R v Howard [1999] NSWSC 1228

New South Wales Supreme Court CITATION : R v Howard [1999] NSWSC 1228 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70007/98 HEARING DATE(S) : 6-10 December, 14 December 1999 JUDGMENT DATE : 17 December 1999

PARTIES : Regina v Stuart John Howard JUDGMENT OF : Bell J at 1

COUNSEL : Mr P Lynch (Crown) Mr S Wetmore (Prisoner) SOLICITORS : S E O'Connor (Crown) Baird & Associates (Prisoner) CATCHWORDS : CRIMINAL LAW & PROCEDURE - Sentencing - Manslaughter - Provocation ACTS CITED : Criminal Procedure Act 1986 Sentencing Act 1989 R v Previtera (1997) A Crim R 76 CASES CITED : R v Oinonen [1999] NSW CCA 310 R v Macdonald (unreported, NSW CCA, 12 December 1995) DECISION : See para 23

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

FRIDAY 17 DECEMBER 1999

070007/98 - REGINA v STUART JOHN HOWARD

SENTENCE

1 HER HONOUR: On 6 December 1999 Stuart John Howard was arraigned before me on an indictment charging him that on 15 November 1997 at Greenacre he did murder Shane Usher. He entered a plea of not guilty and a jury was duly empanelled. On 10 December 1999 the jury returned a verdict of guilty of manslaughter. 2 The prisoner was aged thirty-one at the date of the offence. He had been friendly with the deceased, who was also aged in his early thirties, for about two and a half years. Both were living with their respective de facto partners in a block of units at 23 Marlene Crescent, Greenacre. 3 Around June 1997 there was a deterioration in the relationship between the two men. The deceased borrowed a guitar belonging to the prisoner's partner, Colleen Lyons. Some time later the prisoner came to learn that the guitar had been pawned by the deceased. Further, the deceased had borrowed some money from Ms Lyons, the bulk of which had not been repaid. 4 The deceased's younger brother, Jamie McCissock, was then on friendly terms with the prisoner. Again, around mid-1997 Jamie had a falling out with his older brother and moved into the prisoner's flat. It appears that the prisoner considered that the deceased had treated Jamie and his partner, Crystal, shabbily. A combination of these matters led the prisoner to develop a growing resentment towards the deceased. 5 On the evening of Saturday, 15 November 1997, the prisoner telephoned Jamie McCissock. He had not seen Jamie for the past fortnight and appears to have been somewhat annoyed that Jamie had resolved his differences with the deceased. During the course of this telephone call the prisoner made reference to his dispute with the deceased. During the course of the trial there was some controversy concerning the content of this call. Jamie and Crystal gave an account that the prisoner had made some unspecified threat towards the deceased by reference to a gun. The prisoner denied making any threats or referring to a gun. He agreed in the course of his evidence that when the deceased called to his home later that night he, the deceased, had asked, "What's this I hear about a gun?" I accept that some reference was made to a gun in the course of the call. It does not appear that the threat was taken seriously by Jamie McCissock or by the deceased. However, it prompted the two of them to call to the prisoner's home later that evening. 6 At about 10.30pm Jamie McCissock and the deceased knocked at the prisoner's front door. The prisoner called out asking who was at the door. McCissock replied, "It's Jamie". The prisoner opened the door and the deceased forced his way into the premises knocking the prisoner to the floor. At that point the deceased was in an aggressive mood. He threatened the prisoner saying words to the effect, "If you don't stop threatening us we are not the ones going to be hurt, it is you". Jason Post, an old friend of the prisoner, was also present. The deceased turned to Post and said, "Sit the fuck down or I"ll kill you too". Shortly after this things appeared to calm down somewhat. The deceased walked over to Post and shook him by the hand speaking to him in quite friendly terms. The prisoner had regained his feet by this stage. There appears to have been some brief discussion concerning the debt owed by the deceased to the prisoner. The prisoner walked to his kitchen, picked up a carving knife and returned to the lounge area of the flat. He was observed by both Jamie McCissock and Jason Post to run towards the deceased and to stab him. 7 The deceased suffered two stab wounds, one to the left chest which penetrated to a depth of 14.5 centimetres and severed the aorta. This was the fatal wound. A second wound was sustained in the region of the front left shoulder. This penetrated to a depth of 13 centimetres. Neither of the witnesses saw more than one apparently deliberate stab wound. The deceased collapsed shortly after the infliction of the wound. 8 The prisoner ran from the unit. He appears to have been in a state of considerable distress. He ran some distance to a hotel. He made a reverse charge telephone call to his father who lived in a suburb not far away. He caught a taxi to the father's home. By this time police were waiting at the family home and the prisoner was arrested. At the time of his arrest he said: "Where's my Dad? I'm sorry Dad, please forgive me. I didn't mean to do anything. I didn't mean to do it. You don't know the pressure I've been under. I've been under pressure. If they understood the pressure I've been under lately. It's not my fault. I didn't mean to stab him. I love Shane, I would never mean to hurt him. Please have mercy Dad. Have mercy. Have mercy Dad. I wish I could have swapped with you Dad and gone to war and been killed. I wish I could replay my life". 9 The prisoner was interviewed in the early hours of the following morning. Generally, in that interview he gave an account that he had been under a great deal of pressure in the weeks leading up to the killing. He could not explain the stabbing beyond asserting he had lost control in consequence of these pressures. He also spoke of being in fear of the deceased. In this regard he commented on the deceased's appearance. The deceased had a mohawk style of haircut with his head closely shaved at the sides. He was wearing army camouflage pants. It appears that the prisoner had not seen the deceased sporting this hair style and it had caused some added alarm when the deceased burst into the unit that night. 10 The prisoner denied having any intention to kill or to do grievous bodily harm. Indeed, although he accepted that he had been responsible for the infliction of both stab wounds, it was his account that he did not remember the stabbing. 11 Manslaughter (as an alternative to murder) was left both upon the basis of an unlawful and dangerous act, in the event that the jury had a doubt as to the proof of the intent for murder, and provocation. Mr Wetmore, who appears for the prisoner, accepts that the proper basis for me to approach sentence is that the prisoner's culpability for murder was reduced to manslaughter by provocation. To my mind that is clearly so. 12 I should note that both in his interview with the police and in evidence the prisoner described an incident in August 1997 in which the deceased had called him out of his flat and threatened him. This arose in the context of some concern on the deceased's part that the prisoner had made a slighting remark about the deceased's de facto partner. 13 The deceased was the father of Tynan and Melanie. At the time of his tragic death his partner, Michelle Dawes, was seven months pregnant. She subsequently gave birth to a son, Anthony. A Victim Impact Statement signed by Ms Dawes and dated 14 December 1999 was tendered at the sentence hearing. Ms Dawes speaks movingly of the terrible loss that she and members of the deceased's family have all suffered. The Court extends its sympathy to them in their loss. I have regard to the observations of the former Chief Judge at Common Law concerning the receipt of Victim Impact Statements pursuant to s 23C(3) of the Criminal Procedure Act 1986 in R v Previtera (1997) 94 A Crim R 76 at 85. I adopt that approach in the instant case. 14 The prisoner gave evidence at his trial. He raised his good character which was not the subject of challenge. He has one prior conviction for an offence committed when he was a child. I put that to one side for present purposes. He comes from a supportive and loving family. His father gave evidence at the trial. 15 The prisoner left school at the end of Year 11. He obtained an apprenticeship studying mechanics. He then went on to obtain his trade certificate. However, working as a mechanic was not to his liking. He moved into employment in the spare parts industry. At the time of his arrest he was working for Purnell Motors Ltd. 16 Generally, in the years since leaving school, he has been gainfully employed. He lived at home with his parents until he was aged about thirty. He then moved out of home in order to commence living with his de facto partner, Ms Lyons, in the Marlene Crescent unit. He appears to have maintained regular contact with his parents both of whom are elderly and in poor health. 17 Mr Birkinshaw, who has been a neighbour of the Howard family for some forty years, provided a reference for the prisoner. He has known the prisoner throughout his lifetime. He attests to the generally good reputation the prisoner enjoys within the community as a hard working, courteous and pleasant individual. The prisoner is described by Mr Birkinshaw as having demonstrated a great sense of civic responsibility. The Vlahadamis family also provided a reference attesting to the prisoner's non-violent disposition. The family has lived as neighbours of the Howard family for some twenty-one years. Mr Burgess, in a reference dated 4 December 1999, speaks of the close knit nature of the Howard family. He has known the family since 1978. The prisoner, who is one of three children, is described as having grown up in a family with a strong sense of traditional family and social values. Mr Burgess comments favourably on the prisoner's close bond with his two year old son, Brendan. 18 At the time of his commission of the offence, the prisoner's partner, Ms Lyons, was pregnant. The child, Brendan, was born following the prisoner's arrest. The prisoner was held in custody from the date of his arrest until his release on bail on 24 December of that year. It was a condition of his bail that he reside with his parents. The relationship with Ms Lyons has come to an end in consequence of the commission of the subject offence. However, as I have already noted, the prisoner maintains a close level of contact with his son. 19 The Crown Prosecutor informed the Court that prior to the first occasion when this matter was set down for trial, Mr Greenhill SC, who then appeared for the prisoner, had indicated on his client's behalf a willingness to plead guilty to manslaughter. The Crown determined not to accept that offer and the prisoner was, accordingly, indicted for murder. I take into account the timely indication of a willingness to plead guilty to an offence for which the prisoner was convicted. He is entitled to some benefit both for the contrition which I accept the plea evidences and on account of the utilitarian considerations which favour some discount in sentence upon a plea. In this regard I take into account the observations of the court in R v Oinonen [1999] NSW CCA 310. 20 I consider the prisoner is a person with good prospects of rehabilitation. He has employment skills and a background of family support. I do not consider that there are special circumstances in this case justifying a departure from the proportion as between the minimum term and additional term provided in s 5(2) of the Sentencing Act 1989. 21 I consider the prisoner has shown remorse for his offence. The most telling evidence of this appears in passages in the recorded interview together with his apparent distress during that interview. There are a number of subjective features which favour the extension of some leniency to the prisoner in the circumstances of this case. I have referred to those in the course of these reasons. Taking those matters into account, the sentence I impose must nonetheless reflect the seriousness of the unlawful taking of a human life: R v Macdonald (unreported, NSW CCA, 12 December 1995). 22 The prisoner was taken into custody on 16 November 1997. He was released on bail on 24 December 1997. He has thus spent thirty-eight days in custody in relation to this offence. I intend to structure the sentence in order to give the prisoner full credit for this period of custody. 23 I consider an appropriate minimum term to be one of five years penal servitude. I propose to reduce that term by thirty-eight days in order to reflect the pre-sentence custody. Accordingly, the sentence I impose will commence on 10 December 1999 and expire on 2 November 2004. I specify an additional term of one year and six months to commence on 3 November 2004 and to expire on 2 May 2006. **********