R v Williamson

[2008] NSWSC 686

CITATION:	R v Williamson [2008] NSWSC 686
HEARING DATE(S):	2 June 2008
JUDGMENT DATE :	2 June 2008
JUDGMENT OF:	James J
EX TEMPORE JUDGMENT DATE:	2 June 2008
DECISION:	For the offence of manslaughter the offender is sentenced to a non-parole period of imprisonment of two years six months commencing on 15 September 2006 and expiring on 14 March 2009, and a balance of the term of two years six months commencing on 15 March 2009 and expiring on 14 September 2011. The earliest date on which the offender will be eligible for release on parole will be 14 March 2009.
CATCHWORDS:	CRIMINAL LAW — Sentencing — excessive self-defence manslaughter
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act
CATEGORY:	Sentence
CASES CITED:	R v Blacklidge (CCA 12 December 1995) R v Forbes [2005] NSWCCA 377 R v Hamilton [2007] NSWSC 452 R v King [2007] NSWSC 1134 R v Muddle [2004] NSWSC 403 The Queen v Olbrich (1999) 199 CLR 270 The Queen v Storey [1998] 1 VR 359
PARTIES:	The Crown WILLIAMSON, James Steven
FILE NUMBER(S):	SC 2007/2618
COUNSEL:	W Creasey - Crown A Betts - Offender
SOLICITORS:	Director of Public Prosecutions - Crown Lambton Law - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

MONDAY 2 JUNE 2008 (NEWCASTLE)

2007/2618 R v James Steven WILLIAMSON

SENTENCE
Non-publication order relating to young persons

1 HIS HONOUR: On 14 April 2008 James Steven Williamson was indicted before me on a charge that on 16 September 2006 at Glendale he murdered a youth who I will refer to simply as “the deceased”. It was alleged by the Crown that the act causing death had been done on 15 September 2006 but the deceased did not die until the following day, 16 September 2006, so that the commission of the offence was not completed until 16 September 2006.

2 To the charge of murder Mr Williamson, whom I will refer to as “the prisoner”, pleaded not guilty. However, he pleaded guilty to the manslaughter of the deceased, and the Crown accepted the plea of guilty to manslaughter in full discharge of the indictment. Counsel for the Crown and counsel for the prisoner informed the court that the plea of guilty to manslaughter was made by the prisoner and accepted by the Crown on the basis of what is commonly described as excessive self-defence manslaughter.

3 Under Div 3 of Pt 11 of the Crimes Act a person is not criminally responsible for his conduct, if he acted in self-defence. A person acts in self-defence if he believes that his conduct is necessary to defend himself and his conduct is a reasonable response in the circumstances as he perceives them. If a person uses force that causes the death of another person and believes that his conduct is necessary to defend himself but his conduct is not a reasonable response in the circumstances as he perceives them, then the person is not guilty of murder but is guilty of manslaughter if otherwise criminally responsible for manslaughter. It is this kind of manslaughter which is commonly described as excessive self-defence manslaughter.

4 Manslaughter is an offence under s 24 of the Crimes Act. The maximum penalty is imprisonment for twenty-five years. There is no standard non-parole period for the offence of manslaughter.

5 A statement of agreed facts was admitted into evidence in the proceedings on sentence. The first two paragraphs of the agreed statement is a kind of summary and I will quote them in full.

“The deceased engaged the offender James Steven Williamson, date of birth 16 November 1986, in a fight in bushland at Glendale on the evening of Friday 15 September 2006. Towards the end of that fight, which lasted only a matter of minutes, the deceased sustained a single stab wound to the abdomen. He was conveyed from that general area by ambulance to the John Hunter Hospital where an emergency laparotomy was performed. Despite the efforts of medical personnel, the deceased succumbed to his injuries and died on the morning of 16 September 2006. He was then just fifteen years old.

The offender, a native of New Zealand, was then nineteen years old. He arrived in Australia in October 2005 and was living with his grandparents in Reservoir Road, Glendale.”

6 The rest of the agreed statement of facts is fairly long and contains a number of quotations from the transcript of a triple 0 emergency telephone call the prisoner made to police on the night of 15 September 2006 and from a transcript of an electronically recorded interview of the prisoner by police which commenced in the early morning of 16 September 2006. The following is a brief summary of parts of the rest of the agreed statement of facts.

7 Up until about 5 August 2006 the deceased had a relationship with a young woman, who I will refer to as “P”. After the relationship broke up, P was often in the company of the prisoner and another young male, who I will refer to simply as “D”. The deceased was jealous of the prisoner and D, and there was an incident in which the deceased angrily confronted the prisoner and D and produced a pocket knife. The prisoner grabbed the deceased’s hand in which he was holding the knife and the prisoner’s hand was cut. A few days afterwards the deceased challenged D to fight him, but no fight took place.

8 On the evening of 15 September 2006 an informal party for young people took place in bushland at Glendale. The prisoner and D went to the party, arriving at about eight o’clock. At the party the prisoner used a glass pipe to smoke amphetamine.

9 I will now quote part of the agreed statement of facts. In this part of the agreed statement of facts the prisoner is referred to as “the offender”.

“The deceased saw the offender there and walked over to him, removing his T-shirt as he did so. Upon reaching the offender, the deceased spoke to him about smoking the amphetamine. He told the offender to leave. The offender, who was still on the ground, told the deceased he did not want to get into a fight and he just wanted to be left there to get drunk. The deceased thereupon either pushed or punched the offender. The offender got to his feet, whereupon the deceased head-butted him. They began to push one another. Very shortly after that, punches were thrown by both parties. The two ended up wrestling on the ground. They got to their feet and the offender had the deceased in a headlock. They fell to the ground.

While on the ground, at least four young persons kicked the offender in the face, kicked him in the ribs, punched him in the side, and stomped on his back. The offender yelled, ‘Get him off me,’ or words to that effect. Some people moved in and pulled the deceased off the offender. It was at about this point that the deceased called out that he had been stabbed. The offender stepped back. One of the young men swore at the offender and threw a beer bottle at him, striking him without smashing on or just above the right eye.

The offender then ran from the scene through the bush. A number of young men gave chase.

Meanwhile, using a mobile telephone, one of the other young men called for an ambulance. The deceased was carried for a distance back towards Glendon Circuit. Some young people went ahead to give police and ambulance directions back to the deceased’s location on the track. Attempts were made to stem the flow of blood from the wound to the deceased’s stomach. The deceased was still conscious at the time.

After running from the scene, the offender hid from his pursuers. Obviously fearful that they might locate him, the offender used his mobile telephone to call triple 0. During the course of the next thirty minutes he remained in contact with the operator.”

10 A recording of the triple 0 telephone conversation was admitted into evidence and played in the proceedings on sentence. It is apparent from what the prisoner said in the conversation and from the tone of his voice that he was distressed and frightened that he was being pursued. In the telephone conversation the prisoner said, “They think I stabbed someone,” and that he did not know why it was thought by others that he had stabbed someone. He asserted that he had been hit with a bottle in the face and that he had been butted and kicked. The operator was able to guide the prisoner to a place where he emerged from the bush.

11 He was there arrested by police officers. The prisoner had a number of abrasions to his body. No knife was found in the prisoner’s possession, and the pipe which the prisoner had used was no longer in his possession. An analysis of a sample of blood taken from the prisoner revealed the presence of cannabis and amphetamines.

12 As already noted, the deceased was taken to hospital where, notwithstanding the efforts of medical personnel, he died on the morning of 16 September 2006.

13 An autopsy was carried out on the deceased’s body on 17 September 2006. The doctor performing the autopsy concluded that death was caused by penetrating abdominal injuries. The pattern of injuries suggested to the doctor that there had been some movement of the weapon within the deceased’s abdomen, both in and out and from side to side. However, the doctor was unable to form an opinion about whether the pattern of the injuries had been caused by the prisoner moving the weapon or merely by reason of the prisoner and the deceased changing their relative positions in the course of the struggle between them.

14 The statement of agreed facts contained a number of extracts from the transcript of the interview of the prisoner. In these extracts the prisoner said inter alia that he had found the pipe, which was made of glass, earlier in the day in bushland. He said that at the party the deceased had wanted to fight him; that the prisoner had said, “I’m not going to fight you”; that the deceased had hit the prisoner six or seven times; that the prisoner could not remember stabbing the deceased but, having been told by police that the deceased had received a stab wound to his stomach, said that probably what had happened was that he had stabbed the deceased with the pipe. The prisoner denied that he had intentionally stabbed the deceased to prevent the deceased winning the fight between them. He said:

“He’s a small little boy and, if I wanted to, I could punch him in the head once and he’d be knocked out.”

15 Police conducted a search but were unable to find the pipe or any fragments of the pipe. It is an agreed fact that, immediately before the stabbing, the prisoner took the pipe out of his pocket, broke the pipe and, with the intention of stabbing the deceased, used the pipe to stab the deceased in the abdomen. In oral evidence given today the prisoner said that he now recalls having taken the pipe out of his pocket, breaking the pipe and using the pipe to stab the deceased.

16 Because of the agreed statement of facts, there are only a few facts of the offence which I need to find myself. Insofar as I need to find facts, whether objective or subjective, for the purpose of sentencing the prisoner, I apply the principles stated in The Queen v Storey [1998] 1 VR 359 at 369, which were approved by the High Court in The Queen v Olbrich (1999) 199 CLR 270 at 281; that is to say, a sentencing judge may not take facts into account in a way that is adverse to the interest of the accused unless those facts have been proved beyond reasonable doubt but, on the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

17 Some of the objective facts of the offence can be briefly summarised as follows. The prisoner killed the deceased by stabbing him once in the abdomen with a glass pipe usually used for the smoking of drugs. The prisoner had found the pipe in bushland earlier that day and, although carrying it, was not carrying it for the purpose of using it as a weapon. His use of the pipe to stab the deceased was opportunistic. The commission of the offence was not premeditated or planned. The deceased was the initial aggressor, approaching the prisoner who was lying on the ground and punching or pushing the prisoner and butting the prisoner with his head. Other persons joined in attacking the prisoner, punching and kicking him.

18 The prisoner stabbed the deceased with the intention of inflicting grievous bodily harm; that is, really serious physical injury, but not with the intention of killing the deceased. The prisoner believed that it was necessary to act as he did in his own self-defence, but his conduct went beyond a reasonable response in the circumstances as he perceived them. The deceased was unarmed and the prisoner knew that the deceased was unarmed.

19 Although the pathologist who conducted the post mortem examination found that the pattern of the injuries indicated movement between the weapon and the deceased’s body, it is not possible to make any finding adverse to the prisoner to the requisite standard that he deliberately moved the weapon in and out or from side to side while the weapon was in the deceased’s body.

20 Likewise, it is not possible, in my opinion, to make a finding which the Crown in written submissions submitted I should make, that the prisoner’s response was “far” in excess of a reasonable response.

21 I find that the prisoner was somewhat affected by drugs and alcohol at the time of committing the offence. This is no excuse, but his capacity when he was attacked to exercise judgment was to some extent affected by his use of drugs and alcohol.

22 An aggravating factor was the disparity in ages between the prisoner and the deceased. The prisoner was aged nineteen and the deceased was aged fifteen.

23 A number of factors which would fall within s 21A(2) of the Crimes (Sentencing Procedure) Act were present but were elements of, or inherent in, an offence of manslaughter and hence cannot be regarded as aggravating factors. As to other factors, I have already taken into account that the offence involved the use of a weapon.

24 An aggravating factor that was referred to in argument was the factor in para (ea) of s 21A(2), that the offence was committed in the presence of a child or children under eighteen years of age. However, I would give little weight to this factor. The children in question were not young children, they would appear to have been teenagers and some of them had actually joined in physically assaulting the prisoner.

25 I have already taken into account the mitigating objective factors within s 21A(3), that the offence was not part of planned criminal activity and that there was some provocation of the prisoner by the deceased.

26 As to subjective features, there were admitted into evidence in the proceedings on sentence a pre-sentence report, a report by a psychiatrist Dr Furst, and a handwritten letter by the prisoner. Today the prisoner gave oral evidence in the proceedings on sentence.

27 The prisoner’s life so far is conveniently summarised in a part of the pre-sentence report, which I will quote.

“Born and raised in New Zealand Mr Williamson immigrated to Australia when he was approximately eighteen years of age. He experienced a disrupted childhood due to his mother’s mental illness and related instability. Mr Williamson’s parents separated soon after his birth and he was raised primarily by his mother. Mr Williamson has had limited contact with his father who reportedly has a history of drug use and criminal behaviour.

Soon after the breakdown of his parents’ relationship, Mr Williamson’s mother entered into another relationship which lasted until Mr Williamson was about fourteen years old. Mr Williamson stated he found this relationship breakdown distressing, his step-father being a strict disciplinarian and physically abusive. Mr Williamson was residing with his paternal grandfather prior to committing offence. His mother also lives in Australia at present and she remains a major support for him.”

28 The prisoner has a history of poly-substance drug abuse beginning at the age of fifteen years, often combined with the abuse of alcohol. The author of the pre-sentence report noted that the prisoner has a history of depression and self-harm. The prisoner suffered head injuries on the night of the offence and has continuing problems with vision in his right eye.

29 The author of the pre-sentence report expresses the opinion:

“Mr Williamson is a young man who has experienced a level of dysfunction in formative years and appears to have mixed with a negative peer group. His unstable family life and previously untreated depression, combined with substance abuse, have resulted in poor decision making and led ultimately to the commission of this offence.”

30 I accept the facts stated and the opinions expressed in the pre-sentence report.

31 In his report Dr Furst expressed the opinion that the prisoner had suffered from fairly severe depression in his early teens, which had been a contributing factor to the onset of his drug abuse and drug dependency. Dr Furst said in his report:

“He now presents with much remorse about his offence and current circumstances, ongoing depressed mood, thoughts of death, anxiety and flash-backs of the offences consistent with post traumatic stress disorder.”

32 After assessing a number of historical, clinical and risk variables, Dr Furst concluded that the prisoner was “at low risk of future violence”. Dr Furst considered that there is a need to address the prisoner’s substance dependency and the antecedent causes of his substance dependency, including his tendency to get depressed in mood. Dr Furst concluded that he would propose individual therapy while the prisoner remains in custody and a residential rehabilitation programme for the prisoner on his release from custody.

33 With regard to subjective mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act, the prisoner does not have any record of previous criminal convictions. The prisoner is unlikely to re-offend and the prisoner has good prospects of rehabilitation.

34 It was submitted by the Crown in written submissions that I should not find that the prisoner had shown contrition. The Crown referred to some parts of the triple 0 telephone conversation and some answers in the interview by police in which, the Crown submitted, the prisoner exaggerated the extent to which he had been attacked and manifested concern for himself rather than for the deceased. However, the prisoner was clearly in a state of emotional turmoil particularly in the triple 0 conversation, when he believed he was still being pursued, and I consider I should find that the prisoner has evinced contrition. The prisoner has demonstrated his contrition in statements made by him to the author of the pre-sentence report and to Dr Furst, in the letter he wrote to the court and particularly in oral evidence he himself gave in the proceedings on sentence.

35 The prisoner has pleaded guilty to the offence of manslaughter. It was submitted on behalf of the prisoner in written submissions that I should regard the plea of guilty as an early plea of guilty, on the basis that the prisoner had been charged with murder, the Crown alleging that the prisoner had stabbed the deceased with a knife. It was not until about the beginning of April this year that the Crown accepted that the prisoner had not used a knife. The Crown then indicated that it would be prepared to accept a plea of guilty to a charge of manslaughter. Accordingly, in written submissions it was submitted I should allow a full discount of twenty-five per cent for the utilitarian value of the plea of guilty.

36 I do not consider that a discount of twenty-five per cent should be allowed for the utilitarian value of the plea of guilty. As has now been pointed out by the Court of Criminal Appeal in a number of recent cases it is necessary, where there has been a plea of guilty, to have regard to what was the actual utilitarian value of the plea of guilty.

37 In the present case, although there was utilitarian value in that a trial estimated to last four weeks or more was avoided, the Crown had to prepare for a trial which was fixed to commence on 14 April. In oral submissions today counsel for the prisoner accepted that a discount of twenty-five per cent would be excessive and contended for a discount of fifteen per cent. The Crown contended for a discount of between ten and fifteen per cent. I consider that I should allow a discount of approximately fifteen per cent for the utilitarian value of the plea of guilty.

38 I accept that the prisoner, while older than the deceased was, is still young; that the prisoner had a residual injury to his eye affecting the vision in that eye; that the prisoner had suffered a moderate degree of post traumatic stress disorder; and that the prisoner, while awaiting trial in custody, was in maximum security. I accept that the prisoner has support from his mother and other family members, letters from whom were admitted in the proceedings on sentence. I accept the evidence from these family members that the prisoner is not generally a violent person. I have received and taken into consideration victim impact statements from the deceased’s mother and other family members, which indicate the terrible sense of loss and grief family members, and particularly the deceased’s mother and sister, have experienced as a result of the death of the deceased.

39 In sentencing for an offence of manslaughter the starting point for a consideration of an appropriate penalty and a key element in the assessment of the objective gravity of the offence is that what is involved is the felonious taking of a human life. (See R v Blacklidge CCA 12 December 1995). As was said by the Chief Justice in R v Forbes [2005] NSWCCA 377:

“As has been frequently been stated manslaughter is almost unique in its protean character as an offence. In its objective gravity it may vary from a joke gone wrong to facts just short of murder. It is also relevant to recognise that although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.”

40 There has now been quite a large number of cases in which sentences have been imposed for excessive self-defence manslaughter. Both counsel for the Crown and counsel for the prisoner referred the court to a number of these cases. It was not submitted by either counsel, and I would not find, that the cases to which I was referred establish a tariff. The cases exhibit a wide degree of variation in their facts, which is typical of cases within any category of manslaughter. The cases do, however, provide some guidance, even if only limited guidance. In the eleven cases of first instance sentencing decisions to which I was referred by the Crown the head sentences ranged from a highest sentence of eight years to a lowest sentence of three years four months. In the seventeen cases to which I was referred by counsel for the prisoner, which included some Court of Criminal Appeal decisions and at least one interstate decision, the head sentences ranged from a highest sentence of ten years to a lowest sentence of three years. In oral submissions counsel for the prisoner referred particularly to the sentencing decisions in R v King [2007] NSWSC 1134, Fullerton J; R v Hamilton [2007] NSWSC 452, Adams J; R v Muddle [2004] NSWSC 403, Bell J.

41 I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I make the sentence commence from 15 September 2006, the date when the prisoner was arrested and from which he has remained in custody. Having determined the term of the sentence I should impose, I consider that that term must be served in full time custody. I find special circumstances in the prisoner’s youth, that the prisoner has not previously been imprisoned and in his need to undertake a programme of rehabilitation as recommended by Dr Furst. The prisoner has been conditionally approved as suitable for admission to the Salvation Army Bridge Programme upon his release from custody.

42 Mr Williamson stand up. For the offence of manslaughter I sentence you to a non-parole period of imprisonment of two years six months commencing on 15 September 2006 and expiring on 14 March 2009, and a balance of the term of two years six months commencing on 15 March 2009 and expiring on 14 September 2011. The earliest date on which you will be eligible for release on parole will be 14 March 2009.

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