R v Sandness [2000] NSWSC 821

New South Wales Supreme Court

CITATION : R v Sandness [2000] NSWSC 821 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70055/99 HEARING DATE(S) : 5 & 6 June, 14 July 2000 JUDGMENT DATE : 18 August 2000

PARTIES : Regina v Tony Sandness JUDGMENT OF : Dunford J

COUNSEL : Mr B Newport QC (Crown) Mr G Cusack QC (Prisoner) SOLICITORS : SE O'Connor (Crown) Hovan & Co, Solicitors (Prisoner) CATCHWORDS : CRIMINAL LAW - sentencing - manslaughter DECISION : See para 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 18 AUGUST 2000 70055/99 R v Tony SANDNESS REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner Tony Sandness pleaded not guilty to the murder of Donald Foster but on the second day of the trial he changed that plea to one of guilty of manslaughter, which the Crown accepted in full satisfaction of the indictment. 2 On 30 December 1997 at about 3 pm the deceased then 80 years old, weak and with a number of health problems, was in bed at his home at 16 Vera St, Earlwood when he was bludgeoned with a half brick resulting in severe head injuries from which he bled profusely. He was taken to hospital but died there on 9 January 1998, some 10 days later, as a result of his injuries. 3 The prisoner gave evidence on the sentencing proceedings and said that he had been addicted to heroin and amphetamines for some years and whilst a patient at Wisteria House, a drug rehabilitation unit, he had formed a relationship with Sue-Ann Foster, the grand-daughter of the deceased and another addict. He said that on 30 December the two of them went to the deceased's home to get money, believing that at that time of the day he would not be at home. He said they wanted $40 to buy a ball joint for Ms Foster's car, but I am satisfied to the criminal standard that they also wanted money to purchase drugs. Ms Foster had been to the grandfather's place before asking for money when he was there and he had refused her, so on this occasion they decided to go when he was not there and steal it. 4 The prisoner said that after parking their car (which was a stolen car) in a parking area nearby at the end of the street, they entered the premises by him bending a padlock lever on a side gate and Ms Foster then using her keys to gain entry through the back door, although other evidence indicated that the door must have been unlocked at the time. He said Ms Foster went in whilst he remained at the back door, he heard mumbled talk and a scuffle and then Ms Foster called him, so we went into the premises and found the deceased in his bedroom holding Ms Foster who was struggling. The prisoner hit the deceased in the mouth with his closed fist causing him to let go of her and grab him by the shirt. 5 A struggle ensued while Ms Foster was going through the deceased's cupboards. At one stage the prisoner discovered a half brick on the floor, he picked it up and struck the deceased twice on the head with it causing him to curl up in a ball partly on the bed and partly on the floor. They then both left, Ms Foster taking $1,500 in cash from the premises, and ran down the street to their car, the prisoner changed his clothes and they drove away. Of the $1,500 taken, $500 was used by the prisoner to complete the purchase of a motor vehicle, and the balance was spent by Foster on the purchase of heroin for the use of both of them. 6 A short time later the prisoner, at the urging of Foster, rang the ambulance emergency number on an anonymous basis asking them to attend the deceased's house, but unfortunately the wrong house number was given and the ambulance initially went to the wrong address. Shortly afterwards a neighbour entered the deceased's house, he found the rear gate latch badly twisted and the back door closed but unlocked. He then entered the bedroom and found the deceased lying on the floor near the curtains under the window with blood all over his face and over the bottom of the curtains. A pair of thongs was located in the hallway near the linen cupboard and bathroom. In addition the bedroom showed signs of quite a struggle. On admission to hospital the deceased was suffering extreme facial contusions, three fractures to the skull (right parietal, zygoma and maxilla) and a subdural haematoma with brain compression. 7 The prisoner and Foster were both arrested on 1 January and charged with malicious wounding and both were interviewed. Foster said that their purpose in going to the deceased's house had been trying to get him to know her son (his great grandson) but when they got there she changed her mind about seeing her grandfather and did not go into the house, and that only the prisoner went in which he did twice, the latter time coming out and saying he thought he had killed the grandfather and to run, and he later told her he had hit the deceased on the head with a brick and that the amount taken had been $700-$800. 8 She agreed to give evidence against the prisoner to the effect of her interview and in due course pleaded guilty to a charge of accessory after the fact to maliciously inflict grievous bodily harm with intent to do grievous bodily harm and was released on a recognisance under s 558, Crimes Act; herself in the sum of $200 to be of good behaviour for two years and accept supervision of the Probation and Parole Service. Her version was clearly untrue and was designed, very successfully, to minimise her role. 9 The prisoner was also interviewed on 1 January . He denied all knowledge of the deceased or his injuries and put forth an alibi which was later proved to be false. 10 I am satisfied that the prisoner's current version is much closer to the truth, but is not the entire truth. In light of evidence from another grand-daughter of the deceased I am satisfied that there was no half brick inside the house and the prisoner took the lethal weapon into the house from the backyard where there were a number of them, and that the reason why he removed his thongs on entering the house was to avoid being heard. 11 Bearing these matters in mind I am satisfied that the prisoner and Foster went to the house to get money, primarily to buy drugs, when they knew the deceased would not give it to them voluntarily. Whether they expected the deceased to be at home is not clear but in breaking the latch on the side gate, arming himself with the half brick and removing his thongs, the prisoner was not taking any chances. Presumably when confronted, the deceased refused to give them the money and so whilst the prisoner violently bashed the victim with injuries that ultimately resulted in his death, Foster looked for and found the money, which they took. 12 At the time the Crown accepted the plea of guilty to manslaughter, there was no direct evidence available to it of what went on inside the deceased's house (Ms Foster, who was to be the principal Crown witness, claiming that she had remained outside), and consequently it may not have been able to prove an intention on the part of the prisoner to kill or cause grievous bodily harm. The Crown therefore accepted the plea on the basis that the act of the prisoner in hitting the deceased on the head with a half brick constituted an unlawful and dangerous act, and I sentence him on that basis. I should add that two neighbours of the deceased saw the prisoner and Foster running down the street and were able to give the police descriptions of them, and one of the neighbours took down the number plates on the getaway car, and notwithstanding that the car was stolen these number plates were located by police at the boarding house where the prisoner and Foster were subsequently arrested. Identification of the prisoner as a person involved in the attack on the deceased would not have been a problem. 13 By any standard this was a most despicable killing of another human being, a frail, sick, 80 year old man in bed in his own house killed by an accomplice of his own grand-daughter in order to steal money to purchase illegal drugs to feed their addictions. 14 Not only did it involve the actual killing but also the unlawful entry to the unfortunate man's house, a place where above all else he was entitled to feel secure and at peace. These factors place it in the more serious range of manslaughter cases and denote a very high degree of criminality. On the other hand, I must take into account that the offence of manslaughter does not involve any intention to kill or inflict grievous bodily harm. 15 The prisoner was born on 2 March 1968 so he is now aged 32, and was raised in Queensland. He was the sixth of eight children and comes from an apparently supportive family, all other members of which have pursued worthwhile careers. His father died in 1977 and, according to the Pre-Sentence Report (Ex. J) his mother reported that after she remarried, the prisoner had a good relationship with his stepfather. A very different picture was presented by the prisoner's sister Mrs Voliski, who said that the stepfather was an alcoholic, a compulsive gambler and very violent who "hated every one of us and still does". She also said that their father was also an alcoholic and violent, and he apparently died by drowning after falling from a houseboat. 16 The prisoner suffered from dyslexia and, although he claims an ability to read and understand, he is unable to write. Consequently he only completed part of his secondary education and his only employment has been labouring work. He also has an interest in the mechanical repair of motor vehicles, but because of his illiteracy, lacks any qualifications in that regard. 17 It appears he also sustained some head injury as a 2 year old in a motor vehicle accident and in 1996 he injured his left wrist when he fell from a building at work. He has not worked since. 18 He has been a long time user of illegal drugs and at the time of the offence was addicted to heroin and amphetamines. He was, according to what he told Dr Davies, also using Valium and Normisson. In 1997 he spent time at Cumberland Hospital, Sydney undergoing detoxification for overdoses of opiates, benzodiazepines and amphetamines, and at another stage he was treated for Valium withdrawal. Shortly before the killing of Mr Foster he was an inmate at Wisterea House for drug rehabilitation and it was there that he met the co-offender. He was on a methadone program but also using heroin at the time of the offence. He has a number of convictions in Queensland including break, enter and steal, assault occasioning actual bodily harm, possession of dangerous drug and possession of a nunchuka. This seems to be his first time in gaol since a 3 month sentence imposed in 1986 for car stealing. 19 He has a 12 year old daughter as a result of an earlier relationship long since finished, and he does not know the whereabouts of the child. 20 The prisoner has in the past made a number of unsuccessful attempts to overcome his drug addiction and he claims he has not used any unlawful drugs since being imprisoned and that he is no longer on methadone. He is also seeking assistance within the gaol system with his writing difficulties. 21 Dr Davies noted that he has been treated in gaol for recurrent anxiety and at one point for paranoid ideation, and has been placed in protective custody because of difficulties in coping with crowds. Doctor Davies diagnosed a condition of chronic phobic anxiety with a secondary factor of substance abuse. 22 Having regard to his comparatively minor criminal record and his previous attempts to overcome his addiction, I am satisfied that he has the desire to do so; and that if he can succeed in that regard and particularly if he can obtain help with his reading and writing there is no reason why he should not in time become a useful member of society; but it will require effort and a sense of responsibility on his part. 23 He has pleaded guilty, although not at the earliest opportunity, and expressed his remorse and shame for his actions. He was affected by drugs at the time and also called the ambulance to go to the assistance of the deceased; I have taken all these factors into account. In relation to the plea of guilty I am satisfied that notwithstanding the apparent reservations of the Crown Prosecutor, the Crown case against the accused was a strong one and conviction was inevitable, but I nevertheless give him credit on account of the remorse shown by the plea and for saving the State and the victim's family the cost and ordeal respectively of a trial and I have accordingly reduced the sentence I would otherwise have imposed by 1 year and reduced the non parole period by 6 months. Having regard to the objective criminality involved as detailed above I consider no further discount or reduction to be appropriate. I am not satisfied that any special circumstances exist within the terms of s 44 of the Crimes (Sentencing Procedure) Act 1999. 24 The prisoner has been in custody for this matter since 1 January 1998 and the sentence will be backdated to that date.