R v Williams
[2012] NSWSC 520
•18 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Williams [2012] NSWSC 520 Hearing dates: 4 May 2012 Decision date: 18 May 2012 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Sentence of imprisonment for 6 years, NPP 3 years and 9 months, from 23.10.09.
Catchwords: CRIMINAL LAW - sentence - manslaughter - spontaneous offence - blow to head of the deceased with baseball bat Category: Sentence Parties: Regina (Crown)
Shain Richard Williams (offender)Representation: Counsel:
Ms J Baly (Crown)
Mr C Smith (offender)
Solicitors:
S Kavanagh (Solicitor for Director of Public Prosecutions) (Crown)
S E O'Connor (Legal Aid Commission) (offender)
File Number(s): 2009/235648
remarks on sentence
HIS HONOUR: The offender, Shain Richard Williams, was charged with the murder of Rodney Jenkins at Coffs Harbour on 22 October 2009. His plea of guilty to manslaughter has been accepted by the Crown in satisfaction of that indictment. By that plea he admits having killed Mr Jenkins by an unlawful and dangerous act, but without the intention to kill or to inflict really serious bodily harm.
Facts
Mr Jenkins, the deceased, was 59 years old. He lived alone at a caravan park in Coffs Harbour. During the afternoon of 22 October 2009, he was drinking with Barry Gration and Stephen Parsons at a tavern in Coffs Harbour, and later at the caravan park where he lived. At about 4.30pm Mr Gration and Mr Parsons left the caravan park and went to a unit in Nambucca Avenue, Coffs Harbour.
The offender lived and worked in Coffs Harbour. After work that day, he also went to the unit. Mr Gration and Mr Parsons were there. Also in the unit were his father, Trevor Williams, and a woman named Katrina Thorburn-Simpson. All of them except Ms Thorburn-Simpson were drinking beer.
While they were at the unit, Mr Gration expressed concern about the way that Trevor Williams was treating Ms Thorburn-Simpson. He eventually called the police. However, before the police arrived, Mr Gration drove Ms Thorburn-Simpson and Mr Parsons to the caravan park where the deceased lived. They went to the van which he occupied.
Police attended the unit at Nambucca Avenue but, after getting no response there, they drove to the caravan park. At this stage it was about 8.25pm. They spoke to Ms Thorburn-Simpson, who told them that she did not want any action taken against Trevor Williams. They did not see either Trevor Williams or the offender at the caravan park, and they left.
After this, Mr Gration drove from the caravan park to buy a carton of beer. The offender and his father arrived and spoke to a number of people at the deceased's van. The offender had a baseball bat. Mr Gration returned to the caravan park and parked his car adjacent to the deceased's van. As he did so, the offender walked towards the driver's side of the car, holding the baseball bat. Mr Gration tried to open the driver's door to get out of the car, but the offender forced the door closed. The driver's window was open, and the offender pushed the tip of the bat through the window, striking Mr Gration twice to the left side of his jaw. As he did so, he said, "Fuck with my old man, you fuck with me."
Mr Parsons and another man, Scott McMahon, moved towards the car and, shortly thereafter, so did the deceased. As the deceased approached, the offender stepped back, moved the baseball bat over his right shoulder and swung it in the motion of a baseball hit in the direction of the deceased. It struck the deceased to the right side of his head and he immediately fell to the ground, where he remained motionless.
The police were called. The offender and his father left the caravan park before they arrived. Ambulance officers also arrived, at 9.37pm. The deceased was unconscious and obviously suffering from a head wound. He was transferred to Coffs Harbour Base Hospital, and then to The Royal North Shore Hospital. A severe traumatic brain injury was diagnosed, such that it was accepted that he would not survive. He died at 1.56am on 24 October 2009.
A post-mortem was conducted two days later by a forensic pathologist, Professor Duflou. There was a skull fracture and a brain injury, and the cause of death was found to be blunt force head trauma. Professor Duflou was of the view that a moderate degree of force using a baseball bat would be required to cause the fracture. It was his opinion that the fall to the ground may have contributed to the brain injury, but the majority of that injury was likely to have been caused by the direct blow to the head by the bat.
After the offender had left the scene he went to his girlfriend's home. The following morning he went to work, where he was spoken to by police. He denied having been at the caravan park at the relevant time. He claimed to have seen his father at a Woolworths store, but had been at home by 6.00pm and had remained there until the next day. He was charged and has remained in custody since his arrest, that is, from 23 October 2009.
Subjective case
The offender was 26 years old at the time of the offence, and is now 29. He has a criminal history, the most significant previous conviction being one of aggravated dangerous driving occasioning death, committed on 12 June 2004. He had driven a car in which a friend of his was a passenger after he had been drinking. He collided with a power pole and his friend was killed. In June 2005, he was sentenced in the District Court to imprisonment for 4 years and 3 months with a non-parole period of 2 years and 3 months. Otherwise, his criminal history comprises two driving offences, one of them being high range PCA.
He has a younger sister. He had a disturbed upbringing. His parents were alcoholics and both of them abused drugs. They separated when he was about 5, and his father moved to Western Australia. He and his sister lived with their maternal grandparents. He did not see his father again until his early teens, when he lived with him for about 2 years in the Coffs Harbour area. His father was violent towards him, and he left and returned to live with his grandparents, at that time in Casino. From the age of 16 he had mainly been living independently around the Coffs Harbour and Casino areas.
He had remained close to his grandparents, who had provided him with a stable and loving home environment. His maternal grandfather died in 2003, but he maintained contact with his grandmother. He also continues to have contact with his sister, with whom he has a positive relationship.
His paternal grandparents also assisted in his care. They provided a statement to me, in which they frankly acknowledged the unfortunate upbringing the offender had had with his father, their son, and his mother. As they put it, "Shain and his sister Elisha were interruptions to their parents' day, and to their parents' drug and alcohol use." They also acknowledged their son's physical abuse of the offender which, apparently, was of longstanding. They expressed the view that, nevertheless, the offender had sought his father's acceptance and approval until the tragic incident at the caravan park. They wrote that since that time he has decided that he should have nothing to do with his father, a view shared by them and by his sister. They added that they had never known him to be violent.
I also received a statement by his sister, who lives with her partner and children in Kyogle. She and her partner offer him accommodation with them upon his release, and employment in her partner's business. She wrote, "I think it will be best for Shain to be in a stable environment with family and good influences so he has the support and encouragement he will need."
He was educated to year 10 standard. He has a creditable employment history and has achieved a number of trade qualifications. He has taken up opportunities for employment while in custody. Prior to his arrest he had had an intermittent relationship with a woman but, generally, he appears to have led a solitary life. Clearly, the opportunity to live with his sister and her family in Kyogle and pursue employment there would be a significant benefit to him.
A report by Ms Kathryn Wakely, forensic psychologist, reveals a significant history of the use of alcohol and cannabis. The offender told her that he had used both on the day in question. She considered that they were likely to have had some impact upon him, although she did not think that they had played "a distinct causal role in the offence". Ms Wakely did not think that he had become dependent on alcohol, but saw his use of it as problematic, noting its role in his previous offences. She also considered that he had little insight into the significance of his substance use.
From personality testing Ms Wakely concluded that he was likely to act impulsively and, when challenged, "may react with impulsive anger." She saw the offence as consistent with that profile. She concluded that he would benefit from an anger management program, which would assist him to manage "his emotions, anger, and behavioural responses more appropriately." She added that he would benefit from assistance to address his use of alcohol and cannabis. She recommended that he participate in programs available while in custody, and that there should be "close and consistent monitoring" by the Probation and Parole service upon his release.
An affidavit of the offender was read, in which he sketched his background, his employment and his aspirations upon his release. He said that he would welcome the assistance of his sister and brother-in-law, and that he wished to settle down and not get into any more trouble. He also expressed his remorse for his crime, apologising to the family and loved ones of the deceased for what he had done, as well as expressing his regret for having lied to the police about the matter.
Sentencing
None of this is to deny the seriousness of this offence. The offender armed himself with a baseball bat, intending to confront Mr Gration in relation to a perceived slight to his father. No doubt, the background to this was the ambivalent, perhaps dependent, relationship with his father to which I have referred. He probably was to some extent disinhibited by alcohol and cannabis but, of course, that is no excuse for his behaviour. The unfortunate deceased was an entirely innocent bystander, one of a group of men who presumably were coming to Mr Gration's assistance. The offender bore him no ill will, and why he acted as he did is unclear. The effect of what he told Ms Wakely was that "his behaviour was reactive to his fear" of the approaching men.
I accept that his blow with the bat was impulsive. Moreover, while Ms Wakely considered him prone to impulsive anger when challenged, I accept that this was an uncharacteristic act of violence on his part. That said, this is yet another case, of a kind that comes all too frequently before the courts, of a spontaneous act of violence, fuelled to a greater or lesser extent by alcohol, with tragic results. Appropriate weight must be given to deterrence, principally in this case general deterrence.
The offender has good prospects of rehabilitation. He has the benefit of familial support and a demonstrated capacity for stable employment. I accept that he is remorseful, and I think it unlikely that he would re-offend in any serious way. Nevertheless, it is important that the personal issues identified by Ms Wakely be addressed and, to that end, it is in the interests of the community that he have the opportunity of an extended period of conditional liberty, subject to supervision and the sanction of parole. Accordingly, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.
He pleaded guilty to manslaughter on his arraignment in this court. There had been committal proceedings in which oral evidence was given. An offer to plead guilty to manslaughter was conveyed to the Crown at the conclusion of those proceedings. I shall reduce the sentence otherwise appropriate by 15% for the utilitarian value of the plea. But for the plea of guilty I would have imposed a sentence of imprisonment for 7 years. A 15% reduction produces a figure, rounded off, of 6 years. I shall fix a non-parole period of 3 years and 9 months, so that the offender will be eligible for release on parole on 22 July 2013.
Shain Richard Williams, for the offence of manslaughter you are sentenced to a non-parole period of 3 years and 9 months, commencing on 23 October 2009 and expiring on 22 July 2013, and a balance of term of 2 years and 3 months, commencing on 23 July 2013 and expiring on 22 October 2015.
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Decision last updated: 18 May 2012
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