R v Egan

[2022] NSWSC 399

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Egan [2022] NSWSC 399

Hearing dates:

11 March 2022

Decision date:

08 April 2022

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Convicted of the offence of manslaughter.

(2) The offender is sentenced to a non-parole period of 5 years, to commence on 22 September 2019, and expire on 21 September 2024. That will be followed by a parole period of 2 years 6 months to commence on 22 September 2024 and expire on 21 March 2027.

(3) The first date upon which it appears that the offender will be eligible for possible release to parole is 21 September 2024.

Catchwords:

CRIMINAL LAW – sentence – manslaughter – offender pleaded not guilty to murder but guilty to manslaughter at commencement of trial by jury – verdict of guilty of lesser form of homicide – foundation of offence unlawful taking of a human life – manslaughter by unlawful and dangerous act – offender forcefully broke bottle and held sharp piece of glass in hand whilst struggling with deceased – deceased fatally wounded to throat – mature Aboriginal offender – childhood marred by violence and abuse of alcohol – offender homeless and abusing substances for years – poor physical and mental health – lengthy criminal record – repeated imprisonment for actual or threatened violence – finding of remorse, albeit limited – very guarded optimism about the future – sentence imposed

Category:

Sentence

Parties:

Regina
Graham Anthony Egan (Offender)

Representation:

Counsel:
K Jeffreys (Crown)
D Barrow (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s):

2019/295787

Publication restriction:

Nil

Judgment

Introduction

1. On 16 November 2021, Graham Anthony Egan (the offender) was arraigned before a jury panel and me in Sydney. The indictment contained a single count, averring that on 25 September 2019, he had murdered Benjamin Coleman (the deceased).

2. The offender pleaded not guilty to that count, but guilty to manslaughter, a plea that he had offered many months previously. The Crown did not accept that plea to the lesser form of homicide, and a trial by jury immediately commenced.

3. On 3 December 2021, the jury brought the trial to a conclusion by returning a verdict of not guilty of murder, but guilty of manslaughter.

4. After a period of extended reflection, it now falls to me to sentence the offender for that offence.

5. Manslaughter carries a maximum penalty of imprisonment for 25 years. Parliament has set no standard non-parole period, I infer because of the well-known variability of the circumstances and the ways in which the offence can be committed. The foundation of the offence is the unlawful taking of the life of a fellow human being in circumstances that fall short of murder.

6. In coming to the following findings of fact, I have borne steadily in mind that the Crown must prove aggravating matters on sentence beyond reasonable doubt, but the offender need only prove matters in mitigation on the balance of probabilities. Some matters, inevitably, will remain unable to be resolved by me.

Objective features

7. The tragic death of the deceased occurred in a context that is tragic as well.

8. In the early hours of Sunday 22 September 2019, the offender and the deceased were both sitting on the southern footpath of Pirrama Road, Pyrmont, some distance to the east of the Star Casino. Also with them was Ms Ruby Martin, who had enjoyed an ongoing but intermittent romantic relationship with the deceased. Other persons were sitting on the footpath in the general vicinity as well. All of them had had their lives distorted by dependence on prohibited drugs or alcohol or both, with the result that they had endured a great deal of deprivation and hardship. Everyone, I find on balance, was well intoxicated by alcohol, and perhaps other substances, although I think that most of them, including the offender, were very experienced drinkers with a well developed tolerance to alcohol.

9. The evening had been spent sitting on the footpath, drinking, socialising, and begging for money from the many passers-by who were heading from previous social engagements to the casino. Poignantly, the picture painted by the evidence in the trial was one of happiness and conviviality on the part of the passers-by on the one hand, and futility and underlying despair on the part of those occupying the footpath on the other.

10. The offender and the deceased were well known to each other. There was no evidence of any sign of trouble between them in the past. Ms Martin was also known to the offender, and I believe that the two of them were on good terms as well. Having said that, CCTV evidence shows that there was a degree of drunken, crotchety bickering between those who were present on the footpath, which sometimes developed into a little pushing and shoving throughout the evening. Even so, the CCTV also shows that that was almost immediately resolved by way of handshakes, reconciliatory hugs, and so forth.

11. At about 2:27am, the deceased and Ms Martin were some distance to the west of where the offender was located. Perhaps believing that there was yet another ill-tempered encounter developing, this time between Ms Martin and the deceased, the offender moved in their direction. After a short to and fro with the deceased, the offender moved east again. The deceased followed, but not, on my finding, in any threatening or belligerent way.

12. The offender then purposely smashed a bottle against a pillar that was part of a building on the southern footpath. The result was that he was left with the extremely sharp broken neck of the bottle in his hand. Almost immediately afterwards, a struggle developed between the offender and the deceased, which ended up with both of them going to ground. Tragically, the sharp broken bottle neck came in contact with the throat of the deceased, and inflicted a deep wound to that very vulnerable part of the human body. Immediately, the deceased began to bleed copiously.

13. The jury verdict of not guilty of murder establishes that the offender did not, by way of a deliberate act, inflict that wound with intent to cause death or really serious injury to the deceased. It is true that, as a matter of theory, in accordance with the jury verdict, one could find that the offender inflicted such a wound with intent to cause actual bodily harm. But in light of the necessity for an aggravating feature to be proven beyond reasonable doubt, and the difficulty of constructing a thesis whereby such a wound was inflicted to that part of the body with intention to cause the lesser injury but not the greater, I proceed to sentence on the basis that, having purposefully smashed the bottle, the offender engaged in the unlawful act of assaulting the deceased. And that act was undoubtedly extremely dangerous, because of the continuing presence of the sharp piece of broken glass in the hand of the offender during that interaction.

14. Tragically, despite the prompt attention of passers-by and paramedics, the blood loss suffered by the deceased was so severe that he suffered irreversible loss of brain function. Life support was discontinued in the presence of his family members on 25 September 2019.

15. Returning in my discussion to the scene of the homicide, the wounding having occurred, the accused [as said] promptly got to his feet, picked up his bag, and walked off to the east. I am satisfied beyond reasonable doubt that, despite his intoxication, he must have known at that stage that, at the least, a serious wounding had occurred to the deceased.

16. The offender walked out of Pyrmont and around to Darling Harbour, where he was soon arrested. He has been incarcerated ever since.

Objective gravity

17. As I have said, every manslaughter is founded on the unlawful taking of human life. That fact, and the maximum penalty, speak for themselves in terms of the gravity of the offence. But it is necessary for me to make some assessment of where on the spectrum of seriousness this example of the offence of manslaughter sits, not least so that I can give sensible reflection to the maximum penalty in my sentence.

18. In the following assessment of objective gravity, I accept that the inevitably blurred line between objective and subjective features is somewhat approached, if not crossed.

19. Here, the struggle between the two men was unprovoked by anything other than drunken jostling that had been going on for hours, without harm to anybody. Defence counsel in the proceedings on sentence explicitly eschewed any reliance upon self-defence. The smashing of the bottle was undoubtedly purposeful. Thereafter, the offender engaged in a public struggle with the deceased in circumstances that, even without the benefit of hindsight, were obviously anti-social and extremely dangerous. Although the death of the deceased was neither intended nor even foreseen by the offender, it was undoubtedly directly caused by his conduct, considered globally.

20. In my assessment, this example of the offence of manslaughter must be assessed as grave indeed.

Subjective features

21. I turn from a discussion of the offence to a discussion of the person who has committed it.

22. As I have said, the offender offered to plead guilty to manslaughter many months ago, indeed before he was committed to this Court. The parties were agreed that, although the trial was conducted, even so the offender is entitled to a discount on his sentence of 25% as a result.

23. In recounting the life and character of the offender, I was asked by defence counsel to express myself as discreetly as possible. That was because, it was explained, the offender did not wish to be seen to be blaming any other particular person for his own actions. I am content to speak indirectly, so long as I am confident that these remarks fulfil my obligation to public justice.

24. The offender is an Aboriginal man who was born in December 1968. Accordingly, as at the date of the homicide, he was aged 50 years, and he is now aged 53.

25. He grew up in a rural setting. One of his parents was never part of his life, and the other was the victim of a historic injustice, which psychologically damaged that parent, and led them to develop a very powerful dependence on alcohol. His childhood was marred by a general atmosphere of violence and abuse of substances, and his education was grossly disrupted. Early promise in Australian Rules football was cut short by injury, and by his teenage years he himself was abusing alcohol and prohibited drugs, to the extent that he became homeless in early adulthood. I am well satisfied that those dependencies and the ultimate outcome of living on the streets were the direct result of the psychological damage done to him as a child and teenager.

26. There followed years of deprivation, disruption, and poor physical and mental health. His physical ailments include Hepatitis C, diabetes, gout, and serious dental problems. The offender is a man who appeared to me throughout the trial far older than his years. All of that, I infer on balance, is derived directly or indirectly from abuse of alcohol, drugs, or homelessness.

27. The offender has also been diagnosed with a variety of mental health disorders, including Post Traumatic Stress Disorder. I also think on balance that he has suffered cognitive impairment arising from chronic abuse of alcohol.

28. More generally, a flavour of the lifestyle of the offender is provided by the fact that, in early 2017 whilst living on the streets, he himself was stabbed by another person, and very seriously injured.

29. Those physical and mental difficulties have made his time in custody since arrest more difficult than they would be for a healthy, younger person, as has, of course, the pandemic that has affected all of our lives, and especially the lives of those held in prison.

30. To be weighed against those undoubtedly mitigating factors is the criminal record of the offender.

31. It is significant that, at the time that he took the life of the deceased, the offender was on two forms of conditional liberty; one as a result of a conditional release order that had been imposed for the offence of damaging property on 9 November 2018, and the other based upon a community correction order imposed for the offence of intimidating a police officer on 22 February 2018. That is a significant aggravating feature.

32. Furthermore, over the years the offender has been a person of violence, sometimes reasonably significant violence. I infer that that is a result of a quickness to anger on his part, in turn based on resentment at the life he has led, itself based upon psychological damage he suffered at an early age. The result is that he has a long record of harming, or threatening to harm, other people. Two entries are especially notable.

33. The first is a conviction for reckless wounding which was entered against the offender in 2008, admittedly quite some years ago. Facts from that offence were placed before me. They suggest that the offender stabbed another man three times, seemingly as a result of ill feeling that developed over nothing more than an argument between third parties, and the playing of loud music. The result was a sentence of imprisonment for 12 months.

34. The second is a conviction for being armed with intent to commit an indictable offence, which was entered in 2009. The facts suggest that that offence featured the offender purposefully breaking a bottle in order to place another person in fear. The similarity between that offence and the purposeful action of the offender in the early hours of Sunday, 22 September 2019 is obvious, and obviously troubling.

35. In short, before the life of the deceased was taken by the actions of the offender, the latter had intersected repeatedly with the criminal justice system for acts of violence or the threat thereof, and been imprisoned at least ten times as a result.

36. I do not approach the criminal record of the offender on the basis that it aggravates the position subjectively. But it is inevitable, as defence counsel accepted, that my sentence - not least in an exercise of attempted personal deterrence - must reflect the undeniable reality that, over the course of many years, the offender has harmed or threatened to harm very many other people, including by way of sharp items, and that course of conduct culminated in fatality.

37. Returning now to the time of the offence, in fact there were positive signs developing in the life of the offender. He was in truth not homeless, but had secured a small apartment in the inner west of Sydney. Even so, whether through loneliness, boredom, or an inability to adjust to settled suburban living, he chose to be out and about, begging on the street whilst intoxicated, on this Sunday morning.

38. The other positive sign was that he had spent 18 months seeing a psychologist on many occasions, in a sincere effort to address the deep underlying issues that had distorted his life over many years. That was a positive development; having said that, self-evidently it was incapable of forestalling this tragedy.

39. As for the question of remorse, as I have said, the offender promptly left the scene, even when he must have known that, at the least, the deceased was badly hurt. He did nothing to staunch the flow of blood, nor to get medical help, although he did mention to a friend as he walked past that he had stabbed someone.

40. Later, having been arrested, he inquired after the welfare of the deceased in harsh and vulgar terms, but I accept on balance that a man who has lived the life of the offender would not express concern for another in a flowery way.

41. It is also the case that, by his plea, the offender has formally accepted his responsibility for the offence of which he was ultimately found guilty, when he must have been advised by his legal team that a significant period of incarceration would be inevitable as a result.

42. Finally, I have approached an affidavit from the offender on which he was not cross-examined with caution, in accordance with the authorities and common sense. Even so, I detect in that sworn document a blunt sincerity in his expression of sorrow at what has happened.

43. My ultimate finding about this topic is that, grudgingly and gradually perhaps, the regret felt by the offender about the events of that evening has come to extend beyond concern merely for himself.

44. Finally, as for the future, and the prospects of rehabilitation of the offender, I regret to say that there can only be, at best, very guarded optimism. That finding is not meant to be critical in any personal sense. Nor is it to suggest that any aspect of my sentence features preventative detention, direct or indirect. It is merely to say that the objective reality of how badly things have gone wrong, the period over which that has happened, the culmination of that process in homicide, and finally my lack of confidence that resources will be available for this cycle to be broken, combine to mean that one can only be very cautious about the future.

Various matters

45. Turning now to some discrete matters, these remarks recount the objective and subjective features that underpin my sentence, with a focus, of course, on those relied upon in the written and oral submissions of both counsel. I shall not list them again in a mechanistic way.

46. Secondly, I accept the joint submission that the sentence should commence on the day of arrest and continuous custody; namely, 22 September 2019.

47. Thirdly, both parties helpfully provided me with first instance and appellate authorities in broadly similar matters, and I have had regard to them. But because each case must turn on its own facts, I shall not pause to analyse them now. Suffice to say that I believe that the sentence that I shall shortly impose is consonant with those authorities.

48. Fourthly, in my opinion, this is a case that cries out for a finding of special circumstances, whereby the period on parole may be extended. That is not just in the interests of the offender. It is also, I believe, in the interests of the whole community, in the sense that I believe that it maximises the chance of this kind of tragedy being prevented from occurring again.

49. Having said that, the adjustment that I have made is moderate, and I believe that the non-parole period at which I have ultimately arrived constitutes the minimum appropriate period of imprisonment, in light of all of the objective and subjective matters to which I have referred.

50. Finally, the offender should be aware that there is a possibility that he will be detained in custody, not only after the expiry of his non-parole period, but even after the expiry of his entire head sentence, if it is established at that stage that he constitutes a danger to the community, in accordance with the regime relating to persons convicted of offences of violence.

Victim impact statements

51. So far I have spoken at length about the offence, and the offender who committed it, as the law requires me to do, in order to explain the sentence that I shall shortly impose. But I have not forgotten the person whose death was the true subject matter of the trial and these remarks on sentence, Mr Benjamin Coleman. What I know of him I have learned largely from the victim impact statements of Ms Ruby Martin, and his sister, Ms Belinda Coleman.

52. Ms Martin, as I have said, has had her own troubles and sadness throughout her life, and this loss has just added to that. She has spoken of her happy memories of the gentleness and quietness of the deceased. She describes herself as lost without him. I hope that she will overcome this and her many other challenges, and will find a way to battle back to happiness.

53. Ms Belinda Coleman has spoken, in an eloquent and moving statement, of the protective and reflective nature of her brother, including his love of fishing and reading. The latter part of his life, during which he was living rough was, I accept without hesitation, heartbreaking for the family. A further poignancy of the matter is that, shortly before his death, the deceased himself had obtained settled accommodation, and it seemed that things might at last improve.

51. The loss of this much loved man has been a crushing blow for his family, both as individuals and as a whole. And it is a very good example, I think, of the way in which the damage inflicted, whenever fatal harm is done to a member of our community, extends far beyond that person.

52. I respectfully express my condolences to all who have suffered, and will continue to suffer, as a result of this senseless tragedy. And I express the hope that the conclusion of the court proceedings today will provide some measure of relief to all of them.

Orders

1. Graham Anthony Egan, you are convicted of the offence of manslaughter.

2. The starting point of my sentence is a head sentence of imprisonment for 10 years. Applying the utilitarian discount to that, there will be a head sentence of 7 years 6 months, with a full backdate.

3. In accordance with my finding of special circumstances, there will be a non-parole period of 5 years.

4. To express my sentence formally: the offender is sentenced to a non-parole period of 5 years, to commence on 22 September 2019, and expire on 21 September 2024. That will be followed by a parole period of 2 years 6 months, to commence on 22 September 2024 and expire on 21 March 2027.

5. The first date upon which it appears that the offender will be eligible for possible release to parole is 21 September 2024.

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Decision last updated: 08 April 2022