REGINA v MARRAH [2002] NSWSC 862 | Case summary

SENTENCE (Murder - plea of not guilty - guilty plea to manslaughter - unlawful and dangerous act - assault - no remorse - no special circumstances) 1 Yesterday, 16 September 2002, the offender was indicted for that, on 10 February 2001 at Urana, he did murder Stephen Cecil Ryan. To that indictment he pleaded not guilty. He pleaded guilty to manslaughter, which plea was accepted by the Crown in discharge of the indictment and on the basis of unlawful and dangerous act. 2 At the outset it can be said that the offender is entitled to some discount for the utilitarian value of the plea. There had taken place, between the Crown and the offender and his representatives since the committal proceedings, discussions which came to fruition last week. Yesterday was the first time the offender formally had been indicted. To this aspect I will return. 3 The evidence in the Crown case on sentence is constituted by exhibit A, the offender's criminal record, and exhibit B, the folder containing what is usually described as the Crown brief, made up of statements and physical evidence materials including the transcript of an audio record of interview conducted on 10 February last year. 4 The factual background is as follows and I am grateful to the Crown for the facts statement sourced in the materials in exhibit B. 5 At the time of his death, Stephen Cecil Ryan, also known as "Booker", was working as a rouseabout in sheering sheds in the Urana district. He was 44 years of age; he weighed 68 kilograms and was 182 centimetres in height. Prior to an injury he suffered in about mid 2000, he had been a shearer, however, the injury left him with a weakened left hand which he could not fully close and unable to continue in that employment. These matters are relevant to the comparative age, stature, physical fitness and capacity of the offender and the deceased. 6 The offender also was a shearer. He arrived in the Urana district in about October 2000. A shearing contractor, Pat Bourke, employed both the offender and the deceased and from time to time they both worked in the same shed. The offender was living in Urana with two other men, Robert Allan and Justin Hampton. Both the deceased and the offender became friends of Wayne and Simone Widdup who lived at 26 William Street, Urana. Wayne Widdup was a shearer who also worked for Mr Bourke. The deceased had been living with the Widdup family for some weeks up until the time of his death. 7 On 9 February 2001, the offender was crutching sheep with Wayne Widdup in a shed on a property known as "Pooginook" at Coleambally. They went to that property with Justin Hampton and a rouseabout by the name of Marie Morris. During the course of the day the offender told Ms Morris that he was unhappy with the deceased because the deceased had walked out of a shed some time beforehand and that he also owed the offender money. The offender told Ms Morris that the deceased had said something in the presence of Mr Bourke the previous night that upset him. The offender told Wayne Widdup during the day that he was going to come around and "fix Booker up" and "teach him a lesson". 8 They finished work at about lunchtime and, on the way back to Urana from the property, the four stopped at a hotel for a few drinks. While at the hotel the offender again mentioned "getting Booker". 9 After returning to Urana, the offender showered and slept until about 8.30. He then went to the Urana Bowling Club where he consumed two glasses of beer. He remained there until the club closed and left it to walk home in the company of one Kathleen Alexander. They parted company at the corner of Princess and Stephen Streets, Urana. She went home. The offender walked to his place. Miss Alexander observed that the offender was wearing thongs and noticed no signs of intoxication about him. 10 That evening the deceased went to the Urana Hotel where he spent most of the night, either at the bar speaking with friends or in the games room playing poker machines. He was still in the games room just after midnight but had left by no later than 12.10am. Wayne Widdup was also at the hotel that night and left with one Travis Montgomery at about 1.30am. 11 Robert Allan had also been at the hotel that evening. He left when the hotel closed at midnight. After leaving the hotel he used a public telephone box to make a call to his sister in Queensland at about half past 12 in the morning. He then went to 26 William Street to wait for Wayne Widdup. When he arrived at those premises he saw the deceased lying face down on the grass nature strip. He thought him to be drunk. He gave the deceased a shake, but there was no response. He left the deceased and walked to the front door of the premises to wait for Wayne Widdup. The offender was sitting on the front steps with several cans of rum and coke. He invited Allan to stay and have a drink with him. He told Allan "I asked Booker if he had the money again." The offender told Allan that Booker had said he didn't have it; that the offender wasn't going to get it, not after the way he spoke to him at Bourke's place the night before. The offender then told Allan, "I give him a good hidin'. He's learned his lesson. He'll give me money back to me next time". Mr Allan stayed with the offender for some time and then they decided to leave and walk home. 12 On their arrival, Justin Hampton woke and the following conversation occurred between him and the offender: Hampton : "What's the time?" Offender : "2 o'clock. Booker's asleep." Hampton : "What, in the house?" Offender : "Booker was walking home from the pub to Wayne and Simone's. I met him in the middle of the road in front of Simone's, I said, 'Where's my money, cunt.' Booker said, 'Oh, fuck ya.'" 13 The offender then demonstrated to Hampton how he had assaulted the deceased by throwing some punches in the air really quickly. The conversation continued:

19 Relevantly, one aspect of the relationship between the offender and the deceased in terms of conflict came to a head when the offender, the deceased and Robert Allen went to Mr Bourke's premises on the evening of 8 February 2001. An argument developed between them about rouseabouts' pay. Mr Bourke stepped in to quell it. However the offender made a remark to the deceased about the outstanding loan and a further argument developed. During that argument the offender said to the deceased "I'll give you a hidin' if you don't shut your mouth" to which the deceased is said to have replied, "I'm not gonna back down from you. You may be big, but I'm not going to back down to you". As Allan was driving the offender home from that meeting, the offender said to him, "Even if he gives me my money back, I'm going to give him a hidin' any way." 20 The post-mortem examination revealed that the deceased died as a direct result of the combined effects of neck compression and traumatic subarachnoid haemorrhage. Multiple abrasions of the head, trunk and limbs, consistent with multiple application of blunt force, were also noted. The deceased had a blood alcohol level concentration of 0.097 percent. The forensic pathologist, Paull Botterill, at the Committal proceedings said both the neck compression and subarachnoid haemorrhage could cause death. He was unable to decide as to which the injuries was the latter of the two. One without the other could have caused death. He found marks over the skin surface of the deceased's neck consistent with being caused by fingernails. 21 I turn to the record of interview. As I said, the offender was interviewed by the police by way of audio tape during the course of the afternoon of 10 February. He was not cautioned at the commencement of the interview, however, during the course of it police were provided with further information by the two men, Hampton and Allan. On receipt of that information the offender was then cautioned and the interview continued. 22 The course of the interview can be summarised as follows: the offender told the police he last saw the deceased at Pat Bourke's place on the previous Wednesday night. That was clearly not the fact. While there he asked Booker if he could have his money. He said he didn't see him after that, but then said he did see him on the Thursday at Wayne Widdup's. He did not see him anywhere after that. This was false. He heard the news about the deceased in the morning from a neighbour when he was walking to the shops. Someone had told him that the deceased had been hit by a truck. It was at that point in the course of the interview that the caution was administered. Apart from the money issue, he had a problem with the deceased walking out of the shed. He called the deceased a "girl" for doing that because it meant that the balance of the men had to remain at the shed longer to complete the cut. He denied arguing with the deceased about this at the Widdup house on the night of Thursday 8 February. He said he went to the club on the Friday night at 9 and, "Got walked home by a lady." He had two beers whilst he was there. When asked if he went out again after getting home, he said, "I was sleeping, mate." The offender was then informed by police that a person had seen him outside the Widdup's premises at about 12.30am on the front verandah. The offender then said he was waiting for Wayne Widdup. When asked why he did not say that to the police before, his response was, "'Cause you haven't asked me." 23 The offender then said, after getting home, he went to sleep and then came back to Wayne's and waited there, that is at the Widdups'. He said he went inside the premises and tried to wake Simone Widdup, went back outside, saw Robert Allan, who, he said was yelling and screaming at someone on the telephone. He, Allan, was drunk. There was also someone there lying on the grass in front of Wayne Widdup's. He did not know who it was. "I don't look at drunks on the street, mate. Never do". When asked if he had any fights that night, he said he had a disagreement with Booker after the club closed in front of Wayne Widdup's house. He asked Booker for his money and then went and sat down. He did not hit Booker, but Booker tried to hit him, "But he was too pissed." Booker could hardly stand up, according to the offender. 24 After he, the offender, had sat down, Booker left to get the money. "I haven't seen him since". When Robert Allan arrived, they sat and yarned for a while and then they walked home. He said he first saw this person on the ground after going inside once again to wake up Simone Widdup. He went over to the person on the ground with Allan and tried to wake him up. It was then that he realised it was Booker. "I just went, 'Oh, he's drunk, leave him'". 25 When asked by the police if the person he saw had any injuries, he said, "Not that I know of, no". He made reference to Booker making a groaning noise before they left him. He denied telling Allan that he had assaulted the deceased. He in fact said that he told Allan that he was "going to". He denied giving the deceased "a hiding", saying that he had said to Allan "I was gunna give him a hidin'". He never perceived Booker to be a threat to him except when he wanted to have a go at him at Pat Bourke's place and again "last night". 26 For the Crown, on the subject of the matter of objective criminality, it was submitted that this was by no means the worst case of manslaughter for unlawful and dangerous act, but equally by no means is it at the lower end of the scale. 27 The Crown submitted I that I should be satisfied beyond reasonable doubt that there was an element of premeditation in the assault. The statements made by the offender referred to above point to this. Reference was also made to the matter of geography by reference to the town plan, exhibit B, the different destinations of the offender and the victim after leaving their drinking places. It is clear that the offender came from his place to that of the victim, outside the latter of which the event occurred. 28 For the offender, it was submitted that whilst there is ample evidence of animosity expressed by him towards the deceased, nothing suggests "prearrangement" of the encounter. All that is suggested, by the evidence, it is submitted, is a generalised intention, "to take matters up" with the deceased. That the offender certainly did conformably I find with an expressed intention and leaving where he went to come to where the deceased was living. 29 Nothing supports any notion of "prearrangement", if by that it was suggested that some agreement had been reached between the offender and deceased as to a meeting. I have no difficulty in concluding beyond reasonable doubt that the assault was premeditated. The offender went there to do it, did it and without "prearrangement" and on the initiative of the offender. It was not a matter of chance or opportunity. Of the components of premeditation and initiation I am satisfied beyond reasonable doubt. 30 Next it was submitted that I would find that it was a sustained assault of a vicious nature. It involved the application of blows to the head and body and the application of pressure to the throat, either at the time the blows were struck or very proximate thereto. It also involved, as submitted by the Crown, the offender having advantage of "youth", strength and size over an older man of slighter build, with a reduced capacity for self-defence by reasons of the injury to which I have referred. 31 As Ms McSpedden remarked, "youth over age" was a little of an over statement; I agree. I also agree that physical impairment does not necessarily equate with an otherwise state of physical fitness. However, I have seen the photographs of the offender and his presence in court. I have noted the description of the deceased and seen the photographs of him. I am satisfied beyond reasonable doubt that that component of the Crown's submission has been made out. 32 The Crown next sought to rely upon what is described as the lack of consideration for the victim's welfare by the offender who consumed alcohol at the scene, leaving the victim on the grassed verge outside the premises. I use the word "victim" advisedly. I am not satisfied beyond reasonable doubt that at the time when the offender moved Mr Ryan from the road to the grass, he knew the victim of his assault was deceased. On the other hand his attention to him was perfunctory and disdainful. Importantly, whilst I cannot on the evidence be satisfied beyond reasonable doubt that at the time of callous disregard for the welfare of the victim, the offender did know of the victim's death, I am not satisfied on the balance of probabilities that when he did know, that he cared, that is, that he was genuinely remorseful. He adopted what has been described as, the next morning, the "scuttlebutt" as to the victim having been hit by a car. He said "I did not kill no one", as his response to being informed by police of his arrest for murder. His responses to others were self-serving. For example, "Oh fuck, I feel bad because I smashed him. Don't go telling anyone I flogged him". 33 Weight was sought to be placed on the reported statement to the psychologist in exhibit one: "The client expressed his regret that his actions resulted in the death of Mr Ryan". This is in a passage which, in full is: "At these meetings Wati acknowledged that he was pleading guilty to manslaughter. Although he disputes some of the facts in the Crown case, he acknowledged that he and the deceased, Stephen Ryan had an argument over shearing shed entitlements. Around the time of the offence Wati commented that he was very stressed by events not related to the incident. He is of the view that his level of stress contributed to his state of mind at the time of the offence. The client expressed his regret at the result of the death of Mr Ryan." 34 Nothing elucidates the "events" not related to the incident referred to and the stress arising from it. This statement of regret is in my view elevated by the psychologist in that part of her report under the heading "Opinion and Conclusions": "He accepts that his actions caused the death of Mr Ryan and expressed remorse." That statement by Ms Barrier, the psychologist, is one to which, with respect, I attach no weight; it is somewhat glib. Nothing in the report, or outside of the report, reasonably can support a mere statement to that effect. I have no material that satisfies me on the probabilities that this offender was, had been, or is remorseful, in the general and true sense of the word. No discount, therefore, to use the stark phraseology of sentencing, is available. 35 In this context I return to the question of the plea. Whilst the Crown conceded that in terms of contrition a plea must be taken into account, against it is to be set off what I find I am satisfied beyond reasonable doubt to be the case, namely the reluctance of the offender to come clean with the police, the falsity of his earlier answers and the incremental fulsomeness, as the Crown put it, of his answers, as the police put to the offender further information as it came to hand. I assess the value of the plea for utilitarian purposes only at 20 per cent. No further allowance, as I have said, can be made, on my view of the material, for remorse. 36 Thus, I am satisfied beyond reasonable doubt that the elements of the offence, as acknowledged by the plea, are established. The level of objective criminality for the unlawful and dangerous act of this violent assault is grave. Whilst noting that no fracture was caused, and coming to no view to the requisite standard as to the deceased's nose being disaligned, nonetheless the violence was such as to cause the haemorrhage which is identified as one of the causes of death. 37 As best as I can, I characterise the assault within that range from the middle towards the upper limit of that kind of conduct, which in the end constitutes manslaughter for which a maximum penalty of 25 years has been enacted. Although discussed in the course of the submissions, no point can sensibly be made by seeking to compare the conduct here with that which involves, for example, the use of a weapon, a knife, baseball bat and so on, suddenly, without premeditation, whether in company or not. That is because with respect to manslaughter, the variables are without limit. I simply find that the use of fists in the circumstances places the matter at that point in the range for this kind of event which I have identified. That comparisons can be of little utility, is in my view exemplified by the one case Ms McSpedden referred me, namely R v TJP [1999] NSW CCA 408, the very name of which illustrates a point of distinction and departure, the offender in that case being under the age of adulthood. 38 The present offender was born on 16 March 1964. By reason of the convictions recorded in his antecedents, exhibit A, he cannot have the benefit that attends a first offender. These matters include three assaults in New Zealand, one in 1985 and one each in 1991 and 1992. The facts as to the last mentioned are part of exhibit A and refer to a matter arising in a domestic environment, quite unlike the present circumstances. I will return to this in a moment. 39 The offender, I accept, has been hard working all his life. He appears to have no alcohol or drug problems. He has literary deficiencies. He suffers from lower lumbar region back difficulties. Exhibit 1, the psychologist's report, is unremarkable save in one respect to which I will come. Indeed, Ms Barrier informs that objective test assessment indicated that the offender's intellectual functioning is sound and personality test assessment did not reveal any personality pathology. However, it is clear that the offender was the victim of physical and sexual abuse as a child. This he reported to the psychologist Ms Barrier. It is corroborated by the Probation report of 15 May 1992, provided to the New Zealand District Court in relation to the domestic assault charged that year, nearly, a decade before the present incident. 40 Ms Barrier had the offender's antecedents at interview. The 1985 matter (itself connected with a sexual incident) was raised by the offender in the course of interview with Ms Barrier but not the later ones in 1991 and 1992. They were not, I accept, available to the psychologist and hence were not raised by her. The Crown says the offender did not volunteer anything about them. I do believe it would be but speculation as to why that was the case. No doubt one such answer could be "She did not ask me", which the psychologist did not, because she did not know to ask. However, the matter of importance in terms of this history of having been the victim of abuse, is that I am not persuaded that any link is established in the psychological report or elsewhere between that history and the conduct now in question. 41 At page 7 of the report of Ms Barrier states this: "Whilst initially somewhat sceptical at the suggestion he seek professional counselling to address painful issues associated with his background and upbringing, at our second meeting his comments revealed he has revised this opinion. He said when sentenced he would seek counselling particularly in relation to the sexual assaults which continue to trouble him deeply. If he received a custodial sentence on this matter he expressed a wish to be sent to gaol where he can impart his knowledge of shearing to others. On his release he plans to return to the bush and work as a contract shearer. I feel that his potential for rehabilitation is good particularly if he continues to develop psychological resilience and enhancing his self esteem through the activities and counselling mentioned above."

REGINA v MARRAH

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