REGINA v ANDREW MARK MCGRATH

IN THE COURT OF CRIMINAL APPEAL CCA 60638/00

MASON P BARR J McCLELLAN J

1 MASON P: The applicant pleaded guilty to murder. Grove J imposed a sentence of 18 years' imprisonment to commence from 18 December 1998, the date of arrest. His Honour set a non-parole period of 13 years and six months to commence on that date, specifying 17 May 2012 as the earliest date for eligibility for parole. 2 The sentence was imposed following proceedings on sentence that explored at some length the applicant's evidence as to his motive for killing the deceased, John Frederick Lund. 3 The applicant travelled from Fennell Bay to the deceased's home in Muswellbrook. He attacked the deceased by knocking him on the back of the head, causing him to fall to the ground. He punched and kicked him in the back of the head and then put a damp cloth over his mouth and suffocated him. He stole the contents of the deceased's wallet, wiped his fingerprints off the various objects and then left. 4 The next day the applicant told his flat mate, Mr Tinker. He said, "I done the job". Tinker said, "Why, what's that?" And the applicant said, "Oh well, I killed John last night". 5 A few days later Mr Tinker and the applicant spoke further about the matter. This time a listening device had been attached to Tinker. Very incriminating statements were made by the applicant in which he described the killing in remorseless detail. In effect, he boasted of the killing on the basis that the deceased was a paedophile. 6 The applicant was arrested soon after. In his ERISP he told the police, in effect, that the killing was done by arrangement with the deceased pursuant to an arrangement that the deceased wanted to end his suffering from a terminal illness. Asked whether he was aware the deceased was being investigated about sexual assaults on a named child, the applicant said he regarded the allegation to that effect by the child's mother as a lie. He described the deceased as a "good mate" and someone not capable of committing such a crime. 7 The tape of the intercepted interview was then played to the applicant. The applicant said that he had been leading his friend on and that what he told Tinker was untrue. He did, however, agree that he had discussed the allegation of sexual abuse with the alleged child victim's mother and that he had told her of his intention to belt the deceased. 8 The mother herself gave evidence to the effect that there had been a discussion some time prior to the death of the deceased in which he said that her daughter had been sexually abused in a serious way by the deceased and that the applicant had said, "Can you prove it?". She said, "Why?" And the applicant said, "Because I will go up there and sort it out". She said that she urged him not to do so. 9 Returning to the ERISP the applicant agreed that this woman had told him not to go anywhere near the deceased because the police were investigating the allegation. The applicant denied that he killed the deceased because he was an alleged paedophile and he reiterated his account about the arrangement with the deceased for him to kill the deceased at his request. 10 In the course of the interview the applicant agreed that he was aware that what he was doing to the deceased would kill him and that he, the applicant, was not under the influence of any drug at the time. 11 As indicated, the issue of the applicant's true motive was explored in the sentencing proceedings. In his evidence in chief the applicant made it clear that he no longer relied upon the suggestion that he had killed the deceased because that was the deceased's wishes. He explained the killing on the basis of losing control in his anger about being told that it was none of his business to confront the deceased with his concerns about the risk that the deceased would pose to the child of another couple into whose home he was proposing to move. This was a different family to the one about whom the deceased had referred in the intercepted conversation with Tinker. The applicant also said in his evidence that he noticed the deceased manifesting a sexual arousal in the presence of children who were running about the home at the time. 12 The applicant was cross-examined about this new or varied account of his motives. The version based upon his boast about avenging the child whose alleged assault was under a police investigation was put to him. At the very end of the cross-examination there were the following questions and answers: "Q. Well, what did you mean by you don't know about the death, maybe justice? What did you mean by that, then? A. Well, this man was going to be charged for what he had done, so, you know, it had nothing to do with me.

Q. No, but go on, what do you mean by "justice" as opposed to the word "death" in this case? A. Well, I guess in one way death would be a kind of justice.

Q. Well, that is the whole crux of this case, isn't it, Mr McGrath; in your eyes justice was done? A. Yes, in a sense." 13 The first two grounds challenging the reasons of the sentencing judge can be dealt with together. It is submitted that it was not open for his Honour to arrive at the findings of fact expressed in his judgment on sentence at paras 22 and 25. It is also argued that his Honour erred in rejecting the explanations given to Ms Robilliard and the Court. 14 Ms Robilliard was an expert witness whose report was tendered in the sentencing proceedings and that report contained a history taken from the applicant about his motive that was in line with the evidence he gave in chief in the sentencing proceedings. 15 What his Honour said in his conclusions was as follows: 22. I am satisfied to the necessary standard that the prisoner's motive in going to Muswellbrook was the execution of a vigilante type of vengeance for the victim's assumed guilt of child abuse. The discussion with Peter Tinker was spontaneous and there is no reason to conclude that the prisoner was inhibited from fully and accurately disclosing his culpability. The version to Ms Robilliard and the Court shows significant contrivance on the part of the prisoner. When speaking to Peter Tinker both before and at the time of being recorded, the prisoner mentioned the children running about the house but it is only in the most recent version that the description has been embroidered with the alleged observation of arousal.

23. I have already noted the contradiction between the prisoner's version of the victim's wish for death and his statements to others of his wish to live. I do not accept his claims that the materials seized by police revealed writings that were essentially inconsequential. They were confirmatory of the prisoner's obsessions.

24. The details of the killing in the recorded conversation with Peter Tinker are consistent with the objective findings of the investigators. It is true that within that conversation are prevarications and boastings on matters such a serial killings which are apocryphal but these do not impinge upon the description of the circumstances of the offence of central significance. The impression I have gained is that the prisoner has a very flexible concept of truth.

25. I find that the prisoner went to Muswellbrook with the intention of killing John Lund; that his motive was an excessive hatred directed towards a man who was the subject of an allegation of child abuse; that the prisoner's hatred was part of a wider, undiscriminating obsessive hatred of persons the subject of such allegations and that he executed his intention of killing John Lund when the opportunity arose during the visit. It was not, as claimed to Ms Robilliard, a killing determined by a sudden impulse.

26. I am satisfied that the prisoner has no real remorse for his actions as witness his evidence that the death was a kind of justice that was done. It was instructive to observe the prisoner incanting that retribution for anything John Lund may have done had nothing to do with him, yet eventually he could not resist expressing the view that I have just mentioned towards the end of cross-examination." 16 A particular challenge is to the finding that the prisoner went to Muswellbrook with the intention of killing John Lund and that his motive was an excessive hatred directed towards a man who was the subject of an allegation of child abuse. 17 The applicant submits that the judge should have accepted that the intention to kill was formed only at the house and only by way of a loss of control in response to the way the deceased had dealt with the applicant's expressed concerns about the safety of the child of the couple referred to as Graham and Elizabeth. 18 I think the first thing that can be said is that the two versions are not necessarily mutually inconsistent in that, even if there was some discussion about concern over Graham and Elizabeth's child, it would not negate the evidentiary basis of the finding that his Honour made. Rather it would just provide an additional circumstance that was one of the factors present in the applicant's mind at the time. 19 The second comment I would make is that his Honour's conclusion was, as his Honour made plain, supported by his assessment of the evidence given in the sentencing proceedings including his assessment, in particular, of the applicant as a witness of truth. 20 The applicant's credibility was, at the very least, somewhat under a cloud having regard to the false story he gave about, in effect, a form of arranged euthanasia, which story he was no longer seeking to rely upon. His Honour's conclusions were also, in my view, amply open to him having regard to some of the material that was found when the police arrested the applicant at his home indicating, among other things, that he regarded the death as an appropriate method of dealing with paedophiles. There was also the evidence of Tinker. That evidence included what the applicant said to him the day after the killing and what was said on the later occasion when the listening device was attached to his body. I refer, in particular, to the passage commencing, "Bit of a Rocky" to which reference was made in the course of argument this morning. 21 I would conclude that it was well open to his Honour to reach the decision he made on the issue of motive. 22 Arguments 3 and 4 can really be grouped together as well because the nub of the point raised by the applicant is that the trial judge did not give proper weight to the subjective features of the case. In particular, it is said that his Honour did not give proper weight to the age, the relatively minor previous convictions of the applicant and the proper discount for the plea of guilty. 23 It is also said that there were additional subjective features that should have been taken into account, and by that I understand the applicant to be referring to what he, in effect, argued this morning; namely, the fact that he was willing to give evidence in some unrelated proceedings against an alleged paedophile. His Honour can hardly be faulted for not having referred to evidence which was not before him and, in any event, I do not see any weight in the matter I have just referred to. 24 On the other subjective matters, his Honour did address them at paras 27 to 29 of his reasons. He particularly adverted to the age of the applicant. He said that the prior criminal record, while it did not attract particular leniency, was nothing even remotely bearing the seriousness of the present crime. His Honour mentioned the dysfunctional family background of the applicant and his sad earlier life. His Honour adverted to the psychological testing material and material to the date of sentence which indicated that the applicant was endeavouring to rehabilitate himself by education while in prison. 25 In my view, the submission that the judge overlooked these matters or failed to give proper weight to them must be rejected. The objective seriousness of the offence was a most significant factor here and the particular sentence imposed does not evidence any failure to give proper weight to the subjective features. 26 Arguments 5 and 6 address prospects of rehabilitation and refer to good and commendable conduct whilst in custody. His Honour did not overlook these matters. He determined that there should be no reduction of the three quarter proportionality between head sentence and non-parole period notwithstanding his consideration of the various matters that were placed before him. 27 To the extent that the applicant is relying upon material in addition to that, being material based on his conduct since sentencing by Grove J, that material is not relevant to show any error on his Honour's part. 28 In my view, the application should be upheld but the appeal dismissed. 29 BARR J: I agree. 30 McCLELLAN J: I agree. 31 MASON P: That is the order of the Court.

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.