Supreme Court New South Wales

• Medium Neutral Citation: R v Simon Peter BRADDON [2012] NSWSC 662
• Hearing dates: 25 May 2012
• Decision date: 15 June 2012
• Jurisdiction: Common Law - Criminal
• Before: Hidden J

Decision

Sentence of 5 ½ years, NPP 3 years, from 23.12.10

• Catchwords: CRIMINAL LAW - manslaughter - plea of guilty - spontaneous attack - mental illness
• Category: Sentence
• Parties: Regina (Crown); Simon Peter Braddon (offender)
• Representation: Counsel: M Tedeschi QC (Crown); G Turnbull SC (offender); Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown); S A Cunningham - Cunninghams - The Law Practice (offender)
• File Number(s): 2010/425761

REMARKS ON SENTENCE

1 The offender, Simon Peter Braddon, was indicted in this court for the murder of Gregory Partridge at Mandurama on 27 September 2010. His plea of guilty to an alternative count of manslaughter was accepted by the Crown in discharge of that indictment. The basis of manslaughter is that he killed Mr Partridge by an unlawful and dangerous act, without intending to kill him or to cause him serious injury.

Facts

2 Mr Partridge lived in Gold Street, Mandurama. The offender lived in the same street, not far away. In the afternoon of Sunday, 26 September 2010, Mr Partridge visited the offender at his home. They drank together and Mr Partridge left, saying that he was going to catch a bus to Bathurst to buy some heroin. The offender tried to dissuade him from doing so.

3 Mr Partridge spent the following day, Monday, 27 September 2010, in Bathurst. There, among other things, he obtained some methadone from a chemist for use over the following days. He got back to Mandurama in the early evening and, shortly afterwards, the offender visited him at his home.

4 There the offender struck Mr Partridge a number of times to his back and other parts of his body, using a piece of pine. Mr Partridge died as a result of that assault. Before he died he rang a friend to say that he had been assaulted "by someone with bipolar disorder who lives down the road." He described being struck by a piece of wood, and said that he was covered in blood but would be "ok." He finished the conversation by saying, "The amount of crap I have copped off that bloke over the years." That was the last time anyone spoke with him.

5 At about midday on Tuesday, 28 December 2010, neighbours went to Mr Partridge's home. There they found him dead on his bed. Police and ambulance attended the scene, and large welts were observed on his back.

6 Two days later a post-mortem was conducted by Dr Allan Cala, forensic pathologist. Dr Cala found that the direct cause of death was blood loss due to a lacerated spleen. He noted a number of injuries to Mr Partridge apart from the lacerated spleen, there being a fracture to one of his ribs and a number of other lacerations and areas of bruising. Mr Partridge was of slight build, being 163 centimetres tall and weighing only 49 kilograms. Dr Cala concluded that the rupture of the spleen was due to blunt force trauma to the back, noting two linear welts in that area.

7 On the same day as the post-mortem examination, 30 September 2010, police spoke to the offender at his residence in the course of a canvas of the area. He was highly agitated, was crying, and was saying, "Just take me away." The offender later said that this was a reference to some cannabis he may have had at the house. Police noted him to be upset and aggressive, and considered his demeanour to be highly suspicious.

8 Further investigation led to police conducting an electronically recorded interview with the offender on 4 October 2010. He told police about Mr Partridge's visit on the day before the killing, and of his attempt to talk him out of going to Bathurst to buy heroin. However, he denied having visited Mr Partridge on the day he died.

9 Police later spoke to the offender's mother, Trish Braddon, and his sister, Candice Braddon. Trish Braddon told them that, in the days leading up to the offence, the offender's mental state had deteriorated so much that she was concerned he might become violent. On 30 September 2010, the offender telephoned her and told her that detectives had been to his house asking questions about the death of Mr Partridge. She feared that he might have been involved in killing him.

10 On Wednesday, 6 October 2010, the offender voluntarily admitted himself to the Bloomfield Mental Health Facility. Why he did so is unclear. However, Trish Braddon later told police that, earlier that day, he had threatened to commit suicide.

11 On 8 December 2010, a listening device was installed at the offender's house. On 18 December 2010, police contacted Trish Braddon and asked that she speak with them at Blayney Police Station. The offender became aware of this arrangement and was recorded as saying to his sister, "It's up to her. Fuck it, if she wants to roll." A short time later Trish Braddon was heard to say, "I have to live with myself ... . I think they've got it worked out ... ." She was crying as she said this. That evening, there was a conversation between the offender and Trish Braddon relating to the killing of Mr Partridge. The offender was heard to say, "I am probably guilty. I liked him, Mum. I just can't put the pieces together."

12 On the following day, 19 December 2010, the following conversation between Trish Braddon and the offender was recorded:

Trish Braddon said, "Listen to him. Because I've been telling you. You don't know your own strength, Simon."

The offender said, "I didn't hit him that hard, Mum. Fuckin' hell, please don't tell 'em about it."

Trish Braddon said, "I didn't, but I think it helps for me for that fella to say, I don't think for a minute that I'm going to break ... . He said, Trish, I don't have any doubt about it and ... can you [do] me the courtesy of telling me first ... and I think it's best that we're the ones to know."

13 On Tuesday, 21 December 2010, the offender was heard to say to his mother, "I've lost a good friend here. Even if I was in a bad place, I didn't intend for him to die."

14 The offender was arrested on Thursday, 23 December 2010. He was interviewed in the presence of his mother and declined to comment on the offence. He was then charged.

15 The offence must be understood in the light of the offender's mental illness at the time. A history of mental illness, together with treatment from time to time, is to be found in a report of Dr Stephen Allnutt, forensic psychiatrist, which is in evidence. Dr Allnutt diagnosed him as suffering from bipolar affective disorder, which was also the diagnosis when the offender was admitted to Bloomfield Mental Health Facility on 6 October 2010.

16 The offender gave Dr Allnutt an account of the offence, which was not challenged by the Crown prosecutor in the sentence proceedings. He said that, when he went to Mr Partridge's home on the evening of the offence, he found him mixing heroin. He picked up a spoon which Mr Partridge had been using, intending to put it down the sink. Mr Partridge picked up a syringe and threatened him, saying that he should put the spoon down, which he did. He was scared, thinking that Mr Partridge might stab him with the syringe. He noticed a piece of wood which Mr Partridge used to keep the bathroom door open. Mr Partridge came towards him, he picked the piece of wood up and struck him several times with it. He then left the house, not thinking that he had caused Mr Partridge any serious harm. He recalled feeling upset because of what he had done, and wished that he had not picked up the spoon.

17 It seems that the offender bore Mr Partridge no ill will, and had considered him a friend. He told Dr Allnutt of an incident in January 2010 when he had become angry with Mr Partridge over something said which he considered offensive, and had seized him by the throat and remonstrated with him. This event appears to have been trivial, and is of no present significance. It was common ground that the incident leading to the killing was triggered by the offender's concern about Mr Partridge's use of heroin and his attempt to stop him doing so on that occasion.

18 However, Dr Allnutt expressed the opinion, which I accept, that he was in the manic phase of his bipolar illness at the time and that this contributed to his behaviour. This was consistent with his description of his condition in the period leading up to the offence. Dr Allnutt explained that "hypomania is a mental state that contributes to disinhibited behaviour, poor social judgment, and increased irritability."

19 Between March and August 2010, the offender had been on a course of the medication Interferon for hepatitis C. It seems that this drug can have mood altering effects, and Dr Allnutt considered that it may also have been a contributing factor to the offender's behaviour. The doctor expressed his conclusion in this way:

"At the material time ... he was experiencing a manic mental state with associated grandiose and probable persecutory delusions derived from an underlying bipolar affective disorder triggered by medication (Interferon treatment)."

Nevertheless, there is force in the Crown prosecutor's argument that it is not clear whether Interferon was a contributing factor. The fact remains, however, that the offender's mental illness certainly was.

Subjective case

20 The offender was 36 years old at the time of the offence, and is now 38. He has a criminal history, including some entries for violence, but it is old. The offences were dealt with in the Local Court and all of them were disposed of by non-custodial orders. His record is of little significance for present purposes.

21 He was brought up in the Bathurst area. His earlier years were not without their difficulties, as there was some domestic violence in the home, but his parents remain supportive of him, as does his sister. The three of them were present at the sentence hearing. He was educated to year 9 level and, apparently, was a slow learner. He had sporadic employment of a rural kind, but had been unemployed for some time when the offence occurred. In his twenties he had a relationship with a woman which produced three children. That relationship has not endured and, as I understand it, he does not maintain contact with the children or their mother.

22 No doubt his personal life has been affected by his mental illness which, in one form or another, appears to have been longstanding. As I have said, he has had treatment from time to time, since his diagnosis in earlier years with ADHD. He also has a history of the abuse of alcohol and a variety of illicit drugs, principally cannabis. He has been receiving treatment while in custody since his arrest.

23 Dr Allnutt considered the risk of his re-offending, and saw his mental illness and other aspects of his background as suggesting "a moderate vulnerability to impulsive aggression in the longer term, in particular if he does not maintain psychological stability and begins to abuse substances again." In his report Dr Allnutt continued:

"Currently he manifests insight in his illness; he does not manifest active symptoms of mental illness; there is no evidence of ongoing impulsivity; he seems to be responding to treatment and does not manifest attitudes that condone violent offending which would suggest to me that given his current mental state he is unlikely to act in an aggressive manner.

It is probable that his mental illness is a significant factor in mediating his propensity to aggression and that if this remains under control the risk of re-offending in an aggressive manner is reduced; this depends on his ongoing engagement with treatment, the availability of adequate mental health services and support, and abstinence from substances."

24 He expressed remorse to Dr Allnutt, and it appeared to the doctor that he accepted responsibility for his actions and the loss they had caused. That expression of remorse is consistent with some of his statements recorded by the listening device, to which I have referred earlier, and I accept it as genuine. It is also consistent with his plea of guilty, which was entered on his arraignment but had been offered before his committal for trial. I shall recognise the utilitarian value of his plea of guilty by a reduction of the sentence otherwise appropriate.

Victim impact statements

25 I received victim impact statements by Mr Partridge's two brothers, Michael and Stephen. Michael Partridge read them to the court. They are a moving account of the grief and outrage this violent death has caused them and their mother, and of the enduring effects this tragedy has had upon the lives of all of them. I expressed my deepest sympathy to them at that time, and I do so again now.

Sentencing

26 Manslaughter is the unlawful killing of a human being and, of course, is always a serious crime. Nevertheless, it is a crime which can be committed in a wide variety of circumstances, and careful attention must be given to the facts of the case at hand when arriving at the appropriate sentence. In the present case the offender delivered multiple blows with a piece of wood to a man significantly smaller than himself. It is a distressing feature of the case that Mr Partridge died alone and without assistance. It seems that he initially did not realise how badly he was injured. It may be, as the Crown prosecutor suggested, that his use of methadone had dulled his pain and masked the severity of his injuries. That a weapon was used by the offender and that the crime was committed in the victim's home are matters properly required to be taken into account in assessing the gravity of the offence.

27 On the other hand, the attack was undoubtedly spontaneous and the use of the piece of wood was opportunistic. Obviously, the circumstances leading to the offence which I have described, and the contributing effect of the offender's mental illness, are significant mitigating factors. True it is that the offender left the house without attempting to assist Mr Partridge, but I accept that he also was not aware of the seriousness of the injuries he had caused. It may well be, as his mother suggested in one of the recorded conversations, that he did not know his own strength.

28 As I have said, the offender's criminal history is of little significance and, in any event, he had a clear record for about 8 years before this offence. I take into account in his favour his remorse and his prospects of rehabilitation. He enjoys the continuing support of his family but, of course, the most significant issue is his mental illness. I agree with Dr Allnutt that his prospects of rehabilitation are reasonable, as the doctor put it, "as long as he pursues and maintains psychiatric treatment and oversight as well as abstinence from substances." Clearly, he would benefit from an extended period of conditional liberty subject to supervision and the sanction of parole and, to that end, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.

29 His plea of guilty was accepted by the Crown prosecutor as having been offered at the first reasonable opportunity. I shall reduce the sentence otherwise appropriate by 20% to recognise the utilitarian value of that plea. To assist me in arriving at the appropriate sentence, counsel provided me with a number of manslaughter sentence cases having features broadly similar to the present case. Of course, I approach those cases mindful that they can serve as no more than a rough guide because each of those cases turned on its own facts. A few of the cases had features which marked them as clearly more or less serious than the present case. Putting them aside, and taking a broad view of the remaining cases in which there was a plea of guilty, what emerges is a pattern of head sentences between 5 and 7 years and non-parole periods between 3 and 4 ½ years.

30 But for his plea of guilty, I would have sentenced the offender to imprisonment for 7 years. A reduction of 20% produces a figure, rounded off, of 5 ½ years. While I have found special circumstances, the need to set a non-parole period sufficient to mark his criminality means that there can be only a modest departure from the statutory proportion. I shall set a non-parole period of 3 years. The offender has been in custody since his arrest on 23 December 2010, and the sentence will date from that day.

31 Simon Peter Braddon, for the manslaughter of Gregory Partridge you are sentenced to a non-parole period of 3 years, commencing on 23 December 2010 and expiring on 22 December 2013, and a balance of term of 2 ½ years, commencing on 23 December 2013 and expiring on 22 June 2016. You will be eligible for release on parole on 22 December 2013.

**********

Decision last updated: 15 June 2012