New South Wales Supreme Court CITATION : R v Catalano [2000] NSWSC 1248 FILE NUMBER(S) : SC 70058/1999 HEARING DATE(S) : 24/07/00, 02/08/00, 03/08/00, 24/11/00, 20/12/00 JUDGMENT DATE : 20 December 2000 PARTIES : Regina v Adam Ross Catalano JUDGMENT OF : James J at 1 COUNSEL : G Lerve - Crown J Sainty - Accused SOLICITORS : J Kontista - Crown D Davidge - Accused CATCHWORDS : Criminal Practice and Procedure - Sentencing - Manslaughter DECISION : Sentence of 7½ years imprisonment - non-parole period 4½ years THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION JAMES J Wednesday 20 December 2000 70058/99 - REGINA v ADAM ROSS CATALANO SENTENCE 1 HIS HONOUR: I will deliver my remarks on sentence and pass sentence. 2 On 12 August 2000 at Albury Adam Catalano (who I will refer to as 'the prisoner') was indicted before me on a charge that on 13 December 1998 at Griffith he murdered Archibald Miller. To that charge the prisoner pleaded not guilty of murder but guilty of manslaughter. The Crown accepted the plea of guilty to manslaughter in full discharge of the indictment. Under section 24 of the Crimes Act the maximum penalty for manslaughter is imprisonment for twenty-five years. 3 On 3 August at Albury the Crown tendered as part of the proceedings on sentence a statement of agreed facts, the criminal history of the prisoner, a plan of the area where Mr Miller was killed, a number of statements, a report by the pathologist who performed the post-mortem examination of Mr Miller's body and transcripts of a number of interviews with the prisoner by the police. Counsel for the prisoner requested that I direct that a pre-sentence report be obtained. I gave this direction and the proceedings on sentence were then adjourned. 4 It was not possible to resume the hearing of the proceedings on sentence until 24 November in Sydney. On 24 November the Crown tendered the pre-sentence report which had been prepared and then closed its case. 5 The evidence in the prisoner's case on sentence which was adduced on 24 November consisted of a number of documents, including a report by a psychologist Mr John Flockton and a number of documents about the prisoner's conduct whilst in custody awaiting sentence and oral evidence by his mother Mrs Colleen Catalano and by a family friend, Mr Giuseppe Bagiente. The prisoner himself did not give evidence in the proceedings on sentence. 6 I have taken into account all of the evidence which was given in the proceedings on sentence. In making findings of the facts of the offence for the purpose of sentencing the prisoner, I have taken into account inter alia the principle that a finding of fact adverse to the prisoner cannot be made, unless the fact has been established beyond reasonable doubt. 7 The victim of the offence Archibald Miller was fifty-two years old at the time of his death. He lived alone in a makeshift camp at the railway yards at Griffith. He was of very slight physique. The pathologist who performed the post-mortem examination on his body on 14 December 1998 found that he weighed only forty kilograms. The pathologist found that part of his brain showed alcoholic degeneration. 8 The area in which Mr Miller's camp was situated is bounded on one side by Railway Street, Griffith. On the other side of Railway Street is a park, variously known as Kathleen Aiton Park, the CWA Park and Egg Park. It known by the last of these names because in the park there is a children's amusement ride shaped like an egg. In Egg Park there was at least one park bench constructed out of wooden slats. 9 Mr Miller's dead body was discovered at about 10 am on Sunday 13 December 1998. The post-mortem examination was performed on the following day, 14 December 1998. On examination of the body the pathologist found blunt force head injuries consisting of recent cerebral contusion, a traumatic subarachnoid haemorrhage and extensive skull fracturing. In his report the pathologist expressed the opinion that Mr Miller had died as a result of the blunt force head injuries. The pathologist said in his report: "The number of blows rendered to the deceased's head is difficult to definitely ascertain, however I believe that at least six blows were rendered but this is probably an underestimate". Two flakes of paint were removed from the deceased's head during the post-mortem examination. I accept the facts stated and the opinions expressed in the post-mortem report. 10 The prisoner had been observed by a police officer in the early hours of the morning of 13 December 1998 in an area near the railway yards and the prisoner came under suspicion. The prisoner was interviewed by police in an electronically recorded interview on 15 December 1998. In this interview the prisoner claimed that between about 9 o'clock in the evening of Saturday 12 December 1998 and 2 o'clock in the morning of Sunday 13 December 1998 he had been in the company of a group of young people, who he named, and that he had then walked home. He denied knowing the deceased. He denied having been in the railway yards. 11 On 17 December 1998 the prisoner was interviewed by a police officer named Kreuzer in a recorded interview. In this interview the prisoner admitted that on the night in question he had been with the deceased. He said he had had a number of drinks with the deceased. He had left the deceased in order to urinate and when he returned after five or ten minutes the deceased was lying on the ground with blood on his head. 12 On 20 December 1998 another electronically recorded interview of the prisoner was conducted. In this interview the prisoner said that on the night in question he had been walking through the railway yard, had seen that the deceased was up, had gone over to the deceased, had had some drinks with the deceased and had left the deceased in order to use the toilet in Egg Park, had returned to the deceased and had discovered the deceased lying on the ground with blood on his forehead. The prisoner was allowed to leave the police station after the interview on 20 December 1998. In January 1999 he left Griffith and went to Tasmania. 13 The prisoner was arrested in Tasmania on 9 March 1999 and he has remained in custody ever since. The police had gathered substantial forensic evidence incriminating the prisoner in the death of Mr Miller. Two pieces of broken wood had been found, which were identified in the police investigation by the numbers 30 and 31. Item 30 was found in the railway yards not far from Mr Miller's camp. Item 31 was found in Egg Park close to Railway Street and almost opposite where item 30 was found. A fingerprint of the prisoner's was detected on item 30. In the opinion of the police fingerprint expert the prisoner's fingerprint had been put on item 30 at a time when items 30 and 31 had been parts of the same piece of wood. That piece of wood had been a slat in a park bench in Egg Park. A palm print and two fingerprints of the prisoner were detected on the park bench from which the slat had been removed. There were blood splatters on items 30 and 31. An analyst performing a DNA test found, to a very high degree of probability, that the blood on item 30 came from the deceased. A chemical analyst found that paint on item 30 was probably the same paint as the paint in the flakes removed from the deceased's head during the autopsy. The pathologist considered that the blunt force injuries to the deceased's head which he had found on an examination of the deceased's body could have been caused by striking him on the head with the slat from the park bench. 14 Earlier in these remarks I referred to the versions of events given by the prisoner in the interviews on 15 December, 17 December and 20 December 1998. The following statement of the facts of the offence is derived from the agreed statement of facts admitted into evidence in the proceedings on sentence, which differs in a number of respects from the earlier versions given by the prisoner. 15 In the early part of the night of Saturday 12 December 1998 the prisoner was with his brother Leo Catalano, Leo's partner and a friend. The prisoner, Leo Catalano and the friend smoked cannabis for about two hours. The group arrived back in the town of Griffith at about midnight. Leo Catalano and his partner returned to a flat in Griffith which they shared with another brother, Michael, and Michael's partner. 16 The prisoner wandered around the streets of Griffith for about an hour and a half. He then went to his brother's flat and spoke briefly with his brother Michael and Michael's partner and then to his brother Leo and Leo's partner. Leo gave the prisoner a small sum of money to buy some soft drink and cigarettes. The prisoner went to the vicinity of a nightclub at a hotel, bought the soft drink and attempted to enter the nightclub to buy cigarettes. He was refused entry to the nightclub. A security camera at the entrance of the nightclub photographed the prisoner at the entrance to the nightclub at 2.34 am. 17 After he had been refused entry to the nightclub the prisoner began to walk in the direction of his brothers' flat. A police officer patrolling the streets of Griffith made two observations of the prisoner. The prisoner encountered a group of young people of about his age who were the people he claimed he had been with, when he was interviewed on 15 December. While he was with this group the prisoner smoked more cannabis. To the members of the group he appeared 'smashed or whacked' - that is, well-affected by cannabis. The group left the prisoner. 18 The prisoner went to Mr Miller's camp to get some cigarettes. While he was with Mr Miller the prisoner drank some of Mr Miller's cask wine. The prisoner thought that Mr Miller was also drinking but a later analysis of a sample of Mr Miller's blood did not show any alcohol in his blood. The prisoner asked Mr Miller for some cigarettes but Mr Miller refused to give the prisoner any. The prisoner struck Mr Miller a number of time on the head with a piece of wood which had been a slat in a bench in Egg Park. The pathologist considered that the amount of force which would have been required to cause one of the fractures sustained by Mr Miller would have been severe. During the assault the slat broke into pieces. The prisoner left Mr Miller lying on the ground and walked in the direction of Egg Park. On the way he discarded the two broken pieces of timber, which became items 30 and 31 in the police investigation. The prisoner called in at his brothers' flat and then walked to his home on a farm, some kilometres out of Griffith. 19 In the hearing of the proceedings on sentence two factual issues were raised. One issue related to how the slat from the park bench had been brought to the deceased's camp and, in particular, whether the prisoner, after Mr Miller had refused to supply him with cigarettes, had left Mr Miller and gone to Egg Park and obtained the slat and then returned to the deceased's camp with the intent of assaulting Mr Miller with the slat. Although it is possible that this is what did happen, such a finding would be adverse to the prisoner and I do not consider that, on the evidence available to me, I could make it beyond reasonable doubt. Accordingly, I do not make any finding about how the slat from the park bench was brought to the deceased's camp. 20 The other issue of fact is whether Mr Miller was lying down when he was first assaulted. I do not consider on the evidence available to me that I would be justified in making such a finding according to the requisite standard of proof. However, having regard to Mr Miller's physical frailty and the number and severity of the blows, I am satisfied beyond reasonable doubt that the prisoner continued to strike Mr Miller after Mr Miller had become incapable of defending himself in any way. 21 Some of the more salient of the objective features of the offence can be summarised by saying that the prisoner struck the victim, a physically frail person, a number of times on the head with a wooden slat and that at least one of the blows was struck with a severe degree of force. 22 The Crown accepted the plea of guilty to manslaughter in full discharge of the indictment and hence the Crown is to be taken as conceding, and I must sentence the prisoner on the basis, that the prisoner did not have the intent required for murder; that is, he did not intend to kill Mr Miller and he did not intend to inflict really serious bodily injury on Mr Miller. The offence was unpremeditated and the prisoner acted impulsively. There was no justification or excuse at all for the violent attack on the victim. At the time of committing the offence, the prisoner was intoxicated by the use of cannabis and alcohol. His drug addiction and his use of drugs on this occasion is no excuse. On the other hand, I accept that his mental processes were disordered by his use of cannabis and alcohol and that the violence he perpetrated on Mr Miller was out of character for the prisoner. 23 I turn to the subjective circumstances of the prisoner. The prisoner was born on 17 July 1980. He was accordingly eighteen years old at the time of committing the offence and is now twenty years old. He is the youngest of three children, having two older brothers. He was born and raised in Griffith. He left school early in about year 8, after a number of suspensions. After he left school he tried distance education but this was unsuccessful. 24 The prisoner has no vocational qualification. He has had what a parole officer described in the pre-sentence report as a variety of short-term labouring and shop assistant positions, with a longest period of employment of three months. He has worked for his father, who is a farm labourer, and has worked for Mr Bagiente. Mr Bagiente gave evidence, which I accept, that he has been a farmer in the Griffith area since 1972, that he knows the Catalano family, that the prisoner has worked for Mr Bagiente and has been a reliable worker and that Mr Bagiente will support the prisoner when he is released from prison. 25 The prisoner has been adversely influenced by his older brother Leo, who has been imprisoned for drug-related offences. The prisoner's relationship with his older brother led to him being exposed to drugs at an early age. 26 The prisoner has a minor prior criminal history of offences in the nature of larceny and stealing. There is no previous conviction for any offence of violence. I accept evidence which was given in the proceedings on sentence that, apart from committing the present offence, the prisoner has not been a violent person. 27 The prisoner started taking cannabis at a young age. In the period leading up to the commission of the offence he was a heavy user of cannabis on a daily basis and was using amphetamines three times a week. He was also using alcohol. He used a large amount of cannabis in the hours preceding the offence. 28 I take into account in the prisoner's favour that he pleaded guilty and I accept he pleaded guilty at the first reasonable opportunity, after the Crown indicated that it would be prepared to accept a plea of guilty to manslaughter and would not press the charge of murder. The plea of guilty has utilitarian value and is also evidence of contrition. On the other hand, I consider that the Crown had a powerful circumstantial case, based on the sightings of the prisoner in the vicinity of the railway yard in the early hours of Sunday morning and the forensic evidence, particularly the fingerprint evidence, linking the prisoner with the park bench and broken slat, and the DNA evidence linking the blood on the broken slat with the deceased. The version the prisoner first gave police that he had been with a certain group of other young people between about 9 o'clock in the evening and 2 o'clock the following morning was contradicted by statements from a number of members of the group which had been obtained by the police. I have decided, in accordance with the guideline judgment in R v. Houlton that I should allow a discount of between ten and fifteen per cent for the plea of guilty. 29 The prisoner has attended the Alcohol and Other Drug Service at the Metropolitan Remand and Reception Centre on a regular basis for counselling and for information on problems associated with the use of alcohol and other drugs. He has also participated in a life management programme. A Prison Chaplain has given a favourable reference about the prisoner. He also has a favourable reference from the Manager of Industries in the Metropolitan Remand and Reception Centre regarding his employment at the Centre. In statements to me and to a relation of the deceased he has expressed his contrition. 30 The consulting psychologist, Mr John Flockton, interviewed the prisoner on two occasions and also interviewed his mother and Mrs Bagiente. In his report of 22 August Mr Flockton concluded: "Present assessment suggests intellectual ability within the low average range and without any noticeable neurological deficits. His employment history is marked by successive dismissals usually due to reported inability on Adam's part to meet task requirements. This is consistent with indications from intellectual assessment of relatively slow information processing ability possibly related to dependent use of cannabis. In relation to particular issues raised on referral there is no evidence of clinical psychosis or mental disorder. Acute and transient persecutory thoughts, referred to by Adam as paranoia in being apprehended or harassed by police, are noted, particularly at the time of cannabis use. There is, however, no evidence of an hallucinatory or delusional quality to these thoughts. Adam has had early exposure to negative subcultural and peer influences including his older brother which have increased both his vulnerability and access to illegal drug use. His mother's report of a six week period of living with his elder brother and associated access to illicit drugs in the six months period prior to the offence is of note. It is likely Adam experienced progressive disappointment, frustration and hopelessness and his inability to maintain employment leading with time to emergent signs of clinical depression. As often occurs, sedative type drugs such as cannabis and alcohol can be used to self-medicate underlying psychological disturbance and mood disorders, as is probably the case with Adam. Adam has confirmed periodic binge drinking, which, when combined with heavy cannabis use as reportedly occurred immediately preceding the current offence, may have led to a gross impairment in judgment. There is otherwise little indication from Adam of criminal or antisocial orientation. As best as can be determined, he presents with genuine remorse and a deep empathic understanding of the impact of his actions on the family of the victim and most noticeably his mother". 31 I accept all of these opinions of Mr Flockton, including that there was some impairment in judgment at the time the offence was committed. I accept the evidence of the prisoner's mother and Mr Bagiente that, when the prisoner is released from custody, he will be able to live with his parents and he would have prospects of obtaining employment with Mr Bagiente. 32 On the basis of the evidence in the pre-sentence report, I am satisfied that the prisoner is contrite, that he has prospects of rehabilitation and that he is unlikely to re-offend, provided he does not relapse into drug and alcohol dependency. 33 In submissions the Crown Prosecutor stressed the objective seriousness of the doing of acts which resulted in the loss of a human life. The Crown Prosecutor also laid stress on the age and slight physique and vulnerability of the victim. The Crown, while accepting there is no tariff for sentences for manslaughter and that only limited assistance can be gained by reference to other individual cases, submitted that there was some similarity between the present case and R v Brown (unreported) Court of Criminal Appeal 13 July 1993, in which the Court of Criminal Appeal dismissed a prisoner's appeal against a sentence of nine years, with a minimum term of six years and an additional term of three years. I note that there are some differences between the present case and R v Brown, for example in R v Brown the offence was committed in the company of a co-offender. 34 Counsel for the prisoner in his submissions referred particularly to the prisoner's plea of guilty, his youth, the absence of any relevant criminal antecedents, the absence of any other episodes of violent conduct, the prisoner's dysfunctional early life and the circumstance that the prisoner, because of his youth, would be likely to find imprisonment in an adult gaol more than usually onerous. 35 Counsel for the prisoner submitted that some guidance to a proper sentence in the present case could be derived from the sentencing decisions in R v Grenenger (1999) New South Wales Supreme Court 380, 23 April 1999, Sully J, in which a sentence of three years with a minimum term of eighteen months and an additional term of 18 months was imposed and R v T M (1999) New South Wales Supreme Court 504, 28 May 1999, Hidden J, in which a sentence of five years with a minimum term of three years and an additional term of two years was imposed. It seems to me that the facts of the present case call for a heavier sentence than was imposed in those two cases. 36 Counsel for the prisoner submitted I should find there are special circumstances within section 44(2) of the Crimes (Sentencing Procedure) Act in the prisoner's need for continuing counselling and assistance in dealing with his problems with alcohol and drug dependency, in his youth, in the circumstance that the prisoner has since 9 March 1999 spent and will continue to spend some of his more important formative years in an adult prison and in the circumstance that the prisoner has demonstrated by his conduct while in custody that he has prospects of rehabilitation. The Crown conceded I should find there are special circumstances and I find special circumstances as submitted by counsel for the prisoner. 37 The sentence I impose will commence from 9 March 1999, the prisoner having been continuously in custody since that date. In setting the sentence I have endeavoured to take into account all the objective facts of the offence and all of the subjective circumstances of the prisoner. 38 Adam Ross Catalano, I sentence you to imprisonment for seven and a half years. I set a non-parole period of 4 and a half years commencing on 9 March 1999 and expiring on 8 September 2003. The earliest date on which you will be eligible for release on parole will be 9 September 2003. ********** Last Modified: 02/14/2001 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.