R v Daniels [2004] NSWSC 1201

New South Wales Supreme Court

CITATION : R v Daniels [2004] NSWSC 1201 HEARING DATE(S) : 19/04/04; 20/04/04; 21/04/04 - 23/04/04; 27/04/04; 11/06/04 JUDGMENT DATE : 14 December 2004 JURISDICTION: Common Law Division JUDGMENT OF : Hidden J at 1 DECISION : Imprisonment for eight years, non-parole period five years, from 31 October 2002

CATCHWORDS : CRIMINAL LAW - Sentence - manslaughter - alternative verdict after trial - spontaneous killing of partner in domestic dispute LEGISLATION CITED : Crimes (Sentencing and Procedure) Act R v Previtera (1997) 94 ACrim R 76 CASES CITED : R v Berg [2004] NSWCCA 300 R v Nardoni [1999] NSWSC 1097 PARTIES : Regina (Crown) John Bodie Daniels (offender) FILE NUMBER(S) : SC 70066 of 2003 COUNSEL : P Conlon SC (Crown) L Flannery (offender) SOLICITORS : North & Badgery (offender) Solicitor for Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

HIDDEN J

Tuesday 14 December 2004

70066 of 2003 Regina v John Bodie Daniels

Remarks on Sentence 1 HIDDEN J: The offender, John Bodie Daniels, was tried for the murder of his partner, Janelle Tahuri, in the early hours of 31 October 2002 at the home unit in which they were living at Mortdale. The jury found him not guilty of murder but guilty of manslaughter. He stands for sentence on the basis that he killed Ms Tahuri by an unlawful and dangerous act, but without the intention to kill her or inflict grievous bodily harm upon her. 2 The jury's verdict amounts to a rejection of the offender's account in evidence at the trial which, if accepted, would have meant that he was not criminally responsible for the death. There was no eyewitness in the Crown case, although sounds of a commotion in the unit were heard by other residents in the block. However, sufficient facts for the purpose of sentence can be inferred from the evidence. 3 Ms Tahuri was killed after a violent episode in which the offender angrily remonstrated with her, believing her to have been unfaithful to him. The incident lasted for some time, although for how long I cannot say. It woke their two little children, who were in the unit at the time. He mounted a sustained attack on her, as a result of which she suffered a serious brain injury from which she later died in hospital. I can reach no firm conclusion about the exact nature of the violence which he inflicted upon her throughout the attack but, in the light of the evidence of neighbours and the medical evidence, I am satisfied that the brain injury was the result of his propelling her head against a wall. 4 He had been drinking prior to the incident and I have no doubt that he was affected by liquor, although I cannot say to what extent. At one stage he was heard to say, "Go in and show the fucking kids your face". It was the Crown case that, when he said that, Ms Tahuri's face was bleeding from her injuries and he intended the children to see her in that condition. In evidence, he denied that Ms Tahuri's face was bleeding and, although he acknowledged having said those words, he explained them as no more than an emotionally charged utterance by which he meant that she should acknowledge her guilt to the children. 5 However this dispute might be resolved, the fact that the offender sought to involve the children in this incident is a particularly unpleasant aspect of the case. I do not find it necessary to resolve the dispute, although I can see the force of the Crown's position. On either view of it, the evidence shows the extent of his rage, which is also demonstrated by his uncooperative attitude to the police officers who arrived at the unit in response to a call from one of the neighbours. 6 He was arrested that same morning and has been in custody since. On legal advice, he declined to be interviewed. 7 The offender was thirty-eight years old at the time of the offence and is now forty. He was born and raised in New Zealand, and it was there that he commenced his relationship with Ms Tahuri and their two children were born. The family came to Australia in 2001. He has a criminal history in New Zealand through the 1990s, consisting mainly of offences of dishonesty, which is of little significance for present purposes. His only convictions in New South Wales are for three summary offences, apparently arising out of the same incident, for which he was dealt with in a local court on 25 September 2002. Their only significance is that for one of those offences he was placed on a twelve month bond, which was current at the time of the manslaughter. 8 He had a disturbed upbringing, which it is unnecessary to recite. It is sufficient to say that it provides the background to his leaving school at the end of second year of high school, his coming into conflict with the law, his heavy use of cannabis in earlier years and his heavy drinking throughout his adult life. Nevertheless, it seems that he has a reasonable record of employment in unskilled positions, both in New Zealand and in this country. He has always been close to his mother and his relationship with her current partner is satisfactory. 9 I have a report of a psychologist, Mr John Machlin. To Mr Machlin he described a relationship with Ms Tahuri which had not been without its difficulties, saying that there had been between them "probably some physical stuff but not violence". He did not elaborate upon this. Their two children are now in the care of Ms Tahuri's parents in New Zealand. Mr Machlin reported that, while he maintained his account at the trial of the circumstances in which Ms Tahuri met her death, he mourns her passing and his loss is compounded by his separation from the children. 10 Mr Machlin reported that he suffered "ongoing mental health problems" upon his admission into custody. This was amplified in a report of another psychologist, Kirk Stenhouse, employed at the Kevin Waller Therapeutic Unit (KWTU) within the Long Bay Correctional Centre. Early in 2003 he cut his wrists with a razor blade in what he said was an attempt to end his life, leading to his transfer to the Acute Crisis Management Unit (ACMU) at Long Bay. 11 Mr Stenhouse reported that he provided "a long history of self-harm, with and without suicidal intent", most of these instances having been "triggered by relationship conflict". He remained at the ACMU for six months, during which time there was another incident when he slashed his arm with a razor. He was depressed and displayed psychotic symptoms, including paranoid thoughts. He was considered by a treating psychiatrist, Dr Juratowitch, to be at risk of suicide, given his history and his psychotic symptoms, together with his perception that he had lost everything and his expressed belief that he would be re-united with Ms Tahuri in the afterlife. 12 His symptoms improved with anti-psychotic medication, and towards the end of 2003 he was transferred to the KWTU. There he underwent counselling and completed courses such as self-awareness, emotional regulation, relaxation and alcohol and drug issues. By June 2004 Mr Stenhouse observed him to be "co-operative and compliant", interacting well with other inmates and being "generally well regarded by staff". There had been no further incident of self harm but, given his history, Mr Stenhouse considered him still to be at risk of it. The offender acknowledged that he still had thoughts of ending his life. Generally, however, Mr Stenhouse saw him as "settled and focused on the future". 13 No doubt, the offender's concern about the outcome of these proceedings contributed to his mental state. Nevertheless, these incidents of self harm and psychotic symptoms convey to me that he has been tormented by his crime, even if he has little insight into his conduct. Mr Machlin found his intelligence to be just below average, and his personality to be characterised by depression, a lack of self-esteem and a pre-occupation with securing affection, leading to "conflicting feelings such as rage, love and guilt towards others". Mr Stenhouse described his personality as "rigid", and reported that he was assessed as "someone who would benefit from the KWTU program due to his paucity of skills for managing emotional difficulties". 14 While not excusing his behaviour on the morning in question, these observations go some way towards explaining it. This, however, is not to deny the seriousness of his crime. I received a victim impact statement from Ms Tahuri's parents, which expresses in a moving way the lasting effect of her untimely death upon them and upon her two children. To them I can do nor more than to convey my deepest sympathy. However, I do not consider it appropriate to have regard to that victim impact statement in determining the appropriate sentence: s28(4)(b) of the Crimes (Sentencing Procedure) Act. Inevitably, a violent crime such as this devastates the victim's loved ones, including his or her dependents, and my approach to the present case is in accordance with that of Hunt CJ at CL in R v Previtera (1997) 94 ACrim R 76. In so saying I am mindful of the observations of Spigelman CJ in R v Berg [2004] NSWCCA 300 at [42]-[45]. It should be noted that the Crown prosecutor did not rely upon the parents' statement to establish the aggravating factor set out in s21A(2)(g) of the Act. 15 I have had regard generally to the aggravating and mitigating factors in s21A. In particular, I note that no weapon was used: cf subs(2)(c), and that the offence was unplanned, being the result of a spontaneous outburst: subs(3)(b). On the other hand, it was committed while the offender was on conditional liberty: subs(2)(j). Indeed, he had been placed on a bond only a little over a month previously, albeit for an offence very much less serious than the present offence. 16 He has not admitted responsibility for Ms Tahuri's death in a manner consistent with the jury's verdict and, in that sense, could not be said to be contrite. His undoubted regret about the loss of his partner seems to stem to a significant extent from his feeling of isolation, including separation from his children. Nevertheless, I accept that his psychological turmoil while in custody is also the product of a sense, at some level, of the enormity of his crime. In short, while he may not have come to terms with what he has done, he has suffered for it. 17 Clearly, he is in need of ongoing counselling, and upon his release he will need an extended period of supervision and guidance to settle back into the community. With that assistance, I think that he has reasonable prospects of rehabilitation. I find special circumstances calling for a non-parole period less than the statutory proportion, although I am aware of the need for that period adequately to reflect considerations of retribution and deterrence. 18 I have been assisted by a schedule supplied by counsel of sentences in eight cases of manslaughter in a domestic setting, with a brief summary of the facts and salient subjective features of each offender. It is not necessary to refer to them except to say that I was supplied with the remarks on sentence of Grove J in one of them, R v Nardoni [1999] NSWSC 1097. Of that case I would observe only that, while it has some similarities to the present case, that offender pleaded guilty, was clearly contrite and was able to make out a stronger subjective case than the present offender. Insofar as the cases might suggest a range, the sentence which I propose is towards the top of it. 19 John Bodie Daniels, you are sentenced to imprisonment for eight years, to date from 31 October 2002, with a non-parole period of five years. You will be eligible for release on parole on 30 October 2007. **********