Regina v Isidro IGLESIAS [2004] NSWSC 944

New South Wales Supreme Court

CITATION : Regina v Isidro IGLESIAS [2004] NSWSC 944 HEARING DATE(S) : 30 April 2004 JUDGMENT DATE : 13 October 2004 JURISDICTION: COMMON LAW JUDGMENT OF : Hidden J DECISION : Sentence of 15 years to date from 25 December 2002 with a non-parole period of 11 years. Elible for release on parole on 24 December 2013.

CATCHWORDS : CRIMINAL LAW: Sentence - murder - plea of guilty - stabbing in anger - some provocation, but significant lapse of time between provocative conduct and killing. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Engert (1995) 84 ACrimR 67 PARTIES : Crown Isidro IGLESIAS FILE NUMBER(S) : SC 70103/03 COUNSEL : Mr G Lerve - Crown Mr PM Winch - Offender SOLICITORS : SE O'Connor - Crown Mr P Townsend - Offender

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

HIDDEN J

13 October 2004

070103 /03 - REGINA v Isidro IGLESIAS

REMARKS ON SENTENCE 1 HIS HONOUR : The offender, Isidro Iglesias, has pleaded guilty to the murder of Joseph Baird-Wallis at Byron Bay on 24 December 2002.

Facts The deceased was a 51 year old Aboriginal man who was well known in the Byron Bay area. He was referred to as "Uncle Joe." He lived in a "humpy" type dwelling in bushland reserve near the Byron Bay Youth Centre. He would often go to the Apex Park near Main Beach, Byron Bay, where he would join others who were there and paint or play drums. Gatherings at the park often included homeless people. 2 The offender was living at Lismore with his 5 year old son. The child's mother, Michelle Concannon, from whom he was separated, lived at Sunrise Beach, out of the Byron Bay township. About a week prior to the killing, he travelled to Byron Bay with his son to spend the Christmas period with Ms Concannon. During that week he would go to the Apex Park daily, where he would socialise with the people there, drink and play music. 3 In the afternoon of 24 December 2002 the deceased was at the park, as was the offender, accompanied by his son. The deceased and the offender argued, and the deceased punched the offender to the face several times. There is a conflict in the evidence about the cause of the argument but that is of no moment. The offender left the park and walked several kilometres to Ms Concannon's home. There he armed himself with a large knife and walked back to the deceased's dwelling. 4 The deceased was asleep on a mattress. He awoke, there was an argument, and the offender stabbed the deceased to the right side of the neck and the left ribcage area. The deceased was seated when he was stabbed to the neck but was standing at the time of the stab wound to his left side, which was the more serious of the two injuries. The offender ran from the scene and threw the knife into some bushes. The incident was witnessed by a man who summoned help, but by the time police and ambulance officers arrived the deceased had died. 5 The offender made his way to Surfers Paradise, where he was arrested the following day. He admitted the killing in an electronically recorded interview with police. He said that he took the knife to stab the deceased, but he wanted to send him to hospital and did not intend to kill him. He said that he was very angry because of the deceased's assault upon him at the park, for which he could see no good reason. 6 The offender was born in Cuba and, although he has lived in this country for over 20 years, his English is far from fluent. He did not have the benefit of an interpreter during the police interview. However, for the purpose of these sentence proceedings, he was assessed by Dr Bruce Westmore, psychiatrist and Associate Professor Susan Hayes, psychologist. Of those two reports the most detailed history appears in that of Associate Professor Hayes, who interviewed him with a Spanish interpreter. Both reports flesh out two further matters related to the killing which were hinted at, but not elucidated, in the police interview. Firstly, contributing to his anger was a loss of face because he had been assaulted in the presence of his son. Secondly, he claimed to have been attacked and robbed on previous occasions, and on those occasions the police either did nothing or were unable to locate the perpetrators. As he put it to Associate Professor Hayes, he "was tired of being beaten up and he felt as if he would rather be dead." 7 I accept that all of these factors, none of which was challenged by the Crown prosecutor, had a part to play in his behaviour. The Crown accepts that he intended to inflict grievous bodily harm upon the deceased, not to kill him. He told Dr Westmore and Associate Professor Hayes that he had consumed a considerable amount of alcohol and smoked marijuana on the occasion in question. However, he told the police in the interview that, although he had been drinking, he was not affected and he denied having smoked marijuana. As his counsel, Mr Winch, pointed out, he may well have been less than frank in disclosing to police his use of alcohol and a drug. I accept that he was disinhibited to some extent, at least by alcohol, and that this contributed to his feeling of anger engendered by the deceased's behaviour. 8 Although he attacked the deceased in anger, the killing could not be described as an impulsive or immediate response to the deceased's assault upon him. The walk from the park to Ms Concannon's home, where he obtained the knife, was several kilometres and he then returned on foot to Byron Bay. The unfortunate deceased was then attacked in his own dwelling in circumstances in which he had no opportunity to defend himself. He was seated when the first blow was struck and, in addition, he was well affected by liquor. Testing of a blood sample taken at the post mortem examination disclosed a reading of .294. 9 This is yet another case in which the aggressive use of a knife, although not intended to kill, has led to a tragic result. Mr Winch acknowledged that the use of the knife is an aggravating factor within the meaning of s21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (although, generally, the use of a weapon would be of limited significance as an aggravating feature of a homicide.) The Crown prosecutor suggested that the deceased's seated position and intoxication rendered him "vulnerable", within the meaning of subs (2)(l). I very much doubt that that is the type of vulnerability with which that paragraph is concerned, but the fact remains that those circumstances are significant in assessing the gravity of the offence. 10 The offender has been in custody since his arrest on Christmas Day, 2002. He co-operated with police from the outset, making full admissions in the recorded interview. Moreover, he pleaded guilty to murder at the earliest opportunity. Exceptionally, he entered that plea in the Local Court. I am not persuaded by Mr Winch's argument, which was only faintly pressed, that his co-operation with police amounted to assistance to law enforcement authorities within the meaning of s23 of the Crimes (Sentencing Procedure) Act. Nevertheless, that cooperation and his plea of guilty are significant matters to be taken into account in his favour.