Regina v Nardoni [1999] NSWSC 1097

New South Wales Supreme Court CITATION : Regina v Nardoni [1999] NSWSC 1097 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70102/97 HEARING DATE(S) : 20 September 1999 5 November 1999 JUDGMENT DATE : 12 November 1999

PARTIES : Regina v Barry Russell Nardoni JUDGMENT OF : Michael Grove J at 1

COUNSEL : P. Lynch (Crown) M. Farrer (Accused) SOLICITORS : S.E. O'Connor (Crown) Leo & Morrison (Accused) CATCHWORDS : Criminal Law And Procedure - Manslaughter - Sentence DECISION : Sentence Imposed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 12 November 1999

REGINA BARRY RUSSELL NARDONI

SENTENCE

1 HIS HONOUR : Barry Russell Nardoni pleaded guilty before me on indictment for manslaughter of Kylie Anne Neil. 2 The prisoner and the victim lived together in a de facto relationship in a tiny bedsitter flat in what appears to be have been a large complex of such dwellings made available by the Housing Commission in Northcliff Drive Warrawong. As at 25 July 1997 the prisoner was aged twenty six and the victim aged eighteen. They had commenced their association in Victoria but had led a somewhat nomadic existence which it is not necessary now to detail but it appears that they had at least formed an intention to stay for a time in the Wollongong area. They had some discussions with an acquaintance who was in occupation of a two bedroom flat about whether or not an exchange of their accommodation might not be able to be arranged. 3 I am satisfied that the relationship between the parties was substantially affected by the circumstance that neither of them followed any occupation and their time was largely spent imbibing intoxicating liquor and partaking of marijuana. The evidence leads me to suspect that other illicit substances may have been ingested from time to time but I am not satisfied of this to the requisite standard. 4 The violence of the prisoner towards Kylie Neil was evidenced by his appearance at Port Kembla Local Court on 13 May 1997 where he was fined for an offence of malicious injury and, significantly, placed on a recognizance to be of good behaviour for two years and to accept the supervision of the Parole and Probation Service for an assault upon Kylie Neil. That recognizance was current at the time of the killing. It is convenient to note at this point that the prisoner has a prior record including convictions in Victoria, Queensland and South Australia. I do not regard his prior record as trivial but many of the offences are of nuisance type and none approach the seriousness of the conviction on the current indictment. 5 On Friday morning 25 July 1997 the prisoner and the victim acquired a slab of beer and a bottle of Cougar brand whiskey and began to drink it. They were joined towards midday by an acquaintance Norman Rausch who was despatched to the supermarket later to obtain a further ten bottles of beer after the original supplies of liquor had been completely consumed. By 5 pm in the afternoon or thereabouts I am satisfied that the parties could be described as being in an alcoholic fog. In that haze the prisoner became inspired to attack his de facto partner. I am unable to determine exactly what provoked his rage, if anything, but it is clear that he was exercising no control over his passion and violently attacking Kylie Neil. Another acquaintance Rachael Marrello was in a nearby flat and, as did others, she heard the sounds of the violent encounter. She heard Kylie Neil saying "I am trying to talk to you and you just keep bashing me". She heard screaming and she came to investigate. She saw the prisoner striking the victim on many occasions once causing her to be forced into a screen door. 6 Rachael Marrello sought to rescue Kylie Neil. The two women quit the premises. They were followed by Norman Rausch but Miss Marrello remonstrated with him and guided her to a women's refuge. Miss Marrello urged her to leave the prisoner but Miss Neil said that she stayed with him because he was faithful to her and did not "play up like other guys" with whom she had kept company. Miss Marrello's comment was that nobody else would put up with the prisoner. 7 Whilst at the refuge Miss Neil complained of having a headache but understandably although tragically this was thought not to be of any great significance by the welfare worker who was present as there was the history of the attack and it was obvious that Miss Neil had consumed a considerable quantity of intoxicating liquor. She told people at the refuge that she had remembered a place where she could have some accommodation for the night. There was none available at the refuge. Police were called. They escorted her to a police vehicle and took her to premises in Matthews Crescent, Port Kembla. On the way she told police that she had simply had a blue with her boyfriend. It was apparent to police that she had been partaking of intoxicating liquor but they did not assess her as being abnormal in the sense of displaying signs of injury or medical distress. 8 The address at Port Kembla was in fact the flat belonging to Norman Rausch with whom she and the prisoner had been drinking earlier in the day. After Miss Neil had been dropped at the premises she encountered a woman Linda Sheppheard who was in possession of a key to the flat given to her by Norman Rausch. She was inside the flat with a friend Jason Collier. Miss Sheppheard answered a knock on the door and saw Kylie Neil whom she gauged to be intoxicated. She identified herself as Barry's girlfriend - that is to say the girlfriend of the prisoner - and asked whether she could come in and wait for Norm (Rausch). She was told to wait outside because Miss Sheppheard and Mr Collier were going down the road. By this time it was dark. They left but returned half an hour later and found Kylie Neil still waiting in the foyer crying. In response to enquiry she said that Barry had belted her. She complained of a headache. Miss Sheppheard invited her to lie on Mr Rausch's bed until he came home and then she (Miss Sheppheard) lay down on a mattress on the floor and went to sleep. Jason Collier was on a lounge near a window. 9 Some time in the middle of the night Norman Rausch came home. Miss Neil was moved from the bed but complained of cold and of an aching head. She camped on the floor where she was covered with some clothing for warmth. 10 On the Saturday morning Miss Sheppheard awoke and perceived that Kylie Neil was deceased. She and Jason Collier separately left and advised Norman Rausch to ring an ambulance and the police. This he did. 11 Post mortem examination showed that there had been a head injury to the right side of the face between the eye and the ear which had caused a depressed skull fracture as well as distortion of the brain and tonsillar herniation. The pathologist certified head injury as a direct cause of death, the effects of cannabis and alcohol as other significant conditions contributing to the death. 12 As I sought to emphasize at the sentencing hearing, I have accepted the plea of guilty by the prisoner as indicating an acknowledgment that an unlawful and dangerous act by him in battering the victim caused her death and, in his presence, that acknowledgment was affirmed by counsel. It is also important to bear in mind that the count in the indictment does not involve any allegation of intent by the prisoner to cause really serious injury. 13 It is not possible to identify any particular blow struck by the prisoner which caused the death. The prisoner accepts however that it was his attack upon her which was causative of the death and although his memory of the events is fogged both by extravagant consumption of intoxicating liquor and later partaking in smoking of cannabis he has through his counsel explicitly accepted that I should look to the evidence of witnesses as to what occurred rather than to his own recollection (possibly reconstructed) of milder aggression such as he has described to police and other enquirers. 14 An extract from a letter by the prisoner handed up at the sentencing proceedings includes these statements: "I understand completely the trouble I am in. When I was told of Kylie's death I was very shocked. For the past two years, I have pleaded my innocence. I know I was very drunk that day, and cannot remember exactly what happened. But when I heard or seen in my police brief that a man who lived under the house where she was found told of hearing two sets of four to five thumps on his ceiling, right at the time of death and when they said Kylie's g-string underwear were on back to front, I just freaked out and thought the worst. And not to mention the different stories of the people that were in the house at the time. But now I have had time to think, I really have no idea if Kylie could have struck her head on anything. My mind has been very clouded since that day and because I have admitted to assault I must stand up and take responsibility for my action." 15 I have made some obvious corrections to the text of the letter. The prisoner goes on to express his confidence in divine omniscience and justice. 16 Some matters referred to in that text merit elaboration. The reference to thumps on the ceiling is to a statement by a Mr Goodyear who was resident in the flat immediately below Mr Rausch that is to say in the flat within which during the night the deceased, Linda Sheppheard and Jason Collier were present later joined by Norman Rausch himself. There is nothing in the material which would enable determination of what exactly Mr Goodyear was hearing. Certainly Kylie Neil was at some stage moved from the bed onto the floor but there was a separation in the group of noises and indeed they were so loud that Mr Goodyear inserted ear plugs in order to enable himself to sleep. Jason Collier is now said to be also deceased. A further statement from Linda Sheppheard reveals that about a week after the death she encountered Jason Collier who revealed to her that he had slept with the victim on the night that she died. By his statement he obviously meant that he had had sexual intercourse. Post mortem examination had detected semen on vaginal smears and these had been subjected to DNA tests. These tests affirmatively demonstrated that the source could not have been the prisoner. 17 It may be said that, given the prisoner's plea of guilty, these circumstances are not now directly relevant but in my view they add very powerful enhancement to the value of the demonstration of contrition manifest in the plea of guilty. I do not think it necessary for me to spell out why I come to that view. As I have indicated, I regard this as a case where a finding of remorse can be made and I make it with considerably more confidence than could be the case if I were left to rely upon subjective matters alone. 18 That leads me to turn to some subjective matters concerning the prisoner. He had the disadvantage of early life in an unstable family situation although within the community this is regrettably not unusual. When the family split however, he for a time joined his father who went to England whilst his sisters remained with his mother. In the course of time he came back to Australia but by the age of fourteen he was virtually living as an itinerant moving from the streets into accommodation at charitable hostels and the like. He descended into alcoholism and very substantial use of marijuana. He has claimed that any use of other drugs was no more than experimental. 19 By the time of the death of Kylie Neil the prisoner's life was at a low ebb and his existence had a pointlessness about it. Kylie Neil had joined him at that level and whilst I do not regard that as a matter of culpability I believe he should recognize and does recognize his responsibility to an extent for that situation. 20 I have seen the prisoner several times now in Court. It is difficult to coordinate his appearance with the descriptions of him as at mid 1997. I have read the report of the psychologist Ms. Barrier and I note her assessments of his personality traits. I am impressed with his assertions of intent towards rehabilitation made to the probation and parole officer and I find some support for that impression in the conduct of the prisoner during a period of bail during last year and until earlier this year. He has re-established contact with his mother who has remarried and settled in Queensland. Whilst on bail he resided with her and he obtained employment in a bakery manufacturing pies and seems to have diligently applied himself to that employment. It is his expressed hope upon release to return to Queensland and his mother has indicated her preparedness to have him. 21 I consider the prisoner's prospects of successful rehabilitation to be reasonable, indeed reasonably good but given his long unpromising background, it is in my view desirable that he have an extended period of close supervision whilst on parole. For that reason I hold that there are special circumstances justifying the extension of the additional term component of sentence beyond that which would emerge from direct application of the formula in s5(2) of the Sentencing Act. 22 Despite these good impressions, I must not overlook that life has been extinguished by the act of the prisoner and it is an aggravating circumstance that his offence was committed whilst on a recognizance which specifically related to attack by him upon her. Whilst I do not regard his prior record as gross, it disentitles him to leniency which might otherwise be made available if it did not exist. 23 The prisoner was in custody from arrest on 30 July 1997 until released on bail on 4 February 1998. He was returned to custody on 18 April 1999 and has remained there. Until today he has on my calculation been in custody for one year and thirty two days. 24 The total sentence imposed upon the prisoner must reflect the objective seriousness of his offence but the orders made should be such as to encourage the prisoner to continue his seemingly remarkable efforts towards rehabilitation. I mention in that regard that I take into account in his favour the content of the letter from Reverend Richard Howarth. I should also record that I have read the content of the victim impact statement but in accordance with published authority I do not utilize its content to aggravate my assessment of appropriate penalty. 25 I have come to the conclusion that in all the circumstances an appropriate sentence is six years penal servitude. This I will reduce to five years to take into account previous custody. I am conscious that that period of pre-sentence custody exceeds one year by thirty two days. The assessment of six years represents a considerable reduction from what I would regard as objectively appropriate for the taking of life whilst in a drunken rage. My conclusion, taking all matters into account, is that I should impose a sentence of five years from today. 26 Barry Russell Nardoni, for the manslaughter of Kylie Neil you are sentenced to penal servitude for five years to consist of a minimum term of two years commencing today 12 November 1999 and to expire on 11 November 2001 together with an additional term of three years to commence on 12 November 2001. 27 You will be eligible for parole on 12 November 2001.