REGINA v. VAN OOSTERUM [2004] NSWSC 532

1 HIS HONOUR: The offender, Edward Van Oosterum, is now aged 52. He was born 6 May 1952. He was arrested at Lue near Mudgee on 11 February 2003 in respect of the murder of Ronald David Archer, then aged 47. 2 He was committed for trial for murder and arraigned in this court on 6 February 2004. On that day he pleaded not guilty to the charge of murder but guilty to the alternative charge embraced in every charge of murder, the crime of manslaughter. The matter was stood over to allow the Crown to consider its position in relation to that plea. 3 On 5 March 2004, the Crown accepted the plea of guilty to manslaughter in full discharge of the indictment that it had presented and upon which the accused had been arraigned. The matter went over to 16 April initially for sentence. It then came before me and subsequently has been stood over to enable the calling of evidence and the presentation of written submissions of a detailed kind by counsel appearing for the Crown and for the offender. 4 The offender has been refused bail since going into custody on 11 February 2003. His sentence will date from that day. 5 The written submissions with which I have been supplied by counsel and in particular those provided to me on behalf of the offender by Mr. Wilson, Public Defender, are extremely detailed and represent, obviously, the product of exhaustive work and research. The submissions provided to me by the Crown embrace all of that material provided to them by Mr. Wilson and also represent the distillation of principle the Crown says I should apply arising from years of experience and diligent work. 6 I express my gratitude to both counsel for their assistance which enables me to have regard to those matters in the difficult exercise of sentencing for manslaughter in a case in which such tragedy has been occasioned within a small community and to the families of those involved. 7 I take into account the various matters to which I have been referred by counsel in their oral submissions today also, that argument is recorded and will be held on the transcript available, if necessary, in the matter. 8 It is the Crown's submission that the offender is liable for the manslaughter of the deceased on the basis that he had, even if originally placing a loaded shotgun with the safety catch off in his vehicle for the purpose of possible self destruction, kept that weapon there in that condition expecting, realising or suspecting that he might have a confrontation with the man whom he believed was having a sexual relationship with his wife such that he could use that weapon in that condition for some purpose of forcing that man to yield in some way to his demands whether it might simply have been to listen to his views about how the family was being broken up or to reason with or intimidate that man into breaking off that relationship. 9 The offender gave evidence in that regard. I did not find his evidence particularly satisfactory as far as that was concerned; that not because I did not think that he was trying to tell the truth as best he could but because I accept what has been put forward in the defence case for him, from the psychologist (whose report was Exhibit 1) and the psychiatrist (whose report was Exhibit 2), that certainly at about that time in his life and most particularly at the time at which he confronted the deceased with the shotgun he was suffering from a considerable degree of emotional confusion and disorder compounded with depression not only at the failure of his marriage but also at the fact of the relationship becoming known and, indeed, displayed in his work place. 10 The plea of guilty to manslaughter was accepted by the Crown on the basis that that crime does not include any element of intention to kill, to cause grievous bodily harm or that particular mental state referred to in s.18 as reckless indifference to human life which involves the adverting by the offender to the probability of causing the death of the deceased and going ahead anyway. 11 In practical terms in this case the Crown do not assert that when the offender presented the shotgun in that condition to the deceased in the street on the occasion which the deceased met his death he adverted to the prospect of killing or even seriously injuring the deceased. 12 My own review of the material so far as my view of this topic is relevant is that that concession by the Crown was an entirely sensible and practical one, particularly having regard to the evidence before me concerning the offender's disordered thinking and lack of judgment. 13 I accept, having regard to the whole of the evidence, that at about the time of the presentation of the shotgun to the deceased the offender was shouting at the deceased, indeed, he seems to have had the object of seeking that the deceased "hear him" should he come across the deceased. Both the Crown and the defence submit that I should find that there was then a struggle between the two men over the gun and that the gun discharged during the course of that struggle, that discharge not being occasioned by an intentional act on the part of the offender designed to cause death or injury to the deceased. 14 On my review of the whole of the evidence I accept that submission. I accept, therefore, that the gravamen of the offence is as submitted by the Crown; that the offender in having available the weapon in that condition with the intent to use it for the purpose of making the deceased hear him or yield to his wishes and in presenting the weapon to the deceased in the public street the way in which he did caused the death of the deceased. That is in my view a serious, indeed, grave crime and one that cannot properly be described, at least when referring to its objective features, as within the lower continuum of crimes of manslaughter, as has been submitted by the defence. 15 I do not accept that there was a loss of self control, as was submitted by the defence. I do accept that arising from circumstances which could not be said to have been the fault of the offender there was a progressive loss of judgment produced particularly by a spiral of emotional confusion coupled with the depression. I do not consider that that line of authority dealing with those who suffer from psychoses or severely disabling mental conditions or handicaps is applicable to reduce to a minimum the gravity of the offender's conduct or the applicability of general deterrence. 16 I do, however, consider that when one comes to have regard to what weight should be given to general deterrence in this exercise I should have regard to the fact that the offender was plainly emotionally distraught and lacking in judgment at the time of the commission of the offence but nonetheless, as the Crown submits, his behaviour was fraught with danger and was so culpable that the principle of general deterrence must play a substantial part in the sentence. 17 I accept the Crown's submission that this offence requires a substantial custodial sentence. What is substantial in this context, however, is to a very great extent defined for me by the application of, in particular, s.21A of the Crimes (Sentencing Procedure) Act 1999 and the legislation which requires me to give weight to various of the aggravating and mitigating features there defined. I will return to the application of s.21A in a moment. 18 It is plain that the offender after the crime was contrite and co-operative. I have already set out the circumstances of his plea. Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires that I must take into account the fact that the offender has pleaded guilty and the timing of that plea and may accordingly impose a lesser penalty than would otherwise have been imposed. 19 It was submitted the plea was not at the earliest possible occasion. That is so. It did not pre-date committal. On the other hand, and particularly for the crime here charged, it was of the highest utilitarian value in that no step that was taken would not have been taken should there have been an intimation earlier of the proffered plea to manslaughter. It is consistent with the principles concerning the interpretation of s.22 expressed by the Court of Criminal Appeal in Regina v. Oinonen (1999) NSWCCA 310 that the offender should receive full credit for the early plea and its utilitarian value as is referred to by the Court of Criminal Appeal in Regina v. Thomson & Houlton (2000) 49 NSWLR 383. That figure is expressed as a range in that case as between 10% and 25%. 20 Section 23 provides for a power in the court in exercising its discretion on sentence to reduce the penalties for assistance by reason of co-operation with the authorities. 21 Section 22A provides for a power to reduce penalties for pre-trial disclosure. 22 In this case the plea, the disclosure and the co-operation are all other facets of the same phenomenon. Giving regard to the utilitarian value of the plea and to the expression of contrition he made including linking with that the co-operation, disclosure and assistance to the prosecution it is appropriate that the offender have the value expressed as a discount of 25% cent to the sentence that would otherwise have been imposed and I so hold. In oral submissions this morning I do not understand either counsel to have demurred at the prospect that I would so hold. 23 The relationship between the deceased and the offender's wife occurred not only in social circumstances but also at their place of work. It is not necessary to set out the detail of that relationship, it is sufficient to say that in conversations with her husband the offender's wife gave him a basis to believe that it was a relationship of sexual intimacy and that revelation to him appeared to crush him. All that has come from him including in statements to the psychologist, and to the psychiatrist and in a letter he wrote clearly establishes the dramatic effect upon his emotions and judgment of his beliefs as to the nature of that relationship. 24 That is not to say that I hold that such a relationship, at least from the point of view of the deceased, did in fact occur. This is not the crime of manslaughter arising by reason of the reduction of murder to manslaughter by reason of provocation, nor do I find that the conduct of the deceased was provocative in the sense of being conduct which might be said to have been at fault and which somehow caused the offender to develop the emotional reaction which occasioned his doing the acts which resulted in the death of the deceased. No blame should attach to the deceased in any way that this unfortunate situation reached the point that it did. 25 The offender, however, was certainly depressed and distressed to a very great extent. That appears to be not only the views of the psychologist and psychiatrist but also that of the offender's spouse. 26 In the period immediately prior to 11 February his relationship with his spouse deteriorated considerably. He had threatened suicide on 3 February, whether genuinely or not is not at all clear, he seemed to be seeking that she return home to the relationship. He had been on medication from 6 January and had had time off work. She had spoken to him on Sunday 9 February and again on 10 February in which she made it clear that she rejected the idea of any further life with him and any deep emotional attachment to him. In his conversation with her on Tuesday 11 February he seemed to evince, as best he could, a rational attitude to their relationship but it is apparent that underlying that rational attitude was an irrationality in which he hoped to procure her to return to him. 27 He had previously been a man who was conservative and careful in his treatment of guns. It is entirely inconsistent with that mode of conduct that he should have been keeping in his vehicle, safety catch off, a loaded shotgun. The evidence concerning his relationship with that gun has caused me great concern. As I have said, I do not accept entirely what he said concerning how the incident resulting in the death of the deceased occurred, nor do I accept the accounts given as to the keeping of the gun in the vehicle in that condition unreservedly but the crime with which he is charged does not involve any premeditation and does not involve any intent to kill or cause serious harm or, indeed, even adverting to serious harm. It is not open to me to conclude that he had such a sinister purpose in having the gun in the vehicle and I have referred to his disordered thinking which in my view does not allow the account he now gives to be accepted unreservedly but does not allow that account to be rejected either. 28 So the best that I can say having regard to the legal duty on me is that a man, knowing of his own disordered emotions and gross depression, kept in his vehicle a loaded shotgun with the safety catch off in the expectation or possible belief that he might use that weapon to coerce his rival for his wife's affections in some way and it is that in which I understand the Crown to contend that the culpability prior to the presentation of the weapon lies. I accept that submission. 29 In that sense what occurred was not an accident. However, I should also say that it is perfectly clear from the incoherence of the shouting, from the nature of the scuffling as seen by the witnesses, that it does not appear that the offender deliberately shot the deceased and I make that observation notwithstanding that I would be precluded as a matter of law from concluding to the contrary. 30 It is not necessary for me to deal in detail with the submissions of law so helpfully put forward by Mr. Wilson at paragraph two of his written submissions of 13 April, nor in particular with the detail of what he provides by way of analysis of the various witnesses accounts. No issue is taken as to those matters, except so far as I have related, by the Crown but they all lead to the same conclusions as I have already reached. The statements made at and about the time and subsequently all point to the deliberate maintaining of the weapon in the vehicle and presentation of it but the doing so without intent to kill or cause harm and without any conscious realisation that such might be caused and the only reason why there was no such mental state is the offender's emotional confusion and depression. 31 Turning to subjective matters it is submitted that the offender was a quiet, hardworking, friendly, placid and well respected individual within his workplace, a man whose concern for his family was so intense that under the strains arising from his wife's perceived relationship with the deceased he became almost obsessed with the desire to get her back. The evidence of his work colleagues was entirely to the effect that the relationship or his perception of it was having a most dramatic effect upon him. 32 That being said, it is necessary I turn to the relevant principles. This case, as in all cases of manslaughter, is a case of the commission of a very grave crime. It involves the unlawful, indeed, the criminal taking of a human life. The community expects that those who take human life will be punished and that punishment will be declared so that the community may be reassured that the law protects human life, given that it is necessary also to have regard to the other factors to be taken into account on sentence. 33 Sir Laurence Street, as Chief Justice of New South Wales, in Regina v. Georgia Marie Hill (1980) 3 A. Crim. R. 397 at 401-402 in a passage which has frequently thereafter been cited referred to the difficulties that courts have in the infinitely varied circumstances of manslaughter determining principles to apply on sentencing over and above the realisation that they are sentencing for the grave crime of unlawfully taking a human life. 34 It is not necessary that I repeat here that passage. The closing words, however, of the passage are as follows:- "In a case such as the present, where there is material justifying a degree of understanding and sympathy toward the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgement and the interests of society in protecting itself and its members from criminal activity amounting as in the present case, to the taking of a life." 35 All the usual principles of sentencing apply including, as I have said, general deterrence. 36 Mr. Wilson's submissions examined the case law in detail. It is not necessary that I should deal with those particular submissions concerning each case as recently the Court of Criminal Appeal in Regina v. Hoerler [2004] NSWCCA 185 has referred to the appropriate principles to be derived from the mass of case law in respect of sentencing for this crime. 37 In particular, that decision refers to the infinite variability of circumstances, the inability to define particular categories of culpability such as to produce from the sentences, ranges or tariffs applicable to particular kinds of manslaughter. Reference was made there in the judgment of the Chief Justice to manslaughters generally involving sentences in a range of 18 months to 22 years in recent times with a median sentence of seven years. For such sentences non-parole periods for manslaughter ranged from nine months to 16 years with a median non-parole period of 4.5 years. Interestingly, in the case of child killers the median non-parole period was one month shorter. 38 In Green v. The Queen (1999) NSWCCA 97, a case which had occasioned some public notoriety in consequence of it having been to the High Court, Barr, J., with whom Carruthers, AJ. and I agreed, referred to the notorious difficulty of determining a proper sentence for manslaughter and the difficulties of seeking to determine from the facts of other cases and the sentences whether any assistance could be derived. Green (supra) was referred to by the Chief Justice in Hoerler (supra) when holding that although previous sentences are of some utility as a guide due to the necessity to observe the principle of consistency in sentencing, previous decisions are merely there as matters of guidance, not as the determinants even of a general range, but in the judgment of the Chief Justice emphasis was placed upon the necessity to denounce such a crime as this having regard to its objective features so that the community will appreciate that the core value of manslaughter lies in it being a crime the sentencing for which ensure that protection of human life is upheld by the courts. 39 It was submitted on behalf of the offender that there was a loss of self-control. The loss of self-control was linked, so it was submitted, to a degree of provocation. I reject both submissions. I accept that thanks to the emotional disorder there was a very grave loss of judgment. I accept that there was a belief that the deceased had participated in a relationship with the offender's wife such as occasioned that emotional disorder to the offender but the offender was not acting out of a sudden loss of self control occasioned by some provocative act or gestures. He was seeking, at least so far as the material before me goes and his assertions go, to impose his will upon the deceased and to remonstrate with him such that the deceased, who had been avoiding him apparently, was compelled to submit to his desire that the deceased listen to his point of view. 40 That being said, as I have already said, it is perfectly plain that the offence is not one which on general principles could be put at the lower end of the continuum, as was submitted. 41 I return to s.21A. The parties have provided me by reference to the submissions made by Mr. Wilson with detailed specific written submissions as to each aggravating or mitigating factor that is defined in that section. The written submissions adequately deal with each of those factors. It is not necessary that I enumerate the specific factors except to say it was obviously an offence of actual violence in which a weapon was used, the offender had no previous record, the offence was not committed in company, there was no gratuitous cruelty, there was a loss of life and emotional harm to others was occasioned, there was a danger to public safety in that the weapon was produced on a busy highway at 4.30 pm, the offence was not committed by reason of any racial motivation or whilst the offender was on conditional liberty. 42 In my view the victim was a vulnerable person but only in the sense that the offender had available to him the weapon and that matter has already been taken into account in what I have referred to concerning s.21A(2)(c). 43 I accept the submission made in relation to s.21A(2)(n). The offence was not planned or organised, at least insofar as the offender planned or organised to kill or injure the deceased. I accept that it was not established beyond reasonable doubt that the offender deliberately took the gun and shells with him and had them in his vehicle for the purpose of shooting the deceased. So much, of course, is involved in the Crown's acceptance of the plea and in the findings I have already made but I do not accept that it was through inadvertence entirely that the weapon was held in the car and produced. That does not accord with my previous findings. 44 I do not accept, so far as it was submitted, there was provocation, that the offender seeing the deceased drive away from the caravan park where his wife was staying was in fact provocative albeit I accept the truth of the event and I accept that the observation of the event did aggravate the offender's emotional disorder. I accept that he is a man of no prior record, of good character, unlikely to re-offend. He obviously has extremely good prospects of rehabilitation in due course. He has shown remorse. He was not fully aware of the consequences of his action. That follows from his emotional disorder and depression. I do not accept that he fully lost control of his proper reasoning processes but I do accept that his reasoning processes and his judgment was disordered. I accept his contrition. 45 He is a person whose prior circumstances are set out in detail in the reports of the psychiatrist and psychologist to which I have already referred. 46 He had an early life in which he was subject to abuse. He came to Australia at the age of eight years from The Netherlands. He has always been, as far as one can ascertain, an entirely worthy member of the community and member of his family until these emotional events overwhelmed him. 47 He married at age 21 and there have been five children. The marriage is at an end but he has the support of his children. He had been a conscientious and diligent employee in various jobs and in the five years in which he was farming at Mudgee he had been a worthy member of the community. I have no doubt that it was the effects of the marriage split up on his emotions which lay behind the commission of this offence. 48 Section 44 of the Crimes (Sentencing Procedure) Act 1999 as inserted and operative from 1 February 2003 applies here, this offence having occurred on 11 February 2003, but the other amendments to that Act providing for the standard non-parole periods set out in Division 1A do not catch this offence. Section 44(1) requires me to first set the minimum period for which the offender must remain in custody. 49 Section 44(2) provides that when I come to the fixing of the overall sentence beyond the non-parole period that overall sentence must not produce a balance of the term, that is, a period between the expiry of the non-parole period and the expiry of the head sentence or overall term in which the offender may be admitted to parole which exceeds one third of the non-parole period, that is to say, which produces a non-parole period at less than three quarters of the total sentence unless I decide that there are special circumstances for "it being more". "It", in subsection (2), apparently refers to the parole period being extended. 50 It is common ground that it would be an absurdity were I to find special circumstances such that the parole period should be extended which would require me to sentence the offender to a sentence longer than the offender would receive if special circumstances were not found since those words have been given, at least since the decision of the Court of Criminal Appeal in Regina v. Moffitt (1990) 20 NSWLR 114 particular significance (see Regina v. Simpson (2001) 53 NSWLR 704). 51 In this case the Crown contends there are no special circumstances. On behalf of the offender Mr. Wilson has contended that special circumstances lie in at least the following: that it is the offender's first time in custody, he going into custody at the age of 52; that he is a person of prior entirely good character; that the plea and the statements to the police and co-operation were such as to show clearly that there was from the earliest moments contrition for the offence; that the offence was committed at a time when he was suffering from a depressive disorder and emotional confusion occasioned by events not of his causing and that he had recognised himself and tried to deal with those problems to an extent even if in a disordered fashion but rationally seeking counselling and treatment; that he has available very good prospects for rehabilitation and that such a process is a process which is of value to the community. In that regard he has good family support from his children to enable the process to occur. 52 The finding of whether or not circumstances are, either individually or when taken together to be special circumstances is a matter of individual discretion. Probably no individual circumstance to which Mr. Wilson refers would amount in my view to such a special circumstance as the Act refers to as to warrant a reduction of the non-parole period below that which would have otherwise been appropriate having regard to s.44 and s.21A. I am, however, of the view that the whole of those matters taken together do qualify for that description notwithstanding the Crown's submission to the contrary. 53 The degree of adjustment that might be made to the non-parole period in those circumstances, however, in my view need not be great. 54 All of that said and having regard to the whole of the material provided, particularly having regard to what was provided in the reports of Dr. Khan and Mr. Ashkar of Messrs Duffy Barrier Robilliard, I have come to the conclusion that the appropriate head sentence to impose in this case and non-parole period should be varied in their proportions for the reason that I have found the special circumstances to arise in the totality of the matters to which I have referred. 55 In my view no lesser non-parole period than four years can be passed notwithstanding those special circumstances and the discounts to which I have referred having regard to all the matters to which I am required to have regard under ss.21A, 22A and 23 and the principles referred to by the Chief Justice in Hoerler (supra) and to be derived from the mass of case law. 56 Any lesser non-parole period would fail to reflect the gravity of the offender's crime not only of presenting the firearm but by maintaining it in the vehicle available to him to use to impose his wishes upon the deceased. In my view, having regard particularly to the offender's disordered thinking and the circumstances which gave rise to his lack of judgment and which preyed upon his mind to the extent that his judgment was grossly defective. no longer non-parole period is necessary, particularly having regard to the fact that that disorder and his depression are conditions capable apparently of being treated as part of the rehabilitation process so that it is in the community's interest that he be rehabilitated prior to or during his release on parole. It is obvious, however, that he will require a longer than usual parole period since he will be required to re-adjust his life entirely, his marriage being gone and one would expect his place in his local community to be gone also. 57 In those circumstances an appropriate balance of the term, "parole period", appears to me to be of the order of three years taking all circumstances into account. I therefore set a non-parole period of four years and an overall sentence of seven years to date from 11 February 2003. The earliest date, therefore, on which the offender may be liberated on parole will be 10 February 2007. 58 I reach my conclusions as to the sentences to be passed on the basis that the overall culpability is mitigated to a considerable extent by the offender's mental disorder arising from his depression and his emotional confusion at the time of which the offence and the maintaining of the gun in his vehicle occurred. 59 Is there anything further that either of you would wish to say concerning what I have expressed prior to my passing sentence, Mr. Wilson?

DAWE: No thanks, your Honour. 60 HIS HONOUR: Mr. Van Oosterum, would you rise, please. Mr. Van Oosterum, for the crime to which you have pleaded guilty and of which you are convicted, that of the manslaughter of Ronald David Archer on 11 February 2003, you are sentenced to imprisonment for a full term of seven years to commence on 11 February 2003 and to expire on 10 February 2010. In connection with that sentence I impose a non-parole period of four years to commence on 11 February 2003 to expire on 10 February 2007. The earliest date at which you can be liberated on parole will therefore be 10 February 2007. **********

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