Supreme Court New South Wales Medium Neutral Citation: R v Pitt [2012] NSWSC 1549 Hearing dates: 26 November 2012 Decision date: 14 December 2012 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Convicted of the offence of manslaughter Sentenced to a non parole period of 6 years to date from 17 January 2011, expiring 16 January 2017, with a balance of term of 2 years, expiring 16 January 2019. Eligible for release on 17 January 2017 Catchwords: CRIMINAL LAW - sentence - manslaughter - guilty plea - objective gravity assessed as considerable - moral culpability diminished by offender's psychiatric state and distorted perception of threat posed by victim - reasonable prospects of rehabilitation - some evidence of contrition - offender an unsuitable vehicle for general deterrence - limited criminal history of summary nature - discount for guilty plea Category: Sentence Parties: Regina - (Crown Leonard Arthur Pitt - (Offender) Representation: Counsel N Williams - (Crown) D Yehia - (Offender) Solicitor for Public Prosecutions - (Crown) Aboriginal Legal Service - (Offender) File Number(s): 2011/15850 SENTENCE 1The offender, Leonard Arthur Pitt, pleaded guilty to manslaughter on 26 November 2012 in full discharge of an indictment charging him with the murder of Jamie Collins on 17 January 2011. The plea was accepted on the basis that the offender was substantially impaired at the time he inflicted a fatal stab wound to the victim. The offence of manslaughter carries a maximum penalty of 25 years imprisonment. 2The offender was committed for trial on a charge of murder on 15 December 2011. However, in early 2012 the offender was assessed as unfit to stand trial and transferred to Long Bay prison hospital as a forensic patient. Following a change to the offender's medication, the offender was found fit to stand trial on 23 May 2012. On 18 May 2012, the offender offered to plead guilty to manslaughter. On 1 June 2012 the offender was arraigned. 3In January 2011, the offender lived in a unit on High Street, Granville together with the victim Jamie Collins and another man, Travis Hunter. The offender was the lessee of the unit. 4On Sunday 16 January, the victim and his brother spent a number of hours working on a motor vehicle at Merrylands. The owner of the vehicle bought some beers and a sixpack of Jim Bean and Cola. At about 5:30 pm the trio went to the offender's residence and began drinking. Mr Hunter was not home at the time. 5The offender was at home. He was given one beer which he consumed. The offender argued with the others over the amount of alcohol that was available to him and at one point threatened to evict everyone. 6At about 7 pm the victim, his brother and the owner of the vehicle went to the Woolworths liquor outlet at Parramatta Westfield where a case of VB stubbies was purchased. They returned to the offender's residence and saw a sign on the door reading "gone away for two or three weeks love Len". When the trio entered the premises the offender was still at home. He began throwing his arms around towards the victim and tried to grab him or hit him around the neck and face. He talked about moving out, either the next day or in March or July. He appeared drunk at this stage even though he had not consumed much alcohol. After the beer was consumed, the offender admitted to ringing 000 because the victim had kicked his door. 7At about 7:30 pm, a neighbour from the unit next door was standing on the footpath outside the unit block. She heard the offender swearing at the victim telling him he wanted him to leave his unit. She also heard the offender say "move away from my neck". The door to the offender's unit opened and the victim ran onto the footpath. He was joined by the offender who was speaking on his mobile phone, saying "I need some help someone tried to kill me". The offender mentioned something about a bottle and a knife. The victim was calling the offender a liar. 8The neighbour rang the police because of further arguments between the offender and the victim. Police arrived a few minutes after 9 pm. The offender claimed the victim had assaulted him by hitting him over the head with a bottle. The attending police noticed that the offender had a small scratch on his forehead and an abrasion to his right cheekbone. The offender was very vague in his allegations. The victim denied to police that he had hit the offender with a bottle. The victim said the offender had fallen over. The victim also said that the offender was trying to get the victim locked up so the offender could take the beer. Police described the offender as extremely well affected by either alcohol or drugs, in that his speech was slurred and his eyes glazed and bloodshot. The ambulance attended and took the offender to hospital. 9Police spoke to the victim and told him they would not be charging him but that an AVO would be applied for in the offender's favour. The victim told police that he would not hit the offender because he is too small. At about 10:45 pm, the neighbour heard the sound of items being broken inside the offender's unit and again called the police. Police attended at about 11 pm. However, the noise had ceased so they left without speaking to anyone. The noise and banging sounds continued during the night, causing the neighbour to call police a third time at about 11:30 pm. Police attended and spoke to the victim about the noise. The offender was not at home at this stage. Police thought that the victim was slightly more intoxicated than when he had been seen at about 9 pm that night. Police returned to Merrylands police station to apply for an AVO on behalf of the offender. 10Mr Hunter returned home in the early hours of the morning and found both the offender and the victim to be drunk and constantly arguing with each other. Mr Hunter tried to go to sleep in the lounge room but eventually decided to leave. He walked to a nearby park where he spent the remainder of the night. 11About 3:30 am on Monday, 17 January 2011, the neighbour saw the victim's brother sitting in his car in the unit carpark playing loud music. At about 4:30 am she heard the victim and his brother talking about smashing the unit so that the Department of Housing would kick the offender out of his unit. 12At about 5:15 am, the neighbour heard the offender's front door open, heard loud music inside the unit and heard the victim say "I want to fucking kill him he's a liar". The victim's brother then said "don't worry. We'll fix it." She then heard someone run from the offender's unit into the car park. 13At about 4 am, police heard a broadcast of an incident at the offender's unit. Soon afterwards, a second broadcast indicated that the victim and his brother were chasing the offender down the street. Police drove to Church Street Parramatta where they came across the victim's brother. He was well affected by alcohol and was searched by police. Police then walked further down Church Street and saw the offender who told them that the victim's brother had been chasing him. The offender was also well affected by alcohol. Police enquired about a knife, however the offender said there was no knife. Police then spoke to the victim's brother who denied chasing the offender and said he was walking home when the offender started running and screaming. The offender complained to police that his house was being trashed by the victim and his brother, although he had no proof. 14The offender was advised by police that no action would be taken. The offender queried this and requested the police remove the victim from the offender's unit. The offender was informed of the AVO and advised to go to the Department of Housing or the Tenancy Tribunal in respect of evicting the victim. The offender continued to insist that police remove the victim from his unit. Ultimately police decided to speak to the victim. They attended the premises where they observed a broken chair with a number of furniture items strewn around the unit, and empty beer bottles scattered around the lounge room. The victim was not in the premises. Police advised the offender that an AVO was being obtained for his protection. 15Police then left the premises and drove to a nearby petrol station where they heard a further broadcast indicating that the victim's brother had returned to the premises and was going to assault the offender. They returned to the premises and spoke to the victim's brother who said he had returned for his girlfriend. They left the premises. Police noticed the victim lying in a chair in the lounge room and asked the victim's brother if he could take the victim with him. The victim's brother declined. The victim was told to go to the Department of Housing in the morning and the offender continued to argue and complain about the lack of police action. The offender then left the premises yelling out that police were chasing and assaulting him. The police decided against continuing to argue with the offender and they returned to Merrylands police station. 16Just before 6 am, the offender attended the Merrylands police station where he continued to insist that the police remove the victim from his unit. The offender was told that a check would be made in relation to the AVO and while this was occurring the offender left the police station. 17At about 6:40 am, a resident of High Street heard a man yelling out the front of his house. He opened the front door and saw the offender walking away from his property. The offender then came to the gate and said "I just stabbed someone, I stabbed him in the heart, he's dead." The offender told the resident that he had been assaulted, had run away, but went back and talked about someone trashing the unit. The resident rang the police. The offender spoke to the operator repeating his statement that he had stabbed someone and requesting an ambulance. 18When police attended the unit shortly after 7 am, the offender was sitting on the front veranda with the resident of those premises. Police approached the offender and asked him what had happened. The offender said "I stabbed him". He was handcuffed and placed under arrest and cautioned. The offender again stated "I stabbed him here" pointing to his heart. A silver bladed knife was found on the driveway of the unit block. 19When police entered the offender's unit they found the victim in the end bedroom, wearing only shorts, lying on a single bed with his feet partially over the edge of the mattress. There was a large pool of blood on the carpet on the side of the bed. The victim had a puncture wound to his chest and was not breathing. Ambulance officers arrived and life was pronounced extinct at 7:15 am. 20The offender was taken to Merrylands police station where he declined to be interviewed. He was then charged with murder. 21The knife found at the scene was found to contain a DNA profile matching that of the offender. A stain on the doorframe between bedrooms one and two in the unit was found to contain a DNA profile matching that of the victim. 22The victim died from a stab wound inflicted to the right of the midline which penetrated through the right pectoralis major muscle, through the right fourth rib, passing between the right lung and the mediastinum and the airway and pulmonary artery. The wound also penetrated the heart. The depth of the wound was estimated at 13 cm. There was a non-penetrating superficial wound on the left thumb. There was bruising on both forearms and some bruising to the knuckles of the left hand. There were various abrasions and bruises around his shins and calves. The minimum degree of force required to inflict the stab wound to the chest would have been severe. The bruising on the forearms was consistent with defensive injuries. The bruising to the knuckles was also consistent with defensive injuries or with the victim landing a punch or punches. There was a concentration of 0.118 g per 100 mls of alcohol in the victim's blood. 23The objective gravity of the offence may be legitimately assessed as considerable, if regard is had to the force required to inflict the wound and the position of the wound on the body. There is no suggestion that the victim was armed, although I accept that the victim may have physically assaulted the offender shortly before he was stabbed and I accept that the victim and/or his brother had provoked the offender earlier by damaging his personal belongings. It is not possible to make a finding beyond reasonable doubt as to the position of the body when the stab wound was inflicted. It appears likely from the position of the victim's legs and feet that the victim was standing when the wound was inflicted and then fell back onto the bed where he died. 24There are however a number of features of the offence that, whilst technically not purely objective, impact upon the moral culpability of the offender and therefore impact indirectly upon the gravity of the offence. These factors include a complex interrelationship between the offender's psychiatric state and his perception of the threat posed to him by the victim and the victim's brother. In order to appreciate the offender's state of mind, some brief reference to his psychiatric history is required. The Offender's Psychiatric History. 25At the time of the offence the offender was 40 years of age. According to medical records, the offender had approximately 39 contacts with mental health and medical services between 1989 and 2011. He was admitted between 3 September and 18 September 1995 with a diagnosis of alcohol intoxication and delirium, dysthymic disorder with atypical features. On 5 March 2000 he was diagnosed with an anxiety disorder after an episode of aggressive behaviour involving his uncle. It was recorded that he was provoked into violence by his neighbours persisting in playing loud music and that he chased the neighbour with a baseball bat. 26He was admitted to a psychiatric unit on 16 April 2002 with a history of worsening mental state and paranoid ideation with depressed mood and suicidal thoughts after ceasing his medication and commencing the ingestion of alcohol. He had previously been admitted to Rozelle Hospital in November 2001 with a psychotic disorder and poly substance abuse. Once again, at that time he had paranoid ideas that the neighbours and the police were watching him, and he was afraid that certain people were going to rob his flat. He was diagnosed with a schizoaffective disorder and discharged on 23 April 2002. He was again admitted to Rozelle between 30 October and 6 November 2002 with a drug induced psychosis and schizophrenia with paranoid ideation relating to his partner of 15 years. 27He was again admitted between 1 May and 14 May 2003 with a diagnosis of poly substance abuse and psychosis. He was exhibiting paranoid behaviour. He reportedly had knives strapped to his body to protect him from persecutors. He was uncooperative, evasive and guarded with persecutory delusions. It was thought that he had had a relapse of his psychosis as a result of non-compliance with his medication. 28He was admitted again between 20 May and 5 June 2003. At this time he was verbally and physically abusive to another patient and aggressive towards staff. He expressed paranoid ideas. He was taking Zyprexa in the amount of 10 mg a day. He was assessed on 26 June 2003. He was thought to have a psychosis with suicidality in the context of non-compliance with his medical regime and sexual identity issues, stolen generation issues and poor relationships. 29On 16 October 2003 he was diagnosed with schizophrenia, THC dependence and abuse, and delusions of persecution. On 24 and 28 July 2004 he was admitted following an attempted suicide to Bankstown Hospital. He claimed to be experiencing auditory hallucinations, and he was paranoid that people were trying to harm him. He was thought to have a history of schizoaffective disorder and borderline personality traits. 30A discharge summary of 18 August 2004 notes that the offender was well known to the Aboriginal Mental Health Service in Redfern with a history of schizophrenia and deliberate self harming. There were voluntary admissions following suicide attempts. He was a poly substance abuser and a gambler. He was again admitted between 25 and 30 December 2005. He was diagnosed with chronic schizophrenia and alcohol abuse and dependency. He was discharged on medications. 31He was admitted between 2 and 3 March 2006 after a suicide threat with paranoid ideation. He believed that the Israeli police and the Pope of the Catholic Church wanted to kill him. He had auditory hallucinations. He was again admitted between 4 and 7 March 2006 with ethanol intoxication, increased paranoid and suicidal ideation, chronic schizophrenia and ethanol abuse. A further admission between 21 and 24 March 2006 resulted from another episode of intoxication, suicidal ideation, increased paranoia and auditory hallucinations. On 20 January 2007 he was admitted following an episode at a service station where he threatened to douse himself with petrol. On 14 February 2007 he was admitted to the Emergency Department by the Aboriginal Mental Health staff. 32Episodes of paranoia, substance abuse, alcohol abuse, delusional, homicidal and suicidal thoughts, episodes of aggression and psychosis were all common themes in the course of the offender's admission to various hospitals and his attendance at a number of outpatient facilities between 30 March 2007 and 8 August 2010. 33Relevantly, the offender was assessed on 13 January 2011. The record notes that he was disorganised, that he had come off his medication and was drinking, that he had made a decision to apply for a transfer to his home town, namely Coonabarabran, and that it was suggested to him that he immediately start his medication and stop drinking. He was advised to see a psychiatrist and an offer for referral to the Mental Health Service was made. The offender told the medical staff that this had been arranged. However, it would appear that the offender remained off his medication and continued to consume alcohol up to the commission of the offence 4 days later. 34The offender's auditory hallucinations and paranoid thoughts continued after his arrest. The offender was seen in custody by a number of psychiatrists in the months leading up to the entry of the plea. 35Given this history and the recurring episodes of aggressive behaviour and paranoid ideation in relation to perceived threats to the offender's well being and to his security within his own home, it is tragically unsurprising that this offence was committed. That is no consolation to the victim's family who have suffered the untimely loss of a loved one. All the elements which had previously resulted in episodes of aggression by the offender towards others or self harm were present on 17 January 2011 ; alcohol, persecutory beliefs concerning the actions of the victim, and untreated schizophrenia. 36Dr Allnutt is of the view that the offender was incorporating the victim into his psychosis in the period leading up to the commission of the offence. Dr Westmore felt unable to directly link the offender's mental illness to the commission of the offence, although he also agreed that the offender was substantially impaired at the relevant time. 37Having regard to the offender's psychiatric history and the fact that the offence is entirely consistent with the offender's past symptomology, I have reached the conclusion that the offender's substantial impairment was a significant contributor to the course of events that culminated in the offender taking the victim's life. For the same reasons, I could not find beyond reasonable doubt that the offender intended to kill the victim, rather he intended to cause serious physical harm. In that respect, the offender's moral culpability is of a low order. I do not overlook the fact that the offender ceased his medication and treatment as early as September/October 2010, yet that too seems to have arisen from his psychosis which was not adequately controlled by the medication. Subjective Circumstances. 38The offender was born in Moree, the eldest of five children, the youngest of whom is now deceased. Shortly afterwards the family moved to Sydney. When the offender was approximately 3 years old he and his younger brother were fostered into the care of a Mr and Mrs Reber. They grew up with the love and support of their foster parents, who encouraged them to pursue their traditional aboriginal culture. 39The offender's mother occasionally visited him in foster care. At the age of approximately 11 years, the offender moved with his foster family to Coonabarabran. The offender went to Coonabarabran Primary School and then Coonabarabran High School. The offender struggled at school and ultimately left school before year 10. 40The offender became addicted to alcohol and engaged in cannabis abuse in his teenage years. He left Coonabarabran and went to Sydney. With the help of a foster brother, the offender gained employment in unskilled positions, then obtained work as a tyre fitter. He then worked with TAFE New South Wales for over 10 years as a clerk. In the course of his adult life he sponsored a child from North Thailand and he maintained strong links with the aboriginal community in Redfern. 41The offender's mental illness appeared to arise in the course of taking long service leave from his position at TAFE. He was isolated from his family and was abusing alcohol. He resigned from his job and went to live with his natural brother, who for a time cared for him at his home in Bankstown. He came under the care of the Bankstown Community Mental Health Service. His brother assisted him into his own premises in High Street Granville. 42The offender's resistance to treatment at various times in his adult life is a matter of ongoing concern, although it is sadly not an uncommon feature of schizophrenia. The preponderance of expert opinion is that the offender requires continuing anti psychotic medication in a hospital setting. The introduction of Clozapine into the offender's treatment regime has markedly improved his condition. The offender appears to accept that the maintenance of his medication is essential. He appears to now realise the dire nature of the consequences of ceasing medication. The offender gave no evidence before me to this effect but there is evidence of these statements to his treating doctors. 43I am cautiously optimistic that the offender has developed a degree of insight into his condition and that his prospects of rehabilitation are reasonable. There is some evidence of contrition contained in a letter written to the Court by the offender. 44The offender's mental illness renders him an unsuitable vehicle for general deterrence. Specific deterrence plays a greater part in the sentencing exercise, although I accept that the treatment he is now receiving is more likely to stabilise his schizophrenia. His criminal history is of a minor summary nature. 45Notwithstanding the offender's subjective features, it is necessary to impose a sentence of imprisonment that recognises the offender's role in taking the victim's life. That sentence will be discounted by 20% to take account of the offender's offer to plead to manslaughter in May of this year. Whilst I accept that the offender's mental illness is capable of affecting the relative length of the non parole period, his need for ongoing treatment has already been factored into the sentencing exercise. In addition, the non parole period ought not be reduced below the point that adequately reflects the gravity of the offence. 46Taking into account all of these circumstances, I propose to sentence as follows :- (1)Leonard Pitt, you are convicted of the offence of manslaughter. (2)I impose a non parole period of 6 years to date from 17 January 2011, expiring 16 January 2017, with a balance of term of 2 years, expiring 16 January 2019. (3)You are eligible for release on 17 January 2017. 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. Decision last updated: 06 February 2013