R v Grogan

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.