R v Ambrosius

[2018] NSWSC 1318

Supreme Court

New South Wales

Medium Neutral Citation:	R v Ambrosius [2018] NSWSC 1318
Hearing dates:	10 August 2018
Decision date:	31 August 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Imprisonment for 6 years 9 months with a non-parole period of 3 years 6 months
Catchwords:	CRIME – sentencing – manslaughter – assault police officer occasioning actual bodily harm – offender with schizophrenia – substantially impaired by abnormality of mind – physical altercation between offender and deceased step-father – offender perceived he was being attacked – propelled deceased off balcony –manslaughter on basis of excessive self-defence –assaulted police officer while being apprehended –low-moderate risk of re-offending – special circumstances for reduced non-parole period – 15 per cent reduction for plea of guilty.
Legislation Cited:	Crimes Act 1900 (NSW) ss 23A(1)(a), 421(2) Crimes (High Risk Offenders) Act 2006 (NSW) s 25C(1) Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)
Category:	Sentence
Parties:	Regina Rodney Ambrosius
Representation:	Counsel: Mr L Carr (Crown Mr P Young SC (Offender)   Solicitors: Solicitor for Public Prosecutions Barraclough Jones & Associates
File Number(s):	2016/75590

Judgment

1. HIS HONOUR: On 12 June 2018 Mr Rodney Ambrosius was arraigned and pleaded not guilty to murder but guilty to the manslaughter of Mr Kenneth Perry on 9 March 2016 at Coomba Park. The Crown accepted the plea to manslaughter in full satisfaction of the indictment.

2. Mr Ambrosius has asked that when he is sentenced for the manslaughter his guilt in respect of an offence of assaulting and occasioning actual bodily harm to a police officer in the execution of the officer's duty be taken into account.

Facts

3. There is no dispute about the facts concerning the two offences.

Background

4. Mr Ambrosius was born in 1965 in Victoria to Elayne Perry and Max Ambrosius. They separated in 1982. In 1987, his mother and the deceased, Mr Kenneth Perry, married. Mr Ambrosius lived with them from time to time.

5. Mr Ambrosius has a history of mental illness starting in his late teens to early twenties. He has been diagnosed with schizophrenia.

6. In August 2010 his mother and the deceased moved to Binalong Crescent, Coomba Park, overlooking Wallis Lake on the Mid North Coast of New South Wales. Mr Ambrosius lived with them there at some stage.

7. In February 2016 he called his mother and told her that his car had broken down and he needed assistance. He was allowed to take up temporary residence at the house in Binalong Crescent and he occupied the spare bedroom on the upper floor. His mother and the deceased were not happy with the arrangement and Mr Ambrosius was told he could only live there while he was having his car fixed by the local mechanic. At some stage his car was brought to the house and in moving it into the garage he caused some damage to the back wall. This made the deceased extremely angry.

The day of the offences

8. On 9 March 2016 the car was operable and parked outside the home. It was booked in for its final service on 10 March and Mr Ambrosius had packed up most of his property in preparation to leave.

9. In the past Mr Ambrosius had had a good relationship with the deceased who had mostly been helpful and supportive of him financially and emotionally, although there had been occasions when the deceased became annoyed with him over little things. Ms Perry came to notice that the deceased was becoming less tolerant and would get frustrated when Mr Ambrosius helped himself to items from the shed or went downstairs where he was not supposed to go. There was never any physical altercation but the deceased had loudly admonished Mr Ambrosius. It is worth noting at this point that Mr Ambrosius was aged 50 and the deceased was aged 74.

10. This decrease in tolerance of the deceased towards Mr Ambrosius became more noticeable in the days prior to 9 March 2016. Ms Perry recommended to the deceased that he see his doctor about it. She also noticed in this period that Mr Ambrosius's behaviour had become more aberrant. He was laughing to himself inappropriately, wearing women's clothing and generally neglecting himself. He had not taken his medication, Risperidone, for six weeks.

11. At 7.45am on the day of the offences the deceased reprimanded Mr Ambrosius on the back veranda about using the downstairs toilet. There was an exchange of words after which Ms Perry spoke with her son and calmed him down. When she left for work she noticed that he was calm but the deceased remained a little agitated.

12. It is an agreed fact that Mr Ambrosius's mental state on this day had deteriorated to a point whereby his perception of reality was substantially impaired. I take it that this is intended to convey the concept encapsulated in s 23A(1)(a) of the Crimes Act 1900 (NSW):

"[A]t the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition".

The death of the deceased

13. Between midday and 1.00pm a neighbour heard Mr Ambrosius yelling at the deceased in an aggressive and argumentative tone. She did not hear the deceased respond.

14. At some point Mr Ambrosius was sitting on a chair at a table on the back veranda of the home, smoking a cigarette and listening to the radio. The deceased came from downstairs and told him to stop using the electricity and that he had to leave. He said, "You're not stopping here". He caused the chair Mr Ambrosius was sitting on to move, which led to Mr Ambrosius falling off the chair. (That description might sound strange but it is necessary in respect of significant events that I confine myself to the way they are described in the agreed facts.)

15. Mr Ambrosius, in his impaired state, perceived that he was being attacked by the deceased. A physical confrontation ensued. There was a struggle in which an ornament was knocked from a wall and a number of pot plants were knocked over. The confrontation concluded when "the offender propelled the deceased over the balcony of the veranda to his death with the intention of causing really serious injury". The agreed facts go on to say that "for the purposes of the plea it is accepted that the offender honestly believed that this conduct was necessary to defend himself, but that it was not a reasonable response in the circumstances as he perceived them". Thus, it is agreed between the parties that Mr Ambrosius's conduct amounted to manslaughter on the basis of excessive self-defence: s 421(2) of the Crimes Act.

The aftermath

16. Mr Ambrosius tidied up the veranda but after the family dog bit his hand he put the dog inside, grabbed his car key and left.

17. Ms Perry came home from work at about 3.15pm and found her husband deceased. A subsequent autopsy determined the direct cause of death was "cervical spinal cord compression and haemorrhage" caused by "cervical vertebrae fractures (C1 and C5/6)" and "blunt force trauma to top of head" which resulted from a "fall from height". The injuries were instantaneously fatal.

Assault of police officer and arrest

18. Police located Mr Ambrosius at a toilet block in a park later that afternoon. They called upon him to come out. He emerged from a cubicle and took an aggressive stance, holding a bum bag tightly in his right hand. He was seen to have a small amount of blood under his top lip and some blood and apparent injuries to his hands.

19. He walked towards the officers but he was instructed to stop and to put the bag down. He was uncooperative. There was a struggle during which he grabbed Senior Constable Hayllar's forearm and dug fingernails into her, causing a small laceration. He began thrashing both arms forcefully, hitting Senior Constable Hayllar several times. Another officer took hold of him and wrestled him to the ground with Senior Constable Hayllar. He continued struggling for a time until the officers were able to handcuff him and he started to calm down.

Statements to the police

20. When cautioned and told he was under arrest, Mr Ambrosius said, "Yeah, but I had a fight with Mr Ken Perry. We had a fight and he went over the veranda". He also said, "We argued and he went over the veranda. I'm staying at 9 Binalong. I want him charged." After being placed in the police vehicle he began ranting, "We were arguing and he went off the veranda, but it was self-defence because he hit me with a chair."

21. Later, at the Forster police station Mr Ambrosius agreed to be interviewed because, he said, "I want to tell you because it wasn't my fault". There were two formal interviews during which he spoke of self-defence. He gave a number of versions which varied as to how the incident took place.

Mr Ambrosius's background and personal circumstances

22. Mr Ambrosius did not give evidence on sentence. His case comprised the tender of a report by Dr Christopher Bench, forensic psychiatrist, dated 8 August 2018. The Crown tendered two reports by Dr Jonathon Adams, forensic psychiatrist, dated 9 November 2017 and 27 July 2018. The following information about Mr Ambrosius is derived from those reports.

23. His parents separated when he was in his teenage years. His father was aged in his eighties and passed away in March this year from a heart attack and the complications of dementia. There had been a deterioration of his relationship with his two brothers as a result of his father's will having a condition that they were to provide for Mr Ambrosius's financial security. His mother has retired. She has re-married and is living in Canada with her husband.

24. There is no suggestion of him experiencing any abuse during his formative years. He denied any history of learning or conduct problems. He left school at around the time of his parents' separation. He told Dr Adams, "I suffered with schizophrenia ever since then, in and out of mental institutions".

25. Mr Ambrosius said that he was diagnosed with schizophrenia in 1984 according to the history given to Dr Bench. When he felt mentally unwell he heard voices, had irritable feelings and got angry. He said to Dr Adams, "I must have medication otherwise I risk getting unwell". He acknowledged the benefits of remaining compliant with antipsychotic medication and noted that stopping medication and using illicit substances worsened his mental health.

26. Mr Ambrosius had been admitted to psychiatric hospitals in Victoria on about four occasions, once in the Northern Territory but never in New South Wales. His last admission was possibly in about 2013-2014 (Dr Adams said his account was unclear and inconsistent) or 2004 according to the history given to Dr Bench.

27. His employment history has included working as a kitchen hand, a "truck assistant" with the Salvation Army and as a farm hand. He told Dr Adams that he last worked delivering newspapers while living in Ballarat in about 2011-2012 and Dr Bench that his last work was as a farm hand. Prior to his arrest he was receiving a disability support pension.

28. He has had one long-term relationship; with his wife between 1990 and 2000. Mr Ambrosius said she passed away as a result of alcoholism. They did not have any children.

29. He told Dr Adams that he moved from Ballarat to Forster in 2014 and then began travelling around New South Wales "trying to find somewhere to settle down". Dr Adams said that "he initially said that he continued taking psychiatric medication on a regular basis during his travels, but his account was inconsistent". Mr Ambrosius said that he occasionally saw a general practitioner but not a psychiatrist.

30. He smoked cannabis between the ages of 16 and 30 but had not used any illicit substances since. He said it had been a long time since he had consumed any alcohol and denied any history of problematic alcohol use.

31. There is no criminal history in New South Wales. In Victoria there are some quite minor matters on record in 1989 and earlier that are of no present significance.

32. Mr Ambrosius has been held in custody since his arrest on 9 March 2016 and so his sentence should be back-dated until then. He has not incurred any disciplinary infractions in the custodial environment. There is no evidence of the custodial experience weighing more heavily upon him than it does for most other inmates. In fact, he told Dr Bench that gaol was "a fairly quiet place, with few stressors".

Mental health and the offending

33. Dr Adams' first report includes a very detailed history provided by Mr Ambrosius in relation to the offences including as to his mental health. I will not take into account anything of significance that does not accord, or conflicts with, the statement of agreed facts, including Dr Adam's reference to the contents of some witness statements.

34. He told Dr Adams that he had been in regular contact with a social worker at the Tuncurry mental health service. He had been attending there on about a weekly basis and believed he had also seen doctors at the clinic but he could not recall their names.

35. He was noted to be exhibiting signs of mental illness (e.g. thought disorder, delusional beliefs) upon being received into custody following his arrest. He gave Dr Adams an account of receiving medication (Risperidone) since then and having been transferred to the Long Bay psychiatric hospital or specific mental health areas. He had felt "well" throughout this period. He spent his time reading books, exercising and writing stories. He had occasional contact with family members but had not had any visits during 2017.

36. Dr Adams agreed with the diagnosis of schizophrenia and said that Mr Ambrosius had given an account of experiencing the "hallmark symptoms": auditory hallucinations, persecutory thinking, and disordered thought processes (thought disorder). He said that it appeared Mr Ambrosius's mental health had gradually improved during his time in custody, most likely as a result of his reported compliance with Risperidone and regular follow ups with mental health clinicians.

37. Dr Adams' opinion was that Mr Ambrosius was suffering from symptoms of schizophrenia at the time of the offending; he was suffering from significant thought disorder and disorganised behaviour. This would have had a significant impact upon his judgment, cognitive capacity, consequential thinking, and rational thought processes. On balance, Dr Adams opined that this abnormality of mind could be considered severe enough to have substantially impaired Mr Ambrosius's capacity to understand events, to judge whether his actions were right or wrong and to control himself. Accordingly, he considered that the partial defence of substantial impairment by abnormality of mind was available from a psychiatric perspective. (Meaning, I assume, that Dr Adams was conscious of s 23A(2) and not straying into the second limb in s 23A(1)(b) of the partial defence.)

38. Dr Adams concluded his first report by saying that Mr Ambrosius "requires ongoing assertive input from mental health services, both in terms of psychiatric medication and regular follow up with mental health clinicians".

Mental health and risk of re-offending

39. After it accepted the plea of guilty to manslaughter on the basis of excessive self-defence, the Crown engaged Dr Adams to provide a further report, specifically to provide an opinion as to what future danger Mr Ambrosius presents to the community in light of his underlying mental condition. Guided by his two assessments of him in 2017 and by a violence risk assessment tool (HCR-20 V3) which had certain limitations as described in his report including that it could not be used to estimate the specific likelihood or absolute probability that an individual person will commit violence in the future, Dr Adams concluded:

"In my opinion, it is reasonable to conclude that Mr Ambrosius manifests a moderate loading of historical risk factors connected with an increased risk of violence, but an overall minimal level of current risk factors pertaining to violence in the custodial setting. Nevertheless, I believe that if Mr Ambrosius is reintegrated into the community without an appropriate psychiatric management plan, he will manifest a significant violence risk."

40. Dr Adams concluded his report with recommendations as to what should occur before and after Mr Ambrosius is released into the community. I propose that his reports (and that of Dr Bench) be forwarded for the attention of the Justice Health and Forensic Mental Health Network.

41. Dr Bench interviewed Mr Ambrosius in August 2016, September 2017 and July 2018. Some aspects of the history he obtained as to his general background have been included earlier. The history he obtained pertaining to his mental ill-health is broadly consistent with that provided by Dr Adams and will not be repeated.

42. On the question of the risk of re-offending, Dr Bench considered that Mr Ambrosius was experiencing a remission of all psychotic symptomatology in the custodial environment where he has been compliant with medication. Dr Bench described it as "unfortunate" that aside from medication he had not had any other psychiatric or psychological treatment but said that he did have a reasonable understanding of a relapse prevention plan which was "imperative with regard to decreasing his risk of relapse in the future". He said:

"[Mr Ambrosius's] psychotic symptomatology at the time of the index offences had clearly been a contributing cause. In this context, a relapse of his psychiatric illness would increase his risk of recidivism."

43. Dr Bench expressed concern as to Mr Ambrosius's release from custody where in the community he will not be able to live with his mother or his brothers and would be essentially homeless. He has no established psychiatric supervision in the community and would have to develop such a new treatment plan upon release. Dr Bench said that "if he was to continue to comply with his medication and refrained from use of substances of abuse, … his risk of recidivism of violent offending behaviour would be low-to-moderate".

44. Dr Bench then set out a proposed treatment plan to mitigate the use of future violence. Participation in that plan, and abstention from drugs and alcohol "would be the most effective mechanisms to decrease his risk of recidivism". However, Dr Bench said:

"In the converse, if the defendant was to return to the use of drugs and alcohol and/or become noncompliant with his medication, this will greatly increase his risk of relapse of Schizophrenia and thus also increase his risk of recidivism."

Family victim impact statements

45. Statements by the deceased's wife, brother and two step-sons were tendered by the Crown. Kenneth Perry is described as "a gifted preacher, public speaker and raconteur" by his brother David. Ms Perry described losing her much loved husband. Bryan Ambrosius described his stepfather as a "father figure, mentor, role model, friend and someone [he] always sought advice and guidance from" because he "loved him, completely respected him and admired him". Rohan Ambrosius wrote of the loss of a man who was "an amazing person, unfailingly kind and generous, wise and gentle". The loss they have all experienced is profound but impossible to quantify. They each have my sincere condolences.

Seriousness of the primary offence

46. The maximum penalty for manslaughter is 25 years. It is an offence that can be committed in a variety of forms with no clear gradation of seriousness between them. Accordingly I do not propose to rank this offence in terms of its objective seriousness within some hypothetical range. However, I note first and foremost that manslaughter is a most serious offence in that it involves the unlawful taking of the life of a human being.

47. Manslaughter by way of excessive self-defence may occur when an offender has an intention to kill or inflict really serious bodily harm. Here, it is an agreed fact that Mr Ambrosius intended the latter. It is accepted by the Crown that he perceived that it was necessary for him to do what he did in order to defend himself but it is clearly the case that such perception was very much influenced by his substantially impaired state of mind. Mr Ambrosius accepts, nonetheless, that his response was not a reasonable one in the circumstances as he perceived them. The difference between what might have been a reasonable response and what he actual did is quite stark.

46. A further factor bearing upon the seriousness of the offence is that Mr Perry was 74 years of age. There is little information as to his physical capability but it would appear safe to assume that there was some physical imbalance favouring Mr Ambrosius.

47. The fact that he departed the scene and, literally, left his stepfather for dead would ordinarily exacerbate the seriousness of the matter but in this case it does not because of his abnormal state of mind.

48. Mr Young SC pointed to a significant number of features that can, and sometimes often do, attend an offence such as this but are absent in this case. That is not to deploy the fallacious logic of saying that an offence is less serious because it is not more serious. It is simply a matter of putting the present offence in context. Accepting that it is a serious offence, it has to be said that there are many more egregious examples of such an offence than this one. Mr Ambrosius's moral culpability is also less than it otherwise would be because of his abnormality of mind.

Other matters relevant to sentence

51. It is necessary to take into account the offence of assaulting and causing actual bodily harm to one of the two arresting police officers. It is a serious offence in its own right, carrying a maximum penalty of imprisonment for 7 years and a standard non-parole period of 3 years. There will be an increase in the sentence that would otherwise have been imposed for the manslaughter to reflect this. Such increase will be modest in the light of the Crown's acceptance that the offence was short in duration; the injury suffered was of a relatively minor nature; and there is a need to view the offence in the light of Mr Ambrosius's impaired state of mind.

52. The utilitarian benefit flowing from the plea of guilty was the subject of competing submissions. I am conscious of the full history of the matter but do not intend to set it all out. Suffice to say that he was charged with murder in March 2016 and committed for trial in November 2016. A plea to manslaughter was first offered in November 2017 but it was not accepted by the Crown. A trial was due to commence before me on 12 June 2018. On 6 June 2018 the Crown indicated acceptance of the plea to manslaughter. I propose to reduce the sentence from what it otherwise would have been by 15 per cent.

53. General and specific deterrence is always an important consideration in sentencing for homicide. Personal deterrence has a role to play in this case given the importance of Mr Ambrosius remaining compliant with his medication. Deterrence of others also has a role. However, the Crown accepts, and I agree, that the emphasis to be given to both forms of deterrence should be reduced on account of his mental condition. Denunciation will also receive less weight on account of his reduced moral culpability.

54. Mr Ambrosius should expect to receive credit for the lack of any significant record of prior convictions (and he will). Somewhat remarkably for a person beset by a serious mental illness and his at times transient accommodation arrangements in the community, he has managed to stay out of conflict with the criminal justice system for most of his adult life. In that sense it may be accepted that he has been a person of good character; a finding which the Crown suggested.

55. Both of the doctors align Mr Ambrosius's prospects of rehabilitation to supervision and compliance with an appropriate treatment plan within the community. The Crown raised a question of future dangerousness. It submitted that there should be a sentence that entails that "for a significant period, Mr Ambrosius will be subject to parole authorities with a view to the effective management of his mental health issues". Mr Young SC accepted that Mr Ambrosius's prospects of rehabilitation are "guarded" and submitted that a longer period of parole supervision would be appropriate.

56. Clearly there will be a need for him to receive close supervision initially after his release on parole and thereafter some form of supervision for a considerable period of time, probably longer than any sentence I could impose. I accept that it is appropriate to find that there are "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

57. It is not appropriate to impose a sentence that is higher within the proportionate range on account of future dangerousness. I would expect that the State Parole Authority will be careful in devising appropriate conditions that will ensure community safety before Mr Ambrosius is released on parole.

58. There is an obligation upon a court when sentencing in a case such as this to cause the offender to be advised of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its application to the offence: s 25C(1) of that Act. This was raised with Mr Ambrosius's representatives at the sentence hearing and they have undertaken to ensure he is made aware of the fact, and the possible ramifications.

Sentence

59. Convicted.

Sentenced to imprisonment comprising a non-parole period of 3 years 6 months and a balance of the term of the sentence of 3 years 3 months. The sentence is to date from 9 March 2016. The offender will be eligible for release on parole following the expiry of the non-parole period on 8 September 2019.

That is a total sentence of 6 years 9 months. Without the plea of guilty it would have been one of 8 years.

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Decision last updated: 31 August 2018