Regina v Jukes

[2006] NSWSC 1065

CITATION:	Regina v Jukes [2006] NSWSC 1065
HEARING DATE(S):	16/08/2006, 24/08/2006, 06/09/2006
JUDGMENT DATE :	13 October 2006
JUDGMENT OF:	Hoeben J at 1
DECISION:	Sentence of imprisonment of 12 months with a balance of term of 12 months - such sentence to be fully suspended for 2 years.
CATCHWORDS:	Criminal law - sentencing - manslaughter - unlawful and dangerous act - offender pleaded guilty to manslaughter - domestic situation - special circumstances - suspended sentence under s9 Crimes (Sentencing Procedure) Act 1999.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1900
CASES CITED:	R v Bogunovich (Maxwell J, 30 May 1985) R v Stanley Edward Fernando (1992) 76 A Crim R 58 R v Hill (1980) 3 A Crim R 397 R v Kennedy [2000] NSWSC 109 R v Melrose [2001] NSWSC 847 R v Previtera (1997) 94 A Crim R 76 R v Roberts (Hunt J, 31 August 1989, unreported) R v Zamagias [2002] NSWCCA 17
PARTIES:	Crown Lacy Lee Jukes - Offender
FILE NUMBER(S):	SC 2005/2088
COUNSEL:	Mr Paul Lynch - Crown Mr John Stratton SC - Offender
SOLICITORS:	Solicitor for Public Prosecutions - Crown Kamilaroi Legal Services - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 13 October 2006

2005/2088 – REGINA v Lacy Lee JUKES

REMARKS ON SENTENCE

1 HIS HONOUR: On 24 August 2006 Lacy Lee Jukes (the offender) pleaded guilty to the manslaughter of Mack Tepeanapene Hati at Woolomin on 13 September 2003. Mr Hati’s death was caused by a single stab wound with a knife to the left side of his chest, which damaged his lung and the large blood vessels at the top of the heart. The offender was arrested on 13 September 2003 and was subsequently charged with the offence of murder. She has spent 90 days in custody. She has been at liberty on conditional bail with twice weekly reporting conditions until the present time.

2 There was no agreed basis upon which the plea was entered. On behalf of the offender it was submitted that she should be sentenced on the basis of having committed an unlawful and dangerous act, ie grabbing and holding a knife in the course of a domestic argument. On behalf of the Crown it was submitted that the offender should be sentenced on the basis of manslaughter by provocation or manslaughter by excessive self-defence. The Crown did accept that a finding of manslaughter by an unlawful and dangerous act was open on the facts.

3 This lack of agreement requires me to analyse the facts so far as they are known and to determine on which basis the offender should be sentenced.

Factual Background

4 The following is substantially taken from the statement of agreed facts.

5 The deceased was a 35 year old New Zealand national who had lived in Australia for a number of years. At the time of his death he had been living in a de facto relationship with the offender’s mother, Tracy Nelson, at RMB 1665 Nundle Road, Woolomin (about 30 kilometres from Tamworth) for several months. Tracy Nelson owned the house. The offender who was 20 at the time and her three young children had been living at the house for a short time before the fatal incident.

6 The deceased was a heavy consumer of alcohol. He mainly drank at home. For several weeks prior to his death he had been agitated after receiving notification that he was liable to reimburse the State for an award of criminal injuries compensation in the sum of $6,893 to his ex-wife. In those weeks he tended to drink more heavily than usual and occasionally got angry. On one occasion during that period when he was drunk, he held his fist up to the offender and said “I’ll kill you”. According to Ms Nelson the deceased did not become physically violent when intoxicated.

7 The deceased’s relationship with Ms Nelson was generally a happy one but he frequently complained about the mess left in the house by the offender and her young children. On the morning of 13 September 2003 the deceased got up at about 7am, after he and Ms Nelson had been out late the previous night. The deceased went to a shed where he played country and western music while drinking beer. Some of the offender’s children were with him.

8 Ms Nelson slept until 1pm. She then started to prepare breakfast in the kitchen. The offender and her youngest child were still asleep in the lounge-room. When the deceased joined Ms Nelson, he complained about the state of the kitchen and about the offender’s failure to clean the mess up while he and Ms Nelson went out to work. The offender entered the kitchen and the deceased directed his complaints to her.

9 In an attempt to defuse the situation, Ms Nelson assured the deceased that she would clean up the mess herself. The deceased erupted and pushed Ms Nelson into the fridge. He said “Why don’t you stand up for me?” The offender said to the deceased words to the effect of “Don’t you dare push my mother. I’m not going to let you treat her like shit like the rest of her men have”. The deceased then pushed the offender into the fridge. He was making growling noises which resembled the sounds made during the Maori haka. Ms Nelson tried to intervene to calm the situation down, without success. The offender grabbed a kitchen knife from the bench. The deceased moved towards her. The knife penetrated the deceased’s chest. He fell to the ground. The knife was withdrawn.

10 Ms Nelson gave conflicting accounts to police about how the offender held the knife before it penetrated the deceased’s chest. In the first interview she indicated that the offender held the knife in her right hand, which was raised above her shoulder. The handle of the knife was in the offender’s fist with the blade of the knife pointing towards the deceased and the bevelled edge of the knife at the highest point. In the second interview, Ms Nelson demonstrated how the offender held the knife down near her waist, close to her body. When the knife came out of the deceased’s body, blood spurted out very high and reached the ceiling.

11 Immediately after the incident, the offender grabbed her children and ran next door to phone 000 (the phone in Ms Nelson’s house only permitted incoming calls). The offender said to Ian Graham, the son of a neighbour:

“I’ve stabbed him. I’ve hurt him. I had to defend myself.”

12 During the conversation with the operator the offender, who was in a state of great anxiety, said:

“I had to stab this bloke ‘cause … he was going off and that and he was getting right in our faces and then he started … hit my mum … I thought he was going to hit me so I grabbed the knife, it was the first thing I grabbed … oh please hurry …I didn’t mean.”

13 Ms Nelson also spoke to the operator during the phone conversation. She said:

“We had a blue he was … I know … and he took to Lacey and she got him … she didn’t mean to do it.”

14 While the offender was on the phone to the operator, Mr Graham went next door and established that the deceased was in fact already dead.

15 Senior Constable Scott Laing arrived at the scene at 2.12pm. Ambulance officers and more police officers arrived at 2.21pm. The offender was arrested and cautioned. She stated that the knife was still in the house. Police subsequently retrieved it from the kitchen floor. While in custody at the scene the offender said:

“I’m just worried about my kids. I’ve got three of them and I don’t know how they’ll sleep tonight. They shouldn’t have seen this. It’s not fair on them. I didn’t mean it, it was an accident. It was either mum or me or him.”

16 At the police station the offender was taken to an area where she could smoke. She was supervised by Constable Cooper. She referred to the presence of her three children during the incident and then said:

“It all happened so quick. It was my mother’s boyfriend, when he drinks he just starts. When he got home today we could tell he was pissed. He came in and just started on mum and then he started on me. He used to do it all the time. He went up to mum’s face and started yelling at her. So I yelled back at him and he came up to me right in my face and started yelling at me, holding his fist up to my face. He looked back at mum and started yelling “Who you fuckin’ gonna stick up for?” Then he went back to mum and grabbed her and pushed her and held his fist up in her face. He was gonna hit her, he was, he was really gonna hit her. I thought he was gonna hurt her so I just grabbed the closest thing. I stabbed him under the arm. I think it went right through him, it must have. He still tried to attack me but he couldn’t move. It was terrible. I didn’t mean to do it.”

17 Constable Cooper observed that the offender was very distressed and crying uncontrollably during this conversation.

18 At 6.15pm a solicitor from the Aboriginal Legal Service attended Tamworth Police Station to represent the offender. He informed police that the offender would not participate in any form of interview. She was then charged with the murder of the deceased.

19 The single stab wound, which brought about the death of the deceased, was 18mm long and obliquely orientated. It was centred approximately 130mm to the left of the anterior midline and 1.42 metres above the level of the left heel. The track of the stab wound perforated the skin and subcutis of the chest wall passed between the left 3rd and 4th ribs, partly cutting the top of the 4th rib. It perforated the anterior parietal pleural surface; the anterior aspect of the upper lobe of the left lung; the pericardium; the wall of the aorta in two places and across the pulmonary trunk towards the hilum of the right lung. The path of the track of the wound was from left to right, from front to back and very slightly upwards to an approximate minimum wound depth of 140mm.

20 The deceased was 177cms tall (5’10”) and weighed 65.5 kgs. He was a well developed and nourished man of medium build. The offender is 145cms tall (4’9”). It was common ground, confirmed by the walk through video, that the kitchen where the offence occurred was small with a number of obstacles to movement.

21 Doctor Botterill performed the autopsy on the deceased. He gave evidence at the committal proceedings on 17 June 2005. Significant matters to emerge from that evidence were as follows: Only a moderate degree of force would be required to inflict such a wound on the deceased. Nevertheless, more than just mild force would be required. It was possible that the deceased fell or stumbled onto the knife but Dr Botterill was not aware of any such scenario occurring in his experience. From the skin surface to the deepest point of penetration, the wound was 14cms in depth.

22 I was provided with a photograph of the knife. It is pointed with a serrated edge. The blade is 18-19cms in length.

23 At the time of his death, the deceased’s blood alcohol level was about .195. According to Dr Judith Perl, consultant pharmacologist, all people would experience significant cognitive and motor function impairment with a blood alcohol level of that order. If a person had developed a tolerance through regular heavy drinking, he or she might not exhibit any obvious signs of impairment.

24 The offender described the incident in her evidence before me as follows:

“Q. When you were pushed, were you in the kitchen?
A. Yes.

Q. Did you reach out and grab something?
A. Yes.

Q. What did you grab?
A. I grabbed a knife, but I would have grabbed anything. Anything that was - I grabbed the first thing that was the closest.

Q. And that turned out to be a knife?
A. Yes.

Q. Are you able to say with certainty today how you held the knife?
A. Yes.

Q. How do you think you were holding it?
A. Down by my side.

Q. By your side, all right. You have got your fist by your side and the knife was extending from the top of your fist, is that right?
A. Yes.

Q. Mr Hati is a fair bit taller than you?
A. Yes.

Q. After you grabbed the knife, what happened?
A. I started walking backwards but because it's only little, I didn't have much room so they were really little steps. I had my three kids behind me and Mac came for me and he jumped on the knife. He said, "Kill me, aagh".

Q. Miss Jukes, did you intend to kill Mr Hati?
A. No.

Q. Did you intend to stab him?
A. No.”

25 The Crown submitted that the offender ought be sentenced on the basis of manslaughter by provocation, ie that the offender had lost control because of the provocative conduct of the deceased, picked up a knife in an impulsive spur of the moment action and deliberately or intentionally stabbed the deceased causing his death.

26 The Crown submitted that the Court ought find that the stabbing was deliberate or intentional because of the following evidence:

(i) The location, oblique angle and slight upward elevation and depth of the wound.

(ii) The evidence of Dr Botterill that a moderate degree of force was required to inflict such a wound.

(iii) The unlikelihood of the scenario that the deceased fell on the knife.

(iv) The use of the active verb “stabbed” in the various statements made by the offender to her neighbour, the OOO operator and the police.

27 As an alternative, relying upon the same material the Crown submitted that the offender ought be sentenced on the basis that she believed she needed to do what she did in her defence but that her response was not a reasonable response in the circumstances as she perceived them to be, ie that the offender ought be sentenced on the basis of manslaughter by excessive self-defence.

28 An essential requirement for that alternative is that the Court find that the stabbing was deliberate or intentional and that it was done with the requisite intent. The Court was invited to infer that anyone who intentionally stabs another in the upper chest has at the very least, an intention to cause that person grievous bodily harm.

29 On behalf of the offender it was submitted that too much weight should not be given to the use of the word “stabbed” given the offender’s level of distress at the time. In any event the use of that word had to be balanced against the number of times the offender said “I didn’t mean it” and “it was an accident”.

30 The Court’s attention was drawn not only to the evidence of the offender referred to above but to that of her mother in her two records of interview where she described the incident in terms of the deceased moving onto the knife, rather than the offender stabbing with it.

31 On the limited material available I cannot be satisfied beyond reasonable doubt that the offence ought properly be characterised as manslaughter by provocation. The real issue is whether what occurred should be properly characterised as manslaughter by excessive self-defence or manslaughter by unlawful and dangerous act.

32 I am satisfied to the necessary standard that the deceased did not meet his death by moving forward or falling onto the knife.

33 As Dr Botterill pointed out, such a scenario is very unusual and one which he had not previously encountered. It also seems to be quite inconsistent with the diminutive stature of the offender and the location of the wound. I cannot see how the wound could have occurred in that location if the offender was holding the knife down by her side. It would have been necessary for the deceased to have literally fallen forward and downwards onto the knife.

34 It seems to me that what the offender’s mother described in her first statement more accurately depicts what happened, ie that the offender held the knife in her right hand which was raised above her shoulder. Having said that I was impressed by the evidence of the offender and I am not satisfied beyond reasonable doubt that she intentionally stabbed the deceased in the upper chest with an intention of causing him grievous bodily harm.

35 What seems to be the most likely scenario and which reconciles the testimony of the offender and her mother with the location and nature of the wound, is that the injury occurred by way of a combination of the deceased moving or lunging forward and the offender pushing forward with the knife.

36 Of particular significance, it seems to me, is the fact that the knife did not penetrate to the full length of its blade. Had the offender stabbed the deceased with an intention of causing grievous bodily harm, one would reasonably have expected the full length of the blade to have been used.

37 Accordingly, I find that the appropriate characterisation of the offender’s offence is manslaughter by an unlawful and dangerous act, ie in taking and holding a knife in the course of a domestic argument. I find that the action of the offender in partially pushing forward with the knife was not a deliberate one but an instinctive one which occurred as a result of the deceased moving, or as her mother described it “lunging” towards her. I am satisfied that the offender had no intention of stabbing the deceased, let alone inflicting grievous bodily harm or killing him.

38 Although the deceased left New Zealand in 1986, he still maintained contact with his family. I have received a victim impact statement from the deceased’s sister and another document from members of his family. Those documents express the family’s love of the deceased and their grief and sorrow at his death. I am of course aware that the effect of the death of the deceased upon relatives is not a relevant consideration (R v Previtera (1997) 94 A Crim R 76). Nonetheless, the Court expresses its profound sympathy for all those who have been and who are suffering by reason of Mr Hati’s death.

Subjective matters

39 There is no doubt that the offender expressed heart felt contrition from immediately after the incident. She immediately summoned medical help and expressed remorse.

40 The offender had no prior criminal record at the time. The only matter on her record is a common assault matter involving her mother, which was proved but dismissed on 23 January 2006.

41 She has a most unfortunate background. Her mother is Caucasian and her father is Aboriginal. Her parents broke up when she was two years of age. She has only met her father once since he left the family and that was when she was aged eighteen. He now resides in Western Australia.

42 When the offender was nine years of age, she was sexually assaulted. When she was fourteen she was bashed and again sexually assaulted. The person who committed that offence was subsequently gaoled.

43 She had her first baby when she was sixteen. She now has five children, the oldest of whom is seven and the youngest is eight months. The offender’s relationships have involved violence, usually directed at her but sometimes towards the children. The offender’s youngest child suffers from a condition known as Amniotic Band Syndrome. This is a condition which occurs in the womb when the umbilical cord becomes caught around the foetus. It leads to the baby not being properly developed. In the case of the offender’s youngest child his hands did not form properly and he requires special assistance from the offender.

44 The plea of guilty was entered at an early point in time and was of considerable utility. It was entered after the Crown had indicated that it would accept such a plea in full discharge of the indictment rather than proceed with the charge of murder. The Crown accepted that the plea had been entered at an early point in time.

Applicable principle

45 I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. Because of the date on which the plea of guilty was entered, s3A of the Crimes (Sentencing Procedure) Act 1999 applies:

“3A. The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences;
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.”

46 It is also necessary in determining the appropriate sentence to have regard to the aggravating and mitigating factors which are set out in s21A of that Act. It is apparent from the concluding words of s21A(1) that the list is not exhaustive. It is not necessary to refer to all of the factors therein set out but only to those which are relevant.

47 Of the aggravating factors, the only one which is relevant is that the offence involved the actual use of a weapon. So far as mitigating factors are concerned, the offence was not part of a planned or organised criminal activity, there was some element of provocation, the offender does not have any record of significance, the offender was a person of good character, she is unlikely to re-offend, she has good prospects of rehabilitation, she has shown remorse and entered a plea of guilty at an early point in time. By way of further mitigation there was some element of self-defence in the offence.

48 It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. For manslaughter it is imprisonment for 25 years (s24 Crimes Act 1900). Finally, I take into account s5(1) of the Crimes (Sentencing Procedure) Act 1999 which provides that:

“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

49 Insofar as the authorities are concerned, “It is now well established that when a human life is taken, even within the context of domestic violence the Courts will not deal leniently with the offender unless the case is exceptional. It is only in the most exceptional case that a non-custodial sentence will be imposed.” (R v Bogunovich, (Maxwell J, 30 May 1985, unreported), R v Roberts (Hunt J, 31 August 1989, unreported), R v Kennedy [2000] NSWSC 109 at [56], R v Melrose [2001] NSWSC 847 at [27]).

50 As was said by Street CJ in R v Hill (1980) 3 A Crim R 397:

“It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. 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 human life is a grave action calling for a correspondingly grave measure of criminal justice being meted 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.”

51 Cases such as this where the offender is found to have lacked the intent to kill or do grievous bodily harm fall towards the lower end of the range of seriousness of manslaughters. In the proceedings before me the Crown appropriately conceded that depending upon which view the Court took of the offender’s culpability a non-custodial sentence might be appropriate.

52 In the present case, having regard to the matters to which I have referred, I am satisfied that the circumstances are exceptional. The circumstances of the offence are most unusual and involve culpability at the low end of the range. There are the significant number of mitigating circumstances to which I have referred in the context of s21A. There are the sad personal circumstances of the offender, including her age and the fact that there are five very young children entirely dependent upon her. There is also the offender’s aboriginality which of itself can give rise to particular difficulties (R v StanleyEdward Fernando (1992) 76 A Crim R 58). There is the fact that the offender has already spent ninety days in custody and for a period of over two and a half years has had to comply with a rigorous reporting regime whilst on conditional liberty. She entered a plea of guilty at an early point in time.

53 Against those considerations, the Court still has to have regard to the sanctity of human life and the purposes of sentencing set out in s3A of the Crimes (Sentencing Procedure) Act in particular denouncing the conduct of the offender and making the offender accountable for her actions and ensuring adequate punishment for the offence.

54 Taking all those matters into account, I am satisfied that no alternative is appropriate other than a sentence of imprisonment. I do not think in the circumstances of this case that a good behaviour bond would adequately meet the purposes of sentencing set out in s3A of the Act. In my opinion a sentence of 2 years is appropriate and I determine a sentence of imprisonment of 12 months with a balance of term of 12 months. However, having regard to the matters in para [52] hereof, I have decided that the sentence of imprisonment should be fully suspended. (R v Zamagias [2002] NSWCCA 17.)

55 Lacy Lee Jukes in accordance with s12 of the Crimes (Sentencing Procedure) Act 1999 you are sentenced to imprisonment for a period of 12 months to commence on 13 October 2006 and to expire on 12 October 2007 with a balance of term of 12 months to expire on 12 October 2008 such sentence to be wholly suspended for a period of 2 years. I suspend the sentence on condition that you be of good behaviour for a period of 2 years and that you be liable to be called up for sentence at any time within that period for any breach of this condition. It is a further condition of the suspension of your sentence that within 48 hours after your release you report to an officer of the Probation and Parole Service at Tamworth and that you accept the supervision and obey all reasonable directions of the officers of that Service for a period of 2 years or for such lesser time as specified by the Service.

**********