Regina v Hantis [2005] NSWSC 549

New South Wales Supreme Court

CITATION : Regina v Hantis [2005] NSWSC 549

HEARING DATE(S) : 18/05/05-20/05/05, 23/05/05-26/05/05

JUDGMENT DATE : 17 June 2005

JUDGMENT OF : James J at 1

DECISION : Manslaughter sentence - 4 years non-parole, with a balance of the term of 4 years; Firearms offence sentence - 6 months fixed term of imprisonment

CATCHWORDS : CRIMINAL LAW - sentence - plea not guilty to murder - verdict of guilty of manslaughter - substantial impairment by abnormality of mind (Crimes Act 1900 (s23A)) - severe depression

Crimes Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act Firearms Act

R v Blacklidge: unreported, NSWCCA 12 December 1995 CASES CITED : R v Isaacs (1997) 90 A Crim R 587 The Queen v Olbrich (1999) 199 CLR 270

PARTIES : REGINA v Jacques Louis Guy HANTIS

FILE NUMBER(S) : SC 2004/32

MC Grogan - Crown COUNSEL : AM Webb - Prisoner

W Ness - Crown SOLICITORS : WR Goodman & Associates - Prisoner

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

17 June 2005

2004/32 REGINA v Jacques Louis Guy HANTIS

SENTENCE 1 HIS HONOUR: On 25 May 2005, after a trial presided over by me, a jury found the prisoner Jacques Louis Guy Hantis not guilty of the murder but guilty of the manslaughter of Andre de Groote on 28 September 2003 at Callala Bay, which is near Nowra. 2 On 2 July 2004 the prisoner had pleaded guilty to committing an offence under s 7(1) of the Firearms Act of possessing a firearm without being authorised to do so by a licence or permit. 3 A hearing of proceedings for the sentencing of the prisoner for both offences took place on 3 June 2005. 4 As the sentencing judge it is part of my function to determine the facts relevant to sentencing for each of the offences. I am mindful that facts adverse to the prisoner must be proved beyond reasonable doubt, whereas facts favourable to the prisoner need only be proved on the balance of probabilities (The Queen v Olbrich (1999) 199 CLR 270 at 281 (27)). I will first find facts relevant to the offence of manslaughter, which is obviously by far the more important offence. 5 The prisoner himself did not give evidence either in the trial or in the proceedings on sentence. The prisoner's mother, Mrs Lily Hantis, who was Mr de Groote's de facto wife and who was present, or at any rate close by, when Mr de Groote was killed, also did not give evidence in either the trial or the proceedings on sentence. However, notwithstanding the absence of evidence from either the prisoner or Mrs Lily Hantis, I consider that I am able to find, to the requisite standard, a number of facts relevant to the commission of the offence of manslaughter. 6 The prisoner was born on 25 May 1955 in Belgium. His parents were the late Mr Jean Hantis and his wife, Mrs Lily Hantis. 7 While she was still living in Belgium Mrs Lily Hantis formed a relationship with Andre de Groote. This relationship continued up until Mr de Groote's death. During his lifetime Jean Hantis tolerated the relationship between his wife and Mr de Groote. 8 In about 1969 Mr Jean Hantis, Mrs Lily Hantis, Mr de Groote and the prisoner, who was then about fourteen years old, came to Australia. 9 The prisoner was married to his wife, Mrs Theresa Hantis, in about 1974. There have been two children of the marriage, a son Daniel now aged twenty-nine and a daughter Victoria now aged nineteen. 10 At some time after the prisoner's marriage his father Jean Hantis died. Thereafter Mrs Lily Hantis and Andre de Groote continued living together. 11 Mr de Groote conducted a sewing machine business in Wollongong, that is a business of selling new and second-hand sewing machines and repairing sewing machines. Mr de Groote later opened a similar business in Nowra and the prisoner became the manager of the business in Nowra. Subsequently Mr de Groote disposed of the business in Wollongong and for a period he and the prisoner worked together in the business in Nowra. About ten to fifteen years ago Mr de Groote retired and sold the sewing machine business in Nowra to the prisoner. After the sale of the business Mr de Groote continued to own the premises in which the business was conducted and continued to do some of the repairing of sewing machines. 12 The prisoner, who had once been in the army, was interested in firearms and kept a number of firearms in a safe in an extension to the garage at the house in Nowra where he lived with his wife. 13 Over a period of several months leading up to 28 September 2003 Mrs Theresa Hantis noticed certain changes in the prisoner's behaviour, including drinking alcohol more heavily than he had previously and not being in bed when his wife, who was a nurse, returned from work in the early hours of the morning. From time to time during this period the prisoner complained to his wife about Mr de Groote's conduct in connection with the business, including what the prisoner regarded as excessive use by Mr de Groote of a petrol card. During this period Mrs Theresa Hantis described the prisoner to his face as being "like a bear with a sore toe". 14 The prisoner's wife has herself carried on the sewing machine business in Nowra since 28 September 2003. She had previously played no part in the carrying on of the business. On reviewing the affairs of the business after 28 September 2003, she found that the prisoner had seriously neglected the business in the months leading up to 28 September 2003. 15 On the evening of Friday 26 September 2003 the prisoner and his wife attended a farewell dinner for final year students at the school their daughter was attending. At the dinner the prisoner appeared "distant" to his wife. On the night of Saturday 27 September 2003 the prisoner and his wife held a dinner party at their home. The prisoner appeared to his wife not to be interested in the dinner party. 16 The early part of Sunday 28 September 2003 was unremarkable. The prisoner read the newspapers, he and his wife went to a nursery and in the early afternoon they visited their son and his wife. 17 Later in the afternoon the prisoner went alone to an ex-servicemen's club at Nowra, which he often patronised. Images taken by security cameras at the Club show the prisoner entering the Club at 3.47 in the afternoon. No images were taken of persons leaving the Club but the last image showing the prisoner at the Club was taken at 5.24 and I find that he left the Club shortly afterwards. 18 While he was at the Club, the prisoner had a light beer and won $200 on a poker machine. He did not become even slightly intoxicated. An employee of the Club, who knew the prisoner, observed that, unusually for him, the prisoner was unshaven and that he was "a bit quieter than normal". 19 Police who later investigated the death of Mr de Groote found a letter in the prisoner's handwriting in a pocket of the shirt the prisoner had been wearing on 28 September 2003. The letter was addressed to "Theresa, Victoria, Daniel", that is to the prisoner's wife, daughter and son. In the top right-hand corner of the first page of the letter appear the words and figures "3.40 pm Sunday". I find that the prisoner wrote the letter on Sunday 28 September 2003 and had completed writing the letter by the time he entered the Club at 3.47 pm. The letter was in the following terms:- "3.40 pm Sunday Therese, Victoria, Daniel Why did I do it? It is because I have failed all of you. With me gone you should be able to restart. Curse me if you must, as I curse myself. Please bury me next to my father Jean in Mollymook. Close the shop and ask Wally to find someone to finalise it all. No fire sale in Nowra. Return anything and everything to companies to pay bills. The outstanding one can wait for the matter to go through the courts. Take no shit from anyone. But forever stop the vultures. $5,000 on bedroom table should see you for a while. Get Cole to organise a garage sale to sell all the crap in the garage. Tool to Daniel if he want them otherwise sell sell sell. I had to get rid of him. Not only he was stealing from the shop but was quite blatant about it as he said I owed him – what I do not know. He has been waging a mini war with mum and yes I have seen the bruises from where he hits her. I do love all of you. Jacques/Dad".