Regina v Moore [2006] NSWSC 1369

New South Wales Supreme Court

CITATION : Regina v Moore [2006] NSWSC 1369 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6/11/06, 9/11/06, 8/12/06

JUDGMENT DATE : 15 December 2006

JUDGMENT OF : Bell J at 1

DECISION : Sentenced to a non-parole period of two years to date from 8 November 2005. The non-parole period will expire on 7 November 2007, on which date you will be eligible for release on parole. I specify a balance of sentence two years six months to date from 8 November 2007. The sentence will expire on 7 May 2010

CATCHWORDS : Sentence - provocation/manslaughter

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

CASES CITED : R v Hill (1981) 3 A Crim R 397

PARTIES : Regina Kenneth Duncan Moore (Accused)

FILE NUMBER(S) : SC 2006/1469

COUNSEL : F.D. L Holles (Crown) D.N. Stewart (Accused)

SOLICITORS : S Kavanagh Ross Hill & Associates (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 15 December 2006

2006/ 1469 Regina v Kenneth Duncan Moore

JUDGMENT 1 BELL J: On 6 November 2006 the offender, Kenneth Duncan Moore, was arraigned on an indictment that charged him with the murder of Darren Frank Tyrrell at Taree on 8 November 2005. He pleaded not guilty to the charge of murder but guilty to the manslaughter of the deceased. The Crown accepted his plea in full discharge of the indictment. 2 The offender caused the death of the deceased by shooting him five times with a sawn-off .22 calibre rifle. The offence was committed at around 1.00 pm on a weekday afternoon, the deceased was standing near the doorway to one of the units in a complex of units at which he and the offender both resided. The offender was approximately three to four metres distant from the deceased at the time he fired the shots. The probability is that the first two rounds struck the deceased in his left flank, causing him to fall to the ground, and that the next three rounds were fired as he lay on the ground. They entered his back. 3 The Crown's acceptance of the offender's plea to the lesser charge of manslaughter was a realistic acknowledgement that at trial it could not establish that the offender was not acting under provocation at the time he fired the shots. 4 An agreed statement of facts was tendered at the sentence hearing along with a large number of statements that formed part of the Crown brief. Counsel for the offender directed my attention to the contents of several of the statements in support of his submissions concerning the degree of the provocation to which his client was subject. My factual findings incorporate material drawn from the statements to which I was directed. 5 The offender is a 72 year-old man of unblemished character. The deceased was aged 41 years. Both men had been living in Department of Housing units located in Frances Street, Taree for a number of years. The deceased was a drug user who was on a methadone program at the time of his death. Analysis of the deceased's blood established that at the time of these events he had taken both illegal drugs and illegally obtained medication, including amphetamines, methamphetamine, Diazepam, Nordiazepam, Oxazepam and Temazepam. It appears that the deceased was also suffering from a psychiatric condition. He was in the habit of cadging cigarettes and small amounts of money from other residents of the complex and his behaviour had been the subject of complaint by a number of the other tenants. 6 The offender was caring on a day-to-day basis for an elderly alcoholic female tenant, Maureen, who suffers from a degree of intellectual handicap. He was in the habit of driving her into town to attend to her banking and shopping. He cooked her meals and generally kept an eye on her. 7 On the afternoon of 2 November Maureen came to the offender's unit in a distressed state telling him that she had lost the key to her unit. She was holding her keys in her hand. It was apparent that the door key was unlikely to have come away from the key-ring by chance. The offender questioned Maureen and learned that the deceased and a young woman had called to her flat earlier that day. The young woman had insisted, over Maureen's protests, that she would help her to make her bed. The deceased had been left alone in the living room where the keys were located. The offender believed that the deceased had stolen Maureen's key by means of this ruse. He confronted him with the allegation. The deceased denied wrongdoing (although subsequently he produced the key). There was verbal exchange between the two men. 8 Later that day there was a confrontation between the two outside the offender's unit. The deceased approached the offender holding a cricket bat in one hand and a metal pipe in the other. The offender picked up a baseball bat and managed to disarm the deceased, who retreated, saying, "I'm gunna get three heavies on you and wreck your place and your car". Later that day the offender found that plants in his garden had been pulled out. This was not the first time that the garden had been vandalised. He blamed the deceased for it. 9 Later still on this same day the deceased appeared outside the offender's unit holding a shovel. He called on him to come outside and have another go. The offender was restrained by friends from responding to the invitation. He telephoned the police and asked for their assistance. After this he took up a position at the front of his unit, keeping a lookout. After a short time the deceased reappeared, armed with two half-bricks with which he threatened the offender. The offender backed off and returned inside his unit. After a time the offender went outside again and there was a further confrontation during which the deceased produced a large brown glass paperweight. The two men exchanged words and the offender told the deceased that the police were coming and that they would sort things out. 10 In an interview with the police, which was conducted within two hours of the shooting, the offender described these events, saying that he had been exhausted by the time of the confrontation with the paperweight and that he, "just hoped somebody's going to come and help me". 11 Constable Holborow received a telephone call from the offender at about 6.25 pm on 2 November. The offender sounded quite upset and told him "you'd better get a car up here because somebody is going to get killed if you don't". A crew was dispatched to the Frances Street units and the police took a complaint from the offender. 12 In the period between the altercation on 2 November and the fatal shooting on 8 November, the offender attended at the Taree Police Station on a number of occasions asking what action was to be taken against the deceased arising out of his complaint. He was informed that an apprehended violence order could be obtained for his protection but that it was necessary for the police to first locate and interview the deceased. 13 The offender also sought assistance over this period from the Chamber Magistrate, a legal telephone helpline, and the Department of Housing. It is clear that the offender entertained genuine fears for his safety arising out of the deceased's conduct towards him. 14 Lesley Bird is a friend of the offender. She made a statement in the course of the investigation of the shooting and she gave oral evidence on the offender's behalf at the sentence hearing. Ms Bird visited the offender on the afternoon of 7 November. He appeared to be "stressed". He was speaking in a very excited manner, gesticulating with his arms and complaining that he could not get any help from the police. He told her that he had been to the police station every day to get an AVO and that he was unable to get help. He counted out the days on his hand, saying, "one, two, three, four, five, six days and nothing's done". Ms Bird described the offender as being "like a desperate man. He was just, just didn't know where to turn". It seemed to her that the offender felt trapped: he complained that the Department of Housing would take no action until he had an AVO and yet the police were unable to serve it. Ms Bird understood that he also felt trapped by his sense of obligation to remain in the units in order to look after Maureen. He told her that the deceased had threatened him with two bricks and he also told her that the deceased had threatened to set a renowned local identity on to him. 15 When Ms Bird left the offender's home on the afternoon of 7 November he was cooking Maureen's dinner. He walked Ms Bird to the front door, telling her of his concern that the deceased might damage his car. Ms Bird was worried about the offender. She thought that he might snap. In oral evidence she put it this way: Well, I've seen – having a sick son, I've seen a lot of people with mental illness at the Mental Health Unit and that, and I just felt that Ken just couldn't cope any more; he was at a point where, I didn't know what he would do, but I just felt he couldn't cope in the normal manner. He just – just – well, I think everyone gets to breaking point under extreme pressure at times, and I felt he was at breaking point. 16 In the early hours of 8 November the deceased stole a washing machine from neighbouring premises. The theft was reported to the police who called to the Frances Street units. At around this time the offender went out to his car and saw that his tyres had been deflated by someone who had placed matchsticks in the valves. The offender was convinced that the deceased was the culprit. He was fearful that the deceased may have tampered with the brake lines. He telephoned the NRMA to arrange for an inspection of the car. 17 The offender saw Senior Constable Aldous who was at the units looking for the deceased. He went up to him and demanded to know what the police were going to "do with this bloke". Constable Aldous told him that the deceased was wanted in connection with the theft of the washing machine. The offender said he wanted him charged over the damage to his car. Constable Aldous asked if the offender had seen the deceased deflating the tyres. During the course of this discussion the offender said, "I'm going to kill him okay, don't worry about anything, I'll kill him, he's picking on everyone, I've had him annoying all of us". Constable Aldous responded, "Ken don't do anything silly, I think he was charged last night, I will ring you". 18 Constable Aldous was aware of the offender's age and background and was satisfied that his remarks were off the cuff comments that did not convey any serious intention. I accept that is so. At the time of the conversation I am satisfied that the offender was in a state of considerable distress and turmoil as the result of the deceased's conduct and his perception that no action had been taken arising out of the investigation of the earlier incident. It is to be observed that on 8 November the police were intending to interview the deceased over the incident on 2 November and to arrange for the issue of an apprehended violence order for the protection of the offender. 19 At around 9.50 am on 8 November Allan Sheldon, an NRMA patrolman, attended at the Frances Street units and inspected the offender's car. The offender asked him to check the brake lines. Mr Sheldon saw a machete on the front seat of the car. He picked it up and moved it, saying, "You'd better get rid of that. If you get caught with it you'll get in a lot of trouble". The offender responded, "When you got a bloke half your age out to get you and the police won't help, you have to do what you can to protect yourself". The offender told him that he had taken out an AVO on a bloke, and "I asked the police if they had served it on him yet they said it was a night duty's job. They said they saw him up at the methadone clinic earlier". Mr Sheldon said that the offender was looking around all the time and that it had appeared to him that the offender was petrified of someone.