R v Mahon

[2015] NSWSC 25

Supreme Court of NSW|2014-09-19|Before: Garling J, Hunt CJ

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Court

Supreme Court of NSW

Decision date

2014-09-19

Before

Garling J, Hunt CJ

Catchwords

CRIMINAL LAW - sentencing - murder
(1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25
(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70
(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW - sentencing - murder(1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Pearce v The Queen [1988] HCA 57 (1998) 194 CLR 610 R v Dunn [2004] NSWCCA 41(2004) 144 A Crim R 180 R v Edigarov (2001) 125 A Crim R 551 R v Hamid [2006] NSWCCA 302

Judgment (25 paragraphs)

[1]

REMARKS ON SENTENCE

On 11 January 2013, Mr Shannon David Mahon murdered Ms Julie Grant at her home at The Entrance in New South Wales.
He did so by severely beating her around the head and neck in a violent assault, and then by strangling her. After she died, he continued to assault her by using an iron to inflict a burn injury on the perineal area between her buttocks. Ms Grant died in her home as a consequence of the injuries which Mr Mahon inflicted.
Mr Mahon was arrested on 12 January 2013, and has been in custody ever since. He was charged with murder. In November 2013, Mr Mahon pleaded guilty to murder. On 20 November 2013, he was committed by the Local Court at Wyong to the Supreme Court for sentence. On 19 September 2014, when arraigned in the Supreme Court, Mr Mahon adhered to his plea of guilty to murder.

[5]

The Facts

I find the facts of the matter, in accordance with the agreed Statement of Facts, which became an exhibit in the proceedings on sentence, to be as follows.
Mr Mahon was born in December 1969 and was, accordingly, 43 years of age at the time he killed Ms Grant.
Mr Mahon was in a de facto relationship with Ms Grant which had existed since mid-2011. Ms Grant was the mother of a 12 year old son from a previous relationship. She shared custody of her son with his father.
Ms Grant and Mr Mahon lived at a house in Warrigal Street, The Entrance. The house was located next door to the Greens Bowling Club. Occasionally, Ms Grant's son would stay with Mr Mahon and Ms Grant at the house.
Up until about November 2012, the relationship between Ms Grant and Mr Mahon appeared to be reasonable, and they were generally viewed as a happy couple. There were occasions upon which they argued.
On 23 November 2012, Mr Mahon attacked Ms Grant and assaulted her, causing actual bodily harm. Ms Grant sustained injuries to her left arm. The next morning, Mr Mahon also assaulted her son, who had intervened in an argument between Mr Mahon and Ms Grant.
As a result of these incidents, on 24 November 2012, an Apprehended Violence Order was made by the police. The interim order prevented Mr Mahon from attending the house at Warrigal Street. He was also prevented from contacting or approaching Ms Grant or her son. As well, arising out of this incident, Mr Mahon was charged with assault occasioning actual bodily harm with respect to Ms Grant, and common assault with respect to her son. He was granted bail upon the condition that he live with his long-time friends, Mr Wheeler and Ms Shaw.
On 20 December 2012, police attended the house at Warrigal Street. They found Mr Mahon at the house. He was arrested and charged with contravening the Apprehended Violence Order. On 21 December 2012, he was convicted at the Wyong Local Court for that offence. He was fined and ordered to pay costs.
By early January 2013, notwithstanding the terms of the Apprehended Violence Order, it appears that Mr Mahon had moved back in to the house at Warrigal Street and was residing with Ms Grant.
In the early hours of 11 January 2013, a friend of Ms Grant, Mr McGrath, was awoken by banging on the wall of his house just beneath his bedroom window. He asked who it was, and heard the deceased say "Jules". Mr McGrath spoke to her and she told him "Shannon's going off again".
At approximately 2.35am on that day, CCTV footage from the Greens Bowling Club captured Ms Grant walking back towards her house at Warrigal Street.
At about 4am on that day, 11 January 2013, a neighbour, Ms Pagett, heard an argument between a male and female at the house in Warrigal Street. I am satisfied that this was an argument between Mr Mahon and Ms Grant.
This occasion was the last one upon which anybody other than Mr Mahon saw or heard Ms Grant prior to her death.
After that time there were a number of sightings of the offender. At about 5.30pm on 11 January 2013, Mr Mahon went to Mr Wheeler's house in Blue Bay. He was drunk, visibly upset, blubbering and rambling. Although Mr Wheeler could not clearly understand what was being said to him by Mr Mahon, he thought he said "I have killed her". Mr Wheeler dispatched Mr Mahon, telling him to sober up and that he would talk to him the following morning. There was a later telephone call between Mr Wheeler and Mr Mahon in which Mr Mahon sounded less intoxicated and was not rambling as much, during which he was told that he could speak with Mr Wheeler in the morning.
At about 8.30pm on 11 January 2013, Mr Mahon rang another friend, Mr Van Praag and asked if he had seen the deceased. When that answer was negative, Mr Mahon told Mr Van Praag, that the deceased had left home about midnight on the evening before and that he had not seen her since.
I am satisfied that this was a deliberate and intentional lie, told by Mr Mahon, to conceal his crime.
On the following morning, 12 January 2013, Mr Wheeler saw Mr Mahon in Warrigal Street. They had a conversation in which Mr Mahon kept repeating "I don't know what to do. I don't know what I'm going to do".
Finally, after being urged by Mr Wheeler to hand himself in to the police, Mr Mahon said; "I don't know what to do. I don't know what to do. I'm gunna go and get a schooner and a couple of beers and I might see you later."
Mr Mahon went to the Lakes Hotel.
Shortly after this conversation with Mr Mahon, Mr Wheeler attended at The Entrance Police Station and reported to the police that he had concerns about the well-being and safety of Ms Grant.
As a consequence of that report, police attended at the house in Warrigal Street. There was no-one home. They forced entry into the premises. They searched the house. When looking in the main bedroom, the police, using a torch, looked behind the bedhead of the bed and found the body of Ms Grant in a small space on the floor jammed between the bedframe and the wall. She was lying face down and was naked from the waist down. Near the top of the bedhead, a large hole was visible in the gyprock wall directly above where Ms Grant lay on the floor. A light stand at the head of the bed had been smashed, and shards of glass from the light stand were resting on top of the deceased's body.
At about 10.20am that morning, police attended at the Lakes Hotel, and identified the offender, Mr Mahon, in a rear beer garden. He was arrested and cautioned. He was taken to the Police Station.

[6]

Police Investigation

Police secured the crime scene at the house in Warrigal Street, and undertook extensive crime scene investigations.
After Mr Mahon was arrested and taken to The Entrance Police Station, a conversation occurred between Senior Constable Marshall and Mr Mahon. It was to the following effect: "S/C Marshall: When did it happen Shannon? Mr Mahon looked directly at S/C Marshall and said: Yesterday Arvo. S/C Marshall: Did you two have a barny again? Mr Mahon: Yeah just a normal barny like always. S/C Marshall: Were you drinking? You two always fight when you are. Mr Mahon: Yea, I was pissed. S/C Marshall: How'd do you do it? What happened? Mr Mahon: I don't really remember. S/C Marshall: Ok. Were you at home? Mr Mahon: Yeah but I don't really remember what happened."
A period of time was allowed by way of a recovery period as Mr Mahon had informed the Custody Manager that he had been consuming alcohol prior to his arrest.
Once recovered, Mr Mahon agreed to participate in an electronically recorded interview. During that interview, Mr Mahon said that he returned to live at the house at Warrigal Street soon after 21 December 2012, in breach of his bail and in breach of the conditions of his Apprehended Violence Order, because Ms Grant had told him she was having trouble coping with the anniversary of her mother's death.
Mr Mahon said that he last saw Ms Grant on the evening of 10 January 2013, when she left to go and visit some friends.
I am satisfied that this account was false because the argument which Ms Pagett, the neighbour, heard at about 4am on 11 January 2013, was an argument between Mr Mahon and Ms Grant.
Mr Mahon denied having any argument with the deceased, and denied any knowledge of Ms Grant's death. He could not explain why her body was found behind the bedhead. I am satisfied that these statements were also false.
On 13 January 2013, whilst in custody, Mr Mahon received a phone call from his friend, Ms Rachel Shaw. She asked him "What happened mate?". He said; "I don't know, things got out of control, there is nothing I can do, what's happened, happened".

[8]

Mr Mahon's Criminality

It is appropriate to make an assessment of the criminality involved in Mr Mahon's offence. This is to be assessed without reference to matters personal to Mr Mahon, and is to be assessed wholly by reference to the nature of the offending: Muldrock at [27].
The Crown submitted that I should assess the killing as falling in the mid-range of offences of this kind. Counsel for Mr Mahon, submitted that I would not be satisfied that Mr Mahon had an intention to kill Ms Grant, rather only that he intended to cause her grievous bodily harm. He submitted that this intention, together with the fact that the offence was not premeditated, and that it did not involve the use of any weapon, meant that I should not find that the offence was anything other than one falling below the mid-range of offences of this kind.
In my assessment, the criminality was very serious. It was above the mid-range of criminality for offences of this kind. Simply put, for no apparent reason other than feelings and emotions heightened by a verbal argument, Mr Mahon has murdered his de facto partner in her own home by brutally assaulting and strangling her. He has then inflicted a further gruesome burning injury on the deceased in the immediate post-mortem period. It was an injury inflicted to her genital area and reflects a high level of disrespect for Ms Grant's body, and represents the final act of indignity perpetrated upon her by the offender.
Mr Mahon then sought to conceal the body of the deceased behind the bedhead in a small space between the bedhead and a gyprock wall, into which the deceased had clearly been slammed.
He then went about his business, pretending that he had done nothing out of the ordinary and lying about the absence of Ms Grant to her friends, and to the police.
Ms Grant, although in her own home and protected by an Apprehended Violence Order, was no physical match for Mr Mahon. I would infer from the fact that she allowed him to return home to live with her that she trusted him and did not think that he would again violently assault her. There is no suggestion on the evidence that Ms Grant did anything which in any way provoked Mr Mahon to act as he did. There is no suggestion on the evidence that Mr Mahon was spurred into doing what he did by anything which Ms Grant did. Other than being involved in a verbal argument, the source of which is unknown to this Court, Ms Grant was a woman who had done nothing which could explain why she was subjected to such a brutal and vicious assault, by a man who, at the least, intended to cause her really serious physical injury.
And the assault was a very brutal one. Two of the gyprock walls of the bedroom where Ms Grant was found, show significant damage in a way consistent with Ms Grant having been slammed most forcefully into them. At some stage during the assault, probably towards the end, Mr Mahon has strangled Ms Grant with his bare hands. A standard lamp and lampshade have been smashed with shards of glass found on top of Ms Grant's body. It appears that after the post-mortem assault that the bed was moved back into a position where the bed head was as near as possible to its original position near the wall, notwithstanding the presence of the body of the deceased on the floor between it and the wall.
As best as can be determined, in assessing the seriousness of the criminality involved in the objective circumstances of this offence, it seems to me that the only basis upon which the conduct can be found to have occurred, is in the context of the escalation of a verbal argument between Mr Mahon and Ms Grant, in circumstances where Mr Mahon had been drinking extensively. There is no doubt that Ms Grant had also been drinking alcohol. This may have contributed to the existence of the argument, but there is simply no evidence at all, and I am not persuaded that I ought to find, that Ms Grant's conduct was in any way responsible for what occurred to her.
This was an unprovoked assault in Ms Grant's home upon her by her de facto partner, in circumstances where he was prohibited by an order of the Court from being present in that location and during a time at which he was on bail for committing an offence of personal violence towards Ms Grant.
I am satisfied that the facts, matters and circumstances of and surrounding this crime are very serious and place it above the mid-range of objective criminality for offences of this kind.

[10]

Mr Mahon's Record of Previous Convictions: s 21A(2)(d) Crimes (Sentencing Procedure) Act

Mr Mahon's past criminal record is not generally an extensive one. However, such convictions as are recorded relate to violence, and in particular, domestic violence.
In December 2002, Mr Mahon assaulted his then partner, Ms Elizabeth Ryan, by grabbing her with both hands, pushing her against a railing in the street, and then grabbing her by the throat. Mr Mahon was charged with, and convicted of, common assault for which he was placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a period of 2 years.
In September 2004, Mr Mahon was charged with, and convicted of, the offence of assault occasioning actual bodily harm and the offence of common assault. Ms Ryan was again the victim in these assaults. Mr Mahon and Ms Ryan had become involved in a verbal domestic dispute, apparently as a result of Ms Ryan speaking with another male. Mr Mahon raised his left hand and slapped Ms Ryan on the right side of her face with the back of his hand. A short time later, Mr Mahon pushed Ms Ryan to the ground with both hands and with his right foot began kicking her left leg, causing her pain. Ms Ryan required treatment in hospital after this assault.
For these offences Mr Mahon was convicted and sentenced to a community service order which required him to serve a total of 150 hours of community service.
The next episode involved the events of November 2012 to which I have earlier made reference. As a consequence of these events Mr Mahon was convicted of assault occasioning actual bodily harm and common assault with respect to Ms Grant and her son.
Some more details of these most recent offences are necessary. On the evening of 23 November, Ms Grant's son was staying with her and Mr Mahon at the house in Warrigal Street. During the course of the evening, Mr Mahon got angry and told Ms Grant and her son to get out of the premises. He grabbed Ms Grant by her left bicep and dragged her out of the house. That evening she slept outside on the front porch. Her son slept in a tent in the backyard of the house.
The following morning, Mr Grant's son walked into the house having heard an argument between Mr Mahon and his mother. He saw Mr Mahon push Ms Grant to the face and ran over to try and protect her. As he did, Mr Mahon grabbed him around the neck using his right hand, lifted him off the ground and took him over to the oven, at one point dragging him along the ground. He then pushed Ms Grant's son into the oven, kneed him in the stomach and threw him onto the table. All that Ms Grant's son had tried to do was to protect his mother.
For those offences, Mr Mahon was convicted and sentenced to a term of imprisonment, commencing on 12 January 2013 and expiring on 11 August 2013.
As I have said, as a result of these incidents, an Apprehended Violence Order was made against Mr Mahon, which he then promptly contravened in December 2012 and for which he was convicted, fined and ordered to pay costs.
These previous convictions include convictions for serious personal violence offences and accordingly, are particularly relevant here as this offence involves him being sentenced for a serious personal violence offence. I will take this into account as an aggravating factor. But, Mr Mahon is not being punished again for the criminality involved in these offences: Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

[19]

Subjective Circumstances of Mr Mahon

Mr Mahon is now 45 years old. He was 43 when he killed Ms Grant. The only material before the Court about Mr Mahon's personal background, his relationship with Ms Grant and his personal circumstances surrounding the killing of Ms Grant, comes from the history which he gave Ms Wakely for the purpose of her report. The Crown submits that the Court should adopt a very considerable degree of caution in relying upon these statements, particularly where the offender has not given any evidence of the matters: R v Qutami [2001] NSWCCA 353 at [58]-[59] per Smart AJ, Spigelman CJ and Simpson J agreeing. Counsel for Mr Mahon accepts that this is the correct approach for the Court to follow. Although I will summarise the effect of these statements, I am only able to give them limited weight.
Mr Mahon apparently grew up as the middle of three children, and spent his formative years living with his parents and siblings. His mother stayed at home during his younger childhood, before gaining employment with the Picton Council. His father was employed as a truck driver, which meant he was often absent from home. Mr Mahon described his relationship with his father to Ms Wakely as 'distant'. He has not had contact with his father in many years.
Mr Mahon reported having been close to his mother throughout his childhood. He described witnessing physical altercations between his parents, which he considered was "a part of growing up as a kid". His parents separated around 15 years ago. He is now in contact with his mother.
Mr Mahon attended school until Year 10. After he left school, he worked in an archery store and as a tyre fitter. He then completed a spray painting apprenticeship, and worked as a bricklayer's labourer. During his time at work he witnessed a friend's death in the workplace. He was out of work for around eight months, after which he returned to the workforce and spending time working in tree lopping, scaffolding and with an aluminium window company.
At 20 years of age, he became involved in a relationship with a woman. Together they had three children, now aged 21, 19 and 18. The relationship ended when the youngest of the children was around 12 years of age.
In mid-2011, Mr Mahon and Ms Grant began a relationship. He and Ms Grant began residing together around 18 months prior to Ms Grant's death. Ms Grant's son would stay with the couple every second weekend and some weeknights.
I have earlier referred to the conclusions of Ms Wakely about Mr Mahon's mental health, and there is no need to repeat them. I have taken them into account to the extent which I can. Ms Wakely suggests that: "…the combination of pre-existing mental health difficulties, emerging paranoia stemming from numerous incidences having taken place in the year before the offence, some underlying unhelpful attitudes relating to physical violence, paired with serious alcohol abuse are each likely to have contributed to the current circumstances."
To the extent that this opinion offers an explanation for what happened, I will have regard to it, but since it largely derives from the history given by Mr Mahon, I give it only limited weight.

[21]

An Appropriate Sentence

In considering the appropriate sentence to be imposed on Mr Mahon, I commence with the reminder that murder involves the criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community.
Ordinarily, a conviction for murder warrants a substantial sentence because the demands of punishment, and the deterrence of the broader community against similar conduct, are of significant importance. In Mr Mahon's case there is also an obvious need, having regard to his past history of violence in the domestic context, to ensure that any sentence which is imposed will act as a specific deterrent to him again engaging in such conduct.
I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act. Mr Mahon submitted that special circumstances existed. However, Mr Mahon's past history of offending, including the fact that he has spent a previous period in custody prior to the commencement of this offence, and his guarded prospects of rehabilitation, all tell against the need for a finding of special circumstances.
I have discussed all of the facts which are relevant to the decision, and it is now necessary to make a value judgment as to what is the appropriate sentence.
This was a very serious offence involving the killing of a woman in her own home in a way which was brutal and cruel. The killing was committed by her de facto partner with a past history of committing assaults in the domestic context. Having murdered Ms Grant, he then subjected her body to further injury, attempted to hide it and then lied about what had happened.
There is nothing which adequately explains or justifies the conduct. It would be inappropriate to speculate about why Mr Mahon did what he did, but I am satisfied that an argument in the domestic circumstance, perhaps in the context of alcohol being consumed, must have had a role to play in what happened. That said, the Court can only proceed to impose a sentence for what is a serious and largely, though not entirely, unexplained offence.
Any sentence which is imposed is mitigated only by his plea of guilty and the substantial facilitation of the course of justice which that involves.
I determine the appropriate sentence to be one of 30 years imprisonment. However, Mr Mahon is entitled to be given an appropriate discount for the fact that he has pleaded guilty to his offence. In the circumstances here relevant that discount, I am satisfied, should be 25 per cent. Accordingly, the total appropriate sentence is one of 22 years and 6 months imprisonment. Of that sentence, I determine that Mr Mahon must spend 16 years and 10 months in jail before being eligible for parole.

R v Mahon

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