New South Wales Supreme Court CITATION : R v Heffernan [2005] NSWSC 739 HEARING DATE(S) : 18/04/05, 19/04/05, 20/04/05, 21/04/05, 22/04/05, 26/4/05, 27/04/05, 28/04/05, 29/04/05, 02/05/05, 03/05/05, 04/05/05, 05/05/05, 01/07/05 JUDGMENT DATE : 29 July 2005 JUDGMENT OF : Hoeben J at 1 DECISION : Sentence of imprisonment for 14 years to date from 18 July 2003. A non-parole period of 10 years to date from 18 July 2003 and to expire on 17 July 2013. CATCHWORDS : Criminal law - sentence for murder - effect of self-defence, provocation and intoxication not reaching level to reduce offence to manslaughter - mitigating factors - objective seriousness of offence. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Ibbs v The Queen (1987) 163 CLR 447 at 451-2 R v Bell (1985) 2 NSWLR 466 CASES CITED : R v Harris [2000] NSWCCA 469 R v Twala NSWCCA, 4.11.94, unreported Viro v The Queen (1978) 141 CLR 88 Crown PARTIES : William Patrick Heffernan FILE NUMBER(S) : SC 70091/2003 Mr FDL Holles - Crown COUNSEL : Mr RP Greenhill SC - Prisoner Solicitor for Public Prosecutions - Bathurst - Crown SOLICITORS : Chris Outzen, Solicitor - Prisoner LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Friday, 29 July, 2005 99/2003 – REGINA v William Patrick HEFFERNAN REMARKS ON SENTENCE 1 HIS HONOUR: On 18 April 2005 the prisoner, William Patrick Heffernan, appeared in this Court for trial upon an indictment charging him with having murdered Paul Anthony Callaway on 25 August 2002, at Darbys Falls. 2 The prisoner pleaded that he was not guilty. A jury was empanelled. The prisoner upon arraignment before the jury maintained his plea of not guilty of murder and the trial proceeded. On 5 May 2005 the jury found the prisoner guilty of murder. I formally convicted him and remanded him until 1 July 2005 for the hearing of evidence and submissions on sentence. Facts 3 The facts are relatively uncontroversial. In February 2002 the prisoner was living with his mother and his brother in Main Street, Darbys Falls. In early August 2002 he met Christine Osborn at the RSL Club at Cowra and they formed a friendship. Although the evidence was somewhat equivocal, I conclude that the friendship developed into an intimate relationship and that such was the situation by 25 August 2002. 4 Christine Osborn is profoundly deaf and has been from birth. Although she could use some English words, her basic means of communication is by sign. Even so she had little understanding of the structure of English so that at the trial the questions put by counsel had to be converted by the interpreter into very basic language concepts before being interpreted into sign. 5 The deceased was the local motor mechanic in Darbys Falls. In July 2002 he had performed some repair work on the car belonging to the prisoner's mother. The job involved replacing the motor. In doing so the deceased had gone out of his way to deliver the old motor to the prisoner and the prisoner was grateful to him for having done so. 6 Although the prisoner had paid for the repair work, he told the deceased he would buy him some beers to repay him for the extra work which he had done in delivering the old motor. 7 On 25 August 2002 the prisoner and Christine Osborn drove to Cowra to purchase some beer – six or seven longneck bottles. They then went to the deceased's house, arriving at approximately 6 pm. They were accompanied by Christine's son, Matthew, who was almost eight at the time. 8 In the house with the deceased were his children, Amanda then aged ten, and Nathan then aged five. While the adults were drinking beer and eating chips, the children were playing in Nathan's bedroom. 9 Some time later (the timeframe for events was very vague) Christine Osborn joined the children in Nathan's room. What followed was in dispute at the trial. The evidence of Ms Osborn was that after she had been in the room for some time, the deceased entered the room where the children were, exposed himself to her and attempted to remove her underpants. While this was happening, the prisoner entered the room and had apparently seen some part of what was happening. 10 The prisoner's evidence was that he had not seen any such thing. He was unaware of the deceased having made any sexual approach to Ms Osborn. 11 There was persuasive evidence from Matthew Osborn that some sexual approach had been made by the deceased to Ms Osborn. 12 It was the evidence of Ms Osborn that following the observation of this incident by the prisoner, he and the deceased commenced arguing and that argument escalated into a physical confrontation as the night wore on. 13 It was the prisoner's evidence that later in the evening for no apparent reason, the deceased's mood changed and he became aggressive and argumentative and that is how the fight between the prisoner and the deceased arose. 14 I am satisfied beyond reasonable doubt that the prisoner did observe some kind of sexual approach by the deceased to Ms Osborn and that this was the catalyst for the argument, which developed between them. The evidence of Ms Osborn at trial was quite explicit on this point and it was consistent with what she had said in the committal proceedings and with previous statements she had made to the police. It seems highly implausible that the savage physical struggle, which ultimately developed between the deceased and the prisoner, was due to nothing more than a mood change by the deceased. 15 It was common ground that by the time of the argument between the prisoner and the deceased, both men had consumed a considerable amount of beer and both were intoxicated. It was the opinion of Ms Osborn that the prisoner was probably more intoxicated than the deceased. As well as the beers which had been brought to the deceased's house by the prisoner, cans of beer belonging to the deceased had also been consumed. The photographs of the kitchen area confirmed that a significant amount of beer had been consumed. 16 At some point the verbal argument between the prisoner and the deceased turned into a physical confrontation. This appears to have occurred mostly in the kitchen. The physical confrontation there was of some ferocity in that two clumps of hair were found on the kitchen floor by the investigating police. I am satisfied that those two pieces of hair came from the prisoner. It should be noted that the prisoner is five foot seven in height, whereas the deceased was over six feet and there was a disparity of approximately twenty kilograms between them in weight, with the prisoner weighing seventy five kgs and the deceased ninety five kgs. 17 The prisoner's evidence was that in the course of the fight he and the deceased had ended up on the kitchen floor still grappling with each other. While that was happening the prisoner struck the deceased about five times on the head with a saucepan, causing the saucepan to break. Thereafter the prisoner struck the deceased a couple of times with the handle of the saucepan. 18 In the course of the struggle in the kitchen, the deceased's jumper was pulled off and it was subsequently found on the kitchen floor. The photographs by the investigating police confirm that a significant struggle did take place in the kitchen. 19 The fight then moved from the kitchen to outside the rear of the house. It was common ground that the prisoner left the house first and was followed by the deceased. The only evidence as to what happened in the next minute or so comes from the prisoner. 20 The prisoner says that he was grabbed by the deceased from behind. The prisoner was able to get himself free, but fell to the ground and was trying to crawl away. He felt something hit him in the back of the head (possibly a fist). As he was crawling away, he grabbed a piece of wood which was on the ground, got to his feet and struck the deceased once with the piece of wood causing him to fall down. 21 The evidence of Christine Osborn was that when she emerged from the back of the house, she saw the deceased on his knees holding the prisoner around the legs with the prisoner striking the deceased five or six times on the head with a piece of wood causing the deceased to fall down. 22 For the jury to find the prisoner guilty of murder, they must have been satisfied beyond a reasonable doubt that Ms Osborn's version of what happened was to be preferred. The medical evidence was consistent with either version. Consistent with the jury verdict, I am satisfied beyond a reasonable doubt that the prisoner did strike the deceased with a piece of wood more than once whilst the deceased was on his knees and that this is what brought about the deceased's death. I am also satisfied that those blows were delivered in the context of the fight and did not involve any gratuitous cruelty on the part of the prisoner. 23 Thereafter Matthew was woken up and the prisoner and Ms Osborn drove away from the deceased's house. The deceased was left where he had fallen. The prisoner, Ms Osborn and Matthew drove to the prisoner's mother's house and that is where they spent the rest of the night. 24 The next morning it was discovered that Matthew had left his shoes at the deceased's house. The prisoner, Ms Osborn and Matthew went back to the deceased's house and retrieved Matthew's shoes. The prisoner was spoken to by neighbours of the deceased and that is when he learned that the deceased was dead. 25 The prisoner, Ms Osborn and Matthew drove to Ms Osborn's house. She was in fact moving her belongings from one house to another. While this transfer of belongings between houses was taking place, the prisoner and Ms Osborn were apprehended by the police. Conduct of trial 26 At trial the prisoner relied upon self-defence. This was clearly rejected by the jury who must have found that the prisoner did not believe that his conduct in striking the head of the deceased with the piece of wood was necessary to defend himself and that striking the deceased on the head with the piece of wood was not a reasonable response in the circumstances as the prisoner believed them to be. 27 Although not specifically relied upon by the prisoner, directions were given to the jury concerning provocation and intoxication. Clearly the jury were not satisfied that the necessary loss of self-control had occurred to make the provocation defence operative. Similarly, it is clear that the jury were not satisfied that the prisoner's level of intoxication was such as to prevent him forming the necessary intent for murder. Victim impact statements 28 I have given careful consideration for the limited purposes permitted by law to the victim impact statements from the deceased's father and from his sister. 29 Those statements disclose the continuing loss, which has been experienced by the deceased's family as a result of his death. In particular they highlight the difficulties, which now confront the deceased's children. They were in his care at the time of his death. They have both been detrimentally affected by it, particularly the child Amanda. 30 I cannot in these remarks on sentence reproduce in any adequate way the loss, which they have described. Their statements, however, remain on the public record as a tribute to the deceased and it is better that they be allowed to speak for themselves as to the consequences of his untimely death. Subjective circumstances 31 The prisoner was born on 14 February 1966 and is the youngest in a family of five children. He was born and reared in the Kiama district of New South Wales. He is currently thirty-nine years of age. His father was a local builder and business person and the family experienced a stable, financially secure and work oriented lifestyle. This situation continued until the sudden death of his father from a heart condition when the prisoner was fifteen years of age. This caused particular distress to the prisoner. 32 Following his father's death, it seemed that the prisoner "didn't care" and in his late adolescence became involved with a delinquent peer group and with some illegal drug use. There were also some significant strains between the prisoner and his immediately older brother who, according to his mother, "belted him any time he could". 33 The prisoner has a close relationship with his mother. He has resided with his mother for most of his life, apart from a period in his early twenties when he worked in Sydney and most recently when he was in custody in relation to this offence. He moved with his mother to the Southport district of Queensland in 1993 and lived with her in that location until 2002 when due to financial difficulties his mother sold her home and they moved to Darbys Falls. 34 The prisoner left school after completing his year 10 certificate. He commenced working as a labourer in a fibreglass pool factory and maintained that job for approximately three years. He then worked in a business that built fibreglass boats for several years. He took up a job as a labourer in a timber veneer factory in Sydney for six months and also lived there. He then returned to Kiama and worked as a store person for Kiama Council for six months, and also as a car re-possessor. 35 When he moved to Queensland he worked for three years as a storeman/yardman until the business relocated out of the area and he ceased work. The prisoner has not worked since approximately 1996. 36 The prisoner has never been married and has no children. He has only been in one long-term relationship when he was aged thirty-six and this lasted twelve months. He appears to have had difficulty in maintaining any long-term relationship with women. 37 The prisoner appears to have used amphetamines on a fairly regular basis between the ages of twenty and twenty six and had experimented with cannabis for a short period, although he has apparently not used that substance for over ten years. He told Mr Martin from the Probation and Parole Service and the psychologist, Ms Margaret Johnson, that he was not an excessive drinker and did not have a drink problem. This self-assessment may not be correct. 38 The prisoner's brother told Mr Martin that he thought the prisoner's use of amphetamines between the ages of twenty and twenty-six had had a long-term effect upon his mental health. 39 The prisoner was diagnosed as suffering from a "psychosis? – schizophrenia" in 2001 when he was admitted to Lismore Hospital with a psychotic episode. The prisoner apparently experienced auditory hallucinations at the time. It is not known what treatment he received and whether he was prescribed any medication. The prisoner told Ms Johnson that he had been taking the anti-depressant Effexor (75 mg mane) since 2000. 40 From July to December 2004 the prisoner was admitted to Bloomfield Psychiatric Hospital in Orange on four occasions and has been diagnosed as suffering from a schizoaffective disorder and some symptoms of depression. He was prescribed anti-psychotic and anti-depressant medication and referred to the Community Mental Health Service at Cowra. Whilst in custody (2002-2004) for this offence it seems that the prisoner was treated for some depressive and paranoid symptoms, although the detail of this treatment is not known. At the time of trial he was continuing to take Effexor, Risperdal (an anti-psychotic) and Phenergan (a sleeping tablet). When assessed by Ms Johnson in April 5, 2005 it was thought the prisoner continued to suffer from schizophrenia. 41 The prisoner with one notable exception has only come to the notice of the courts for some low level offences as a minor between 1979 and 1984 with some driving and one drug possession offence having occurred in Queensland. 42 The exception was a conviction for unlawful wounding, which occurred on 3 April 1994, for which he received a suspended sentence of nine months. 43 The circumstances surrounding that offence are not clear. The victim was the prisoner's nineteen year old nephew. An altercation occurred after some family celebration when both the victim and the prisoner had consumed an excessive amount of alcohol. After being provoked the prisoner apparently stabbed the victim. Thereafter the prisoner telephoned emergency services and arranged for an ambulance to attend. 44 Although there was an eight-year gap between that offence and the death of the deceased, there appears to be a common theme of provocation and excessive consumption of alcohol leading to a loss of self-control and violence. 45 There was no evidence that the prisoner's psychiatric condition played any part in the circumstances leading up to the death of the deceased, although Ms Johnson in her report did say: "Given the history obtained Mr Heffernan would have been experiencing significant difficulties dealing with life stress at the time of the incident. It is likely that, if he were taking medication at the time for his psychotic disorder its effect would have been negatively impacted if he drank alcohol. It is not possible, given the information supplied, to make any further comment regarding his psychological state at the time of the alleged incident." 46 I am not satisfied that the prisoner's mental condition made any contribution to the commission of the offence. No reliance was placed on this at trial and the report of Ms Johnson falls well short of establishing such a connection. 47 The prisoner has expressed some remorse for his conduct. The best summary of his position is that set out in the pre-sentence report: "Despite the verdict of guilty, Mr Heffernan maintained his not guilty position and strongly argued that "I'm not a murderer" and that he acted in "self defence". He indicated that the victim "should still be alive today" and that he felt "sorry for his (the victim's) children". He stated, "I can't believe I was involved in something like this and that a man is dead" and likened the situation to watching a television drama where a person's life is completely changed by one event." Objective seriousness of offence 48 The taking of human life is always a serious matter. In this case the jury were satisfied beyond reasonable doubt that it was the deliberate act of the prisoner, which caused the death of the deceased, that the necessary intent was present, and that the act causing the death of the deceased was an unlawful act, ie it was not an act, which was carried out in self-defence. Nevertheless even within this most serious category of offence, there is a range of objective seriousness. 49 I am satisfied in the circumstances of this case that there was no premeditation or planning involved in the deceased's death. I am also satisfied that there was no intent to kill on the part of the prisoner, but that his intent was to inflict grievous bodily harm on the deceased. That conclusion emerges clearly from the surrounding circumstances and the extended nature of the physical confrontation. 50 While provocation in law was not open to the degree that may have reduced murder to manslaughter, that is not to say that the question of provocation is not of relevance for an assessment of the prisoner's objective criminality. There were as I have found circumstances which did amount to provocation, albeit that they did not reach the level required to reduce murder to manslaughter, and accordingly provocation can be taken into account as mitigating the objective severity of the conduct of the prisoner (R v Twala [NSW CCA, 4 November 1994, unreported]). 51 The same situation exists in relation to intoxication. The prisoner was clearly intoxicated at the time of the offence. The fact that the level of intoxication did not reach the standard necessary to reduce murder to manslaughter, does not mean that it cannot be taken into account as mitigating the objective severity of the conduct. 52 Given the significant disparity in size between the prisoner and the deceased, and the uncontroversial evidence as to a savage fight leading up to the offence outside the house, there was clearly some element of self defence on the part of the prisoner although it did not reach the level required to reduce murder to manslaughter. This is also a matter, which can be taken into account as mitigating the objective severity of the conduct by the prisoner, which amounted to murder. 53 The comments of Lee J in R v Bell (1985) 2 NSWLR 466 at 485 are appropriate to the above circumstances: "Had provocation been accepted by the jury, it would have entitled the accused to a verdict of not guilty of murder, but guilty of manslaughter ( Crimes Act s23) and if self defence had been accepted it would have entitled him to an acquittal or a verdict of guilty of manslaughter if the case was one of excessive force in self defence: Viro v The Queen (1978) 141 CLR 88. The rejection of these (or any other defences) does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent, of the factual basis upon which they rested. If the sentencing judge is satisfied from the credible evidence in the case that there was a degree of provocation, he may take it into account as a mitigating factor; likewise, if the judge is satisfied from credible evidence that there was an element of self defence involved in the killing. But every case must be judged according to its own circumstances and the question for the court in every case will be whether on the evidence the factor being put forward as a mitigating factor has a relevant connection with the crime in its full sense as I have explained earlier." 54 Quite clearly provocation, intoxication and self-defence did have a relevant connection with the crime. Accordingly I am of the opinion that the combination of those matters does operate to push the objective criminality of this murder towards the bottom of the range for that offence. 55 Despite the serious nature of the crime, I am satisfied that the factors mentioned do take the case outside s61 of the Crimes (Sentencing Procedure) Act 1999 as that section was held applicable in R v Harris [2000] NSWCCA 469 and do not require a life sentence. The Crown in its submissions on sentence supported such an approach. 56 The maximum sentence for murder pursuant to s19A of the Crimes Act 1900 (NSW) is imprisonment for life, but s21(1) of the Crimes (Sentencing Procedure) Act permits the imposition of a sentence of imprisonment for a specified term, where the case falls outside the extreme case to which s61 of the Act applies, or outside the "worst category" of cases which the court spoke of in Ibbs v The Queen (1987) 163 CLR 447 at 451-2. 57 The circumstances prevailing on the night of 25 August 2002 were unusual and the conduct of the prisoner was generally out of character. I make that finding notwithstanding the unlawful wounding conviction, which occurred in 1994. Taking into account his lifestyle generally and the low level matters which brought him to the notice of the police, I am satisfied that his risk of re-offending is relatively low. 58 The aggravating factors identified in s21A(2) of the Crimes (Sentencing Procedure) Act are confined to those mentioned in sub-paras (b), (c) and (g) namely, that the offence involved the actual use of violence and of a weapon and that the injury and loss occasioned were substantial. However, since they are integral to the commission of the offence itself, being elements of it, they do not call for any additional punishment. 59 An aggravating factor is that when the deceased fell to the ground after having been struck by the prisoner, he was left in that state and no attempt was made to arrange for any assistance to be provided. At that time the prisoner does not seem to have been aware of the seriousness of the injuries which the deceased had suffered. If he was so aware his attendance at the house the following morning is difficult to explain. It is, of course, not suggested that this failure to provide assistance contributed to the deceased's death since the medical evidence made it clear that the damage had already been done by the blows which he had suffered. 60 Insofar as mitigating factors are concerned s21A(3), sub-paras (b), (c), (e), (f), (g) and (h) are operative in that the crime was not part of any planned or organised criminal activity, there was some provocation, the prisoner did not have a significant record of previous convictions, the prisoner was generally a person of good character and is unlikely to re-offend and he has very good prospects of rehabilitation. 61 The context in which the murder took place is clear. The acts causing death were not planned, but were spontaneous, and occurred in the context of a savage fight in which both the prisoner and the deceased were participants. The use of the piece of wood was somewhat opportunistic, it simply being available when the prisoner was pursued by the deceased from the house. All of the events and the conduct of the prisoner need to be looked at against the underlying background of intoxication, provocation and self defence to the extent that I have previously characterised those matters. 62 I am also satisfied that the prisoner has very good prospects of rehabilitation. Although the prisoner denied it, he does seem to have a problem with anger management when he has been drinking heavily. The questions of alcohol abuse if that is a problem, and certainly anger management, can be addressed both whilst the prisoner is in custody and by the Probation and Parole Service upon his release. 63 Taking all of the above matters into account, I am persuaded that this case is one which demonstrates a combination of circumstances that places the prisoner's objective criminality for this type of offence towards the bottom of the range. 64 I am also satisfied that special circumstances exist which justify departure from the statutory ratio between the parole and non-parole periods. Such circumstances are that the prisoner is serving his first gaol term at thirty nine years of age, his psychiatric condition and the need for treatment both whilst he is in prison and the maintenance of such treatment after he is released and the need for a longer period of supervision upon his release to ensure that his rehabilitation is successful. There is also the fact that the prisoner is serving his sentence under "limited association" conditions. 65 The case nevertheless is one in which there is no possible alternative than to impose a significant sentence of fulltime imprisonment. The offence of murder is the most serious in the criminal calendar, and is one which inevitably calls for a sentence which will suitably mark the community's abhorrence for the conduct which was here involved in the taking of the life of a fellow human being. Regard has to be had to the principle of general deterrence. 66 William Patrick Heffernan for the murder of Paul Anthony Callaway I sentence you to imprisonment for a period of 14 years to date from 18 July 2003. I fix a non-parole period of 10 years also to date from 18 July 2003 and to expire on 17 July 2013 which will be the earliest date on which you will be eligible for release on parole. I note that taking into account your period in custody prior to trial and the fact that you have been in custody since 5 May 2005 means that you have already spent a period of approximately 2 years and 11 days in custody and it is for that reason I have fixed 18 July 2003 as the commencement date for your sentence. ********** 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.