R v CHARMAN [2007] NSWSC 1177

New South Wales Supreme Court

CITATION : R v CHARMAN [2007] NSWSC 1177

HEARING DATE(S) : 14 September 2007

JUDGMENT DATE : 12 October 2007

JUDGMENT OF : Hulme J

EX TEMPORE JUDGMENT DATE : 12 October 2007

DECISION : I sentence the Prisoner to imprisonment for a non-parole period of 4 years dating from 17 April 2006, together with a further term of 2 years dating from 17 April 2010.

PARTIES : Regina Nathanial David Charman

FILE NUMBER(S) : SC 2007/1001

COUNSEL : Crown: P Barnett Prisoner: C Smith

SOLICITORS : Crown: A Halpin (DPP) Prisoner: E Manea (Legal Aid Commission)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Hulme J

12 October 2007

2007/1001 REGINA v NATHANIAL DAVID CHARMAN

REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner, Nathanial David Charman, has pleaded guilty to a charge of the manslaughter, on 15 March 2006, of Michael Joseph Healy. The nature of the manslaughter was by an unlawful and dangerous act. 2 The prisoner now falls to be sentenced. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the prisoner, while I need only be satisfied on the balance of probabilities of the matters that argue in favour of mitigation – see R v Olbrich (1999) 199 CLR 270; R v Pilley (1991) 56 A Crim R 202.

Circumstances of the Offence 3 The circumstances of the prisoner's offence were as follows. Some weeks prior to Mr Healy's death, the prisoner was approached by a friend to whom I shall refer as "A", who asked whether the prisoner would commit a break and enter of Mr Healy's residence in order to steal a safe that contained $60,000 and some documents relating to a fraud that Mr Healy was alleging A had committed. The prisoner ran the suggestion past another friend whom I shall refer to as "B". B expressed interest in participating and recruited a further person whom I shall refer to as "C". A plan was formulated whereby the prisoner, B and C were to break into Mr Healy's home, 'knock him out' and steal the safe. (I have used pseudonyms to refer to the prisoner's co-offenders because they remain to be tried.) 4 At around 10 p.m. on 11 March 2006, the prisoner, B, C and B's girlfriend "D" met in the driveway of the house with the prisoner was then residing. They then drove in B's car to the vicinity of Mr Healy's home. There the car was parked. B and C walked off to the deceased's residence and the prisoner and D remained in the vehicle to await the others' return. The prisoner occupied the driver's seat. B and C were dressed in dark clothing and were wearing black beanies, and as the prisoner observed, B was in possession of a black torch approximately 30 centimetres in length. 5 After a not inconsiderable period - possibly as long as an hour-and-a-half - B and C returned to the car, apparently empty-handed except for the torch which B placed under a seat of the vehicle. B told the prisoner to "Go! Go! Go!" and the prisoner drove the four back to his residence after which the group separated. 6 The deceased was a man who suffered from intellectual impairment and had limited cognitive functions. On 14 March 2006 neighbours, concerned that they had not seen the deceased for some time, called the police. The deceased's body was then found on the floor of his bedroom. It was apparent that he had been attacked inside that room and had been struck to the head by some sort of weapon at least three times, occasioning severe head injuries. There was significant blood staining to his bed and blood splatter to the bed-head and adjacent wall. The crime scene was consistent with the deceased having been attacked whilst lying in bed. There was no sign of forced entry and when police arrived, the back sliding door was open. Neither then, nor at any other relevant time, had there been a safe in the premises. 7 A few days later the prisoner was approached by B, asked "How he was handling it?", and told that B and C "had planned to gain entry into Healy's house via the back door by smashing a window", but, they found the back sliding door open. B and C then entered the premises and attacked Mr Healy whilst he was in bed. There was an attempt to knock him out but this did not happen as planned and both B and C carried out a further attack which subsequently subdued Mr Healy. The black metal torch was used in this attack. 8 The prisoner maintained - and this account is corroborated by a statement from D and not contradicted - that there was no significant discussion in the car after the attack and not until B called on him some days later. There were, of course, newspaper reports of the deceased's death. 9 On 15 April the prisoner contacted police, informed them that he knew who had killed Mr Healy, and left his contact details. On 17 April he was interviewed and revealed those of the above events in which he had participated. It would appear that prior to contacting the police, the prisoner informed his stepfather of events. 10 Earlier, on 3 and 4 April, the prisoner had also been interviewed by police. On those occasions he denied any knowledge of the offence and this despite police suggesting that he had been overheard saying: "We're gonna tell him (Mr Healy) we're security guards. If Michael invites us in, we're gunna go in, bash him and rob him". In his interview of 17 April he explained these denials as due to being scared of going to prison.