R v WKD and R v MJN [2005] NSWSC 694

New South Wales Supreme Court

R v WKD and R v MJN [2005] NSWSC 694 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23.2.05, 24.2.05, 25.2.05, 28.2.05, 1.3.05, 2.3.05, 3.3.05, 7.3.05, 8.3.05, 9.3.05, 29.3.05,15.3.05, 29.3.05

JUDGMENT DATE : 29 June 2005

JURISDICTION : Criminal

JUDGMENT OF : Mathews AJ

DECISION : See pages 15 and 16 of Sentence judgment

Crimes (Detention After Arrest) Regulations 2998 Evidence Act 1995 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceddings) Act 1987

CASES CITED : R v Fernando(1992) 76 A Crim R 58

Regina - Crown PARTIES : Accused - WKD Accused - MJN

FILE NUMBER(S) : SC 2004/25; 2004/39

Regina: W Roser COUNSEL : WKD: P Zarah SC MJN: A Webb

S C Kavanagh - Crown SOLICITORS : Bell and Partners - WKD S E O'Connor - MJN

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 44 and 45/04

LOWER COURT JUDICIAL OFFICER : Magistrate Corbett

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

MATHEWS AJ

Wednesday 29 June 2005

2004/25 REGINA v W K D 2004/39 REGINA v M J N

SENTENCE

1 HER HONOUR: On 19 February 2003 George Brunker sustained extremely serious head injuries during an altercation - to use a neutral word - at his home at Tregear. A number of his belongings were stolen from his home. Mr Brunker was found several hours later and was taken to hospital in a profoundly unconscious state. Some five weeks later, on 27 March, he died. By this time it was known that the two prisoners, William Dixon and MJN, had been responsible for his injuries. They were subsequently charged with murder. 2 On 23 February 2005, the prisoners were arraigned before myself and a jury. They pleaded not guilty to murder and to aggravated robbery. They pleaded guilty to stealing property from Mr Brunker's dwelling, which was an alternative to the robbery charge. 3 On 9 March 2005, the jury found both accused not guilty of murder but guilty of manslaughter. Both were acquitted of aggravated robbery. 4 A significant preliminary issue at the trial was whether the injuries sustained by Mr Brunker on 19 February were, in a legal sense, causative of his death. Considerable evidence was called on this matter, which served to emphasise the extreme violence and force with which Mr Brunker had been struck. The jury's verdict of guilty of manslaughter shows that they accepted the nexus between these injuries and Mr Brunker's death. There was ample evidence to support this finding. 5 There were a number of possible routes through which the jury could have reached their verdict of manslaughter in relation to each of the accused. The issues were complex and there were no less than six different scenarios, described during the trial as "options A to F", which were presented to the jury in relation to the murder charge, some of which contained their own alternative scenarios. The most significant dispute in the sentencing process has related to the factual findings I should make as to the extent of each prisoner's criminality, and particularly whether either or both of them contemplated the use of violence before going to Mr Brunker's home. In order to resolve this issue and make my own determinations, I have gone back and read the relevant portions of the evidence given at the trial. The oral evidence on this matter primarily came from an eyewitness, Jamie Lee Toomey and from the prisoner Dixon. 6 Before going to the events of 19 February 2003, however, I should briefly refer to some incidents which occurred over the previous few days. These started on Saturday night, 15 February. Mr Brunker was an enthusiastic amateur musician and he would often have friends and acquaintances at his home for parties or for musical events. These sometimes went into the early hours of the morning and frequently involved a considerable amount of alcohol. On the Saturday night, there was a party at Mr Brunker's home which the prisoner, William Dixon, attended. It appears that this was the first time he had ever been to Mr Brunker's home. Whilst there, the prisoner was playing one of Mr Brunker's guitars and when he left he took it with him. He went to a friend's home who lived nearby. Not long afterwards, Mr Brunker arrived with two friends, seeking the guitar. An altercation took place between him and the prisoner Dixon, but they were separated and no serious injury was inflicted on either of them. 7 The prisoner Dixon then went to Jamie Toomey's home where he spent the rest of the night. They had been in a boyfriend/girlfriend relationship for a few months at that time. Ms Toomey said that the next morning she was woken by loud banging at her front door, followed by Mr Brunker coming to her window and asking for the prisoner Dixon. She pretended that he was not there. However, a little later Mr Brunker attacked Dixon, who was still asleep in bed, by going up to the house and striking him through the open window with a baseball bat, causing a bleeding injury to the prisoner's head. Ms Toomey said that as Mr Brunker was getting back into his van, Dixon called out to him, more than once, "I'm going to get you back. You're gone, you cunt." This was substantially supported by Mr Philip McKee, who was in Mr Brunker's van at the time, and who said that the prisoner called out, "Yous are both dead." 8 There were no further physical confrontations or meetings between Mr Brunker and the prisoner Dixon until the assault of 19 February, some three days later. However, there was evidence that, during at least some of the intervening time, Mr Brunker and his friends were driving around the area in his van, apparently looking for the prisoner Dixon. 9 The only witness in the Crown case to describe the events of 19 February 2003 was Jamie Toomey. There were some difficulties with some parts of her evidence, but the basic outline of her account was generally in accordance with other evidence in the case. 10 The assault on Mr Brunker took place in the early hours of the morning on 19 February. The previous day, Tuesday 18 February, Ms Toomey said that she was at the prisoner Dixon's home until mid afternoon. A number of other family members were also there, including the prisoner MJN, who is the prisoner Dixon's first cousin. They were drinking Moselle, she said. She did not join in. At about 4.30 in the afternoon she went to her own home, but returned later that evening, some time after 10 o'clock. At that stage both prisoners were in Dixon's bedroom, together with Dixon's younger brother Alan. After an hour or so they emerged and Dixon suggested to Ms Toomey that they go for a walk. She asked where they were going, but he did not respond. The four of them left the house, but shortly afterwards Alan, who was younger than the others, was taken back home by his mother. That left the two prisoners and Ms Toomey. The three of them walked for a while before the prisoner Dixon, in response to a question from Ms Toomey, said that they were going to Mr Brunker's home. He went on: "No cunt hits me with a baseball bat and gets away with it. The old cunt could have killed me." 11 When they arrived at Mr Brunker's home, Dixon said to Ms Toomey, "Babe, you're the only one who can get this old cunt to come outside." He asked her to knock on the door and lure Mr Brunker out of the house by telling him that some girls had his mobile phone outside and wanted to return it to him. In due course Ms Toomey did as she was requested and Mr Brunker came outside and had a conversation with her. In the meantime, both prisoners had concealed themselves. Ms Toomey said that while she and Mr Brunker were talking, she heard a loud bang. Mr Brunker went back inside and came out with a large bow and arrow. Shortly afterwards, she said, the prisoner Dixon ran at Mr Brunker with an iron bar and struck him on the head several times. The prisoner MJN became involved when he grabbed Mr Brunker from behind and he and Dixon threw him onto the ground in the house. Mr Brunker got to his feet and was fighting Dixon when the prisoner MJN struck him on the head with a beer bottle. Not long afterwards, Mr Brunker fell to the ground. He was bleeding from the nose and mouth and making choking sounds. At that stage Dixon told the others to take anything they wanted. The three of them went through the house collecting property, including cash. Before they left, Dixon told Ms Toomey to ring the police and the ambulance, but she refused. The three of them then left with the stolen property. 12 Mr Brunker was not found until the following morning. An ambulance was called and she was taken to the Nepean Hospital. He was found to have a fractured skull on the left-hand side, with multiple pieces of bone depressed onto his brain. A craniectomy was performed and part of his skull removed, but, as indicated, Mr Brunker died on 27 March 2003. The jury's verdict means that the two prisoners are criminally responsible for his death. 13 The prisoner Dixon gave evidence at the trial. He said that after the incident on the Sunday morning, when Mr Brunker had struck him with the baseball bat, Mr Brunker and his friends had been driving around the area in his van, apparently looking for him, Dixon. He became concerned for his own safety, he said, and he resolved to talk to Mr Brunker and try and sort things out. It was for this reason that he went to Mr Brunker's home in the early hours of 19 February. He asked his cousin MJN to go with him in case things got out of hand. Ms Toomey asked if she could come too. When they arrived at Mr Brunker's home he said that Ms Toomey knocked on the front door. Mr Brunker came out and the two of them had a conversation while he, Dixon, sat out on the footpath. There was a loud bang and Mr Brunker went inside and returned with a bow and arrow. The prisoner Dixon went up to the house and tried to talk to Mr Brunker. He said, "Can you please listen?" At that stage, he said, Mr Brunker said, "Get the fuck out of here" and came towards him brandishing a baseball bat. Dixon said he was scared, so he picked up a small iron bar which was lying on the verandah and struck Mr Brunker once on the left side of the head. He did not apply much force, he said. He and Mr Brunker both dropped their respective weapons and started to punch and wrestle each other. At that stage the prisoner MJN hit Mr Brunker on the head with a beer bottle, and not long afterwards Mr Brunker fell to the ground. Jamie Toomey then started to take Mr Brunker's property, which she handed to him, Dixon. He asked her to telephone the police and the ambulance, but she refused. 14 The prisoner MJN did not give evidence. 15 There were some serious problems with the version given by the prisoner Dixon. He was a most unsatisfactory witness in many respects and there were numerous inconsistencies within his evidence. These included inconsistencies on highly pertinent matters. 16 Even more significant was the contrast between Dixon's evidence as to the size of the iron bar - barely more than a stick on his version - and the lack of force with which he said he struck Mr Brunker, and the medical evidence as to the injuries inflicted. It was accepted on sentence by Mr Zahra SC, who appeared for the prisoner Dixon, that it must have been Dixon who inflicted the major injuries to the left side of Mr Brunker's head. It is unnecessary for present purposes to detail the evidence as to the massive head injuries sustained by Mr Brunker. Suffice it to say that the skull bone in that area had been fractured into multiple small pieces and was pressing against the brain. Professor Fulde said that in 20 years of having seen head injuries caused by assaults, the extent of these fractures was unusual in severity. He described this as "one of the major assaults to a skull" which he said was caused by a "major amount of force". 17 With this background, I turn to consider the alternative routes through which the jury might have reached their verdict in relation to each of the accused. The situation is different in relation to each of them, and I shall discuss them separately. 18 I will start with the prisoner William Dixon. It was, on the whole of the evidence, clearly he who inflicted the major injuries which ultimately led to Mr Brunker's death. 19 The first option the jury was asked to consider (option A), related to the particular accused who inflicted the fatal injuries, namely, in my finding, Dixon. This option proceeded upon the assumption that Dixon intended at the time to kill the deceased or inflict grievous bodily harm, and went on to raise the issue of self-defence. Under this defence, it was open to the jury to bring in a verdict of manslaughter if it considered that the accused's response was not objectively reasonable, but the Crown had not disproved that he personally believed his conduct was necessary in self-defence. This is the "excessive self-defence" scenario. 20 Under the next option, option B, the jury could have entered a verdict of manslaughter if it found that, at the time of inflicting the fatal injuries, the prisoner intended to harm the deceased in a manner which fell short of causing him grievous bodily harm. Option C raised the issue of provocation, and therefore provided a further route by which the jury could have convicted the prisoner Dixon of manslaughter. Options D, E and F related only to the person who did not himself inflict the fatal injuries and are therefore, on my finding, relevant only to the prisoner MJN. 21 Given the extent of Mr Brunker's injuries, I find it inconceivable that the person who inflicted them intended to do anything less than inflict grievous bodily harm. Similarly, the objective component in the defence of provocation made this defence a problematic one. Moreover, the prisoner Dixon never really described himself as having lost control, which is an essential ingredient in the defence of provocation. 22 In the end I am driven - more by a process of elimination than anything else - to conclude that the only available scenario, which is consistent with the jury's verdict, is one of excessive self-defence on the part of the prisoner Dixon. 23 This is not, however, the end of the matter in relation to the prisoner Dixon. There is also an outstanding issue as to his intention when he and the others went to Mr Brunker's home on the night of the assault. This is very highly relevant when considering the extent of his criminality. On his own version, the prisoner Dixon went to Mr Brunker's home intending only to speak to him, but in the heat of the moment a physical confrontation occurred in which he felt compelled to defend himself. The jury's verdict means that he went objectively too far in doing so. If one were to accept this scenario, the overall level of criminality would have to be very much in the lower range available for the offence of manslaughter. 24 The jury's verdict necessarily involves a finding that, when the prisoner Dixon went to Mr Brunker's home, he did not intend to kill him or inflict grievous bodily harm. This is consistent with the evidence that neither Dixon nor his companions took a weapon with them when they set out that night. On the other hand, I am quite unable to accept that the prisoner Dixon's intention was only to talk to Mr Brunker. Dixon's previous threats and comments, combined with the whole of the evidence of what occurred on 18 and 19 February - not to mention the time of day at which this visit occurred - all compel me to the conclusion that Dixon was planning a physical confrontation with Mr Brunker that night. This is also, to some extent, borne out by transcripts of intercepted conversations involving the prisoner Dixon which were admitted into evidence. 25 I should say at this point that, although there were problems with parts of Jamie Toomey's evidence, and although she had received a non-custodial sentence for her role in the night's activities, giving her a powerful incentive to adhere to her latest version, I regarded her as a much more credible witness than the prisoner Dixon. As a result, where there is a conflict between the evidence of the two of them, and the jury's verdict permits it, I would readily accept her version in preference to his. 26 In the result, I find that the prisoner Dixon wanted to get back at Mr Brunker when he went to his home. He intended to assault him, albeit in a manner which fell short of inflicting grievous bodily harm. The situation escalated from there. When Mr Brunker saw Dixon, he armed himself in a manner which made Dixon believe that it was necessary to defend himself by killing Mr Brunker or inflicting grievous bodily harm upon him. It was this belief that led Dixon to strike Mr Brunker with the iron bar. Although it was a genuine held belief, his action was not a reasonable response to the circumstances as he perceived them. 27 This puts the prisoner Dixon's culpability at a much higher level. He went to Mr Brunker's home intending violence and it was this which set the scene for everything that happened thereafter. He was not to know that the violence would escalate as it did, but he himself ultimately displayed extreme violence in the degree of force with which he struck Mr Brunker. The jury's verdict means that he genuinely believed this violence to be necessary in self-defence, but it was not in fact a reasonable response to the circumstances as he perceived them. 28 I accept that, after Mr Brunker had collapsed to the ground, the prisoner Dixon asked Jamie Toomey, who had a mobile phone, to telephone the police and the ambulance. She refused to do so. This evidence, which came from both Ms Toomey and the prisoner Dixon, might well have been taken into account by the jury when they acquitted Dixon of murder, but in my view it does little to reduce his culpability for manslaughter. After all, he had plenty of other opportunities during the night to make a phone call himself, but he did not do so. 29 I turn now to consider the prisoner MJN. His situation is significantly different from that of Dixon. MJN was much younger. He was clearly under his older cousin's influence, and he went to Mr Brunker's home at Dixon's request. MJN had nothing against Mr Brunker. Certainly he struck Mr Brunker on the head with a beer bottle, but this was at Dixon's request, at a time when Dixon and Mr Brunker were already fighting. It was Dixon, not MJN, who inflicted the extreme injuries which later led to Mr Brunker's death. 30 The options considered by the jury in relation to the prisoner MJN (accepting that it was not he who inflicted the fatal injuries) were options D, E and F. Option D could only have resulted in a conviction for murder, and can be set aside for present purposes. Option E assumed that there was a pre-existing criminal enterprise between the two prisoners to assault Mr Brunker in a way that fell short of inflicting grievous bodily harm. Option F assumed that there was no such agreement. It contained two possible manslaughter scenarios. First, that the prisoner aided and abetted the other prisoner in an unlawful and dangerous act; secondly, that it was a case of excessive self-defence (or, in MJN's case, defence of his cousin Dixon). 31 Mr Angus Webb, who appeared for the prisoner MJN, argued with some force that I should not be satisfied beyond reasonable doubt that there was an agreement between the two prisoners to assault Mr Brunker when they went to his home. He urged that I should find, in accordance with option F, that MJN aided and abetted an unlawful and dangerous act. 32 My difficulty with this submission is simply this. The prisoner Dixon, on my finding, clearly went to Mr Brunker's home intending to assault him. I cannot for a moment believe that he kept this intention to himself. He and MJN had spent some considerable time together before they left for Mr Brunker's home. They had deliberately excluded Jamie Toomey from their conversations. Indeed, when Dixon eventually told Ms Toomey where they were going, he said, in the company of MJN: "No cunt hits me with a baseball bat and gets away with it." When they arrived at Mr Brunker's home, and Ms Toomey was speaking to Mr Brunker at the door, MJN concealed himself behind a piece of furniture. 33 I therefore find that the prisoner MJN must have known, before they reached Mr Brunker's home, that Dixon was planning to assault Mr Brunker. MJN continued to accompany him. To this extent there was an agreement between them. Therefore option E applies in relation to the prisoner MJN. However, given the other factors in the case, I do not regard this as a highly significant matter in assessing MJN's criminality. MJN was, as I have said, very much under his older cousin's influence. He was only fifteen years old at the time. Dixon had a very strong sense of grievance against Mr Brunker, which he no doubt communicated to his cousin. The younger boy might well have thought that there was an element of justice in what Dixon was contemplating. This is by no means to excuse MJN. He did, after all, strike Mr Brunker on the head with a beer bottle. But this was at Dixon's request after a fight had broken out between Dixon and Mr Brunker and, as we now know, after the fatal injuries had already been inflicted by Dixon. MJN shares a degree of culpability for Mr Brunker's death, but it is at a much lower level than that of Dixon. Dixon was very much the leader in this whole enterprise and MJN the follower. 34 Before turning to the subjective features of the two prisoners, I must refer to the stealing charge to which they both pleaded guilty. The three of them, including Jamie Toomey, took a great deal of property from Mr Brunker's home. These included cash, cameras, hi-fi equipment, an electric guitar and various other items. The combined value must have been very considerable. Much more important, however, were the circumstances in which this property was taken. Mr Brunker was lying on the ground, obviously very seriously injured, while the prisoners took advantage of his immobility to ransack his house and collect whatever took their fancy. It was a very serious offence indeed of its type. Moreover, I reject the prisoner Dixon's evidence that Jamie Toomey was the primary instigator of this offence. Rather, I accept her evidence that it was Dixon who told the other two to take what they wanted. 35 I turn now to consider the subjective features of the two prisoners. First, William Dixon. He is now twenty years old, having been born on 28 December 1984. He was eighteen when these offences took place. Dixon is an aboriginal who was brought up in Coonamble. He is one of a large family. His father, who gave evidence on sentence, used to be employed in the Department of Land and Water Conservation and was closely involved with Aboriginal Land Councils. He spent much of his time travelling around the State. His frequent absences put considerable pressure on his family, particularly his wife, who developed serious alcohol problems. In about 2000 the family moved to Sydney after their house in Coonamble had burnt down. It was about this time that the prisoner left school. He was in Year 10 at the time. 36 The prisoner's family have remained supportive of him, and visit him regularly in gaol. His father said that he has seen an improvement in his son's attitude since he has been incarcerated. 37 The prisoner is said to be a talented musician who, before he went into custody, used to teach music and craft to children. He worked for a company called Big Art, and often travelled to country towns discussing aboriginal issues in an artistic context. He had a long-term relationship, which was interrupted for a few months when he took up with Jamie Toomey. As a result of this long-term relationship he has two sons, presently aged about five and nearly two. The prisoner's lack of contact with his sons is said to be very distressing to him. 38 Dr Olaf Nielssen saw the prisoner at Silverwater Gaol in January this year, and subsequently prepared a report which was tendered on his behalf. The doctor noted a history of occasional hazardous alcohol abuse but no evidence of mental illness which might have affected Dixon's legal responsibility for this offence. Dixon told him that he intended to make the most of his imprisonment by furthering his education and artistic training. 39 So far as I can discern, Dixon has shown no real remorse for his actions. He obviously regrets very much that the whole episode occurred, but he has continued to assert that he had no choice but to act as he did. In other words, he is still, in many ways, blaming the victim for the escalation of the violence. 40 Apart from a minor offence when he was thirteen, for which he was put on probation, Dixon's first brushes with the law occurred in 2002. In January of that year he was fined for maliciously damaging property. In December he was put on probation and ordered to do community service for a series of offences including breaking and entering, offensive behaviour, assaulting a police officer and resisting arrest. On 19 March 2003, precisely a month after the assault on Mr Brunker, he was arrested and charged with assault occasioning actual bodily harm, malicious damage to property, common assault and two charges of breaching an apprehended domestic violence order. In due course, on 21 April 2004, he was sentenced to a head sentence of eighteen months imprisonment with a non-parole period of thirteen months to commence on 19 March 2003 and expire on 18 April 2004. It follows that his sentence for the present offences should be specified to commence on 18 April 2004. 41 I turn to the prisoner MJN. He is still only seventeen years old, having been born on 23 July 1987. He also is an aboriginal who comes from a large family. He has lived most of his life in the Coonamble area, but has also spent some time in Dubbo and Sydney. He left school after completing Year 9. His family is a supportive one, and he has had an essentially uneventful childhood, although he has at times been a consumer of both alcohol and marijuana in very large quantities. He has no relevant criminal history. 42 Unlike Dixon, the prisoner MJN has expressed considerable remorse and regret for his role in the killing of Mr Brunker. 43 Two reports were tendered on behalf of the prisoner MJN. In essence, these show him to be an immature, introverted young man with low self-esteem who is likely to submit to the influence of his peers. He frequently experiences anger and frustration, and lacks the coping mechanisms to deal with these emotions. He requires specialised counselling to deal with his these problems. 44 MJN was on bail until he was convicted of manslaughter on 9 March 2005. Back in 2003 he had eighteen days in custody in relation to this offence. Accordingly, his sentence should commence on 19 February 2005. 45 Since being in custody, MJN has been studying English and Maths. He hopes to achieve his School Certificate. It is recommended on his behalf that he remain in the juvenile justice setting while serving his sentence. It is also suggested that he would benefit from a shorter non-parole period with a lengthier period of parole. I propose to accede to both of these recommendations. 46 In relation to both prisoners, I have taken into account the various matters raised in section 21A of the Crimes (Sentencing Procedure) Act 1999. I have already mentioned the most important of them. Of the others, some are inherent in the offence of manslaughter, and others are plainly inapplicable to the present circumstances. I do not propose to go through each of them. 47 I have also taken into account the various matters raised by Wood CJ at CL in R v Fernando insofar as they are relevant to the present circumstances. Both prisoners were brought up in aboriginal communities, principally in Coonamble. Alcohol was a daily fact of life. It is difficult to know what part alcohol played in the present offences, but it might well have had a disinhibiting effect, given that both prisoners had been drinking for some time before leaving for Mr Brunker's home. 48 The youth of both prisoners is a significant feature, particularly in relation to MJN, who was only fifteen at the time of the offences and is still not yet eighteen. The combination of their youth and their background constitute, in my view, special circumstances under section 42(2) of the Crimes (Sentencing Procedure) Act 1999. 49 One thing I have thus far not mentioned is the very moving victim impact statements which were read out in court during the sentencing process. These came from Mr Brunker's son and daughter, who suffered great distress at seeing their father so horrifically injured and unable to communicate with them. Consistent with authority, I cannot and do not treat their distress as a relevant factor on sentence. However, these statements graphically bring home the extent of the trauma suffered by Mr Brunker before his death, and the high degree of force which must have been applied by the prisoner Dixon in order to cause such extreme injuries. 50 The prisoners need to be separately sentenced in relation to the manslaughter and the stealing charges. I propose to impose what I regard as the appropriate sentence for each offence, but then, having regard to the principle of totality, to make the stealing sentence partially concurrent with and partially cumulative upon the sentence for manslaughter. 51 The maximum sentence for manslaughter is twenty-five years imprisonment. It was submitted by the Crown that the objective criminality of both prisoners brings this case within the worst case category for this offence. On the other hand, both defence counsel submit that their culpability falls within the lower range for manslaughter. I certainly accept this to be the case in relation to the prisoner MJN, but by no means in relation to Dixon. In relation to Dixon, it is a very serious offence of its kind. It must be remembered that all of this took place at Mr Brunker's home. 52 William Dixon, in relation to the charge of stealing from a dwelling and in lieu of the sentence imposed previously, I sentence you to a fixed term of one and a half years to commence on 18th of April 2004 and therefore to expire on the 17th of October 2005. That is one and a half years.