Regina v Nicholas Hampton

[2004] NSWSC 1215

CITATION:	Regina v Nicholas Hampton [2004] NSWSC 1215
HEARING DATE(S):	13/12/04
JUDGMENT DATE:	17 December 2004
JUDGMENT OF:	Bell J at 1
DECISION:	For the offence of entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation the offender is sentenced to a term of two years' and eight months' imprisonment to date from from 2 December 2002. That sentence will expire on 1 August 2005. In light of the sentence next imposed, no non-parole period is specified; For the manslaughter of Steven Klor the offender is sentenced to a term of six years' and four months' imprisonment. That sentence will commence on 2 December 2003 and will expire on 1 April 2010. Specify a non-parole period of three years and four months commencing on 2 December 2003. The first date on which the offender will be eligible for release on parole is 1 April 2007.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Previtera (1997) 94 A Crim R 76
PARTIES :	Regina Nicholas Hampton (Offender)
FILE NUMBER(S):	SC 2003/161
COUNSEL:	G. Tabuteau (Crown) J. Stratton SC (Offender)
SOLICITORS:	S. Kavanagh SE O'Connor (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 17 December 2004

2003/161 Regina v Nicholas Hampton

JUDGMENT

1 BELL J: The offender pleaded guilty to an indictment that charged him in count one with the manslaughter of Steven Klor at Blackett on 1 November 2002 and in count two with entering a dwelling house with intent to commit a serious indictable offence, namely, to assault David Crowden and thereby to occasion to him actual bodily harm in circumstances of aggravation, namely that the offender was in the company of other persons, to wit AH and an unknown male.

2 The offender had been arraigned on 25 October 2004 before Davidson AJ on an indictment that charged him with the murder of Steven Klor and with the offence of entering a dwelling with intent to commit a serious indictable offence. He entered pleas of not guilty to each of the counts. A jury was empanelled and the offender stood trial. The jury were discharged without verdict and thereafter the offender was re-arraigned on the present indictment to which he entered pleas of guilty to each count. The offender had not previously indicated to the Crown that he was willing to plead guilty the manslaughter of the deceased.

3 The facts upon which I am to sentence the offender are those set out in the agreed statement of facts, Exhibit “A”. I propose to set the terms of that statement out in full:

“ Count 1 manslaughter by an unlawful and dangerous act.
On Friday 1st November 2002, at about 5:00 pm the accused, Nicholas Hampton, along with AH and a third unidentified male, went to the front door of [premises in] Popondetta Road, Blackett. These premises were a town housing complex, and were occupied by the deceased, Steven Klor. Klor was well known to police as supplier of prohibited drugs, in particular, methylamphetamine, and a receiver of stolen property.
Neighbours heard ‘open the fuckin door’ yelled by one of the males and saw the front door being pushed open. One of these males was also heard to say, ‘don’t shut the door in my face.’ The three males including the accused then entered the victim’s premises.
Neighbours describe hearing the sound of a king hit and of seeing a commotion inside the front door. Banging sounds were then heard from inside the premises for some minutes. After a short period of silence, the three men then left the premises.
The victim was discovered, unconscious, about 7:00 pm and was taken to Mount Druitt Hospital by ambulance, where he died at 8:19 pm. The principal cause of death was a large fracture to the skull. Police recovered an electric shoe polisher at the scene which was found to contain the victim’s blood on the motor casing. It is believed that this was the weapon used to inflict the fatal injuries to the victim’s head. The Crown is not in a position to indicate which of the three males inflicted the fatal blow to the victim’s head.
Count 2 enter dwelling with intent to commit a serious indictable offence (assault occasioning actual bodily harm) in circumstances of aggravation (in company).
About 8:30 pm, the three males including the accused went to [premises at] Oreades Way, Bidwill. One of them was carrying a large green sports bag containing watches, cigarette lighters and assorted other items which had been taken from the deceased’s premises. At [the Oreades Way premises], DC, the former boyfriend of the occupant, JD, was present along with two young male visitors, BK and CJ. The three males entered the premises and engaged the two young male visitors in conversation, apparently in relation to the contents of the bag.
According to one of the young male visitors, two of the three men who entered the premises appeared to be affected by alcohol.
AH then told the two young male visitors to leave the premises, which they did. The three males also left, after which DC closed the front door. Some moments later there was a knock on the door and when DC answered the door and opened it, he was violently punched about the head by AH and one of the other two males, one of which was the accused. During the attack, AH grabbed a bread knife and held it to C’s throat. C managed to release the knife and flick it away. AH then called upon the male with the bag to ‘get the knife out of the bag’, however C managed to escape into the street, where he was seen by police and taken to Mount Druitt Hospital by ambulance. During the attack C received two lacerations around the eyes which required sutures.
A search warrant was executed the following day at the address of the accused where property was recovered which was identified as having come from Steven Klor’s home. Also recovered during the search were two items of clothing which were found to contain DNA from both DC and the accused on them.
The accused was arrested on 2 December 2002 and declined to be interviewed by police in relation to the two incidents.”

4 I received a Victim Impact Statement pursuant to s 28 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). John Walsh, the deceased’s younger brother, read the statement out in court. The deceased, Steven Klor, had assumed the role of head of the family following their father’s early death. Theirs is a close knit family and they have been devastated by his loss. Added to this has been their distress at the way Steven has been portrayed in the legal proceedings that followed his unlawful killing. He was a much loved father, brother and partner. He was a widely read man who played a positive role in the lives of his family and friends. He suffered from depression and it was at a time when he was in this state that his partner, Cheryl, says he had a fall from grace. Despite his struggle with depression the family describe him as a caring man who was always willing to help others. The Court extends its sympathy to the family in their loss.

5 I record my respectful agreement with the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88 concerning the approach to be taken to Victim Impact Statements in cases of unlawful homicide.

6 The deceased died a violent death in what should have been the sanctity of his home. In the Victim Impact Statement the family speak of the murder of the deceased. It is important to emphasise that this offender is not being sentenced for the crime of murder, but for the lesser offence of manslaughter. The Crown does not contend that he struck the deceased with the shoe polisher or at all. His culpability for the offence of manslaughter arises out of his admission by his plea of guilty that he was a party to a joint criminal enterprise with two other males persons involving an understanding that they would go to the deceased’s home and obtain drugs from him whether he agreed to supply them or not. The offender contemplated that in the course of obtaining drugs in this way the deceased might be assaulted in circumstances that exposed him to an appreciable risk of serious (as distinct from trivial) injury.

7 Counsel submitted that this case fell “well towards the lower end of the range of seriousness, in that there is no evidence of premeditation or of an intent to kill”. The circumstances that give rise to the offence of manslaughter are notoriously various as is the range of culpability. I do not assess this offence as at the low end of the range of seriousness. As I have noted, the deceased was in the security of his own home and the offence was one that was committed in company.

8 The offence of manslaughter carries a maximum penalty of twenty-five years’ imprisonment. In sentencing for manslaughter it is necessary to reflect that the offence involves the felonious taking of human life.

9 The offence charged in count two is one contrary to s 111(2) of the Crimes Act 1900. It carries a maximum penalty of imprisonment for fourteen years. The facts reveal this to be a serious instance of such an offence.

10 Counsel submitted that, since the two offences were committed within a short space of time, it would be appropriate to impose concurrent sentences. The offences involved discrete acts of criminality and I do not consider it appropriate to deal with them in that way. The aggregate sentence must take into account considerations of totality. In my view this can be addressed by an order for partial accumulation.

11 The offender is an Aboriginal man who was aged eighteen years at the date of this offence. He has a criminal record that includes the commission as a juvenile of offences of assault occasioning actual bodily harm. His only entries as an adult, apart from a minor public order offence, are two convictions for larceny for which he was fined.

12 The offender gave evidence. He is now aged twenty years. He grew up with his family in Department of Housing accommodation. There was frequent conflict with the Department and as a result the family had many moves. The offender attended a variety of primary schools. He attended high school in Maitland, leaving in Year 9. His father died when he was twelve years old. Not long after this the offender started drinking alcohol and getting into trouble. He spent periods of time in juvenile detention centres. On the day of these offences the offender had consumed a substantial quantity of whisky and wine.

13 The offender said that he was sorry for the death of the deceased and that, “I didn’t mean for none of this to happen at the time. I was on drugs. I was intoxicated and yeah, none of this was meant to be” (T 6.16-17).

14 Tendered in evidence on the offender’s behalf were reports prepared by Dr Westmore, a psychiatrist, and John Machlin, a psychologist. Mr Machlin stated that the offender told him the deceased was “a good bloke” who had not deserved what had happened to him. He told Mr Machlin that he felt bad about it and that he would, “give anything to bring the man back”. I did not consider the offender to be completely frank in the evidence he gave concerning the incident. The reasons for that may involve loyalty to members of his family, as Mr Machlin surmises. Notwithstanding my reservations about his evidence, I accept that he is sorry for the death of the deceased.

15 Mr Machlin’s report details the offender’s background consistently with the evidence that the offender gave. At an early age the offender commenced a relationship, which has now ended. He has a daughter aged three years from this relationship. The child’s mother is in prison and the child is in the care of the maternal grandmother. The offender does not know her whereabouts.

16 The offender performed with an Aboriginal dance group that toured schools for a period of four to six months. He also worked briefly delivering crates of Coca Cola.

17 Intelligence testing reveals that the offender’s I.Q. is in the well-below average range, although not meeting the criteria for developmental disability.

18 The offender reported to Dr Westmore that he had consumed amphetamines, alcohol, Serapax and Rivotril on the day of the offence. He told both Dr Westmore and Mr Machlin that he has come to appreciate that he has a drug problem and to see the link between this and his offending. Dr Westmore reported:

“Mr Hampton is stating that he recognises he has had a significant problem with drugs and since being placed on methadone several months ago he reports not using any other illicit drugs. He told me he wanted to stay on methadone long-term and he indicated he understood there was a relationship between his drug problems and his current predicament.”

19 Dr Westmore considers the circumstance that he has not taken illicit drugs during the period of his custody to be a positive prognostic sign. I accept that is so.

20 Dr Westmore observes that the offender will require considerable assistance on his release. He notes the offender’s limited education, restricted work history and relative lack of family support (given that both his brothers are in custody) in this respect. Dr Westmore considers the ideal management of the offender would involve his supervision in the community for an extended period.

21 In light of the contents of the reports to which I have referred, and having regard to the circumstance that this is the first sentence to which the offender will be subject as an adult, I consider that there are special circumstances that make it appropriate to depart from the statutory proportion between the non-parole period and the sentence.

22 It is necessary for me to have regard to the factors to which s 21A of the Sentencing Procedure Act addresses attention.

23 The plea of guilty was entered shortly after the Crown indicated that a plea to the charge of manslaughter would be accepted. I propose to discount the sentence on the manslaughter count by twenty percent. I will discount the sentence on the second count by ten percent.

24 I take into account as a mitigating factor that the offender has shown remorse for the offence of manslaughter. The offender’s record of criminal convictions does not aggravate his offence. He is a young Aboriginal man who comes from a background of considerable social disadvantage. He has intellectual limitations and his disrupted upbringing left him with little education. It is difficult to assess the likelihood of re-offending or to meaningfully assess his prospects of rehabilitation. However, he is a young offender and it is appropriate that the Court place some emphasis on rehabilitation in the sentence.

ORDERS
Nicholas Hampton for the offence of entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation I sentence you to a term of two years’ and eight months’ imprisonment to date from 2 December 2002. That sentence will expire on 1 August 2005. In light of the sentence that I next impose I decline to specify a non-parole period.

For the manslaughter of Steven Klor I sentence you to a term of six years’ and four months’ imprisonment. That sentence will commence on 2 December 2003 and will expire on 1 April 2010. In respect of this sentence I specify a non-parole period of three years and four months commencing on 2 December 2003. The first date on which you will be eligible for release on parole is 1 April 2007.

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Last Modified: 07/16/2007