R v Sawyer
[2002] VSC 600
•11 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1448 of 2002
| THE QUEEN |
| v |
| DANIEL JOHN SAWYER |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF PLEA: | 25 OCTOBER 2002 | |
DATE OF SENTENCE: | 11 DECEMBER 2002 | |
CASE MAY BE CITED AS: | R. v. SAWYER | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 600 | |
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Sentence – Manslaughter – Unlawful and dangerous act – Plea of guilty – Offender threatened with violence by drunken victim (who was a friend) and another after a party at victim's house – Offender who suffered from panic attacks feared for safety – Pursuit of victim by offender in four wheel drive vehicle – Fatal collision when vehicle slid down embankment – Remorse – Excellent prospects of rehabilitation – Sentenced to be imprisoned for 6 years with a minimum of 3½ years before eligibility for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Bill Morgan-Payler QC | Office of Public Prosecutions |
| For the Accused | Peter Morrissey | C & H Lawyers |
HIS HONOUR:
Daniel John Sawyer, you have pleaded guilty to the manslaughter of Gavin John Smeath at Diamond Creek on 13 October 2001. In order to sentence you it is necessary to summarise the circumstances surrounding the commission of this offence.
It had been arranged that your friends, Gavin Smeath and Ross Thompson would visit you socially at your home at 48 Challenger Street, Diamond Creek on the evening of 12 October 2001. Gavin Smeath was to bring his girl friend Michelle Coomer so as to acquaint her with your girl friend Lauren Elliot. When Gavin Smeath arrived at about 9 p.m. he also had with him two other young men, Lenny White and Martin O'Reilly, persons you had met but who you did not know well.
Ms Elliot and Ms Coomer remained inside the house while you and the other young men went to a large shed at the rear of the premises. It was equipped with a pool table and this was utilised during the early part of the evening. Music was played and alcohol, predominantly cans of Jack Daniels and Cola and Wild Turkey and Cola, was consumed by all of you. The others also smoked some marijuana. You did not do so because it was incompatible with the condition from which you suffered and for which you were on medication. This condition, chronic panic disorder, was a disability which it was submitted by your counsel Mr Morrissey, had some influence on your subsequent behaviour. I will describe it in more detail later.
At one stage in the evening Larry White, accompanied by Ms Coomer, who was the designated driver of the group purchased a slab of Wild Turkey and Cola from the Eltham Hotel. As the night progressed pool was replaced by what has been described as play fighting between Gavin Smeath and Ross Thompson, with Martin O'Reilly also participating. These activities which included wrestling and slap boxing were described by Ross Thompson as a friendly test of strength and skill.
At about 11.30 p.m. Lauren Elliot, who was a nurse and had to work the next day, went to bed. As Coomer went out to the shed where she observed that the pool table had been packed up and that members of the group were, to use her terms, drinking, talking rubbish and wrestling. She observed that apart from yourself the others were becoming quite intoxicated. In fact a preliminary breath test conducted on you at about 2 a.m. showed you to have a blood alcohol level of .09 per cent whilst your friend Ross Thompson had a preliminary reading of .140 per cent. The deceased Gavin Smeath had a blood alcohol reading of .2 per cent or four times the legal driving limit. Tests also confirm that he had consumed a quantity of marijuana which would have occasioned some impairment of his faculties.
About 12.15 a.m., when Ms Coomer left to go home, there was some discussion about Mr Smeath sleeping the night. Following her departure the wrestling and punching became more uninhibited and there was evidence to indicate, for example, that Ross Thompson bit Gavin Smeath on the neck. You became concerned that events were getting out of hand and that the premises would be damaged. You woke Ms Elliot telling her that the guys were "going stupid" and knocking things over in the shed. She suggested that you asked the group to leave, and this you did. Initially however your requests were ignored. Consequently at 12.40 a.m. you telephoned your brother Mark, asking him to come quickly as you needed help. A second call followed shortly after. While Mark was driving to your house, the now unwanted guests commenced to leave, you having given Mr White about eight of his recently purchased cans. According to Ross Thompson, O'Reilly said something to the effect that you were weak because you could not stay up drinking all night. Later Mr Thompson heard an unidentified person calling out threats to kill you from the area at the front of the house.
It seems that at about this time your brother Mark arrived. He observed three persons standing on the far side of the roadway opposite your house. These persons were Gavin Smeath, Martin O'Reilly and Lenny White. One of these persons threw a can which struck the left hand side of his white Toyota Corolla. He did a U-turn and after being subjected to some abuse told these persons to leave or he would call the police.
He then parked in your front driveway. One can clearly draw the inference that these young men, affected as they were by alcohol and cannabis resented having been evicted from their drinking venue.
The evidence of Mark Sawyer was that as these persons left the immediate vicinity of your house, they called out words to the effect "Dan, you're a dog", being a form of prison abuse, and also "We're going to kill you". Evidence from your neighbours, the Kollwitz family tends to confirm the use of the first of these expressions although they place its occurrence at a slightly later time. O'Reilly had been in prison and this abuse may well have emanated from him.
Your brother, Mark, deposes to telling you to get your Toyota four wheel drive vehicle and a spotlight to go looking for the men. The objective as far as he was concerned was to put on a display with a spot light and effectively cause the people to leave. This does not seem to have been a particularly sensible course of action since the men were no longer adjacent to your property. Nonetheless, you went along with it. Furthermore, your driving, which involved crashing through a pine barrier which separated a car park from an open grassed area, suggested that you were angry as well as upset by the situation.
You drove around the nearby sporting paddock areas for some minutes but did not observe anyone. On your return to 48 Challenger Street there was a brief conversation with your neighbours, the Kollwitz family in which, on one interpretation, you said that you would get the police. However, you did not at this stage contact the police.
There is material to suggest that thereafter voices yelling abuse such as "Dan, you're fucked" could be heard from bushland behind the nearby scout hall and tennis courts. According to your counsel you were upset at what had occurred, involving as it did your friend Gavin and you were further concerned that the men might return, particularly with your girlfriend sleeping in the house.
Evidence of your hyped up state may be gleaned by your action in punching and pushing your friend Ross Thompson while asserting that these events were his fault for bringing his druggie mates to your house.
It seems that a reasonable period of calm then followed. It was broken by the reappearance of Mr Smeath and the man O'Reilly collectively armed with some bar like weapons. One appears to have been dumb bell bar and the others may have been a ballpein hammer and/or a socket bar. Additionally O'Reilly had a dog on a leash which was apparently a cross between an Alsatian and a bull terrier.
When O'Reilly had lived temporarily at Ms Coomer's premises, the animal had been constantly kept in a cage. It was described by the witness Stasia Kollwitz as being quite angry on this evening and by Mr Frank Kollwitz as growling and barking. He also described the persons confronting you as "looking really aggro".
At this time you and your brother, Mark, were crouching behind Lauren Elliot's car which was also parked in the front driveway but nearer to the house. Words of abuse were exchanged between the two groups. Mark Sawyer deposes to the men outside yelling out things like "Come out, you're fucking dead" while he was calling out "Fuck off". Anthony Kollwitz heard the men outside call out "I've got your rego" being a reference to the car registration and "I know where you fucking live". Another neighbour, Mr John Wells, heard similar expressions with additional threats such as "You're fucked" and "We're going to get you". To him these appear to emanate from the man with the dog, being O'Reilly.
Next, at least one of the iron bars was thrown towards you in an escalation of the aggression. I accept that by this time you were panicking and fearful. You went into your house and asked Ms Elliot who had been woken by the yelling to call the police. This she did. The transcript of that call, which must have been made prior to 1.40 a.m., is an eloquent testimony to her fear.
You returned to the front yard where your brother had obtained a chainsaw from Ross Thomson, and had commenced revving it up. He advanced towards the two men who by this stage were in the driveway with the objective of frightening them away. According to Mark Sawyer, this provoked a throwing of what he thought was the dumbbell bar at him. He then told you to get in the four-wheel drive. You drove it from the property at about the same time as your brother was confronting O'Reilly with the chainsaw. There was evidence to suggest that you avoided both Gavin Smeath and O'Reilly when you initially entered the roadway. However the pair scattered soon after, O'Reilly apparently having suffered a superficial injury from the chainsaw. You drove at a fast rate of speed in a circle in the car park area of Challenger Street, twice mounting the footpath and twice smashing parts of the pine post barrier with the bullbar of your vehicle. You then straightened up and drove in a northerly direction towards the scout hall where Gavin Smeath was running.
You told the police in your record of interview that your intention was to scare both Gavin Smeath and O'Reilly away from your property because you were so scared that they were going to kill you. On your account you swerved to miss Mr Smeath but you lost control of your vehicle which slid down an embankment near the scout hall and collided with the deceased. The top rear portion of the driver's side of your cabin struck the deceased about the same time as it hit the wall of the scout hall. At this point the vehicle was tilting to the right and may have rolled over, had it not struck the wall of the building.
This reconstruction of what occurred is generally in accord with the expert evidence of Senior Constable Trevor Collins of the Major Collision Investigation Unit, who thoroughly examined the scene of this fatality. Further, the witness John Wells described your vehicle as driving along the top of the rise for about two metres before tilting and tipping and striking the scout hall. Accordingly I accept your version of what occurred. Dr Matthew Lynch, the pathologist who attended the scene and performed the post-mortem, stated that the ultimate cause of death was a head injury consistent with having been sustained when the cabin part of the vehicle struck the left side of the deceased's head. He also expressed the opinion that some of the injuries sustained may have been produced by the deceased being trapped between the vehicle and the brick wall adjacent to where he was located.
After the collision you effectively did a u-turn and returned to where Mr Smeath lay on the path beside the scout hall. You stopped the vehicle and the witness Anthony Kollwitz heard you say "Are you all right mate?" Clearly Mr Smeath was not all right and you travelled back towards your house, leaving your vehicle on the dirt roadway running beside the premises, before requesting Miss Elliot to call an ambulance. This she did at 1.43 a.m. Initially you lied about how the accident occurred, claiming your car had been taken and driven by an unknown person. Eventually however, having told the police that you had been too scared to tell them everything, you expressed the desire to tell the truth.
The Crown have accepted your plea to unlawful and dangerous act manslaughter on the basis that your driving of this four-wheel vehicle towards the deceased in a hostile manner and with the intention of putting him in fear, constituted an assault. Moreover your actions in driving the vehicle towards him constituted an objectively dangerous act. On behalf of the Crown Mr Morgan-Payler QC submitted that the use of your vehicle in this manner, resulting as it did in the fatal consequences, was a serious case of manslaughter. However he also conceded that the circumstances giving rise to this incident, namely the violence and threats directed against you while you were inside your private residence, constituted unusual and unique circumstances.
He acknowledged that there were also factors personal to you which needed to be taken into account in passing sentence. I will turn to those matters in a moment. Before doing so I wish to say something about the deceased.
Gavin Smeath was aged 24 at the time he died. In their victim impact statement his parents Rebecca and Gary Smeath write of the emotional distress the ongoing sense of loss they feel at Gavin's death. Mrs Smeath has suffered attacks of anxiety and depression and experienced sleeplessness. The capacity to work has also been affected. Further she has had to assist Gavin's brothers to come to terms with their devastating loss. Gavin had recently undertaken the responsibility of operating the business of Eltham Auto Gas an enterprise which undertook mechanical repairs and gas conversions that had been foundered by his father over 22 years earlier. The business has now had to been wound up. As his girl friend Michelle Coomer notes in her statement apart from his mechanical skills Gavin enjoyed motor bike riding, fishing and camping. Clearly he had many friends to whom he was loyal. The untimely and tragic death of Gavin Smeath is something from which his family and friends will never completely recover.
Daniel Sawyer you are now aged 26 years. In your early life you lived with your family, which includes two older brothers and a younger sister, in the Yarra Glen and Alexandra areas. Your mother, who is in ill health, practised as a nurse, and your father operated a wood cutting and wood delivery business. From about the age of seven you would help him. He trained you to split and load wood and on many occasions you camped in the bush with him. He also educated you informally as a mechanic. Your early education was had at Catholic primary schools and you subsequently attended Lilydale Technical School. You were a loner at school, finding it difficult to make friends and to cope with the school system. Consequently, at the age of 13 when the family moved to Echuca, you obtained a special dispensation to leave school. Thereafter you commenced to work full time with your father, being paid $40 per day. After work you would go fishing in the Murray. The family opened a pizza restaurant in Echuca and your family had the burden of operating both businesses. Whether the pressure involved became too great for your father, or whether it was because he was apparently prone to depression, he committed suicide. His body was found by you and your mother in his car. You were then aged 14. According to your counsel this had a devastating effect upon you, and your purpose in life. Your father had been your friend and mentor and it had been your intention to eventually take over the wood cutting business. You experienced great grief without the benefit of any counselling.
When you were aged 15 the family moved to Eltham. You would go motor bike riding in local paddocks and it was while pursuing this activity that you first met and became friendly with Gavin Smeath and Ross Thompson. At this time you were unemployed and spending a great deal of time caring for your Nana Doreen. About the age of 16 you had the first of many panic attacks. This occurred in the car in which your father had gassed himself. One effect of your condition was an inability to leave your house. You could not get into a car and you could not face people. Consequently your friendship with Gavin Smeath and Ross Thompson fell into abeyance.
At this time you received psychiatric treatment from a Dr Whittington at the North Park Private Hospital. You were prescribed Prothiaden, a mood stabilising medication. This type of medication has continued for the past nine years, the last two of which you have been treated with Aropax. Additionally for about a year up until April 2001 you were consulting a psychologist Dr Barry Cripps. However the medication and treatment has not been totally successfully in eliminating panic attacks.
Dr Lester Walton, a prominent consultant psychiatrist, described you as having chronic panic disorder with significant depressive features. One effect of this is to make a person such as yourself more vulnerable to experience anxiety and anxiety of greater intensity than normal. According to Dr Walton this condition impairs the ability to concentrate, to carefully and rationally consider the consequences of actions, and the ability to reason generally. The condition is increasingly viewed as a biological rather than a psychological one, and in your case the response to the medication Aropax has not, as I have said, been completely successful.
Returning to your personal history, the acquisition of a motor bike learners permit effectively heralded your return to the outside world. For a period you became an enthusiastic weight lifter with a desire to represent Australia at the Olympic level. This went to the extent of your mother paying for a personal trainer. During your teenage years you were placed on a disability pension. This is still the situation although you are permitted to earn certain sums of money. Accordingly, whilst you have not pursued formal employment, you have consistently been busy doing odd jobs. For example you would fix cars, and assisted your brother in a garden, maintenance and rubbish removal business and you have carved wooden rocking horses.
When you were aged 22 you met Lauren Elliot. She has now been your partner for over two years. She remains supportive of you and you plan a long term future together. Ms Elliot described you as a friendly, caring, thoughtful and generous person. In evidence during your plea Ms Elliot gave an insight into your condition which involved a dependency upon her. This extended to her having to go into shops to buy food or clothes for you. However, by the time in 2001 that you had moved with her to the Diamond Creek address, there had been a definite improvement in your condition.
Mr David Elliot, a civil engineer, echoed his daughter's assessment of your character and further described you as very motivated and industrious. He said you remained welcome in his home. Michael Thwaites, the managing director of Prestige Events, a firm organising corporate events and weddings, told the court that you had worked part time for him prior to this incident. He described you as multi skilled, hardworking and trustworthy. He professed his willingness to re-employ you upon your release from custody.
You have had several relatively minor Magistrates' Court appearances between 1993 and 1999. The early offence of dishonesty apparently involved the theft of a pushbike and the receipt of a stolen saddle and a drum kit. The last conviction, which has more relevance, relates to an altercation in a nightclub when you were badly affected by alcohol. You were convicted of assault although you yourself were hospitalised. The penalty imposed was a good behaviour bond conditional upon your receiving psychological treatment for your current condition. This is how you came to attend Dr Cripps. You fulfilled the conditions of that bond. In the circumstances I accord it minimal relevance in the sentencing process.
During your time in custody you have made a determined effort to improve yourself. Evidence was given on your behalf by Ms Anne Hooker, a Youth Development Officer at Port Phillip Prison who oversees the youth unit within the prison. According to Ms Hooker, you are viewed as a trusted prisoner employed as a billet. You also assist other first time prisoners in the unit who may be isolated or lonely. Ms Hooker told the court that you developed leadership skills, independence and self sufficiency while in prison. You have also successfully undertaken a number of programs. These include courses as diverse as Information Technology and General Education for Adults and Visual Arts, all with Kangan TAFE, and fork lift driving. Additionally you have participated in such programs as anger management, coping with anxiety and relapse prevention. You deserve credit for these efforts.
A number of witnesses attested to your remorse at what has occurred. The fact is that Gavin Smeath was one of a small number of friends you possessed. You had renewed the friendship of your teenage years and in fact you had gone camping with Mr Smeath just a week before this event. You were also a constant visitor to his workshop. There can be no doubt that his friendship was very important to you. It would appear that your relationship became distorted on this evening under the influence of alcohol and drugs and, it seems, the influence of the man, O'Reilly.
That fact that you have been responsible for the death of your friend has made your remorse all the keener. This is something that you will have to live with all your life and in itself constitutes a level of punishment. I am told that you suffer continual nightmares about the incident. Ms Elliot described you as grieving and finding it difficult to believe that your mate is dead.
Your own view is that it is appropriate that you be punished for what occurred and as a result you have never applied for bail. You must also be given credit for your plea of guilty. I do not, however, attribute the additional significance to it that was urged by your counsel. In my view, it constitutes the striking of forensic balance. Nonetheless, your remorse, your plea of guilty and your own recognition that you must be punished all reduce the weight that needs to be given to specific deterrence.
Moreover these factors, coupled with your prior industriousness and the positive efforts you have made to improve yourself while in prison, together with the ongoing support of family and friends, make your prospects of rehabilitation good. Dr Walton is guardedly optimistic about your psychiatric condition, although the treatment does not render you completely symptom free.
In relation to general deterrence, there is clearly a need to deter persons from using motor vehicles as weapons to resolve situations of conflict. You chose to confront these drunken men, rather than wait inside your house for the arrival of the police. You chose to pursue the retreating deceased, driving your vehicle in an aggressive manner.
Although the ultimate result was not intended by you, the fact remains that your actions have resulted in a young man's death. However, I do take into account the stress you were undoubtedly experiencing at the time, together with the impact of your panic disorder, upon your reaction to these events and your capacity for rational judgement. These factors may be regarded as moderating to some extent the weight to be attributed to general deterrence as reducing to some degree your level of moral culpability.
Ultimately, balancing as best I can the principles enunciated in the Sentencing Act including punishment, specific and general deterrence and rehabilitation, I conclude that you should be sentenced to be imprisoned for a period of six years. I fix a minimum of three and a half years before you become eligible for parole. Further I declare that the period to be reckoned as already served under the sentence is 425 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.
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