Regina v Nam

[2006] NSWSC 802

CITATION:

REGINA v NAM [2006] NSWSC 802

HEARING DATE(S):

31/07/06, 2/08/06, 3/08/06

 
JUDGMENT DATE : 

2 August 2006

JURISDICTION:

Common Law

JUDGMENT OF:

Adams J at 1

EX TEMPORE JUDGMENT DATE:

08/02/2006

DECISION:

In respect of the offence involving Ronald Howell the offender is sentenced to a fixed term of eighteen months imprisonment, to commence on 8 December 2004 and expire on 7 May 2006. In respect of the offence involving Frank Cocker, the offender is sentenced to a fixed term of eighteen months imprisonment, to commence on 3 February 2005 and expire on 2 August 2006. For the offence of manslaughter the offender is sentenced to a non parole period of two years, to commence on 3 August 2004 (back-dating an additional four months to take account of pre bail custody) and expire on 2 August 2006 with a balance term of two years and six months, commencing on 3 August 2006 and expiring on 2 February 2009.

CATCHWORDS:

Sentence - manslaughter - excessive self-defence - maliciously cause grievous bodily harm - gross violent provocation by victims - intentionally producing terror - loss of control - significantly reduced culpability

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 s 21A
Landlord and Tenant Act 1899 s 2AA

PARTIES:

Regina

v

Timothy John NAM (Offender)

FILE NUMBER(S):

SC 2005/2185

COUNSEL:

Mr N Harrison (Crown)
Mr John Stratton (Offender)

SOLICITORS:

Ms A Halpin, Office of the Director of Public Prosecutions
Ms J Collings, Legal Aid Office

Ex tempore - revised

THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

ADAMS J

ORANGE: WEDNESDAY 2 AUGUST 2006

2005/2185 - REGINA v TIMOTHY JOHN NAM

SENTENCE

1 HIS HONOUR: On 13 July 2006, the offender Timothy Nam pleaded guilty to the manslaughter of Michael Pestano and maliciously inflicting grievous bodily harm to Frank Cocker and Ronald Howell. These offences respectively carry maximum sentences of twenty-five years’ and seven years’ imprisonment.

2 They were committed at about midnight on 23 July 2004 when the offender found himself caught up in a terrifying nightmare, which was not of his making. It had been deliberately instigated by the cowardly and criminal violence of Michael Pestano and a gang of other men including the victims and which was directed towards the offender, his wife and 14-month-old baby son, and elderly parents.

BACKGROUND CIRCUMSTANCES

3 The Nam family and the Taylor family had known each other for many years. In 1999, the Taylors purchased a farm at Arthurville. It was agreed informally that the farm would be occupied by the Nam family and that they would establish a substantial olive grove there. The profits were to be shared between the two families. Sometime later, I think in 2000, there was a falling out and the Taylors required the Nams to leave the farm. Civil proceedings were instituted and were due to be heard in the Agricultural Tribunal in October 2004. However, the Taylors decided that they would take other action to evict the Nams. They had obtained legal advice, that they believed entitled them to do so. This advice has been tendered. In significant respects it is unfortunately ambiguous. On the whole, however, I am inclined to think that the Taylors believed that they were entitled to move into possession of the farm, providing that the Nams were not physically occupying it. The letter of advice did not make any suggestion about how the Nams might be induced to leave, but contained the following passage –

“Whilst you are entitled to take possession of your own property, if the situation gets out of control you, or those involved, may face criminal charges and/or a civil claim for damages. It is likely that Mr Nam will try and place criminal charges for assault if the matter becomes violent, which we advise that you should not let happen.”

4 Regrettably, the situation did get out of control, and the matter did become violent. Moreover, it did so as a direct result of unlawful violence, both actual and threatened, proffered by Michael Pestano and a number of men who were employed to evict the Nams from the farm.

5 The Taylors’ decision to evict the Nams led them to employ a Mr Frank Wheeler. It was obviously envisaged that police might become involved and the Taylors gave Mr Wheeler’s company a 12-month lease of the property in order to prove that Mr Wheeler was entitled to take possession of the farm. The lease was plainly a device to show the police if it became necessary.

6 The Taylors were not legally entitled to physically evict the Nams from the house or to employ others to do so. For reasons which do not require elaboration, it is very likely moreover, that the attempt to obtain possession otherwise by sanction of a Court order, comprised an offence under s 2AA of the Landlord and Tenant Act 1899. Any attempt to physically evict the Nams from the house, by violence, or threat of violence, would have been criminal at all events. Yet this is precisely what Michael Pestano and his accomplices undertook to do.

7 Frank Wheeler had worked for many years with Michael Pestano. He it was who arranged for Pestano to undertake the eviction. Pestano was paid $9,000 for his services. He was said to be an eviction specialist or mediator. He effectively operated through his son Jason’s debt collection agency. Pestano’s actual criminal record was negligible. However, a number of police reports concerning him were tendered. The Crown objected to their relevance but did not submit that they were inaccurate. I held that they were admissible. They supported the accounts given by the offender and his mother about what happened.

8 It is sufficient for present purposes to state that Pestano was known to police as a standover man and extortionist, who claimed connections with Tim Bristow, a notorious Sydney criminal. At the time of his death he was subject to an outstanding charge of demanding money with menaces and intimidation. His conduct on the night he died, was entirely consistent with his reputation.

22 JULY 2004

9 On 22 July 2004, Michael Pestano travelled from Sydney to Arthurville. He was accompanied by Victor Kimble and Brian Randall-Smith. Victor Kimble was about 6’5” tall and of solid build. He had met Pestano through Tim Bristow and often accompanied Pestano in debt collecting operations. His skills at mediation are not known. The offender said that he made it obvious that he was carrying a pistol. No doubt this was part of his function. Randall-Smith has a lengthy criminal record including robbery, breaking and entering and stealing and other offences of dishonesty.

10 In Wellington, Michael Pestano met with Mrs Taylor and a number of other men, including Ronald Howell and Frank Cocker, who were locals. Mr Howell was walking with the aid of crutches due to a hip replacement. He later told police that he came along because he knew Laurie Nam, the offender’s father, hated his guts and wanted to see him evicted from his property.

11 The group went to the farm that afternoon, intending to remove the Nams and gain possession of the farm. Mrs Nam said in evidence that Michael Pestano said to them that he had come to move them out. Mrs Nam responded that her husband was sick in bed and they would not leave. Pestano said that there was an ambulance on the way and a removal truck and a bulldozer was also coming to knock down the house. Mrs Nam went inside and called the police. It was at this point that, according to the offender, Kimble opened his coat and flashed a weapon.

12 Police attended in due course. Amongst them was Inspector Cusack from Dubbo Police Station. He said that he was shown the lease by Mrs Taylor, who told him that Michael Pestano was the new tenant and she wanted him to move onto the land. This of course, was considerably less than candid. Michael Pestano told the officer, “I am very good at what I do, I have been doing this for a long time, I will smoke them out.” Pestano explained, “I will wait for them to leave and take possession, I will tow a caravan here”. “Smoking out” is not a term suggesting mediation, nor did it imply passively waiting until the occupants decided they would leave. Michael Pestano told the Inspector, in effect, that he was experienced at evicting tenants who were reluctant to leave premises they occupied and that he would force them to leave if necessary by actions that would make it impossible for them to stay.

13 Inspector Cusack thought the men assembled to support Pestano were becoming restless and he deployed three police to stand between the group and the main gate in the internal fence, around the farmhouse. Inspector Cusack attempted to mediate between the Nams and Mrs Taylor and Pestano. He contacted their respective solicitors. Further discussion ensued but to no avail. It was clear that the Nams would not leave, and that Mrs Taylor was maintaining her right to evict them.

14 Inspector Cusack was informed by someone from the Police Services Branch, that the matter was a civil dispute and the police should only be involved to prevent a breach of the peace. The Inspector told both parties to keep the peace. Michael Pestano responded that he would return the next day with a caravan. (I interpolate that if he did so, he would have been a trespasser.) The group with Mrs Taylor then left the property, taking with them the only functioning motor vehicle on the farm, which had been used by the Nams and claimed by the Taylors. The Nams were thus left without any mode of transport in a farmhouse about thirty kilometres from town.

23 JULY 2004

15 It was towards the end of 23 July at about 5 pm or so, that Michael Pestano, his son Jason, Colleen Taylor and her son William Taylor, Randall-Smith, Howell, Cocker and another local, Stanley Webber, returned to the farm with a rented caravan and food and drink. The caravan was parked about seventeen or eighteen metres from the farmhouse. As it got dark, the men, at Jason Pestano’s direction, demolished the fence between the caravan and the farmhouse with a chainsaw and a pinch bar. They had no legal right to do so, this was a criminal offence. The posts were used to build a substantial fire, only fifteen metres from the house. The house itself was constructed of pine with an iron roof. Building a large fire so close to the house was obviously a dangerous thing to do. Not long afterwards, the water tanks were drained. This was the only supply of water to the house. This was not only criminal but also vicious and dangerous. The only purpose of building this substantial fire was to intimidate the occupants of the house. Another substantial fire was lit about seven metres or so further away towards the caravan. The Nams were under siege.

16 Michael Pestano and, I think, Jason Pestano yelled threats of violence to the occupants in the house. The offender’s father went outside to tell them to stop. He claimed that a cigarette was flicked in his eye and he was hit in the face with a pinch bar. The police were called but the officer could see no visible signs of injury. I am inclined to think that some violence of this description occurred, but there is some doubt about it. Mr Nam did not give evidence. Certainly, the offender believed his father’s complaint. Mr Nam was invited to go to the police station to make a formal complaint and provide a statement, but he could not do so since he had no vehicle. He said he would not leave his family in this situation. The police were told of thrown rocks and shouting. They spoke to the Pestano group. What was said is not in evidence. It is not clear when in the sequence of events, Mrs Taylor and her son left, but they did so at about 7.30 pm.

17 What later happened is somewhat confused, though its general outline is clear enough. I have heard evidence from the offender and his mother Margaret Nam, who is 66 years of age. The offender was not cross-examined to suggest his account was untrue; Mrs Nam was not cross-examined at all. I thought that both of them were attempting to tell the truth as best they could recall it although I think that, in some respects, their evidence as to the precise sequence of events was confused. I also had the benefit of an agreed statement of facts, and statements from Inspector Cusack and a Constable Kremers, who attended at the farm twice during the night, once at about 7 pm after Mr Nam was struck and again at 9 pm. (I should say that in a number of significant respects the statement of Constable Kremers is unsatisfactory, having regard to the evidence, especially that of Mrs Nam. I suspect that he has understated what he was told about what had happened. However, the statement was prepared in connection with the investigation of the charges against the offender. It leaves out the interactions between the officer and the Pestano group. In the result, this means that far less than the whole picture is available.)

18 Whatever assurances Michael Pestano gave the police officers about his conduct, and the conduct of those under his leadership, I do not doubt that he intended by threats of serious violence and possibly even the commission of violence, to frighten the Nams into leaving their home.

19 I accept the evidence of Mrs Nam, that in addition to the chainsaw and pinch bar, the Pestano group carried axe or mattock handles. I am satisfied that they yelled threats of serious violence at the occupants of the house. They banged on the walls with the wooden handles, threw objects on the roof, threw a rock through a window where the child was sleeping and then dislodged at least one of the poles, holding up the verandah, which broke through the same window. At one point Mr Cocker was bashing a roll of tin or corrugated iron with a length of iron like a tyre lever. On one or possibly two occasions the power was turned off. It could only be turned on by leaving the house to go to another part of the house where the fuse box was installed.

20 The police were called again at about 9 pm, when it seemed, as I understood the evidence, that the Pestano group were becoming more threatening. The lights had been turned off. Inspector Moon attended. He showed the offender the way to the fuse box with his torch, though reluctantly. He spoke to the Nams and told them and the Pestano group that he was fed up with what was happening and the police would not come out again. I believe that Pestano thought that he was now free to do virtually what he wanted. Mrs Nam said that, following the departure of Inspector Moon, she heard threats that the house would be set on fire, first in the back, and then at the front. I think it was at this point that the water tanks were drained.

21 Mrs Nam said that she heard Michael Pestano calling out from near the front door words to the effect,

“Come outside there are better men out here, then there are inside, come outside with us, and we’ll have a good time.”

Mrs Nam is 66 years of age. She said that she heard threats at least once an hour to rape the women and kill everyone in the house including the baby. There was continuous noise, banging and threats of extreme violence. It was pitch dark outside except for the fires. It needs hardly to be said that this was a terrifying experience. Of course, this is precisely what Pestano intended. It is what he meant by “smoking out.”

22 At about 11.30pm Paul Dench, Mrs Nam’s son, arrived with three male friends pursuant to an earlier arrangement to visit for some pig hunting. They did not have any firearms, intending to hunt with dogs and knives. As they entered the property, their cars were pelted with objects, thrown by the Pestano group. When they got to the farmhouse, they parked their cars at one end of the house. They were met outside by the offender and his parents. Someone mentioned that the dogs should be let out to relieve themselves. One of the Pestano group yelled that, if they were let out, they would be cut up, revving the chainsaw as this was said. The offender had come out of the house with a loaded 22 rifle, which he was holding against his side pointing to the ground. Mr Nam senior yelled several times threats to shoot if they did not leave the property.

23 The offender moved across from where the new arrivals were standing to behind a vehicle near the house, and about fifteen metres or so from the caravan. He saw Michael Pestano coming towards him waving his arms in the air apparently signalling to his mates to follow him. He said that he heard a shot from somewhere near the caravan, he thought aimed in his direction. He thought heard his father say, “Fire the gun”. He put the gun to his hip and fired, spraying the area in front of him with bullets. It appears that something like eleven or twelve shots were fired in very quick succession, a matter of seconds. The offender said he was terrified and just trying to get Pestano to move away. He did not intend to shoot him, though he was aware that he, and possibly some of the other men, were in the path of the shots. He was not thinking clearly. I think he was so terrified that he panicked and simply lost control.

24 Michael Pestano was hit four times, of which one shot to the chest was fatal. He fell to the ground. I think he was about ten metres or so from the offender when he was shot. The offender was unaware that Pestano was wounded and, in a rage intending both to incapacitate him and punish him for the terror he had inflicted on him and his family, went up to him and struck him once hard with the plastic butt of the rifle.

25 Two other members of the group were wounded in the spray of bullets. It is obvious that Howell himself was not in a physical state to have responded to Michael Pestano’s signalling. However, he was wounded. Both were wounded in the back as they turned to run for cover. The offender says he did not see them at the time, as it was too dark. But as I have mentioned, he admits that he was aware that there were people in the area at which he aimed the gun. After striking Michael Pestano, the offender went inside and loaded more ammunition into the gun. It seems that several more rounds were fired from the gun, but I do not think they were fired by the offender.

26 In the meantime, Jason Pestano recovered his father and the group fled. Mr Nam senior certainly fired several more shots, one of which hit one of the fleeing vehicles. He put the gun into the fire. Another gun was also later found in the fire, but its provenance is unknown. It had been fired once it seems, but by whom cannot be determined.

27 As the Pestano group drove from the farm towards Wellington, they called for police and ambulance assistance. However, Michael Pestano died on route. He had been wounded in the chest, twice in the side and once in the right elbow. At autopsy a blunt force injury to the head was noted. Mr Howell suffered a gunshot wound to the back left side, as he turned away from the offender. He was in a critical condition, but has since made a full recovery. Mr Cocker was wounded once in the back of the chest, causing a pneumothorax of the left lung and received a glancing wound to the left arm. He has also made a full recovery.

28 Although in some respects the offender’s evidence is confused and I think there has been some reconstruction, as I mentioned, I accept in substance that he is telling the truth about the events of that night. And I accept that he is telling the truth about his state of mind at the time of the shooting. I have concluded that he did not intend to kill Michael Pestano or cause him grievous bodily harm. I accept that he believed that he had been shot at, and he fired the gun in defence of himself and his family. I accept that he was terrified and that his response was a panicked one. I believe that the number of shots he fired reflected a very substantial loss of self-control that had been brought about by the frightening events of the previous two days.

29 I think the offender believed that Michael Pestano and his accomplices were attacking him and his family. I think that this was, in the circumstances, a reasonable belief. It might be doubted what Michael Pestano was actually intending to do, when he moved towards the farm house signalling his accomplices to move up with him. He was not carrying any weapon, or anything that could be used as a weapon. However, as I have mentioned, some other young men had arrived at the farmhouse. The overwhelming preponderance of force which hitherto Michael Pestano and his group had over two elderly people, a young man, a young woman and a 14 month child, was no longer quite so overwhelming. The house was momentarily empty except for the offender’s girlfriend and their baby. I think it is reasonable to infer that Pestano was making a pre-emptive strike in an attempt to take possession of the farmhouse, before the new arrivals were in a position to prevent him from doing so.

30 I have mentioned that the offender believed his father had told him to shoot. It seems very likely that, in fact, his father had told him not to fire the gun, but to hand him the gun. I note that Mr Murdoch has said that he heard the offender say that he hit Michael Pestano “to finish him off.” But I prefer the evidence of the offender and Mrs Nam to the effect that the offender was stunned by what had happened and did not speak at all after the event.

THE OBJECTIVE SERIOUSNESS OF THE OFFENCES

31 The essential culpability of the offender arises from the fact that he caused death and grievous bodily harm by the use of objectively excessive violence. Although the offender believed he was acting in self-defence, by his plea he admits that he used more force than was reasonable in the circumstances to repel the attack.

32 The Crown and the defence, in essence, accept that whilst it may have been reasonable for the offender to threaten to use the rifle and when (as he believed) a gun was fired at either him or the house, to fire it but it was not reasonable for him to do so in an uncontrolled way likely to cause lethal or very serious injuries.

33 The offender is himself aware, perhaps better than anyone, whether he used more force than was reasonably necessary, on an objective view to defend himself and his family. Accordingly, although I have real misgivings about whether he did act unreasonably, especially accepting that a gun was fired that he believed came from the Pestano group, I am nevertheless prepared to sentence the offender on this basis.

34 Although the use of a gun is an aggravating feature under s 21A of the Crimes (Sentencing Procedure) Act 1999, since the use of the firearm in this case would have been justified, and the gravamen of the offence is its excessive use, I do not regard this feature as aggravating the objective gravity of the offence.

35 On the other hand, a substantial mitigating feature of this case is the extremely provocative conduct of the deceased and his accomplices. I do not excuse Cocker or Howell, even though the latter was, it seems, scarcely capable of inflicting violence himself. Both of them were present, and in my view, must be taken to have supported and encouraged the disgraceful, cowardly, and unlawful conduct which Michael Pestano was directing. They were all party to conduct that pushed the offender beyond the limits of his self-control; they cannot be in all justice regarded as innocent victims. They thought the offender (and the rest of his family) would be terrified into fleeing. Instead, the offender was terrified into shooting. Accordingly, these offences should be considered to be at the bottom of the range of criminal culpability.

SUBJECTIVE FEATURES

36 The offender was charged with and committed for murder. A bill of indictment for murder was found. He was also indicted for intentionally causing grievous bodily harm. In the result the Crown Prosecutor who appeared before me, and who had not found the bill, accepted pleas of guilty to the significantly lesser charges for which the offender now comes to be sentenced.

37 It is submitted by the Crown Prosecutor that, the defence not having commenced negotiations at an early stage indicating a preparedness to plead guilty to the lesser offences, the acceptance of the Crown’s proposal as to the appropriate charges, coming as it happened only three weeks or so before the date fixed for trial, when the Crown made the offer, the pleas should be regarded as late.

38 It should, however, be noted that the bill for the more serious offences was found presumably after considering whether lesser charges might be preferred. I do not think that it is always fair that an accused will be denied a substantial utilitarian discount because he or she does not initiate negotiations. This must depend on the circumstances; both Crown and the defence have a responsibility in this regard. Although in this case it may be that the offender did not plead at the earliest practicable opportunity, this is by no means entirely his doing. At the same time, the utilitarian discount is designed to encourage early pleas and this policy justification must clearly be kept in mind. Overall, I think a discount of the order of 17 percent is appropriate.

39 I come now to the personal history of the offender. He is 29 years of age, with a supportive family. He obtained his High School Certificate and worked in several jobs before the family moved to the farm. He moved there with his parents and helped with planting and caring for a substantial olive tree grove. At the time of the offences he was in a relationship with a much younger woman, and they had a son who was then fourteen months of age. Shortly after the offender was gaoled for these offences, the relationship ended. He has since entered into another relationship with a woman he has known for sometime. She is a widow with two young boys and they hope to marry. A psychologist’s report on the offender shows nothing of particular significance. He expressed remorse for what has happened, he also did so in his evidence before me and I think this is genuine.

40 Though there are some relatively minor criminal convictions on the offender’s record, he has no history of violence. He was not the instigator of the violence that occurred that night. He responded excessively to a terrifying situation, in which he believed he and his family were threatened with serious violence. He was defending his home and family. He panicked and over-reacted. But I consider that his moral culpability was relatively slight. Nevertheless, a person died and two others were seriously injured, as a result of his admitted over-reaction. I am satisfied that the offender is not a violent man and that the offences were a complete aberration brought on by extreme emotional pressure, created by the victims amongst others.

41 Victim impact statements have been tendered on behalf of Ms Natasha Pestano, the deceased’s 21-year-old daughter, Mr Jason Pestano, his 30-year-old son, who was present at the scene and actively participated in the disgraceful conduct which I have described, initiated by his father, and Mr Douglas Pestano, another adult son. They all express their intense grief over the loss of their father.

42 The law does not distinguish between the worth of persons who are unlawfully killed. I do not regard the death of Mr Pestano as less serious because of his character. What is important is not his character, but his conduct. He was engaged in a violent and criminal enterprise that made a violent response almost inevitable. To ignore the seriousness of this provocative conduct would be gravely unjust.

43 I am satisfied that it is most unlikely that the offender will commit offences of this kind again. He has spent almost two years in maximum security, nine months of that in protection. Remand prisoners do not have available to them many of the programs provided to sentenced prisoners, this must be taken into account.

44 Having regard to the fact that this his first term of imprisonment, and the accumulation of sentences, special circumstances justify a longer than usual parole period, to help with the offender’s rehabilitation and re-integration into the community on his release. It is necessary also that I take into account almost four months of pre-bail custody. The infliction of serious wounds on two other victims requires some accumulation of sentences.

45 In respect of the offence involving Ronald Howell the offender is sentenced to a fixed term of eighteen months imprisonment, to commence on 8 December 2004 and expire on 7 May 2006. In respect of the offence involving Frank Cocker, the offender is sentenced to a fixed term of eighteen months imprisonment, to commence on 3 February 2005 and expire on 2 August 2006. For the offence of manslaughter the offender is sentenced to a non parole period of two years, to commence on 3 August 2004 (back-dating an additional four months to take account of pre bail custody) and expire on 2 August 2006 with a balance term of two years and six months, commencing on 3 August 2006 and expiring on 2 February 2009.

46 The consequence is, that the offender is eligible for parole from today. In the circumstances I do not think, however, he can be released until the Parole Board makes an order in that respect.

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