R v Risteski [1999] NSWSC 1248

New South Wales Supreme Court CITATION : R v Risteski [1999] NSWSC 1248 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70073/98 HEARING DATE(S) : 29/11/99 & 2/12/99 JUDGMENT DATE : 13 December 1999

PARTIES : Regina Steve Risteski (prisoner) JUDGMENT OF : Dunford J

COUNSEL : WG Dawe QC (Crown) C Dane QC / B Wilkinson (prisoner) SOLICITORS : Director of Public Prosecutions (Crown) Brendan Wilkinson (prisoner) CATCHWORDS : CRIMINAL LAW - sentencing - manslaughter - unlawful and dangerous act - punch thrown in brawl. ACTS CITED : Sentencing Act 1989 Prisoners (Interstate) Transfer Act 1982 CASES CITED : R v MacDonald (unreported - CCA - 12 December 1995) R v Blacklidge (unreported - CCA - 12 December 1995) DECISION : See para 29.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION DUNFORD J 13 DECEMBER 1999 70073/98 - R v Steve RISTESKI SENTENCE 1 HIS HONOUR: On being arraigned for the murder of Hayden Lee Wederell, the prisoner pleaded not guilty of murder but guilty of manslaughter, which the Crown accepted in full satisfaction of the indictment, the basis of the plea being death by unlawful and dangerous act without any intent to kill or inflict grievous bodily harm. 2 Between 2 am and 3 am on Sunday 12 October 1997 the prisoner, with a group of friends from the Pascoe Vale Soccer Club in Victoria, went to the Sydney Harbour Casino to watch a televised soccer World Cup qualifying match between England and Italy. The matter concluded a little after 6.30 am and England qualified to continue to the next round. 3 A large group of people who had been watching the match began to cheer and chant. This group included English tourists among whom was the victim. Some of the prisoner's friends supported England and some supported Italy. There were some verbal exchanges between some of the prisoner's group and some of the English tourists. A glass was thrown from the area occupied by the English tourists into the area occupied by the prisoner and his friends. This then led to a confrontation between the prisoner's group and some of the English tourists. Blows were exchanged. 4 The victim became engaged in a verbal exchange with a friend of the prisoner and while he was looking at and concentrating on that person, the prisoner mounted a small stage on which the victim was standing and struck him with a very heavy punch to the side of his neck near his left ear. The victim then appeared to stagger. He walked a short distance and collapsed unconscious on the floor. As the victim was falling to the floor, the prisoner threw a punch at him. The prisoner then kicked at the head area of the victim while he was on the floor in an unconscious state. There was no physical evidence that either the second punch or the kicks connected with the victim. 5 The prisoner then punched two other persons to the head area and kicked one of those persons in the head area when that person was on the floor. 6 Casino staff subdued the prisoner and held him until the arrival of police. The incident was recorded on the Casino security video and clearly shows the prisoner carrying out the assaults upon the victim and other people as described. 7 The prisoner was conveyed to the City Central Detectives' Office where he later consented to take part in an electronically recorded interview in which he stated he could not remember the events of earlier that morning. He was shown the video of the incidents and adopted his actions as seen on the video. He said that he had a drinking problem which he offered as an explanation for his behaviour. 8 He was then charged with maliciously inflicting grievous bodily harm and affray. 9 The victim stopped breathing whilst at the Casino and received treatment from Casino and ambulance personnel before he was transported to St Vincent's Hospital where he survived in a coma until he died on 15 October 1997. When the prisoner was informed of his death and that he would be charged with murder, he said he was very remorseful and did not intend to kill anyone. 10 It is true that the prisoner went to the Casino with his friends for the purpose of watching the telecast of the World Cup football match, and immediately before the glass was thrown, he can be seen on the video calmly minding his own business, watching the video screen and sipping his drink, but once the glass landed in the vicinity of the prisoner and his friends, all hell broke loose and an all in brawl quickly developed involving a large number of persons into which the prisoner charged with enthusiasm, and he jumped up onto a small low stage to throw a haymaker punch at the victim. 11 Not only was the blow delivered with considerable force (which can be seen on the video) but it struck the victim in the upper left sterno mastoid muscle behind the left ear which resulted in a basal subarachnoid haemorrhage leading to a loss of blood flow in the artery beyond the atlas and thus caused his death. 12 The prisoner clearly had no intention to kill or seriously injure the deceased or anyone else, but could not resist the chance to join in the fight and went out of his way to deliver the fatal blow. Although the death was not deliberate or intentional, the unlawful dangerous act, namely the assault, certainly was. 13 There is no evidence that the deceased or any of his friends threw the glass that led to the brawl, and even if he or one of them had, it would be no excuse for the prisoner's actions. The result is that a young man in the prime of his life, aged 26 years, a visitor to this country, has had his life cut short and his family have been left without him and saddened by such loss. The prisoner must bear responsibility for what has happened which is indeed a tragedy for both the victim and the prisoner, but for the victim and his family the tragedy is permanent. 14 Although no weapon was used and only a single blow caused the death, the whole of the surrounding circumstances must be taken into account including the prisoner's attempts to further punch the deceased and his efforts of kicking at him whilst he was on the ground. 15 The prisoner was born on 16 March 1975 and he was aged 22 at the time of the offence and is now 24 years. He resides in Preston, a suburb of Melbourne, with his parents and brother. At the time of the offence he was an apprentice cabinet maker and he has since completed that apprenticeship and is in permanent employment in his trade. His employer gave evidence and spoke highly of him as an employee. His brother also is a cabinet maker employed by a different employer, although the two of them have hopes of eventually going into business on their own account. 16 In the meantime they have jointly purchased a house as an investment to provide for their futures. His mother and father are both in regular employment and I am satisfied that he comes from a close knit family and has their support. They were all present for the sentencing proceedings as were a number of his friends from the soccer club. He has played club soccer for a number of years and in the season just completed before this tragedy, was named best and fairest in the club's reserve grade. 17 He was previously before the courts in 1994, when aged 19, on charges of theft and attempted theft for which he received a community based order for twelve months without convictions being recorded, and on 14 March 1996 for driving with excess of the prescribed concentration of alcohol, 0.134 percent, for which he was fined and disqualified from holding a licence. 18 I do not regard the former as relevant for present purposes but the latter is indicative of excessive drinking, at least when driving, and is consistent with his answers in the recorded interview that he was drunk at the time and also that when he drinks he cannot remember (A. 68). 19 When asked why he acted as he did, he replied: "Too much alcohol" (A. 142), and that he had an alcohol problem (A. 163). The alcohol does not mitigate the seriousness of the offence or excuse it, although it does go some way to explaining it. 20 The prisoner was discharged at committal because the Magistrate had reservations as to whether the pathologist's evidence could establish that the cause of death was the blow thrown by the prisoner, and he was arraigned pursuant to an ex officio indictment. I am informed that although the Crown had offered to accept a plea to manslaughter, the cause of death remained a live issue and it was only on the morning of the trial, after being shown further material by the Crown, that a plea was indicated. Such plea acknowledges that the death did not result from an accident but that the act which caused the death, that is the punch, was deliberate, unlawful and dangerous: R v MacDonald (unreported - CCA - 12 December 1995). 21 Although late, the plea indicates acceptance of responsibility for the death and demonstrates remorse. It also saves the State the expense of a trial and saves the victim's mother, who has travelled from England, the ordeal and stress of sitting through detailed evidence and I give credit for the plea, although not as much as if it had been indicated earlier. 22 The prisoner was arrested on 12 October 1997 and remained in custody until allowed bail on 26 November 1997. He was returned to custody on the 2nd of this month and has therefore spent the equivalent of eight weeks in custody to date. 23 Manslaughter is always a serious crime as it involves the felonious taking of a human life: R v Blacklidge (unreported - CCA - 12 December 1995) per Gleeson CJ. The protection of human life and personal safety is a primary objective of the system of criminal justice, and the value which the community places upon human life is reflected in its expectations of that system: R v MacDonald supra. It is therefore necessary to impose a sentence that takes into account the community's denunciation of such conduct and general and personal deterrence, as well as having regard to the rehabilitation of the prisoner. Deterrence (general and personal) is relevant, notwithstanding the lack of pre meditation and intention, because it must be demonstrated to the community generally, and to the prisoner in particular, that persons must not get into brawls, lose their temper or throw punches at other people lest tragic and disastrous, though unintentional, consequences result as happened here. 24 I have read the letter from the deceased's mother and note the sadness and devastating effects on the family. However, in accordance with authority, the sentence has not been increased on account of the effects of his death on his immediate family. 25 I have been referred to a number of cases and also had regard to the statistics kept by the Judicial Commission, but bearing in mind that manslaughter covers such a wide range of criminal responsibility, such statistics can only be of very limited assistance. With these reservations in mind, I note that in the case of prisoners pleading guilty with no prior convictions, 80 percent of them received minimum terms of between 18 months and 6 years, and full terms of 3½ to 10 years. 26 In addition to the matters referred to above, I consider the prisoner's prospect of rehabilitation excellent because of his close and supporting family, his trade qualification and prospects of gainful employment on release, his involvement in competitive sport and the support of his friends. 27 Nevertheless, I consider that special circumstances exist justifying a variation from the ratio of additional to minimum term referred to in s 5(3) of the Sentencing Act 1989 because of his youth, as the fact that it is his first time in prison, and because, his parents live in Melbourne and due to limited means will be unable to travel to New South Wales to visit him regularly, his time in custody will be more onerous unless and until he is moved to Victoria under the Prisoners (Interstate) Transfer Act 1982. 28 In all the circumstances, I consider that the appropriate sentence is one of a minimum term of 3½ years with an additional term of 2 years, but I will make allowance for the period of nearly 2 months spent in custody prior to today. 29 Steve Risteski, for the manslaughter of Hayden Lee Wederell, I sentence you to penal servitude for a minimum term of 3 years and 4 months which shall date from today. I fix an additional term of 2 years. The earliest date on which you will be eligible for release on parole will be 12 April 2003. The exhibits may be returned. oOo