R v Russell

[2019] NSWSC 459

Supreme Court

New South Wales

Medium Neutral Citation:	R v Russell [2019] NSWSC 459
Hearing dates:	14-17 August, 20-23 August, 27-31 August, 3 September, 5-7 September, 10-14 September, 17 and 18 September 20185 April 2019
Date of orders:	26 April 2019
Decision date:	26 April 2019
Jurisdiction:	Common Law
Before:	Hidden AJ
Decision:	Aggregate sentence of 14 years, NPP 10 ½ years from 22 March 2016
Catchwords:	CRIMINAL LAW – sentence – manslaughter by excessive self-defence, defence of others – late plea of guilty – offender found guilty at trial of two related offences of discharge firearm with intent to cause GBH – incident involving discharge of pistol in a public street
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Category:	Sentence
Parties:	Regina (Crown) Matthew Glen Russell (Accused)
Representation:	Counsel: Mr G Tabuteau (Crown) Mr A Webb (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Andrew Scali Solicitors (Accused)
File Number(s):	2016/89392
Publication restriction:	None

Judgment

1. HIS HONOUR: Between August and September 2018, the offender, Matthew Glen Russell, stood trial before me on an indictment charging the murder of Qusay Al Mahanawi (count 1) and charges of discharging a pistol with intent to cause grievous bodily harm to Latu Vakauta and Tyson Parker (counts 2 and 3 respectively). Both offences carry a maximum sentence of imprisonment for 25 years, and a standard non-parole period of 9 years is specified for the offence of discharging a pistol with intent. In the trial, Mr Vakauta and Mr Parker were referred to by their first names, Latu and Tyson, and I shall do so in these reasons.

2. The charges arose from a confrontation between the offender and Latu and Tyson in Matthew Avenue, Heckenberg on 18 March 2016. It was the Crown case that during the incident the offender fired a pistol at both those men. The shots missed both of them but, by tragic misadventure, a shot fired at Tyson fatally wounded Mr Al Mahanawi, who was in the vicinity but was unknown to the three men and was not involved at all in the confrontation.

3. The murder count was left to the jury on the basis that the offender caused the death of Mr Al Mahanawi by a shot fired at another person, Tyson, with the requisite intent. After a lengthy retirement the jury found the offender guilty of each of the counts of discharging a pistol with intent to cause grievous bodily harm, but could not agree upon a verdict on the murder count. That count was stood over for retrial.

4. On 7 December 2018, the offender was rearraigned on the murder count and he pleaded not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full discharge of the count, it being agreed between the parties that it was entered on the basis of excessive self-defence and defence of others.

5. The offender now stands for sentence for the manslaughter and the two counts of discharging a pistol with intent.

Facts

6. There is not an agreed statement of facts and, while there is agreement as to the facts fundamental to each of the charges, there is some dispute between the parties about the detail of the incident and the circumstances giving rise to it. This involved some examination of the evidence at the trial.

7. The evidence of Latu and Tyson themselves was unsatisfactory. Both were clearly unwilling witnesses. They had given accounts to the police after the incident, but in evidence at the trial both claimed to have no recollection of relevant events or, indeed, of what they had told police about them. The Crown prosecutor was given leave to introduce what they had told police through cross-examination pursuant to s 38 of the Evidence Act 1995 (NSW). For present purposes, I accept such aspects of their evidence as amount to admissions of misconduct on their part, or otherwise are supported by other evidence in the case. For the most part, that evidence consisted of eye witness accounts of the incident, together with evidence of surrounding circumstances from witnesses associated with Latu, Tyson and the offender.

8. In the sentence proceedings the Crown prosecutor and counsel for the accused, Mr Webb, examined aspects of the evidence in some detail. However, for present purposes I find it unnecessary to engage in a fine analysis of it. The facts I accept for the purpose of sentence can be stated relatively briefly.

9. Latu and Tyson are brothers. At the relevant time they were living in different residences in or near Heckenberg. The offender was also living in Heckenberg, with his mother. He was visited there from time to time by his girlfriend. Over a period prior to the incident there had been ill feeling between Latu and Tyson, on the one hand, and the offender, on the other. The cause of this animosity is of no particular significance for present purposes, although I think it likely that it was due in part to provocative conduct on the part of the offender.

10. I also think it likely that in the afternoon of the day of the offences the offender behaved provocatively towards Latu when both were driving in a street in the relevant area. I make no finding as to what exactly occurred, because the only evidence of that is what Latu told the police. Latu was on his way home, where he lived with his girlfriend, Renee Milloy. Ms Milloy gave evidence that he told her that he wanted to go to the offender’s home to “sort it out.” The effect of Ms Milloy’s evidence was that she understood this to be a reference to the pattern of behaviour giving rise to the animosity between the two men. While he did not tell her about the provocative incident that afternoon, I think it reasonable to infer that it was something of that kind which precipitated his decision to confront the offender.

11. I accept that at some time during the later afternoon of that day Latu went to Eucumbene Crescent, Heckenberg, where the offender lived. His mother, Deanne Peterson, and his girlfriend, Sirene Awick, were at the home but the offender arrived later. Although there is some conflict between the evidence of Ms Peterson and Ms Awick as to what occurred, I accept the broad effect of their accounts. Put shortly, Latu was shouting what amounted to threats to kill the offender and to kill Ms Awick. Later Latu and Tyson walked through a park situated between Eucumbene Crescent and Matthew Avenue, also calling out what amounted to a threat to kill the offender. It is unclear from the evidence of the two women whether the offender was at home at that point or arrived shortly thereafter. However that may be, aware of what had occurred, he armed himself with a .32 calibre loaded pistol and drove in his car to Matthew Avenue.

12. It was then that the incident giving rise to these charges occurred. It is at this point that a line needs to be drawn through the accounts of Latu and Tyson to police and the observations of eyewitnesses. I accept that the offender arrived in Matthew Avenue in his car at the time Latu and Tyson were approaching that street on foot. Latu had picked up two rocks in the park. The offender drove off and Latu and Tyson pursued the car. Latu threw a rock at the car, shattering the front passenger side window. At or about this time the offender fired a shot, but whether that was before he drove off or afterwards, in response to the rock being thrown at the car, I cannot say. A number of shots, certainly four and probably five, were fired during the incident.

13. Latu and Tyson crossed to the other side of Matthew Avenue. There Tyson was observed by two witnesses to be carrying a knife (or something of similar appearance). While this was not seen by other witnesses and no object of that kind was found afterwards, I see no reason not to accept their evidence.

14. Parked on that side were a Kia Rio, which was unoccupied, and a Corolla, occupied in the driver’s seat by Mr Al Mahanawi. The offender did a U-turn and drove back on that side of the street. He fired a shot at Latu, who was taking cover behind the Kia Rio. This shot was the subject of the second count in the indictment, the first of the charges of discharging a pistol with intent. The shot struck the car but missed Latu.

15. The offender then stopped his car and alighted from it near the Corolla. Tyson was on the footpath on the passenger side of the Corolla or near to it. The offender fired the pistol at Tyson, missing him but striking the unfortunate Mr Al Mahanawi. This shot was the subject of the third count, the second charge of discharging a pistol with intent, and the first count, the murder.

16. There is some conflict in the evidence about the proximity of both the offender and Tyson to Mr Al Mahanawi’s car when this shot was fired. The Crown prosecutor argued that even though Mr Al Mahanawi was not the intended victim, the shot was fired very close to him, indeed at point blank range. Counsel for the offender, Mr Webb, submitted that this was inconsistent with credible eyewitness evidence.

17. There is support for the Crown submission in the evidence of the post mortem examination of Mr Al Mahanawi, identifying the bullet having entered Mr Al Mahanawi’s head above the right ear, then tracking posteriorly and anteriorly, right to left and slightly downwards, and lodging beneath the skin on the left cheek. This may well be consistent with Mr Al Mahanawi having occupied the driver’s seat of the Corolla and the shot having been fired close to the driver’s window. In my view, little turns on this dispute. On any view of it, the shot was fired in circumstances where there was a very real risk of death or a serious injury to an innocent bystander. Tragically, that risk came home.

18. Immediately after the fatal shot the Corolla moved off, apparently out of control. It struck Tyson and crashed into the front fence of an adjacent block of units, where it came to rest. Tyson suffered significant injuries, which required admission to hospital.

19. The offender’s case at trial was that he was acting out of fear for the safety of himself, his mother and his girlfriend, Ms Awick. In legal terms, it was his case that he believed it was necessary to shoot at Latu and Tyson in self-defence, and in defence of his mother and his girlfriend, and that his response was a reasonable one in the circumstances as he perceived them: s 418 of the Crimes Act 1900 (NSW). His plea of guilty to manslaughter was offered and accepted on the basis that at the time he believed it was necessary to act as he did to defend himself, his mother and his girlfriend, but his conduct was not a reasonable response to the danger which he believed he and they faced.

Subjective case

20. The offender was 28 years old at the time of these offences, and is now 31. He has a criminal history, mainly between 2004 and 2010. For the most part it comprises driving offences, possession of drugs, and offences of breaking and entering, including aggravated breaking and entering in company. On a number of occasions he was sentenced to terms of imprisonment. Since 2010, however, the record is much more sporadic, involving convictions for driving whilst disqualified, resisting an officer, stalking and intimidating and possessing prohibited drugs. For these he was sentenced to short terms of imprisonment.

21. The offender’s background emerges from a report of Dr Mark Milic, forensic psychologist, prepared for the purpose of these sentence proceedings. I also received reports prepared in 2017 by Dr Olav Nielssen, psychiatrist, and Ms Anne Lucas, psychologist, prepared in advance of the trial.

22. The offender is one of three siblings. He had a disturbed background because his father abused alcohol and drugs and, particularly after consuming alcohol, was violent towards the offender and his siblings, as well as their mother. Formal testing by Ms Lucas estimated his intellectual functioning to be in the borderline range. His schooling was unsatisfactory. He experienced ridicule from other students because of his poor academic performance, and he was given to angry outbursts and fighting. He left school at the end of year 8.

23. His father would abuse him, calling him “dumb” and “idiot” because of his school performance, and his self-esteem was low. He told Dr Milic that from his father he learnt “the bad habit of reacting to disputes with violence”, adding that he knew that this was not “the right way.” His father left the family home when he was in his late teens, and he has had minimal contact with him since.

24. He began to abuse illicit drugs from the age of 14. His principal drug problem was the use of methamphetamines, which he began at the age of 16 and which was continuing at the time of these offences. At one stage he participated in the Drug Court program but he did not complete a period of residential rehabilitation.

25. As it happens, at the time of these offences he had achieved a measure of stability through his relationship with his girlfriend, Ms Awick. Unfortunately, after he had been in custody for a period in respect of this matter, she broke off that relationship. He has maintained contact with his mother, his sister and his brother-in-law, who visit him in gaol.

26. Dr Milic noted his borderline intellectual functioning and the emotional damage he had experienced through his background, particularly his relationship with his father. The doctor expressed the view that he had “limited skills in dealing with conflicts in a nonviolent manner”, and thought it likely that his ice addiction played a major part in the offence.

27. To Dr Milic the offender expressed a measure of remorse for the killing of Mr Al Mahanawi, saying that he wished to apologise to his family and ask them if he could do anything to help them. He said of Mr Al Mahanawi that he was “just an innocent person who got caught in my anger.” He also told Dr Milic that he had nominated himself for courses and a rehabilitation program in custody, but had not so far been accepted into any such program.

28. Dr Milic saw the offender as demonstrating “potential for rehabilitation by acknowledging his limitations and expressing empathy for the victim” (Mr Al Mahanawi). He considered it likely that he would benefit from anger management, literacy and vocational programs while in custody, helping him to integrate into the mainstream community.

Sentencing issues

29. The manslaughter is a serious offence of its kind. I proceed on the basis that the offender shot at Tyson with the intention to cause him grievous bodily harm, not to kill him. That said, while the offender fired the fatal shot in the belief that it was necessary to do so to defend himself, his mother and his girlfriend, it was plainly unreasonable. He could have driven from the scene and, if necessary, sought the assistance of police. While the incident no doubt unfolded quickly, there was a measure of deliberation in his executing a U-turn, driving back down Matthew Avenue, and firing the weapon as he did. The offence is aggravated by the fact that a firearm was used and was fired in a public street, posing a real danger to the safety of members of the public.

30. Equally, the discharge of the pistol in a public place tends to elevate the seriousness of the offences of discharging a firearm with intent. On the other hand, it is of course relevant that the offender did so in the belief that it was necessary to defend himself, his mother and his girlfriend. Because his conduct was unreasonable that provides no defence to those charges, but it bears upon the gravity of those offences because it reduces his moral culpability for them. As to all three offences, I note Dr Milic’s opinion as to the part his ice addiction may have played. However, I do not consider that there is adequate evidence to establish that and, in any event, I would not see it as a matter bearing upon their objective gravity.

31. I take into account the offender’s troubled background, noting his borderline intellectual functioning and the emotional scars he sustained through his father’s abusive conduct. His criminal history should be understood against that background, as must his drug addiction. The criminal history does him no credit, but it contains nothing of the nature and gravity of the present offences and I consider it of limited significance for the purpose of sentence.

32. He has not expressed any remorse for the offences of discharging a pistol with intent to cause grievous bodily harm to Latu and Tyson. However, as I have noted, he did express remorse to Dr Milic about the killing of Mr Al Mahanawi and I accept it as genuine. The significance of this, together with his expressed desire to take part in courses and rehabilitation programs while in gaol, is that it does demonstrate some insight by him into the gravity of his conduct and the need to address the causes of his pattern of antisocial behaviour. Any assessment of his prospects of rehabilitation must be guarded, but the fostering of such prospects as there are is a matter which I must take into account in determining the appropriate sentence. Of course, the sentence must also give full weight to considerations of retribution and deterrence, both general and personal.

33. The offender is entitled to some reduction of sentence for the manslaughter for the utilitarian value of his plea of guilty. This matter was dealt with at some length in submissions by counsel but, here also, I can state my conclusion briefly. It is apparent from the 2017 reports of Dr Nielssen and Ms Lucas that, at the time they interviewed the offender, he denied any involvement in the incident and claimed that he was not present in the area when it was said to have occurred. However, after a conference with Mr Webb prior to the trial in August last year, he accepted the reality of the Crown case, acknowledging his involvement but raising the issue of self-defence and defence of others.

34. This enabled the trial to be conducted in an economical manner whereby, apart from Latu and Tyson, the evidence of witnesses was largely unchallenged and the focus was upon the issue of self-defence and defence of others. After the trial a formal offer was made on behalf of the offender to plead guilty to manslaughter, spelling out the basis upon which that plea was offered. Of course, in the history of the matter the plea was offered very late. Nevertheless, it averted the necessity for a retrial and deserves to be considered in the light of the focussed manner in which the trial last year was able to be conducted. I would allow a reduction of sentence of 12 ½ per cent.

35. The three offences arose from the same incident but, clearly, there must be a measure of partial accumulation of the sentences. There should be some accumulation in respect of each of the charges of discharging a firearm with intent, and a further measure of accumulation upon the sentence for the manslaughter. No submission was made that I should find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period and, in any event, the overall sentence I have in mind would provide a period of parole eligibility adequate to further the offender’s rehabilitation.

Sentence

36. In determining the appropriate sentence I have had regard to a number of decisions of the Court of Criminal Appeal relating to sentence for manslaughter by excessive self-defence, referred to me by the Crown Prosecutor, and a table of sentences for the same offence at first instance and on appeal, prepared by the Public Defenders and supplied by Mr Webb. I shall not set them out here. With the well recognised limitations on the amount of guidance which can be provided by other sentencing decisions, I have found those cases of some assistance in resolving the present matter.

37. I propose to pass an aggregate sentence. Before specifying that sentence I must set out the indicative sentences for each of the offences. For the manslaughter, allowing a reduction of 12 ½ per cent from a starting point of imprisonment for 12 years, I would indicate a sentence of 10 ½ years. For each of the offences of discharging a firearm with intent I would indicate a sentence of imprisonment for 8 years with a non-parole period of 6 years. The aggregate sentence I have determined is imprisonment for 14 years with a non-parole period of 10 ½ years. It will commence on the date on which the offender was taken into custody, 22 March 2016.

36. Matthew Glen Russell, for the offence of manslaughter and the two offences of discharging a firearm with intent to cause grievous bodily harm, you are sentenced to an aggregate term of imprisonment for 14 years, comprising a non-parole period of 10 years and 6 months, commencing on 22 March 2016 and expiring on 21 September 2026, and a balance of term of 3 years and 6 months, commencing on 22 September 2026 and expiring on 21 March 2030. You will be eligible for release on parole on 21 September 2026.

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Decision last updated: 26 April 2019