R v Allan

[2021] NSWDC 560

District Court

New South Wales

Medium Neutral Citation:	R v Allan [2021] NSWDC 560
Hearing dates:	22 March and 31 May 2021
Decision date:	31 May 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 3 years 6 months with a non parole period of 2 years 7 months.
Catchwords:	CRIME - SENTENCE - Manslaughter - excessive self-defence.
Legislation Cited:	Crimes Act 1900 (NSW): s18(1)(b)
Cases Cited:	R v Blacklidge NSWCCA unreported 12 December 1995
Category:	Sentence
Parties:	Regina (Crown) William Luke Allan (Offender)
Representation:	Mr Noll, later Ms Ratcliffe (Crown) Mr Boyd (Solicitor for the offender)
File Number(s):	2020/11296
Publication restriction:	Nil

JUDgment

1. William Luke Allan, you appear for sentence today in relation to one offence, the offence of manslaughter. This involves a contravention of s 18(1)(b) of the Crimes Act; the maximum penalty for that offence is 25 years imprisonment; there is no standard non-parole period.

2. Before proceeding further, it is appropriate that what was said by Gleeson CJ R v Blacklidge NSWCCA unreported 12 December 1995 should be remembered. The Chief Justice said:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various and the range of degrees of culpability is so wide that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.”

3. The facts surrounding your offending are contained in a document entitled Agreed Facts on Sentence. Recast by me as to style but not substance the facts can be summarised as follows.

4. As at January 2020 you were 34 years old.

5. At that time, you had a close friend whom you had known since school days, Brendan Oldfield, and as at January 2020 Mr Oldfield was 35 years old.

6. At that time, you were living in a rural property in the Yass Valley. The property was owned by Mr Oldfield’s parents. You had been living at that property for about 18 months. Mr Oldfield had also been living at that property with you but he had moved to an address in the township of Yass at about Christmas time 2019.

7.  On 11 January 2020, another close friend of yours, Joe Rolle, was killed in a motor vehicle collision. Mr Rowley was also a friend of Mr Oldfield. There is some suggestion, but no more than that, that the motor vehicle collision was not an accident but suicide.

8. On the evening of 12 January 2020, you and Mr Oldfield purchased a significant quantity of alcohol from a bottle shop in Yass. The alcohol was going to be drunk by you both to try to deal with the death of your mutual friend.

9. After purchasing this alcohol, you and Mr Oldfield went to another friend’s house. Whilst at this house, Mr Oldfield was seen to be visibly upset. He was drinking bourbon straight from the bottle.

10. After spending about 30 to 40 minutes at this friend’s house, you and Mr Oldfield then drove back to the rural property where you were living, where more alcohol was drunk.

11. Alcohol was not the only drug consumed in this period by you and Mr Oldfield. Subsequent testing showed that you had, in addition to alcohol, consumed cannabis and amphetamines and, although it seems not to have been revealed in that testing, you have admitted to also consuming methylamphetamine. Mr Oldfield, in addition to alcohol, had also consumed cannabis, amphetamines and methylamphetamine.

12. As the evening of 12 January 2020 wore on, and more alcohol and other drugs were consumed, the mood deteriorated and you and Mr Oldfield began to argue with each other in an increasingly aggressive manner. At one point, it would seem, Mr Oldfield kicked your dog.

13. Also, each of you and Mr Oldfield were making phone calls and exchanging text messages with third parties and, in Mr Oldfield’s case at least, those messages were becoming increasingly aggressive.

14. Sometime between 11.30pm and 1.15am, the arguments between you and Mr Oldfield took a tragic turn.

15. The agreed facts do not reveal how or why, but there was a point at which Mr Oldfield punched you (apparently with some force) to the right temple area of your head. He then armed himself with a knife and stabbed you to the lower right abdomen. You then took the knife off Mr Oldfield and, immediately taking hold of it, you swung your arm up, stabbing him once to the chest area. Mr Oldfield quickly died at the scene from that wound.

16. The mechanism of injury is not described with any more particularity. Clearly, however, a very substantial element of spontaneity was involved. In this regard, and on the agreed facts, I am not satisfied beyond reasonable doubt that in stabbing Mr Oldfield you intended to cause grievous bodily harm. However, through your counsel, you have agreed that you were reckless as to whether you would do grievous bodily harm to Mr Oldfield.

17. Immediately after the wounding and this almost immediate death, you contacted friends and relatives and told them what had happened. The police and the ambulance service were quickly involved - as a direct result of you contacting those friends and relatives.

18. You were arrested that day and have been in custody continuously solely referrable to that charge of manslaughter.

19. It is agreed between you and the Crown for the purposes of sentence that you knew Mr Oldfield had a history of violence, was receiving professional treatment for anger management issues, and was on bail for an offence of violence. It is also agreed that you believed it was necessary to defend yourself in the manner I have referred to.

20. But it is also agreed between you and the Crown that it was not reasonable, in the circumstances as you perceived them, to stab Mr Oldfield to the chest after he had already been disarmed by you.

21. You are, therefore, criminally responsible for the offence of manslaughter on the basis of excessive self‑defence.

22. In terms of its objective seriousness for an offence of its kind, it is below a midrange offence but it is certainly not at or toward the bottom of the range for an offence of its kind.

23. There are no additional aggravating factors.

24. Victim impact statements have been given to the Court by the family of Mr Oldfield. It is clear from those statements that his family has been devastated by his death.

25. When the sentence proceedings first commenced in Queanbeyan on 22 March 2021, I raised with the legal representatives then appearing whether the family had actually been properly informed about the facts which had been agreed between you and the Crown because the victim impact statements did not seem to acknowledge that there were in some respects for Mr Oldfield a dark side to his personality. For that reason the hearing was adjourned.

26. More victim impact statements were read to the Court today.

27. It is quite natural, human and understandable that the members of his family do not, even now, accept that there were aspects about Mr Oldfield’s life about which either they did not know or, having heard of them, are not prepared to accept. It is for that reason that I decline to engage, as the Crown has asked me to do, s 30E(3)(a) of the Sentencing Act in determining the sentence this afternoon.

28. You did not give evidence directly in the sentence proceedings. Rather, your subjective circumstances (that is, facts about you) have come to the Court through a collection of documents which is exhibit 1.

29. You are the youngest of three children born to your parents but your parents separated when you were about six months old. You were brought up after that by your mother, who “re‑partnered”. Your stepfather had a son and that son sexually abused you when you were ten to 12 years of age.

30. That sexual abuse has never been addressed or dealt with by professionals. Rather, it seems to me, you have sought to deal with it in your own way from when you were about 12 when you began drinking excessively; and from 13 when you began using cannabis - and later in your teenage years you used heroin and ultimately methylamphetamine, which is sometimes known as “ice”.

31. It is unsurprising with that long exposure to illicit drugs that you have a relatively significant criminal background - although it is not of the kind which will result in an increase in the sentence.

32. The criminal background, however, does disentitle you to the leniency which, in appropriate circumstances, can be given to a first offender. That criminal history includes: an offence of common assault in 2003 for which you received a s 9 bond; an offence in 2005 of indecent sexual assault; offences in 2014 of possessing a firearm; offences in 2016 of again possessing firearms, making a threat to kill, intentionally damaging property, and possessing cannabis; and in 2018 destroying or damaging property.

33. For the offences that were committed in 2016 you received full‑time custodial penalty.

34. Even though you have this history of untreated sexual abuse - and consequentially untreated drug abuse - you have managed to more or less be in full‑time employment.

35. But your relationships with partners has been problematic (to say the least) and in part, it would seem, there has been violence or some form of conflict in many of those relationships.

36. The absence of your father and the sexual abuse as a child has resulted in a fragile sense of poor self‑worth; and, apart from the use of drugs, there have been occasions when you have attempted self‑harm.

37. A plea of guilty was entered at the first available opportunity and there will be a discount of 25% because of it.

38. One issue that was agitated during the course of submissions this morning was whether or not you were genuinely remorseful for what had happened to your friend. The Crown made the not unreasonable submission that, ordinarily, where an offender does not get into the witness box to express remorse, the Court is entitled to regard second‑hand expressions with caution. In your case, however, I am satisfied, for the following reasons, that you are genuinely remorseful: the manner in which you behaved on the night when the police came; the early plea which did not put the family to any unnecessary distress; and the very significant comment made by the experienced chaplain when he said in his letter to the Court:

“When I first met William his concerns were more for the victim’s family and friends than for himself. In my experience in pastoral care for over 30 years this is extremely rare, more so within prison ministry. Moreover, he expressed in that first session his deep regret and sorrow for his actions and of course it would only be human to be sorry for taking the life of your friend.”

39. This is not a case, as was submitted by your counsel, where general deterrence and specific deterrence are of no application. General deterrence involves the concept of setting a sentence that will discourage others from doing what you have done. Specific deterrence involves the concept of deterring you from re-offending. Whilst, in the circumstances, those principles are somewhat reduced, they are still relevant, as is the need to encourage your rehabilitation.

40. No sentence other than a period of full‑time imprisonment is appropriate and the contrary was not submitted on your behalf. The start date of the sentence will be backdated to commence on 13 January 2020, which is the date of your arrest.

41. Except for your plea of guilty, the term of the sentence would have been four years and eight months. Because of the discount of 25%, the term of the sentence is 3 years and 6 months. Your counsel has made a submission that there should be a variation of the statutory ratio to facilitate your rehabilitation. I have decided not to accept that submission. The non-parole sentence period will be 75% of the head sentence. The period on parole will be sufficient to address your needs for rehabilitation. Therefore, the non-parole period is 2 years and seven months to date from 13 January 2020 and it will expire on 12 August 2022. There is a balance of 11 months to date from 13 August 2022 and which will expire on 12 July 2023. You will now go with the officers, thank you.

Decision last updated: 18 October 2021