R v Stephenson [2007] NSWSC 672

New South Wales Supreme Court

CITATION : R v Stephenson [2007] NSWSC 672

HEARING DATE(S) : 23/03/2007; 30/03/2007; 08/06/2007

JUDGMENT DATE : 29 June 2007

JURISDICTION : Common Law

JUDGMENT OF : Hidden J at 1

DECISION : Imprisonment for a non-parole period of three-and-a-half years commencing on 25 February 2006 and expiring on 24 August 2009, and a balance of term of two-and-a-half years, commencing on 25 August 2009 and expiring on 24 February 2012.

CATCHWORDS : CRIMINAL LAW - Sentence - Manslaughter - domestic context - no history of violence - offender affected by drugs and alcohol

R v Hamid (2006) 164 A Crim R 179 R v MacDonald (CCA, unreported, 12 December 1995) CASES CITED : R v Nardoni [1999] NSWSC 1097 R v Engert (1995) 84 A Crim R 67 R v Forbes (2005) 160 A Crim R 1

PARTIES : Regina (Crown) Darren Robert Stephenson (offender)

FILE NUMBER(S) : SC 2006/2881

COUNSEL : P Barrett (Crown) P Punch (offender)

SOLICITORS : Solicitor for Public Prosecutions (Crown) M Raphael & Assoc (offender)

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

HIDDEN J

Friday, 29 June 2007

2006/2881 Regina v Darren Robert Stephenson

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Darren Stephenson, stands for sentence, having pleaded guilty to the manslaughter of his partner, Jodie Zaric on 25 February 2006. That plea was accepted by the Crown in discharge of an indictment for murder.

Facts 2 An agreed statement of facts has been prepared, supplemented by certain further material to which I shall refer. The agreed facts, to which I have made some inconsequential amendments, are as follows: The victim Jody Zaric was born on 22 August 1978 and was aged 27 years at the time of her death. The offender was born on 18 January 1963 and was aged 43 years at the time of the victim's death. The victim and the offender had been in an intimate relationship for approximately eight years prior to her death. The victim would spend some of her time living with the offender and the remainder of her time living with her mother. The relationship was a volatile one. On Friday 24 February 2006 the victim won $10,000 in a competition run by a radio station. From about 5pm that day the victim and the offender were spending the evening celebrating the win at 3 Asford Close, Hinchinbrook. This is the residential address of the offender. No one else was present during the evening. Throughout the evening the victim and the offender consumed alcohol as well as some amphetamines and cannabis. The offender had consumed about six or seven beers. The offender consumed half of a fifty dollar supply of speed and a couple of cones of cannabis. The victim also consumed some amphetamines and speed. In the early hours of the morning on Saturday 25 February 2006 a verbal argument developed between the offender and the victim. During the argument the offender punched the victim several times to the head with a closed fist. As a result of the blows the victim lost consciousness. At the time of the assault the victim was sitting on the lounge in the lounge room. Around the time that the victim was being punched by the offender, the victim scratched the offender on the cheek. The scratch was minor and in no way provoked the offender. Shortly before 5am, about the time that the victim lost consciousness, the offender dialled 000. He was given directions to perform CPR by the operator and did so. He was not able to restart the victim's breathing. Ambulance officers arrived at 4.57am. The victim was unconscious, not breathing and had no pulse. The offender made admissions to the Ambulance officers that he had punched the victim in the head numerous times. The officers then called the police. The Ambulance officers were able to restore the victim's pulse and transported her to Liverpool Hospital, arriving at 5.35am. Sgt Brendan Bernie and Cst Kim Shepherd arrived at the scene at 5.18am. Sgt Bernie introduced himself and asked the offender what had happened. The offender admitted that he punched the victim "about four times". He was then arrested and cautioned. Sgt Bernie asked where the assault occurred. The offender stood up and walked over to the two seat lounge opposite the television screen. He pointed to the headrest section of the lounge and said "She was laying, her head was there, and I was punching her." Sgt Bernie then removed a voice recorder from the police vehicle and, with the knowledge and consent of the offender, interviewed him. The offender was arrested and taken to Green Valley Police Station. He participated in an ERISP interview and made admissions to assaulting the victim. In the afternoon of 25 February 2006 the victim was pronounced dead at Liverpool Hospital. A post-mortem was conducted. It was found that the direct cause of death was a traumatic basal subarachnoid haemorrhage. The offender is not able to say whether the performance of CPR on the victim, by the offender under instruction, in any way contributed to the death of the victim. 3 I also received in evidence a transcript of the recorded police interview and of the 000 call, together with a statement by the offender prepared for these proceedings. That statement outlined the offender's relationship with the deceased and described the events leading to her death. The Crown prosecutor did not object to its tender, but did not concede the truth of all that is contained in it. The offender also gave an account of those matters to the author of a pre-sentence report and to a psychiatrist who examined him for forensic purposes, and who also provided a report. The offender did not give evidence. 4 In the recorded interview with the police he gave an account of his attack upon the deceased, as he did to the Probation and Parole officer and the psychiatrist and in his statement to the Court. It is unnecessary to set out those accounts. They add nothing of significance to what appears in the agreed facts. It is apparent from those facts that he gave different estimates to different people of the number of times he struck the deceased. To the Probation and Parole officer and in his statement to the Court he said it was no more than four, and to the psychiatrist he said it was two or three. In my view, nothing turns on this. What matters is that, however many times he punched that unfortunate woman, he did so with such severity as to cause her death. 5 That said, I accept that the assault was spontaneous and brief. I also accept that he was significantly affected by alcohol and drugs at the time. No doubt, that contributed to his actions and provides some explanation for them, although, of course, it does not excuse them. I have not heard a recording of the 000 call he made, but the transcript of it is telling. It portrays a man who is horrified at what he has done, who is frantic, and who is desperate for advice about how to revive his victim. More than once he is recorded as urging her to "come on" and as declaring his love for her. 6 The offence must be understood against the background of the relationship between the offender and the deceased. The assertion in the agreed facts that it was volatile is fleshed out in the supplementary material. It is not necessary to sketch its history at any length. It is sufficient to say that it was a relationship characterised by jealousy, with each party tending to suspect the other of infidelity. There was an obsessive quality to the relationship, particularly on his part, and there were many arguments. However, he had never struck her before, although he acknowledged to the Probation and Parole officer that on a few occasions he may have pushed her. 7 The offender's statement records, and I accept, that about five years before she died the deceased found that she was pregnant to him. She wanted to have the baby but he did not. She eventually had an abortion, it being agreed that she should work for a period of years before they had a child. However, the abortion affected her badly, and she would sometimes speak to him about the child they might have had. 8 In his statement the offender also gave an account of the argument which triggered his assault upon the deceased. It is not necessary to recite that account, which I also accept. I need say no more than that the argument arose out of their jealous relationship, with the deceased on this occasion accusing him of intimacy with a woman who had previously been his partner. However that may be, their interaction on this occasion led to a violent response on his part, with tragic results. It is apparent from the 000 call and from his ready admissions to ambulance officers and police that he was immediately deeply remorseful for his actions, and it is clear from the whole of the material before me that he remains so.