New South Wales Supreme Court CITATION : R v Edward David ZAMMIT [2008] NSWSC 317 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 06/02/2008, 28/03/2008 JUDGMENT DATE : 9 April 2008 JUDGMENT OF : Howie J at 1 DECISION : The offender is sentenced to a term of imprisonment of 6 years and 3 months. There is to be a non-parole period of 4 years to commence on 1 June 2006 and to expire on 31 May 2010 the date upon which the offender is eligible to be released to parole. There is a balance of term of 2 years and 3 months to date from 1 June 2010. CATCHWORDS : CRIMINAL LAW - Sentencing - Domestic violence - Manslaughter. CATEGORY : Sentence CASES CITED : R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 PARTIES : Regina v Edward David Zammit FILE NUMBER(S) : SC 2007/00004593001 COUNSEL : J Kiely SC - Crown P Winch - Offender SOLICITORS : S Kavanagh - Crown S O'Connor - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J WEDNESDAY 9 APRIL 2008 2007/00004593001 REGINA v Edward David ZAMMIT REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Edward Zammit was charged with the murder of the deceased, Deslie Ward, between 16 and 22 May 2006. During the course of committal proceedings in May 2007 he informed the Crown that he would be prepared to plead guilty to the offence of manslaughter. On 6 September 2007 the Crown indicated it would accept the plea. The offender was thereupon committed to this Court for sentence. The basis of the manslaughter charge was death by an unlawful and dangerous act. The offence carries a maximum penalty of imprisonment for 25 years. There is no applicable standard non-parole period. 2 There was an agreed statement of facts tendered to the Court. The facts upon which the offender is to be sentenced can be summarised briefly. The offender and the deceased had been living in a de facto relationship since 2002 and resided in a unit in a Sydney suburb. On 15 May the offender invited a former partner, Ms Jennings, to have drinks at the unit. The offender, the deceased and Ms Jennings drank wine and beer that had been purchased by the offender. At about 3.15pm the females went to a nearby hotel where they drank beer together. They were later joined by the offender and a neighbour. The four persons later left the hotel after there was some argument in which Ms Jennings was involved with other patrons and as a result of which staff refused to serve her. 3 The offender, the deceased and Ms Jennings returned to the unit where they continued drinking alcohol. Later that evening the offender began to argue with the deceased and accused her of sleeping with other men and using heroin. The deceased admitted the truth of these accusations. Ms Jennings asked the deceased if the accused hit her on occasions and she said that he did. The offender became upset as a result of this conversation and was keen that Ms Jennings should leave. She did so at about 3.30am. 4 The offender later admitted to police that, after Ms Jennings, left he began swearing at the deceased because of what she said to Ms Jennings about the offender assaulting her. He grabbed her and threw her forcefully into the refrigerator. As a result she fell into a bench top hitting her ribs. The offender described his actions as a "vicious throw". He said that he heard a thud as the deceased hit the bench top. 5 The deceased fell to the floor where she lay gasping and trying to catch her breath. She managed to get up and made her way to the bedroom holding her ribs. She lay in bed moaning and groaning. The offender asked whether she was all right but she told him not to worry about it. Both the offender and the deceased then fell asleep. 6 The next morning they were both in the kitchen where the offender continued to berate the deceased about what she had said to Ms Jennings. At about 8am the offender grabbed the deceased as she was rinsing a cup in the sink and threw her forcefully into a cupboard. The deceased again fell to the floor. She managed to clamber on to a chair at the table holding her side. Although the deceased told the offender not to worry, he knew she was in pain and was having trouble breathing. The offender did not summon assistance telling the police later that the deceased would not have let him do so. 7 The offender noticed the condition of the deceased deteriorate about midday and offered to call an ambulance but the deceased would not let him. However, after she had eaten a sandwich and was in obvious distress because of difficulty breathing, the offender, according to what he told police, called an ambulance on Triple 0. However, there is no record of this call being received. 8 Prior to the ambulance being summoned, the offender attended the flat of a neighbour saying, "come quick, Deslie's dying". The neighbour went to the unit and saw the deceased trying to drink from a bottle. She was a purple colour and the neighbour directed the offender to call an ambulance. The neighbour sought assistance of another neighbour, Ms Leary, who had some nursing skills. She attended the unit and attempted to render some assistance to the deceased. However she quickly formed the view that the deceased was beyond help. 9 The ambulance first received a call at 14.55 when the deceased was with Ms Leary at the unit. Ambulance officers arrived just after 3pm at which time the deceased was not breathing and had no pulse. They attempted to resuscitate her without apparent success. However on the way to the hospital she showed signs of recovery. She was admitted to hospital but was pronounced dead on 22 May 2006. 10 The offender declined to go to the hospital with the deceased because he said he had phone calls to make. He later again refused to attend the hospital when requested to do so. He told Ms Leary after the deceased had been taken from the unit that she probably killed herself. When later interviewed by police, the offender denied there was any violence toward the deceased and said that she apparently choked on a sandwich. 11 On 22 May the offender was himself admitted to hospital in a critical condition. Prior to his discharge on 1 June police sought to question him further. The offender told police that he needed to get something off his chest and admitted that the death of the deceased was his fault. He then was re-interviewed by police and admitted his acts leading to her death. It is clear that the offender was intoxicated the morning after Ms Jennings had left the flat and when he first assaulted the deceased. 12 The deceased had suffered fractures of three ribs and the hyoid bone in the neck. The direct cause of death was an hypoxic brain injury but there was no evidence as to its cause. However the injuries were consistent with the account given by the offender. 13 The offender is aged 55 years. He has a criminal record dating from 1967 when he was before the Childrens Court for an offence of breaking and entering. He has convictions throughout the 70s for offences of dishonesty. He first received a gaol sentence in 1971 for stealing. He was sentenced to imprisonment in 1973 for receiving. In 1982 he was placed on a bond for an offence of assault and was imprisoned in 1992 for maliciously inflicting grievous bodily harm. In each of the years 1994, 1999 and 2000 he received prison sentences on charges of assault occasioning actual bodily harm. He last served a prison sentence between July and November 2000. 14 The offender has been heavily addicted to alcohol since the age of 24. He has also used cannabis. He entered a rehabilitation programme for his alcohol abuse in the 1990s and for drug withdrawal in 2001. In November 2005 he was admitted to Blacktown Hospital for liver disease. Following the killing of the deceased he was admitted to hospital after becoming unconscious because of an overdose of paracetamol and liver failure due to alcohol abuse. 15 There is in evidence a psychiatric report of Dr Carne. It contains background material of the offender. He describes his father as an alcoholic who inflicted violence on the offender's mother and the offender himself. His elder sister cared for the offender as his parents were unable to provide a stable upbringing for him. She described the offender as being "brutally maltreated" by his stepfather. The offender had been declared as "uncontrollable" and spent time in various boys' homes. He also spent some period in a school for disturbed children. The offender left school at the age of 16 to work with his father. Thereafter he carried on various occupations until he completed a horticulture course at the age of 26 and then took up landscaping, an occupation that he followed when not serving prison terms. 16 There was also tendered a psychological report which sets out the offender's background. The offender reported to the psychologist that at the time of the killing he had been depressed because of financial and emotional problems. The psychologist found that the offender suffered from a substance abuse disorder. Tests indicated that he had a moderate risk of recidivism the predominate factors being alcohol abuse and anger. 17 There is a letter from the offender's brother-in-law seeking leniency in light of the offender's deteriorating condition over the years as he succumbed to his misuse of alcohol. It refers to the offender's daughter who suffers from a mental illness but whom the offender has visited frequently and whom he has tried to assist with money. There is also a letter from his half-sister who relates the abuse suffered by the offender through his youth and the consequential learning and behavioural problems he suffered. 18 Dr Carne raised a question whether by reason of his liver disease the offender could have been suffering from hepatic encephalopathy at the time of the killing. This is a disorder of brain function as a result of liver failure. Dr Hubert a specialist in gastroenterology prepared a report for the Crown in he which he indicated his belief that encephalopathy was not likely to be a major factor in the offender's actions. Rather it is probable that the offender was simply intoxicated, and it is possible that the effects of alcohol were exacerbated by the liver malfunction. 19 As a result of his medical condition the offender is subject to a medical hold and close monitoring in the prison system in order that he can be taken to hospital urgently should the need arise. 20 The offender's conduct at the time the deceased was taken to the hospital on its face seems to exhibit a lack of remorse in his refusal to accompany her when requested to do so. However, it should be noted that it was the offender who first sought help from a neighbour because of his concern for the deteriorating condition of the deceased. In any event he ultimately confessed to the assaults upon her to police even though at first he had sought to deny his involvement. 21 Although this was a case of domestic violence there is nothing to suggest that this was an incident occurring in an abusive relationship. There were two separate assaults but the background was the same and on each occasion the offender was intoxicated. The assaults were hard pushes rather than kicks, punches or the use of a weapon and, therefore, they were of a less serious nature than is often found in this type of offence. Death was a result of a complication arising from the injuries suffered by the victim that were not necessarily fatal. The intoxication of the offender and probably the deceased meant that neither was in the most advantageous position to seek professional help for her injuries or realise the seriousness of her condition at least initially. 22 However there must in the sentence be an element of denunciation and general deterrence because of the significance of domestic violence in the community: see R v Hamid [2006] NSWCCA 302; 164 A Crim R 179. I do not think in all the circumstances that there is any need for the sentence to reflect individual deterrence. The sentence of course must reflect the fact that his actions resulted in the death of another human being. 23 The offender has a history of violence but not such as to indicate that he would be a particular danger to the community. He does not obtain any advantage from his record but it does not seem to me to be an aggravating factor in sentencing him in light of the period since the last offence of serious violence. He has very serious health issues and they will be his major source of concern when ultimately released from custody. It may well be the case that he will not be eligible for classification to a less harsh prison environment because of his medical condition and his symptoms make his custodial situation more difficult for him. 24 It seems to me that his medical condition is a matter that I should take into account in fixing the overall sentence and is a basis for finding special circumstances. He is entitled to a discount of 20 per cent for his plea of guilty during committal proceedings. The sentence I would have imposed but for the plea of guilty is 8 years. 25 The offender is sentenced to a term of imprisonment of 6 years and 3 months. There is to be a non-parole period of 4 years to commence on 1 June 2006 and to expire on 31 May 2010 the date upon which the offender is eligible to be released to parole. There is a balance of term of 2 years and 3 months to date from 1 June 2010. ********** 10/04/2008 - Edit error - Paragraph(s) 17 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.