New South Wales Supreme Court CITATION : REGINA v YORK [2007] NSWSC 1470 HEARING DATE(S) : 2, 3, 4, 5, 6, 9, 10, 11, 12, 16, July 2007, 13 September 2007 JUDGMENT DATE : 14 December 2007 JURISDICTION : Common Law JUDGMENT OF : Adams J at 1 DECISION : Applying the utilitarian discount in the order of twenty per cent, the overall sentence imposed is one of five years commencing 27 January 2006 comprising a non-parole period of three years and a balance of term of two years. The offender is to be released on parole on 26 January 2009. CATCHWORDS : Sentence - manslaughter LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44 R v Cardoso (2003) 137 A Crim R 535 CASES CITED : R v Oinonen (1999) NSWCCA 310 R v Thomson; R v Houlton [2000] 49 NSWLR 383; [2000] NSWCCA 309 PARTIES : Regina Alexander Christian YORK FILE NUMBER(S) : SC 2006/2459 COUNSEL : Mr P J Barnett SC (Crown) Mr J Weir (Offender) SOLICITORS : Mr I Knight (Crown) Trump Spader Lawyers (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J 14 DECEMBER 2007 2006/2459 REGINA v Alexander Christian YORK SENTENCE HIS HONOUR: Introduction 1 On 16 July 2007, the offender, Alexander York, was convicted following trial of the manslaughter of Rudi Boa at Tumut on 27 January 2006. That Mr Boa's death was caused by a wound inflicted by the offender with a knife was uncontested, indeed, incontestable. Precisely how this came about, however, is not easy to determine. Aside from the offender and, of course, the deceased, no one saw how the fatal wound came to be inflicted. The events immediately before the stabbing were the subject of conflicting evidence from the offender and Mr Boa's girlfriend, Ms Brown. I should state at the outset that, in general, I accept Ms Brown's account as the more truthful, though it may be that in some details her memory is not entirely reliable. Ms Brown, however, did not see the wounding itself, having turned away but a moment before. The offender's account, which was essentially that the wounding was accidental and inflicted when he had put his hand over his head to protect himself from Mr Boa was, I think, rejected by the jury else they would not have convicted him. At the same time, for the reasons I explain, the circumstances were such that recollections were very likely to be confused and I would not infer that the offender's account was a fabrication. The verdict is not inconsistent with the reasonable possibility that the offender had acted in self defence but, defending himself with the hand that held the knife, used excessive force in all the circumstances. In the result, however, there is no account from the offender that is entirely reliable and I must do the best I can on my view of the evidence. Events up to the point of the wounding are I think fairly clear although, as I have said, some of them are the subject of conflicting evidence. 2 It is important to note that I cannot make any finding that is adverse to the offender unless I am satisfied of it beyond reasonable doubt. In other words, the offender must in law be given the benefit of the doubt in respect of any matter that might tend to increase the seriousness of the offence or his culpability for it. Bearing this principle in mind, it is nevertheless necessary that I make some findings about what happened for the purpose of sentencing the offender. Events before the wounding 3 The offender, who was 31 years old in January 2006, came to Australia in April 2005. He travelled widely, picking up seasonal work and eventually coming to the Tumut area to work as a fruit picker. Mr Boa was Ms Brown's boyfriend. The couple had travelled from Scotland to Australia, arriving at the end of 2005. They came to Tumut in about mid January 2006 to work at fruit picking. The three met at the Blowering Holiday Park, where they had adjacent tent sites. They became friends. Until 27 January there appeared to be no discord between them, let alone any physical confrontation. In the early evening of 27 January the three friends travelled into the Tumut township from the Holiday Park for a social evening, going first to the Star Hotel. 4 In outlining what happened during the evening, it is important to note that the witnesses were, on the one side, the offender and, on the other, Ms Brown both of whom had had a fair amount to drink although they were by no means drunk. Their recollections were obtained many hours and, in the offender's case, many days, perhaps weeks or even months afterwards. Even if there had been no intervening catastrophe, one could not realistically expect objective and reliable accounts. Not surprisingly, therefore, they gave somewhat conflicting accounts. Some bar staff also gave evidence about what they saw but I did not find this of much assistance in resolving the conflicts. Of some help is the accidental fact that, on their separate taxi journeys back to the Holiday Park, their conversations with the taxi driver were video and sound recorded. I will return to this evidence shortly. 5 When they arrived at the hotel, the offender, Ms Brown and Mr Boa chatted socially and, it seems, happily enough for a while, drinking beer while they did so. They were joined by a Mr Corner who was an acquaintance of the offender. One of the subjects of conversation was creationism about which it appears the offender and Mr Boa had differing views probably exaggerated by alcohol. The offender had made some jibes at Mr Boa which, I think, he did not intend to be offensive although they were probably taken that way by Mr Boa. Mr Boa responded in kind. Although this all became perhaps a little sharp-edged, it did not really amount to anything and appeared to subside into the usual background noise of inconsequential social interchange. For some reason, however, which is not at all clear, at about 10pm the offender's mood changed suddenly and he began to abuse Mr Boa and Ms Brown. (In his evidence, the offender in substance denied this, saying that he was merely responding to offensive remarks made about him. It is quite possible that he thought this was the case.) There was no hint of a physical confrontation and what happened amounted to little more than a brief verbal contretemps. Ms Brown says, I think truthfully, that she and Mr Boa were taken by surprise by the offender's conduct. They briefly but ineffectually tried to calm him down and then just decided to leave and go to another hotel. Shortly after this the offender and Mr Corner left the Star Hotel, travelling by taxi to Mr Corner's home and thence to the Blowering Holiday Park. 6 As I have mentioned, the taxi's video recorder was operating and recorded a conversation between Mr Corner and the offender in which the latter expressed in sharp language his resentment of Ms Brown and Mr Boa, which focused on what he thought was their cadging of his alcohol and cannabis. It is obvious from the language he used and his tone of voice that he was angered by this. It is also obvious that he was significantly affected by alcohol. Nothing in what he said, however, hinted at any physical response. After delivering the offender to the caravan park, the driver went back into town and, as it happened, picked up Mr Boa and Ms Brown who had, in the meantime, bought some takeaway pizza. He raised with them in a conversational way the events of their evening and they expressed their annoyance and bewilderment at the conduct of the offender towards the end of the night. They also were, I think, significantly affected by alcohol. Mr Boa referred to the offender in very insulting terms, plainly responding to what had happened in the Star Hotel a short time before. Ms Brown found the offender's behaviour baffling since, hitherto, she had known him as a pleasant and decent person. 7 It had started to rain with greater or lesser intensity as the three made their separate ways back to the caravan park. The offender had started to get himself a meal, using a knife to eat some sardines. He was sitting just inside the tent. Shortly after, Mr Boa and Ms Brown arrived and made their way to their tent. There is a conflict of evidence at this point between the offender and Ms Brown. According to Ms Brown, the offender was standing at the entrance of the tent, saw them and called out in offensive terms, demanding the return of a book. The two went up to the tent, Ms Brown with the pizza box in her hand. She said that she could not remember what she said but "I think we were trying to say, 'Look, why are you being like this?'" The offender said he was sitting just inside the tent with his sardines and the knife, with the tent flap closed – I think because of the rain – and he heard footsteps outside on the gravel and Ms Brown and Mr Boa talking to each other about whether he was in the tent. He thought they might be coming into the tent and told them to "fuck off". He said Ms Brown and then Mr Boa told him to get "get out of the fucking tent". He zipped the flap open and stood up, seeing the couple right at the entrance. 8 I think that neither of these accounts is completely reliable and the truth lies somewhere between them. I have not concluded that either witness was intentionally attempting to mislead; rather, they were giving their recollections as best they could but those recollections were incomplete and affected by the emotions arising from the dreadful events that followed, their intoxication and ordinary human failures of memory. In what follows, I set out my view about what happened without setting out all the evidence given by the two protagonists. A nice analysis of detail would be of little use. The wounding of Mr Boa 9 It is important to note at the outset that Mr Boa was killed in the course of a slight, otherwise inconsequential scuffle in which neither he nor the offender intended to inflict any injury at all. The precise sequence of events accordingly does not matter very much, even if one could be certain about it. However, what follows is what I believe happened. I think that the offender was offensive to the other two and perhaps, opened the batting. I think it likely that Mr Boa had wanted him to come out of the tent and was probably not polite in telling him so and that Ms Brown was probably trying to enquire what was wrong. Nobody was thinking clearly and all this was happening very quickly. Although the offender denies doing so, I think that he did deliberately strike the pizza box out of Ms Brown's hands. Her immediate response was to slap him quite hard on the face, so she was not in a completely calm mood. The offender's immediate response was to push her hard with a hand to neck area. She fell to the ground and turned away. Ms Brown said that the offender said, "I've got a fucking knife. I'll stab you." I accept that she believes this was said but, having regard to her later behaviour and accounts, I am very doubtful that this was actually said. Mr Boa was standing very close when Ms Brown was pushed to the ground. I think it almost certain that he instinctively and immediately moved forward when his girlfriend was violently pushed to the ground. The offender had the knife in his right hand and moved his arm either at the same time as or in response to Mr Boa's action. The knife penetrated the right side of Mr Boa's chest between the 5th and 6th ribs without damaging them. Although some force was necessary, it was relatively slight. There is no reason to think that the offender intended to stab at all. An intentional stabbing of someone in the chest must almost inevitably lead to the conclusion that there was an intention at least to cause grievous bodily harm. This conclusion is contradicted by the jury's verdict. At all events, I am quite satisfied that the offender never for a moment wanted to cause Mr Boa any serious injury. His was a blow with the knife in his hand that, objectively, must have been dangerous and the blow was an unlawful assault. I do not believe that he took aim but rather thrust out and, as it happened, struck Mr Boa's chest. I think he knew that the knife was in his hand and any aggressive use of the hand was likely to involve the knife with the possibility of harm but he did not actually turn his mind to the potentially serious consequences of doing this. All this happened so quickly that the thought of the knife in the hand and the wounding would have been almost simultaneous. If, as I think likely, Mr Boa moved forward as the offender swung his arm, the knife would have penetrated all the easier. I cannot be satisfied beyond reasonable doubt that the blow was intended aggressively as distinct from defensively. But it must follow from the verdict, I think, that if the offender acted in self defence at this point, his striking at Mr Boa with a hand holding the knife was objectively excessive force. 10 Almost immediately after falling, Ms Brown got up, turned away and said, "Come on Rudi" to her boyfriend. It was as this happened that Mr Boa was stabbed. Within a moment she heard Rudi say, "He stabbed me", and walk a little way. He then fell to the ground where he died after a very short time. Tragically, the knife, had gone in to the hilt (there being virtually no resistance once the skin was penetrated) and nicked the inferior branch of the pulmonary artery. 11 The offender is guilty of manslaughter because death resulted from an unlawful and dangerous act. The unlawful and dangerous act involved was the infliction of a blow involving the use of a knife even though I am satisfied that the offender's act was impulsive and done on the spur of the moment, possibly in response to Mr Boa's moving towards him. Insofar as it might have been defensive, the use of a knife was excessive. 12 In considering the objective seriousness of this offence it is important to note that the offender did not pick up the knife for any aggressive purpose. It happened to be in his hand because he was using it as an eating utensil. This important fact differentiates this case from all those cases where a weapon is used to injure or kill and is obtained or brandished for that very reason. Unlawful use of a knife will usually be, and rightly so, a seriously aggravating feature of any assault. Here, however, the knife was only incidentally in the hand of the offender. It is only natural that he would attempt to use his right hand to fend off Mr Boa and, although at that point in time he was aware of the knife in his hand, he had not intended to cause any injury with it. In these circumstances, I do not think that this feature adds any further aggravation to the objective character of the offence itself, the overwhelming element of which is, of course, the loss of life. 13 As it happens, I do not think that the offender was aware of how seriously he had injured Mr Boa until he collapsed. Although different witnesses give different accounts of the offender's conduct, I am satisfied that he stayed at the scene, attempted to call for help and tried to assist those who were attempting to shelter Mr Boa from the rain whilst the ambulance and police arrived. Subjective Circumstances 14 As at January 2006 the offender was thirty-one years of age and he has been in custody since that time. The offender has been on protection whilst on remand which has significantly limited the time able to be spent out of his cell, at least whilst he has been in Junee prison. At Parklea, however, where he has been held for most of his remand, the hours out of the cell are not markedly different to those available to ordinary prisoners. At the same time, his period on remand has been served in maximum security since his classification to a lower security prison can only occur after sentence. Some allowance should be made for this since it is evident that he would have been classified to a lower security prison at an earlier point than will otherwise be the case. 15 As I have mentioned, the offender is a citizen of the United Kingdom. He has no relatives in this country. A number of testimonials has been tendered on his behalf from people who know the offender well. They speak eloquently of his good character and his lack of any violent tendencies. I am satisfied that the offender is a person of good character and that this present offence is a complete aberration. He has good prospects of rehabilitation. As I have already said the offence was spontaneous and impulsive and the shocking consequence did not for one moment occur to him. 16 In my view the culpability of the offender for this crime lies very close to, if not at the bottom, of the range applicable to this offence. What makes the crime grave is not so much the wickedness of the offender's conduct but its outcome: he has unlawfully caused a death. 17 I deal with the offender's attempts to plead guilty to manslaughter later on in these reasons. For the present I note that the circumstances and the nature of the evidence were such that the conviction of the offender for manslaughter was far from certain. His conviction for murder was only a slight possibility. Accordingly, the offender's offer to plead guilty should be seen as a willingness to accept responsibility for what he had done and an expression of contrition. The Victim Impact Statements 18 On the sentencing hearing victim impact statements were received from Ms Brown and Mr Boa's sister on her behalf and that of her parents. They express in moving terms the dreadful loss they have suffered from the death of Rudi Boa. He was in every way an admirable young man whose tragic and untimely death far from home will be a cause of continuing grief and loss, which can never be assuaged. Least of all by anything that this Court can do. 19 It is important to understand, however, that by permitting victim impact statements to be received in a hearing such as this, the law does not thereby place them in the scales of justice to be weighed by the Court in determining sentence. The taking of a life is the gravest injury known to the criminal law. It cannot be made more serious because the victim's death is the cause of pain or grief to others, however intensely felt. The life of one person cannot be regarded as more valuable than the life of another, or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. To do this would undermine the moral standards essential to the maintenance of the rule of law. It would be wrong to take one day from an otherwise appropriate sentence for unlawful killing because the deceased was selfish, obnoxious or a drunk and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was honourable, loved and missed dreadfully by friends and family, one or more of whom have suffered as a consequence of the death. If this were not so, counsel for the killer might rationally submit that as the victim was unloved or unlovely, his or her death mattered less and the sentence should be more lenient, and the Crown Prosecutor, by pointing to a grieving family, angry onlookers, or an indignant media, submit the penalty should be greater. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 20 For these reasons, although it is entirely proper that Rudi Boa's kith and kin should be able in this place to express their feelings of grief and loss at his sad and tragic death, the Court cannot take this into account in sentencing the offender. Utilitarian Discount 21 On 22 September 2006 the legal representatives of the offender informed the Crown of instructions to plead guilty to manslaughter on the basis of provocation and excessive self-defence. This offer was rejected. On 8 December 2006, the offender was arraigned and the trial set down for 2 July 2007, with a mention date of 2 March 2007. On 20 February and 27 June 2007 further offers were made to plead to manslaughter upon the ground of the offender's dangerous and unlawful act. Again, these offers were rejected by the Crown. In the result, the jury acquitted the offender of murder and convicted him of manslaughter. Although it is true that a trial was conducted, it was necessary, not because of the offender's approach, but because the Crown considered the question of guilt or otherwise should be determined by a jury. In this, no criticism can be made of the Director's attitude. 22 It is true that the offender might have pleaded guilty to manslaughter and not guilty to murder when arraigned but, in the circumstances of this case, such a plea would not have affected the course of the trial since, in the circumstances, the Crown would necessarily have led the same evidence as was ultimately required. It is clear that there is a public interest in encouraging genuine pleas of guilty to be offered for the reasons explained by the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] 49 NSWLR 383; [2000] NSWCCA 309. This must be so, even where the Director does not accept the plea offered and a trial ensues: see R v Oinonen (1999) NSWCCA 310; R v Cardoso (2003) 137 A Crim R 535. 23 In my view the offer to plead was made at an early point well before the matter was set down for trial. An appropriate discount in these circumstances is of the order of twenty percent. Sentence 24 The sentence to be served by the offender is the first time he has spent time in a prison. He is far from his own country and unable to be visited by family and friends. This feature is a substantial hardship. Unlike those, such as drug couriers, who come to this country for the very purpose of committing offences, the offender came here to work and see the country. He finds himself now facing a lengthy term in prison for a single impulsive, careless act which, tragically, has cost another young man his life. I am of the view that these matters constitute special circumstances justifying a variation of the statutory formula in s44 of the Crimes (Sentencing Procedure) Act 1999 for calculating the non-parole period. The sentence will commence on the date the offender was taken into custody. 25 Applying the utilitarian discount in the order of twenty per cent, the overall sentence I impose is one of five years commencing 27 January 2006 comprising a non-parole period of three years and a balance of term of two years. The offender is to be released on parole on 26 January 2009. ********** 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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