Regina v Isidro Iglesias

[2004] NSWSC 944

CITATION:	Regina v Isidro IGLESIAS [2004] NSWSC 944
HEARING DATE(S):	30 April 2004
JUDGMENT DATE:	13 October 2004
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Hidden J
DECISION:	Sentence of 15 years to date from 25 December 2002 with a non-parole period of 11 years. Elible for release on parole on 24 December 2013.
CATCHWORDS:	CRIMINAL LAW: Sentence - murder - plea of guilty - stabbing in anger - some provocation, but significant lapse of time between provocative conduct and killing.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Engert (1995) 84 ACrimR 67
PARTIES :	Crown Isidro IGLESIAS
FILE NUMBER(S):	SC 70103/03
COUNSEL:	Mr G Lerve - Crown Mr PM Winch - Offender
SOLICITORS:	SE O'Connor - Crown Mr P Townsend - Offender

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

HIDDEN J

13 October 2004

070103 /03 - REGINA v Isidro IGLESIAS

REMARKS ON SENTENCE

1 HIS HONOUR : The offender, Isidro Iglesias, has pleaded guilty to the murder of Joseph Baird-Wallis at Byron Bay on 24 December 2002.

Facts
The deceased was a 51 year old Aboriginal man who was well known in the Byron Bay area. He was referred to as “Uncle Joe.” He lived in a “humpy” type dwelling in bushland reserve near the Byron Bay Youth Centre. He would often go to the Apex Park near Main Beach, Byron Bay, where he would join others who were there and paint or play drums. Gatherings at the park often included homeless people.

2 The offender was living at Lismore with his 5 year old son. The child’s mother, Michelle Concannon, from whom he was separated, lived at Sunrise Beach, out of the Byron Bay township. About a week prior to the killing, he travelled to Byron Bay with his son to spend the Christmas period with Ms Concannon. During that week he would go to the Apex Park daily, where he would socialise with the people there, drink and play music.

3 In the afternoon of 24 December 2002 the deceased was at the park, as was the offender, accompanied by his son. The deceased and the offender argued, and the deceased punched the offender to the face several times. There is a conflict in the evidence about the cause of the argument but that is of no moment. The offender left the park and walked several kilometres to Ms Concannon’s home. There he armed himself with a large knife and walked back to the deceased’s dwelling.

4 The deceased was asleep on a mattress. He awoke, there was an argument, and the offender stabbed the deceased to the right side of the neck and the left ribcage area. The deceased was seated when he was stabbed to the neck but was standing at the time of the stab wound to his left side, which was the more serious of the two injuries. The offender ran from the scene and threw the knife into some bushes. The incident was witnessed by a man who summoned help, but by the time police and ambulance officers arrived the deceased had died.

5 The offender made his way to Surfers Paradise, where he was arrested the following day. He admitted the killing in an electronically recorded interview with police. He said that he took the knife to stab the deceased, but he wanted to send him to hospital and did not intend to kill him. He said that he was very angry because of the deceased’s assault upon him at the park, for which he could see no good reason.

6 The offender was born in Cuba and, although he has lived in this country for over 20 years, his English is far from fluent. He did not have the benefit of an interpreter during the police interview. However, for the purpose of these sentence proceedings, he was assessed by Dr Bruce Westmore, psychiatrist and Associate Professor Susan Hayes, psychologist. Of those two reports the most detailed history appears in that of Associate Professor Hayes, who interviewed him with a Spanish interpreter. Both reports flesh out two further matters related to the killing which were hinted at, but not elucidated, in the police interview. Firstly, contributing to his anger was a loss of face because he had been assaulted in the presence of his son. Secondly, he claimed to have been attacked and robbed on previous occasions, and on those occasions the police either did nothing or were unable to locate the perpetrators. As he put it to Associate Professor Hayes, he “was tired of being beaten up and he felt as if he would rather be dead.”

7 I accept that all of these factors, none of which was challenged by the Crown prosecutor, had a part to play in his behaviour. The Crown accepts that he intended to inflict grievous bodily harm upon the deceased, not to kill him. He told Dr Westmore and Associate Professor Hayes that he had consumed a considerable amount of alcohol and smoked marijuana on the occasion in question. However, he told the police in the interview that, although he had been drinking, he was not affected and he denied having smoked marijuana. As his counsel, Mr Winch, pointed out, he may well have been less than frank in disclosing to police his use of alcohol and a drug. I accept that he was disinhibited to some extent, at least by alcohol, and that this contributed to his feeling of anger engendered by the deceased’s behaviour.

8 Although he attacked the deceased in anger, the killing could not be described as an impulsive or immediate response to the deceased’s assault upon him. The walk from the park to Ms Concannon’s home, where he obtained the knife, was several kilometres and he then returned on foot to Byron Bay. The unfortunate deceased was then attacked in his own dwelling in circumstances in which he had no opportunity to defend himself. He was seated when the first blow was struck and, in addition, he was well affected by liquor. Testing of a blood sample taken at the post mortem examination disclosed a reading of .294.

9 This is yet another case in which the aggressive use of a knife, although not intended to kill, has led to a tragic result. Mr Winch acknowledged that the use of the knife is an aggravating factor within the meaning of s21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (although, generally, the use of a weapon would be of limited significance as an aggravating feature of a homicide.) The Crown prosecutor suggested that the deceased’s seated position and intoxication rendered him “vulnerable”, within the meaning of subs (2)(l). I very much doubt that that is the type of vulnerability with which that paragraph is concerned, but the fact remains that those circumstances are significant in assessing the gravity of the offence.

10 The offender has been in custody since his arrest on Christmas Day, 2002. He co-operated with police from the outset, making full admissions in the recorded interview. Moreover, he pleaded guilty to murder at the earliest opportunity. Exceptionally, he entered that plea in the Local Court. I am not persuaded by Mr Winch’s argument, which was only faintly pressed, that his co-operation with police amounted to assistance to law enforcement authorities within the meaning of s23 of the Crimes (Sentencing Procedure) Act. Nevertheless, that cooperation and his plea of guilty are significant matters to be taken into account in his favour.

Subjective Case

11 The offender was 53 years old at the time of the offence and is now 55. He has a sporadic criminal record, commencing in 1982 and consisting mainly of driving offences. Some of those are serious and, indeed, in 1990 he was sentenced to imprisonment for six months for culpable driving occasioning grievous bodily harm. There are a couple of entries for possessing a prohibited drug and, more importantly, entries for malicious damage, assault female and common assault. However, these offences were all dealt with by non-custodial penalties, mainly fines. Although s21A(2)(d) characterises the criminal history as an aggravating factor, it is of no great moment for present purposes. On the other hand, it could not be said that the offender has no “significant record” within the meaning of subs (3)(e).

12 As I have said, he was born and raised in Cuba. He had a disturbed family background, which is set out in Associate Professor Hayes’ report. His family was poor and his education was limited. He worked in a variety of unskilled positions. He spent a number of years in prison because of his refusal to undertake military service.

13 In the early 1980s he was able to leave Cuba and, after spending some months in a camp in the United States, he migrated to this country. Here he appears to have had a satisfactory employment record, again in unskilled jobs. As I have said, at the time of the offence he had the care of his son, the product of his relationship with Michelle Concannon. From a previous relationship he has a teenage daughter, who lives with her mother.

14 Dr Westmore considered him to be “of at least average intelligence.” However, Associate Professor Hayes found his functioning to be “in the borderline intellectually disabled category.” He provided to her a lengthy history of heavy drinking and the use of marijuana since his arrival in Australia, and she also found “evidence of brain damage associated with the decades of substance abuse, both alcohol and marijuana.” On this aspect I prefer the report of Associate Professor Hayes to that of Dr Westmore. Unlike Dr Westmore, she had the benefit of an interpreter and, in addition, she subjected the offender to formal psychological testing.

15 Mr Winch raised the question whether this evidence brought the case within the principles governing the sentencing of people with a mental disorder considered by Gleeson CJ in R v Engert (1995) 84 ACrimR 67 at 70-1. In my view, it does not. Nevertheless, I accept that the offender’s limited intellectual capacity was a further disinhibiting factor contributing to his violent behaviour.

16 I have considered the mitigating factors set out in s21A(3) of the Act. Of immediate relevance are the fact that there was a measure of provocation by the deceased’s conduct (par (c) ), the offender’s plea of guilty (par (k) ) and my assessment that he has good prospects of rehabilitation and is unlikely to reoffend (pars (g) and (h) ). Despite the disturbing features of this serious offence, I have some confidence in his rehabilitation in the light of his sporadic and relatively minor criminal record, which does not include any significant offence of violence, and of the fact that nothing in the reports of Dr Westmore or Associate Professor Hayes suggests that he is a continuing danger to the community. In addition, he is a middle-aged man who will be in his sixties before he will be eligible for release.

17 He has been on protection because of his fear of reprisal by Aboriginal prisoners, and his limited command of English makes it likely that he will be rather isolated within the prison population. He told Associate Professor Hayes that he has had very limited access to literature in his native Spanish. If that is so, I would recommend that steps be taken to remedy the situation. These matters, together with his general background, founded a submission by Mr Winch that there are special circumstances warranting a departure from the usual proportion between head sentence and non-parole period. Clearly there are, and the Crown prosecutor put nothing to the contrary. Although the conditions of his imprisonment could bear upon the head sentence, I am content to take them into account in fixing the non-parole period.

Sentence

18 This case is not affected by the amendments to the Crime (Sentencing Procedure) Act introducing standard non-parole periods (Div 1A of Pt 3) and altering the procedure for passing sentence (s44).

19 The offence is, of course, very serious. I express my sympathy to the relatives of the unfortunate Mr Baird-Wallis and to all those who are affected by his violent and untimely death. The offender’s co-operation with the police and his very early plea of guilty entitle him to a significant measure of leniency. Nevertheless, I must impose a head sentence which recognises the gravity of the offence and properly reflects considerations of retribution and deterrence. I do not think it appropriate to specify a discount for the plea and co-operation. It is sufficient to say that, but for those factors, the offence would have called for a head sentence approaching twenty years. In the light of them, the sentence will be fifteen years.

20 Although there are special circumstances, the non-parole period also must be sufficient to reflect the offender’s criminality. As a result, only a very modest departure from the statutory proportion can be justified. The non-parole period will be eleven years.

21 Isidro Iglesias, you are sentenced to imprisonment for fifteen years, to date from 25 December 2002, with a non-parole period of eleven years. You will be eligible for release on parole on 24 December 2013.

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Last Modified: 10/15/2004