R v Tindall [2002] NSWSC 1108

New South Wales Supreme Court

CITATION : R v Tindall [2002] NSWSC 1108 FILE NUMBER(S) : SC 70035/02 HEARING DATE(S) : 20 November, 2002 JUDGMENT DATE : 4 December 2002

PARTIES : Regina Scott Tindall JUDGMENT OF : Hidden J at 1

COUNSEL : P Barnett - Crown M Williams QC - Offender SOLICITORS : SE O'Connor - Crown G Murray - Offender CATCHWORDS : CRIMINAL LAW: Sentence - manslaughter - provocation. CASES CITED : R v Alexander (1994) 78 A Crim R 141 DECISION : See paragraph 19.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HIDDEN J

4 December, 2002

70035/02 – REGINA v Scott TINDALL SENTENCE 1 HIS HONOUR: The offender, Scott Tindall, was arraigned before me upon an indictment charging him with the murder of his brother, Donald Tindall, at Adamstown on 3 July, 2001. His plea of guilty to manslaughter, on the basis of provocation, was accepted by the Crown prosecutor in discharge of that indictment. 2 The facts are as tragic as they are unusual. In January, 2000 the father of the offender and the deceased, Alex Tindall, died as a result of injuries sustained when the house in which he was living was set alight. The deceased was charged with his murder. The offender gave evidence for the Crown at his trial in February, 2001, as did other members of the family. The offender was a crucial witness, upon whose evidence the Crown case depended. In the event, the deceased was acquitted. 3 Released from prison following that acquittal, the deceased returned to live in the Newcastle area. The offender was living with his girlfriend, Michelle Colvin, and her five-year-old daughter at Miss Colvin's flat in Adamstown. The deceased behaved unpleasantly towards members of the family generally, but his bile was directed particularly at the offender. His behaviour towards the offender was most abusive and aggressive, involving threats against his life, demanding money from him and generally standing over him. 4 The deceased would come to Miss Colvin's flat, uninvited, when the offender was there. On occasions, in her presence, he would hit the offender around the head, threatening to kill him and calling him a "fucking dog" and "just filth". He also threatened Miss Colvin herself. There is no doubt that the offender was afraid of the deceased and found his behaviour extremely stressful. This is but a thumbnail sketch of the relevant background, which emerges not only from the offender's account to police in an electronically recorded interview but also from the statements of Ms Colvin and members of the offender's family. 5 The offender killed the deceased in the small hours of 3 July, 2001. In the afternoon of 1 July, less than two days before, he experienced symptoms akin to a stroke. He was admitted overnight at the John Hunter Hospital in Newcastle, where he was seen the following day by Dr D B Williams, a neurologist. Dr Williams concluded that the symptoms were functional in origin and, most likely, the product of stress. The offender told the doctor about the death of his father and about his having given evidence at the deceased's trial. He said that this had caused the deceased to be upset and angry with him but, when asked whether he was afraid that the deceased would harm him, he said that he was not. Dr Williams was sceptical about that answer, noting that he was "tremulous, sweaty, and that his demeanour was fearful". He thought it likely that the offender was suffering from "significant anxiety" as a result of the situation which he had described. 6 The offender was discharged on 2 July and returned to Miss Colvin's flat. At about 10pm the deceased arrived and deposited himself on a lounge chair. He had been drinking and was abusive. At about midnight Miss Colvin retired to bed with her daughter. The evidence of what then occurred is to be found in the offender's account to police, which I accept. 7 It seems that the deceased had returned from a trip to Coffs Harbour. He was complaining that the offender had not contacted him, to which the offender said that he had been in hospital. When he said that he had had a mild stroke, the deceased was scornful. The deceased demanded money from him and was calling him "a fucking idiot" and "a fucking dog". The offender asked him to keep his voice down, for the sake of Ms Colvin and the child. There was an atmosphere of tension such that it could be "cut with a knife". 8 The offender's narrative to the police continued: By that time, a lot of things were going through my mind, racing through my mind actually, to the point where I was contemplating on doing Donny in, cause I'd just had enough. I was fearing for the safety of myself, Michelle and Michelle's baby, Abbey. It had just been going on for too long. I don't know why he kept coming, coming to Michelle's home. He wasn't welcome there, never was or never would have been welcome there, ever. What he's put us through that, you know the anguish and the heartache. I just couldn't take any more. So I went to the kitchen, got the hammer out the drawer, proceeded back into the lounge room, sat down on the chair, which is positioned behind where Donny was laying on the lounge, rolled myself another cigarette. It'd be 10, 15 minutes later, I got up and hit Donny on the head with the hammer. I think I hit him, I think I hit him three or four times on the head with the, with the hammer. At that point I knew what I'd done. Just for, I just, I just couldn't take any more. The man had just put, put meself, my fiancée and the rest of my family through, to hell and back, and there was, there was nothing else. 9 The offender also told police that he was "petrified". He added, "Me life was just being changed, upside down. Mentally and emotionally, I just couldn't take any more." He spoke of the deceased having "terrorised" the whole family and Miss Colvin, and he expressed concern about the effect of the situation on Miss Colvin's daughter. Asked if he intended to kill the deceased, he replied, "I'm not going to tell you a lie." According to Miss Colvin, he came into the bedroom and said that he was going to kill the deceased. She remonstrated with him but did not think that he was serious. 10 It seems that the deceased was lying on the lounge when the offender attacked him. The offender then placed a plastic bag over his head and secured it around his neck with rope. He told police that he did this to stem the flow of blood and to "stop the noise". He did not explain what he meant by "the noise". It is not suggested that these actions contributed to the death of the deceased, and I do not see them as of any significance for the purpose of sentence. 11 The offender then telephoned his brother, Allan Tindall, asking for his help. Allan Tindall went to the flat. He took the offender to the home of their sister, Mrs Sally Ford, and he took Miss Colvin and her daughter to her parents' home. Allan Tindall and another brother, Paul Tindall, went to Newcastle police station, where they told police about the killing and where the body could be found. They asked to speak to Detective Senior Constable Peter Jenner, who had investigated the killing of their father. 12 Some hours later, Detective Jenner and the two brothers went to Mrs Ford's home, where the offender was. He began to shake and to cry, and he said to Detective Jenner, "Peter, I couldn't take it anymore. You know what he was like. I just couldn't take it anymore." He was arrested and conveyed to Newcastle police station, where Detective Jenner conducted the recorded interview to which I have referred. The interview began at 8.46am and continued for about an hour and, while the offender was lucid and composed throughout it, it is apparent that he was still in a state of heightened emotion. 13 Post mortem examination of the deceased revealed eight areas of injury, principally lacerations to various areas of the skull. There was a series of skull fractures, together with haemorrhage of the brain. Although he could not be exact about it, the pathologist believed that about eleven blows had been struck. He found no evidence that the deceased had attempted to defend himself, and he expressed the view that death would have been rapid. 14 The offender is thirty five years old. He has a brief criminal record, the only entries of significance being convictions for assault occasioning actual bodily harm in 1998 and common assault in 2001. The 1998 charge arose from an incident when the offender, while well intoxicated, punched his father a number of times. He was fined and placed on a bond. The 2001 charge related to his assault upon an unrelated man with a cricket stump. The circumstances were such that he was sentenced to the rising of the court. While he cannot claim, then, to be a stranger to violence, I consider these convictions to be of limited significance for present purposes. 15 Otherwise, there is very little material before me about the offender's background. It is obvious from what I have already said that his family life has been deeply troubled, but I have no knowledge of the underlying cause of this. He told Dr Williams that he took to the use of heroin after his father's death, and I have been informed that he has been on a methadone program whilst in custody. The sentence which I must impose will be the first full time custodial sentence he has faced, and it is common ground that there are special circumstances justifying a departure from the usual proportion between sentence and non-parole period. His life has been in a state of upheaval, and I have no doubt that it would be in the community's interest for him to have the benefit of an extended period of supervision, together with the sanction of parole, upon his release. 16 In assessing the objective gravity of the crime, I must have regard to the fact that he formed the intention to kill the deceased and that there was a short period of reflection before he carried out that intention. He did so with considerable violence. The deceased's behaviour that night does not appear to have been as threatening or degrading as it had been on previous occasions. Nor was the killing the immediate response to provocative conduct on his part. Indeed, he may not even have been awake at the time. 17 However, it is clear that the offender's loss of self control was the result of the cumulative effect of the deceased's behaviour over the preceding months. Viewed in this way, I consider that the provocation under which he was acting at the time of the killing was grave indeed. He had been hounded by the deceased for no known reason other than that he had given evidence for the prosecution at a trial arising out of a violent death of their own father. The circumstances elicit considerable sympathy for him and provide him with a powerful claim for leniency. 18 None of this is to deny the seriousness of the unlawful killing of a human being. I have been assisted by the familiar judgment of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141, dealing with factors relevant to sentence for manslaughter based on provocation. I take into account the offender's plea of guilty to that charge, which the Crown prosecutor acknowledged was entered at the first available opportunity. However, I do not propose to express a quantified discount for that plea, and neither the Crown prosecutor nor senior counsel for the offender suggested that I should. Given all the circumstances of this truly exceptional case, I am satisfied that a sentence at the lower end of the available range is called for. The offender has been in custody since his arrest on 3 July, 2001. 19 Scott Tindall, you are sentenced to imprisonment for five and a half years, to date from 3 July 2001, with a non-parole period of two and a half years. You will be eligible for release on parole on 3 January, 2004. **********