Regina -v- Naudin [2000] NSWSC 18

Supreme Court of NSW|2000-02-04|Before: Dowd J

CITATION : Regina -v- Naudin [2000] NSWSC 18 FILE NUMBER(S) : SC 70098/97 HEARING DATE(S) : 16/12/99 JUDGMENT DATE : 4 February 2000

PARTIES : Regina -v- Eric Naudin JUDGMENT OF : Dowd J at 1

COUNSEL : Crown: Mrs Robinson QC Defence: Mr Craigie SOLICITORS : Crown: Solicitor for Public Prosecutions Defence: Legal Aid Commission CATCHWORDS : manslaughter - intoxication LEGISLATION CITED : Sentencing Act 1989 Victims Rights Act 1996 Regina -v- Previtera (1997) 94 A Crim R 67 Regina -v- Green, unreported NSW CCA 18 May 1999 Regina -v- Troja, unreported NSW CCA 16 July 1991 CASES CITED : Regina -v- Sofokleous, unreported NSW CCA 13 December 1993 Regina -v- SNP, unreported NSW CCA 15 October 1999 Regina -v- Gould, unreported NSW CCA 2 July 1999 Regina -v- Veen (No.2) (1998) 164 CLR 465 Scognamiglao 56 A Crim R 81 DECISION : Convicted of manslaughter; Sentence of six years, three year minimum term and additional term of three years

IN THE SUPREME COURT OF NEW SOUTH WALES (CRIMINAL JURISDICTION)

1 The prisoner, Eric Naudin was indicted on 16 December 1999 that on 27 July 1997 at Concord West in this State he did murder Kenneth John Gill. The prisoner pleaded not guilty to murder but guilty to manslaughter by an unlawful and dangerous act. This plea of manslaughter was accepted in full discharge of the indictment. 2 The facts of the offence were that on Saturday 26 July 1997 the prisoner was with the deceased in the boarding house where they both boarders in Concord West. The prisoner and the deceased had been friends for the three previous weeks. There had been no violence or significant animosity between them. 3 On 26 July from about 9.00 am both of them consumed a number of glasses of wine at those premises and then walked some distance to Strathfield to purchase two large wine casks. On the return trip they stopped at a garage sale and purchased two decks of miniature playing cards. 4 On returning to the prisoner's premises both in the yard at the rear and later in the prisoner's unit more alcohol was consumed being approximately two litres of wine each. About 1.00 in the morning of Sunday 27 July 1997 an argument broke out between the two men in relation to a game they were playing with cards which involved sorting the cards into colours and suits. 5 In a record of interview admitted in evidence before me on sentence the prisoner said that there had been an argument between the deceased and himself, although during the friendship which has lasted the previous three weeks they had not had any problems or arguments. 6 The prisoner told police that the deceased took one of his chef's knives and held it close to the prisoner's face. The knife which was extremely sharp was kept on an open shelf. The prisoner a chef was conscious of the danger of knives. The prisoner repeated the request. The prisoner told the police that he told the deceased put the knife down saying that they were not toys but tools. Both of them were fairly drunk at that stage. The deceased called the prisoner an "arrogant bastard" on several occasions. A neighbour in the guest house heard the prisoner call out "Get out, get out. Get out of my room. " He heard the deceased yell "not until you answer my question." 7 The knife was a Wiltshire brand knife with one sharp cutting edge. The deceased had not lunged or attacked the prisoner with the knife the deceased just held it in front of the prisoner's face calling him an "arrogant bastard." The prisoner said that the deceased was not waving the knife in his face but held it close to his cheek and the knife actually tipped his cheek. 8 As the deceased was holding the knife touching the point with his thumb he continued to abuse the prisoner. The prisoner said that he knew about knives and knew how to take knives away from people and that he believed that the deceased was going to put it in his face and slice his face or cut his face. The prisoner said that he grabbed the deceased's hands and twisted the knife back towards the deceased. The prisoner also said he took the knife from the deceased and "put it into him."

9 Shortly prior to the incident concerning the knife there had been a scuffle between the parties when the prisoner asked the deceased to leave and the deceased had shoved the prisoner in the throat. He returned the shove in the same way. There was then some pushing and shoving. The prisoner received a bump to his head which he had not felt because of the effect of liquor and did not notice until he went to the police station where he was interviewed just a short time after the stabbing incident. 10 The neighbour heard a scuffle which sounded like bottles being knocked over and thumping noises from within the room. The neighbour went out and knocked on the prisoner's door which was opened by the deceased. The neighbour saw the prisoner with blood all over his face. The neighbour returned to his room and about half a minute after locking the door the deceased knocked on the neighbour's door. The neighbour saw the deceased slumped over with both hands holding the bottom of his stomach saying "Call an ambulance, I've been stabbed." There was blood on the deceased's hands and a pool of blood on the ground directly below where he was standing.

11 When the prisoner was asked by the police "Why did you push it towards Ken's body as you indicated earlier ?" The prisoner responded by saying " I imagine I was probably falling that way." The room was a very small space. The prisoner and the neighbour both said that the prisoner attended to the deceased and the prisoner put blankets around him when he fell to the ground. 12 The prisoner asked for someone to call the ambulance. The ambulance officers who arrived found the deceased lying on the ground bleeding. They attended to the wound and treated him and rushed him to Westmead Hospital where he was pronounced dead at 2.20 am on the morning of 27 July 1997.

13 When the police first arrived the prisoner had said to them "It was me, I stabbed him." When asked about the knife he said to them "I did it, I am sorry is he all right ?" The prisoner later said in a record of interview "I mean he didn't do it on his own" and further said "well he was holding the knife but I'm the one that pushed the actual blade, eh." 14 The prisoner was told during the course of the electronic record of interview that the deceased had passed away. The prisoner was upset and extremely sorry and remorseful for what had happened. He said he did not intend to kill the deceased. 15 At the time of the offence the prisoner who was a chef by qualification was working from time to time as a casual chef for a placement agency. He is single with no children, he is aged 39 years. The prisoner who was born in France came to Australia during his late childhood and has not had a lot of contact with his family who live interstate both since and before his arrest. The prisoner has not been in prison before and has only a minor criminal record which for the purposes of sentence I disregard. 16 The prisoner admitted to alcohol abuse and daily drinking to the point of complete intoxication. He has had several admissions to alcohol de-toxification centers. 17 This trial was initially listed before me in on 2 December 1998. On that day the Crown raised the issue of the prisoner fitness to plead as a result of which I ordered that the matter be referred to the Attorney-General for a determination as to the prisoner's fitness to plead. 18 At a hearing on 16 December 1999 at which Mr Craigie, the prisoner's present counsel appeared I was asked to examine the prisoner's fitness to plead, he having been found unfit to plead consequent upon the order I had made on 2 December 1998. I held that he was in fact fit to plead. 19 Immediately upon that determination the Crown tendered the indictment resulting in the acceptance of the manslaughter plea to which I have referred to. It was indicated by Mr Craigie on behalf of the prisoner that the plea was by way of compromise. 20 The evidence of death exhibited before me is that the deceased died as a result from massive bleeding from a stab wound to his abdomen causing a rapid decrease in his heart rate which treatment at Westmead Hospital was unable to stabilise and this led to his demise at 2.20 am on 27 July 1997 . 21 Evidence was admitted on the fitness to plead hearing was tendered and admitted in the sentencing proceedings as to the prisoner's mental fitness. Dr Olav Nielssen's evidence was that the prisoner was examined by him in his capacity as a visiting psychiatrist at the Metropolitan Transit Medical Centre at Long Bay. The prisoner had refused to attend but reports from nurses at that Centre noted the prisoner's behaviour and demeanour and Dr Nielssen deduced that the prisoner had an untreated psychotic illness. 22 The prisoner was admitted and observed in the acute psychiatric ward of the prison for several weeks before treatment. The prisoner was hostile, disorganised in his thinking and suspicious in the manner of someone suffering from an acute psychotic illness. The prisoner was treated with anti-psychotic mediation initially by injection. This was continued by oral ingestion. 23 As a result of the treatment the prisoner became warmer in attitude and less hostile and his thinking more logical although he remained suspicious and unwilling to talk about his situation or divulge personal information. The prisoner denied his psychotic illness. The prisoner who is a scientologist by faith is opposed to the medical treatment that he has been given. 24 The prisoner's attitude towards Dr. Nielssen was irritable and he was easily offended. He was reluctant to provide informational about his legal problems. His speech was disorganised, typically in the manner of a person with a schizophrenic disorder. The prisoner is of high average intelligence although his social judgment was affected by persecutory beliefs. Although Dr. Nielssen had found the prisoner fit to plead, the prisoner's manner and thought forms are consistent with acute mental illness from which Dr. Nielssen found the prisoner suffered. 25 Another forensic psychiatrist, Dr Bruce Westmore gave evidence and his report of 23 November 1999 was admitted before me on the sentencing hearing. Dr. Westmore gave evidence about the prisoner wishing to cease his medication and opined that there was an increased chance of him becoming psychotic and unfit for the trial. The prisoner was noted to be suspicious in the hospital whilst under medication. The prisoner was able to concentrate on reading, but he does basic industry work. 26 Dr. Westmore's view after examination of the prisoner's history was that although he was fit for trial, his condition suggested that he suffered from a chronic paranoid psychosis in the past and that when he was admitted to hospital he displayed more acute symptoms of mental illness particularly formal thought disorder but that he responded to treatment. Dr. Westmore's view was that the prisoner remained without insight as to the nature and extent of his mental illness and the need to remain on medication. 27 Dr. Westmore recommended that the prisoner remain on medication but that cessation of medication was likely to produce a gradual but inevitable return to mental illness. His view is that the prisoner needs a protracted period of treatment and that there was a need to have a gradual reduction of the medication to see if he could remain symptom free. Unfortunately the nature of the disorder is such that there is a high probability that the illness will return. However provided the medication is administered in a supervised environment then their should be reduced risks of a recurrence under such a treatment plan. 28 On an examination of the evidence before me, which I accept I find beyond reasonable doubt that the death of the deceased was caused by the act of the prisoner, namely stabbing of the deceased in the abdomen causing massive bleeding which ultimately led to his death. I similarly find that the act of the accused was unlawful and that in the nature of the weapon, the act of the prisoner was dangerous and his act carried with it an appreciable risk of serious injury. I find beyond a reasonable doubt that the elements of manslaughter are made out also taking into account the admission made by the prisoner before this court. 29 I have been furnished with a Victims Impact Statement on behalf of the family of the deceased under the Victims Rights Act 1996. The Court is acutely conscious of the distress that the death of the deceased must have caused and will continue to cause. However, in accordance with the decision of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 67 at 84 and 85, I am unable to consider the Victims Impact Statement in determining punishment for the offence. It is regretted that the legislature has created an impression that the Court can take this into account in these circumstances.

30 Manslaughter carries a maximum penalty of twenty five years penal servitude but it is an offence where sentences imposed vary more than any other serious crime under the law. The Court has been assisted by having drawn to its attention various authorities to which I will later refer but it should be said that although assistance can be drawn from the consideration of similar cases these do not provide an inflexible range of sentence, see Regina v Green, unreported NSW CCCA 18 May 1999. 31 However what unlawful form homicide takes it has always been recognised as a most serious crime. 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 the expectations of the system and the community is entitled to have the conduct denounced by a sentence which appropriate in the circumstances. 32 However, in R -v- Troja (unreported NSW CCA 16 July 1991), it was held that each offence of manslaughter trends to be idiosyncratic and has its own factors which must be taken into consideration in each case when sentencing. 33 In this process of sentencing I have taken into account the fact that the prisoner was subject to verbal abuse and hostile conduct shortly prior to the stabbing. There had been physical aggression shown towards the deceased. There was no defence led of provocation but it is appropriate however for this provocative conduct to be taken into account in mitigation and as an extenuating circumstance. The evidence of the neighbour showing that there was already blood on the face of the prisoner when he saw the two men together before the neighbour returned to his unit is to be taken into account. In the various cases referred to me I have also taken into account Regina -v- Sofokleous (unreported NSWCCA 13 December 1993) where there was intoxication. In that case a total sentence of four years with a minimum term of three years was found to be too light. 34 Alcohol was obviously a very big factor in the circumstances surrounding the stabbing of the deceased. Both of them very obviously were extremely affected by alcohol and although in the record of interview some few hours later the prisoner appeared to be fairly coherent it is patently obvious that his judgment was affected and responses were affected by that alcohol consumption. 35 In a similar case to the present proceedings the NSW Court of Criminal Appeal in Regina -v- SMP (unreported NSWCCA 15 October 1999) considered the sentence of seven years with a minimum of four years excessive, given the fact that the prisoner had a mental illness causing him to act impulsively, a drug problem and that he pleaded guilty to manslaughter by an unlawful and dangerous act. He had no criminal antecedents but prospects of rehabilitation. That Court reduced the minimum term to two years and nine months and the additional term to two years and nine months. 36 In proceeding to sentence I take into account that at every stage the prisoner made frank and open admissions. He endeavoured to assist the deceased, he was clearly upset when he found out that the deceased had died and although in his record of interview he did describe the hostile actions of the deceased towards him, he has not attempted to put up a defence of self defence knowing that in such matters a jury may be sympathetic in these particular circumstances towards a person such as the prisoner. The prisoner pleaded guilty as soon as he was arraigned after he was found fit to plead and thus has at all stages acknowledged his guilt and I take this into account in the sentence that I propose to impose. 37 I now turn to the health problems of the prisoner. Significant health problems may be taken into account in sentencing, see Regina -v- Gould (unreported NSWCCA 2 July 1999) and in that respect I must take into consideration the hardship on the prisoner. The period involving the fitness to plead hearing and the period in the various psychiatric facilities and the obligation to take medicine contrary to religious his beliefs constitute a severe hardship factor. Although there is evidence of mental health disorder to which I have made reference there is in fact no evidence as to his mental state at the time of the offence. 38 I have also taken into account the level of intoxication of the prisoner. The offence here clearly was not premeditated and happened fairly spontaneously. The conduct of the deceased, although not constituting provocation in law, was obviously conduct which must be taken into account in this sentencing. 39 The conduct of the prisoner generally because of the effect of alcohol and his mental state obliges the Court nonetheless to consider the objective seriousness of the taking of a human life and thus that alcohol and mental state does reduce the need for general deterrence because of the peculiar circumstances of the case. 40 The evidence before me shows that at some point in time there is a likelihood that the prisoner will go off or be weaned off his medication and that there is a likelihood of further offence however this danger to society cannot lead to a heavier sentence than is appropriate if he had not suffered from a mental abnormality: see Regina v Veen No. 2 (1988) 164 CLR 465; Regina -v- Scognamiglao 56 A Crim R 81. 41 The prisoner is a chef with a knowledge of knives and on his own evidence knows the danger of knives. Although he was affected by alcohol he was quite aware within a very short space of time after the stabbing of the nature of his act. The weapon was one of his tools of trade and it has resulted in the taking of a human life. 42 I take into account the remorse and plea of guilty at the earliest opportunity. I take into account the period of time in custody. The prisoner has been in custody since 27 July 1997. The act, as I have said, was not premeditated but nevertheless was an unlawful and dangerous act carrying with it an appreciable risk of serious injury. 43 Taking into account the factors I have set out above I consider that a proper sentence in the circumstances is a total period of six years but I also consider that there are special circumstances in terms of s.5(2) of the Sentencing Act 1989 and the prisoner should serve a minimum term of three years from 27 July 1997 and an additional term of three years. 44 The special circumstances under the Sentencing Act 1989 are that he will require a long period of medication and supervision before he is able to return to fully adjust to his community and that additional term of three years will allow close supervision of his medication to occur. 45 Eric Naudin, for the crime of manslaughter you are convicted. You are sentenced to a period of six years with a minimum term of three years to commence on 27 July 1997 which period will conclude on 26 July 2000. I sentence you to an additional term of three years to commence on 27 July 2000 and to conclude on 26 July 2003.

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