R v Papandrea [1999] NSWSC 978

New South Wales Supreme Court CITATION : R v Papandrea [1999] NSWSC 978 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70097/97 HEARING DATE(S) : 10 August-17 August, 24 September 1999 JUDGMENT DATE : 24 September 1999

PARTIES : Regina Andrew James Papandrea JUDGMENT OF : Studdert J

COUNSEL : M. McAdam QC (Crown) C. Bruce (Prisoner) SOLICITORS : Director of Public Prosecutions (Crown) Trenches (Prisoner) CATCHWORDS : ACTS CITED : Crimes Act Maxwell v The Queen (1995-96) 184 CLR 501 R v Cartwright (1989) 17 NSWLR 243 R v King (1998-99) 99 A Crim R 288 R v Dunn (unreported, NSWCCA, 28 October 1997) R v McEwan (unreported, Barr J, 9 July 1998) CASES CITED : R v Sherry (unreported, Levine J, 9 July 1999) R v Blacklidge (unreported, NSWCCA, 12 December 1995) R v Troja (unreported, NSWCCA, 16 July 1991) R v Maguire (unreported, NSWCCA, 30 August 1995) R v Dodd (1991) 57 A Crim R 349 R v Previtera (1998) 94 A Crim R 76 DECISION : See para 50

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Friday 24 September1999

070097/97 REGINA v ANDREW JAMES PAPANDREA SENTENCE

1 HIS HONOUR: On 19 March 1999 the prisoner, Andrew James Papandrea, pleaded not guilty before Mr Justice Barr on the presentation of an indictment charging him with having murdered Guy Piers Janjic at Binna Burra on 15 May 1997. The prisoner adhered to that plea in this Court on 10 August 1999 and his trial began before a jury. 2 However on 16 August 1999, on the morning of the fifth day of the trial, the prisoner sought to be re-arraigned and on this occasion whilst pleading not guilty to murder pleaded guilty to manslaughter. The Crown accepted that plea in satisfaction of the indictment. Following Maxwell v The Queen (1995-96) 184 CLR 501 it is settled that a trial judge cannot reject a plea such as that entered here unless it is perceived that the prosecution acted irresponsibly in accepting the plea to the lesser offence: see in particular the joint judgments of Dawson and McHugh JJ at 514 and of Gaudron and Gummow JJ at 355-356. No such perception was warranted in this case and accordingly the jury was discharged pursuant to s 399A of the Crimes Act. The prisoner was convicted of the crime of manslaughter and was remanded until 17 August 1999 for the taking of evidence and receiving submissions on sentence. Having heard the submissions of counsel on 17 August, I remanded the prisoner in custody for sentence on a date to be fixed. 3 It is necessary now to address the facts in this matter. 4 The deceased died from the effects of a shotgun wound to his chest. The weapon from which the shot was fired was a single barrelled shotgun that the prisoner had acquired some weeks prior to the shooting. The shooting occurred at the prisoner's home at Binna Burra at about 3.00 am on 15 May 1997. The prisoner had known the deceased for two to three years and he invited the deceased to stay overnight at the prisoner's home after the two men had been intermittently in each other's company at Byron Bay during the two days that preceded the shooting. The prisoner went to Byron Bay on 13 May and he met the deceased there. The two men became involved in discussions to do some work at the Epicentre at Byron Bay. On 13 May the prisoner said he had half a bottle of Jack Daniels and approximately five smokes of cannabis (T 168). He slept in his car that night. On the following day he met the deceased and they each had an injection of heroin and smoked cannabis. The prisoner said that he and the deceased had a beer and some bourbon sometime about the middle of the day (T 171). They separated for a time and the prisoner had "a few" Jack Daniels whilst he was at the RSL club during the afternoon. Then he and the deceased set off together for the prisoner's home, stopping on the way at the Bangalow Hotel and the prisoner said he had one more Jack Daniels there (T 175). 5 The evidence of the prisoner's wife satisfies me that the men arrived at the prisoner's home about 10.00 pm. Thereafter the prisoner and the deceased had some beer and they both smoked cannabis from a bong. The prisoner prepared some food which the deceased was in the process of eating when he was shot. 6 The evidence does not permit me to make a precise finding as to what the prisoner had to drink or as to the precise extent of his other drug abuse. There is no reliable evidence as to the prisoner's state of sobriety and the prisoner's wife, the ambulance officers, and the police officers who attended the home shortly after the shooting gave no evidence of making any observation as to the prisoner's state of sobriety. It is clear that the prisoner regularly abused drugs and alcohol and in these circumstances I am unable to determine with accuracy their effect upon him at the time of the shooting. Analysis of blood taken from the deceased showed the concentrations of alcohol, morphine and cannabinoids in the deceased's blood but I consider it would be unreliable to draw any parallel from this evidence in attempting to assess the impact of the pre-shooting drug abuse upon the prisoner. 7 Even if the prisoner was intoxicated, and I do not find that he was, his state was self-induced and, of course, s 428E of the Crimes Act provides that evidence of self-induced intoxication is not to be taken into account in determining whether the prisoner had the requisite mens rea for manslaughter. Mr Bruce tendered a report from Professor Neering (Exhibit A). Professor Neering was given a history of the prisoner's drug and alcohol intake prior to the shooting which does not strictly accord with the prisoner's evidence before the Court. In any event, Professor Neering found himself unable on the history he had to determine "with any degree of precision" the "overall effect" of the drugs the prisoner had taken. Nor did Professor Neering feel capable of assessing the effect of the alcohol without a complete history of the prisoner's long term resort to alcohol. I have not in the circumstances found Professor Neering's report helpful. 8 It seems to me to be likely that the prisoner's inhibitions were loosened by what he had had to drink and by his abuse of drugs, and that his co-ordination, his concentration and his judgment may have been somewhat impaired. This may go some way to explaining the prisoner's behaviour but it certainly does not excuse it. 9 The prisoner's wife went to bed after watching a television programme that began at 12.30 am and ended at 1.00 am. According to her evidence, and I see no reason to reject it, the relationship between the prisoner and the deceased appeared cordial. This witness noticed nothing in the nature of a quarrel, and although she heard voices after she went to bed they plainly did not convey to her that any quarrel was occurring. 10 How then, and in what circumstances, did the shooting occur? 11 It was submitted by the Crown that I should approach the case as one of manslaughter by unlawful and dangerous act. Mr Bruce accepted this for the purpose of his submissions. In accepting the prisoner's plea of guilty to manslaughter in satisfaction of the indictment, the Crown has accepted that the prisoner did not shoot the deceased either with intent to kill or with intent to cause bodily harm, and I must approach my task in sentencing the prisoner upon the basis that he entertained no such intent. On the other hand, by his plea of guilty to manslaughter, the prisoner acknowledged, contrary to his assertions immediately after the shooting, that the act of firing the shotgun was deliberate, even though that act was not accompanied by the intent required to establish the crime of murder. 12 There was evidence, to my mind compelling, that the front end of the shotgun must have been at the very outside one metre away from the deceased when the shotgun was discharged. Indeed, it may have been as close as 300 mm away. I accept the evidence that Sgt Charleston gave about this. I accept also the evidence which Mr Wrobel gave, but before referring to this expert evidence I should address the evidence of Dr Schwartz who conducted the post mortem examination. 13 The post mortem examination revealed a shotgun wound to the right side of the chest of the deceased which was 25 mm x 35 mm with an abrasion cuff on the lower and outer margin. The upper margin of the wound was serrated but the lower margin of the wound was sharp. Dr Schwartz said that the direction of the wound track was from right to left, backwards and downwards. In the conduct of the post mortem examination wads from the shotgun cartridge were found inside the deceased's body on the front surface of thoracic vertebrae 9 and 10 and most of the pellets lodged there as well. To the extent that the entry wound was serrated, this was consistent with the shot fired having started to spread in its movement away from the muzzle of the gun. Whilst Dr Schwartz acknowledged she was not a ballistics expert, it was her opinion, having considered the nature of the wound, that the shot was fired from a distance of about two to three feet. 14 Sgt Charleston was present when the post mortem examination was conducted and she noted the character of the entry wound on the right side of the chest of the deceased. It was her opinion that the wound was consistent with the impact of a single charge of shot having entered the upper chest with the shot passing through the body from right to left, from front to back and slightly downwards. Sgt Charleston observed where most of the pellets finished up inside the body and she also saw the wads. 15 It was Sgt Charleston's opinion, based on the appearance of the wound itself and taking into account the damage to the shirt that the deceased had been wearing, that the shot was fired from a point between 300 and 500 mm away from the body. That opinion was strengthened by proximity test results. What Sgt Charleston did was to fire the shotgun at a blotting paper target at varying distances from such target and then to study the nature of the damage occasioned to the target. The witness fired two shots from each of the distances from which test firing was done, save for the tests conducted from 6.5 metres, where three shots were fired. These test results also led the witness to the opinion that the fatal shot was fired from a distance of 300 to 500 mm. However on cross examination the witness conceded that it was possible that the shot might have been fired from one metre away, but definitely from no further away. 16 Stubs from an appropriate testing kit were used on the hands of the deceased, both palm and back. These were sent off for analysis by a forensic officer attached to the Victorian Forensic Science Centre, Mr Harald Wrobel. He gave evidence that one of the stubs showed shotgun residue particles that had been found on the deceased's right palm. That finding indicated, according to the witness, that the residue had been deposited there by the discharge of the firearm and that the hand was in close proximity to the muzzle or the deceased handled the firearm itself. From his experience, particles of the type found would only travel about half a metre, although in cross examination he agreed that the range could have been as far as a metre. 17 The evidence I have reviewed leads me to find beyond reasonable doubt that when the shotgun was discharged by the prisoner, its muzzle was at the very most one metre from the deceased's chest. Allowing for the length of the weapon which the prisoner was holding, the prisoner was no more than two metres away when the shotgun was discharged. 18 The only direct account in sworn evidence of how the shooting happened was the account given by the prisoner. According to him he had placed his twelve gauge single barrelled shotgun on a table in the dining area of the house. The deceased was sitting on a lounge by the fire, some distance from the table where the shotgun had been placed. The prisoner said that he had brought the gun out to clean it, that he had the weapon in his hand when his child, sleeping in a bed in an adjacent alcove, woke up and spoke to him. He swung round, still clutching the weapon, and stepped a couple of paces towards the alcove. He said that the deceased then spoke to him and he swung around towards the deceased and it was then that the shotgun went off. 19 Detective Senior Constable Cairnduff, who at the time of the shooting was with the Lismore Crime Scene Forensic Services Group, attended the scene, and in the course of his investigations prepared a rough sketch plan of the interior of the premises. He measured the distance from the table indicated as having been the table where the gun had been resting to that part of the lounge where the deceased was sitting when he was shot as being a distance of 6.5 metres. Mr Bruce submitted that I should not find that the shotgun was discharged from that distance, and even without regard to the evidence of the prisoner, he submitted that that measurement is misleading and indeed irrelevant. Mr Bruce submitted that I would not find that the table was where the plan shows it to have been, and that I would not find that the prisoner was standing at the point from which that measurement was taken at the time the shot was fired. He submitted that I should find that the shotgun was discharged when the prisoner was standing much closer to the lounge room, and in the approximate location where the prisoner placed himself with the "cross" on Exhibit B. The expert evidence which I have reviewed convinces me that the shot was not fired from that table. 20 As to the prisoner's evidence however, I did not find the prisoner to be a convincing witness. In particular, I did not find his account as to how he happened to discharge the shotgun to be a credible account and I do not accept it. The prisoner's account as to what he was doing when the gun went off, given in the witness box at the trial, was not put forward in the ERISP interview in which indeed he denied firing the gun at all. In response to the following questions in the recorded interview, the prisoner gave the following answers: "Q168 And tell me, have you fired the weapon before tonight?