REGINA v WILSON

1 HIS HONOUR: The prisoner, Darryl Grant Wilson was indicted before this Court for the murder of his father. To that charge he pleaded not guilty but guilty of manslaughter. The Crown has accepted his plea to manslaughter in full satisfaction of the indictment. 2 For reasons which I will detail later I am of the view that the Crown's acceptance of the prisoner's plea was entirely proper. 3 The maximum penalty detailed by s 24 of the Crimes Act 1900 for the crime of manslaughter is penal servitude for twenty-five years. 4 The objective facts of the matter were not the subject of any dispute and were given in evidence by Det Sgt Ellicott of North Sydney Police. 5 I should add that I have read the supporting documents which give rise to the facts as given by Det Sgt Ellicott and I find that the Det Sgt's summation is accurate. Those objective facts are as follows: 6 On Sunday 14 December 1997 at about 10 am the prisoner and his father met at The Spit to change the oil in their boat, "Quality Time", which was moored in Pearl Bay, Mosman. 7 After the oil had been changed the deceased made comments which the prisoner believed were intended as threats against his girlfriend and he believing his father to be saying that he would be prepared to kill his girlfriend and force the prisoner to return to his wife and children. By this time the prisoner had consumed about four 375 ml bottles of subzero, an alcoholic lemonade as I understand the evidence, and his father had had a 375 ml bottle of light beer. I do not believe that alcohol played any part in the events which followed. 8 The prisoner hit his father causing lacerations to the back of his head, bruising to his right shoulder, a laceration to the bridge of his nose and grazes to the rear of his shoulders. The prisoner saw blood on a plastic bag, a bottle and on the deck. After feeling and listening for the deceased's heart and breath he concluded, as it turned out falsely, that his father was dead. The prisoner then lifted his father over the side of the boat and threw him into the water. 9 Dr Bradhurst conducted an autopsy on the deceased on 15 December 1997. His examination revealed lacerations to the scalp, to the face near the right upper eyelid, and to the bridge of the nose and bruises to each side of the scalp. He concluded that the deceased had died of drowning, after being rendered unconscious by at least eight blows to the head. In his view the head injury alone was not severe enough to have caused death. 10 Roy Blow an independent witness, who was on his yacht 100 metres from the prisoner's boat heard a man yell "what are you doing?" and saw an older man on the prisoner's boat being grappled from behind by a younger man. 11 Blow recalls the older man to be about sixty years old -he was in fact sixty-eight - with black hair, of moderate weight and wearing a red t-shirt and stubbies. He recalls the younger man to be about twenty-five to thirty years old - he was forty - Australian looking, 180-185 cm tall, of solid build, with short hair and wearing swimming briefs and a t-shirt possibly red. 12 Blow then saw the younger person pull the older man off a deck chair onto the deck of the boat. The older man had an aluminium pole. Blow heard two loud calls of "someone please help me" rowed closer and heard loud grunting and moaning coming from the boat. 13 Blow rowed ashore and called the police. As he rowed back past the prisoner's boat he saw the younger man swimming and washing a red t-shirt in the water next to the boat. He then saw the man climb back onto the boat and retrieve a seat cushion and jump back into the water. He then saw the man climb back onto the boat and appear to be washing the deck of the boat. He then saw the man put on a white long sleeved shirt and walk around his boat looking very agitated. 14 Snr Consts Bryan and Brazzill and Const Martin attended the prisoner's boat at about 12.50 pm. The prisoner was wearing a long sleeved white shirt and green shorts, and his hair and clothing appeared to be wet. When asked by Brazzill where his father was, the prisoner replied: "I don't know. I think he went for a swim or something." 15 Martin and Brazzill saw the prisoner take some green and black clothing from under his seat and throw it into the water. Brazzill retrieved the clothing. 16 The deceased's body was located by Blow, Bryan and Martin floating face down 70 metres west of the Mosman Rowing shed. There was blood coming from his face and head, a cut to the rear of his head, and deep bruising on his right shoulder. He was wearing a pair of blue stubbies shorts. Blow identified the body as that of the older man he had seen being grappled on the prisoner's boat. 17 While waiting for Bryan and Martin to return from locating the body, the prisoner picked up a red t-shirt from a marlin board at water level at the rear of his boat. He told Brazzill "This is dad's". Bryan and Martin then returned to the boat with the body and the prisoner identified the body as that of his father. 18 Snr Const McNulty and Const Packham arrived at the scene and McNulty cautioned the prisoner and obtained a statement from him. The prisoner gave an outline of events and said: "I last saw Dad on the ladder on the stern of my boat, I laid down then." 19 After reading his statement in McNulty's police notebook the prisoner said: "I'm sorry I lied to you earlier. I was frightened and scared and my first impulse is to lie. I've read the statement and realise I should tell the truth." 20 He then told police how he believed his father was going to kill Rachel Pombart, the partner of the prisoner, and said: "On the boat today, he said something in an off hand way, … he knew something I didn't know and the words were 'because some people know how to take necessary action' and I thought he was referring to Rachel. When I tied it together with the letter, I thought suddenly, this afternoon, or tomorrow or when he got his strength back, he was going to kill her, as he knew it was the only way I would go back to Julia. I honestly believe he was capable of doing this and capable of harming her, and … when I snapped, when I thought how could I let him kill her, and I killed him. When I came to my senses I killed him and pushed him into the water. I then washed the boat out and went and laid down." 21 This conversation was recorded in McNulty's notebook and adopted by the prisoner. 22 The prisoner then telephoned Rachel Pombart and McNulty heard him say "I killed him on the boat". The prisoner told McNulty when asked "Can you tell me what you hit your Dad with?" that "it was a large clear bottle something similar to a scotch bottle. 23 Det Sgt Ellicott and Snr Const Cutts arrived at the scene. When Ellicott asked the prisoner whether he wished to participate in a "runaround" video, the prisoner said "No, I've confessed to murdering my father, what more do you want from me?" 24 The prisoner was taken to North Sydney police station and questioned by Ellicott in an electronically recorded interview. In that interview he said that earlier in the month he had argued with his father when his father gave him a copy of the letter he had sent to Rachel Pombart's parents. In this letter the deceased said he would do anything it takes to get Rachel away. The prisoner said he put these comments out of his mind. 25 While on the boat they discussed the separation and the deceased said words similar to "sometimes people who think everything's fine learn the hard way that it's not". The prisoner believed this meant the deceased was going to kill Rachel Pombart. 26 Later in the interview the prisoner said: "Look, I, I know I killed him, but and I know, but I can't, I can, I keep getting glimpses of things that happened then. I can't, I, but I can't, it's, it's happened then … I remember being on top of him and seeing him there and he was, and he, and he wasn't breathing and I'm, I'm thinking and, and, God, and I, and I think, thought, I've killed him and I, and I, I panicked … I thought I've got to, I've got to throw him in the water. I've got to, to make it look like he's drowned." 27 He admitted throwing a blood covered bottle and bag into the water and after seeing his father was not breathing, "I threw him over the side". He then cleaned the boat with salt water and changed from his red t-shirt and black shorts into a white long-sleeved shirt and green Speedos. 28 The prisoner consented to a medical examination where he was examined by Dr Moynham who found no injuries on the prisoner's body. 29 As I have already noted, the cause of death, as found by Dr Bradhurst, was drowning. Accordingly, the deceased was in fact unconscious but not dead when the prisoner threw him into the water - albeit I accept the fact that the prisoner believed that his father was dead at the time when he put him over the side of the boat. 30 The Crown accepted the plea in this case on the basis that the prisoner caused the death of his father by his dangerous and unlawful act in assaulting his father on the boat and then throwing his father's body in the water while his father was still unconscious. 31 The Crown in so doing accepted that in this case it would not be able to prove beyond reasonable doubt that the prisoner had intended to kill his father or inflict grievous bodily harm upon him. 32 It is the Crown's position that the prisoner by dint of his plea, accepted that a reasonable person in the position he was in would have realised that he was exposing the deceased to an appreciable risk of serious injury by his action in assaulting the deceased and then throwing the deceased's body into the water. 33 I turn then to the subjective features which have been raised on behalf of the prisoner. 34 The prisoner is now aged forty-two, having been born on 29 January 1957. He is a solicitor by profession. Not surprisingly he has no criminal record and thus prior to the events of 14 December 1997 was a person of excellent character. 35 There is nothing in his background which suggests that he is liable to become physically aggressive to others. Indeed, to the contrary, there is evidence put before me, which I accept, that he was a gentle person who had no aggressive features in his approach to life. A colleague deposed that in the field of personal injury litigation in which he practiced he, unlike many in that field, did not approach his work in an aggressive fashion. 36 He was a serving member of the Royal Australian Naval Reserve having attained the rank of lieutenant specialising in intelligence work. 37 Initially, he gave false account of the fatal events but soon afterwards which for reasons I find explicable, he has acknowledged his complicity. In evidence before this Court he stated that when his account was being read to him by police (he was still on the boat) he "came to his senses" and gave a full account of what had occurred. He maintained that account subsequently in an electronically recorded interview at a police station. 38 His early acknowledgment of the part he played and his plea of guilty are, of course, factors which of themselves, entitle him to a degree of leniency on sentence. 39 The late Lindsay George Wilson was a complex man. He had been involved in his early years in the electronic media both in radio and television. In later years he carried out a variety of ventures including farming. He had strong and perhaps unorthodox views on a number of topics. Tendered before the court was an essay he had written in support of polygamy. Witnesses deposed as to his ability to be charming and, on the other hand, his capability of being verbally threatening. 40 He had a criminal record which is of relevance in considering the subjective features, and indeed the objective features, in this case. At the time of his death he was on bail on a charge of conspiracy to murder. The person whom the deceased allegedly entered into a conspiracy to murder was the male partner of his former defacto wife. The prisoner was fully aware of this matter and in my view gave weight to the fears he entertained as to what his father might do to his partner at the relevant time. I should add that his father's former defacto gave evidence that at the time when she ended her association with the deceased, the deceased assaulted her new partner. 41 The deceased also had a somewhat fortunate appellate record in other criminal matters. He had been convicted of aggravated sexual assault on a minor but successfully appealed from that conviction. He also successfully appealed against a conviction for threatening a witness. 42 At the time when the subject incident occurred the prisoner was separated from his wife and had formed an association with Rachel Pombart, an association which still continues. 43 The deceased disapproved of the liaison between the prisoner and his present partner. After originally suggesting that the prisoner, his wife and his new partner should live in a menage a trois - an attitude consistent with his views of polygamy as detailed in the essay tendered before the court - after the prisoner and his partner started to live apart from his wife, the deceased carried out a campaign against the prisoner's new partner. 44 That campaign consisted of, inter alia, persistent abusive telephone calls to the new partner and writing letters of a vile type to the partner's parents, the partner herself and the prisoner. 45 In September 1997 the deceased suffered an aortic aneurism which was successfully repaired by surgery. As had been the situation for most of the prisoner's adult life, he cared for his father following this medical incident. However, after surviving the aneurism the deceased continued his campaign against the prisoner's partner. 46 The deceased and the prisoner's mother had been divorced in the mid seventies. She gave evidence of the threatening nature of the deceased and the harassment which he had directed towards her. Such was the nature of that harassment that at one stage of her life she lived in fear of the deceased. 47 Following the separation of his parents the prisoner kept in relatively close contact with his father. For instance when his father was appearing with some regularity before the courts of this State in relation to the criminal matters I have mentioned, the prisoner stood by his father arranging bail and representation. 48 Despite the campaign his father was carrying out against his new partner he still visited his father and indeed the fatal meeting on the boat had been arranged a week before when such a visitation took place. Against this background it is not surprising, in the lay sense, that the prisoner lost control when his father made the remarks relating to his partner referred to in the narration of the objective facts. 49 While the Crown has accepted the prisoner's plea on the basis that his actions constituted a dangerous and unlawful act there was plainly enough a strong degree of provocation on the part of the deceased which led to the fatal events. While provocation of course is not a defence to manslaughter, it is relevant in considering sentence and I shall refer to that later in these reasons. 50 The prisoner has been seen by the distinguished forensic psychiatrist, Dr Bruce Westmore. Having taken a history which is consistent with the background to the events and the objective facts, Dr Westmore concluded that the prisoner was suffering from an abnormality of mind at the time when these events occurred. Dr Westmore summed up his views as follows:- "In this particular case the abnormality of mind was a combination of factors, he was more likely than not depressed at a number of things which were occurring in his life, not least some of his father's behaviour. At the time of the homicide I believe he was 'overwhelmed' with the belief that his father would harm, probably kill, his partner. His level of awareness of events at the time the homicide occurred appears to have been altered, diminished, he may have been in a state of partial dissociation." 51 The combination of the provocative conduct of the deceased and the fears both before and on the day when the fatal events occurred and the fears the prisoner held for the safety of his partner, together with the abnormality of mind which Dr Westmore believed he was suffering from at the relevant time, provide a compelling explanation for the prisoner's actions at the time when the fatal events occurred and the immediate aftermath. I shall return to this matter later. 52 I should also add that the prisoner has expressed remorse in evidence before the court which I believe to be absolutely genuine and of course have taken into account. Equally, I should say that this is a case in which there is not the likelihood of the prisoner reoffending. 53 Considerations which the court should take into account in passing sentence for the crime of manslaughter vary considerably. In R v Hill 3 A Crim R 397 at 402, Sir Laurence Street, former Chief Justice, observed as follows: "It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and 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 interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 54 In R v Morabito A Crim R 82, Wood J stated the law as follows: "Notwithstanding the considerable sympathy one must feel for a person in the applicant's situation, I am of the view this was a very serious case of the genus of cumulative provocative killing in the domestic scene. Manslaughter, even though committed under provocation, is recognised as a major crime and is one which calls for a correspondingly grave measure of criminal justice being meted out to the guilty party: See Hill (1981) 3 A Crim R 397; Low (1991) 57 A Crim R 8. In Whalen (unreported, Court of Criminal Appeal, NSW, No 60558/90, 5 April 1991), Lee J said: 'The commandment 'Thou Shall Not Kill' has a powerful place in the law of this country, in both the criminal and civil law, and society can never condone the taking of a human life as a solution to marital discord. The law does no more than recognise that provocation can overcome a person's self-control and result in that person killing another, and in that circumstance it allows the crime to be seen as manslaughter, not murder.' Lee J continued: 'In fixing a sentence the degree of provocation must necessarily be taken into account, along with all the other subjective features.' " 55 Hunt CJ at CL in R v Alexander 78 A Crim R 141 at 142 said this: "It is nevertheless always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place. Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done." 56 Later, at 144 he observed as follows: "…three particular matters which have been taken into account in provocation manslaughter cases are: (1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and (3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence." 57 It follows that this Court should only impose a non-custodial sentence in manslaughter cases where the facts reveal exceptional circumstances which would take the case out of the norm, the norm being that in most cases of manslaughter a custodial sentence of varying length will be imposed. I should add, and in so saying, I do not resile from the observations I made in R v Elliott, unreported, 14 February 1991, NSW Court of Criminal Appeal, when I observed that the crime of manslaughter is one where appropriate penalties imposed vary more than any other serious crime contained within the Crimes Act, depending upon the degree of criminality involved in any particular case. 58 Indeed, over seventy years ago, Sir Phillip Street CJ said in R v Withers (1925) SRNSW 302 at 394: "There is no offence in which the permissible degrees of punishment covers so wide a range and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty." 59 A caution necessarily follows from the authorities which I have cited that the court must be wary in all cases of appearing weak. 60 In recent years non-custodial penalties have been imposed in cases of manslaughter even where a weapon has been used in committing the act which led to the deceased's death. See the remarks on sentence of Hunt CJ at CL in R v Roberts and my own remarks in R v Woolsey. In Roberts' case a rifle was used and in Woolsey's case a knife. 61 What then are the exceptional circumstances here which could lead the court to imposing a non-custodial penalty.

1. The provocation which I have detailed above which I find to be both great and also not only cumulative but immediate. 2. The fact that there was no premeditation in this case. 3. The fact that a weapon was not used. 4. The effect of the death of the deceased upon those who may be considered as the additional victims of the offence. These include the daughter of the deceased and the prisoner himself. As I have said the prisoner has expressed what I believe to be genuine contrition for his actions. Despite the conduct of the deceased in relation to the prisoner's mother and his partner, in the past the prisoner had exhibited care and compassion for his father. On the evidence before me I find it is the prisoner himself who has suffered the greatest hurt on his father's death. 5. The psychiatric condition of the prisoner at the relevant time as detailed by Dr Westmore. While, as I have indicated, this is not a case where the Crown accepted the plea on the basis that the crime of murder is reduced to manslaughter because of either provocation or abnormality of mind. Both these factors are present and both are relevant in considering sentence. 6. Other matters such as the fact that the prisoner not only pleaded guilty but gave, at an early stage, a full account of his part in the fatal events. 7. The prisoner being a person of good character and not likely to reoffend go more to the question of degree of leniency being exercised from a custodial sentence than being exceptional circumstances which would lead the court to imposing a non-custodial sentence. 62 Standing alone, I doubt if any one of the matters I have just detailed would cause the court to utilise a non-custodial sentence as the appropriate sentencing option. However, when all these matters, which constitute a mix of both the objective and the subjective features which the court has to take into account, are taken together, I am of the view that they constitute strong reasons for the court to conclude that this is the type of exceptional case of manslaughter which should lead the court to impose a non-custodial sentence. 63 Having regard to all those circumstances, this is what I propose to do. I do not believe that this is a case which calls for a community service order and I thus believe it is a case where the appropriate course for the court to follow is to place the prisoner on a recognizance. 64 Accordingly the order of the court is as follows:-

Pursuant to s 558 of the Crimes Act 1900, Darryl Grant Wilson is to enter into a recognizance in the sum of $5,000 without security to be of good behaviour for a period of three years. In the event of breach of the recognizance, Darryl Grant Wilson may be called up for sentence at any time. The recognizance may be entered before any justice of the peace.

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