1 HIS HONOUR: The offender, Norman Keith Laing, towards the expected end of his trial on an indictment for murder, for the first time, received the offer from the Crown of a plea of guilty to manslaughter in full discharge of that indictment. It is apparent that the prospect of the offender pleading guilty to manslaughter had been in existence for some considerable time. He accepted the plea when it was first offered.
2 It is conceded by the Crown that in those circumstances, he should be entitled, when the court takes into account that plea under s.22, of the Crimes (Sentencing Procedure) Act 1999, to the consideration of the imposition of a lesser penalty than would otherwise have been imposed. That penalty, it is submitted by the Crown, and as I understand it, is also accepted by the defence, should be reduced by 25% from that which it would otherwise have been by reason of: that early plea; contrition which the offender showed to some extent initially, and subsequently when speaking to his friend Mr. Hill and to the police; and by reason of his co-operation with the police, such that having regard to what was said by the Court of Criminal Appeal in Regina v. Thomson & Houlton (2000) 49 NSWLR 383 that 25% would be an acceptable discount to apply not only in respect of the application of s.22, but in the application so far as it is appropriate of s.22A and s.23.
3 The offender, from the moment he spoke to Mr. Hill enquiring concerning the body, was entirely co-operative, as best I find he could be, with the police. I am prepared to discount the sentence in accordance with the submissions made both on the offender's behalf and by the Crown to that extent for those reasons.
4 It is common ground that the Crown's account in their written submissions to me of the circumstances of the offence is to be regarded as appropriate:-
"1. The prisoner was arrested at Lithgow on 10 September 2002. He was charged with murder the following day and was refused bail.
2. He was formally arraigned for the first time at his trial, which commenced on 17 May 2004 and recommended (following the discharge of the first jury) on 19 May. Both times he pleaded not guilty to murder, the only charge in the indictment.
3. On 31 May, he entered a plea to a charge of manslaughter, which the Crown accepted in full discharge of the indictment for murder. This was the first time that the Crown had agreed to accept the plea of guilty to manslaughter.
4. For approximately 12 months before September 2002, the deceased, Raymond Stubberfield (aged 54 and known as 'Wally'), had been a boarder at the prisoner's home at 24 Macauley Street, Lithgow. The deceased's board was $80 per week but he was frequently in arrears. The prisoner spoke about his boarder's financial unreliability to various associates. He also repeatedly pressed the deceased to make good his arrears. In June 2002, he phoned Lorraine Griffiths, Mr. Stubberfield's sister and complained to her about the money Mr. Stubberfield owed him.
5. The deceased was a single man who supported himself by working as a casual painter. He was a regular patron of the Court house Hotel in Lithgow. He would usually attend in the late afternoon and spend a couple of hours there, drinking beer and playing the poker machines. He was last seen leaving the hotel around 7.00 pm on Sunday 8 September 2002. He had spent that day and the previous day painting a house at Hartley for which he earned $100 cash each day.
6. About 9.00 pm on Tuesday 10 September, the prisoner confessed to a friend, Michael Hill, that he had killed Wally by forcing him into a bath, which he had filled, and holding his head under the water. The prisoner stated that Wally was wearing overalls at the time of this incident and that he had grabbed Wally by the neck of his clothing to force him into the bath. The prisoner told Mr. Hill that he had used bleach to clean up some blood resulting from the death. The prisoner further revealed to Mr. Hill that he had loaded the deceased's body onto his utility and driven to a bush area where he deposited the body.
7. The prisoner repeated his confession to Senior Constable Darrin Hammonds, Mr. Hill's brother in law and an associate to Laing's through their shared interest in playing the bagpipes. The prisoner told the officer that Wally wrestled when he held him under the water. When asked how he knew that he had killed Wally, Laing replied, 'he wasn't moving'. When asked if he had checked to see if he was moving, Laing replied, 'no I killed him. He wasn't moving'. He stated that the incident occurred two nights earlier, on Sunday 8 September.
8. The prisoner participated in several lengthy electronically recorded interviews with police. He told police that he remembered turning on the bath tap but not how long he let the water run. He remembered holding the deceased under the water, then picking him up, putting him on the back of his utility and driving to Blackfellows Hands where he deposited the body near a track. On his return to Lithgow, he threw the deceased's mobile phone onto a garden bed in a plaza in the main street. That phone ended up back at his place after being found by a person who managed to identify the owner.
9. The prisoner told police that he could not remember how the deceased came to be in the bathroom, nor whether there was an argument prior to his submerging the deceased in the bath. He did acknowledge that he had raised the issue of unpaid rent with the deceased one or two nights earlier.
10. He also told police that he was under the influence of alcohol and marijuana having consumed six to seven cans of full strength beer from between 3.00 pm and 4.00 pm and having smoked three or four joints of marijuana blended with tobacco in a ration of ¼ marijuana to ¾ tobacco."
5 I interpolate the following. There was however evidence at the trial including from psychiatrists that the offender had a long history of alcoholism to the point where, immuned to the inebriating effect of alcohol, he could function or give an appearance of functioning in such tasks as working and driving as though he were normal.
6 I accept the submissions made on his behalf in this regard and in particular, accept the submissions that he had, when speaking to the police and referring to six or seven cans of full strength beer, understated the degree of his intoxication.
7 In his interviews with the police, it is quite apparent that the offender suffered from severe memory lapses. It is further apparent that he was so accustomed to heavy drinking that his ability to estimate what he had had to drink after the event was itself affected. His pattern of drinking as given in histories to the doctors and as observed by his friends, workmates and acquaintances is such as to enable me to find in accordance with the submissions, made on his behalf, that he must have had a great deal more to drink than the six or seven cans.
8 I do not pass from this topic without also noting that he had had at least two to three joints of marijuana blended with tobacco and that all of this self-medication underlay a state of clinical depression to which the psychiatrists adverted in their evidence at the trial.
9 The Crown's submissions continue by referring at paragraph 11 to the offender's deep remorse:-
"11. The prisoner repeatedly expressed deep remorse for what he had done to Wally. For example:-
Q.435: I wish I hadn't have done it.
Q.436: I shouldn't have done what I did.
12. The prisoner agreed to help police find the body and for that purpose accompanied them to the relevant area of the Newnes State Forest. That excursion was unsuccessful. The body was subsequently located after the prisoner had been returned to the police station. He accompanied police to the site where the body had been found. Again he admitted that he was responsible for the death of Mr. Stubberfield and stated that he was ashamed of what he had done.
13. Traces of the deceased's blood were found on the jeans the prisoner admitted wearing on the day of the offence.
14. Dr. Duflou, pathologist, was unable to definitively attribute the death of Mr. Stubberfield to immersion but he found evidence of injuries to the deceased's head, neck and arms, which were consistent with the application of blunt force and which, in his opinion, would have occurred around the time of death. One of them, to the left occipital region of the head, caused bleeding. Some of the injuries could have caused unconsciousness. They suggested an assault or at least a struggle prior to the immersion.
15. The deceased was in poor health. He suffered from advanced coronary artery disease and emphysema. He weighed on 47 kilograms and had a high blood alcohol reading."
10 It is not at all clear as to what the offender actually did do. His admissions to the police were plainly of the nature of reconstruction. The deceased suffered a laceration to the back of his head in addition to the bruising referred to by Dr. Duflou which I have noted above. It seems probable that that laceration to the head, and some at least, of that bruising was occasioned by the offender forcing the deceased into the bath, a bath which it is not clear he ran beforehand but which he certainly ran, and in which the water may have been as shallow as 10 centimetres.
11 Dr. Duflou's evidence was such as to make it difficult to positively conclude that the deceased died as a result of drowning, that term being used in the colloquial sense of being immersed below the surface of water so that he could no longer breathe. Nonetheless, by his plea, and it is clear from the whole of the evidence (see Puckeridge v. The Queen (1999) 168 ALR 4), the offender caused the death of the deceased either by his act in immersing the deceased or by some other of his acts including the depositing of the body out in the bush. The precise mechanism, however, which occasioned the deceased's death, was not established beyond reasonable doubt by Dr. Duflou's evidence nor, in the light of the plea, need it be.
12 In this case, it is quite clear that none of the offender's acts nor their sequence were involuntary. Those acts were intended so that the requisite test for manslaughter by unlawful and dangerous act enunciated by the High Court in Wilson v. The Queen (1992) 174 CLR 313 was satisfied, whether the deceased died by way of the effects of what the offender had done taken in conjunction with advanced coronary artery disease and emphysema or solely through the immersion (see Puckeridge (supra)).
13 Although at the trial the recent decision of the Court of Criminal Appeal in Regina v. Lavendar [2004] NSWCCA 120 was raised which applies specifically to manslaughter by criminal negligence, it is sufficient for the purposes of sentencing that I note that the offender's acts so far as they constituted an unlawful assault of the deceased in placing him in the bath, immersing him, dragging him through the house and transporting him in the utility to his abandonment at Blackfellows Hand Road were accompanied by malice.
14 That malice is sufficiently to be found having regard to the definition of malice in s.5 of the Crimes Act 1900 in his acting recklessly or wantonly but without actual malice. I say this because it was not at all clear what the offender might have sought to achieve by the course he was adopting. Suggestions were made that it was some sort of reprisal against the deceased in rage arising from frustration because the deceased had drunk and gambled away money that should otherwise have been paid for rent.
15 Evidence was given to that effect at the trial by Dr. Parmegiani, but it was purely speculative. It is not at all clear to me on what the offender has admitted, and I note I have not heard from the offender either in the trial or on sentence, that the offender sought to do more than seek to terrify the deceased by this experience with a view to obtaining payment of rent for the future.
16 Indeed, the accounts given by the offender and his lapses of memory, which the psychiatrists all seem to accept were genuine, does not allow one to be satisfied to the requisite standard of the dynamics of what was going on at all except that the actions were deliberate and the death a consequence of them and the offender was at least reckless and there was contrition. So far as the cause of death could be said to be immersion, Dr. Duflou in my view, entirely appropriately categorised that as available because of the co-operation of the offender and the nature of admissions made by the offender and made promptly.
17 In the Crown's submissions, the following appears:-
"17. The only evidence as to how the deceased met his death comes from the prisoner. He admitted forcing the deceased into a bath, which he had filled with water; submerging him; and holding him under the water while the deceased 'wrestled'. The prisoner must have employed a substantial degree of force to overpower even his physically vulnerable boarder, who would have instinctively resisted the unwanted immersion.