Supreme Court New South Wales Medium Neutral Citation: R v FRAZER KEVIN TANKS [2016] NSWSC 519 Hearing dates: 17 March 2016 Date of orders: 28 April 2016 Decision date: 28 April 2016 Before: Mathews AJ Decision: 1. For the assault occasioning actual bodily harm to Christopher Curtin, the offender is sentenced to imprisonment for six months, commencing on 11 February 2014. 2. For the manslaughter of Stephen Donoghue, the offender is sentenced to imprisonment consisting of a non-parole period of four years, commencing on 11 May 2014 and expiring on 10 May 2018, with a balance of term of three years, commencing on 11 May 2018 and expiring on 10 May 2021. Accordingly, the total term of imprisonment is seven years and three months. 3. The earliest date on which the offender will be eligible for release on parole is 10 May 2018. Catchwords: CRIMINAL LAW – Sentencing – Manslaughter – offender charged with murder, pleaded guilty to manslaughter – acquitted of murder – deceased particularly vulnerable because of pre-existing health issues – further offence of assault occasioning actual bodily harm arising out of same series of events – offender has long criminal record, but nothing major over recent years Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: NLR v R [2011] NSWCCA 246 Category: Sentence Parties: Director of Public Prosecutions (Crown) Frazer Kevin Tanks (Offender) Representation: Counsel: Ms N Williams (Crown) Ms J Manuell SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Mandy Hull Solicitor & Sports Agent (Offender) File Number(s): 2014/00043191 REASONS FOR sentence 1. MATHEWS AJ: Introduction 1. On 8 February 2016 Frazer Tanks was indicted on a charge that, on 21 February 2014, at New Lambton, he murdered Stephen Donoghue. He pleaded not guilty of murder but guilty of manslaughter. A jury trial then ensued in order to determine his guilt of the offence of murder. On 19 February the jury returned with a verdict of not guilty. I thereupon entered a conviction for the offence of manslaughter. Mr Tanks now comes to be sentenced for that offence. In addition, pursuant to s. 166(1)(b) of the Criminal Procedure Act 1986, the Crown has produced a certificate specifying, as a back-up or related offence, the offence of assault occasioning actual bodily harm to Christopher Curtin, and the offender has pleaded guilty to this offence. He is accordingly also to be sentenced in relation to this offence. Background Facts 1. The events leading to Mr Donoghue's death took place on the evening of 10 February 2014, and the early hours of the next morning. At that time Mr Donoghue was sharing an apartment in Norma Street, Waratah (a suburb of Newcastle) with his ex-partner Kylie-Ann Bennett, and their son, then aged eight. 2. Some time on the afternoon of Monday 10 February, two brothers, Christopher and Jeffrey Curtin, set out to go to the Mayfield Diggers Club for the daily happy hour. They arrived well before 5.00 pm, when the happy hour was due to commence, and in order to fill in the time they went and sat in a nearby park where they were drinking beer they had bought at a local hotel. There they were joined by the offender, Frazer Tanks, whom they had known previously. The three of them drank a bottle of beer each in the park, and then went to the Diggers Club, where they arrived shortly after 5.00. Whilst at the club they drank more beer and also played pool. According to Christopher Curtin, they stayed there for the happy hour, and maybe another hour as well, making a total of about two hours. Mr Curtin was the only one of the three to give evidence. The offender exercised his right not to give evidence, and Jeffrey Curtin had died in the meantime. Jeffrey Curtin's statement, dated 24 February 2014, was read to the jury, but it did little to elucidate an issue I will be talking about later, namely the time at which the relevant events took place. 3. Christopher Curtin said that when they were leaving the club he telephoned his friend Kylie-Ann Bennett and asked if they could go to her place and have some drinks with her. She agreed to this. Jeffrey Curtin decided not to go, so the two of them, the offender and Christopher Curtin, set off for the Norma Street apartment where Ms Bennett and Mr Donoghue were living. The offender had a bicycle, so he arrived shortly before Mr Curtin. Ms Bennett, who also gave evidence, said that she received the telephone call from Christopher Curtin in the early evening, and that he and the offender arrived at her home half an hour or three quarters of an hour later. When they arrived, she said, her son was preparing to go to bed. The four adults proceeded to sit in her lounge room, where they were drinking wine and watching the Winter Olympics on television. After they had been there for about an hour Ms Bennett said that the offender suddenly stood up, walked across the lounge room to where Mr Donoghue was sitting, and started to punch him. Mr Donoghue fell to the floor, lying on his side, and the offender proceeded to stomp on his head and kick him. She, Ms Bennett, tried to pull the offender away. She was screaming for someone to call the police and the ambulance. Christopher Curtin then jumped up and tried to grab the offender, but the latter punched him several times, causing him to fall backwards into a seated position, at which time the offender kicked him in the torso area. It is this assault which gives rise to the offence of assault occasioning actual bodily harm for which the offender is also to be sentenced. 4. The offender then made some threatening words, took his bicycle and left the apartment. 5. Mr Donoghue had not moved from the time he first fell onto the ground. The first police officer on the scene noted that he had blood coming out of his left ear and that he was not responsive. This was at about 10 past 2 on the morning of 11 February. At 2.23 am the ambulance arrived. One of the paramedics noted that Mr Donoghue had what he described as "agonal respiration", which usually indicates that the person is in cardiac arrest. That was certainly the case with Mr Donoghue, so they administered adrenalin, in accordance with normal protocol, and his heart started beating again. He was then taken to the John Hunter Hospital in Newcastle. Mr Donoghue never recovered consciousness, and his condition was so serious that ten days later, on 21 February, his life support was removed, and he died. 6. I will be discussing the medical evidence a little later, as it assumed considerable significance in the circumstances of this case. However I should first return and say something more about the events leading up to the fatal assault on Mr Donoghue. 7. The only other eye witness to this assault was Christopher Curtin. His account was generally consistent with that of Ms Bennett. He described the offender as getting up, going over to Mr Donoghue, and knocking him off his chair with one or two punches. When Mr Donoghue was on the ground, the offender stomped on his head at least three times, before Ms Bennett and then he himself took steps to stop him. In retaliation, the offender struck and kicked Mr Curtin several times, causing a number of injuries. These were not sufficiently serious to constitute grievous bodily harm, but nevertheless Mr Curtin suffered some nasty abrasions and contusions, as testified by photographs of him taken shortly afterwards. As already mentioned, the offender is also to be sentenced for this assault. 8. The young master Donoghue came into the room part of the way through all of this. He was interviewed the next morning by a police officer, and the DVD of the interview was an exhibit in the trial. However young master Donoghue had little to add which is relevant here, given that by the time he arrived Mr Donoghue was already lying on the ground, and the offender was striking and kicking Christopher Curtin. Accordingly, the interview was generally concerned with the offender's actions in relation to Mr Curtin. 9. Immediately after the assault on Mr Curtin, the offender took his bike and left the apartment. By that time there were a number of people outside the building, who saw him leave. The police were told the direction he had taken, and he was apprehended not long afterwards, close to the Waratah railway station. When first approached, he said: "I've just come from Waratah, where I got king hit." Shortly afterwards he said: "the bloke who I just gave a bit of a touch up to he was knocking this chick off. The big fella I give a touch up to. He was knocking off this chick, my skinny mate from upstairs. Then he's just come up and hit me up the side of my head. So I gave him a few back. I'm not gonna go to gaol." The offender was arrested and taken into custody. He declined to say anything more about the evening's events. He has been in custody ever since. The Medical Evidence 1. I turn now to discuss the medical evidence, and by far the most significant evidence in this regard came from the forensic pathologist, Dr Jane Vuletic, who conducted the post mortem examination on Mr Donoghue. Mr Donoghue, it will be remembered, survived for another ten days after sustaining his injuries, and eventually died on 21 February 2014. Dr Vuletic said that the direct cause of his death was hypoxic brain injury. This occurs when there has been a lack of oxygen to the brain for a period of time, resulting in irreversible brain damage. In Mr Donoghue's case, the cardiac arrest he suffered immediately after the blow to his head would have caused this condition. There was also evidence, Dr Vuletic said, of blunt force injury to the head and the chest. The head injury consisted of a bruise to the right temple region, and the chest injury of extensive bruising to the left torso, accompanied by several fractures of the left ribs numbered 9 to 12, resulting in a left tension pneumothorax, as one of the broken ribs had punctured his lung. Mr Donoghue had also been suffering from a number of underlying conditions which rendered him particularly vulnerable to traumatic events such as occurred on this occasion. As relevant here, these included alcohol induced cardiomyopathy and atrial fibrillation. His blood alcohol level when he arrived at the hospital on 11 February was .312, an extremely high reading, which Dr Vuletic said would have increased his risk of suffering a cardiac arrest. 2. The other relevant medical evidence came from Dr Robert O'Connor, the last doctor to see Mr Donoghue before his life support was cut off. He emphasised that Mr Donoghue's underlying conditions made him particularly vulnerable to trauma, but considered it probable that it was the blow to the head which set in train the chain of events leading to his death. 3. This evidence was particularly significant at the trial, and remains so for sentencing purposes, as it goes to the issue of causation. The offender's plea of guilty to manslaughter means that he accepted that an action or actions of his led to Mr Donoghue's death, but a major issue still remained as to which action or actions constituted the immediate cause of death. During the trial this was highly relevant to the question of intent. The bulk of the medical evidence indicated that it was the initial blow to the head which was the effective cause of death. And the jury's acquittal of the charge of murder indicates that, at the time of inflicting that blow, the offender did not intend to kill or really seriously injure Mr Donoghue. 4. The other significant matter arising from the medical evidence relates to Mr Donoghue's previous medical conditions, which meant that a relatively minor injury could have devastating consequences, as indeed happened on this occasion. The law is clear, that the perpetrator remains legally responsible for those consequences, whether or not he knew of the pre-existing condition. But it is a highly relevant matter when assessing the level of culpability of the offender's actions. This, of course, provides a further endorsement of the jury's verdict of not guilty of murder. When he delivered that single punch to Mr Donoghue's head, the offender would have had no idea that it could lead to his death. 5. On the other hand, I accept that when Mr Donoghue was lying on the ground, the offender continued to kick him, and probably also stomped on his head at least once, as described by both Christopher Curtin and Ms Bennett. The medical evidence as to the extent and nature of Mr Donoghue's rib fractures strongly supports the proposition that further injuries to that region were inflicted when he was already on the ground. The Timing of the Relevant Events 1. There is one very strange feature about the evidence relating to the events of that night, and this relates to the timing. We know with certainty that it was immediately after 5.00 pm on Monday 10 February that the Curtin brothers and the offender went into the Diggers Club, and that Mr Donoghue sustained his injuries at or shortly after 2.00 the next morning. I am not going to spend much time on this, as it is peripheral to the main issues on sentence, but one cannot but think that something else must have been happening that night. According to the great bulk of the oral evidence, it was at about 7.30pm that the offender and Mr Curtin went to the Lorna Street apartment. They were described as sitting around drinking for an hour, or maybe two, before these events occurred. They were all drinking heavily, and at first I thought that in their state of intoxication they must have significantly under-estimated the time that they spent in the apartment before the assault on Mr Donoghue. But the telephone records, which were placed into evidence towards the end of the Crown case, showed that the first apparent telephone communication on the Monday evening between Christopher Curtin or the offender on the one hand and Ms Bennett on the other was a call made from the offender's phone to Ms Bennett at 9 minutes to midnight, followed by two calls from Ms Bennett to the offender at 5 to 12 and 12.27 am respectively. If the offender and Christopher Curtin did not arrive at the Norma Street apartment until after midnight, it confirms the proposition that they were there for something between one and two hours before the critical events occurred. But it leaves totally unexplained what happened in the many intervening hours between leaving the Diggers Club at about 7.00 (if indeed they did so then), and going to Ms Bennett's apartment. 2. Whatever did happen in those intervening hours, there can be little doubt that, at the time when the fatal blow or blows were inflicted on Mr Donoghue, the offender was heavily intoxicated. His garbled accounts to the police officers who arrested him shortly afterwards bear testimony to this. Aggravating and Mitigating Factors 1. I turn to discuss the relevant aggravating and mitigating factors which are to be taken into account on sentence pursuant to s. 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Act"), being factors which are not inherent in the nature of the offences themselves. The aggravating factor or factors relating to the offences (as opposed to the offender) are: first, pursuant to s. 21A(2)(ea), that the offences were committed in the presence of a child under 18. Although young master Donoghue was not in the same room when his father was struck by the offender, he was close enough to come in and witness the assault on Christopher Curtin, while his father was lying on the ground. The Crown also submitted that s. 21A(2)(eb) applied, in that the offence was committed in the victim's home. However Ms Manuell SC, who appeared for the offender, pointed out that, as the offender was lawfully in the home, this is not an aggravating factor. Pursuant to the judgment of James J (with whom Bathurst CJ and Johnson J agreed) in NLR v R [2011] NSWCCA 246, s. 21A(2)(eb) is not applicable when the offender was lawfully in the home where the offence was committed and was not an unauthorised intruder. Accordingly, this is not to be treated as an aggravating factor in this case. 2. As to the relevant mitigating factors, s. 21A(3)(b) applies, in that neither offence was part of a planned or organised criminal activity. The fatal assault on Mr Donoghue was clearly an unpremeditated, spontaneous action on the part of the offender, albeit one which had devastating consequences. And the same can be said in relation to the assault upon Mr Curtain. 3. This takes me to a discussion of the objective seriousness of the offences, particularly the manslaughter of Mr Donoghue. The Objective Seriousness of the Offences 1. The Crown submitted that this was an unprovoked attack on Mr Donoghue, and that the objective seriousness of this offence falls just above the mid-range for manslaughter. The Crown Prosecutor pointed out that the offender continued his assault on Mr Donoghue even after he was lying on the ground, by stomping on and kicking his head, and kicking him in the torso. Ms Manuell conceded that, in the light of the medical evidence as to Mr Donoghue's rib fractures, the offender must have kicked him in that region. However she disputed that he kicked or stomped on Mr Donoghue's head, submitting that the injury to his right temple might well have been caused by his fall to the floor. However both eye witnesses described the offender as kicking and stomping on Mr Donoghue's head, and I accept that there must have been some action or actions along these lines. Clearly these further assaults are relevant to the objective seriousness of the offence of manslaughter, notwithstanding that, according to the medical evidence, the fatal injury had already been inflicted, and they therefore did not contribute to Mr Donoghue's death. 2. On the other hand, the blow or blows inflicted by the offender which caused Mr Donoghue's death were not such as would, in the normal course of events, have had such devastating consequences. I have already discussed this aspect of the matter. Mr Donoghue had a number of underlying health conditions which made him particularly vulnerable, and which the offender would not have known about. This is a very significant matter which, in my opinion, substantially reduces the objective seriousness of this offence. After all, it is the action or actions causing death for which the offender is to be sentenced, which in this case constituted the punch or punches to Mr Donoghue's face while the latter was seated at the table. 3. In my opinion the objective seriousness of this offence is well below the midline for manslaughter. 4. Similarly, I consider that the assault upon Christopher Curtain is below the midline of objective culpability. It was a spontaneous assault, and no weapon was used. 5. At this point I turn to say something about the offender personally. The Offender's Background 1. The offender was born on 18 July 1971 and is now 44 years old. His mother gave evidence during the sentencing proceedings in which she described his background. As a very young child he was good and obedient, but later sibling rivalry developed with his younger brother, and as he got older he started to get angry. When he was about 15 she became aware that he was using illegal drugs, particularly marijuana. He left school at the age of 16, and thereafter had a number of different jobs. The offender's criminal record was also tendered on sentence, which showed an extensive record, dating back to November 1987, when he was only 16 years old. Over the next few years he came before the courts on a number of occasions, all for relatively minor offences. His first sentence of imprisonment was in August 1991, for possessing a prohibited drug. There have been many further convictions over the years, for a variety of offences, and the offender has been sentenced to imprisonment on a number of occasions. However since 2005 he has come before the courts on only a few occasions, in 2009 and again in 2011. On that last occasion, the offence was driving whilst under the influence of alcohol. Accordingly, it is quite some years since he has been convicted of any serious offences. 2. According to the offender's mother, he started to use heroin when he was about 24 years old. That was when things really deteriorated, she said. Starting in 2008 he attempted rehabilitation on a couple of occasions, by going into drug rehabilitation centres. The offender has a daughter who was born in January 2006, who lives with his mother. Both of them have kept contact with the offender since he has been in prison. Mrs Tanks described the offender as being very angry when he first went into prison, but said that recently he has become much calmer. She acknowledged that the offender will need a great deal of support when he is released from custody, and said that she would support him. 3. In all the circumstances, it would seem that the combination of alcohol and illegal drugs have been the scourge of the offender's life, and responsible for at least the major part of his offending over the years. I accept that, if the offender were to abstain from these substances, he would be unlikely to reoffend. This view is reinforced by the fact that the only offence committed by the offender in the five years before the current offences was an alcohol-related driving offence. Other Relevant Matters 1. The offender pleaded guilty to the manslaughter charge at the earliest reasonable opportunity. As Ms Manuell pointed out, had this plea been accepted by the Crown, a lengthy and difficult trial would have been avoided. Accordingly, he is entitled to a significant discount on sentence. He has never contested the fact that he assaulted Mr Curtin. In the circumstances I accept Ms Manuell's submission that a discount of between 20% and 25% would be appropriate in relation to both offences. The sentences I am about to impose have already been adjusted accordingly. 2. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period. As has been observed on many occasions, the range of culpability for manslaughter is greater than for any other offence. It can vary from a practical joke gone wrong at one end, to an act which is little short of murder at the other. In the present case, as already mentioned, I regard the offender's culpability to be below the midline in objective gravity, principally by reason of Mr Donoghue's previous medical conditions, which made him vulnerable to actions which, in the normal course of events, would not have caused any particularly significant injury. 3. The maximum penalty for assault occasioning actual bodily harm is imprisonment for five years. 4. It is appropriate at this stage to advert to the principal purposes of sentencing, as set out in s. 3A of the Act. They are as follows: * To ensure that the offender is adequately punished for the offence * To deter the offender and others from committing similar offences * To protect the community * To promote the rehabilitation of the offender * To make the offender accountable for his actions * To denounce the conduct of the offender * To recognise the harm done to the victim of the crime and the community. 1. As relevant to the last of these purposes, extremely moving victim impact statements were presented in court on behalf of Mr Donoghue's family members. These included his two sisters, as well as Ms Bennett, and his two children. On behalf of the Court I convey my heartfelt sympathy to each of them. No doubt they will think that the sentence I am about to impose is totally inadequate, having regard to the extent of their loss. However I hope they will understand that there are many other matters to be taken into account on sentence, particularly in relation to offences of this nature. 2. Everything points to the fact that the offender has real prospects of rehabilitation, and is likely to benefit from a lengthy period of supervised release into the community. In my opinion this constitutes special circumstances which justify a variation between the statutory ratio between the head sentence and the non-parole period. 3. The offender has been in custody since 11 February 2014, and his sentences are to commence on that date. 4. I propose to impose a fixed term of imprisonment in relation to the assault on Christopher Curtin, and then partially accumulate the sentence for the manslaughter of Mr Donoghue. 5. Mr Tanks, for the offence of assault occasioning actual bodily harm to Christopher Curtin I sentence you to imprisonment for six months, commencing on 11 February 2014. For the manslaughter of Stephen Donoghue I sentence you to imprisonment consisting of a non-parole period of four years, commencing on 11 May 2014 and expiring on 10 May 2018, with a balance of term of three years, commencing on 11 May 2018 and expiring on 10 May 2021. The total term of imprisonment is therefore seven years and three months. The earliest date on which you will be eligible for release on parole is 10 May 2018. ********** Amendments 03 May 2016 - Paragraphs 22 and 23 were amended by inserting the correct name for the offender. 12 May 2016 - Paragraphs 3, 5, 10, 19, 34 typographical adjustments. 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: 12 May 2016