R v Jarrod Mitchell

[2016] NSWSC 1855

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Jarrod Mitchell [2016] NSWSC 1855
Hearing dates:	12 & 13 December 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Common Law
Before:	Adams J
Decision:	The offender is sentenced to an overall term of 3 years and 6 months imprisonment commencing on 1 March 2016 with a non-parole period of 2 years ending on 28 February 2018.
Catchwords:	Sentencing – Manslaughter – Excessive self defence
Legislation Cited:	s 44, Crimes (Sentencing Review) Act 1999 (NSW)
Category:	Sentence
Parties:	The Queen Jarrod Mitchell
Representation:	Counsel: P E Barrett (Crown) A Moen (Defendant)   Solicitors: Office of the Director of Public Prosecutions (Crown) Mallinson + Rake Lawyers (Defendant)
File Number(s):	2015/87829
Publication restriction:	None

Judgment

Introduction

1. On 23 March 2015 at Rosebery Jarrod Mitchell killed Alex Bargiatakis. (For ease of reference, I refer to the offender, the victim and the other witnesses – all of whom were young men – by their first names, which is how they spoke of each other. Of course, I mean no disrespect by so doing.) Jarrod was charged on that date with murder, for which he was committed for trial. Ultimately, he was arraigned on an indictment charging him with murder and, in the alternative, with the offence of manslaughter. On 12 December 2016 he pleaded not guilty to the charge of murder but guilty to the charge of manslaughter. The Crown accepted this plea in full discharge of the indictment. The basis for the Crown’s acceptance of the plea is its acceptance (in the circumstances, entirely justified) that Jarrod killed Alex in self-defence, using force which he believed was necessary to defend himself but, which was, as it turned out, excessive. As will be clear from the circumstances in which Alex came to be killed, it may be doubted that the force used by Jarrod, which tragically resulted in Alex’ death, was indeed unreasonable and I have considered whether, in light of his evidence about what happened, which was not the subject of significant dispute, the plea should be allowed to stand. However, this is a matter which Jarrod is entitled to admit by virtue of his plea and, accordingly, although I have worrying doubts about the question, I have decided that it is appropriate to permit the plea to stand. It follows that Jarrod must be sentenced on the basis that, indeed, the force he used was, in all the circumstances, unreasonably excessive as an objective matter, although he thought it was necessary to defend himself from Alex’ attack upon him.

2. Jarrod was arrested on 23 March 2015 and remained in custody until 27 July 2015 when he was granted bail, remaining on bail until 3 July 2016 when he was returned to custody and he has been in custody ever since. It is agreed that the entire period of his custody, a total of 296 days, must be taken into account, one way or another, in his sentence.

3. On 14 November 2016 the offer was made to plead guilty to manslaughter in satisfaction of the indictment. I intend to allow a discount in the order of 10% for this plea, which avoided the need for a trial that may well have taken two weeks or so.

Facts

4. A Statement of Agreed Facts was tendered according to the usual practice. Some issues were left outstanding, of which perhaps the most potentially significant concerned the terms of a brief explanation about what happened given by Jarrod to Mr Anthony Myint (also a resident of the house where the events took place) shortly after the incident. Since both Anthony and Jarrod gave evidence about this conversation, I have felt it necessary to deal with the differences although, in light of the Crown Prosecutor’s (correct) approach to the important issues, as demonstrated both by his cross-examination of Jarrod and his submissions, nothing of significance ultimately turns on the matter. In respect of the outstanding issues, the Crown called Anthony and James Kaye, a friend of both Jarrod and Alex, essentially to permit Ms Moen, counsel for Jarrod, to cross-examine them. For her part, Ms Moen called him and his mother to give evidence.

5. Before dealing with their evidence in detail it is useful to set out some background. Jarrod resided in a community housing refuge with Anthony (and, I gather, some others, whose identities are irrelevant). Each had their own bedroom but, as I understand it, shared a kitchen, spare or games room and laundry. Anthony and Jarrod had known each other for about two years. Jarrod and Alex were friends, the latter living a few blocks away with his paternal aunt and her young children. He would often go to Jarrod’s home and “hang out” with him.

6. On the morning of 23 March 2015 Alex awoke and assisted his aunt to get her children ready for school. He had had trouble sleeping that night. At about 3am his aunt had seen him in the backyard having a smoke. She asked him, “What’s wrong?” He responded, “I’m angry” but would not explain, saying, “Don’t worry, I can’t sleep”. Alex was picked up from the nearby train station by his employer Mr Fotinopoulos (who was also his cousin) and they travelled together to work on a demolition site. Mr Fotinopoulos noticed that Alex was on edge and asked him, “What’s wrong, are you all right, you seem on edge?” Alex replied, “No, I’m not alright. I’m punching-on tonight”. Mr Fotinopoulos asked, “Who are you punching on with?” and was told it was Jarrod. When asked why, Alex said, “Don’t worry, he is being a fuckwit – Jarrod rang me in the morning and offered him [sic] out [meaning calling him to fight]”. The Agreed Facts noted the denial of Jarrod that he rang Alex or suggested, in any way, that Alex should fight him. In support of this denial there are no calls recorded at this time on the telephones of either Jarrod or Alex. I was not invited by the Crown Prosecutor to disbelieve the accused’s denial.

7. Over the course of the day, calls were made from Alex’ mobile phone to Jarrod’s three times: at 1:16pm of 26 seconds duration; a text message at 5:07pm stating, “Answer your fone brother”; and another text message at 5.38pm stating, “C u soon”. Mr Fotinopoulos attempted to persuade Alex not to go to fight with Jarrod and Alex promised his cousin that he would not “Go down” (I take it, go down to meet Jarrod). At the end of the work day, Alex asked to be dropped off at the train station. He appeared to be “pumped” and “very agitated”. Mr Fotinopoulos said to his cousin as he departed, “Don’t go” to which the latter replied, “No, don’t worry about me”. Alex was seen to get on another train at a different station at about 6.25pm. A witness described him as loud, up tempo, flustered and at one point, aggressive about something. During their conversation they spoke about how people spoke poorly about other people, yet still hang out with them.

8. Alex alighted from the train at Mascot station and went home and spoke with his aunt. She asked him why he was awake and angry in the early hours. Alex told her that he was “with the guy around the corner” (meaning Jarrod) and other guys when “the guy around the corner” was acting smart towards him and putting him down in front of the other guys. Alex told his aunt that he called this guy 36 times and he would not answer his calls. (The Agreed Facts state that this is not supported by the call charge records on his phone. They do show, however, that he texted or called Jarrod 10 times between 1.16pm and 8.09pm.) Alex told his aunt that he wanted to go over to Jarrod’s place and “talk to him”. She told him not to go over and to let it go. He responded that he would not go over and would instead go to a hotel and play the poker machines. Regrettably this did not occur. He then left his aunt’s residence.

9. At about 7.40am on the morning of 23 March 2015, Anthony left the residence to drive to work and noticed that the door to Jarrod’s bedroom was closed.

10. A Mr Eamon Carroll, who was a friend of both Jarrod and Alex was in the company of a friend of his known as Bati on the evening of 23 March 2015 at about 6:30pm, driving home, when he received a call from Jarrod to come over. Jarrod mentioned that Alex had been hanging around at the front of the house. Eamon and Bati drove to the house and went to the front door. Eamon knocked and Jarrod let both of them in. They followed Jarrod into the house, up a short hallway, and then went to the spare room used for games, where they played computer games. After about 10 minutes they heard knocking at the front door and Alex yell out, “Jarrod, Jarrod”, and “Jarrod, open up”, “I know you are there, open up”. This was said repeatedly. Alex’ voice was angry and loud. Jarrod said, “Don’t worry, just pretend like he’s not here”. Then Jarrod’s telephone rang and the name “Alex” came up on the screen. The telephone was on the table but Jarrod did not respond. After two or three minutes’ silence, Alex sent three text messages, the first at 7:51pm which read, “open the door”, the second, two minutes later which read, “come outside brother”, and the third, another two minutes later, which read “come outside u know how to scream like a hard cunt”. A few minutes later, the knocking started again on the back of the house. Again, Alex was screaming, “Open up”. All three men got up and walked into the kitchen where they could see Alex through the security screen. He said “I know youse are in there”. Jarrod turned off the kitchen light and said, “Pretend like he’s not there”. At 8:07pm Alex sent yet another text message saying, “if u have half a fucken testical you’ll come outside brother” and, half a minute later, another message stating, “I’m out here by myself”, immediately followed with another message, “what kind of fucken bitch are u bro?” A minute later he sent another message, “come outside so I can talk to u like a man stop acting like a fucken woman”.

11. There can be no doubt that Alex wanted to fight Jarrod, nor that Jarrod was not interested in fighting him. He was entitled to remain unmolested and secure in his own home. On no possible rational basis could it be suggested that his refusal to respond to Alex’ threats and taunts was provocative. Alex’ persistent conduct demonstrated not only anger and aggression but was also irrational. It would cause any reasonable person to be very concerned about what might happen if Alex got access to the house.

12. Jarrod, Eamon and Bati went back to the games room and resumed playing a computer game. The knocking on the door stopped, there was silence. No one spoke. Bati thought Jarrod looked angry, inferring this because he was just staring at the screen not saying anything and he felt the “vibe” coming from him “like he was angry”. However, he had never met Jarrod before and had not seen him do anything that displayed anger. Having regard to Alex’ behaviour, one could not doubt that Jarrod, who was being threatened and insulted, had every right to feel anger, but I would not rely on Bati’s evidence to draw this conclusion. Be that as it may, Barti felt uncomfortable and said to Eamon, “Let’s go, I want to get out of here”. Eamon agreed and they got up, Eamon telling Jarrod that they were leaving. He did not really respond except to say, “Right”. Bati did not think that he looked scared. Again, this opinion cannot be relied on to draw any inference one way or another.

13. Eamon and Bati left the house by the front door. It was dark. They walked onto the footpath and made their way to their vehicle. As they were approaching it, they heard a voice call out “Eamon”. They looked over and saw Alex running towards them, recognising him when he was a few metres away. He looked angry at first, but then his mood switched and he started smiling. He slowed down and put his hand out to shake Bati’s hand and said, “How are you man?” He shook Eamon’s hand and said something like, “We had an argument yesterday. I want to see him”. Eamon responded, “I don’t know what’s going on between you two but he doesn’t want to see ya, leave it a few days and you’ll sort it out”. Alex appeared to be “very energetic”, “100 miles an hour”, “hyped up”. It is tragic that he did not take Eamon’s advice. Eamon and Bati then drove away.

14. At about this time, Anthony returned from work in his vehicle, turned into the street and saw Alex on the road across the street from his house talking to some people in a car – obviously enough, Eamon and Bati. His window was down and he slowed down as he drove past Alex, who said, “Hello” and shook his hand from outside the window. Anthony drove on and parked his vehicle several houses up along the street and walked back towards the house. Alex was standing on the footpath just outside. He could smell that he had been drinking alcohol. He appeared to be angry, was breathing heavily, and puffing his chest out. He and Anthony had a short conversation -

Alex:      Hey Anthony how’s work?

Anthony:   Yeah, same old

Alex:      Can you let me in your house, I need a word with Jarrod?

Anthony:   What’s going on?

Alex:      Sometimes people get a bit cranky

Anthony:   Normal people things, you know.

Anthony agreed to let Alex into the house, as he thought it was just a normal visit, and anyway, did not want to get involved. He opened the front door and walked inside with Alex following. He could see and hear Alex still breathing heavily, and he still seemed a “bit angry”. He went straight to his bedroom and closed the door. When he walked past Jarrod’s door he could see that it was closed and he could not see Jarrod. After Anthony closed his own bedroom door, he heard Alex scream, “Jarrod, can I have a word with you?” He heard this a few times; Alex yelling louder each time and sounding more and more aggressive.

15. I now come to the evidence given by Jarrod at the sentence hearing. I should say, at the outset, that my impression of him was that he was genuinely attempting to tell the truth. His answers tended to be very brief, without elaboration. He did not exaggerate; indeed, he tended to understatement, making no attempt to guild the lily. Although some parts of his evidence were somewhat confused, the substance was clear. His account of what happened commenced with a brief description of his relationship with Alex. He said that he was a friend whom he had known indirectly – I take it through others – at the time that he moved into the residence about two years before the incident. He said that, towards the last 12 months, they would meet once or twice a week, smoking marijuana, sometimes going to the beach or to the gym. In the weeks leading up to 23 March 2015, their relationship changed. Jarrod said that he did not like Alex coming around anymore because he felt he was just using him. He said, “He would just use my place to smoke, to use drugs, to come around when I wasn’t home, just because it was somewhere to go and smoke”. (Anthony confirmed that from time to time when Jarrod was not in, Alex turned up and Anthony let him in, although he was alone and Jarrod was not there.) There were times when they were together in the house, but in the end, he “didn’t like spending that much time…with him, because he just used me”. He said, “He used all the weed in the house and would just take cigarettes away from the bench” and “I just noticed things missing”. He said that in addition to cannabis, he saw Alex injecting steroids from time to time, perhaps twice a few weeks before 23 March 2015. Jarrod said that he had not himself ever used steroids. Before the night in question, he never saw Alex fight, but he had heard him “like, go off at someone before…just screaming and threatening someone who wanted to see him, he had a problem with them”. It seemed to Jarrod that Alex wanted to fight that other person, although he had no idea who it was. There were a number of telephone conversations of this kind.

16. Jarrod had started a TAFE course in personal training. When he started the course he was still smoking marijuana at home but his attitude to the drug changed after he started, essentially because it reduced his motivation and he wanted to put more time into learning and training. He said he spoke to Alex about it, saying that he wanted to cut back on the marijuana. This was about six months before the incident. He said that when Alex came over, he would be with James Kaye (a mutual friend) and (as I understand him) Jarrod did not find this a problem, but then Alex used to come around on his own, which was all right at first but became too much. Alex came to the house on the day before the incident. James Kaye was also there. He was there for perhaps half an hour, when Jarrod told him to get out. He said he asked him to leave “and he didn’t want to and I told him to get the fuck out and don’t come back”. He thinks that immediately before this, he (Jarrod) had been cleaning the house; Alex was smoking marijuana with James in the lounge room and Jarrod felt “I didn’t want him to be there, I had enough”. He had said something like this before, telling him to stop coming around smoking all the time, because he was trying to stop. He said that when he told Alex to go, “he got pissed off”. He said he jumped up “like he wanted to have a go” and that James grabbed him and just told him to go. He then left the house. There was no contact then with Alex for the rest of that day. Nor did Alex call him the following morning, despite what he had told his cousin. He said he was aware that Alex’ phone called his phone a number of times but he did not answer. He believed that Alex was attempting to contact him because “he was still pissed off about the day before”. Messages were coming through to the effect that Alex wanted to “have a go” (ie have a fight) but Jarrod did not want to fight him. He said that he never offered to fight Alex or invited him to come for a fight. He did not want to meet up with him at all.

17. I should mention that James said, in his evidence, that he did not remember being at Jarrod’s place on the night before the incident. He did not recall any argument or Jarrod asking Alex to leave although he commented that friends have “little arguments”. He was aware that Jarrod did not want him there on the night of the incident but had no recollection of this being said on an earlier occasion. He agreed it might have happened but it had now slipped his memory. It is, perhaps, of no moment given the overwhelming evidence of Alex’ complaints about being shut out on the night he was killed. Its materiality is that it goes some way to explaining why he was angry, although it could not justify the violence of his response. It does not go to the significant issues in the case. It is clear that James was close both to Jarrod and Alex and I thought that he felt torn by being asked about things that might make either of them look bad. I did not think he was genuinely attempting to tell all he knew when he gave his evidence.

18. On the morning of 23 March Jarrod went with James to a café for breakfast and spent about half an hour with him. There was one call from Alex’ phone to his phone, (the one of 26 seconds). He said that he had not willingly answered his phone and thought he had not done so, but (as I understand his evidence) must have done so but without listening to what was said and had himself said nothing. He had received a number of text messages from Alex during the day (which I have already mentioned). During the afternoon Eamon came over to see him at his house. He recalled telling Eamon that Alex was hanging around the house trying to get in and telling him to get in without being seen.

19. Alex had been knocking on the door, trying to open it, going around the back and trying to get through the back door, and had been doing that for some time. Jarrod did not show himself to Alex and stayed in his bedroom during this period, not responding. When Eamon came with Bati (whom he had not previously met) he let them into the house. He did not see Alex but, after something like half an hour, Alex returned and Jarrod saw him at the back window. He said that they were in the kitchen at the time, and he could see Alex through the kitchen window. He said that Alex was trying to open the door and “was demanding we open up”. He went to the front door, the back door, and also some windows saying, “Open the fucking door, come out”. Jarrod said he felt a “bit worried, a bit angry…I just didn’t want to deal with it, I didn’t want any contact with him”. He was worried that a fight would start. He was angry because he did not feel safe in his own house. It had been going on for a couple of hours, he had friends over and they were feeling uncomfortable. He did not know why Alex was behaving in this way but thought he might have felt rejected because he had told him to leave the previous day and told him not to come back. He was very angry. Eamon, Bati and Jarrod had been playing Xbox in the lounge room and, when the other two left he went to his bedroom and locked the door. It about 7:30pm or 8:00pm. He was asked about the text messages that Alex had sent him and said that he felt as though he was threatening him, saying that he felt “a bit worried, a bit threatened”, he did not really feel insulted. He said he just wanted to avoid having a fight with Alex and just wanted him to leave. Jarrod was sitting on his bed when he heard someone come through the front door and heard banging on his bedroom door. (This must have been when Anthony let Alex into the house.) He then stood up, he said he was worried and a bit scared because Alex was screaming and trying to open the door and demanding to “have a go”. About 5 seconds after Alex started to bang on the door, he grabbed the knife out of his drawer because he was scared. He sat with his back against the door to stop Alex from getting in. The knife was a fishing knife with a blade about 10cm long. He said that, when Alex was trying to open the door, he felt “a bit worried, I didn’t want to fight, I was just scared”. Alex then said, “I’m going, I’ll come back tomorrow and the day after that”. The front door slammed.

15. Jarrod waited a few seconds, perhaps 10 or 20, and then opened his door because he wanted to go and make sure that the front door was locked so that Alex couldn’t get back in. He took one step outside his bedroom door and saw Alex in the hallway. Alex ran at him and swung a punch at his head. Jarrod ducked and Alex then grabbed him in a headlock. (Jarrod is about 5”8 inches tall and weighed only 65 kilograms. Alex was taller and heavier.) Jarrod said that his body was bent forward with his head to Alex’ side looking in the direction of his back. Alex was squeezing his neck and head and they walked backward through the front door. He didn’t know whether Alex was gripping one hand in the other as he could not see but, if he were not doing so, he was not using the other hand to punch him. They were at the door for only a few seconds. Jarrod was trying to shout. He was struggling in an attempt to escape but Alex’ grip was too tight.

16. Once they got outside the door onto the front porch, Jarrod stabbed Alex in the back of his leg to try to get away. (I interpolate at this stage that, at autopsy, a stab wound to the mid left posterior thigh, generally upwards to a depth of 8cm, was found. This wound is consistent with Jarrod’s account). Alex groaned. It is worth noting that, despite what must have been a very painful injury, Alex did not let go. Nor did he loosen his grip. To the contrary, he squeezed even tighter and Jarrod said his neck was twisting a bit. He thought his neck was going to break and he stabbed Alex again in the body area. He showed in the witness box, how his body was down and his arm moved up as Alex was leaning over him. Jarrod felt the knife stabbing Alex but had no idea how deep it had gone, nor where exactly it went, although he thought he had stabbed him in the stomach area. (The autopsy showed a stab wound which had entered the left anterior chest front to back, left to right, and not significantly upwards or downwards, to a depth of about 10cm. This is, I think, not significantly inconsistent with the description given by Jarrod.) It was at this point that Alex let go. He walked or staggered back down the stairs (six from the door to a short path and then another step to the footpath). He said, as he moved backwards, “You fucking stabbed me, you cunt”.

17. By this time, Jarrod had gone back inside the house and was about to close the front door. He saw Alex standing on the footpath holding his stomach. He closed and locked the front door because he was worried and panicked and still a bit scared about Alex’ reaction. He thought that he might be even angrier and was worried that he was “a bit hurt” as well. He believed he had really hurt him but did not think it was fatal.

18. Jarrod then walked down the hallway and went to the laundry, washed his hands and the knife. At that point, Anthony came out and asked him what had happened and what was going on. Jarrod remembers asking, “Why did you let him in, you shouldn’t have let him in”. He said that Anthony said “he didn’t know what was going on, he didn’t know that we were fighting”. He said that he called Anthony a dog for letting him in. He said that it may have been that Alex had called him a dog some time that day or in the evening. He called him a range of names. Anthony’s recollection of this conversation is much to the effect of Jarrod’s evidence except that at first he did not remember whether Jarrod had said anything to him to the effect that “you are a dog for letting Alex in like that”, but he later firmed up, saying (as he had told the police in the statement he made later on the night) that all that Jarrod had said to him was, “you shouldn’t open the door for him” and Jarrod definitely didn’t call him a dog or insult him in any way.

19. It is necessary to deal with Anthony’s evidence of what he could recall after he went to his room and closed the door after letting Alex into the house. It should be noted that Anthony said he could only remember bits and pieces of what happened that night. He said that he did not really remember everything being said because he was really shocked and did not want to concentrate on or remember what happened. I have already narrated Anthony’s evidence about how angry Alex seemed. He heard Alex banging on Jarrod’s bedroom door and could hear him yelling for what seemed like a couple of minutes (later saying he thought it was 45 seconds). He did not hear Jarrod respond. As I understand his evidence, he does not recall all of what Alex was saying but did recall him screaming a number of times, “Jarrod can I have a word with you” and that he was using swear words. He said that he was watching television and having his dinner and that his attention was focused on watching the television. He said that things were unpleasant, he felt uncomfortable, was trying to ignore what was happening and not hear what was going on. Alex was banging loudly on the door, it was not just a polite knock. He said that it is possible that Alex called, “Open the fucking door” but he could not now remember that being said. Other words that Jarrod deposed to were put to him, but Anthony’s response was that he could not remember all of the detail. He said, “I just wanted to forget all of it, watching TV, so I don’t want to input anything…” He recalled Alex yelling out something like “well I’m going now”, and “sort of remembered” him yelling out something like “I’ll come back later the next day”. Very soon after that he heard the front door slam shut and then he heard the door open again fairly quickly, a few seconds after it had closed. He heard loud screaming but was unable to recognise the voice and he could not make out what was said. Then there was silence.

20. Anthony said that he opened his bedroom door and saw Jarrod walk past him down the corridor going to the back of the house. Jarrod asked Anthony at about this point, “Why did you open the door for Alex?” and Anthony replied, “I thought it was normal. I didn’t know you were having an argument with Alex”. Jarrod said, “You shouldn’t open the door for him you know?”. Anthony said, “I don’t know what’s going on”. This conversation is not controversial; it is consistent with Jarrod’s account. Following this Anthony saw Jarrod in the laundry washing his hands and then he saw “a little knife in his hands” (he thought 10cm to 15cm long), which he was also washing. He did not see any blood, however. He said that he asked Jarrod at some point what happened “and then he said that Alex was calling him a dog so he had to do it”. (Jarrod denied saying this, his evidence being (as related above) that he had called Anthony a dog for letting Alex in.) Anthony could not remember everything that was said. Anthony said that he walked back to his bedroom leaving the door open, heard the tap stop and the door of Jarrod’s bedroom close. Jarrod then came into Anthony’s bedroom and said, “Don’t tell anyone about this”. Anthony replied, “Okay” and Jarrod then walked out the back door of the house.

21. I need to return to what Anthony did after the fight and when Alex’ body was discovered but I should mention that when he made his statement to the police after the event, he said, “Um, then I was shock, I don’t remember. Yeah I kind of, kind of remember as well at the time, but I can’t remember, but I was nervous at the time, I was kinda nervous because I was never involved in this kind of stuff before, so yeah I was kind of scared of getting into trouble, yeah correct.” He had attempted to perform CPR, and was shocked and stressed about “all the blood on my hands, and everything”. Although, in his statement he said that Jarrod had told him “Alex called me a dog so I done it”, when he came to give evidence (of course, over 18 months later) he said that he could not remember whether in fact Jarrod had said “so”. Unsurprisingly, he was not at the time attempting to remember what was being said. He was asked –

“Q You weren’t standing there trying to lock into your memory everything that Jarrod said to you?”

A: No no not at that time. I was shocked at the moment and the, like the screaming and yelling, everything that is happening, I can’t really focus on what conversation I’m having. So yes, I am very sorry.”

When Anthony made his statement to police he was trying to make as much sense of what had happened as he could and was doing his best to remember what had been said but it was difficult to remember exactly the things that had been said and he was just doing his best to answer the questions. He was, however, confident that although his memory had been affected by the passing of time, what he said to the police was correct as to what he then remembered.

27. I thought that Anthony was an honest witness, attempting to do his best to tell the truth. At the time he made his statement to the police he was undoubtedly very anxious and, I think, appalled by what he had heard and seen that night. The circumstances were far from ideal for the making of reliable memories of details, as distinct from general impressions. Anthony’s English, also, is not fluent. I would readily accept that his understanding of English is superior to his ability able to speak it but, of course, his police statement is a record of what he said and, hence, subject to some level of difficulty about fluency of speech.

28. It will have been noticed that, at some points, Jarrod’s evidence differs from that of Anthony. Having observed them closely in the witness box, I find myself unable to prefer the reliability of Anthony’s account over that of Jarrod. In the result, I do not think that Anthony’s evidence about what I might call the “dog” conversation with Jarrod is sufficiently reliable to lead me to question my conclusion that Jarrod’s account is in substance the truth.

29. I return to Anthony’s narrative of events. About 15-20 minutes after Jarrod had left the doorbell rang and Anthony opened it to Alex’ aunt. It was completely dark and there was no light near the front door. She told Anthony that she was Alex’ aunt and asked where he was. He said that didn’t know, that he had come earlier, there was a fight with Jarrod but he did not know where they went. She asked if he would call Jarrod and see where they were. Anthony said that he would and, when he found out, he would let her know. However, he went back to his bedroom and did not call Jarrod. About 10 minutes later Jarrod called and asked whether anyone had come looking for him and Anthony told him about Alex’ aunt’s enquiry. Jarrod asked was there anyone else and was told it was only her. Anthony asked where Jarrod was and was told that he was at his friend’s place and would be coming home soon. Jarrod agrees that he said that he was with a friend but denies saying that he was at his friends place. Nothing turns on this difference.

30. I now return to Jarrod’s account. He said that he told Anthony not to tell anybody because he was worried that others living in the residence might find out about the fight and that he was involved and would be expelled. I think that, at this stage, he had no real idea how seriously Alex had been injured and it is obvious from his later actions that he thought he was still able to fight him. Jarrod got dressed, told Anthony he was going and went out the back of the house taking the knife with him. He jumped over the back fence and ran down the laneway. He said took this route because he thought that Alex might still be at the front. This was only a few minutes after the stabbing had occurred. He said that he ran away from the house and called Eamon to meet up with him because “I wanted to meet up with someone”. He said that he was worried and panicked and didn’t know what to do. He threw the knife in a bin before he had met up with Eamon whom he had asked to come to Botany Road. He also asked James Kaye to meet. He recalled ringing Anthony when he was with Eamon to ask if anyone had come looking for him, because he was worried someone might come looking for him, maybe Alex or maybe the police. He told Eamon he had stabbed Alex. Eamon asked him where and Jarrod told in the stomach, adding, “He wouldn’t leave, he kept banging on the doors, he kept saying ‘I’m going to come back tomorrow and the day after tomorrow and the day after that and the day after that and the day after that and the day after that,’ then he just came at me.” Eamon asked him where he was and Jarrod said that he thought he had left. Eamon asked whether he was alright and Jarrod said, “I think so, we’ve got to wait for James”.

31. I now take up James’ account of what happened. He was 22 years of age at the time and was a friend both of Jarrod and Alex. On the morning of 23 March he met with Jarrod to get some breakfast to take back to Jarrod’s residence. Jarrod was in a good mood and did not mention Alex. When breakfast finished, James left the house and drove home. Whilst he was at home asleep he received some missed calls from Alex: at 5:08pm [two calls] 5:09pm, 5:20pm, 5:21pm, 5:22pm, 5:48pm and two calls at 5:49pm. He did not return any of these calls. At 6:10pm he received a text message from Jarrod which he later deleted. He could not recall exactly what the message said but it was like, “Hey what are you doing?” At 7:56pm he received a call from Alex, which he answered. He sounded angry and wanted to know why he had not been answering his calls. He told him he was asleep. Alex sounded frustrated and said that he had spoken to Jarrod earlier that day and told him he was going over later on and now Jarrod was not answering, that he knew he was inside and he was not letting him in, nor was he answering the door. James told Alex to leave but he said he would not. That ended the conversation. Fifteen minutes later James received another call from Alex (as it happened, the last call he made). Again, Alex sounded angry. He told James that he knew Jarrod was inside the house as he saw him through the window and was looking at him. James told him once more to just leave, that Jarrod obviously did not want to see him. At 8:29pm James received a call from Jarrod. He said that he needed to see him and wanted to meet him at a gym that they both attended in Alexandria. He sounded worried. James said that he would meet with him. Jarrod called James again at 8:35pm, 8:46pm and 9:02pm asking if he was coming and where he was. He sounded panicked and worried during these calls. James arrived and pulled up behind Eamon’s vehicle and approached the passenger window. Jarrod was in the front passenger seat. He leaned through the window and asked Jarrod, “What’s up?” Jarrod said, “I stabbed Alex”. James asked him what happened. Jarrod said, “Anthony opened the door for him and he ran at me and I stabbed him”. James said, “What happened?” and Jarrod told him, “He fell down the stairs onto the footpath and I ran off and came here. Can you take me home?” The accused’s evidence is that Alex had not fallen down the stairs and that he did not say that to James. The account given by Jarrod to James of what happened is, not surprisingly, highly truncated and leaves out details, which of course may well not have been important to Jarrod at the time. Nothing was made of this matter by the Crown Prosecutor, I think rightly. Jarrod said that he asked James to give him a lift home because he didn’t want to go back to the house by himself. He was worried that there might be trouble there. He didn’t know if Alex was still angry or might have come back with someone. James supports this account.

32. James drove Jarrod home, dropped him off and drove off. Jarrod entered the house through the front door then went back out to the porch area with a bucket full of water and a bottle of bleach and a mop and started to clean the porch. Anthony noticed him doing so. He saw spots of blood everywhere on the ground although there were no puddles. He also saw blood spots on the fence just outside the doorway near the porch and the stairs running from the porch down to the short front path and also near the mailbox. He started to help Jarrod clean the blood. Jarrod then noticed Alex’ sunglasses on the ground and the thought occurred to him that Alex could still be close and might come back to get them. He looked around on the street and then saw Alex laying down in the gutter. His first reaction was that couldn’t believe it. He felt worried and scared and guilty. He told Anthony to call 000 quickly and he spoke to the operator for part of the call. Anthony, in the meantime, picked up the bucket and mop and put them back inside the house. It was now just after 9:15pm. As it happened, about this time, James decided to return to the house. As he pulled up he saw Jarrod leaning down on the grass on the footpath in front of the house. He noticed he was on the phone and kneeling next to a body. He got out of his vehicle and walked toward Jarrod who was struggling to speak to the person on the phone. James took the phone from him and spoke to the operator and told her to come as soon as possible, gave the address and hung up. He looked down and saw Alex on the grass lying on his back. He did not know if he was dead or alive. He told Jarrod to get into the car and that he would take him to the police station and he should tell them what had happened. They got into the vehicle and drove away, as they were doing so, seeing the ambulance drive past. James stopped the vehicle nearby and told Jarrod to go to the police station, which he did. It was only a short distance from the house. Anthony began administering CPR as instructed by the 000 operator. About this time, a witness, Mr Palivi saw Anthony kneeling down and, as he approached saw a male lying on his back on the grassed area of the footpath, not moving and apparently unconscious. He felt a faint pulse, gave two breaths into his mouth and started compressions. As he did so, he noticed an open wound about two and a half inches long to his left torso. Emergency paramedics arrived at 9:25pm. By this time Anthony was performing chest compressions, but Alex’ heart had stopped and resuscitation attempts were ceased two minutes later. The paramedics had arrived 9 minutes after Jarrod spoke to 000.

33. At about 9:20pm Jarrod entered the Mascot police station and told police, “My friend has been stabbed, you’ve got to help me”. He appeared to be distressed. Police followed Jarrod on foot back to the house which was not much more than two hundred metres from the police station. As they turned into the street they saw the ambulance out the front of the premises and paramedics performing CPR. Jarrod was becoming increasingly upset and police returned him to the police station where he gave a brief version of events. At this point he was merely a witness.

34. At about 10:30pm Detective Sergeant Giles spoke with Jarrod in an interview room and recorded the conversation in his notebook. There is a dispute about some of the details of the conversation as noted by the officer, but it is not necessary to resolve this controversy. It is enough to say that, in substance, he told police that he had come home and found Alex lying in the gutter and did not know who had stabbed him, concealing the fact that it was he who had done so.

35. The autopsy found the cause of death to be a stab wound to the chest. There were scattered superficial blunt-force injuries, scratches and abrasions of no significance. Toxicological examination detected cannabinoids, modest concentrations of alcohol but no other common drugs of potential abuse or common therapeutic drugs. Since the call records show that the last call made by Alex was at 8:11pm to James, and the first call made by Jarrod after that time was to Eamon at 8:27pm, it follows that the attack occurred between those two times.

Objective seriousness

36. The basis of the plea, and Jarrod thereby admits, that he wounded Alex with the intention of inflicting grievous bodily harm. Although Alex was unarmed, the Crown accepts that Jarrod believed it was necessary to wound him to defend himself from serious injury but that the force used was excessive in the circumstances. The Prosecutor did not submit that the use of the knife was, of itself, unreasonable but, rather, that the second blow to what Jarrod thought was Alex’ stomach was so dangerous as to be unreasonably excessive and more than the occasion called for.

36. I have already mentioned the particular circumstances in which the ultimately fatal blow was struck. The accused said, and I accept, that he thought that Alex was using such force as might break his neck. The Crown Prosecutor did not cross-examined Jarrod to suggest that this was not the case. At all events, I thought that Jarrod was telling the truth in his account of what happened. He was in extremis. He was undoubtedly acting in self-defence. He was not the aggressor and had not been an aggressor at any point during the confrontation with Alex, who attacked him in his own home, indeed had tricked him into believing he had gone whilst in fact he was lying in wait to attack him. Jarrod was taken unawares by the ambush and responded in the heat and panic of the moment. He had done everything possible to avoid a physical confrontation, but to no avail. It is obvious from the text messages sent by Alex and the various communications made by him leading to his attack on Jarrod that he was extremely angry. He took no notice of suggestions that he should leave it alone. It is clear that he was in no mood for negotiation and that he was focused on a physically violent confrontation with Jarrod. Had Jarrod not defended himself as he did, at least at the outset, he may well have suffered very serious injury indeed. If he was angry, he had every right to be. He was entitled to feel and be safe in his own home. Although it is true he had armed himself with the knife, he plainly did not want to have to use it and only did so when he was placed in a position when he could not otherwise defend himself and was in considerable danger of serious injury. His first blow was not dangerous in itself although one would have expected it would have been sufficient to get Alex to stop. But it made no difference. It was only then that the fatal blow was struck. That he was entitled to use the knife again in defending himself is not open to question. Tragically, though he had no intention of killing Alex, the wound proved fatal. I am satisfied that, though it was excessive, that it was so was a misjudgement in the heat of the moment. In my view, the extent to which the force he used was excessive was slight and his moral culpability falls into the lowest degree of objective seriousness. At the same time, over-stepping that mark, though slightly, resulted in the death of a young man who, though foolishly aggressive, should not have died.

Subjective features

38. Jarrod was 22 years of age at the time of the offence and, therefore a relatively young man. He mother gave evidence on his behalf. When Jarrod was about 2 years old she separated from his father, and, about three years later, she married his step-father, when Jarrod was 7 or 8 there was violence in the relationship which had become dysfunctional marked by continual arguments. The relationship continued on and off for a few years and ended when Jarrod was about 12 or 13. The incidents of violence towards Jarrod’s mother by his stepfather were repeated. However she was only aware of one incident of physical violence by him towards Jarrod when he was 4 or 5 years of age when she saw welts caused by the use of a belt. Jarrod was not attentive in school but he was not tested for ADD. He was average student but his mother thought he could have done better. He left school at the age of 15 in accordance with his own wishes. As it happened, when he was still quite young, his stepfather had given him a penknife when he was about 8 years of age and his mother heard his stepfather say or it was reported to her by Jarrod that he was told to carry it with him all the time to protect himself. She said that Jarrod had told her that he feels very remorseful about having killed Alex, who was his friend, that he was sorry, that he didn’t mean for this to happen, he didn’t want this to happen. In terms of the family, Jarrod always was a help with his younger siblings and would help his mother when she asked him to do things.

39. A number of medical reports were tendered. On 14 October 2015 Jarrod presented at the Mid-NorthCoast Local Health District Emergency Department. He appeared very depressed, his sleep was poor with regular nightmares going over the events of the incident. He reported as being irritable and angry and having anxiety and panic attacks and suicidal ideation but with no plan or intent. He was then staying with his aunt in Kempsey. After discussion with a psychiatrist he was prescribed an anti-depressant and advised to link-in into a general practitioner for a mental health care plan and referral to psychologist. Since the assessment his depression had improved and he was compliant with his medication. He needed ongoing support for his depression and anxiety. However, having ceased his medication, on 8 April 2016 Jarrod was referred by his General Practitioner to the Acute Care Team at the Prince of Wales Hospital, presenting as distressed and paranoid and very anxious over the past few months. He cried during the consultation and didn’t know what to do. He had suicidal thoughts and feelings. Because of the difficulty in getting a response from the Mental Health Acute Care team, his doctor felt that he should present himself to the emergency department and obtain a mental health assessment and management. However, Jarrod became aggressive and did not co-operate and did not want to go. The doctor thought it best to let him go home and gave him scripts for the medications that he previously been prescribed. The referral letter was given to him and he was told that he should go if he found his emotions and thoughts overwhelming. On 6 December 2016, Jarrod attended on Doctor Philip Wiren for an assessment of his mental state. He was diagnosed with major depression, post-traumatic stress disorder, panic attacks/panic disorder and possibly agoraphobia and given prescriptions of anti-depressant and sedative medication. It appears that his psychological condition has stabilised and he has not required further medical intervention although he has sought counselling assistance whilst on remand. It is not suggested that these mental health issues existed at the time of or contributed to the offence but, rather, showed the anguish he suffered as a result of what happened and what he had done.

40. Whilst he was on bail he enrolled in TAFE to attempt to resume the personal training course that he had previously undertaken but he did not get very far with it. He says that his sister has been supportive throughout and presently lives in Perth and he can live with her when he is released from prison. He said that he would like to continue with his personal training course.

41. He said that, hearing Alex’ mother and sister read out their Victim Impact Statements made him feel horrible. He said –

“I felt that I should have died. It would have been easier that way. I could never forgive myself. I just felt like a terrible person. I can’t even explain it.”

I accept this evidence was honest. His plea of guilty, in the circumstances, is significant evidence of remorse and contrition, given that a guilty verdict, even of manslaughter was significantly doubtful. I am satisfied that Jarrod is indeed genuinely and profoundly remorseful for what has happened.

42. Also tendered was a letter from a Mr Leitch who had employed Jarrod on a casual basis for about two years before the offence was committed. He said that he was impressed Jarrod’s manner. He was enthusiastic and had confidence which was very rare from someone of his young age and his experience. He found him to be a reliable, competent and trustworthy employee. He describes himself as being “in total disbelief” when he heard what had happened. He said that if Jarrod sought work from him with the same attitude he had earlier shown and a job was available, he would certainly employ him again.

43. There was also a letter from Jarrod’s case manager from Options Youth Housing who had arranged for his residing at the premises where the incident occurred. Amongst other things, living skills development support is provided by the organisation and Jarrod engaged in this program. He was working as a labourer and the organisation supported him in enrolling in a health and fitness course at TAFE. He was at that time trying to repair his relationship with his family. He seemed to be steadily progressing with his aspirations. The case manager said that her colleagues and she were “in deep shock and disbelief to learn that Jarrod was involved in this incident as we felt it was out of character”.

44. As a child, Jarrod came to the attention of law enforcement, receiving bonds. One offence in May 2011 was for affray whilst in December 2013 he was fined and placed on bonds for resisting a Police Officer and assaulting a police officer in the execution of duty. He was given a bond and required to accept an intervention plan in January 2014 for common assault. There are several other minor offences which do not call for mention, except, perhaps, for resisting an officer in the execution of his duty in July 2016 for which was placed on a 9 month bond. I do not think that these offences are significant for present purposes.

45. His offence arose out of unforeseen circumstances that are unlikely to arise again. Despite having in his record some minor offences of violence, I am satisfied that this offence was an aberration and he will not again offend in this way.

Witness impact statements

46. Witness impact statements were read to the court by Ms Anthie Pettas, Alex’ mother and Ms Denise Bargiatakis, his sister. They gave eloquent testimony of the profound grief and loss both they and members of their family have suffered as a result of Alex’ death. These feelings are very much still present and will continue well into the future. I accept that they have suffered a great deal as a result of the appalling tragedy that has struck their family through Alex’ death and respect their feelings of anger that he was taken from them by a criminal act. I have had regard to these statements in accordance with the law. I know that the sentence passed by the Court cannot and will not assuage their grief but the Court must act upon the evidence as it finds it to be and on the applicable legal principles.

Sentence

47. Having regard to the evidence relating to Jarrod’s psychological issues to which I have referred and to his relative youth, I am satisfied that special circumstances are present justifying a variation of the statutory calculus in s 44 of the Crimes (Sentencing Review) Act 1999 (NSW). Allowing the discount to which I have referred to the sentence that otherwise would have been imposed, Jarrod Mitchell is sentenced to an overall term of 3 years and 6 months imprisonment commencing on 1 March 2016 with a non-parole period of 2 years ending on 28 February 2018, after which date he is to be released on parole.

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Amendments

22 December 2016 - The name of the defendant's solicitor is corrected to Mallinson + Rake Lawyers

Decision last updated: 22 December 2016