Stewart, Wade John v R

Court of Criminal Appeal (NSW)|2009-05-19|Before: Hodgson JA, Buddin J, Price J, Johnson J

CITATION: Stewart, Wade John v R [2009] NSWCCA 152

JUDGMENT OF: Hodgson JA at 1; Buddin J at 20; Price J at 21

DECISION: (1) Leave to appeal granted. (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Sentence appeal - Manslaughter by excessive self-defence - Whether sentence manifestly excessive.

CASES CITED : R v Stewart [2008] NSWSC 563 Vuni v R [2006] NSWCCA 171

PARTIES: Wade John STEWART (Applicant) REGINA

COUNSEL: P BODOR QC (Applicant) D M L WOODBURNE SC (Crown)

SOLICITORS: Ford Criminal Lawyers (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT MEDIUM NEUTRAL CITATION: R v Stewart [2008] NSWSC 563

IN THE COURT OF CRIMINAL APPEAL CCA 2007/1797004

HODGSON JA BUDDIN J PRICE J

25 MAY 2009 STEWART, Wade John v R Judgment 1 HODGSON JA: The applicant was tried on a charge of murder before Johnson J and a jury. The jury returned a verdict of not guilty of murder, but guilty of manslaughter. The applicant was sentenced by Johnson J on 6 June 2008: R v Stewart [2008] NSWSC 563. 2 The sentencing judge sentenced the applicant to a non-parole period of seven years three months, to date from 27 July 2006 and to expire on 26 October 2013, with the balance of term of three years three months, to date from 27 October 2013 and to expire on 26 January 2017. Thus the total term was ten years six months. 3 The maximum penalty for manslaughter is imprisonment for twenty-five years: Crimes Act 1900, s 24.

Facts 4 The facts of the offence were set out by the sentencing judge, in a way that is not challenged on appeal, in pars [6] to [38] of the sentencing judgment: [6] In June 2006, the Offender entered into a shared lease arrangement for a house in Lake Rd, Port Macquarie with a friend, Tania Ross. I should mention that the Offender and Ms Ross were not in a relationship and shared the house as friends. The Offender had previously been in a relationship with Marnie Scowen which had terminated by June 2006. At the time when the Offender and Ms Ross leased the Lake Rd premises, there was an agreement between them that Ms Scowen was not to enter the premises. It is clear, on the evidence, that aspects of Ms Scowen's prior conduct had caused difficulties for Ms Ross and others so that Ms Scowen was excluded from entry to the Lake Rd house.

[7] On 18 July 2006, Ms Ross came home and heard Ms Scowen's voice. Conversation ensued between Ms Ross and the Offender in which the Offender informed Ms Ross that Ms Scowen was to attend court the following Monday (24 July 2006) and would thereafter go to Queensland. The evidence revealed that Ms Scowen remained at the Lake Rd premises from 18 to 24 July 2006.

[8] On Saturday 22 and Sunday 23 July 2006, celebrations of Ms Ross' birthday took place both in and away from the Lake Rd premises. Involved in these celebrations were Ms Ross, her partner (Mr Kain Tuffin), the deceased (Mr Sawtell who was 35 years of age), his partner (Ms Clare Williamson) and others who came and went. Evidence adduced in the trial revealed that alcohol and various drugs were used by persons in the course of these celebrations. Neither the Offender nor Ms Scowen took part in these birthday festivities.

[9] In the early hours of Monday, 24 July 2006, the party was continuing to celebrate Ms Ross' birthday with music being played in the house. A loud argument took place between Ms Scowen and the Offender in the Offender's room. According to the evidence of the Offender, Ms Scowen was upset because of loud music emanating from the party and the failure of those involved to pay regard to the Offender's request that the music be turned down. During the course of the argument, Ms Scowen threw an object which smashed a fish tank located in the Offender's room.

[10] Other persons in the house came to the Offender's room in response to the disturbance between the Offender and Ms Scowen. The deceased, Mr Sawtell, came into the room with Ms Ross and others. I am satisfied that there was some agitation on the part of Mr Sawtell and others at that time given the events which had transpired between Ms Scowen and the Offender. The Offender produced a knife (which I accept was a Bowie knife) and presented it to those who had entered the room, including Mr Sawtell. Ms Williamson's four-year old daughter was at that time asleep in another room in the house. I accept the evidence of Ms Williamson that Mr Sawtell said words to the effect "If you want to use weapons" (T115.18) to the Offender and obtained a sword from a cupboard in the house. I am satisfied that an incident then ensued in which the Offender held the Bowie knife and Mr Sawtell held the sword whilst facing each other, but that no weapon fight or other physical interaction took place between the two men using these weapons.

[11] Soon after, Ms Ross asked the Offender and Ms Scowen to leave the house. Ms Ross made a 000 call to police at 4.35 am on 24 July 2006 in which she said that she wanted Ms Scowen removed from the house and that "she's thrown something and smashed the fish tank" (Ex D).

[12] Thereafter, Ms Scowen and the Offender departed the premises. There was some dispute between the evidence of Ms Ross and the Offender concerning what precisely had been said by her and the Offender at this stage. Ms Ross' evidence was to the effect that the Offender was departing the house and would not return to live there. The Offender stated that, although he left the house with Ms Scowen, he did not intend to abandon the premises. Given that the possessions of the Offender remained at the house, it seems clear that he would return there at some time. However, it was probably not clear when and for how long the Offender would return to the house, given the heated atmosphere existing prior to the sudden departure of the Offender and Ms Scowen.

[13] The Offender and Ms Scowen had left the premises by 5.18 am on 24 July 2006, as Ms Ross made a further 000 call at that time indicating that the Offender and Ms Scowen had departed by taxi and that police attendance was no longer required (Ex F).

[14] Following the departure of the Offender and Ms Scowen, Ms Ross observed areas of damage in the Offender's room including water damage resulting from the smashed fish tank and burn marks on the floor from candles which had been lit in the room. Ms Ross and her companions packed up the Offender's possessions and placed them in bags and boxes before moving them to the front outside veranda of the house. I accept the evidence of Ms Williamson that these items were stacked neatly at that time (T116.24).

[15] When the Offender left the Lake Rd premises after 5.00 am on 24 July 2006, he had with him a push dagger - a knife with a transverse handle designed to be gripped in the fist so that the blade protrudes from between the fingers. The push dagger had a nine-centimetre blade. I am satisfied that it was designed for use as a fighting weapon. The Offender admitted in evidence that he had owned this knife for some time. He said that he carried it on him on 24 July 2006 "for safety" (T256.25). He explained that he carried it from time to time as "our families have had problems with Aboriginals in Port Macquarie and I'd received numerous threats that I was going to get bashed and I had it for safety purposes" (T256.37). The Offender said that he carried the knife "because it can be concealed … down the front of [my] pants" (T256.45). The push dagger was carried by the Offender in a leather sheath which was concealed in his trousers. I am satisfied that no person in the house was aware at that time that the Offender was taking the concealed push dagger with him when he left the house. As will be seen, it was the push dagger which the Offender used to lethal effect upon Mr Sawtell later that day.

[16] After leaving the house on 24 July 2006, the Offender sent a text message to Ms Ross containing words to the effect "I hope that copper dog is not there when I get back" (T58.15; T275.39). The Offender admitted in evidence at the trial that he sent such a text message soon after he left the Lake Rd premises and that the message referred to Mr Sawtell (T259.26).

[17] Under cross-examination, the Offender said that the description of Mr Sawtell as a "copper dog" was meant to be insulting (T275.49). He denied the suggestion in cross-examination that he had called Mr Sawtell a "copper dog" because he (Mr Sawtell) had been using his past experience as a security guard to defuse the situation earlier on 24 July 2006 after the fish-tank incident (T275-276). After initially asserting that he did not know how to explain his use of the term "copper dog" (T275.52), the Offender, when pressed under cross-examination, said "When I mean copper dog I meant it in general, because he had been busted growing hydroponics and anyone else that I know who has been busted growing hydroponics gets gaol time" (T276.8). Whatever may be the reason for the Offender's selection of this term, it is clear that this text message demonstrated a significant level of ill-feeling on the part of the Offender towards Mr Sawtell.

[18] The Offender accompanied Ms Scowen to Port Macquarie Local Court on 24 July 2006.

[19] Some time after 3.00 pm that day, the Offender and Ms Scowen returned to the Lake Rd premises. He had not given any prior notice of his intention to return at that time, let alone that he would be in the company of Ms Scowen.

[20] The Offender observed his possessions packed up and located on the outside veranda. It had been raining that day and it is likely that some of the Offender's possessions had become wet, although their location on the veranda was in a largely sheltered position. I accept that the Offender became upset when he saw his possessions on the veranda. I am satisfied, however, that the possessions were stacked neatly on the veranda at that time. Later, they were scattered onto the lawn by police when emergency access was required to the premises to treat Mr Sawtell.

[21] As the Offender and Ms Scowen approached the front door of the Lake Rd premises, a number of persons were located in the house. Mr Sawtell was seated on a chair in the lounge room. Across from him were Ms Williamson and another friend, Ms Donna Schubert. Ms Ross was in the lounge room and Mr Tuffin was also in the house. Ms Williamson's four-year old daughter was also there.

[22] The Offender entered through the flyscreen and front door, both of which were unlocked. An argument ensued between the Offender and Ms Ross. I accept the evidence of Ms Williamson that the Offender was asking Ms Ross why his belongings were out the front and that Ms Ross replied that she just wanted him out. Ms Williamson grabbed her daughter and took her to the kitchen. By that time, the Offender and Mr Sawtell were arguing.

[23] Having regard to the verdict of the jury, I am satisfied that Mr Sawtell moved towards the Offender who was, at that time, just inside the front door. According to Ms Williamson, whose evidence I accept, Mr Sawtell was angry and upset with the Offender (T172). I accept that Mr Sawtell was upset with the Offender for what he had done earlier in the morning whilst Ms Williamson's daughter was in the bedroom next door and because the Offender had returned unannounced to the house with Ms Scowen. Mr Sawtell was not carrying any weapon at this time (T119.25).

[24] I am not satisfied beyond reasonable doubt that the Offender said to Mr Sawtell at this time "Do you want a go mate?", with Mr Sawtell responding "Yeah, as long there's no weapons" (T60.51), as testified by Ms Ross. My assessment of the jury's verdict, against the background of the totality of the evidence in the trial, leads me to the conclusion that the jury did not accept Ms Ross' account of this part of the incident. I am satisfied that Mr Sawtell moved towards the Offender, probably for the purpose of preventing him from moving further into the premises and laid hands on him. Mr Sawtell was unaware that the Offender was carrying the concealed push dagger. Immediately, the two men were punching each other in a manner described, in particular, by Ms Williamson (T118, T174) and Mr Tuffin (T142).

[25] As might be expected, the descriptions of the various witnesses vary as to events during the fatal struggle. Some witnesses were anxious to leave the lounge room, in particular, to shield the four-year old girl from the fight.

[26] I am satisfied that the Offender extracted the push dagger from the sheath concealed in his trousers and used it in the course of the struggle with Mr Sawtell, striking him on some 12 occasions. According to the evidence of the forensic pathologist, Dr Nadesan, Mr Sawtell sustained 12 wounds, of which 10 were in the chest and abdomen, one on the roof of the neck and one on the left forearm. Injury No 1 penetrated the left jugular vein resulting in severe bleeding. According to Dr Nadesan, this was the fatal wound (T201.12). Of the other wounds, two were potentially fatal being an incised stab wound which had penetrated the right lobe of the liver to a depth of about 9-12 centimetres from the skin surface (T202.5) and an incised stab wound which entered the abdominal cavity and cut the spleen (T203.16). A further incised stab wound which penetrated the abdominal cavity was serious, but not potentially fatal (T202). In cross-examination, Dr Nadesan agreed that the nature of the injuries indicated that the weapon struck the victim in different angles and that some of the injuries indicated more of a slashing than a stabbing motion (T213).

[27] Dr Nadesan considered that several injuries to Mr Sawtell could be considered as "defence wounds to ward off a blow" (T204.17). It was Dr Nadesan's opinion that Mr Sawtell died very quickly and the most obvious reason for death was severe bleeding from the neck wound which severed the left jugular vein (T213.57).

[28] I accept Ms Williamson's account that Mr Sawtell fell on top of the Offender and was up against the lounge during the struggle when a picture fell down from the wall (T118). I am satisfied that Mr Sawtell fell on top of the Offender as a result of injuries he had already sustained from the Offender's use of the push dagger.

[29] I observe that photographs taken by police of the Offender on 27 July 2006 (Ex J) depicted minor injuries to him, comprising an abrasion to the right knuckle, a bruise to the left upper arm and faint abrasions to the right and left forearms. Mr Sawtell, on the other hand, had sustained the repeated wounds to various parts of his body as explained by Dr Nadesan and summarised above.

[30] The fatal interaction between the Offender and Mr Sawtell happened quickly. Those present saw profuse bleeding from Mr Sawtell's wounds.

[31] I am satisfied that the Offender was well aware that he had inflicted very severe injuries to Mr Sawtell at the time when the Offender and Ms Scowen fled the premises.

[32] Mr Sawtell was seen to pick up a glass which he used to apply pressure in an unsuccessful effort to stem the flow of blood from his wounds. He told Ms Williamson that the Offender had stabbed him (T118).

[33] At 3.29 pm on 24 July 2006, Ms Ross made a 000 call seeking urgent assistance. As it happened, a police vehicle attended the house at that time following receipt of information that there may be some drug activity occurring there (T157). Senior Constable Brunyee and Constable Williams entered the house whilst Ms Ross was making the 000 call. That call, which was played at the trial, provided a graphic and contemporaneous record of events in the house, including efforts to assist Mr Sawtell.

[34] I am satisfied that police disturbed the neatly stacked piles of the Offender's possessions on the veranda to permit access to the house by ambulance officers (T159). Unsuccessful efforts were made by ambulance officers to revive Mr Sawtell during the ambulance journey to Port Macquarie Hospital. A medical practitioner pronounced Mr Sawtell dead upon arrival at the hospital.

[35] The Offender was not affected by alcohol or drugs at the time of the offence.

[36] After the Offender fled the Lake Rd premises, he went to the home of his stepbrother in The Bowsprit, a street in Port Macquarie. According to a Crown witness, Justin Milkovitch, the Offender had blood on his shirt. The Offender told another Crown witness, Adrick Mobbs, that he had had a fight with Mr Sawtell. According to Mr Mobbs, the Offender "looked like he'd been in an argument … he looked a bit aggravated" and he "had cuts on his hands" (T188). The Offender produced the push dagger and asked Mr Milkovitch to get rid of it (T186). Mr Milkovitch threw the push dagger and sheath into bush in a park near The Jib, a street in Port Macquarie. He later took police there and the push dagger and sheath were recovered.

[37] At about 4.00 pm on 24 July 2006, Mr Mobbs contacted his roommate, Brendan Tudhope, who met the Offender later that day at Sancrox, near Wauchope. At the request of the Offender, Mr Tudhope drove the Offender to the Queensland border where he left him.

[38] Police enquiries revealed that the Offender was in Queensland. On 27 July 2006, the Offender was extradited from Queensland to New South Wales. He was charged with murder and remanded in custody where he has remained until the present time.

Reasons of sentencing judge 5 The sentencing judge was satisfied that the verdict of guilty of manslaughter was reached in this case on the basis of excessive self-defence, and not provocation (par [41]); and that the jury was satisfied beyond reasonable doubt that it was a deliberate act of the applicant that caused the death of Mr Sawtell, done with intention to kill or at least an intention to inflict grievous bodily harm (par [45]). 6 The sentencing judge gave an account of the appellant's subjective circumstances, and then referred to his offer to plead guilty to manslaughter on 7 December 2007. The sentencing judge considered that the appropriate discretionary discount on sentence for this offer was 12.5 per cent (par [67]). The sentencing judge then considered the objective seriousness of the offence. He was satisfied "this was a most serious case of manslaughter by excessive self-defence" (par [70]). He identified the use of a weapon as an aggravating factor, in circumstances where the appellant had armed himself with a concealed push dagger (par [71]). The sentencing judge noted that Mr Sawtell was a large solidly built man, but was satisfied that the applicant's use of the push dagger was "a grossly excessive response" to Mr Sawtell's actions (par [74]); and that "although some of the wounds inflicted on the deceased may be explicable as wounds caused during a struggle, the repeated use of the weapon, including the infliction of deep wounds, demonstrated a clear, repeated and grossly excessive level of violence directed by the [applicant] to the deceased" (par [76]). The sentencing judge concluded that the applicant acted with intent to inflict grievous bodily harm (par [78]). Given the nature and the number of wounds, the sentencing judge said it was "a grave case of manslaughter involving intent to cause grievous bodily harm" (par [79]). 7 The sentencing judge made the following references to previous cases: [80] The maximum penalty for manslaughter is imprisonment for 25 years: s 24 Crimes Act 1900. I have been referred to other sentencing decisions for manslaughter in the course of submissions. Comparison with sentences in other cases must be undertaken with caution: R v Trevenna (2004) 149 A Crim R 505. Matters of fact and degree arise in all categories of manslaughter with the consequence that it is impossible to establish a pattern or tariff. This applies not only to manslaughter generally, but also to cases of manslaughter by reason of excessive self-defence: R v Forbes at [135]-[136]; Ward v R (2006) 166 A Crim R 273 at 289 [71]. To the extent that cases involving manslaughter by excessive self-defence provide some guidance, I am assisted most by R v Forbes ; R v Cakovski [2005] NSWSC 1001 and Ahmad v R [2007] NSWCCA 177.

[81] In R v Forbes , Spigelman CJ observed at [133]-[134] that manslaughter is almost unique in its protean character as an offence, that a wide range of circumstances may constitute the crime and that matters of fact and degree arise in all categories of manslaughter. Of course, a constant factor is that manslaughter involves the felonious taking of a human life. This constitutes a starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case: R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995); R v Forbes at [124]. 8 The sentencing judge then determined the appropriate sentence as follows: [82] In the circumstances of the present case, I am satisfied that the objective gravity of the crime was of a high order. Grossly excessive self-defence was involved. The Offender was armed with a concealed weapon designed for fighting purposes. He resorted to it, in the context of self-defence, thereafter inflicting multiple wounds to the deceased.

[83] The Offender's record of prior convictions for offences of violence does not assist him on sentence, although I am not persuaded that the record of offences constitutes an aggravating factor for the purpose of s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999.

[84] I take into account in the Offender's favour his offer to plead guilty to manslaughter in the manner referred to earlier in these remarks.

[85] With respect to remorse, the Offender fled the scene and took immediate steps, involving others, to dispose of the push dagger and leave the State. None of this assists the Offender on the issue of remorse. It was not until his counsel raised an offer to plead guilty to manslaughter on 7 December 2007 that the Offender took any step involving an acceptance of criminal responsibility for Mr Sawtell's death. I accept that there is some evidence of recent remorse on the Offender's part, although it is mixed with an element of self-justification extending beyond what is truly available to the Offender on the jury's verdict: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The Offender's explanation at trial of his description of Mr Sawtell as a "copper dog" in the text message does not assist him on the issue of remorse.

[86] I accept that the Offender has reasonable prospects of rehabilitation, in particular given steps he has taken in custody so far to improve his education. However, some caution must be exercised in making this assessment given the Offender's superficial response to earlier efforts by way of supervision by the Probation and Parole Service.

[87] I find special circumstances for the purpose of s 44 Crimes (Sentencing Procedure) Act 1999 by reference to the need for an appropriate level of management in the community to aid the Offender's rehabilitation upon release and matters raised in the psychologist's report. However, the adjustment of the ratio will not be substantial because I consider that the Offender should not have the opportunity of serving any lesser period in custody than the minimum term I am about to impose.

[88] The sentence to be imposed must reflect the objective gravity of the Offender's crime and ensure that the Offender is adequately punished for the offence: s 3A(a) Crimes (Sentencing Procedure) Act 1999. An element of both general and specific deterrence is particularly important in this case given the Offender's carrying and use of a concealed weapon: s 3A(b). The sentence must also have regard to the Offender's subjective circumstances and prospects of rehabilitation.

[89] After applying the discount of 12.5%, I am satisfied that a head sentence of 10 years and six months with a non-parole period of seven years and three months ought be passed. The sentence should date from 27 July 2006 when the Offender was taken into custody for this matter.

Grounds of appeal 9 The applicant has sought leave to appeal on the following grounds: (1) It was erroneous to conclude beyond reasonable doubt that because the jury had found a verdict of manslaughter by way of excessive self-defence that the jury found that the applicant must have held an intention to kill or to inflict grievous bodily harm upon the deceased. (2) An unjustifiably harsh sentence was imposed for like offences by like offenders. The trial judge mistakenly assessed the culpability of the applicant more gravely than the objective facts warranted. 10 Only the second ground was pressed. Mr Bodor QC for the applicant accepted that there was no error in the primary judge sentencing on the basis that the applicant had intended to inflict grievous bodily harm.

Submissions on appeal 11 Mr Bodor provided the Court with a schedule setting out a brief account of a substantial number of New South Wales cases in which offenders had been convicted of manslaughter on the basis of excessive self-defence; and he submitted that the sentence passed in this case was outside any range indicated by those cases, and was manifestly excessive. 12 Mr Bodor submitted that the sentencing judge's statement that this was a most serious case of manslaughter by excessive self-defence was suggestive of a finding that it was in the worst category; and it was a more grave assessment of culpability than the facts warranted. 13 Mr Bodor submitted that the offence occurred in a fight which was very brief, and that the wounds were inflicted in a flurry of activity during the progress of that fight; and that the primary judge did not articulate what had led him, in these circumstances, to take as much as twelve years as an appropriate starting point before applying the 12.5 per cent discount.

Decision 14 In my opinion, as submitted by the Crown Prosecutor, it is significant that the sentencing judge had heard the evidence at the trial, and thus was in an advantageous position to assess the seriousness of the matter. In my opinion, none of the expressions by the sentencing judge as to the seriousness of the offence and the culpability of the applicant can be considered inappropriate or successfully challenged on appeal. 15 Although, as Mr Bodor submitted, the wounds were effected in the circumstances of a struggle, there is no basis for questioning the sentencing judge's conclusion to the effect that the infliction of the number of wounds and the character of at least some of these wounds demonstrated a clear, repeated and grossly excessive level of violence directed towards the deceased, with intent to inflict grievous bodily harm upon him. Also relevant to the objective seriousness of the offence was that the applicant had secretly armed himself with a concealed push dagger, which was itself a deadly fighting weapon. 16 In submissions, the Crown Prosecutor referred to Vuni v R [2006] NSWCCA 171 at [33], where Hoeben J (with whom Tobias JA and James J agreed) said this: [33] To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" ( Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. ( Markarian v R [2005] HCA 25 at [26]-[28]). 17 I would adopt this, and I would add that it is particularly pertinent in the case of manslaughter, where (even in relation to one class of manslaughter, such as manslaughter on the basis of excessive self-defence) circumstances and criminality can vary enormously, and the assessment of these circumstances and of the criminality is very much a matter for the judgment of a sentencing judge. 18 In my opinion also, it is very difficult to extract a relevant range from the schedule provided by Mr Bodor; and to the extent one can discern any kind of a range, I am not satisfied that the sentence imposed has such a relationship to it that it can be said that the sentence was manifestly excessive. 19 In those circumstances, in my opinion the following orders should be made: (1) Leave to appeal granted. (2) Appeal dismissed. 20 BUDDIN J: I agree with Hodgson JA. 21 PRICE J: I agree. **********

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Judgment (59 paragraphs)

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Cases Cited (6)