R v Gordon (No 8)

[2017] NSWSC 574

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Gordon (No 8) [2017] NSWSC 574
Hearing dates:	21 April 2017
Date of orders:	12 May 2017
Decision date:	12 May 2017
Jurisdiction:	Common Law - Criminal
Before:	Campbell J
Decision:	The offender is sentenced to a term of imprisonment of 10 years, having a non-parole period of 6 years and 6 months commencing on 7 November 2013 and expiring on 6 May 2020 with an additional term of 3 years and 6 months commencing on 7 May 2020 and expiring on 6 November 2023. The offender will first be eligible for release on parole on the expiration of the non-parole period on 6 May 2020.
Catchwords:	CRIMINAL LAW – sentence – offender charged with murder – offender convicted by jury of manslaughter – where the evidence is purely circumstantial – where the victim died from blunt force trauma to the head – where the offender and victim were grossly intoxicated – where a central issue of fact is the use of a motor vehicle and/or a boulder as a weapon – finding that the offender intentionally reversed the vehicle over the victim – whether the categorisation of manslaughter has any bearing on objective seriousness – held to be manslaughter by unlawful and dangerous act – finding of special circumstances
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	R v Baden-Clay (2016) 334 ALR 234 R v Bouggas [2015] NSWSC 914 Cheung v The Queen (2001) 209 CLR 1 The Queen v Hillier (2007) 338 CLR 618 R v Isaacs (1997) 41 NSWLR 374 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia (2013) 249 CLR 600
Category:	Sentence
Parties:	Regina (Crown) Donald Neil Gordon (Accused)
Representation:	Counsel: B G Campbell (Crown); J P Watts (Accused)   Solicitors: Director of Public Prosecutions (NSW) Aboriginal Legal Service (Accused)
File Number(s):	2013/337128
Publication restriction:	Nil

Judgment

1. The offender is to be sentenced for the manslaughter of Danial Cotter which occurred in the very early hours of 7 November 2013 at Collum Collum Station, about 80 kilometres northwest of Grafton.

2. The offender was arraigned on an indictment charging murder. After a trial commencing on 9 February 2017 at Grafton, the jury returned verdicts of not guilty of murder and guilty of manslaughter on 3 March 2017.

3. It should be said at the outset that the most significant issue in the trial was how the blunt force trauma to Mr Cotter’s head from the effects of which he died was inflicted by the offender. The Crown case was that the offender had both run over Mr Cotter with a Mitsubishi Magna motor vehicle and bludgeoned him three times about the head with a heavy boulder (Exhibit C) with the intention of either killing, or inflicting really serious injury upon, Mr Cotter. Alternatively it was put that the act causing death was deliberately running over him in the motor car. The Crown argued that either hypothesis was sufficient to satisfy the actus reus for murder.

4. Upon arraignment, the offender pleaded not guilty to murder but guilty of manslaughter. It was argued on his behalf that the jury could not be satisfied beyond reasonable doubt that Exhibit C had been used as a weapon. It was put to the jury that they could not be satisfied beyond reasonable doubt of murder because all of the circumstances established by the evidence did not exclude the reasonable hypothesis that the offender, in a state of gross intoxication, had unintentionally run over Mr Cotter and that the large blood stains on Exhibit C were deposited incidentally during that occurrence or its aftermath.

General principles

5. As I have said, the jury’s verdict was guilty of manslaughter. I am required to make my own findings of fact based upon the evidence led at the trial as to what happened for the purpose of determining the offender’s culpability and the objective seriousness of his offending. It is not my task to attempt to divine the basis on which the jury made its decision. I am required by law to make my own determination, subject to two principal constraints: Cheung v The Queen (2001) 209 CLR 1 at [14] citing R v Isaacs (1997) NSWLR 374 at 377-378 (per Gleeson CJ, Mason P, Hunt CJ at CLR, Simpson and Hidden JJ). The first is that I am bound by the jury’s verdict and the findings I make must be consistent with it. The second is that the facts informing my decision about the offender’s culpability need to be established to my actual satisfaction beyond reasonable doubt. I am not required to sentence the offender on the most benign version available on the evidence, provided, as I have said, I am satisfied as to the facts underpinning his culpability beyond reasonable doubt.

Summary of findings

6. Bearing these legal principles in mind, I have come to the conclusion that the offender fatally injured Mr Cotter by intentionally reversing the Mitsubishi Magna over him. When he did so, because of his gross state of intoxication, he acted impulsively without forming any actual specific intention to kill or seriously injure Mr Cotter. I am satisfied that he did not turn his mind to the consequences his actions would bring. I am not satisfied beyond reasonable doubt that he bludgeoned Mr Cotter to death with Exhibit C.

7. In making this decision, I have borne in mind another important principle of law that when evaluating a Crown case based upon circumstantial evidence, as this case was, it is of fundamental importance to consider all of the circumstances proved by the evidence together. It is wrong to examine each circumstance in isolation or in a piecemeal fashion to determine whether the Crown have excluded beyond reasonable doubt all reasonable hypotheses consistent with innocence: R v Baden-Clay (2016) 334 ALR 234 at 242 [47]; The Queen v Hillier (2007) 338 CLR 618 at [46].

8. Taking this approach, I have borne firmly in mind that Exhibit C and its condition are salient circumstances proved by the evidence. By its condition, I mean: first, its close proximity to Mr Cotter’s body when it was discovered; secondly, the large contact bloodstains (it is Mr Cotter’s blood) on four of its six facets; thirdly, the presence of Mr Cotter’s hair in three places on two of the six facets; and fourthly, the positive evidence of the presence of the offender’s DNA in three places on the boulder which were free of Mr Cotter’s blood.

Reasons for central finding

9. I accept that the condition of Exhibit C is evidence of contact between it and Mr Cotter’s bloodied head. But there are two matters in particular which cause me to doubt it was used as a weapon to inflict the serious head injuries from which Mr Cotter died. The first matter is the constraint I am under to find facts consistent with the jury’s verdict. Notwithstanding what I have described as the offender’s gross state of intoxication, I cannot persuade myself that even a drunk person would strike another three times about the head with Exhibit C, which weighs about 21 kilograms, unless he had the specific intent of doing at least really serious harm.

10. The second matter relates to features of the physical evidence of the condition of Exhibit C in the context of all of the circumstances established by the evidence. The expert witnesses who gave evidence of blood stain pattern analysis identified that the three large blood stains indicating contact between Mr Cotter’s bloody head and Exhibit C did not exhibit characteristics evidencing forceful contact. Leading Snr. Constable Mark Griffiths, a very experienced forensic officer, said that there was an absence of impact spatter stains on Exhibit C. These would commonly be expected if it had been used to forcibly strike Mr Cotter’s head.

11. The hair on the rock did not necessarily indicate forceful contact. I gained the impression from the expert evidence and my visual inspection of Exhibit C and the blown up images of it that the hair was suspended in a film of blood rather than being adherent to the rough protrusions of the surface of the rock. Similarly, hair suspended in a film of his blood was evident on Mr Cotter’s hands. One would not posit forcible contact between his hands and his head as an explanation for the presence of that hair, in my view.

12. LSC Griffiths described a blood stain on facet E of Exhibit C as a classic hair transfer pattern. This suggested a deposit of blood when Mr Cotter’s hair “flicked” at the point of that contact with the rock. Again, however, there was no associated projected staining to suggest forceful contact.

13. The only evidence of projected staining on Exhibit C was provided by what I would call small speckles of blood in the middle of facet E. The potential significance of them is that facet E was the part of the rock in contact with the ground when Mr Cotter’s body was discovered in the daylight hours of 7 November. Although Leading Snr. Constable Griffiths was firmly of the view that overall the pattern of blood staining on Exhibit C suggested multiple and forcible contacts between Mr Cotter’s head and the rock, he agreed that the small projected speckles were unlikely to have been produced by such contact. This was largely because of their shape. At their point of contact with the rock, these speckles appeared to be moving from what I would regard as right to left. There is no large contact stain to the right of those speckles on facet E. They were not created by the same contact which left the hair pattern to the left of the speckles on facet E. It is possible that these stains were either expirated, or cast off blood coughed up or flicked off from Mr Cotter when he was close to the rock. I acknowledge that this possibility involves a hypothesis that those speckles were deposited before Exhibit C came to rest where it was found.

14. The defence called Ms Jae Gerhard to give expert evidence. Her opinions were largely consistent with those of LSC Griffiths. However, Ms Gerhard identified “spines” among the hair transfer pattern at the left of facet E which could have been created by forceful contact. She said there was no way of determining the mechanism of the forceful contact. It could have been caused by Mr Cotter’s head moving to make contact with Exhibit C, rather than by Exhibit C being used to strike him. In her opinion, had the rock been used as a weapon the pattern of blood stains on the rock would have been very different. For example, she pointed out there were no smears or wipes from the bloodied hand of an assailant, which she would have expected had it been used as a weapon.

15. In evaluating this evidence it needs to borne in mind that blood stain pattern analysis does not involve hard and fast clearly established scientific rules. While I accept that it is undoubtedly a branch of specialised knowledge for the purpose of s 79 Evidence Act 1995 (NSW), its principles are derived from the accumulated experience of forensic investigators rather than detailed evidence-based scientific research. Naturally the laws of physics have some part to play. I make these observations not to denigrate the science but to bring to mind its necessary limitations.

16. Unlike the underside of the Mitsubishi Magna, there was no skin or other human tissue embedded in the rough protrusions of the rock when it was carefully examined by forensic officers. This is of some significance. The uncontested evidence of the forensic pathologists, Professor Lyons and Professor Duflou, was that the cause of death was the infliction of traumatic brain injury in association with a transverse, or hinge-like, fracture of the base of Mr Cotter’s skull. The fracture was inflicted by the application of blunt force trauma, probably simultaneously with a degree of rotation of the head. The trauma causing the fracture was likely to have been inflicted in the region of the temporalis muscle which is above the right ear, while the left side of the head was fixed against the ground. Significantly the area above the ear was much bloodied, and the ear itself was found to have multiple lacerations and macerated tissue. Had the rock been used to inflict these injuries, one would have expected to find corresponding tissue on the rock. There was none. On the other hand, Mr Cotter’s human tissue was deposited on aspects of the underside of the Mitsubishi Magna.

17. There was blood staining on the offender’s clothing and on the interior of the Mitsubishi Magna which he drove home after Mr Cotter was fatally injured. The stains were of Mr Cotter’s blood. However, had the offender used Exhibit C as a weapon by standing over Mr Cotter as he lay injured on the ground, one would have expected more extensive blood staining on the clothing, and perhaps larger deposits in the car.

18. Fifteen swabs were taken from the unstained areas of the rock by crime scene officers at Coffs Harbour police station. DNA that matched the offender’s was found in mixed profiles obtained from five of those swabs. Four of the same swabs matched the DNA of the deceased and at least two of them contained the DNA of a third unidentified person. Indeed those swabs may have contained the DNA of more than one unidentified person. However, there was much evidence about the phenomenon of secondary transfer of DNA introduced through the cross-examination of the expert, Mr Jeremy Watherston, who impressed me as a very earnest and capable young scientist. There was lay evidence that the offender and Mr Cotter, who were previously known to be good friends, had been drinking together with others at Collum Collum Station sharing the same bottle and passing it to one another. These facts are sufficient to account for the secondary transfer of the offender’s DNA onto the rock by Mr Cotter touching it or coming into contact with it after the infliction of his injuries. I interpolate that the evidence was that death may have taken some hours to occur. Mr Watherston accepted that the process of secondary transfer could account for the whole of the DNA attributed to Mr Gordon on the rock.

19. It should also be pointed out that the handling of Exhibit C at the crime scene during the investigation was perhaps not as meticulous as it could have been. I am satisfied that insufficient care was taken to protect Exhibit C from contamination during the investigation. The evidence established that it was rolled over on a number of occasions so that photographs could be taken of each of the facets in situ. No protective measures were adopted to protect its surface from contamination while this occurred. The officers gave evidence that they observed the protocol of working “double-gloved” and changing their gloves prior to examining each point of interest at the crime scene. The gloves were not changed more frequently. It does seem likely that the DNA profiles of the unidentified persons I have referred to were deposited on Exhibit C during the process of investigation.

20. I also think that the evidence demonstrating that Mr Cotter suffered widespread soft tissue injuries and facial fractures is important in this regard. Not all of these injuries could be explained by the hypothesis that Exhibit C was used as a weapon. There were nasal, maxillary and palatal fractures together with widespread significant abrasions and lacerations over his torso, back, hip, both arms and legs. The evidence of the forensic pathologists was that all of these injuries including the hinge fracture of the skull could have been inflicted by Mr Cotter being dragged under the car as it reversed over him. Although Professor Lyons preferred the hypothesis that Exhibit C was the cause of the skull fracture, he accepted that forceful contact between the underside of the car and Mr Cotter’s head could account for it. The reason for his preference was that he was of the view that a degree of head rotation was a necessary part of the mechanism of infliction of the skull fracture. In the absence of tyre marks or long bone fractures indicating Mr Cotter had been run over by the car, he felt it unlikely that a sufficient degree of rotational force would have been inflicted by the moving car.

21. Given the widespread nature of the soft tissue injuries, and as there were facial fractures as well as injuries to the side and base of the skull, I am satisfied that Mr Cotter’s body would have been moving as the car reversed over him. This movement could well have involved a degree of head rotation sufficient to cause the hinge fracture of the base of his skull, effectively crushing his skull between the metal componentry of the underside of the car and the hard dirt surface of the roadway. I am satisfied beyond reasonable doubt that that was what occurred and that all of Mr Cotter’s injuries were suffered by him being run over by the Mitsubishi Magna.

22. In reaching this conclusion I have not overlooked that Mr Cotter did not suffer the long-bone injuries often associated with running-down accidents. Nor was there evidence of damage to the front of the car often associated with pedestrian collisions. I explain below (at [41]) why these matters are not decisive in the circumstances of this case.

23. Moreover in my view it is not irrelevant to this conclusion that the hypothesis that Mr Cotter was run over by the car was promptly and erroneously dismissed at an early stage of the investigation. It was only after a further careful examination of her photographs that Senior Constable Vercoe detected significant signs consistent with contact between the underside of the Magna and a person. This led to a further physical inspection of the car which uncovered what is really conclusive evidence that Mr Cotter had been run over in the form of small deposits of his bodily tissue adhering to the underside of the vehicle. By then the use of Exhibit C as a murder weapon had become the investigators’ working case-theory.

Intentional Act

24. The Crown argued that I should find that this offence falls into the category of manslaughter by unlawful and dangerous act. Mr Watts argues on the contrary that I should categorise the offending as manslaughter by criminal negligence. Both counsel argue that categorisation is relevant to the finding I am required to make about the objective seriousness of the offending. With respect I am not so sure that is correct.

25. It is commonly pointed out that manslaughter is a protean offence covering offending in the range of something somewhat more than an accident to something just short of murder. Given the wide range of circumstances that will support offending of this nature, it seems to me that the assessment of the objective seriousness of the offending at hand will depend upon an assessment of all of the circumstances of the case regardless of the legal characterisation of the offending, whether the legal category is a form of voluntary or involuntary manslaughter. In R v Bouggas [2015] NSWSC 914 McCallum J said (at [13]):

“…the characterisation of the seriousness of the offence turns not so much on the category of manslaughter identified by the Crown (here, a dangerous and unlawful act) but on an assessment of the facts”.

Nonetheless a determination of all of the circumstances may involve a categorisation of the offending and I turn to that question now.

26. The offender and Mr Cotter had been drinking, initially separately, then later together since the early afternoon of the 6th of November 2013. The offender commenced drinking with his biological uncle, Anthony Gordon, at about 2:30pm. They were later joined by Andrew Donnelly, the caretaker of Collum Collum Station and it was agreed that they would go out to Collum Collum Station and continue their socialising there. The offender told his uncle he wanted to drop his car off at his home at Malabugilmah and the two travelled in separate vehicles from Anthony’s house at Baryugil to the offender’s home.

27. When he arrived there, the offender apparently changed his mind, deciding to drive to Collum Collum himself, picking up Mr Cotter on the way.

26. Mr Cotter himself had been drinking during the afternoon. He had also smoked some marijuana. After the offender picked him up they drove in the direction of Collum Collum stopping at the long single lane bridge over the Clarence River, a few kilometres from the property. Mr Donnelly and Mr Anthony Gordon were at the river. Mr Donnelly continued on to his home while the other men had a drink and possibly some cannabis at the river. They arrived at Collum Collum at about 8:30 pm.

27. All four men sat around the kitchen table drinking, playing guitar and singing. The offender and Mr Cotter were drinking beer and red wine out of 750 ml bottles. They were passing the wine to each other. They also drank some bourbon, apparently in premixed cans. As the offender and Mr Cotter became more intoxicated they began arguing with each other, possibly about their fair share of the alcohol. On one or two occasions, according to Mr Donnelly, whose evidence about this I accept, they shouted derogatory remarks to one another and shaped up as if to fight. Mr Donnelly had to separate them. I felt Mr Anthony Gordon somewhat down-played these events.

28. It had been Mr Donnelly’s expectation that all the men would stay the night at his place rather than drive home drunk. However, both the offender and Mr Cotter were determined to go home. The offender had work the following morning. It was the observation of Mr Donnelly and Mr Anthony Gordon that the animosity between the offender and Mr Cotter had died down before they left.

29. However that might be, I infer their animosity must have reignited in the car. The homestead yard at Collum Collum is fenced, with a gate onto a driveway. The property gate is something in the order of 300 metres further along the driveway and along what is a gazetted, dirt road leading ultimately to a national park in one direction and Baryugil in the other.

30. The offender gave an account of what happened when interviewed by police at Collum Collum Station on 7 November. He admitted arguing with Mr Cotter during the evening, but said they “shook it off”. After leaving the homestead they drove to the property gate with Mr Cotter in the passenger seat. The offender said, “that’s when all the shit happened”. While indicating to the police that his recollection was affected by the amount of alcohol he had drunk, he said the following:

“I think he … tried to get out of the car and I reversed back and … that is really the last thing I remember. I don’t remember getting home or not, so when I run over him I just left him.”

After further questioning he said:

“He must have said something to piss me off and then that was it … I pulled the car up and he tried to get out of the car and that’s when I said “no stay in the car” and I just reversed back just a little bit and then, yeah, he was out of the car and under the bloody wheel.”

Later he indicated the front near-side wheel and said:

“Not under it but, yeah, that’s where I must have run over him on the left hand side”.

He admitted to being highly intoxicated and in answer to further questions indicated he was “falling down drunk”.

33. Although the offender did not remember this when speaking to the police, in fact he returned to the homestead in something of a panic saying to Mr Donnelly and Mr Gordon “I have hurt Danial”. He had apparently returned to the homestead on foot for when he and Mr Anthony Gordon returned to the crime scene, Mr Anthony Gordon could see Mr Cotter lying in a severely injured state on the roadway about 50 metres back up the road from the front gate. He was lying in the beam of the headlights of the Mitsubishi Magna. The car was pointing in the direction of the national park, not Baryugil. Mr Anthony Gordon did not get too close to Mr Cotter, but he saw that he was breathing, his face was covered in blood and he was not moving. Mr Anthony Gordon ran back to the homestead and told Mr Donnelly to ring an ambulance. He then left the property in his utility with the stated intention of meeting the ambulance on the road to show it the way into the Station. I interpolate that after Baryugil there was only one road and it leads directly to Collum Collum Station. Mr Anthony Gordon did not intercept the ambulance because he rolled his utility on the gravel road a short distance from Collum Collum Station. He was subsequently picked up by the offender and driven home in the offender’s car.

34. As events transpired the ambulance did attend Collum Collum Station later that night but the officers were unable to locate Mr Cotter. I infer this was because by the time they arrived at about 3:00am Mr Cotter was in the drainage ditch beside the road. The paramedics drove along the road in the direction of the National Park until they could go no further. They eventually called in at the homestead to inquire about Mr Cotter’s whereabouts, but Mr Donnelly was unable to assist them. The ambulance officers told him that they had not seen anyone on the roadway.

35. Mr Anthony Gordon and Mr Donnelly were to attend a meeting together during the morning of 7 November. When Mr Anthony Gordon attended the homestead to pick Mr Donnelly up, he inquired about Mr Cotter’s welfare and whether the ambulance had arrived. Mr Donnelly told him the ambulance had attended, but the officers could not locate either Mr Cotter or the offender. Mr Anthony Gordon went up to where he had last seen Mr Cotter during the night. He found his body lying in the drainage ditch running alongside the road. Mr Cotter was lying against Exhibit C. Mr Anthony Gordon immediately raised the alarm and police and ambulance were called.

36. When interviewed by the police at Collum Collum the offender was shown where Mr Cotter lay but he was unable to explain how he came to be there. He said he thought he had run him over near the gate: “That’s why I’m looking at it I can’t believe he is down there”. Given all of the circumstances, it seems to be accepted by counsel that the offender had something to do with Mr Cotter ending up in the ditch. The offender certainly seems to have abandoned him at the crime scene. I suppose it is at least possible, given that he did not die immediately, that Mr Cotter crawled or rolled into the ditch in his state of altered consciousness following the infliction of the fatal injuries, but before death.

37. Professor Duflou stated in his evidence that he “certainly [did] not exclude the possibility that [sic] of the deceased moving, potentially crawling”. He went on to say, “I don’t think he would have been able to walk on his own. But certainly there may have been movement”. Mr Watts submitted on behalf of the offender that “it is reasonably open and rational to infer that the offender attempted to assist the deceased before seeking [other] assistance … [and that] it is reasonably open and rational to infer that the deceased ended up in the ditch as a result of that attempted assistance from the offender”: p 8, (l) submissions on sentence. To the contrary, the Crown Prosecutor submitted that “the Court would conclude that the offender moved the body and the rock into the ditch prior to driving away from Collum Collum”: p 3, [14] submissions on sentence. With the evidence as it is, I am unable to make a finding about this one way or the other. However as Mr Anthony Gordon saw Mr Cotter lying on the roadway, the further “assistance” suggested by Mr Watts must have been after the offender sought help at the homestead.

38. The offender attended Collum Collum Station to speak to police of his own free will. He was contacted by a friend by telephone and despite initially saying he could not remember what had happened he added:

“I think I may have had an argument with Danial, I think I might have hurt Danial”.

39. He told his mother before leaving home to see the police:

“Me and Danial had a fight and then he jumped out of the car and I ran over him”.

Finding about intentional act

40. I am satisfied beyond reasonable doubt that almost immediately after leaving the homestead the acrimony between the offender and Mr Cotter reignited in the car. In my opinion it is very unlikely, given that Mr Cotter’s body was found 50 metres from the front gate, that they got as far as the gate before the argument re-erupted. I think it possible, although I am far from sure, that in his drunken state the offender turned towards the national park rather than continuing towards Baryugil at the junction of the Collum Collum driveway and the gazetted road. From my observations made on the view of Collum Collum Station that took place during the trial, this would have been the equivalent of negotiating a hairpin bend. The offender must have slowed the vehicle considerably to negotiate this in the dark at which time I infer Mr Cotter attempted to alight while the car was moving at that slow speed, saying something to “piss off” the offender. I am satisfied beyond reasonable doubt that the offender then intentionally put the car into reverse accelerating as he did so. This latter movement is consistent with the deep tyre marks on the dirt surface of the road identified by the crash investigation unit officers who formed part of the crime scene investigation. I find that this was done intentionally to collide with Mr Cotter because the offender was angry with him. I am constrained by the jury’s verdict from finding that the offender intended to cause really serious injury. My finding should not be understood as a finding that the offender intended any particular consequence at all. As a result of the manoeuvre, Mr Cotter was knocked off his feet and as the vehicle reversed he was drawn under it. The force of the accelerating vehicle brought Mr Cotter into collision with the components of its underside inflicting all of the injuries suffered by Mr Cotter including the fatal skull fracture.

41. It is true that Mr Cotter did not suffer any fracture of the long bones of his limbs of the type often associated with collisions between pedestrians and motor vehicles. Nor were there any tyre marks on his body. However, at the time he was drawn under the vehicle he was attempting to alight through the front passenger door. He must have been dragged along by the undercarriage of the vehicle without any of the wheels passing over him. For what it’s worth, that was the offender’s impression when he corrected himself telling police, “[n]ot under [the wheel]”.

42. I find that the act of suddenly reversing and accelerating involved the intentional application of force to Mr Cotter without his consent. A reasonable person in the position of the offender would have realised that by those actions he was exposing Mr Cotter to an appreciable risk of serious injury. To the extent to which it is necessary to make a decision, the category of manslaughter involved in this offending is manslaughter by unlawful and dangerous act.

Objective seriousness of the offending

43. The task of passing sentence requires fixing a single sentence appropriate to the offence and the offender. However, sentencing is not a process capable of producing a single correct answer. Mathematical precision is not possible. The sentence arrived at in a given case requires the court to strike a balance in which many different and conflicting features are weighed and assessed: see Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120. It is important, however, to make an assessment of the objective seriousness of the particular offending lest mitigating considerations personal to the offender be permitted to swamp the requirement that the punishment be proportionate to the crime.

44. In all cases of manslaughter, a key consideration is that the offence involves the unlawful taking of the life of another. This engages what has been referred to as “the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence”: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54].

45. It needs to be recognised that by his drunken and violent conduct, the offender took a human life; the life of his friend, Mr Cotter. I interpolate now that I have had the advantage of receiving victim impact statements read by Mr Cotter’s mother, Ms Shannon, and his sister, Ms Small. These were balanced and reflective expressions of the family’s sense of loss, which I accept will be with them permanently but I hope will gradually diminish over time. I offer the Court’s condolences to the family. I will take the statements into account in the determination of the sentence on the basis that the harmful impact of Mr Cotter’s death on his family is an aspect of harm done to the community by the offender’s offending: s 28(4) Crimes (Sentencing Procedure) Act 1999 (NSW).

46. I find that this offending is a somewhat serious example of manslaughter. It involved the actual and deliberate use of violence through the agency of the Mitsubishi Magna. The offending occurred at a point in time when Mr Cotter was vulnerable because of his own level of intoxication. Whilst he was attempting to alight from the car he could be easily knocked off balance.

47. The offending was not premeditated, but was an impulsive act, the impulse coming from the disinhibition always associated with intoxication, which in this case was gross. It must be pointed out that intoxication does not in any way mitigate the seriousness of the offending. It may, however, explain why it occurred. I accept that the offender almost immediately regretted his angry action and did take some steps to attempt to obtain assistance. On the evidence of the forensic pathologists, I accept Mr Cotter’s death from his serious head injury was inevitable.

48. I think it relevant to my assessment of objective seriousness that the offender has a record of violent impulse when intoxicated. The offender has a history of convictions for assault in 1989, 1994 and 1998. He also has convictions for assaulting police in 1992 and 1997. None of these offences were serious enough to justify a custodial sentence, however each of them seems to have occurred when the offender was intoxicated, strongly suggesting that he is susceptible to aggression when drunk. These considerations suggest a need to give effect to the requirement of specific deterrence in sentencing.

49. Despite his initial concern for Mr Cotter’s welfare he did abandon him shortly after Mr Anthony Gordon left Collum Collum. There is no suggestion that the offender was then seeking assistance.

Subjective circumstances

50. The offender was born on 5 September 1971, was 42 years of age at the time of the offence, and is now 45. He has been in custody since his arrest on 7 November 2013.

51. The trial in February 2017 was the third time a jury had been empanelled to try the offender. The first jury was discharged after two days on 3 March 2016 because it emerged that a juror had a conflict of interest. A further jury was empanelled on 7 March 2016 but it was necessary for them to be discharged without verdict on 11 March 2016 because of my illness. At that second trial the offender pleaded not guilty to murder, but guilty to manslaughter. He maintained that plea when arraigned on 9 February 2017. Given that plea had been maintained for 12 months before verdict, I regard its utilitarian value as greater than a late plea only proffered at trial. I will allow a discount of 15 per cent on the sentence I would otherwise have imposed for the utilitarian value of the plea.

52. The offender did not give evidence in the proceedings on sentence. His circumstances of life are recorded in a report of Patrick Sheehan, forensic psychologist, dated 19 April 2017 and tendered without objection. He was given up by his biological parents at about the age of two weeks and adopted by his mother’s first cousin and her husband. His adoptive mother, Mrs Wilson, has been present in Court throughout. His adoptive parents permitted him to have a relationship with his biological parents. He was well cared for in his adoptive home by loving parents. He was their only child and both his adoptive parents had a strong work ethic they seem to have imparted on their son. His adoptive father died in 2010 from an asbestos-related disease contracted in the course of his employment.

53. He received schooling to the HSC, but his academic performance was poor due to his distraction by sport and drinking with friends.

54. The offender first left home at about the age 20 and has mostly lived independently since then, but at the time of this offending he had returned to live with his mother.

55. He appears to have had a reasonable employment history punctuated by some periods of unemployment. He worked in various roles and at the time of the offending he was working for a sewerage and waste water management company. From the reference tendered I infer he was well thought of at work.

56. He seems to have had two significant relationships from which he has six children including an adopted son. However, during times of crisis he would turn to alcohol consumption. He has been a heavy drinker and cannabis user since his late teens or early twenties. His substance abuse was less during times when he was in a stable intimate relationship. He was not in such a relationship at the time of the offending.

57. There is no history of mental illness other than his poly-substance abuse of alcohol and cannabis, and depressive symptoms due to his incarceration.

58. It is important to take account of the fact that soon after being taken into custody he suffered a heart-attack. He was diagnosed with cardiovascular disease, requiring triple by-pass surgery. That surgery has not been entirely curative as he has had flare-ups of symptomatic chest pain requiring treatment in hospital from time to time since. I should observe, however, that his heart disease seems to have been adequately treated in custody.

59. He does require, in my view, the benefit of drug and alcohol rehabilitation. From his prior record, it is apparent that the risk of further offending is related to his substance abuse. Having said that, his record should not be given undue weight, other than to the extent to which it does suggest a need for specific deterrence in fixing the sentence. It is not long and not serious enough to have required fulltime imprisonment previously.

60. I have the benefit of a pre-sentence report dated 20 April 2017. The author indicates that the offender has limited insight into the circumstances giving rise to the offence and his previous offending, again indicating the need for him to engage in rehabilitation whilst in custody and after his release. I acknowledge that the author of the report assessed him as presenting a medium-low risk of re-offending.

61. I bear in mind that because of his health problems, he will probably need to remain in custody in the Sydney region for access to specialist medical facilities when necessary and that this separation from his family and other community supports will increase the burden of incarceration. Because of his relatively long period on remand he has been kept in more difficult circumstances than some other prisoners. Notwithstanding this, he has a very good record of compliance with the requirements of prison discipline.

62. Overall, with appropriate assistance, I think his risk of re-offending is relatively low. His prospects, however, will in part depend upon him gaining greater insight into the causes of his offending in the past, and of the current offence. His lack of insight makes it impossible to make a finding of remorse now. I do not exclude the probability that he will achieve that state in the future through active engagement in the courses that will be offered to him in custody.

63. I have taken into account the reference provided by his mother, Mrs Wilson, who is a respected and contributing member of the Aboriginal community in the Grafton region. That reference and the reference of Dr Keith Boulton, his employer, lead me to believe that upon release the offender will have strong community support which will greatly advance the cause of his rehabilitation.

Sentence

64. The maximum penalty for manslaughter is imprisonment for 25 years. There is no question that this offending requires a sentence of full time imprisonment.

65. Mr Watts provided me with a number of comparable cases of manslaughter which I have read and had regard to. I will bear them in mind as a yardstick. However, given the great variety of offending encompassed by the crime of manslaughter it is difficult to derive any direct assistance from them. I find it unnecessary to detail my conclusions drawn from them in these reasons.

66. Given the offender’s need for continuing rehabilitation, his general medical health, and the consideration that this is his first time in custody, I make a finding of special circumstances permitting me to vary the statutory ratio between the non-parole period and the additional term.

67. Bearing in mind the relevant considerations of punishment, denunciation, vindication of Mr Cotter’s life, proportionality, general deterrence, personal deterrence and rehabilitation, but for the plea of guilty to manslaughter I would have fixed a term of imprisonment of about 12 years. In view of the plea, the total term of imprisonment will be one of 10 years.

68. Taking my finding of special circumstances into account, I fix a non-parole period of 6 years and 6 months. The non-parole period of a sentence is the minimum time which justice requires the offender to remain in fulltime custody. However, it should not be assumed by anyone, least of all the offender, that release at the expiration of the non-parole period is automatic or a foregone conclusion. Release when first eligible for parole depends on the independent decision of the State Parole Authority. Its decision will no doubt depend in some measure upon the offender’s continued good behaviour in custody and his participation in such appropriate courses of rehabilitation as are made available to him.

69. I am required by law to advise the offender that this offence may be a serious violence offence for the purpose of the Crimes (High Risk Offenders) Act 2006 (NSW), which may make him liable to extended detention or supervision after the expiration of the sentence I impose.

70. Mr Gordon, by its verdict the jury convicted you of the manslaughter of Danial Cotter. For that offence I sentence you to a term of imprisonment of 10 years, having a non-parole period of 6 years and 6 months commencing on 7 November 2013 and expiring on 6 May 2020 with an additional term of 3 years and 6 months commencing on 7 May 2020 and expiring on 6 November 2023. You will first be eligible for release on parole at the expiration of the non-parole period on 6 May 2020.

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Decision last updated: 17 April 2018