R v McDonald

Supreme Court of NSW|2019-07-10|Before: Harrison J

REMARKS ON SENTENCE

HIS HONOUR: Andrew McDonald was charged with the murder of his brother Edward McDonald at Taree on 21 January 2017. Mr McDonald pleaded not guilty to that charge. However, when arraigned before the jury panel on the first day of the trial, he offered to plead guilty to manslaughter. That plea was not accepted by the Crown and the matter thereafter proceeded immediately to trial. Mr McDonald had earlier offered to plead guilty to manslaughter by unlawful and dangerous act in correspondence dated 10 October 2017 when the matter was still before the Local Court at Taree but this offer was also rejected by the Crown.
At 2.00pm on the sixth day of the trial, the jury returned a verdict of not guilty of murder. For obvious reasons, having regard to his plea, the jury were not required to deal with an alternative verdict. In those events, Mr McDonald now stands to be sentenced for the offence of manslaughter in accordance with his plea.
Section 24 of the Crimes Act 1900 provides as follows: "24 Manslaughter - punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years: Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal."

Psychiatric evidence

I was provided with a report dated 1 February 2018 from Dr Jonathon Adams, a forensic psychiatrist. That report would appear to have been commissioned for the purpose of assessing whether or not Mr McDonald was fit to plead. In the course of dealing with that issue, Dr Adams took a history from Mr McDonald that included the following material: "PERSONAL HISTORY Mr McDonald reported that he was born in Cowra. He did not know any details about his mother's pregnancy or delivery, or whether he attained developmental milestones at appropriate ages. He was not aware of suffering any early medical problems. He told me that he was physically abused 'heaps of times' by his father, and he related this to his father's problematic alcohol use and worsening violence. He commented, 'All the kids used to fear him'. He said he was sexually abused by a Catholic priest when he was 9 or 10 years of age, which he was 'too embarrassed to talk about'. He denied experiencing any features consistent with a posttraumatic stress disorder as a result of his abuse history. As mentioned above, Mr McDonald informed me that his parents separated when he was 13 or 14 years old. He said his father died soon afterwards. With regards his mother he commented, 'She did the best she could under the circumstances'. He remembered his mother starting a new relationship, and his difficulties forming a relationship with his stepfather. He remembered witnessing his stepfather physically abuse his mother, and how he 'set about him with my fists'. Mr McDonald commented, 'I loved my schooling', which he said he completed in Taree. He denied any history of specific learning problems and said he never required any special educational input. He said he was never suspended or expelled and apart from a 'fair bit of name-calling', he denied any background of significant conduct problems. He said he had a good friendship network. He said soon after leaving school he left home, when he started a relationship with his long-term de facto partner. He said at this point he was living on the Purfleet Aboriginal Mission, south of Taree. Mr McDonald commented that soon after leaving school he 'turned to a life of crime'. He related this to his association with antisocial acquaintances and his increasing use of illicit substances and alcohol. The account he gave of his offending was consistent with the criminal history provided. He said he spent two periods in boys' homes and one period in custody as an adult for two-and-a-half years from the age of 18 years onwards. Mr McDonald said after his time in custody in his early 20s he began working intermittently, usually labouring casually. He said he had also worked for the Aboriginal Land Council and the Catholic Development Employment Program. He said he had not worked since the 1980s, and when I asked him why not he replied 'I couldn't gain any employment anywhere, I don't have any qualifications'. He also linked this to his brain injury history and illicit substance and alcohol use. He said he had always claimed the Newstart benefit and had never received the disability support pension. Mr McDonald confirmed that he was 16 years of age when he met his de facto partner. He said she was 18 at this point, with two daughters. He commented, 'She has been my rock'. He went on to state, 'She kicked me out on my 50th birthday', but he described how they had been re-establishing their relationship since his arrest. He stated, 'I'm only too pleased to start back with her'."
Dr Adams did not suggest that Mr McDonald was suffering from any psychiatric or psychological illness or condition that was relevant to his commission of the subject offence.

Subjective circumstances

Mr McDonald did not give evidence before me. He was born in July 1960 and had his 59th birthday during his trial. He was 56 years of age at the time of the events that are at the heart of these proceedings. He is an indigenous Australian.
His sister Joan McDonald provided an affidavit sworn on 8 July 2019. At the risk of unnecessarily expanding the length of these remarks, I propose to set out a significant amount of what Ms McDonald has recalled: "Early Life 8. When dad retired from boxing, he worked at a sawmill and as a casual worker on the railways. He received exemption papers to enable him to work rather than relying on welfare. 9. We would travel around New South Wales to do seasonal work, fruit picking and the like. The children would work alongside our parents in the fields, picking fruit. 10. When I was born my parents were living in abandoned houses, churches and bushland in Riverwood. 11. When we lived in the abandoned houses they did not have utilities like water or electricity. 12. We would get food by hunting in the bushland surrounding these houses. 13. On two occasions we lived in caves. We moved around from Riverwood to Condobolin and Cowra. 14. Throughout this time all of the children attended school. 15. When I was 8 years old we moved into a house in Busby, Green Valley. 16. We were kicked out of the Busby house by the housing department because my father had lit a fire in a 5 gallon drum to keep us warm during winter in the lounge room. 17. After this we moved to Bonnyrigg to an old abandoned farmhouse. 18. When I turned 10 we moved to the Purfleet mission near Taree. 19. Our family was the first aboriginal family in the Taree area to attend the St Joseph's Catholic School. Family Violence 20. During my childhood and adolescence I recall my father being violent towards my mother, myself and my brothers and sisters. 21. The violence increased with my father's increase of alcohol abuse. 22. The frequency of the violence increased over time as my father would drink more often. 23. I recall mum having broken ribs because of violence from our father, on another occasion I recall her having a broken arm. 24. Mum never sought medical attention from the hospital for her broken ribs. 25. Mum had varicose veins, and dad would flog her around the legs with a jug cord. The veins in her legs would swell up because of these floggings. 26. Dad would also beat Andrew and the rest of our siblings with an electric jug cord, a belt or a switch made out of a stick he had found out in the bush. 27. Our father also had a habit of hitting us over the head. When I was approximately 11 or 12 years old my father struck me over the head with a lump of timber causing a laceration to the top of my head. 28. I hid behind mum. 29. Dad later stitched the laceration up with fishing line and a needle. 30. I recall he would physically assault Andrew. I can recall on a specific occasion our younger brother Gordon had a bucket and spade which was his favourite toy. Andrew had been playing with it and Gordon decided he wanted it back, but Andrew refused, and threw the bucket in the fire. 31. Gordon got a stick and tried to pull it out of the fire, and the plastic melted onto his leg, when this was removed this caused an injury to Gordon. 32. This angered our father and Andrew received a severe flogging with a jug cord from our father because of this. 33. He would have been approximately 7 or 8 years old at the time. 34. Mum eventually got dad removed from the house by police because of domestic violence. I recall that I was approximately 16 years of age. 35. Dad built a humpy in bushland near the Purfleet mission and we would visit him there. 36. To the best of my recollection dad passed away when I was 21 years old. 37. When Andrew was about 16 years old he met his partner, Debbie Clarke. They were together for about 38 years. 38. Andrew and Debbie looked after our younger brothers and sisters after our mother and father's relationship breakdown. 39. In this sense, Andrew was viewed as something of a patriarch-type figure within our family. Debbie and Andrew were treated with parental respect. 40. Debbie and Andrew have three children (one biological - Nicole), 19 grandchildren and 5 great grandchildren. 41. When Andrew was younger he suffered an injury during a footballing game, resulting in him having to go to John Hunter Hospital and have a metal plate inserted in his skull. He was treated for a brain bleed. 42. Since around about this time Andrew has suffered from epilepsy and I am aware he has had to take medications for this condition over the years. 43. I would describe Andrew as an introvert. He was one of the most placid of my brothers. 44. Approximately 5-6 years ago my brother ended his relationship with his partner of 38-odd years, Debbie Clarke. It was an amicable break-up. 45. I am aware that following the break up with Debbie, Andrew was struggling with alcohol and the fact of his separation from Debbie. 46. Prior to moving into the residence next door to Edward, Andrew lived with me for a period of 3-4 months."
Ms McDonald was not required for cross-examination.

Remorse and contrition

Mr McDonald explained to the police in his record of interview given within several hours of the death of the deceased that he was sorry for what he had done. He said, when asked at the end of his interview if there was anything he wished to add, that he regretted his actions. He said as much to his neighbour Mr Burke when he asked him to call the police. Neither his actions nor his words since then, including his plea of not guilty to murder, has in any way derogated from his early and consistent expressions of remorse.

Deterrence

In my opinion, there is little if any call for specific deterrence in this case. Mr McDonald does not represent a threat of future dangerousness and the need to reinforce the tragic significance of his admitted criminal conduct has now obviously merged in his painful understanding and appreciation of his actions and the consequences of those actions for him and his family.
Nor in my opinion does general deterrence loom large in the events with which I am required to deal. Even though a powerful argument can be mounted, that crimes of passion or spontaneous loss of self-control, such as here occurred, do not sit comfortably with the idea that a person might be convinced to think twice before acting if they quietly and rationally contemplated or appreciated the possible consequences of their actions, the law nevertheless insists that general deterrence continues to have a role to play. Without diverting from authoritative judicial exhortations to that effect, I am only prepared to conclude that I should sentence Mr McDonald in a way that takes account of the need for general deterrence to a limited extent. It seems to me to be an extremely remote prospect that anything will be achieved, in terms of informing or educating the wider community upon the perils of crime, by a close examination or dissection of a sentence that I impose upon this offender in the particular but spontaneous circumstances of this case.

Unlawful and dangerous act

Having regard to the following matters, I consider that the jury could not have been satisfied that Mr McDonald had formed an intention either to kill the deceased or to cause him really serious injury. This is for a number of reasons.
First, the jury deliberated for only 35 minutes before handing a note to the sheriff indicating that they had arrived at a verdict. Having regard to the fact that the partial defence of extreme provocation had been left to them (see R v McDonald [2019] NSWSC 839), it seems to me to be abundantly clear that the jury could not have considered that issue in the time taken, but instead proceeded to find that the mental element of the offence of murder had not been proved by the Crown to their satisfaction beyond reasonable doubt.
Secondly, Mr McDonald's interview with the police included his version of what occurred and his reasons for doing what he did. That interview was evidence from which the jury could well have concluded that Mr McDonald had the intention that he described, being an intention to do no more than frighten the deceased.
Thirdly, Ed Wilkinson gave evidence of what occurred from his significant, albeit distressing, vantage point sitting next to the deceased when he was stabbed. The burden of his evidence is that he did not realise or appreciate that Mr McDonald had stabbed the deceased until after it had happened. He said in evidence that he thought Mr McDonald had merely "pointed him in the chest", suggesting that he initially and contemporaneously interpreted what occurred as a non-lethal remonstration by Mr McDonald with the deceased.
Fourthly, Dr Beer, a forensic pathologist, gave evidence that the amount of force that would have been required to cause the deceased's fatal injuries would not have been substantial. That appears clearly to coincide with Mr Wilkinson's observations at the time as well as with Mr McDonald's expressed intentions as related to the police after the event. Moreover, as Dr Beer indicated, death was occasioned only because the knife used by Mr McDonald perchance happened to perforate significant blood vessels causing immediate and substantial blood loss. The same wound would not have caused death if it had only resulted in an intramuscular lesion.
Fifthly, Mr McDonald's demeanour changed significantly when he learned from the police that he had killed his brother. Initially, he insisted that he only stabbed him in the shoulder, but was clearly alarmed to be told that in fact he had stabbed him in the chest. That alteration in mood, from indignant disbelief to distressed resignation, would appear to be entirely consistent with Mr McDonald's asserted intention that he had intended to stab him in the shoulder.
Finally, the evidence clearly revealed that Mr McDonald had consumed alcohol on the day leading up to the killing. Several police officers gave evidence that Mr McDonald exhibited signs of being moderately to well-affected by alcohol consumption. The jury were addressed upon the importance of this in considering the issue of whether or not Mr McDonald formed an intention to kill or seriously injure the deceased and were expressly addressed by Mr Watts of counsel for Mr McDonald to suggest that they could conclude that Mr McDonald was so affected that he was unable to form not only the requisite intention but possibly any intention at all.
For these reasons it seems apparent that Mr McDonald should now be sentenced upon the basis that the death of the deceased was caused by his unlawful and dangerous act, where a reasonable person in his position would have realised that he was exposing his brother to an appreciable risk of serious injury by stabbing him as he did: Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 at 333.

Objective seriousness

At the risk of some repetition, the following things should be noted in this context.
Mr McDonald stabbed the deceased only once by pushing the knife forward in a horizontal "pointing" motion. The amount of force used was not significant as the blade did not penetrate beyond approximately one third of its length despite only passing through soft tissue. The injury was only fatal because the blade caused incised wounds to the front of the aorta and brachiocephalic vein causing major blood loss. It would not have been a significant injury if the blade had missed those major blood vessels. Mr McDonald immediately went to his neighbour's residence and asked them to call the police as he had stabbed his brother. He participated in an ERISP the following morning and made full admissions.
The offence involved the use of a weapon and took place in the home where the deceased lived. It was not, however, part of a planned or organised criminal activity and was unarguably impulsive and unplanned. Moreover, I am satisfied that in committing this offence, Mr McDonald was clearly provoked by the deceased. In this last respect I have taken account of the Crown's submission that the evidence about this is scant. However, if one stands back from the incident in an attempt to explain why it occurred, it is difficult not to conclude that the deceased's behaviour played a not insignificant role in causing Mr McDonald to do what he did.
I consider in those circumstances that Mr McDonald's offence is by no means the most serious example of offences of its kind. There is no escaping the reality that the offence committed by Mr McDonald caused the death of another person. However, in that context it is my view that the offence lies well towards the bottom of the range of objective seriousness for offences of this type.

Discount for guilty plea

As already observed, Mr McDonald offered to plead guilty to manslaughter as early as October 2017. In R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, Howie J set out some principles of general application at [32] including the following: "An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129."
In my view, Mr McDonald is entitled to a 20 percent discount for the value of his plea. It was offered at a very early stage in the proceedings. It was vindicated by the verdict of the jury in his trial. There are in this case good reasons not to reduce the amount of the discount further below the maximum that is available in the circumstances.

Consideration

The maximum penalty for manslaughter is 25 years imprisonment. Since the offence of manslaughter covers such a wide variety of circumstances with differing penal consequences, determining an appropriate sentence for manslaughter is "notoriously difficult": R v Green [1999] NSWCCA 97 at [24]. In R v Blacklidge (unrep, 12 December 1995, NSWCCA), Gleeson CJ said this: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case."
I consider that Mr McDonald is unlikely to re-offend. Although he has a modest criminal history, Mr McDonald has conspicuously committed no offence of any kind since 2004 when he was sentenced to 100 hours of community service for an assault occasioning actual bodily harm. Possibly even more significantly, his last offences before that were in 1991. Having regard to the matters to which I will shortly refer, these are factors of considerable predictive importance.
If it were necessary to do so, I would also find that Mr McDonald has excellent prospects of rehabilitation. I express myself in those terms having regard to the fact that Mr McDonald's offence was, as he described it, a moment of madness, in what had been for nearly 30 years a relatively trouble free life. I am not unmindful of the somewhat patronising tone that accompanies a finding that a particular offender has prospects of rehabilitation when, as here, a momentary lapse of control lies at the heart of the problem. I have already indicated that there can be no issue that Mr McDonald has adequately and genuinely expressed remorse for his actions. My observations of his demeanour in court during his trial at various points of significance reinforced that view.
As will be apparent, Mr McDonald comes from an indigenous background marked by significant deprivation and disadvantage. The affidavit evidence from his sister extracted above is a sad but eloquent demonstration of that fact. The High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 made reference to this as follows: "[37] An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando: 'Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.' [38] The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. [39] The other respect in which Wood J proposed that an offender's Aboriginality may be relevant to the sentencing determination is in a case in which because of the offender's background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome. In each of these respects, the propositions enunciated in Fernando conform with the statement of sentencing principle by Brennan J in Neal: 'The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.' [40] Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
There is a well-known but unacceptable and disproportionate representation by indigenous Australians in the gaols of this country. There are many and varied reasons for this. In the case of Mr McDonald, his whole life has been punctuated with the depredations of family violence and alcohol and drug abuse. It is hard to imagine how anyone, even equipped with the most ferocious resolve, could ever avoid or escape being damaged by such things.
A poignant flavour of this was offered up by Mr McDonald's sister, Dulcie McLaughlin, when she spoke during Mr McDonald's interview with the police. She told the police that "drugs and alcohol have been the problem in my family for a long time".
In coming to a view about what should be a proper sentence to impose in this case, I have taken these matters into account.
I find that there are special circumstances as contemplated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 based on the need for Mr McDonald to undertake rehabilitation and assistance in relation to substance abuse once released into the community and the desirability of supervision to monitor that process. I have taken account of the report of Dr Adams and his recommendations in this respect. There can be no guarantee that Mr McDonald's return to the very community from which these proceedings have sprung will not create difficulties for him as he works to readjust his life there. The guidance and assistance of the NSW Probation Service will be very important in this process.

Victim impact statement

I was provided with a written statement prepared by Ruth Knight, the long-term partner of the deceased. Ms Knight spoke of her understandable reactions to the death of Edward McDonald, as well as that of their two children. All of these people would appear to be labouring with the burden of grief in various and personal ways. Edward McDonald's death is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of Edward McDonald in the eyes of his family and friends who remember him. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and Bollen v R (1998) 99 A Crim R 510, and I must conform to them.

Crimes (High Risk Offenders) Act 2000

By reason of the offence for which Mr McDonald is to be sentenced, he is a person who has committed a "serious violence offence" for the purposes of the Crimes (High Risk Offenders) Act 2000. That Act establishes a regime by which such an offender may become the subject of extended supervision orders or continuing detention orders before the expiration of his or her sentence. I am required by s 25C(1) of the Act to warn Mr McDonald of the existence of the Act and its application to him.
For reasons that I trust will be obvious, however, I would anticipate and hope that Mr McDonald's circumstances would not and will not attract the practical operation or implementation of any of the provisions of that Act. Mr McDonald is in need of continued community and family support rather than extended detention or cumbersome institutional supervision. His family attended in large numbers throughout the course of his trial and appears to me to offer the prospect of a very real source of productive reassurance and support. Moreover, the sentence that I intend to impose has been structured to ensure that Mr McDonald remains under the supervision of the NSW State Parole Authority for some years.

Sentence

Andrew John McDonald, for the wrongful killing of Edward McDonald I sentence you to a non-parole period of 3 years imprisonment commencing on 21 January 2017 and expiring on 20 January 2020 with a balance of term of 3 years expiring on 20 January 2023. The first date upon which you will become eligible for release on parole is 21 January 2020.

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: 11 July 2019

Crimes (High Risk Offenders) Act 2000(NSW)

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