R v McNeil (No 4)

[2015] NSWSC 1198

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v McNeil (No 4) [2015] NSWSC 1198

Hearing dates:

21 August 2015

Decision date:

27 August 2015

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

Imprisonment for 10 years with a non-parole period of 7 years 6 months

Catchwords:

CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – plea of guilty not accepted by Crown – convicted of manslaughter following trial for murder – unprovoked attack – offender intoxicated – single punch – victim fell straight back onto road – where offender mistakenly believed victim was involved in earlier altercation – extreme seriousness of offence conceded – offender has criminal record including offences of violence – reasonable prospects of rehabilitation –remorse – general deterrence – retribution – discount for guilty plea

 

CRIMINAL LAW – sentence – assault occasioning actual bodily harm – guilty plea – offender intoxicated – punch to the mouth – victim required three sutures – partial accumulation of sentence for manslaughter and assault

  CRIMINAL LAW – sentence – assault – guilty plea – offender intoxicated – punch causing victim to fall to ground – victim then kicked – partial accumulation of sentence for manslaughter and assault occasioning actual bodily harm

Cases Cited:

R v Loveridge [2014] NSWCCA 120

Category:

Sentence

Parties:

Regina
Shaun Stuart McNeil

Representation:

Counsel:
Mr E Balodis (Crown)
Mr C Smith SC (Offender)

  Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s):

2014/222

Judgment

1. R A HULME J: Shaun McNeil ("the offender") underwent a trial by jury earlier this year for the murder of Daniel Christie at Kings Cross on 31 December 2013. Upon his arraignment in the presence of the jury panel on 1 June he pleaded not guilty to murder but guilty to manslaughter. The Crown Prosecutor did not accept that plea in satisfaction of the indictment and so a jury was empanelled and the trial proceeded. On 11 June the jury returned verdicts of not guilty to murder but guilty to manslaughter.

2. The offender has also pleaded guilty to assaulting Peter Christie and causing him actual bodily harm and to assaulting a young person, JF. Those pleas were entered on arraignment on 5 December 2014 (and confirmed when he was re-arraigned on 21 August 2015).

Facts

3. Daniel Christie, then 18 years of age, and his brother Peter Christie, then aged 20, were at Kings Cross on New Year's Eve 2013. They had travelled by train from the suburb in which they lived and on arriving at Kings Cross at about 7.15pm they went to the Kings Cross Hotel where they had some beers. They then went to the Empire Hotel where they had a game of pool and another beer. They then walked along Victoria Street on their way to the Soho nightclub to see if it was open. This was at around the time of the 9 o'clock New Year's Eve fireworks.

4. The offender was also in the city that evening. He was with his girlfriend, Sonya Walker. They too had travelled into the city by train from the suburb in which they lived. They first went to a hotel in the city and then went to Kings Cross where they visited a friend at a backpackers' hostel. By the time of the incident in question the offender was reasonably intoxicated. He later told police, "I've had too much to drink tonight".

5. Shortly after 9.00pm, the offender and Ms Walker were walking along Darlinghurst Road towards William Street. CCTV footage showed them stopping briefly whilst the offender shook hands and had brief exchanges with security guards outside some establishments as they approached the intersection with Victoria Street. Immediately prior to arriving at that intersection the offender stopped and had an exchange with a person he knew. It could be gleaned from the CCTV footage that the offender appeared to be in a buoyant mood. Mr Smith SC described him in his opening address to the jury as "happy".

6. As the offender and Ms Walker came to the pedestrian crossing over Victoria Street they came across three young men, JF, TS and TG. The evidence of what transpired between them varied but it will suffice to say that there was a conversation initiated by the young persons in which the offender was offered drugs but said he was not interested. He later told police that comments were made about Ms Walker's appearance to which he took exception. He also claimed that Ms Walker had been pushed but that is not supported by any other evidence.

7. Fighting broke out between the offender and the three young men. It included the offender being punched at least twice (he sustained a laceration to his inner upper lip). He punched JF, causing him to fall down on the pedestrian crossing, and then kicked him. One of the witnesses described the kick as "savage". The offender returned to where Ms Walker was standing on the footpath. She appeared to remonstrate with him and he returned and helped JF up to his feet. The Crown alleged that the offender then threw a punch at TG as he and JF moved down into Victoria Street. The offender went in that direction as well. There was no good reason for him doing so. Ms Walker was calling out loudly, (almost screaming she said), "Come on Shaun, it's almost 9 o'clock, lets go. Just leave it, come on".

8. Daniel and Peter Christie were walking on the footpath in Victoria Street after having just turned right from Darlinghurst Road. They heard something and looked back and saw a person who Peter Christie described as "fairly young" (JF) sitting on the pedestrian crossing. They were sufficiently concerned to stop and watch what was happening. A short time later, there was a young person near to them who told them, "This dude hit all of us". Peter Christie saw a man (the offender) helping the young person on the crossing to get up. It was his perception that the offender then "ushered" or "directed" the young person down Victoria Street. As they came closer, Peter Christie heard the offender say to the young person in "an aggressive sort [of] manner", "I'm an MMA fighter". He described the offender as "sort of like beefing up to look big"; “he physically looked aggressive, or had an aggressive stance".

9. According to JF, Daniel Christie asked the offender, "Why are you hitting kids?" Peter Christie gave evidence that as the offender came towards Daniel, the offender said something, not all of which Peter Christie heard. It commenced with "If you think I'm a …". Daniel Christie took a step back and put his hands up with his palms facing outwards and said, “No, no, no, no, no". The offender then delivered a single punch to the face of Daniel Christie, likely to the left jaw. Daniel immediately went limp and fell backwards onto the roadway, striking the back of his head heavily. His brother said that he heard "a very loud definite crack".

10. Peter Christie immediately challenged the offender as to what he was doing. For his trouble, he was punched to the mouth causing him to stumble back. He sustained a split lip which bled (later described as a "full thickness lip laceration" which required three sutures). Peter then turned and directed his attention to his brother while the offender walked back towards Darlinghurst Road.

11. Uniformed police officers were quickly on the scene and the offender was arrested. Emergency aid was given to Daniel and he was taken to St Vincent's Hospital. Efforts to save him were in vain. His life support system was turned off on 11 January 2014 and he died.

12. The offender was interviewed at the Kings Cross police station. He gave an account which was to the effect that he had been assaulted by a number of young men at the crossing. When he went down into Victoria Street he thought he was going to be attacked by more people in the same group so he responded by delivering a single punch. (There was a question as to whether he was talking about the punch to Daniel Christie or the later punch to Peter Christie but I am satisfied he was talking about the former.) When detectives eventually told the offender that the person he had punched was not part of the group of young persons he immediately looked anguished and admitted that he was in the wrong. He apologised repeatedly. His remorse appeared to be genuine.

Personal circumstances of the offender

13. The offender was aged 25 at the relevant time and is now 27. His parents separated when he was an infant and he had no meaningful relationship with his biological father. His mother and stepfather are supportive of him.

14. He left school in Year 11 and has generally been employed in hospitality, construction and removals.

15. There is a history of drug and alcohol abuse. He gave an account to Dr Richard Furst, forensic psychiatrist, of binge drinking alcohol on weekends when he was in his late teenage years. He claimed to have stopped for a while but drank on most weekends when he was aged 20 and 21. He commenced a relationship with Ms Sonya Walker when he was about 21 and claimed that she "changed his life". He told the doctor that he consumed only a minimal amount of alcohol in recent years. However, he was using the drug known as "ice" in 2011 to 2013, albeit only on weekends, and had previously used ecstasy. He denied any major impairment from drug use and spoke of working long hours with his stepfather.

16. The offender also gave an account to Dr Furst of mental health issues. He provided a history of anxiety and depression from the age of 12. He experienced panic attacks. He regarded himself as "sensitive and vulnerable". There was an admission to a psychiatric unit in 2009 following a suicide attempt. At the time of seeing Dr Furst (April 2014) he was being prescribed Seroquel which the doctor said appeared to be for his anxiety and adjustment issues.

17. Dr Furst said that there were no indications of the offender suffering from a depressive disorder in the weeks preceding the offences or on the day of the offences. The offender told him that he was "having a good night".

18. The offender told Dr Furst that he had become more "spiritual" since being in custody. He said that he prayed for the Christie family and for Ms Walker. He attended church meetings on Thursdays. There was also material tendered to the Court indicating that the offender had been gainfully employed doing maintenance work at his gaol. He had completed a drug and alcohol program as well as vocation, literacy and numeracy courses. He has not had any disciplinary infractions and he is reported to be a hard-working, polite and very helpful inmate. He has expressed a desire to participate in a leadership position in young offenders programs.

19. A letter under the hand of Sister Marcia Cox, the Chaplain at the Parklea Correctional Centre, speaks highly of the offender. She says “he seems to have a passion to learn and a personal mission to become the best person he can become”. She says “he lives with the fact his lack of self-control resulted in a young man losing his life and the terrible pain the young man’s family live with each day. He prays each day for the Christie family and dreams one day of forgiveness and inner healing for both families”. She describes him as “by far the most sincere and self-motivated person to seek change and become a better person for himself, family and society” of all the inmates with whom she engages.

20. Dr Furst was told that the offender and his family had received death threats due to the extensive media coverage of the case. He said this added to his level of stress and anxiety and he was in a form of protective custody.

21. Dr Furst made the diagnoses of "substance use disorder (alcohol abuse, amphetamine abuse)"; "alcohol intoxication (on the night of 31/12/13)"; and "adjustment disorder with depressed mood". He noted the history of anxiety and depression but said that it was not to a degree of causing functional impairment of work and relationships to a point that warranted a psychiatric diagnosis. Recommendations were made that the offender remains engaged with psychological services. Anger management and/or the Violent Offenders Treatment Program as well as structured drug and alcohol counselling and/or rehabilitation were indicated. Dr Furst also made a recommendation about the use of an antidepressant medication.

22. The offender's mother and stepfather provided affidavits in which they confirmed their continued support for him. They, of course, seem to be devastated about his actions on New Year's Eve 2013 and expressed quite sincere empathy for the Christie family.

23. The offender has a criminal history in New South Wales and Queensland that commenced when he was aged 18. Notable entries include the following:

June 2006: Assault and Contravene apprehended domestic violence order (12 month good behaviour bonds)

April 2008: Commit public nuisance (fine)

May 2008: Fail to leave licensed premises (fine)

February 2009: Assault and Contravene apprehended domestic violence order (6 month suspended sentences of imprisonment)

June 2010: Possess dangerous drugs (fine)

May 2011: Assault and Custody of knife in public place (good behaviour bond (with supervision and a requirement to obey directions in relation to counselling, education development or drug and alcohol rehabilitation) and a fine)

July 2011: Possess prohibited drug (fine)

December 2011: Assault (domestic violence related) (12 month good behaviour bond)

24. The offender breached the bond that was imposed for the assault committed in May 2011 on account of his failure to comply with the supervision requirement. He was called up and resentenced to a fine. On the same occasion he was dealt with for the assault committed in December 2011 and placed on a bond. His response to supervision under that bond was chequered, to say the least. When the period of the bond expired his file was endorsed with notations to the effect that his response had been unsatisfactory; he had failed to undertake any form of intervention in relation to anger management; and he was "unsuitable for future orders". The offender's later claim to Dr Furst that he attended an anger management course as well as drug and alcohol counselling, generally fortnightly, throughout 2013 according to the terms of this bond was obviously false.

25. A handwritten letter by the offender was tendered. It purports to be an expression of his remorse. The Crown Prosecutor submitted that I should give it no weight having regard to the fact that the offender has not given any evidence in the proceedings. I am not persuaded that he is remorseful on the basis of this letter.

Objective seriousness

26. Self-defence was left as an issue for the jury to consider because of what the offender told police in his interview. But I am satisfied beyond reasonable doubt that he should be sentenced for the manslaughter on the basis of an unlawful and dangerous act rather than on the basis of excessive self-defence.

27. I accept that the offender was not in Kings Cross on New Year’s Eve 2013 looking for trouble, let alone that he had any intention to act violently towards anyone. In this respect the case is quite different to R v Loveridge [2014] NSWCCA 120 which at first blush might appear to be a strikingly similar case. The attack upon the deceased in that case occurred in almost the exact same spot as the attack in the present case and involved a single punch which caused death by an intoxicated offender. But in that case, the Court of Criminal Appeal described the offender’s behaviour (at [168]) as involving the “repeated and random selection of victims whom he attacked to the head in a public street for no reason”. (R v Loveridge is distinguishable in a number of other ways, including the fact that the offender there was on conditional liberty imposed only a short time before in respect of another incident involving “serious and indiscriminate violence” (at [203]) fuelled by alcohol.)

28. In the present case, the offender was undoubtedly intoxicated, but he was in a buoyant mood and, at a relatively early hour of the evening, he was intent on leaving Kings Cross and going home. It was the unexpected interactions with the three young persons at the intersection of Darlinghurst Road and Victoria Street that precipitated the sudden explosion of a violent response by the offender directed towards a person he mistakenly thought was part of the same group. His action was reactive to the immediately preceding events rather than indicative of him acting in a manner that was premeditated.

29. This should not be regarded as in any way condoning or excusing the offender’s violent response. He was not provoked to do what he did. After the interaction with the young men on the corner of Darlinghurst Road and Victoria Street he could have proceeded with Ms Walker on their intended journey along Darlinghurst Road. But he decided that the incident was not concluded and he chose to go down into Victoria Street. With a mind addled by alcohol, he completely misconceived the situation there and gave vent to a perceived, but grossly mistaken, need to violently punish an innocent young man.

30. Even with a perception that Daniel Christie was part of the group of young men, he was offering the offender no threat. The offender was a strongly built man who was trained with body building to develop his strength and physique. He told police he was trained in UFC fighting. Daniel Christie was no match for him. His last actions before he was struck were to step back and put his hands up in a pacifying way. But the offender struck him unnecessarily and without warning. The descriptions in the trial of the blow delivered by the offender varied but on any view it was a ferocious blow delivered by a powerfully built man. The submission by Mr Smith that the offender was angry and emotional, in the context of being intoxicated, after the initial incident with the three young men is accepted. I would add that his actions were cowardly.

31. The offender’s intoxication is not something I take into account as in any way excusing or lessening his culpability for his crime. Its only relevance is to serve as part of the explanation for what occurred. And, as his history shows, it is not as if violence is out of character for the offender.

32. Mr Smith conceded on behalf of the offender that I would find that this is an extremely serious example of involuntary manslaughter, which I do. He sought, however, to distinguish it from certain other similarly serious cases when regard is had to the genesis of the incident. I accept that there are differences. As was observed in R v Loveridge (at [215]), the circumstances of these types of cases vary widely and the focus must be on the particular case at hand.

33. The assault occasioning actual bodily harm of Peter Christie is obviously a less serious offence but as offences of that nature go it is no trivial matter. The seriousness of that offence is enhanced by virtue of the context in which it occurred.

34. The assault upon JF, involving a blow that caused the young man to go to the ground followed immediately by a kick, is a serious example of that type of offence.

Other sentence considerations

35. The offender's criminal history is something that I regard as denying to him any leniency that could otherwise have been extended absent such a history.

36. I am prepared to find that the offender is probably sorry for what he has done and the harm that he has caused. This is not based upon the letter that was tendered. I have in mind his immediate acceptance of wrongdoing once he was made aware at the end of his police interview that he had seriously assaulted and caused grave injury to a completely innocent young man. It is not only what he said but his whole demeanour at that point which was quite striking. The continued and consistent acknowledgement of his wrongdoing thereafter is also indicative of remorse. I had the advantage, which most did not, of watching him face on in the court room throughout the trial and also noted his demeanour through the course of the sentence hearing. There was nothing that I observed that tended against acceptance of his sorrow.

35. The offender's past violence, albeit nowhere near approaching the severity of the present matter, combined with his relatively poor response to supervision, augurs rather badly in terms of his prospects of rehabilitation. However, it must be said that his performance over the past 18 months or so whilst he has been in custody suggests a more positive prognosis. There is much to be said for him engaging in rehabilitation services available in the custodial environment, such as the Violent Offenders Treatment Program suggested by Dr Furst. I cannot conclude that his prospects of rehabilitation are "good"; but I do accept that they are reasonable. I am unable to find that he is unlikely to reoffend.

36. Denunciation of the offender's conduct, retribution and general deterrence are prominent considerations in the assessment of sentence in a case such as this. In the light of what I said a moment ago, personal deterrence must also be a significant consideration.

37. It was common ground and I accept that the sentences to be imposed should be reduced by 25 per cent on account of the offender's indication pre-committal that he would plead guilty to manslaughter and the two assaults. The offender's position in this respect has been consistent and it was, in effect, the manner in which his case was presented to the jury.

38. It was accepted on the offender's behalf that some accumulation of sentences is appropriate but there was an issue between the parties as to the extent of it. On account of there being three offences, each concerning a separate victim, the concession as to accumulation is correct. I acknowledge the need to bear in mind the principle of totality.

39. I propose to impose an aggregate sentence. It will be backdated to 31 December 2013 when the offender first came into custody.

40. It was submitted that I should find that there are special circumstances which would justify lengthening the parole period of the sentence at the expense of the non-parole component. I have factored into the assessment of sentence all relevant aspects of the offender's subjective case and see no additional value in them that would justify such a course.

Family member victim impact statements

43. Two remarkable statements by Daniel Christie's mother and father were provided to the Court. Maureen Christie chose not to read her statement, which I well understand and it does not have any less impact for that reason. What they have written are powerful and very moving expressions of love, loss and a grief that will never pass.

44. I am indebted to Mrs and Mr Christie for describing for me what a remarkable young man their son Daniel was. His death is a loss not only to his family and his friends but to the entire community. We are all the poorer for it. It is my regret that I cannot do more than acknowledge the grief and loss and extend my most sincere sympathy.

Orders

45. Convicted in respect of each offence.

46. If not for the imposition of an aggregate sentence I would have imposed a sentence of 6 months for the assault upon JF, 1 year 6 months for the assault occasioning actual bodily harm upon Peter Christie, and 9 years for the manslaughter of Daniel Christie. Each of those terms have been reduced by 25 per cent from what they otherwise would have been because of the pleas of guilty.

47. Sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 7 years 6 months. The sentence is to date from 31 December 2013. The non-parole period will expire on 30 June 2021. The offender will become eligible for release on parole at the end of the non-parole period.

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Decision last updated: 27 August 2015