R v Flame (No 4)

[2020] NSWSC 1826

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Flame (No 4) [2020] NSWSC 1826

Hearing dates:

8 December 2020

Decision date:

16 December 2020

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Convicted of the offence of manslaughter.

(2) I sentence you to a non-parole period of 5 years 6 months, to date from 4 November 2018, and expire on 3 May 2024.

(3) That will be followed by a parole period of 2 years 6 months, to date from 3 May 2024, and expire on 3 November 2026.

(4) To express my sentence another way, I have imposed a head sentence of imprisonment for 8 years, with a non-parole period of 5 years 6 months, with a full backdate.

(5) If the plea of guilty to manslaughter had not been offered, I would have imposed a head sentence of imprisonment for 11 years.

(6) The first date upon which it appears that the offender may be considered for possible release to parole is 3 May 2024.

Catchwords:

CRIMINAL LAW – sentence – verdict of guilty of manslaughter after trial by jury of count of murder – brutal killing of defenceless victim – defence of mental illness not established – MDMA use triggered psychotic state of offender – offender perceived the deceased to be demonic or a demon – vulnerability to developing schizophrenia – diagnosis of schizophrenia subsequent to the offence – offer to plead guilty to manslaughter – young offender – unblemished character – genuine remorse – special circumstances – sentence imposed

Category:

Sentence

Parties:

Regina (Crown)
Mathew Flame (Offender)

Representation:

Counsel:
G Christofi (Crown)
J Stratton SC and T O’Rourke (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Archbold Gittani Lawyers (Offender)

File Number(s):

2018/339226

REMARKS ON SENTENCE

Introduction

1. On 20 October 2020, Matthew Flame (the offender) was arraigned before a jury panel and me. The indictment presented against him contained a single count, alleging that on 4 November 2018, at the beachside suburb of Queenscliff, he murdered Liam Anderson (the deceased). The offender entered a simple plea of not guilty. A jury was immediately empanelled, and the trial proceeded for a number of weeks. It concluded on 12 November 2020 with the return by the jury of a verdict of not guilty of murder, but guilty of manslaughter.

2. Although the plea entered by the offender was a denial of criminal liability, it was made clear from a very early stage that it was based upon the defence of mental illness. The primary submission to the jury by learned defence counsel was that a verdict of not guilty, solely on that basis, should be returned. His alternative position was that a verdict of guilty of manslaughter should be returned, based upon either excessive self-defence, the partial defence of substantial impairment, or an inability on the part of the Crown to prove the necessary mental elements for murder.

3. Clearly enough, the primary defence was not established on balance to the satisfaction of the jury. It is therefore my responsibility to make findings of fact consistent with the implicit rejection of the defence of mental illness, and with the explicit finding of the jury that manslaughter, not murder, has been committed.

4. The matter was stood over for proceedings on sentence on 8 December 2020, and it falls to me to sentence the offender for manslaughter today.

5. Manslaughter is an offence that carries a maximum penalty of imprisonment for 25 years. It possesses no standard non-parole period, I infer because of its notorious variety, legally and factually. This case is a very good example of that variety, and the difficulty that sentencing for the offence can present, because the countervailing circumstances of this offence are, in my opinion, unusual almost to the point of uniqueness.

Objective features

6. I propose now to recount how it is that this homicide came to be committed. But I shall do so relatively briefly. That is not only because every person in this courtroom is well aware of the undisputed facts. It is also because the trial has been the subject of a deal of publicity, and I believe that interested members of the community are by now well aware of how this tragedy came to occur.

7. In recounting what happened, and other matters, I have borne steadily in mind that disputed aggravating features on sentence must be proven beyond reasonable doubt, but mitigating features in favour of the offender need only be proven on balance. Some matters, inevitably, will be unable to be resolved with clarity by me, in accordance with those legal rules.

8. Because of the unusual nature of the matter, and the intertwining of the beliefs of the offender with his actions, it is impossible for me in the following analysis to divide up various matters neatly, by way of the usual classification of objective features that relate to the offence, and subjective features that relate to the offender.

9. On the evening of Saturday, 3 November 2018, a group of young adults living in the northern suburbs of Sydney headed into the city for a night of music, socialising, and fun. Amongst them were the offender, then aged 20 years, and the deceased, then aged 26. The two young men were close, if not best, friends, and there had never been the slightest trouble between them, including in the earlier part of that evening.

10. The group spent most of their time at a hotel in Darlinghurst. Over many hours, they enjoyed dancing, drinking, and music from a variety of performers. Some of the group, including the offender, had consumed some cannabis earlier in the evening. More than one of them, again including the offender, ingested MDMA or ecstasy in order to enhance the party atmosphere. In fact, a large number of capsules of that prohibited drug had been purchased by the offender, and they were in his possession that evening. I approach that fact on the basis that there had been a pooling of financial resources amongst friends, rather than a cold-eyed profit-making exercise on his part.

11. The social outing was a big success. During its many hours, there was no sign of trouble or ill-feeling amongst the group of friends. Although the offender ingested a large number of MDMA capsules, and there is evidence that they may have been of unexpectedly high purity, he had been abusing that drug for quite some time, he had developed a tolerance to it, and the quantity he consumed was by no means extreme, or in the nature of a binge, for him.

12. Some of the young people ended up at a private home back on the Northern Beaches. Again, that included the offender and the deceased, who had travelled there happily together. More cannabis was to hand. By that stage, the offender had ingested alcohol, cannabis, and many capsules of MDMA. Dawn was approaching on the Sunday morning.

13. The offender took one final capsule of MDMA. Very soon afterwards, it was clear that he was in psychological difficulties. The obvious inference drawn was that he was suffering some kind of very negative reaction to the drug that he had just taken, in the context of all that had been ingested before it. He left the premises on foot in a distressed state.

14. Poignantly, the deceased, well aware that his friend was in trouble, followed after him when others stayed behind. Indeed, the deceased said to his close friend that he would “never leave him”, no doubt meaning that he would get the offender through his unpleasant and frightening experience.

15. Tragically, and completely unbeknown to the deceased, the offender had begun to experience an acute episode of psychosis; by that I mean, he was divorced from reality. Although it is true that the offender could still see and hear, his thinking and feeling about the world around him were grossly disturbed as follows. First, he firmly believed that the deceased, far from being a close friend who was trying to help him, was trying to harm him. Secondly, he believed that the deceased was in fact trying to kill him. Thirdly, even more disturbed and irrational was the belief of the offender that, at the least, the deceased was subject to demonic influence or possession, if not a demon himself, and that he the offender had entered Hell.

16. Because of that utterly senseless but deeply held belief, the offender beat the deceased to death. His actions were motivated by a sincere belief that he needed to defend himself that was patently unreasonable; indeed, it was based on a belief in a supernatural being that does not exist. He used his bare hands and feet to achieve his grossly misguided purpose, and perhaps a large rock that was later found at the scene. The ordeal of fatal violence was not a short one, and the deceased was heard to be begging for help. Early morning walkers and other bystanders saw what was happening, but one at least was too afraid to intervene.

17. The police promptly attended. The offender was subdued with capsicum spray and arrested. He needed to be restrained by handcuffs. Meanwhile, an effort was made to airlift the deceased to a hospital from Freshwater Beach. Tragically, it was simply too late.

18. The offender was taken back to a police station. When first there, he was babbling about threats of Satan judging the police harshly for the injustice they were committing against him. At one stage, he was literally frothing at the mouth. After a time, however, he regained his senses, and began to understand the truth, and to appreciate the awfulness of what he had done.

Objective seriousness

19. Manslaughter can be understood as the unlawful taking of human life in circumstances that do not amount to murder. It is self-evidently a very serious offence, though by its nature less grave than the greater form of homicide. And it is necessary for me to do my best to provide some sort of assessment of the gravity of this particular example of manslaughter, not least so that I can sensibly apply the maximum penalty provided for by Parliament, and so that every interested person can understand the basis of my ultimate sentence. Again, it is impossible to provide this assessment of objective seriousness without including reference to some subjective matters.

20. In this case, the existence of a young man with his whole life ahead of him was snuffed out. The deceased was completely innocent, his death was absolutely undeserved, and he had done nothing whatsoever to provoke it. His final ordeal was extended, gruelling, terrifying, and horrifically painful. On one level, the offender undoubtedly intended to kill. In accordance with the implications of the verdict of the jury, which I shall analyse in more detail later, the state of mind leading to homicide was caused very largely by a decision of the offender to abuse a significant quantity of a prohibited drug, which he well knew was illegal and psychoactive.

21. On the other hand, the homicide undisputedly occurred when the offender was in a psychotic state. Although he freely chose to combine cannabis with MDMA, the offender never foresaw, let alone intended, the possibility of this terrible outcome of his intoxication. Furthermore, he honestly believed, I am well satisfied, that he was in mortal danger. And even accepting that he could see with his eyes that the person whom he was harming had the appearance of his friend, I also accept that the offender believed that the recipient of his violence was demonic. In other words, although there was an intention to kill, as readily demonstrated by the brutality of the fatal acts themselves, there was never a real desire to bring the life of a human being to an end, let alone that of a close friend, as demonstrated by the reaction of the offender once he realised what he had done.

22. Obviously, these factors point in different directions. Even so, giving full weight to the mitigatory objective factors I have recounted, this example of the lesser form of homicide must be assessed as being of significant objective gravity.

Subjective features

Offer to plead to manslaughter, and remorse

23. Turning now from the offence itself to the offender who committed it, many months ago, whilst charged with murder, he offered through his lawyers to plead guilty to the lesser offence of manslaughter. That offer was rejected by the Crown. He did not plead guilty to that offence at the commencement of the trial, but of course that would have been procedurally impossible, in light of his primary position being a denial of guilt based on mental illness.

24. In those circumstances, in accordance with both statute (which I was assured by both counsel applies to this matter) and with the pre-existing common law, the offender is entitled to a 25% discount for the utilitarian value of his plea of guilty, even though a trial by jury of some length and complexity was conducted.

25. Separately, I record at this stage my complete satisfaction that, ever since the moment when he found out the truth, the offender has bitterly regretted what he has done, is deeply remorseful for his actions, and has tried to understand how they happened. Those emotions will be with him for the rest of his life. And I am also well satisfied that all of those states of mind go well beyond self-pity. That firm opinion of mine is not merely based on procedural matters, such as the offer to plead guilty to homicide, or the primary submission of his counsel that may have seen him detained for the rest of his life in a mental hospital. It is based on all that the offender said to the police once he had regained his senses, including his recorded interview, how he said them, what he has said to psychiatrists, and what he has written to me. And it is also based upon much of the other evidence placed before me in the trial and on sentence, not least his life history and previous character, which I now turn to discuss.

Background

26. As I have said, the offender was aged 20 when he killed the deceased. He was living with his mother in the northern suburbs of Sydney. His childhood had been unremarkable, and free from material or emotional hardship, though no doubt there was some sadness and disruption arising from the divorce of his parents when he was aged ten, and his estrangement from his father for an extended period.

27. The offender ended his schooling in year 10. At the time of the offence, he was progressing through an apprenticeship in plumbing, having previously tried his hand at a number of other positions. He was physically fit, enjoyed working out and kickboxing, was happy at home, and appeared completely emotionally and mentally well. He had a good circle of friends, and some positive romantic relationships in the past. A great deal of evidence from many persons was placed before me about his good character, including his gentleness and thoughtfulness; because it was entirely undisputed and I accept it, I shall not pause to detail it now. In conformity with all of that, there had been no interaction with any aspect of the criminal justice system whatsoever before he killed another human being that morning.

28. Two negative aspects of his background should be noted. The first is that the offender was abusing prohibited drugs, had been doing so for some time, and had been doing so in reasonably large amounts. And, as I have said, it was he who was at the least the collector of the bulk MDMA capsules for the group on the evening.

29. The second negative aspect is that I am satisfied that, some months before November 2018, the offender had turned up at work after another night of alcohol, cannabis and MDMA. He was still intoxicated. Just for a moment, he held the belief that his workmates were demons. His supervisor noticed that something was wrong, told him to go home, and said that if he returned in the same state again he would be sacked. The offender told his mother that he had come home because he was not feeling well.

30. It is easy, with the benefit of hindsight based on subsequent disaster, to say that that disturbing experience should have led the offender to refrain from prohibited drugs, or – at the very least – to refrain from that kind of mixture of them. It is also easy, I accept, for an older person to sit in judgment on the decisions of a 20-year-old, with all of his or her feelings of invincibility and impetuosity. Even so, I think that, to some degree, the moral culpability of the offender for the tragedy that Sunday morning is increased, not only by the illegality of the substances that he consumed, but also by the fact that there had indeed been some previous warning in his life of the danger of an extreme adverse reaction to them.

Mental state at time of the offence

31. Reflecting now in more detail about the mental state of the offender at the time of the homicide, the jury did not accept that the primary defence of mental illness had been established on balance; so much is implicit in the verdict. Consistent with that rejection, my finding is that it was the prohibited drugs that led to the psychotic state of the offender that morning, and not any mental illness from which the offender was suffering at that time. Even so, the development of schizophrenia by the offender some months later, combined with a synthesis of the opinions of the three psychiatrists (giving primacy to that of Professor Greenberg, it being the most consistent with the verdict of the jury), leads me to the following view.

32. Mental illness, as at 4 November 2018, did not substantially contribute to this homicide. But the psychoactive drugs taken by the offender operated upon a vulnerability to developing mental illness that has now come to fruition. In other words, the ingestion of the drugs did not operate in a complete vacuum; to some degree, they operated upon a risk of, or vulnerability to, developing such an illness.

33. In short, it is true that the jury has implicitly found that the operating cause of the psychosis was prohibited drugs, not mental illness at that time. It is also true that, speaking generally, intoxication with prohibited drugs is, pursuant to statute and common law, not a mitigating feature on sentence, and in some cases can be an aggravating one. It is true as well that mental illness can be a mitigating feature on sentence, but not, ordinarily, a vulnerability to developing such an illness.

34. But I do not accept that the statutory prohibition on thinking of intoxication as a mitigating feature is a command from Parliament that I must therefore put from my mind the undeniable reality of what happened here. That is especially the case since the disturbed state of mind of the offender that was the result is contained in my findings about what he believed, and that are reflective of the verdict of guilty of manslaughter, not murder.

35. In similar vein, I think it would be far too primitive for me to say that mental illness can sometimes be a mitigating feature, but a vulnerability to such illness, leading, in combination with the ingestion of prohibited drugs, to unexpected and unintended florid psychosis, cannot be.

36. To some degree, in short, my sentence reflects each of those matters – the belief in the necessity to defend himself, although arising from a drug-induced psychosis, and the role in that process of a vulnerability to mental illness – as mitigating features.

Events since offence

37. As I have said, the offender was arrested at the scene. He has been in custody ever since. The most important subsequent development is that it is well established on balance that he has now developed the chronic and severe mental illness of schizophrenia. He has been evaluated and cared for by many psychiatrists. He has been held in mental health units within prisons. He is taking prescribed medication that is strong, and in some ways dangerous. That has helped, but it has by no means returned him to a completely normal mental state. It is quite possible that nothing ever will.

38. As the learned Crown prosecutor has accepted, a person with that illness is more vulnerable in prison, and will find incarceration more difficult, certainly, than, for example, a hardened criminal who is completely mentally well. It was also conceded that a person suffering from that illness will sometimes be a less appropriate instrument for the expression of general deterrence; by that I mean, punishing that person as a warning to others.

37. I accept both of those submissions. As for general deterrence, I also express the view that the widely publicised facts of this matter speak for themselves about the unforeseen and unintended ruin brought to many lives by the abuse of prohibited drugs that Saturday evening and Sunday morning.

38. Another subsequent development is that, for a time, the offender abused other prohibited drugs in gaol – opioids, sedatives, and the like. Not only that, he dishonestly denied their use, and went so far as to tell the transparent lie to a medical professional that he had suffered from heroin addiction whilst living in the community, in an attempt to obtain more of such substances.

39. All of that sounds a sharply discordant note about his prospects for the future. And the point is soundly made by the Crown prosecutor that one might have thought that, after what had happened, the offender would immediately abstain from prohibited drugs for the rest of his life. Even so after reflection, I accept on balance that he has put that new kind of drug abuse behind him, and that it was really a misguided effort by a young man to “get through” the shock and stress of his first many months of incarceration, whilst facing a murder charge.

40. As for the future, the offender has insight into the fact that he is ill. He appreciates the need for treatment, including medication. He is eager to receive it. He enjoys the love and support of family and friends. Patently, as forensic psychiatrist Dr Allnutt has recently written, he must avoid unprescribed psychoactive substances for the rest of his life. On balance, despite the gravity of what he has done, the chronic mental illness from which he now suffers, and the obvious disruption that incarceration has brought to the progress of his life, I think that his prospects of rehabilitation can be assessed with significant optimism.

Various matters

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

44. Secondly, I accept the joint submission that the sentence should commence on the day of arrest and continuous custody; namely, 4 November 2018.

45. Thirdly, the offender should be aware that it 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.

46. Fourthly, I have rounded down the head sentence after the application of the utilitarian discount by a matter of a few months, because the law does not concern itself with trifles.

47. Fifthly, this is a matter that, in my opinion, cries out for a finding of special circumstances. I believe that a return to community life will be an enormous adjustment for the offender when he is released, bearing in mind his mental illness, his youth, and the fact that he was a person of previous good character who had had nothing to do with the criminal justice system before he was suddenly remanded in custody many months ago. I have therefore extended the parole period to some degree, and reduced the non-parole period accordingly. Having said that, in my opinion, any non-parole period shorter than the one that I shall impose at the end of these remarks would not reflect the undeniable objective gravity of this matter.

Victim impact statements

48. Separately, a murder trial by necessity focuses upon the fatal act itself, the events leading up to it, and sometimes, as here, the mind of the accused person. As Ms Roxy Anderson, sister of the deceased, has written, that means that, often, it may seem as if the person who has died has almost been forgotten in the trial, or is thought of merely as a victim of homicide, nothing more.

49. As well as that, remarks on sentence need, as a matter of legal explanation, to set out one’s findings about the offence and the offender who will be punished for it. But I have not neglected to reflect upon the young man whose death is, in truth, the subject matter of these proceedings.

50. There was no objection by defence counsel to the harm done to those who love and grieve for the deceased being taken into account by me as part of the overarching harm done to the community, and I certainly do so. I pause now to recount a little of that harm.

51. Ms Roxy Anderson has spoken of what was a lively, convivial home, often the venue for happy social events, of which her brother was a central part. She has spoken of him as a fun and funny person, creative, free-spirited, broad in his love of different musical styles, passionate in his own musical performances. She painted a particularly fond picture of the dance floor being cleared as he and others engaged in epic “dance battles”, to the enjoyment of all present. She speaks very movingly of the fact that the source of that creativity and fun has been permanently taken from her and her family.

52. The mother of the deceased, Ms Lindy Anderson, has spoken of her unendingly broken heart. Her suffering has caused old and unwelcome challenges in her personal life to reappear, and relationships to fracture. The first year after the death of her son was nothing more than a blur of grief. She is haunted by the pain and terror of his final ordeal. She speaks of herself as being a shipwreck survivor who is desperately holding onto the smashed pieces of the beautiful ship that float past; the beautiful ship is her son. She is doing her best to keep her head above crashing waves of despair. She explains that her son Liam was a gentle, kind, loving, and passionate young man. She achieves some measure of inner peace through forgiveness of another young man.

53. The father of the deceased, Mr Gary Anderson, recalls the deeply distressed phone call from his eldest son Galen that conveyed the terrible news. He speaks of the everyday loving interactions with Liam that will never occur again. There is a strong new bond between family members, but it is the bitter bond of grief. From now on, every day that should be one of family celebration will be one of mourning, because of the family’s missing member, the baby of the family. Mr Anderson speaks of the generosity of spirit that led the deceased to do what he did that morning, a generosity that was met with fatal violence, and he speaks of a light that has been extinguished. He has also spoken of a spiral of love between parent, child, and the children of that child, a structure that should be endless but is now broken. He has spoken of stoic endurance and survival of what he has simply but eloquently called a life of sadness.

54. No person with feelings can fail to be moved by those heartfelt statements of suffering. And no sentence that I, or any judge, can impose, can relieve that pain; to think otherwise would be foolish. All I can do, I think, is express my condolences as a human being, and also express the hope that the conclusion of the formalities of the legal process today will provide some measure of relief to those who are in mourning.

Conclusion

55. In short, this is an exceptionally difficult sentencing exercise. In a sense, any sentence that fully reflects the objective features of the offence will fail to reflect the subjective features of the offender, and vice versa. I hope it is appreciated that trying to balance all of those factors by the simple measure of a period of years subtracted from the liberty of the offender is to wield a very blunt instrument. I also trust that it is understood that the measure of the loss of a deeply cherished young man, Liam Anderson, can by no means be equated with the punishment imposed upon the other young man, guilty of his manslaughter.

Imposition of sentence

1. Matthew Flame, you are convicted of the offence of manslaughter.

2. I sentence you to a non-parole period of 5 years 6 months, to date from 4 November 2018, and expire on 3 May 2024.

3. That will be followed by a parole period of 2 years 6 months, to date from 3 May 2024, and expire on 3 November 2026.

4. To express my sentence another way, I have imposed a head sentence of imprisonment for 8 years, with a non-parole period of 5 years 6 months, with a full backdate.

5. If the plea of guilty to manslaughter had not been offered, I would have imposed a head sentence of imprisonment for 11 years.

6. The first date upon which it appears that the offender may be considered for possible release to parole is 3 May 2024.

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Decision last updated: 16 December 2020