New South Wales Supreme Court CITATION : R v PRICE [2004] NSWSC 868 HEARING DATE(S) : 19th April 2004, 10 September 2004 JUDGMENT DATE : 23 September 2004 JUDGMENT OF : Barr J at 1 DECISION : Offender sentenced to imprisonment for eight years with a non-parole period of five years. CATCHWORDS : Criminal Law - Sentencing - Self-defence - Manslaughter PARTIES : Regina v Terrance James PRICE FILE NUMBER(S) : SC 2003/51 COUNSEL : Crown: L Gray Accused: A Moen SOLICITORS : Crown: S Kavanagh Accused: Many Rivers Aboriginal Legal Service - 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST GRAHAM BARR J 23 September 2004 2003/51 REGINA v Terrance James PRICE JUDGMENT 1 HIS HONOUR: The offender, Terrance James Price, is to be sentenced for the manslaughter on 10 February 2003 of Rockwell Montgomery Hodson. The deceased was a drug dealer who used to supply the offender with heroin. About ten days before the day of the deceased's death the offender agreed to lend the deceased his mobile telephone and in return the deceased agreed to supply the offender with a quantity of heroin on every day on which he continued to have the telephone. Apparently there was no agreement about how long that arrangement should last. After about a week the offender asked for the telephone back but the deceased did not return it. The offender and a friend, Ms Lahema Richards, called on the deceased a number of times to ask for the return of the telephone. 2 On 2 February 2003 they went to his house. While the offender was out of the room an argument erupted between Ms Richards and the deceased over a debt and the deceased took Ms Richards' handbag and made as if to keep it. They fought and the deceased pinned Ms Richards to the wall, his hands around her throat. The offender heard the commotion and re-entered the room. He saw what the deceased was doing. The fight ended with the offender and Ms Richards leaving and promising to return to collect the telephone. 3 On one of the occasions when the offender and Ms Richards visited the deceased, probably on 2 February, the deceased threatened to stab the offender and, according to a statement of Ms Richards, intimidated the offender. 4 They returned on 8 February and there was an argument. It was obvious that the deceased no longer had the telephone and the offender believed from something he had been told the day before that he had parted with possession of it. The offender demanded the return of the telephone or $200 in compensation. The deceased said that he would get $150 or the telephone. The conversation continued, but again the meeting ended unsatisfactorily, with the offender and Ms Richards saying that they would be back. 5 The offender, Ms Richards and the deceased spoke in the street in the early hours of 9 February, but there was no mention of the telephone and the conversation was peaceable. Later on the same day the offender went to the deceased's house but the deceased was asleep and the offender left. 6 On 10 February the offender was riding his bicycle in the street and saw the deceased and his companion, Ms Kathy Mahina. The offender called out and walked across the street to speak to the deceased. He asked him for the money and the deceased refused to pay. The offender asked him if he could let him have $50. The deceased said he would pay him on the following day. A number of people saw the events that followed. One was Ms Mahina, another was Mr Broome, the proprietor of a local business, and a third was an off-duty police officer, Constable Smith. 7 Constable Smith had the best view and gives the clearest evidence of what happened. He was about three metres from the group comprising the offender, the deceased and Ms Mahina. The offender and the deceased were standing half a metre apart, arguing with voices raised. The deceased punched the offender in the head and the offender leaned back and pushed his bike towards the deceased. The offender took a knife from his shorts, drew it back past his head in his right hand until the forearm was parallel to the ground and the knife was pointing to the sky, then swung his arm forward, still having the knife in his clenched fist, and downwards towards the deceased's chest. The knife penetrated the deceased's chest and the offender stepped back. Then the deceased threw a bottle of drink that he had been holding, but it missed the offender. Of the three bystanders, Constable Smith was the only one to see the knife blow delivered and the only one who could say which of the knife thrust and the bottle-throwing came first. 8 The offender tried to get away, but Constable Smith and his companion stopped him and arrested him. They recovered the knife. 9 The knife was a sharp-bladed, pointed kitchen knife, having a blade about fifteen centimetres long. It penetrated the deceased's chest to a depth of eleven centimetres. It damaged the lower edge of the first rib, entered the pericardial sac and perforated the aorta and the common pulmonary artery. The knife blow was delivered with considerable force. The deceased died within a few minutes. 10 The offender was committed to this Court on a charge of murder and his trial was fixed to begin on 19 April 2004. Shortly before that day he offered and the Crown accepted a plea of guilty of manslaughter in discharge of the indictment. However, the parties did not agree about the proper basis for a manslaughter conviction. The Crown submitted that the proper basis was excessive self-defence and the offender manslaughter by unlawful and dangerous act. The fact is, and the parties are agreed, that this difference may be resolved simply by deciding whether the Crown has proved beyond reasonable doubt that when he stabbed the deceased the offender intended at least to cause him grievous bodily harm. 11 The Crown tendered a statement of facts. It accords with the facts asserted in the statements of several witnesses which also came into evidence. The account I have set out above is taken primarily from the statement of facts. However, the offender gave evidence denying some of the assertions of fact and those I have omitted from the account I have given. As it turns out, the case is a clear one and there is no need for me to resolve those issues. 12 I am satisfied that by 10 February the offender had built up a strong feeling of resentment of the deceased for the way he had dealt with him over the telephone and for the way he had treated Ms Richards. I am satisfied from evidence adduced by the offender at committal that on one of the visits to the deceased's house the deceased threatened in the presence of Ms Richards to stab the offender. 13 The evidence shows that the offender habitually carried a knife. I think that he carried the knife on the day the deceased died not only because he often or generally carried one, but because he had half a mind that he might use it. Although he had not formed an intention to attack the deceased with it, he carried it in case it should be needed. 14 The offender gave evidence. He said that he was looking at the deceased's hands and saw that he had a bottle. He, the offender, had been attacked with a bottle once before and injured, so he was concerned. He said that he did not exactly recall the manner in which he had stabbed the deceased. He wanted to scare him off. He did not know whether the bottle was thrown before or after he stabbed him. He did not know he had stabbed him until he saw blood. 15 I do not accept that all the offender was trying to do was scare the deceased off. All that would have been necessary for that would have been for the offender to remove and present the knife. I do not accept that the offender did not know until he saw the blood that he had stabbed the deceased. I think that he knew as soon as the fight began what he was going to do and what he was doing. He stabbed the deceased because he meant to. 16 The efficient manner in which the offender took, raised and thrust the knife and the force with which the blow was delivered imply an intent no less than to do grievous bodily harm. That manner of the use of the weapon made it inevitable that the deceased would be very seriously hurt even if he was not killed. I do not think that the facts enable me to infer beyond reasonable doubt that there was an intention to kill, however. I conclude that the only available basis for a verdict of not guilty of murder but guilty of manslaughter is, therefore, that there is a reasonable possibility that the offender believed it necessary to stab the deceased in order to defend himself but that there is no reasonable possibility that his conduct was reasonable in the circumstances as he perceived them: Crimes Act ss 418, 421. 17 The factors bearing on an objective assessment of the offender's criminality are the dispute about the telephone, the fact that the offender approached the deceased and began the argument, a show of force first made by the deceased, the relative sizes of the two men and a comparison of the weapons that they respectively had available and the means and the intent with which the offender did the act causing death. 18 I need say no more about the first three matters. The offender is a fairly slim man of medium height. He was almost thirty years old at the time of these events. The deceased was taller and more heavily built. He was thirty-five years old. The deceased had only his fists and, if he wished to use it, the bottle to fight with. If he threw the bottle, of course, he would no longer be able to use it to fight. 19 Notwithstanding the evidence adduced on his behalf in the Local Court, the offender made no claim to any apprehension that the deceased might be armed with a knife. 20 I think that the offence was a serious one of its kind. It was the offender who approached the deceased. Even thought the first act of violence came from the deceased, the offender was by no means cornered and could easily have retreated. The court has often said that it is necessary to impose substantial sentences on offenders who use knives. The offender's criminal history, incorporating as it does a number of convictions for carrying a knife and a number of custodial sentences, aggravates his criminality. 21 The offender grew up in a family of six children. His father was an alcoholic who became violent after drinking and the children's mother had sometimes to take them to a refuge for their protection. The family remained together, however. The father was a strict disciplinarian. The offender did not do well in high school. He said that he was picked on because he was aboriginal. He left school without the school certificate. Since leaving school he has done a number of unskilled jobs, has spent periods of time on unemployment benefits and has been in custody a good deal. 22 He drank heavily when he was young but decided in 1997, after having been involved in a violent affray, that he would not drink any more. He does not now drink alcohol. In January 1992 he was sentenced to his first period of full-time detention and he appears to have spent the better part of 1992 in custody. While in gaol he began taking illegal drugs. He has resorted to them on and off ever since. Later on he turned to heroin to relieve himself against stress. 23 At the present time he is on a methadone programme but still uses heroin from time to time. 24 Since 1994 he has been convicted six times of having a knife or a cutting weapon or an offensive implement or of possessing ammunition. Four of the convictions relate to knives or cutting weapons, though there is no evidence that he has ever used such a weapon to injure. He has been sentenced to imprisonment on a number of occasions and appears to have spent a good part of the last ten years in custody. 25 Ms Vicki Gibbs, a psychologist, wrote a report, having examined him. She reports that he is not mentally ill and possesses intelligence in the broad average range. He is depressed, it seems in reaction to tragic circumstances that have overtaken friends and members of his family. He has a negative self-image. He is worried about the health of his parents, neither of whom is well. 26 He told Ms Gibbs that he would like to change, and I think that he was probably telling the truth. He will need enormous help if he is to change, however, because his pattern of life, of use of drugs and of offending is so well settled. There are prospects of rehabilitation, however, and he has the support of his family. 27 The offender is entitled to consideration for his plea of guilty. Although it came only a short time before his trial was due to commence, it came, as I understand it, virtually as soon as the Crown indicated that it was prepared to accept the plea to the lesser charge in discharge of the indictment. It is some evidence of contrition as well, though he has still not been able fully to acknowledge the part he played in his attack on the deceased or give a completely frank account of his offence. 28 Defence counsel acknowledged that the principles explained in R v Fernando (1992) 76 A Crim R 58, that apply to some aboriginal offenders, do not apply in the present case. 29 I think that the special needs that the offender has to come to grips with his drug dependency and to establish a stable and more acceptable way of life gives rise to a need to impose a parole period which exceeds one-third of the non-parole period of the sentence that I shall impose. No doubt rehabilitation programmes will begin well before the commencement of his parole period, but it will be especially hard for him when he enters the community again. He will need professional intervention for a substantial time, I think. 30 Victim impact statements were tendered on behalf of Mrs Hodson, the mother of the deceased and Mrs Roberts, his sister. I have carefully read the statements. Mrs Hodson and Mrs Roberts have both been badly affected by the loss of their son and brother. Their hurt has been greater because of the violent circumstances in which he died. 31 Of course, the Court cannot take the resulting hurt into consideration in determining the sentence to be imposed on the offender. What the Court can do, and what it does, is extend its sympathy to Mrs Hodson and Mrs Roberts in their loss. It is to be hoped that their suffering may be relieved by these proceedings. 32 Terrance James Price, I set a non-parole period of five years. The balance of your sentence will be three years. Your sentence will be taken to have commenced on 10 February 2003 and you will become eligible for release on parole on 9 February 2008. Your sentence will expire on 9 February 2011. ************ Last Modified: 09/24/2004 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.