological impact that the tragic loss of his brother has had upon him. The examples of pain and anguish he has experienced are quite personal so I won't spell them out. However, I do propose to quote what Mr Bradley said about what he hopes to achieve by providing the statement:
"I am hopeful … that this Statement makes it clear to the Court that Cameron was loved, that his passing has deeply affected his family and friends, and that his life should not be devalued because of the fact that he struggled with his mental health and with drug addiction. He was a loving and compassionate brother and I'm deeply saddened by the fact that my children will miss out on having him in their life."
It assists the Court and the community at large to understand the unique tragedy each case of this type has when its personal effects upon family, friends and loved ones are made known. I am grateful to Mr Bradley for having provided this statement. He, and all those who were close to Cameron, have my sincere sympathy.
[4]
Gravity of the offence
There are a wide range of circumstances in which the crime of manslaughter may be committed but the starting point is the recognition in every case that it involves the unlawful taking of the life of a fellow human being. [24]
There are number of factors relevant to an assessment of the gravity of the offence in this case. I pause to observe that matters adverse to the offender are matters of which I am satisfied beyond reasonable doubt. [25]
The offender deliberately armed himself with a knife that he picked up from the kitchen bench, albeit only moments before using it to kill the deceased. While I must accept that the offender believed that it was necessary to do what he did in order to defend himself, his response was grossly disproportionate and unreasonable.
There were a range of non-violent means of diffusing the situation or removing himself from the threat the offender perceived from Mr Bradley. But the offender chose to pick up a knife of significant size and approach the vicinity of where Mr Bradley stood. Mr Bradley was not displaying any physical signs of aggression at the time, nor had he at any point previously. I assume Mr Bradley became concerned as the offender approached him armed with a knife. It is little wonder that he told him the offender "Get the fuck back over there", and then stepped in the offender's direction. [26] The offender said his response to this was to lower his shoulder and tackle Mr Bradley. [27] So, while Mr Bradley may have been verbally threatening, it was the offender who initiated physical violence.
In the course of the ensuing struggle, the offender tried to stab his unarmed friend a number of times with the ultimate stab being inflicted with an intention to kill. That intention, I am satisfied, was formed in the moments before.
The circumstances in which the killing occurred, as described by the offender, were quite bizarre. There is a significant element of incoherence in the offender's account, even in his evidence given in the sober environment of the court room. The influence of drugs on both parties is obvious. There is no evidence of the offender being violent in the past. There is evidence of his prior good character. Mr Bradley was his friend and their relationship was generally harmonious. This was a killing that was a complete tragedy, not least because it was utterly senseless.
The law does not permit taking account of the fact that the offender was under the influence of drugs as a mitigating factor. [28] But it is a matter that is relevant to understanding why this terrible event occurred.
The Crown submitted that I should take into account that there was an element of recklessness in the offender becoming so intoxicated by drugs. [29] However, absent any evidence that he was aware of the possibility that he might do something violent when under the influence of drugs, this is not a matter that can aggravate the seriousness of the offending.
Considering the range for the objective seriousness of offences involving excessive self-defence manslaughter, it is easy to contemplate both more and less serious examples. This case is within a very broad middle-range.
[5]
The offender's personal circumstances
The offender was aged 28 at the time of the offence and is now 30.
He has no criminal history aside from a low-level drink-driving matter in 2010.
He grew up on a farm in Southern New South Wales where he attended primary school, and later boarded at an agricultural high school in Sydney. He obtained his Higher School Certificate, then enrolled in an agricultural science degree course at university which he did not complete.
The offender's parents separated when he was aged about 15. His mother died from cancer in late 2015. His father died in June 2017; after the offender's arrest and several months before he was released on bail. He has one brother who is two years his junior.
The offender engaged in heavy consumption of alcohol from the ages of 17 to 24. This contributed to his cessation of university studies. Thereafter, he worked on construction sites during the day and for five years in a bar at night. In the period before his arrest, he worked in a Vietnamese roll shop owned by some friends.
Illicit drug use had been a part of his life for some years prior to the offending. This was mainly in relation to cannabis and MDMA, but he had used hallucinogens and methylamphetamine on occasions. There is no evidence of mental health complications arising from his abuse of such drugs.
In course of interviews with Dr Olav Nielssen, forensic psychiatrist in December 2016, October 2017 and April 2019, the offender reported that he had felt depressed in the past. He saw a mental health nurse and a psychiatrist soon after his arrest, but was not advised to take medication. Dr Nielssen considered that the offender was particularly depressed in the period following his release on bail, but was not at the time of his most recent interview.
Dr Nielssen made two psychiatric diagnoses: Substance use disorder, in remission and Depressive illness, in remission.
The offender has learned to cope with the experience of incarceration and there was no suggestion of him having experienced any particular difficulties. He is currently being held in a mainstream area rather than in protection. He told Dr Nielssen that he has a wide circle of friends and continues to receive visits from many of them.
In the future, the offender has plans to resume his education and train to become a drug and alcohol counsellor.
There was evidence in the trial that is relevant to the offender's character. Mr Graham Leslie was a friend from high school. He gave evidence that the offender was never violent or aggressive, even when intoxicated by alcohol or drugs. The offender's younger brother, Digby Walcott, gave evidence to the same effect.
As to his attitude towards the offending, Dr Nielssen wrote the following as to what the offender told him:
"Mr Walcott said 'obviously the experience has been horrible and there is no part of me that does not regret what has happened … I am still very angry with myself … but I accept my responsibility for what happened … while I was on bail I brought myself to forgive Cameron'. He said, 'I felt I had to do it at the time … with the power of hindsight I should have got out of there … but that was because of my perception being altered … and my perception being altered was because of choices I had made'."
Dr Nielssen also reported that the offender "seemed puzzled and in despair when reflecting on the offence at the time of the initial interview, and later expressed his sadness and remorse over the offence". Later in his report, he said the offender had "during each of the three interviews … consistently expressed his remorse for what took place".
It is not clear what Dr Nielssen means by "remorse". Remorse can be a mitigating factor if an offender provides evidence that "he or she has accepted responsibility for his or her actions" and has "acknowledged any injury, loss or damage caused by his or her actions". [30] In this case, the offender pleaded that he was not guilty and submitted to the jury that he should be acquitted of both murder and manslaughter. It was his case that he believed that his conduct in stabbing Mr Bradley to death was necessary in order to defend himself, and that in the circumstances as he perceived them it was reasonable for him to do so. [31] He succeeded in the first respect but, unsurprisingly in my respectful view, the jury were satisfied beyond reasonable doubt his conduct was not reasonable.
Dr Nielssen opined that the offender has good prospects of rehabilitation and a low probability of committing further offences of a similar nature, or any other offence. I accept that this is the case.
The offender gave evidence at the sentencing hearing. He confirmed the correctness of the history set out in Dr Nielssen's report. He said that he had an understanding of what was in the family victim impact statement, and he accepted the significant detrimental effect the death of Mr Bradley has had upon his brother and other family and friends.
The offender spoke of attending 7 out of 10 sessions of a "Remand addiction" course soon after he first went into custody. He could not complete the course because he was transferred to another gaol. He appreciated that he would require further counselling after release in order to prevent relapse.
The offender told Dr Nielssen and he confirmed in his evidence that he aspires to work in drug and alcohol counselling in the community after his release and would like to undertake study to obtain the relevant qualifications. [32]
Evidence was given that the offender's bail conditions required him whilst at liberty awaiting trial to live at the family property near Delegate in Southern New South Wales. He was not permitted to leave unless he was attending medical or legal appointments or reporting on bail. There was a requirement that someone accompany him on such occasions. He was required to report daily to police for about the first five months, and then three times a week. During this time, he assisted his brother doing general farm work.
The offender's brother, Digby Walcott, gave evidence in which he confirmed the availability of work for the offender at the family property following his release. He also confirmed that he would support the offender in reassimilating into the community.
The offender's uncle, Michael Walcott, gave evidence of his support for the offender in a similar way.
[6]
Statutory mitigating factors
There are a number of specific matters that operate to mitigate the sentence to be imposed. These are matters that sentencing legislation requires a court to take into account. [33]
[7]
No prior criminal record and good character
The offender has no real criminal record and I accept that he was previously of good character.
[8]
Good prospects of rehabilitation and unlikelihood of reoffending
I am satisfied that the offender has good prospects of rehabilitation and that he has little prospect of further offending. This offence was clearly out of character. I am satisfied that he has been abstinent from illicit drugs for a considerable time; is motivated to resist relapsing; and has the capacity to do so.
[9]
Remorse
While Dr Nielssen's opinion was that the offender was remorseful, this sits uncomfortably with the fact that he sought an outright acquittal at trial. Moreover, there is implicit attribution to Mr Bradley of wrongdoing by the offender. This arises from the offender's statement to Dr Nielssen that he had brought himself to "forgive" Mr Bradley.
In evidence at the sentence hearing, the offender was asked to explain why he told Dr Nielssen that he had brought himself to "forgive Cameron". He said that this was "for the role that he played in what happened" because he thought "we both had some responsibility in the outcome". [34]
In written submissions in reply, counsel for the offender sought to provide an evidentiary basis for his client's belief that it was necessary to do what he did in self-defence. I accept the jury's verdict that there is a reasonable possibility that the offender did hold such a belief. The present point is whether he now accepts responsibility for his completely unreasonable response in intentionally and fatally stabbing Mr Bradley.
I accept that the offender regrets the entire incident and is sorry that Mr Bradley died. I accept his evidence of realising now that it would not have occurred but for the binge consumption of mind-altering illicit substances. But I am not satisfied that he unequivocally accepts responsibility for killing Mr Bradley given that he regards him as being partially to blame. He fails to fully appreciate that whatever Mr Bradley may have said, he intentionally and unnecessarily killed an unarmed man who was not being physically aggressive.
[10]
Facilitation of the administration of justice
Counsel for the offender submitted that the manner in which the defence at trial had been conducted warranted mitigation on the basis that it facilitated the administration of justice. [35]
There is little in this over and above compliance with the requirements of trial practice and procedure, including mandatory defence disclosure requirements. [36] That the trial was conducted efficiently was largely attributable to the high standard of skill and ability of counsel for both parties.
[11]
Quasi-custodial bail conditions
The offender was released on bail on 11 September 2017 and remained at liberty until the jury's verdict on 25 February 2019. The conditions of his bail were quite onerous (see above at [54]). They were not as strict or onerous as other forms of quasi-custody that are encountered but I will take this into account in any event.
[12]
Special circumstances
Counsel submitted that there should be a finding of special circumstances so as to justify a reduction of the non-parole period and enlargement of the parole period of the sentence. [37]
It was submitted that that this finding should be made because it was the offender's first experience of custody; he would benefit from parole supervision to assist him to avoid relapsing in relation to illicit drug use; and to also assist his reintegration in the community after a significant period of imprisonment.
I have considered the combined effect of these matters, but have determined that the parole period provided by a sentence in the usual proportions will be sufficient. I am also mindful of the need for the non-parole period not being less than that which would adequately reflect the criminality of the offending. [38]
[13]
Pre-sentence custody
The offender was arrested on 10 November 2016 and was released on bail on 11 September 2017. He returned to custody on 25 February 2019. He is entitled to have the prior custody taken into account and I will do so by backdating the sentence to 23 April 2018. [39]
[14]
Crimes (High Risk Offenders) Act
The Crimes (High Risk Offenders) Act 2006 (NSW) is potentially applicable to the offender, which means that when he is due to be released from custody, or from parole supervision, he may be the subject of an application by the State of New South Wales to have him detained longer or to have him subject to extended supervision. Much will depend upon his continued progress towards rehabilitation in the meantime. I ask that his legal representatives advise him as to these potential consequences.
[15]
Sentence
For the manslaughter of Mr Cameron Lyall James Bradley, the offender is convicted.
The offender is sentenced to a term of imprisonment comprising a non-parole period of 7 years, 6 months, and a balance of term of 2 years, 6 months. That is a total sentence of 10 years. The sentence is to date from 23 April 2018. The offender will become eligible for release on parole when the non-parole period expires on 22 October 2025.
[16]
Endnotes
Crimes Act 1900 (NSW), s 24.
Tcpt, 11 February 2019, p 32(7)-(10).
Tcpt, 11 February 2019, p 55(21).
Tcpt, 12 February 2019, p 94(15).
Tcpt, 11 February 2019, p 52(50)-53(1).
Tcpt, 18 February 2019, p 356.
Tcpt, 18 February 2019, p 382.
Tcpt, 18 February 2019, p 383(48).
Tcpt, 18 February 2019, p 384.
Tcpt, 18 February 2019, p 385.
Tcpt, 18 February 2019, p 386(50).
Tcpt, 18 February 2019, p 432(4).
Tcpt, 18 February 2019, p 387(20)-(25).
Tcpt, 18 February 2019, p 388(18).
Tcpt, 18 February 2019, p 388(40)-(48).
Tcpt, 18 February 2019, p 389.
Tcpt, 18 February 2019, p 391.
Tcpt, 18 February 2019, p 391-3.
Tcpt, 18 February 2019, p 394(20)-(23).
Tcpt, 18 February 2019, p 427-8, 435(43).
Tcpt, 18 February 2019, p 430(23).
Tcpt, 18 February 2019, p 431.
Tcpt, 18 February 2019, p 434.
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep).
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Tcpt, 18 February 2019, p 387(7).
Tcpt, 18 February 2019, p 387(24).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i).
Crimes Act 1900 (NSW), s 418.
Tcpt, 29 April 2019, p 6(25).
Crimes (Sentencing Procedure) Act, s 21A(3), s 22A.
Tcpt, 29 April 2019, p 8(20)-(24).
Crimes (Sentencing Procedure) Act, s 22A.
Criminal Procedure Act 1986 (NSW), s 143.
Crimes (Sentencing Procedure) Act, s 44(2).
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at 718 [63] (Spigelman CJ).
This is a date agreed by both parties.
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Decision last updated: 17 May 2019