Regina v Waterman [2002] NSWSC 1236

New South Wales Supreme Court

CITATION : Regina v Waterman [2002] NSWSC 1236 FILE NUMBER(S) : SC 70212/01 HEARING DATE(S) : 02/05/02; 03/05/02; 06/05/02; 07/05/02; 08/05/02; 09/05/02; 13/05/02; 14/05/02; 15/05/02; 16/05/02; 17/05/02; 20/05/02; 21/05/02; 22/05/02; 20/09/02; 25/10/02; 18/12/02 JUDGMENT DATE : 18 December 2002

PARTIES : Regina Wesley Patric Waterman JUDGMENT OF : Hidden J at 1

COUNSEL : B Smith - Crown P Hamill - Offender SOLICITORS : SE O'Connor - Crown Brenda Duchen - Offender CATCHWORDS : CRIMINAL LAW: Sentence - manslaughter - unlawful and dangerous act. DECISION : See para 19

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

18 December, 2002

70212/01 – REGINA v Wesley Patric WATERMAN

SENTENCE 1 HIS HONOUR: The offender, Wesley Patric Waterman, was tried upon an indictment charging him with the murder of Anthony Alexander Costello at Woolloomooloo on 11 November, 2000. The jury found him guilty of manslaughter. He committed the offence in the company of a co-offender, Jerome William Leyman. Mr Leyman was also charged with murder, but his plea of guilty to manslaughter was accepted by the Crown prosecutor in discharge of that indictment.

Facts 2 At the relevant time the offender was living with his parents in Charles Street, Woolloomooloo. Mr Leyman lived nearby in Forbes Street. During the evening of Friday, 10 November, 2000 a number of homeless men, including the deceased, who was forty one years old, took up positions to sleep for the night on the steps of a building roughly opposite Mr Leyman's house. 3 Mr Leyman was at home, drinking with friends. In the small hours of the following morning, Saturday, 11 November, 2000, people in the house were talking loudly and disturbing the sleep of the homeless men outside. Some of those men protested, demanding that the noise cease or they would call the police. Mr Leyman came out of his home, carrying a broomstick. He prodded a number of the men with the stick, including the deceased, and ordered them to leave the area. The deceased said that he was not leaving. Mr Leyman attempted to strike him with the stick, but the deceased seized it from him and struck him on the nose, causing it to bleed. 4 Mr Leyman ran back to his home. A number of the homeless men stood outside his house, swearing at him and demanding that he come outside, but after a while they settled down. He rang the offender and told him what had happened. 5 The offender left his home in Charles Street, armed with a knife, and ran to where the men were. He demanded to know who had assaulted his friend. He then went to Mr Leyman's home, and the two of them emerged and walked towards the men. Mr Leyman pointed out the deceased as the man who had struck him. 6 There is a conflict in the evidence about what then occurred. What is clear is that the deceased sustained one stab wound to the chest, which was fatal. What is not clear is exactly how that happened. Manslaughter was left to the jury on two bases: either that the offender deliberately stabbed the deceased but without the intent requisite for murder, or that he menaced the deceased with the knife and the deceased lunged towards him, impaling himself upon it. For the purpose of sentence, the Crown prosecutor contended that I should find that the stabbing was a deliberate act by the offender, a proposition supported by the evidence of some of the homeless men. Mr Hamill, for the offender, argued that I should sentence on the basis that the deceased had impaled himself upon the knife, a view consistent with the evidence of a witness, Ms Tracy Conklin, whom both counsel accepted as reliable. 7 It is unnecessary to go to the detail of the evidence. It is sufficient to say that I cannot be satisfied beyond reasonable doubt that the wound was the result of a deliberate stabbing and I propose to sentence upon the basis propounded by Mr Hamill. Nevertheless, it is common ground that, when the deceased suffered the wound and fell to the ground, both the offender and Mr Leyman kicked him. They then ran back to Mr Leyman's house. The deceased died later that day at St Vincents Hospital. 8 The offender was charged several days later, when he attended Kings Cross Police Station with a solicitor. He declined to be interviewed and he did not give evidence at his trial. It is clear from the evidence in the Crown case that he was intoxicated at the relevant time. The knife which he had was one which his mother had left near the front door of their home for protection, because there had been a violent incident involving a number of youths at the back of the house some months before and her husband was frequently away. Not surprisingly, in view of what happened, she said in evidence, "I rue the day I ever put it there." 9 The incident must be understood against a background of tension created by the presence of a large number of homeless people in the area. Mrs Waterman, who was sympathetic to the problems of those people, explained that residents were regularly harassed, stood over for money or even assaulted by some of them. The situation became worse when the demand for police during the Sydney Olympics significantly reduced police presence in the area.