REGINA v Scott Tikao LEWIS

22 SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR On 15 February last Mr. Scott Tikao Lewis, ["the prisoner"], was presented in this Court for trial upon an indictment containing five counts. The first count in the indictment charged that the prisoner had murdered, on 4 February 1994 at Campbelltown in this State, one Damon Dennis, ["the victim"]. The prisoner pleaded not guilty to the charge preferred against him in the first count of the indictment; but he offered a plea of guilty of the manslaughter of the victim. The Crown accepted that plea in full discharge of the entire indictment. It becomes, therefore, unnecessary to consider the remaining contents of the indictment as originally presented. 2 The prisoner was convicted formally of the manslaughter of the victim, and was remanded thereupon in custody to Monday of last week, 22 February, for the commencement of proceedings on sentence. Those proceedings continued intermittently throughout the whole of last week. 3 The prisoner was first arrested and charged on 8 February 1995. He was then charged with the murder of the victim. In due course, and during 1996, the prisoner was tried upon indictment, and before Dowd J of this Court and a jury, for the alleged murder of the victim. The jury found the prisoner guilty as charged, and he was sentenced subsequently to a substantial term of penal servitude. Later still, the Court of Criminal Appeal quashed that conviction and sentence, and ordered the prisoner's re-trial. It was that re-trial order that brought the prisoner before this Court on 15 February last. The prisoner has been in unbroken custody since 8 February 1995. 4 During the course of the proceedings on sentence, the prisoner himself gave extensive sworn evidence. This evidence contains, among other things, the only discursive narrative put before the Court as to the facts and circumstances surrounding the death of the victim. 5 According to that version of the prisoner, he was at the material times a member of a motor cycle club known as "The Rebels". The prisoner says that he went in company with a number of other members of the club, and at or shortly after midnight on 4 February 1994, to the Mawson Park Tavern at Campbelltown. He was standing alone on one of a number of steps leading from the street into the tavern. While standing in that position, and leaning against a nearby handrail, the prisoner heard a commotion behind him. He turned around and saw the victim being pulled through the doorway of one of the tavern bars by a member of the security staff known only as "B.J". "B.J." apparently had some difficulty in handling the victim, with the result that the victim hit the door jamb and dropped onto the landing near the prisoner. The victim's body was, the prisoner thought, about half inside and half outside the relevant doorway as he lay on the ground after having been dropped by "B.J". 6 The prisoner says that he then saw another club member, known colloquially as "Redeye", come upon the scene. "B.J." and "Redeye" picked the victim up off the floor and, in effect, dragged him down the steps towards the outside street pavement. The victim was calling out loudly in grossly abusive language. As the three men passed by the place where the prisoner was standing, the prisoner took hold of the victim's hair, which was curly shoulder-length hair. The prisoner said that he did this in order to avoid the victim's head striking the steps should he be dropped on them by "B.J" and "Redeye". What in fact happened was that the prisoner, "B.J" and "Redeye", holding the victim, went down the stairs onto the footpath outside the tavern premises; turned to the right; and began to move along the pavement and towards a large planter box standing between the stairs of which I have been speaking and the driveway of a drive-in bottle shop forming part of the Mawson Park Tavern premises. The prisoner released the victim's hair and "B.J" and "Redeye" hauled the victim over to the planter box and sat him on it. "B.J" then returned to the inside of the tavern premises, leaving "Redeye" standing near the victim; and leaving the prisoner standing further away and towards the stairs giving out onto the foot-path from the interior of the tavern premises. 7 According to the prisoner, he said to "Redeye": "Don't fucking leave him there, he will start again". Thereupon, the prisoner and "Redeye" took hold of the victim, each supporting the victim under the latter's armpit; and moved around the side of the planter box and into the bottle shop driveway. They there manoeuvred the victim into such a position that he was more or less standing, slumped against the edge of the driveway wall closest to the planter box. The prisoner then moved to return to the tavern premises. As he did so, he heard "Redeye" call to him for assistance; and the prisoner upon turning back to see what was happening with "Redeye" and the victim, saw the latter two men grappling with each other. The prisoner walked over to where the two men were grappling, and "elbowed (the victim) in the back of the head". Thereafter, the prisoner tried once or twice, and unsuccessfully, to pin the victim's arms behind his back; and then elbowed him again in the back of the head, more or less at the junction of the head and the neck. The prisoner then "hit (the victim) with the left fist twice on the side of the head". This caused the victim to fall to the surface of the driveway. He was lying face down on the surface of the driveway. The prisoner thereupon "laid the boot into him a few times", probably five or six times. While these assaults had been in train, three, and perhaps four, other members of the motor cycle club had come upon the scene and joined in a group assault of the victim. The prisoner saw these additional assailants "stomping" on the victim, that is to say, stamping down on the victim with the soles of their shoes. 8 According to the prisoner, he left the scene of this group assault while the assault was still in progress; and very shortly thereafter returned to the club house of "The Rebels". 9 It is necessary to add to the foregoing version given by the prisoner a number of other facts and circumstances that are established by the evidence. 10 First, the victim was a complete stranger to the prisoner. It is not suggested that, apart from some passages of drunken and vulgar verbal abuse, the victim said anything to the prisoner, or that the victim did anything to the prisoner, that might have provoked, or otherwise explained, the prisoner's participation in the assaulting of the victim. 11 Secondly, it is clear that, in addition to the beating, kicking and "stomping" to which the prisoner's own evidence refers, some one or more of the victim's assailants stabbed the victim in the upper rear portion of each of the victim's legs. The proceedings in connection with the prisoner's sentencing have been conducted on all sides upon the basis that the prisoner did not inflict either of the two stab wounds; did not see either of the wounds actually inflicted; and saw nothing to make him aware at the time that either or both wounds had been inflicted in fact. 12 It remains the case, however, that the stab wounds were inflicted at some time and by some person or persons, during the course of the group assault of the victim. And it is clear, in my opinion, that the end effect of the stab wounds was to bring about the death of the victim. Part of Exhibit C in the present proceedings is evidence given by Dr. Bogdan Hulewicz on 1 July 1996, and during the course of the prisoner's first trial. According to Dr. Hulewicz the immediate cause of death was "multi-organ failure, this arising as a consequence of haemorrhagic shock, and the haemorrhagic shock occurring as a consequence of stab wounds to the legs". Dr. Hulewicz explained "haemorrhagic shock" as being "shock occurring as a result of blood loss". 13 Dr. Hulewicz's evidence details a large number of other injuries discovered on post-mortem examination. Any present assessment of this evidence needs to be made with some care, because the victim did not die until 17 February 1994; that is to say, until almost a fortnight after the occurrence of the assaults as I have earlier described them. Allowance needs to be made, - and Dr. Hulewicz's evidence does, indeed, make specific allowance, - for incidental bruising caused by the handling in hospital of the victim's body. All those just qualifications made, it remains, in my opinion, a reasonable inference, which I draw, that the assaults carried out upon the victim outside the Mawson Park Tavern were not trivial, but were both serious and sustained. 14 Thirdly, the prisoner's own participation in the assaults carried out on the victim was aggravated by the fact that the prisoner was, at the time of his participation, in breach of parole, and was on conditional bail, in respect of antecedent criminal offences. 15 The relevant facts in that regard are as follows: On 29 April 1988 the prisoner was convicted in the District Court at Sydney, of malicious wounding with intent to cause grievous bodily harm. The incident in question had involved, so far as is at present particularly relevant, the stabbing by the prisoner of a young man with whom he had been having an altercation and a fist-fight. The prisoner was sentenced, according to the practice prior to the coming into operation of the Sentencing Act 1989 (NSW), to penal servitude for 8 years with a non-parole period of 3 years. Both the head sentence and the non-parole period were dated from 31 March 1988. Following the coming into operation of the Sentencing Act, the prisoner's sentence was re-determined into the form of a minimum sentence of penal servitude for 1 year 11 months and 24 days to date from 31 March 1988, and an additional term of 3 years 1 month and 20 days expiring on 14 May 1993. The minimum term thus set expired on 24 March 1990 and the prisoner was released to parole on 25 March 1990. The parole order pursuant to which the prisoner was thus released, was due to expire on 14 May 1993. 16 On 14 August 1991, the prisoner was convicted in the Bankstown Local Court of having driven a motor vehicle while disqualified; and of having given a false name to the investigating police. In respect of the former matter, he was sentenced to a fixed term of imprisonment of six months. He immediately lodged an appeal to the District Court. He was granted bail until such time as the District Court appeal might be disposed of. On 20 August 1991, the prisoner's parole order was revoked. The prisoner's record with the New South Wales Police Service suggests that the District Court appeal was dismissed, in the prisoner's absence, on 8.November 1991. That same document also suggests, however, that the same appeal was dismissed on 16 February 1995. I cannot find in the evidence before this Court any clear explanation of these two, apparently inconsistent, entries in the Police Service record. 17 The prisoner's own evidence dealt with aspects of his criminal antecedents. The evidence is not entirely clear as to the prisoner's understanding as to the operation of his parole order, and as to the effect upon it of his subsequent Local Court convictions. Having watched and listened to the prisoner as he gave his evidence, I do not have any doubt that the prisoner understood the obligations that rested upon him in virtue of his parole order; that he understood that his Local Court convictions gave rise to a real risk, to say the very least, that his parole would be revoked and that he would be returned thereupon to his former custody; that he appealed to the District Court in order to put off that evil day; and that he understood that his bail pending the resolution of his District Court appeal was conditioned upon his in fact prosecuting his appeal in the District Court. I am strengthened in those conclusions by the following evidence given by the prisoner during the course of his re-examination: "Q. When you left Sydney for Adelaide after the Mawson Tavern incident, the assault on Mr. Dennis, were you aware whether or not Mr. Dennis had at that stage died? A. No, I was not. Q. Why did you go to Adelaide? A. By being at the tavern and the assault took place, I assumed the police would want to speak to me. My parole had been breached, and I would have gone to gaol. Q. Had you previously been told by a departmental officer, probation officer, at some time earlier, that your parole had been breached? A. Yes, I had. Q. Were you aware, I take it then, that you were effectively giving yourself up for some period of time. A. That's correct. Q. Following your kicking of Mr. Dennis at the Mawson Tavern, is it the fact you went to Adelaide a number of weeks later? A. Yes. Q. And at the time were you seeking to avoid arrest for breach of parole or questioning concerning that kicking of Mr. Dennis? A. Yes I was." 18 It should be added that the prisoner, having gone to Adelaide, there assumed a false identity behind which he lived and worked up until the time of his surrender to the police in Adelaide on 8 February 1995. 19 It is now appropriate to explain the conclusions to which I have come concerning the objective gravity of the offence of manslaughter to which the prisoner pleaded guilty. 20 The prisoner pleaded guilty, and has been formally convicted, of manslaughter by an unlawful and dangerous act. The relevant law for Australia is established by the High Court of Australia in Wilson v The Queen (1992) 174 CLR 313. The essential principles are stated as follows in the relevant portion of the head note of the report of the decision: "For a person to be guilty of manslaughter by an unlawful and dangerous act, the circumstances must be such that a reasonable man in the accused's position would have realised that he or she was exposing another or others to an appreciable risk of serious injury. It is not sufficient that there was a risk of some harm resulting, albeit not serious harm." 21 The prisoner's plea is to be taken as admitting every essential element of the offence in respect of which the plea has been entered. That must entail, having regard to the way in which both the Crown case and the prisoner's case have been framed in connection with the present proceedings on sentence, that it is accepted by the prisoner that he was party to a group assault of the victim at a time when he knew that some, at least, of his fellow assailants were armed with knives; and that the atmosphere and incidents of the joint assault were such that a reasonable person in his, the prisoner's, then position would have realised that to participate in such an assault in such circumstances exposed the victim to an appreciable risk of serious injury by stabbing. 22 Learned Senior Counsel for the prisoner did not contend that the prisoner's participation in the assault which led to the death of the victim could be regarded as anything other than a serious case of manslaughter by an unlawful and dangerous act. Counsel did contend strenuously, however, that the prisoner's offence could not be classified as the most serious kind of case of manslaughter by unlawful and dangerous act. I accept that submission; but I think, nevertheless, that the present offence can only be regarded, when looked at sensibly as to its objective criminality, as a most serious criminal offence. In that regard, I will make but two particular points. 23 First, a view of the facts most favourable to the prisoner shows an assault upon a single victim by a group of four or five assailants. Those odds are, to put the point bluntly, coward's odds. 24 Secondly, a view of the facts most favourable to the prisoner suggests that the victim had been making something of a nuisance of himself both inside and outside the tavern premises. The evidence suggests that the victim was well under the influence of alcohol and was abusive and obstreperous. None of that behaviour, it must be said plainly and firmly, made the victim some kind of outlaw who could be set upon with impunity by people like the prisoner and the prisoner's fellow club members; and ill-treated, or worse, in the supposed interest of teaching him a supposedly necessary lesson. The essential point cannot be put better, in my respectful opinion, than was done by Lord Templeman in Regina v Brown and ors. (1994) 1 AC 212 at 237: "Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." 25 It is necessary, now, to turn to matters personal and particular to the prisoner. 26 The prisoner was born on 28 September 1968. He was aged, thus, about 25-1/2 years at the time of the attack that led ultimately to the death of the victim. He is aged now about 30-1/2 years. 27 The prisoner was married on 16 February 1996. His wife gave evidence in his case on sentence. I found her a forthright and impressive witness and I accept her evidence. I accept that Mrs. Lewis has given her husband as much support as she can during his current imprisonment; and I accept that, after his eventual release back into the general community, she will continue to support him in a sensible and practical way such as might reasonably be expected to enhance the prisoner's prospects of eventual rehabilitation. 28 I heard evidence, also, from the prisoner's brother-in-law; and that evidence, also, I accept. The practical effect of that evidence can be summarised, I think, by saying that the prisoner is fortunate enough to have available to him upon his eventual release, positive family support that should be effective to assist him to re-establish himself in the community in some form of lawful and gainful employment. 29 I did not hear evidence from other members of the prisoner's family; but I noted their presence in Court throughout the proceedings; and I am satisfied that, his wife and brother-in-law apart, the prisoner has available to him a body of family support which strengthens his prospects of eventual rehabilitation. 30 In addition to the foregoing matters, I am satisfied that there are other indicators of the prisoner's good prospects of future rehabilitation. The prisoner presents as an intelligent and reasonably articulate man who has significant creative, manual skills. He has not wasted his time in prison, but has used it to develop, as best he can, those skills. He has been trusted, in that regard, to have at his disposal a range of tools, some of which are such as would certainly not have been made available to him had he been regarded by the prison authorities as still liable to outbursts of aggressive violence. In terms of his own behaviour while in custody, the prisoner does not appear to have been a management problem. 31 There is one qualification to what I see, otherwise, as being the prisoner's good prospects of future rehabilitation. It concerns the risk of the prisoner's resuming his motor cycle club activities and contacts. The prisoner himself asserts that he has severed all ties with "The Rebels"; and that he is resolved to turn his back on that kind of gang culture. His wife, certainly, is determined to ensure as best she can that the prisoner does remain hereafter free of such entanglements. I think, however, that it would be imprudent not to keep sensibly in mind that the prisoner has had a long association in the past with motor cycle clubs; and that he has been exposed, for much of his young life, to the influences, frequently anti-social and not infrequently unlawful, for which motor cycle clubs are notorious. There is some slight evidence in the present proceedings to the effect that the prisoner has received visits from former motor cycle club associates. I accept, of course, that the mere fact of those visits does not establish that they occurred on the initiative of the prisoner rather than that of the visitors; or that the mere fact of the visits discredits what the prisoner himself said in his evidence as to his future intentions with regard to ongoing motor cycle club contacts. My present point is, simply, that the prisoner is not yet completely at arms-length from his former unwholesome associations; and it would be wise, I think, for the relevant custodial authorities to keep an eye on this aspect of the prisoner's future management. I accept that the Court itself cannot now do very much about that matter, except to draw attention to it and to suggest that it is something that the Serious Offenders Review Council might wish to consider when the prisoner's minimum term has expired. 32 The prisoner is entitled, in accordance with well established principles which need no extensive discussion, to some appropriate consideration on account of his plea of guilty. The plea saved a hearing of some six to eight weeks' likely duration. I have taken that into account. I have taken account of the plea, also, in connection with the matter of the prisoner's remorse for his offence and its consequences. Remorse is, of course, almost always something that is extremely difficult to judge rationally and confidently. I have given the prisoner some credit for remorse; but it is a sceptical, and therefore modest, credit. 33 There remains one matter of particular importance in the case of the present prisoner. It is the matter of the conditions under which he will serve any sentence now passed upon him. 34 There is clear evidence, unchallenged and uncontradicted, that the prisoner has been, while in his present custody, savagely assaulted by other inmates and on two separate occasions. One such assault involved an attack by a group of assailants which resulted in serious and permanent injuries being inflicted upon the prisoner's right eye with the bottom of a can with which the eye was struck so forcefully as to leave an indentation following the shape of a large portion of the base of the can. The second assault, also, was a group assault; and it involved the deliberate and repeated stabbing of the prisoner in a way which left him very seriously wounded, and might very well have caused his death. The prisoner continues, and will continue, to suffer adverse physical and emotional consequences of these incidents. 35 The background to these assaults is established by the evidence in terms that are of great concern to this Court. Put shortly, I am satisfied that the prisoner's wife has given, in the recent past, evidence that has been instrumental in bringing to justice persons guilty of a homicide. The persons concerned were young offenders and have a particular racial and cultural identity. I am satisfied that prison inmates of the same racial and cultural identity as those young offenders are responsible for the carrying out of the assaults of which I have earlier spoken. I am satisfied that it will be, if not quite literally impossible, at least extremely difficult, to imprison the present prisoner in such a way as will ensure that he does not continue to be at some risk of further attacks motivated by racial and cultural revenge. 36 This is not by any means an easy problem for this Court. It is no part of the proper function of the Court to interfere, or to attempt to interfere, with the proper and lawful maintenance of good order and discipline in the prisons of this State. Responsibility for those matters of prison administration and management and security rests with the Corrective Services establishment. By the same token, the Court cannot, in my opinion, simply wash its hands of any concern about intra-mural assaults, of whatsoever kind, committed by prison inmates upon one of their number. It is, I think, worth recalling some remarks of Street CJ, speaking for the Court of Criminal Appeal, in Regina v George and Price (1981) 4 A Crim R 12. The Chief Justice gave express approval to some observations that had been made on a previous occasion, and by the Court of Criminal Appeal, in an unreported decision: Regina v Glasby and Hines: unreported, Court of Criminal Appeal, 13 December 1976. In that earlier decision, the Court of Criminal Appeal said: "It is necessary to make clear to all inmates of penal institutions that the perpetration of violence on fellow inmates will be firmly put down. This is but one aspect of the whole policy of the law which is aimed at improving the conditions in prisons and which is not to be deflected by taking a lenient approach in circumstances where there has been, as here, so gross an invasion of the personal dignity and rights of another prisoner." 37 It is, of course, the case that in each of the two decisions to which I have referred, the Court of Criminal Appeal was dealing with prison inmates who had been identified, prosecuted to conviction, and sentenced in respect of offences committed against a fellow inmate. The assaults committed upon the present prisoner have not resulted in the identification and proper punishment of the assailants. That does not weaken, however, the relevance, or the authority, of the observations made by the Court of Criminal Appeal; nor does it lessen, in my view, the responsibility of this Court to bring to the attention of the relevant correctional authorities, the past experiences of the prisoner, as I have described them, and the imperative need to take urgent and continuing care to ensure that every practicable precaution is taken to prevent a recurrence of these deplorable incidents. 38 All that said, it must at once be added that this Court cannot treat the prisoner's experiences in custody, and his reasonable future apprehensions in that regard, as simply cancelling out any and every other relevant consideration, so as to permit of his being discharged almost immediately from any continuing imprisonment. The conditions under which the prisoner has served, and may well have to serve, his imprisonment must be taken properly into account; but that accounting must always take place in the proper context, which is that the prisoner admits to having been involved in a criminal offence which resulted in the death of another human being. 39 Before coming to an overall assessment of the relevant objective and subjective matters as I have discussed them, it is necessary to take account also of two victim-impact statements that were tendered as part of the Crown case. The Court is required to receive such statements, and to acknowledge that it has so received them. The Court may comment upon the statements if it sees fit to do so. The Court is not empowered to take the statements into account when setting the particular sentence, unless the Court is persuaded that it would be appropriate to do so. As to the proposition last stated, I agree with what was said by Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76; see in particular at 84-87. 40 I would like, however, to assure the family members who provided the statements: that I have read them carefully; that I acknowledge the reality to them of the grief, pain and sense of loss of which the statements speak; that I respect the strength of the feelings which the statements express; and that I hope very much that it will have given the family members concerned, and will continue to give them, at least a measure of comfort and satisfaction to have had the opportunity of placing before the Court in their own words all that they have wished to say to the Court in connection with their sad loss. 41 It is now necessary to draw together all of the factors, objective and subjective, that I have previously discussed. I was referred by both counsel to a large number of cases, both reported and unreported, which were suggested as appropriate for consideration in connection with the present prisoner's particular case. I was referred, also, to a deal of material in the form of computer-generated diagrammatic graphs of what were submitted to be relevant sentencing patterns. 42 It is trite that any particular case must be dealt with strictly in accordance with the demonstrated facts and circumstances relevant to that case; and that it will be, at the best, a most unusual circumstance where an earlier decision will be found that matches exactly the demonstrated facts and circumstances of an instant case. There are, however, two decisions among those that were cited to me which I have found of particular assistance in my present task. They are a decision of the Court of Criminal Appeal delivered on 13 July 1993 in the matter of Regina v Brown; and a decision of Graham Barr J delivered on 3 September 1997 in the matter of Regina v Newman. I do not suggest that either of those cases is an identical fit with the present matter; but, as I have said, I think that there are sufficient similarities to make those two earlier decisions of some practical present value. 43 In each of Brown and Newman, an effective head sentence of 9 years was either imposed at first instance or upheld on appeal. I have come to the conclusion that such would be an appropriate aggregate sentence in the present case. On any view of the relevant facts and circumstances, the present case is, in my opinion, a very serious manslaughter. 44 It is then necessary to apportion that aggregate sentence between a minimum term actually to be served; and an additional term for which the prisoner will be eligible to be considered for parole. It is not necessary, strictly speaking, to come to the question of "special circumstances" as envisaged by section 5 of the Sentencing Act, unless a contemplated apportionment as between minimum and additional terms would yield an additional term greater than one-third of the minimum term. In the case of the present prisoner, I am satisfied that there do exist special circumstances of such a character as would warrant an apportionment of the aggregate sentence, such as would produce an additional term greater than one-third of the minimum term. 45 Almost any of the subjective matters to which I have earlier referred would be capable of constituting such special circumstances; but there are, in my opinion, two particular matters proper to be taken into account as special circumstances. 46 The first of them is the need to avoid such a sentence as would be likely, due regard being had to what goes on in the real world in this respect, to imperil the prisoner's marriage to his present wife. As I have earlier said, I thought that Mrs. Lewis was a forthright and impressive witness. I see it as being very important to the ultimate rehabilitation of the prisoner that he have available to him the encouragement and support of his wife. 47 The second matter concerns the question, which I have earlier discussed at some length, of the proper protection of the prisoner from further revenge attacks by fellow inmates. I think that it is important to structure, as best this can be done in a practical way, such a sentence as will permit of the prisoner's being re-classified urgently, and of his transfer to a prison where there is the least risk of the prisoner's health and safety being wrongfully compromised. 48 I have come to the conclusion that it would be a just apportionment of the proposed aggregate sentence to divide it between a minimum term of 6 years and an additional term of 3 years. The minimum term will be back-dated so as to give the prisoner proper credit for the period of 4 years or thereabouts already served in full-time custody. The practical result of such an approach ought to be that the two particular objectives of which I have latterly spoken will be possible of practical achievement. 49 Scott Tikao Lewis, for the crime of manslaughter of which you have been convicted, you are sentenced to penal servitude for 9 years. The sentence is apportioned between a minimum term of 6 years and an additional term of 3 years. The minimum term will commence on 8 February 1995 and will expire on 7 February 2001. You will become eligible for parole on 8 February 2001, on and from which date the additional term will run. 50 The Court recommends that urgent consideration be given to the reclassification of the prisoner and to the taking of all other such steps as will maximise his physical protection, and his necessary medical treatment, while he continues in custody. 51 The exhibits may be returned.

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