R v Jason Mark Grogan

[2017] NSWSC 378

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jason Mark Grogan [2017] NSWSC 378
Hearing dates:	31 March 2017
Decision date:	13 April 2017
Before:	Hidden AJ
Decision:	Sentenced to imprisonment for 9 ½ years, non-parole period 6 ½ years, from 17 May 2012.
Catchwords:	CRIMINAL LAW – Sentence – manslaughter by punching – plea of guilty – originally charged with murder – offer to plead guilty to manslaughter rejected – convicted of murder – conviction set aside on appeal and new trial on manslaughter ordered
Cases Cited:	Grogan v R [2016] NSWCCA 168 Lambadadis v R [2016] NSWCCA 117 R v Dyer [2014] NSWSC 1809 R v Grogan [2013] NSWSC 1643 R v Halloun [2014] NSWSC 1705 R v Loveridge [2014] NSWCCA 120, 243 ACrimR 31 R v Matthews [2015] NSWSC 49 R v McNeil (No 4) [2015] NSWSC 198 R v Wood [2014] NSWCCA 184
Category:	Sentence
Parties:	Regina Jason Mark Grogan (Offender)
Representation:	Counsel: Crown – Mr T Thorpe Offender – Mr P McGrath SC   Solicitors: Crown – Director of Public Prosecutions Offender – Legal Aid Commission
File Number(s):	2012/17224

SENTENCE

1. HIDDEN AJ: The offender, Jason Mark Grogan, has pleaded guilty to the manslaughter of Alan Henry at Gloucester on 19 April 2012. I received an agreed statement of facts, which I shall summarise.

Facts

2. The deceased, Mr Henry, was a 72 year old widower who lived alone in a house in Gregson Street, Gloucester. In early 2011 he became acquainted with Ms Natasha Slacke, who became his part time carer. The offender was her boyfriend, and they lived at Port Stephens. Initially the three of them socialised from time to time, but later there was a falling out between Mr Henry and the offender. What caused this is unclear. Ms Slacke continued to visit Mr Henry but the offender was not welcome.

3. On 10 January 2012, the offender and Ms Slacke travelled to Gloucester for her to visit Mr Henry. In the late afternoon they were at a service station close to Mr Henry’s home, and were seen to be engaged in a very heated argument. The offender’s state of mind was one of agitation, anger and aggression. The altercation was such that bystanders were prompted to intervene out of concern that he might harm Ms Slacke. The situation was brought under control and Ms Slacke telephoned Mr Henry. A police officer had been flagged down by a motorist, and Ms Slacke passed the phone to him. He asked Mr Henry whether he had any problem with Ms Slacke coming to his home to stay. Mr Henry said that that was fine, provided that the offender was not with her. He said of the offender that he was “an absolute arsehole and isn’t welcome here.”

4. During this phone conversation the offender left the scene and went to Mr Henry’s home. He climbed over the back fence from a rear lane. He was seen by a neighbour and appeared to be a bit nervous. He entered the home from the rear door. There is no direct evidence of what occurred inside the home. What can be said is that he punched Mr Henry, causing him to fall to the kitchen floor. He then took Mr Henry’s laptop computer and left via the back door. He was seen in the laneway by a police officer patrolling the area in a car. He jumped over the back fence of another property, dropped the laptop, and ran off.

5. Ms Slacke arrived at Mr Henry’s home a short time later. She called 000. A neighbour saw her and the offender on a patio at the rear of the home. The two of them were arguing and Ms Slacke appeared distressed and agitated. The offender was heard to say, “It’s too late now, you can’t just back out now, you know, it’s gone too far.”

6. An ambulance arrived, and paramedics found Mr Henry lying face down on the kitchen floor. He was unconscious and there was a large pool of blood around his head. He was taken to the local hospital, where he was stabilized before being conveyed by air ambulance to Westmead Hospital. There he was admitted to the intensive care unit. Towards the end of March 2012, he was transferred to a nursing home at Erina. He died there on 19 April 2012 from a complication of his incapacitation as a result of the severe brain injury he had sustained.

7. A forensic pathologist who performed an autopsy explained that the most probable mechanism of Mr Henry’s injuries was his having received a punch or blow to the right side of his forehead, causing a contusion. This caused him to fall, and he hit the left side of his head either on some object as he was falling or when he hit the floor. The pathologist acknowledged the possibility that he did not become unconscious until he hit the floor, but thought it more likely that he was rendered unconscious by the initial blow.

8. By his plea the offender acknowledges his unlawful and dangerous act of striking Mr Henry to the right side of the head with his fist, causing him to lose consciousness, fall and hit his head, and ultimately causing his death.

Subjective case

9. The offender was 41 years old at the time of the offence, and is now 46. He has a criminal history in this State, in Queensland and in South Australia. It comprises mainly offences of dishonesty and of violence, together with the use or possession of drugs. The New South Wales record, over a period from 1987 to 2011, begins in the Children’s Court and continues with a number of entries in the Local Court. The entries for violence, mainly assaults, are between 1988 and 1997, all being dealt with by non-custodial orders.

10. Offences for violence in Queensland comprise assaults dealt with 1995 and 1998, but also attempted armed robbery with actual violence, for which he received a significant sentence in the District Court in 2006. In South Australia there were two convictions for violence, both in 1997, of common assault and assault occasioning actual bodily harm, for both of which he received prison terms.

11. In New South Wales and Queensland he also received prison sentences for other offences, most of them short. On a number of occasions he had abused conditional liberty, being in breach of bonds or bail orders. Importantly, at the time of the present offence he was on bonds for several offences which had been dealt with in the Local Court in 2010.

12. The offender is the youngest of four children. He was brought up in the Coffs Harbour region and was educated to year 10 standard. He has had employment in the building and fishing industries. He has three teenage children from relationships prior to his relationship with Ms Slacke.

13. His criminal history should be understood in the light of his long standing pattern of drug abuse. A psychiatric report of Dr Olav Nielssen records that he began using cannabis at the age of 15 and amphetamine from the age of 24. Soon after he was introduced to heroin, which he continued to use over the years and which he described to Dr Nielssen as his drug of choice. He attempted drug rehabilitation programs on two occasions and underwent drug courses and counselling frequently while serving prison terms, but these did not resolve his abuse. There had been a two year period of abstinence from drugs and alcohol until the year prior to the offence, when he had resumed using cannabis and amphetamine.

14. To Dr Nielssen he described some psychotic episodes of an hallucinatory nature, which he attributed to his drug abuse and which led to a number of admissions to psychiatric hospitals in Adelaide, Brisbane and Coffs Harbour. Dr Nielssen diagnosed substance dependence and abuse disorder and a recurrent drug induced psychosis, currently in remission. He also considered the possibility of an underlying schizophrenic illness. However, the offender told him that he had not taken any illegal drug or alcohol on the day of the offence and that, as far as he was aware, his mental state was normal at that time.

15. His parents were present at the sentence proceedings and remain supportive of him. In a brief letter from them which I received in evidence, they noted his use of drugs and association with the “wrong company” since his teenage years, saying that they had supported him since that time and would continue to do so. They added that he was an honest and hard worker. They expressed the view that since being taken into custody for the current offence he had changed his attitude to life, appeared more settled than ever before, and gave the impression that he is “ready to settle and lead a trouble free life.”

16. I shall refer shortly to the history of these proceedings. The offender has been in continuous custody for almost 5 years, during which time he has been dealt with for only one breach of prison discipline. On 20 May 2016, a urine test detected his ingestion of the drug buprenorphine, which I understand to be similar to methadone. He admitted the breach, explaining that he had just been transferred to a unit at Goulburn where he was not coping. He asserted that he had not used any illicit drug for the previous four and a half years, embracing the period he had then been in custody.

17. Otherwise his period in custody appears to have been without incident. Moreover, I received in evidence a number of certificates attesting to his having undertaken religious instruction and having attended Smart Recovery Meetings, together with his participation in a TAFE course in Access to Work and Training. I also received an extract from Justice Health records disclosing that at an early stage of his period in custody he had experienced symptoms of post-traumatic stress disorder, seeing the victim of his offence in the faces of other inmates and finding their voices to resemble that of the victim. To this matter I shall return.

Plea of guilty

18. The offender was arrested on 17 January 2012 and has been in custody since. At that stage he was charged with assault occasioning actual bodily harm but on 4 May 2012, following the death of Mr Henry, he was charged with his murder. In interviews with the police he admitted having taken Mr Henry’s laptop but denied having assaulted him.

19. In 2013 he was tried for murder before RA Hulme J and convicted. His Honour sentenced him for that offence in November of that year: R v Grogan [2013] NSWSC 1643. He appealed against that conviction and, on 19 August 2016, the Court of Criminal Appeal quashed that conviction and ordered his retrial for manslaughter: Grogan v R [2016] NSWCCA 168. It is unnecessary for present purposes to examine the Court’s reasons. It is sufficient to say that a ground that the verdict of guilty of murder was unreasonable was successful. The offender had offered a plea of guilty to manslaughter on his arraignment for murder but the Crown had rejected that offer. As noted, he maintained that plea after the disposition of the matter by the Court of Criminal Appeal.

Victim impact statement

20. I received a victim impact statement by Mr Henry’s daughter, Susan Henry, which had also been before RA Hulme J when he sentenced the offender. Ms Henry read the statement to the Court. It was no easy task for her. She was visibly distressed, but completed the reading with courage and dignity.

21. The statement is an eloquent expression of the impact upon her of her father’s death, including the significant period through which he had survived before he passed away. It expresses not only her grief but also her outrage at the senseless violence which led to his death, and the serious and enduring effects this crime has had upon her life. At the sentence proceedings I expressed my deepest sympathy to her and to all those affected by this tragedy, and I do so again now.

22. In the light of the current legislation, I have regard to that statement in the manner articulated by McCallum J in R v Halloun [2014] NSWSC 1705 at [46], that is, as giving “texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way.”

Sentencing issues

23. Assessment of the objective gravity of this offence is not an easy task. Clearly, there had been animosity between the offender and Mr Henry and it would appear that the offender was in an angry and aggressive mood when he went to Mr Henry’s home. However, I have no evidence of what it was that precipitated the violent incident. All that can be said is that the act causing death was a single punch to Mr Henry’s head. In evidence at the murder trial the pathologist found it difficult to gauge the amount of force required to produce the injury which Mr Henry sustained to his forehead. His age, and the possible influence of medication he might have been taking, meant that less force than might be expected would have been required to cause that injury. Nevertheless, the pathologist’s opinion was that the injury involved “moderate force” or “a decent sort of punch.”

24. Of course, the offender is to be sentenced on the basis that he did not intend to kill Mr Henry or to cause him serious injury. Otherwise, however, there is no evidence of any mitigating factors such as often attend killings which amount to manslaughter. Aggravating factors are Mr Henry’s advanced age and the fact that the offence was committed in his home. It is also appropriate to take into account the offender’s theft of his laptop, although the Crown accepts this to have been opportunistic. I accept the assessment of counsel for the offender, Mr McGrath SC, that the offence falls somewhat below the mid range of gravity of manslaughter in this category.

25. The offender is a mature man with an unfavourable criminal history. As I have noted, it includes convictions for violence and a number of breaches of conditional of liberty. That said, the entries for violence are old and for the most part were dealt with by non-custodial orders or short prison sentences. Generally, as I have also noted, his criminal history falls to be viewed against the background of his drug addiction. Of course, the fact that this offence was committed while he was on bonds for other offences is a significant aggravating factor.

26. The offender is entitled to a reduction of the sentence which would otherwise be appropriate because of his plea of guilty to manslaughter on this occasion and his offer to do so when he was originally arraigned for murder. I shall recognise the utilitarian value of this by a 20% reduction. In addition, I accept that his stance can be seen as some evidence of remorse for his crime and the acceptance of responsibility for it. He has not expressed remorse, but I also accept the submission of Mr McGrath that his post-traumatic stress disorder symptoms point, albeit to a limited extent, to a measure of remorse.

27. The sentence I pass must reflect the need for general deterrence. As matters stand, however, specific deterrence is of less significance. The offender’s criminal history and background of drug abuse are of concern, as is his recent lapse using an illicit substance while in custody. However, I understand that the period he has had in custody is the longest he has ever experienced and, generally, his behaviour has been satisfactory, he has for the most part been drug free and he has taken some positive steps towards his rehabilitation. I also have regard to the letter from his parents and the continuing support they offer him.

28. I think that he has reasonable prospects of rehabilitation and, if those prospects can be fostered during a period of conditional liberty, I have some confidence that he would not reoffend in this way. For this reason I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period. It would be in the community’s interest that his criminal past and drug addiction be properly addressed upon his release, so that an extended period under supervision and the sanction of parole is appropriate.

29. The Crown prosecutor referred me to a number of sentencing decisions by judges of this Court, and decisions of the Court of Criminal Appeal, dealing with manslaughter caused by punching. He acknowledged that each case turned on its own facts and that they could be of limited assistance only. I shall record what they were without analysing them: R v Dyer [2014] NSWSC 1809, R v Matthews [2015] NSWSC 49, R v McNeil (No 4) [2015] NSWSC 198, R v Wood [2014] NSWCCA 184, R v Loveridge [2014] NSWCCA 120, 243 ACrimR 31, and Lambadadis v R [2016] NSWCCA 117. I note that McNeil, Loveridge and Lambadadis involved random violence meted out to strangers by offenders affected by alcohol, cases in which general deterrence loomed particularly large. While the circumstances of the present matter are obscure, it is not a case of that kind.

30. I should record that Ms Slacke pleaded guilty to hindering the investigation into this offence, and was placed on a bond. Of course, no question of parity between her sentence and that to be passed upon the offender arises.

Sentence

31. Taking all these matters into account, I consider that the appropriate starting point of sentence is imprisonment for 12 years. Having regard to the plea of guilty, I would reduce that by 20% which would lead to a term, slightly rounded down, of 9 ½ years. I shall fix a non-parole period of 6 ½ years. While in custody, the offender was sentenced to a short term of imprisonment for an outstanding offence of taking and driving a conveyance without the owner’s consent. When RA Hulme J sentenced him for the murder he directed that the sentence commence on 17 May 2012, mid-way through the non-parole period for that earlier offence. The Crown prosecutor and Mr McGrath agreed that I should take the same course.

32. Jason Mark Grogan, for the manslaughter of Alan Henry you are sentenced to a non-parole period of 6 ½ years, commencing on 17 May 2012 and expiring on 16 November 2018, and a balance of term of 3 years, commencing on 17 November 2018 and expiring on 16 November 2021. You will be eligible for release on parole on 17 November 2018.

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Decision last updated: 13 April 2017