Regina v Towers [2000] NSWSC 420

New South Wales Supreme Court

CITATION : Regina v Towers [2000] NSWSC 420 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70035/98 HEARING DATE(S) : 01/05/2000-03/05/2000; 16/05/2000 JUDGMENT DATE : 18 May 2000

PARTIES : Regina v Kevin Walter Towers JUDGMENT OF : Michael Grove J at 1

COUNSEL : P. Barnett (Crown) J. Booth (Accused) SOLICITORS : S.E. O'Connor, Public Prosecutions Aboriginal Legal Services (Accused) CATCHWORDS : Criminal Law - Sentence - Malicious Wounding - Original Charge of Murder Abandoned - Options LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 DECISION : Good Behaviour Bond in Lieu of Sentence

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

MICHAEL GROVE J

Thursday 18 May 2000

70035/98 REGINA v KEVIN WALTER TOWERS

SENTENCE

1 HIS HONOUR : Kevin Walter Towers appears for sentence on a count of malicious wounding. To wound is to cause an injury involving the cutting of the interior layer of the skin. Provided the wound is of that quality, the offence can lie and it is not requisite that there be any consequence of prescribed or particular seriousness. The offence is indictable and the Crimes Act specifies a maximum penalty of seven years imprisonment, however it is included in the schedule of matters which are to be dealt with summarily unless either the prosecutor or the person charged elects otherwise. If there is no such election, a person convicted faces sentence by a magistrate whose jurisdiction is limited (except in circumstances not applicable here) to imposing no more than two years imprisonment. 2 There is some unusual procedural background in this case and I should mention aspects of it. On 18 January 1998 the prisoner was arrested and charged with the murder of Neville Stuart (Dickie) Edwards. He was committed to stand trial on that charge and a bill of indictment was found accordingly. The trial was scheduled to commence before a jury to be empanelled on Monday 1st May instant. Certain information was supplied to the prosecution towards the end of the preceding week and over the weekend and, in consequence, an indictment was presented containing counts charging murder and, alternatively, malicious wounding. The prisoner pleaded not guilty to murder but guilty to malicious wounding and the Crown accepted that plea in discharge of the indictment including an express understanding that the plea of not guilty to murder included a plea of not guilty to manslaughter. Subject to there being evidence to support the plea of guilty to malicious wounding, it is mandatory to deal with the matter on that basis. 3 It is important therefore to make two observations. First, the conviction in respect of which the prisoner appears for sentence does not involve any assertion of his culpability for the death of Mr Edwards. Second, treating the charge of malicious wounding in isolation as it now must be, it is reasonable to infer and I do infer, that if the bill had not been found for the more serious charge, consideration would have been given to whether the charge should not have been left to be dealt with summarily. It is speculative whether a decision to indict would have been made but the prisoner has lost a real chance that the matter might have been brought before a local court with consequent limit on maximum available penalty. These remarks imply no criticism of the prosecution. It is obvious that the practical and perfectly proper course was to add the alternative count to the original indictment. 4 I do not intend to dwell at length upon the facts. The prisoner, the deceased, and two women engaged in an extended binge of alcohol consumption at premises usually occupied by the two men at Bolton Point. Another man participated in this activity but left after he was separated from his wallet, apparently by one of the women. Nothing in this case turns upon that man's transient presence or loss of his wallet. 5 At some stage the prisoner lost track of the whereabouts of one of the women and neighbours heard him loudly calling for her. There was some exchange of abuse between him and those disturbed by his actions. The other woman called for assistance to resist an alleged sexual advance by Mr Edwards. There are different versions about exactly what was happening or feared to be about to happen but the prisoner intervened. I am satisfied that he used a broken glass, observable in the still and video photography of police crime scene specialists, to cut Mr Edwards. I accept that in the temporal sense of the course of the struggle between the two men, Mr Edwards sustained six stab wounds, two of which damaged vital structures of the body and were contributorily causative of death. The evidence demonstrates that it was not the prisoner who inflicted the stab wounds. As Dr Oettle's testimony affirms, the cuts consistent with being made by an edge of broken glass are entirely distinguishable from stab wounds. I should not, within the ambit of this case, express any conclusion as to who stabbed Mr Edwards and I do not go beyond repeating that the evidence does not establish that it was the prisoner. 6 Obviously much more happened than the prisoner, who has recently supplied a statement to police and given evidence in these proceedings, and the women who were earlier interviewed and gave evidence in the committal, have recounted. It is highly likely that all of their memories are corrupted by the alcoholic haze in which the events occurred and possible that descriptions are also tainted by self interest. Investigation revealed blood deposits over a wide area of the house and elsewhere. No one version or combination of them offers satisfactory explanation for these matters. The prisoner's location of his committing the wounding in the bedroom cannot be sustained. I find it to have occurred in the kitchen area. Further, I do not accept that the prisoner struck only one or two blows with a glass in his hand which broke upon impact. I find that up to seven blows were struck causing the injuries identified by Dr Oettle and that all were struck with a glass already possessing a sharpened edge. 7 I do not perceive anything to be gained by my collating all the inconsistencies and contradictions observable in the evidence. Lest it be thought otherwise, I should mention that the information available to police and prosecution made the original charging of the prisoner with murder quite understandable and it is apparent that it is his recent decision to supply information which has caused reopening of enquiry into that matter. I have viewed a video recording of the futile attempt to conduct an interview with him in January 1998 and it is only now that the prisoner has elected to come forward with explanatory material. 8 In short, I find that the prisoner committed the offence of malicious wounding by inflicting the injuries with the glass above described. The death of Mr Edwards was not caused or contributed to by those injuries but by stab wounds suffered close to or even simultaneously with the attack upon him by the prisoner. There is no evidence that the attack by the prisoner was part of any joint enterprise with a person responsible for the stabbing. 9 I turn to some subjective matters. The plaintiff's intellectual abilities are in the low range of the population. He had little schooling and what he had was essentially ineffective. He shares many of the disadvantages frequently seen to affect those of his aboriginal heritage. His prior record negates the possibility of particular lenience stemming from past good conduct. He has been given the benefit of recognizance; as recently as April 1997 he was released on a charge of assault occasioning actual bodily harm on condition that he be of good behaviour for three years by Moree Local Court. That recognizance was current at the time of this offence. It is an aggravating circumstance. 10 The prisoner has had a series of misfortunes with infidelity by his partners. I can only guess whether his own behaviour might not have contributed to these. Whatever the cause, there are consequences and I detected a deep anguish at his separation from the children of his earliest and relatively long relationship. His former partner has moved elsewhere with the children and entered a new relationship. 11 By January 1998 the prisoner had descended to a pitiful state of existence. Apart from the events of 18 January, his life appeared to revolve around drinking and he had taken to imbibing concoctions based upon methylated spirits. 12 After being charged he was kept in custody until released to bail on 24 November 1998. All of that time, save fourteen days served in respect of offences apparently committed whilst in custody, was served in relation to the charge of murder, to which the Crown has now accepted his plea of not guilty. 13 Upon release to bail he was required to reside with his mother. She gave evidence. She has obviously been a good influence. I was impressed by her testimony and her admirable efforts to care for her family, her children and grandchildren, in financially stretched and other difficult circumstances. The prisoner has been before me on several different days. He is neat and well groomed and his presentation is altogether consistent with his claim that he has not partaken of alcohol for nearly three months. He is an entirely different person from the one visible on the video which I viewed. I accept that his intention for future abstinence is sincere. Only time will tell if he can succeed. It will be a task of some magnitude. 14 From the ages of twelve to sixteen or thereabouts, the prisoner worked as a strapper for a horse trainer, Mr Slade at the Broadmeadow Racecourse. Mr Slade currently has only one horse in work with another, I gather, possibly joining it at the stables shortly. I accept that he will offer the prisoner some work. I consider that it is as important for the plaintiff to be occupied as to be employed if he is to have any chance of achieving his goals. 15 Effectively the prisoner has served over ten months in custody. I take into account that and the loss of a real chance that this matter might have been dealt with in the Local Court with a limitation upon possible custody to two years. Even the imposition of that maximum would ordinarily require the specification of a non parole period and an order for release to parole after eighteen months, thus the prisoner has already served ten of a possible eighteen months if the matter were to be viewed in that light. I also take into account that the prisoner has had a charge of murder which would produce predictable apprehension, pending for over two years. Although that period might have been less if the prisoner had chosen to come forward earlier, I do not consider that what he has undergone should be ignored when, in the event, that most serious charge is not pursued. 16 I do not propose to return the prisoner to custody. 17 Counsel suggested that I should invoke the recently restored power to impose a suspended sentence. However s12 of the Crimes (Sentencing Procedure) Act 1999 provides that the period of suspension cannot exceed the term of sentence subject to an overall maximum period of two years. The necessary accompanying good behaviour bond must also not exceed the term of sentence. I consider that the community and the prisoner will acquire greater potential benefit if the prisoner is subject to a bond for a longer period than any sentence I would add to the ten months already served. I have considered the possible alternatives of community service and periodic detention but have decided that they are not appropriate for the present case. 18 Kevin Walter Towers, for the malicious wounding of Neville Stuart Edwards, in lieu of sentence of imprisonment I direct that you enter a good behaviour bond for a period of three years commencing today 18 May 2000 and expiring on 17 May 2003 upon the following conditions: that you will appear before the Court if called upon to do so at any time during that term; that you are of good behaviour and that you will inform the Deputy Registrar of the Supreme Court at Newcastle of any change in your residential address during the specified term. **********