New South Wales Supreme Court CITATION : Regina v Michael Davison Tillman [2004] NSWSC 794 HEARING DATE(S) : 16, 17 November 2004 JUDGMENT DATE : 3 December 2004 JUDGMENT OF : Dunford J DECISION : Sentenced to imprisonment for non-parole period of 3 years and 3 months with balance of 2 years 9 months making a total sentence of 6 years CATCHWORDS : Criminal Law - Sentencing - plea of guilty to manslaughter LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Isaacs (1997) 41 NSWLR 374 PARTIES : Regina v Michael Davison Tillman FILE NUMBER(S) : SC 2004/13 COUNSEL : G B Lerve - Crown P R Boulten SC - Prisoner SOLICITORS : S Kavanagh - Crown Murphy's Lawyers - Prisoner - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J FRIDAY 3 DECEMBER 2004 2004/13 REGINA v MICHAEL DAVISON TILLMAN SENTENCE 1 HIS HONOUR: The prisoner, Michael Davison Tillman, was arraigned before me on 25 October 2004 for the murder of Christopher Joseph Millen at Cremorne on 26 June 2003. On arraignment, he pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment. This was in accordance with discussions which had taken place over some weeks between the prisoner's lawyers and the Crown, and I regard it as a plea in effect entered when the alternative charge of manslaughter was first offered. 2 An Agreed Statement of Facts was tendered which was supplemented by evidence from the prisoner and others. Such evidence was all consistent with the Agreed Statement of Facts. 3 The deceased, Christopher Joseph Millen was 31 years old. The post mortem examination revealed that he was 101 kg and 1.97 metres tall. The prisoner, Michael Davison Tillman was born on 16 October 1971, and accordingly was also 31 years old at the time of the incident. The deceased and the prisoner were well known to each other, and in the past had been friends. Their acquaintance was through the playing at competition level of snooker and similar games. Other friends and acquaintances with similar interests included John Merrigan, Shawn Budd, Jason Scott and Dean Nichols. This group had known each other for several years. 4 The prisoner and the deceased had formerly been very close friends, but following the break-up of the deceased's relationship with Ms Justine Coulter in September 1992, their friendship waned due to the deceased accusing the prisoner of having a romantic interest in Ms Coulter, which was not in fact the case. As a result, there were arguments between them and ultimately in about February 2003, the prisoner told the deceased that he could no longer be his friend; but although he agreed to give him another chance, he in fact sought to avoid him as much as possible. 5 On the afternoon of Saturday, 21 June 2003, the prisoner and Shawn Budd attended a football match. They then went to the Metropole Hotel at Cremorne, arriving at that hotel at about 8:30pm. The deceased arrived separately at the hotel approximately one hour later at 9:30pm. 6 Shortly after the deceased arrived at the hotel he, the prisoner, Budd and others went to the upstairs part of the hotel where they played pool, drank alcohol and generally socialised for a number of hours. 7 During the evening at one stage, the prisoner and the deceased got into an argument during which the prisoner accused the deceased of being an "imbecile" but he subsequently apologised, although the deceased appears to have been reluctant to accept such apology, and continued to be argumentative and hostile. Both had been drinking; the prisoner estimates that by that time he probably had about 8-10 schooners of full strength beer. He described himself as "not fall over drunk but...intoxicated…half way to being drunk". In view of his drinking history, which I shall refer to in more detail later, that may be a fair appraisal of his condition. It appears that the deceased had also been drinking although it is not clear to what extent, but on his admission to hospital, he was described as "intoxicated". 8 Later, probably at about 20 to 4 in the morning, there was another incident between the prisoner and the deceased, when the deceased said to the prisoner: "I will kill you if you don't drop off Justine. I'm 6 foot 4, 100 kilos and I will snap your 75 kilo body in half." The prisoner replied: "You are being paranoid. It's one thing to have a few bad days, but you have had a bad year with me. We just can't be friends anymore." 9 The deceased then swore at the prisoner and head-butted him twice to the forehead over the right eye, so the prisoner got up from his chair and moved away. He then returned and said to the deceased: "Don't worry about the head butts because I know that you will. I'm going now. We will talk when we're sober." 10 The prisoner then went to leave the hotel and walked quickly towards the door but at the top of the stairs, he heard the deceased behind him say "No, let's go outside". The deceased followed the prisoner down the stairs and suggested they go around the corner from the main road to "talk". When they got around the corner, the prisoner asked "What's wrong, mate?" whereupon the deceased threw 3 punches at the prisoner, 2 of which connected, knocking him to the ground. The deceased then jumped on top of him with his forearm on the prisoner's throat, and then moved his hands to the prisoner's throat and attempted to strangle him. 11 At this stage, the prisoner just "clicked", to use his word, and gouged at the deceased's left eye with his right hand, and a struggle ensued on the ground. Ultimately, the prisoner got to his feet whilst the deceased was still on the ground, and kicked the deceased 3 times to the head. He then left the scene leaving the deceased lying on the footpath. A woman passing in a taxi saw the end of the attack and called an ambulance through 000. 12 Ambulance Officers attended the scene and observed that the deceased was suffering from multiple contusions to the occipital regions and to the scalp. There was a laceration to the left eye and he was unable to locate the eyeball because of the amount of blood and disrupted tissue in and around the eye socket. An intensive care ambulance was requested and the deceased was taken to the Royal North Shore Hospital. 13 At the hospital, the deceased was examined by Dr Glen Fernando, Ophthalmology Registrar. He found that the patient was intoxicated and drowsy. The patient's Glasgow Coma Score was 14 out of 15. Apart from a small laceration to the left neck only the eyes were injured. Dr Fernando found that on the left side of the face, the patient had sustained avulsion of his upper and lower eyelids and canaliculi. There was fat prolapse in front of the globe, as well as torn Inferior Rectus, Inferior Oblique and Levator Palpebrae Superioris muscles. There was no injury to the globe itself. Another practitioner repaired the eyelids, canaliculi and the Inferior Rectus muscles. 14 On the right side, the deceased had sustained an undisplaced lateral orbital wall fracture and a ruptured globe. The rupture was 9mm in length. There was associated haemorrhage. This injury was repaired by Dr Fernando under supervision. At post-operative review, the deceased's right visual acuity was 6/60, pin holing to 6/36. Intraocular blood persisted. There were reduced ocular movements in all directions. 15 At about 11:55pm on Tuesday, 24 June 2003, the deceased was being escorted to the toilet when he fell. A doctor was called and found him to be alert and orientated. He gave the doctor an account of having previously fainted when he got up to go to the toilet. The deceased complained of shortness of breath and central chest tightness. 16 The deceased fell again on another escorted toilet visit on Wednesday, 25 June 2003 at about 9:40am. At about 10am, he lost consciousness and CPR was performed. An urgent echocardiograph was performed. This showed a grossly dilated and severely hypokinetic right ventricle. At 10:25am he was taken to surgery for an urgent Pulmonary Arteriotomy, which revealed a massive pulmonary embolus (an obstruction by a blood clot that had formed at another location in the circulatory system) detached and lodged in the artery leading from the heart to the lung. 17 Following this surgery, the deceased was maintained on life support. At 8:30pm on 25 June 2003, he underwent exploratory surgery for bleeding in the sternum and around the heart. On the morning of Thursday, 26 June 2003 there was bleeding into the left orbit. A CT scan revealed cerebral oedema and significant swelling post fossa consistent with a severe hypoxic brain injury. His condition deteriorated, and after discussions between family members and treating neurosurgeons, it was decided to withdraw life support. Life was pronounced extinct at 7:20pm on Thursday, 26 June 2003. 18 Dr Paul Botterill, Forensic Pathologist, performed a post mortem examination on 27 June 2003 and concluded that the direct cause of death was Hypoxic Encephalopathy whilst antecedent causes were Pulmonary Thromboembolism and Blunt Force Head Injury. 19 Reports pertaining to the deceased were analysed by Professor Colin Chesterman of the Department of Haematology, Prince of Wales Hospital. He opined that on the balance of probabilities the development of deep vein thrombosis and resulting pulmonary embolus were consequent on the combination of trauma, surgery, anaesthetic and immobility. 20 After leaving the scene, the prisoner telephoned his friends when they were leaving the hotel and arranged for them to pick him up in a taxi they had hired, and after going to his friends' house where he showered and changed his shirt, he and some friends went to the Casino where he spent the day whilst two of his friends, John Merrigan and Dean Nichols, later went to the Royal North Shore Hospital where they spoke briefly with Christopher Millen. 21 The prisoner stayed that night at Jason Scott's home on the Northern Beaches, and the following day drove to Melbourne where he remained, getting reports on his victim's condition until he heard on the Thursday evening that he had died. After that he made contact with lawyers in Sydney and on Tuesday, 1 July 2003 in company with his lawyers, he surrendered to police at North Sydney Police Station and was charged. 22 I am satisfied that for some months, the deceased had been difficult in his dealings with the prisoner, and the prisoner had been trying to avoid him to the point of telling him that they could no longer be friends. On the evening of 25 June 2003, the deceased had again taunted and accused the prisoner who ultimately decided to leave the hotel to avoid any further confrontation or unpleasantness. The deceased however followed him out of the hotel, challenged him and started the fight by throwing the first punches. The parties struggled on the ground and at one stage, the prisoner thought the deceased was trying to strangle him so he gouged the deceased's eye. 23 Up to this stage, I would regard the deceased as the aggressor. The prisoner then got the better of the deceased and got to his feet and whilst the deceased was still lying on the ground defenceless, the prisoner, probably not thinking clearly in his intoxicated state (which is no excuse), kicked him at least 3 times to the head in a vicious cowardly attack, occasioning the injuries which ultimately led to his death. Whilst in hospital before he lost consciousness, the deceased told his brother: "I brought this on myself. I was standing up. I started it. I told him we should take it outside." 24 There was no specific agreement as to whether the plea to manslaughter was tendered and accepted on the basis of unlawful and dangerous act, provocation or excessive self defence; but I consider that ultimately it does not matter as there are no graduated scales of criminality in the offence of manslaughter: R v Isaacs (1997) 41 NSWLR 374 at 381; and it is more important to focus on the circumstances of the particular case. This is not a worst case of manslaughter, but it is nonetheless serious, involving as it does the felonious taking of another human life. 25 The prisoner was born on 16 October 1971, and so was aged 31 at the time of the offence and is now 33. He is the younger of two children and was raised in Sydney. His parents separated about 10 years ago when his father, who was an alcoholic and a gambler left home. Prior to that, he had been violent to his wife and to a lesser degree, to the prisoner, who has had very little contact with him since. He remains close to his mother with whom he was living prior to his arrest. 26 He was bright academically in primary school and won a scholarship to Sydney Boys High School, but in his teenage years, as he became more interested and proficient in snooker and similar games, he lost interest in his studies and although he completed Year 12 and sat for his Higher School Certificate, he did not matriculate. Since then, he has earned his living essentially as a professional ball player although he has had other forms of employment from time to time. At the time of his offence, he was in the process of taking stock of his life, and beginning to look for long-term goals outside ball games and in more regular employment. I have no doubt he has a future in this regard and Mr Craig Duffy, who gave evidence, and who has known him for some years, has offered him a position on his release. He is planning to study a Securities Industries course whilst in custody and whilst on remand has been doing preliminary reading relevant to such course. 27 I have read the reports of Dr Roberts and Mr Taylor. Apart from an altercation with a taxi driver in Melbourne in respect of which he was fined without a conviction being recorded, he has no criminal convictions and apart from his occasional use of prohibited drugs and a habit of drinking to excess about once a week, has been an honest, upright law abiding citizen, and I note the large number of character references tendered and witnesses called on his behalf. Provided he addresses his drinking which I believe he will, I am satisfied that he is unlikely to commit any further criminal offences. He has accepted responsibility for the death of the deceased and expressed his remorse. I am satisfied that he is genuine and sincere in this regard. 28 As the offence was committed after 1 February 2003, the 2002 amendments to s 21A and to Division 1 of Part 4 (ss 44-54D) of the Crimes (Sentencing Procedure) Act 1999 apply, but there is no standard non-parole period set for manslaughter. 29 By reference to s 21A, I note as aggravating features that the offence involved actual violence and the damage caused by the offence was substantial (death), and as mitigating factors that the offence was not part of a planned or organised criminal activity, there was provocative conduct on the part of the victim, the prisoner has no previous convictions and is otherwise of good character, he is unlikely to re-offend and has good prospects of rehabilitation. He returned from Melbourne and surrendered himself to police reasonably promptly after learning of the deceased's death, he has pleaded guilty virtually at the first opportunity when it was indicated that a plea to manslaughter would be accepted, and has shown genuine remorse and accepted responsibility. 30 I have also had regard to the Victim Impact Statement from the deceased's mother and the Court extends its sympathy to her and the rest of the deceased's family. 31 I have been referred to a number of cases said to be similar to the present in varying degrees, and I have had regard to them and also to the statistics from the Judicial Commission, but each case must depend on its own facts. The prisoner has been in custody since 26 August 2003 and the sentence will date from that day. I am satisfied that his prior good character, unlikelihood of re-offending and that at age 31 this is his first time in gaol constitute "special circumstances" within s 44(2) of the Act. 32 I consider that a notional head sentence of 8 years is appropriate but that should be reduced to 6 years on account of his plea of guilty, having regard to its utilitarian value, his genuine remorse and contrition, and the fact that his plea has saved the deceased's family and the witnesses from the ordeal of a trial. 33 MICHAEL DAVISON TILLMAN, for the manslaughter of Christopher Joseph Millen, I sentence you to imprisonment and set a non-parole period of 3 years 3 months with a balance of 2 years 9 months making a total sentence of 6 years. The sentence will date from 26 August 2003 and the earliest date on which you will be eligible for release on parole will be 25 November 2006. ********** Last Modified: 12/06/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.