Regina v Ward

Supreme Court of NSW|2005-04-15|Before: Whealy J, Street CJ

HEARING DATE(S) : 14/03/05, 15/03/05, 16/03/05, 17/03/05, 18/03/05, 21/03/5, 22/03/5, 31/03/05

DECISION : Trevor Allen Ward, I sentence you to a term of 7 years imprisonment to date from 14 February 2005. That sentence will expire on 13 February 2012. I fix a non-parole period of 4 years. The balance of the sentence should be for a further 3 years. The first date on which you will be eligible for consideration for release on parole is 13 Februaury 2009.

Regina v Isaacs (1997) 41 NSWLR 374 at 378 Regina v Olbrich (1998) 45 NSWLR 538 at 543 Hill (1981) 3 A Crim R 397 at 402 per Street CJ CASES CITED : McDonald (NSWCCA 12 December 1995) Regina v Troja (Unreported NSWCCA 16 July 1991) Previtera (1997) 94 A Crim R 76 Bollen (1998) 99 A Crim R 510

Mr S. Grogan - Crown - Crown COUNSEL : Mr A.J. Bellanto QC; Mr M. Gallagher - Offender

Solicitor for Public Prosecutions - Crown SOLICITORS : Bradfield Anderson - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: The offender, Trevor Allen Ward was indicted before me on 14 March 2005. The indictment charged that he, on 11 April 2003 at Wetherill Park in the State of New South Wales did murder Craig Bradley Buckley. To this indictment the offender pleaded Not Guilty. The trial commenced before me and a jury of twelve on that date and continued until 22 March 2005 when the jury found the offender Not Guilty of murder but Guilty of Manslaughter. The proceedings were then adjourned to Thursday 31 March 2005 for the hearing of submissions on sentence. The offender has been in custody, bail refused, since 22 March 2005. 2 The maximum penalty for the crime of manslaughter is imprisonment for 25 years. 3 I am required to find the facts relevant to sentencing. It is necessary that the facts I find must, so far as they relate to findings of fact against the offender, be findings arrived at beyond reasonable doubt Regina v Isaacs (1997) 41 NSWLR 374 at 378. The onus of proof going to matters of mitigation is on the offender who must establish such matters on the balance of probabilities Regina v Oldbrich (1998) 45 NSWLR 538 at 543. 4 It is necessary for me to make findings at the outset as to the basis of the manslaughter verdict arrived at by the jury. In my view there is no doubt whatsoever, and I am satisfied beyond reasonable doubt, that the proper basis of manslaughter in this case is manslaughter by excessive self-defence. To put the matter more precisely, the facts of the matter, which I shall state shortly, have satisfied me beyond reasonable doubt that the conduct of the offender in stabbing the deceased was not a reasonable response in the circumstances as the offender perceived them to be. 5 The offender and the deceased lived next door to one another in Shelley Place, Wetherill Park. There was a history of animosity between them as indeed there had been between the Ward family and the Homsy family who had lived at 15 Shelley Place for a number of years at the time of the deceased's death. The deceased was the partner of Margaret Homsy. She had lived there from the age of two until she was thirteen or fourteen. The Homsy family moved away for a number of years but Margaret Homsy returned to live there with Mr Buckley in the year 2000 when she was 25 or 26. 6 As I have mentioned, over the years relationships had become strained between the Ward and Buckley families. Unfortunately, this persisted when Margaret Homsy and the deceased came to live in the property at No 15 Shelley Place. For example, there was a physical altercation between the offender, his son and wife on the one hand and Margaret Homsy and the deceased on the other in September 2001. This led to the police being called and ultimately there were mutual AVO applications taken out by the neighbouring families. These proceedings were settled on mutual undertakings, in effect, that the families would keep away from one another and not otherwise cause disturbance or nuisance. 7 It seems quite clear, however, that the relationship did not improve much during 2002 nor up until the date of the offence 11 April 2003. During this period, however, there did not appear to have been any further specific incidents of physical disputation between the neighbours. Rather the situation developed where, from time to time, there were niggling circumstances of mutual annoyance, not involving however the exchange of publicly expressed complaints. 8 Apart from the September 2001 incident, there was nothing in the strained relationship between the neighbours, in my view, that suggested or foreshadowed the eruption of physical violence that was to occur on 11 April 2003. On that day, the offender was seeing his wife and grandchildren off shortly before 2 o'clock on that afternoon. Mrs Ward was taking the children shopping. The offender, having farewelled his family, walked down to the letterbox which was on the grassy area adjoining the footpath at the end of the driveway of his home. He collected his mail and proceeded back up the driveway towards his garage. There is, I should mention, a dispute as to what then precisely happened. The offender gave one version and a neighbour, Mr Murray Dine gave another. The points of difference however were not really major. They related to whether or not the offender went back to his garage and there collected the letter opener, which was ultimately used as a weapon, to enable him to open his mail near the garage. Mr Dine insisted the offender did not return to the garage but proceeded only to a point about half way up the driveway before a conflict broke out between the offender and the deceased. Secondly, there is a dispute as to the point where the physical disputation took place. The offender insisted that it was just outside his garage whereas Mr Dine, as I have said, put the point of physical contact about half way up the drive. 9 I am satisfied beyond reasonable doubt that the offender had the knife in his hand when he went to the letterbox and that the attack by the deceased on the offender occurred where Mr Dine said it did, namely half way up the driveway. Let me say immediately, however, that the offender had the knife in his hand for an entirely innocent purpose. It was in fact a pen knife. It seems that he was in the habit of using the knife for the purposes of opening mail and it is clear that he did so on that day. Moreover, there is no suggestion that when he went down to his letterbox that he had any intention of being involved in any type of confrontation with the deceased. 10 I am also satisfied, as Mr Dine made clear in his evidence, that the deceased drove along Shelley Place and reversed on to his property and up towards his front door at about the time the offender was farewelling his family and then walking down towards his letterbox. Mr Dine said that he himself was at that time collecting his mail from the letterbox outside No 11 Shelley Place. The offender was on the other side of the cul-de-sac in plain view of Mr Dine. In fact, the two men waved to one another across the cul-de-sac. 11 By the time the offender had reached a point about half way up his drive he had already opened two of the letters he had collected from the mailbox but a third remained unopened. The deceased, who was on his property a little further up his driveway began to call out in a chanting voice "Trevor, Trevor, you old fat fool". The offender made a dismissive motion towards the deceased and said something to him. The deceased came closer and said to the offender "You think you are real smart arse, don't you mate". The offender waved him away and said "Piss off what's wrong with you". At that moment the deceased moved over on to the Ward property and kicked the offender in the lower stomach area. It was obviously a hard kick and the deceased was wearing steel capped working boots. The deceased said "I am going to kill you f-ing inbreeds". He kicked the offender once more in the left testicle area. The offender stepped backwards and the deceased adopted a boxing stance and moved threateningly towards the offender. I am satisfied that at that stage he punched the offender on the side of his head under the left ear. I should say that Mr Dine did not see this blow delivered but in the flurry of action at that moment this is hardly surprising. 12 It was at this moment that the offender delivered the fatal blow. He was holding the knife in his hand and I am satisfied that he was holding it more or less in the same manner as when he had been using it to open the mail. There was general agreement between the two forensic pathologists that the blow could have been administered in two realistically possible ways. One was the situation where both men were standing upright and the knife was plunged down into the throat of the deceased. The other was a situation where the knife wound may have exhibited a downward thrust appearance because the deceased had been bent forward towards the offender but at an angle away from him. This latter situation seems to me to be the more likely given the boxing stance adopted by the deceased and the rapid rate of movement of the two men in the confrontation that followed upon the administration of the two kicks and the punch. To this extent, Mr Dine's observation that the two were standing upright at the time of the fatal blow may not have been an entirely accurate observation. 13 Again, the forensic evidence established that the sharp point of the knife was pointing away from the deceased's spine. This is consistent with the type of stabbing action I have described in the light of the likely position of the two men at the relevant time. It was the stab wound that caused the ultimate death of the deceased. The knife entered into the neck, plunged downwards, cut the windpipe and then the top of the lung. 14 The offender said in his evidence that he had no recollection of making the movement that inflicted the wound in Mr Buckley's neck. I am satisfied beyond reasonable doubt, however, that the accused deliberately stabbed the deceased and that he did so because he perceived that he was in danger of further serious physical attack and sought to defend himself by stabbing the knife towards the neck of the deceased. I accept that the combination of the kicks, the blow and the words of the deceased led the offender to believe that it was necessary for him to act in his own self defence. I am not satisfied beyond reasonable doubt that the he intended to kill the deceased but I am so satisfied that when he struck out with the knife he intended to cause really serious physical injury. I am also satisfied beyond reasonable doubt however, consistently with the jury's verdict, that his conduct in stabbing the deceased with the knife was not a reasonable response in the circumstances, as he perceived them to be. The deployment of the knife towards the deceased's throat, in those circumstances, no matter how threatening the situation appeared to the offender, was calculated to and in fact caused a really serious injury to the deceased. It ultimately led to his death. Of course, the offender had little time to think about the situation or to calmly reflect upon other alternatives. Nevertheless, in my view, the use of the knife in the way it was used, that is a thrust towards the deceased's neck, is a clear example of excessive self-defence. 15 The deceased moved immediately away from the offender and went back up towards the steps near the front door of his house. Shortly afterwards he collapsed and very soon thereafter his life ebbed away. 16 To his credit, the offender immediately called out to Mr Dine to ring the emergency services. Within a few minutes, he himself went into his own home and rang triple-O to call for assistance. By that time, however, it seems the deceased had passed away. The contents of the triple-O telephone call made by the offender and the statements he made to the police, I need not dwell on them in any detail, made it quite clear in my view that the offender well knew what he had done in stabbing the deceased. These versions of the incident, given so close to the time of the unfortunate stabbing, did not sit well with the version of the incident given by the accused in the witness box. Be that as it may, I am satisfied from the evidence of Mr Dine, an independent observer whose evidence was in most areas reliable, from the wound itself and the statements made by the offender at the time that his action was a deliberate one; that it was an action deliberately carried out in defence of himself in circumstances perceived by him to be seriously threatening. But it was, as I have said, an unreasonable response in the circumstances. 17 The evidence given by the police demonstrates that, while they were there, the conduct of the offender was that of a man in shock, distressed, upset and deflated by what he had done. This observation of the offender is corroborated further by the evidence of Mr Dine who described the offender's behaviour as consistent with a person in distress.

Objective seriousness - culpability 18 It is now necessary to come to a conclusion in relation to the objective seriousness and the degree of culpability involved in the commission of the offence of manslaughter in the present circumstances. 19 Manslaughter is a particularly serious crime since it involves the taking of a human life. One of the primary objectives of the criminal justice system is the protection of human life (Hill (1981) 3 A Crim R 397 at 402 per Street CJ; McDonald (NSWCCA 12 December 1995). In the latter case the Court of Criminal Appeal said: - "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of a human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide whatever form it takes has always been recognised by law as a most serious crime (see R v Hill). The protection of human life and personal safety is a primary object of the system of criminal justice. The value which the community places upon human life is reflected in its expectation of that system." 20 In Hill, Street CJ said: - "In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards 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 judgment, and the interests of society in protecting itself and its members from criminal activity as, in the present case, the taking of a life." 21 It is against the background of these principles that I turn to consider the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is also necessary to have regard to the overall purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 22 There are, on the face of it, a number of aggravating factors. The offence involved the actual use of violence; the offender has a previous conviction for assault and the offence involved the use of a weapon, namely a knife. As to the first matter, it is, in my view, completely subsumed within the nature of the crime of manslaughter itself. The second matter I consider of no consequence in the present sentencing exercise and that much is conceded by the Crown. As the fine imposed indicates, it was a relatively minor matter. It is only therefore the third matter that properly may be regarded as an aggravating factor in relation to this offence. 23 There are however a number of mitigating factors. These are of some importance in relation to the impact they have on an assessment of the overall level of criminal culpability involved in the present matter. First, it was not in any sense, part of a planned criminal activity. Secondly, it is clear the offender was provoked in a general sense by the deceased's actions. Thirdly, the offender is a person of good character and I am satisfied that he is unlikely to re-offend. Fourthly, by reason of his age and circumstances I believe he has good prospects of rehabilitation. Fifthly, by trying to organise assistance for the deceased immediately after the stabbing and in calling the triple-O operator himself, the offender demonstrated, in a practical sense, some degree of remorse for his actions, although he was no doubt concerned about his own position as well. This I think also appears from the contents of the telephone call. Mr Bellanto QC indicated, during the submissions on sentence, that his instructions were to convey his client's remorse to the Court. To that extent, again I accept that a degree of remorse is present. Finally, I should repeat that the offender was set upon by the deceased, attacked in quite an aggressive manner and plainly enough was in fear for his life and safety. The deceased was younger, bigger, fitter than the offender and was, on the facts I have found, the aggressor in relation to the physical confrontation that occurred. 24 The subjective case for the offender included a substantial number of character references from friends and family. They are contained in Exhibit 1. 25 From the written material and other matters put in submissions I can accept, as I have said above, that the offender is generally a person of good character and good reputation. He is 54 years of age and, apart from the minor assault matter, has no criminal history. He has two children who are aged 28 and 24 respectively. He has three grandchildren. He and his family resided in Wetherill Park for about 24 years. As a consequence of the incident involving the death of the deceased, the family sold the Wetherill Park property and moved to Greenthorpe near Cowra. This involved them in some expense and, not unexpectedly, some emotional upheaval. 26 The offender has been in gainful employment for most of his working life, working generally in the fire protection industry. 27 One consequence of the incident involving the death of the deceased is that Compensation to Relatives claim has been brought against the offender although whether this will involve financial repercussions for him is unknown and speculative at this stage. 28 The character references describe the offender as a hardworking strong family man who is normally placid and not given to violence of any kind. He has been in a stable marriage relationship with his wife for many years. I should add that Mr Bellanto asked the Court to take into account, and I do, the fact that the offender was originally discharged at committal but later brought before the Court on an ex-officio indictment; and further that the first trial ended when the jury, after several days deliberations, were unable to agree on a unanimous verdict. In all these areas Mr Bellanto submitted the offender has sustained a degree of punishment. I have taken each of those matters into account.

Victim Impact statement 29 I have received a Victim Impact statement from Leanne Buckley (Exhibit "B"). The document is made on behalf of the deceased's sister, mother and father. As it is only to be expected, this document confirms that the death of the deceased has had a very significant and distressing effect on these members of his family. They are deeply shocked and depressed by what has happened to their son and brother. The letter is an eloquent reminder to the Court and to the community how a trivial neighbourhood dispute can bring about a situation of calamity for the deceased and his family, on the one hand, and ruin and despair for the offender and his family. Notwithstanding this observation, I would like, on behalf of the Court, to extend to the Buckley family my deep sympathy for the sad situation in which they find themselves. The Court hopes that the Buckleys may find that it has been of some assistance to express themselves through the Victim Impact statement. As I indicated during argument, however, I have come to the conclusion that I do not consider that it is appropriate to have regard to the statement in the determination of the sentence to be imposed (see s 28(4)B of the Crimes (Sentencing Procedure) Act 1999; Previtera (1997) 94 A Crim R 76; Bollen (1998) 99 A Crim R 510). I should make it clear that, although there was some tentative discussion to the contrary, the material was not tendered by the Crown on the basis that it ought to impact on the sentence to be imposed. Indeed, it would be contrary to the principles expressed in the decisions to which I have referred to use it in that way. 30 What then is an appropriate sentence to impose in the present matter? The sentence to be imposed must acknowledge the principles I have set out earlier in these remarks in relation to the denunciatory role of sentencing particularly in the case of manslaughter. It is important in my view that those principles not be devalued or debased in any way. Moreover, there is a need in the present matter that the penalty to be imposed here should act as a deterrent not only to this offender, as I am sure it will, but to other persons. Although I have specifically found here that the offender was carrying the knife in his hand for a completely innocent purpose at the time of the attack nevertheless he wielded it in a deadly fashion when he was set upon by the deceased. It is hardly necessary to point out that the holding and use of a dangerous weapon such as a knife during a neighbourhood squabble is potentially a very dangerous activity. Even where the response of an offender, as here, is predicated upon his belief that he needs to take action to defend himself, the possibility that serious injury or death will occur is very high indeed in circumstances where a knife is being wielded. So it was in this tragic and sad case. As I have said, there is a strong need to deter people in situations of domestic or neighbourhood stress from overreacting when armed or equipped with a dangerous implement such as a knife. Contrary to submissions made on the offender's behalf the sentence must, in my view, reinforce that aspect of general deterrence. 31 For these reasons the sentence to be imposed must denounce the offender's actions and must recognise the seriousness involved in an unreasonable response in a self-defence situation where the life of a human being has been taken away. I have considered other alternatives but it is my view that a full time custodial sentence is required in the present matter. 32 Mr Bellanto QC had urged upon me that a custodial sentence ought not necessarily be imposed in the present matter. In support of this submission he referred me to statistics published by the Judicial Commission of New South Wales. He also took me to a number of decisions where a range of sentences had been imposed in manslaughter cases. He did so for the purposes of comparing the circumstances in those cases and those likely to relate to the present offence. From the analysis Mr Bellanto argued that, in many respects, the present case was one calling for a lower penalty than some of the cases analysed and, at worst, a similar penalty to others in the cases examined. 33 I do think it is necessary for me to go to the details of the analysis made by senior counsel. This is so for several reasons. First, so far as the statistics are concerned, it is clear that, particularly in relation to the crime of manslaughter, they need to be approached with some care. This is so because each case needs to be carefully analysed on its own facts and circumstances in relation to this offence. (See Regina v Troja (Unreported NSWCCA 16 July 1991) Secondly, it is necessary to bear in mind that, in the case of manslaughter especially, neither a consideration of statistical information nor an examination of results in other decided cases illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly because of variations in the circumstances of the individual instances of the offence. 34 Notwithstanding all that I have said, the circumstances, as I have earlier outlined, recognise that the level of culpability in the present case is by no means at the highest level. There are a number of mitigating factors which I have set out earlier. In addition, the subjective circumstances of the offender are strong.

The sentence 35 This offence was committed on 11 April 2003. The consequence of that is the standard non-parole period sentencing scheme under the new division 1A of the Act and the new s 44 of the legislation apply to sentencing for offences committed after that day. However, there is no standard non-parole period established under the legislation for the offence of manslaughter. This is no doubt because of the disparate circumstances that may occur in relation to an offence of this nature. Nonetheless, in structuring the sentence it is necessary to first set a non-parole for the sentence and then to specify an additional term. The balance of the term is not to exceed 1/3 of the non-parole period unless the Courts finds there are special circumstances. 36 As I said earlier the offender is 54 years of age. He has not previously served a sentence of imprisonment. Although I have every reason to suppose that he will not re-offend, it is reasonable to consider that on his release he will benefit from the assistance of Probation and Parole Service to ensure that he makes a satisfactory return to life in the community. These considerations lead me to conclude that there are special circumstances that make it appropriate that the balance of the term of the sentence to be imposed on the offender exceed 1/3 of the non-parole period. 37 In my view, an overall sentence of seven years is necessary in order to reflect the various considerations I have discussed during these remarks on sentence. I have determined that the minimum period for which the offender should be kept in custody for this offence is one of four years and that the balance of the sentence should be a further three years. 38 The offender was arrested on 12 April 2003 and he remained in custody, bail refused, until 16 May 2003. Following the return of the jury verdict in the present matter the offender went into custody on 22 March 2005 and he has remained in custody since that date. I propose to backdate this sentence to reflect the time spent in custody, including the time between the conclusion of submissions on sentence and today. I calculate that to be a period of 60 days. 39 Trevor Allen Ward, I sentence you to a term of seven years imprisonment to date from 14 February 2005. That sentence will expire on 13 February 2012. I fix a non-parole period of four years. The balance of the sentence should be for a further three years. The first date on which you will be eligible for consideration to release on parole is 13 February 2009.

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