New South Wales Supreme Court CITATION : Regina v Ray [2001] NSWSC 1145 FILE NUMBER(S) : SC 70036/00 HEARING DATE(S) : 23/4/01;24/4/01;26/4/01;1/5/01;2/5/01;3/5/01;4/5/01;7/5/01;8/5/01;9/5/01;7/9/01 JUDGMENT DATE : 13 December 2001 PARTIES : Regina v David Stafford Ray JUDGMENT OF : O'Keefe J COUNSEL : Mr P Power - Crown Mr P Boulten - Prisoner S E O'Connor SOLICITORS : Solicitor for Public Prosecutions, Sydney - Crown Legal Aid Commission, Sydney - Prisoner CATCHWORDS : Manslaughter - Killing by injection of morphine - Effects of alcohol on prisoner and deceased - Special circumstances - Health of prisoner - Circumstances of imprisonment LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Regina v Storey (1997) 89 A Crim R 519 Regina v Isaacs (1997) A Crim R 587 at 592 R v Hill (1980-1981) 3 A Crim R 397 R v Dodd (1991-1992) 57 A Crim R 349 R v Blacklidge (NSWCCA 12 December 1995 unreported) Veen (No 2) v The Queen (1988) 164 CLR 465 at 472;33 A Crim R 230 at 234 CASES CITED : Todd v The Queen [1982] 2 NSWLR 517 Mill v The Queen (1988) 166 CLR 59 and 64;36 A Crim R 468 Regina v Rusbhy [1977] 1 NSWLR 594 Regina v Hill (1981) 3 A Crim R 402 Regina v Sellen (1991) 57 A Crim R 313 at 318 Regina v AB No 2 [2000] (NSWCCA 467, unreported 7 December 2000) Regina v Previtera (1994) A Crim R 76 at 84-87 Bollen v Regina (1998) 99 a Crim R 510 at 529 DECISION : Imprisonment for 7½ years. Non-parole period fixed as 4 years. - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION O'KEEFE J DATE: 13 December 2001 No: 70036/00 - REGINA v DAVID STAFFORD RAY DECISION ON SENTENCE 1 HIS HONOUR: On 9 May, 2001, David Stafford Ray, ("the prisoner") was convicted of manslaughter. The person he killed was his mother, Elvira Louise Ray ("the deceased"). Following the jury's verdict the prisoner was remanded in custody so that necessary material, including a pre-sentence report from the Department of Corrective Services and other evidence, could be obtained before argument in relation to sentence was heard. 2 The death of the deceased occurred on 14 November, 1997 as a result of the combined effects of alcohol which she had ingested and morphine with which she had been injected by the prisoner. 3 The Crown put the charge of manslaughter against the prisoner on two bases. First it asserted that the killing amounted to manslaughter because the act causing death was deliberately done by the prisoner in circumstances which amounted to assault, since the deceased had not consented to being injected by the prisoner with morphine or at all. In the alternative it asserted that even if consent had been given by the deceased, the killing still amounted to manslaughter, because the death arose out of an unlawful and dangerous act on the part of the prisoner. It was unlawful because the drug injected by the prisoner was not a drug which had been prescribed for the deceased but had been unlawfully provided by him and the injection of such a substance by a layman in the circumstances was dangerous. 4 The verdict of the jury did not indicate on which of these two basis its decision was founded. Indeed, there may have been some in the jury who arrived at the conclusion on the first ground and others who arrived at their conclusion on the second. What the verdict of the jury established was that there was an unlawful homicide by the prisoner in that the prisoner injected the deceased with morphine, that the act of so doing was a deliberate act but was done without intention to kill or inflict grievous bodily harm. THE ONUS AND STANDARD OF PROOF 5 The decision of the court on sentence is an important matter for a prisoner. It has been characterised as being in some situations no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same as it is in a trial, namely proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said: "the judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities" (at 530) 6 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration eg, do they aggravate or mitigate the penalty to be imposed? It was said in Regina v Storey (supra) that: " 'Aggravating' and 'mitigating' must be understood in a wide sense and without, eg, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (eg, the use of a weapon) or on the other hand of a prior or subsequent conviction. The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice." and: "We have spoken of disputed 'facts' … there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue" (supra at 531 – 532) 7 These statements accord with the law of New South Wales (Regina v Isaacs (1997) 90 A Crim R 587 at 592). 8 In determining the facts on which the sentence is to be imposed upon the prisoner in this case I have applied the law as set out above in the light of the verdict of the jury. ANALYSIS 9 Counsel for the prisoner argued initially that the first way in which the Crown put its case could not be found on a sentence hearing since, so the argument ran, there was nothing to suggest that the deceased had not consented to the injection being given. This submission was based on the view then espoused by counsel for the prisoner that the first pathway to manslaughter advanced by the Crown involved a higher degree of criminality, and hence culpability, than the second. However, during the course of argument he resiled from such submission in the light of the fact that the evidence was that whether the deceased had consented to the giving of the injection or injections or not, the prisoner had given it or them with the intention of easing a severe migraine type headache which it is said the deceased had in the time leading up to her death. 10 The deceased had suffered from quite serious migraine headaches for many years. She had been treated for this problem by a number of doctors. Over the years she had been given various medications including, from time to time, pethidine. The pethidine had been administered by different doctors and occasionally, but very rarely, by her daughter. The evidence revealed that she had been treated for migraine headaches on the day of her death when Dr Burchett came to her house as a result of a phone call to his surgery. 11 In his record of interview the prisoner asserted that he was unable to remember the critical events of the night on which the deceased was injected with morphine. I do not accept this for a number of reasons. First, his record of interview reveals him as shifty, evasive and inconsistent. I am firmly of the view that his memory was very much better than he asserted it to be in his record of interview. In addition, well prior to the record of interview, which took place on 25 November 1997, the prisoner had discussed the events which led to the death of the deceased with his sister, Julia Ray. In the course of this discussion he said: "He was really worried because … he had given (the deceased) an injection of morphine for her headaches … about 11 o'clock at night before she died." 12 Whether he actually used the phrase "an injection" or the phrase "a shot" was not entirely clear. However, that he, the prisoner, injected morphine into his mother was clear on the evidence and undoubtedly accepted by the jury. It should be noted that in the version which he gave to his sister the prisoner did not assert that the deceased had requested him to inject her with morphine or that she had consented to his so doing. No explanation was advanced in the evidence as to why his memory of events may have faded between the time he spoke to his sister and the record of interview more than a week later. 13 The prisoner also spoke about his mother's death with a friend of the family, Mr Peter Harrison. This took place on the morning following the night on which the prisoner had given his mother what proved to be the lethal injection or injections. In this conversation the prisoner again confirmed that he had injected his mother with morphine. At first he said that it had been done intravenously, but he then changed this to intramuscularly. Although there was discussion between the prisoner and Mr Harrison concerning the circumstances surrounding and mechanics of the giving of the morphine, the prisoner did not make any assertion that the deceased either requested him to give her an injection of morphine or consented to his so doing, nor did he claim any deficit in his memory in relation to the essence of what he had done. 14 There is thus no evidence of any request by or consent of the deceased to the prisoner injecting her with the fatal drug and in the further light of the alcoholic condition of the deceased at the material time, I am satisfied beyond reasonable doubt that no such request was made. 15 The morphine which the prisoner used had been obtained by him in a manner which was not legal. There was no evidence that it had been prescribed for the prisoner and in view of his long standing drug problem, it undoubtedly had been obtained by him for his own purposes and not on a legal basis. Its possession by him on the night of 14 November, 1997 was a significant event in the chain of events leading to the death of the deceased. 16 Although I am satisfied beyond reasonable doubt that the deceased did not request the prisoner to inject her with morphine on the night of her death, for the purposes of imposing a sentence on the prisoner it is, in my view, probably unnecessary to resolve the basis on which the jury convicted the him. The subjective matters relevant to the causing of the death operate fairly equally in relation to both. The objective fact is that there was an unlawful killing. The verdict did not arise out of a charge of murder which was reduced to manslaughter as a result of provocation or diminished responsibility. No malevolent motive was asserted by the Crown and none emerged in the evidence. Whether the prisoner injected the deceased with morphine without her consent or with her consent in circumstances that were unlawful and dangerous, I am satisfied on the balance of probabilities that he injected her not with an intention to hurt, rather with an intention to help – to the extent that he was capable of forming an unfuddled intention in the light of his condition as a result of the ingestion of alcohol. 17 At the time of the doing of the act which resulted in the death of the deceased the prisoner was well affected by alcohol. This was a self induced state. He was probably not in a state in which he would be fully cognisant of the probable effects of injecting four ampoules of morphine into the body of the deceased, as I have no doubt he did, at a time when she herself had ingested a significant amount of alcohol. Furthermore, as I have already indicated, the injecting by the prisoner of the deceased was not done malevolently. 18 The circumstances surrounding, and nature of, the act causing the death of the deceased are not therefore, in my opinion, such as to call for a penalty at the higher end of the range of sentences which may be imposed for manslaughter. 19 The range of the sentences which may be imposed in respect of the crime of manslaughter is wide. The statistics produced by the Judicial Commission of New South Wales and tendered by the Crown show that range effectively to be from 18 months to 20 years. This is a reflection of the diversity of the circumstances in which a verdict of manslaughter can be arrived at. 20 In R v Hill (1980-1981) 3 A Crim R 397, Street CJ pointed out the difficulty that is posed for a Court in relation to the imposition of a sentence for the crime of manslaughter. He said: "It has been said that manslaughter, perhaps, beyond any crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely and it is not always easy to determine in any given case what should be done in the matter of sentence." (supra at 402) 21 There are competing considerations to be taken into account when determining the appropriate sentence in a case of manslaughter. One is the fact that there has been a felonious taking of human life. The felonious taking of human life is recognised by the legislature, the courts and the community as a serious crime. That consideration must be addressed in the sentence imposed. On the other hand is the consideration that the factual content and circumstances of the offence which may significantly reduce the blameworthiness of the perpetrator must also be taken into account. These two considerations are in tension and the task of the sentencing judge is to resolve that tension. Doing so involves a balancing of the demands of the criminal justice system and community expectations in relation to the protection of the lives of members of the community, and the punishing of a person who has taken a life feloniously on the one hand, against the subjective circumstances of the person responsible for the taking of the life in the circumstances of the particular case on the other. 22 The resolution of the tension between the competing factors to which I have referred must involve a reasonable proportionality between the sentence imposed and the circumstances of the particular manslaughter. This in turn involves the sentencing judge in the first instance having regard to the gravity of the offence viewed objectively and then to the subjective features involved in the case. The need to have adequate regard to the former was stressed in R v Dodd (1991-1992) 57 A Crim R 349 in which it was said: "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 consideration may cause inadequate weight to be given to the objective circumstances of the case." (supra at 354) 23 In R v Dodd (supra) it was also said: "As Jordan CJ pointed out in Geddes at 556, making 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, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, 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: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468 . 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: Rushby [1977] 1 NSWLR 59 ." (at 354) 24 To like effect is the decision in Regina v Blacklidge (NSWCCA 12 December 1995 unreported) in which Gleeson CJ said: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." and: "… the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case." 25 Similarly in Regina v Hill (1980-1981) 3 A Crim R 397 it was said: "At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling out for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. " (at 402) 26 Objectively the manslaughter of which the prisoner was convicted is not in the higher levels of culpability. Indeed, as I have found and as was conceded by the Crown, it is in the lower levels of culpability. The prisoner killed this mother. Whilst his intentions were probably not bad, he was (as was his mother) then well affected by liquor. Thus a life was taken feloniously, in circumstances which are not such as to be condoned or apparently condoned, either for the prisoners or others who may be tempted to act as the prisoner had, by a sentence which might be regarded as over-merciful. This consideration applies notwithstanding that the prisoner would appear to be unlikely to commit an offence of the same kind again. 27 Against these considerations are the subjective features advanced on behalf of the prisoner. These were twofold. First, his poor health. Undoubtedly this can be a special circumstance for the purposes of s.44 of the Crimes (Sentencing Procedure) Act 1999; Regina v Sellen (1991) 57 A Crim R 313 at 318. The second is the circumstance in which the prisoner is presently held and, on the submission made by his counsel, likely to be held in the foreseeable future, namely in strict protection. This too can be a special circumstance (see Regina v AB No 2 [2000] NSWCCA 467, unreported,7 December 2000) and involves a penalty which is, in effect, more severe than conventional imprisonment (id). VICTIM IMPACT STATEMENT 28 A Victim Impact Statement was prepared by Julia Ray, the daughter of the deceased and sister of the prisoner. This was tendered without objection. In it Ms Ray stated shortly how her life had changed drastically with the death of her mother as had the lives of her children. Even at a remove of 3½ years from her mother's death she still experiences a sense of great loss and a sadness. Her initial feeling of devastation continued for about a year, but has resolved with the passing of time. Her statement mirrors to an extent the reactions of ordinary members of the community but, because of the intimate connection between Ms Ray and her mother, the effects of the death on her are, as is to be expected, more profound. 29 Notwithstanding her feelings of loss and sadness, she was supportive of her brother, advocated that he should not be imprisoned and expressed concern at the effects of imprisonment upon him. 30 I have considered Ms Ray's statement and sympathise with her on her loss but, conformably with authority (Regina v Previtera (1994) A Crim R 76 at 84 – 87 per Hunt CJ at CL; Bollen v Regina (1998) 99 A Crim R 510 at 529 per Hunt CJ at CL with whom Graham AJ agreed), have not made use of it in relation to the penalty which should otherwise be imposed or even as confirmation that the conclusion to which I have come is the appropriate one. CONCLUSION 31 When regard is had to the objective factors relevant to the present case and these are mitigated by reference to the particular facts of and surrounding the killing, the health of the prisoner, the circumstances in which he is held and the other factors referred to above, I am of opinion that an appropriate sentence would be imprisonment for 7 ½ years, but that in view of the special circumstance which exist the non-parole period should be reduced to 4 years. The sentence should date from the date on which the prisoner went into custody, namely 23 April, 2001. SENTENCE 32 David Stafford Ray, you have been convicted by a jury of your peers of the manslaughter of your mother, Elvira Louise Ray, on 14 November 1997. In respect of that crime I sentence you to imprisonment for 7½ years. The sentence is to commence on 23 April, 2001 and is to expire on 22 October, 2008. I fix the non-parole period to expire on 22 April 2005, so that you will be eligible for parole as from 23 April, 2005. ********** Last Modified: 12/17/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.