R v Stephenson

[2007] NSWSC 672

CITATION:	R v Stephenson [2007] NSWSC 672
HEARING DATE(S):	23/03/2007; 30/03/2007; 08/06/2007
JUDGMENT DATE :	29 June 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hidden J at 1
DECISION:	Imprisonment for a non-parole period of three-and-a-half years commencing on 25 February 2006 and expiring on 24 August 2009, and a balance of term of two-and-a-half years, commencing on 25 August 2009 and expiring on 24 February 2012.
CATCHWORDS:	CRIMINAL LAW - Sentence - Manslaughter - domestic context - no history of violence - offender affected by drugs and alcohol
CASES CITED:	R v Hamid (2006) 164 A Crim R 179 R v MacDonald (CCA, unreported, 12 December 1995) R v Nardoni [1999] NSWSC 1097 R v Engert (1995) 84 A Crim R 67 R v Forbes (2005) 160 A Crim R 1
PARTIES:	Regina (Crown) Darren Robert Stephenson (offender)
FILE NUMBER(S):	SC 2006/2881
COUNSEL:	P Barrett (Crown) P Punch (offender)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) M Raphael & Assoc (offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Friday, 29 June 2007

2006/2881 Regina v Darren Robert Stephenson

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Darren Stephenson, stands for sentence, having pleaded guilty to the manslaughter of his partner, Jodie Zaric on 25 February 2006. That plea was accepted by the Crown in discharge of an indictment for murder.

Facts

2 An agreed statement of facts has been prepared, supplemented by certain further material to which I shall refer. The agreed facts, to which I have made some inconsequential amendments, are as follows:

The victim Jody Zaric was born on 22 August 1978 and was aged 27 years at the time of her death. The offender was born on 18 January 1963 and was aged 43 years at the time of the victim’s death.
The victim and the offender had been in an intimate relationship for approximately eight years prior to her death. The victim would spend some of her time living with the offender and the remainder of her time living with her mother. The relationship was a volatile one.
On Friday 24 February 2006 the victim won $10,000 in a competition run by a radio station.
From about 5pm that day the victim and the offender were spending the evening celebrating the win at 3 Asford Close, Hinchinbrook. This is the residential address of the offender. No one else was present during the evening.
Throughout the evening the victim and the offender consumed alcohol as well as some amphetamines and cannabis. The offender had consumed about six or seven beers. The offender consumed half of a fifty dollar supply of speed and a couple of cones of cannabis. The victim also consumed some amphetamines and speed.
In the early hours of the morning on Saturday 25 February 2006 a verbal argument developed between the offender and the victim. During the argument the offender punched the victim several times to the head with a closed fist. As a result of the blows the victim lost consciousness. At the time of the assault the victim was sitting on the lounge in the lounge room.
Around the time that the victim was being punched by the offender, the victim scratched the offender on the cheek. The scratch was minor and in no way provoked the offender.
Shortly before 5am, about the time that the victim lost consciousness, the offender dialled 000. He was given directions to perform CPR by the operator and did so. He was not able to restart the victim’s breathing.
Ambulance officers arrived at 4.57am. The victim was unconscious, not breathing and had no pulse. The offender made admissions to the Ambulance officers that he had punched the victim in the head numerous times. The officers then called the police. The Ambulance officers were able to restore the victim’s pulse and transported her to Liverpool Hospital, arriving at 5.35am.
Sgt Brendan Bernie and Cst Kim Shepherd arrived at the scene at 5.18am. Sgt Bernie introduced himself and asked the offender what had happened. The offender admitted that he punched the victim “about four times”. He was then arrested and cautioned. Sgt Bernie asked where the assault occurred. The offender stood up and walked over to the two seat lounge opposite the television screen. He pointed to the headrest section of the lounge and said “She was laying, her head was there, and I was punching her.”
Sgt Bernie then removed a voice recorder from the police vehicle and, with the knowledge and consent of the offender, interviewed him.
The offender was arrested and taken to Green Valley Police Station. He participated in an ERISP interview and made admissions to assaulting the victim.
In the afternoon of 25 February 2006 the victim was pronounced dead at Liverpool Hospital.
A post-mortem was conducted. It was found that the direct cause of death was a traumatic basal subarachnoid haemorrhage.
The offender is not able to say whether the performance of CPR on the victim, by the offender under instruction, in any way contributed to the death of the victim.

3 I also received in evidence a transcript of the recorded police interview and of the 000 call, together with a statement by the offender prepared for these proceedings. That statement outlined the offender’s relationship with the deceased and described the events leading to her death. The Crown prosecutor did not object to its tender, but did not concede the truth of all that is contained in it. The offender also gave an account of those matters to the author of a pre-sentence report and to a psychiatrist who examined him for forensic purposes, and who also provided a report. The offender did not give evidence.

4 In the recorded interview with the police he gave an account of his attack upon the deceased, as he did to the Probation and Parole officer and the psychiatrist and in his statement to the Court. It is unnecessary to set out those accounts. They add nothing of significance to what appears in the agreed facts. It is apparent from those facts that he gave different estimates to different people of the number of times he struck the deceased. To the Probation and Parole officer and in his statement to the Court he said it was no more than four, and to the psychiatrist he said it was two or three. In my view, nothing turns on this. What matters is that, however many times he punched that unfortunate woman, he did so with such severity as to cause her death.

5 That said, I accept that the assault was spontaneous and brief. I also accept that he was significantly affected by alcohol and drugs at the time. No doubt, that contributed to his actions and provides some explanation for them, although, of course, it does not excuse them. I have not heard a recording of the 000 call he made, but the transcript of it is telling. It portrays a man who is horrified at what he has done, who is frantic, and who is desperate for advice about how to revive his victim. More than once he is recorded as urging her to “come on” and as declaring his love for her.

6 The offence must be understood against the background of the relationship between the offender and the deceased. The assertion in the agreed facts that it was volatile is fleshed out in the supplementary material. It is not necessary to sketch its history at any length. It is sufficient to say that it was a relationship characterised by jealousy, with each party tending to suspect the other of infidelity. There was an obsessive quality to the relationship, particularly on his part, and there were many arguments. However, he had never struck her before, although he acknowledged to the Probation and Parole officer that on a few occasions he may have pushed her.

7 The offender’s statement records, and I accept, that about five years before she died the deceased found that she was pregnant to him. She wanted to have the baby but he did not. She eventually had an abortion, it being agreed that she should work for a period of years before they had a child. However, the abortion affected her badly, and she would sometimes speak to him about the child they might have had.

8 In his statement the offender also gave an account of the argument which triggered his assault upon the deceased. It is not necessary to recite that account, which I also accept. I need say no more than that the argument arose out of their jealous relationship, with the deceased on this occasion accusing him of intimacy with a woman who had previously been his partner. However that may be, their interaction on this occasion led to a violent response on his part, with tragic results. It is apparent from the 000 call and from his ready admissions to ambulance officers and police that he was immediately deeply remorseful for his actions, and it is clear from the whole of the material before me that he remains so.

Victim Impact Statement

9 None of this is to deny the seriousness of this crime. A young woman is dead. Victim impact statements were read to the court, from which it is clear that her death has left a number of loved ones bereft. There were two statements, one by Ms Zaric’s natural father and her siblings, and the other by her mother and step-father. They express eloquently the grief of those unfortunate people, their outrage and their sense of loss, and the serious and enduring effects which this tragedy has had upon their lives. I have regard to those statements in accordance with established authority. I expressed my deepest sympathy to all those people at the time the statements were read, and I express it again today.

Subjective case

10 The offender is now forty-four years old. He has a minor criminal record, including some drug offences, but he has never been in custody prior to his arrest for the present offence. Significantly, his record contains no entries for violence.

11 His background is sketched in the pre-sentence report. He had a satisfactory upbringing. He left school after year 9 and appears to have been consistently in employment since. I received statements from his parents and from one of his siblings, from which it appears that he has been a responsible citizen, that he is not known for violent behaviour and that the offence is entirely uncharacteristic. He enjoys his family’s continuing support.

12 He had been in a long-term relationship with his previous partner, and they have a son. She also has a son from an earlier relationship. A statement by her also attested to his good character, saying that he has never been violent to her or to their sons and that he has always been an exemplary father to both boys. She also pledges her continuing support.

13 What appears to have marred his life is his substance abuse. This issue is dealt with in the pre-sentence report and in the report provided by the well known forensic psychiatrist, Dr John Roberts. He has used illicit drugs since his late teenage years, starting with cannabis but later including amphetamines. He has also consistently drunk alcohol. Normally he would not drink to excess, but his consumption would increase markedly when he used amphetamines at the same time because the drug increased his tolerance to alcohol.

14 Dr Roberts examined his pattern of drug and alcohol use with some care in his report, and concluded that it was probable that this violent incident would not have occurred if he had not been using those substances on the occasion in question. From the pre-sentence report it appears that he has been undertaking drug and alcohol counselling in custody, and the author of the report recommended that he continue to pursue it. Dr Roberts did not diagnose any psychiatric disorder, but recommended a comprehensive course of treatment for his substance abuse upon his release.

Sentence

15 This is a disturbing case and I have found it a difficult sentencing exercise. The plea of guilty to manslaughter was accepted on the basis that the offender caused Ms Zaric’s death by an unlawful and dangerous act, without intending to kill her or to inflict grievous bodily harm upon her. I accept that there was no violence of any significance in the offender’s relationship with the deceased, and that there is no history of violence in his life generally. I find it extraordinary that such a man could conduct himself so violently, with fatal consequences, on the occasion in question. While his volatile relationship with the deceased provides the background to the incident, such explanation as there is for it can be found only in his ingestion of drugs and alcohol. The result was conduct which, clearly, was entirely out of character.

16 I take into account his plea of guilty to manslaughter, although I do not find it necessary to quantify the leniency which that has earned him. He is also entitled to consideration for his prompt admissions to ambulance officers and police, for his obvious remorse, and for the fact that he has never done other than accept full responsibility for his crime. His prospects of rehabilitation are good, and I think it most unlikely that he would ever re-offend in a violent way. However, that end would be served by his addressing his substance abuse while in prison and upon his release. For that reason, and because this is his first experience of custody, I find special circumstances warranting a departure from the usual proportion between sentence and non-parole period.

17 Nevertheless, the crime of manslaughter is inherently serious, involving, as it does, the unlawful killing of a human being. This was a killing in a domestic context, and it is well recognised that general deterrence is a significant factor in sentence for crimes of that kind. The Crown prosecutor referred me to the review of the law on this matter by Johnson J in R v Hamid (2006) 164 A Crim R 179 at [65] ff. In relation to the deceased the offender stood in the position of trust which should characterise any intimate relationship between a man and a woman. I accept that general deterrence must be reflected in the sentence I pass upon him. However, a number of the factors in the cases examined by Johnson J are not present in this case. Unlike so many violent crimes committed in the domestic context, this offence was not part of a pattern of physical abuse by a man who dominated his weaker partner, born of a sense of entitlement to treat her in that way.

18 I should record that counsel for the offender, Mr Punch, submitted that I should approach the question of general deterrence in the light of the principles governing the sentence of offenders with a mental illness considered in such cases as R v Engert (1995) 84 A Crim R 67. However, this is clearly not a case of that kind.

19 Hamid itself was not a homicide case. The Crown prosecutor referred me to two manslaughter cases, while acknowledging that reference to other cases can only be of limited assistance. These were the decision of the Court of Criminal Appeal in R v MacDonald (CCA, unreported, 12 December 1995) and the remarks on sentence of Grove J in R v Nardoni [1999] NSWSC 1097. In both cases sentences of five years imprisonment were imposed. In MacDonald the Court imposed that sentence after a successful Crown appeal and the facts of that case were very different from the present case. Nardoni was a case of domestic violence, and one which could be seen as more serious than this case. However, Grove J was particularly concerned to structure a sentence which would foster the rehabilitation of an offender with a troubled background.

20 Like all sentence matters, those two cases turned on their own facts. I do not find them of any real assistance in resolving the present case. The breadth of the discretion in sentence for manslaughter, given the wide variety of circumstances in which that crime can be committed, has frequently been recognised in the authorities: see, for example, R v Forbes (2005) 160 A Crim R 1, per Spigelman CJ at [133] – [135] and Hall J at [190]. I must do the best I can to arrive at a sentence which reflects current standards, marking the offender’s criminality but extending to him the measure of leniency which he deserves. That sentence, I have decided, should be imprisonment for six years with a non-parole period of three-and-a-half years. He has been in custody since his arrest on 25 February 2006.

21 Darren Stephenson, for the manslaughter of Jodie Zaric you are sentenced to imprisonment for a non-parole period of three-and-a-half years commencing on 25 February 2006 and expiring on 24 August 2009, and a balance of term of two-and-a-half years, commencing on 25 August 2009 and expiring on 24 February 2012.

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