R v Stephen Anthony CAVANAGH

Supreme Court of NSW|2010-02-22|Before: Rothman J

CITATION : R v Stephen Anthony CAVANAGH [2010] NSWSC 670

HEARING DATE(S) : 22 February 2010, 24 February 2010, 1 March 2010-5 March 2010, 8 March 2010-12 March 2010, 15 March 2010-17 March 2010

DECISION : Sentenced to imprisonment for a non-parole period of 5 years, commencing on 28 August 2008, and expiring on 27 August 2013, the balance of term being 4 years, expiring on 27 August 2017. First eligible for release on 27 August 2013.

CATCHWORDS : CRIMINAL LAW - sentence - manslaughter - substantial impairment of mind - brutal killing - sentence imposed - no issues of principle

PARTIES : Regina (Crown) Stephen Anthony Cavanagh (Offender)

COUNSEL : P Cattini (Crown) P Young SC (Offender)

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

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HIS HONOUR: On or about 20 August 2008, Steven Cavanagh killed his mother, Estelle Cavanagh. At the time of the offence, Mr Cavanagh was 53 years of age. The Crown charged Mr Cavanagh with murder, to which Mr Cavanagh pleaded not guilty to murder, but guilty of manslaughter by reason of substantial impairment of the mind and/or provocation. After trial, a jury returned a verdict consistent with the plea of Mr Cavanagh. The Court must now sentence him for manslaughter. Facts 2 The conduct of Mr Cavanagh, causing the death of his mother, is very simple. Mr Cavanagh returned home, where both he and his mother lived, after a counselling session relating to issues associated with continued access to his, and his former partner's, children. He had a conversation with his mother, during which he "snapped" and choked her with his hands until she fell to the floor. Subsequently, he strangled her with an electric cord, wrapped her body in a tarpaulin (held in place by the same electric cord), drove her to the mountains and buried her. After digging a hole for the burial, Mr Cavanagh realised that the body would not fit and he placed the body in the hole and used a crowbar to make the body fit the hole. Relationship background 3 The objective facts of this offence are set out starkly in the foregoing paragraph. But there is more to this offence, and it relates to the relationship background of Mr Cavanagh, with his mother, his ex-partner and his children. Relevantly, those relationships are intertwined. 4 Mr Cavanagh had purchased a home in Jindabyne in which he lived with his partner and their children. In around 2003, Mr Cavanagh and his former partner separated. He became severely depressed. There were issues between him and his former partner, as one would expect, relating to the division of assets and joint parenting. 5 The settlement of the property dispute involved Mr Cavanagh purchasing his partner's share of the family home, including the paying out of her half of the mortgage. This, according to Mr Cavanagh, he did in order to keep the house for his sons, because it was there that they had grown up. Apparently, arrangements were made to borrow the necessary funds, $195,000, to achieve this result, but, at the last moment, his mother offered to lend him the money. His mother had provided other amounts of money for other purposes over a period of time, particularly in relation to a business venture. 6 The property in question was transferred into the name of Mr Cavanagh's mother. Shortly thereafter, his mother, who had been working as a volunteer caretaker at the Wayside Chapel in Sydney, lost her position there, including the accommodation that had been provided with that position. His mother requested that she live with Mr Cavanagh. Mr Cavanagh hired a truck and went to collect his mother's belongings. It seems that Mr Cavanagh's mother had hoarded material and insisted on bringing all of that material with her. 7 Nevertheless, thereafter Mr Cavanagh's mother moved in with Mr Cavanagh and Mr Cavanagh and his mother lived together in the house in Jindabyne. According to Mr Cavanagh, his mother became increasingly aggressive, disinhibited and unclean. The tension between Mr Cavanagh and his mother was manifest. 8 Mr Cavanagh blamed his mother for his deteriorating relationship with his children. His children described it otherwise. But whether it was obvious to the children or not, the tension between Mr Cavanagh and his mother plainly led to the deteriorating mental health of Mr Cavanagh. 9 At autopsy, Mr Cavanagh's mother had physical symptoms consistent with the early stages of Alzheimer's disease. During the course of the period of time prior to her death, she underwent a test for dementia, which did not disclose any major cognitive disorder. Nevertheless, it is well known that in its early stages some of the symptoms of Alzheimer's can manifest, even without any significant or noticeable cognitive impairment. Some of those symptoms included disinhibition, aggression, and incontinence. 10 Apparently, the depression under which Mr Cavanagh suffered, and with which I will deal shortly, was the subject of comment by his mother. In particular, she was critical of him to other people and continually criticised him, to them and to Mr Cavanagh, for his behaviour, for example, his apparent lack of energy and motivation and his inability to find work. These behaviour patterns were symptoms of his depression. 11 Mr Cavanagh's depression became apparent and manifested in a number of ways. He continued to suffer depression and lost his temper with those around him, including his children. The children, whether encouraged by their mother or not, preferred not to be with their father. It was a tense household. Mr Cavanagh blamed his mother for the children's attitude and their non-attendance at the home. 12 The children's living arrangements were the subject of mediation under the Family Court facilities. Relationships Australia counselled Mr Cavanagh and his former partner and sought to resolve these issues. According to Mr Cavanagh, but denied by the counsellors, Mr Cavanagh was informed that the tension between his mother and him had to be resolved. 13 This information, according to Mr Cavanagh, whose version in this respect I accept, occurred on 20 August 2008. He drove home from a counselling session and spoke to his mother. He proposed that he sell the premises in which they both lived, pay her $300,000 and each of them would live in separate premises. Her response, according to Mr Cavanagh, was that she reminded him that the house was hers and said words to the effect that he [Mr Cavanagh] and his children could "get stuffed and get out of her house". 14 Mr Cavanagh snapped. He said that he was unaware of what precisely was happening or how long it took. He grabbed his mother by the throat and strangled her and pushed her into the laundry, from where he obtained an extension lead, wrapped it around her throat and, with his foot on her back, pulled the cord. Substantial impairment 15 While the defence was conducted on the basis of both provocation and substantial impairment, I am of the view that the verdict is consistent with substantial impairment, to which most of the evidence related. 16 Some of the history of Mr Cavanagh has been outlined sufficiently to show the depressive illness and its basis. On 12 March 2003, well before the current incident, a report noted that Mr Cavanagh had obtained psychological assistance and displayed psychiatric symptoms, being, difficulty getting out of bed, poor sleep, lack of appetite, depressed moods and bouts of crying. He was grieving the loss of access to his sons, although he presented generally as a confident person with a "stereotypical masculine view of the world". Plainly, at this early stage he was suffering depression. 17 A further note, dated 20 October 2003, evidenced that Mr Cavanagh's symptoms were continuing. There are continuing notes and diagnoses to this effect from mental health professionals in these early periods. 18 With one major qualification, the psychiatric evidence qualified by the Crown and that qualified by Mr Cavanagh were to the same effect. The qualification related to some material that, expressly in the case of Dr Allnutt, who was qualified by the Crown, may have been inconsistent with depression and forming part of the cause of his conduct. That material related to a suggestion that the killing was premeditated. The Court finds, as did the jury, that there was no premeditation and the qualification is of no consequence. 19 Dr Nielssen, who was qualified by Mr Cavanagh, in his Report of 12 August 2009, diagnosed Mr Cavanagh as having: major depression, in partial remission; and cannabis abuse disorder. He opined: "The diagnosis of major depression was made on the basis of Mr Cavanagh's account of the full syndrome of major depression in the period before the offence, his account of previous treatment for depression and the descriptions of his behaviour in the summary of the witness statements and in the Custody Management Record.

Mr Cavanagh may have an inherited vulnerability to develop depression and may not have fully recovered from the episode of depression around the breakdown of his marriage, as he did not receive the full array of treatment and did not return to work. However, he seems to have made at least a partial response to treatment with antidepressant medication whilst in custody.

The diagnosis of cannabis dependence syndrome is made on the basis of a history of regular cannabis use, and the likely contribution of cannabis use to the persistence of symptoms of depression.

There was no history of developmental abnormality, brain injury, psychotic illness or any pattern of antisocial conduct.

Mr Cavanagh would be able to raise the defence of substantial impairment by abnormality of mind, as his depressive illness is an underlying condition within the meaning of Section 23A of the Crimes Act. His illness led to a morbid appraisal of his situation and affected his ability to solve his problems, and gave rise to an abnormality of mind in the form of an episode of acute frustration and rage, during which his capacity to control his actions was significantly impaired.

Mr Cavanagh's depressed state also added to his perception of provocation by his mother in her remarks about the ownership of his home and her behaviour in response to his attempts to resolve the situation." 20 Dr Allnutt, as earlier stated, qualified his diagnosis. It is unnecessary to recite large sections of that report, although I will return, in one respect to it, but I should quote the following: "If the court rejects the possibility that the alleged offence was premeditated and planned and concludes that he lost control and acted aggressively in response to her [his mother's] statements to him in the context described by him, then there would be grounds for the court to consider both a defence of provocation (a legal and not psychiatric defence) or substantial impairment." 21 The Court finds that Mr Cavanagh suffered from a substantial impairment by abnormality of the mind arising from an underlying condition, being major depressive disorder, and considers that the jury held to that effect. 22 Earlier, it was stated that the Court would return to the report of Dr Allnutt. His report, in one major respect, is extremely important and relevant. He said: "Whether or not his [Mr Cavanagh's] depression was significant enough to have substantially impaired his capacity to control himself would best be stated in the following manner: his depression would have compromised his capacity to control himself and made him more vulnerable to reacting in an aggressive manner with a loss of control to a highly provocative situation; it would have made him vulnerable to react aggressively to stress, to lose his temper in the context of a stressful interaction with his mother and to react to this with violence; there is evidence of irritability and shortemperedness in the time leading up to the alleged offence; however notably after the alleged offence he apparently was able to enjoy a few days with his friend skiing; he explains that this was his last opportunity to have a peaceful time, however it does raise some concerns about the severity of his depression." Other factors 23 Mr Cavanagh's attack on his mother, and the method by which he killed her was brutal. His rage was evident both in the manner by which Mr Cavanagh killed his mother and in his violence towards the burying of her body. 24 The objective circumstances relating to Mr Cavanagh, leaving aside his mental impairment, are to his credit. Prior to this incident, he had one conviction for a midrange PCA and the Court treats Mr Cavanagh as a person who is relevantly a first offender and entitled to the leniency associated with that status. 25 He is a person otherwise of good character. He was involved to a large degree in charitable work, including surf lifesaving organisations and the like. He is a person who, apart from this incident, had, amongst his peers and community, an excellent reputation. 26 The timing of his plea, while later than could have been entered, was conditioned far more by the necessity to obtain appropriate psychiatric opinions than it was by any denial of guilt. He assisted the police in their enquiries and that assistance was of significant proportions, in that, if Mr Cavanagh had chosen not to cooperate with the police, it is unlikely that his mother's body would ever have been found. Nevertheless, I do not allow any additional reduction for assistance to the police, but I do take that into account in providing a discount at the highest level for the plea of guilty. I allow a discount of 25% for the plea. 27 That discount is also based upon the proposition that Mr Cavanagh gave himself up to the police and confessed all of the facts, ultimately proved at trial, which led to his conviction. 28 I consider that Mr Cavanagh has shown and feels genuine remorse. That remorse is qualified a little by his behaviour in going skiing immediately after the offence occurred and before he confessed to the Cooma Mental Health Service and the police. 29 Dr Nielssen opined that Mr Cavanagh's prospects of rehabilitation appear to be good. I agree with the Crown that this largely depends upon continued compliance with treatment and medication and remaining free of the use of cannabis. 30 The psychiatric evidence also is to the effect that there is little or no likelihood of reoffending. This reduces the necessity, sometimes large in the case of mental impairment, for particular attention to be paid to specific deterrence and the need to protect the public. 31 Further, the existence of the psychiatric condition reduces the importance of general deterrence. 32 This will be Mr Cavanagh's first time in prison. In my view, the evidence before the Court inexorably leads to the conclusion that Mr Cavanagh will require, on release, significant assistance to assimilate into the community and to ensure the continuation of his medication and treatment in order to complete his rehabilitation. I consider that there are special circumstances.

33 The offence of manslaughter, because of substantial impairment by abnormality of the mind, assumes an intention to kill or inflict grievous bodily harm, the culpability to which is ameliorated by the mental condition suffered at the time of the offence. 34 Manslaughter is an extremely serious offence. It carries a maximum penalty of 25 years' imprisonment. There is no standard non-parole period, because the range of circumstances that may give rise to manslaughter is so large. 35 The starting point for a consideration of the appropriate penalty, in this case, is the assessment of the gravity of the objective circumstances of the case and an understanding that the offence involves the taking of human life. Whatever view one may have taken of the conduct of the victim, she was entitled to live out her life as best she could. Mr Cavanagh's children have been denied their grandmother. His siblings and he have been denied their mother. 36 As earlier stated, the circumstances that may give rise to a conviction for manslaughter are extremely varied and the degree of culpability likewise varied. This is a case that approaches the worst category, because it involves particular brutality and very significant qualification on the degree to which the abnormality of mind affected Mr Cavanagh's behaviour. Nevertheless, the objective seriousness is not in the worst category. 37 Sentencing involves the resolution of conflicting goals: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. These goals overlap and cannot be considered in isolation from each other, even though they often point in different directions. In this case personal deterrence is not so significant, as it might be in others. Likewise, because of the existence of the substantial impairment, general deterrence and the protection of society are less important. Sentencing is, and must remain, an intuitive process. Conviction and Sentence 38 Mr Cavanagh, you are convicted of the manslaughter of your mother, Estelle Cavanagh, committed on or about 20 August 2008. 39 I sentence you to imprisonment for a non-parole period of 5 years, commencing on the date of your arrest, 28 August 2008, and expiring on 27 August 2013, the balance of term being 4 years, expiring on 27 August 2017. 40 You are first eligible for release on 27 August 2013.

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