Supreme Court New South Wales Medium Neutral Citation: R v Dyer [2014] NSWSC 1809 Hearing dates: 31 October 2014 Decision date: 22 December 2014 Jurisdiction: Common Law - Criminal Before: RS Hulme AJ Decision: I sentence the Prisoner to imprisonment for a non-parole period of 3 years and 9 months commencing on 18 March 2013 together with a balance of term of 2 years and 9 months making a total sentence of 6 years and 6 months. The date upon which it appears to the Court that the Prisoner becomes eligible for parole is 18 December 2016 Catchwords: Criminal law - sentencing - manslaughter - provocation -one punch Cases Cited: Bugmy v The Queen [2013] HCA 37 KT v R [2008] NSWCCA 51; 182 A Crim R 571 R v Field [2014] NSWSC 1797 R v Loveridge [2014] NSWCCA 120 R v Previtera (1997) 94 A Crim R 76 Category: Sentence Parties: Regina Eric John Dyer Representation: Ms S Herbert (Crown) Mr M Ierace SC (Prisoner) Director of Public Prosecutions (Crown) Legal Aid NSW (Prisoner) File Number(s): 2013/00082885 Judgment 1The Prisoner stands for sentence for having, on 17 March 2013 unlawfully killed Douglas Hunt, an offence to which, on 8 August 2014 he pleaded guilty. 2At the time of the offence the deceased and the Prisoner were homeless, and both had attended the corner of Station Street and Allen Place, Penrith where a St Vincent De Paul food van was due to arrive shortly. 3The deceased's practice was to carry all of his possessions around in a shopping trolley. He left the trolley in the middle of Station Street. A Miss Mellissa O'Neill called to the deceased to move it and walked to the trolley to move it herself. The deceased became agitated, saying "don't touch it Mel, don't touch my stuff." 4The Prisoner then approached the trolley, placing both hands on the handle and saying "mate get the trolley off the road, you have to get if off the road." The deceased clenched and raised his fists as if preparing to fight and called out to the Prisoner "don't touch me stuff, don't tough me stuff." Passing traffic obliged the deceased to retreat and the Prisoner again said "the trolley's got to get off the road." 5The deceased continued moving his fists around in a boxing motion. The Prisoner said "if you hit me, I'll have to hit you and then both deceased and the Prisoner pushed each other in the chest a number of times before the deceased's brother stood between the two in an attempt to stop the incident escalating. Believing the situation had calmed, he then walked away. 6The "Agreed Facts" continues: Douglas Hunt was still aggressive towards the offender. He had his fists clenched and appeared ready to engage in a fight with the offender. At this time the offender punched the victim once to the right side of his face with his left fist. The victim did not hit the offender at any time, but he was very loud and aggressive towards the offender, he did engage in pushing the offender, and appeared to be ready to punch the offender." 7The Prisoner's blow appeared to render the deceased unconscious, causing him to fall backwards and strike his head heavily on the roadway. He sustained a significant laceration to the back of his head and a fracture to the base of his skull. An ambulance arrived. The deceased was conveyed to the Nepean Hospital where he underwent a craniectomy. He remained in a coma until 27 March when he died from a subdural bleed in his brain due to the trauma to the back of his head. 8At the time of the offence the Prisoner was on bail having been charged with common assault on 21 January 2013. He was also on parole pursuant to a sentence of 4½ years, including a non-parole period of 3 years, both such periods dating from 20 April 2009 for an offence of aggravated entering a dwelling with intent in company. The purpose of entering had been to assault an occupier. The assault had occurred, the victim suffering a number of soft tissue injuries, bruising and swelling to the head and body and split injuries to 2 sections of his head where the Prisoner had hit him with a golf club. 9The Prisoner has been involved in other assaults. In 2002 and 2007 he was sentenced for assault occasioning actual bodily harm, the victim in the latter case being the same victim as I have referred to in the immediately preceding paragraph. According to a Facts Sheet that was tendered in the proceedings before me, the 2013 charge arose after the mother of a 14 year old whom the Prisoner was harassing, remonstrated with the Prisoner. The Prisoner responded with 3 closed fist punches, one of which connected to the mother's chin. The Prisoner then said to this victim, "You fucken slut" and departed. The Prisoner's antecedent report records that the sentence imposed was "S10A conviction with no other penalty". It is not obvious that the penalty can be reconciled with the contents of the facts sheet. 10The Prisoner also has a very extensive record for offences of larceny, stealing motor vehicles, possessing implements to enter a conveyance, and driving whilst disqualified. In November 2005 he was sentenced to just under 3½ years gaol for armed robbery. Counsel were agreed that from 25 November 2003 to 31 October 2014, a period of 10 years 11 months and 7 days, Mr Dyer has been in the community for 275 days, only a little over 9 months. The parole to which he was subject at the time of assaulting the deceased was revoked as from the date of the Prisoner's arrest for his offence. 11Victim Impact Statements from the deceased's grandmother, daughter and brother were read. Given the date of the Prisoner's plea such statements are not subject to the prohibition contained in R v Previtera (1997) 94 A Crim R 76. Their terms help to ensure that the Court does not lose sight of the impact the deceased's death has on his family and of the loss which the Prisoner's offence has imposed. And, as in most cases, some aspects of the impact are unique, in this case for example, the loss of opportunity the deceased's daughter has to establish a relationship with him. I have considered these statements but weighing them up against the general pattern of loss due to an unlawful killing have concluded that the sentence to be imposed on the Prisoner should not be increased because of the contents of the statements. 12The Agreed Facts record that on 18 March, the day after the Prisoner's assault on the deceased, the police contacted the Prisoner's parole officer who in turn contacted the Prisoner and the two then met. As the parole officer recounted details of the events of 17 March, the Prisoner became distressed during the meeting and later that day at the parole officer's suggestion, attended Penrith Police Station where he was arrested and charged, initially with recklessly causing grievous bodily harm. 13Otherwise, the Prisoner's subjective case was presented in a pre-sentence report, a report by Dr Susan Pulman, psychologist, and his sister who was also the source of some of the information in Dr Pulman's report. 14The Prisoner was born in 1984. It seems clear that the Prisoner had an unfortunate childhood. He was one of seven half-siblings to 6 different fathers. His mother was a constant user of cannabis who, according to Ms Dyer, "never showed us any affection". The Prisoner's parents separated when he was 3 or 4 and he has had no contact with his father. Although the Prisoner reported having a positive relationship with one of his mother's subsequent partners, in the main they seem commonly to have assaulted her and, without opposition from her, to have gone overboard with punishment of the Prisoner. At one stage the Prisoner and his older sisters were removed by DOCS 15His mother frequently moved addresses and the Prisoner attended 7 primary schools. He had learning difficulties and at age 14 was diagnosed with ADHD for which he took Ritalin during his school years. Psychological testing has placed him in the borderline or low average range in a number of areas. 16He was suspended from school on a number of occasions for fighting. Ultimately it appears this suspension became permanent. He wished to return but his mother did nothing about it, resulting in anger and hurt and, according to Dr Pulman, psychological distress. For a time he worked as a carpet layer, detailer, builder's labourer, in fibreglass engineering and with stainless steel bench tops but has been unemployed for approximately 13 years. He started smoking cannabis at 14, having been introduced to it by his mother. It relaxes him but he denies being a regular drinker or user of speed. 17According to the author of the pre-sentence report, the Prisoner appeared to be remorseful, presenting as emotional when his offending was discussed. Dr Pulman's report contained a statement to similar effect. 18His sister is content for the Prisoner to live with her family on his release and said that her husband is willing to employ the Prisoner in a lawn mowing business. She described the Prisoner as a "fantastic uncle" to her children. 19The Prisoner has made a number of statements to the effect that he is not a violent person and has simply reacted to violence of others. I do not accept these statements. Rather does the preponderance of evidence favour the statements of the author of the pre-sentence report and the Prisoner's sister that the Prisoner has difficulty controlling his anger. This and the Agreed Facts lead to the conclusion that it was this difficulty that caused him to inflict the fatal punch on the deceased. The effect of the punch in apparently rendering the deceased unconscious indicates that the punch must have been hard. I am not however persuaded to the requisite standard, that is beyond reasonable doubt, that the Prisoner would have appreciated the risk that he would cause significant injury by delivering the punch. 20Dr Pulman's conclusions included the following:- Mr Dyer is a 29 year old aboriginal man... He described a family history of disadvantage and abandonment having been subjected to physical and emotional abuse from his mother and her numerous partners. His early experiences most likely contributed to his current difficulties with self-regulatory behaviour which have been exacerbated by a diagnosis of Attention Deficit Hyper-Activity Disorder. His lack of solid role models and encouragement of substance abuse within the family have only further led to the development of anti-social tendencies. ... Mr Dyer however, has the intellectual capacity to obtain employment and given a supportive environment with psychological therapy and medication, has a good prognosis for integration into the community. ... Mr Dyer demonstrated good insight into his offending behaviour acknowledging that he can be quick to anger when defending another person and that his actions can be impulsive rather than considered. Mr Dyer displayed what appeared to be genuine remorse... A period of prolonged detention is likely to exacerbate his symptoms of depression and anxiety. Mr Dyer has not had the opportunity to engage in psychological support and treatment during his period of incarceration. Given his expression of remorse and insight, he is likely to benefit considerably from psychological intervention from a treating mental health professional with experience working with adults with ADHD and a history of psychological abuse and/or trauma. ... Mr Dyer's earlier familial experiences suggest emotional and physical abuse which can exist in both indigenous and non indigenous families. Early family trauma is known to contribute to difficulties in managing emotion and impulse control and it is this environment which has most likely contributed to Mr Dyer's development of anti-social behaviour. 21Following the death of the deceased, the Prisoner was originally charged with murder. In due course that charge was the subject of a nolle prosequi and on 6 December 2013 the Prisoner was arraigned on the current charge. A trial was set down for 4 August but on 14 July the Court was advised of the Prisoner's intention to plead guilty. In these circumstances I propose to allow a discount of approximately 15% for the utilitarian value of his plea. 22I accept that the Prisoner is, and since he heard about the deceased's death, remorseful for his actions. Undoubtedly his sister's offer of help means that the Prisoner must be regarded as having some prospects of rehabilitation but his record for offences of assault and dishonesty - whether for a greater drug habit than he was willing to acknowledge or not - means that those prospects cannot be regarded as any higher. 23As has been remarked on many occasions, the circumstances in which manslaughter occurs are almost infinitely variable. The same can be said of "one-punch" manslaughter and in these circumstances I do not think that anything is to be gained by detailed reference to any of the numerous cases where such killings have been considered. Counsel took the same view and it sufficeth to say that the decisions in KT v R [2008] NSWCCA 51; 182 A Crim R 571, R v Loveridge [2014] NSWCCA 120 and R v Field [2014] NSWSC 1797 provide some guidance and, of course, there are others. Because of the differing circumstances, the last two mentioned cases of course called for substantially greater punishment than here. That said, their emphasis on the need for general deterrence in offences of this kind, is a factor to which regard must be had. 24Operating in the Prisoner's favour is that his offence was not one of alcohol fuelled violence - one factor (though by no means the only one) which is relevant to the recent emphasis on general deterrence. Also, he was subject to some provocation by the deceased in circumstances where their proximity was inspired by the Prisoner's trying to assist the deceased. I do not mean by that statement to suggest the Prisoner was in any way justified in his reaction, merely to acknowledge a contributing factor. His remorse operates in the same direction. However, against the Prisoner is his record of assaults. They demonstrate a greater need for personal deterrence and protection of the community than in many cases. Also operating against him is the fact that he was on conditional liberty at the time of his assault on the deceased. 25One matter to which my attention was specifically directed was the Prisoner's recent history of incarceration and the consequence that the Prisoner was at risk of being institutionalised. I accept that the risk exists but given that the incarceration was in response to his own conduct, it is a matter of very limited weight so far as the length of the Prisoner's sentence is concerned. On the other hand, and notwithstanding that the Prisoner's incarceration has not been continuous, that history does justify a finding of special circumstances and extending the balance of term at the expense of the non-parole period. Dr Pulman's remarks as to the impact of a period of prolonged detention argue in that last mentioned direction. 26Of more significance is the Prisoner's upbringing. There is injustice in punishing a man for not adhering to standards he was never properly taught. However, as was pointed out in Bugmy v The Queen [2013] HCA 37 at [44], dispositions reflecting a deprived upbringing may increase the importance of protecting the community from an offender. Furthermore, and notwithstanding the remarks in Bugmy that experience in growing up may compromise a person's capacity to learn, the Prisoner's school suspensions for fighting and his prior sentences for assault, given the remarks that at least most of those responsible for those decisions must inevitably have made, should have brought home to him long before the death of the deceased, society's inability to accept violence. 27The need to reflect these conflicting factors makes the decision in this case difficult. I have decided that the sentence I impose should date from the Prisoner's arrest, notwithstanding that for some time thereafter he was serving what would otherwise have been the balance of a parole period. Ultimately, the decision at which I have arrived is as follows: 28I sentence the Prisoner to imprisonment for a non-parole period of 3 years and 9 months commencing on 18 March 2013 together with a balance of term of 2 years and 9 months making a total sentence of 6 years and 6 months. 29The date upon which it appears to the Court that the Prisoner becomes eligible for parole is 18 December 2016. ********** 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: 22 December 2014