R v McIntosh [1999] VSC 358

5. You have also pleaded guilty to the theft on the same day of a number of items of property belonging to the deceased, and to the theft on 28 May and 31 May of various items belonging to another person named Warren Doubleday.

8. You have admitted one prior conviction for an offence of dishonesty arising from a court appearance in 1987. In the context of the present matter, that conviction appears to me to be capable of possessing, at most, marginal significance and has not affected the sentences at which I have arrived.

11. The factual foundation upon which the prosecution and the defence have agreed that it is appropriate to proceed for sentencing purposes has been set out in a document headed, "Summary of principal facts upon which the Crown intends to rely". In the circumstances, I consider that I should read the relevant portion of the document in open court and thereby incorporate it in my sentencing remarks. It reads:

"(a) Circumstances of the offence and the role of the Accused. The deceased is Raymond Wai Ming Lee whose date of birth was 19 December 1965. At the time of death he was 33 years of age. He was employed as a computer engineer by Ericsson Australia. He lived on his own in his parents' flat at Unit 7, 7-13 Kent Street, Ascot Vale. His parents lived overseas. The deceased was found by his sister on 3 June 1998 in the main bedroom of the flat. He was lying face down on the bed, naked, with a blindfold over his eyes and a cord around his neck. The cord was tied in a slipknot and looped twice around the neck. Postmortem examination revealed that the deceased had died by strangulation. The horns of the thyroid cartilage were fractured. There were no other signs of injury to the deceased. It was the pathologist's, Dr Shelley Robertson, opinion that the deceased would have died as a result of pressure from the cord being applied to the neck "for a period of time". The circumstances of the death suggested "erotic asphyxia" and bondage. The deceased's personal belongings in the flat had been disturbed and the upstairs rooms were described by the sister as 'in a mess'. Investigation of the deceased's background revealed that he had been involved in casual homosexual relationships with a number of men in the years prior to his death. One of those men was the accused. Some of the deceased's relationships, including that with the accused, involved bondage, where ropes and blindfolds were used. The accused and the deceased first met approximately two years prior to the killing. The relationship involved periodic meetings where bondage type sex took place. The deceased was last seen alive on the afternoon of Friday, 29 May 1998. On 28 May he and the accused spoke to one another by telephone on several occasions. The deceased recorded in his diary for 29 May 1998, 'Chris coming over'. Subsequent telephone calls to the deceased on the evening of 31 May went unanswered. The accused was born on 1 September 1967. He lived with Warren Doubleday at 8 Percy Street, Kensington. He was unemployed but had made attempts to get a bondage, sadomasochism type of club going in Collingwood called 'The Katacomb'. It is clear that by mid-May 1998 the accused was going to shut down the club and had told various people that he was going to Queensland. On 30 May he failed to keep an appointment at the club with prospective purchasers of some of its fittings. Doubleday left Melbourne to travel interstate and overseas on 28 May 1998. He was to meet the accused in Sydney on 5 June. The accused did not attend that meeting. When Doubleday returned home on 7 June he found a large amount of his furniture, his car and other belongings missing. He found a note from the accused indicating that he had taken the car and the other items and was going to the Northern Territory/Western Australia border to kill himself because he had a terminal cancer. A number of the items taken from the house were sold on 28 May in Melbourne. Other items were sold over succeeding days as the accused drove the stolen car to Queensland. The accused became a suspect for the killing of the deceased. On 21 July 1998 he was arrested for other matters in a caravan park at Carrara in Queensland. He was found in possession of a number of credit cards of the deceased. In a recorded conversation with Queensland police, when asked about his possession of items bearing the name of the deceased, the accused denied any knowledge of him and claimed to have found them in a box of goods he had purchased at a trash and treasure market. Later, that same day, the accused was interviewed by Victorian police in a record of interview in respect of the death of the deceased. He prevaricated as to whether or not he knew the deceased, denied that he had been to his home, admitted to being involved in bondage sex with 'Ray', admitted that he owed him money, claimed to have last spoken to him on 15 or 22 May, 'passed' on whether or not he went to his house on 28 or 29 May, admitted that it would be 'very unsafe' to place a rope around someone's neck, but otherwise refused to say anything about his death. The Crown case against the accused is that he deliberately pulled on the rope around the neck of the deceased whilst the two were engaged in bondage sex. It accepts that by doing so he did not have murderous intent and that the death was unintended. The Crown accepts that there is no evidence to suggest that the deceased did not consent to the rope being placed about his neck and the accused pulling on it so as to cause a degree of asphyxia, presumably on the theory that near asphyxia can heighten sexual pleasure. The plea of manslaughter is accepted by the Crown on one or more of the following legal bases: 1. Unlawful and dangerous act, consent being no defence in a case such as the present. See R v. Brown (1994) AC 212; 2. Unlawful and dangerous act, the unlawful act being pulling the rope for longer or tighter than that to which the deceased consented; and 3. Negligent manslaughter, consent not being relevant."

15. That is the document with which the court was provided. I have looked through the depositional and other material and it appears to me that the foundation upon which this matter had been presented by both the prosecution and on your behalf is entirely appropriate in the circumstances.

18. The occasioning of death may be designated as manslaughter in a wide variety of circumstances and on the basis of more than one legal formulation of that crime.

21. In your case, the prosecution has advanced two possible formulations. First, it has been submitted that the conduct in which you consciously engaged and which resulted in the death of the deceased was both unlawful and dangerous, the latter expression refers to an act the performance of which a reasonable person would perceive as exposing the victim to an appreciable risk of death or significant injury. That your conduct would satisfy this test of dangerousness appears to me to be clear beyond dispute.

24. However, the question arises as to whether your behaviour was also unlawful. The prosecutor argued that it could be so characterized, relying upon the decision of the House of Lords in R v. Brown.

27. The contention was advanced that the actions in which you engaged involved the employment of substantial physical force and violence against another. In the absence of consent, it would have clearly been unlawful. As a matter of public policy, the argument proceeded, the law cannot countenance the engagement of individuals in such physically abusive and intentionally injurious behaviour, even where there is present the full and informed consent of each participant.

30. I do not consider that it is appropriate in the context of a judge's sentencing remarks to embark upon an elaborate analysis of the historical and conceptual development of the law in this area. What I propose to do is to set out in a relatively brief form my understanding of the present situation.

33. First, it is not, of itself, and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism.

36. Second, the possibility that an activity involves the application of physical force to another and is accompanied by a real risk of even quite serious injury does not, of itself, render that activity unlawful. If that were the case many sporting contests would become unlawful.

39. Third, apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself.

42. In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized.

45. In your case, I do not consider that it could be inferred beyond reasonable doubt that the engagement by the deceased and yourself as consenting adults was intended to result in the infliction of any significant physical harm or that it was within the contemplation of either of you that it probably would.

48. Accordingly, the general activity in which you were engaged could not be properly regarded as unlawful for the purposes of the application of the unlawful and dangerous act formulation of the crime of manslaughter.

51. Accepting that that may be so, the prosecutor then submitted that the inference could be safely drawn that the deceased did not consent to the kind of violent treatment to which he was, in fact, subjected.

54. There is, I consider, considerable force in this contention. It is reasonable to infer that the deceased did not agree to be strangled with the application of sufficient force that the horns of the thyroid cartilage were fractured and for what has been vaguely described by the pathologist as "a period of time", or that the deceased even contemplated that force of such severity would be used. Nor do I consider that there is any suggestion in the material that you may have been under the mistaken perception that he had.

57. On that basis the matter can be properly viewed as one in which you have committed an unlawful assault upon the deceased and, accordingly, the unlawful and dangerous act formulation of the crime of manslaughter would be applicable.

60. In any event, the situation was one in which, on the basis of the material before the court, you could be properly regarded as criminally negligent. As I have already pointed out, you were engaged in an inherently dangerous activity on any view of it and the inference is irresistible, in my opinion, that you were grossly negligent in the circumstances.

63. Each of the foundations upon which your plea of guilty could be properly approached is based upon the same general factual scenario and each is dependent upon your preparedness to engage in extremely dangerous behaviour. In that situation and in the circumstances of the present matter, it seems to me that, as a practical proposition, there would be no different sentencing outcome whichever was adopted.

66. Clearly, as I have emphasized, the major factor militating in favour of the imposition of what might be described as a significant sentence, is the societal need to deter engagement in unlawful physically violent and life threatening acts on the one hand, or the occasioning of death through grossly negligent conduct on the other. This, it must be stated, is not based upon any moralistic response to the sexual predilections of those involved in bondage or sadomasochistic activities, for we are not here concerned with such matters, but rests solely upon the reasoning underlying the attribution of criminal responsibility on the basis of the relevant formulation.

69. I accept that up to and including the night on which he died, you were on good terms with the deceased and that there was no underlying animosity in your relationship with him which could provide a sinister background to your actions.

72. It is, I think, highly likely that your conduct on the night on which the deceased was killed, specifically your obvious lack of appreciation of what was happening to him, was greatly affected by the intensity of a depressive episode which you were then experiencing and which had been earlier manifested by your theft of property from your friend, Mr Doubleday.

75. I accept that your conduct after the death of Mr Lee, including the thefts which you committed at that stage was consistent with a combination of feelings of depression, remorse and panic.

78. There is no need to set out the detail of your background as it emerged from the depositional material, the submissions of your counsel and the report of the psychiatrist, Dr Barry -Walsh. It is entirely consistent with the evidence of Mr Doubleday which I accept. He presented you as a lonely individual, who suffered periods of depression and withdrawal, describing you as "a genuine person" for whom things had not gone well in life and who was genuinely remorseful about what had occurred.

81. Against this background, I do not consider that the notion of specific deterrence assumes any significance as a sentencing consideration in your case.

84. On the other hand, I do think that your eventual rehabilitation is a factor to which serious regard must be had.

87. I have given much thought to the sentences to be imposed for your various offences, directing attention, among other matters, to the purposes for which sentences may be imposed and which are set out in the Sentencing Act and the guidelines for sentencers contained in s.5.

90. Ultimately, the irrevocable reality must be borne in mind that, as a consequence of your criminal conduct, a person has been killed.

93. That is a fact of grave importance to our society and to a number of persons who have been more intimately affected by it, including the members of his family whose victim impact statements have been filed in the court.

96. I am of the view that, bearing in mind all of the matters to which I have adverted, the appropriate sentence on the count of manslaughter is imprisonment for a period of five years. On each of the theft charges, you are sentenced to imprisonment for a period of one month. All sentences are to be served concurrently. I fix a minimum term before which you will become eligible for parole of three years.

99. I declare that the period of 410 days of detention which you have already undergone is to be reckoned as having been served under this sentence and I direct that this declaration and its details be entered in the records of the court.