REGINA v Andrew Glen MUDDLE

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 BELL J: On Monday 8 March 2004 Andrew Glen Muddle was arraigned on an indictment that charged him with the murder of Alan Edward Birch at Raymond Terrace on 6 February 2003. He entered a plea that he was not guilty. A jury was empanelled and the offender stood trial. On 16 March 2004 the jury returned its verdict. The offender was not guilty of murder but guilty of the manslaughter of Alan Edward Birch. 2 The deceased spent the early afternoon of 6 February 2003 with a friend, Rhett Cotton, at a local hotel. They were celebrating the deceased's 23rd birthday. They spent several hours at the hotel and the deceased consumed a number of schooners of beer and several glasses of whiskey. The two young men were on friendly terms with the offender's nephew, Jason Muddle. After leaving the hotel in the late afternoon they met up with Jason and his partner, Cassandra. Together the group went to visit the offender at his home at 7 Corelli Close, Raymond Terrace. They arrived at around 5:00 pm. 3 The offender was living in a de facto relationship with Julia Cadogan. The two have since married. He was aged just on 40 years at the time. He was on close terms with his nephew, Jason. Jason and his family lived in Raymond Terrace a short distance from Corelli Close. On occasions prior to February 2003 the deceased had visited the offender's home in company with Jason. There was no history of ill feeling between the two. 4 On the evening of 6 February a number of people were present at the Corelli Close premises when Jason Muddle and his party arrived. The deceased and Rhett Cotton brought a carton of VB stubbies with them. Over the next few hours the offender, the deceased, and various others drank beer, smoked marijuana and talked. The atmosphere was congenial. 5 The deceased was noticeably affected by alcohol at the time of his arrival. It is reasonable to assume that he became progressively more intoxicated as the evening wore on. The offender was also intoxicated by a combination of alcohol and marijuana by the end of the evening. 6 At around 11:00 pm the men were seated around the dining table and Cassandra and Julia were in the adjacent lounge room, looking after Cassandra's children. The deceased made a drunken remark about the offender's dogs. The offender thought that the deceased may have ill-treated the dogs in some fashion. He leapt up and punched the deceased. As he did so he upset the lightweight dining table between them. Thereafter the two men exchanged punches. They ended up on the floor struggling with one another. Jason Muddle intervened in an attempt to break up the fight. He managed to get both men out of the house. The fighting resumed on the front lawn of the premises. It remained a fistfight. Ultimately, the offender and the deceased were wrestling on the ground. During the course of the struggle the offender bit the deceased on the nose. It was a nasty bite that tore the skin in several places and bled profusely. Shortly after this Jason Muddle succeeded in separating the two. Julia Cadogan called on the offender to come inside the house. He did so. She stood watching events from the front porch in front of the security screen door. 7 Cassandra had put the children in the car and was ready to leave. Jason tried to persuade the deceased to get into the car and leave with them. He would not go. By this time he was enraged and bent on continuing the fight with the offender. Jason repeatedly told him to calm down. Finally Jason got into the car with his family and they left. When they reached the corner of Corelli Close Jason got out of the car and ran back to the scene. He had left the deceased standing outside the premises in an enraged state making threats to kill. I am satisfied that he returned with the intention of removing the deceased peaceably from the premises without further incident.

8 After the offender retreated into the home he stood for a time behind the screen door. From this position he called on the deceased to go home. The deceased called out repeatedly that he was going to kill the offender. One neighbour heard a male voice, that I am satisfied was that of the deceased, calling out "I'll kill you. I'll fucking kill you. If I don't kill you today, I'll kill you tomorrow." The voice sounded very angry. There were further threats called out by the deceased in this vein. 9 Yvonne Mace, who lived at 3 Corelli Close, observed a good deal of the events of that evening. She heard Julia Cadogan calling out to the deceased, "Alby can you just go home please". Later as the two men were struggling at the front she heard Julia say, "Leave him alone, go home, I've called the police". A little later she heard Julia telling the deceased to go home and saying, "He's had enough". She heard the offender call out, "I'm old, you belted me around the front yard, just go home and see you tomorrow, you're pissed Alby". The deceased replied, "Yeah that's right you are an old fucking cunt, I'm going to kill you, you bastard". The deceased was very angry he was punching the panels of one of the vehicles that was parked in the front yard. 10 Before Jason returned to the premises the deceased approached the front door. He told Julia Cadogan that his fight was not with her. He took hold of her and moved her away from the front door and he went inside the premises. 11 Within a very short time after entering the home the deceased had been stabbed by the offender. The wound was to the central upper back. The knife penetrated 9.5 centimetres into the deceased's body passing through a number of structures and penetrating the right lower lobe of the lung. The angle of entry was 30 degrees downwards. Considerable force was necessary to cause this injury. 12 Immediately after he inflicted the fatal wound the offender ran out of the house with the knife in his hand. He threw it into the rear yard. The deceased was still conscious and able to move for a short period following the stabbing. During this time the offender returned to the house, he apologised and endeavoured to render assistance to the deceased. When the police attended at the scene the offender was attempting to staunch the flow of blood from the wound. He told the police where the knife was to be found. 13 The central issue at the trial was self-defence. The provisions of Pt 11 Div 3 of the Crimes Act 1900 (NSW) applied in this respect. 14 The jury were directed as to the alternative verdict of manslaughter on two bases: excessive self defence within the meaning of s 421 of the Crimes Act 1900 or the inability of the Crown to prove that the offender was possessed of the intent that would make his act murder.

15 The offender stabbed the deceased with considerable force to the rear upper back on one occasion. While I consider that to stab another with a knife such as this one to the upper part of the body must carry with it the intention to do grievous bodily harm, I do not find that the offender intended to kill the deceased. 16 I sentence him upon the basis that his liability for manslaughter arises because his conduct amounted to excessive self defence. 17 The offender gave evidence at the trial. He said that he stabbed the deceased because he feared that the deceased was going to kill him. I will return to this. He said that when he went inside the house he collected the knife from the knife block in the kitchen. He did so with a view to defending himself should the offender come into the house. He took it with him as he made his way to the bedroom. He stumbled in the hallway near the door to the bedroom and the knife fell from his hand. He did not bother to pick it up. He went into the bedroom. Shortly afterwards he heard the noise of the deceased coming into the house. He went to leave the bedroom and met the deceased at the bedroom door. The deceased punched him, causing him to fall to the floor. The knife was within reach and he took hold of it. As he regained his feet the deceased made to punch him again and he stabbed him. The deceased's body was moving with the momentum of the punch and the knife struck his back. 18 The Crown challenged the offender's version of events. Reliance was placed on the absence of forensic evidence consistent with the wounding having taken place in the hallway. The account of dropping the knife and of not bothering to pick it up again was said to be implausible. 19 I do not consider that the offender's account should be rejected because of the absence of obvious blood staining in the hallway. Dr Lee, a forensic pathologist, said that the wound may not have produced exterior bleeding in the immediate aftermath of the stabbing. The two men had both bled that evening during the course of the fight but it was not established that in the moments preceding the stabbing either man was dripping blood. 20 I am not of the view that a great deal turns on whether the fatal wound was inflicted in the kitchen/dining area or in the hallway. It is clear that however events unfolded inside the house the stabbing occurred within a very short interval. There was no time for reflection. The deceased was a powerfully built, muscular young man. He was clearly in a position to get the better of the offender and he was enraged. Whether he landed a further blow on the offender inside the premises causing the offender to fall and to fortuitously pick up the knife or whether the offender took hold of the knife in the kitchen, consistent with the Crown's theory, and stabbed the deceased, I am satisfied that at the time the offender believed that it was necessary to stab the deceased to defend himself. On balance, I accept the offender's account as to the circumstances that led to the infliction of the wound.

21 As I have stated, the offender said in the course of his evidence that he stabbed the deceased because he feared the deceased was going to kill him. In cross-examination it was put to him: "Q. Well you never, ever thought that he was going to kill you? A. You get threatened to, it was in the back of my mind that he might. I don't know." (T 434.53-55) 22 I took this answer, in the context of the offender's evidence as a whole, to convey that the offender was in fear of the deceased. I am satisfied that his fears included that the deceased would inflict serious corporal violence on him in the event that he pursued him into the house. 23 The offender has a criminal record that dates back to September 1991 when he was dealt with before the Taree Local Court for a number of firearms offences. In respect of these matters he was fined. On the same occasion he was convicted of one count of assault and one count involving the use of the firearm. In relation to each of these convictions he was placed on a bond to be of good behaviour for a period of two years. During the currency of that bond it appears that he was convicted of an offence of stealing. This offence was dealt with by way of fine. No action was taken in respect of any breach of the bond. Beyond these matters his criminal record contains convictions for offences associated with the consumption of alcohol and cannabis. He was also convicted of contravening an apprehended domestic violence order. This matter was dealt with before the Taree Local Court in August 2000. The contravention involved the breach of a non-contact order. There was no allegation of any act of violence in this respect. 24 I consider that the offender's criminal record is not of such an order as to constitute an aggravating factor for the purposes of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (Cth).

25 A report prepared by Anna Robilliard, a psychologist, was tendered on the offender's behalf. This included information concerning the offender's history. The offender gave evidence at the sentence hearing and confirmed the accuracy of the information that he had supplied to Ms Robilliard. 26 The offender is one of six children. He was born and raised in Taree. Both his parents were heavy drinkers and home life was characterised by frequent fights. The offender was, on occasions, the victim of his father's violence. Following the death of his father, when the offender was aged 11, the family moved initially into rented accommodation and after that into a caravan park. An older brother took over the violent role within the family that the father had played. 27 The offender had difficulty with reading and spelling. Although he did well at mathematics, he left school at the age of 14 years and 9 months. He was illiterate. He has suffered from feelings of inadequacy and embarrassment throughout his adult life because of his inability to read. He has never had a job. 28 At the age of 16 the offender commenced living with a young woman. They spent the early years of their relationship living in a caravan park. They married when both were aged 22 years. During the course of their marriage they had four children. The children are now aged between 19 and 14 years. The marriage came to an end after the offender discovered that his wife was having an affair. They were then aged 29. Following their separation the children went to live with their mother in Grafton. The offender was distressed by the loss of his family. He kept in touch with the children and they came to stay with him during school holidays. 29 The offender had two further unsuccessful relationships before meeting his wife, Julia. In each case his partner proved to be unfaithful. He suffered from depression following the break-up of these relationships for which he was prescribed anti-depressant medication. 30 The offender met Julia in 2002. They have a loving and mutually supportive relationship.

31 Ms Robilliard administered intelligence and personality tests to the offender. These revealed his intelligence to be in the soundly average range. Personality testing showed him to be a person lacking in personal and social confidence at an entrenched level. This result is commonly associated with individuals who have been raised in dysfunctional families and was consistent with his history of unsuccessful past relationships. He showed signs of marked anxiety. 32 Ms Robilliard stated that the offender presented to her as being profoundly remorseful over the death of the deceased. In the course of his evidence at the sentence hearing his remorse was palpable. I accept that the offender is genuinely deeply sorry for having brought about the death of the deceased.

33 The offender said that he had found it hard to believe that his intelligence was as reported in Ms Robilliard's test results. He has resolved to use his time in custody to learn to read and write. Prior to his transfer from the MRRC to the Parklea Prison he had also obtained work in the prison laundry. He reported enjoying the experience of employment. 34 I consider that the offender has reasonable prospects of rehabilitation. I accept that he will make use of his time in custody constructively. He is in a stable relationship. I do not think it likely that he will re-offend.

35 Ms Davenport invited me to consider that the events leading to the fatal stabbing had been in some degree provoked by the deceased's conduct. This is a factor to which s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 directs attention. I do not accept that submission. The deceased's threats to kill and his conduct in forcing his way into the house do not seem to me to be properly chacterised as provocative. The deceased was enraged as the result of the injuries that he had sustained in the fight that the offender had initiated. 36 The offender broke off from the fight and retreated into his own home. He entreated the deceased to do likewise. The objective gravity of the offence is to be assessed having regard to the fact that at the time he stabbed the deceased the offender believed it was necessary to do so to defend himself. His conduct was not a reasonable response even in the circumstances as he perceived them to be. The deceased was unarmed. To introduce a weapon such as the knife and to stab with the degree of force that the offender did was an excessive response. 37 In determining the sentence to be imposed on the offender I have regard to the aggravating and mitigating factors to which s 21A of the Crimes (Sentencing Procedure) Act 1999 directs attention. The offence was one of violence and involved the use of weapon. However, the latter circumstance assumes somewhat less prominence in this case where the weapon was a household implement used in self defence within the confines of the offender's home into which he had retreated. 38 Section 21A invites the Court to consider whether the injury, emotional harm, loss or damage caused by the offence was substantial. It is sufficient to observe that the offender by his deliberate act caused the death of the deceased. In every case of manslaughter the court is dealing with the felonious taking of a human life. This is a proper matter to keep in mind in assessing the gravity of the objective circumstances of the offence.

39 The Crown Prosecutor read out in court a victim impact statement prepared by Glen and Diane Birch, the parents of Alan Birch, and by his sister, Annette. They described the death of their son and brother as the greatest tragedy that the family has had to deal with. They spoke of the trauma of being wakened by the police in the middle of the night to learn progressively that Alan had been in a fight, taken to hospital and finally that he was dead. Alan was the only boy in the family. They record that they loved him and that they were proud of him. For the Birch family not a day goes by when they do not think of him. The Court expresses its sympathy with them in the tragic loss of their son and brother. 40 In making reference to the victim impact statement it is appropriate to refer to the observations of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76 at 87-88. I approach the reception of the statement consistently with the principles that his Honour enunciated in that case. 41 I am satisfied that no penalty other than imprisonment is appropriate in this case. 42 The offender is now aged forty-one years. He has not previously served a sentence of imprisonment. It is reasonable to consider that on his release he will need the benefit of assistance from the Probation and Parole Service to make a satisfactory return to life in the community. This consideration has led me to conclude that there are special circumstances that make it appropriate that the balance of the term of the sentence to be imposed on the offender exceed one third of the non-parole period. 43 The offender was arrested on the night of the offence. He remained in custody until 9 May 2003 when he was released on bail. He thus served 93 days as a remand prisoner. He was taken into custody on 16 March 2004 following the verdict. I propose to date the commencement of the sentence from 15 December 2003. This gives the offender credit for the whole of the period spent in custody prior to sentence. 44 I have determined that the minimum period for which the offender should be kept in custody for this offence is one of three years and that the balance of the sentence should be a further three years.

Andrew Glenn Muddle I sentence you to a term of six years' imprisonment to date from 15 December 2003. That sentence will expire on 14 December 2009. I fix a non-parole period of three years. The first date on which you will be eligible for consideration of release on parole is 14 December 2006.

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