New South Wales Supreme Court CITATION : Regina v A S Moffatt [No 4] [1999] NSWSC 362 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 070092/96 HEARING DATE(S) : 03/03/99, 04/04/99, 05/03/99, 08/03/99, 15/03/99, 18/03/99, 26/03/99 JUDGMENT DATE : 23 April 1999 PARTIES : Regina Anthony Stuart Moffatt JUDGMENT OF : Kirby J COUNSEL : P K Lynch (Crown) A M Martin (Accused) SOLICITORS : Crown Solicitor (Crown) Joan Baptie, Solicitors (Accused) CATCHWORDS : CRIMINAL LAW; Practice & Procedure; Murder; Intoxication; Provocation; Diminished responsibility; Sentence ACTS CITED : Crimes Act 1900 Sentencing Act 1989 DECISION : See para 22 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J Friday 23 April 1999 070092/96 - REGINA v Anthony Stuart MOFFATT [No 4] SENTENCE 1 HIS HONOUR: This matter proceeded before me as a Judge sitting alone. On 26 March 1999 I gave judgment and found that the prisoner had murdered Richard James Fyfe. That judgment sets out the objective facts from which the criminality of Mr Moffatt's actions must be judged. 2 Mr Moffatt, then a man aged 36 years, shared a flat at Cronulla with Mr Ronald Godfrey. Mr Godfrey was considerably older. Both were alcoholics. 3 On Anzac Day, 25 April 1996, the prisoner and Mr Godfrey began drinking early. Mr Moffatt was in the habit of drinking a mixture of methylated spirits and wine, and did so on this day. 4 Others drifted into the flat, and the drinking continued. Mr William Williams arrived with yet more alcohol. He too was an alcoholic. In the early evening the deceased, Richard James Fyfe, arrived. He was someone who had been to the flat before. Mr Moffatt had met him once. Mr Fyfe was also an alcoholic. He was a man aged 43 years. He was already considerably affected by alcohol when he arrived. 5 In the course of the evening an argument developed between the prisoner and Mr Fyfe. Mr Fyfe pestered Mr Moffatt for a knife. The prisoner used to own the knife, and had shown it to Mr Fyfe at their first meeting. However, he had since disposed of it. He conveyed that fact to Mr Fyfe. Mr Fyfe, presumably because he was drunk, would not accept that Mr Moffatt no longer had the knife. He continued to ask to be shown it. The prisoner reacted angrily. Using a hammer, he destroyed a mirror and certain glass ornaments in the flat. 6 Mr Fyfe then insulted Mr Moffatt. He called him a "dog". The prisoner immediately attacked Mr Fyfe, placing his hands around his throat. The two men were separated by Messrs Godfrey and Williams. They resumed drinking. Approximately fifteen minutes later Mr Fyfe again insulted the prisoner. He called him a "mutt", which, of course, is another word for "dog". 7 Mr Moffatt, in his own words, "snapped". Using the flat part of the hammer, he repeatedly struck Mr Fyfe on the chest, breaking several of his ribs. He then threw the hammer away. He began strangling Mr Fyfe. He continued to do so for some minutes until he heard a crack. The post mortem examination of the deceased revealed a fracture to the thyroid cartilage. 8 At the same time as the prisoner heard the crack in the neck, Mr Fyfe's eyes rolled back, and he appeared lifeless. The prisoner checked for a pulse in his neck. There was none. He held a mirror in front of his mouth. There was no breath. 9 I determined that the prisoner had intended to inflict grievous bodily harm upon Mr Fyfe when he attacked him shortly before he died. I was left in some doubt, however, as to whether the prisoner intended to kill Mr Fyfe. There were aspects of his conduct which suggested that, notwithstanding admissions made to police, he had not set out to kill the deceased. Rather, he simply wished to silence Mr Fyfe, he having been repeatedly insulted by him. 10 The actions of Mr Moffatt were without premeditation. They were, in fact, although not in law, provoked by the deceased. His actions were substantially the consequence of alcohol consumption, he being an alcoholic. His blood alcohol level at the time of the offence was estimated to be between 0.277 and 0.375 grams/100 mls. Mr Moffatt had a number of convictions for offences which were alcohol related. However, there was nothing in his past which suggested a propensity for violence on anything like the level that occurred on this evening. 11 The deceased, it must be said, suffered from a number of conditions which made it highly likely that he would meet an early death. He suffered from serious heart disease, and alcoholism. His blood alcohol level at the time of death was 0.48 grams/100 mls. The offence is the acceleration of his death. Mr Fyfe was very much an "egg-shell skull". 12 Murder is, of course, the most serious offence in the criminal calender. It is, therefore, deserving of significant punishment. Nonetheless, in terms of objective criminality, the offence by the prisoner, in my view, is significantly less grave than many that come before these Courts, as the Crown acknowledged. That fact must be reflected in the sentence imposed. 13 Turning to the subjective circumstances of the prisoner. Mr Moffatt did not give evidence either during the trial, or on sentence. He has, however, seen a number of doctors, and described to them his background. He was born in Belfast on 18 January 1960. He is now aged thirty-nine years. He has not had an easy life. He was sexually abused by a relative as a very young child before he left Ireland. His aberrant behaviour may, in part, be a consequence of that abuse. 14 Mr Moffatt came to Australia at the age of nine years. His family initially settled in Perth. However, during the next four years, the family slowly worked its way across the continent, ultimately settling in Sydney. As a result, Mr Moffatt's schooling was disrupted. He had difficulty at school, and was frequently absent. He eventually left school at the age of fourteen years. 15 Mr Moffatt then worked as a labourer in various capacities. He joined the army at the age of nineteen years, but was discharged eighteen months later for being drunk, and absent without leave. 16 At the age of twenty-two years he was involved in a car accident. He suffered a back injury. Alcohol was already a problem, and became an even greater problem. He began living on the streets. He was admitted to a number of institutions for detoxification and rehabilitation. He only briefly resumed work at the age of twenty-nine years. He secured a job in a tyre factory, but lasted only two months. Again drinking was the problem. He was ultimately given a disability pension. He was thirty-six years old at the time of the offence. 17 Looking at Mr Moffatt's criminal record, a custodial sentence has never been imposed. He was placed on a recognisance in respect of certain alcohol related offences in December 1983. He entered a further recognisance in 1988 for assault occasioning actual bodily harm. He was also fined for malicious injury. 18 In the same year, 1987, he was charged with aggravated assault, resist arrest and malicious injury. The matters were heard ex parte in April 1988. Fines were imposed in respect of each offence. It rather appears that Mr Moffatt was then arrested, and spent time in gaol because he was unable to pay those fines. When interviewed by the police shortly after the murder, Mr Moffatt referred to having spent forty-two days at Long Bay (A. 108). There are various other minor offences on his record. He was ordered to undertake sixty hours of community service on 23 March 1989, having been found guilty of malicious injury. 19 Mr Moffatt, of course, pleaded not guilty to the various offences on the indictment before me. However, I accept that he did so on legal advice, there being an issue as to the cause of Richard Fyfe's death. Although ultimately I resolved that issue against the prisoner, it was entirely appropriate that the issue should have been explored. There was significant evidence of other possible causes which caused Dr Lawrence, the doctor who performed the post mortem examination, to give careful consideration to the cause of death at the time the death certificate was issued. Given Mr Moffatt's inebriation at the time the offence took place, there was also an issue of intention, and the possibility of confabulation. These matters, as I say, were ultimately resolved against the prisoner. 20 It is said on the prisoner's behalf that he has shown contrition. He told Dr Wong that he was deeply remorseful for what had occurred. I accept that the prisoner has experienced genuine remorse. His actions immediately after the incident were a demonstration of that remorse. It is apparent from the statements he made soon after the murder to his neighbours, and later the police, that he was horrified by what had occurred. 21 Turning to s 5(2) of the Sentencing Act 1989, I believe that there are, in the prisoner's case, special circumstances. It is clear from his record, and from the circumstances of the murder, that he has a substantial problem with alcohol. It is highly desirable that he be subjected to a longer period of supervision that might ordinarily be the case, in order to ensure that he does not again take up the life of an alcoholic. 22 Anthony Stuart Moffatt, I sentence you to penal servitude for a period of 11 years made up of a minimum term of 6 years commencing on the date on which you went into custody, 26 April 1996, and expiring on 25 April 2002; and to an additional term of 5 years, commencing on 26 April 2002 and expiring on 25 April 2007. The earliest date upon which you will be eligible for release to parole will be 25 April 2002. 23 I recommend that, when the prisoner is admitted to parole, he be provided with rehabilitation or treatment which addresses his difficulties with alcohol. ********** Last Modified: 04/23/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.