R v Forbes

[2004] NSWSC 421

CITATION:	R v FORBES [2004] NSWSC 421
HEARING DATE(S):	5 December 2003 7 May 2004
JUDGMENT DATE:	7 May 2004
JUDGMENT OF:	Hulme J at 1
DECISION:	See paragraphs 134-137
PARTIES :	Regina Warren Alan FORBES
FILE NUMBER(S):	SC 70039/03; 70010/03
COUNSEL:	Crown: Ms L Wells Prisoner: Mr G Nicholson QC Mr G Halsell
SOLICITORS:	Crown: Director of Public Prosecutions Prisoner: Patricia White & Associates

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J
Friday, 7 May 2004
70039/03
70010/03

R v Warren Alan FORBES
REMARKS ON SENTENCE

1 HULME J: The Prisoner appears for sentence in respect of 2 offences of manslaughter.

2 On 15 October 2003 he pleaded not guilty to a charge that on 6 January 2002 he murdered Ross Allan Kimball but pleaded guilty to the manslaughter of Mr Kimball. The Crown indicated that it was willing to accept that plea in full discharge of the indictment. Evidence relevant to the question of sentence was given on 5 December 2003 but by agreement of the parties the imposition of the sentence was deferred pending the Prisoner’s trial in respect of the death of Andrew Hullick.

3 On 16 February 2004 a trial of the Prisoner commenced on a charge that on 3 May 2002 he murdered Andrew Hullick. On Wednesday 17 March 2004 a jury brought in a verdict of not guilty of murder but guilty of manslaughter.

Death of Ross Kimball

4 It follows from the Prisoner’s plea that, as between the Crown and the Prisoner, all the facts implicit in his plea are established. The evidence concerning the commission of the first offence is contained in a Statement of Facts which was tendered without objection and which was not the subject of challenge. In these circumstances I am entitled to regard the matters set out in that document as also established. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the Prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities – see Pilley (1991) 56 A Crim R 202 at 203-4; R v Olbrich (1999) 199 CLR 270.

5 The events dealt with in the Statement of Facts fall within a small compass. The document shows that the deceased, his wife and some friends left the Globe Hotel in Albury at closing time, about 3.30am, on Sunday 6 January 2002. The Prisoner and some of his friends including Tristan Ball, Adam Hodge and Ahmed Dibb also left the hotel at that time. The members of these groups and others were then congregated on the footpath outside the hotel. While there, the deceased accidentally bumped the Prisoner but there was no animosity from either of them at that time.

6 Mr Ball commenced arguing with the deceased over the bumping incident. The Prisoner then became involved in an argument with the deceased, culminating in an invitation by the Prisoner to go around the corner and sort it out.

7 A fight broke out between Mr Hodge and some other person and then various fights broke out amongst various groupings of about 30 patrons on the footpath. Included among those engaged in the fighting were the Prisoner, Messrs Ball and Hodge and the deceased. The Prisoner intervened in a fight between the deceased and Mr Ball. At one point while the deceased, Messrs Ball, Hodge, Dibb and the Prisoner were fighting near the median strip, the deceased was punched in the head by Mr Hodge, lost his footing and fell on the median strip. The Prisoner left this area of fighting and engaged in a fight or fights with two or three other persons.

8 While the Prisoner was so engaged the deceased, still on the ground, was fighting with and being kicked by Messrs Hodge, Ball and Dibb. At about this time either Mr Ball or Mr Hodge in the presence of the other stabbed the deceased once, fatally wounding him. They then ran from the scene. With his wife’s help, the deceased rose to his feet and, bleeding profusely, walked a little distance and then collapsed. He died from his injury.

9 The Prisoner left in his motor vehicle. Approached by Mr Ball while driving off he was asked for, and gave, Mr Ball a lift.

10 The Statement of Facts records that: “At the time of the fight the Prisoner was aware that both Tristan Ball and Adam Hodge were well affected by alcohol, had earlier used cannabis and may have been armed with a knife. When he joined in the fight that night, the Prisoner appreciated that there was a risk that Tristan Ball or Adam Hodge in those circumstances during the fight might have used a knife while fighting with others.” (sic).

11 During the sentencing proceedings Victim Impact Statements of Mr Kimball’s wife and parents were read. Those statements bear frank witness to the tragedy, the loss, the devastation which is caused by those members of the community who, in the pursuit of their own ends or standards, are quite willing to contemplate the death or injury of others. And that loss is not limited to the occasion of, in this case, Mr Kimball’s death but, as Mrs Kimball pointed out, their sons 9 and 4, will grow up for the rest of their childhood without their father and, in the words of Mr and Mrs Kimball senior, “January 6th 2002 (was) the day a part of all of us died”.

12 As I understand it, Messrs Hodge and Ball have not been tried, it may well be for lack of evidence against one rather than the other.

Death of Andrew Hullick

13 In relation to the charge involving Mr Hullick I must determine the facts relevant to the sentence to be imposed including those relevant to the Prisoner’s criminality and his subjective circumstances. In that process I am bound by the findings necessarily implicit in the jury’s verdict considered in light of the issues fought at trial but my task is not otherwise to determine what the jury decided – R v Martin (1981) 2 NSWLR 640 at 642. Sandord (1994) 72 A Crim R 160 at 194. As I observed earlier, I am required to be satisfied beyond reasonable doubt of any (other) matters I use in a manner adverse to the Prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities.

14 The evidence satisfies me that Mr Forbes left premises of Donna McInerney with whom he was, at least from time to time residing, somewhere about 2.30am that morning, saying to Ms McInerney something to the effect that he was going to “sort all this shit out with Andy”. The “shit” were accusations or complaints Andy had made to other persons that the Prisoner was having some relationship with Kim Hullick, Andy’s wife.

15 At some time thereafter the Prisoner attended at a caravan occupied by the deceased which was parked behind a house and stables at 46 Dallinger Road. At a time which was described along the lines “breaking daylight” and about 5.45am, Mr and Mrs Hillier, the occupants of the house at 46 Dallinger Road and a Mr Plunkett who was working in stables next door heard three or four shots. After a short time spent quietening some horses, Mr Plunkett went to investigate, saw a light on in the caravan and someone moving around inside but at that time took the matter no further.

16 Later that morning, at something of the order of 9.30 to 10.30am Mr Plunkett and one or more of the Hilliers looked into the caravan and saw the deceased’s body. He was lying on his back lengthwise along the floor of the caravan with his head about, on my estimate from the photos in evidence, 300 mm from the rear seat in the caravan. The police were called.

17 The only evidence as to what occurred in the caravan is that provided by ballistic, forensic and other scientific witnesses and statements and evidence by the Prisoner. To appreciate some of this evidence, some description of the caravan is desirable. Its body is approximately 6m long. Across most of its rear, i.e. the end furthest from the towbar, and extending some distance down the offside was an “L” shaped dinette. Immediately forward of that part of the dinette as was constituted by the seat which ran down the side of the caravan was a low cupboard and refrigerator. On the nearside of the van just forward of the seat that ran across the rear was an entrance door and steps. Forward of these were cupboards, a sink and a stove. Forward of the stove and fridge was what may be conveniently referred to as a bedroom. It included a double bed situate roughly midway between the sides of the van. The “head” of the bed and pillows were against the front of the van and there were two small cupboards in the rear corners of the bedroom.

18 The scientific evidence established the following. There were four shots fired in the caravan. One bullet passed through the cupboard immediately to the left of the caravan’s entrance, through the cladding on the side of the caravan and otherwise did no appreciable damage. There was an approximately circular distribution of gunshot residue round the hole made by the bullet in the cupboard, indicating that at the time the bullet which caused that hole was fired, the gun from whence the bullet came was roughly perpendicular to the side of the cupboard. This bullet was found.

19 One bullet went through a pillow at the head of the bed, through cladding at the front of the caravan and damaged a Magna motor vehicle parked nearby. Adjacent to the hole in the pillow made by the bullet was a deal of gunshot residue. This bullet also was found.

20 Another bullet entered the deceased at the top of his back between his neck and right shoulder, through one rib, through the right lung and exited through the front of his chest. Asked whether that wound would of itself cause death, Dr Sugo, a pathologist who examined the deceased, is recorded as saying, “It will eventually in people if they don’t seek medical advice may be fatal”. (sic)

21 A deal of gunshot residue from the shot causing that wound formed a semi circle below it on the deceased’s clothing. The residue above the wound was substantially less, indicative of the balance having missed the clothing and being dissipated forward of the high point of the deceased’s back.

22 The fourth shot entered the front of the deceased’s body at the lower part of his chest or top of his abdomen passing out his back somewhat lower down and some 44mm from his midline. There was no gunshot residue on the deceased or his clothing adjacent to the entry wound of this shot. This wound would have led to death within minutes

23 The gunshot residue adjacent to the holes in the cupboard, pillow and top of the deceased’s back indicates that the muzzle of the gun from which those shots were fired was, at the time of firing, between 10 and 70 cm away. The absence of residue in the vicinity of what I may call the stomach wound indicates that at the time the shot which caused it was fired, the muzzle of the gun was in excess of 70 cm away.

24 Close to the exit wound of this last mentioned bullet when the deceased was found was a bullet hole in the floor of the caravan although the bullet which passed through that hole was not recovered. Because he did not have a second hole in or mark on any fixed object other than the floor, Mr Van der Walt, a ballistics expert called by the Crown, said that he could not work out the correct trajectory of that bullet. However he did say that “the hole in the caravan floor was basically in line with the exit wound in the deceased’s lower back”.

25 Mr Van der Walt also said that that hole in the floor could have resulted from the shot which entered the deceased’s upper back or in a number of other possible ways.

26 Dr Duflou, a forensic pathologist called on behalf of the Prisoner was also questioned about the closeness of the exit wound in the deceased’s back and the hole in the caravan floor. He also asserted that there were possible explanations for this other than that the deceased was shot while lying on his back on the floor. However, and although his answers are not as clearly expressed as they might be, it seems to me that he accepted that for the hole in the floor to have been caused except in the way the Crown suggested would have involved, depending which answer one accepts, a coincidence or “a pretty big coincidence”. The Crown’s suggestion was that at the time the hole was made, the deceased’s back was on or very close to the floor and that it was immediately before passing through the floor that the bullet had exited the deceased’s back.

27 There was found a spent bullet bearing the deceased’s DNA on the double bed. All 3 bullets found were of .38 or .357 calibre. Bullets of both sizes can be fired from a .357 Magnum revolver.

28 Apart from the bullet wounds to which I have referred there was a minor laceration and bruise to the deceased’s forehead and another small bruise to the inside of one thigh. There was also a deal of stippling to his chin and lower face with more minor stippling or the like above that. The evidence made it clear that that stippling was due to his face having been in close proximity to the muzzle of a gun at the time it was discharged. If the deceased’s face was then turned, this could have been when the shot which entered the top of the deceased’s back was fired. It could have been when the shot which left residue on the pillow was fired. The possibility that the stippling was caused by one of the other two shots is sufficiently remote to be rejected. The pattern of residue around the hole in the cupboard argues against the shot which caused that also causing the stippling. The position of the entry wound in the deceased’s stomach and the absence of residue near that argues against the shot which caused that also being responsible for the stippling. The possibility of a fifth shot which left no other traces of itself is also remote enough to be rejected.

29 The crime scene examiners also found on the bed in the caravan a rifle. There were a number of bullets in the magazine and one was in the chamber. The evidence showed that the weapon was found towards the foot of the bed, on the side closest to the nearside of the caravan, pointing somewhat diagonally but with the butt end nearest the pillows. When first seen it was partly obscured by a blanket or bedding. These items did not appear as if they had been thrown on the bed. The blanket had folds in it. Evidence from Detective Elworthy which I accept was also that the rifle was located on the bottom sheet of the bed but below the top sheet.

30 The Prisoner gave evidence. It was to the following effect. He attended on the deceased principally to deliver the deceased’s share of some cannabis in the Prisoner’s possession. On the table of the dinette at the time he arrived was the 357 Magnum to which I refer in more detail below. For a time they discussed a range of topics. Then the deceased left, possibly to sell some of the cannabis. The Prisoner waited and the deceased returned after an hour or thereabouts. When the deceased re-entered the caravan he was angry and agitated. The two then argued and the deceased was yelling. The subjects of the argument included a break-in of the deceased’s caravan (which I am satisfied had occurred a few days earlier) and for which the deceased was blaming the Prisoner. The Prisoner told the deceased that he had nothing to do with the break-in, an assertion the deceased seems not to have accepted. The deceased also wanted to know what was going on between the Prisoner and Kym, the deceased’s wife. The Prisoner told the deceased that the two were just friends, a proposition the deceased did not appear to accept. From the time the deceased walked into the caravan “he was getting angrier and angrier and at this stage he was fuming”.

31 While this was going on the Prisoner remained seated at the rear of the van. For some of the time the deceased was walking up and down the caravan and for some of it he was sitting on the bed. At some stage or stages while on the bed, the deceased was putting bullets into the magazine of the rifle and had the rifle in his hands. Throughout this period, and indeed since the Prisoner had arrived at the caravan, the Magnum remained on the table.

32 Then unexpectedly, the deceased, holding the rifle, came charging at the Prisoner who rose from where he had been seated to meet the deceased. The deceased tripped, the rifle dropped to the floor, a scuffle between the two men occurred partly on the floor and then the Prisoner heard a shot fired by the deceased. The scuffle continued, the deceased fired a second shot but the Prisoner at that stage managed to wrench the pistol from which the shots had emanated from the deceased’s hand. The scuffle did not stop and the Prisoner now having control of the pistol himself discharged it. He does not remember discharging it more than once. After a short time while their fighting continued, the deceased fell onto the floor on his side, the Prisoner then rolled him on to his back.

33 The tenor of the Prisoner’s evidence is that apart from an unsuccessful effort to talk, the deceased did not move again. The Prisoner said that he moved some of the deceased’s clothing looking for bullet wounds but there is no reason to think that he moved the deceased. The Prisoner stayed in the caravan for some time contemplating the situation. He removed the rifle from the floor adjacent to the deceased putting it on the bed and a blanket on top, then picked up the revolver, phone and keys and not knowing what else to do, left. He did not otherwise tidy the caravan.

34 In evidence in chief the Prisoner said that he fired the revolver to get the deceased away from him when they were fighting and did not intend to harm the deceased. He repeated the latter proposition in cross-examination but also acknowledged that he aimed at the deceased albeit not at any particular place.

35 Evidence from a number of witnesses and from the Prisoner himself makes it clear that for the balance of the day the Prisoner expended a deal of effort in taking steps to conceal from the authorities that he had been present at the caravan. On the way home he washed his car at a car wash. He himself had a shower. He went to the house of his employer, a Mr Sedgwick, the step-father of Ms McIntyre, apparently with a view to going to work. He called at the stables where the caravan was parked purportedly looking for the deceased. He looked stunned or shocked when later Mr Sedgwick told him that the deceased had been shot. He showered again in a further effort to eliminate any gunshot residue there might be on him and had some workmates assist him in again cleaning his car. He had these same workmates clean his wallet and something between $1,000 and $2,000 in it to ensure there were no fingerprints of the deceased on those items. In an informal interview with police that night and in a formal statement made soon after he admitted having been to the caravan that night he admitted being at the van but made no admission as to involvement with his death. In his formal statement he indicated that the deceased was alive when he, the Prisoner left.

36 On 4 May when asked directly by Ms McInerney the Prisoner admitted that he had shot the deceased. Over the ensuing days or weeks he made a number of other statements to like effect to other persons. Also on 4 May the Prisoner disposed of the Magnum in some bush where, some time later, it was found in pieces. He was arrested on 29 May 2002 and has been in custody ever since.

37 There was a deal of evidence that the deceased was a man pre-disposed to violence and that the Prisoner knew this. Although I suspect that the Prisoner was exaggerating in some of his evidence in this regard I accept otherwise the evidence referred to in this and the immediately following paragraph. According to the Prisoner’s evidence he had seen or been told by the deceased of incidents where he had hit a woman over the head with a chair in the course of an argument, hit a drug customer who had not paid money owing over the head with a house brick, just gone crazy and hit over the head with a handgun his sister’s boyfriend for not treating his sister properly, that he had murdered a customer who stole speed from him and, as was the fact, been charged but acquitted of murdering that person. On Anzac Day 2002 he had stabbed someone in the face at the Newmarket Hotel probably with a table fork. According to the Prisoner he had seen the deceased with numerous guns and, after an incident in January 2002 when a shed of the deceased was burnt down, the deceased would carry a gun pretty much all of the time.

38 The Prisoner gave evidence that in early 2002 his perception of the deceased was “that when Andy got angry he could be very violent and aggressive and I thought that he was capable of anything when angry” and that “he would do anything to win a fight, whatever it takes”.

39 In that connection it should also be mentioned that there was a significant disparity in the size of the Prisoner and the deceased. The deceased weighed 77kgs and was 1.79 metres long lying down. Dr Sugo, the pathologist who conducted the autopsy, said that physically he appeared to be in good nick and well conditioned in his muscles. In evidence the Prisoner acknowledged that at the time of the deceased’s death he, the Prisoner, weighed about 90 to 95kgs, that he used to work out a lot prior to that and was then a very strong person.

40 On 2 May the Prisoner saw a text message from the deceased’s wife to Mr Peter Watson to the effect that the deceased believed the Prisoner and Mr Peter Watson had broken into his caravan and that he deceased was on the warpath. Later that morning according to the Prisoner, he raised that matter with the deceased, denying that he had been involved in the break in. The Prisoner also told the deceased of seeing the text message. The deceased rang his wife who denied sending it and the deceased told the Prisoner he believed his wife.

41 One of the issues in the trial was as to the extent of the Prisoner’s involvement with the murder weapon prior to attending at the caravan that night. It was common ground that some months before 3 May 2002 he had possession of it. He said in evidence that the deceased gave it to him a short time after the deceased’s shed burnt down. After 4 or 5 weeks Donna found it and asked or told the Accused to get rid of it. The Accused passed it on to John Sedgwick who said he had a buyer for it and who paid the Accused $1,500. A day or so later when the Accused was at Peter Watson’s house the accused saw the gun and became aware that Mr Sedgwick had passed it on to Windy.

42 On Thursday 2 May at apparently the time of the conversation about the text message from the deceased’s wife the deceased asked for the gun back. The Prisoner told him to come around after tea. Later that day the Prisoner asked Windy whether he could get the gun because the original owner wanted it back. Windy said he was selling it anyway and the Prisoner could pick it up that night. The Prisoner told Windy he was going to pay him $2,500 later. That evening the Prisoner picked up the gun from Windy’s at about 6 or 7 o’clock but didn’t check to see if it was loaded. The deceased came around at about 9.30 or 10pm that night and picked up the gun together with some other items.

43 Mr Sedgwick denied that he had ever had the gun. Mr Peter Watson gave evidence that he had received it from the Prisoner, returning it to him finally on the evening of 2 May in response to a request from the Prisoner and a statement that he had a buyer in Melbourne for the gun. Mr Peter Watson’s evidence was to some extent corroborated by evidence of a Mr Andrew Watson.

44 Further evidence tending to contradict the Prisoner’s account of events was provided by a Mr Beckton who said that about 3 weeks before the deceased’s death the deceased had approached him, said that he needed a handgun, and had offered to pay him $10,000 for one. Mr Beckton declined to assist.

45 Mention must be made also of evidence which it was suggested showed that on the night of the 2nd to 3rd May the deceased was planning to kill or abduct the Prisoner. The evidence which suggests the deceased may have had such plans is as follows. For some period prior to his death the deceased’s phone was subject to interception by the police. Records of some of the telephone and text calls and numbers were in evidence. Particularly relied on is a transcript of a phone conversation between the deceased and Mr Sawaske on 1 May 2002 wherein the words “trap” “deadly” and “big boy” are used

46 From about 4.24 on the morning of 3 May there were a number of text messages between the deceased’s mobile and that of his wife. They included the following:-

Deceased: “Wazza’s house being raided, cops everywhere”
Mrs Hullick: OK, Do they have him.

Deceased: No
Mrs Hullick: My back light has come on 3 times. Gates locked. I cant C anything. Got a blind up now.
Mrs Hullick: Do U think they will come here?
Deceased: Maybe, be careful.
Mrs Hullick: Yeh. Alls fine if they do.

47 In his caravan the deceased had a scanner on which he was accustomed to listen to conversations conducted over police radios. The Prisoner said that he had listened to the scanner that morning while waiting for the deceased to return. However, Sergeant Smith gave evidence that the places where the Accused resided at Waugh Road, and Donna McInerney’s place in Fern Avenue were not raided or the subject of any police search warrant on either 2 or 3 May 2002. I accept that evidence. There is no satisfactory reason for thinking that the text messages from the deceased’s phone that morning were not sent by him.

48 There was also evidence of text messages between the decease’s phone and phones to which a Mr Hancock had access. These were in terms:-

Deceased’s phone: “Are you there mate?”
Mr Hancock [using Mr McDonagh’s phone]: “Yes m8.”
Deceased’s phone: “I need 2 put a car out of the way, fast.Can U help”.
Mr Hancock: “Can you give me a call”.

No call was received and then there was another message from the deceased’s phone: “Can you help?” There would seem to have been another message from the deceased at 5.37 am, “Please ring 0409249087”

49 Mr Hancock did not respond. Mr Hancock said that the text messages were not in the usual form the deceased would send but having considered the forms of the messages themselves, I am not persuaded by this evidence.

50 The message “I need 2 put a car out of the way fast. Can U help” was sent at 5.29 am on 3 May. Mr Hancock said that he understood the message as indicating that the deceased meant he needed to move a stolen car.

51 The submission was that the conversation with Mr Sawatske indicated that the deceased was thinking of a deadly trap: The Prisoner at 95 kilograms fulfilled the description “Big boy”: The text messages to the deceased’s wife were a way of laying groundwork to explain a disappearance of the Prisoner, and the messages to Mr Hancock were a request for assistance to move the deceased’s car, presumably with him in the boot.

52 On the balance of probabilities I think that this evidence does indicate that the deceased at least contemplated one or other or both of the courses of action suggested by the deceased’s counsel. There is no other obvious reason for the messages to the deceased’s wife. And while in the text to Mr Hancock the reference to a car may well have been a euphemism, it is not obvious what else the deceased may have been interested in moving urgently at 5.29 am that morning. And if it was a car to which the message referred, there is no other obvious candidate than the car of the Accused which was parked in the street near 46 Dallinger Road.

53 On the other hand, unless one accepts the Prisoner’s evidence of an attack on him by the deceased, there is no evidence that the deceased put any such thoughts into action. Furthermore, the Prisoner did not suggest in evidence that he had any knowledge of such matters at the time.

54 Conflicts in the evidence to which I have referred mean that I should say something about the impression various persons mentioned made upon me. Mr Beckton was impressive and I have no hesitation in accepting what he said.

55 On the other hand, the Prisoner on his own admission, on 3 May 2002 lied and indulged in extensive steps to deceive. As a witness he did nothing to enhance his credibility in my eyes. Indeed I am satisfied that some of his evidence was deliberately untrue. For example, it is impossible, consistently with rationality, to reconcile the terms of the letter he sent the deceased’s wife with many of his answers under cross examination concerning the terms of that letter.

56 The tenor of some of the evidence of Messrs Watson cause one to doubt whether they have always adhered to the mores of society but both were far more credible than the Prisoner. That, of course, is not the test for whether they should be believed but the demeanour and evidence of each led me to think he should be, certainly on the evidence given as to the .357 Magnum. Combined, their evidence on that topic is very strong. And although I have no great regard for the evidence of Mr Sedgwick, I much prefer him as a witness to the Prisoner, particularly on the topic of possession of the Magnum.

57 And any reservations one might have had arising from the evidence of the Prisoner, putting aside for the moment the problems with his credibility, are laid to rest by the evidence of Mr Beckton. It is in the highest degree improbable that the deceased would have offered him $10,000 for a handgun if, as the tenor of the Prisoner’s evidence suggests, the deceased must have thought he could or might obtain such a weapon from the Prisoner simply by asking (at least without first exploring that possibility).

58 In the result, I am satisfied that the Prisoner’s involvement with the .357 Magnum up until 7.00 or 7.30pm on the night of 2 May when he received it from Mr Peter Watson was in accordance with Mr Watson’s evidence and that the Prisoner’s account in that respect was false and deliberately so. I am also satisfied that he gave to Mr Peter Watson as his explanation for wanting the gun that he had a buyer in Melbourne and that the Prisoner regained possession of the gun for his own purposes and not because of any request from the deceased.

59 I return to the events in the caravan. I am also satisfied that, if the deceased was contemplating attacking the Prisoner, and whether or not pursuant to a plan which involved the text messages to which I have referred, he would not have allowed the Magnum to remain on the table as the Prisoner asserts. Furthermore, if the deceased was walking up and down as the Prisoner says the deceased was, it would have been easy for the deceased to, apparently absent-mindedly, pick up the weapon. (A fortiori would this be so if the weapon was by that time one owned by the deceased.) The Prisoner does not give any evidence that the deceased attempted to do so prior to attacking the Prisoner.

60 It is inconceivable that if the deceased was contemplating, for however short or long a period, an attack on the Prisoner, he would have left a loaded gun on the table adjacent to the Prisoner.

61 Recognising that the rejection of the Prisoner’s account does not prove the opposite, I am nevertheless satisfied that the Prisoner took the Magnum to the caravan on the night or early morning the deceased died. That conclusion is pointed to by the evidence of the Prisoner’s regaining of possession of the weapon, the deceased’s reputation for violence and the fact that there were then matters of, possibly serious, disagreement between the deceased and the Prisoner – viz. the break in at the caravan, and the relationship between the Prisoner and the deceased’s wife. (I do not regard the fact that the deceased and his wife were then living apart as of appreciable significance in that connection.)

62 The probabilities do favour the conclusion that some sort of struggle occurred between the deceased and the Prisoner in the caravan prior to the deceased’s death. The photographs, and the evidence that the shots through the cupboard and pillow were fired at different ends of the caravan support this conclusion.

63 However, although I am not sure this matters, the appearance of the caravan suggest that the struggle was of limited proportions. There is somewhat less interference with the orderliness of the caravan than I would expect after a struggle by two grown men. For example, the table, which would seem not to have been bolted down seems to have remained upright and there is a bottle of Spray and Wipe or the like on the edge of the stove near the entrance to the bedroom. The presence of a videotape box on end on the cupboard on the near side of the bedroom argues against much, if anything, of a struggle in that vicinity. On the other hand, there is the fact of a shot through, and powder-marks near, the pillow.

64 But whatever be the situation in that regard, I am satisfied that the rifle at no time played any part in the events of that night which involved the Prisoner. Even if one accepted that the Prisoner might have picked up the rifle lying next to the deceased and might have placed it on the bed and might have put a blanket on top of it, I do not regard it as a reasonable possibility that the Prisoner would have placed the rifle between the sheets where Detective Elworthy found it. Furthermore to have put it there is inconsistent with the Prisoner’s account of what he did.

65 The way in which the Prisoner says he was attacked also strikes me as unlikely. It is impossible to believe that the deceased, having gone to the trouble of loading the rifle would then have charged at the Prisoner with it. To do so was not to use the bullets inserted, not to use the rifle’s inherent lethal capacity and capacity to control by fear but to bring the weapon into the reach of the Prisoner and the risk it would be taken from the deceased. And this in circumstances where, sitting on the bed facing the deceased and with the loaded rifle in his hands, the deceased was clearly in control of the situation if he had elected to exercise that control. The improbability becomes greater if one concludes that the deceased, over the period of the text messages or longer, had in mind to abduct or kill the Prisoner.

66 One must recognise the possibility that, whether or not the deceased previously had in mind to abduct or kill the Prisoner, the deceased may, under the influence of anger, simply have lost self control and rationality and attacked in the way the Prisoner suggests. However, to recognise that possibility is a long way from regarding at as a reasonable one and I do not.

67 Once one rejects, as I am disposed to do, the Prisoner’s version of events, it is not easy to form any firm view as to the course the struggle took. The bullet holes in the pillow and the cupboard, at opposite ends of the caravan, and the presence of gunshot residue adjacent to both indicates that shots were discharged at each end of the caravan and indeed in the case of the shot at the front of the caravan, when the muzzle of the gun was something very close to or exceeding, halfway along the bed. In his evidence the Prisoner had denied that he ended up (at any stage) on the bed and the state of the bed does not strike me as disorganised enough, even after allowance is made for the replacement of a blanket on the bed, to indicate that any major struggle occurred there.

68 I am however satisfied as to how events concluded. I am satisfied that the last shot which injured the deceased was that which entered the deceased’s stomach and it was fired when the deceased was in, or just possibly very close to, a prone position on the floor.

69 I should add that I recognise that this conclusion is one that the forensic and ballistic experts were not prepared to reach. I suspect the explanation for their stance was that their expertise did not justify the conclusion at which I have arrived but, be that as it may, there is nothing to suggest that they have any more experience than the rest of mankind on matters of coincidence. The reason for my conclusion lies in that area. I do not believe that coincidence can account for the proximity of the hole in the floor and the exit wound in the deceased’s back. The thought that the hole in the floor could have been caused at an earlier time and the deceased simply fall so as to bring the exit wound in his back immediately adjacent to it is simply fanciful and this whether or not the deceased was rolled over by the Prisoner.

70 I should acknowledge also that my conclusion runs counter to a concession by the Crown in its opening and evidence from a number of witnesses that they could not determine the order of shots. However, the issue of how the proximity of exit wound and hole in the floor could be explained was canvassed at the trial, my conclusion is but a logical consequence of the evidence in that regard and, conscious of the matters to which I have referred, I had my Associate write to the parties at the beginning of April raising the issue for their consideration.

71 In arriving at the conclusion I have, I have had regard also to s98 of the Evidence Act. I am not persuaded that the section has any application but, if it does, it is a reasonable inference that sub-section 1 was satisfied by the Crown brief, or, looking at the position now, by the evidence given in the trial. It is also a situation where by reason of the raising of the topic in the trial and my Associate’s letter, dispensation under s100 would be appropriate.

72 It is also appropriate to remember that the corresponding entry wound in the deceased’s stomach and his clothing in that vicinity showed no signs of gunshot residue, indicating that the shot which caused these wounds was fired from a distance of over 70 cm away. Nothing the Accused said as to the circumstances of the fight in the caravan can account for that fact.

73 The case sought to be made by the Crown was that the Prisoner had murdered Mr Hullick. The jury were given three options as to the way in which they could find a verdict adverse to the Prisoner. These were, firstly, murder based on an intent to kill or do grievous bodily harm but if, and only if, at the time the Prisoner fired a loaded gun at Mr Hullick the Prisoner did not believe his act was necessary to defend himself. The second option given to the Jury was to find the Prisoner guilty of manslaughter upon the basis the Crown had proved the intent to kill or do grievous bodily harm, failed to prove beyond reasonable doubt that at the time the act was done, the Prisoner did not believe his act was necessary to defend himself but the Crown did prove beyond reasonable doubt that the Prisoner’s act which caused death was not a reasonable response in the circumstances as he perceived them to be. The third option left to the jury was that they could find the Prisoner guilty of manslaughter upon the basis that he had committed an unlawful and dangerous act and either did not believe his action was necessary to defend himself or his conduct was not a reasonable response in the circumstances as he perceived them.

74 The conclusion at which I have arrived is that the Prisoner should be sentenced upon the basis that he had an intent to kill or do grievous bodily harm – which is a matter to which I give further attention below – that the Crown failed to prove that at the relevant time the Prisoner did not believe his act was necessary to defend himself but that the Crown did prove that his actions which caused death were not a reasonable response in the circumstances as he perceived them to be. That was the possibility urged upon me by Counsel for the Prisoner.

75 I am led to that conclusion by a number of factors. There is my conclusion that the Prisoner took the murder weapon, presumably then loaded, to the caravan. There is the Prisoner’s evidence that he aimed at the deceased and, although he also said the contrary and that he did not intend to harm the deceased, any statement the Prisoner made against his interest is more likely to be true than one in his own favour. There is the fact of 4 shots and no credible explanation for that number or the circumstances of the one which damaged the pillow. There is the fact of wounds from 2 shots and the position of the entry wound in the stomach or lower chest and the absence of powder residue near it. I do not need to rely on it for present purposes but there is also my conclusion that the wound through the stomach or lower chest was fired while the deceased was on or close to the floor. It may be noted also that the case was fought almost exclusively upon the basis of self-defence.

76 It seems to me that the Prisoner’s actions which resulted in the death of the deceased may be described as follows.

77 Knowing and believing that the deceased was a man disposed to violence, thought or at least had made accusations that the Prisoner was involved in a relationship with his wife and had broken into his caravan, the Prisoner went to confront the deceased concerning these allegations. The Prisoner took with him a loaded revolver. The fact the revolver was taken indicates at the very least the Prisoner was prepared to threaten with it – the fact that it was loaded to my mind carries the implication that the Prisoner’s state of mind at all relevant times that evening was of willingness to use that weapon, possibly if he thought it appropriate to do so but at least if he thought it necessary to do so in self-defence and that he considered such a need was at least a reasonable possibility.

78 Juries are commonly told that the issue of self defence should be looked at in the realisation that calm reflection cannot always be expected in a situation such as the Prisoner found himself in. In this case the Prisoner chose to put himself in a situation pregnant with the possibility of conflict taking a loaded revolver, with all its risks, with him. And he did so, with recent experience in the death of Mr Kimball of what weapons can do.

79 It is implicit in the combined effect of the jury’s verdict and the conclusion at which I have arrived that the Prisoner’s response, though he may have believed his act was necessary to defend himself, was not reasonable. I have wondered whether in light of the difference in the physical attributes of the deceased and the Prisoner (and to the fact that the deceased did not employ any firearm) any resort by the Prisoner to the pistol was unreasonable but in the end I have not felt able to so conclude. However, I am satisfied that, particularly in the firing of the shot which entered the deceased’s stomach, that the response was not only not reasonable but a very substantial departure from what would have been reasonable and occurred in circumstances where the Prisoner could not reasonably have thought himself in danger.

80 Furthermore, the circumstances of the firing of that shot are such that I am satisfied that the Prisoner’s intention at the time was to kill the deceased.

81 The Crown urged that I should find that it was the Prisoner who broke into the deceased’s caravan shortly before his death. It relied on a deal of circumstantial evidence arising, inter alia, from the shotting itself and on evidence from Ms McInerney. I regard her credibility as suspect in a number of areas and I do not feel disposed to lace the reliance on her evidence concerning the break in which the Crown urged, nor am I inclined to place weight on the shooting as indicating his involvement in the break in. Accordingly, I am not persuaded to the requisite standard to make the finding sought.

82 Victim Impact Statement were also read by Mr Hullick’s wife and sister. They revealed that in his death too a wife, children and his wider family had been devastated and further serve to remind a Court of the sort of loss and tragedy that offences such as those committed by the Prisoner entail.

Subjective Circumstances

83 Antecedent reports record that the Prisoner was born on either 5 March or 13 May 1972. His first recorded conviction seems to have been in or about February 1987 for stealing from a shop. In 1989 and 1990 there were four offences involving possessing, using and cultivating cannabis, and trafficking in cannabis. In 1991 and he was convicted of burglary and theft and sentenced to what is described as a “community based order” and directed to perform community work. He did not comply with the “community based order” and in 1992 was sentenced for this and further instances of burglary and theft. Later in 1992 he was again convicted of burglary and theft, some other offences of dishonesty and of possessing cannabis and amphetamines. Suspended sentences and requirements that the Prisoner reside in Odyssey House and address his drug addiction were imposed.

84 In 1993 he was convicted of reckless or dangerous driving and of possessing a dangerous article and, in respect of these offences, seems to have served his first period of imprisonment. Later in the year, in December, he was also sentenced in respect of 8 counts of armed robbery, one of intentionally or recklessly causing injury, 4 offences associated with the acquisition and possession of one or more weapons including a pistol and 2 of trafficking in cannabis and amphetamines. The effective sentence for these offences would seem to have been 63 months with a minimum term of 40 months.

85 In February 1998 he was convicted of attempted armed robbery, theft, and an offence described in the antecedent report as “robbery/assault w/intent to rob”. For these three offences a sentence of imprisonment for an effective term of 7 years including a non-parole period of 5 years was imposed, the antecedent report noting that a period of 464 days had previously been served by way of pre-sentence detention.

86 The above account is not exhaustive but it is sufficient. Almost all of the Prisoner’s convictions have been in Victoria. A report to the Victorian Parole Board from the Community Correctional Services of that state shows that the prisoner was subject to what is referred to as “Intensive Parole” from 30 September to 29 December 2001 and “parole” from 30 September 2001 to 25 September 2003. The report said that the Prisoner had successfully negotiated intensive parole remaining employed through that period and had continued to report, it would appear, until a subsequent arrest.

87 In the proceedings arising from Mr Kimball’s death a report from Duffy Barrier Robilliard, Psychologists, was tendered. The author of the report had interviewed the Prisoner in November 2003. The report indicated that the Prisoner had used drugs, particularly amphetamines, more and more heavily until his release from prison in 1996. Thereafter it was said that he has used only cannabis occasionally and in moderation. He attributed his involvement in the 1998 offences to the fact of returning to former associates and being influenced by them. In prison he has consistently held responsible and trusted jobs and has saved some thousands of dollars during the course of his previous incarceration.

88 The author opined that on the basis of psychological testing the Prisoner

“He would have extremely poor self esteem. Even though desperately wanting others to care for and guide him, he is likely to present himself in a negative and pessimistic manner, such that he would undermine sabotage the relationships that on another level he seeks to create.”

And later
“Beneath his veneer of proprietary is a highly anxious man whose interpersonal relationships are likely characterised by his being servile, self effacing, self sacrificing and otherwise allowing others to exploit him.”

89 The author also recorded that the Prisoner “conveys that he is deeply regretful that during the melee on the night in question, a man was stabbed and subsequently died. He expresses deep sorrow for the parents of the victim.

90 The Prisoner did not give evidence at the sentencing proceedings which related to the offence against Mr Kimball. I was urged however to find remorse on the basis of his plea and what was contained in the psychological report. I am not persuaded by any of these matters of any remorse which goes beyond regret for the situation he is in. He was facing a murder charge and the obvious advantages of a plea to manslaughter rather than the risks inherent in such a trial are at least as probable an explanation for his plea. As Dixon CJ made clear in Holloway v McFeeters (1956) 94 CLR 470 at 477, an inference should be drawn only if it is the most probable deduction from established facts.

91 It should be recorded also that there was tendered on the Prisoner’s behalf records showing that he has participated in some employment while in custody and has acquired a certificate in Clothing Production.

92 Favourable references were provided by 2 persons who knew the Prisoner through school, since, and through employing him. There was one from his sister and a letter from his parents speaking, inter alia, of the closeness of the family and that they are willing to support and help the Prisoner.

93 An issue arose at the sentencing hearing in December 2003 whether the Prisoner’s plea was entered at the first, or an early, opportunity. The Court records show that he was committed for trial on the charge of murder on 10 February 2003. He was arraigned in this court on 4 April when the court appointed 10 June for his trial. On 2 May that date was vacated and 13 October 2003 substituted. The matter was further adjourned until 15 October when the Prisoner was again arraigned and pleaded not guilty to murder. There was a need for Counsel appearing to look at some documents and the matter was stood down until 2pm at which stage it was suggested the Prisoner be re-arraigned and it was at that time he pleaded guilty to manslaughter.

94 Mr Nicholson QC, appearing then for the Prisoner, asserted that it was at a late stage only that the Crown case against the Prisoner took the form it ultimately did. In reply, counsel for the Crown did not dispute that suggestion but submitted that the Prisoner could have pleaded as he ultimately did as early as the time of the committal proceedings and that the plea should be regarded as late. In principle I am disposed to agree with the Crown. I do not regard the decision in R v Cardoso [2003] NSWCCA 15, as requiring any different conclusion. That case dealt with whether any discount should be allowed, not quantum as reflected in the time of the plea. Nor do I see in the fact that the Crown changed the nature of the case it proposed to present as one of significance. It does not seem to me to bear on the utilitarian value of the plea as advanced by an offender or bear on what inferences as to willingness to assist the cause of justice should be drawn.

Sentencing Proceedings on 6 May 2004

95 I turn then to evidence adduced during the sentencing proceedings arising in consequence of Mr Hullick’s death.

96 On behalf of the Prisoner, a psychiatric report from a Dr Jurek was tendered, she having seen the Prisoner during April last. She records, in part on the basis of information from the Prisoner’s parents, that the Prisoner did well at school although he had some behaviour problems for a time. He started using marijuana and amphetamines while still at school. He appears to have worked hard from a fairly early age, holding down jobs after school and weekends.

97 He was impulsive and, from an early age, 6 or 7, would steal to acquire material things. Neither assistance from friends or relatives or a psychiatrist, who diagnosed nothing wrong with the Prisoner, helped.

98 After referring to Ms Barrier’s psychological report, Dr Jurek observed that “despite normal intelligence and a reasonable eduction, he appears unable to learn from his experiences. Dr Jurek agreed with the description of the Prisoner’s personality traits as “Avoidant, depressive, dependent and self-defeating”. She said that the “Prisoner does not suffer from a serious mental illness, such as schizophrenia and can best be described as having a personality disorder with dependent and antisocial traits”.

99 The Crown tendered a deal of material providing more details of the Prisoner’s antecedents. This included material showing that the 1991 theft was of a 4 rifles and ammunition, that the failure to adhere to the community based order and work seemed to occur on [at least 7] occasions, that the weapons offences dealt with in late 1993 related to, inter alia, a double barrel sawn off shotgun, an imitation pistol and 2 double edged prohibited knives.

100 Included in the material were also the remarks on sentence made on 6 December 1993 by Judge Hassett and on 27 February 1998 by Judge Williams of the Victorian County Court. Judge Hassett’s remarks, and a Return of Prisoners Convicted at the Sittings, show that of the sentence then imposed 221 days, from 30 April to 6 December 1993 had already been served. Similar documents show that of the sentence imposed on 27 February 1998, 464 days were treated as already served.

101 Assuming the Prisoner was released at the conclusion of 40 months minimum term imposed on 2 December 1993, these records would lead to the conclusion that the Prisoner was probably released on or about 30 August 1996 and re-arrested in about late November respect of the offences for which Judge Williams sentenced him. He was thus at liberty for only about 3 months before serious re-offending.

102 A report from the Department of Justice provided to the Prosecution for the purposes of these sentencing proceedings recorded that the Prisoner’s parole after the 1993 sentences commenced on 28 July 1996 and that he was rearrested within 4 months in respect of offences of robbery and armed robbery committed on 21 and 25 October 1996. The report also observes that when assessed for parole in July 1996, Mr Forbes claimed that Mr Hullick did not have a criminal record and that “Mr Forbes possesses the skills and ability to gain skill-based qualifications”. After remarking favourably on the prisoner’s family, the report concludes:-

“To date he has failed to disclose any reasoning or possible factors contributing to his offending behaviour. The community would justifiably hold concerns with the continued offending and the increase in violence by a person who is assessed as possessing appropriate life skills and family supports to maintain a law abiding lifestyle. All previous attempts to intervene in Mr Forbes’ offending by Correctional Services in Victoria have failed to provide any insight into his behaviours to be able to identify services and strategies to assist him. Mr Forbes has also failed to access services to develop an improved self awareness.

103 I should add for completeness that although the Prisoner gave no evidence at the time of sentence and there is little else but their prior friendship on which one could base any finding orf remorse on the part of the Prisoner, human experience suggests that there must be some. At his trial the Prisoner said he was devastated by what had occurred. However whether the Prisoner’s remorse goes deep enough for him to be even serious about mending his ways is, in light of his history, entirely a matter for speculation.

Conclusions

104 The maximum sentence provided for each offence is, by s24 of the Crimes Act, imprisonment for 25 years. That maximum "is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R (1987) 163 CLR 447 - Veen v R (No. 2) (1988) 164 CLR 465 at 478.

105 The purposes for which a Court may impose a sentence are set out in s3A of the Crimes (Sentencing Procedure) Act and include ensuring an offender is adequately punished, deterrence of the offender and others from committing similar offences, protection of the community, promoting rehabilitation of an offender, making him accountable for his actions, denouncing his conduct and recognising the harm done to the victim and the community by the crime.

106 To some degree these echo, to some degree they may go beyond the factors reflected in sentencing prior to the introduction of the section but remarks of Hunt CJ at CL in Alexander (1994) 78 A Crim R 141 remain useful as giving a guide to the relevant importance and interplay of these factors.

"The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve – the protection of society, personal and public deterrence, retribution and reform. But, as the High Court in Veen (No. 2) went on to point out:

"The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

…

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.

107 The nature of the offence against Mr Kimball adds weight to the importance of general deterrence in this case. No one sitting where I do can but be conscious of the frequency with which knives and other weapons are carried, used offensively in the course of fights, and do substantial damage. And the entering into the fights, the carrying, the unsheathing (if I can use that term) and the use of the weapons are nearly all conscious deliberate acts to be, and capable of being, discouraged. I appreciate of course that the Prisoner does not stand to be punished for simply entering into the fight or for carrying of a knife. I wish merely to point out some of the background against which issues of general deterrence arise. Persons inclined or liable to fight must be discouraged from having anything to do with weapons in that connection.

108 Retribution must also loom large. As was said in R v McDonald (unreported, CCA, 12 December 1995) at p8:-

“In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crimes. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.”

109 Mr Kimball lost his life, literally everything. And as the Victim Impact Statements make clear his family lost an enormous amount also. I acknowledge the limits to which, in accordance with Previtera (1997) 94 A Crim R 76 these statements can be put – the law does not value one life more than another and Mr Kimball was the direct victim. However those statements do help to remind one of the consequences which are a common incident of manslaughter - consequences against which the community seeks protection, and when manslaughter occurs, for which it seeks justice.

110 In that connection it is appropriate also to consider what led to that loss. In the words of the Statement of Facts: “At the time of the fight the Prisoner was aware that both Tristan Ball and Adam Hodge were well affected by alcohol, had earlier used cannabis and may have been armed with a knife. When he joined in the fight that night, the Prisoner appreciated that there was a risk that Tristan Ball or Adam Hodge in those circumstances during the fight might have used a knife while fighting with others.” (sic).

111 In other words, conscious deliberate participation while contemplating the use of a knife and thus contemplating the infliction of injury on other members of the community, injury which in the context of a fight must necessarily have had the potential to be fatal.

112 I would accept that the Prisoner’s criminality is very probably not as bad as that of the person who actually inflicted the wound but, even making the assumption that that person’s offence was only manslaughter, I am not persuaded that there is a great deal to choose between them. Those whose conduct or participation is calculated to encourage others in their criminality, particularly the criminality involved in killing or wounding with the potential for killing, are not far behind their principals.

113 In the case of the manslaughter of Mr Hullick, the Prisoner had, if demonstration was needed, in Mr Kimball’s death a recent demonstration of the potential effect of weapons.

114 In many cases, where manslaughter occurs by reason of a response to attack which exceeds that which is reasonable, an offender’s criminality may in comparison with other cases of manslaughter of the same or a different type, be small. There will often be no elements of premeditation, the whole situation may be one not of the offender’s making, and the excessiveness in response may be at least in part the result of error of judgment. The occasion for retribution and any need for personal deterrence or protection of society from the offender may be slight or non-existent. In circumstances of self-defence, persons are unlikely to be able to reflect on a court’s likely response and thus general deterrence also may well have much less part to play than in other situations. That is not, of course to say, that this will always be the situation.

115 Except in at most a very attenuated way, those remarks do not apply to those who, without lawful excuse, choose to pursue a course of arming themselves, particularly arming themselves with firearms. This is so whether their arming is because of the circles in which they move, the occupations they choose to follow, or particular activities in which they engage. All such activities are the result of choice, and to deliberately put oneself in a situation where killing another human being is one of the reasonably or perhaps obviously foreseeable consequences or options, is conduct which greatly reduces any mitigating element in self defence. It is a legitimate if not necessary inference that those who carry loaded firearms do so with a view and willingness to using them.

116 The prisoner is not of course to be punished for the lifestyle he led or the company he choose, or for going to see the deceased on the night he died. He has not been charged with and therefore is not to be punished for carrying a gun. He is to be punished for killing the deceased in circumstances of manslaughter involving in circumstances of self defence an unreasonable response. Some weight must be given to the fact implicit in the jury’s verdict and my findings that the prisoner did or, having regard to the onus of proof, may have believed his act was necessary. However, in the determination of that weight, it seems to me that the prisoner’s actions in bringing about the situation have to be taken into account. Knowing of the deceased’s violent nature, knowing that there were potentially emotion charged topics to be or liable to be discussed, and in circumstances where there was no public gaze to act as any brake on the deceased giving in to his violent tendencies, the prisoner saw fit to visit the deceased, no doubt relying on his pistol for protection.

117 Furthermore, as I have said, even confining attention to the events in the caravan, in my judgment the prisoner’s actions were very substantially excessive.

118 Because of the extent to which Mr Hullick must, in light of the jury’s verdict and my conclusion as to what occurred, have contributed to the events leading to his death, I do not regard retribution as having the same significance in his case as it does in the case of Mr Kimball. However, I regard general deterrence as greatly important in the case of both offences.

119 Issues of personal deterrence, protection of society from the prisoner, recognising the limits in that regard referred to in Veen v The Queen, and rehabilitation concentrate emphasis on the prisoner himself. From whichever of these aspects one looks, the picture is beak. When he was young, his parents have obviously sought to deal with or have dealt with his problems. The courts gave him many chances. In 1987, 1989, 1990, 1991 and in 1993 sentences of other than full time custody were imposed, but the prisoner graduated to more serious offending. Even then, forty months actual custody was not a heavy penalty for eight counts of armed robbery and a series of other offences. Released within three or four months, he re-offended in similar ways. In the course of imposing a five year minimum term in February 1998, Judge Williams saw some prospects of rehabilitation, but when the prisoner was released at the end of September 2001 he chose to associate and continue to associate with Mr Hullick, whose criminal and violent nature, according to the evidence in this case, could not, as the prisoner must have known, have helped any prospect of reform. The prisoner lied to the parole authorities about that association.

120 Messrs Ball and Hodge were workmates of the prisoner One would not therefore criticise some association with them. But to continue that association outside the workplace when they were thought to be possibly in possession of one or more knives, and to join them in a fight when appreciating they might use such weapons, was not only stupid and criminal but showed a complete disregard of community mores.

121 Nor in any consideration of the prisoner’s prospects of rehabilitation can one ignore his choice to possess over a significant period the weapon with which Mr Hullick was killed. The prisoner’s past experience in the law must have made him very familiar with the way such possession would be viewed. Similar observations may be made as to the prisoner’s dealing with marijuana, about which he gave evidence. No other conclusion is open but that the prisoner refuses to learn or to accept the standards of decent society.

122 The Prisoner is a recidivist. One could hope that at some stage he will be rehabilitated, but given his past, any rational judgment is that the prospects of this occurring are remote and, although nothing is impossible and his increasing age might help, virtually nil. I record that in arriving at this conclusion I have not relied on the opinion expressed in the report from the Victorian Department of Justice. However, my conclusion obviously derives support from that report.

123 In these circumstances, considerations of personal deterrence and protection of society require a longer rather than a shorter sentence, not as punishing him again or further for his past but as bearing on the proper sentence for the offences before me.

124 There are some other matters to which I should advert. I am conscious that in my discussion of the principal factors relevant to sentencing, I have used the traditional terminology rather than section 3A of the Crimes Sentencing Procedure Act. I am satisfied that that course has not adversely affected either the Prisoner or the Crown.

125 Section 21 of that Act also lists a number of potentially aggravating and mitigating factors to which a sentencing judge must have regard. Those of any significance in the sentencing of the prisoner have been mentioned by me, albeit at times not in the language of the section, at least most of them. I do not regard it as necessary to go through the list of matters seriatim, nor do I regard it as necessary to determine whether some of the matters mentioned are aggravating or mitigating as distinct from necessarily implicit in the offence. Some matters should however be mentioned.

126 The Prisoner was on parole at the time of both offences, a matter commonly regarded as seriously aggravating. There was debate between counsel as to whether and, if so, the extent to which it might be said that the prisoner was, in terms of section 21A(3)(c), provoked. The simple answer is that, subject to the following remarks, I do not know and I doubt whether it matters. The Prisoner in evidence said that his reaction was to an attack in a form I do not accept occurred. Probably there were insults and acrimonious allegations by the deceased, but in light of my views of the prisoner’s credibility I have no confidence that they took any particular form. In any event, the prisoner did not say he reacted to these. In light of the jury’s verdict and my earlier findings, the prisoner has had some benefit in having some of the deceased’s conduct reflected in the manslaughter verdict. I am unable to conclude that there was any provocation arguing in favour of any greater benefit to the prisoner being taken into account.

Special Circumstances

127 In my view, there are no special circumstances in this case beyond the accumulation of sentences. The second sentence will be adjusted to make what I regard as an appropriate adjustment in this regard. The parole period will be sufficient, if the prisoner is sufficient about rehabilitating, to afford all reasonable assistance in that regard.

Sentences

128 Manslaughter covers such a wide variety of offending that it is difficult to talk of any general range. However, let me say at this stage of these remarks that I acknowledge that the sentences I am about to impose are, by comparison with many which have been imposed, heavy, and this even without the accumulation which must of necessity occur.

129 I do not believe the interests of general deterrence and retribution are adequately served in the case of manslaughter offences by those who, contemplating the knifing of others, join in activities where that is liable to and does occur, by sentences which fall within or remotely close to the description of a few years. Society is entitled to have the protection of great disincentives to those who would contemplate and knowingly participate in what occurred to Mr Kimball.

130 Somewhat similar considerations arise in the case of Mr Hullick insofar as the prisoner took into a situation of his own creation a deadly weapon which he was quite willing to use. Of course, had his use been a reasonable response, he would have committed no offence, but his response was unreasonable.

131 I should acknowledge also that prior to determining the sentence to be imposed on the prisoner, I have had regard to the only four decisions I have been able to find on the issue of excessive self defence since the law took its present form. One is The Queen v Trevenna and the others are referred to in the schedule to the judgment of the court in that case. I regard all of those cases as clearly distinguishable from this and involving, in terms of both objective and subjective factors, much less criminality and penalty than here.

132 My mind has vacillated over which of the prisoner’s offences is the more serious. At the end of the day I have taken the view that there is not sufficient difference to justify a difference in the sentences other than in the fact that one sentence must follow the other and only one parole period can in fact be served. In the case of both offences I propose to discount the sentences which I would otherwise have imposed by something in excess of twelve and a half per cent. There is a slight difference between the cases, but again it is marginal and not worth a differentiation.

133 The discount to which I have just referred is one which the courts require in almost all cases to be imposed as an incentive to induce pleas of guilty from offenders. Were there not such pleas, the criminal justice system would break down as the result of insufficient resources. I take the view, as the Crown urged, that the prisoner’s pleas or offers of pleas were in both cases late.

134 In recognition of the principle of totality I propose to overlap the non-parole periods of the two sentences by a period of 2 years.

135 In respect of the manslaughter of Mr Kimball, I sentence you to imprisonment for a period of 12 years, such term to include a non-parole period of 9 years, both such periods to commence on 29 May 2002.

136 In respect of the manslaughter of Mr Hullick, I sentence you to imprisonment for a period of 12 years, such term to include a non-parole period of 8 years, both such periods to commence on 29 May 2009.

137 On my calculations, you will be eligible for parole on 29 May 2017.

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Last Modified: 05/19/2004