R v Scott David Lynn

[2008] NSWSC 1122

CITATION:	R v Scott David Lynn [2008] NSWSC 1122
HEARING DATE(S):	21/07/08, 5/09/08, 26/09/08
JUDGMENT DATE :	7 November 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Sentenced to imprisonment for 7 years, comprising a non-parole period of 4½ years from 18/08/06 to 17/02/11, and a balance of term of 2½ years from 18/02/11 to 17/ 08/13.
CATCHWORDS:	CRIMINAL LAW - sentence - plea of guilty to manslaughter in satisfaction of murder indictment - excessive self-defence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW)
CATEGORY:	Sentence
CASES CITED:	R v McNaughton (2006) 66 NSWLR 566 R v Hamilton [2007] NSWSC 452 R v Trevenna (2004) 149 A Crim R 505 R v Cakovski [2005] NSWSC 1001 R v Forbes (2005) 160 A Crim R 1
PARTIES:	Regina (DPP) Scott David Lynn (offender)
FILE NUMBER(S):	SC 2007/3471
COUNSEL:	T Bailey (Crown) G Wendler (offender)
SOLICITORS:	Solicitor for Public Prosecutions AKN & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 7 November 2008

2008/3471 Regina v Scott David Lynn

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Scott David Lynn, pleaded guilty to the manslaughter of Joshua Randle at Parramatta on 14 July 2006. That plea was accepted by the Crown in discharge of an indictment for murder. In April of this year he was tried before Fullerton J for the murder of Mr Randle, but the jury was unable to agree upon a verdict.

Facts

2 An agreed statement of facts recites that on 14 July 2006 the deceased and his fiancée, Toni Kellaway, joined friends at the Woolpack Hotel at Parramatta. They drank together until one of them was refused service, whereupon they moved on to the Hotel Parramatta, where they continued drinking. At 5. 45 pm the deceased and Ms Kellaway left the hotel and walked along Darcy Street towards Hungry Jacks Restaurant on the corner of Church Street Mall.

3 The deceased approached an acquaintance of his, Grant Kelly, who was standing in the mall outside the restaurant. They shook hands in friendly greeting. The deceased looked over Kelly’s shoulder and saw the offender standing immediately behind him. The deceased said to Kelly, “What are you hanging around dickheads for?” Kelly asked, “Are you two arguing?” The deceased rejoined, “Don’t worry, I smashed him once before.” Ms Kellaway, standing next to the deceased, attributes to him the statement, “I will kill you, motherfucker!” She heard the offender say, “Not if I get you first.”

4 The offender reached over Kelly’s shoulder and stabbed the deceased once, very quickly, at the base of the neck above the collarbone. He then ran west through an alleyway adjacent to Berg’s Hobby Store into a rear car park. The deceased staggered after him for a short distance before returning to the front of the hobby store, where he started coughing up blood in the presence of Ms Kellaway and two passers-by. He was laid on the ground, and ambulance officers attended. He was removed to Westmead Hospital, where he died from his injury before midnight.

5 Post mortem examination revealed that he had died from blood loss due to the stab to the upper chest, which perforated a large vein above the heart before wounding the lung. Analysis of ante mortem blood revealed a blood alcohol level of 0.193 g/100ml. He was 167 cm tall and weighed 67 kg.

6 About three or four weeks prior to this incident, both men had fought each other with fists in a public area in Parramatta. Friends of the deceased broke up the fight. Once again, the deceased was intoxicated.

7 The offender was arrested on 17 July 2006 and declined to be interviewed. He was released and re-arrested on 18 August 2006, when he was charged with murder. He has been in custody referable to this offence since that date.

8 The Crown prosecutor accepted the plea of guilty to manslaughter on the basis of excessive self-defence, that is, that the offender believed that he had to defend himself but his response was disproportionate to the threat which he perceived. The agreed statement of facts does not identify the weapon which was used. However, I was supplied with the transcript of the evidence before Fullerton J of the forensic pathologist who conducted the post mortem examination, Dr Peter Ellis. From the appearance of the stab wound, Dr Ellis concluded that the offender must have used a narrow blade of some kind, mostly likely a knife.

Victim Impact Statements

9 Whatever might have been the circumstances leading to the killing, the outcome is the violent and untimely death of a man in his mid-thirties. I received a victim impact statement by the deceased’s sister, Ms Melanie Randle, who read the statement to the Court. It describes eloquently the serious and enduring effects of this tragedy upon her and the whole of her extended family, including the deceased’s children. I received a further victim impact statement by Ms Kellaway, explaining equally grave effects upon her and her daughter, who was seven years old at the time of the killing. In the sentence proceedings I expressed my deepest sympathy to Ms Randle, Ms Kellaway, and all those affected by this tragic incident, and I do so again now.

Subjective case

10 The offender was 29 years old at the time of the offence and is now 32. He has a lengthy criminal history, commencing in the Children’s Court in the early 1990’s. Almost all his adult convictions were in the Local Court. Broadly speaking, he has been dealt with over the years for offences of violence and dishonesty, together with drug and driving offences. On a number of occasions he has been sentenced to short terms of imprisonment.

11 More significantly, in December 2000 at Parramatta District Court, he was sentenced to imprisonment for 2 years, with a non-parole period of 12 months, for using an offensive weapon to prevent his lawful apprehension. In June 2004 at Central Local Court he was placed on a bond, with a number of conditions obviously framed to foster his rehabilitation, for using an offensive weapon with intent to commit an indictable offence. I was supplied with the facts of the first of those offences. On 20 February 2000 he was observed by staff at a supermarket at Rosehill to be stealing items. He ran from the store and was pursued. On three occasions during the pursuit he produced a syringe, which apparently was empty, and threatened to use it to stab one of the store employees who was chasing him.

12 As to his background generally, I have a pre-sentence report from the Probation and Parole Service, and the offender and his mother gave evidence. He was brought up in Tamworth. He has an older sister, with whom he maintains contact. Some years ago he had been in a relationship with a woman, and they had two children. Sadly, that woman took her own life. The two children, now aged 16 and 11, have been in the care of their grandmother.

13 When he was about 8 years old, his parents separated and there were bitter and protracted divorce proceedings. According to his mother, there were numerous custody battles, and it appears to have been a disruptive and distressing period for the offender and his sister. Indeed, his mother became emotional in the witness box when she described the effect of these events upon him. It is likely that this disturbed period of his life was the genesis of his conflict with the law.

14 His father died 12 years ago, and his mother has since remarried. He left school during year 8. He has had periods of employment, including work at a car yard run by his stepfather. In earlier years he abused heroin and amphetamines. He ceased using heroin about 8 years ago, but remained a casual user of amphetamines up to the time of his arrest for the current offence. He does not appear to have a drinking problem, and he told the author of the pre-sentence report that he was able to control his drug use.

15 He expressed remorse for what had occurred to the Probation and Parole officer, but it is difficult to assess how genuine it is. He expressed no contrition in evidence, although it must be said that he was not asked a question directed to that issue. He claimed to have little or no memory of the killing of the deceased, including the weapon he had used. I find this difficult to accept. I also found him less than forthcoming when he was cross-examined by the Crown prosecutor about some of his previous convictions.

16 Generally, he did not present as a person prepared to accept full responsibility for his wrongdoing on the occasion in question or in the past. This was also the assessment of the author of the pre-sentence report, who had reviewed his contact with the Probation and Parole Service since 1995. The officer wrote that his response to supervision in the past had “generally been lacking and characterised by failing to address his offending behaviour and re-offending.” Nevertheless, he had told the officer that he was willing to undertake counselling upon his release and he was reported to be “suitable for a high level of intervention by this Service, commensurate with the assessed risk”.

17 He said in evidence that, upon his release, he hoped to stay with his mother until he could find his own accommodation, to resume employment with his stepfather, and to re-establish his relationship with his two sons. In this he has the support of his mother, who also said that his stepfather had maintained a “reasonably good relationship” with him and would “help him wherever he can”. Given his criminal history and what I perceive to be his limited insight into his offending, I am guarded about his prospects of rehabilitation. Nevertheless, the support of his family is valuable and I propose to structure the sentence in such a way as to encourage it.

Sentencing

18 The offender stands for sentence for a spontaneous killing by an act which was a reaction – albeit, an overreaction -- to a perceived threat. The circumstances must be understood against the background of the earlier incident described in the agreed facts. I emphasise that these observations are directed to an assessment of his objective criminality. I would not presume to pass judgment upon the behaviour of the unfortunate deceased. The offence is aggravated by the fact that a weapon was used. That factor is worthy of some weight in assessing the objective gravity of the offence, although generally it is of limited significance in a homicide case.

19 What is disturbing in the present case, however, is not only that the offender used a weapon but also that he was carrying one. I have referred to his prior convictions of offences involving the use of a weapon. Those convictions are of concern, as is his criminal history generally. I approach that history, including the offences involving a weapon, in accordance with the principles examined by the Court of Criminal Appeal in R v McNaughton (2006) 66 NSWLR 566. It calls for greater weight to be given to considerations of retribution, personal deterrence and the protection of society in the sentence which I pass.

20 While I have questioned the extent of the offender’s remorse for this crime, I do not think that he is devoid of it. Rather, as I have said, I believe that he lacks appropriate insight into his criminality on this occasion, as he does in relation to past offences. This is something which might develop with counselling. It may be that the tragic consequences of the present offence, which is so much more serious than anything in his criminal history, will set him on that course. It is this, together with the support of his family, that persuades me that his rehabilitation should be encouraged by a finding of special circumstances warranting a departure from the usual proportion between sentence and non-parole period.

21 Counsel for the offender, Mr Wendler, referred to me the remarks on sentence of Adams J in R v Hamilton & Sandilands [2007] NSWSC 452. Hamilton had been sentenced for manslaughter and Sandilands as an accessory after the fact to that crime. Mr Wendler submitted that I would derive guidance from the case, because it was concerned with a plea of guilty to manslaughter on the basis of excessive self-defence by a man in his thirties with a substantial criminal history. Adams J extended considerable leniency to Hamilton, sentencing him to imprisonment for 5½ years with a non-parole period of 2½ years. However, little or no assistance is afforded in the exercise of the sentencing discretion by reference to one other case. Moreover, Adams J was dealing with a case which was unusual on its facts and with an offender whose subjective case, despite his criminal history, was markedly more favourable than the present offender’s.

22 Mr Wendler also submitted that I should pass a sentence of 3 years or less, so that the offender would be entitled to release at the expiration of the associated non-parole period: s50 Crimes (Sentencing Procedure) Act 1999. I could not responsibly take that course. Such a sentence would not meet community expectations reflected in current sentencing standards, and would fail to mark the offender’s criminality.

23 It has often been said that it is difficult to determine a range of sentence for manslaughter because it embraces such a wide variety of criminal behaviour. That is not to say that no guidance can be found in a series of other cases; it is merely to acknowledge that they can provide no more than limited assistance in determining the appropriate sentence in a particular case. If regard were to be had to Adams J’s sentence in Hamilton, it would be necessary to consider a number of other cases of sentence for manslaughter by excessive self-defence: see R v Trevenna (2004) 149 A Crim R 505, R v Cakovski [2005] NSWSC 1001, and the other sentencing decisions referred to in those cases; see also R v Forbes (2005) 160 A Crim R 1. As one would expect, even within that category of manslaughter the circumstances of those cases varied considerably, and sentences ranged from 5 years to 12 years.

24 In my view, but for the offender’s plea of guilty the present offence would have called for a sentence of imprisonment for 8 years. I would reduce that by 12.5 % in recognition of his late plea of guilty, leading to a term of 7 years. Finding special circumstances, I would fix a non-parole period of 4½ years. The sentence will commence on 18 August 2006.

25 Scott David Lynn, you are sentenced to a non-parole period of 4½ years, commencing on 18 August 2006 and expiring on 17 February 2011, and a balance of term of 2½ years, commencing on 18 February 2011 and expiring on 17 August 2013.

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