REGINA v. BATTUR [2003] NSWSC 1164

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: The offender, Munkh-Erdene Battur, has pleaded guilty to the crime of manslaughter. That crime is not defined by the Crimes Act 1900, it is however, punishable by a maximum sentence of imprisonment for 25 years. 2 Of all the crimes known to the New South Wales law, that crime is the one which takes the most different forms. In any form, it is a crime which involves the taking of another human life unlawfully. As such, in every case, the taking of that life is to be deplored by the courts of this State, but, in sentencing for it, as was said by the then Chief Justice of New South Wales, Sir Laurence Street in The Queen v. Hill (1981) 3 A. Crim. R. 397 at 402:- "In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life". 3 That passage was cited by a later Chief Justice of New South Wales, Gleeson, CJ. in the matter of The Queen v. MacDonald (CCA unreported 12 December 1995) in a case in which the circumstances giving rise to the commission of the offence were such as to call for great sympathy, but the Chief Justice cited Sir Laurence Street's observations in the context of saying:- "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances calling for a wide variety of penal consequences. Even so, unlawful homicide whatever form it takes has always been recognised by the law as a serious crime." 4 Here the Chief Justice referred to the passage I have already cited from the judgment of Sir Laurence Street in Hill (supra). Gleeson, CJ. continued:- "The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 5 After setting out that passage from Hill (supra), the Chief Justice continued:- "Sometimes, as in the present case, the personal qualities of a victim of unlawful homicide will serve to focus attention upon this important aspect of sentencing law. This is not because the punishment for homicide varies according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away." 6 Those latter observations of the Chief Justice drew attention to the fact that the taking of human life is to be regarded by the judges, as it is regarded by the community, as a matter that calls for salutary punishment denouncing the conduct of the offender. 7 The qualities of the deceased highlight the crime involved in the taking of the deceased's life, but no additional punishment is to be inflicted upon an offender as a consequence of particular qualities in the victim, or the effect on the family of the taking of the life of that victim (see The Queen v. Previtera (1997) 94 A. Crim. R. 76). 8 In this case, what has happened has been a most tragic killing occasioned in the circumstances of a dispute amongst persons who form a small community within the larger community in Australia but a community, which, to a very great extent has difficulty communicating outside it's own particular members. 9 The facts I turn to for the purpose of sentencing reveal that at about 5.00 am on Sunday 28 October 2001, the offender stabbed the deceased once in the chest, slightly to the left side of the mid-line and in the upper chest with a single knife wound which penetrated the pericardial sac and affecting the ascending aorta and pulmonary trunk thus occasioning the deceased's death. The weapon used was a kitchen knife which the offender had retrieved from his home shortly prior to stabbing the deceased. 10 It was the Crown's primary contention that the offender stabbed the deceased with the intention of causing death or grievous bodily harm, ie., of committing murder but since he did so under provocation, alternatively it was so reduced on the basis that the killing was effected in what was believed to be, by the offender, a striking in self-defence, but in which force was used of a kind and to a degree well exceeding that which should properly or could properly have been regarded as appropriate and reasonable to the occasion. The Crown submits that, if I did not find I was satisfied beyond reasonable doubt the offender had an intent to kill or to cause grievous bodily harm, I would find the killing occurred by an unlawful and dangerous act accompanied by the reaction to some degree of provocation or by a belief to some degree not exculpatory of the need for self-defence. 11 The facts to which the Crown refers of this incident are set out in detailed submissions provided to me by way of a summary of facts accompanied by the primary documentation. These have been marked Exhibit A. They are accompanied by detailed written submissions from both parties on which I have heard the Crown and counsel for the offender in oral submissions today. 12 From that material it seems there was little, if any dispute as to the primary facts, although there was some dispute as to the inferences that should be drawn from those facts. 13 The offender was born on 5 April 1979 and was 22 years and six months at time of the offence. The deceased was eight years older. The deceased was living at Clarence Street, Sydney, the offender was living in a flat at William Street, Kings Cross. 14 The offender, a native of Mongolia had recently arrived in Australia and as at the time of the offence had very limited English. Similarly, the deceased, a native of Mongolia had recently arrived in Australia and had limited English. These men did not know each other well but did know each other through association with other members of the small Mongolian community in Sydney. The deceased was a person who had been a police officer in his home land, and was larger and older than the accused. He was a person, who it seems, was entitled or considered himself to be entitled to respect and authority within the Mongolian community. Apparently there were some differences between the offender and the deceased concerning the respect or reverence that the deceased expected to be exercised towards him by the offender. 15 On the Saturday night preceding the killing, a number of Mongolian persons gathered at the offender's home where they drank together. They imbibed a considerable quantity of intoxicating liquor. The deceased also imbibed a considerable quantity of intoxicating liquor. The persons who had drunk on that Saturday night apparently all suffered from the effects of intoxication. 16 Shortly after midnight six members of the group including the offender and the deceased went to the Las Vegas Hotel in Darlinghurst Road at Kings Cross. It seems common ground that while continuing to drink there an argument developed between the offender and the deceased who sought to chastise the offender for his lack of respect in the way in which he spoke to the deceased and his elders. That argument was characterised by some degree of threatening conduct on the part of the deceased. 17 Others intervened and sought to bring the dispute to an end and the offender apologised for the way in which he had spoken to the deceased and shook his hand. Sometime thereafter the offender went to the men's toilet but he was followed in there by the deceased and another member of the group. There is some conflict and vagueness about the description of the events even though the offender surrendered himself to police shortly after the killing and participated in an electronically recorded interview with the suspected person, in which he gave considerable background and detail to what had occurred. The interpretation process from that interview had to proceed through two interpreters from Mongolian through Russian to English. There appeared to be an inability of the offender to be able to detail with precision, notwithstanding his education in Accountancy in Mongolia, the events, so they could readily be rendered in English. This meant that it was very difficult for the police and for the prosecution to get a clear appreciation of what had gone on from what he said. 18 Similar difficulties existed with the accounts of those other persons involved whose limited English rendered communication and precision of description difficult, since there was a dearth of Mongolian interpreters who might have been able to assist the investigation. 19 Nonetheless, it is clear that a number of witnesses, firstly, as to this altercation in the toilets and later as to what occurred when the offender stabbed the deceased are unable to assist the court now as to what went on and were unable to assist the Crown. They were similarly unable to assist the police. This is not to be critical of them or of the police or of the Crown, but the most one can say is that there appeared to have been events occur, the true nature of which is now impossible to be able to detail. 20 There were only three people in the toilet, the deceased is unavailable, the offender has given his account in the electronically recorded interview, the other man present claims not to have seen what must have occurred shortly afterwards. The offender told one of the other members of the group that he had been attacked in the toilet. He spoke of that attack to the police. He bore on his neck and on his shoulders the mark of that attack. Those others present in the hotel were unable to say that they had seen anything that indicated an attack. It may be that there was, after the killing, some degree of reticence to discuss what had occurred after the killing. It may have been an unwillingness, for whatever reason, to say anything that might have reflected upon the deceased, a person apparently of some authority in the community here, and whose family is apparently of some authority in the community in Mongolia. But whatever be the position, the objective circumstances of the marks to the offender photographed by the police established clearly enough that there was support for his account that he was attacked when he was in the toilet, threatened with death and occasioned such treatment as might reasonably put him in mind of a possible future necessity to defend himself or as might have reasonably operated to provoke him. 21 Indeed, the Crown submits that the witnesses who say they saw nothing are not to be treated as reliable upon this point and also submits, "it is difficult to explain what occurred after they had all left the hotel, without the intervention of the confrontation in the toilet and the assault upon (the offender) by the deceased, either alone or in company with (the other person)". 22 After the incident in the toilet, the offender went home, changed his shirt and equipped himself with a kitchen knife. The Crown points out that it was the very early hours of the morning, the offender, the Crown says, had little need to leave his premises. One of the other persons with whom he had been drinking accompanied him to his home. He was waiting outside for the offender to change. The offender apparently intended to escort that man home. That man lived in premises which were also occupied by the deceased. It would seem, therefore, that either the offender was intending to arm himself, with the expectation that he would confront the deceased, or was at least arming himself in case there might be some further attack upon him. 23 I have examined the primary material and heard submissions from both counsel. As I understand the Crown's submissions, it is accepted that I could not be satisfied beyond reasonable doubt that the situation was more serious than the offender arming himself for the purpose of being able to resist a possible perceived attack upon him, which might have been made by the deceased, should he encounter him. 24 As I understand the evidence, and as is conceded, it is not possible to say beyond reasonable doubt which is the necessary standard, that the offender armed himself for the purpose of seeking out the deceased in order to attack him with the knife. 25 As I understand the evidence it is only possible to conclude that the offender armed himself against the eventuality, likely though it was, of having to confront the deceased who might attack him. 26 The offender accompanied by the other man went into William Street close to the offender's home and there they met the deceased and another man. They all walked down William Street together. The other two Mongolian men claimed they engaged in conversation, did not watch the deceased and the offender, and did not know what happened. They turned toward the other two and saw the deceased bleeding heavily from the chest and the offender holding a knife. 27 It was during that altercation that the wound causing death was occasioned to the deceased. There was thus no witness to the actual blow inflicting the wound. Other witnesses not part of the Mongolian community area saw parts of the altercation. There seemed to have been some struggle. The police were called to the scene, the crime scene was preserved. About an hour after these events, the offender surrendered to the police, showed the police where the knife been discarded and thereafter cooperated with the police officers, affording them as much assistance in the circumstances as one could expect, particularly having regard to the difficulties of translation. 28 The offender described in his record of interview doing what he had done in despair, indicating that if he hadn't struck as he had:- "They would have continued beating him until this very moment and he doesn't know what could happen if he hadn't done what he had. If he hadn't done what he had, then the other person will be sitting here now and he wouldn't be around." 29 He said he was drinking with friends, that there'd been a fight. He invited the attention of the police to his face and the marks upon it. He said, "that they hit me I go home and I get knife". He referred to being punched and kicked and having got the knife and come back, "they fight me again and I lash out with the knife". He said that he had stabbed the deceased with the knife and that the deceased had tried to strangle him in the bar. 30 He said that he had sought the forgiveness of the deceased for the asserted disrespectful conduct but that the deceased notwithstanding that, had still attacked him. That again, in the street after he had got the knife, he was the subject of a physical attack, that there had been an attempt to intervene in order to assist him to avoid that attack, that the attack had been resumed, it was only then, he said, that he struck with the knife. He said that he had been threatened with death during one or other of the attacks. 31 The Crown has acknowledged that the interview process, particularly conducted through the assistance of the two interpreters must have been extremely arduous for all concerned, including the offender. It involves some 238 questions and answers. In that material there is reference to a number of matters which assist in attempting to define the culpability of the offence. The Crown has conceded there is reference to self-induced intoxication, which may have operated to defeat the usual mechanisms of judgment and self-control one would have expected the offender to have employed, to prevent becoming involved in a crime such as this, by alcohol's known disinhibiting effect. The Crown refers to the prospect of excessive self-defence and provocation and accepts that there is supporting evidence available for all of these matters. 32 The Crown has drawn to my attention in addition to the accounts by those Mongolian persons to whom I have referred, the account of Geoffrey John Bates, who saw what had occurred after the event and gave a description of the offender shortly following the stabbing as being in the grip of high emotion whether of rage, fear or a combination of both, it is not possible to say. 33 Evidence has been provided by the Honorary Consul-General of Mongolia. That evidence supports the proposition that the deceased might likely have considered himself to have been entitled to the respect the evidence suggests he demanded and that he could regard the failure of the offender to afford him that respect as behaviour warranting physical intervention on his part. The cultural material to which the Honorary Consul-General has referred is confirmatory of the account given by the offender, at least to the extent of indicating that what he says occurred fits well with that cultural context. 34 The Crown's submissions included reference to the utilitarian value of the plea. The Crimes (Sentencing Procedure) Act 1999 now requires that I have regard in particular to matters referred to in s.3(A) in which the legislature has now prescribed the purposes for sentencing, to s.21(A) of that Act which relates to mitigating and aggravating circumstances to which a court is required to give specific attention in addition to any other factors that might be relevant to sentencing, to s.22 which provides that the guilty plea, particularly in this case, must be taken into account and in this case, it is common ground it is to be taken into account as an early plea by reason of the principles referred to in Regina v. Oinonen [1999] NSWCCA 310. 35 In addition, there has been here pre-trial disclosure to which s.22(A) of the Crimes (Sentencing Procedure) Act 1999 makes reference and which merits in the circumstances a reduction of the penalty otherwise to be imposed. In addition there was considerable co-operation and obviously when one has regard to what is contained in the electronically recorded interview and the affidavit of the offender, a high degree of contrition. 36 I take into account also under s.24 of the Act the time for which the offender has been held in custody so that the sentence will date from today but will reflect the fact that the offender had been in custody for a total of 103 days which I should regard as equated to three months. 37 I see the utilitarian value of the plea in the circumstances as very high indeed. In The Queen v. Thomson & Houlton (2000) 49 NSWLR 383, a guideline judgment of this court, the value of discounts for a plea of such utility are put as high as 25%. In my view, such a percentage discount is appropriate here. Further, I have regard to the cooperation and the disclosure of the circumstances of the killing. On the other hand, as the Crown points out in relation to both the matters of contrition and co-operation, it is clear that the evidence of the commission of the crime was overwhelming. In contrast to the assistance afforded by the offender to the authorities revealing his own guilt, however, has been the lack of assistance afforded to the authorities by the Mongolian witnesses who seemed unable or unwilling to give accounts of what precisely occurred. I am not able to determine, that reticence was in any way due to a desire to assist or protect the offender. It seems to be a reticence, from what I can see of the material, designed to avoid having any involvement with the death of the deceased. 38 Contrition may still exist and quite properly be the subject of mitigation of sentence, even though the evidence against the accused is substantial. In this case, I am satisfied that contrition was properly evidenced in all the material, notwithstanding that there was a substantial case able to be proved independently of his own assistance, against the accused. 39 Since I am unable to know, other than from the account of the accused what precisely happened at the moment of stabbing, I consider I must find the objective circumstances of the matter to be such that the offence should be characterised at least as manslaughter arising by an unlawful and dangerous act and certainly on any basis accompanied by a lack of judgment partly due to the intoxication and due also to the effect of the earlier events in the hotel provocative, as they undoubtedly were, and which possibly also affected the offender with real and genuine apprehensions for his future safety. In that mix, there is evidence which I accept establishing almost all of the mitigatory matters that operate to reduce a homicide to manslaughter. It is not possible to weigh every such matter individually, nor would it be appropriate to dissect in any more precise way such an episode of high emotion of such short duration by attempting to assign values to the weight of the individual factors in the complex. 40 But it is appropriate to recall even of this complex, as the Chief Justice did in MacDonald (supra) citing Hill (supra), that unlawful homicide, whatever form it takes, has always been regarded as a most serious crime. This homicide remains a most serious crime, even if provoked and defensive. The offender armed himself with a knife. Our courts have always regarded the utilisation of a weapon such as a knife as an aggravating circumstance and that has now been confirmed in one of the criteria enunciated in s.21(A) as a aggravating feature in the culpability of a criminal offence. 41 I see the offender in the context of this case as being a person to whom the observations of Hunt CJ. at CL. in Regina v. Alexander (1994) 78 A. Crim. R. 141 apply. There was, in my view, a substantial degree of provocation and a genuine and substantial basis for the offender to apprehend a further attack upon him. On his account of what happened in the street, I am unable to say that attack did not occur. I accept that there were threats of death and threats of further attacks that he, thanks to his intoxication and to his particular circumstances, probably considered meant there was a real likelihood that he might have suffered some degree of harm, though not such a degree of harm as made it reasonable to do what he did, that is, to arm himself with a knife and, when the second confrontation occurred, to stab to death the deceased. 42 I am unable to say whether that stabbing was accompanied by an intent to occasion grievous bodily harm, for the same reasons as Abadee, J. was unable to find the offender's precise intent in Regina v. Taouk (unreported 20 March 1992). Here too what occurred was in the context of a person previously of good character, as this applicant was, previously apparently passive, being involved in confrontation not brought about, to an unexpected degree, by his own culpable conduct in which he reacted. 43 In the Court of Criminal appeal in Taouk (supra), the Chief Justice concluded that the culpability of the offender was reduced by his not deliberately arming himself with a knife. However, in that case, that offender, who was carrying a knife for work purposes, went back to the scene, in which he expected a confrontation to occur. On the evidence, I accept this offender did arm himself with a knife but not apparently with the deliberate intention of seeking out the deceased for confrontation but for protection from him against the likely possibility of confrontation. 44 The submissions put on behalf of the offender were contained in a lengthy document provided to me by Mr. Zahra, SC. They contended the offence should be characterised as unlawful and dangerous act manslaughter, alternatively a homicide reduced to manslaughter by reason of provocation, that the offender should receive not only a discount under s.22A of the Crimes Act 1900 to which I have referred and as is referred to in Thomson & Houlton (supra), but also that to which the High Court referred in Cameron v. The Queen [2002] 76 ALJR 382. As to that, when one has regard to the criteria referred to in s.21(A) it would appear that all the matters to which Mr. Zahra adverts under that heading are now embraced in the statutory criteria. 45 Mr. Zahra raises one particular matter. It is referred to in detail in the affidavits of the offender's mother and of the offender. The offender is not an Australian citizen and consequently, is very likely to be deported in consequence of this crime. I am satisfied on the evidence before me there is a very real risk, should that deportation occur, notwithstanding the offender has been punished in New South Wales, under New South Wales law for a crime committed in New South Wales, that he or his family or both will be subject to reprisal, whether outside the Governmental system such as is likely to lead to his death or, by way of the Governmental system, in a way which might lead to his imprisonment for an indefinite period. There have been demands upon his family for money and the victim impact statement shows a basis for those demands. 46 There have been threats issued against him and his family in Mongolia. His circumstances of confinement in Australia with his language and cultural difficulties will be extremely onerous, those circumstances of confinement will be exacerbated by his apprehensions as to what might happen in respect of deportation and thereafter. I am entitled to take into account (see The Queen v Daetz [2003] NSWCCA 216), the fact that an extra curial punishment was, or may be inflicted upon a person being sentenced. I am also entitled to take into account, and I do, the exacerbation of the otherwise onerous conditions of imprisonment in those circumstances to which I have already referred. 47 This is a case in which I recommend that there be no deportation. I make that recommendation to the Minister on the basis of the evidence before me, that the offender is likely to be the subject of reprisal or to be the subject of a double punishment in Mongolia. Plainly this would amount to persecution. I invite the Minister to consider those matters, should the question of any deportation be raised for his decision. 48 I would invite the Minister, if it be decided he is to be deported to take such steps with the Mongolian authorities as to mitigate against or exclude that double punishment or possible reprisal. 49 I have regard, in particular in the Crown's written submissions to the most useful statement in which the Crown has analysed the evidence relevant to the various criteria under s.21(A). It has, in particular, referred to the use of violence and the causing of death by the use of the weapon. In mitigating features, the Crown has pointed out there is nothing to indicate that the offender would be likely to re-offend and nothing to indicate but that the offender has strong prospects of rehabilitation. He had attained a high standard of academic achievement as an accountant trained in Mongolia, had come to Australia working as a waiter in the food preparation and service industry in order to attempt here, to make good in a way that he might not have been able to in his home land. 50 All of this indicates that both he and the deceased were persons of previous estimable character of whom the community was entitled to expect that they would retain that character rather than be involved in such drinking and violence. 51 It is in that context that I have come to the conclusion, that the appropriate sentence to impose, having regard to s.44 of the Crimes (Sentencing Procedure) Act 1999 which involves my setting, firstly, a non-parole period and thereafter a head sentence, must involve a non-parole period of three years from which should be deducted the three months of pre-sentence custody to which I have referred. 52 Section 44(2) mandates that the balance of the term of the sentence after a non-parole period (which is the minimum period for which the offender must be kept in detention in relation to the offence) must not exceed one-third of the parole period absent special circumstances. 53 I have come to that view that non-parole period should be imposed after an extensive analysis with counsel in the oral submissions of a number of cases referred to, in particular in a schedule of cases which is included with the papers and which has been provided to me with the defence submissions. 54 As to the head sentence, this is a matter in which there are plainly special circumstances. Those special circumstances lie in the offender's youth, in his cultural and community difficulties, that his imprisonment will, in those circumstances, be more onerous than that of others and in the apprehensions concerning what might happen upon his release. 55 The effect of those special circumstances here is to operate to provide for a greater than usual difference between the expiry of the non-parole period and that of the head sentence, ie., a longer parole period. A non-parole period does not mean that the offender will be released at the expiration of that period. The offender becomes entitled to be released and may be released by the Parole Board at the expiration of that period or thereafter. He must be released at the time of expiry of the head sentence. I fix the head sentence to allow for an appropriate parole period and to meet the requirements of s.3A. In my view the appropriate head sentence in this case, is one of six years and the non-parole period and sentence should each commence today. 56 Mr. Battur, would you please rise. Munkh-Erdene Battur, you are convicted of the crime of manslaughter and sentenced for that crime to a period of imprisonment of six years to date from today's date, to expire on 7 December 2009. I fix a non-parole period to commence today and to expire 7 September 2006. 57 In respect of that sentence, I make the recommendation to which I have referred in my remarks on sentencing, that you not be deported or if deportation is to be considered, that the Minister take such steps as are possible to avoid reprisal or double punishment on you in Mongolia. **********

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