R v Katarzynski [2002] NSWSC 924

New South Wales Supreme Court

CITATION : R v Katarzynski [2002] NSWSC 924 FILE NUMBER(S) : SC 70013/02 HEARING DATE(S) : 27/09/2002 JUDGMENT DATE : 3 October 2002

PARTIES : Regina v Kirstain William Katarzynski JUDGMENT OF : Howie J at 1

COUNSEL : A. Zeid - Crown M. Rumore - Accused SOLICITORS : S.E. O'Connor - Crown Mark Rumore, Solicitor - Accused CATCHWORDS : Criminal Law - Sentence for conviction of murder DECISION : The offender is sentenced to imprisonment for 24 years to date from 6 April 2001. There is to be a non-parole period of 18 years from the same date. The offender is eligible to be released to parole on 5 April 2019.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HOWIE J

THURSDAY 3 OCTOBER 2002

70013/02 REGINA v Kirstain William KATARZYNSKI

SENTENCE 1 HIS HONOUR: On 24 June 2002 the offender was indicted on a charge that on 6 April 2001 at Liverpool he did murder Benjamin Skye Hillier. He pleaded not guilty but on 10 July 2002 a jury returned a verdict of guilty of murder and the offender is now to be sentenced for that offence. 2 The evidence before the jury was of a relatively short compass and the dispute between the Crown and the offender was a narrow one. There were a number of issues raised for the jury's consideration by reason of the intoxicated state of the offender at the time of the commission of the offence and the circumstances leading up to the killing of the deceased. However, the jury's verdict, in my view, has the result that there is now little dispute as to the facts they must have found in order to arrive at the decision that the offender was guilty of murder. That is because I believe that had the jury found that the version given by the offender was possibly true, they could not have convicted him of that offence. Accordingly, there is little need for me to determine the facts for the purposes of sentencing the offender. 3 On the evening preceding the shooting the offender had been drinking alcohol at the Collingwood Hotel, Liverpool. During the evening he became friendly with a number of persons earlier unknown to him including Mr Fabian, a witness who gave evidence at the trial. In the early hours of 6 April his brother, Paul Katar, joined the offender at the hotel. By about 2 am, when the deceased and the offender first came into conflict, the offender was heavily intoxicated. He later told police that he had drunk somewhere between 10 to 20 drinks of Bourbon and coke. Another witness, who had been in his company through the evening, indicated that the number of drinks consumed by the offender was between 15 and 20. 4 The deceased was also drinking at the hotel, having gone there after he had completed work. He was in the company of his brother who had been at the hotel for some hours and was well intoxicated at the time of the incidents that gave rise to the killing of the deceased. Also present at the hotel was the deceased's aunty, Ms Vicki Buggy. At some stage Ms Buggy walked through the public bar and passed the table where the offender and his group were sitting. The offender had been making comments to his companions about females as they passed by. On this occasion he made some comment of an indecent nature concerning Ms Buggy. 5 The deceased became aware of this incident and took offence. He confronted the offender and his group in the public bar and berated them for their conduct. During the course of his haranguing of the offender, he threatened violence to both him and members of his group. However, the deceased's fury subsided and he made some remark that the intoxicated state of the offender was probably the cause of his bad behaviour. There was evidence that towards the end of this confrontation the deceased had attempted to shake the offender's hands but the offender had declined the offer. 6 This incident passed without any actual violence being used by any of the persons involved. The deceased then rejoined his brother and the offender left the hotel for a short period. 7 When the offender returned to the hotel he went with his brother into the gaming room as the public bar had closed. They sat talking to each other against one of the walls of the gaming room about the earlier incident when again the deceased approached them. For some reason his anger with the offender had been reignited. The deceased violently pushed the offender or head-butted him against the hotel wall. Further violence between the two was avoided when bouncers intervened and restrained the deceased. The offender then left the hotel. 8 The most significant dispute in the trial concerned what happened thereafter. An important witness in the Crown case was one of the bouncers at the hotel, Mr Siofele. His account was as follows. As the offender left through the hotel door into the car park, he made a beckoning signal with his hand towards the deceased who, when he had finished his drink, followed the offender outside into the car park. Mr Siofele immediately followed the deceased out of the hotel sensing that there may be more trouble between the two. When he got outside he saw the offender at the corner of the hotel near the Hume Highway again beckon to the deceased. He also heard the offender whistle to attract the deceased's attention. The offender then disappeared around the corner. The deceased walked toward the corner of the hotel where the offender had been and when he reached that spot, there were three shots fired one after the other. The deceased doubled over, holding his stomach. 9 The deceased then returned to the public bar inside the hotel and collapsed to the floor. Despite attempts by persons then present to assist him, the deceased was mortally wounded and he died before arriving at the hospital. 10 The offender strenuously disputed the account given by Mr Siofele. It was put to the witness by his counsel that his evidence of seeing the offender beckon to the deceased both at the door of the hotel and at the corner of the car park was untrue and had been fabricated by him. It was also put to him that he had made up his evidence of hearing a whistle from the corner of the hotel as he had never given this account before. 11 The offender's version given both to the police and in evidence at the trial was that, after he was assaulted by the deceased in the gaming room, he decided to walk to his home a short distance from the hotel. This was despite the fact that he had driven his brother's motor vehicle to the hotel and that his brother had ridden a motorbike there intending to exchange the bike for the motor vehicle. The offender's version was that after he rounded the corner of the hotel and walked down the Hume Highway for a short distance toward his home, he realised that his brother was not with him and was still at the hotel. Being concerned for his brother's safety, he turned around to return to the hotel. He was then suddenly confronted by the deceased a few paces from the corner of the hotel. The offender said that he then drew from his waist belt a loaded revolver, which he had purchased earlier that night. At the same time he told the deceased to, "Fuck off". 12 The offender's evidence was that he was holding the weapon at about waist height, pointed across his body and towards the ground. The deceased then lunged towards him with his arms outstretched. The offender moved backwards and, at the same time, he flinched causing the gun to discharge. He told both the police and the jury that he did not mean to shoot the weapon and certainly had no intention of using it to injure the deceased. 13 Three shots were fired each of which struck the deceased in the torso. One of the bullets entered the deceased's back and penetrated his heart causing his death. Neither of the other two shots were life threatening, one passing through the deceased's genital area and the other entered his shoulder lodging beneath the opposite armpit. 14 Dr Little who performed the autopsy on the deceased was unable to indicate the order in which the three injuries were inflicted. However, it seems to me that the most likely scenario is that the first shot fired was that which entered the front of the deceased in the area of his genitals and that the other two shots were fired rapidly thereafter, entering the deceased's body as he turned away from the offender and crouched over as a result of the first injury. If this is so it is likely that it was the third shot fired that killed the deceased. 15 On the version given by the offender, the issue arose as to whether the discharge of the revolver was a voluntary act. Clearly by finding the offender guilty of murder, the jury were satisfied beyond reasonable doubt that he deliberately discharged the revolver. In light of the fact that the offender intentionally presented a loaded weapon towards the deceased and that three shots were fired from the weapon into his body, the jury's finding is unsurprising. I am satisfied beyond reasonable doubt that the offender deliberately pulled the trigger on each of the three occasions that the weapon discharged. 16 The substantial issues raised for the jury's determination were whether it was reasonably possible that the offender discharged the weapon in self-defence and, if not, was it reasonably possible that he was provoked by the conduct of the deceased to the degree which would justify a verdict of manslaughter. By its verdict, the jury must have determined both of those issues adversely to the offender. In my view that was the only finding reasonably open to the jury on the evidence before them. 17 The offender told both the police and the jury that he had come into possession of the revolver for the first time earlier that evening at the hotel. He maintained that he had purchased it for $350 from a person whom he had met that evening. He said that he obtained the weapon because he knew someone who lived on a farm, who had indicated that he wished to obtain a gun and to whom the offender owed a number of favours. The offender told the jury that he knew, when he purchased the weapon, that it was loaded as he had seen bullets in the chamber but he was not aware if it had an operative safety catch. 18 This unlikely version became incredible when the offender explained what he then did with the weapon. Notwithstanding that on his account he had purchased the revolver in the car park in close proximity to the vehicle he had driven there, he said that he placed the loaded weapon into the front waistband of his trousers as he re-entered the hotel after completing the purchase. There the weapon remained throughout the rest of the evening including the time when the offender was engaged in playing pool. He said that he never told anybody, not even his brother, that he had the gun. 19 I have no doubt that the jury rejected this account of how he obtained possession of the firearm on this evening. This is not only because in my view it is inherently unbelievable. The offender was also inconsistent in the account that he had given to the jury on the one hand and the police on the other as to when and where it was that he purchased the weapon at the hotel. I am confirmed in this view because the offender has given a further, and again inconsistent, account about obtaining the weapon to a psychiatrist who prepared a report for the sentencing proceedings. I am satisfied beyond reasonable doubt that the offender came into possession of the firearm sometime after the first confrontation with the deceased in the hotel. I am unable to determine the circumstances in which he did so, but I have no doubt that he obtained it believing that it might be necessary to use the weapon against the deceased. 20 I also have no doubt that the jury rejected the totality of the offender's version of how the deceased was shot. If they had believed that there was a reasonable possibility he was acting in self–defence, then they would have convicted him of manslaughter. But in any event, I accept the evidence given by Mr Siofele as being honest and accurate not only by reason of my assessment of him as a witness but also because his account is supported to an extent by other witnesses in the Crown case. In my view, contrary to the account given by the offender, the evidence proved overwhelming that the deceased was shot immediately he reached the corner of the hotel and without going around it. 21 A witness who was outside a shop on the Hume Highway a short distance from where the shooting took place and in a perfect position to see what occurred gave evidence of the confrontation between the offender and the deceased. This was Mr Harries. Although he was a reluctant witness and his demeanour would hardly have impressed the jury, I have no doubt that his version was substantially correct. He said that he saw the offender go around the corner of the hotel and then turned to face the entrance of the hotel car park. At that time he was holding a gun. Mr Harries was adamant that, when the deceased arrived at the corner of the hotel, he immediately turned to move away from the deceased and, as he did so, he was shot. That version is entirely consistent with the account given by Mr Siofele and entirely inconsistent with that given by the offender. It is also consistent with the injuries sustained by the deceased. 22 The evidence of Mr Fabian, the offender's drinking companion on the evening was to the same effect: the deceased was shot almost immediately he arrived at the corner of the hotel without moving around the corner and out of sight. 23 Further, the offender's brother told the jury that when the offender arrived home from the hotel, he was a "bit irate" and was saying "Fuck him" and "Fuck him he shouldn't have fucked with me". The offender's attitude at this time is hardly consistent with the account that he later gave of pulling out the weapon acting in fear for his personal safety and the weapon accidentally discharging. 24 There is also evidence that suggests that something was said or done that caused the deceased to follow the offender out of the hotel and up towards the corner. Mr Fabian said that as the deceased approached him in the driveway, the deceased said, "Where is he? Does he want [a] go?" 25 In my view, the evidence indicates that, rather than acting in self-defence, the offender lured the deceased to the spot where he waited in ambush to shoot him. I am satisfied beyond reasonable doubt that the offender deliberately fired three shots into the body of the deceased. In those circumstances and notwithstanding his intoxicated state, I have no doubt that he fired the gun with the intention of killing the deceased. It is thus a serious case of premeditated murder. 26 It is apparent, from a question asked by the jury after their retirement, that one of the jurors was concerned as to whether the Crown had proved beyond reasonable doubt that the offender was not acting under provocation. Although I left provocation to the jury, I would have been appalled had a verdict of manslaughter been returned on that basis. I accept that the deceased's conduct towards the offender was an over-reaction and completely unjustified by any misconduct of the offender. But surely we have not reached the stage in this society, that the deceased's conduct would justify a loss of control such that an ordinary member of this community would form an intention to kill or seriously injure him. If the jury had found the offender guilty of manslaughter by reason of provocation, it would have been a damning indictment of the community's attitude to the use of violence in general and firearms in particular. 27 Although I have been involved in the criminal law for most of my professional life, I still find it extraordinary that a 33-year old man of no relevant convictions could have believed that in any way he was justified in obtaining a loaded firearm and discharging it at close range to the deceased having lured him into a position where he could carry out that act. There is nothing in the reports, which have been tendered, that even vaguely suggests why the offender acted as he did. I find it difficult to believe that it was merely the result of his intoxicated state or that he was unusually concerned about injury to his face or head. He appears to be not normally a violent person and would be likely to avoid conflicts. I accept that the deceased was the aggressor on this particular night and used his height and weight advantage to intimidate the offender and his companions. 28 However, the offence, in my view, requires that very severe punishment be imposed upon the offender notwithstanding his lack of earlier relevant criminal record and the fact that the deceased was to a greater extent responsible for the violence that resulted in his needless death. The sentence to be imposed upon the offender must denounce the use of violence in public, particularly where it involves a loaded firearm, and it must attempt to deter other persons who feel offended by the conduct of others from taking action of a similar nature in retribution or revenge. 29 As I have already indicated there is nothing in the subjective circumstances of the offender that can mitigate the offence. Although he had an unfortunate early life, and witnessed the suicide of his step-father, he was able to overcome such an experience and lead a relatively honest and worthwhile life. He had a close relationship with his mother and still enjoys her support and that of her present husband. The offender has generally been in employment of a manual or physical kind and has been only in receipt of unemployment benefits for two or three months of his life. 30 He is generally speaking in sound physical and mental health. However, he accepts that at times he has drunk alcohol to excess as he did on the night of the shooting. He has been involved in two long-term relationships, the most recent of which was on foot at the time of the offence. His partner is prepared at the present time to try to maintain the relationship and live with the offender on his release from prison. She visits him weekly in gaol. 31 Despite the fact that the offender pleaded not guilty there seems to be real regret that he caused the death of the deceased, although not immediately after the shooting in light of what he said to his brother. He has felt suicidal at times since the killing, but the psychologist who interviewed him did not believe he was at risk. 32 The Crown fairly does not suggest that the offence is one that would require the imposition of a life sentence. But as I have indicated the sentence must be a heavy one in light of the findings that I have made as a result of the verdict of murder. Once again I can only remark upon the awful consequences of the ready availability of firearms. This is another case where there has been the needless loss of life for the deceased and a waste of life for the offender as a result of what was, in the cold light of day, a fairly trivial incident between persons under the influence of alcohol. One can only extend sympathy to the deceased's family who have to try to come to terms with such a senseless killing. 33 There are matters in the subjective circumstances of the offender that might result in the finding of special circumstances were the offender to be sentenced for a less serious offence than that presently before the court. But the appropriate sentence to meet the criminality of the offender for the murder of the deceased will be such that the application of the statutory ratio between the head sentence and the non-parole period will provide ample time for what assistance is necessary to help in his rehabilitation on release. There is nothing which otherwise would justify a reduction in the period which he must serve before being released to parole. 34 Although the prisoner has been serving a sentence for an offence of drive while disqualified for part of the period while awaiting sentence for the murder, it seems to me that the appropriate order to make is to sentence the prisoner from the date of his arrest. The criminality of the murder overwhelms that for the other offence, even though he was on appeal bail in relation to that matter at the time of the killing. 35 The offender is sentenced to imprisonment for 24 years to date from 6 April 2001. There is to be a non-parole period of 18 years from the same date. The offender is eligible to be released to parole on 5 April 2019. **********