Regina v Partington [2006] NSWSC 442

New South Wales Supreme Court

CITATION : Regina v Partington [2006] NSWSC 442

HEARING DATE(S) : 27/2/06, 28/2/06, 1/3/06, 2/3/06, 3/3/06, 6/3/06, 8/3/06, 9/3/06, 10/3/06, 13/3/06, 14/3/06, 15/3/06, 16/3/06, 17/3/06, 16/5/06

JUDGMENT DATE : 16 May 2006

JURISDICTION : Common Law

JUDGMENT OF : Mathews AJ at 1

DECISION : A non-parole period of 8 years to commence on 27 August 2004 and to expire on 26 August 2012. The balance of the term of imprisonment is to be 5 years, expiring on 26 August 2017: a total sentence of thirteen years.

CATCHWORDS : CRIMINAL LAW - sentence - manslaughter

LEGISLATION CITED : Crimes Sentencing Procedure Act 1999

PARTIES : Regina - Crown Shane John Partington - Offender

FILE NUMBER(S) : SC 2005/1393

COUNSEL : Crown: Mr D Howard SC Offender: Ms A Betts

SOLICITORS : Crown: S C Kavanagh Offender: G J Goold

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 00092110/04/8

LOWER COURT JUDICIAL OFFICER : A D Moore

LOWER COURT DATE OF DECISION : 05/03/2005

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

MATHEWS AJ

16 May 2006

2005/1393 REGINA v Shane John PARTINGTON

SENTENCE 1 HER HONOUR: On 28 February 2006 Shane John Partington was charged by way of indictment with the murder of Anthony Gaspardis on 27 August 2004. He pleaded not guilty and a jury was dually empanelled. On 17 March 2006 the jury found the offender not guilty of murder but guilty of manslaughter. The matter was then stood over for sentence. A sentencing hearing was later convened at which both parties presented evidence relevant to sentence. I shall discuss that material a little later. First I should describe the circumstances in which Anthony Gaspardis met his death. 2 On 27 August 2004 the offender was living in a 2-story apartment building at 431 Marrickville Road Dulwich Hill. His apartment was on the upper floor. He lived there alone, although his girlfriend spent a considerable amount of time there with him. On the evening of 27 August his girlfriend, Miss Rafferty, was waiting for him at the apartment. He arrived home late and inebriated, and an argument developed between them. What happened during the course of the argument was explored during a voir dire hearing before the jury trial commenced. I do not propose to go into the details of it here but I accept that the offender became extremely aggressive, and that Miss Rafferty ran out of the apartment. The offender then also left the apartment and went to a nearby hotel, the Gladstone Hotel. There he joined the deceased, Tony Gaspardis, who had been at the hotel since about 3:30 that afternoon. They were both regular patrons at the hotel, and knew each other as drinking companions. 3 After a while the offender and Mr Gaspardis decided to go back to the offender's apartment in order to smoke some marijuana. The CCTV footage shows them leaving the hotel at 5 past 9. The offender did not have a key to his apartment as he had left in great haste after his argument with Miss Rafferty. He called out to Miss Joy Swan, who lived in unit 1 on the ground floor of the building, and she buzzed him and Mr Gaspardis into the main door of the building. The two of them then apparently went upstairs towards the offender's apartment. They were never going to be able to get into the apartment as the offender had left his key behind and Ms Rafferty had long gone home. 4 We will never know with certainty what happened after this. The offender gave evidence at his trial in which he described what he said took place between himself and Mr Gaspardis. But for reasons which will emerge later, I cannot accept his version. What we do know is that shortly afterwards there was a commotion outside the door of apartment number 3 at the bottom of the steps going up towards the offender's apartment. A school student, Leila Bourke, who lived in that apartment said that she first heard noises upstairs. Later there were loud banging noises immediately outside her apartment. The door to the apartment was being struck with considerable force. At the same time she heard the offender's voice shouting, "fuck, fuck", and another person moaning. The clear inference was that the offender was hitting someone hard against the door, probably by the head. 5 After a few minutes everything went quiet. When she opened the door she found Mr Gaspardis lying immediately outside her apartment. The offender was nowhere to be seen. She and her grandmother made a triple 0 call as a result of which first the police and later the ambulance attended the scene within a short time. 6 The offender was out in Marrickville Road when the police first arrived at the scene. He had in the meantime returned to the foyer where Mr Gaspardis was lying and had asked Miss Swan to call the ambulance. The first police to find Mr Gaspardis, which was a very short time afterwards, could find no sign of breathing, and CPR was attempted but was unsuccessful. I shall describe the extent of his injuries shortly. 7 The offender was taken to Newtown Police Station where he arrived at about 20 past 10. Sergeant Carmichael, who was the Custody Officer, at the time described the offender as being "well intoxicated" on his arrival. He had very bloodshot eyes, slurred speech, and was very emotional and crying. He told Sergeant Carmichael that he had had "heaps" that night. More than four hours later, at 2:30 the following morning, Sergeant Carmichael thought that he was still too intoxicated to be interviewed. It was not until 6 o'clock in the morning that Sergeant Carmichael considered that he was fit to be interviewed. 8 Sergeant Carmichael's description of the offender's state of intoxication is consistent with the offender's own account given to Dr Bruce Westmore that he had a consumed approximately fourteen to fifteen schooners of beer that day between about 4:45 and 9 o'clock in the evening. 9 No formal interview was conducted with the offender. However, in a conversation with Detective Thinius on the morning of 28 August he said that after an argument with his girlfriend he had gone to the Gladstone Hotel and then had come home and found Mr Gaspardis lying on the ground. Shortly afterwards the police had stopped him. He was asked why Mr Gaspardis would be at his unit and he answered that he must have been coming to see him as Mr Gaspardis knew no-one else in the building. This account of the events was patently false. The offender later denied this conversation, however, I accept the police evidence on this matter. 10 Mr Gaspardis was already dead when the paramedics attended at 431 Marrickville Road. Dr Botterill, who conducted the post-mortem examination, described numerous injuries to his facial area, including a fracture of the bones of the nose. He considered it probable that multiple points of contact would have caused these injuries, and at least moderate force would have been required to break the deceased's nose. On the back of the head there were approximately six separate areas of grazing, and within these areas there were two separate lacerations. Other injuries were noted on the deceased's back, and to the inside of his mouth. The immediate cause of death was a fracture of the second cervical vertebra with consequential damage to the spinal cord at that level, which the doctor said was probably caused by a forced forward flexion. Damage to the spinal cord at that level causes an immediate cessation of breathing. 11 Mr Gaspardis' blood alcohol reading was .280 grams per 100 millilitres, which Dr Botterill described as a very high reading; more than five times the legal limit for driving. The doctor said that how a particular individual would behave with such a high reading would largely depend on his or her tolerance to alcohol. However, many people would be close to comatose at that level. 12 The offender gave evidence at his trial. He did not dispute any of the Crown evidence as to what happened on the evening of 27 August before he and Mr Gaspardis went upstairs towards his apartment. He said that he was knocking on the door of the apartment and calling out to his girlfriend to let him in when for some reason Mr Gaspardis, who was standing behind him, became very agitated and told him to "fucking hurry up". Suddenly he felt a blow to the back of his head, he turned around and Mr Gaspardis struck him in the mouth. They then swapped punches. He said that he struck Mr Gaspardis three times around the face and head, and told him to "fuck off". Mr Gaspardis started to go down the stairs. 13 A little later the offender said that he heard a slipping noise and shortly afterwards everything went quiet. He went down the stairs himself and saw Mr Gaspardis lying outside apartment number 3. He panicked, so he started to pound on the door of that apartment. At the same time he was calling out "fuck, fuck", and Mr Gaspardis, who was lying on the ground, was moaning. 14 The defence called a biomechanical engineer, Mr Tom Gibson, in support of the offender's version. He said that the various head injuries sustained by Mr Gaspardis were consistent with his having fallen down the stairs whilst holding onto the railing. The grasp of his hand on the rail would have caused him to rotate during the fall and present the back of his head to the direction of the fall. The injuries to the back of his head, Mr Gibson said, matched the combination of surfaces and shapes in the corner where his body came to rest. 15 The defence also called Professor John Hilton, a highly experienced forensic pathologist, who said, inter alia, that the distribution of bloodstains and spatters at the scene were consistent with the scenario presented by the offender. 16 One of the problems with the offender's version was that it did not adequately explain the numerous injuries, particularly the facial injuries, sustained by Mr Gaspardis. Both Dr Botterill and Professor Hilton said that it would in all probability have taken more than three blows to cause these injuries. 17 The account given by the offender at his trial would, if accepted, have led to an outright acquittal, and the jury was directed to this effect. The verdict of guilty of manslaughter necessarily means that the jury rejected his version. This is not surprising in the circumstances. There were a number of aspects of the offender's account which strained credulity, not the least of them being that he professed to have an amazingly precise recall of minute details in a manner that is very difficult to reconcile with his high level of intoxication at the time. 18 The factual scenario I should accept, in the light of the jury's verdict is a significant matter to be determined on sentence, and I shall return to it shortly. In the meantime I should say something about the offender himself. He has had some terrible tragedies in his life, and I accept that these are at least partially responsible for his problems with alcohol and his numerous brushes with the law over the years. 19 The offender is now 36 years old, having been born on 4 January 1970. His upbringing was aptly described as "dysfunctional" in a presentence report from the Probation and Parole Service. He never knew his father, who had ended his relationship with his mother well before he was born. He had a half brother and sister from a different father who were more than 15 years older than him. He was initially raised by his mother and stepfather. His stepfather was an alcoholic who physically abused both him and his mother. He was also sexually abused by a neighbour. His mother died when he was 10 to 11 years old. His parenting was effectively taken over by his sister, who remains extremely close to and supportive of him. 20 The offender was not happy at school, and he left after Year 10. He commenced two apprenticeships but did not complete either of them. However, he has worked quite consistently over the years in generally unskilled manual occupations. 21 The offender has been abusing alcohol since about the age of 16. He suffers from lack of self-confidence, and has used alcohol to boost his assertiveness. Almost all of the offences in his very considerable criminal history were committed, it seems, when he was under the influence of alcohol. He first came before the courts when he was 16 years old. Between 1986 and 1990 he was convicted of numerous offences of break enter and steal, or break and enter with intent to steal. All were dealt with at Local Court level and all resulted in non-custodial orders. 22 Since 1990 his offences have predominantly involved acts of aggression on his part. Between 1990 and 2003 there were no fewer than seven convictions for assault, two for assault occasioning actual bodily harm, and six for maliciously destroying or damaging property. There was a gap of 5 years in which no offences were recorded, when apparently he had a stable relationship with a woman and his children. Somewhat surprisingly, before the present offence, he had never served a term of imprisonment. 23 At the time of committing this offence he was subject to a 2-year bond to be of good behaviour entered in March 2003, and two separate suspended sentences imposed in December 2003 pursuant to s21A of the Crimes (Sentencing Procedure) Act 1999. His record gives rise to two aggravating factors: Under para (D), that he has a record of previous convictions; and under para (J), that the offence was committed while he was on conditional liberty in relation to other offences. 24 The offender has had two previous relationships, as a result of which he has five children with whom he has little or no contact. His relationship with Ms Rafferty started several months before the offence. She has continued to be supportive of him, and they both say they are committed to the relationship. 25 It is clear that the offender's principal problem is with alcohol. As long as he remains alcohol free he is generally mild mannered and law-abiding. When he takes excessive alcohol his anger is liable to erupt into uncontrolled aggression. That in my view is what happened on this occasion, as I shall describe shortly. 26 The offender has acknowledged his problem with alcohol and has attempted various forms of rehabilitation over the years. However, as the circumstances of this offence indicate, he has at least so far always reverted to his heavy drinking. He also has a problem with depression, and since being in custody he has been taking anti-depressive medication which he says makes him feel more balanced. He has also been involved in organising a program which assists inmates in dealing with addiction known as the 'BASE Program'. However, his time in custody has not always been harmonious. His prison record shows two separate assaults, which he described in his evidence as effectively being self-defence. He says that he is determined to change. 27 In his evidence on sentence, the offender told Ms Betts that he accepted the jury's verdict. He professed deep remorse about the death of Mr Gaspardis. Remorse he also expressed in a handwritten letter which was tendered on sentence. However, under cross-examination by the Crown prosecutor the offender maintained his story that the only physical confrontation between himself and Mr Gaspardis was upstairs outside his apartment, and was initiated by Mr Gaspardis. He said that, having had a great deal of time to think about it, he accepted that the punches he had delivered to Mr Gaspardis at the top of the stairs were hard, and must have caused Mr Gaspardis to become dizzy, thereby causing him to fall down the stairs. He maintained his denial that he had ever struck Mr Gaspardis downstairs outside apartment number 3. 28 For reasons already given I cannot accept that version. Quite apart from the inherent difficulties in the offender's account, it is inconsistent with the jury's verdict. The jury was directed, as I already indicated, that if they thought there was a reasonable possibility that the offender's version might be accurate, then it followed that no action of the offender caused the death of the deceased, and they were to find him not guilty. 29 In the circumstances I find that the offender struck Mr Gaspardis on numerous times on the face, and also in accordance with the evidence of Leila Bourke, that he repeatedly struck Mr Gaspardis' head against the door of apartment number 3. It was the striking of Mr Gaspardis' head against the door which in all probability fractured his cervical vertebra, injuring his spinal cord, and directly causing his death. If it did not do so directly, it certainly did so indirectly when Mr Gaspardis fell to the ground. I do not accept that Mr Gaspardis initiated this confrontation. Given the extent of the offender's intoxication, the jury's verdict means that they were not satisfied that the offender was capable of forming the specific intention required for murder. 30 This, in my view, is by far the most likely factual scenario consistent with the evidence given at the trial, and with the jury's verdict. Indeed in oral submissions on sentence, as opposed to her written submission, Ms Betts did not seriously seek to argue against this factual scenario. 31 It was essentially a motiveless killing. There was no history of animosity between the offender and Mr Gaspardis. I accept that the offender exploded with uncontrollable alcohol fueled aggression, and Mr Gaspardis happened to be the unfortunate person who was in the vicinity at the time. 32 It was a great tragedy for many people. Mr Gaspardis' brother Romano and sister Karen gave moving victim impact statements setting out the devastating effects upon them and their families of Mr Gaspardis' unexpected and violent death. In accordance with s28 of the Act these statements were received and heeded but they have not been instrumental in the fixing of the appropriate sentence. 33 This brings me back to the question of sentence. Miss Betts has submitted there are several mitigating factors under s21A in this case. There is no doubt that this was not a part of a planned or organised criminal activity, and I take that into account under para (B). However, I cannot accept some of the other matters relied upon by Ms Betts. For example, I do not, as I already indicated, accept that the offender was provoked by the victim. Nor can I affirmatively find that the offender is unlikely to re-offend, or that he has good prospects of rehabilitation given his past record. Evidence was adduced that he wants to enter the William Booth program on his release, and that he has good prospects of doing so. It is a very good sign that he appears to have shown some real incite into his problems since his incarceration. One can only hope that this will translate into positive action on his release. I am afraid, however, that I have real misgivings about the genuineness of his expressed motivations and of his expressions of contrition. Nevertheless, I propose to give him the benefit of the doubt on these matters and assume in his favour that this offence has been something of a catalyst for him, and has made him reassess his future in a positive way. 34 Much will depend on his remaining alcohol free upon his release. He will require significant and ongoing assistance in this regard, and in my opinion this constitutes special circumstances which warrant the setting of a non-parole period considerably in excess of the proportion envisaged in sections 44(2) of the Act. 35 The maximum penalty for manslaughter is 25 years imprisonment. It is trite to say that this offence covers a wider area of culpability than virtually any other offence in the criminal calendar. It is for this reason that the legislature has not sought to specify a standard non-parole period for this offence. 36 In my view this was a most serious offence of its type. It involved gratuitous and unprovoked aggression with the tragic consequence that Mr Gaspardis met an untimely and violent death. Other than the fact that it was clearly unpremeditated, there are few, if any, mitigating circumstances relating to the offence as opposed to the offender. There are, as I have indicated, a number of significant mitigating factors relating to the offender personally. His high level of intoxication at the time has already been taken into account in that the relevant offence was reduced from murder to manslaughter. 37 The offender has been in custody since 27 August 2004, and his sentence must be backdated to that date. Shane John Partington, I set a non-parole period of 8 years to commence on 27 August 2004 and to expire on 26 August 2012. The balance of your term of imprisonment is to be 5 years, expiring on 26 August 2017. A total sentence of 13 years.