R v Russell - [2016] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v RUSSELL
[2016] SASC 18
Reasons for Decision of The Honourable Justice Vanstone
18 February 2016
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Disputed facts hearing - the prisoner pleaded guilty to three counts of causing harm with intent to cause harm, aggravated, and one count of committing an act likely to cause harm, aggravated - where accused pleads guilty but disputes the factual basis of the charges - where witnesses are called in support of the position of the prisoner and the prosecution.
Held: the version of events put forward by the prisoner is accepted on the balance of probabilities.

R v RUSSELL
[2016] SASC 18
Criminal: Reasons for ruling on disputed facts

VANSTONE J: On what was to be the first day of his trial Abram Charles Russell pleaded guilty to four of the five counts contained in a fresh information presented by the prosecution. Counsel indicated that there was a dispute in relation to the prisoner’s motivation to commit the offences and that evidence would be called.
That evidence was taken on 17 November 2015. The prisoner first gave evidence and the two victims named in the charges then gave evidence. Counsel submitted, I think correctly, that the onus of proving that the prisoner’s liability for each count rested on what is sometimes called “excessive self-defence” lay on the prisoner on the balance of probabilities.
As will be seen, I found all witnesses to be unsatisfactory. In particular I do not accept the evidence of the victim of counts 1 and 4, Botros Monydeng, as to the way in which the confrontation started. I am persuaded that the prisoner was not the one to show aggression to Botros and his companion or companions. I am satisfied on the balance that the prisoner produced a knife in self-defence. However, by his pleas of guilty to counts 1 and 2 he has acknowledged that his use of that knife was unlawful. I accept that in relation to both counts he genuinely believed that he needed to use force to protect himself, but that the force he used went beyond what was reasonably proportionate to the threats he faced.
There was a weak attempt by the prisoner to justify counts 4 and 5, the shooting counts, by reference to self-defence. I reject his account. I am satisfied beyond reasonable doubt that by the time he removed himself from the initial scene and retrieved a sawn-off shotgun, which he happened to have stored at his mother’s nearby unit, there was no ongoing need for self-defence and I am satisfied that there was no genuine belief in the need to use the firearm.
The evidence which I heard was along the following lines.
The prisoner said that on 13 July 2014 he was living at Unit 11, 35 Henley Beach Road, Henley Beach South. He lived there with his partner and her young daughter. At about 7 o’clock in the evening he had left that unit to go to the nearby supermarket to buy some dinner. On the way he dropped into the Henley Tavern and had two drinks of cider. At the supermarket he bought the makings of dinner and some other items which were placed in two bags. He then embarked on the 200 metre journey back to his unit. He said that as he walked down the path towards his unit three men stepped out and blocked his path. He said his memory of what happened was sketchy, because he sustained concussion either during this confrontation or perhaps later, but he recalled yelling at the men “Don’t threaten my family”. He said that he was then punched in the mouth. He stepped back, dropped the shopping bags and produced a collapsible knife which he was carrying on him. He said he lunged forward and stabbed one of the men in the shoulder. He said he was surprised and intimidated when confronted by the men. He said that at least one of them was carrying a beer bottle or something similar. The next thing he recalled was that he was running and that he slipped and fell. He did not recall inflicting a second stab wound on any of the men, although he acknowledged that he must have. Those stabbings were represented by counts 1 and 2.
He said he ran to his mother’s unit in the same complex, but she was not there. He said he heard what he believed to be people running through the stairwell and he feared that they were going to his unit, so he went to the spare room in his mother’s house where his goods were stored and took up his sawn-off shotgun which was hidden in some boxes there. He ran outside with the shotgun and fired a warning shot. He went to a grassed area adjacent to the building and saw a man about 15 metres away. He said that man came running at him and got to within six metres of him, when the prisoner fired a shot into the ground between them. He thought the man was going to attack him. Then he fired the weapon into the air. He said he thought it hit the masonry of one of the units.
At that point he said another man came running out of the unit with a large kitchen knife. They both retreated into their house and then one came running out. The prisoner said he pointed the gun straight at him and that the man continued to run at him. The prisoner said he fired a shot into the wall as that man dived inside the unit. That shot was the subject of counts 4 and 5. It hit Botros on the side of the head and body. It was near to Botros’s brother, Aizak Monydeng, and count 5 reflected that the prisoner was recklessly indifferent as to whether Aizak was harmed as well.
Botros said he was with friends during the day at his unit, number 49, in the same block. He said his brother and friends were having a few beers, but he only drank one bottle of Heineken. He did not feel affected by it. He said that between 7 and 8 pm he decided to visit his girlfriend at Noarlunga. He left the house with one of his friends who was going elsewhere. He was planning to catch a bus into the city and then another bus to Noarlunga.
He said that they were walking on the footpath adjacent to the units when he was pushed from behind, strongly. He heard the words “Move out of the way cunt”. He said he spoke to the speaker, saying “Why you pushed me?” and “Why did you push me and swearing?”. He said he did not recognise that person but that person laughed. Botros said to him “What’s funny?”. The man said “What are you going to do about it?” and Botros replied “I don’t even know you”. The man called him a “black cunt”. He saw the man put his hand in his pocket and pull out a knife and he was stabbed near the ear. He felt dizzy and was bleeding.
Botros said he headed back to his unit, followed by the man. At the front door, he was joined by his brother Aizak, who got between him and the man and was himself stabbed. Then the man disappeared. Botros said again he tried to go back to his house when he heard shots fired. He couldn’t get into his house because the door was locked and his keys were missing. He went back to the grassed area to see if he had dropped his keys but could not find them. Back at his front door he still could not get in, but he then saw the man with a gun standing about two metres from him. The man said “You’re going to die, black cunt” and then shot at Botros. Botros said he pushed Aizak to the left, away from the line of fire. He received a number of injuries to the right side of his face. Somehow they got into the flat. He said the man followed him into his kitchen, where he, Botros, had fallen on the ground. The man pointed the gun at him and he heard it “click” twice, before the man walked away.
Aizak said that, the night before, his brother and some friends had obtained some beer and spirits and had been drinking it from about 9 o’clock at night. They had stayed the night in Botros’s unit. The following day they were drinking again. He said he had a lot to drink. He was feeling tipsy. He remembered his brother leaving the unit after dark. He said he remained in the unit but he heard some arguing outside. He looked through a window and saw, below him, his brother and a man arguing. He went downstairs and tried to push the man and then saw the blade in his hand. He said he felt a pinch under his arm and realised he was bleeding. His brother was bleeding from his ear. He did not see his brother stabbed.
Aizak said he went back to the unit and heard two shots from behind the bushes. Then he heard a shot behind him and his brother fell down. This was in the kitchen near the door. He saw the man holding a gun with two hands.
The prosecution proved that samples of blood were taken from the two victims soon after the event. Botros was found to have a blood alcohol level of 0.25 per cent and Aizak was found to have a level of 0.308 per cent.
There are significant differences in the accounts of the two victims. Botros said he was with one of his friends when the incident happened. Aizak said that Botros left the unit alone. Botros claimed he had only had one bottle of Heineken on this day, yet his blood alcohol reading was extremely elevated.
The two shopping bags containing groceries which the prisoner had brought with him from the supermarket were found near the scene of the stabbing. They provide significant support for his account of what he was doing at the relevant time. It seems to me highly unlikely that, having obtained those provisions for dinner for himself, his girlfriend and her daughter and while carrying those groceries back to the unit, he would have instigated a confrontation with Botros and his companion, or companions. The prisoner says he was confronted by three men and, bearing in mind the inconsistency between the victims as to how many men left the unit just before this event, I am inclined to believe that is accurate.
The prisoner said he could not remember what caused him to say to the men “Don’t threaten my family”. The fact that he could not remember the events leading to that did not advantage him. It seems that soon after the event he told his supervisor at work that the men had tried to rob him. In any event, I reject the evidence of both Botros and Aizak as to how this incident commenced.
I accept on the balance of probabilities that the prisoner was confronted by three men and that he was threatened in some manner. I accept on the balance of probabilities that when he produced the knife and used it on the victims he was in genuine fear and thought it was necessary to use the knife.
There was a time lapse between the stabbings and the production of the sawn-off shotgun. I do not accept that in that time the prisoner was under any pressure or subject to any threats; although, no doubt, he was extremely upset. I am satisfied beyond reasonable doubt that when he retrieved the shotgun and took it back to the scene of the confrontation and that when he took it to the vicinity of Botros’s front door, he was not acting in self-defence. I find he was retaliating against what had happened to him and was minded to exact revenge upon the victims.
I consider that he deliberately shot the weapon alongside Botros and not directly at him. Plainly, had he wanted to, he could have killed Botros at that point. I do not consider that he intended a direct hit.
Because I was not impressed by any of the evidence it is extremely difficult to make any firm factual findings about how this event commenced and, indeed, how it finished. I am not satisfied that the prisoner entered the unit of Botros after shooting and injuring him near his front door.
For these reasons I propose to sentence on the basis that in committing counts 1 and 2 the prisoner was motivated by the wish to defend himself, but that the force he used was not reasonably proportionate to the threat he faced. In relation to the shot which is the basis of counts 4 and 5, I reject any suggestion that the prisoner was motivated by a need to defend himself.