New South Wales Supreme Court CITATION : REGINA v. WILLOUGHBY [2001] NSWSC 1015 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70082 of 1999 HEARING DATE(S) : 25/9/01; 15/10/01 - 18/10/01; 9/11/01 JUDGMENT DATE : 9 November 2001 PARTIES : REGINA v. WILLOUGHBY, Leyton Terence Matthew JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: P. Miller Offender: W. Terracini SC./G. Newton SOLICITORS : Crown: S.E. O'Connor Offender: Legal Aid Commission CATCHWORDS : Criminal law - sentence - manslaughter - plea of guilty - excessive response to irrationally perceived threat of theft - no intent to cause other than transient injury - subjective circumstances. LEGISLATION CITED : N/A CASES CITED : Previtera (1998) 94 A. Crim. R. 76 Thompson & Houlton (2000) 115 A. Crim. R. 104 DECISION : Imprisonment for six years and nine months with a non-parole period of three years and nine months. That sentence is to date from 18 October 2001. The earliest date on which the offender is eligible for release on parole is 17 July 2005. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70082 of 1999 GREG JAMES, J. FRIDAY 9 NOVEMBER 2001 REGINA v. LEYTON TERENCE MATTHEW WILLOUGHBY SENTENCE 1 HIS HONOUR: The offender, Leyton Terence Willoughby, has pleaded guilty before me to the manslaughter of Donald Francis Lewis. That plea was entered following a voir dire in which evidence was given on the question of whether or not his de facto spouse should be compelled to give evidence in the Crown case. 2 During that voir dire, I was able to form an assessment of his spouse and of her family circumstances as they related to the offender. Suffice it to say that what I then observed and heard gives some considerable support to some observations that were tendered in evidence before me by way of a report and the oral evidence of Mr. Kesby-Smith, clinical psychologist, and in particular as concerning the pressures on the offender in and about the time at which he committed his crime. 3 An agreed statement of facts has been tendered. That statement of facts sets out the observations, such as they were, of various witnesses as to what occurred. It does not express those inevitable conclusions that had to follow if one were to be concerned, as I must be, to find the facts fully. 4 The offender killed his victim more or less outside the flat in which he lived in Rochester Street, Botany, with the young woman who was his de facto. The deceased had been chased from immediately outside those premises into and along Rochester Street to a point at which he met his death. There was evidence available in the trial, and which is agreed in the statement of facts, that at the point at which he was observed by a witness, Mr. Smith, the deceased was sitting on the roadway with his hands held in a defensive manner when the offender punched him several times saying as he did so, "why did you fucking steal from me?". The deceased denied stealing anything. There were a number of such exchanges. 5 The offender kicked the deceased, apparently from about waist height, in the area of the face, either the foot or shin striking the deceased in a pretty hard kick. The deceased was kicked on the head a number of times. Again, the offender referred to what was apparently his belief that the deceased was stealing from him. At the end of this exchange, the accused stomped on the deceased's stomach. 6 Another person attended the scene and was informed by the offender that he had caught the deceased in the act of stealing. The second man tried to assist the deceased. The offender abused the deceased, but that apparently for the purpose of trying to get the deceased to stand up, indicating at least that the offender did not consider at that time that the deceased was seriously injured. 7 He lay there, however, while the offender and the other man left the scene. The other man said to the offender words to the effect of "we can't leave him there". They returned and tried to persuade the deceased to get up. 8 At about that time the offender rang directory enquiries seeking the number of the local police station, presumably for the purpose of reporting the theft, or for the purpose of reporting the condition of the deceased. Whatever be his intention, he did not carry that through because no other call was then monitored from that mobile phone, although that call was traced. A short time later, Mr. Smith saw the other man trying to get the deceased to his feet and to assist him. Liquid was poured onto his face but the second man left turning around as he did so. 9 Apparently what had happened was that the offender had inflicted upon the deceased a death dealing tear to his mesentery and after the deceased was left in the location observed by Mr. Smith by the offender and the other man, he proceeded somehow or other across the road to the rear of a motor car over which he fell as he died. 10 The immediate cause of death was the bleeding associated with the lacerated mesentery. The deceased may have been heard to be vomiting outside the premises in Rochester Street in the early hours of the morning. A witness testified to some such event occurring but when she went outside to try to identify who it might be was unable to see anyone to whom she could attribute that noise. 11 The medical pathologist observed lacerations to the head, the ear, the legs and the lip of the deceased, consistent with having been sustained in the altercation. There were other areas of abrasion consistent with the deceased falling on the car to which I have referred. 12 Shortly after this event, police officers spoke to the offender who gave them the false story that he had not been at home but had been at his parents' place. 13 It is not known how the deceased came to be in the vicinity in the early hours of that morning. However, there is nothing to suggest that he was in fact stealing or concerned in any nefarious activity at all, whether in relation to the offender's home, car or other property. 14 In the month following the death of the deceased, the offender had told his employer that he had confronted a prowler or thief looking in his window and had chased the man away. 15 The offender is some 26 years of age. He has no prior record. What he did that night was an extended serious assault culminating in a vicious series of acts of which probably the stomping caused the deceased's death. He may have had, and all the evidence suggests that he did have, a belief, genuinely held, though not reasonably formed, that the deceased was somehow involved in something nefarious towards him or his property, but what he did well exceeded any sensible, much less lawful, response in that he beat the deceased, pursued him and savagely and viciously assaulted him causing his death. 16 It does not seem, however, that he ever considered he might be doing serious injury to the deceased. It was on that basis that the plea of not guilty to murder, an offence which would have required the Crown to prove beyond reasonable doubt either that he intended to kill the deceased or that he intended to inflict on him really serious bodily harm or that knowing of the likelihood of causing death he went ahead with the assault anyway, was accepted. The basis of the charge of manslaughter and acceptance of the plea to it is that the deceased died as a result of the offender's unlawful and objectively dangerous act; that is, that the act he did causing the death was one which any reasonable person would have realised posed a real risk to the life and well-being of the deceased but which he the offender did not himself realise put the deceased at risk of death. The facts of this case show that this is a serious manslaughter. 17 In a statement made to the psychologist, to whose report I have already referred, the offender suggested that when he had initially confronted the deceased, the deceased struck him on the jaw. If such a thing occurred, it may well have occurred in circumstances in which the deceased was merely trying to protect himself against what he might have perceived as some attack upon him. The pathologist report shows that the deceased was quite intoxicated at the time. 18 The statement of the offender to the psychologist contained in the report admitted by consent and in respect of which the psychologist was cross-examined was that the offender had certainly suffered that evening the effects of severe emotional stress engendered by the tensions between himself and his own family and himself and his spouse and her family, consequent on her having provided the news of her pregnancy shortly beforehand, and in circumstances where both families plainly applied to this accused the most severe emotional pressure. 19 What he had done in consequence was to take marijuana, which he had been using for many years to a considerable extent and particularly since he had suffered a severe back condition some considerable time beforehand, alcohol, and later a tab of LSD. It may be that he was having a bad trip, it may be that he was not. It may have been that at the time of these events, whatever the effect of the LSD upon him was, it was waning. Nonetheless, his perceptions of what was going on may well have been appallingly flawed. 20 The Crown submissions are prepared to accept the possibility that on his part there was a grave misunderstanding of the conduct of the deceased. I am not prepared to find as a matter of fact that the deceased did strike him. I am not prepared to find as a matter of fact that the deceased had in fact given him any cause at all to believe that there was any nefarious purpose or aggression on the deceased's part. But I am not prepared to find as a matter of fact that the offender did not honestly and genuinely believe there was some occasion calling at least for the initial response. I am not prepared to accept he had any basis for going as far as he did beyond the initial confrontation, and certainly not any basis for stomping on the deceased the way he did. 21 All of that said, however, there is dramatic material contained in the report by the psychologist to suggest that notwithstanding his quite serious family difficulties, to which he had not contributed, and the quite serious domestic difficulties occasioned by his relationship with his wife and her family, that this offender had developed quite severe tensions and depression, had reached the point of feeling entirely entrapped in a situation that he could see no way out of and had resorted to the drugs as a method of temporary escape, that is, the drugs he took on the night, rather than the marijuana he had been using for years. 22 It appears that he remained in his car outside his home until the effects of the LSD were waning, and it was during that point of time by the most appalling coincidence early in the morning in darkness that Mr. Lewis came by. At that time, the offender conceived the idea, almost certainly as a gross misunderstanding, that the deceased had some nefarious role and that the deceased was somehow a threat. This has been, on the part of the offender, an appalling chapter of misunderstandings, if one accepts the proposition that there was a misunderstanding. It has caused him to take one life and to ruin another, his own. 23 He has denied the murder charge, he says, because he at no time intended to kill the deceased. 24 He has expressed to the psychologist the state of terror in which he was thereafter and in which he remained for some years. Indeed, the report suggests that he still remains in terror in gaol. It is to his credit that he has been deeply concerned for the welfare of his child in his absence in particular having regard to the attitudes of the two families and that of his de facto spouse. The psychiatrist described suicidal thoughts and a concern for his mother and his child. In gaol he asserts he has been stood over several times and strongly victimised. 25 He has become immensely concerned at his failure to be able to act as a father because of his incarceration. Over and above that, he has attempted to express contrition and remorse, indeed making an offer after these years to apologise to the family of the deceased. It is not at all surprising that they reject that apology now after all this time and that they assert they cannot see it as any adequate expression of contrition or expression of contrition at all. 26 On the other hand, it is the totality of the evidence of the psychologist, and it is consistent with what has been seen in court, that he has been in a state of rather severe fright at his fate and concerned at the families' position for now over three years. I accept that he burst into tears continuously throughout the interview. I accept that part of that is due to his own feelings of fright and entrapment, as well as some sorrow at what he has done to another. I do not regard, however, his expressions to the psychologist as unalloyed expressions of contrition and remorse. 27 He suffers, as I have said, from a back condition which seriously limits his flexion and which gives him some degree of pain. It is apparent that that is a matter that will need to be taken into account both as affecting how more onerous the sentence might be for him and his work prospects and rehabilitation prospects on release. 28 He will have to live with his parents, presumably, and his mother has, without any fault of hers, circumstances that make it difficult for her to be able to be of support to him. The report does not suggest he would be likely to receive over much assistance from his sisters or father. Indeed, the report, which is confirmed in this respect by a matter that arose during the trial, suggests that rather than he receiving support, it has been he who has provided for his father and family substantially, including in particular by passing over the whole of his compensation from the motor vehicle accident to try to preserve his father's business. Unfortunately, the money does not seem to have been used for that purpose and he has not had the benefit of any of it. 29 He does seem to have the motivation to go into various kinds of employment and it seems as though he has concern, as I have said, for his mother and daughter, which is estimable. But he is a person who patently has a personality defect that has led to the depression that the psychologist referred to in evidence before me and which appears to have contributed to the context for the offence. 30 It is, not surprisingly, noted in the report that the offender expressed high levels of unhappiness and depression at his domestic situation and at his personal situation, as well as at being unable to work as he might wish because of his back. 31 I believe his protestation contained in the report that he did not intend seriously to wound or to kill the deceased. It is apparent that the plea to manslaughter being accepted in discharge of the indictment for murder means that that fact is accepted by the Crown also, but I find he could not have failed to envisage that the actions that he performed would have caused some considerable harm and pain to the deceased. 32 Indeed, his account accepts that he was seeking to punish the deceased but did not want him to die. He says that he is unbelievably sorry. 33 Whilst in gaol, he has apparently experienced deep unhappiness and a deep sense of remorse. Although he has not, while on remand, obtained counselling, he has spent a considerable time with the chaplain, although he has not, he says, sought to embark on a flight into religion. He sought, however, to find some consolation from the concept of a forgiving God. Such a concept indicates that he is aware of the degree of his sin. 34 The psychologist suggested that his background history provided the basis for considering that this is a man whose condition is a psychologically complex one. He was apparently, in his infancy, treated with much anger and substantial physical violence, for minor matters or, indeed, undeserved matters and that his treatment within his own family was such to take advantage of him rather than to support him. He became marked by a strong sense of personal inadequacy and it was that that caused him to turn to cars, marijuana and to be unable to cope with the pregnancy of his wife and the animosity and threats from her family. 35 The psychiatrist has expressed the view that he has a dependent personality, which is unable to cope with deep emotional difficulties. That would seem entirely consistent. 36 His parents' health is, at the moment, of deep concern to him and he is attempting to repair the alienation that he had from his father. The psychiatrist expresses the view that he is in very strong need of ongoing and intensive therapy. He has apparently grieved for himself, his family, the deceased and the deceased's family. It is suggested that, without therapeutic intervention, there is not so much a risk of further offending as further depression and possibly suicidal behaviour. 37 I recommend that during his time in custody, he be afforded such psychiatric or psychological assistance as can be provided to him in order to deal with the problems referred to in the report and that a copy of these remarks and the report be provided to the Corrective Services authorities. 38 The report concludes with looking at his prognosis. It indicates that, in the event that his parents die before he is released, he is likely to become seriously depressed and that he is likely to experience a breakdown of his emotional relationships. In particular, action on the recommendation I have made should have regard to any such event as that producing a result which would cause him to suffer the consequence the psychologist refers to. I also have regard to these matters as affecting the effect of the sentence on him as more onerous than it might otherwise be. 39 I have already, when they were tendered to me, treated the victims impact statements I have received in accordance with the law and made such comment as is appropriate having regard to the decision of the Court of Criminal Appeal in Regina v. Previtera (1998) 94 A. Crim. R. 76 on them. 40 I have regard to the Crown's submissions and, in particular, to that aspect of the Crown's submissions which emphasises that every case of homicide, including manslaughter, involves the unlawful death of a human being and, as a consequence, such cases are to be treated by the courts as most serious. The court is required to give consideration to a sentence which will reflect the objective culpability of what the offender has done which will denounce the crime, which will, so far as is consistent with a particular case, deter the offender and operate to deter others from committing such crimes. 41 In this case, bearing in mind the concatenation of circumstances that unfortunately led to the death of the deceased, there is a most limited role for general deterrent to play. Although there is some role for specific deterrent, I do not find there is any likelihood that the offender would re-offend if he is properly treated whilst in custody. 42 However, he must be sentenced to a punishment appropriate to the crime. Nonetheless, the law mitigates the sentence that would otherwise be appropriate for objective criminality of this sort by having regard to the particular circumstances of the offender and how it was the offender came to commit the crime. 43 It is necessary one has regard for the offender's surrounding circumstances, particularly when it comes to considering the important matter on sentence of protection of the community to ascertain whether the offender is a person of whom there may be real prospect for rehabilitation and for one to have regard to the subjective circumstances of the offender which are set out in the report from Mr. Kesby-Smith when ascertaining what it was that moved him in the circumstances in which he was then placed to do the dreadful thing he did. 44 In manslaughter, of all crimes, there is the widest of possible ranges of penalty, stretching from a maximum penalty of 25 years imprisonment down. Courts have remarked on the broad range of circumstances that can give rise to the commission of a crime of unintended killing, which is what this offender has committed. It is never possible to compare individual cases such as to be able to extract a direct correspondence of sentence so that the relevant sentence will precisely accord with that passed in some other case. The role of a sentencing judge is to sentence according to law and to pass a sentence having regard to that range of sentences judges have produced when considering crimes of the same nature, same general nature, such that one can ascertain that the sentence will fit with the general range of sentences approved by the courts. 45 In that regard, the Crown has provided to me a survey of some cases. There has been some debate concerning their appropriateness to allow a range to be fixed. I have, in addition, provided to counsel for the purpose of their assisting me with submissions two decisions, which it seemed to me might, on a proper calculation of how sentence might be made up, rather accord with the effect of the submission made by the Crown concerning the appropriate sentence. 46 The sentence here should date from the time at which the accused returned to custody on his plea, that being 18 October 2001. 47 The sentence should reflect a discount on consideration of the offender's plea which, in all the circumstances, having regard to the fact that until that date he was charged with murder, in accordance with Regina v. Thompson & Houlton (2000) 115 A. Crim. R. 104, should fall within the range of 10 to 25%. The figure that I would allow, having regard to the necessity for the previous trial and the utility of the plea, is 15%. 48 I find, as I have said, some degree of contrition. I find in addition to that that the sentence that should be imposed should reflect the 11 months in custody that the accused had spent and should have some reflection of the period of one year and 11 months, which the accused had spent on conditional but limited liberty. I have regard to that period as being somewhat more onerous than it would otherwise have been since he was, during that time, under the threat of being found guilty of murder. 49 In those circumstances, it is incumbent to give consideration to the level of sentence I would have imposed absent those matters and I consider that a head sentence of some nine years would have been appropriate but, having regard to those matters, would impose a head sentence of six years nine months and, finding special circumstances as I do, constituted by his youth, by the appalling tensions upon him which caused him to develop the conditions under which he committed this crime, in particular the depression and the resort to drugs, and conscious that he will require an extended period of supervision, would impose a non-parole period of three years nine months. That allows for an extended parole period of three years during which he may not be released and may remain in custody unless the Parole Board consider that his release during that period is appropriate. 50 Mr. Willoughby, would you please rise. You are sentenced to imprisonment for six years and nine months with a non-parole period of three years and nine months. 51 I am required by the Act to explain to you your release date. You will not be released prior to 17 July 2005 and unless released by application of parole, will be required to serve your sentence until the conclusion of the six years and nine months to which I have referred. ******** Last Modified: 11/13/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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