R v Early

Supreme Court of NSW|2023-09-29|Before: Yehia J, Slattery AJ, Hunt CJ, Wood J, Badgery-Parker J

Background

The offender's background is before me primarily by way of a report prepared by Dr Olav Nielssen, psychiatrist, dated 12 September 2023, and a character reference prepared by John Mitchell. The contents of those documents can be summarised as follows.
The offender is now 77 years old. He grew up on the Northern Beaches, at Frenches Forrest and North Curl Curl. He is the second child of his parents' six children and had three younger half siblings.
Two of his brothers were gay, including his half-brother who died by suicide. The offender does not have a close relationship with his siblings. His father was in the Navy, and later worked as a plasterer. His mother did not work. He changed his surname from his father's name, Sutton, to his maternal grandmother's name Early "to get away from the family dramas". He attended Manly Public School, Manly Boys High School, and played rugby league. Whilst living in Perth, he enjoyed boxing training and going to the gym.

Relationship History

The offender has not been in any stable long term relationship. He has no children. He reported that he has been "bisexual for many years" and had casual relationships with men. He dated women when he was younger, but the relationships never lasted very long.
In providing his history to Dr Nielssen, the offender said: "Maybe I have some sort of anger about being gay…I was molested at boys homes and raped a couple of times in gaols".

History of Substance Use

From early adolescence, the offender started binge drinking and intermittently using cannabis. He reported that he was always a heavy drinker, but not an alcoholic. He experimented with drugs, including amphetamine and hallucinogens, but was never a regular user. His cannabis use in recent years had declined as he substituted it with alcohol. He has not engaged in any drug rehabilitation or counselling. The offender reported that he liked to drink "but it does get me in trouble". Some decades ago, he was charged with offences of assault and stealing, as well as two matters of driving whilst under the influence of alcohol. He did not report any abuse of medication and prescribed sedatives.

Medical and Psychiatric History

The offender experiences some back pain, occasional angina pain and bowel issues, which include bleeding from the bowel and difficulties urinating on occasion. He has been prescribed medication for his prostate. He has not reported any serious head injuries or lasting impairment in mental function. While boxing training resulted in him experiencing several blows to his head and loss of consciousness, he did not report any strokes, seizures, or other neurological events.
While I accept that the offender has some medical issues, they are being treated with medication. There is no evidence that the medical issues operate to make his time in custody more onerous. I accept, however, that the offender's age, and what will inevitably be increasing frailty, will make the conditions in custody more onerous for him. The offender's advanced age is a relevant consideration particularly in relation to the setting of the non-parole period: see R v Holyoak (1995) 82 A Crim R 502 at [507]-[508]; R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 at [81]-[85]; R v RLP [2009] VSCA 271; (2009) 213 A Crim R 461 at [39].
The offender reported a strong family history of mental illness. His father, as well as his younger half-brother and a nephew died by suicide. His father's death deeply impacted him, and he still misses him. Following his father's death, he became "unstable", and his mother was not able to control him. He began stealing and having behavioural issues at school.
The offender was the victim of sexual abuse by older boys at numerous boys homes, namely, Mount Penang, Daruk, Yasmar and the Charlton Boys Home in Glebe. He has no recollection of speaking to any counsellors or taking any medication and reported that "it was such a long time ago". He went to prison for the first time at the age of 18 and was raped. The offender cannot recall when he started taking antidepressants and medication for anxiety but has been on medication of that type for some time.
The offender's state of mind in the 1980s was described by him to Dr Nielssen as "very lonely and depressed". He reported being "mixed up with a group of youths and smoking pot". In 1990, he made the decision to go to Frank Houston's church and "[give his] life to the Lord". However, he eventually "went off the rails" and moved to Victoria.
Before his arrest, he had been living in Victoria for 20 years and did not come under the notice of police. He was managing a boarding house near Monash University, where he also lived. John Mitchell, the owner of the men's boarding house, has provided a reference in which he states that the offender showed "good character" and was "able to handle difficult residents". Mr Mitchell states that he does not recall any incidents which ended badly with the offender and has kept the offender's accommodation and his job if his situation changes.
Justice Health Records reveal that the offender was treated for depression in Junee Correctional Centre between August and November 2021. His medication at that time was 300 milligrams of Venlafaxine a day.
In prison, he has been prescribed mood stabilisers, namely, Lithium and Xanax. He is currently taking medication for his anxiety, being 300 milligrams of Venlafaxine in the morning and 30 milligrams of Mirtazapine (Avanza) at night.
The offender reported a suicide attempt around the time of his trial. He was admitted for treatment of severe lacerations to his wrists to St Vincent's Hospital for a period of 3 days. As a result, he was held in an observation cell and spent months in the prison hospital before being transferred to Goulburn.
From 22 December 2022 to 7 April 2023, he was admitted to the psychiatric ward at Long Bay Hospital and was described as having a chronic risk of suicide. After his suicide attempt, he was housed in the prison hospital for treatment of lacerations to both wrists.
The offender reported that he remains very anxious, constantly tired, believes his memory is deteriorating, and has lost excessive weight since entering custody. His underlying mood is described as depressed and anxious, and he continues to have suicidal thoughts. He continues to be treated with Venlafaxine by psychologists and doctors whilst in custody. The offender has not reported any other admissions to any psychiatric hospitals.
Dr Nielssen diagnosed the offender as suffering from a depressive illness in partial remission, and a substance use disorder in long-term remission. I do not find a nexus between the offender's mental conditions and the commission of the offence. However, I take into account the evidence relating to his mental health as part of his subjective case, that subjective case being relevant to the determination of a proportionate sentence.
I am satisfied that the offender's background, which includes the fact that he was a victim of sexual assault, reduces his moral culpability to some degree.
I have taken into account the hardship in custody for the offender arising from his advanced age and the knowledge that, having regard to the term of imprisonment that I will impose, there is a real chance that he will die in custody.

Prospects of Rehabilitation and Likelihood of Reoffending

The offender continues to deny his involvement in the murder. He has shown no remorse whatsoever. The offender has a criminal history in New South Wales, the last offending was in 1991. His New South Wales criminal history contains a number of convictions including for rape in 1977, committing an act of indecency in 1988, and an aggravated act of indecency in 1991. There is no evidence of criminal activity since approximately 1991 in New South Wales. He has one matter on his Victorian criminal history report which is described as recklessly causing injury. He was dealt with by way of a $200 fine and no conviction. The penalty imposed reflects what must have been a fairly trivial offence. I am prepared to proceed upon the basis that he has had no relevant offending conduct since 1991, a period of approximately 32 years.
It is difficult to assess with any precision the offender's prospects of rehabilitation and likelihood or unlikelihood of reoffending. On the one hand, the offender engaged in serious violent conduct causing the death of another human being, motivated by a hatred for and prejudice against homosexual men. He has exhibited no remorse.
On the other hand, his criminal record demonstrates the absence of any relevant offending in the past 32 years.
I find that he has some prospects of rehabilitation and is unlikely to reoffend. In reality, the offender will spend a significant period of the life left to him in gaol.

Purposes of Sentencing

Personal deterrence is a consideration of little relevance having regard to my findings with respect to the offender's future prospects and the fact that he will spend many years in custody. General deterrence, denunciation and punishment are, however, weighty considerations given the serious nature of the offence. The offender must also be held to account for his violent actions.
The sentence I impose must reflect the abhorrence with which the Court views violent acts motivated by an offender's hatred and prejudice against another individual for no other reason than that person's sexuality or perceived sexuality. I repeat, there is no place for such hatred and prejudice in a civilised society.

Sentencing for Historical Offences

Section 21B(1) of the CSPA requires that a court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing. This applies to proceedings commenced after the introduction of the amendments, namely on 18 October 2022. The prosecution against this offender commenced during 2021, therefore he must be sentenced according to the sentencing practices at the time of the offence: see R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129; R v Katsis [2018] NSWCCA 9 at [38], [74]-[75] and [91].
The sentencing practices for the offence of murder during the 1980s and 1990s establish that the sentences that were imposed for murder in the 1980s and 1990s were lower than the sentences imposed now. In R v White [2022] NSWSC 525 Wilson J held at [137]-[138]: "By law, the Court is required to sentence the offender in accordance with patterns of sentencing that applied at about the time of the offence, insofar as any pattern can be determined. Although a 'pattern' is difficult to determine with any precision, it can be said with confidence that effective sentences for murder handed down in the late nineteen eighties and early nineteen nineties were on average lower than they are presently: R v Afu; R v Caleo (No 17) [2018] NSWSC 1127 at [100]; R v Adams (No 7) [2017] NSWSC 179. The sentencing regime was different to the present regime, and calculations concerning parole operated in a different way, and more favourably to prisoners than is presently the case."
In R v White [2023] NSWSC 611, Beech-Jones CJ at CL noted at [77]: "A burden of persuasion rests upon the party who asserts that there has been an adverse change in sentencing practices since the time of the commission of an historical offence."
Mr Anderson SC, on behalf of the offender, submits that had the offender been sentenced in 1987, at the time of the offence, he would have been sentenced to "penal servitude for life", due to the provisions of s 19 of the Crimes Act. However, the introduction of s 19A in the Crimes (Life Sentences) Amendment Act 1989 (NSW), provided that he would have been permitted to make an application and be resentenced from 1995 onwards.
It is accepted that I must sentence the offender in accordance with the sentencing practices and patterns at the time of the offence. MFI #2 includes a table of comparable cases relating to sentences imposed between 1990-1995. The point of sentencing judges having regard to what has been done in other cases is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases and statistical data may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence: see R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26].
I am satisfied that the sentencing practices and patterns in the late 1980s and early 1990s, for an offence of murder, reveal lower sentences being imposed overall than is the current practice.

Comparable Cases

The offender relies upon four cases pointing to a possible range of appropriate sentences.

R v Calleja (Supreme Court (NSW), Slattery AJ, 19 July 1991, unrep)

This was a sentence after trial where the offender was convicted of murder, robbery and two offences of obtaining a benefit by deception. The offender was 17 years and 5 months old at the time of the offences. The offender had entered the flat of an elderly lady, tied her up and then stole cheques which he sought to cash at the local bank. The cause of death was manual strangulation. Psychiatrist reports revealed that the offender's developmental background was characterised by physical and emotional deprivation due to parental neglect and a long history of substance abuse. He was sentenced to an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years.
There are a number of distinguishing features. Importantly, the offender in that case was only 17 years old and, although the offending was serious, it was not motivated by hatred or prejudice.

R v McAuliffe & Ors (Supreme Court (NSW), Wood J, 7 August 1992, unrep)

David and Sean McAuliffe were brothers aged 16 and 17 years old respectively at the time when they were convicted after trial of the murder of a man on 20 July 1990. Matthew Davis pleaded guilty shortly after the commencement of the trial. The offences occurred at St Marks Park in Bondi. The offenders had smoked some marijuana and consumed a large amount of alcohol before they decided they would assault and rob someone. Sean McAuliffe was armed with a hammer.
The sentencing judge remarked that the Mackenzies Point lookout, at St Marks Park, was a "known meeting place for homosexuals". The brothers found the two victims sitting on the lookout. All three began to bash the deceased. As a result of the kick administered by Sean McAuliffe, the victim fell off a slightly elevated footpath into a puddle which was located approximately 3 metres from the edge of the cliff. It was open to the jury to infer that the deceased, after his bashing, had fallen on to the ledge, spent some time there, and subsequently fell from the ledge into the sea below.
The other victim was robbed and repeatedly punched and kicked by David and Sean McAuliffe. His Honour accepted that none of the offenders went to the park with the specific intention of killing any person. In sentencing the offenders, his Honour did not proceed on the basis that the attacks were motivated by homophobia.
Sean McAuliffe was sentenced to a minimum term of 12 years imprisonment, with an additional term of 8 years imprisonment for the murder. David McAuliffe was sentenced to a minimum term of 12 years, with an additional term of 8 years imprisonment. Matthew Davis was sentenced to a minimum term of 11 years, with an additional term of 8 years imprisonment.
Once again, there are some distinguishing features including the younger age of the offenders and that the fact that the offending was not motivated by hatred or prejudice.

R v Mihailovic; R v Howard; R v Morgan; R v Young (Supreme Court (NSW), Badgery-Parker J, 15 April 1991, unrep)

The offending involved a gang of eight young men aged 17-20 years who savagely beat the victim who was set upon, bashed, kicked, and stomped. He sustained multiple injuries, including a ruptured liver which caused his death. Their purpose was to lure a homosexual male to a park and assault him. Five of the accused either pleaded guilty to manslaughter or were found guilty of manslaughter. The remaining three were convicted of murder on the basis of a joint criminal enterprise to assault the victim, acting with the intention to cause grievous bodily harm.
The offender, Mr Mihailovic, was aged 18 years and 5 months at the time of the offence. He was responsible for making the call which brought the deceased to the park and also punched and delivered one or two kicks to the deceased. The trial judge found that the offender's involvement in the attack was a result of peer pressure and the desire to shake off his "image as a sissy". He was sentenced to an aggregate term of 18 years imprisonment, with a non-parole period of 10 years imprisonment.
The offender, Mr Morgan, was aged 17 years and 3 months at the time of the offence. He was involved in luring the victim to the park, encouraged others to assault the victim, and played a substantial part in the assault by stomping on the victim's head. The offender was an only child of a single mother and was regarded as a polite and honest man with considerable potential. He was also sentenced to an aggregate term of 18 years imprisonment, with a non-parole period of 10 years imprisonment.
The offender, Mr Howard, was not aware of the phone call to lure the deceased but participated in the assault and kicked him a number of times. The sentencing judge took into consideration that his criminality was marginally less than his co-accused because; he left the scene after the assault; he thought the others "had gone too far"; and he assisted police with the investigation afterwards. He was sentenced to an aggregate term of 13 years imprisonment, with a non-parole period of 8 years imprisonment.
Clearly, the offenders in that case were young offenders and youth must have been a relevant consideration in assessing their moral culpability and the overall weight to be afforded to their subjective cases.

R v Livermore (Supreme Court (NSW), Hunt CJ at CL, 30 November 1992, unrep)

The offender was found guilty of murder after trial. The deceased was approached by the offender who tried to steal his car. The deceased died after suffering multiple abrasions to his head and body. The deceased sustained fractured bones on both sides of his jaw; 13 fractured ribs; and the bones of his nose and left cheek were fractured as well as the base of his skull. The deceased also suffered internal injuries to his head, which enabled blood to flow down the deceased's airways, preventing him from breathing and ultimately causing him to drown in his own blood. The offender was sentenced to 16 years and 8 months imprisonment, with a non-parole period of 12 years and 6 months imprisonment.
I have had regard to the comparable cases. There are a number of distinguishing factors, although I accept that overall the cases establish a pattern that reveals lower sentences being imposed for murder during the relevant period.

Sentence/Special Circumstances

The offender urges a finding of special circumstances. Mr Anderson SC submits that due to the offender's advanced age, depression and suicidal tendencies, the Court may consider varying the statutory ratio.
A consideration of whether special circumstances exist, is not confined to a limited set of criteria. There are several factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.
I am persuaded that special circumstances exist warranting a variation, albeit modest, of the statutory ratio. I make that finding because the offender will require a longer than usual additional period to readjust to living in the community, assuming he survives the non-parole period. Furthermore, I have made a finding that he has some prospects of rehabilitation which will be enhanced by an extended period of supervision.
Accordingly, I make the following orders: 1. The offender is convicted. 2. I impose a term of imprisonment comprising a non-parole period of 15 years and 6 months, commencing on 8 October 2021, and expiring on 7 April 2037, with a balance of term of 6 years and 6 months imprisonment. The total of term is 22 years imprisonment. The offender will be eligible for parole on 7 April 2037. 3. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that the offender's legal representatives advise him of the existence of the Act and its application to this offence. 4. I recommend that Stanley Bruce Early be detained at Long Bay Hospital so that his mental health needs can be addressed.

Amendments 23 October 2023 - Correction of grammar in paragraph 60 25 October 2023 - Corrected formatting 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: 25 October 2023

Crimes (Life Sentences) Amendment Act 1989(NSW)

Crimes Sentencing Procedure Act 1999(NSW)

Objective Seriousness

At the forefront of an assessment of the objective gravity of the offence is the fact that there has been a taking of human life with either an intent to kill or an intent to inflict grievous bodily harm: see R v Anthony Robert Williams [2005] NSWCCA 99 at [44]. In the present case, the relevant intention was to inflict grievous bodily harm.
It is accepted in this case that the offender is to be sentenced on the basis that he had an intention to inflict grievous bodily harm, as opposed to an intention to kill. The question of intent is not the only relevant consideration. There may be circumstances where an intention to inflict grievous bodily harm reflects similar criminality to cases involving an intention to kill.
However, it is accepted that, generally, murder involving an intention to kill is more serious than one involving an intention to inflict grievous bodily harm: see Charbaji v R [2019] NSWCCA 28 at [180]; Apps v R [2006] NSWCCA 290 at [49]; Versluys v R [2008] NSWCCA 76 at [32]. Each case must be determined on its own particular facts and circumstances.
I am unable to find beyond reasonable doubt that it was a blow delivered by the offender that caused death. I am however satisfied to the requisite standard, that the offender was part of a group who intended to cause the deceased really serious bodily harm and, with that intention, was party to an agreement that encompassed the infliction of a number of blows to the head and body of the deceased.
In determining the objective seriousness of the offence, I have also taken into account the following circumstances: 1. While I cannot determine the number of persons involved in the joint criminal enterprise, the offender was in company of other people at the time of the offence, which is an aggravating factor; 2. The deceased was vulnerable, being on his own in a park in the early hours of the morning; 3. The offender approached the deceased when the deceased was by himself inside the toilet block in Alison Park and in a compromised position, being with his penis exposed; 4. The deceased was then chased and assaulted by a group which included the offender; 5. The deceased suffered multiple injuries in addition to the blow, or blows, which caused his death. These included bruising to his face, head and neck, injuries to his mouth, bruising to the left side of his thorax and over the midline, and a complete fracturing of the sternum. He was also stomped on while he was on the ground; 6. The deceased's substantial or significant cause of death was a traumatic subarachnoid haemorrhage due to a blow, or blows, to the side of his head or to the back of his ear. This blow, or blows, occurred during the assault; and 7. Although the offence was not planned and did not involve organised criminal behaviour, there was a degree of deliberation involved, given the fact that the offender was in the park to assault or chase away men he believed to be homosexual.
In addition, I find as an aggravating factor that the offence was motivated by hatred or prejudice against homosexual males: see s 21A(2)(h) of the Crimes Sentencing Procedure Act 1999 (NSW) (CSPA). During the course of the trial, evidence was adduced from a number of witnesses about groups that attended Alison Park with the intention of assaulting and chasing away men they believed to be homosexuals. The offender was the oldest member of one such group. He was 41 years old at the time of the offence.
The group engaged in what was referred to as "poofter bashing", a vile and offensive term which refers to an abhorrent practice of assaulting individuals on the basis of a personal characteristic. The hatred and prejudice against homosexual males, demonstrated by this violent conduct, is an affront to any civilised society.
Although the assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, there is no obligation or requirement for a sentencing judge to nominate a point on the scale of seriousness by reference to a notional midpoint. The use of descriptors such as "low end of the middle of the range", "upper end of the middle of the range", or just below or above "the middle of the range", add nothing of value to the process of instinctive synthesis in the determination of the proportion sentence: see DH v R [2022] NSWCCA 200 at [59]-[60]; Kochai v R [2023] NSWCCA 116 at [51]; R v Walker [2023] NSWCCA 219 at [55].
That said, I am satisfied that this is a particularly serious instance of the crime of murder. I have also had regard to the fact that the offender was on conditional liberty at the time he committed the offence. It is conceded on his behalf, that it would be open to find that he was subject to bail, having been arrested for an offence of committing an act of indecency with a 12 year old boy on 24 January 1986, and sentenced for that offence on 20 April 1988. The court file notes that during 1987, his bail was continued on each court date in relation to that matter.
The maximum penalty for the offence of murder is life imprisonment. A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence: see s 61(1) of the CSPA.
The Crown does not submit that a life sentence should be imposed. Although this is a serious example of the crime of murder, having regard to the relevant intention at the time of the commission of the offence and the absence of sophisticated planning and organisation, I am not of the view that a life sentence should be imposed.

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