REGINA v Andrew Glen MUDDLE [2004] NSWSC 403

New South Wales Supreme Court

CITATION : REGINA v Andrew Glen MUDDLE [2004] NSWSC 403 HEARING DATE(S) : 8/3/04, 9/3/04, 10/3/04, 11/3/04, 15/3/04, 16/3/04 JUDGMENT DATE : 21 May 2004

JUDGMENT OF : Bell J at 1 DECISION : Sentenced to a term of six years' imprisonment to-date from 15 December 2003; That sentence will expire on 14 December 2009 ; Non-parole period of three years; The first date on which the offender is eligible for consideration of release on parole is 14 December 2006

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED : Regina v Previtera (1997) 94 A Crim R 76 PARTIES : REGINA Andrew Glen MUDDLE (Accused) FILE NUMBER(S) : SC 70064/03 COUNSEL : Mr L. Gray (Crown) Ms C. Davenport (Accused) SOLICITORS : S Kavanagh SE O'Connor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

21 May 2004

70064/03 REGINA v Andrew Glen MUDDLE

JUDGMENT 1 BELL J: On Monday 8 March 2004 Andrew Glen Muddle was arraigned on an indictment that charged him with the murder of Alan Edward Birch at Raymond Terrace on 6 February 2003. He entered a plea that he was not guilty. A jury was empanelled and the offender stood trial. On 16 March 2004 the jury returned its verdict. The offender was not guilty of murder but guilty of the manslaughter of Alan Edward Birch. 2 The deceased spent the early afternoon of 6 February 2003 with a friend, Rhett Cotton, at a local hotel. They were celebrating the deceased's 23rd birthday. They spent several hours at the hotel and the deceased consumed a number of schooners of beer and several glasses of whiskey. The two young men were on friendly terms with the offender's nephew, Jason Muddle. After leaving the hotel in the late afternoon they met up with Jason and his partner, Cassandra. Together the group went to visit the offender at his home at 7 Corelli Close, Raymond Terrace. They arrived at around 5:00 pm. 3 The offender was living in a de facto relationship with Julia Cadogan. The two have since married. He was aged just on 40 years at the time. He was on close terms with his nephew, Jason. Jason and his family lived in Raymond Terrace a short distance from Corelli Close. On occasions prior to February 2003 the deceased had visited the offender's home in company with Jason. There was no history of ill feeling between the two. 4 On the evening of 6 February a number of people were present at the Corelli Close premises when Jason Muddle and his party arrived. The deceased and Rhett Cotton brought a carton of VB stubbies with them. Over the next few hours the offender, the deceased, and various others drank beer, smoked marijuana and talked. The atmosphere was congenial. 5 The deceased was noticeably affected by alcohol at the time of his arrival. It is reasonable to assume that he became progressively more intoxicated as the evening wore on. The offender was also intoxicated by a combination of alcohol and marijuana by the end of the evening. 6 At around 11:00 pm the men were seated around the dining table and Cassandra and Julia were in the adjacent lounge room, looking after Cassandra's children. The deceased made a drunken remark about the offender's dogs. The offender thought that the deceased may have ill-treated the dogs in some fashion. He leapt up and punched the deceased. As he did so he upset the lightweight dining table between them. Thereafter the two men exchanged punches. They ended up on the floor struggling with one another. Jason Muddle intervened in an attempt to break up the fight. He managed to get both men out of the house. The fighting resumed on the front lawn of the premises. It remained a fistfight. Ultimately, the offender and the deceased were wrestling on the ground. During the course of the struggle the offender bit the deceased on the nose. It was a nasty bite that tore the skin in several places and bled profusely. Shortly after this Jason Muddle succeeded in separating the two. Julia Cadogan called on the offender to come inside the house. He did so. She stood watching events from the front porch in front of the security screen door. 7 Cassandra had put the children in the car and was ready to leave. Jason tried to persuade the deceased to get into the car and leave with them. He would not go. By this time he was enraged and bent on continuing the fight with the offender. Jason repeatedly told him to calm down. Finally Jason got into the car with his family and they left. When they reached the corner of Corelli Close Jason got out of the car and ran back to the scene. He had left the deceased standing outside the premises in an enraged state making threats to kill. I am satisfied that he returned with the intention of removing the deceased peaceably from the premises without further incident.