Supreme Court New South Wales Medium Neutral Citation: R v McGuiness [2016] NSWSC 1806 Hearing dates: 9 December 2016 Decision date: 15 December 2016 Before: R A Hulme J Decision: Imprisonment for 8 years 6 months with a non-parole period of 6 years 4 months Catchwords: CRIMINAL LAW – sentence – manslaughter – excessive self-defence – where offender produced and used a knife while being assaulted – where the deceased initiated and gained the upper hand in the assault – intention to inflict really serious harm – offence of moderate objective seriousness – guilty plea on first day of trial – remorse shown – criminal history confined to one offence of violence committed shortly before index offence – reasonable prospects of rehabilitation – general and specific deterrence important considerations Legislation Cited: Crimes Act 1900 (NSW) ss 18, 24 Crimes (Sentencing Procedure) Act 1999 (NSW) s 59 Category: Sentence Parties: Regina Stephen McGuiness Representation: Counsel: Mr T Thorpe (Crown) Mr M Ierace SC (Offender) Solicitors: Solicitor for Public Prosecutions Birchgrove Legal File Number(s): 2015/63116 Judgment 1. HIS HONOUR: Stephen McGuiness ("the offender") was to be tried on a charge of murder but on what was to be the first day of the trial the Crown presented a new indictment charging an offence of manslaughter. A plea of guilty was entered and the matter was stood over for the hearing of evidence and submissions on sentence on 9 December 2016. Facts 1. On the afternoon of 28 February 2015, David Campbell ("the deceased"), aged 26, drove with two friends, Scott Wilson, aged 25, and Jordon Morris, to Macquarie Park, Windsor. Macquarie Park is alongside the Hawkesbury River with a beach surrounded by parkland. All three men had previously been drinking beer, vodka and bourbon at Mr Wilson's home nearby. They were in a Commodore station wagon owned by Mr Wilson and being driven by the deceased. 2. While at the river the three men drank more alcohol. They proceeded to leave Macquarie Park at about 6.50pm, intending to return to Mr Wilson's home. They were in the Commodore and the deceased was driving. In order to exit the car park, he slowed down to negotiate a speed hump. As he did so, the offender was in the front passenger seat of a Nissan Skyline which was entering Macquarie Park. 3. The Skyline was being driven by Jack Denaija, aged 19. Aden Temlett, aged 19 and David Ahearne, aged 20, were in the back seat. They had arranged to meet friends in other vehicles at Macquarie Park. Two had already arrived in a Suzuki Sierra, and were waiting in the car park; Andrew Thompson and Matthew Smith, both aged 19. 4. As the vehicles approached and slowed for the speed hump, there was an incident. According to Mr Wilson, the occupants of the Skyline gave them a "death stare", with nothing being said by the occupants of either vehicle. Mr Wilson told the deceased, "Let's just go", but the deceased instead did a U-turn and followed the Skyline back into the carpark. 5. According to the occupants of the Skyline, the occupants of the Commodore were staring at them. Mr Temlett said the driver of the Commodore, that is the deceased, said: "What the fuck are you looking at". No-one in the Skyline responded and the Skyline continued into the carpark, pulling up near the Sierra. 6. The deceased pulled up in the Commodore nearby. According to Mr Wilson, he (Mr Wilson) got out and walked towards Mr Denaija with his fists up, ready to fight. He started swinging and trying to punch Mr Denaija. Mr Wilson could not recall if he said something first. According to Mr Temlett, immediately before trying to punch Mr Denaija, Mr Wilson said, "What's your fucken problem?" and Mr Denaija replied, "There is no problem". 7. At about this time the deceased approached the offender, who had alighted from the passenger side of the Skyline. The deceased had his shirt off and according to an independent witness said, "Come on, fight me," as he pushed at the offender's chest. The offender was seen to back away with his hands up in front of him, his open palms facing the deceased, stating that he did not want to fight. The deceased then punched the offender to the head, causing him to fall to the ground. The offender got to his feet and punched the deceased, who fell to the ground. The offender said to the deceased, "Stay down." However, the deceased got back up and continued punching the offender. 8. Independent witnesses described the deceased gaining the upper hand in the ensuing fist fight. At one point the deceased pulled the offender's shirt over his head and was seen to then deliver four uppercut punches to the offender's head, while the offender continued to move backwards. 9. At this point the offender used a knife to stab the deceased once to the neck. The deceased stumbled back and said words to the effect of "He stabbed me". It was clarified at the sentence hearing that the offender's shirt was still over his head at the time of the stabbing. Thus, it cannot be said that he particularly aimed to stab the deceased in the neck. All that can be said is that he directed the knife towards the deceased's upper body. 10. Mr Denaija and the offender ran to the Skyline and they drove away from the scene. 11. The deceased had collapsed. A number of witnesses to the incident went to assist. An emergency call to triple 0 was made. However, the deceased died shortly after. 12. Not long after leaving the carpark the Skyline crashed into a fence in St Marys Road, Llandilo. The offender fled the scene whilst Mr Denaija remained and was arrested by Police. 13. An investigation was commenced and police took a number of statements from witnesses. As a result of information received, police arrested the offender at his home in the early hours of the following morning, being 1 March 2015. Police observed a number of injuries to his nose and right eye which had swelling. 14. In an interview with police the offender said that he received the injuries as a result of hitting his face on a bed head earlier on the morning of 28 February 2015. He also claimed to have received bruising from picking up furniture. He said he did not travel to Windsor that day, and denied fighting with anyone. He denied being at the car park area. He also denied being in a motor vehicle accident at Llandilo after the incident. He denied stabbing anyone. 15. An autopsy examination of the body of the deceased was carried out. Bruising and abrasions to the body were noted. The cause of death was found to be a stab wound to the right front side of the neck which extended through muscle, a vein and an artery down into the lung cavity. Subsequent blood analysis tests disclosed that the blood alcohol content of the deceased was 0.138g/100ml. Seriousness of the offence 1. The starting point in assessing the seriousness of the offence is to recognise that the crime of manslaughter involves the unlawful taking of the life of another human being. 2. In this case the offence commenced with the deceased, who was intoxicated, saying to the offender "Come on, fight me" as he pushed him in the chest. The facts, with which the Crown has agreed, include that the offender retreated, saying that he did not want to fight. However, the deceased initiated the fist fight and was gaining the upper hand. It was then that the offender produced the knife and inflicted the lethal stab wound. 3. The Crown's acceptance of the offender's plea to manslaughter incorporates acceptance that he considered that it was necessary to do what he did in order to defend himself. But by his plea, the offender accepts that his response was not a reasonable one in the circumstances as he perceived them. 4. The use of a knife is a serious aspect of the offence. I accept that the offender's actions were spontaneous rather than planned. But, why was he carrying a knife? The evidence provides no answer. 5. The fact that the knife was only used once does not diminish the seriousness of the offence given that the single stab was sufficient to have lethal effect. I have mentioned that it was agreed that the offender did not directly aim to stab the deceased in the neck but he clearly directed the knife toward the deceased's upper body. It is accepted that he intended to inflict really serious harm. The Crown did not contend that there was an intention to kill. 6. The fact that the offence was committed in public parkland in the presence of others is another matter that bears upon the seriousness of the offence. Violent offending in such a context is an affront to social harmony and public order. I accept, however, that the location was not one of the offender's choosing, just as initiation and pursuit of the altercation was not. 7. There is no doubt that all offences of unlawful homicide are serious. In the context of the vast range of circumstances in which the crime of manslaughter can be committed my assessment is that this offence is one of moderate seriousness. Family victim impact statements 1. Statements by David Campbell's mother, Karen, and sisters, Patricia and Alexandra, were tendered and read and have been carefully considered. It is to state the obvious that their loss has been absolutely devastating. Their very deep sense of grief will endure and impact their lives for much longer than any sentence that can be imposed upon the offender. 2. David's family, and no doubt his many friends, have a lot of positive memories of the very many fine qualities he had. That is what makes their loss so hard to bear but there must be hope that they can draw upon those memories and find the strength to continue with their lives in the way in which he would no doubt want them to. I extend my sincerest sympathy. The offender's personal circumstances 1. The offender was born in 1988 and so he was aged 26 at the time of the offence. 2. His parents separated when he was very young. Thereafter he was raised by his mother and some older half-siblings. He was diagnosed with ADHD and Oppositional Defiant Disorder in primary school and took prescribed medication until he was about 17 years' of age. He worked as a French polisher after leaving school following Year 10, and had held the one job for 10 years until his arrest. His employer has written in positive terms about him (for example, describing him as "a very responsible person") and is prepared to consider him for employment after his release. 3. The offender was in a relationship with a woman for about two years but it ended in December 2014, shortly after twin children were born. His mother indicates in her affidavit that he became depressed when the children were placed in the care of his former partner. 4. The affidavits of the offender's mother and Mr Paul Hardge, his employer, as well as the report of Dr Richard Furst, psychiatrist, include reference to the offender having a hobby collecting ornamental and replica knives. He told Dr Furst that these were for "display purposes only" and he denied having any fantasies relating to knives or violence. I am left in the dark as to why the offender had a knife on him at the time of the altercation with the deceased because there is nothing in the written material on the subject and he did not give evidence. 5. The offender gave a history to Dr Furst of being a social drinker. He has no history of habitual abuse of illicit drugs. There are no significant medical problems and no major mental health issues. Dr Furst did, however, recommend that the offender be referred to a clinical psychologist to assist with symptoms of low mood and anxiety to target his coping skills in custody and assist with his adjustment to community living when released on parole. Participation in a rehabilitation program dealing with aggression was one of a number of other suggestions made by Dr Furst. 6. The offender is recorded by Dr Furst as having expressed "a lot of remorse, especially about the impact on the victim's family, but also with respect to the impact on his own family, including his mother". Dr Furst quoted the offender as having said, tearfully, the following: "I never meant for any of this to happen. I feel so bad about the incident. I feel for his family. It's hard for me to put it into words … his family. The pain that they are feeling." 1. How much the offender's tearfulness is attributable to his concern for his victim and his victim's family as opposed to concern for his and his own family's plight is difficult to gauge. I accept that the offender might be remorseful but I have been denied the opportunity of assessing the extent and the genuineness of it by him electing not to give evidence. 2. He has a criminal history comprising a single entry; an offence of reckless wounding in company which was committed on 1 January 2015, some two months before he stabbed the deceased to death. He was arrested on 23 April 2015. He was convicted after a defended hearing in the Local Court and was sentenced on 24 August 2016 to a term of imprisonment of 14 months with a non-parole period of 7 months dating from 30 May 2016. He appealed against his conviction but on 12 December 2016 the appeal was adjourned until 1 February 2017. I will address the significance of this later. 3. The facts of that prior wounding offence were that he turned up at the home of his ex-partner at about 12.45am on New Year's Day wanting to see their two children. He was in the company of Mr Temlett and a female. He was firmly told that he was not welcome. However he forced his way into the home. A woman who lived with the offender's ex-partner and her mother tried to intervene to prevent him entering but the woman was pushed in the chest; the offender punched her to the mouth and again to the neck. He was wearing a ring on the hand he used to punch her and this caused a 3-4 cm long wound to the neck that required suturing and left scarring. 4. The offender pleaded guilty to manslaughter on the day his trial for murder was due to commence. For the utilitarian benefit to the criminal justice system I am required to reduce the sentence I am to impose. It was a late plea but it was entered very soon after the Crown determined upon a charge of manslaughter in lieu of murder. There was no suggestion, however, of any offer to plead guilty to manslaughter at an earlier time. I will allow a reduction of 15 per cent. 5. I am satisfied that aside from this offence and that which occurred two months before, the offender has been otherwise a person of good character. As to his prospects of rehabilitation, Dr Furst considered the offender had a low risk of re-offending in a violent manner with the rider that this was commensurate with the treatment needs that the doctor indicated in his report. I remain troubled by the question of the offender carrying a knife. On balance, I consider his prospects of rehabilitation are reasonable. Other matters relevant to the assessment of sentence 1. The carrying and use of a knife with lethal force is a matter for which a strong message of deterrence must be sent. Personal deterrence of the offender is also an important matter to take into account, particularly given the violence perpetrated by the offender only a couple of months earlier. Other purposes of sentencing – punishing the offender, denouncing and making him accountable for his actions and recognising the harm done – are important factors as well. It is however necessary to also bear in mind the prospective rehabilitation of the offender. 2. It is necessary to bear in mind as a guidepost that the maximum penalty for manslaughter is 25 years' imprisonment. It is obviously set at such a high level out of recognition that the offence involves the unlawful taking of a human life. As I have earlier observed, it is, however, an offence that can be committed in a very wide range of circumstances. 3. The offender has been in custody since his arrest on 1 March 2015. Seven months of that period has been spent serving the non-parole period for the earlier offence of reckless wounding in company. That was an entirely separate matter and upon consideration of the principle of totality I have determined that the sentence I impose should be cumulative to it. I will achieve this by dating the sentence from 1 October 2015. 4. I pause to observe that the District Court conviction appeal for the offence of reckless wounding in company remains on foot. In the event that the conviction and consequently the sentence for that offence are quashed it would be necessary for the District Court, pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), to adjust the sentence that I am about to impose. The appropriate adjustment would be to vary the commencement date to 1 March 2015 so as to take into account the offender's time spent in custody since his arrest. 5. It was not submitted that I should make a finding of special circumstances and thereby reduce the proportion of the sentence represented by the non-parole period. I have considered the accumulation issue but the period is insufficient to warrant an adjustment. In any event, the non-parole period I will impose is the minimum period the offender should remain in custody having regard to all of the relevant circumstances including the objective gravity of the offence. Otherwise, all aspects of the offender's subjective case have been taken into account in the assessment of the overall term of the sentence and the parole period should be adequate for supervision to assist the offender's release back into the community. Sentence 1. Convicted. Sentenced to imprisonment comprising a non-parole period of 6 years 4 months with a balance of the term of the sentence of 2 years 2 months. The sentence will date from 1 October 2015. The non-parole period will expire on 31 January 2022 when the offender will become eligible for release on parole. That is a total sentence of 8 years 6 months. Without the offender's plea of guilty it would have been a sentence of 10 years. ********** 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: 15 December 2016