Regina v McNamara

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70045/02 FILE NUMBER(S) : LOWER COURT Hidden J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60204/03

GROVE J SULLY J BELL J

Friday 5 March 2004 REGINA v NOEL DAVID McNAMARA

1 GROVE J: The respondent was tried before Hidden J and a jury upon an indictment charging him with murder. The victim was his mother. The trial commenced on 28 October 2002 and on 12 November 2002 the jury returned a verdict of not guilty of murder but guilty of manslaughter. The only basis upon which the jury were directed that a verdict of guilty of manslaughter was available was if the Crown failed to satisfy them that the respondent, at the time that he killed, possessed a requisite intention giving rise to guilt of murder. In his remarks on sentence the learned judge stated, accurately, that therefore the respondent "stands for sentence on the basis that he killed his mother by an attack which was both unlawful and dangerous, but without an intention to kill or inflict grievous bodily harm or a reckless indifference to human life". 2 For the crime of manslaughter so committed the respondent was sentenced to imprisonment for nine years with a non-parole period of six years and six months. 3 Before the Court is a Crown appeal asserting the inadequacy of that sentence. 4 The respondent did not give evidence at his trial or in the sentencing proceedings. There was evidence however that he had claimed to have come home in the early morning and found his mother severely beaten. Some time later he brought her in her declining, and ultimately fatal, condition to the Nepean District Hospital. He also had made claims that both he and his mother had been harassed by members of "bikie" gangs. He had given evidence some years beforehand against such persons in connection with the murder of a friend of his. On the premise that the respondent did not attack his mother, a hypothesis was opened for argument that the culprit was one such bikie. 5 Since conviction the respondent has not acknowledged his guilt and he has reiterated his claims of innocence as well as the history of harassment by bikie gangs. He has pointed to one individual in particular. One occasion of reiteration was to Dr Allnutt a psychiatrist, who saw him two times, the second time for the express purpose of preparing a report for use in the sentencing proceedings. 6 His Honour referred to the critical facts pertinent to the killing in summary form: "Some time in the morning of 21 February 2000 the offender attacked his mother, beating her severely. Exactly how her injuries were inflicted is unclear. However, on post mortem examination extensive bruising was observed to the deceased's head, neck, torso and limbs. More importantly, there were fractures to her sternum and most of her ribs, causing a flail segment which inhibited her breathing. How long she might have remained conscious after the attack is also unclear, but for however long it was she would have been in great pain." 7 In submission to this Court the Crown elaborated upon those facts suggesting, at least by inference, that the summary inadequately describes what was "a vicious assault upon an elderly woman". She was seventy years of age. On arrival at the hospital the duty clinical nurse at reception noted extensive bruising down the victim's right arm and further bruising on her left arm, scattered bruising on both legs and small bruises at the throat and neck. The lastmentioned, she described as "fingertip bruising". Forensic testing at the house detected the presence of blood in an entry way between the laundry and kitchen, on various items in the lounge room and on top of the bed in the main bedroom. 8 Dr Ellis, a pathologist who performed the post mortem examination described extensive external and internal injuries. The Crown written submission presented this detail: "There were 34 areas of external injuries, including bruising above the eyes, on the forehead and on the left cheek, abrasions on nose, bruising to the neck, on the skin underneath the scalp and a 'fairly large bruise' on the upper chest. There was a line of smaller bruises extending to the left breast. There were bruises on the abdomen and 'on the back of the trunk there is a very large area of red and blue bruising covering the upper part of the left buttock which extends on to the lower part of the left side of the back'. There were more bruises on the back of the right forearm, on the left upper arm and left forearm, on the back of the right hand and on both legs, right knee and right foot. Internal examination revealed that the deceased's ribs on the left side 1-7 inclusive were broken at the front, ribs 2, 3 and 4 broken at two places, and ribs 9-11 were broken at the back. On the right side, ribs 3-8 were broken at the front and ribs 8-11 to (sic) were broken at the back. There were 'sharp angles which could actually be felt through the skin at the margins at the front of the chest where the ribs were broken. There were actually broken in a line [on the left] … The sternum, that is the breast bone, was also broken in two places … [This created] a situation where it was very difficult to breathe. …[S]o she is unable to draw the air in, so that's how death occurs by being in effect [unable] to breathe and the lack of oxygen.' The Doctor concluded that his (sic) was the principal cause of death, together perhaps with haemorrhaging to the brain in the area of bruising to the head. Dr Ellis stated that the pattern of the rib fractures on both sides, the double break of the sternum and some fractures at the back of the ribs 'would indicate to me that considerable force had to be used'. The breaking was consistent with someone stomping or jumping on the deceased as she lay on the floor." 9 Dr Raftos, a specialist in emergency medicine, gave evidence that the chest injuries would have resulted in the loss of consciousness "within minutes". The injuries were of a type seen in major car accidents and falls. The requisite force would be similar to that applied by a person jumping or stomping on the chest. 10 That the perpetrator of the injuries described which led to death, did not, beyond reasonable doubt, intend at least to cause grievous bodily harm is a proposition which I find astonishing. Nevertheless the jury verdict necessarily conveyed their conclusion that, whatever the intention of the respondent at the time of killing, it was something less than an intention to cause harm of that magnitude. Accordingly, judicial discipline obliges any assessment of sentence to reflect a level of intention compatible with that jury finding. The difficulty of maintaining the correct perspective in this particular case is demonstrated by part of the Crown written submission: "His Honour did not make any findings about intention, other than those excluded by the verdict. It was however beyond any doubt that the respondent did in fact inflict grievous bodily harm and it was on that basis, independent of any finding regarding his intention that his Honour was required to impose sentence." 11 In a sense the submission is an understatement. The respondent stood for sentence, not because he in fact caused grievous bodily harm, but because in fact he killed. That is not to say that the circumstances in which death was caused are irrelevant but those considerations cannot overwhelm the level of intention as a primary and significant factor in measuring culpability. 12 There was a particular aggravating feature to be taken into account. The respondent was on bail at the time of the offence. There is ample authority that an offender who has abused the conditional liberty of bail by committing further crime should expect salutary penalty. R v Richards 1981 2 NSWLR 464; R v Readman 1990 47 A Crim R 181. 13 The appellant submits that the circumstance that the respondent was on bail at the time he committed the offence does not appear to have been given any material weight in assessment of sentence. In his remarks Hidden J twice referred to bail. First, he mentioned the circumstances for which he was on bail and that the ensuing convictions were later set aside in this Court. Second, although his Honour found that the killing was occasioned during a stressful period of the respondent's life he added that "the attack was brutal and the offence is a serious one within this category of manslaughter. In addition he has previous convictions for violence and was on bail at the time." The stress, his Honour had earlier identified as "some kind of threat from bikers" which he found was "a matter of limited significance for the purpose of sentence." The Crown submission observed that there was no mention in his Honour's remarks of principles relevant to commission of offences whilst on bail. Whilst that is accurate I am unpersuaded that, given the deliberate reference to bail on two occasions, the issue was overlooked. Nor am I satisfied that there was any misapplication by his Honour. 14 The issue of bail is, to an extent, interwoven with matters on the respondent's record. Prior convictions are capable of depriving an offender of leniency which he might be able otherwise to seek. There were two significant matters. In 1996 he was placed on a recognizance to be of good behaviour for twelve months upon conviction at Blacktown Local Court of assault occasioning actual bodily harm and malicious damage. He had struck a Ms Gordon, with whom he was in a relationship over an extended period. The property damage was caused by his kicking a wall at his mother's house. 15 In 1998 at Parramatta Local Court he was found guilty of maliciously inflicting grievous bodily harm on Ms Gordon and sentenced to twelve months imprisonment (comprising minimum term nine months and additional term three months). She had been hit around the head and body with an axe handle and was hospitalised for fractures of the ulna and fibula and was also noted to have bruising and lacerations variously located about her head, arms, shoulders, abdomen, and ankles. Detail regarding these offences was tendered in these sentencing proceedings. His Honour made express, if brief, reference to "previous convictions for violence". No error is demonstrated. 16 Specific challenge was made against two conclusions expressed in the remarks on sentence. 17 His Honour manifestly turned his attention to the issue of protection of the community including members of the respondent's family. He stated: " The possibility of further acts of violence by the offender, particularly in the context of a relationship with someone to whom he is emotionally attached, is a matter of concern and cannot be ignored. Dr Allnutt did not attempt to assess the likelihood of his re-offending in that way although, in the offender's favour, he noted that he had enjoyed a supportive family environment as a child and has the capacity to pursue gainful employment. As I have said, it seems that he can still look to one of his siblings for continued support. On balance, with appropriate counselling while in custody and supervision upon his release, I think that there is a reasonable prospect that he will not re-offend. I strongly recommend to the Corrective Service authorities that he be afforded every opportunity to undergo the counselling which Dr Allnutt has advised." 18 The recommendations of Dr Allnutt were simply: "1. Drug and alcohol counselling. 2. Anger management counselling."

The absence of any significant problem of substance abuse in the respondent's history was noted by his Honour. 19 The Crown submitted that the finding that there was reasonable prospect that the respondent would not re-offend is inconsistent with the available evidence which demonstrated a propensity for violence exemplified both by the facts of the instant case and the previous attacks on Ms Gordon. 20 The raising of this issue led to debate about the standard of proof to be applied by a sentencing judge in order to make a finding of future danger to the community which an offender represents. Observations by members of this Court, differently constituted from time to time, are not entirely harmonious. 21 In R v Barton, unreported, NSWCCA 28 July 1995 Kirby ACJ (Dowd J concurring, Allen J in a separate judgment making no reference to onus) said: "However, individual deterrence may take into account, in a general way, the need to protect the community from the propensities demonstrated, or the character manifested, by the particular crime which brings the prisoner before the court. It is important that this Court should say firmly that such use of deterrence should never be expanded into orders in the nature of preventive deterrence by the back door. Proof of matters relevant to deterrence are factors which may aggravate the seriousness of the case. The onus of establishing the nature of the deterrence alleged and the level of any propensity lies on the prosecution. It must establish contested matters to the criminal standard of proof. When I look at what Badgery-Parker J said in the course of his reasons I consider, with respect to his Honour, that he may have fallen into error. His Honour said this: 'The savagery of the killing suggests the need for a substantial sentence not only because of the need from the community point of view to punish such behaviour but because it is strongly suggestive that she is likely after her release to represent a source of danger to others. It is always difficult to predict dangerousness, and particularly to predict what such a person as this may be like when released into the community at the end of a necessarily fairly substantial period of imprisonment. The same lack of maturity and control which led to this killing could all too easily recur should she at some future time find herself under threat. The question of possible future dangerousness was examined at length in the course of the sentencing proceedings, and three psychiatrists gave oral evidence, Dr Barclay and Dr Lucas called on behalf of the prisoner and Dr Shand called on behalf of the Crown.' It seems to me that it is here that his Honour may have taken an approach which led him to take into account his perspective of future dangerousness by a standard which was less rigorous than that which the law requires." 22 In R v Gieselmann, unreported NSWCCA 13 July 1998 Mason P (Wood CJ at CL and Sperling J agreeing) remarked: "In considering the significance of the evidence touching on whether the applicant would remain a danger to others in the future by reason of her mental disorder, and for how long in the future, the learned judge reminded himself that the Crown must prove this matter beyond reasonable doubt." 23 However in R v SLD [2003] NSWCCA 310 Handley JA (Sully and Buddin JJ agreeing) after reference to authorities including Veen v The Queen (No 1) 1979 143 CLR 458; Veen v The Queen (No 2) 1988 164 CLR 465; Chester v The Queen 1988 165 CLR 611; Bugmy v The Queen 1990 169 CLR 428; Mitchell v The Queen 1996 184 CLR 333 and Boughey v The Queen 1986 161 CLR 10 concluded: "Thus a finding that a prisoner is likely to re-offend does not even require a finding that it is more probable than not that he will do so, let alone a finding that this has been established beyond reasonable doubt". 24 Counsel for the respondent referred to The Queen v Olbrich 1999 199 CLR 270 where in the joint judgment (Gleeson CJ, Gaudron, Hayne and Callinan JJ) there was express adoption of what was said by a majority in R v Storey 1998 1 VR 359 that a sentencing judge "may not take facts into account adverse to the interests of the accused unless the facts have been established beyond reasonable doubt". 25 In regard to Olbrich, I agree with Handley JA's observation in SLD that the decision should be seen as limited to "facts" and that future probabilities or possibilities are not "facts" in any meaningful sense. 26 I record that the Court has been informed that application by the offender SLD for special leave to appeal to the High Court is presently pending. 27 Counsel for the respondent contended that the test is "whether the offender poses the risk of relevant future conduct" and that the correct approach is for a judge to determine whether he is satisfied beyond reasonable doubt that such risks exist. With respect to the contender, I do not find that formulation useful. 28 In the span of human affairs risk can always be postulated and of its mere existence there can be no doubt. For example, there is risk that an aircraft may crash, that a ship may sink, that motorcars may collide, that a person of previously unblemished character may commit a crime, that a convict may offend again. The elimination of risk is something which is viewable only from hindsight. The aircraft did not crash etc. The convict, to the end of his life, did not re-offend. What is of concern to a sentencing judge is, in my opinion, not the existence of risk - that I would see as a given - but a degree of risk. That does not require the certitude of proof beyond reasonable doubt nor the exercise of balance to determine what is more probable than not. 29 On that approach, references to proof beyond reasonable doubt or proof on the balance of probabilities become otiose. This is demonstrable by reference to the latter. That a mere "tilt" on the balance of probabilities would lead to one offender having the likelihood of future offence taken into account (adversely) but another, falling just short of a "tilt," being found unlikely to offend does not reflect an even handed application of justice. 30 It follows that I prefer the views expressed by Handley JA in SLD to the contrary expressions in Barton and Gieselmann. This appeal does not turn on that preference. 31 The Crown argued that, irrespective of any view on the onus applicable to proof of potential risk of future offence, the sentencing judge had fallen into error in making an "opposite" finding of sound prospects of not re-offending. The extract above recited from the remarks on sentence gives context to his Honour's finding. It was a conditional finding upon a premise that appropriate counselling whilst in custody and supervision on release would be given. This was derivable from Dr Allnutt's opinion that to address any risk which the respondent may pose in the future, he have the counselling earlier described. The finding was open on the evidence to the sentencing judge. 32 The other matter of specific focus was an alleged failure to place the offence in context. His Honour found that "the attack has all the hallmarks of being perpetrated spontaneously in a rage". That finding is not challenged but it is contended that it is difficult to explain why after recovery of his composure, the respondent did not immediately seek medical attention for his mother. There was evidence that a car journey from the house to the hospital would take about five minutes. The respondent had a vehicle and, eventually, delivered his mother to hospital by using it. It was put that the respondent appears to have spent valuable time changing the victim's clothing and cleaning up the scene. These are matters of argument and I do not consider that there is a demonstration of error in his Honour's assessment. 33 In the absence of identified error there remains an issue as to whether the sentence is such that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: cf Wong v The Queen 2001 207 CLR 584. 34 As recognized in written submissions by the Crown, it has been said that the range of conduct which can lead to conviction for manslaughter is such that little assistance can be derived from sentences in other cases: R v Hill 1980 3 A Crim R 297. However, insofar as there is a compilation of statistics by the Judicial Commission it can be observed that the sentence here imposed does not lie outside any established pattern of sentencing for the particular crime. The observation includes the circumstances that in this case there was neither a plea of guilty nor an acknowledgement of guilt after conviction which are circumstances which generally provide a foundation for amelioration of sentence. Such was not available to the respondent for those reasons. 35 The Crown however submits that the matter should "properly have been regarded as falling within the worst case category". This submission is founded upon three express contentions: His Honour's failure to have proper regard to the circumstances of the case, the aggravating circumstance of commission whilst on bail and the issue of future dangerousness. For the reasons above stated, I do not consider that those contentions have been established. 36 Nevertheless having regard to the extreme violence actually administered, and although, I again emphasize, bound by the jury verdict to accept that grievous bodily harm was not intended, I would, myself, have imposed a sentence greater than that which his Honour did. 37 The power of this Court to intervene is not enlivened by such a difference of opinion. The Court is established by statute and is a court of error not a court of review. It must be borne in mind that every sentence results from an exercise of judicial discretion. There is no such thing as a "correct" sentence: Ryan v The Queen 2001 206 CLR 267. A consequence is that Crown appeals should be rare: Everett v The Queen 1994 181 CLR 295. Recent recapitulation of this was made by Spigelman CJ in R v Baker [2000] NSWCCA 85: "In my opinion there is no warrant for this Court to interfere with the sentencing discretion by her Honour. The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 38 I would dismiss the Crown appeal. 39 SULLY J: I agree with Grove J. 40 BELL J: I agree with Grove J.

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