R v Andrew Thomas Maclurcan

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: On 24 July 2003 Andrew Thomas Maclurcan (the offender) pleaded guilty to the manslaughter of Phillip Mitton. He had originally been charged with his murder. The Crown indicated that the plea was accepted on the basis that it was an unlawful and dangerous act on the part of the offender which caused Mr Mitton's death. The offender has been in continuous custody since his arrest on 9 April 2002. 2 I have been provided with a Statement of Facts which, it is agreed, encapsulates the relevant factual material upon which I should proceed to sentence the offender. It is in the following terms: The offender has known the deceased, Phillip Mitton, for approximately eight years and has previously resided with him at a number of addresses as flatmates. In the afternoon of Sunday 7th April 2002 the offender attended the deceased's address at 7/17 Nicholson Street Crows Nest. The deceased was residing at that address with Anthony Robert Drummond Dick and Peter Hinchley. The offender is known to all three persons through his association with the deceased. Upon attending the deceased's address on that afternoon the offender appeared to be agitated and aggressive. On Monday the 8th April, 2002 the offender again attended the address of the deceased. He attended and left the unit on a number of occasions throughout the day. He again appeared to be agitated and aggressive towards the occupants of the unit. He left and returned to the unit about 5 pm on that day. Whilst at the unit the offender had an argument with the deceased. During this argument the offender and the deceased and Dick were involved in a struggle. Dick then asked the offender to leave the unit. Dick was seated on a couch located in the lounge room of the unit. The offender reached over and grabbed Dick on the testicles. He then punched him with a closed fist to the head several times. The deceased intervened and the offender left the unit a short time later. About 3am on Tuesday the 9th April, 2002 the offender returned to the deceased's unit. He stood outside the unit swearing loudly and demanding an apology from Dick. After a couple of minutes the deceased went outside the unit in an attempt to calm the offender down. An argument has then developed between the deceased and the offender. During this argument the offender has struck the deceased with a closed fist to the face and head. The deceased fell unconscious to the ground and in doing this his head struck the concrete. The offender then left the area and the deceased was attended to by Dick and Hinchley. An ambulance was called to the unit and the deceased was conveyed to the Royal North Shore hospital. The deceased failed to regain consciousness. He was pronounced dead at 7.13am on 10 April 2002 and the cause of death was found to be a blunt force head injury. Once the offender left the area he walked along Falcon Street and Military Road to Maisy's Café located on Military Road, Neutral Bay. At 4.10am Police attended the café and spoke to the offender. He was then conveyed to the North Sydney Police Station and placed into custody. 3 Although I have not been provided with the details of the conversation between the offender and the police, the Crown informed me that the offender acknowledged his responsibility for this offence right from the outset. 4 The offender requests that I take into account when sentencing him, an offence of common assault, which appears on a Form 1 document. The offence arose from his punching Mr Dick, a matter to which reference was made in the Statement of Facts. 5 The offender has a minor criminal record which, for present purposes, I am prepared to place to one side. It consists of a conviction for possessing Indian hemp in 1983 for which he was fined $100, two convictions in 1979 and 1991 for driving with more than the prescribed concentration of alcohol in his blood and two other traffic matters which were clearly regarded, by reason of the penalties imposed, as being very minor. 6 No Victim Impact Statement has been tendered by the Crown. The known relatives of the deceased have been contacted by the Crown but have not, I am informed, displayed any overt interest in the proceedings. Nevertheless it is appropriate that I communicate the Court's sympathy to those who have been affected by his death in such unfortunate circumstances. 7 It is of considerable significance that the offender committed this offence at a time when he was suffering from a mental illness. The evidence supporting that conclusion is derived in part from the descriptions of his behaviour which appear in the statements of Peter Hinchley and Anthony Dick which were tendered by the Crown. Mr Dick, for example, described him as being "very manic" at the time. Mr Dick went on to say that "[h]e was totally off the planet, in that he was totally erratic in his behaviour. He was very agitated and was pacing up and down the unit." He was also observed to have had no fewer than five showers within a two hour period. 8 The offender also has a history of mental illness. He first saw Dr Fisher, who is a consultant psychiatrist, in 1987. He remained his patient until July 2001 and thereafter he was in the care of Bloomfield Hospital at Orange. The offender has been diagnosed as suffering from Bipolar Affective Disorder which has "rapid cycling manic and depressive phases". Dr Fisher reports that the offender had his first hypomanic attack in 1981 at which time he was admitted to Bloomfield Hospital. He has subsequently been admitted to the Northside Clinic on five occasions following hypomanic episodes. He has twice had scheduled admissions to Royal North Shore Hospital and on three occasions to Gladesville Macquarie Hospital. On each occasion it was by reason of his hypomanic illness. 9 Dr Fisher made the following observations of the state of the offender's mental condition during the time when he was his patient: As I have observed him he has frequently experienced significant environmental events preceding the development of hypomanic episodes, for example, getting excited about a prospective property development deal or the sale of a property. There has been a steady deterioration in Mr Maclurcan's occupational and social functioning, such that he went from being one of Australia's top performing real estate salesmen to a state of impoverishment and dependence upon Social Security and financial assistance from family and friends. Mt Maclurcan has been treated with a variety of psychotropic medications including lithium, Tegretol, Modecate, chlorpromazine, Prozac, Epilim, Haloperidol, Cogentin, Temazepam and Clonazepam. There has been intermittent alcohol and marijuana abuse but I am not aware of him consuming any other recreational drugs. He has not, to my knowledge, had any major medical problems over the years. By nature he has tended to be fairly goal directed, happy, gregarious and often very considerate in his approach to other people. He has a very strong attachment to his parents and family but as his illness took its toll he felt increasingly that he was a disappointment to his father and beneath the surface, and particularly during depressive episodes, felt a failure. Friendships had often been damaged by his behaviour during hypomanic episodes when he would become domineering and demanding, however I am not aware of him having been involved in physical altercations up until the incident which led to his incarceration. 10 Dr Fisher makes reference to the illness of the offender's father which was protracted. He eventually died in January 2002. The offender is devoted to his mother who now lives alone in Orange. He intends to live with her upon his release from gaol. She gave evidence before me and informed me that her son had spent much of his adult life living with her. It would appear that he became manic following his father's death. It was during that period that he was admitted to Bloomfield Hospital. He apparently took medication to curb his depression at the time but his mother believes that he may have reacted adversely to it because it contained a stimulant. 11 In any event, she gave evidence that as at April 2002 the offender was subject to a Community Treatment Order. He was at the time regularly seeing the Community Health team in Orange, with whom he apparently enjoyed a good relationship. The offender was discharged from that order a few days before the fatal incident. He was evidently elated at this turn of events, as he felt that he had been unjustly treated in being made the subject of it in the first place. 12 Shortly thereafter, the offender travelled to Sydney with his mother in order to attend a family function. It was apparent that he was not taking his medication at the time. She described his behaviour at the function as being very bizarre. It was the most manic condition in which she had seen him. He then insisted, whilst in that condition, upon visiting his friend, whom I understand to be a reference to the deceased. This description of his behaviour is consistent with the observations which were provided by Mr Hinchley and Mr Dick. His mother said that although he suffers from bipolar disorder, he is in the main quite well and remains so for long periods of time. She has never known or observed him to be violent. She describes him as being only a moderate drinker. 13 The offender is now aged 49 having been born on 29 June 1954. He grew up in a loving family which consisted of his parents and three siblings. He attended St Ignatius' College, Riverview, where he excelled at various sports. He captained the First XV rugby team which was the champion side of the GPS competition in his final year. He also apparently did well academically and attended university for a couple of years before deciding to enter the workforce. For a number of years he operated a ski shop. Thereafter he worked in the real estate industry with considerable success. Indeed he was described in the press as being "a prestige apartment specialist" because of the record price which he had negotiated for the sale of an apartment. In an obituary in the Sydney Morning Herald following the death of Dino Burattini, who was described as an "architect of vision", the following extract appears: The last project that he was working on, with property expert Andrew Maclurcan, was the creation of a retail walkway directly beneath the roadway of the Sydney Harbour Bridge. The idea was to develop the second layer that runs under the road on the bridge into a shopping area. The cash from the retailers would be enough to negate the bridge toll. Burattini died before the idea was formalised, although Maclurcan is proceeding in discussions with financiers. 14 I have received a number of testimonials from people who express themselves in most enthusiastic terms about the offender's personal qualities. Several people who have known the offender for a lengthy period of time, and are thus well placed to make such an assessment, have said that the offence of which he has been convicted, is totally out of character for the man whom they know. For example, Ms Pauline Doherty, who has known him for forty years described him as "a gentle non-aggressive personable young man". He is also described as being "warm and compassionate" and as being an "intelligent and caring person". It is to his credit that he retains the support of his family and friends who have remained steadfast notwithstanding this offence. He, in turn, provided great support to his mother after his father was diagnosed with a terminal illness and indeed moved back to Orange in order to assist her in providing nursing care to him during that period. 15 Whilst he has been in custody, the offender has been seen on a regular basis by Dr Jennifer Thompson, who is a consultant psychiatrist. She has provided a report in which she says that "since arriving in prison his mental state has improved greatly. He was floridly psychotic when first seen by me". She says that he is presently well stabilised having had consistent medication for more than twelve months. Dr Thompson concludes that "provided he continues with regular medication and supervision, he does not constitute a danger to others or to himself, at this time. He is on medication which can be monitored by a blood test, and I suggest that a serum valproate level be done randomly, about weekly." Dr Thompson also reports that the offender now has a greater awareness of problems which can arise from his changing his medication. He has indicated to her that he will not do so in the future. 16 Dr Fisher made the following suggestions as to what could be done to ensure that the offender continued to take his medication. He said: I believe that measures can be taken to increase the probability of compliance and these include the use of depot medications, such as Haldol depot and Modecate depot, which ensures that the major tranquilising drugs are in the body and the injections are given on a regular basis, usually between 2-4 weeks. If the major tranquillisers are not deemed to be appropriate, by virtue of not being effective or causing excessive side effects, then regular enough monitoring of lithium levels or sodium valproate levels through blood tests combined with regular outpatient appointments at a weekly, two weekly or monthly frequency, and if he is under the care of a community psychiatry team, frequent enough home visits, can all reduce the risk that the patient will be non-compliant and experience swings in mood in either direction. 17 Lynnda Livesey, who is with Community Mental Health Services in Orange, indicated in a letter that her organisation could assist the offender upon his release to parole. She says that: If blood testing is required for determining blood levels of his medication the pathology can be ordered by his G.P. We do not conduct blood tests at this centre. We are happy to access these levels and discuss them with our Consultant Psychiatrist. Such tests are usually undertaken on a three monthly basis but this may not be sufficient for your purposes. If need be, it could be done on a monthly or fortnightly basis. Epilim is the only such medication that Mr Maclurcan is currently taking that could be tested in such a manner. In relation to the Zyprexa, an assessment of Mr Maclurcan's mental state is more likely to reveal his compliance. We would be able to assess Mr Maclurcan's mental state on a regular basis. Weekly would be adequate if he was having his medication supervised by his mother. 18 It may be observed that the offender's mother told me that she was prepared to monitor her son's compliance with his medication. 19 There is a well established line of authority to the effect that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor often to be given little weight because such an offender is not an appropriate medium for making an example of to others. See R v Scognamiglio (1991) 56 A Crim R 81 at 86; R v Letteri (CCA unrep. 18 March 1992). Nevertheless considerations of general deterrence are not thereby rendered irrelevant. See R v Wright (1997) 93 A Crim R 48; R v Engert (1996) 84 A Crim R 67. Nevertheless, in the circumstances of the present case, I am prepared to proceed upon the basis that considerations of deterrence and retribution have a clearly reduced significance, particularly given the clear nexus which exists between the offender's mental condition and the offence which he committed. 20 It is also necessary to have regard to an issue which sometimes assumes importance in cases such as this, namely the prospect of future dangerousness which an offender poses to the community and from which it must be protected. It is clear of course that a sentence should not be increased beyond what is otherwise appropriate in order to merely extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v The Queen (1979) 143 CLR 458. A sentence should be proportionate to the gravity of the offence although it is legitimate to take account of a person's history when it shows, amongst other things, a dangerous propensity: Veen v The Queen (No2) (1987-88) 164 CLR 465. There is nothing in this offender's previous history which would suggest such a propensity. Veen (No2) also makes it clear that the "consideration of the danger to society cannot lead to the imposition of a more severe sentence than would have been imposed if the offender had not suffered from a mental abnormality" (at 477). 21 I remind myself that I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. The plea of guilty was entered, as I have said, on 24 July 2003. In those circumstances, I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. That section, which is in the following terms, commenced operation on 1 February 2003: 3A . The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 22 I must also, in determining the appropriate sentence, have regard to the aggravating and mitigating factors which are set out in s 21A of that Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred and given due weight to the matters which I regard as being of particular relevance. 23 It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. In the case of manslaughter it is imprisonment for 25 years. See s 24 of the Crimes Act 1900. 24 Furthermore I must have regard to the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be punished. See R v Troja (CCA unrep. 16 July 1991 at 2); R v McDonald (CCA unrep. 12 December 1995). In R v Hill (1980) 3 A Crim R 397, Street CJ said: It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 401) 25 It is submitted on behalf of the offender that the objective gravity of the offence is diminished by reason of the fact that Mr Mitton's death was occasioned by a single blow, albeit one with tragic consequences, which appears to have been a spontaneous gesture as opposed to a premeditated act, by a person who was suffering from a mental illness. 26 There are a number of matters upon which the offender is entitled to rely in order to ameliorate the otherwise appropriate penalty. First, he has pleaded guilty. It is common ground that he did so at the first opportunity reasonably available to him to do so. Indeed he did so many months before his trial was listed to commence and immediately upon being informed that the Crown would accept a plea to manslaughter. In doing so, he has "facilitated the course of justice". See R v Cameron (2002) 187 ALR 65 and s 22 Crimes (Sentencing Procedure) Act 1999. The plea of guilty is also some evidence of contrition on the part of the offender. In the circumstances I intend to allow a discount for the plea of guilty at the top of the range indicated by the Court of Criminal Appeal in R v Thomson & Houlton (2000) 49 NSWLR 383. Secondly, the offender has no previous convictions that are of any significance to these proceedings. Thirdly, he is a person who is otherwise of demonstrably good character. Fourthly, he was not fully aware at the time of the offence of the consequences of his actions by reason of his being in a manic phase of his mental illness. Fifthly, I am prepared to find that the offender has good prospects of rehabilitation. Furthermore the chances are that he is unlikely to re-offend, particularly if he strictly complies with the requirement for him to take appropriate medication. I am fortified in that view by the fact that he has reached an age of considerable maturity without having previously exhibited violent propensities despite having suffered, for more than twenty years, from a mental illness. His positive response to treatment whilst in custody also augurs well for the future. 27 I accept that those factors, particularly when taken in combination, enable the offender to make out a legitimate claim for a significant degree of leniency. They also entitle the offender to a finding, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, of "special circumstances". Not only is this the offender's first term of imprisonment but he will need and indeed will benefit, as will the community, from an extended period of supervision upon his release from custody. The Crown did not submit that it was not open to me to make such a finding. 28 Having had due regard to those favourable subjective factors and to the fact that the objective gravity of this offence is ameliorated by the matters to which I earlier referred, I accept the submission made on the offender's behalf that a sentence towards the bottom end of the range for an offence of this kind would not be inappropriate. In that respect I acknowledge the Crown's concession that such an approach was properly open to me. I have also had my attention drawn to a number of authorities. The case from which I have derived the greatest assistance is R v Quinn (Supreme Court unreported, 28 April 1995 per Abadee J) which, like the present matter, was an offence involving manslaughter by reason of an unlawful and dangerous act committed by an offender who was at the time suffering from a mental illness. The effective head sentence in that case was about three years and six months with a non-parole period a little under fourteen months. The Crown informs me that despite exhaustive researches having been conducted within the Office of the Director of Public Prosecutions, no other case of a comparable nature can be located. I am informed, in those circumstances, that a sentence in the present case which is of a similar duration to that imposed in Quinn would not be inappropriate. 29 Nevertheless it is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act. The case involves the death of a man following a forceful blow to his head. Nothing less than a custodial sentence of some length can thus be countenanced.

Sentence 30 For the crime of manslaughter, and taking into account the matter on the Form 1, I sentence the offender to a term of 3 years imprisonment to commence on 9 April 2002 and to expire on 8 April 2005 with a non-parole period of 17 months to commence on 9 April 2002 and to expire on 8 September 2003 upon which date he will be released on parole upon conditions. Those conditions are as follows:

1 That within seven days of the offender's release to parole he report to the Director of the Curran Centre at Orange.

2 That the offender undertake any medical treatment, including any psychiatric treatment, as directed by the Director of the Curran Centre, and that the offender attend any medical or psychiatric appointment specified in the course of such treatment.

3 That the offender abide by any conditions specified by the Director of the Curran Centre or any medical practitioner treating the offender in the course of treatment, and that he agree to take any medication that may be prescribed by any medical practitioner from time to time.

4 That the offender agree to co-operate in the taking of regular blood or other samples for testing as required by the Director of the Curran Centre or any medical practitioner who may be treating him from time to time.

5 That to facilitate such testing the offender attend a medical practitioner or such other place as the Director of the Curran Centre might specify.

6 That such testing take place on a monthly basis or such other frequency as directed by his treating psychiatrist at the time.

7 That during the currency of the parole period the offender be supervised by an officer of the Probation and Parole Service at Orange.

8 That the offender agree to follow any direction of such officer.

9 That the test results from any blood or other testing be forwarded to the Director of the Curran Centre and officer of the Probation and Parole Service.

10 That the offender report to the officer of the Probation and Parole Service at Orange within seven days of his release to parole. 31 Finally I would like to record my indebtedness to both the Crown and Ms Flannery for their commendable efforts in providing assistance to me in this matter. **********

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