R v Hansell

[2007] NSWSC 1136

CITATION:	R v HANSELL [2007] NSWSC 1136
HEARING DATE(S):	31 August 2007 (Submissions on Sentence)
JUDGMENT DATE :	12 October 2007
JUDGMENT OF:	Latham J
DECISION:	Shayne William Hansell, for the manslaughter of Troy Carney, sentenced to a non parole period of 2 years to date from today, 12 October 2007 to expire 11 October 2009, the additional term being one year and four months expiring 11 February 2011. Eligible for release to parole on 12 October 2009. (7 days pre-sentence custody taken into account in imposing sentence).
CATCHWORDS:	Sentence - Manslaughter - Excessive self-defence - significant degree of recklessness.
PARTIES:	Regina - Crown Offender - Shayne William HANSELL
FILE NUMBER(S):	SC 2006/2879
COUNSEL:	Crown - Mr TR Bailey Offender - Mr P Boulten SC
SOLICITORS:	S Kavanagh Solicitor of Public Prosecutions A Newson (Murphys Lawyers Inc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

12 OCTOBER 2007

2006/2879 REGINA v SHAYNE WILLIAM HANSELL

JUDGMENT

1 The offender, Shayne William Hansell, pleaded guilty to Manslaughter on 6 July 2007 in full discharge of an indictment charging Murder. The Crown accepted the plea on the basis that the offender’s conduct caused the death of the victim, Troy Douglas Carney, on 29 January 2005, that the offender believed that his conduct was necessary in defence of himself or of others, but that it was not a reasonable response in the circumstances, in that the offender used excessive force. The offence of Manslaughter carries a maximum penalty of 25 years imprisonment.

2 The offender stands to be sentenced on the basis of an agreed statement of facts. No other material relating to the objective circumstances of the offence was provided. That statement of facts establishes that on 26 January 2005, the victim and his girlfriend, Ms Picker, went to the offender’s home to see the offender’s younger brother, Kenneth Hansell. The victim was moderately affected by alcohol at the time of his arrival at about 8:15pm.

3 Kenneth Hansell and the victim consumed a number of full-strength beers over the following hour, at which time the offender arrived with his wife and their seven year old daughter. The offender consumed two glasses of wine with his brother and the victim, both of whom were on good terms and were engaging in vigorous “horseplay”. The evening continued in this fashion until about 11pm.

4 Shortly after 11pm, the offender’s wife and their daughter left the premises to buy cigarettes at a local service station. The offender, his brother and the victim went outside, then returned to the lounge-room. By this time, the offender’s brother was telling the victim to go home and the play fighting had escalated to the point where the offender’s brother challenged the victim to hit him. The victim responded by removing a bracelet he was wearing and passing it to his girlfriend, who suggested they leave. Ms Picker left the house and went to her car, expecting the victim to follow.

5 The offender’s wife and their child returned to the house. Ms Picker again urged the victim to leave and this time, the victim did leave the house, together with the offender’s brother. Both these men were heavily intoxicated at this stage. Whilst Ms Picker was seated in the car, the victim punched the offender’s brother, knocking him unconscious onto the ground. The victim then returned to the house, his shirt wrapped around his head, and stood looking into the premises while the offender made a 000 call at about 11:20pm. The offender’s wife told the victim to go, however the victim responded by pushing her and headbutting her twice in the nose. Hearing her cries for help, the offender went to her aid, exchanging punches with the victim and wrestling him to the floor.

6 Ms Picker heard screams and returned to the house, where she saw the offender holding the victim face down on the lounge, with the offender’s right arm wrapped around the victim’s neck and the offender’s body lying the full length along the victim’s back. Pressure was being applied by the offender’s forearm to the victim’s throat. Any movement by the victim was met with further pressure to the throat. The victim lost consciousness and began to make noises consistent with restrictions to his airway. Ms Picker warned the offender that his actions were capable of killing the victim but the offender maintained his grip. Ms Picker felt for the victim’s pulse and asked the offender to put the victim in the car, but the offender said he was not taking any risks and would wait until help arrived.

7 Ms Picker went outside for about five to ten minutes and when she returned, the offender’s position and his grip upon the victim had not changed. Ms Picker noticed that the victim’s fingers were going purple. Both the offender’s wife and Ms Picker could not find a pulse at that stage. The offender’s wife told the offender to place the victim on the floor and he complied. Shortly thereafter, the offender and his wife began performing CPR in an attempt to revive the victim. A call was made for an ambulance at about 11:55pm. When the ambulance arrived, CPR was continued until a pulse was retrieved, but the lengthy deprivation of oxygen resulted in significant brain injury, ultimately leading to the victim’s death three days later.

8 The post mortem examination revealed severe neck compression. A complete cessation of air for no more than three minutes was sufficient to cause irreversible damage to the brain. It is apparent that the offender maintained and, on occasions, increased his hold on the victim’s throat for a significantly longer period than three minutes, despite Ms Picker’s warning and despite objective signs, namely the noises emanating from the victim’s throat, that the victim had lost consciousness.

9 It is difficult to be precise, but it is unlikely that more than five minutes elapsed between the 000 call and Ms Picker’s return to the house to see the victim being held by the offender. Ms Picker was alerted by the screams of the offender’s wife, which co-incided with the victim’s assault upon her, almost contemporaneously with the 000 call. There is no reliable evidence before me as to the length of time during which the offender and his wife were performing CPR prior to calling the ambulance. The offender’s evidence was that he was not choking the victim for 10 whole minutes, but he conceded that he was on top of the victim on the lounge, applying varying degrees of pressure to the victim’s throat for 10 minutes. In any event, the offender was hardly in a position to accurately gauge the passage of time.

10 I cannot make a definitive finding in terms of the precise duration of the offender’s conduct causing death, but I am satisfied beyond reasonable doubt that the offender restrained the victim on the lounge for more than 10 minutes and that for much of that time, the victim’s airway was severely restricted. The offender acknowledged in his evidence that he intended to restrain the victim and that the restraint he applied was designed to restrict the victim’s air supply, albeit he did not intend to choke the victim. The offender thought that the victim represented a threat to himself and to his wife and their child, and that the victim may have been “playing possum”.

11 I accept that the offender genuinely perceived the victim as a threat, but a sober man of mature years, such as the offender, would not regard it as necessary to subdue and restrain the victim for as long as this victim was restrained. Despite the offender’s denials, I find that there was an element of punishment of the victim for the assaults upon the offender’s wife and brother. I accept that the offender did not intend to cause the harm he did, but a high degree of recklessness was inherent in this sustained course of conduct.

12 Objectively, the offence is at the lower end of the spectrum of manslaughter offences, given the very wide range of conduct encompassed by that offence. There can be no dispute that the victim was the aggressor and that the offender did not have the luxury of calm deliberation in determining what response to make to the victim’s violent assault upon the offender’s wife, and his potentially violent assault upon the offender in the presence of a seven year old child. The offender had witnessed a senseless assault upon his own brother and had good reason to think that the victim’s attentions would turn to himself and his family. That is not to diminish the worth of the victim’s life, nor the concern of the criminal justice system to ensure that those responsible for the taking of a human life are appropriately punished.

13 Appropriate punishment is of course the outcome of a synthesis of many factors, some relating to the objective circumstances of the offence, that is, what the offender did and with what intention, and some relating to the subjective circumstances, that is, matters that are personal to the offender such as age, criminal history, if any, educational, employment and family history. It is only after these factors have been considered, whilst keeping firmly in mind the principles of punishment, retribution, general deterrence, and the rehabilitation of the offender, that a sentence at law may be imposed. It is understandable that those bereaved by the victim’s death view punishment of the offender for what he objectively did to their loved one as the overriding, if not, the only purpose of criminal proceedings. But the law mandates that every judge called upon to sentence an offender takes account of, and distils, all the circumstances surrounding the commission of an offence and all the circumstances pertaining to the life of the offender. That is what the Court must do in this case, but that duty does not diminish the sympathy the Court feels for the victim’s father, sister and extended members of their family. The Court acknowledges that their lives have also been forever changed by the events of that night.

14 The offender is 31 years of age. He has an insignificant criminal history for present purposes. He was under the supervision of the probation and parole service in 1994 when he entered a three-year supervised recognisance in relation to a charge of misconduct causing bodily harm. He completed 12 months’ supervision satisfactorily.

15 The offender is the eldest of four siblings, his parents having separated when he was in his mid-teens. The offender and his sister resided with his mother whilst his two brothers remained with the father. The offender met his wife whilst at school and they married when he was 19 years of age. There had been a temporary separation shortly prior to the offence, although it appears that reconciliation has been successful and the offender intends to resume his relationship following sentence. The offender's daughter is presently nine years of age and the offender is reportedly a responsible and loving parent.

16 The offender left school midway through year 11. He was diagnosed with Attention Deficit Disorder in his early school years although his behaviour was not disruptive. He then completed a six-month pre-apprenticeship course in mechanics at a local TAFE. He has held semiskilled positions with short periods of unemployment. Over the past seven to eight years he has been employed as a floor sander and is currently self-employed in that occupation. His work ethic is described in positive terms and his skills are said to be excellent. The offender has no drug or alcohol dependencies.

17 I accept that the offender is genuinely remorseful for his actions and that he now accepts that his conduct directly caused the death of the victim. In his evidence before the Court he described himself as "devastated" and he thinks about the offence every day. Despite the presence of symptoms consistent with depression, the offender has resisted any offers of counselling and maintains that he would not resort to self harm. I note the expression of an opinion by the probation and parole officer to the effect that the service held concerns in relation to the possibility of self harm should the offender receive a full time custodial sentence. The offender himself has concerns for his own safety in jail, allegedly related to the possibility that acquaintances of the victim may also be in custody.

18 I also accept, notwithstanding the summary conviction referred to above, that the offender is a person of good character. A number of testimonials were admitted as Exhibit 1 on sentence. All of them speak very highly of the offender's dedication to his family and friends, his generally shy and timid nature and his strength of character. They also describe the anguish experienced by the offender as a direct result of his role in the victim's death.

19 I do not regard it as necessary to reflect the need for specific deterrence in the sentence to be imposed. In my view, it is highly unlikely that the offender will come into contact with the criminal justice system on any future occasion. There is however a role for general deterrence to play in this sentencing exercise. The sentence must reflect the fact that the offender significantly exceeded the bounds of reasonable conduct in the circumstances with which he was confronted and thereby caused the death of another human being.

20 The offender’s plea of guilty to manslaughter came three days before the commencement of the trial. Mr Boulten of senior counsel placed some reliance upon the fact that murder was never the appropriate charge. In my view, whether that be true or not, the offender was always capable of pleading to manslaughter and could have done so at an appreciably earlier time. I will therefore allow a discount of 15% in order to reflect the utilitarian value of the plea. I have found special circumstances on the basis that this is the offender’s first experience of gaol and that he will require close supervision whilst in custody.

21 Taking all these matters into account, I have determined to sentence the offender as follows :-

Shayne William Hansell, for the manslaughter of Troy Carney, I sentence you to a non parole period of two years to date from today, 12 October 2007 to expire 11 October 2009, the additional term being one year and four months expiring 11 February 2011. You are eligible for release to parole on 12 October 2009. I have taken account of 7 days pre-sentence custody in imposing this sentence.