REGINA v. HAMSHERE [2005] NSWSC 1319

Supreme Court of NSW|2005-12-09|Before: Hall J, Barr J

CITATION : REGINA v. HAMSHERE [2005] NSWSC 1319

DECISION : Non-parole period of three years to commence on 26 December 2004 and to expire on 25 December 2007 and a balance of term of two years to expire on 25 December 2009. The earliest date upon which the offender will be eligible for release on parole is 25 December 2007. In relation to the offender's ultimate release to parole, I recommend that consideration by given by the Parole Authority that he be released to a residential or other suitable rehabilitation programme and attend intensive counselling for alcohol related issues as directed by the Probation and Parole Service.

CATCHWORDS : Criminal law - manslaughter - plea of guilty - offender affected by intoxicating liquor - offender stabbed the deceased - did not act with intent to kill - offender and deceased were friends - deceased and offender wrestled at first in jest - cognitive and motor functions impaired by alcohol - contrition - good prospects of rehabilitation - special circumstances - guilty plea entered at first available opportunity.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes Act 1900

Hill (1981) 3 A. Crim. R. 397 Stephens (CCA, 15 August 1993) MacDonald (CCA, 12 December 1995) Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED : Dodd (1991) 57 A. Crim. R. 349 Simpson (2001) 126 A. Crim. R. 525 Chami [1999] NSWSC 1268 Blacklidge (CCA, 12 December 1995)

REGINA v. PARTIES : HAMSHERE, Terry John

Crown: J. Kiely, SC. COUNSEL : Off: L. Flannery

Crown: G. Steedman SOLICITORS : Off: N. Marshall

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HALL, J: Terry John Hamshere to whom I will refer in these remarks as "the offender", was originally charged with the murder of Edward Matthews. On 18 August 2005, he entered a plea of not guilty and was committed for trial. 2 On 7 October 2005, he was arraigned before his Honour Justice Barr and pleaded not guilty to the charge of murder but guilty to manslaughter. The Crown accepted the offender's plea in full satisfaction of the indictment. In doing so, the Crown accepted that the offender was well affected by intoxicating liquor at the time he stabbed the deceased. The Crown has agreed that its acceptance of the plea may also be taken as based on an unlawful and dangerous act on the part of the offender. 3 The acceptance of the plea to manslaughter involves an acceptance by the Crown that the offender did not act with intent to kill the deceased or to cause him serious bodily harm. The determination of a proper sentence, accordingly, is to proceed upon the basis that the offender had no such intent. 4 He was remanded in custody following his arrest on 26 December 2004 and he has been in custody since that date to the present. 5 The Crown provided a Crown Case Statement, which, it was agreed, sets out the relevant factual material upon which I should proceed to sentence the offender. It is sufficient for the purposes of recording the pertinent facts to set out below in the remarks paragraphs 1 to 10 of the Crown Case Statement and which I now read:- "1. On the afternoon of 26 December 2004, the accused Terry John Hamshere and the deceased, Edward 'Woody' Matthews, were drinking at the premises of the accused at 4/1 Peron Place, Willmot. 2. On arriving at that address, witnesses Townsend and White both observed that both the deceased and the accused appeared to be intoxicated. … 4. Soon after their arrival, the deceased and the accused begun (sic) to wrestle in the lounge-room. The contact was at first in jest, with the accused punching the deceased in the shoulder and the deceased responding by returning the punch. However, it escalated in seriousness as the deceased and the accused became more aggressive. The deceased was on top of the accused. White saw the accused bite the deceased somewhere on his forearm, causing the deceased to back off. Both were seen to look at each other angrily at this time. Some furniture was hit during the tussle and was broken. White was shouting: 'Stop it' and Townsend said to the deceased at one stage: 'Get off him, you're supposed to be mates'. 5. The deceased said to the accused, 'Let's go outside'. The deceased walked outside via the rear door of the premises and removed his shirt. White observed the accused walking to the kitchen sink where he obtained a large black handled kitchen knife. The accused walked outside towards the deceased whilst carrying the knife. White confronted the accused shouting: 'Put the knife down, you're being an idiot' to which the accused replied: 'If he want's (sic) his go, we'll go. " 6. The accused approached the deceased, who was shaping up for a fight. The deceased's hands were held out with clenched fists. The accused had hold of the knife in his right hand, and began waving it toward the stomach of the deceased. The deceased was heard to say: 'you want to play it like that' and tried throwing a punch toward the accused. The pair were about 1-2 metres apart at this time. The accused raised his right arm upwards. As he did this, White saw a 'jet of red blood squirt' from the deceased's neck. 7. The deceased immediately grabbed his neck, which was bleeding profusely, and fell to his knees. The deceased screamed for Townsend. White said to the accused, 'What have you done' to which the accused replied, 'He wanted his go'. 8. White has then called to Townsend to come out the back. Townsend saw the accused holding the knife in his right hand and the deceased bleeding from the neck. Townsend stated, 'What ya done dickhead, throw the knife down. Put the knife down'. 9. The accused was seen by White and Townsend to drop the knife to the ground near the base of the rear steps. The accused removed his shirt and used it to apply pressure to the deceased's wound. White ran back inside and contacted 000 for an ambulance. 10. The deceased collapsed moments later. The accused held the deceased and was heard to say, 'He's not dead, I love you Wood'. The accused collected a fence panel and placed it by the deceased in an effort to support his head." 6 Those are the facts taken from the Crown case. 7 That statement additionally records that when spoken to, the offender made certain admissions to being involved in an argument with the deceased about 10 minutes before he was stabbed. However, he could offer no explanation for the cause of the deceased's injuries. He was placed under arrest and cautioned and taken to Mount Druitt Police Station. 8 The statement tendered of the witness Rachel White, confirms the accuracy of this description of events. Whilst it is difficult to say whether the offender or the deceased precipitated or escalated what Ms. White described as them "mucking about", the following facts are substantiated by her statements:-

• First, that after some pushing and shoving, the deceased grabbed the offender and basically, according to Ms. White, "pole dived him into the lounge room chair" . They were still just mucking about.

• Second, that after getting up from the lounge chair, the deceased again picked up the offender and threw him hard against the floor near a stereo entertainment equipment near the front door.

• Thirdly, after Ms. White called out to them to stop, she could see that "it was getting a bit out of hand" . She then saw the deceased was, by this time, on top of the offender when Mr. Townsend called out to him to get off the offender.

• Fourthly, Ms. White, in her second statement (6 January 2005), said that when the offender was on the floor with the deceased on top of him, the deceased's forearm was out in front of him and across the offender's throat leaning his body on the offender. She then saw the offender bite the deceased somewhere on his forearm to get him off. 9 The events, as I have already stated, unfolded as recorded in the Crown Case Statement then unfolded. 10 The offender, during an electronically recorded interview, misled investigating police in relation to particular matters, including the fact of the presence of the witnesses Rachel White and Paul Townsend. He claimed that they were not at his home at the relevant time. He also claimed that the deceased later in the day had become unhappy about something and walked outside. The offender says that he went to the kitchen and saw the deceased outside in the backyard apparently bleeding from the mouth and ran to assist him. He had falsely claimed that the deceased had caused the injury to himself and made reference to alleged threats of self-harm in the past by the deceased but could not provide any details. He also denied picking up any knife or stabbing the deceased. 11 The later events, however, including the offender's plea to manslaughter, and the statements of Mr. Townsend and Ms. White, indicate that the offender in the early stages had endeavoured to escape from admitting responsibility by his misleading statements. But, by his plea of guilty, he, of course, came to recognise and admit his role and his responsibility for the tragic death of Mr. Matthews. 12 The offender has a minor criminal record. 13 The following statements were tendered by the Crown:-

(a) Victim Impact Statement of Helen Pussell (Matthews);

(c) Victim Impact Statement of Maryyanne Matthews. 14 I have read these and I have also had tendered a statement of Sharon Joyce Bunyan, a former partner of the deceased.

Sentencing principles 15 The provisions of s.3A of the Crimes (Sentencing Procedure) Act 1999 states that the purposes for which a court may impose a sentence on an offender to be following:- "(a) To ensure that an offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victims of the crime and the community." 16 The Crown correctly submitted that the offence of manslaughter is of such seriousness that, for the purposes of s.5(1) of the Crimes (Sentencing Procedure) Act 1999, no penalty other than imprisonment is appropriate. 17 In determining the appropriate sentence for an offence, the court is to take into account both the aggravating and the mitigating factors identified in the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999. In doing so, account is to be taken of the objective and the subjective factors that affect the relative seriousness of the offence in determining sentence: s.21A(1). 18 The objective criminality of the offence is a central matter for consideration. The basis of the Crown's acceptance of the plea is, as I have earlier stated, intoxication and as an alternative basis, manslaughter by unlawful and a dangerous act of the offender. Ms. L. Flannery of counsel, who appeared on behalf of the offender, whilst appropriately acknowledging the gravity associated with the taking of a human life, referred also to the following factors:-

• Firstly, the circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder vary infinitely. Street, CJ. in R. v. Hill (1981) 3 A. Crim. R. 397 at 400 stated that it is not always easy to determine in any given case what should be done in the matter of sentence.

• Secondly, whilst it can never be said that involuntary manslaughter will always be regarded less seriously than voluntary manslaughter, the fact that there is an absence of any intention to kill or to inflict serious bodily harm is a significant factor in assessing the objective seriousness of involuntary manslaughter and was referred in her submissions to what was said in that respect by the CCA in R. v. Stephens (CCA, unreported 15 August 1993) That factor is a relevant one in this case. 19 I am required to have regard to the consideration that the unlawful taking of a human life is always to be viewed as a serious crime. The respect for and protection of human life is a primary objective of our system of criminal justice: see Regina v. MacDonald (NSWCCA, unreported 12 December 1995). 20 It is necessary to assess relevant facts against the background in this case that the offender and the deceased were, and had been for many years, very close friends. Additionally, prior to 26 December 2004, there had been no cause for ill will between them or conflict between them. Another factor of importance is that both the offender and Mr. Matthews had become heavily intoxicated following consumption of a considerable quantity of beer on the day in question. The actual stabbing incident was, on the evidence that has been tendered, plainly the consequence of the effects of intoxication upon the offender. What had been a happy day in which the deceased and the offender had been enjoying each other's company, rapidly escalated from what appears to have been their customary form of banter mixed with jostling into an alcohol-fuelled aggressive incident that, within a very few short minutes, culminated in the stabbing incident. The long and close friendship which the two men had enjoyed for some years prior to that time underlies the complete tragedy of the events in question. 21 The post mortem report of Dr. Diane Little officially stated that the cause of death was a stab wound to the neck. Dr. Little determined that the depth of the wound was approximately 135 mm. The wound, which entered at the left side of the neck, transected the subclavian artery. The wound was orientated downwards, slightly medially and slightly backwards. 22 Judith Perl, pharmacologist (forensic) from the Clinical Forensic Medical Unit - Sydney Police Centre, provided a detailed expert certificate dated 1 July 2005. In the certificate, the following matters are recorded:-

• Based on the most likely elimination rate reported in humans of 0.015 g/1,000 ml/hour and on the offender's blood alcohol concentration as determined by a breath test device, the blood alcohol concentration of the offender at the time of the incident would have been 0.259 g/100 ml.

• At a blood alcohol concentration above 0.25 g/100 ml, all people would be under the influence of alcohol to an extent that cognitive and motor functions would have been significantly impaired including reaction times, ability to recognise a dangerous situation, impairment of information/processing by the brain and ability to maintain vigilance as reduced by alcohol.

• Aggressive behaviour may result from disinhibition produced by alcohol and alcohol increased both inattention and risk-taking behaviour. 23 Based upon observations of witnesses as to the offender's apparent intoxication, Ms. Perl considered that the symptoms were consistent with a blood alcohol concentration around 0.25 g/100 ml in a person, such as the offender, who had a history of heavy alcohol use. 24 The certificate of Ms. Perl does not support that the offender would have suffered from memory "black-out" as he appeared to respond to questions and have some memory of the day in question. 25 It is apparent from Ms. Perl's report that the offender, although a heavy consumer of alcohol, was at the time of inflicting the stabbing wound on the deceased heavily affected by alcohol, and such as to have caused him functional impairments as identified by Ms. Perl. I will turn to consider the aggravating factors and the mitigating factors.

Aggravating factors 26 Counsel for the offender accepted that the relevant aggravating feature in terms of s.21A(2) was:- "(c) The offence involved the actual … use of a weapon." 27 It is to be noted in this case that some recognition should be given to the fact that the knife was a household implement and not an instrument designed and intended to be used as a weapon. 28 The only other relevant aggravating feature identified by the Crown was the offender's record. Having done so, as the Crown also observed, there is only one prior matter of assault in 1997 which was dealt with by the Court at that time by way of a s.558 recognizance.

Mitigating factors 29 Ms. Flannery of counsel relied, in my view properly, upon the following mitigating factors to be taken into account in determining the appropriate sentence for an offence, namely, those factors identified in s.21A(3) as follows:- "(b) the offence was not part of a planned or organised criminal activity; (c) the prisoner was provoked by the victim; … (e) the prisoner does not have any significant record of previous convictions; … (g) the prisoner is unlikely to re-offend; (h) the prisoner has good prospects of rehabilitation; (i) the prisoner has shown remorse for the offence;

… (k) an early plea of guilty of the prisoner." 30 Ms. Flannery also submitted that s.21A(3)(c) was relevant. 31 I consider that, apart from provocation as referred to in s.21A(3)(c), each of the other factors which Miss Flannery relied upon are mitigating circumstances on the facts established in the present matter. As to provocation, the evidence does not, in my view, establish that the offender was provoked by the victim, although it is to be noted from the statement of Ms. White, the deceased's actions certainly made a contribution to the environment and circumstances that escalated into the stabbing incident. 32 The provisions of s.21A make it clear that the relevant aggravating and mitigating factors set out in s.21A(2) are not exhaustive. It is, however, necessary that I take into account those factors that are relevant and known. Once all such factors have been identified once they have been taken into account it is not necessary for me in these remarks to deal with each and every factor identified within the provisions of s.21A. I have had regard to the statutory requirements that particularly bear upon the factual circumstances of this matter and have sought to give due weight to each of the matters in accordance with their particular relevance. 33 In relation to s.21A(3)(g), namely, "the offender is unlikely to re-offend" both Ms. Flannery and the Crown observed that the offender had expressed great remorse at having stabbed and killed his friend whilst intoxicated. 34 In relation to s.21A(3)(h), namely, "… good prospects of rehabilitation …", the Crown submitted that the offender does not have a bad record and he does have good prospects of rehabilitation with every incentive to get his life back on track noting, however, that alcohol has been the main problem, being one he has to overcome in the future. 35 In relation to s.21A(3)(i), which is concerned with the question of remorse demonstrated by the offender, it is undoubtedly true that the offender has shown remorse as Ms. Flannery submitted. The Crown submitted that the offender's remorse is evidenced by his actions following the stabbing in taking his shirt off and attempting to stem the flow of blood from the neck of the deceased. He also cuddled the deceased as they waited for the ambulance and said "he's not dead, I love you Wood". Additionally, the offender engaged willingly in an electronically recorded interview with police and participate in a "walkthrough" with the police. 36 I take into account that the maximum penalty prescribed by the legislature which, in the case of manslaughter, is imprisonment for 25 years: s.24 of the Crimes Act 1900. Manslaughter, as I have already indicated, may involve a wide variety of circumstances calling for a wide variety of penal consequences. 37 In relation to the sentencing principles earlier identified, it is important that I supplement what I have earlier stated by taking, as a starting point in the sentencing task, the central fact that a human life has been taken. In R. v. Hill (supra), Street, CJ. said:- "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 interests of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 38 It is clear from the facts established by the evidence before me that the objective gravity of the offence is diminished by reason of the fact that Mr. Matthew's death was occasioned in circumstances where, until a very brief time before the stabbing incident itself, there had been no malice or ill-will by the offender which, in any way, contributed to the fatal event. The tragic events in question were, as I have observed previously, largely, if not wholly, due to the effects of the intoxicated condition in which both the offender and the deceased found themselves. I find that the offender's diminished ability to control aggressive conduct was contributed to by the effects of alcohol, which, of course, need to be taken into account in the manner provided by s.428C and s.428E of the Crimes Act 1900. 39 I turn to consider the other matters upon which the offender is entitled to rely. Firstly, the offender entered a plea of guilty on 7 October 2005. It is accepted that this was the first time that the Crown had offered to accept a plea to that charge. Counsel for the offender has submitted that the plea was entered at the first available opportunity. The Crown observed in its submissions, that the offender had not been offered the charge of manslaughter prior to his being arraigned on 7 October 2005. In addition, it noted that he had elected not to have a committal hearing which meant that the State has been saved the cost of the preliminary hearing as well as the costs of a trial and no witnesses have had to be called to give evidence at any time. 40 I consider that the circumstances were such that the date upon which the plea of guilty to the charge of manslaughter was entered by the offender was effectively the first opportunity reasonably available to the offender to enter a plea of guilty. In doing so, he facilitated the course of justice in avoiding the need for a full trial. 41 In the circumstances of this case, I consider it is appropriate to allow for a discount for the plea of guilty towards the upper range permitted and indicated by the Court of Criminal Appeal in R. v. Thomson & Houlton (2000) 49 NSWLR 383. I consider, in all the circumstances, that it is appropriate that the utilitarian value of the offender's plea should be assessed at a discount of 25% on sentence. 42 Secondly, I have also had regard to the very strong evidence of contrition and remorse on the part of the offender, which I consider to be completely genuine. 43 Thirdly, I take into account as a mitigating factor the fact that there are no prior convictions of any significance to the sentencing task required of me in this case. 44 Fourthly, I take into account that the offender does have prospects of rehabilitation if in the future his problem with alcohol is controlled. 45 I have, accordingly, had regard to the objective seriousness of the offence and to all of the relevant subjective features of this case. The task required of me is, whilst making due allowance for the relevant subjective circumstances, to arrive at a sentence which is appropriate to the offender's crime and which pays due regard to the objective gravity to which I have referred: see Regina v. Dodd (1991) 57 A. Crim. R. 349 at 354. 46 When all of the above factors are taken into account, it is reasonable and appropriate to conclude that a significant degree of leniency should be extended in determining sentence. I accept, however, the Crown's submission that no penalty other than imprisonment is appropriate.

Special circumstances 47 Counsel for the offender has contended that there should be a finding of special circumstances and has referred the court to the judgment of the Chief Justice in R. v. Simpson (2001) 126 A. Crim. R. 525. The most common reason for finding special circumstances, as the offender's counsel has submitted, is the need for effective rehabilitation. The Crown joined in this submission commending it as an appropriate course in the light of the evidence. 48 In relation to this issue, I have had regard to the reports of Dr. Bruce Westmore, forensic psychiatrist dated 10 October 2005 and 7 December 2005. In the former report, Dr. Westmore (at p.5) states that the offender's principal problem from a psychiatric perspective is his alcohol abuse. Dr. Westmore stated that:- "… alcohol played a primary role in the incident and the severity of the incident is unlikely to have occurred had he not been so intoxicated." 49 In his second report, Dr. Westmore states that:- "If Mr. Hamshere can cease all alcohol consumption and maintain his sobriety, then I think his risks of re-offending in such a serious way again will be significantly reduced, probably eliminated." 50 Dr. Westmore considered that the offender should attend appropriate courses whilst in custody and on his release he would need continued counselling regarding alcohol abuse. Dr. Westmore concluded that it was likely that both because of the offender's grief over the death of Mr. Matthews and his recognition that alcohol played some role in the matter, that those factors would also assist him later in his attempts to maintain sobriety. 51 I have been referred to a number of decisions by both the Crown and by Ms. Flannery of counsel, on behalf of the offender, being decisions dealing with sentences imposed for the crime of manslaughter. I have identified these decisions in a schedule at the conclusion of these remarks. It is not useful to record the objective and the subjective features of each of the decisions for they vary in their individual circumstances, a fact which itself reflected in the wide range of sentences to be derived from them. Whilst reference to decisions imposing sentences on other offenders where the crime of manslaughter has been committed does assist in the sense it helps establish a frame of reference, such assistance is limited. As Studdert, J. observed in Regina v. Chami [1999] NSWSC 1268 at [26], so much depends upon the particular features of each case with the consequence that the range of degree of culpability is extremely wide. It is for this reason that it has been observed that it is not possible to establish a sentencing tariff which can be applied to manslaughter cases: see Gleeson, CJ. in Regina v. Blacklidge (NSWCCA, unreported 12 December 1995) at p.4. 52 I have also had reference to the Victim Impact Statements which have been tendered by the Crown. I have received and considered the statements to the extent that it is appropriate to do so in accordance with the provisions of s.28 of the Crimes (Sentencing Procedure) Act 1999. Each of the statements reflect the suffering that has been caused by the death of Mr. Matthews. It is to be hoped that the grief which the victims have experienced and are still experiencing will diminish as time goes by. 53 In light of the evidence and in accordance with the provisions of s.44(2) if the Crimes (Sentencing Procedure) Act 1999, I find special circumstances. The special circumstances justify a departure from the statutory ratio between the non-parole period and the balance of the term of the sentence to be imposed. 54 Dr. Westmore has recorded that if the offender ceases all alcohol consumption and maintains his sobriety, then his risks of re-offending in such a serious way again will be significantly reduced, and probably eliminated. Accordingly, as Dr. Westmore has also recorded, on his release he will require ongoing counselling regarding alcohol, a matter which will no doubt be considered by the Probation and Parole Service. 55 In relation to the offender's ultimate release to parole, I recommend that consideration by given by the Parole Authority that he be released to a residential or other suitable rehabilitation programme and attend intensive counselling for alcohol related issues as directed by the Probation and Parole Service. 56 I would wish to record my appreciation to Ms. Flannery of counsel and to the Deputy Senior Crown Prosecutor for their considerable assistance. The fairness and balance displayed by the learned Deputy Senior Crown Prosecutor in assisting the court to arrive at a proper sentence in this matter has, of course, been exemplary. 57 I propose back-dating the sentence to 26 December 2004, the date upon which the offender was taken into custody. I consider that an appropriate sentence in the circumstances of this case is one of 5 years comprising a non-parole period of 3 years. 58 I sentence you to a non-parole period of 3 years to commence on 26 December 2004. I fix an overall sentence of 5 years which will commence on 26 December 2004 and expire on 25 December 2009. 59 The earliest date upon which you will be eligible for release on parole, accordingly, is 25 December 2007.

SCHEDULE OF MANSLAUGHTER CASES (a) Appleby 18 July 1997, Ireland, J. (b) Hyatt [2000] NSWSC 744, Barr, J. (c) Maclurcan [2003] NSWSC 799, Buddin, J. (d) Yu [2003] NSWSC 1153, Wood, CJ. at CL. (e) MacDonald NSWCCA, unreported 12 December 1995 (f) Dally 115 A. Crim. R. 582 (g) Wright [1999] NSWSC 1087 (h) Chami [1999] NSWSC 1268 (i) Horton [1999] NSWSC 983 (j) Naudin [2000] NSWSC 18 (k) Mabbot [2002] NSWSC 502 (l) Muddle [2004] NSWSC 403 (m) Boyd [2004] NSWSC 263

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