R v Conway

Supreme Court of NSW|2023-02-03|Before: Wilson J

JUDGMENT

HER HONOUR: If an example was needed to illustrate the pointless and destructive dangerousness of illicit drug use, the case before the Court today is it. On or about 8 March 2021 Christopher Ward died needlessly and violently for no better reason than that both he and his murderer, the offender Ian Conway, had been using and were badly affected by drugs. Mr Conway stood trial for the murder of Mr Ward from 31 October 2022 to 11 November 2022 before this Court sitting at Newcastle. A verdict of guilty was returned against him by the jury on the last day of proceedings. He appears today to be sentenced for his crime.
Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum sentence of life imprisonment and, in the circumstances of this case, a standard non parole period of 20 years' imprisonment applies; these are the statutory guideposts to which the Court must have regard in determining sentence.

The Impact of the Crime

The Court was grateful to receive a victim impact statement from Carl Ward, Christopher's brother. Carl Ward described the devastation experienced by his family following the violent death of Christopher. Carl described the heartbreak and distress experienced by him, his father, his sister and extended family. He believes that the despair felt by his sister over her brother's death contributed to her later suicide and to a deep depression into which his father fell. The whole family has been left terribly affected by Christopher's death. The entire community is adversely affected by the violent death of a citizen, and the ongoing pain and loss to the Ward family evidences the harm done to the community more broadly by this crime. The Court extends its sympathies to the Ward family.

The Gravity of the Crime

It is necessary to identify those facts, matters and circumstances that determine the gravity of the crime. [1] It is not necessary to categorise the seriousness of the crime by reference to a range and I do not propose to do so. [2] As I have already observed, I am satisfied that, in stabbing Mr Ward, Mr Conway intended to do him really serious injury at least for a fleeting moment. I accept that he did not intend to kill him and he was, in all likelihood, deeply shocked by the level of severity of the injury that he inflicted.
This was not a crime borne of any longstanding malice or ill will or of some dispute. The act leading to death was that of plunging a hunting knife into Mr Ward's abdomen using what is an offensive and potentially lethal weapon. The act was carried out entirely spontaneously with little thought and no planning. As I said at the outset, it was a crime that would not have happened but for the offender's state of intoxication.
Whilst the use of a weapon elevates the gravity of the offence to a degree, other features lessen it. The offence was spontaneous, of very brief duration, it consisted of a single forward movement, and it was accompanied by a briefly held intention borne of passing irritation and anger. The sentence to be imposed must reflect those circumstances.

The Offender's Criminal History

The offender has a long history of entries in his criminal record reflecting encounters with the criminal justice system. His criminal history is before the Court as exhibit ("Ex") SA2 and the details of a number of the entries it contains may largely be found in Ex SA4. The Court regards the offender's criminal history as disentitling him to the full measure of leniency that might otherwise have been extended to him, but it is not an aggravating feature.
The offender was first before a court as a child of about 17 years of age for dishonesty and drug offences committed as a 16-year-old. His criminal history continued thereafter with relatively regular entries for breaking, entering and stealing and other property crime, suggestive of an individual stealing to support a drug habit and lifestyle.
Mr Conway has some entries for offences of violence, such as an entry for assaulting police in 2002 and another of assault occasioning actual bodily harm from 2015, but his record is principally indicative of dishonesty. He has some weapons convictions, which are troubling, but they seem to be relatively isolated offences. When paroled in the past after serving gaol sentences from time to time it is clear the offender struggled and he was not infrequently reincarcerated for breaching parole. His record, by and large, is that typical of a drug addict and the Court has considered it in the way that I have indicated.

Parity

Some material was placed before the Court relating to the potential issue of parity. It refers to the proceedings against the offender's wife, Ms Coghlan, who was charged with and sentenced for her part in hindering the discovery of evidence of the offender's crime. I have had regard to that material, but I do not regard the principle of parity as of particular relevance in this instance. Ms Coghlan's crime followed that of her husband and is very different in nature and degree to that of the offender. They are not co-offenders.

The Subjective Case

The Court has heard oral evidence from Mr Conway and been provided with a report from a forensic psychiatrist, Dr Olav Nielssen, and a letter from the offender's mother, Ms Clothier. Ms Clothier has attended court today in support of her son.
The offender was born in February 1975, and he is now only a matter of some days short of his 48th birthday. In his evidence to the Court this morning Mr Conway told the Court that he was deeply sorry for what he did on 7 March 2021. He said he thinks about Mr Ward, who was his friend, every day and every night when he lays down to sleep. He would, if he could, take back his actions. Sadly, that course is not open to him and, as Mr Conway said, he can but apologise for his conduct and, recognising the link between his drug use and the commission of the crime, resolve to do better in the future.
The offender confirmed in his evidence the truth of the history he gave to Dr Nielssen when he spoke with the doctor on 14 December 2022. His history is, largely, a very sad one. His parents separated when he was six or seven years old and the offender had very little contact with his father thereafter. His mother remarried and, although there is no suggestion of abuse or deprivation in the family home, the offender struggled with the loss of his natural father and the changes in his family life.
By his mid-teens, the offender's behaviour at home was such that he left home. For some years after leaving home at the age of 15, the offender lived on the streets. An entry in his criminal history for offences of March 1993 broadly confirms the offender's account of a life spent on the streets. At page 30 of Ex SA4, there is a record of the offender telling arresting police officers that he had been squatting on Lee Wharf with other street kids who spent most of their time drinking and taking drugs. The offender's drug use commenced in those years.
The offender married about 20 years ago and he enjoyed a generally supportive relationship with his wife until her untimely death during the course of his trial last year from cancer. Mr Conway and his wife have two children; a son who is presently in custody, it seems serving a sentence, and a much younger boy who was removed from the couple's care at some stage prior to Mr Ward's murder, evidently because of the offender's and Mrs Coghlan's drug abuse.
That short history summarises much personal grief.
The offender believes that he has suffered from anxiety for much of his life, perhaps attributable in part to the serious abuse he says he suffered as a child in what he described as "boys' homes", now generally known as juvenile detention centres. That abuse, the offender's anxiety, his life on the streets, all led to an entrenched and very long-term drug addiction, commencing with cannabis and heroin use at age 15. Although the offender says he has had some periods of abstinence from drugs, he has always relapsed and returned to drug use.
He said in evidence this morning that "the drug blacked it out" - "it" being his sad history - but also that it got him into trouble. Almost 30 years of participation in the methadone programme has not, it seems, altered that pattern. Dr Nielssen regards the offender's drug use as a highly significant feature in the offender's life. He has diagnosed the offender as having a substance use disorder in partial remission, probably with some past related drug psychosis, also now in remission in custody. Dr Nielssen said: "The diagnosis of a substance use disorder was made from the history of abuse of heroin, cannabis, methamphetamine and benzodiazepine medication, all of which are known to have harmful psychological effects. The complications of substance abuse include the effect on the offender's physical health, including repeated infections with hepatitis C and tooth decay from long term treatment with methadone. The psychological complications include possible hypoxic brain injuries from as many as five opioid overdoses requiring resuscitation and episodes of psychosis related to the use of methamphetamine. The social complications of long-term drug addiction include the many years in prison for drug related offences and his poor social performance when compared to his potential. The offender's substance use disorder would appear to be in relative remission because of the absence of any recent substance related charges and his treatment with opioid replacement medication at a higher dose than prior to his arrest" (Ex S1).
The offender's mother, Ms Clothier, sees her son's drug use as having been very destructive of the offender's great potential, taking him from a boy that she described as intelligent, artistic, and sporty to a damaged drug user.
Drug use is not a feature that mitigates crime in most circumstances. It does not do so in this instance, but it does inform and explain how Mr Conway came to be where he is today. It is argued by counsel for the offender that "Bugmy features", being a reference to the High Court decision of Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 operate in this case. Certainly, the circumstances of the offender's mid to late teenage years are highly relevant to explain the offender's overall lifestyle.
The Court accepts that these circumstances and particularly, childhood sexual abuse and a life lived on the streets, do mitigate somewhat the offender's moral responsibility for this crime. He began using drugs as a child without parental support or guidance. He accelerated his drug use to escape the psychological trauma of abuse and so became entrenched in destructive drug use. Crime is an almost inevitable corollary of illicit drug use. Mr Conway has not had the opportunities of an individual from a stable well supported background and his unstable background has contributed to the offender's criminal lifestyle.
The Court accepts that the offender is remorseful. He gave evidence of his deep and sincere regret for Mr Ward's murder and the loss of his friend for what he described to his mother as "a stupid terrible thing gone wrong". He clearly has a degree of insight into the role of his drug use in the commission of that murder. Having such insight, the Court accepts also that the offender is well motivated to rehabilitate himself from drug use. He remains on an opioid replacement programme in custody at, Dr Nielssen noted, a higher and apparently more appropriate dose than was administered to him in the community.
The offender deposed that he has not used illicit drugs since entering custody. His healthier appearance - vastly to be contrasted with his appearance in Ex J, a recording made on 9 March 2021 - points to the truthfulness of that evidence, which is not, in any event, challenged by the Crown. No doubt the consequences of drug use on 7 March 2021 have informed Mr Conway's determination to remain drug free. Not only has the offender seen his friend Mr Ward die at his hand and found himself incarcerated for Mr Ward's murder, he has lost the chance of being with his wife at her deathbed, or of regaining custody of his young son.
Both are personal tragedies of great magnitude and whilst neither can amount to extra-curial punishment or anything like it, these are losses beyond that suffered by many offenders and the Court has had regard to them in fixing the sentence to be imposed today. It may be that the offender can turn his insight into the connection between his drug use and a lifestyle of crime and its resulting misery into future rehabilitation. However, as the Crown pointed out, the offender has been motivated to abstain from drug use in the past without being able to translate that motivation into permanent abstinence.
Whilst the Court accepts the genuine nature of the offender's intentions to better himself, his future prospects can only be considered, in my assessment, as guarded. They are entirely in Mr Conway's hands.

Special Circumstances?

In determining the sentence to be imposed, the Court has given consideration to whether a finding of special circumstances should be made in the offender's favour. Such a finding is not a mechanism by which to impose a lower sentence on an offender. It is a means of imposing a longer period of supervision on parole. Whilst there is no doubt Mr Conway will require and would benefit from considerable support and assistance on his release from custody, the parole period that will flow from the ordinary application of statute will be sufficient for that purpose in my judgment. The offender will either make the most of the support of services made available to him on his release to parole and move permanently away from addiction and crime, or not. An even lengthier period of parole will not, in my conclusion, make any real difference to that outcome.
Those features that could have supported a finding of special circumstances have been given full weight in fixing the sentence imposed.

Sentence

The offender, having been convicted of the murder of Christopher Ward, is sentenced to a term of 16 years imprisonment to date from 16 March 2021. The head sentence will expire on 15 March 2037. The Court fixes a non-parole period of 12 years which will expire on 15 March 2033. The earliest date upon which Mr Conway will be eligible for release to parole is 15 March 2033.

Endnotes

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29].
FL v R [2020] NSWCCA 114 at [59]-[60]. 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: 08 February 2023

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