Supreme Court New South Wales Medium Neutral Citation: R v Bouggas [2015] NSWSC 914 Hearing dates: 22 May 2015 Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: For the offence of manslaughter, the offender is sentenced to a term of imprisonment with a non-parole period of 5 years commencing on 30 September 2013 and expiring on 29 September 2018 and a balance of term of 3 years expiring on 29 September 2021. Catchwords: CRIME – sentencing – manslaughter – dangerous and unlawful act – accused lifting and pushing victim resulting in victim falling from balcony – no intention to cause fall Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Sentencing Act 1995 (WA), s 93 Cases Cited: The State of Western Australia v Schmidt [2014] WASCSR 91 Wilson v R [1992] HCA 31; 174 CLR 313 R v Karnib [2015] NSWDC 84 Category: Sentence Parties: Crown Chris Bouggas (offender) Representation: Counsel: M Hobart SC (Crown) M Austin (offender) Solicitors: Alexanders Lawyers (offender) Office of the Director of Public Prosecutions (Crown) File Number(s): 2013/293896 Publication restriction: None Judgment 1. HER HONOUR: Christopher Bouggas has pleaded guilty to the unlawful killing of Ryan Dewhurst. He now stands to be sentenced for the offence of manslaughter on the basis of a dangerous and unlawful act. 2. The offender was arrested on 29 September 2013, the day on which the offence was committed. He has been in custody since that date. He was initially charged with murder. In March 2014, while the proceedings were still in the Local Court, the offender offered a plea of guilty to manslaughter on the basis of criminal negligence. The Crown did not accept that plea and in due course the offender was arraigned on an indictment for murder. On 1 April 2015, just over a month before the date fixed for trial, the Crown presented a fresh indictment for manslaughter on the basis of a dangerous and unlawful act. The offender was re-arraigned and pleaded guilty to manslaughter on that basis. 3. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no standard non-parole period prescribed for that offence. Facts 1. The relevant facts are agreed. On the day of the offence, the offender was visiting Mr Craig Turner. Mr Turner lived in a Housing Department unit in Waterloo. The unit was on the sixth floor of a high-rise building and had a balcony. The deceased was staying at Mr Turner's unit at that time. 2. The offender and Mr Turner went out to buy some alcohol and returned to consume it. At some later point Mr Turner left the unit again to visit another friend, leaving the offender and the deceased alone together in the unit. 3. When Mr Turner returned an argument broke out between the offender and the deceased, evidently prompted by the offender's belief that, while he was out with Mr Turner, the deceased had stolen some Xanax tablets. The deceased walked out to the balcony and the offender followed him. The offender was larger than the deceased. 4. Mr Turner got up from where he was sitting and saw the offender standing behind the deceased on the balcony with both hands on the deceased's upper torso, pushing him forward. The deceased had his head over the balcony and his stomach on the ledge of the balcony. 5. The deceased said, "I didn't take what you think I took." The offender said, "I know you did". The deceased said, "you're tripping ... what the hell is going on? ... what are you talking about mate?" According to Mr Turner, both men were speaking calmly to each other. 6. Mr Turner saw that the deceased's legs were off the ground at that point. He sought to intervene, attempting to grab the deceased's legs but was unsuccessful. Mr Turner fell backwards onto the balcony and the deceased fell over the ledge of the balcony onto the ground below. He died immediately from multiple blunt force injuries. 7. The offender admits that his act of lifting and pushing the deceased against the ledge of the balcony was an unlawful and dangerous act, being an assault which, in the circumstances, carried an appreciable risk of serious injury. 8. The deceased was a regular drug user and was on a methadone programme at the time of his death. A toxicological examination revealed that he had consumed a number of different illicit drugs. He had not consumed alcohol. 9. Mr Turner and the offender had been drinking Jack Daniels. Mr Turner was also on prescribed methadone and valium. The offender used methadone daily and on the day of the offence had also used methamphetamine. Seriousness of the offence 1. In assessing the objective seriousness of the offence, a primary consideration is the fact that a human life has been unlawfully taken. Beyond the recognition of that important consideration, the characterisation of the seriousness of the offence turns not so much on the category of manslaughter identified by the Crown (here, a dangerous and unlawful act) but on an assessment of the facts. 2. The offender's suspicion which prompted his argument with the deceased grew from the trivial matter of a number of Xanax tablets. His judgment of the importance of that issue and the disproportionality of his response may have been influenced by his own ingestion of drugs but that is not a mitigating factor in determining the appropriate sentence: s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. Mr Austin, who appears for the offender, noted the possibility that Mr Turner's attempt to take hold of the deceased's legs, although undoubtedly well-intentioned, may have been a contributing factor in causing the deceased to topple over the barrier of the balcony. While it is difficult to form any confident assessment of that aspect of the facts on the strength of the necessarily limited evidence available, that would appear to be a reasonable possibility. The significance of that aspect of the circumstances is that, although it is admitted that the offender lifted the deceased and pushed him against the railing of the balcony, it is not established beyond reasonable doubt that he pushed the deceased over the balcony in an intentional act. I am satisfied on the balance of probabilities that the offender did not in fact foresee or intend to cause the deceased's fall. In accordance with the offender's plea of guilty, he must be sentenced on the basis that a reasonable person in his position would have realised that he was exposing the deceased to an appreciable risk of serious injury: Wilson v R [1992] HCA 31; 174 CLR 313 at 333. 4. Although I am satisfied that the offender did not foresee or intend that the deceased would fall from the balcony, I would nonetheless regard the offence as one of considerable seriousness. Personal circumstances of the offender 1. The offender was born in January 1981 and so was aged 32 years at the time of the offence. He is now aged 34 years. Since leaving school he appears to have had a good record of employment. Immediately prior to his arrest he was living with his parents and was employed in their printing company. The offender's family remains extremely supportive of him and that employment will be available to him again upon his release. The offender hopes upon his release to return at some point to his former trade as a bricklayer and to complete an apprenticeship as a carpenter. 2. The offender has some prior criminal convictions. Apart from a number of minor drug and drug-related matters, he has a number of convictions for common assault commencing relatively recently. After being called up on various bonds for those matters, he served a continuous period of imprisonment of about 5 months in 2012. That is his only previous period in custody. 3. At the proceedings on sentence, the offender tendered a report prepared by Mr Tim Watson-Munro, a forensic psychologist. The history recorded by Mr Watson-Munro reveals that the offender has a lengthy history of using alcohol and an alarming variety of prohibited drugs. He started binge-drinking and taking cannabis at the age of 15. He progressed to using amphetamines and cocaine at the age of 18. He began to experience intense paranoia as a result of his use of those drugs. 4. At the age of 22, the offender began to use ice intravenously. Mr Watson-Munro's report articulates, in more formal terms, what the courts can observe on a daily basis as to the insidious impact of that drug. The use of ice severely exacerbated the offender's anxiety and paranoia. That in turn led to his being prescribed Xanax. At around the same time he also began to use heroin. Mr Watson-Munro's conclusion (which is scarcely surprising) is that the offender satisfies the diagnostic criteria for substance misuse disorder. 5. There can be no doubt that the offender's use of illicit drugs contributed to his offending in the present case. I am required in that context to have due regard to the purpose of sentencing of preventing crime by deterring the offender from committing similar offences. However, the promotion of rehabilitation is also an important purpose of sentencing. Prevention and rehabilitation are not binary objectives of the sentencing process. The rehabilitation of the offender will be conducive to preventing him from re-offending. 6. The evidence is that since his arrest the offender has been drug-free for 18 months. His family has observed an improvement in his outlook. Mr Watson-Munro observed that the offender has been in custody during his period of abstinence from drugs and that both in custody and upon his release he will require treatment to address issues including relapse prevention and desensitisation for anxiety. 7. Mr Watson-Munro also considers that the offender is suffering from major depression and anxiety and has been highly traumatised by the events of the offence. His depression has been exacerbated by feelings of deep remorse towards the victim and his family and anxiety in facing sentence. That evidence, which I accept, does not mitigate the seriousness of the offender's conduct but it informs the assessment of his prospects of rehabilitation and his need for support when he is released on parole. Other matters relevant to the determination of an appropriate sentence 1. At the time of the present offence, the offender was on parole for the most recent of his assault convictions. He had almost completed his term on parole successfully, but it is still an aggravating factor in determining the appropriate sentence: s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. 2. The Crown accepts that the offence was not part of a planned or organised criminal activity. That is a mitigating factor in determining the appropriate sentence: s 21A(3)(b) of the Crimes (Sentencing Procedure) Act. 3. The evidence for the offender included references from members of his family. Those letters speak eloquently of the offender's positive attributes. The offender plainly enjoys a large measure of support from his family which augers well for his future. That support, coupled with the fact that the offender has remained drug-free in prison and the positive assessment of him made by Mr Watson-Munro, persuade me that the offender has good prospects of rehabilitation, which is a factor to which I must have regard: cf 21A(3)(h) of the Crimes (Sentencing Procedure) Act. 4. Mr Watson-Munro noted that the offender expressed considerable regret for his actions and remorse and empathy for the victim and his family. Mr Watson-Munro believes those expressions of feeling to be genuine. I accept that the offender has shown remorse in those statements; in his offer to plead guilty to manslaughter at an early point (albeit on a different basis) and in his later plea accepted by the Crown. I accept the evidence of Mr Watson-Munro as evidence that the offender has accepted responsibility for his actions and acknowledged the damage he has done: cf 21A(3)(i) of the Crimes (Sentencing Procedure) Act. 5. The offender is entitled by law to a discount to reflect the utilitarian value of his plea of guilty. That plea was accepted was entered about a month before the date fixed for trial. In my view, credit should also be given for the plea rejected at an earlier point. Although the plea was not then offered on the basis ultimately accepted by the Crown, it does not necessarily follow that what was offered was a plea to less serious offence. As already noted, the authorities make plain that assessment of the seriousness of an offence of manslaughter turns not so much on the category of that offence alleged by the Crown but on an evaluation of the objective seriousness of the individual circumstances of the case. In my view, in accordance with the authorities by which I am bound, the offender is entitled to a discount of 20%. 6. Mr Austin submitted that I should make a finding that there are special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period. A drug and alcohol assessment was requested to assist the Court in making an assessment as to the kind of programmes available and the appropriate extent of supervision that may assist the offender upon his release on parole. Unfortunately, although I deferred passing sentence in order to obtain that report, it was not forthcoming in the form anticipated. I am nonetheless persuaded by the content of Mr Watson-Munro's report that the offender will require lengthy supervision on parole in order to assess his drug addiction and assist him to cope with the transition back into the community, noting the anxiety and depression from which he presently suffers. I propose to adjust the statutory ratio on that basis. 7. Mr Watson-Munro's report should travel with the offender's papers to provide guidance as to the appropriate supervision of the offender when he is released on parole. Comparable cases 1. The Crown acknowledged that the great variety of conduct in manslaughter cases makes it difficult to nominate any range against which the seriousness of an individual offence can be measured. One case was identified which it was suggested might provide useful guidance, being a decision of the Supreme Court of Western Australia in The State of Western Australia v Schmidt [2014] WASCSR 91. That was a case in which the offender, in a state of rage, pushed the victim against a plate glass window. The window smashed and the victim fell to his death. The utilitarian value of the offender's plea appears to have been roughly comparable to the present case (the judge did not quantify the discount). The offender in that case was sentenced to a term of imprisonment for 9 years with eligibility for parole. Pursuant to s 93 of the Sentencing Act 1995 (WA), which prescribes a different regime from that which applies in this State, that offender will be entitled to be released on parole after serving 7 years of the sentence. 2. The judge's remarks on sentence in Schmidt make plain that his Honour regarded general deterrence to be an important factor in that case. Although that is a purpose of sentencing also recognised by statute in this jurisdiction, I do not think it is foremost among the factors relevant to sentence in the present case. The issue of general deterrence was the subject of a thoughtful analysis in the recent decision of Whitford DCJ in R v Karnib [2015] NSWDC 84 at [109] to [113]. I would respectfully agree with his Honour's remarks in that case. Family Victim Impact Statements 1. Members of Ryan Dewhurst's family read victim impact statements at the proceedings on sentence. Each of those statements gave a moving account of the terrible impact of Ryan's death. He was the eldest brother to three siblings. Despite his own battles with illicit drugs, he remained an important figure in the lives of his two sisters and his brother. His siblings and his surviving parents miss him terribly and continue to experience anger and despair at his death. 2. Such statements serve an important role in giving real content to the glib recognition that a human life has been lost. As noted in the presence of the family at the proceedings on sentence, I am limited as to the regard I may otherwise have to that material in determining the appropriate sentence but I wish to acknowledge the grief that has been suffered by Ryan's family and the courage with which they have faced his death. Sentence 1. But for the discount to be allowed for the offender's plea of guilty, I would have imposed a term of imprisonment of 10 years. I have determined that the offender should be sentenced to a term of imprisonment for 8 years with a non-parole period of 5 years. Christopher Bouggas: 1. you are convicted of the unlawful killing of Ryan Dewhurst. 2. I sentence you to a term of imprisonment with a non-parole period of 5 years commencing on 30 September 2013 and expiring on 29 September 2018 and a balance of term of 3 years expiring on 29 September 2021. You will first be eligible for parole at the expiration of your non-parole period on 29 September 2018. 3. I direct that a copy of the report of Mr Watson-Munro dated 21 May 2015 accompany the warrant. ********** 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: 10 July 2015