R v Delaney

[2022] NSWSC 492

Supreme Court

New South Wales

Medium Neutral Citation:

R v Delaney [2022] NSWSC 492

Hearing dates:

26 April 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Common Law - Criminal

Before:

Fagan J

Decision:

Sentenced to imprisonment for 16 years comprising a non-parole period of 12 years commencing on 27 December 2019 and expiring on 26 December 2031 and a balance of term of four years expiring on 26 December 2035. The offender will be eligible for release on parole will be 26 December 2031.

Catchwords:

CRIME – sentence – murder – where the offender attacked the deceased with his fists and knees – cause of death ruptured spleen sustained during attack – where the deceased’s spleen was severely diseased prior to attack – low level of intent to cause grievous bodily harm – offender remorseful

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes(Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Summary Offences Act 1988 (NSW)

Category:

Sentence

Parties:

Regina
Alan Delaney

Representation:

Counsel:
N Keay (Crown)
D Berents (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Kim Bolas Legal Group (Offender)

File Number(s):

2019/405941

Publication restriction:

No

Judgment

1. Alan William Delaney was tried by jury at Queanbeyan during February 2022 on a charge that in that town on 26 December 2019 he did murder Aaron Baxter. By verdict returned on 22 February 2022 he was found guilty.

2. The evidence and submissions relative to sentence have been received today. Sentence is now to be passed, taking into account that the maximum penalty is imprisonment for life and that a standard non-parole period of 20 years is prescribed under s 54 of the Crime (Sentencing Procedure) Act 1999 (NSW). The culpability of the offender in this murder was not so extreme as to warrant imprisonment for life and a sentence of a finite term of years will be ordered.

Facts of the crime

3. The offender and Mr Baxter were known to each other. During the second half of 2019 Mr Baxter resided in lodgings at an establishment known as the Kent Hotel on Trinculo Place, Queanbeyan. That is a street running along the east bank of the Queanbeyan River. The Kent is about 100 metres south of the bridge over the river at Monaro Street. The offender filled in as a temporary caretaker at the Kent during some part of Mr Baxter's residence there in 2019. They were acquainted even before that and they socialised with each other. Both were heavy drinkers.

4. The offender was aged 50 years in December 2019 and Mr Baxter was 46. By December their relationship was quarrelsome because the offender believed Mr Baxter had stolen money from him and that Mr Baxter was imposing upon him and his female partner at the time, Ms Alchin, in financial matters.

5. Mr Baxter spent a large part of Christmas Day drinking on the east bank of the Queanbeyan River, under the eastern approach ramp of the Monaro Street bridge. He consumed eight litres of cask wine during the day. He went back to the Kent to sleep late on Christmas night.

6. The offender spent the afternoon and evening of Christmas Day in the company of Ms Alchin and her daughter. In the middle of the night, from around 1:00am, the offender and Ms Alchin quarrelled and she asked him to leave her house. The offender was well-affected by alcohol by that time.

7. From a large number of SMS text messages sent by the offender to Ms Alchin between 1:00am and 2:00am on Boxing Day morning it is apparent that he was in a highly emotional state, lamenting what he considered to be the terminal breakdown of their relationship. The text messages were abusive towards Ms Alchin but they also contained an element of blaming Mr Baxter for the break-up. Apparently the offender believed that Mr Baxter had told Ms Alchin that the two of them proposed to visit a brothel.

8. Some time after 1:00am the offender visited an old school friend and consumed more alcohol with him. At about 5:00am on 26 December the offender and his friend took a taxi into Civic in Canberra and they returned to the friend's house after an hour or two.

9. In a state of agitation and emotion the offender set off on foot from his friend's home at about 8:10am on Boxing Day morning looking for Mr Baxter. Mr Baxter by this time had woken up and walked back to the location under the Monaro Street bridge where he had been drinking the day before. He met there with Mr Wipiti, who at the time was living out of his car parked nearby. The offender approached Mr Baxter from the direction of the Kent. He was shouting abuse when he was outside the Kent and he continued to do so as he came towards the under-bridge area saying words to the effect (omitting the expletives), "I'm going to kill you." It soon became apparent that the abuse was directed at Mr Baxter.

10. Upon reaching Mr Baxter the offender punched him repeatedly to the head. As he did so he accused Mr Baxter of having told Ms Alchin they were going to visit a brothel. Mr Baxter denied having said this. Mr Baxter retreated from the offender's blows and at one point during the attack he was forced back over the arm of the armchair that was located under the bridge with its back against the concrete bridge support. At another time in this altercation Mr Baxter was driven back against the bridge support itself and the offender's blows caused his head to strike the concrete.

11. During the course of the attack, at a point that cannot be placed accurately in sequence because of uncertainty in the evidence, I am satisfied the offender used his knee to strike Mr Baxter's abdominal region. I describe the assault upon Mr Baxter as constituting an attack because the only witness to the events, Mr Wipiti, did not describe any retaliation. Mr Wipiti's description conveys that Mr Baxter was not able to defend himself. That was at least in part due to inebriation. A blood sample taken from Mr Baxter at autopsy gave a reading of 0.197 grams of alcohol per 100 millilitres of blood. That must have been approximately his blood alcohol content at the time of the attack that I have described.

12. The physical conflict lasted for a few minutes and took place at some stage between 8:10am and 8:45am. When the offender broke off, Mr Baxter was lying across an arm of the armchair. He was conscious and not outwardly injured to any serious extent. His lip and his ears had been pummelled and on later examination they were found to be swollen. He was not bleeding.

13. The offender stood back at the end of his attack and placed himself towards the riverbank. From that position he said, "Get down to the river, so I can drown you." Mr Baxter did not respond and the offender then strode off in a direction away from the river in order to get up onto the eastern bridge approach. He then walked back across the bridge towards the west side of the river and the business centre of the town. As he crossed over the bridge he repeatedly shouted back to Mr Baxter on the bank below words to the effect (again omitting the profanities), "I'm going to kill you" and, "I'm going to cut your head off."

14. When the attack ended Mr Wipiti walked about 15 metres away from Mr Baxter to a rubbish bin to dispose of some refuse. In the short space of time, until he returned to Mr Baxter, less than a minute, Mr Baxter had either laid down or collapsed and was on the ground within about two metres from the armchair. Mr Wipiti helped him to sit up. Mr Baxter then said that he would walk back to his accommodation but upon standing and taking a few steps he collapsed against the concrete bridge support and fell to the ground.

15. Mr Wipiti and another man who had arrived at the scene called an ambulance at 9:22am. Both police and an ambulance, manned by one paramedic, arrived. Mr Baxter was taken from the scene at about 10:00am and was delivered to the nearby hospital a few minutes later. Preliminary external examination did not reveal the cause of Mr Baxter's collapse.

16. While he was being prepared for further assessment Mr Baxter lost consciousness shortly before 11:00am and he could not be revived. He was pronounced dead at 11:03am. The cause of death was not ascertained until an autopsy was conducted later. The cause was rupture of the spleen that had lead to massive internal bleeding and hypovolemic shock and heart failure. Mr Baxter's liver and spleen were both severely diseased, apparently as a result of long-term heavy alcohol consumption. The jury's verdict would be consistent with a finding that the spleen was ruptured either as a direct result of one or more of the blows delivered by the offender or by a fall to the ground after the fight had concluded the fall having been substantially or significantly caused by impairment of balance and mobility resulting from the fight.

17. At trial the offender argued that it was reasonably possible the spleen may have ruptured when the deceased fell in a poleaxe fashion as he attempted to walk away from the scene. He argued that it was also reasonably possible the poleaxe fall had resulted from Mr Baxter's intoxication and/or from chronic unsteadiness on his feet and that it was not attributable to the attack upon him. The jury clearly did not accept that this sequence of causation was a reasonable possibility.

18. Mr Baxter's spleen was vulnerable to rupture because it was enlarged and heavily infused with blood at an elevated pressure due to a condition of portal hypertension. The enlargement exposed the spleen to external impact, because it extended beyond the protection of the lower ribs. The diseased condition of the spleen meant that upon rupture it haemorrhaged more extensively and rapidly than would be the case with a healthy spleen subjected to the same degree of impact.

19. I am satisfied beyond reasonable doubt that a blow delivered during the attack caused the spleen to rupture. The forensic pathologist who had conducted the autopsy said it was possible, although it would be unusual, for such a rupture to be caused by a person falling in a poleaxe fashion. Here the fall was said to have occurred on flat ground comprising dirt and intermittent thin grass cover underneath the bridge.

20. Ribs 9 and 10 on the left side, in proximity to the spleen, were broken and there was surface bruising of the deceased’s flank over the fractures. There was no protrusion from the ground surface that could have caused a concentration of force upon the lower left abdominal area in the region of the spleen that might have been responsible for the rupture. On the other hand, the infliction of the multiple blows in the course of the extended assault provides a ready basis for inferring that one or more of those blows must have directly caused the damage to the ribs and spleen, notwithstanding the absence of evidence from the single eyewitness identifying a specific forceful impact upon that region.

21. Causation by a fall is not a reasonable possibility in the context of all of the evidence. This conclusion and my rejection of the proposition that the rupture was due to a fall is not material in my assessment of the objective seriousness of the offence. The only other inference consistent with the verdict, namely, that the splenic rupture was occasioned by a fall that in turn resulted from the fight, would make the offending no more or less serious.

22. Internal rupture of the spleen in a situation of this kind is not readily detectible from external examination. It was described by the forensic pathologist as an "occult injury". By monitoring Mr Baxter's symptoms in the hospital and conducting further tests it would have been possible to diagnose the haemorrhaging from his spleen and to address that. But the fact that the spleen was so seriously compromised by long-term disease and that Mr Baxter’s blood loss was therefore so rapid meant that death resulted before such investigations could be carried out. The cause of his presenting symptoms was not ascertained during his hospitalisation and was only revealed during the autopsy.

23. There is no evidence that the offender had any knowledge of Mr Baxter's splenic disease or any knowledge that he was vulnerable to a fatal rupture that might be caused by external body blows. None of the blows delivered to Mr Baxter's head or upper body actually caused grievous bodily harm. I am satisfied that one or more of the blows delivered to his lower abdominal area caused broken ribs. Despite there having been no actual infliction of patent grievous bodily harm, the question for the jury was the offender’s intent. It is implicit in their verdict they were satisfied beyond reasonable doubt that the offender had intended to cause such harm.

24. For a number of reasons I am not satisfied that the offender intended to kill Mr Baxter. I do not impute to the jury such a finding. The blows that were dealt to Mr Baxter in the absence of knowledge of his vulnerability to rupture of the spleen are not consistent with an intent to kill. First, aggressive as the attack was upon an intoxicated victim not able to defend himself, it did not involve anything like the ferocity or persistence that would have to have been exhibited if, by making this attack with his fists, the offender had intended to kill. Secondly, the offender walked away when Mr Baxter was clearly still alive and conscious. If there was an intent to kill the offender would not have left him alive. Thirdly, as the offender departed he continued to threaten Mr Baxter that he would kill him. Plainly the offender intended and expected that Mr Baxter would live on after the attack and if he was going to be killed that would take place in the future.

25. I am not satisfied beyond reasonable doubt that the threat of death made by the offender before the attack was real or that it represented a true intent. In the offender's agitated and emotional frame of mind his statements both in the presence of Mr Baxter and by text messages at around the time were expressions of intense feeling but not a reasonable basis for inferring actual intentions.

Relative objective gravity

26. Grievous bodily harm, when actually occasioned, may be more or less serious in a wide range. Similarly, intent to cause grievous bodily harm may vary widely in gravity according to the degree of harm intended, the type of harm intended and the deliberateness with which the likely result of violent acts might be thought through.

27. Accepting that the jury has found an intent to cause grievous bodily harm and being bound to fix a sentence upon a basis consistent with the verdict, I am nevertheless comfortably satisfied that the intent in this case was no more grave or culpable than the very lowest level of intent that would qualify to constitute the offence of murder.

28. In final address to the jury the offender's counsel accepted that if they were satisfied beyond reasonable doubt that the offender's blows had been a significant or substantial cause of death then they would be satisfied of the mental element requisite for manslaughter by unlawful and dangerous act. He urged the jury that they should not find that the intent necessary to sustain the charge of murder had been proved.

29. The intent that the jury have found involves greater culpability than that which would have been entailed in a verdict of not guilty of murder, but guilty of manslaughter. However, in the circumstances of this case there is not a great margin between the degrees of culpability that attach respectively to the alternative verdicts that the jury had to consider following from their determination that causation was proved.

30. Any murder is inherently a very serious crime but, as with most offences, there are degrees of seriousness in the ways in which it may be committed. Devastating as the death of Mr Baxter has been for his family and friends, on the facts as I have found them the objective circumstances of this murder place it decidedly at the lower end of the range of seriousness as assessed for the purposes of punishment.

Victim impact

31. A victim impact statement was provided by Mr Baxter's older sister, Ms Dana Souter. She had a close and loving relationship with Mr Baxter all of his life. She has described the pain of his loss for herself; for Mr Baxter's son Charlie, who has an intellectual disability and is not well able to cope; and for Mr Baxter's mother, who became severely depressed after learning the fate of her son. In determining sentence I take into account the harm done to those who are closest to the deceased and the harm done generally to the community by the commission of this murder.

Remorse

32. The offender was arrested in connection with his assault upon Mr Baxter in the very early hours of 27 December 2019. He was not then aware that Mr Baxter had died. Police interviewed him for two and a quarter hours from 2:10am. The offender admitted having carried out the assault and expressed genuine regret that he had given Mr Baxter what he admitted was a severe beating. The offender gave a detailed explanation of the grounds for their quarrels concerning alleged stealing of money. He related the damaging things he believed Mr Baxter had said to Ms Alchin, which he perceived had brought his relationship with her to an end.

33. At the conclusion of the interview the offender was informed that Mr Baxter had passed away at the hospital. He exhibited great distress at this news. I am satisfied on the balance of probabilities that he was genuine in his acceptance of responsibility at that time and in his remorse. I do not regard his expressions of regret as insincere or as merely a reaction to the realisation of the trouble he was in.

34. Before trial the offender offered to plead guilty to manslaughter. This was not accepted and was not repeated in the presence of the jury. I give the offender full credit for his acceptance of responsibility for the death of Mr Baxter. I do not discount or diminish that acceptance of responsibility on account of the offender having then contested causation at the trial. His offer of a plea showed his willingness to forego that contest. When the Crown did not accept the plea and he was put upon trial on the issue of intent, it was reasonable for him also to have contested causation.

35. Causation of the splenic rupture was an arguable matter on the forensic pathologist's evidence. It did not turn upon any evidence being called by or for the offender. I infer that the offender did no more than instruct his counsel to take up such cross-examination of the forensic pathologist, and such arguments, as counsel considered open. That is what occurred. I give credit to the offender for having instructed his counsel to conduct the trial in a manner that was efficient, did not involve unnecessary putting to proof of the Crown and did not involve fruitless, extended cross-examination of any witness.

Antecedents

36. It is well documented through criminal justice and medical records that have been compiled since the offender's late teens that he suffered under great disadvantage and trauma during his formative years. His father was a violent alcoholic. The violence was directed against both the offender's mother, who frequently required hospital treatment for injuries, and against the offender himself. His mother and other relatives also physically and sexually abused the offender between the ages of about four and eleven. He was removed from his parents' care and placed with various relatives for substitute parental care.

37. The offender suffered teasing and bullying at school, at least in part because he had a deformity and hearing difficulties. He left school following Year 10 after having been suspended on numerous occasions and without having achieved significant academic success.

38. Unsurprisingly, the offender has reported to examining psychiatrists that he experienced low mood from childhood. At 18 he was admitted to hospital having overdosed on a large quantity of prescription tablets. He was found to bear the marks of self-inflicted burns on one wrist. Since then he has reported ongoing depressive symptoms, nightmares related to his childhood abuse, chronic uneasiness and exaggerated startle response, poor sleep and at times, especially in conjunction with using methamphetamine, auditory hallucinations and persecutory beliefs. It is documented in the records to which I have referred that he has harmed himself and attempted suicide on multiple occasions.

36. The offender's mental disorders have been overlain with and no doubt exacerbated by long term high usage of alcohol (from the age of 14), heroin and methamphetamine (from his early 20s) and cannabis. The offender has had some employment since leaving school but his lack of tolerance and self-control has resulted in him losing jobs after short periods.

37. The offender has had numerous relationships with the opposite sex but has been unable to sustain them, usually due to lack of trust. These encounters have frequently ended with violence or threats of violence against domestic partners. The offender's criminal record comprises many offences of relatively minor violence. The first of these that resulted in a custodial sentence was committed in 1996 at the age of 27. During his 30s there were successive violent incidents resulting in prison terms of between six months and three years and four months. During this period he was also convicted of driving whilst unlicensed and using a motor vehicle without authority.

38. In his 40s the offender committed a series of offences of breaching apprehended violence orders, destroying property and making threats by use of a carriage service, all in domestic violence settings and often resulting in prison terms of between four and 18 months. The offender had been released on parole under his most recent sentence, which was for stalking and intimidating, on 9 April 2019, only nine months before the murder of Mr Baxter.

39. Psychiatric reports dated in July 2003 and May 2013, prepared in connection with sentencing for various past offences, gave considerable attention to the offender's substance abuse and made strong recommendations for rehabilitation. Those recommendations appear to have come to nothing, regrettably. The reports also record the offender's history of self-harming and of attempted suicide but did not provide firm conclusions regarding underlying psychiatric disorders.

Psychiatric disorders at time of offence

43. A report of Dr Dayalan prepared on behalf of the offender in anticipation of the trial propounds diagnoses of post traumatic stress disorder referable to the offender’s childhood experiences; major depressive disorder with recurrent episodes; substance abuse disorder involving alcohol, opiates and stimulants and possible borderline personality disorder, with a number of relevant traits being identified. These conditions are said by Dr Dayalan to be associated with increased arousal levels and high irritability, which would compound with alcohol intoxication to impair judgment. Dr Eagle has provided a report to the Crown substantially concurring in the diagnoses, although not finding evidence of major depressive disorder at the time of the offence for which he is now to be sentenced.

44. Dr Dayalan's opinions about the offender's emotional dysregulation are supported by Dr Eagle's conclusion of "emotional instability". This is strongly in evidence in the material that was presented to the jury during the trial. On the night before Christmas Day, in the small hours, the offender sent a stream of dozens of abusive text messages to Ms Alchin. By the afternoon of Christmas Day he had made up with her and he later claimed to police that he had spent a very happy day. Later that night another quarrel erupted between the two of them followed by the torrent of violent abuse by text between 1:00am and 2:30am, as earlier described. By about 5:00am on Boxing Day the offender’s mood had swung back and he was seen on a security camera in a park near Civic laughing and clowning with his school friend.

45. Next came the attack on Mr Baxter, an exhibition of intense, irrational anger. The offender’s mood had shifted again at his arrest. The offender was then emotionally regretful of the attack even before learning of Mr Baxter's death. He said that Mr Baxter did not deserve the beating he received. The offender’s high frequency oscillation of mood and thoughts and his irrational perceptions and actions are evident before, at and after the time of committing the attack on Mr Baxter.

46. The offender had been admitted to hospital on 11 November 2019 after reporting to a friend his intention to hang himself in remorse for the loss of another associate whose death he thought he may have contributed to by supporting that person's use of heroin. On 10 December 2019 the offender was hospitalised again, following an intentional overdose of prescription medication. On 18 December he was seriously assaulted by a group of people and was admitted to hospital with multiple injuries. I am satisfied that the accumulation of these recent stressors on the background of his chronic and serious psychiatric disorders exacerbated his mental condition to the point where it became a contributing cause of his irrational, violent attack on Mr Baxter.

47. I consider that the offender’s culpability for the murder is reduced by this causative contribution. I also take into account that his mental disorders are ongoing and will significantly aggravate his experience of imprisonment. The atmosphere of potential physical threat in prison in close confinement with other inmates will give rise to negative stimuli likely to affect his diagnosed post traumatic stress disorder. The medical opinion of Dr Dayalan supports this.

48. I also take into account the offender's very disadvantageous upbringing which of itself justifies mitigation of penalty, as well explaining the origin of his psychiatric disorders.

Rehabilitation

49. I regret that I am unable to express confidence in the offender's prospects of rehabilitation, which in his case would require cessation of substance abuse and scrupulous adherence to medical advice and the use of psychiatric medication, if and as prescribed. The offender has not in the past been able to achieve such rehabilitation from his misuse of intoxicants, despite ample and repeated prompts for him to do so.

50. The offender's frequent violent offending has been fuelled by the emotional volatility that comes with using intoxicants that inflame his psychiatric symptoms. His offending cannot be expected to end while he continues to abuse alcohol and drugs. The criminal record up to the present date deprives the offender of a degree of lenience that might otherwise have been afforded to him.

51. In the sentence to be imposed there will be a substantial period during which the offender may be released to parole if the State Parole Authority sees fit and during which he would be under supervision by Community Corrections Officers while on conditional liberty. In all of the circumstances I do not consider that any alteration of the statutory ratio between his non-parole period and the balance of the term is warranted.

52. I now inform the offender that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to him and to the offence for which he is now about to be sentenced.

Orders

1. For the murder of Aaron Baxter at Queanbeyan on 26 December 2019 Alan William Delaney is sentenced to imprisonment for 16 years comprising a non-parole period of 12 years commencing on 27 December 2019 and expiring on 26 December 2031 and a balance of term of four years expiring on 26 December 2035.

2. The first day upon which the offender will be eligible for release on parole will be 26 December 2031.

53. Two summary related offences have been transferred to this Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). Without recounting the detailed facts, it is sufficient to say they are both very minor infringements. The Crown accepts that they would appropriately be dealt with under s 10A of the Crimes (Sentencing Procedure) Act and I will make orders accordingly, as follows:

1. In relation to the offence of contravene a prohibition or restriction in an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act2007 (NSW) being Sequence 1 of charge sheet H143304502, order that a conviction be recorded and there be no further penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

2. In respect of the offence of having custody of a knife in a public place contrary to s 11C(1) of the Summary Offences Act 1988 (NSW) being Sequence 2 on charge sheet 873484033, the offender is convicted of that offence and there will be no further penalty, in accordance with s 10A of the Crimes (Sentencing Procedure) Act 1999.

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Decision last updated: 29 April 2022