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[2013] NSWSC 1643
Supreme Court of NSW
2013-11-08
Hulme J
Original judgment source is linked above.
Judgment 1HIS HONOUR: Jason Mark Grogan ("the offender") stands for sentence for the crime of murder. On 10 January 2012 at Gloucester, he seriously assaulted a 72 year old man, Mr Alan Henry. Mr Henry suffered significant brain damage, was hospitalised, and sadly died on 19 April 2012. The offender was found guilty by a jury in a trial at Port Macquarie last August. 2The crime of murder is punishable by a maximum penalty of imprisonment for life. There is a standard non-parole period of 20 years. It has not been suggested that this is a case where the maximum penalty should be imposed. But it, and the standard non-parole period, are relevant as guideposts to be considered alongside all of the facts and circumstances of the case.
Facts 3Mr Henry lived in a house in Gregson Street, Gloucester. He had been living there alone since his partner passed away in early 2010. At some stage in about early 2011 Mr Henry became acquainted with Natasha Slacke. She assumed a part-time carer role for him, doing chores such as shopping and house cleaning in return for payment. She lived at Port Stephens with her boyfriend, the offender. 4Sometime during the first half of 2011 the offender began to accompany Ms Slacke on her trips to Gloucester. The trio socialised together by going to local hotels. In mid-2011, Mr Henry was hospitalised for about a fortnight following eye surgery. The offender and Ms Slacke stayed at his home in order to take care of his dogs. 5A day or two after Mr Henry returned home from hospital there was what was described as "a big argument". A neighbour heard him tell the offender to "get out and don't come back". Ms Slacke continued to visit him but the offender was effectively barred from entering the home. He would drive Ms Slacke there and pick her up later. 6On 10 January 2012, the offender and Ms Slacke travelled from Port Stephens to Gloucester in order for her to visit Mr Henry. At about 4.30pm to 5.00pm they were at a service station about 250 metres from Mr Henry's home. They were seen by a number of witnesses to be engaged in a very heated argument. The situation was so inflamed that bystanders were prompted to physically intervene out of concern that the offender might harm Ms Slacke. The Crown Prosecutor submitted to the jury that the offender's state of mind was one of agitation, anger and aggression. I do not think the jury would have had any difficulty accepting that submission. 7After the situation came under control, Ms Slacke was on the phone talking to Mr Henry. She passed the phone to a police officer who had been flagged down by a motorist. The officer, Senior Constable Broadley, spoke to Mr Henry and asked him whether he had any problem with Ms Slacke's stated intention of coming to his home to stay. Mr Henry replied, "Yeah, that's fine, as long as her boyfriend's not with her. He's an absolute arsehole and isn't welcome here". 8The offender left the scene while the officer was talking to Ms Slacke. He proceeded directly to Mr Henry's home. He entered by climbing over the back fence from a rear lane. He was seen by a neighbour to be bobbing up and down; I accept that he was trying to conceal his presence. But when the neighbour's husband asked him what he was doing, he replied to the effect that he was just urinating against the fence. The neighbours then went about their business. The offender must then have proceeded to the back door of Mr Henry's home and entered. It was claimed that he knocked before he entered; but one of the neighbours heard this as "banging" or "thuds", "about six to eight of them". 9There was no direct evidence about what occurred inside the home. A subsequent crime scene examination revealed little to assist. What is known is that the offender must only have been inside the home for a matter of minutes. He took Mr Henry's laptop computer and left via the back door. He climbed over the rear fence and fled down the laneway. 10Senior Constable Broadley was patrolling the area in his police car. At about 5.30pm he noticed a man in the laneway carrying something so he stopped, reversed and drove into the laneway. The offender jumped over the back fence of another property, dropped the laptop, and ran off through a neighbouring property. 11Ms Slacke arrived at Mr Henry's home a short time later. At 5.31pm, she called triple 0. An ambulance was despatched and arrived at 5.50pm. Paramedics found Mr Henry lying face down on the kitchen floor with his arms by his sides, palms up. He was unconscious and there was a large pool of blood around his head. Another paramedic was despatched to assist as were members of the local fire brigade. Eventually Mr Henry was taken by ambulance to the local hospital where he was stabilised before being conveyed by air ambulance to Westmead Hospital and admitted to the intensive care unit. 12Towards the end of March 2012, Mr Henry was transferred to a nursing home at Erina. He died on 19 April 2012 from a complication of his incapacitation as a result of the severe brain injury he had sustained. 13The offender was arrested on 17 January 2012. He was charged with what I assume was a serious assault offence but the charge was upgraded to murder on 4 May 2012 following Mr Henry's death. He was interviewed on both of those occasions. He told a number of lies in those interviews and so no more needs to be said about them except to say that he denied assaulting Mr Henry. The jury's verdict establishes the contrary. 14The forensic pathologist who gave evidence in the trial, Dr Brian Beer, explained that the most probable mechanism by which Mr Henry sustained his injuries was that he received a punch or a blow to the right side of his forehead causing a contusion. This blow caused him to go down and he either hit the left side of his head on some object as he was falling or when he hit the floor. Whilst Dr Beer conceded that it was possible that Mr Henry did not become unconscious until he hit the floor, it seems more likely that he was rendered unconscious by the initial blow.
Seriousness of the offence 15The Crown case on murder was put to the jury in two ways. One was that the accused struck Mr Henry to the right side of the forehead and that he did this with an intention to inflict grievous bodily harm. The other way was what lawyers call "constructive murder"; in short, doing an act which causes death during the commission of a very serious criminal offence, in this case, aggravated robbery with wounding. 16It is impossible and unnecessary to known which path was taken by the jury to the verdict of guilty, or whether some jurors arrived at the verdict by one path while others took the alternative route. It is my task to determine the basis upon which the offender is to be sentenced, with the only constraint being that I do so in a manner which is consistent with the jury's verdict of guilty of murder. 17The act of the offender that substantially contributed to the death of the deceased was a single punch. Often, that factor would tend to militate against a conclusion that there was an intention to cause really serious bodily harm. But there are other matters to take into account. The offender was, I accept, in a heightened state of anger and aggression. He was much younger and undoubtedly stronger than the comparatively elderly Mr Henry. He struck Mr Henry to the head and he did so in a manner that caused him to immediately go to the ground. 18I acknowledge that it was Dr Beer's evidence that the degree of force required to produce the type of injury Mr Henry sustained to his right forehead is difficult to gauge. Mr Henry's age, and the possible influence of medication he might have been taking, meant that less force would have been required to cause such injury in that location. Nevertheless, Dr Beer offered the opinion that "moderate force" or "a decent sort of punch" was involved. 19Having regard to all of these circumstances I am satisfied that the offender had an intention to inflict grievous bodily harm upon Mr Henry. This is the finding that was advocated on behalf of both the Crown and the offender in their submissions on sentence. 20The reason why the offender did this is not clear. Indeed, the reason why he went to Mr Henry's home in the first place is not clear. I am satisfied that there was a level of animosity between the pair (the degree being difficult to determine) for the preceding six months. He must have known that he would not have been welcome. And he certainly would not have been welcomed having regard to what Mr Henry said to Senior Constable Broadley a short time before. The manner in which the offender entered the property is indicative of him being up to no good. This was quite obviously not a friendly social call. 21It is possible that the offender went to the home intending to physically harm Mr Henry. He was in quite a volatile and aggressive emotional state. It is also possible that he intended to steal from him, which in fact he did. A third possibility is that he intended both. The evidence is insufficient to enable me to make a finding beyond reasonable doubt about any of those three possibilities. It is difficult, however, to envisage some realistic alternative. 22What is clear is that the offender went to Mr Henry's home, a 72 year old man who he knew lived alone. He must have known that he would not be welcome. He banged at the back door, entered and very soon after struck a forceful blow to Mr Henry's head with the intention of causing him really serious harm. He then stole property from the house and fled, leaving Mr Henry unconscious on the kitchen floor with callous disregard for how seriously he might have been injured. 23All murders are serious; but the seriousness of a specific case is relative. If one were to adopt a broad view as to what the middle of the range of objective seriousness is, that is where I would place the present case.
The offender's personal circumstances 24The information I have in relation to the offender's personal circumstances is largely derived from a report by Dr Olav Nielssen, forensic psychiatrist, and documents relating to the offender's criminal and custodial history. 25He was born in 1970 and so he was aged 41 at the time of the offence. He was the youngest of four children and was brought up in the Coffs Harbour region. He was educated to Year 10 and then commenced a carpentry apprenticeship. His employment history has been in the building and fishing industries. He has three children from past relationships who are aged 13, 14 and 18. He has some physical health issues but nothing of any particular significance. 26Drug abuse has been a feature of his life since he commenced using cannabis at around age 15. He tried amphetamine at about age 24 and has used that drug intermittently over the years. He has used heroin from about that time as well and he told Dr Nielssen that it was his "drug of choice". He had entered two drug rehabilitation facilities; had completed a number of courses; and had undergone counselling. He had been abstemious for two years but relapsed in the year before the offence. He had not, however, consumed any alcohol or taken any drugs on the day. 27The offender also told Dr Nielssen about past admissions to psychiatric facilities when he had exhibited symptoms of schizophrenia-like psychosis. He denied any recent symptoms and attributed his past symptoms to drug use. 28Dr Nielssen made the psychiatric diagnoses of "substance dependence and abuse disorder" and "recurrent drug-induced psychosis, currently in remission". He also considered the possibility of an underlying schizophrenic illness and possible traumatic brain injury but largely discounted them. He recommended further psychiatric evaluation and further treatment for depression and psychosis as required, but that was with the rider: "based on the limited information that is available". He also recommended that the offender undergo long term drug counselling and monitoring of abstinence from substance use. 29Unsurprisingly, given his history of drug abuse, the offender has a criminal record. He has been convicted of offences in New South Wales, Queensland and South Australia. There are many entries for crimes of violence and crimes involving dishonesty. The entries appear at regular intervals from when he was 17 years of age. This history demonstrates that he has led a life marked by a continuing attitude of disobedience to the law, disdain of authority and disrespect for society. An aggravating factor is that the offender was the subject of a number of bonds to be of good behaviour at the time he murdered Mr Henry. 30He was charged with an offence of taking and driving a car without the consent of its owner and was sentenced on 8 May 2012 to imprisonment for 12 months with a non-parole period of 8 months. The sentence was backdated to the day of his arrest, 17 January 2012. This means that for the first 8 months of the time he has been in custody he was serving the non-parole period of that sentence. He has been in custody solely because of the present matter since 17 September 2012. I have a discretion as to the extent to which the sentence I impose is to be backdated to take account of pre-sentence custody. It was common ground that an appropriate exercise of this discretion would be to commence the sentence at a point half way through the non-parole period for that sentence, namely 17 May 2012. 31There are some positive things that can be derived from the criminal and custodial history documentation. The offender has not incurred any disciplinary infractions in any New South Wales gaol since 1991. (I was not provided with any information about his behaviour in gaols in other states.) He has completed two vocational courses in this current period of custody and has applied to complete his "Tertiary Preparation" studies. And he has been employed since 28 May this year in the education department in the gaol where he is presently being held.
Deterrence and other purposes of sentencing 32General deterrence is obviously important in sentencing for murder but in the circumstances of this particular case it is also important to mark the seriousness with which the courts seek to protect the community's senior citizens from violent offences committed by intruders into their homes. Those who are minded to commit such an offence should be left in no doubt that the courts will deal with them harshly. 33Deterrence of the offender himself is also a significant matter. His record of dishonesty and violence, which are both features of this offence, warrants emphasis to this particular aspect of the sentencing matrix. Punishment, denunciation of his conduct, making him accountable for his actions, and recognising the harm he has caused are sentencing purposes that are also important. 34Promotion of the offender's rehabilitation, another purpose of sentencing, is problematic. It was not submitted that I should find that he is remorseful, nor that his prospects of rehabilitation are good and nor that he is unlikely to re-offend. But was submitted that I should find special circumstances so as to enlarge the proportion of the sentence represented by the parole period at the expense of the non-parole period. This submission was based upon the proposition that it was in the public interest for the offender to have an extended period of supervision within the community to assist him with substance abuse and mental health issues. 35I do not accept that there should be a finding of special circumstances. The potential period of parole that would be allowed by imposing a sentence in the usual proportions should be more than adequate to assist the offender in his eventual reintegration into the community. The evidence as to his mental health is to the effect that he has only experienced difficulties when abusing drugs. By the time he becomes eligible for release on parole he will have spent a considerable period in what should be a drug free environment.
Victim impact statement 36A victim impact statement by Mr Henry's daughter, Ms Susan Henry, was read. The effect upon her, emotionally and otherwise, of losing her beloved father in such circumstances has been nothing short of profound. It is remarkable then that Ms Henry has managed to think beyond her own intense grief to the wider ramifications in the community. She has given me permission to quote the last paragraph of her statement: I can only pray that my father's death can become a legacy to all citizens to be mindful of the choices that they make and the consequential impact those decisions have on the lives of their fellow citizens and families. I believe this is the greatest gift we as humans can give to one another. 37I thank Ms Henry for sharing with me, the court, and the community the impact the offender's actions and the loss of her father has had.
Sentence 38Convicted. 39Sentenced to imprisonment comprising a non-parole period of 18 years with a balance of the term of the sentence of 6 years. 40The sentence is to date from 17 May 2012. The first day the offender will become eligible for release on parole is 17 May 2030.
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 November 2013
R
Grogan