Regina v Waterman

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: The offender, Wesley Patric Waterman, was tried upon an indictment charging him with the murder of Anthony Alexander Costello at Woolloomooloo on 11 November, 2000. The jury found him guilty of manslaughter. He committed the offence in the company of a co-offender, Jerome William Leyman. Mr Leyman was also charged with murder, but his plea of guilty to manslaughter was accepted by the Crown prosecutor in discharge of that indictment.

Facts 2 At the relevant time the offender was living with his parents in Charles Street, Woolloomooloo. Mr Leyman lived nearby in Forbes Street. During the evening of Friday, 10 November, 2000 a number of homeless men, including the deceased, who was forty one years old, took up positions to sleep for the night on the steps of a building roughly opposite Mr Leyman's house. 3 Mr Leyman was at home, drinking with friends. In the small hours of the following morning, Saturday, 11 November, 2000, people in the house were talking loudly and disturbing the sleep of the homeless men outside. Some of those men protested, demanding that the noise cease or they would call the police. Mr Leyman came out of his home, carrying a broomstick. He prodded a number of the men with the stick, including the deceased, and ordered them to leave the area. The deceased said that he was not leaving. Mr Leyman attempted to strike him with the stick, but the deceased seized it from him and struck him on the nose, causing it to bleed. 4 Mr Leyman ran back to his home. A number of the homeless men stood outside his house, swearing at him and demanding that he come outside, but after a while they settled down. He rang the offender and told him what had happened. 5 The offender left his home in Charles Street, armed with a knife, and ran to where the men were. He demanded to know who had assaulted his friend. He then went to Mr Leyman's home, and the two of them emerged and walked towards the men. Mr Leyman pointed out the deceased as the man who had struck him. 6 There is a conflict in the evidence about what then occurred. What is clear is that the deceased sustained one stab wound to the chest, which was fatal. What is not clear is exactly how that happened. Manslaughter was left to the jury on two bases: either that the offender deliberately stabbed the deceased but without the intent requisite for murder, or that he menaced the deceased with the knife and the deceased lunged towards him, impaling himself upon it. For the purpose of sentence, the Crown prosecutor contended that I should find that the stabbing was a deliberate act by the offender, a proposition supported by the evidence of some of the homeless men. Mr Hamill, for the offender, argued that I should sentence on the basis that the deceased had impaled himself upon the knife, a view consistent with the evidence of a witness, Ms Tracy Conklin, whom both counsel accepted as reliable. 7 It is unnecessary to go to the detail of the evidence. It is sufficient to say that I cannot be satisfied beyond reasonable doubt that the wound was the result of a deliberate stabbing and I propose to sentence upon the basis propounded by Mr Hamill. Nevertheless, it is common ground that, when the deceased suffered the wound and fell to the ground, both the offender and Mr Leyman kicked him. They then ran back to Mr Leyman's house. The deceased died later that day at St Vincents Hospital. 8 The offender was charged several days later, when he attended Kings Cross Police Station with a solicitor. He declined to be interviewed and he did not give evidence at his trial. It is clear from the evidence in the Crown case that he was intoxicated at the relevant time. The knife which he had was one which his mother had left near the front door of their home for protection, because there had been a violent incident involving a number of youths at the back of the house some months before and her husband was frequently away. Not surprisingly, in view of what happened, she said in evidence, "I rue the day I ever put it there." 9 The incident must be understood against a background of tension created by the presence of a large number of homeless people in the area. Mrs Waterman, who was sympathetic to the problems of those people, explained that residents were regularly harassed, stood over for money or even assaulted by some of them. The situation became worse when the demand for police during the Sydney Olympics significantly reduced police presence in the area.

Subjective case 10 The offender was thirty years old at the time of the offence and is now thirty-two. He has a lengthy criminal record, including some offences of violence, but most of it comprises offences committed when he was a juvenile. To Ms Anna Robilliard, a psychologist who examined him for forensic purposes, he frankly acknowledged that he had been "a juvenile delinquent." He spent several periods in detention in juvenile institutions. His response to schooling was poor and his formal education came to an end when he was about fourteen years old. All this was so despite what appears to have been a satisfactory family background. 11 He used heroin for a period in his teens and smoked marijuana until his late twenties. However, of greater significance is his abuse of alcohol, a problem which endured right up to the time of his arrest for the present offence. 12 His lifestyle improved markedly in his early adulthood, probably due to his involvement in relationships with two young women, both of whom bore his children. He has one child from the first relationship and two from the second and, although both relationships are now at an end, he maintained contact with those children and is devoted to them. He has a few convictions as an adult, but they demonstrate nothing like his consistent pattern of offending as a juvenile. He gained steady employment. It appears that his drinking escalated when the second relationship broke down about a year before the present offence. He has had contact with that lady and the two children since he has been in custody, and he has some hope of a reconciliation with her upon his release. 13 I have received an impressive body of character evidence, both written and oral, from friends and from members of his family. The effect of that evidence is that, notwithstanding his criminal history, the present offence is very much out of character. He is described as a caring person, who is generous and helpful to others in need. I was particularly impressed by the evidence of his mother and his sister, and it is clear that he can rely upon the continuing support of his family. His sister can offer him accommodation, and expects to be able to arrange employment for him upon his release. 14 Since being in custody he has taken the opportunity to further his education and has sought psychological counselling. His health has improved as a result of his abstention from alcohol. Nevertheless, Ms Robilliard reports that he needs to address the related problems of alcohol abuse and anger management and, while there is a course of treatment available within the prison system, it is likely that he will need support and professional assistance to that end upon his release. I think that his prospects of rehabilitation are good, but they should be fostered by a longer than usual period of parole eligibility. Accordingly, I find special circumstances. 15 He gave an account of the offence to Ms Robilliard which, in my view, is somewhat sanitised. Nevertheless, I accept that he is remorseful about the death of the unfortunate victim. He offered to plead guilty to manslaughter prior to the trial, a fact which entitles him to leniency in accordance with the principles propounded by Grove J, with whom Spigelman CJ and Sully J agreed, in R v Oinonen [1999] NSWCCA 310. Neither counsel suggested that I should express that leniency as a quantified reduction of the sentence otherwise appropriate, and I do not propose to do so. Sentence

16 In assessing the objective gravity of this crime, I have regard to the background of tension from the presence of homeless people in the area, to the offender's intoxicated state, to the speed with which events unfolded and to my finding about the cause of the fatal wound. On the other hand, I must also bear in mind that the offender left his home armed with a knife, obviously anticipating a violent encounter. He also kicked the victim, although he may not have then been aware that he had sustained a life-threatening wound. In all the circumstances, the offence falls short of the more serious category of this class of manslaughter but it is, nonetheless, a serious one. 17 I have received a victim impact statement from the sister of the deceased, providing a brief account of his sad life and expressing her grief, and that of other members of the family, at their loss. The approach of this Court to that material is well settled and need not be repeated. The Court expresses its sympathy to the loved ones of the deceased. 18 Sentencing in cases such as this is never an easy task. To achieve an appropriate balance between the objective gravity of the crime and the favourable subjective circumstances of the offender is a notoriously difficult exercise. The sentence which I propose is the best I can do to meet the community's sense of justice. It will date from the day that the offender was taken into custody, 16 November, 2000. 19 Wesley Patric Waterman, you are sentenced to imprisonment for six years, to date from 16 November, 2000, with a non-parole period of three and a half years. You will be eligible for release on parole on 15 May, 2004.

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