R v Santos [2001] NSWSC 923

New South Wales Supreme Court

CITATION : R v Santos [2001] NSWSC 923 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70042 of 2001 HEARING DATE(S) : 9 & 11 October 2001 JUDGMENT DATE : 12 October 2001

PARTIES : REGINA v ROBERTO SANTOS JUDGMENT OF : Levine J

W Robinson Q.C. (Crown) COUNSEL : L Flannery (Offender) Office of the Director of Public Prosecutions (Crown) SOLICITORS : Legal Aid (Offender) CATCHWORDS : Sentence - manslaughter - s 23A Crimes Act 1900 - substantial impairment by abnormality of mind LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Blacklidge (unreported, 12 December 1995) R v Connolly [2001] NSWSC 787 CASES CITED : R v Dawney [1999] NSWSC 944 R v Thomson & Houlton [2000] 49 NSWLR 383 R v Veech [2001] NSWSC 68 DECISION : See paragraph 39

[2001] NSWSC 923 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 70042 of 2001

JUSTICE DAVID LEVINE

FRIDAY 12 OCTOBER 2001 REGINA v ROBERTO SANTOS Sentence 1 HIS HONOUR: On 9 October 2001 Roberto Santos was indicted for that he, on 23 October 2000, at Bankstown did murder Paul Gibney. To that indictment the accused pleaded not guilty to murder but guilty to manslaughter, that plea being accepted by the Crown. 2 There is no issue that the plea of guilty to manslaughter was founded in the operation of s 23A of the Crimes Act which provides a partial defence to murder based upon substantial impairment by abnormality of mind in the accused person. 3 A plea of guilty to manslaughter under s 23A is predicated upon the facts otherwise establishing the crime of murder beyond reasonable doubt but permitting the reduction of culpability to that of manslaughter when, on the balance of probabilities, the accused person who would otherwise be guilty of murder establishes that, at the time of the acts causing the death, that person's capacity to understand events or to judge whether his actions were right or wrong or to control himself, were substantially impaired by an abnormality of mind arising from an underlying condition and the impairment was so substantial as to warrant liability for murder being so reduced. Underlying condition means a pre-existing mental or physiological condition other than a condition of a transitory kind. 4 The offender stabbed the deceased 21 times, some of the stab wounds being compression wounds, that is requiring compression against the deceased's body in order for the blade to penetrate to the depth it did. 5 About four months prior to the events that occurred at Bankstown on 23 October the offender and his wife had separated and at about 4.40pm on the day he approached his wife at the Compass Centre car park wanting to know the real truth about her relationship with the deceased. In the material placed before me it points to a response from the offender's wife that the deceased was but a friend. 6 The offender and Ms Ramos waited for a while and went through the car park to permit her to buy a drink. He saw the deceased and walked over to him and asked, "What's the truth, what's the relationship with my wife?" to which the material points to the deceased replying, "I don't have nothing to do with you guys, this is your problem". Thereupon the offender punched the deceased who was knocked backwards and who thereafter tried to defend himself; both men then wrestled. The offender then produced a knife, opened it and repeatedly stabbed the victim in his head and body. The deceased began moving back from the offender's stabbing motions, the offender moved in towards the deceased, grabbed his clothing with his left hand and continued to stab him. The deceased gradually subsided in the process of defending himself whereupon the offender followed him to the ground still stabbing him whilst kneeling over him. The action was brought to an end by the arrival of two police officers. 7 As to the knife, it was one I accept in favour of the offender which he used for work and other innocent purposes. In the circumstances, however, it is to be noted particularly that he took the knife from his pocket, opened the blade, was seen to open it, and then employed it in the manner to which I have referred. The eye-witness accounts, particularly of Mr Petrov, Mr Chaloub and Mr Phan, tellingly describe the "unrelenting" violence of the use by the offender of the knife on his victim, the position of the offender and the victim to which I have referred, and for example, according to Mr Maietta, the changing of the grip on the knife and the direction of the blows. The "frenzied" nature of the attack was eloquently described by Mr Chaloub when he said that the offender was stabbing the deceased "like a maniac and would not stop". 8 The event occurred, as I have said, during a period of estrangement between the offender and his wife and in circumstances where this approach by the offender to his wife to inquire as to the true situation, I am satisfied, more probably than not led to a state of at least uncertainty in the offender's mind as to the veracity of his wife's response. 9 Be that as it may, for present purposes, the short recitation of the events in that car park satisfy me beyond reasonable doubt that the ingredients for the charge of murder are established and that the action of the offender in grabbing hold of the clothes of the deceased and then continuing to stab him and then kneel across him whilst the deceased was down, are consistent with an intention to kill formed when control was lost. 10 I make this finding as to the intent in the circumstances that, for the offender it was expressly submitted that I should find intention to cause grievous bodily harm, and for the Crown that I should find intent to kill. Unless the Crown case on murder was expressly left to the jury on one or other of the intent components, in the normal course it might not be known on what basis, if left as alternatives, the finding of guilty of murder by a jury was in that regard based. 11 The crime of murder is found upon the jury's verdict, though on sentence even in those situations the issue could arise. Otherwise on a plea this aspect has, for example, not been decided by Dowd J in Regina v Connolly [2001] NSWSC 787, and on the other in fact decided by Barr J in Regina v Dawney [1999] NSWSC 944. 12 The objective gravity arises further from the circumstances, as I set them out, of the killing which but for s 23A would be murder. 13 I am unable to accept the submission for the offender, leaving aside the s 23A component, that the objective criminality of the homicide was not high. Viewed objectively I find it to be of much significance that the knife was taken out, innocent otherwise though its possession was, the blade unfolded and that it was used in the manner I have described. The deceased was held in the manner I have described and the offender knelt over him, whilst the deceased was obviously disabled, and continued to attack. 14 In the course of her submissions the Crown Prosecutor submitted that the evidence in relation to a prior meeting during the course of the Olympic Games, about one month before the date of the homicide, points to the offender having "stalked" his wife. I am not persuaded that one event in the context of a three month or so separation, and what I am satisfied to have been uncertainty in the offender's mind as to the nature of the relationship between his wife and the deceased, warrants such a sinister description, even if there is some suggestion that he had otherwise been watching them. Nonetheless, the objective circumstances of the homicide are grave, in my view. 15 The evidence in support of those matters to which I have referred as provided for by s 23A is probative to the required level of probabilities in the reports of Dr Rosalie Wilcox and Dr William Lucas and that of the clinical forensic psychologist, Mr Taylor. In brief it is quite clear that in 1991 the offender suffered brain damage as a result of an accident, cognitive deficit and, at the relevant time, depression, behavioural changes in him having been noted not by any medical advisers after his discharge from hospital in 1991 but by others who knew him. 16 I am satisfied on the balance of probabilities that the offender at the time of the act was wanting in the capacity to understand events and to control himself by reason of substantial impairment by an abnormality of mind arising from the underlying condition of first, depression and second, the sequelae of the brain damage. Those conditions were pre-existing and were not of a transitory kind. 17 Dr Wilcox in her report of 20 September 2001 diagnosed: "From the information I obtained from Mr Santos and from collaborative information provided by Antonio Sadsad and Bermah Deguzman I believe that as a result of the significant head injury Mr Santos has become more anxious, irritable and obsessional. He would probably fulfil the criteria for a personality change due to a general medical condition (closed head injury). In addition he would fulfil the criteria for a cognitive disorder not otherwise specified as he has some cognitive impairment, however his impairment is not severe enough to meet the criteria for dementia or an amnestic disorder.