R v Madden, Neil

[2013] NSWSC 710

Supreme Court

New South Wales

Medium Neutral Citation:	R v MADDEN, Neil [2013] NSWSC 710
Hearing dates:	17 August 2012 & 26 October 2012
Decision date:	04 June 2013
Jurisdiction:	Common Law - Criminal
Before:	Hidden J
Decision:	Offender sentenced to imprisonment for 7 years, NPP 4 years, from 28.3.11.
Catchwords:	CRIMINAL LAW - sentence - manslaughter - plea of guilty accepted in satisfaction of indictment for murder - impulsive act - intoxication
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v PERRY, Steven William (a/k/a BABBAGE, Steven William) [2012] NSWSC 1645
Category:	Sentence
Parties:	Regina (Crown) Neil Francis Madden (offender)
Representation:	Counsel: P Barrett (Crown) D Dalton SC (offender) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) L Premutico - Benjamin & Leonardo Criminal Defence Lawyers (offender)
File Number(s):	2011/100003

REMARKS ON SENTENCE

1. The offender, Neil Madden and another man, Stephen Perry, were charged with the murder of Daniel Sullivan at Lalor Park on 8 January 2011. The offender's plea of guilty to manslaughter was accepted by the Crown in discharge of that indictment. He is guilty of manslaughter on the basis of an unlawful and dangerous act, that act being his throwing a quantity of methylated spirits onto the coat of the deceased and igniting it with a cigarette lighter.

1. For his part in the incident, Stephen Perry pleaded guilty to concealing a serious offence and has been sentenced: R v PERRY, Steven William (a/k/a BABBAGE, Steven William) [2012] NSWSC 1645.

Facts

1. I have an agreed set of facts. The offender had been living with a woman at Parramatta until 31 December 2010. He was a chronic alcoholic, who had for many years been homeless. His relationship with the woman ended on New Year's Eve, when she told him to leave her home.

1. He and his close friend, Stephen Perry, who was also a homeless alcoholic, then went to the home unit of the deceased at Lalor Park, where they stayed until the night of the offence. The deceased lived alone in what was a Housing Commission unit. He suffered serious ill health, malnutrition and alcoholism, and was reputed to have weighed about 35 kilograms at the time of his death.

1. While the offender and Perry were staying at the unit, they consumed large quantities of alcohol and reportedly some illicit drugs, mainly cannabis. The deceased, like the offender, was known to become aggressive or at least argumentative when intoxicated, and in the days before his death he told neighbours that he wanted the offender to leave. Arguments between the deceased, the offender and sometimes Perry were overheard by neighbours during that time.

1. At about 10pm on 8 January 2011, neighbours heard arguing and loud voices coming from the deceased's unit. A neighbour below the unit heard loud voices from an argument shortly before hearing a thud on the floor, which she believed was not furniture falling, which she had earlier heard, but a person falling to the floor. A few moments later other neighbours observed that the unit was on fire and that the front door was closed. One of the neighbours tried unsuccessfully to open the door, believed it was locked, and kicked it in. He was unable to enter the unit because of the heat and flames that had engulfed the interior.

1. The body of the deceased was found, severely burned, on the floor of the living room adjacent to the lounge. The fire had indeed engulfed the unit, and the complex was severely damaged. Post-mortem examination was unable to establish a cause of death. However, the absence of inhaled soot, fire or heat injury to the trachea or lungs, and a normal carbon dioxide limit in the blood conveyed that the deceased had died before the fire took hold. The most likely mechanism of death is that he suffered some form of cardiac arrest upon, or immediately following, having been set on fire.

1. The offender's case was that he was woken by an argument between the deceased and Perry, which continued while he went to the toilet. Having left the toilet, he told the deceased to calm down. He then threw methylated spirits upon the deceased's coat and ignited it with a cigarette lighter. The deceased collapsed almost immediately after he had done so. The offender then left the apartment. At the time of the incident all three men were intoxicated, having been drinking almost continuously over the preceding days.

1. Within minutes of the fire starting, a passer by saw and spoke briefly to a man who was standing near the letterboxes outside the unit complex. That man was Perry. He was joined a few moments later by another man, wearing only shorts and carrying some cloth, who said to him, "Let's go." That man was the offender.

1. A little later, the offender was seen hiding in the garden of a house in a nearby street, and later still he flagged down and spoke to fire rescue officers in that street. At the time they were driving away from the scene of the fire, it having been brought under control. The offender returned to the vicinity of the units at about 12.20am, where he was spoken to by police before being treated by ambulance officers and conveyed to Westmead Hospital. He was in a distressed condition, having suffered full thickness burns to the right side of his body from his neck down to about his waist, and to his right arm. He had a minor burn on his left arm.

1. He was subsequently taken to Concord Hospital Burns Unit, where he remained undergoing treatment until April 2011. The duration of his hospitalisation and treatment was extended by his non-compliance and his poor state of general health, resulting in skin grafts failing and requiring further grafts.

1. The offender gave various different accounts of the events of that night to hospital staff, police, friends and acquaintances over the months following the incident. Some of those accounts were captured on telephone intercepts or by a listening device. A common theme of his accounts was that when he returned from going to the toilet he saw that the deceased had set himself alight and that he, the offender, tried to extinguish the flames unsuccessfully. He himself was burned and then left the unit.

1. There was a disputed issue whether the offender suffered his burns in the course of an attempt to rescue Mr Sullivan from the conflagration. That was to be the subject of evidence, particularly expert evidence from a plastic surgeon who examined the offender at Concord Hospital. He claimed that he had returned to the unit when it was on fire and attempted to move the deceased out of it. However, he was unable to do so because of the intensity of the heat. The Crown prosecutor did not accept that he had suffered his burns in this way.

1. In the event, the dispute did not need to be resolved. At the sentence proceedings the offender's counsel, Mr Dalton SC, said that his client did not recall at what stage of the events he had sustained his burns, and the proposition that he had suffered them in the course of a rescue attempt was not pressed. Nevertheless, he maintained that he had attempted to rescue the deceased at one point, and the Crown prosecutor acknowledged that he was unable to deny that. That is the basis upon which I approach the matter.

1. It was common ground that the offence was attended by several aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, in that the offence involved the use of a chemical agent: par (ca), was committed in the home of the victim: par (eb), and, given that the fire in the unit threatened the whole building, was committed without regard for public safety: par (i). That said, the offence was plainly the result of the offender's level of intoxication which, without excusing his conduct, affords some explanation of it. Plainly enough, he did not intend to cause serious harm to the deceased, let alone kill him.

1. This tragic death was the result of the impulsive, foolish act of a drunken man. As I have said, I accept that he made some attempt to rescue the deceased, and it is appropriate to take into account in mitigation the fact that he himself suffered serious burns. The facts which I have recited record that he spent some months at Concord Hospital. However, he spent a further lengthy period at Long Bay Hospital, and the whole of his treatment for his burns extended over a period of some ten months. He is left with permanent scarring.

1. The offender was 50 years old at the time of the crime, and is now 52. He has a sporadic criminal history, comprising a variety of offences dealt with summarily, which is of little or no significance for present purposes. His background is sketched in a helpful report of Mr Sam Borenstein, psychologist. There is no need to recount it in any detail. Mr Borenstein fairly described his life as "tragic." He is the only surviving member of his family. His parents died some years ago. He had five siblings. Of his three brothers, one died in a motor car accident, another of cirrhosis of the liver and another of acute methadone poisoning. His two sisters suicided.

1. He was educated to year 10 standard, and was employed for some years in the magazine publishing industry. He was married for 12 years, and the union produced two adult children. The marriage failed as a result of his excessive alcohol consumption, as did a number of short-lived relationships thereafter.

1. To Mr Borenstein he frankly acknowledged that he is a chronic alcoholic. Attempts at abstinence had consistently failed, although he found that treatment by the drug Campral helped to control his tendency to drink to excess. He has a history of depression, and from time to time has been on antidepressant medication. He told Mr Borenstein that he would like to resume Campral treatment, building upon his enforced abstinence during his period in custody.

1. Mr Borenstein described his prognosis as "guarded." He noted his social isolation. Indeed, it seems that the deceased and Mr Perry were counted among his very few friends. Mr Borenstein considered that he should be "party to ongoing therapy, monitoring abstinence from alcohol and relapse prevention, and also instructing [him] in developing strategies to ensure he does not return to depressive episodes, during which he is more inclined to return to chronic alcoholism." Mr Borenstein also wrote that he "has suffered cumulative and significant losses, which contributes to his propensity towards depression which needs to be targeted in the context of counselling, focusing on grief work and resolving past losses."

1. Mr Borenstein reported that he "spoke fondly" of the deceased, and "appeared genuinely grief stricken and remorseful with regards to the circumstances of his friend's death." I do not doubt that that is so, and I am not dissuaded from that view by the fact that in the period after the incident he sought to deflect responsibility for it from himself.

1. None of this is to deny the seriousness of the offender's crime, or the tragic consequences of it. Nevertheless, there are mitigating factors properly to be taken into account in his favour. I think that his prospects of rehabilitation are reasonable, and that it is unlikely that he would re-offend in any serious way. He will need support and supervision upon his release for the reasons identified by Mr Borenstein and, to that end, I find special circumstances justifying a departure from the statutory proportion between sentence and non-parole period.

1. He has been in custody since his arrest on 28 March 2011. I recognise the utilitarian value of his plea of guilty by a reduction of 15% of the sentence I otherwise would have imposed. But for the plea, I consider that a sentence of imprisonment for 8 years would be appropriate. The reduction leads to a sentence, in round figures, of 7 years. Finding special circumstances, but being mindful of the need for a minimum term to reflect his criminality, I shall set a non-parole period of 4 years. Accordingly, he will be eligible for release on parole on 27 March 2015, and the sentence will expire in its entirety on 27 March 2018.

1. Neil Madden, for the manslaughter of Daniel Sullivan you are sentenced to a non-parole period of 4 years, commencing on 28 March 2011 and expiring on 27 March 2015, and a balance of term of 3 years, commencing on 28 March 2015 and expiring on 27 March 2018.

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Decision last updated: 04 June 2013