R v Michael John Faulkner [2009] NSWSC 1171

New South Wales Supreme Court

CITATION : R v Michael John Faulkner [2009] NSWSC 1171

HEARING DATE(S) : 16/10/2009

JUDGMENT DATE : 6 November 2009

JUDGMENT OF : Howie J at 1

DECISION : In respect of the offence of manslaughter the offender is sentenced to a term of imprisonment of 4 years 3 months made up of a non-parole period of 3 years to date from 9 May 2008 and to expire on 8 May 2011 with a balance of term of 1 year 3 months. In respect of the offence of murder the offender is sentenced to a term of imprisonment of 19 years 6 months to commence on 9 May 2011 and made up of a non-parole period of 15 years to expire on 8 May 2026. There is a balance of term of 4 years 6 months from 9 May 2026.

CATCHWORDS : Criminal Law - sentences for murder and manslaughter - after pleas of guilty - unrelated offences - relevance of mental health of offender.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 21A(3)

CATEGORY : Sentence

PARTIES : Regina v Michael John Faulkner

FILE NUMBER(S) : SC 2009/6922; 2009/130259

COUNSEL : P Barnett SC - Crown E Wilson - Offender

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

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

HOWIE J

FRIDAY 6 NOVEMBER 2009

2009/6922 REGINA v Michael John FAULKNER 2009/130259

REMARKS ON SENTENCE 1 HIS HONOUR: The offender pleaded guilty before a magistrate to two offences of homicide. The first in time was an offence of manslaughter committed on 15 July 2005. The second offence was a murder committed on 9 May 2008. For reasons that are not relevant to the sentencing of the offender, he pleaded guilty to each offence on arraignment before me on 16 October 2009. Although the manslaughter offence was committed first in time he was not charged with that offence until 18 October 2008 while he was in custody on remand for the murder offence. The delay in charging the offender with manslaughter was because there had been a coronial inquiry that took over a year to complete. 2 The offence of manslaughter carries a maximum penalty of imprisonment for 25 years. The offence of murder carries a maximum penalty of life imprisonment and there is prescribed a standard non-parole period of 20 years. The manslaughter 3 The facts of the manslaughter can be stated briefly. They were set out in a "Statement of agreed facts". However the Crown also tendered a number of statements from the prosecution brief. It was not suggested that I would find any facts from that material inconsistent with, or additional to, those contained in the Statement. 4 On 13 July 2005 the offender was residing in a boarding house in Ashfield. The boarding house had common areas including a kitchen and bathroom on the ground floor. The deceased, Jacob Van Megan, was the caretaker of the premises. 5 At about 8am on 13 July, the offender returned home after completing night shift as a machine operator in Redfern. He obtained some food from his room and made his way to the kitchen where he set about preparing a meal. 6 The deceased entered the kitchen and asked the offender to make sure he cleaned up after himself. The offender recalls the deceased complaining that the microwave was never dirty until the offender moved in. He also states that the deceased said words to the effect of, "you're gonna get out of here" and "it is your fault that toilet broke and so you're gonna get evicted for that". 7 The deceased left the kitchen and returned to the hallway near the stairs. Shortly thereafter, the offender left the kitchen and moved to where the deceased was standing. CCTV footage of the area shows the two men having a conversation. The deceased is then seen starting up the stairs and stopping on step 3 where he apparently speaks for some seconds to the offender who is standing in the hallway. He then continues up the stairs until he disappears from view. The offender turns as if to walk away, but then returns to the stairs and appears to speak to the deceased, waving his arms as he does so. He then leaps up to step 4 with one bound and disappears from view up the stairwell. Almost immediately the deceased is seen falling backwards, striking his head on the floor as he slides down the stairs. The offender then appears, descends the stairs and approaches the deceased, who is lying on the floor. 8 The deceased never regained consciousness. He was treated by ambulance officers at the scene and was taken to Royal Prince Alfred Hospital. He died on 15 July 2005 from head injuries. 9 One of the residents heard the argument between the two men including the deceased complaining that the offender was always behind in his rent. She stated that there had been arguments between the two of them on occasions prior to the incident. On one such occasion the deceased told the offender to pack his bag and leave the premises. 10 The offender gave a number of explanations to those at the scene and in an ERISP conducted on 13 July 2005. His first version was that the deceased had struck at him and he responded by grabbing hold of him whereupon they both lost balance and fell down the stairs. Later he said that the deceased in throwing a punch lost his balance and fell down the stairs although the offender had tried to catch him. 11 The offender gave evidence before me. He agreed that there had been an argument with the deceased about tidiness in the kitchen and a broken toilet. He said that after he went up the stairs the deceased "came down on me". The offender pivoted and spun around and pushed the deceased down the stairs. He accepted that he was not acting in self-defence but in anger. He admitted having given false versions to police in an endeavour to absolve himself of any responsibility for the death of the deceased. 12 The parties agree that the offence of manslaughter should be dealt with on the basis of an unlawful and dangerous act being in effect a push to the deceased by the offender while the deceased was on the stairs and unable to stop himself falling backwards. Whatever provocation there might have been in the conduct of the deceased it was very minor. The incident was in effect a verbal altercation between the two. The deceased was retreating up the stairs when the offender sought to carry the confrontation on by following him. Hence the altercation became physical resulting in the death of the deceased. 13 The manslaughter is low in the range of seriousness for the offence. There is no matter of aggravation. Although the offence occurred in premises where the deceased resided, the offender also lived there. The offence was unplanned. I am not satisfied that the deceased threw a punch, but in any event the offender followed him up the stairs in an aggressive manner. It is unnecessary to form any view of the prospects of the offender's rehabilitation when sentencing for this offence because he is to be sentenced to a lengthy period in custody for the murder. However, even had this offence stood alone, it would warrant a prison sentence to denounce the fact that the offender had taken a human life in a fit of anger. The offender's criminal record does not assist him as it contains offences of violence and both general and personal deterrence have to be reflected in the sentence for this offence. 14 It was submitted that the offender should receive the benefit of a discount for a plea at the first available opportunity. True it is that the offender pleaded guilty in the Local Court, but that was only after there had been a coronial inquiry as a result of lies he told to the investigating police about the circumstances in which the deceased died. I shall give him a discount of 15 per cent. This is in my opinion generous but the equivalent of a plea on arraignment. I do not take into account the delay before charging as this was a result of the offender's conduct in giving the police an untruthful account. The murder 15 The murder was committed while the facts surrounding the manslaughter were being investigated. There was a Statement of Facts tendered as well as some material from the prosecution brief. Again it is not suggested that I would find the facts other than as set out in the statement. 16 The offender and the deceased met in December 2007. A relationship developed between the two and in January 2008 the offender moved into the home of the deceased in Kelso which she shared with her two sons aged 14 and 8, together with her daughter aged 17. The daughter moved out of the home soon after the offender arrived, for reasons unconnected with him. 17 The deceased had told a friend that the offender generally encouraged her and got on well with the boys. However, the relationship had volatile moments. The deceased complained to friends that the offender was controlling in respect of her relationships with other people, particularly a male friend. She had also complained that he would "lose his temper over the smallest things". The boys told police that they generally got on well with the offender but he had a temper and would "sometimes get angry about things, if they were not done immediately". They had never seen the offender violent towards their mother. 18 About three or four weeks before the killing a minister from the deceased's church was called to the home in response to an argument between the offender and the deceased about him spending their money on alcohol. There was no suggestion that he had physically attacked her but he had spoken to her hurtfully. The offender was intoxicated and agitated when the minister arrived. However, he eventually calmed down and the three of them had a conversation during which the minister was told that the offender had ceased taking medication for his depression. After this event it seemed that the relationship improved. 19 On 9 May the two boys went to school as usual. The offender went to work and the deceased picked him up from work at 1pm. They went to the Bathurst RSL as they often did. She returned home at around 3.30pm to let the boys into the house after school. While she was home, one of her sons found a bong and some cannabis in the shed, which he showed the deceased. She became upset as she believed his change in behaviour was due to his use of drugs. She returned to the RSL and an argument ensued between the two of them, the deceased leaving after the offender yelled at her. 20 She returned to her home and phoned the minister's wife complaining that the offender had called her "a lying 'f'ing' bitch and all sorts of names", adding that such conduct was not like him. She said that she intended to ask the offender to move out for six months for a break in the relationship and to allow him to sort out his drug usage. She arranged for her children to stay at the minister's home that night. 21 At about 6.45pm the offender asked RSL staff to order him a taxi. As he was leaving, he remarked, with a look of extreme anger on his face, "Julie hates me, fuck her." He returned within 30 seconds and walked to the phone area. A short time later there was a crashing sound heard, and he then walked back past the staff with what was described as "a look of rage and anger on his face". The deceased had just told him in a telephone conversation to collect his things, which she had put outside the house, and to leave. 22 At about 8pm, a taxi picked up the offender and a friend with whom he had been drinking. During the trip, the offender told the taxi driver about an argument he had with his partner, because the "bastard" kids, as he called them, had found a bong in the garage. The offender said he had been drinking all day because of the argument. The driver was of the view that the offender was very drunk when he dropped him off. 23 At 8.14pm the deceased made a Triple 0 call reporting that someone was breaking into her house. A neighbour heard the sounds of doors being slammed loudly. She saw that the back doors of the deceased's premises were both open. Thereafter she heard an argument between voices she recognised as the offender and deceased. She heard the deceased say "You're hurting me" and then constant moaning for some minutes. 24 At 8.17pm the offender rang Triple 0 and informed the operator that he had stabbed the deceased and killed her. He said that he himself was dying. At the same time police officers arrived at the premises. They saw the offender talking on the telephone while he was lying on the floor. Police eventually entered the premises and the offender told them that he had stabbed the deceased. The offender had seven wounds to his stomach area. An envelope was located near the body of the deceased, upon which was written, "I did it I'm not a bad man". 25 Police observed a very large blood smear on the rear of the front door, suggesting the deceased was at, or near, the front door at the time of the attack and had slid down the door onto the floor, where she was found on her back with her head against the door. The deceased died from massive blood loss as a result of 16 stab wounds inflicted upon her. Twelve of the wounds were about 30mm or more in depth. 26 The offender gave an account to police at the scene. He said that, when he arrived home, he saw his bags outside the front door. He went around to the back of the house and broke in by smashing the window in the back door. The deceased threatened to ring the police and she picked up the phone. He begged her not to do so as he had been in trouble with the police before and said that all he had done was break a window. He obtained a knife from the kitchen. He said that when he picked up the knife "I'm dead from that moment on". 27 A blood sample was taken from the offender at 12.30am on 10 May 2008. He had a blood alcohol reading of 0.131 and there was also cannabis present in his blood. The offender told police that he had stopped taking his medication in the period leading up to the commission of the offence. 28 The offender had inflicted seven abdominal wounds upon himself some of which had penetrated his bowel and required suturing. He was hospitalised until 12 May. He suffered no lasting injury. 29 In evidence before me the offender agreed that when he entered the house the deceased was on the telephone to the police. He accepted that he stabbed her because he did not want to go back to gaol. 30 Putting to one side the offender's mental state, this is in my opinion on the objective facts an offence in the upper level of mid range of seriousness. The deceased was in her own home and had refused the offender entrance. He broke into the house and armed himself with a knife. When she refused to hang up the phone he stabbed her clearly intending to kill her. There was no provocation in any form. The deceased was fully entitled to ask the offender to leave the premises and to ring the police when he broke into the house. 31 The offender is aged 40. He has some record for offences of violence. In 1998 he was sentenced to imprisonment in Victoria for an offence of intentionally causing serious injury. He served a non-parole period of 18 months. In July 2007 he received prison terms for common assault and knowingly contravene an apprehended domestic violence order. These offences arose out of his one time relationship with a young lady. The offender entered her home in the early hours of the morning and assaulted her because she refused to withdraw an earlier complaint she had made about him. Of course when dealing with the murder I also take into account the offence of manslaughter as part of his criminal record. Even so it is not a record that should be treated as an aggravating factor, but it does indicate that the offender is prone to anger and personal violence. 32 There were two psychiatric reports in evidence. The first was dated 14 November 2008. At the time he was interviewed by Dr Allnutt the offender was taking an anti-depressant medication and a mood stabiliser. He told the psychiatrist that he had been suffering from depression since the age of 18. He first saw a psychiatrist in 2005 when he was attending Narcotics Anonymous. He was prescribed an anti-depressant that he took for about 2 years. He did not continue to seek psychiatric help. 33 The offender reported to Dr Allnutt that he used cannabis from the age of 12. He was using it for the two months prior to the killing. There is little of relevance in his background. He said that he found it difficult to maintain employment mainly because of his drug usage. 34 A second report by Dr Allnutt is dated 11 April 2009. It states that the offender had been prescribed an antidepressant medication about 18 months prior to the murder. He ceased taking the medication in February 2008 and this resulted in diminished motivation generally and a lack of interest in his relationship with the deceased. He also became more irritable. As a result of feeling depressed, he recommenced using cannabis and drank to excess. He had stopped taking his medication because the deceased did not like its effects upon the offender. In evidence the offender stated that he knew that he was getting more irritable and having trouble controlling his temper after he ceased using his medication. He agreed that the deceased asked him to resume taking his medication but he chose not to do so. He also agreed that he knew that using alcohol and cannabis fuelled his "bad behaviour". 35 Dr Allnutt believes that the offender suffers from a recurrent mood disorder including depressive symptoms. He thought that at the time of the offence the offender was suffering from an abnormality of mind, being depression as a result of an underlying condition, being a mood disorder. However, in his opinion both the depression and intoxication contributed to his lack of capacity to control himself. He thought that the offender might have been able to raise a defence of substantial impairment. The plea of guilty shows a realistic acceptance that the defence was not going to succeed because of the offender's high level of intoxication at the time of the killing. A jury is not permitted to take into account the effects of self-induced intoxication when considering whether the accused has made out the defence of substantial impairment. 36 There was also a report from a psychologist. It sets out in some detail the offender's background. I find little of significance in the fact that the offender was an adopted child or in any other aspect of his early life. The offender gave her an account of having ceased his medication and then becoming increasingly angry. He said that he commenced using cannabis in an attempt to control his deteriorating mood state and increasing anger. This was notwithstanding that he was aware that the deceased strongly disapproved of drug taking. After one particularly violent argument, the deceased told him to resume taking his medication because he was "a time-bomb waiting to go off" but he did not do so. The psychologist found that the offender was "soundly intelligent" and had entrenched symptoms of a Borderline Personality Disorder which would result in rapid extreme mood swings. She stated that: