New South Wales Supreme Court CITATION : REGINA v. LAING [2004] NSWSC 510 HEARING DATE(S) : 19/5/04 - 21/5/04; 24/5/04; 26/5/04 - 28/5/04; 31/5/04; 10/6/04 JUDGMENT DATE : 10 June 2004 JURISDICTION: Criminal JUDGMENT OF : Greg James J at 1 DECISION : A term of imprisonment for six years and six months to date from 10 September 2002. That sentence will expire on 9 March 2009. There will be a non-parole period of three years and six months which, having commenced on 10 September 2002, will expire on 9 March 2006. The earliest date upon wihch the offender will be eligible for release on parole is 9 March 2006. CATCHWORDS : Criminal law - sentence - manslaughter - plea to alternative to murder - reduction for early plea - contrition and co-operation - effects of alcoholism and intoxication - also depression - landlord drowning boarder in bath and disposing of body - conduct bizarre - strong prospects of rehabilitation. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Thomson & Houlton (2000) 49 NSWLR 383 Wilson (1992) 174 CLR 313 CASES CITED : Puckeridge (1999) 168 ALR 4 Lavender [2004] NSWCCA 120 MacDonald (CCA, unreported 12 December 1995) Bugmy (1990) 169 CLR 525 PARTIES : REGINA v. LAING, Norman Keith FILE NUMBER(S) : SC No. 70009 of 2003 COUNSEL : Crown: P. Adey Offender: M. Thangaraj/D.M. Jay SOLICITORS : Crown: Director of Public Prosecutions Offender: Lapaine Pomare & Forster IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. THURSDAY 10 JUNE 2004 No. 70009 of 2003 REGINA v. NORMAN KEITH LAING SENTENCE 1 HIS HONOUR: The offender, Norman Keith Laing, towards the expected end of his trial on an indictment for murder, for the first time, received the offer from the Crown of a plea of guilty to manslaughter in full discharge of that indictment. It is apparent that the prospect of the offender pleading guilty to manslaughter had been in existence for some considerable time. He accepted the plea when it was first offered. 2 It is conceded by the Crown that in those circumstances, he should be entitled, when the court takes into account that plea under s.22, of the Crimes (Sentencing Procedure) Act 1999, to the consideration of the imposition of a lesser penalty than would otherwise have been imposed. That penalty, it is submitted by the Crown, and as I understand it, is also accepted by the defence, should be reduced by 25% from that which it would otherwise have been by reason of: that early plea; contrition which the offender showed to some extent initially, and subsequently when speaking to his friend Mr. Hill and to the police; and by reason of his co-operation with the police, such that having regard to what was said by the Court of Criminal Appeal in Regina v. Thomson & Houlton (2000) 49 NSWLR 383 that 25% would be an acceptable discount to apply not only in respect of the application of s.22, but in the application so far as it is appropriate of s.22A and s.23. 3 The offender, from the moment he spoke to Mr. Hill enquiring concerning the body, was entirely co-operative, as best I find he could be, with the police. I am prepared to discount the sentence in accordance with the submissions made both on the offender's behalf and by the Crown to that extent for those reasons. 4 It is common ground that the Crown's account in their written submissions to me of the circumstances of the offence is to be regarded as appropriate:- "1. The prisoner was arrested at Lithgow on 10 September 2002. He was charged with murder the following day and was refused bail. 2. He was formally arraigned for the first time at his trial, which commenced on 17 May 2004 and recommended (following the discharge of the first jury) on 19 May. Both times he pleaded not guilty to murder, the only charge in the indictment. 3. On 31 May, he entered a plea to a charge of manslaughter, which the Crown accepted in full discharge of the indictment for murder. This was the first time that the Crown had agreed to accept the plea of guilty to manslaughter. 4. For approximately 12 months before September 2002, the deceased, Raymond Stubberfield (aged 54 and known as 'Wally'), had been a boarder at the prisoner's home at 24 Macauley Street, Lithgow. The deceased's board was $80 per week but he was frequently in arrears. The prisoner spoke about his boarder's financial unreliability to various associates. He also repeatedly pressed the deceased to make good his arrears. In June 2002, he phoned Lorraine Griffiths, Mr. Stubberfield's sister and complained to her about the money Mr. Stubberfield owed him. 5. The deceased was a single man who supported himself by working as a casual painter. He was a regular patron of the Court house Hotel in Lithgow. He would usually attend in the late afternoon and spend a couple of hours there, drinking beer and playing the poker machines. He was last seen leaving the hotel around 7.00 pm on Sunday 8 September 2002. He had spent that day and the previous day painting a house at Hartley for which he earned $100 cash each day. 6. About 9.00 pm on Tuesday 10 September, the prisoner confessed to a friend, Michael Hill, that he had killed Wally by forcing him into a bath, which he had filled, and holding his head under the water. The prisoner stated that Wally was wearing overalls at the time of this incident and that he had grabbed Wally by the neck of his clothing to force him into the bath. The prisoner told Mr. Hill that he had used bleach to clean up some blood resulting from the death. The prisoner further revealed to Mr. Hill that he had loaded the deceased's body onto his utility and driven to a bush area where he deposited the body. 7. The prisoner repeated his confession to Senior Constable Darrin Hammonds, Mr. Hill's brother in law and an associate to Laing's through their shared interest in playing the bagpipes. The prisoner told the officer that Wally wrestled when he held him under the water. When asked how he knew that he had killed Wally, Laing replied, 'he wasn't moving'. When asked if he had checked to see if he was moving, Laing replied, 'no I killed him. He wasn't moving'. He stated that the incident occurred two nights earlier, on Sunday 8 September. 8. The prisoner participated in several lengthy electronically recorded interviews with police. He told police that he remembered turning on the bath tap but not how long he let the water run. He remembered holding the deceased under the water, then picking him up, putting him on the back of his utility and driving to Blackfellows Hands where he deposited the body near a track. On his return to Lithgow, he threw the deceased's mobile phone onto a garden bed in a plaza in the main street. That phone ended up back at his place after being found by a person who managed to identify the owner. 9. The prisoner told police that he could not remember how the deceased came to be in the bathroom, nor whether there was an argument prior to his submerging the deceased in the bath. He did acknowledge that he had raised the issue of unpaid rent with the deceased one or two nights earlier. 10. He also told police that he was under the influence of alcohol and marijuana having consumed six to seven cans of full strength beer from between 3.00 pm and 4.00 pm and having smoked three or four joints of marijuana blended with tobacco in a ration of ¼ marijuana to ¾ tobacco." 5 I interpolate the following. There was however evidence at the trial including from psychiatrists that the offender had a long history of alcoholism to the point where, immuned to the inebriating effect of alcohol, he could function or give an appearance of functioning in such tasks as working and driving as though he were normal. 6 I accept the submissions made on his behalf in this regard and in particular, accept the submissions that he had, when speaking to the police and referring to six or seven cans of full strength beer, understated the degree of his intoxication. 7 In his interviews with the police, it is quite apparent that the offender suffered from severe memory lapses. It is further apparent that he was so accustomed to heavy drinking that his ability to estimate what he had had to drink after the event was itself affected. His pattern of drinking as given in histories to the doctors and as observed by his friends, workmates and acquaintances is such as to enable me to find in accordance with the submissions, made on his behalf, that he must have had a great deal more to drink than the six or seven cans. 8 I do not pass from this topic without also noting that he had had at least two to three joints of marijuana blended with tobacco and that all of this self-medication underlay a state of clinical depression to which the psychiatrists adverted in their evidence at the trial. 9 The Crown's submissions continue by referring at paragraph 11 to the offender's deep remorse:- "11. The prisoner repeatedly expressed deep remorse for what he had done to Wally. For example:- Q.435: I wish I hadn't have done it. Q.436: I shouldn't have done what I did. 12. The prisoner agreed to help police find the body and for that purpose accompanied them to the relevant area of the Newnes State Forest. That excursion was unsuccessful. The body was subsequently located after the prisoner had been returned to the police station. He accompanied police to the site where the body had been found. Again he admitted that he was responsible for the death of Mr. Stubberfield and stated that he was ashamed of what he had done. 13. Traces of the deceased's blood were found on the jeans the prisoner admitted wearing on the day of the offence. 14. Dr. Duflou, pathologist, was unable to definitively attribute the death of Mr. Stubberfield to immersion but he found evidence of injuries to the deceased's head, neck and arms, which were consistent with the application of blunt force and which, in his opinion, would have occurred around the time of death. One of them, to the left occipital region of the head, caused bleeding. Some of the injuries could have caused unconsciousness. They suggested an assault or at least a struggle prior to the immersion. 15. The deceased was in poor health. He suffered from advanced coronary artery disease and emphysema. He weighed on 47 kilograms and had a high blood alcohol reading." 10 It is not at all clear as to what the offender actually did do. His admissions to the police were plainly of the nature of reconstruction. The deceased suffered a laceration to the back of his head in addition to the bruising referred to by Dr. Duflou which I have noted above. It seems probable that that laceration to the head, and some at least, of that bruising was occasioned by the offender forcing the deceased into the bath, a bath which it is not clear he ran beforehand but which he certainly ran, and in which the water may have been as shallow as 10 centimetres. 11 Dr. Duflou's evidence was such as to make it difficult to positively conclude that the deceased died as a result of drowning, that term being used in the colloquial sense of being immersed below the surface of water so that he could no longer breathe. Nonetheless, by his plea, and it is clear from the whole of the evidence (see Puckeridge v. The Queen (1999) 168 ALR 4), the offender caused the death of the deceased either by his act in immersing the deceased or by some other of his acts including the depositing of the body out in the bush. The precise mechanism, however, which occasioned the deceased's death, was not established beyond reasonable doubt by Dr. Duflou's evidence nor, in the light of the plea, need it be. 12 In this case, it is quite clear that none of the offender's acts nor their sequence were involuntary. Those acts were intended so that the requisite test for manslaughter by unlawful and dangerous act enunciated by the High Court in Wilson v. The Queen (1992) 174 CLR 313 was satisfied, whether the deceased died by way of the effects of what the offender had done taken in conjunction with advanced coronary artery disease and emphysema or solely through the immersion (see Puckeridge (supra)). 13 Although at the trial the recent decision of the Court of Criminal Appeal in Regina v. Lavendar [2004] NSWCCA 120 was raised which applies specifically to manslaughter by criminal negligence, it is sufficient for the purposes of sentencing that I note that the offender's acts so far as they constituted an unlawful assault of the deceased in placing him in the bath, immersing him, dragging him through the house and transporting him in the utility to his abandonment at Blackfellows Hand Road were accompanied by malice. 14 That malice is sufficiently to be found having regard to the definition of malice in s.5 of the Crimes Act 1900 in his acting recklessly or wantonly but without actual malice. I say this because it was not at all clear what the offender might have sought to achieve by the course he was adopting. Suggestions were made that it was some sort of reprisal against the deceased in rage arising from frustration because the deceased had drunk and gambled away money that should otherwise have been paid for rent. 15 Evidence was given to that effect at the trial by Dr. Parmegiani, but it was purely speculative. It is not at all clear to me on what the offender has admitted, and I note I have not heard from the offender either in the trial or on sentence, that the offender sought to do more than seek to terrify the deceased by this experience with a view to obtaining payment of rent for the future. 16 Indeed, the accounts given by the offender and his lapses of memory, which the psychiatrists all seem to accept were genuine, does not allow one to be satisfied to the requisite standard of the dynamics of what was going on at all except that the actions were deliberate and the death a consequence of them and the offender was at least reckless and there was contrition. So far as the cause of death could be said to be immersion, Dr. Duflou in my view, entirely appropriately categorised that as available because of the co-operation of the offender and the nature of admissions made by the offender and made promptly. 17 In the Crown's submissions, the following appears:- "17. The only evidence as to how the deceased met his death comes from the prisoner. He admitted forcing the deceased into a bath, which he had filled with water; submerging him; and holding him under the water while the deceased 'wrestled'. The prisoner must have employed a substantial degree of force to overpower even his physically vulnerable boarder, who would have instinctively resisted the unwanted immersion. 18. It is now known at what point Mr. Stubberfield died. If, as the limited admissions suggest, he was still alive when forced into the bath, it is unlikely that he would have survived the immersion for very long. The immersion itself could have caused his death. Alternatively, the trauma of the immersion could have contributed to a heart attack or some other condition, which speeded his death. The laceration and bruising found on the deceased are consistent with his having been assaulted prior to the immersion. 19. Whatever the mechanics of death were, the prisoner recognised that he was responsible for it and took steps to conceal his involvement in Mr. Stubberfield's death by removing his body from the house to a remote location and later discarding the deceased's phone." 18 The Crown also submitted that it was open to the court to find the prisoner was enraged by his frustration at the deceased's persistent failure to pay his board and that, fuelled by an unknown but probably substantial consumption of alcohol and marijuana in that state of rage, the offender did the acts causing death. For the reasons that I have given, I am simply unable to be satisfied to the requisite extent that there was such rage. I am unable to be satisfied as to what emotional basis or consideration the applicant might have had for what he was doing. His conduct was entirely bizarre. I see no basis upon which there is any likelihood of a repetition of that conduct. 19 The offender's submissions except in respect of the quantity of alcohol that had been consumed on this occasion, seem not to be out of accord with the submissions made as to the facts by the Crown as to the objective circumstances of the offence. 20 As to subjective matters, on the offender's behalf, it is asserted that he had been suffering from a condition of depression since witnessing the suicide of his cousin in 1993, that his drinking had grown more and more heavy, he had become a more and more solitary person, his social recreation of bag piping had come to be conducted some distance away from his home and his former associates in that pursuit. He had taken to consuming marijuana. He drank heavily at hotels but did not evince a violent character albeit he was loud. 21 His general practitioner believed that he was self-medicating for his depression and I find that his depression, if not severe, was certainly substantial. He had worked consistently cutting out the components of kitchens for his employer, albeit he would be late to work on occasions by reason of the consumption of alcohol, he had shown himself to be a competent and reliable employee. 22 He seems to have had almost no social interaction except through those with whom he was engaged in bag piping. He has one previous conviction for a mid range PCA and suffers from a substantial hearing deficit. 23 He is now 35 years of age and it is accepted by the Crown he is unlikely to re-offend. His employer is prepared to support him and has provided a statement to the court which statement, together with the statements of Allen and Maggie Summers, will be marked as Exhibit 1 on sentence, in which his employer informs the court that he would not only receive him back, not only offer him support, but can speak on behalf of the congregation of his church which is prepared to provide a support network to him. 24 Mr. and Mrs. Summers who have known him since he was about 14 years old and who are active in the Scots community in the Blue Mountains and in bag piping, are prepared to take him into their home when and if he is released, to assist him, and in particular, to assist him to avoid alcohol, their home being a temperance household. 25 The submissions for the offender point out, and I accept, that the offence was not part of a planned or organised criminal activity. There was no prior or substantial record other than the mid range prescribed concentration of alcohol offence to which I have referred. He was a person otherwise of good character having been employed continuously for over seven years in the circumstances described in evidence by Mr. Beutel at the trial, and which are referred to by Mr. Beutel in the statement to which I have already made reference. He is unlikely to re-offend. He has good prospects of rehabilitation. 26 Indeed, this offence to me, appears so bizarre that I am of the view it is highly unlikely that anything like this might ever occur again and his prior record is such as to indicate a degree of concentration on doing what he regards as the right thing by way of routine as to make it most unlikely that, particularly in the absence of drinking, he would ever infringe the criminal law in any way. 27 He has shown full remorse and contrition. He has pleaded at the earliest opportunity, and in terms of issues at the trial, the only issues agitated so far as relevant to this matter are issues raised by counsel as matters of law on his behalf. He has never sought to resile from his responsibility for causing the death of his house mate. 28 Both the Crown and the defence have made submissions to him as to the appropriate course to take by way of sentencing with reference to a number of decided cases. It is trite law that the sentencing for manslaughter raises one of the most difficult tasks on which a sentencing judge must embark. A human life has been taken. The offence is, therefore, one of the most serious in the calendar. The courts are required when sentencing for this offence, to have regard to the core element of the offence. That is to say, that a person's life has been unlawfully taken. 29 The significance of that matter must not be underrated. On the other hand, it is also trite law that the circumstances in which human lives may be unlawfully taken, are so varied that it is impossible to make any general statement concerning the proper level of penalty for any individual manslaughter. In R v. MacDonald (unreported 12 December 1995), the Court of Criminal Appeal had regard to these matters when referring to this crime. 30 I have, for the purposes of this sentencing, examined many offences and sentences passed by the courts in this State and considered by the Court of Criminal Appeal for the crime of manslaughter, whether committed by reason of reduction from the crime of murder involving the requisite specific intent to the crime of manslaughter by reason of provocation, diminished responsibility, impaired responsibility or arising as an alternative to a charge of murder by reason of manslaughter by an unlawful and dangerous act. 31 It is neither appropriate nor legally permissible to embark upon exercises of comparison between this and other individual cases. It is not appropriate because as far as I am aware and as far as the research of the Crown goes, there is no factually comparable case that researchers have disclosed. It is important however, that the court, when passing sentence, and adverting to all the matters to which I have referred, makes it clear that although one has regard to the offender's subjective circumstances, and the offender's prospects for the future, nonetheless it is essential that to mark the court's disapproval of this drunken, violent homicide, a substantial sentence of imprisonment be passed. 32 The non-parole period, to which s.44 of the Crimes (Sentencing Procedure) Act 1999 requires me to turn first, whilst it may particularly reflect considerations appropriate to a shorter period having regard to what the High Court said in Bugmy v. The Queen (1990) 169 CLR 525 has to be determined at an appropriate length, and particularly having regard to that, I find special circumstances in the prospects of rehabilitation, the offender's limited degree of understanding of what he might occasion, his prior good character and in the support that is and will be available in the community to the offender on his release, nonetheless the non-parole period and hence the parole period must reflect the objective circumstances of the offence and the objects of sentencing. 33 In fixing the head sentence I note that by reason of s.44(2) the balance of the term, must not exceed one third of the parole period unless the court decides as I have that there are special circumstances. In that event, as that section is presently drafted, one selects the non-parole period that is appropriate and then considers whether an extended head sentence is in the special circumstances applicable. It must be remembered in this process that the non-parole period is, of course, that period during which the offender is not able to achieve release from custody and during which he must be detained, that is to say, the portion of the sentence that must be served in custody. The balance of the term may be served in custody. 34 Thus the balance of the term is the balance of a real sentence, the whole of which, unless the Parole Board considers the offender might appropriately be released into the community, is to be served in custody. It will still reflect the objects of sentencing, matters of general deterrence, particular deterrence, and retribution just as the non-parole period does, but it will reflect those matters and the subjective considerations somewhat differently than the non-parole period does. 35 I have regard to those matters when determining what non-parole period for this sentence should be set. It is common ground that the offender went into custody on 10 September 2002. The offender has, therefore, been in custody for a period of over 18 months. During that time detained on remand, there have not been available to him, the classification procedures and rehabilitation procedures that would otherwise be available were he serving a sentence. I take that into account. 36 In my view, the sentence should date from 10 September 2002 and I set a non-parole period of three years and six months to date from that day. In addition, I set a head sentence of six years and six months which will mean that the offender will have the prospect of release during the last three years of his overall sentence. 37 Mr. Laing, for the crime of which you have been convicted, being the manslaughter of Raymond Stubberfield, I sentence you to imprisonment for six and a half years from 10 September 2002. That sentence will expire on 9 March 2009. In connection with that sentence, I impose a non-parole period. That non-parole period is to commence on 10 September 2002 and is to be of three and a half years duration to expire on 9 March 2006. I recommend that should you be released to parole, that the Parole Board impose conditions upon your parole requiring you to accept such treatment and counselling as is thought by the parole officer to be appropriate for your alcoholism and that you be required to submit yourself to the supervision of a nominated parole officer for the entire period of your parole. ********** Last Modified: 06/25/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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