New South Wales Supreme Court CITATION : R v Wheatley [2007] NSWSC 1182 HEARING DATE(S) : 19/10/07 JUDGMENT DATE : 30 October 2007 JUDGMENT OF : Bell J at 1 DECISION : Sentenced to a non-parole period of two years to date from 30 September 2006; The non-parole period will expire on 29 September 2008; Sentenced to a balance of term of one year and nine months commencing on 30 September 2008 and expiring on 29 June 2010. CATCHWORDS : Sentence - manslaughter - unlawful and dangerous act - chronic schizonphrenic illness - not causally related to offence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Blacklidge (unreported) NSWCCA, 12 December 1995 R v Bollen (1998) 99 A Crim R 510 R v Hogan [2004] NSWSC 959 CASES CITED : R v Kerr [2004] NSWSC 75 R v Maclucan [2003] NSWSC 799 R v O'Hare [2003] NSWSC 652 R v Previtera (1997) 94 A Crim R 76 PARTIES : Regina Craig William Wheatley (Offender) FILE NUMBER(S) : SC 2007/00002655 COUNSEL : T Hoyle SC (Crown) P M Winch (Offender) SOLICITORS : S Kavanagh SE O'Connor IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST BELL J 30 October 2007 2007/00002655 Regina v Craig William Wheatley JUDGMENT 1 BELL J: Craig William Wheatley was committed for sentence by the Local Court on 24 July 2007 following his plea of guilty to the manslaughter Robert Narramore an offence which occurred on 30 September 2006 at Riverwood. He adhered to his plea of guilty in this Court on 14 September 2007. 2 The facts on which the Court is to sentence the offender are contained an agreed statement that is signed by a solicitor from the Office of the Director of Public Prosecutions, the offender and the offender's solicitor; exhibit "A". 3 The offender was aged 45 years at the date of the offence. He suffers from chronic schizophrenic illness. On 30 September 2006 he was walking north on the footpath of Belmore Road towards the intersection with Thurlow Street. The deceased, an 83 year-old man, was approaching the same intersection on foot. As the deceased reached the traffic control signal the offender pushed him out of his way. The deceased fell to his left landing in lane one of Belmore Road, which is the lane designated for vehicles turning left at the traffic lights. Traffic on Belmore Road at the time was moderate. The deceased was struck by the rear nearside tyre of a vehicle which was navigating the corner. The driver of the vehicle continued for a short distance before stopping and returning to the scene. Another driver, Ms Stewart, was travelling immediately behind the vehicle which collided with the deceased. She saw the offender push the deceased and the subsequent collision. She stopped her vehicle and went to the assistance of the deceased, as did a number of persons. The deceased was conveyed to Liverpool Hospital, where he was treated for serious head trauma. He died at the hospital within hours. 4 The offender pushed the deceased using his two open hands, one of which connected with the deceased's right arm and one of which connected with the deceased's right chest. The push was sufficiently forceful to cause the deceased to fall. 5 The offender remained at the scene and was identified to the police by witnesses. He answered questions freely when spoken to by the police at the scene and later in an electronically recorded interview. 6 During the course of the morning of 30 September the offender purchased three 750 ml Tooheys bottles of full strength beer, which he consumed while sitting outside commercial premises in Belmore Road. He was fixing his transistor radio when he became involved in an argument with a man named Mark. He told the police that the two of them had been arguing for 10 or 15 minutes, when Mark "flaming crown hit me". This was what prompted the offender to move off in the direction of the intersection with Thurlow Street. 7 The assault on the deceased was unprovoked. In the ERISP the offender was asked: Q 121. Okay tell me how you pushed him. A. Just pushed him just like that, just pushed him. Q. 122. Okay. A. Get out the fuckin' way, mate. What … get out of the way, mate, what do you think you're doing? The offender admitted to having been "pretty peed off" at the time of the offence. 8 The Court received victim impact statements, which were prepared by Glenn Narramore, the deceased's grandson and Joan Narramore, the deceased's daughter-in-law. Glenn and Joan Narramore each reside in Queensland. Their statements were read to the Court by Ms Blanch as their representative. 9 The deceased died the day after his 83rd birthday. His grandson, Glenn, was about to telephone him to wish him happy birthday when he received the news of the death. Glenn Narramore describes Robert Narrramore as a man who devoted himself to the service of others in the community. Glenn has been greatly affected by the loss of his grandfather in these tragic circumstances. Joan Narramore describes the impact on her husband of learning of the death of the deceased. She says that their lives have changed and that her husband is no longer able to handle the every day stresses of life and work. As Mrs Narramore explains it: When a death is natural you understand and accept and do what has to be done but in this circumstance you are expected to listen to every detail whether you want to or not and make decisions you don't want to make and try and make sense of it all. You are reminded of what happened on the TV and in the newspapers and from being just an ordinary keep to themselves family you are put in the spotlight and are expected to be what you are not. Mrs Narramore says that the family is still trying to make sense of the events of that day. The Court extends its sympathy to the Narramore family in their loss. 10 I approach the reception of the victim impact statements consistently with the principles explained by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76; R v Bollen (1998) 99 A Crim R 510. 11 At the date of the offence the offender was living alone in a Department of Housing property in Riverwood. He was receiving a New Start Allowance. In an interview with Dr Westmore, a psychiatrist, conducted on 7 February 2007 the offender described a happy childhood. He attended school until Year 10 and obtained his School Certificate. After leaving school he enrolled at a technical college and undertook a trade course in bakery. He worked in a bakery for 10 to 12 years. He left this employment because he became ill. 12 The offender was diagnosed with schizophrenia some time in the 1980's. He had been admitted to Banks House and from around this time appears to have been prescribed anti-psychotic medication. Initially he was placed on Stelazine and Cogentin. He was later changed to Modecate, a long acting intramuscular anti-psychotic which was administered by his general practitioner. He had been taking this for 12 or 13 years before the offence. Around January or February 2006 the offender sought re-admission to Banks House. He told Dr Westmore he had done this because, "I just got nervous and that". He last attended the Bankstown Hospital on 21 August 2006 when he requested an injection of Modecate, telling the medical staff, "how bad he can become if he does not get his injection". He was given an injection of the drug and he left the hospital. 13 The offender has never had any serious relationships. He has no children. 14 The offender has a criminal record commencing some years after the onset of his schizophrenic illness when he was 35 years old. He was convicted of malicious damage before the Local Court at Kogarah and fined. He did not come to the notice of the police again until 2001. Between mid-2001 and February 2004 he was convicted on a number of occasions of relatively minor offences which were dealt with before the Local Court. These included travelling on public transport without a valid ticket, behaving in an offensive manner and goods in custody, for which offences he was fined. He was also convicted of having the custody of a knife in a public place and of assaulting a police officer in the execution of duty. For the latter offences he was placed on a bond to be of good behaviour for 12 months at the Sutherland Local Court on 18 February 2004. He appears to have completed the period of the bond without further incident. 15 The offender has been in custody, having been refused bail, since the date of this offence. He is housed in the Mental Health pod at the Silverwater prison and is reported to get on well with the staff and his fellow inmates. 16 In his interview with Dr Westmore the offender described a history of psychotic symptoms, including auditory hallucinations and ideas of reference. He had received messages from the television or radio in the past, but these were not troubling him at the time of the offence. In the course of the interview on 7 February the offender expressed doubts that the deceased had died as the result of the incident. He told Dr Westmore that, "it was just an accident, we don't even know if he is deceased or not with the DNA" and "the police said he was dead but I'm not sure". 17 Dr Westmore considered the offender's history and clinical presentation to be consistent with a diagnosis of chronic schizophrenic illness. Dr Westmore was inclined to the view that the views held by the offender in relation to the deceased were not of a delusional type, but rather were to do with his psychological difficulties in accepting that Mr Narramore is dead. 18 Dr Westmore carried out a further examination of the offender and prepared an updated report, which is dated 7 September 2007. At this time the offender's medication had been changed to fortnightly injections of Risperidone, which is also a long acting anti-psychotic. The offender reported improvement on the new medication, which did not cause him the same side effects as the earlier treatment regime. At the time of his second interview with Dr Westmore the offender had pleaded guilty to the charge of manslaughter. The offender gave this explanation for his offence, "I'd had three beers and everything got out of hand at the time. It was an accident. I didn't mean to hurt the fellow". 19 In Dr Westmore's opinion there is nothing in the history to suggest that the offender's mental illness played any immediate role in his offending behaviour. Dr Westmore considers that the offender's alcohol consumption was excessive and that he will benefit from community based support to assist with addressing his alcohol use on his release. Dr Westmore comments on the absence of respite care in psychiatric hospitals for chronically ill individuals such as the offender. 20 The maximum penalty for the offence of manslaughter is 25 years' imprisonment. 21 The crime of manslaughter embraces all unlawful homicides, other than murder. The circumstances that give rise to conviction for manslaughter differ greatly. It is recognised that of all offences manslaughter throws up the greatest variety of circumstances affecting culpability: R v Blacklidge (unreported) NSWCCA, 12 December 1995 per Gleeson CJ at 4. 22 The offender's liability for manslaughter is based upon his unlawful and dangerous act, which caused the death of the deceased. His deliberate application of force to the deceased was unlawful. A reasonable person in the offender's position would have appreciated that to forcefully push another who is standing adjacent to lane of motor traffic is to expose that other to an appreciable risk of serious injury. 23 The offender's conduct involved an impulsive and loutish act in pushing the deceased out of his way. I accept that the offender had no intention of causing the deceased to fall into the path of oncoming traffic, much less be struck by a car. I accept that it was not the offender's intention to do any physical harm to the deceased. 24 Mr Winch, who appeared on the offender's behalf, characterised the offence as a spontaneous outburst of low level of violence, which had catastrophic consequences. The Crown did not take issue with this categorisation of the objective circumstances of the offence nor with the allied submission that it was at the lower end of the range of seriousness for manslaughter offences involving an unlawful and dangerous act. I accept that is so. 25 It is necessary that sentences for the offence of manslaughter reflect the seriousness of a crime which involves the loss of human life. The offender's mental illness did not play any immediate role in his offending conduct. I do not consider that the deterrent and denunciatory purposes of punishment are to be accorded significantly less weight in this case because of the offender's illness. These factors along with the other factors to which s 3A of the Crimes (Sentencing Procedure) Act 1999 directs attention are to be reflected in the sentence. I am satisfied that no sentence other than a sentence of imprisonment is appropriate. 26 The offender's plea of guilty was entered at the earliest opportunity and I propose to discount the sentence by 25 percent to reflect the utilitarian value of the plea. 27 Section 21A(2)(l) of the Sentencing Procedure Act 1999 requires the Court to take into account as an aggravating factor that the victim was vulnerable for reasons that include that he (or she) was very old. In the Crown's submission this offence is aggravated because the deceased was an octogenarian. Mr Winch submitted that the deceased's age did not aggravate the offence because the offender's conduct involved a spontaneous and random gesture: there was no element of preying on the deceased because of his vulnerability. It seems to me that an impulsive offence such as this one may be aggravated by the age of the victim if it appears that the offender may not have acted on his impulse had the victim been younger and able to respond in kind. I do not draw that inference in this case. Dr Westmore observes in his first report that it is likely that the offender has functioned in the lower range for a number of years because of his chronic mental illness. This is borne out by the quality of the offender's answers in the ERISP. There is nothing to suggest that the offender was cognizant of the deceased's age or in any respect influenced in his conduct by it. I do not approach the sentencing of the offender by a finding that his offence is aggravated by any of the factors set out in s 21A(2) of the Sentencing Procedure Act 1999. 28 Mr Winch pointed to the offender's plea as evidencing his remorse. The Crown Prosecutor submitted that the evidence pointed to an absence of remorse. I have noted the bizarre statements made by the offender to Dr Westmore in the February interview. It is difficult to meaningfully assess remorse given the offender's psychiatric illness. 29 The offender has been convicted of relatively minor offences on a number of occasions in recent years. These offences are likely to be associated with his excessive alcohol consumption. I accept Mr Winch's submission that there is no basis arising from his mental illness or otherwise to find that it is likely that the offender would re-offend by the commission of any serious criminal offence. I am satisfied that he is unlikely to do so. 30 This is the offender's first period of imprisonment and his psychiatric illness combined with his history in recent years of heavy drinking point to the need for him to have supervision for a sustained period following his release into the community. This is particularly so in light of the absence of respite facilities to which Dr Westmore refers. I am satisfied that in this case special circumstances exist justifying a departure from the statutory proportion between the non-parole period and the overall sentence. 31 Mr Winch referred me to the statistics maintained by the Judicial Commission of New South Wales for offenders sentenced to imprisonment upon conviction for manslaughter and in particular to a cohort of 118 cases in which the offender had pleaded guilty to the offence. The range of head sentences varied from three to 18 years with the median being seven years. The range of non-parole periods varied between 18 months and 12 years. The median non-parole period being four years. The range of the sentences bespeaks the difficulty in deriving useful guidance from the statistical pattern with respect to this offence. 32 Mr Winch drew attention to four cases in his written submissions: R v O'Hare [2003] NSWSC 652; R v Maclucan [2003] NSWSC 799; R v Kerr [2004] NSWSC 75; R v Hogan [2004] NSWSC 959. The cases are a helpful illustration of sentences imposed in recent years on a small sample involving broadly comparable features to the present. It remains that each case must be determined by reference to its particular combination of objective and subjective factors. Sentence Craig William Wheatley for the manslaughter of Robert Narramore I sentence you to a non-parole period of two years to date from 30 September 2006. The non-parole period will expire on 29 September 2008. I sentence you to a balance of term of one year and nine months commencing on 30 September 2008 and expiring on 29 June 2010. ********** 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. 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