Regina v Griffis [2001] NSWSC 1154

New South Wales Supreme Court

CITATION : Regina v Griffis [2001] NSWSC 1154 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70037/01 HEARING DATE(S) : 29 October 2001, 5 December 2001, 13 December 2001 JUDGMENT DATE : 13 December 2001

PARTIES : The Crown Leigh Barry Griffis JUDGMENT OF : McClellan J

L Gray (Crown) (29.10.01) COUNSEL : P Barnett (Crown) (5.12.01; 13.12.01) J Booth (Offender) (29.10.01) F Thraves (Offender) (5.12.01; 13.12.01) SOLICITORS : Director of Public Prosecutions Legal Aid Commission of NSW CATCHWORDS : CRIMINAL LAW - sentencing - manslaughter - where offender entered a plea of guilty to manslaughter - where offender gave assistance to police DECISION : See para 46

OF NEW SOUTH WALES CRIMINAL DIVISION McCLELLAN J THURSDAY, 13 DECEMBER 2001 70037/01 - REGINA v Leigh Barry GRIFFIS SENTENCE 1 HIS HONOUR: The offender, Leigh Barry Griffis, known as Jack, has pleaded guilty to the manslaughter of Warren Watson. 2 Mr Watson was shot by the offender when they were camped near Dawes Creek in the Hunter Valley on the night of 19 August 2000. The offence carries a maximum penalty of twenty-five years imprisonment. 3 Although charged with murder, the Crown has accepted a plea of manslaughter, acknowledging that the offender acted when provoked by the deceased. 4 The offence was committed when both parties were heavily intoxicated and affected by cannabis. It is a dreadful reminder of the fatal consequences which can follow when a gun is available to persons who may have their faculties affected by alcohol or other drugs. 5 The offender and the deceased were friends. They worked together at Hunter Valley Building Supplies at East Maitland. They were both aged thirty-three at the time of the incident. The deceased was married with three children. 6 The offender has never been married and at the time of the incident was living in a shed at the rear of his parents' house. He is the youngest of seven children and appears to have a close relationship with his parents and his siblings. 7 The offender has been a regular visitor to the Jerrys Plains area where he would commonly camp and go rabbiting, using ferrets and traps. He is skilful in these enterprises. He is known to people in the Jerrys Plains area as "Raymond Terrace" because of his place of residence. 8 On the morning of Friday, 18 August 2000, the deceased phoned his wife and asked her to bring him clothes so that he could go camping with the offender over the weekend. Linda Watson delivered a bag with clothing to the deceased. 9 The two men finished work about midday. They travelled from the offender's home in his Toyota Land-Cruiser with a covered box trailer attached, arriving at Jerrys Plains during the afternoon. They went to the home of Patricia O'Hara, a local landowner, who gave them permission to camp and go rabbiting on her property. 10 During that night the deceased phoned his home a number of times by mobile phone and there was no suggestion that there were any problems. 11 The following day the offender and Mr Watson attended the Jerrys Plains tavern at about lunchtime. When they arrived Sarah Bullivant, a local resident, was in the bar, drinking. She did not know either the offender or the deceased. The two men consumed beer and ordered take away meals and engaged Ms Bullivant in conversation. They invited her to join them at the camp, to which Ms Bullivant agreed. 12 Ms Bullivant then drove her car to her home about two kilometres out of Jerrys Plains on the Singleton Road. The men followed. She left her car there and travelled with the men to the camp-site. At the camp they continued to drink intoxicating liquor and consumed Indian Hemp. Apparently, at some stage, the deceased placed his arm around Ms Bullivant, which upset the offender. He produced a firearm, which he cocked. Ms Bullivant told the offender that she did not like guns and asked him to put it away, which he did. 13 Later that evening, the time has not been identified, the difficulties between the offender and the deceased resulted in a physical altercation. The deceased, who was a larger man than the offender, held the offender's face toward the camp fire, and he suffered a number of burn injuries. When he became free, he retreated to the trailer, which was attached to his vehicle where, he found his loaded shotgun which he cocked. He then returned close to the deceased where he deliberately shot him whilst temporarily not in control due to the burn injuries that had been inflicted to his face. 14 This account of the events is confirmed by the offender's counsel, who has received written instructions in the matter. 15 The shot inflicted a massive wound to the deceased's skull. He must have died very quickly. The offender then dragged his body into the bush and substantially covered it with dirt and leaves having partially secreted it under a log. 16 I have indicated that the Crown accepts the offender's version, but submits that the provocation falls at the lower end of the scale. In particular, it is submitted that the offender had time, between having his face thrust in the fire and taking up the weapon, which places the provocation at the lower end of the relevant scale. 17 There is no evidence of the precise sequence of events and of the time between the struggle at the fire and the shooting. However, I infer that all of the actions occurred during a very short space of time and the actions of the deceased were a significant provocation to the offender. 18 Close to 6 pm Wayne Killen, who is a dairy farmer, was rounding up his cattle about 300 metres from the camp site. He reports hearing loud male voices which were aggressive and angry. However, he took his cattle to his shed, started milking and because of the noise associated with this activity, heard nothing further. 19 Ms Bullivant has indicated that she consumed considerable alcohol during the Saturday. At one stage she remembers going to the offender's car and falling asleep. She has no knowledge of the events which immediately preceded the death of Mr Watson. 20 After she had fallen asleep, she awoke and was asked by the offender if she wanted to be taken home. She indicated that she did, and the offender drove her to her house where, when she turned the television and lights on, she noticed blood on the offender's jeans, shirt and hands. 21 Ms Bullivant asked the offender "How come you've got blood all over you?" The offender replied, "Because I gave him a good thumping. He was going to rape you. He had it all set up to rape you, so I thumped him." When asked if he was alright, the offender said "I had better go back and check. I left him on the side of the road." The latter statement was not correct. 22 Shortly after this, the offender took Ms Bullivant to her bedroom and she later fell asleep. When she awoke at about 7.30 am the offender had left. 23 By 8.30 am on the Sunday, the offender had returned home. He was observed by his mother in the backyard of the house burning items in a forty-four gallon drum. Mrs Griffis observed that the offender had red marks on his cheeks and looked worried and upset. 24 At about 1 pm the offender was in the backyard speaking with his brothers. Mrs Griffis asked what was the matter. The offender's brother, Colin, told her there had been a shooting and the offender immediately said, " I am sorry Mum and Dad." 25 At 2.15 pm the offender and his brother went to the Raymond Terrace police station where they spoke with Sgt Ray. The offender told Sgt Ray: "I went with a friend to do some rabbit shooting. We were drinking. He pushed me into a fire then we had an argument and he picked up a gun and pointed it at me. I told him not to be an idiot and grabbed hold of the gun and we had a struggle. Then the gun went off and it copped him in the side of the head." 26 This version of the events is now accepted by the offender as untruthful. 27 During the interview, the offender continued saying: "Then I dragged him down to the creek and left him there. 28 In answer to the question, "Is he alive?", the offender said, "I don't know. He was breathing." 29 Having regard to the nature of the injury to the deceased, this statement could not be true. The deceased lost a significant part of his skull in the blast which was from a shotgun. The police took possession of a 12 gauge single barrel shotgun from the offender's vehicle. 30 Shortly after this interview, the offender accompanied police to the scene where he indicated the site of the camp fire and where the body was located. The wound to the deceased's head was obvious. The deceased's trousers were around his lower legs and his underpants were around his thighs and he had no shirt on. The deceased was found to have a blood alcohol level of .202 and there was some evidence of cannabinoids in his blood. 31 The offender was interviewed on more than one occasion and on 21 August 2000 he told Sgt Raftos "I just want you to know it was an accident. I didn't mean to kill him." The offender now accepts that this statement was not true. 32 The offender is now thirty-four years old. He is a person of limited intelligence. He left school at the end of second form and although he had not been in any trouble he found it difficult to learn and was bored. 33 Upon leaving school the offender obtained employment with the local sawmill where he remained for thirteen years. He began as a labourer and worked his way up to forklift driving. He then obtained employment as a forklift driver with Hunter Valley Building Supplies where he was employed at the time of the offence. His work record is good and his employer has provided him with a reference. There is other evidence of his reliability and the trust which his friends place in him. 34 The offender is the youngest of seven children and comes from a close family. His parents and siblings have supported him since he was taken into custody for this offence. I have no doubt that his family will assist him in his rehabilitation when ultimately released. 35 The offender appears to have limited social contacts outside of the work place. He spends many weekends rabbiting and fishing and for the last five years has been rebuilding a sixteen foot boat. His other after work activity is generally drinking at his local hotel. It would appear that on most days he would go to the hotel after work and remain there until well into the evening. He admits to having a problem with alcohol. 36 It is plain that the offence occurred at a time when the offender had consumed considerable alcohol, as had the deceased. However, there is no reason to believe that his capacity to reason in relation to the offence was relevantly affected by alcohol. It is also apparent that the three persons at the camp had consumed some cannabis during the course of the afternoon. 37 The offender has previously been convicted of quite minor matters initially when a juvenile. There is no suggestion of any violent disposition in him and I consider it unlikely that he would re-offend. The offender has expressed his remorse to the court and I accept, as genuine, his expressions of sorrow. He says that he will never touch alcohol or drugs or guns again. His rehabilitation will largely depend upon his resolve to remain free of alcohol and drugs in the future. 38 As I have indicated, the offender has pleaded guilty to the charge of manslaughter. He also significantly assisted the police with inquiries in relation to the matter. However, he did not immediately accept criminal responsibility for the events which occurred and told untruths to the investigating police. He is, nevertheless, entitled to a discount for these matters which I assess as thirty percent of the sentence which would otherwise be imposed. 39 The offender has been assessed by Nancy Wallace, a clinical and forensic psychologist. She concluded that he is of border line intelligence and his drug habits have led him to be impulsive or have increased his pre-existing level of impulsivity. 40 He has also been assessed by Ms Robilliard who also scored his intelligence as well below average range. She reports him as mildly depressed with some anxiety and phobic fears and general psychological stress. However, she concluded that this would not be uncommon having regard to the prospect of the trial which he then faced at the time of their interview. 41 The offender was first remanded in custody in relation to this matter on 20 August 2000. Because of an incident which occurred at the Cessnock Correctional Centre he has been held in maximum security and provided with protection. Notwithstanding the difficult circumstances of his incarceration he has been able to successfully complete a course in drug and alcohol abuse. 42 I am satisfied that the need to impose a sentence reflecting personal deterrence of the offender is not great. However, it is a very serious matter to take a human life and there is a significant need to impose a sentence which will deter others from acting in a similar manner in the future. Every member of the community needs to be reminded of the volatile circumstances that can arise when excessive alcohol and drugs are combined. Those volatile circumstances can easily be turned to tragedy when a gun is present. Our community accepts that there are legitimate reasons for guns to be carried but unless extreme caution and discipline is exercised by those having access to them a tragedy such as the present is a constant possibility. 43 I have received a victim impact statement from the deceased's wife and mother. It is plain that these dreadful events have had a traumatic effect upon these persons and the deceased's children. No words from the court are adequate to express the community's sympathy in their great loss. However, I may not, as a matter of law, take these statements into account in fixing a sentence. 44 Counsel for the offender has submitted that I should find special circumstances and provide a non parole period less than provided by the statute. It was submitted that the problems which the offender has had with alcohol and drugs and the fact that he has been incarcerated for the first time reflects special circumstances. I am not persuaded that such a finding is appropriate in the present case. 45 Leigh Barry Griffis you have pleaded guilty to the offence of manslaughter. I have heard and taken into account all of the matters that have been put by counsel on your behalf. I have had particular regard to the circumstances in which the offence occurred and I have also had regard to your early plea and the assistance you gave investigating police. 46 You are convicted of manslaughter. You are sentenced to a term of seven years full time imprisonment to commence on 20 August 2000 and expiring on 19 August 2007. I fix a non parole period of five years and three months. Accordingly you will be eligible for parole on 19 November 2005.