STATE OF TASMANIA v CALEB ADAMS 14 JUNE 2024
COMMENTS ON PASSING SENTENCE PORTER AJ
Caleb Adams, the defendant, has pleaded not guilty to a charge of murder, but guilty to manslaughter. The State has accepted that plea in discharge of the indictment. I am also dealing with his plea of guilty to a summary charge of assault by way of s 385A of the Criminal Code. That charge arose out of an incident about two days before the homicide, and I agreed to hear the simple offence because the facts of each are closely related. It follows that I will deal with the facts of the assault first. For about two years before October 2020 the defendant had been living in a unit in Carbeen Street in Mornington. His unit was one of about a dozen singles story brick units. For some months mid to late 2020 there was some ongoing conflict between the defendant and some of his neighbours and visitors to their units. The defendant believed his neighbours were unnecessarily noisy at times and this led to arguments. At about 7pm on 9 October 2020, the defendant was in his unit. The complainant in the assault matter, Rodney Ayres, was a neighbour of the defendant, and was in his own unit, a few doors away. Another neighbour, Samantha Hodgetts, left her unit to visit Mr Ayres. To do so, she had to walk past the defendant’s unit. As she shut the door to her unit, she heard the defendant calling out about the sound of the door closing, saying, “Stop slamming the door at all hours of the day.” As she walked past the defendant’s unit and arrived at the front door of Mr Ayres’ unit, the defendant called out to her, using abusive language. After she had been speaking to Mr Ayres for about 40 minutes Mr Ayres, started to walk her back to the carpark. As they were leaving, Mr Ayres knocked on the defendant’s door. The defendant answered, and said to Mr Ayres, “Don’t be coming round here abusing me, I’ll knock you right down.” He asked him what he was doing, and told Mr Ayres, “Get out of here”, and “Get the fuck out of my yard”. The defendant left his unit and he and Mr Ayres started to scuffle near the front door. During the scuffle, Mr Ayres dropped a walking stick he was carrying. The defendant pulled Mr Ayres’ jumper over his head, obscuring his vision. Mr Ayres then sat down on a retaining wall opposite the front door and the defendant stood over him and elbowed him to the upper back. He then punched him to the face underneath the jumper. Ms Hodgetts yelled at him to “get off” and the defendant started to walk toward her, telling her to “stay the fuck away”. The defendant then picked up Mr Ayres’ walking stick, and while Mr Ayres remained sitting, hit him three times to the body. Some or all of this had been recorded by Ms Hodgetts on her mobile phone, and told the defendant that she had been taping it. The defendant stopped, dropped the walking stick and told Mr Ayres not to come around. Mr Ayres was bleeding from facial injuries and Ms Hodgetts assisted him to return to Mr Ayres’ unit from where a report was made to police. Police attended at 8pm and spoke to Mr Ayres and Ms Hodgetts. Ms Hodgetts showed them footage of the assault on her mobile phone. Police attempted to locate the defendant but by this time he had left the unit complex. As a result of the injuries, Mr Ayres had an overnight stay in hospital; he received two black eyes and a cut to his face that bled and required some stitches, and he was bruised to the torso where he was struck with the stick.
I was told that after this altercation the defendant felt very stressed. He arranged to stay with a friend, Mr Williams – a church group support person. He was collected by Mr Williams, and taken to a rural town. He told Mr Williams he had been involved in a fight. He said he had started using drugs and alcohol again, that he had been unnecessarily violent and he regretted his actions. He said that the conflict with his neighbours was ongoing and he was worried. He stayed there until Sunday 11 October when he was taken home. When he arrived at about 5.00pm he noticed the front windows of his unit had been smashed. In particular, the window above his kitchen sink was broken although pieces of shattered glass remained in the frame. He took that to be a significant threat against him, carried out by persons he believed were connected to Mr Ayres. Not long after the defendant returned home, he had an argument with a man who was a regular visitor to one his neighbours, who I will simply call N. The defendant was in the kitchen and he was speaking through the broken window. N threatened to burn the defendant’s unit. The defendant then called 000 and told the operator that his windows had been smashed, that he had been involved in a fight with a neighbour and that he had been threatened. He said that the next door neighbour and his mate N were responsible, and that N was at his door saying that he was going to burn him out. The police went to the defendant’s unit, but they arrested him in relation to the assault and took him to the police station. At about 7.20pm, he was interviewed. He said that when he was at home, he got a call from Mr Ayres who called him a cunt. He said that he could tell that Mr Ayres was angry and had been drinking and hung up on him. When Mr Ayres came to his door, he was talking to a friend on the phone. He said Mr Ayres tried to hit him with a walking stick and they got into a scuffle during which he put a jumper over Mr Ayres head and admitted that he then punched him. He said that he had not seen Mr Ayres with a walking stick before, and that he only had it as a weapon. He believed Mr Ayres was threatening him. He thinks that he only hit him about once or twice. At that time he told police that there had been some retaliation from this incident. His window had been smashed and someone had urinated on his doorstep. After the interview he was charged and bailed. Mr Williams collected him from the police station and took him back to his unit. The defendant told him he was very nervous and said he needed to leave the unit complex because of the situation with his neighbours. The broken window above his sink was a two pane window with both a roller blind and curtain on the inside. During the evening, the defendant kept both the blind and curtain closed to cover it. He felt extremely uneasy and uncomfortable remaining in his unit. Later that night the defendant sent Mr Williams a text message saying that people were walking past his broken windows and tormenting him. The defendant also called his mother. He told her about the broken window and someone urinating at the front entrance of his unit. He was upset during the call and told his mother he wanted to stay with her the night, but he was not able to do so. He accepted that he had to remain in the unit that night but felt overwhelmed by the situation he was in and had great difficulty falling asleep; he was frightened to turn the lights on as he heard people walking slowly past his kitchen window.
At this time, the victim of the manslaughter, Ashton Jones, had lived in one of the Carbeen Street units for about a year. He and the defendant knew each other but they were not friends. Mr Jones was not one of the neighbours with whom the defendant had been in direct conflict, but he had heard about the fight and believed the defendant may have been taken into custody. Mr Jones had noticed that the windows in the defendant’s unit had been broken and had mentioned to others that he would like to steal the defendant’s television and other property. In the period between 11.00 pm and midnight, the defendant heard repeated taunts, and in particular heard a voice he believed to be N saying they were going to burn him out, they are going to get him out, accompanied by laughter. Later, he heard the words “It won’t be long now”. He also heard the word “cunt”, which he thought was directed towards him. There is no suggestion that this involved Mr Jones. At around midnight, after being unable to sleep, and with his mood at a low ebb, the defendant sent his father a text message saying “I am going away from this world and I am sorry for any trouble I caused. Bye“. A few minutes later, his sent a text message to Mr Williams “I don’t think I will be around, …. Thanks for being a friend. Bye.” At about 2:35 am, being Monday 12 October, Mr Jones went to the defendant’s unit. He had placed a sock on each hand to prevent them from being cut by broken glass. When he reached the unit he sought access through the broken window above the sink. He pushed against the roller blind. The defendant, still struggling to sleep, was alerted by the noise caused by Mr Jones trying to climb through the kitchen window. The defendant immediately went into the kitchen, picked up a large kitchen knife and the defendant stabbed at the person through the curtain and blind. At the time Mr Jones was partially leaning through the window. The knife struck him in the neck with force. The knife penetrated in a downwards direction deep into his neck and chest, severing arteries and veins and puncturing his right lung. He fell backwards and stumbled approximately 30 metres from the unit to the carpark where he fell to the ground. He died shortly thereafter. At 2:39 am the defendant rang Mr Williams and said, “Someone was trying to come through the window and I stabbed them and I am really scared.” He was told to hang up and call the police, which he did on 000. He told the operator that he was in bed when someone tried to come through his kitchen window. He said he stabbed them with his kitchen knife in self-defence, asking “What else was I supposed to do?” The defendant was agitated on the phone and sounded scared. He asked the operator to hurry up. He said there was one big man, N, and he was wearing a grey hoodie. The defendant did not realise that it was Mr Jones who he had stabbed.
At 2.48am police arrived at the defendant’s unit. The defendant told them that he was asleep and that he heard the blind over his broken kitchen window rustling. He said he came out and someone stuck their head through his window. He told police that he did not know who it was but “these guys have really been fucking with me.” He said he came into the kitchen and the intruder said something that he could not understand. The defendant told police “I just grabbed the knife, straight, straight in his neck.” He said he was defending himself adding “...he’s come right, right through… and he had a weapon so I was … scared shitless, I was asleep.” He said he did not know what type of weapon the intruder had but believed he had something in his hand. He told police it was dark and that he could not see, but he thought it was the same person who had threatened to burn him out earlier who was trying to enter his unit. He said that person had walked back past his unit at about 11 or 12 pm and said, “Not long motherfucker.”
A post mortem examination on the deceased’s body was conducted the next day. It was concluded the deceased died from the stab wound to his neck. The blade of the knife was established to be 22.5cm in length while the wound was approximately 6.2cm deep. The carotid artery and jugular veins had been cut and the knife had penetrated down through the deceased’s neck into his chest causing his lung to collapse. The deceased’s injuries caused copious bleeding leading to death by hypovolaemic shock. The forensic examination of the scene included an examination of blood staining at and around the kitchen window and a cut in the roller blind. None of the forensic evidence was inconsistent with the version provided by the defendant. It is common ground that the deceased did not in fact have a weapon as such.
Mr Jones’s death has understandably devastated and caused significant ongoing grief and a sense of loss to his large family. I have victim impact statements from his grandfather and grandmother, mother, father and two sisters. Apart from the initial shock of learning of his death, they have each suffered profound ongoing emotional and psychological effects as a result of his loss. These effects have extended to the wider family which includes in particular a nine year old nephew who has twice tried to take his life in order to be with his uncle. All of these consequences are consistent with the understandable impact of the unexpected and sudden loss of a grandson, son, brother and uncle, particularly when the loss has occurred in such a violent and traumatic way.
The defendant is nearly 35 years old; 31 at the relevant times. He has some convictions for driving offences, some of which involved alcohol, and more significantly in 2016 he was convicted of two counts of summary assault, one of which resulted in a three month suspended term of imprisonment. His personal circumstances as described to me are as follows. He had a generally happy upbringing but his parents separated when he was a teenager, and at around age 15 he first had problems with his mental health in the form of depression, for which he was prescribed medication. He completed year 11 level, but left school during grade 12 and commenced a traineeship in building and construction. He later worked as an apprentice chef briefly and has worked for his father in his father’s furniture restoration business on and off for over a decade. He travelled interstate for a time getting work where he could. He first used alcohol and cannabis when he was a teenager and his cannabis use was fairly consistent between his mid-teenage years up until about April 2020. He completed a rehabilitation course for alcohol and drug use whilst interstate, and has had significant periods of abstinence. He returned to Tasmania in 2017 and the following year he obtained the housing rental accommodation in the units at Carbeen Street. From then, he has been a generally solitary character leading an isolated life, apart from weekly contact with his church and church members. He had greatly reduced his alcohol intake in the months before October 2020, however, but consumed intermittently, including on 9 October at the time of the assault on Mr Ayres. However, at the time of the homicide, he was not affected at all by alcohol or drugs, as was confirmed by blood testing.
To return to his mental health, he has persevered with depression and anxiety since the onset as a teenager. He has taken medication for depression intermittently, since. He has had episodes of suicidal ideation and self-harm along with two instances of overdosing on medication.
He has been admitted to a psychiatric facility on two occasions, first in 2017 and then again in 2018, when the main discharge diagnosis was a drug induced psychosis and major depression. In 2017 there had been some follow-up from Community Mental Health Services but none after the 2018 discharge. However, he remained engaged with drug and alcohol services for an initial assessment, and he continued with his anti-depressant medication and his anxiety medication. He understood that drug use had contributed to or exacerbated his mental health issues and he was conscious of reducing his drug use. Since April 2020 he seems to have done that, and he was working on his alcohol reduction. I note that he has been in custody in respect of the homicide since 13 October 2020; a period of three years and eight months. As a person on remand, he has not been able to have full access to educational, vocational or therapeutic programs but has been working in positions of trust in the prison. He attends the prison’s church on Sundays. In his time in custody he has experienced high lock-down rates, particularly during the COVID period and his contact with his parents is limited. He was prescribed anti-depressant medication when first remanded, but that has been gradually reduced and he is feeling better in terms of his anxiety and depression. When his liberty is available to him he hopes to return to work in his father’s furniture restoration business and continue to involve himself in church activities.
As to the offending, the defendant’s counsel explained the dynamics of the situation in the unit complex, and they are relevant. Unit 13 was the defendant’s unit and right next to Mr Ayres in unit 14. Visitors to Mr Ayres had to turn right past the defendant’s unit to get to Mr Ayres’s unit. Significant animosity had developed between the defendant and Mr Ayres, in the months leading up to 12 October 2020 before which they had had a reasonable relationship. which included Mr Ayres providing cannabis to the defendant when he first moved into the units. One particular incident gave rise to hostility between Mr Ayres and the defendant. In July or August 2020 the defendant was at Mr Ayres’s on a social occasion and was given a beer to drink. He experienced an unexpected reaction and had to leave after feeling strange and unsettled. His symptoms worsened such that he called his father for help and he was significantly distressed. The ambulance was called and the paramedics attended to him. He and his father concluded that his beer had been spiked. Police were contacted but the defendant did not pursue a complaint against Mr Ayres. He did ask Mr Ayres what had been in his drink but received no satisfactory explanation. After that, the relationship soured Mr Ayres was openly hostile and threatening towards the defendant. He believed Mr Ayres had influenced some of the other residents against him and he felt very much an outcast. He began, to notice a lot of noise when people went past his unit to visit Mr Ayres, such as yelling at him, banging on the shared wall between the two units. Mr Ayres’ regular visitor, N, had been verbally aggressive since the defendant had accused Mr Ayres of spiking his beer. He understood N to have been involved in violent situations in the past. Immediately before the assault, the defendant was talking to a friend on the telephone, and had been drinking some wine. He had become frustrated by the noise made by various people who regularly visited Mr Ayres’s unit in the recent weeks. At the time of the assault it seems that Mr Ayres had consumed a significant amount of beer. The defendant was still on the phone when Mr Ayres arrive and banged against the door with his walking stick. When the defendant came out, I am told that Mr Ayres held up the walking stick toward him, and he believed Mr Ayres was aggressive and that he was about to be struck. He moved out of reach but that was the catalyst that resulted in the scuffle between the two of them before the actual assault. The defendant accepts the particulars of the assault but it was his belief that Mr Ayres had brought the stick as a weapon, as he had not known Mr Ayres to have used a walking aid before.
As to the death of Mr Jones, I was told that when the defendant made his way into the kitchen, the lighting was very poor. He noticed and heard movement from behind the curtains and then he realised that somebody was coming through the window. He heard a person say “hello cunt” in a menacing manner and this person continued to attempt to enter. The defendant assumed that the person was armed and that he faced imminent attack. I was told that he was scared for his life. The draining rack was immediately in front of him on the sink where he stood, and he grabbed a knife from it and quickly stabbed it through the curtains and blind in a single motion and as an immediate reaction. He has no clear recollection of any thought in a decision-making process except that he felt compelled to defend himself. It was only after the call and while waiting for the police, apparently, that he looked at the blood on the knife and realised what must have occurred. Even when the police arrived, he was still hyper-vigilant to the extent he asked police if they could look around. He accepts, of course, that the intruder was not the person who had been threatening him earlier.
First, as to the assault, I am prepared to accept that there was some provocative conduct on the part of Mr Ayres, but that did not justify to any degree at all, the level of violence that was inflicted. All unlawful violence is unacceptable and this was an attack using fists when the victim was disadvantaged by the jumper over his head and then the use of a walking stick as a weapon. The victim required a short period of hospitalisation. I note the prior convictions for assault. As to the manslaughter, the taking of human life in circumstances of criminal liability is always a very serious matter. That said, the facts of manslaughter cases can vary greatly, giving rise to a wide range of sentences although prison is almost inevitably the outcome. This case is one of manslaughter by an intentional act, not by culpable negligence. Of course, given that it is a manslaughter charge, I must proceed on the basis that the defendant did not intend to cause death or bodily harm which he knew to be likely to cause death. The State’s case, and one accepted by the defendant, is that there was an intention to cause bodily harm, but the State accepts he was acting in self-defence. The State asserts the use of the knife was not a reasonable use of force in the circumstances as he perceived them to be, and hence not justified under the provisions of the Code. It is important to note that the response of person raising self-defence is assessed on the basis of the circumstances as they believed them to be. The State does not dispute the assertion that the defendant thought the deceased may have been holding something. The State accepts that the opportunity for the defendant to have thought about the consequences of his actions was very limited. This, it was said, is mainly due to the fact that the defendant was justifiably scared about further reprisals for the assault on his neighbour, threats having been recently made, and noting that the defendant was in bed when he was alerted to the person attempting to enter into his unit in the dark. The law recognises that the circumstances which entitle a person to act in self-defence are not conducive to the making of a cool, considered assessment of the amount of force which is appropriate. Action or behaviour often precedes full cognition. In this case, very plainly, the use of the knife to stab through the curtain and blind when the defendant could not see the person was a greatly excessive use of force. The knife was thrust through the lower left corner of the window coverings. It can be accepted that the defendant did not know of the precise area of the body to which the strike was made but it might well be said that although things happened very quickly and when in a heightened state of fear, it ought to have been apparent that such a thrust would connect with the head or upper body of someone bending forward to get through the window. Generally, I take into account the pleas of guilty. In relation to the plea to manslaughter, in strict terms this plea was not entered at the earliest opportunity. The plea of not guilty of murder but guilty of manslaughter could have been entered at any stage of the proceedings, but the real question is whether it was entered at the first reasonable opportunity. There is authority for the proposition that a clear indication of a plea in this type of situation may attract a degree of mitigation: Maybus v The Queen [2017] VSCA 125 at [38]. The issue is fact dependent. I was told that there was some discussion about a plea to manslaughter in mid to late 2023 when the trial listing was imminent, the State being told that the defendant would enter that plea if it were to be accepted in discharge of the indictment. I note that a lengthy crime scene report was not finalised until December 2023 and not disclosed until January this year. It seems then that a clear indication was given by the State that manslaughter would be accepted and the plea was confirmed by the defendant. A considerable period of time elapsed before discussions were started, during which preliminary proceedings were held. I take into account the fact of the plea being first raised when it was, but in the circumstances, it does not any carry great weight. In any event the plea has utilitarian value, and independently of the plea, I accept that the defendant is generally remorseful. As the State acknowledges, the defendant immediately took responsibility for his actions by contacting police and speaking to them as did. I was told that he has spent some time coming to terms with the gravity of having taken a human life, and that is a burden and a weight that he feels he will carry with him for the remainder of his life. As has been said many times, the permissible range of punishment for manslaughter is very wide. Ordinarily, sentences for the most serious forms of the crime fall within the range of eight to ten years. Given the circumstances of this case, I do not regard it as falling within that description, but it remains a case where there is a high degree of culpability. I accept that regard needs to be had to the lead up to the event. Of course, this includes discovery of the damage done to the unit and that after reporting that damage, the defendant was interviewed about the assault. That and the fatal event were all on the same night. Regard also needs to be had to the state of mind of the defendant at the time, primarily caused by the threats and abuse to which he was subject, to the fact that the deceased was unlawfully climbing in through his window in the early hours of the morning, and to the fact that the fatal act was committed in self-defence. The stabbing was a significantly disproportionate response, as I have noted. It involved the use of a very long knife and a thrust through the blind and curtain when the body of the deceased could not have been seen. The defendant is criminally liable for the taking of the life of another and for that, despite the circumstances, there ought be an appropriate sanction both as condemnation and punishment.
Mr Adams, I have set out the facts of each crime, your personal circumstances and the relevant considerations. I do not think I need to say any more. On the assault you are sentenced to three months’ imprisonment to commence on 12 October 2020. On the manslaughter charge you are sentenced to six years’ imprisonment to be served cumulatively to that first sentence. I order that you not be eligible for parole until you have served one half of that last sentence imposed; that is, the six years.