REGINA v HATCH; REGINA v NORMAN; REGINA v WAGSTAFF - [2008] NSWSC 1411 - NSWSC 2008 case summary — Zoe

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REGINA v HATCH; REGINA v NORMAN; REGINA v WAGSTAFF

[2008] NSWSC 1411

Supreme Court of NSW|2008-12-19|Before: Adams J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2008-12-19

Before

Adams J

Catchwords

Sentence - Manslaughter - victim provoked fight and produced knife

Source

Original judgment source is linked above.

Catchwords

Sentence - Manslaughter - victim provoked fight and produced knife

Judgment (29 paragraphs)

[1]

Introduction 1 Matthew Hatch was convicted on 17 September 2008 of the manslaughter of Aaron Glen Gill following his trial for murder. (For ease of reference I will refer to most relevant persons by their surnames.) Gill's death occurred during a fight which involved him, Hatch and two of Hatch's friends, Luke David Norman and James Richard Wagstaff. Gill died when the knife which he brought to the scene and had previously used on Wagstaff entered his heart at Hatch's hand whilst they were wrestling, I think in all likelihood, for possession of the knife. As it happened, Wagstaff had been seriously wounded when Gill stabbed him twice in the lower abdomen and again on his shoulder. Neither Hatch nor Norman suffered any significant injuries and there is no evidence of any knife wound being inflicted on them. 2 Gill was killed at about 4am on 14 December 2006 and, shortly after, Hatch was arrested and charged with his murder. He was not granted bail and has been in custody since that date. Accordingly, any sentence which I impose will commence subject to a matter I will refer to in due course on 14 December 2006. He has spent the past two years on remand in maximum security; as a consequence, he has been denied the possibility of lower classification - which would have been inevitable within a relatively short time of the imposition of any sentence - and thus, have been transferred to less rigorous imprisonment. It is fair that he should be given a greater than a day for day allowance in respect of the lengthy period on remand. This is especially so since Hatch indicated his readiness to plead guilty to the offence of manslaughter at the conclusion of the prosecution case at the committal proceedings on 5 December 2007 and, again, when he was arraigned for the first time in this Court on 1 February 2008. When the matter was listed for directions on 1 August 2008, the Prosecutor indicated that the prosecution had changed its position and was now prepared to accept a plea to manslaughter in discharge of the indictment. In the meantime, however, Hatch had changed his position and indicated that he was no longer prepared to plead guilty to manslaughter. In the result, the Crown indicted Hatch upon the charge of murder, despite the indication that a plea of guilty to manslaughter would be accepted in discharge of the indictment. Hatch pleaded not guilty to the charge and, accordingly, the trial proceeded before me on the charge of murder, upon which he was acquitted. Although he was entitled to some credit for attempting to assist the administration of justice at an early stage by pleading guilty to the offence for which he was ultimately convicted, I do not think that he is entitled to a discount within the meaning of R v Thomson & Houlton since it was necessary in the result to conduct a trial, he having declined to plead guilty to manslaughter in response to the prosecution's offer. In hindsight it is regrettable that the Crown did not accept the timely plea offered by Hatch for which, as I said, he deserves some credit. The co-offenders

[4]

5 As at 14 December 2006 Hatch was a resident of 97 Darling Street Bourke, where he had lived for some time. In the relatively recent past he had resided there in a relationship with Ms Christina Dixon. They had been together for some two years and had a child. In October 2006 they separated and, shortly after, Ms Dixon had formed a relationship with Gill. Wagstaff was temporarily residing at Hatch's house on the night in question, whilst Norman lived several doors away. Hatch, Wagstaff and Norman were all good friends. In early December 2006 Ms Dixon, who had left Bourke after the break-up of her relationship with Hatch, returned in the company of Gill, both residing either next door to Hatch at 99 Darling Street or in other premises close by. 6 On the evening of 13 December 2006, a group of people including Hatch, Wagstaff, Norman, Ms Dixon and her sister were at Hatch's house and they were joined around nightfall by Gill. It is clear that there were some ill feelings between Gill and Hatch and they had some angry words centred, as I think, on their relationships with Ms Dixon. Everyone was drinking steadily. Some little time after midnight, Ms Dixon and her aunt left Hatch's house and were walking together. They had only gone a short distance when Hatch came up behind them, put his arm around Ms Dixon and hugged her, joining them as they went. A few moments later Gill suddenly appeared, shouted an insult and, without warning, punched Hatch so hard in the face that he fell backwards onto the ground where he kicked him in the head possibly three or four times, enough not only to break two of Hatch's front teeth but leave him unconscious for several minutes. Some people who lived nearby came over and stopped the fight, Gill then leaving the scene and walking home, Hatch still lying on the ground apparently unconscious. He was helped to his feet with no memory of what had actually happened. He then, with Ms Dixon and her aunt, started to walk towards the hospital. Not surprisingly, Hatch was very upset and angry. Ms Dixon then said to him that Gill had also punched her indicating her chin and cheek. This seemed somewhat unlikely and it is difficult to discern a motive for her saying this to him. This obviously angered Hatch even more and, using insulting language he said, in substance, that he was going to go back "for" Gill. He refused to go to the hospital and walked back towards his house with Ms Dixon. 7 On the way, the couple went into another house where, as it happened, the noise prompted police to attend. An officer who knew Hatch noticed him standing in the hallway bleeding from his mouth and asked him what had happened. Hatch replied that nothing had happened and that he would "sort it out myself". The officer warned Hatch not to take matters into his own hands as that could get him into trouble. Hatch apparently responded to this warning, saying, "I know, I'm going home" and then left and walked away towards his house. The police followed and entered the premises after him, Ms Dixon, Norman and another young man. The police also noticed Wagstaff in the premises. The officer saw Hatch go out the back door towards 99 Darling Street where Gill was. The officer asked Hatch what he was doing and Hatch replied, "He knocked my teeth out. I'm going to knock his teeth out". The officer asked him to come back to the station to make a statement about the matter but Hatch declined. The officer told him to go home to bed. Hatch agreed and walked back inside his premises with Norman. The police then left the scene.

[6]

9 When Hatch returned to the house after the police intervention he was with Ms Dixon and other friends and acquaintances including Wagstaff and Norman. They sat in the front of the house and continued to drink. At one stage Hatch, Norman and Wagstaff went to Norman's house to collect some bourbon which they shared between them. Some time later Wagstaff and his girlfriend went to bed and Hatch and Ms Dixon went to his bedroom where, I am satisfied, sexual intercourse took place. 10 Also in the house at the time was a Ms McKellar, Mr Hatch's new girlfriend who had, I think, been angered by his conduct towards Ms Dixon. Be that as it may, she left the premises after Hatch and Ms Dixon entered his bedroom and met up with Gill and several others. Gill showed her a knife. Shortly afterwards they walked back towards 97 Darling Street, Gill then armed both with a knife and also the iron pipe to which I have already referred. The pair entered the house and went to Hatch's bedroom. It is obvious that this would not be an occasion for polite conversation. The door was pushed open with Ms McKellar saying words to the effect to Gill, "He's in there". I think it likely that, at this point, both Ms Dixon and Hatch were naked or nearly so. Gill called Ms Dixon to come out. Wagstaff came into the hallway at this time and a scuffle broke out between him and Gill which moved towards the back door. Gill retreated towards 99 Darling Street through a gap in the fence between the premises. Norman followed Wagstaff out of the house though, by the time he exited the back door Wagstaff and Gill were at the dividing fence involved in some kind of fracas with Gill wielding the iron pipe and, I think it likely, attempting to hit Wagstaff with it. Whether Wagstaff was attacking Gill or simply attempting to disarm him is not certain. I am not sure that Wagstaff was sober enough to discern any distinction between these two objectives. As Norman saw this fight he came to the aid of Wagstaff, saying that he wanted to try to break it up. I accept that this is at least reasonably possible though I rather think that his actions also had some aggressive element. Hatch emerged from the house as Norman was going over to the fence. He said that he also wanted to break up the fight. Again I think that it is reasonably possible that this was at least part of his motive. On the other hand I do not think it can be doubted that he was also angry with Gill whose behaviour had been highly provocative. Not only had he very seriously assaulted Hatch a few hours before but he had also invaded his home armed with an iron pipe in order, it would have appeared, to forcibly remove Ms Dixon from Hatch's bed and from his house. Ms Dixon was also present at this point and observed punching and kicking. 11 As the fight moved past the dividing fence Gill jumped over the front fence and was grabbed on his shirt by Wagstaff. It was at this point that Gill stabbed Wagstaff in the abdomen and then ran towards the end of the street perhaps 40 metres or so away. Whether Wagstaff was himself aware at that time of having been stabbed is uncertain. He cannot recall it. The state of his drunkenness may also have had an anaesthetic affect. However, on carefully reconsidering the evidence, I think it likely that Wagstaff was indeed aware that he had been stabbed and that he had chased after Gill in an instinctive response. By this time I think the fight had taken on a life of its own as it so often does with young men and drink. But there is no evidence from which I could infer that it was Wagstaff's intention to seriously injure Gill. Indeed, I think that such was the level of his insobriety that it was unlikely that he could have inflicted any such injury. Norman also pursued Gill as did Hatch although, again, I do not think that any of them had any particular idea of what they were going to do except that part of it was, as I think likely, that they intended to disarm Gill who still had the iron bar in close proximity to Wagstaff. It seems almost certain that neither realised that Gill had already wielded his knife and stabbed Wagstaff. In part at least they may have wanted to aid Wagstaff by way of subduing Gill, though I think it likely that there was also some aggressive intention involved. All four were quite drunk and also angry. No one was thinking clearly. All these events happened very quickly and in the dark. Confusion was inevitable.

[7]

12 I have mentioned that Wagstaff also received a serious wound to his shoulder. I think that this almost certainly happened when he met up with Gill at the end of the street. Norman came up to Wagstaff and Gill first, followed a little later by Hatch and then by Ms Dixon. For a short time they were all upright, fighting rather ineffectually I think, although Gill had wounded Wagstaff in the shoulder. It may be that Norman did not see the knife at all. Hatch certainly became aware of it, but when this occurred cannot be known. As the fight moved, Gill fell over, I think backwards, causing a laceration to the back of his head. By this stage Gill, had dropped the iron pipe, which was picked up by Ms Dixon. A mêlée then broke out with Wagstaff and Gill on the ground joined by Norman and Hatch who were hitting and kicking him though, in light of the ultimate injuries suffered by Gill, rather ineffectually. Ms Dixon struck at Wagstaff with the pipe and I think at the others also although it seems that only Wagstaff and probably Gill were actually hit. These were hard blows in Wagstaff's case that caused significant welts that were later observed at the hospital. She was both drunk and hysterical. She says, and I accept, that at one point, Hatch was using Gill's shoes which had somehow got removed, to hit him on the head. At all events, at one point Hatch and Gill were wrestling. By this time, I think that Hatch was aware that Gill had a knife. Somehow Hatch got hold of the knife and pushed it into Gill's body. It entered easily through soft tissue and, tragically, into his heart. There were in fact two stab wounds, one of them deeper than the other but it is not possible to know which was first. They were certainly inflicted within seconds of each other. Despite the evidence of one Ferguson (watching intermittently from about 25 metres or so away) and, to some extent, the evidence of Ms Dixon I am satisfied that it is at least likely these wounds were inflicted whilst Hatch and Gill were wrestling on the ground. Shortly after Gill was stabbed, Hatch got to his feet and attempted to strike his head with Gill's shoes, shouting at him to get up and fight. I am satisfied that he was unaware that Gill had been seriously wounded at this time. Ms Dixon was on the ground at Gill's head, attempting to protect him. She placed her hand at the side of his body and felt the blood rapidly coming from the wound. Hatch was still shouting at Gill to get up "for one more go". I do not think that Hatch realised very much about what had happened except that he was aware that he had taken the knife from Gill and that he had in some way used it. A little time before this Wagstaff had left the scene, obviously now aware of his wounds and in some pain. Norman followed him almost immediately and Hatch was only a few seconds behind, telling Ferguson as he walked up the road, words to the effect, "Lucky I took the knife off him otherwise he would have killed us all". Ms Dixon, realising that Gill was very seriously wounded, ran up to a nearby house to call for help.

[20]

25 Wagstaff was 32 years old at the time of the offence. In 1995 he had been convicted of the offence of maliciously inflicting grievous bodily harm for which he was sentenced to 500 hours of community service, an outcome that suggests that the circumstances were not serious. Something over two years later he was again convicted of assault occasioning actual bodily harm but given a recognisance under s 558 of the Crimes Act 1900, again suggesting it was at the lower end of the scale of seriousness. Other minor offences were committed in October 1998 but there were two further convictions for common assault in September 2004 and October 2006. In relation to the first he was sentenced to 100 hours of community service and in relation to the second was fined $1000. It is clear from other evidence that Wagstaff has had problems with alcohol. The report from the Probation and Parole Service showed that his response to supervision was borderline with several failures to comply with the requirements of the Service. Despite recommendations by the Service that he should undertake alcohol and drug counselling it does not appear that he did so. He had a problematic upbringing, never knowing his father and his mother having a history of hospital admissions occasioned by depression. He did not complete Year 9 at school but is literate. By and large he has been gainfully employed. A report by Dr Bruce Westmore, forensic psychiatrist, in substance shows that Wagstaff functioned reasonably well when he is not abusing drugs and, particularly, alcohol. It seems to me that he has made a serious attempt at rehabilitation since the events that led to his arrest for this offence. I note that his current employer, for whom Wagstaff had worked since October 2007, speaks highly of his attitude to work. His superior at work also commends him as a hard worker and polite and helpful. Another employer for whom Wagstaff worked as a farm hand/tractor operator for some years, thought him to be, in substance, a worthwhile employee. Wagstaff gave evidence, amongst other things, acknowledging a history of violence associated with alcohol abuse. I am satisfied that he is contrite and has a genuine desire to comply with any requirements of supervision. His period in gaol has, I think, concentrated his mind in this respect.

[22]

27 Hatch's previous convictions include common assault for which he was placed on a bond in December 2005 and in the same year committing the offence of entering a dwelling house with intent to commit a serious indictable offence (assault occasioning actual bodily harm) with circumstances of special aggravation (wounding the occupant of the house). Although the offence is a very serious one, carrying a maximum term of imprisonment of 20 years, Hatch was sentenced to imprisonment for 12 months, which sentence was suspended upon his entry into a good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown appealed against the leniency of this sentence. Although the Court of Criminal Appeal regarded the sentence imposed as manifestly inadequate, it exercised its residual discretion and dismissed the Crown appeal: Regina v Hatch [2006] NSWCCA 330. The principal reason for taking this course is that the Court was satisfied that there had been a bona fide attempt by Hatch to improve himself, a conclusion that relied upon a Probation and Parole Report in substance characterising the offence as impulsive and stating that Hatch had made positive attitudinal and lifestyle changes which, coupled with securing employment, increased his sense of responsibility and suggested a sincere attempt at rehabilitation. The present offence is a serious breach of the good behaviour bond he had been fortunate to obtain. There are other relatively minor matters on his record to which it is not necessary to refer. Hatch was examined by Dr Westmore, a forensic psychiatrist for the purpose of these proceedings. He disclosed a history (which I accept) of serious alcohol abuse commencing in his early teens, combined with heavy cannabis use and amphetamines by injection three or four days a week. He has had a somewhat troubled upbringing, never having known his father and his mother having suffered from depression for a long period, including attempting suicide on a number of occasions. Hatch was subject to considerable violent abuse at the hand of his stepfather. Although he reached Year 10 and obtained a certificate, he was expelled a number of times at school for fighting. Although for a time his heroin abuse affected his ability to work, he has by and large been employed at least in seasonal work since he left school. He has had two significant relationships, one of about eight years, with two young sons from that relationship living with their mother and a more recent relationship of about four years with Ms Dixon, which as I have mentioned, ended a month or two before the offence. He and Ms Dixon have a four-year-old son who lives with his mother. Hatch is of at least average intelligence and, although he has behavioural problems relating to fighting and anger, partly because of his stepfather's abusive behaviour towards him, his main problems are plainly drug and alcohol abuse. If he can cease this latter conduct, his chances of rehabilitation will be very significantly bettered . Letters were tendered from Hatch's mother and grandmother, broadly speaking confirming the history that he gave to Dr Westmore, particularly so far as the brutal violence to which he was subjected as a child is concerned. Several other respectable people who have known Hatch for quite some time have attested to his sincere attempts to rehabilitate himself. 28 Also tendered on Hatch's behalf is a letter from him in which he expresses remorse and contrition for his offence. He also says that he has learnt a great deal whilst he has been in prison and in particular has come to realise that he needs to deal seriously with his behaviour. He did not give evidence at the sentencing proceedings. The weight to be given to this letter is therefore not great. I would accept that his time in prison has operated as a significant personal deterrent so far as his destructive behaviour is concerned and his acceptance of the need to change and also that he has been drug free during this time. I also accept that a measure of rehabilitation has occurred whilst he has been in prison. I have also considered the report of a Mr. Diament, consultant psychologist, who interviewed Hatch as well as his mother and grandmother. This report I think is best summarised by saying that it indicates not only remorse for his crime but an intention to rehabilitate himself and the personal resources, with some assistance, that should enable him to do so. The psychological assessment demonstrated what Mr Diament described as "a surprisingly well adjusted underlying personality structure". It is difficult to assess the extent of any rehabilitation so far achieved but I accept that it is not insignificant, that he is capable of rehabilitation and, if he seriously attempts it, there is some real chance of success. Victim impact statement

[24]

30 Of course, the loss of a child is a terrible experience for any parent and as well for any sibling. However, as real and as terrible and as long lasting as these feelings are they cannot be placed on the scales for the purpose of determining an offender's punishment. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim's death is the cause of pain or grief to others, however great. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. It would be wrong to take one day from an otherwise appropriate sentence for unlawful killing because the deceased was selfish or obnoxious or without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was kind and generous, or his or her death caused pain and grief to a loving family. If this were not so, counsel for the killer could argue that, as the victim was unlovely or unloved, his or her death mattered less and the sentence should be more lenient, and the Crown Prosecutor, by pointing to the goodness of the deceased, the grieving family, angry onlookers, or an indignant media, argue that the penalty should be more severe. To do this would undermine the moral standards essential to the administration of justice. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 31 For these reasons, although it is entirely proper that Aaron Gill's kith and kin should be able in this place to express their feelings of grief and loss at his sad and tragic death, the Court cannot take this into account in sentencing the offender. Hatch's prior offence

REGINA v HATCH; REGINA v NORMAN; REGINA v WAGSTAFF

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