Regina v Warren James Tighe [1999] NSWSC 1354 (21 May 1999)

REGINA v Warren James TIGHE

Friday 7 February 1997

THE SUPREME COURT OF NEW SOUTH WALES DIVISION
HUNT CJ at CL

SENTENCE

HIS HONOUR:

The prisoner (Warren James Tighe) was found by the jury to be not guilty of the murder of his defacto wife (Helen Reberta Boney) but guilty of her manslaughter, after a trial lasting thirteen days.

The principal issue at the trial was whether it was the act of the prisoner which caused the death of the deceased. The evidence against him was entirely circumstantial, and was dependent upon a number of medical issues. The deceased died as a result of a subarachnoid haemorrhage. The Crown had to eliminate any reasonable possibility that it had occurred spontaneously and that, if traumatic, the subarachnoid haemorrhage had occurred as a result of an accidental fall. It did so by evidence that the injuries which the deceased sustained around her head and face were either inconsistent with having been caused by an accidental fall or that it was not reasonably possible that they were caused in that way.

I was not surprised that the evidence of the two consultant pathologists called by the prisoner upon these issues failed to impress the jury. The time must be fast approaching when steps will have to be taken by the relevant professional body to impress upon the growing number of doctors who hold themselves out as "forensic" pathologists that there is, and still remains, a significant difference between what is a possibility and what is a reasonable possibility, even in the field of pathology. Some of the evidence given in this trial, in my view, bordered on the irresponsible.

The jury's verdict established that it was the act of the prisoner which caused the death of the deceased. I am satisfied that that act was a blow to the area of the right side of her lower jaw which caused her head to rotate suddenly, leading to the tearing of the blood vessels connected to the brain, or of minor blood vessels branching from those vessels. A loss of consciousness followed immediately, and the deceased dropped to the floor. It is reasonable to conclude that at least some of the other injuries to her face and head were caused when she did so, but it cannot explain them all. I am satisfied that the prisoner must have struck her more than once, but I am unable to say which injuries were the result of that additional blow or those additional blows.

The prisoner has expressed an inability to understand how he could be guilty of manslaughter when the jury had found him not guilty of murder. I shall attempt to explain. The Crown conceded that there was no evidence of an intention to kill, and that its case upon an intention to inflict grievous bodily harm was a thin one. The only evidence of such an intention was the nature of the blow itself which caused the subarachnoid haemorrhage. There was also evidence from all of the doctors that, where a victim who suffers such a haemorrhage is affected by alcohol, less force than otherwise is needed to cause the sudden rotation of the head which in turn results in the haemorrhage. The deceased had the equivalent of eighteen ten ounce glasses of beer circulating in her system at the time of her death. One of the Crown's doctors said that a minor amount of force was sufficient to cause that rotation in those circumstances. Even a sober person applying such force to her head could hardly have realized that, by striking her with such a minor degree of force, she would have suffered grievous bodily harm. The prisoner was obviously intoxicated himself at the time, and there was no dispute by the Crown that he must have been well affected by alcohol at the time when he struck the deceased.

As is usual in manslaughter cases, the jury were directed that the Crown did not have to establish that the prisoner intended to inflict a really serious injury or indeed that he intended to inflict any type of injury. They were directed that the crime of manslaughter is complete even if no injury was intended, and even if the prisoner himself had not realised that what he was doing was dangerous in the sense which I had earlier described - that is, that it was such that an ordinary person in the position of the prisoner would have realised that, by that act, the deceased was being exposed to an appreciable or a significant risk of serious injury. It was made clear to the jury that the test was an objective one; it was not whether the prisoner recognised that his act was dangerous.

I am not satisfied that the prisoner intended to inflict any particular injury upon the deceased. At most, in my view, the blow or blows which led to her death would have been something done in a sudden fit of temper, with the intention perhaps of hurting the deceased but no more. There was certainly no appreciation by the prisoner of the terrible consequences which did in fact flow from that blow or blows. That in no way detracts from the jury's verdict, as it was nevertheless clearly open to them to be satisfied in relation to the objective test which they had to consider. The reasonable person would not have been disabled to the extent that the prisoner was disabled by intoxication.

I therefore must sentence the prisoner upon the basis that he was responsible for the unlawful and dangerous act which caused the death of the deceased. I should say at once that I do not propose to take the prisoner's intoxication into account in mitigation. I am not satisfied that his intoxication was out of character: cf The Queen v Sewell & Walsh (1981) 29 SASR 12 at 14-15; Regina v Coleman (1970) 57 A Crim R 306 at 327. At the same time, I am not satisfied beyond reasonable doubt that I should take his intoxication into account in aggravation either.

The prisoner has a long criminal record, stretching back to 1980 (when he was fifteen years of age), for offences of breaking, entering and stealing and similar offences, for nuisance offences such as hindering police and offensive behaviour, some minor drug offences, and some failure to appear offences. There are no convictions for violence, and I am satisfied that this violence (such as it was) was out of character for the prisoner, both generally and towards the deceased. I am also satisfied that he will not present any danger of similar violence in the future. It is clear from the material before me that the prisoner has long had a problem with alcohol, and that he has also abused drugs. I am told that he was undergoing a rehabilitation course for some months before this incident. It is obvious from the evidence of what went on during the day leading up to the death of the deceased that that counselling had not been very successful.

It has nevertheless been urged upon me that the prisoner is anxious to rehabilitate himself. I accept that that intention on his part is a genuine one, but I am also certain that it is going to be a very hard road over which he will have to travel in order to achieve that rehabilitation. No doubt, at thirtyone years of age, he is now approaching that period of life when most offenders given away the life of petty crime which the prisoner has led for so long. The difficulty will lie in the rehabilitation which he needs from his alcohol and substance abuse.

A report from Mr Taylor, the clinical psychologist, expresses the view that the prisoner suffers from an anxiety disorder and a Post Traumatic Stress Disorder, which has led to a high pre-disposition towards substance abuse. The Post Traumatic Stress Disorder, Mr Taylor says, relates to a shooting incident in 1982, when the prisoner's cousin was shot and fatally wounded. The gunman's second shot had hit the prisoner in the small of the back near the spine and passed cleanly through his body. Whether or not the relationship between the events suggested by Mr Taylor should be accepted, and I have some doubt about it, I do accept that the prisoner has an unstable personality functioning, and limited resources to assist him in coping with his life.

That is consistent both with the facts as I accept them to be in relation to this offence and to the prisoner's need for considerable assistance when he is ultimately released on parole. The Crown has very properly conceded that it is open to me to vary the statutory ratio between the minimum and additional terms so as to set a longer than usual additional term for that purpose. I propose to do so. The other finding by Mr Taylor, that the prisoner is mildly intellectually handicapped, may be consistent with the tests which he carried out, but the unreality of that so far as the prisoner is concerned - that is, in real life - was demonstrated by the prisoner's ability to cope very well indeed with giving evidence and being cross-examined in the trial. I was struck at the time by his ability to deal with the questions and with the quiet dignity which he displayed.

The prisoner has maintained his innocence, and therefore he does not have the benefit of having shown contrition. That is not to say that he is to be punished more for his continued protestations of innocence; he simply does not receive mitigation for a confession. At the same time, I am satisfied that the prisoner has been deeply distressed by the horrific consequences which flowed from his act. I am impressed by the thoughtfulness of the document which he presented today, in which he discusses the problems which he will have in facing the five children born from his relationship with the deceased when they are old enough to expect an explanation from him for the death of their mother. Indeed - acknowledging the high skill of his counsel throughout the trial and in relation to these sentencing proceedings - I have found that document to be of the greatest assistance of all in my assessment of the prisoner as a man. It has impressed me very much indeed.

I accept that the children will suffer greatly from this sad tragedy, but their hardship is unfortunately not a matter which I can have much regard to in the circumstances of this case: Regina v Alexander (1994) 78 A Crim R 141 at 145; Regina v Cynthia Therese Edwards (CCA, 17 December 1996, unreported) at 13-15. The law does not permit me to do so.

Because of the prisoner's Aboriginality, I must and do take into account the propositions stated by Wood J in Regina v Fernando (1992) A Crim R 58 at 62-63. It is unnecessary for me to repeat them. The offence was nevertheless a serious one by reason of the loss of life which resulted from the prisoner's act. It requires a substantial period of imprisonment. There was no period of pre-trial custody. The prisoner entered custody following the jury's verdict on 21 November last and the sentence will be backdated to that time.

Warren James Tighe, for the manslaughter of Helen Reberta Boney, I impose a sentence of penal servitude for four and a half years, consisting of a minimum term of two and a half years and an additional term of two years. The minimum term commenced on 21 November 1996 and it will conclude on 20 May 1999. You will be eligible for parole on 21 May 1999. I recommend that you be classified for a gaol to which your family (who presently live in Ballina) will have access as conveniently as possible.