R v ROBSON [1999] NSWSC 855

New South Wales Supreme Court CITATION : R v ROBSON [1999] NSWSC 855 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70054/98 HEARING DATE(S) : 2 July 1999, 20 August 1999 JUDGMENT DATE : 26 August 1999

PARTIES : Regina v Brian John ROBSON JUDGMENT OF : Barr J at 1

COUNSEL : Crown: T R Hoyle SC Prisoner: A Webb SOLICITORS : Crown: S E O'Connor Prisoner: S Calomeris CATCHWORDS : Criminal Law - sentencing - manslaughter by unlawful and dangerous act. DECISION : See paragraph 43.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Thursday, 26 August 1999

70054/98 - REGINA v Brian John ROBSON

JUDGMENT 1 HIS HONOUR: On 2 July 1999 the prisoner, Brian John Robson, pleaded guilty to the manslaughter in October 1997 of Ronald Charles Brotherton. He had been charged with murder and the Crown accepted his plea in discharge of the indictment. 2 During 1997 the prisoner, his wife and their children lived in a house in Moruya. The deceased was out of a job and addicted to alcohol and illegal drugs. He prevailed upon the prisoner and his wife, Mrs Thirza Robson, to let him live at their house. During the few months that he lived there, the deceased used heroin, and that fact became known to the principal of the school attended by the children and to other local authorities. The question was officially raised whether the children were being properly looked after. At this, the prisoner and Mrs Robson required the deceased to leave the house, and he did so. 3 The prisoner and Mrs Robson were not well off. She was the owner of a car which, though it was not of great value, was important to the family. The prisoner had worked on it from time to time. Not long after he left the household, the deceased returned to the house without permission, stole the keys to the car, took the car and drove it until it left the road and sustained substantial damage. He appears to have been under the influence of alcohol at the time. On the following morning he went to the prisoner and Mrs Robson and told them what he had done. The prisoner told him to leave. Some time later, the deceased visited them again and said that he would pay for the damage. They did not take him seriously because over the months that he had lived with them he had never paid board or repaid their generous hospitality in any way, notwithstanding promises to do so. 4 The prisoner told Mrs Robson that someone should teach the deceased a lesson. 5 The deceased, who had a history of committing criminal offences, went to live with a couple called Martin Strahan and Leanne Holmes. Whilst he lived there, he involved himself in theft and they in turn asked him to leave. By the time of the events that followed, the deceased was living in a house owned or occupied by a man called Terry Shipley in a rural district about ten kilometres from the Robsons' house. 6 One day, according to the evidence of Mrs Robson, which I find reliable in this respect, she and the prisoner were at their house with Mr Strahan and Miss Holmes. The prisoner and Mr Strahan left in a car and Mrs Robson and Miss Holmes remained at the house. 7 It is common ground that the prisoner found the deceased at Mr Shipley's house and savagely punched him a number of times. The deceased died. It is not necessary for present purposes to come to any conclusion about what part, if any, was played by Mr Strahan. 8 The prisoner wrapped the body in tarpaulin, put it into the boot of a car, took it to a remote place in the bush and dumped it. The tarpaulin was still with the body when it was found several months later. 9 Soon after he returned home, the prisoner told Mrs Robson that he had punched the deceased and accidentally killed him. As a result of what the prisoner or Mr Strahan told her, she believed that the prisoner and Mr Strahan had been involved in the death and that Miss Holmes' car had been used to take the body and dump it in bushland. The tarpaulin which she and Miss Holmes had put into the boot of Miss Holmes' car had been used for the purpose. 10 After the prisoner told her what had happened to the deceased, Mrs Robson must have been in some agony of mind and she kept the matter to herself. Eventually, however, she found herself unable any longer to do so and informed a social worker and was referred to the police. That is how her statement came to be made. 11 The prisoner was arrested and interviewed by the police. I shall refer later on to what he told them. 12 The prisoner gave evidence, and the central part of his account was that he had punched the deceased a number of times, not intending to do him grievous bodily harm. His counsel submits that his act was unlawful and dangerous. The nature of the offence to which the prisoner has pleaded guilty requires an acceptance of that evidence and that submission. I propose to sentence the prisoner accordingly, even though I do not accept his account as complete and truthful in every respect. 13 The prisoner said in evidence before me that during the four or five hours before he went to Mr Shipley's house he had drunk the contents of a bottle of whisky. I accept that this was so. 14 The prisoner said that he went to the house intending only to try to get money to repair his car and had no intention of assaulting the deceased. I think that the prisoner may well have wanted to take whatever chance he had of collecting money, but I think that he had a good idea that he would be the one to teach the deceased a lesson. I think that he intended to assault the deceased. 15 The resentment of the prisoner about the way the deceased had used him, his wife and family is understandable, but his reaction was entirely unjustified. 16 Dealing with the circumstances of the assault itself, the prisoner told the Court that an argument arose between the two men when the deceased rejected the assertion that the car had been written off. According to the prisoner, the deceased was under the influence of alcohol and behaved aggressively towards him, threatening him and throwing the first punch. I accept that the deceased probably behaved in some such manner. 17 The prisoner told the Court that Mr Strahan telephoned Leanne Holmes and asked her to bring a tarpaulin from the prisoner's house. That was one of a number of versions which might explain how he came by the tarpaulin. 18 It differs from the statement of facts tendered by consent at the commencement of the evidence. According to that statement, the prisoner telephoned Mrs Robson, who asked Miss Holmes to take a tarpaulin to the property. Miss Holmes did so. 19 The prisoner's evidence accords with the statement of Mrs Robson, who said that Miss Holmes asked for a tarpaulin, without explaining why. Mrs Robson found one and helped Miss Holmes put it into the boot of her car. 20 The final version comes from what the prisoner told the police, namely that he had obtained his own tarpaulin from Mr Shipley's house, where he had left it three weeks earlier. 21 I am satisfied that the prisoner deliberately told the police a false story, intending to protect Mr Strahan and Miss Holmes. I think that either the prisoner or Mr Strahan telephoned Miss Holmes from Mr Shipley's house to ask for the tarpaulin to be brought. I am unable to say which man made the request. 22 The prisoner said in evidence that he and Mr Strahan wrapped the body in the tarpaulin, put it in the boot of Miss Holmes' car and took it into the bush. That was all Mr Strahan's idea and it was Mr Strahan who threw the body in the bush. The prisoner stayed in the car. I cannot say whether this was an accurate summary, but I am satisfied that the prisoner played a part in disposing of the body. 23 According to the autopsy report prepared by Dr C Lawrence, the deceased died from blunt force injuries to the head and chest. The injuries to the face comprised a fracture of the hard palate, a linear fracture of the right frontal bone and a separation of the facial and skull bones. Dr Lawrence also noted linear rib fractures in ribs three, four, five and six on the right and in ribs five to eleven inclusive on the left. 24 Commenting upon Dr Lawrence's opinion, Dr Michael A Zillman, in his report dated 12 May 1999, stated that the portion of the skull which was fractured was the parietal, not the frontal, bone, but I think that nothing turns on that. Dr Zillman thought that a roll-over motor vehicle accident might have caused any or all of the bony injuries and that an accelerated fall after death could have caused the rib fractures. There is no evidence of any accelerated fall after death. I doubt whether the deceased received any of his injuries in the motor vehicle accident, chiefly because he twice went to the house of the prisoner and Mrs Robson, and no mention was made of any difficulty he was then apparently having. So many fractured ribs would have given him obvious pain and lack of mobility. I conclude that all the bony injuries were inflicted by the prisoner at the time the men fought in Mr Shipley's house. 25 Those injuries were very severe and would ordinarily imply an intention to do grievous bodily harm. However, the prisoner is not to be taken to have had so great an intent. Perhaps the explanation is that, as he told the police, he just "lost it", and struck harder than he realised under the influence of the alcohol he had drunk. 26 Mr Strahan and Miss Holmes are to be tried in this Court, charged respectively with the murder of the deceased and with being an accessory after the fact of the murder. The prisoner was asked whether he would give evidence for the Crown at their trial, and he said that he would. It is not clear from the facts that have been put before the Court on this plea of guilty precisely how the Crown proposes to make out its case against Mr Strahan and Miss Holmes, but whatever that case may be, I am led to the conclusion that the evidence of the prisoner would be of limited worth. 27 In the account he gave the police the prisoner said that Mr Strahan and Miss Holmes were in the vicinity of Mr Shipley's house after the death of the deceased and that he, not Miss Holmes, obtained the tarpaulin in which the deceased's body was wrapped for disposal. He said that he did not know whether Mr Strahan and Miss Holmes saw him carrying the body to the car and that he did it all himself. He told them that he would be back soon, drove the car to the bush and dumped the body off a bush track. Mr Strahan and Miss Holmes were not present when he did so and as far as he knew they had no idea that he had killed the deceased. 28 I am satisfied that this was a false story intended to protect Mr Strahan and Miss Holmes. 29 In evidence before me, the prisoner said that Mr Strahan entered the house after or, perhaps, just before he stopped hitting the deceased. Given his obvious desire to protect Mr Strahan I am left unsure whether he is telling the truth about this matter. 30 I received the impression that before he was cross-examined, the prisoner had never considered whether he would give evidence at the forthcoming trial. He has made no undertaking to do so. I think that any evidence he might give might well be regarded by the jury as unreliable, especially in view of the inconsistent accounts he has given. I shall allow only a very modest reduction of his sentence on this account. 31 The prisoner is now thirty-one years old. He has a moderate criminal history. I will ignore the several offences for which he was dealt with in the Children's Court and the Local Court earlier than ten years ago. Since 1990 he has committed a number of driving offences, which I will ignore. 32 In 1995 he was dealt with for an assault on a woman in a caravan park. He and another man went to the caravan of a woman at a caravan park at Moruya. The prisoner sprayed the occupant with a mixture of petrol and diesel fuel which he kept in a plastic spray bottle. The mixture wet the woman's singlet. The other man took the bottle from the prisoner, pointed it again at the woman, produced a cigarette lighter and lit it, then sprayed the contents of the bottle through the flame. The woman's hair was singed and an ear was slightly burnt. 33 The prisoner was sentenced to imprisonment for a fixed term of four months and his colleague to eight months. It was submitted on his behalf before me that the part he played in the attack was really a joke and that his criminality was not to be seen as incorporating what his colleague did with the lighter. No findings of fact were tendered from the Local Court. 34 In view of the sentence imposed, I cannot accept that submission. The sentencing magistrate must have accepted that the prisoner was substantially responsible for all that happened to the woman, otherwise there would have been a far greater difference between the two sentences. 35 A pre-sentence report was made to this Court by an officer of the Probation and Parole Service, Mr Bajda, and he gave evidence. It was pointed out by Mr Bajda that the prisoner was adopted as an infant and that his childhood development was disrupted at age ten years when his father died. After that he began to display disruptive and uncooperative behaviour. He was often teased by his peers because he was an adopted child. He had difficulty at school and was often absent. He left without qualifications when he was fifteen. He completed a pre-apprenticeship course and subsequently found work in the timber and manufacturing industry. He was live-in caretaker at Moruya Jockey Club for two years. At the date of the report he had been unemployed for three years. Oral evidence was given also of the prisoner's childhood difficulties and their effect upon him. 36 However, whilst such matters will often weigh heavily in the sentencing of a youth or a young man, they can be given less weight in the determination of the sentence of a thirty-one year old man who has had opportunities to overcome the difficulties he faced as a child and as a teenager. 37 The prisoner pleaded guilty to manslaughter as soon as or soon after the Crown indicated that it was prepared to accept such a plea. He will have credit for that. 38 The prisoner has a minor record for drug offences. More importantly, since the events of October 1997 the prisoner has become addicted to heroin. He has attempted to overcome that addiction and is attending a methadone clinic. There appear to be good prospects that he will rid himself of his addiction. The clinic reported that on 4 August 1999 the prisoner declined to provide a urine sample, but I accept the explanation that he has given. 39 The prisoner and Mrs Robson have a large family. He has three children by a previous relationship. They live with their mother but have been visiting him every second weekend. Mrs Robson has three children by a previous relationship and has custody of two of them. The prisoner and Mrs Robson have two further children of their own, and they live with them. The prisoner's mother gave evidence, and I accept that her support and the support of Mrs Robson is strong. 40 I am satisfied that the prisoner profoundly regrets what he has done and, notwithstanding my reservations about the accuracy of his evidence, I think that his prospects of rehabilitation are good. 41 I think that the need for the prisoner to rid himself of his heroin addiction and to complete his rehabilitation and bear the responsibilities that he will have towards his family once again upon his release call for the imposition of an additional term which is greater than one-third of the minimum term of the sentence I intend to impose. 42 Although they lacked frequent contact with the deceased because of his movements and because he spent periods of time in prison, his sister and brother, Ms Mariea Whitby and Mr Malcolm Brotherton, loved him. Victim impact statements have been put before the Court which say something of the effect the death of the deceased has had upon them. Of course, the effect of the death of the deceased on his family cannot be taken into account in fixing the sentence to be imposed on the prisoner, but it is appropriate for the Court to extend its sympathy to the family, and it does so. 43 The prisoner is sentenced to penal servitude for a period of five years, comprising a minimum term of three years commencing on 20 August 1999 and expiring on 19 August 2002 and an additional term of two years. The prisoner will be eligible for release on parole on 19 August 2002. **********