R v HYATT [2000] NSWSC 774

New South Wales Supreme Court

CITATION : R v HYATT [2000] NSWSC 774 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70074/98 HEARING DATE(S) : 24/07/00, 25/07/00, 26/07/00, 31/07/00, 01/08/00, 02/08/00, 03/08/00 JUDGMENT DATE : 4 August 2000

PARTIES : REGINA v Isaac James HYATT JUDGMENT OF : Barr J at 1

COUNSEL : Crown: PS Dare Offender: M Hobart SOLICITORS : Crown: SE O'Connor Offender: Mark Klees & Associates CATCHWORDS : Criminal Law - sentencing - manslaughter by unlawful and dangerous act. DECISION : See paragraph 26.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 4 August 2000

70074/98 - REGINA v Isaac James HYATT

JUDGMENT 1 HIS HONOUR: The offender, Isaac James Hyatt, was convicted by a jury of the manslaughter on 23 April 1998 at Cabramatta of Meng Lim Ly. On the day of the death of the deceased, Meng Lim Ly, the offender was an employee at a business in Cabramatta which sold building materials. He had been employed there for about three weeks. The deceased was his supervisor. The offender was a young man of twenty-two years of age. He was not a violent person and had never been in trouble of any kind. He was a good worker and conscientious and wanted to get on in his job. 2 The premises of the business comprised an office or shop fronting the street and a store behind it containing building materials. Persons in the shop could walk through doors into the store. Vehicular access to the store could be obtained via a side lane. 3 The offender's duties included dealing with customers in the shop, receiving orders and quoting prices, recording sales and assisting customers in the store. 4 The deceased had been employed in the business for a much longer time and was well known to the owner, having been associated with him in a previous business. 5 The offender was 192 centimetres tall, healthy and strong. The deceased was thirty-nine years old and 162 centimetres tall. 6 Until the day of the death of the deceased the two men had enjoyed quite a satisfactory working relationship and there was no report of any demonstration of ill feeling between them. Both were even-tempered men. 7 The business opened its doors at about 6am each working day so that it could supply builders who were on their way to work. The offender and the deceased both started work at that time. Not long after work began on 23 April 1998 something happened that caused some tension between the two of them. The offender was attending to one customer on the telephone whilst keeping another waiting at the counter. The deceased thought that approach inappropriate and remonstrated with the offender. He was also apparently irritated because the offender had not yet learned off by heart the code number of an item that the customer required and had to ask about it. Apparently it was necessary to know the code number in order to make a proper record of the sale. The deceased repeatedly spoke to the offender about the matter in the presence of other employees. That was embarrassing and humiliating for the offender and something the deceased said made him think that the deceased would report him to the owner of the business, with the result that he would lose his job. He therefore became very anxious. 8 For an hour or so no words at all passed between the two of them. Then the owner of the business arrived. Some words passed between the owner and the deceased, but as far as the offender could tell, the problem that was concerning him was not mentioned. 9 The deceased's duties ordinarily required him to call on customers of the business and spend the greater part of the day away from the premises. His vehicle was in or adjacent to the store. The deceased walked from the shop into the store and the accused believed that he was about to leave the premises for a substantial time. It did not occur to him that the matter might not have appeared as serious to the deceased as it did to him. He wanted the matter raised in the presence of the owner so as, perhaps, to justify himself and to learn his fate. Accordingly, he followed the deceased into the store. He did not call out and there was no communication between the two of them, and there is no reason to believe that the deceased knew that the offender was following him. 10 From that point onwards, the finding of the facts on which the Court is obliged to sentence the offender becomes more difficult. 11 There are two versions of what happened after the deceased and the offender entered the store. The offender said in his evidence that as he followed the deceased into the store the deceased, with his back to the offender, picked up a billet of wood, turned and advanced on the offender, raised the wood and brought it down between the offender's left shoulder and head. The offender caught the wood in his hands and wrested it from the deceased's grasp. The deceased continued to advance on the offender, however, with his fists clenched and held down near his waist. He fixed the offender with a gaze and the offender thought that the deceased would not stop but would hurt him in some way. In an attempt to stop the progress of the deceased he swung the piece of timber quickly. He did not particularly aim for the head, but the wood connected with the deceased's head and knocked him to the floor. The offender did not intend to cause the deceased really serious injury. 12 One of the customers of the business whom the offender was attending to, Mr Felix Nguyen, said that he was in the store loading plasterboard on his car when he heard a shout. He looked up and saw the offender walking towards the deceased and the deceased walking backwards away from the offender but facing him. The offender swung the wood in an arc, striking the deceased in the head and knocking him to the floor. 13 There were only three issues for the jury. The first was whether the Crown had proved that the offender did not act in self-defence. The second was whether the offender stuck the deceased with the specific intent necessary for murder and the third was, if the jury were not satisfied that the offender had that intent, whether his act was objectively dangerous. 14 There was no real issue about the third question and it was never submitted that a reasonable person in the position of the offender would not have realised that to swing the wood in the manner he did would not entail the risk of serious injury to the deceased. The jury's verdict shows that they were satisfied beyond reasonable doubt that the accused did not act in self-defence but were not satisfied that he intended at least to do the deceased really serious injury. 15 The success of the Crown on the first issue does not necessarily mean that the jury rejected the accused's account. They could have arrived at their verdict because, for example, they thought that the offender had come under attack but responded disproportionately or struck the deceased after the danger was over. Accordingly, counsel for the offender submitted that the Court should find, in accordance with the offender's evidence, that the deceased first attacked him. 16 There are two reasons why I am unable to accept that submission. The first is what I consider the improbability that the deceased would act as the offender says he did. Having said nothing to the offender for more than an hour he left the shop and walked, alone as he must have thought, into the store. He had no reason to believe that the offender would follow him. There was no communication between the two at the time. Even if the deceased had heard or suspected that someone was behind him, I think that he would not have acted as he is said to have acted, because the person behind him could have been the owner or another customer of the business. As it was, the owner followed the two within a few seconds and saw the offender strike the deceased. Nothing about the events that took place an hour earlier makes it appear likely to me that the deceased would have struck at the offender, even if he had known that he was behind him. The circumstances suggest that since he had done nothing about the matter for an hour, had not raised it with the owner and was on his way out of the premises he was unlikely to speak to the offender about the matter again, much less attack him without warning. 17 The second reason is that the version contended for is inconsistent with the evidence of Mr Nguyen, which I accept. Mr Nguyen's evidence was thoroughly tested in cross-examination and although it was shown that he had on occasions given differing accounts on peripheral matters, his evidence on the central event of the attack did not substantially change. He had no interest in the matter, and I regard his evidence as objective and reliable. Of course, he made no claim to having seen how the offender came to have hold of the billet of wood but his description of what he did see is so different from the offender's version that it casts doubt over all of it. 18 I find that the offender followed the deceased into the store, intending to stop him and raise the matter further. The evidence does not enable me to say whether any further oral exchange took place between the offender and the deceased, but I am satisfied that things must then have happened very quickly. Whatever happened caused the offender to lose his temper, seize a piece of wood which was at hand and strike the deceased without further thought. I think that the offender's actions can be explained by the intense anxiety which he had had for the past hour, his frustration and his expectation, which must have been firm by then, that he was going to lose his job. I am satisfied that he did not arm himself before he followed the deceased. Pieces of wood such as the one used lay about the store, where they were used to prop and separate sheets of plasterboard. The offender picked one up because it happened to be there. All his action was carried out in a few seconds of stress and inability to control himself. His anger cooled as quickly as it had boiled up and when he saw what he had done he was appalled. He stayed there for a few moments looking at the deceased and then ran away in a panic. 19 The injuries which resulted to the deceased included a comminuted fracture of the left side of the skull and resulting brain damage on that side and on the opposite side. The evidence of Dr Little shows that moderate force would have been needed to inflict such injuries. The wood used by the offender broke as it came into contact with the deceased, but that fact is of little significance since by all accounts the wood was a poor specimen of timber and likely to break if as little as ten kilograms of pressure were placed upon it. 20 Serious though the injuries were, they were not inconsistent with an intent on the part of the offender to do less than really serious bodily injury. I think that he swung the wood out of frustration and in the heat of the moment without intending to do any particular injury and perhaps without even thinking that the wood would strike the deceased's head. 21 I accept that the offender was a man of prior good character and of gentle disposition and that this offence was entirely out of character. I accept the submission of counsel that if he had had a little more time for contemplation these events would not have happened at all. 22 Consistently with his horror and panic at what he had done, he presented himself to the police station on the following day. That was a measure of his concern about the matter. He has told the Court that he is deeply regretful towards the family of the deceased and is full of remorse. He has prayed for them. I accept what he says about this and I think that the chances of his re-offending are negligible. 23 The offender was arrested when he reported to the police station on the following day and was unable to obtain bail for five weeks. I shall take that period of custody into account. I shall also take into account the effect that the unfortunate history of the trial has had upon the offender. At his first trial the jury were unable to agree and he was put through the suspense of waiting for a second trial. On the second occasion the Court was unable to deal with his case and this has been his second trial and his third fixture for trial. 24 He has never taken alcohol to excess and has not taken illegal drugs. He has been separated from his parents in recent times, since they have moved to live in far north Queensland. He realises that he will have to serve a substantial period of custody and intends to apply to serve his sentence as close as possible to the place where they are living. It will be his first sentence. 25 All these things augur well for his rehabilitation, which I think is well in hand. I think that the young age of the offender and the fact that this is his first prison sentence make it desirable to fix a non-parole period which is less than three-quarters of the term of the sentence I intend to impose. 26 Isaac James Hyatt, I sentence you to imprisonment for five years. The sentence will be taken to have commenced on 2 August 2000 and will expire on 1 August 2005. I fix a non-parole period of two years which will expire on 1 August 2002 and on that day you will be eligible for release on parole. **********