R v Guiseppina Esposito

[2000] NSWSC 284

CITATION:	R v Guiseppina ESPOSITO [2000] NSWSC 284
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	SC 70093/95
HEARING DATE(S):	23/08/1999 & 25/02/2000
JUDGMENT DATE:	23 March 2000
PARTIES :	Regina Guiseppina Esposito (Prisoner)
JUDGMENT OF:	Dunford J

COUNSEL :	W. Norman (Crown) I. McClintock (Prisoner)
SOLICITORS:	Director of Public Prosecutions (Crown) David H Cohen & Co. (Prisoner)
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act.
LEGISLATION CITED:	Sentencing Act 1989, s 5(2)
CASES CITED:	R v Maguire (CCA - 30 August 1995); R v Bryant [1999] NSWCCA 181; R v Oinonen [1999] NSWCCA 310.
DECISION:	See para 21.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
DUNFORD J
THURSDAY, 23 MARCH 2000
70093/95 - R v Guiseppina ESPOSITO
JUDGMENT

1    HIS HONOUR: When arraigned on 23 August 1999 the prisoner, Guiseppina Esposito, pleaded not guilty to the murder of Maxwell Andrews at Kings Cross on 24 April 1995 but guilty to the alternative charge of manslaughter, which plea the Crown accepted in full settlement of the indictment. This arraignment followed an earlier trial where the jury found the prisoner guilty of murder but the Court of Criminal Appeal allowed an appeal by her and ordered a new trial. 2    Before me an agreed statement of facts was tendered which showed the following: On the afternoon of 24 April 1995 the prisoner went to Liverpool to collect her prescribed dose of methadone. She later went to Cabramatta where she obtained from a pharmacy 200 tablets of Rivotril containing the drug Clonazepam. At Cabramatta she met two men, Paul Ross and George Russell, who had gone to Cabramatta to buy heroin. All three travelled together by train to Kings Cross. En route she gave Ross some Rivotril tablets which he consumed. All three also drank some beer. 3    They left the train at Kings Cross station and went to The Crest Hotel nearby where the prisoner was seen speaking to various male patrons in a bar, one of whom was the deceased, Mr Andrews. No witness heard any of this conversation. After a short time Mr Andrews left the hotel and walked down William Street alone. The prisoner followed just behind him while Ross and Russell were a little way behind her. At the corner of William and Brougham Streets the prisoner was seen by Ross to put her right arm over Mr Andrews' shoulder and there was a brief struggle. Mr Andrews turned around, walked a short distance and collapsed with blood coming from a wound in his chest. Ross and Russell then left the scene and returned to the Kings Cross area, and later that evening at Kings Cross the prisoner sold two gold rings, apparently belonging to the deceased, to another person. The prisoner and Ross then bought some heroin and injected themselves. Ross apparently overdosed but was treated and recovered later that night. 4    On 26 April the police spoke to the prisoner. In her bag they found a knife and some Rivotril tablets. She said she always carried a knife as she had once been raped. In an ERISP she said she had been to Liverpool and Cabramatta on 24 April and had returned by train in the company of two men, but she claimed to have left the train at Redfern, gone to her home at Waterloo, and stayed there all night. A sample of her blood showed a high level of Clonazepam, .91 milligrams per litre of blood. 5    On 15 May 1997 Ross and Russell each pleaded guilty to one count of robbery in company of Mr Andrews. Each gave an undertaking to give evidence for the prosecution in any trial of this prisoner. Each was sentenced to two years' penal servitude. 6    Ross and Russell both gave evidence for the Crown in the prisoner's first trial. Ross' evidence was that he had seen the prisoner put her arm over the deceased's shoulder just before he collapsed with a wound to his chest. He also gave evidence of the prisoner showing him the knife and wiping it clean. The evidence of Russell was of less weight with the witness uncertain or having a vague memory of specific details. The prisoner gave evidence testifying she could not remember anything of the events of the night of 24 April 1995. 7    Professor Graham Starmer of the University of Sydney, a pharmacologist, gave evidence about the possible effect of the drugs ingested by the prisoner, particularly Clonazepam. He said that the reading of .91 milligrams was up to nine times the generally accepted toxic concentration, and one of the recognised side-effects was a form of amnesia. He had reached a tentative conclusion that she might have a passing appreciation of what was going on around her and possibly a limited appreciation of the consequence of her actions, but he would not take it any further than that. The witness Ross had since died of a drug overdose. 8    Defence counsel, Mr I McClintock, raised the possibility of a plea to manslaughter with the Crown Prosecutor in mid July 1999 after the prisoner was successful in the appeal against her conviction for murder, and the plea of guilty to manslaughter was entered at the first available opportunity. The prisoner has been in custody continuously since 26 July 1995 in relation to this matter. 9    It was the Crown case that although the prisoner may have no memory of having done so she held the knife that dealt the fatal blow to the deceased. Although affected by drugs at the time she was still mentally and physically capable at the time of the assault and the plea to manslaughter was entered by the prisoner and accepted by the Crown on the basis that holding a knife pointing at the deceased's chest was an unlawful and dangerous act. The plea to the lesser charge negatived any intention of guilt or inflict grievous bodily harm. 10    The prisoner was born on 16 December 1965. She was aged twenty-nine at the time of the offence and is now thirty-four. She was raised in Sydney of Italian parents who separated when she was young. She is one of three siblings, all of whom have had some unfavourable contact with the criminal justice system. Her father, to whom she claims to have been close, died aged fifty-three in about 1990. Her education was interrupted from time to time to visit Italy with her mother, and she left school at the age of sixteen without completing her school certificate. 11    She had a few jobs in supermarkets and completed part of a secretarial course, but in the meantime started using drugs including cannabis, amphetamines, LSD, ecstasy, cocaine and tranquillisers such as Valium, Serepax, Rohypnol, Normison and Rivotril, to which, especially heroin and tranquillisers, she subsequently became addicted. She has not worked for many years but lived on social security benefits and her life has been dominated by drug abuse and the criminal culture. She was on a methadone programme for some years up to and including the incident on 24 April 1995, but notwithstanding that she continued to abuse heroin and tranquillisers. 12    In January 1986 when aged twenty-one she was convicted of stealing and subsequently in July 1987 of self-administer prohibited drug (heroin). Since then she has had a large number of convictions mainly for stealing and like offences, no doubt committed to finance an ever-increasing and ever more expensive drug habit. 13    She was first sentenced to imprisonment in September 1987 and, on a rough calculation, between then and the current offence she seems to have spent more time in prison than at large. Prior to this offence she was last released on 27 October 1994 and at the time of the offence she was also subject to a recognisance to be of good behaviour entered into in the District Court on 25 August 1994 following breach of an earlier recognisance granted following convictions for making and using a false instrument. 14    It was the opinion of Dr Westmore, who saw her before her 1997 trial at the request of her solicitors, that the combination of methadone and Rivotril combined with alcohol and possibly cannabis would have had a significant detrimental effect on an individual's mental state resembling intoxication. He conceded the prisoner showed evidence of some antisocial personality characteristics, drug dependence and abuse; and a subsequent psychological report by the prison psychologist is consistent with Dr Westmore's opinion. 15    Whilst in custody on remand for this offence the prisoner has successfully completed a number of computer related courses, and become quite proficient in that area and also attended other workshops and training programmes. From October 1997 to October 1999 she worked as a clerk for the Manager of Industries in prison, utilising her computer skills and also engaged in telephone skills, office administration and management, and she was regarded by the manager as diligent, conscientious, honest, trustworthy and discreet. But in October 1999 urine testing showed she was again using tranquillisers whereupon she stopped her methadone treatment and told the manager in no uncertain terms that she no longer wished to work for him. I am informed from the Bar table that she has since returned to that job. 16    She has also attended drug and alcohol and psychological counselling and continues to do so but it is clear both from a psychologist's report and the Pre-Sentence Report that, although she has acquired skills to fit her for employment in the outside world, she needs strict guidelines as to what is expected of her, and clear goals to enable her to make positive changes to her lifestyle. 17    In particular I am satisfied that her rehabilitation will depend essentially on whether she has the will and capacity to overcome her multi-drug dependency. She has made some progress in this regard whilst in prison, but although one can be hopeful she will ultimately succeed, especially if she continues structured counselling and the use of support systems whilst in custody and on her release, she has not yet demonstrated that this will be so, and her attempts at rehabilitation to date have not been entirely successful. In this regard I consider that she will benefit from a significant period of conditional liberty with close supervision and the prospect of returning to prison if she has further lapses, and this constitutes special circumstances within the meaning of s 5(2) of the Sentencing Act 1989. 18    I have taken into account her plea of guilty which was indicated when the option was first offered her. I also note she was grossly affected by drugs at the time, but this is not a mitigating factor. She still claims she has no recollection of the offence, which may be the case, but the plea demonstrates contrition and remorse. However, the fact remains that manslaughter is a serious crime in any event as it involves the unlawful killing of another human being. The deceased was walking down the street and, apart from a chance meeting shortly before, was unknown to the prisoner or her co-offenders and was minding his own business. The motive for approaching him with the knife exposed was robbery to finance the purchase of further illegal heroin. The evidence, accordingly, calls for a significant sentence even taking into account the various subjective features to which I have referred. 19    I have been referred to and considered a number of earlier cases including R v Maguire (CCA - 30 August 1995); R v Bryant [1999] NSWCCA 181 and R v Oinonen [1999] NSWCCA 310, and I have also taken into account the statistics noted by the Judicial Commission. The other cases to which I was referred, I found of little relevance because the circumstances were so different. As has been pointed out previously, manslaughter takes so many different forms and arises out of so many different circumstances that sentences in other cases are of very limited value. 20 The prisoner has been in custody since 26 April 1995 and the sentence will date from that date. 21    Guiseppina Esposito, for the manslaughter of Maxwell Andrews I sentence you to imprisonment for a minimum term of eight years which shall be deemed to have commenced on 26 April 1995 and I fix an additional term of four years. The earliest date on which you will be eligible to be released on parole will be 25 April 2003. Exhibit 2 may be returned.

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Last Modified: 09/25/2000