R v McGuren

Knight v R [2006] NSWCCA 292; 164 A Crim R 126 CASES CITED : R v McEvoy [2010] NSWCCA 110 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES : The Crown John Alan McGuren (Offender)

COUNSEL : P Barnett SC (Crown) N Steel (Offender)

SOLICITORS : Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HER HONOUR: On 7 June 2010 the Crown presented an indictment charging the offender, John Alan McGuren, with the murder of Larry Rex Stewart. The Crown alleged that he murdered the deceased by striking him repeatedly to the head with the butt of a rifle after having forced entry to his home at 1 Wilkinson Lane, Gunnedah, late in the evening of 5 October 2008. The deceased's home was remote from neighbouring properties being located off the Oxley Highway, approximately 8 kilometres from Gunnedah, a town 78 kilometres from Tamworth. 2 It was the Crown case at trial (a case the Crown maintained on sentence) that the offender went to the deceased's home armed with a loaded rifle intending to kill him in retaliation for forming a relationship with Judith Cavanagh, the offender's former partner, while he was serving a prison sentence. Although the offender shot the deceased, the resulting injury to his neck was not fatal. The cause of death was associated with a complex of severe head injuries when the offender struck the deceased's head between 15 and 20 times with the butt of the rifle and, when it shattered under the force of the blows, with the metal barrel of the rifle. 3 On arraignment the offender entered a plea of not guilty to murder but guilty to manslaughter asserting by his plea that he killed the deceased in self-defence but that in so doing he exceeded what was reasonable in defence of himself. The Crown did not accept his plea of guilty in discharge of the indictment and the matter proceeded to trial.

4 On 1 July 2010, after the accused had given evidence but prior to the Crown Prosecutor's closing address, the offender asked to be re-arraigned whereupon he entered a plea of guilty to murder. Following his plea of guilty I convicted him of that offence for which he is now to be sentenced.

5 I am satisfied that the change of plea was motivated solely by the fact that after hearing submissions from counsel at the close of the evidence I signalled my intention not to leave self-defence to the jury. My reasons for coming to that view do not require elaboration since the offender gave evidence on sentence that he lied to the investigating police, and in his evidence before the jury, when he claimed that he struck the deceased because the deceased threatened him with a screwdriver and then assaulted him with it. In most cases an enquiry into why an accused changes his plea in the course of a trial might not warrant mention. In this case such an enquiry is warranted because the offender has asked me to find in his favour that he finally resolved to tell the truth about the circumstances of the murder after realising the pain and suffering that the deceased's family have endured. I reject his explanation. While he may well have been moved by the depth of pain the death of the deceased has caused his daughter and his sister as they each read their victim impact statements in the sentence proceedings, he could have been in no doubt about their suffering well before the end of the fourth week of the trial given their attendance throughout the trial and, in particular, during his daughter's evidence. I regard his motivations in changing his plea as simply a recognition of the inevitability of the jury's verdict and, in addition, given its timing, the plea is of no utilitarian value. It attracts no discount. The proceedings on sentence

6 In addition to relying upon the very considerable evidence tendered at trial, on sentence the Crown tendered an audio recording of a police interview with the offender which was convened at his request after the plea of guilty was entered. I note that this is the fourth time the offender has been interviewed by police since the deceased's death. He gave evidence that he told the police the truth in this most recent interview (and lied in each of the previous interviews) both with respect to his responsibility for the premeditated murder of the deceased and the involvement of others as accessories before the fact and after the fact to murder. I will return to consider the weight to be afforded his evidence on sentence in due course. 7 The Crown also tendered the offender's antecedent criminal records in New South Wales and Queensland and, to supplement particular entries on both documents, a transcript of proceedings in the Supreme Court of Queensland in 1996 when he was convicted of attempted murder, and a facts sheet tendered in Local Court proceedings in Gunnedah in 2008. The Crown also tendered a statement from Sally Wilson, a Probation and Parole officer, who had dealings with the offender in March 2007 whilst he was a serving prisoner.

8 Together with the offender's sworn evidence, two reports from Dr Olav Neilssen, forensic psychiatrist, dated June and November 2009 were tendered on his behalf. The facts for sentencing purposes 9 For sentencing purposes I am persuaded by the evidence of the following facts beyond reasonable doubt: 10 In December 2006 Ms Cavanagh terminated her relationship with the offender motivating him to threaten to kill her and to wield an axe at her car causing very considerable damage. On that day the offender was charged with various offences associated with this behaviour and released to bail. He was bailed to reside with the deceased.

11 Apprehended violence orders were sought and obtained for Ms Cavanagh's protection. For some weeks after his arrest the deceased visited Ms Cavanagh at the offender's request delivering unsolicited letters from him. 12 Prior to 3 April 2007 when the offender was imprisoned for the offending involving Ms Cavanagh the previous year, he formed the belief that the deceased had formed a relationship with her, or intended forming a relationship with her. As a consequence he left the deceased's premises and took up residence with Buddy Riley in Curlewis. At this time he was extremely angry and vocal at what he perceived to be the deceased's betrayal of him. He threatened to damage the deceased's car if he did not stay away from Ms Cavanagh. I am also satisfied from what the deceased reported to Ms Cavanagh and to other members of his family at this time that the offender had telephoned him and threatened to kill him. 13 On 9 February 2007 the offender sent the deceased a text message in the following terms: "Remember what I said. If I find out you're going calling her, I'm going to pay you a visit. You think I'm stupid. I'm not stupid. I'll find out. Remember that". 14 A friendship between the deceased and Ms Cavanagh developed prior to the offender being sentenced in April 2007 but it did not mature into an intimate relationship until after the offender went to prison. Thereafter their relationship continued. It was current at the time of the deceased's death. 15 While the offender was serving his sentence he continued to harbour feelings of ill will towards the deceased. These feelings crystallised into an intense hatred of him when he was told by Mr Riley and Allan Syphers of the then established relationship between the deceased and Ms Cavanagh in the course of a jail visit. 16 I am satisfied that at some unspecified time, at the latest during the last six months of his sentence, the offender formed the intention of killing the deceased upon his release. I am also satisfied that his intentions were communicated to the deceased, most likely via other inmates at the offender's direction who had access to an illegal mobile telephone. The overwhelming weight of evidence led at the trial from the deceased's friends and family compels this finding. The deceased reported receiving waves of threatening phone calls, including death threats from people whose voice he did not recognise, and that on other occasions there would be a menacing silence at the end of the phone. I am also satisfied that he was genuinely frightened of the offender, a fear which intensified as the offender's release date approached. The deceased took extraordinary measures in anticipation of the offender's release including seeing a solicitor to prepare his will, hiding his restored Dodge motor car and asking his friend to assist him in acquiring a gun. He and Ms Cavanagh also agreed not to see one another until well after the offender was released, when they were able to make some joint assessment of what to do in the event that he was in fact aggressive and threatening towards them.

17 On 15 September 2008 the deceased and Ms Cavanagh sought advice from a social worker who advised that they contact police about the death threats. The following day the deceased contacted local police who suggested that he apply for a personal violence order and have it served upon the offender prior to his release from prison. The deceased did not take that advice, apparently concerned that it would only incite the offender and make matters worse. The police officer did suggest however that the deceased should take measures to protect himself, at least by locking up his home at night. I am satisfied that the deceased took that advice and that on the night he was killed the offender forced entry to his home.

18 On Thursday 2 October 2008 the offender was released to parole and returned to Curlewis where he resumed living with Mr Riley. Within hours of his arrival in town his attitude to the deceased was observed by many people with whom he was in contact. He told one witness that the deceased's "days were numbered" and that "the bastard was going to die". He made it clear to that person that this was solely because of the deceased's relationship with Ms Cavanagh. The morning after his release he drove past the deceased's workplace and screamed abuse at him. Later that afternoon he drove past Ms Cavanagh's home and gestured towards her in an impliedly menacing or mocking manner. 19 On Saturday 4 October 2008 the offender again drove past the deceased's workplace and, later that afternoon, when the offender saw the deceased driving towards a roundabout he leant out of the window and simulated a gun being fired with accompanying sound effects.

20 Some time during the afternoon of Sunday 5 October 2008 the offender decided to kill the deceased and made preparations to carry out his objective. In his evidence before the jury, and again on sentence, the offender went to great lengths to implicate Allan Syphers as the person who provided him with the gun that was used to kill the deceased and the person who encouraged him to use it. He also said that Mr Syphers provided him with what he was told was a lethal dose of a narcotic to administer to the deceased as an alternate method of killing him. He said that Mr Syphers directed Mr Riley to drive him to the deceased's home. Although I am satisfied that Mr Riley did drive the offender to a designated place on the highway within half a kilometre of the deceased's home in Mr Syphers' car, and that after the killing he returned to collect him, I make no finding as to whether Mr Syphers had knowledge of those arrangements or whether he participated as an accessory before the fact to murder. While I have some doubts as to whether Mr Syphers was completely truthful in his evidence concerning his knowledge and involvement in the deceased's death, it is not a matter that has any bearing at all on the sentence to be imposed on this offender. I have not been invited by his counsel to reduce his sentence because of his offer to give evidence against Mr Syphers were he to be charged with being an accessory before the fact to murder. This is doubtless in recognition of the fact that on his client's behalf he could not have discharged the evidential burden of satisfying me of any of the various matters set out in the s 23(2) of the Crimes (Sentencing Procedure) Act 1999 such as might justify a reduction of sentence in the exercise of discretion. In that regard I note Senior Constable's Vallette's evidence that because of Mr Riley's suicide the day after the murder, the offender is the only source of evidence against Mr Syphers and, as an admitted perjurer and confessed murderer, he is not a person who, in her assessment, could be regarded as a reliable witness. 21 I am satisfied that the offender arrived at the deceased's home armed with a loaded rifle (probably obtained with Mr Riley's assistance) some time after 9 pm. I am also satisfied that he forced entry through the front door and, in that way, took the deceased completely by surprise. I reject his evidence that he walked in through the open front door after the deceased moved from the veranda as a result of the rain, and I reject his evidence that the damage to the front door occurred after the killing when he returned to collect items that he claimed to have left behind. Although it may be that the offender also had drugs and a syringe with him to simulate a drug overdose, I am not satisfied of that fact beyond reasonable doubt. I simply cannot accept the offender's evidence that he was able to inject the deceased whilst at the same time having him under his control at gun point, much less that the deceased allowed himself to be injected without apparently saying anything or, as the offender would have it, that he enjoyed the drug experience so much that he engaged in a civil conversation with the offender and shared a cigarette. I reject entirely the offender's account that with the air of conviviality he had created by introducing the drugs he considered leaving the house without harming the deceased, and that it was only when the deceased grabbed for a piece of turned wood to strike him that he pulled the trigger and shot him in the neck. While I cannot be certain as to how the deceased was shot, for sentencing purposes I am satisfied that the shooting was intentional and that it occurred in the course of the offender confronting the deceased with a loaded weapon, most likely in a failed attempt by the deceased to defend himself against the offender's stated intentions not to leave the house until the deceased was dead. 22 Either because of a defect in the rifle due to its age, or the angle of the bullet's entry, or both, the gunshot wound was not fatal. It passed through the soft tissues of the deceased's neck without coming into contact with any of the internal structures or the major blood vessels in the neck before lodging in his upper arm. Thereafter, however, the offender persevered with his intention to kill the deceased by beating him about the head with the butt of the rifle with such force that it shattered into pieces. I am satisfied that the very great majority of the 15 to 20 separate blunt trauma head injuries were inflicted whilst the deceased was lying face down on the concrete floor at the rear of his home in a state of deep unconsciousness as a result of a severe blow above his eye, sustained whilst he was upright, and which caused a depressed fracture to his skull from which brain matter protruded. While this blow alone would likely have caused death in time, because of the overlay of the massive head injuries inflicted thereafter, the forensic pathologist was unable to attribute any single blow as the cause of death. The deceased also suffered a fracture to his arm, a fractured rib and associated soft tissue injuries to his trunk and his limbs in the assault. 23 In his evidence the offender acknowledged that he inflicted all of the injuries revealed on autopsy, including the very severe injury to the deceased's forehead, but claimed to have a memory of only beating the deceased half a dozen times to the head as he lay helpless on the concrete floor. He said he inflicted the injuries in a state of extreme rage and hatred because the deceased had betrayed him by commencing a relationship with Ms Cavanagh, and because he believed she was using drugs at the deceased's suggestion or urging. Ms Cavanagh gave evidence that she did use drugs with the deceased but that she did so infrequently and of her own volition.

24 In sentencing the offender it is necessary for me to have regard to s 19A of the Crimes Act 1900 and s 21 and s 61 of the Crimes (Sentencing Procedure) Act ("the Sentencing Act"). 25 Section 19A of the Crimes Act provides: "(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)."

26 Section 61 of the Sentencing Act provides: " (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 27 The Crown did not submit that a sentence of life imprisonment should be imposed in this case conceding (appropriately in my view) that the offence did not fall within the worst category of case of murder for which the maximum penalty is prescribed (see Knight v R [2006] NSWCCA 292; 164 A Crim R 126). 28 The offence of murder is, however, an offence to which a standard non-parole period of 20 years is provided for pursuant to the provisions of Div 1A of Part 4 of the Sentencing Act. This is the non-parole period which is to be imposed for offending in the mid range of objective seriousness after trial, unless there are aggravating or mitigating factors justifying a greater or lesser period, relative to the standard non-parole period of 20 years.

29 Section 54B(3) of the Sentencing Act specifies that the only reasons which justify departure from the standard non-parole period are the aggravating and mitigating factors referred to in s 21A, and that is so irrespective of whether the sentence under contemplation is greater or lesser than the specified 20 years. Section 21A(1)(c) also requires me to take into account any other objective or subjective factor that affects the relative seriousness of the offence, and provides that these matters are in addition to any other matters required or permitted to be taken into account under any Act or rule of law.

30 As the Court of Criminal Appeal in R v McEvoy [2010] NSWCCA 110 has very recently had occasion to emphasise, the legislature has provided a structure by reference to which sentencing for a standard non-parole period offence is to be passed, obliging me to clearly articulate the reasons why, in this case, an assessment of the objective seriousness in this offending falls within, above or below the mid range of offending for murder.

31 The concept of objective seriousness was described in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85] as follows: "The multiplicity of purposes of sentencing set out in s 3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender…"

32 The Crown submitted that this offending was in the upper end of the upper range of objective seriousness and that the circumstances in which the plea of guilty was entered do not alter the sentencing consequences of such a finding, namely the need to consider a departure from the standard non-parole period by the imposition of a longer non-parole period than 20 years. 33 I accept the Crown's submission as a proper characterisation of the level of objective seriousness in this case. Not only is a clearly articulated intention to kill a consideration tending to greater objective seriousness, but in this case the killing was premeditated and carried into effect with chilling and sustained brutality. I am satisfied that the offender had been planning the murder at the same time as waging an unremitting fear campaign with the deceased as the target. The offending is aggravated by the fact that the offender was subject to parole at the time of committing the murder, as well as being the subject of an apprehended violence order, breaches of which attracted a fresh sentence prior to him being charged with the deceased's murder in December 2008.

34 I am not persuaded that there is anything personal to this offender that would, in any relevant sense, mitigate against characterising the murder as offending of the gravest kind. The fact that the offender believed he was entitled to punish the deceased for what he believed to be his wrongdoing in regards to Ms Cavanagh is not a matter to be taken into account in his favour when assessing objective seriousness. In fact, I regard this explanation for his behaviour as wholly irrelevant to the sentence to be imposed in this case.

35 When he was interviewed by Dr Nielssen in September 2009 the offender was maintaining the fiction that he killed the deceased in self-defence. Dr Nielssen's report has to be read in that context. He told Dr Nielssen that after his release from prison he drank to excess each day to reduce his anxiety and to help him sleep. He also claimed that alcohol diminished his ability to control his anger giving rise to a tendency to act impulsively. On a full mental state examination Dr Nielssen diagnosed a chronic low-grade depression, probable obsessive-compulsive disorder and a substance abuse disorder. However, as Dr Nielssen observed, the offender did not describe his actions in wanting to confront the deceased, and overreacting to the deceased's attack by beating him to death, as responsive to symptoms of any psychiatric disorder. Dr Nielssen went on to say that the effect of the offender's condition would be difficult to separate from the effects of alcohol consumed on the day of the offence. He went on to say: "The main factor that emerged from the history and Mr McGuren's own analysis of his emotional problems was his inability to accept rejection from relationships. His inability to cope with rejection in a mature way, in combination with the effects of substance abuse, appears to be a common thread in all of his previous offences. He would appear to need long term psychological treatment to address this problem." 36 In these circumstances, I do not consider there is any established causal connection between the offender's underlying condition and the deceased's death. The decision to kill was not impulsive but planned and executed with chilling dispatch.

37 The fact that this offender has a lengthy criminal record is not in itself an aggravating feature and is not relevant to an assessment of his moral culpability (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566). In this case, however, I regard his prior record as indicating the need for the sentence to ensure the protection of society in accordance with s 3A of the Sentencing Act, given his tendency to react with uncontrolled violence when he feels others have wronged him, or when he feels frustrated at being rejected by those with whom he has an emotional connection or upon whom he depends for his emotional needs. Clearly sentences of imprisonment in the past have not had a deterrent effect as the following summary of his criminal antecedents makes plain.

38 His record in New South Wales commenced with an appearance before the Gunnedah Children's Court in 1980 for a driving offence when he was aged 16, followed by appearances in the Gunnedah and Tamworth Local Courts also for relatively minor offences over the next ten years or so.

39 Between the late 1980s and 2002 the offender was resident in Queensland. His criminal record in that state records that in four months between February and June 1995 he committed four separate breaches of apprehended domestic violence orders put in place for the protection of another woman with whom he had been in a relationship for some years. In July 1996 he was convicted after trial of attempting to murder that woman by strangulation after forcing entry into the home she shared with her children. He was sentenced to imprisonment for 6 years. His appeal against conviction and sentence was dismissed. In August 2001, following his release from prison, he was again convicted and sentenced to 6 months imprisonment for an offence of violence, on this occasion an assault occasioning actual bodily harm. In January 2002 he was convicted and sentenced to a further term of 3 months imprisonment for a breach of a domestic violence order and related offences. It would seem that after serving that sentence he returned to New South Wales where he did not come to the attention of police until the offending involving Ms Cavanagh in December 2006. 40 In April 2007 he was sentenced to concurrent terms of imprisonment with an aggregate non-parole period of 18 months for that offending, and for other offences committed eleven days later involving, on this occasion, the contravention of an apprehended domestic violence order put in place for Ms Cavanagh's protection, and a further charge of stalking or intimidating her with intent to cause physical or mental harm.

41 I have already noted that he was released to parole on 2 October 2008 in respect of that course of offending and that three to four days later he murdered the deceased. The day before he murdered the deceased he again contravened the apprehended violence order put in place for the protection of Ms Cavanagh. He was arrested in respect of that offending on 7 October 2008 - the day after he murdered the deceased. He was convicted of the breaches of the apprehended violence orders on 5 January 2009. That offending attracted a term of imprisonment of 15 months and a non-parole period of 12 months dating from the time of his arrest. That period of imprisonment was fully served whilst he was a remand prisoner for murder, that charge being laid on 6 December 2008.

42 Although at the time of his arrest in respect of the breach of the apprehended violence orders he was suspected by police of having murdered the deceased, there was insufficient evidence upon which to ground a charge since there was no forensic evidence linking him with the crime scene. As the evidence at trial made clear this was as a result of the offender taking careful and concerted steps to ensure that his presence at the deceased's home was erased. The investigation was also hampered by Mr Riley's suicide. Although the offender voluntarily participated in a record of interview on his arrest on 7 October 2008, and was questioned in respect of the death of the deceased, he falsely denied, in what can only be described as declamatory terms, having ever visited the deceased at his home, knowing of the relationship between the deceased and Ms Cavanagh or being responsible for his death. It was not until he was recorded covertly in a conversation with an inmate in November 2008 that his hatred for the deceased was put beyond any doubt. I am satisfied that in this unguarded conversation he expressed his true attitude towards the deceased including his boastful pleasure knowing of the deceased's death, and the manner of his death, even if at that time he was taking no responsibility for it.

Matters in mitigation 43 In the course of his evidence on sentence, in accepting responsibility for the deceased's death and acknowledging the immeasurable injury and loss that others have suffered as a consequence, the offender did show some remorse in the terms provided for in s 21A(3)(i) of the Sentencing Act. I am obliged to take that into account in the calculation of sentence although, in all the circumstances, I afford it very limited weight. That said, it does give some faint indication of the offender's preparedness to address his psychological vulnerabilities and to accept what guidance and assistance is afforded him in the prison system as he serves what will be a very long sentence. To date he appears to have unilaterally rejected the opportunity to participate in prison-based courses for violent offenders treating them as a waste of time and simply a protocol adopted by the Department of Corrective Services to protect itself against criticism in the event that he reoffends. I can only hope that his attitude has changed or will change over time. I do not regard his prospects of rehabilitation at this time as good and I cannot find in his favour that he is unlikely to reoffend.

The victim impact statements 44 Before I impose sentence it is important that I pause and acknowledge the central part the deceased played in the life of his older sister and the guiding and loving influence on his daughter and her children. As they are aware, I have not received their evidence for the purpose of increasing the sentence to be imposed on this offender but to allow them both the opportunity to participate in the sentence proceedings by publicly expressing their grief and making me aware of its impact on them. I accept without qualification that they feel the loss of the deceased on a daily basis, and that there has been no lessening of sadness over the years since his death. I take this opportunity to extend my personal sympathies to them.

Sentence 45 John Alan McGuren I sentence you to imprisonment for a term of 34 years commencing on 4 January 2010 and expiring on 3 January 2044. I fix a non-parole period of 25 years and 6 months also commencing on 4 January 2010 and expiring on 3 July 2035.

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