Regina v Dimond

[2000] NSWSC 1212

Reported Decision: 118 A Crim R 188

New South Wales

Supreme Court

CITATION:	Regina v Dimond [2000] NSWSC 1212
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70019/00
HEARING DATE(S):	20 November 2000 - 27 November 2000
JUDGMENT DATE:	18 December 2000
PARTIES :	The Crown Jayde Philip Dimond
JUDGMENT OF:	Badgery-Parker AJ

COUNSEL :	C K Maxwell QC (Crown) C J Lyons (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid of NSW (Accused)
CATCHWORDS:	Sentence - manslaughter by provocation - no question of principle
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act
CASES CITED:	R v Kenney (1983) VR 470 R v Tumanako (1992) 64 A Crim R 148 R v Blacklidge (unreported) NSWCCA 12 December 1995 R v Alexander (1995) 78 A Crim R 141 R v Underhill (unreported) NSWCCA 9 May 1986) R v Pham (1991) 55 A Crim R 128 R v Moffitt (1990) 47 A Crim R 444
DECISION:	See para 54

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BADGERY-PARKER AJ

MONDAY, 18 DECEMBER 2000

70019/00 REGINA v Jayde Philip DIMOND SENTENCE
1   HIS HONOUR: In the early hours of 6 March 1999 in East Street, Harden the offender Jayde Philip Dimond stabbed Samuel Charles Dyball with a steak knife. Samuel Charles Dyball died at the scene. One of Dyball’s companions, Benjamin Carl Irving, received a stab wound to the upper arm. 2   On 20 November 2000 the offender was indicted on a charge of murder. To that charge he pleaded not guilty of murder but guilty of manslaughter. On 27 November 2000 the jury returned a verdict to the same effect. 3   To a charge of using an offensive weapon with intent to maliciously wound Benjamin William Carl Irving, the offender pleaded not guilty. The jury acquitted him of that charge. 4   The offender had spent the evening of 5 March 1999 drinking, first at his home and then in the Grand Hotel with some people whom he did not really know. He had become quite intoxicated by the time when the hotel closed, and he “passed out” (he says), which I take to mean either that he became unconscious or that he fell asleep, on the footpath in East Street outside the hotel. He woke (or came to his senses) between 1 and 1.30am and started to walk home. He intended to walk west along Neill Street and had first to cross East Street. As he did so, someone in a group of people standing outside a shop known as the Hot Bake (on the west side of East Street and about 35 metres south of where the offender was crossing), saw him, and called out to him. There is no evidence of what was said or by whom and nothing to suggest that what was said to him was either offensive or unfriendly. The offender responded by walking diagonally across East Street to the vicinity of the Hot Bake where a group of young men and women were clustered on the footpath. The offender was wearing a baseball style cap which apparently was a trophy which he had won in a skateboarding competition, his first such trophy. He had removed his T-shirt and it was tucked into the back of his jeans. He must have presented a rather odd sight and his behaviour thereafter was also very odd. He placed his T-shirt and his wallet on the ground. Somebody in the group suggested that he pick up the wallet and he did so. Somebody (it may have been Sam Dyball but this is not clear to me) picked up his T-shirt; certainly the T-shirt came almost at once into the possession of Sam Dyball who teased the offender, holding the shirt out of his reach and ducking around parked cars to prevent the offender from regaining it. At some stage, in a manner which does not appear from the evidence, the offender became separated from his treasured cap. It is not clear that the cap was being held away from him as was the T-shirt, although I suspect that was the case. Eventually Dyball threw the offender’s T-shirt up into a gum tree but it appears to me that that occurred after the offender left the scene. 5   Thwarted in his attempt to regain possession of his clothing items, frustrated and humiliated, the offender commenced to walk away. He turned the corner into Neill Street. There he stopped briefly peering around the corner of a building back to the group at the Hot Bake, perhaps in an effort to see what had become of his cap and T-shirt, and then eventually resumed his walk home. He had not gone far when, as it seems to me quite clearly, his emotional state significantly changed. From being cowed and humiliated he became, understandably enough, angry. I accept as a substantially accurate and reliable account of his state of mind what he said to his aunt Julie Ann Brown when he went to her home immediately after the stabbing. It appears in her evidence at pages 80-81 of the transcript. She asked what happened and, “he said I left the pub, I was on my own, I saw a heap of blokes and they started harassing me. They said to me, ‘Here comes the skateboard kid with no beanie on’. That’s when they stole my shirt. I said to them, ‘who took my shirt?’ They abused me so I walked away … Jayde didn’t say where that took place. Jayde said ‘I walked to the corner of Neill and Stair Street. I thought to myself that these country backwards weren’t gonna get away with it. They’re not gonna put it over me and I went down to Whitton Lane. I went to Beau’s and got a knife off AA. I walked up the street and saw all the blokes in front of the tyre place. I said, ‘Who stole my shirt?’ They all pointed to one bloke. I walked up to him and jabbed the knife into his chest. He went down like a bag of shit. Another two went with him. When the bloke went down the other blokes started coming for me. I raised the knife and they backed off. I walked backwards to the corner watching them. Then I got to the corner and turned and ran down here”. 6   At a house in Whitton Lane where the offender’s sister lived with other young people, including the offender’s friend “AA” (Antonio Amaranti) the offender took a knife from a kitchen drawer. It was not just an ordinary dinner knife, but a steak knife with a very sharp point and a blade serrated along one edge. It was, no doubt, not the largest or most dangerous knife available, but it was a weapon capable of inflicting serious injury and inspiring real fear and I have no doubt the offender selected it because of those characteristics. He walked from the house in Whitton Lane back to the vicinity of the Hot Bake and he carried the knife inverted up the inside of his forearm, that is to say holding the handle in his palm with the blade laid along the inside of his forearm. I have no doubt he did that in order to conceal the knife from anybody whom he might encounter between his leaving the house in Whitton Lane and arriving at his destination, and in particular, in order to conceal it from the persons outside the Hot Bake until it suited his purpose to reveal to them the fact that he was armed. 7   There are discrepancies in the evidence as to what took place when the accused arrived among the group of people outside the Hot Bake but I am satisfied that what occurred was that the offender asked those who were there who it was that had taken his shirt (ERISP QA54). A number of those present indicated Sam Dyball, and Dyball stepped forward. The offender asked him, “where’s me shirt and hat?” (ERISP QA 190) (7172) and Dyball replied “in the tree” (T 172, 194). To that moment the prisoner had not displayed the knife. In particular, if it was ever his intention, as subsequently he has said that it was, to use the knife to scare persons in the group so that they would return his belongings to him, he did nothing by way of pursuit of that intention. His response to Dyball’s further taunting or dismissive or contemptuous words was to bring the knife up from its position of concealment, raise his right hand holding the knife above his shoulder and plunge it downwards at an angle of about 45 degrees into Dyball’s left upper chest. 8   Having inflicted the fatal wound, the offender stepped backwards waving the knife around, evidently to dissuade any intervention by any of the others present. In so doing he inflicted a wound to the upper arm of one Benjamin Irving, one of the bystanders. It was in respect of that wound that the second charge was laid, upon which charge the jury found the accused not guilty. 9   The accused then left the scene, running north along East Street and left into Neill Street. Some of the young men present at the time of the stabbing pursued him, but he outran them and they lost sight of him somewhere in Neill Street. He went to his aunt’s home in Queen Street where he had with her the conversation which has been set out earlier. Her evidence is that over a short time following, while he remained at her home, he repeated his account of the events a number of times (at least four), each time in much the same terms as the first. Doctor Westmore suggested that that might show a degree of shock, which is indeed perfectly understandable in the light of what had just occurred. While he was at his aunt’s home, the offender concealed the knife underneath a washing machine in the laundry, and it was from that point that police recovered it the following morning. The offender left his aunt’s home and went to his own home shortly after 3am. People, not police, had already banged on the door, wakened Ms Brown and told her that they were looking for her son. She herself had then contacted police who had come to the house and searched. It was only after they had left that the offender returned home. She told him that the police were looking for him and he fled out of the back of the house. From there he went to his sister’s home in Whitton Lane where he put himself to bed, to sleep. His mother went to those premises at about 7.30am and asked her son to hand himself in to the police. He agreed to do so, although he wished first to sleep further. She insisted that he get up and ready himself to go to the police station, and while he was showering, police arrived. He was arrested and taken initially to Harden police station and then to Young police station where he was interviewed and charged. he declined the offer of legal representation before the interview. 10   The knife was located the next morning. It was a black handled knife with a stainless steel blade, 120 mm long and the handle 109mm long. The total length thus was 229mm. The blade penetrated between the second and third ribs in a line just inside the line of the left nipple. It tracked downwards medially and slightly backwards, pierced the upper lobe of the left lung and entered the pericardial sac producing gross internal bleeding which caused rapid death. Dr Datoo, who did not perform the post mortem examination but interpreted the report for the assistance of the jury, was asked “it wouldn’t take much force to inflict a wound of this kind is that right?” Answer: “If it passed through the muscle it wouldn’t take a lot of force to do that, depending on the sharpness of the knife”. Looking at the actual knife in re-examination, he said “it would not need a lot of force, just a minimum force would be able to cause an injury”. 11   For the crime of manslaughter the Crimes Act provides by s 24 the penalty of imprisonment for 25 years. By s 21 of the Crimes (Sentencing Procedure) Act the Court is expressly given power to impose a sentence for a lesser term. 12   It is a well established principle of sentencing law that the maximum penalty available for any crime is to be reserved for cases falling into the worst category of cases for which that penalty is prescribed. The Crown accepted (in my view properly) that although the offence of which the offender has been convicted was in the Crown’s submission a very serious one, it does not fall into the category of cases attracting a maximum sentence. 13   The verdict of the jury establishes conclusively for all purposes that the offender is not guilty of murder but is guilty of manslaughter. The jury may have reached that conclusion either on the basis that the Crown had failed to prove that the act causing death was done with intent to kill or do grievous bodily harm; or on the basis that although the act was done with that murderous intent, the Crown had failed to prove that it was not an act done under provocation. The jury’s verdict does not reveal on which basis it was reached; indeed, some members of the jury may have proceeded on one basis, some on the other. They were specifically directed that it was open to them to return the verdict which in due course they did return, although they were not unanimous as to the basis of it. Also, in accordance with what the Court of Criminal Appeal has stated to be correct practice, the jury members were not interrogated as to the basis of the verdict. 14   The law casts on me, as part of my sentencing task, the duty of deciding what facts I myself find to have been proved beyond reasonable doubt, and to sentence on the basis of the facts that I find proved to that degree. I am constrained by the rule that the facts cannot be found otherwise than consistently with the jury’s verdict. 15   I have recounted the facts in broad terms. I recognise that a finding that the offender acted with intent to kill or to inflict grievous bodily harm would involve discounting what the offender himself said, after the event, as to his intention at the time. He denied any intention to inflict injury, asserting repeatedly that he had only wanted to scare “them” so that “they” would return his belongings to him. The existence of an intention to scare, if that was his intention, throughout the time when, armed with the knife, he was proceeding towards the Hot Bake is, of course, not inconsistent with the formation thereafter of an intention to kill or inflict grievous bodily harm at or immediately before the moment of the stabbing. An intention to scare might well be transformed into or replaced by an intention to kill or injure at the moment of the attack. 16   The conclusion that the offender acted with intent to kill or to inflict grievous bodily harm can be reached only by inference from the act itself, having due regard to all of the surrounding circumstances including in particular his own actions prior to the stabbing, but also giving such weight as may be appropriate to his assertions subsequently, both to his aunt almost immediately after the event and to the police in the course of the electronically recorded interview which commenced at about 10am. I remind myself that an inference that the offender acted with murderous intent can only be drawn by me, if it appears to me looking at the whole of the evidence that there is no other reasonable hypothesis to account for the offender’s action, no reasonable explanation of his actions except that he acted with murderous intent. 17   It is clear from his statement to Julie Brown that the offender was extremely angry when he discontinued his walk home and went in the opposite direction to Whitton Lane with the intention of obtaining the knife. He was not going to allow those who had humiliated him and taken his clothing to “get away with it” or “put it over” him. It was suggested on behalf of the Crown that those words indicated an intention on his part, formed at that time, to get even with those who had offended him, to retaliate, indeed to injure or kill. I do not accept that. It is obviously possible that that was what was in the accused’s mind, but I could not be so satisfied beyond reasonable doubt. He would achieve his object of not letting them “get away with it” or “put it over” him if, using the knife to scare them, he succeeded in retrieving the T-shirt and cap. Clearly he went to the house and obtained the knife with an intention to use it in some way aggressively, but I cannot conclude that his intention at that stage was other than to threaten in order to scare. 18   It was submitted on behalf of the Crown that the fact that he carried the knife in a concealed manner, as described earlier, would assist in leading to a conclusion that he had the intention of killing or wounding. Again, I have to say that it is obviously a possibility that his purpose was to keep the knife concealed until the last moment so that he could use it to inflict serious injury, but I cannot say that that is certainly the case. It appears to be an equal and reasonable possibility that his purpose in carrying the knife as he did, concealing it as he did, was simply so that he would not attract attention as he walked through the streets of the town to the Hot Bake, and that he kept it concealed when he first arrived there in order that he would not be set upon and disarmed before he was in a position to act as he intended. I find therefore that I am not satisfied beyond reasonable doubt that the accused had formed an intention to kill or inflict grievous bodily harm prior to the time when, carrying the knife concealed, he reached the group at the Hot Bake. 19   However, it is clear that if his intention had been, when he obtained the knife and while he was carrying it to that location, to use it on arrival to threaten and thus scare his tormenters into returning his clothing to him, he did not in fact do anything at all directed to fulfilment of that purpose. Instead, as I have observed, his reaction to the further taunting remark from Sam Dyball was immediately to produce the knife and stab his tormentor. Intention is not the same as premeditation. An intention to kill or inflict grievous bodily harm may be formed and carried out in the instant. Having regard to the manner in which the offender used the knife and the area of Dyball’s body to which he directed his blow, I find myself satisfied beyond reasonable doubt that he acted with the intention of inflicting really serious bodily injury. I am not able to find beyond reasonable doubt that he intended to kill, for I accept the submission of his counsel that it is probable that, as he claimed, he had no real idea of the possibly fatal consequences of such a blow. I cannot, however, entertain any doubt but that he intended by the manner in which he struck Sam Dyball to inflict upon him a really serious injury. 20   That leaves only provocation as a basis for the conclusion that the offender’s crime was manslaughter, not murder, and I am comfortable with that view of the case. The conduct of Dyball and his associates was, in my view, conduct of an obviously provocative kind. The conduct of persons other than the deceased himself may be taken into account where it was engaged in circumstances such that it can reasonably be regarded as one with the conduct of the deceased himself (Kenney (1983) VR 470; Tumanako (1992) 64 ACrimR 148). Alternatively, it can simply be regarded as part of the surrounding circumstances against which the offender’s perception of the gravity of Dyball’s provocative conduct has to be assessed. In this case it makes no difference. The offender was somewhat intoxicated; he was teased, and as I find, he was humiliated by Dyball in the face of a considerable group of his peers; he felt intensely the loss of his cap which held special value to him. He did not react to the initial provocative conduct by any resort to violence, but I have no doubt that that conduct continued to play on his mind from the time when he left the scene until he resolved to obtain and use the knife to get his clothing back, and continued to occupy his mind from the time when he obtained the knife until he returned to the Hot Bake. Nevertheless, it is clear from the description of what he did that, despite conduct which he might well have perceived as grave provocation, he remained in control up to the point where Dyball made one further taunting remark to him. I am satisfied that in response to that last remark of Dyball’s, accumulated of course upon all that had gone before, the accused finally lost his self control, and formed the intention of seriously injuring Dyball and attacked. To my mind, there is no doubt at all that the provocative conduct, attributing to it such gravity as the offender himself may have attributed to it, was such as could have caused an ordinary person in the position of the accused to lose control to the extent of forming a murderous intent. 21 For those reasons I have come to the conclusion that this case must be treated as one where murder is reduced to manslaughter only by virtue of provocation, and it is on that basis that the offender is to be sentenced. 22 There is no rule of law which prescribes that manslaughter by reason of provocation is necessarily and always to be regarded as a more serious offence than manslaughter by an unlawful and dangerous act. Much will depend upon the circumstances, and the circumstances which may give rise to a conviction of manslaughter may vary enormously, for which reason the problem of sentencing for manslaughter has always been recognised as one of the most difficult sentencing tasks. It is not difficult to bring to mind cases of manslaughter by an unlawful and dangerous act where the act in question was so grossly and obviously dangerous as to make the offence one of extreme gravity. Nevertheless, in manslaughter by provocation it is necessary to give proper weight to the fact that the act causing death was done with murderous intent.
23   In Regina v Blacklidge (unreported) NSWCCA 12 December 1995, Gleeson CJ observed (in a case where the finding of manslaughter was based upon diminished responsibility pursuant to s 23A of the Crimes Act):

“The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900 s 18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.
“It is long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
“At the same time, the Courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for the consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case ( R v Dodd (1991) 57 ACrimR 349; R v Hill (1981) 3 A CrimR 397 at 402).
“When the basis of a finding of manslaughter is diminished responsibility, pursuant to s 23 A of the Crimes Act , what is nevertheless ordinarily involved and what is involved in the present case is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender’s mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility but it does not excuse the act ( R v Low (1991) 57 ACrimR 8).
Making a judgment as to the extent to which, in a given case, responsibility is diminished, can be a difficult task. The hypothesis however is that the offender is responsible for a deliberate act which took the life of another person and which but for the abnormality of mind would bear the character of murder”. ( emphasis added )

24   Those remarks are much in point in cases of provocation where “the hypothesis … is that the offender is responsible for a deliberate act which took the life of another person and which but for the [provocation] would bear the character of murder.” 25   Later in the same judgment the Chief Justice observed that “notwithstanding the diminished responsibility, it was necessary to impose a sentence which reflected the objective seriousness of the case, and, in particular, the circumstance that what was involved was the felonious taking of human life with intent to kill or cause grievous bodily harm”. Again, the proposition is applicable to the present case if the words “diminished responsibility” be replaced by the word “provocation”. The case is a salutary reminder of the significance in determining the gravity of an offence of manslaughter, of the fact that the act causing death was accompanied by murderous intent. 26   In Hill, referred to in the judgment in Blacklidge, Street CJ adverted to the difficulty of sentencing for manslaughter, the need to recognise that the felonious taking of human life is one of the most dreadful crimes in the criminal calendar, but on the other hand, the willingness of the courts to recognise “factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life”. The Chief Justice continued -

“The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being metered out to the guilty party.
“In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interests of society in protecting itself and its members from criminal activity, amounting, as in the present case, to the taking of a life.”

27   In a typically helpful analysis of the difficulties attending the task of sentencing for manslaughter arising by reason of provocation, Hunt CJ at CL in Regina v Alexander (1995) 78 ACrimR 141 at 144 identified “three particular matters which have been taken into account in provocation/manslaughter cases”, namely:

“1. The degree of provocation offered (or, alternatively, the extent of the loss of self control suffered), which when great has the tendency of reducing the objective gravity of the offence;
2. The time between the provocation (whether isolated or cumulative in its effect), and the loss of self control, which when short also has the tendency of reducing the objective gravity of the offence; and
3. The degree or violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.”

28   Commenting upon those propositions, Hunt CJ at CL continued:

“The second of those matters appears to have remained relevant notwithstanding the change in the law of this State in 1982 whereby the common law requirement that the act causing death must be one done suddenly was deleted. The courts must of course recognise that a long course of conduct by the deceased may often be far more provocative than an isolated incident, as indeed was recognised at common law. Where that provocative course of conduct continues up to the point of the prisoner’s loss of self control, there is no delay at all involved; when the conduct has ceased, and there is a significant delay after the provocation has ceased, whether isolated or cumulative in its effect) and before the prisoner’s loss of self control, the courts are likely to conclude that the degree of provocation offered was not great. In that sense, the second of those matters may be seen as no more than as some evidence by which the degree of provocation (the first of those matters) may be judged.”

29   I propose briefly to address each of these three matters in turn but it is convenient before doing so to discuss what the evidence reveals as to the offender’s background and his psychological state, because not only are such subjective matters to be taken into account as part of the mix of factors to be considered in arriving at the appropriate sentence, but also they have specific relevance to the assessment of the degree of provocation to which the offender was subjected. 30   The accused was born on 30 September 1976. His parents were not married but his father took an interest in the boy and saw him regularly. When the offender was two years old his mother moved with him to live independently of her own family, and then after about six months she moved in with another man whom she subsequently married. That marriage broke up when the offender was about eight years of age. Even before that the boy had displayed behavioural problems which caused his mother and step-father to seek the advice of a consultant psychologist, and soon after the break up of the marriage, the child was seen by a consultant psychiatrist. There was a history of at least unkind treatment of the boy by his step-father, possibly worse. The psychiatrist diagnosed a severe personality disorder based on early depression; and was of the opinion that he had been damaged by “his identification with a violent disorganised step-father”. She prescribed some form of psychotherapy which I gather proceeded at least for a little while. Understandably, his progress at school was severely impeded by his behavioural problems, although it improved when Ritalin was prescribed for him in 1985. His consultant paediatrician observed that “his school performance and behaviour certainly has improved. The teachers are very impressed with his response, and indeed he is now getting merit awards. This of course will do wonders for his self image. However, of course, it is not surprising that he occasionally erupts out to his old ways of being difficult and physically violent to his younger siblings and mother. I can see no easy solution for this”. 31   A year later he was seen at a paediatric neurological clinic, apparently because of his mother’s concern about his continuing difficulties at school - aggressive, anti-social and very disruptive behaviour, distractability and restlessness in class. The conclusion was that he was of average intellectual potential but with a learning disability with delay in his reading and spelling, and had also clinical features of an attention deficit disorder. Recommendations for treatment were made but the evidence does not disclose that anything in fact was done. At the age of about 12 he was sent to Boys Town for about two years because no other school would accept him. 32   His tendency to anti-social behaviour manifested itself in a series of relatively minor offences dealt with in the Children’s Court usually by way of control orders and, from late 1994 in the Local Courts. As well, his aggressive tendencies manifested themselves in a number of offences of violence. At the age of 16 he was dealt with in Port Kembla Children’s Court for an offence of assault police. A similar offence committed on 26 September 1994 was dealt with in the Local Court. On 1 December 1994 he committed a number of offences while travelling on a train, and those included an assault upon a transit police officer who was attempting to arrest him. Fourteen months later he was spoken to by police who found him in possession of goods believed to be stolen, and again he assaulted the arresting officers. Twenty-one months passed before he was again in trouble, namely on 29 November 1997 when he was charged with an assault in the street in the town of Young, following which he was violent and aggressive towards arresting police. 33   It appears that each of those offences, at least from 1994 onwards occurred at a time when the offender was affected to a larger or smaller degree by alcohol, as was the case on the night of the killing of Samuel Dyball. It is clear from some of the offender’s answers during the course of a police interview that he was well aware of his tendency to aggressive behaviour after imbibing alcohol. In some cases, intoxication may be seen to be a mitigating factor: but that cannot be so in the present case because of the offender’s clear knowledge of the effect of liquor upon him. On the other hand, it may sometimes be an aggravating factor. Particularly is that so where an offender has deliberately charged himself with alcohol in order to give himself courage to embark upon some planned course of criminal conduct. That is not the case here. I am of the view in this matter that the prisoner’s intoxication, while clearly a significant factor in producing his criminal conduct, ought not to be regarded in itself either as mitigating or aggravating the gravity of his offence. 34   In between periods of detention, the offender lived with his mother in Wollongong. She moved to Harden in about 1997 and he followed her there about six months later. He had few friends in that town and virtually no social life because, as his mother said in evidence, social life for young people in Harden centres around the hotels and her son rarely drinks (for reasons already adverted to). His education did not go beyond year eight and he has no formal qualifications for any sort of employment. He has worked for short periods and casually, in an asparagus factory and at the Harden abattoir, but my impression is that he has been more often unemployed than employed. 35   Doctor Bruce Westmore saw the offender on 8 September 2000 and again on 6 December, after the jury’s verdict. He noted the history of early behavioural disturbances. He accepted that there was a conduct disorder but was of the opinion that the application of more modern diagnostic standards would not justify diagnosis of a personality disorder in an eight year old child. He accepted, however, that the offender has some personality difficulties, “possibly amounting to a personality disorder with some anti-social traits”. Even now, he “would not conclude … that he has an anti-social personality disorder”. In his opinion the offender has established aggressive traits (demonstrated by his past history of violence, albeit not gross violence). It was his opinion that his history of violence, including the major violence involved in the present episode, reflects the offender’s response to alcohol superimposed upon his underlying aggressive personality. He is at risk of further offending if he becomes intoxicated. He thought there was a significant difference between the circumstances of the present matter and the earlier episodes on his criminal record. On the earlier occasions, the offender seemed to have responded with aggression and violence when authorities intervened in respect of other alcohol-related misbehaviour. The present case he saw as more “situationally specific”. Doctor Westmore said, on the question of future dangerousness, “in predicting future dangerousness previous aggression is thought to be a useful indicator. The more environmentally or situationally specific an act of aggression is, provided this aggression occurs on a background of a generally non-aggressive lifestyle, then future aggression is probably unlikely”. 36   Before being acquainted with the offender’s previous record, Doctor Westmore was prepared to say, “I do not think there is a history of extended or repeated aggression in this man’s adult life. That would suggest, despite his personality difficulties, the risk of future aggression is probably low. To that extent his prognosis from a reoffending point of view is probably quite good”. However, when he was advised of the offender’s record and the circumstances of the several offences disclosed therein, he acknowledged that that reflected a higher level of underlying aggression than he had previously been aware of, and led him to be less optimistic about the question of reoffending. 37   His attention was drawn to the account given by the offender to his aunt within half an hour or so after the stabbing, and as to that, Dr Westmore said that it was a matter of concern, because it manifested anger as a major component of his then mental state, and an absence of immediate remorse or regret. Its significance might, however, be diminished if it were accepted that the offender was in a state of fear. He accepted that there were perhaps three sources of “fear” - fear of retaliation from the victim’s friends; fear of legal consequences of his behaviour; and also perhaps a state of fear which was a continuation of his emotional state at the time of the stabbing incident. 38   The prisoner’s aunt, Julie Ann Brown described the offender as agitated and unsteady on his feet when he came to her home, but he said nothing to her to suggest that he was in fear, unless it be the words “I’m in trouble” which would seem to indicate that if he had any fear at that stage, it was more than likely fear of the consequences of what he had done. The prisoner’s account of the episode to police includes no reference to his being in fear except and until in answer to question 234:

Q. “Do you recall at … the particular time that you were fearful of these people?”
A. “Yes.”

(For completeness, I note also:
Question 235: “So if you were scared of them and you had some fear about the amount of people that were there and that obviously something’s happened for them to have taken your hat and your shirt, why, why did you come back?”
A. “To get me shirt and hat back.”)

39   He made no other reference to fear as an emotion to which he was subject at any relevant time. I reject any suggestion that he was in fear at the time when he first left the group outside the Hot Bake. I accept that he was experiencing humiliation; and it seems to me pretty clear that that emotion turned to anger which drove his actions thereafter. 40   Doctor Westmore recorded his impression of the offender as “a loner with few friends” and that accords with the impression I formed of him throughout the trial. It appears that many young people in the town who did not know him personally referred to him as “the skateboard kid” and, as I would infer from the whole of the evidence, regarded him somewhat as a curiosity, an oddity, a figure of fun, and made him the object of gentle and perhaps sometimes not so gentle ridicule. Their attitude towards him unfortunately took a nasty turn on the night in question. 41   I return to the separate consideration of the three aspects of sentencing for provocation manslaughter outlined by Hunt CJ at CL in Alexander. In assessing the degree of provocation offered, or as it is sometimes put the gravity of the provocation, for the purpose of determining whether murder should be reduced to manslaughter, the tribunal of fact whether jury or judge alone is required to consider that issue from the point of view of the accused himself. So too, when the question arises in sentencing proceedings, the sentencing judge must consider the gravity of the provocation from the point of view of the convicted offender, attributing to it such significance as it may have had in his mind. In order to make that assessment, it is necessary to take into account all that is known of the offender, his age, his personal situation and life style, the circumstances in which he came to be at the location where the offence was committed, his mental capacity and any impairment thereof temporarily induced by intoxication, and anything else which may have affected his view of the gravity of the deceased’s conduct towards him. In the present case that requires that regard be had to his disturbed childhood, the existence and extent of the psychological disorder to which he was subject, his social isolation and his temporary state of intoxication. I am satisfied that the teasing, mocking, taunting, humiliating words and actions of the deceased and his companions, which might in some circumstances have been regarded as trivial and merely childish (and perhaps was so regarded by those young persons themselves) were such as may have been perceived by this particular offender on that particular night at that particular place as quite extreme provocation. 42   Upon the facts as I have found them there was virtually no interval between the final provocative conduct of the deceased and the offender’s loss of control. Had the provocative conduct ceased at the time when the offender first left the vicinity of the Hot Bake, without his shirt and his cap, and if in response to that he had obtained the knife and returned to the scene with the intention of using the knife to inflict grievous bodily harm on his tormentor, that lapse of time between the provocation and the loss of self control might have been thought to be of such length as significantly to add to the gravity of the offence. However, on the view which I take of the facts, the time between the last element of provocation and the loss of control and the infliction of the fatal wound was so short as significantly to reduce the objective gravity of the offence. 43   Although the degree of violence or aggression displayed by the prisoner was not extreme, in the sense that there was only a single blow, not a flurry of blows delivered in frenzy, the way in which it took place is not to be ignored. The offender came to his victim with the weapon effectively concealed (although I do not overlook that one or two people noticed it) and the attack was delivered in such a way that the deceased had no chance at all of defending himself. 44   In assessing this third element of those identified by Hunt CJ at CL, I take into account also as a significant aggravating factor the circumstance that the weapon chosen by the offender, initially to scare but used ultimately to kill, was a knife. The reports contain many judgments in which the courts have expressed the community’s abhorrence of the use of a knife in the commission of crimes. A well known example is the case of Underhill (unreported, Court of Criminal Appeal, 9 May 1986) to which the Crown drew my attention, where Street CJ, delivering the judgment of the court said:

“This Court and other criminal courts has stated repeatedly that those who use knives when perpetrating criminal offences must expect to receive a significant measure of criminal punishment in consequence. The knife is held in universal abhorrence within the community, and this view is shared by the criminal courts.”

45   I endorse the submission put by the Crown in the present case, that “this killing is a good example justifying such a view. General deterrence should figure prominently in this sentence”. 46   Even allowing for the degree of provocation, which the prisoner may be taken to have perceived as extreme indeed, the objective circumstances of the killing remain serious. The criminality of the offender is of a high order. On the other hand, the subjective circumstances which have been outlined at some length, clearly call for some mitigation of the penalty which might otherwise be imposed. As always in sentencing, there are various considerations which point in different directions, and the sentence to be imposed must reflect an attempt to synthesise all of the relevant matters. They include in this case the objective seriousness of the crime but also the degree of provocation which led to it, the clear need for general deterrence especially directed to the use of knives, and the subjective circumstances of the offender himself. 47   Regard must also be had to the risk that the offender, upon his release from imprisonment, will continue to represent a danger to the community, because of his underlying aggressive personality traits and the prospect that if he becomes intoxicated those aggressive traits may flare into actual violence. That risk appears to me to be a real one, but it is impossible to quantify the extent of it at the time when, some years into the future, the prisoner will become eligible for release. Much will depend upon what is done in the meantime to secure that upon his release he will never again resort to the use of alcohol. I remind myself that the existence of a risk of future dangerousness does not justify an increase in the length of the sentence which would otherwise be appropriate to the circumstances of the case, but it is not to be ignored in the sentencing process and it may legitimately lead the court to give less weight than would otherwise be appropriate to factors tending to mitigate the severity of the sentence. I attribute in that way some significance to the risk of future dangerousness, and the length of the overall sentence and of the non parole period which I will impose is influenced by that factor along with all of the others to which I have referred.
48   The offender’s prospects of rehabilitation are very much improved by the circumstance that his uncle, a brother of his mother who lives on a rural property in Queensland, has offered to provide the offender with a permanent home on that property and to keep him occupied there so long as he is not otherwise employed or engaged in study. Supervision by his uncle and by the relevant Probation and Parole authorities should contribute significantly to his prospect of continuing abstinence. 49   The offender has been in custody since his arrest on the day of the killing. A bundle of certificates issued by various agencies testifies to his having, while in gaol, pursued and completed various educational and self improvement programs. His willingness to do so, and his application, give some hope that he may in time achieve rehabilitation. 50   One of the matters which requires consideration in the sentencing task is the relative youth of the prisoner. At the date of the killing he was aged twenty-two years and some six months, and today he is but two months past his twenty-fourth birthday. The community has a particular interest in the rehabilitation of young offenders and for that reason it is often appropriate that considerations of rehabilitation be afforded greater weight in the sentencing of such offenders than in the sentencing of offenders of mature years. In the case of a very young offender, that can often mean that the weight given to rehabilitation of the offender far outweighs considerations of personal and general deterrence. The present offender has moved beyond the years when youth becomes a decisive consideration, but it remains relevant, although, as the Court of Criminal Appeal has repeatedly pointed out, when a young person conducts himself in a way in which an adult might and commits a crime which is not merely a childish misdemeanour but is the sort of offence that adults commit, the weight to be given to the youth of the offender is significantly diminished. In Pham (1991) 55 A Crim R 128, the Court of Criminal Appeal emphasised the need to maintain the protective aspect of the criminal court’s function: deterrence and retribution do not cease to be significant merely because of the age of the offender. The sentence which I will impose gives such weight as in my view can properly be given to the age of this man.
51   The Crimes (Sentencing Procedure) Act requires by s 44 that when sentencing an offender to imprisonment for an offence the court must firstly set the term of the sentence and secondly set a non parole period for the sentence, that is the minimum period for which the offender must be kept in detention in relation to the offence before being eligible for release on parole. Subsection 2 provides:

“The non parole period must not be less than three-quarters of the term of the sentence unless the court decides there are special circumstances for it being less in which case the court must make a record of its reasons for that decision.”

52   The section replaces s 5 of the Sentencing Act 1989 which has now been repealed. However, the concept of special circumstances in relation to the fixing of a non parole period is not dissimilar from the provision which previously existed under s 5 in relation to the specification of a minimum term, and the relevant principles appear to be the same. The circumstances which may amount to special circumstances cannot be categorically and exhaustively stated. They are circumstances which point to the need for an extended period of conditional release, not circumstances which point to the desirability of a shorter than usual non parole period, although usually (but not necessarily), a consequence of the decision to increase the additional term by reason of special circumstances will produce a correlative reduction in the minimum term: otherwise, the consequence would be an inflation of the total sentence merely for the purpose of securing a longer additional term, an approach which was disapproved in R v Moffitt (1990) 47 A Crim R 444, 20 NSWLR 114. Undoubtedly, the circumstances are such that the offender will need a significant period of supervision following his release from imprisonment, particularly because of the necessity to support him in his effort to abstain from alcohol. However, that will be sufficiently achieved by the specification of a non parole period equalling three quarters of the total sentence, because, in the circumstances of this case, that will necessarily produce an additional term of sufficient length. No doubt for that reason, it was not argued on behalf of the offender that the statutory relationship between the non parole period and the additional term should be varied. 53 During the sentencing proceedings I was provided with victim impact statements prepared respectively by the father, the mother and the sister of the deceased, Sam Dyball, detailing the impact of his death upon each of them respectively and on other family members. I have read them carefully; I fully understand the enormity of their loss; and I take this opportunity to express the court’s sympathy to all of them. Nevertheless, it is well established that it is not appropriate for a sentencing judge to take those materials into account in determining the sentence. As I observed at the time when the statements were tendered, while the seriousness of the offence is a major factor in determining the appropriate sentence, the court does not need victim impact statements in order to be aware of the seriousness of an offence such as this. 54 The offender was taken into custody on 6 March 1999 and has been in continuous custody since in respect only of this offence. Accordingly the sentence to be imposed upon him should be dated back to 6 March 1999. 55 Jayde Philip Dimond you have been convicted of the offence of manslaughter relating to the death of Samuel Charles Dyball on 6 March 1999. For that offence you are sentenced to imprisonment for a term of six years which having commenced on 6 March 1999, will expire on 5 March 2005. I fix a non parole period of four years and six months which, having commenced on 6 March 1999, will expire on 5 September 2003, which is the earliest date upon which you will be eligible for release on parole.

Last Modified: 12/20/2000