Regina v Grenenger [1999] NSWSC 380

New South Wales Supreme Court CITATION : Regina v Grenenger [1999] NSWSC 380 CURRENT JURISDICTION : FILE NUMBER(S) : 70050/97 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 23 April 1999

PARTIES : Regina Nicholas Raymond Grenenger JUDGMENT OF : Sully J

COUNSEL : D. Howard - Crown T. O'Donnell - Prisoner SOLICITORS : CATCHWORDS : DECISION : Penal servitude for 3 years comprising a minimum term of 18 months and an additional term of 18 months. The minimum term will commence on 17 March 1999 and expire on 16 September 2000. Order pursuant to s.24(1) of the Sentencing Act 1989 - prisoner to be released to parole at the expiration of the minimum term.

13 SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

23 April, 1999

70050/97 - REGINA v Nicholas Raymond GRENENGER

ON SENTENCE

1 HIS HONOUR: On 3 March 1999 Nicholas Raymond Grenenger, ["the prisoner"], was presented in this Court for trial upon an indictment charging him with having murdered, on or about 5 November 1996 at Bargo, one Robert Lance Wirepo, ["the deceased"]. The prisoner pleaded not guilty, and he was put, accordingly, upon his trial by jury. The trial continued until 19 March 1999, upon which day the jury returned a verdict finding the prisoner not guilty of murder but guilty of manslaughter. 2 The prisoner was remanded in custody to 26 March for sentence. On that day I heard submissions on sentence; and thereafter I further remanded the prisoner in custody for sentence on a date to be fixed. 3 The Crown case at trial was, essentially, a simple one. It was that at about 7 pm on 5 November 1996 a number of patrons were drinking in the bar of Bicey's Hotel at Bargo. Among them were the prisoner and the deceased. The prisoner was in the company of two men named Davies and Pascoe; and the deceased was in the company of two men named Baird and Cockburn. A fight broke out between Mr. Davies and Mr. Baird, and it developed very quickly into an ugly incident involving all six of the men previously mentioned. In the course of that expanded fight, the prisoner picked up a bar stool and struck with it a number of blows to the deceased. One of those blows caused part of one of the metal legs of the bar stool to puncture the right side of the deceased's head at a point 10 cm above, and 2 cm in front of, the deceased's right ear canal; and to penetrate the deceased's skull in a track moving from front to back, from right to left, and downwards. 4 The severity of this wound can be judged from the following detailed description of the wound as given by Dr. Hulewicz, the pathologist who conducted the post mortem examination of the deceased: "There was a track extending from the hole in the scalp through the right side of the skull through the dura. The dura is a tough membrane which surrounds the brain, through the right side of the brain. Also through the left side of the brain and then through the dura on the other side of the brain and the track ended in the left petrous temporal bone where there was an excavated circular defect 1.5 cms in diameter and 0.3 cms in depth. The petrous temporal bone is a bar of bone which forms part of the base of the skull. So the object penetrating the head went straight through the brain, then struck that particular bone producing a crater defect on the surface of the bone." 5 The action which caused this wound was so strong that, when the metal stool leg was withdrawn from the deceased's skull, a plastic lug attached to the foot of the metal leg became detached and remained lodged in the deceased's skull until it was removed at the post-mortem examination. 6 At trial there was some attempt made to put into precise language a description of the degree of force with which the fatal blow must have been struck in order to cause such a penetrating injury. Such evidence as was given in that respect did not take the point, in my opinion, beyond the conclusion which I think unaided common sense would suggest, namely that the blow must have been a deliberate, and a substantially forceful, blow. 7 The case of the prisoner at trial was, essentially, one of self-defence. The prisoner contended that, during the course of the general brawling, the deceased had come towards him clutching a pool cue, and behaving in such a fashion that the prisoner apprehended personal injury unless he defended himself. The prisoner contended that the bar stool happened, by unfortunate chance, to be the nearest apparent defensive weapon, and that he had picked it up and struck in quick succession three pre-emptive blows. 8 The charge to the jury left in the hands of the jurors a document suggesting a connected sequence of questions for their consideration. The questions were: "Question 1: Has the Crown proved beyond reasonable doubt that the victim, Robert Lance Wirepo, died on or about 5 November 1996? If so, then: Question 2: Has the Crown proved beyond reasonable doubt that the cause of his death was a penetrating head injury: If so, then: Question 3: Has the Crown proved beyond reasonable doubt that the fatal injury was caused by the act of the accused? If so, then: Question 4: Has the Crown proved beyond reasonable doubt that the accused, at the time he inflicted the fatal injury, was not acing in self-defence? If you answer this question: no; then the Crown has not proved beyond reasonable doubt that the killing was unlawful, whether as murder or as manslaughter; and the verdict should be, simply, not guilty. If you answer this question: yes, then the Crown has proved beyond reasonable doubt that the killing was unlawful; and you must then decide whether the killing was a murder or a manslaughter. This depends upon the answer to a further question: Question 5: Has the Crown proved beyond reasonable doubt that the accused, when, not acting in self-defence, he inflicted the fatal injury, had then the intent to inflict upon the victim grievous bodily harm, that is to say, really serious bodily injury? If you answer that question: yes; then the killing is a murder, and the verdict should be guilty of murder. If you answer that question: no, then the killing is a manslaughter; and the verdict should be not guilty of murder but guilty of manslaughter." 9 The questions went to the jury after prior notice to, and with the consent of, both Crown and defence counsel. There is no reason to think that the jury did not address the questions thus put to them. I consider that it is fairly to be inferred from the jury's verdict that the jury answered the first four questions in the affirmative, and the fifth question in the negative. 10 In my opinion, the evidence at trial supports amply an affirmative answer to the fourth question. I do not believe that a reasonable view of that evidence could sustain a contention that the striking of such a blow as I have earlier described bore such a reasonable proportionality to any demonstrated behaviour of the deceased as would be required by law in order to substantiate the case of self-defence that was put forward at trial. 11 I am of the further opinion that an answer given in the negative to the fifth question was, on the available evidence, very favourable to the prisoner. I do not imply in any way an opinion that the jury was not entitled on that evidence so to answer that question. I say no more than that my own view of the evidence is that such an answer gives the prisoner the most liberal and generous benefit of the doubt. I accept, of course, that I must deal now with the prisoner in a way that respects the verdict of the jury; and that respects also what I think is an irresistible inference as to way in which the jury answered the fifth question left to them. 12 As will appear presently, I am of the opinion that the prisoner's subjective and personal circumstances are very strong. That makes it important to keep carefully in mind the following observations of the Court of Criminal Appeal in Regina v Dodd (1991) 57 A Crim R 349 at 354: "…………. (M)aking due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, ………………………., has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: …………………… . Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: …………………. ." 13 In my opinion, there is no gainsaying the objective severity of the prisoner's offence. The simple proposition that human life is sacred underpins fundamentally the body of principles, of standards, and of values that defines the conception of our society as to what is meant by civilisation. In such a context, any unlawful taking of a human life must be, axiomatically, a grave offence against social harmony and public order. This is, in my opinion, even more emphatically the case when, as in the present matter, an unlawful killing results from a public affray in a place of lawful public resort such as licensed hotel premises. 14 As I have earlier said, I think that the prisoner's subjective and personal characteristics, as now relevant, are very strong. I summarise them as follows: 1. Age The prisoner was born on 9 September 1974. He was aged, therefore , 22 years and about 2 months at the date of the killing; and he is now aged 24 years and almost 8 months. 2. Criminal Antecedents The prisoner has one recorded matter on his record, namely a mid-range drink-driving offence committed on New Year's Eve 1994. He was fined $380 and disqualified from driving for 12 months. At trial, it was agreed that this offence should not deprive the prisoner of the benefit of a good character direction to the jury, and the jury was so directed. I take now the same approach. 3. General Personal Characteristics and Circumstances The prisoner presented at trial as a mild-mannered and quietly-spoken young man. This accords with evidence given at trial by several witnesses. Witnesses who knew the prisoner as a patron of the particular hotel spoke of him as having been at all times polite, quiet in his general address, not a drinker to excess, and no trouble to those in charge of the orderly conduct of the business of the hotel. His immediate past employer spoke of him in very complimentary terms. I am satisfied that the prisoner's attack upon the deceased was strikingly out of character. I do not have any apprehension that he will so offend again; or that he will in the future be a violent threat to public order. 4. Contrition I accept the evidence of the prisoner that he is properly remorseful for the death of the deceased. The prisoner gave all proper cooperation to the investigating police; but always upon the basis, to which he adhered clearly and consistently from the time he was first questioned, that he had acted only in self-defence. The prisoner is not entitled to the particular leniency that is conventionally extended in response to a plea of guilty made because of genuine contrition; but he is entitled not to be punished more severely by reason only of having exercised his undoubted right to put the Crown to proof of its case of murder, the only charge actually preferred in the indictment. 5. The Consequences of Imprisonment The prisoner appeared off bail for his trial. He went into custody on 17 March last at the completion of the charge to the jury. Any custodial sentence now imposed will be the prisoner's first substantial experience of full-time imprisonment. His particular case would require some sensitive handling by the correctional authorities for reasons known to those authorities and calling for no further comment from me. 15 In bringing the foregoing objective and subjective factors into a fair balance, I have kept in mind the three following statements of principle: - "………….. (T)hough not so serious a crime as murder, ……….. (manslaughter)……………is a serious crime the punishment for which varies with the circumstances of each case, but may be anything from imprisonment for life to a merely nominal penalty. There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty." See per Street CJ speaking for the Court of Criminal Appeal in R v Withers (1925) 25 SR (NSW) 382 at 394-5. It is to be noted that the maximum penalty for manslaughter is no longer imprisonment for life, but is, rather, penal servitude for 25 years. - "…………. (counsel) …………..surveyed the custodial sentences imposed in a range of cumulative provocation manslaughter cases over the last decade. That kind of analysis can be helpful, but the circumstances involving manslaughter being so various it would be erroneous to place too much store on any sentencing survey, let alone to look for a median or average outcome." See Reg v Morabito (1992) 62 A Crim R 82 per Wood J at 86. - "We should make it clear that we do not suggest that it could never be proper to order that a sentence for the crime of manslaughter be served by way of periodic detention. There may well be cases of manslaughter where that is an appropriate order. It enables the offender to remain in employment and also minimises disruption to family life. We do not disregard the fact that even part-time custody is a substantial punishment." Reg v Dodd (1991) 57 A Crim R 349 per curiam at 354. 16 Notwithstanding what was thus said in Dodd, I cannot think that in the present case any sentence that did not require at least some period of full-time custody would be appropriate; and I think that it would do the prisoner no worthwhile service for the Court to proceed otherwise. 17 Much more difficult is the framing of a sentence of full-time custody that not only will give proper vindication to the rule of law, but also will avoid, so far as is possible for the Court to do, any risk of ruining the prisoner's young life by exposing him to lengthy contact with hardened criminals. 18 I have not been able to find any reported or unreported decision that seems to me to provide a really relevant and useful guide in the present case; but there are two decisions that give, I believe, some very broad indicative assistance. 19 The first of them is the matter of Regina v Azar (1991) 56 A Crim R 414. The facts of that matter are not completely on all fours with the facts of the present matter; but there are some significant similarities. Mr. Azar was convicted of having stabbed another man during the course of a brawl involving two groups of young persons. At his trial, he asserted, among other things, that he had acted in self-defence. The jury rejected that contention. Gleeson CJ, speaking for the Court of Criminal Appeal, summarised as follows the findings that had been made by the primary Judge as to Mr. Azar's subjective features: "His Honour made strong subjective findings in favour of the appellant, who was a man of good character with no relevant criminal history. It was accepted that he was unlikely to offend again. He expressed contrition which his Honour accepted as genuine. His Honour described the appellant as 'a decent man whose past entitles him to receive the maximum discount in mitigation of sentence'. " 20 The primary Judge sentenced Mr. Azar to penal servitude for 6 years apportioned between a minimum term of 4-1/2 years and an additional term of 1-1/2 years. That sentence took account of the fact that the appellant had spent 6 months in pre-sentence custody. The Court of Criminal Appeal held that such sentence was within the range of an appropriate sentencing discretion. 21 It is important to note that, if there were significant similarities between Mr. Azar's case and that of the present prisoner, there were also significant dissimilarities. The most important of them was that Mr. Azar, having participated in the brawl in question, left the brawl while it was still in progress, went to a nearby house from which he obtained the knife used by him in the subsequent killing of his victim; and returned deliberately and thus armed, to the affray, which he re-joined, and during the course of which thereafter he inflicted the fatal stab wounds upon his victim. There is no comparable feature in the objective facts of the present prisoner's case. That seems to me to entail that the sentence imposed in the matter of Azar is more than is justly required in the case of the present prisoner. I re-emphasise that I have not treated the decision in Azar in any other way than as a very broadly indicative precedent. 22 The second decision which I have found of some assistance is that of Regina v Barry Boris Sofokleous; unreported; Court of Criminal Appeal; 13 December 1993. 23 Mr. Sofokleous, also, was found guilty of having stabbed another during the course of a violent affray. In his case, he had participated in the affray at a time when he had upon his person, and secreted in one of his boots, the knife with which he subsequently inflicted fatal wounds upon his victim. The fact that he had gone to the location in question thus armed, was considered both by the primary Judge and by the Court of Criminal Appeal as an aggravating objective factor; and nothing comparable is to be found in the objective facts of the present prisoner's case. In addition, it was demonstrated that Mr. Sofokleous had told the investigating police deliberate lies as to his involvement in the fatal affray; and this, also, is not parallelled by any objective feature of the present prisoner's case. 24 In the case of Mr. Sofolkleous, the Court of Criminal Appeal upheld a sentence of penal servitude of 4 years divided between a minimum term of 3 years and an additional term of 1 year. As with the case of Azar, so with the case of Sofokleous: I have used it only as a very broadly indicative precedent. 25 I have come to the conclusion that a total sentence of penal servitude for 3 years should be imposed. I have no hesitation in finding "special circumstances" in the sense contemplated by section 5 of the Sentencing Act 1989, they being the matters earlier canvassed in connection with the prisoner's relevant subjective circumstances. I think that it would be just, having regard to those "special circumstances", to apportion the aggregate sentence equally between minimum and additional terms. 26 Nicholas Raymond Grenenger, you are formally convicted of the crime of manslaughter of which you were found guilty by the verdict of the jury. You are sentenced upon that conviction to penal servitude for 3 years, comprising a minimum term of 18 months and an additional term of 18 months. The minimum term will commence on 17 March 1999 and will expire on 16 September 2000. The additional term will commence on 17 September 2000. 27 I order, pursuant to section 24(1) of the Sentencing Act 1989, that you be released to parole at the expiration of the minimum term. 28 I make the following recommendations to the Commissioner of Corrective Services, and direct the Registrar of the Court to bring them to the Commissioner's urgent attention: 1. That the prisoner's classification be processed as a matter of urgency. 2. That urgent consideration be given to the detention of the prisoner at the Berrima Correctional Institution. It is noted that Mr. R. Gow of the Department of Corrective Services has been acquainted with the particular circumstances that the Court accepts as justifying this recommendation. 3. That in the event that placement at Berrima is not available, urgent consideration be given to the immediate admission of the prisoner to the Young Offenders Programme.