R v FORBES [2004] NSWSC 421

New South Wales Supreme Court

CITATION : R v FORBES [2004] NSWSC 421 HEARING DATE(S) : 5 December 2003 7 May 2004 JUDGMENT DATE : 7 May 2004

JUDGMENT OF : Hulme J at 1 DECISION : See paragraphs 134-137

PARTIES : Regina Warren Alan FORBES FILE NUMBER(S) : SC 70039/03; 70010/03 Crown: Ms L Wells COUNSEL : Prisoner: Mr G Nicholson QC Mr G Halsell SOLICITORS : Crown: Director of Public Prosecutions Prisoner: Patricia White & Associates

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J Friday, 7 May 2004 70039/03 70010/03 R v Warren Alan FORBES REMARKS ON SENTENCE 1 HULME J: The Prisoner appears for sentence in respect of 2 offences of manslaughter. 2 On 15 October 2003 he pleaded not guilty to a charge that on 6 January 2002 he murdered Ross Allan Kimball but pleaded guilty to the manslaughter of Mr Kimball. The Crown indicated that it was willing to accept that plea in full discharge of the indictment. Evidence relevant to the question of sentence was given on 5 December 2003 but by agreement of the parties the imposition of the sentence was deferred pending the Prisoner's trial in respect of the death of Andrew Hullick. 3 On 16 February 2004 a trial of the Prisoner commenced on a charge that on 3 May 2002 he murdered Andrew Hullick. On Wednesday 17 March 2004 a jury brought in a verdict of not guilty of murder but guilty of manslaughter.

Death of Ross Kimball 4 It follows from the Prisoner's plea that, as between the Crown and the Prisoner, all the facts implicit in his plea are established. The evidence concerning the commission of the first offence is contained in a Statement of Facts which was tendered without objection and which was not the subject of challenge. In these circumstances I am entitled to regard the matters set out in that document as also established. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the Prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities – see Pilley (1991) 56 A Crim R 202 at 203-4; R v Olbrich (1999) 199 CLR 270. 5 The events dealt with in the Statement of Facts fall within a small compass. The document shows that the deceased, his wife and some friends left the Globe Hotel in Albury at closing time, about 3.30am, on Sunday 6 January 2002. The Prisoner and some of his friends including Tristan Ball, Adam Hodge and Ahmed Dibb also left the hotel at that time. The members of these groups and others were then congregated on the footpath outside the hotel. While there, the deceased accidentally bumped the Prisoner but there was no animosity from either of them at that time. 6 Mr Ball commenced arguing with the deceased over the bumping incident. The Prisoner then became involved in an argument with the deceased, culminating in an invitation by the Prisoner to go around the corner and sort it out. 7 A fight broke out between Mr Hodge and some other person and then various fights broke out amongst various groupings of about 30 patrons on the footpath. Included among those engaged in the fighting were the Prisoner, Messrs Ball and Hodge and the deceased. The Prisoner intervened in a fight between the deceased and Mr Ball. At one point while the deceased, Messrs Ball, Hodge, Dibb and the Prisoner were fighting near the median strip, the deceased was punched in the head by Mr Hodge, lost his footing and fell on the median strip. The Prisoner left this area of fighting and engaged in a fight or fights with two or three other persons. 8 While the Prisoner was so engaged the deceased, still on the ground, was fighting with and being kicked by Messrs Hodge, Ball and Dibb. At about this time either Mr Ball or Mr Hodge in the presence of the other stabbed the deceased once, fatally wounding him. They then ran from the scene. With his wife's help, the deceased rose to his feet and, bleeding profusely, walked a little distance and then collapsed. He died from his injury. 9 The Prisoner left in his motor vehicle. Approached by Mr Ball while driving off he was asked for, and gave, Mr Ball a lift. 10 The Statement of Facts records that: "At the time of the fight the Prisoner was aware that both Tristan Ball and Adam Hodge were well affected by alcohol, had earlier used cannabis and may have been armed with a knife. When he joined in the fight that night, the Prisoner appreciated that there was a risk that Tristan Ball or Adam Hodge in those circumstances during the fight might have used a knife while fighting with others." (sic). 11 During the sentencing proceedings Victim Impact Statements of Mr Kimball's wife and parents were read. Those statements bear frank witness to the tragedy, the loss, the devastation which is caused by those members of the community who, in the pursuit of their own ends or standards, are quite willing to contemplate the death or injury of others. And that loss is not limited to the occasion of, in this case, Mr Kimball's death but, as Mrs Kimball pointed out, their sons 9 and 4, will grow up for the rest of their childhood without their father and, in the words of Mr and Mrs Kimball senior, "January 6th 2002 (was) the day a part of all of us died". 12 As I understand it, Messrs Hodge and Ball have not been tried, it may well be for lack of evidence against one rather than the other.