R v Michael Gloginya

[2009] NSWSC 1435

CITATION:	R v Michael GLOGINYA [2009] NSWSC 1435
HEARING DATE(S):	2, 4, 5, 9 & 19 June; 20 November 2009
JUDGMENT DATE :	16 December 2009
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	Michael Gloginya I convict you of the manslaughter of William Bryant and sentence you for that offence to a non-parole period of 4 years and 9 months to date from 2 April 2008. The first date on which you will be eligible for release on parole is 1 January 2013. I specify a balance of term of 2 years and 11 months commencing on 2 January 2013 and expiring on 1 December 2015.
CATCHWORDS:	SENTENCING - Manslaughter - unlawful and dangerous act
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	R v Blacklidge (unreported, 12 December 1995, NSWCCA) R v Harris [2007] NSWSC 1417 R v Hemsley [2004] NSWCCA 228 R v Kennedy [2008] NSWSC 703 R v Mills [2009] NSWSC 521 R v Shankley [2003] NSWCCA 253 R v Stewart [2008] NSWSC 1359 R v Thompson; R v Houlton [2000] NSWCCA 309 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Zammit [2008] NSWSC 317 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Regina (Crown) Michael GLOGINYA (Offender)
FILE NUMBER(S):	SC 20057/08
COUNSEL:	Mr P Barrett (Crown) Ms A Francis (Offender)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Offender)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

THURSDAY 17 DECEMBER 2009

20057/08 R v MICHAEL GLOGINYA

REMARKS ON SENTENCE

1 HER HONOUR: On 5 June 2009 Michael Gloginya was arraigned on an indictment that charged him with the murder of William Bryant on 4 November 2004. He pleaded not guilty to that offence. However, after several days of pre-trial argument and before a jury had been empanelled, the Crown asked that he be arraigned again. At that point he pleaded that he was not guilty of murder but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment. The basis on which the plea was accepted was death by an unlawful and dangerous act.

2 The Crown tendered an agreed statement of facts, together with a collection of witness statements and records of interview that had already been put before me during the pre-trial argument. The agreed statement of facts discloses that the offender had known the deceased for approximately 16 years. In about June 2001, the offender moved into the deceased’s unit in South Coogee and began to act as his carer. The offender was granted a Centrelink Carer Allowance when he took on that role.

3 The deceased was then about 56. He needed a carer because he was a chronic alcoholic and suffered from alcohol related dementia. He received a Disability Support pension for that reason. Apart from being cared for by the offender, the deceased received visits from Home Care Services twice a week to assist with the maintenance of personal hygiene.

4 Witness statements tendered without objection at the sentence hearing establish that the offender was at times violent and verbally aggressive towards the deceased while they were living together. It appears that the offender was himself an alcoholic, although the evidence on that issue was inconsistent. One witness, a neighbour, said that the deceased drank wine “pretty much every day” but that the offender did not drink alcohol and was a big coffee drinker. Another witness, who was also a neighbour and had formed a brief relationship with the offender, said that any time the offender drank, he “became crazy”. A psychologist (whose reports were in evidence) recorded that the offender regards himself as an alcoholic.

5 Several weeks before the commission of the offence, the offender decided that he would no longer be the deceased’s carer. He contacted Centrelink to terminate his Carer Allowance and, from 15 October 2004, received a Newstart Allowance instead. However, he remained living in the deceased’s flat, and no other person assumed the carer role. Although the offender had taken appropriate steps to stop receiving the Carer Allowance, that of course did not bring an end to the deceased’s need for care.

6 I am satisfied that the offence was committed between 6pm and 10pm on 4 November 2004. The previous night, the deceased had apparently been in such a state that he had been unable to get into his own bed. On the morning of 4 November he was asleep on the floor of his bedroom. He appears to have spent most of the day in that position. It is not alleged that his condition at that stage was due to any act of the offender.

7 The offender left the flat at about 2.30 in the morning that day. He used the deceased’s keycard to withdraw $360 and went to Star City Casino. Shortly after 10am he went to the Randwick Labour Club. In the meantime, a Home Care worker, Mr Steve Mutwicki, attended the flat to care for the deceased and found him asleep on the floor. Mr Mutwicki spoke to the deceased and the deceased responded, but he refused to get up. Mr Mutwicki decided to attend to other clients and to return later. He wrote a note and left. He returned at about 1.30pm and found the deceased still asleep in the same position. He pulled up the blankets, added a footnote to his earlier note and left again.

8 The offender left the Randwick Labour Club at about 2pm, returned home, collected his bicycle and took it to a repair shop. He then withdrew $500 from his own bank account and went to the Maroubra Hotel. Later in the afternoon the offender made a telephone call to Home Care Services, probably from the Maroubra Hotel. He spoke to the service coordinator, Mr Hanley, and told him that he had stopped being the deceased’s carer and that he needed a break for a couple of weeks. The detail of the conversation is set out in a statement from Mr Hanley (part of exhibit A in the sentencing proceedings). I am satisfied on the basis of that evidence that the offender was finding it difficult to cope with the responsibility of caring for the deceased at that stage, and had reached the conclusion that he needed to extricate himself from that relationship, even if it meant losing his shared accommodation with the deceased.

9 After drinking at the Maroubra Hotel, the offender went to the Glasshouse Motel at Maroubra, leaving there to return home at about 6pm. At 10pm the offender called 000.

10 When ambulance officers and police arrived, the deceased was dead and his peripheries were cold to the touch. The offender was described as being agitated and angry at that stage, saying “I have been his carer for three years, why did he have to go do this tonight. Fucking old poofter faggot. We’d go for a drink and he wants to hold my hand while we’re out, the fucking poof… just charge me, get it over with. I’ll do fifteen years or twenty or life, whatever”.

11 It is an agreed fact that manual strangulation was the cause of the death of the deceased. A post mortem revealed a broken hyoid bone in the neck, fractured ribs, bruising to various parts of the body and other injuries. The breaking of the hyoid bone is consistent with manual strangulation. Some of the other injuries noted were old injuries. Others, including bruising to the face and neck, were recent.

12 The offender participated in two recorded interviews with police. In each of those, he denied any involvement in the death of the deceased. He has not subsequently given any account to police of the relevant events and he did not give evidence at the sentence hearing. Accordingly, there are no facts before me as to the circumstances in which the offender came to strangle the deceased, beyond the history of the relationship already described. There is evidence that the offender was drinking alcohol during the day, but there is no reliable evidence from which I can be satisfied as to the extent to which he was affected by alcohol when he strangled the deceased.

13 The offender is 46 years of age. He was 41 at the time of the offence. His personal background is described in detail in reports tendered at the sentence hearing from a psychologist, Ms Anita McGregor and a neuropsychologist, Dr Susan Pulman. Their reports record that the offender’s father was an alcoholic who was violent towards both the offender and his mother during his childhood. In early high school, the offender experienced learning difficulties and developed a deep fear as to his father’s likely reaction if he received a bad report card. As the third quarter report card approached in year 7, the offender became increasingly anxious and attempted to commit suicide with a rifle owned by his father. He took the rifle to school and shot himself through his upper palate. The bullet exited through his left frontal lobe.

14 At the age of 16 the offender was sent to Yugoslavia by his parents, apparently in an attempt to break a cycle of anti-social behaviour. In Yugoslavia the offender began drinking to excess. As already noted, he considers himself an alcoholic. Following his failed suicide attempt, he was diagnosed with epilepsy, the symptoms of which seem to be brought on by the consumption of alcohol. He believes that he has had ten or fifteen seizures due to excessive drinking in conjunction with the use of his anti-epilepsy medication.

15 The psychologists’ reports note that the offender has been married three times and also had a de facto relationship with a woman named Leanne with whom he had three sons. The offender told Ms McGregor that his relationship with Leanne was violent and had resulted in “a couple of charges” but no convictions, according to him.

16 The offender does have a criminal history, dating back to 1983. Apart from two minor dishonesty offences, he has a conviction for malicious injury in 1983, a conviction for assaulting a female in 1986 and three convictions for assault occasioning actual bodily harm in 1987, 1992 and 1998. The most recent of those resulted in a sentence of three months periodic detention. He has had no convictions since 1998.

17 Ms McGregor and Dr Pulman administered a number of intelligence and personality tests to the offender. Dr Pulman reported that the results of neuropsychological testing indicate that, although the offender’s overall level of intellectual functioning falls within the average range, there is a marked difference between his verbal IQ and performance IQ. The difference is clinically abnormal, indicating that aspects of his overall intellectual functioning are disturbed.

18 Dr Pulman also reported that, although the offender’s attention and concentration and his verbal and visual memory skills are all within normal limits, his “executive abilities” (those skills governed by the frontal areas of the brain) indicate “difficulties with verbal abstract reasoning, judgment, problem solving and self-monitoring behaviours”.

19 Dr Pulman concluded:

“It is likely that his history of brain injury is a contributing factor to these deficits as his skills in these areas fall well below the level predicted on the basis of his intellectual functioning.”

20 There is a suggestion in one of Ms McGregor’s reports that the offender at some point claimed to have no memory of the circumstances of the offence. Her second report states:

“I understand that the reason for this re-assessment was to determine whether ‘his memory deficit as to his acts in causing the death of the deceased is likely to have been caused by an ‘alcoholic blackout’ or epileptic seizure in the context of long standing alcohol abuse’.”

21 However, none of the three reports tendered at the sentence hearing recites a history to that effect given by the offender himself to the relevant expert. I am unable to make any finding one way or the other on that issue.

22 Apart from the three expert reports, the only additional material tendered on behalf of the offender at the hearing was a character reference from Chris and Sally Towne of Augustus Downs Station in Queensland. Mr and Mrs Towne employed the offender as a labourer on their remote cattle station for two separate periods between the date of the offence and the date on which the offender was arrested. Although the periods of employment were short, Mr and Mrs Towne clearly formed a very favourable impression of the offender during that time. Their letter to the Court describes him as a hard working employee with high work ethics and standards.

23 Interestingly, in circumstances where Mr and Mrs Towne would have had an opportunity to observe the offender’s drinking habits, they state that he did not at that stage have a drinking problem. Mr and Mrs Towne describe the present offence as “nothing like the Michael that [they] know”. The offender’s conduct during that time as described by Mr and Mrs Towne reflects an improvement upon the period leading up to the commission of the offence, which I am satisfied indicates some capacity for rehabilitation. I have to weigh that evidence, however, against the offender’s criminal record.

24 The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no standard non-parole period in respect of the offence. I am required by s 22 of the Crimes (Sentencing Procedure) Act 1999 to take the offender’s guilty plea into account. The plea was not early and had been offered by the Crown before the commencement of the trial. However, although the plea was entered several days into the trial, I accept that it had utilitarian value, albeit at the bottom of the range identified in the guideline judgment in R v Thompson; R v Houlton [2000] NSWCCA 309 at [160]. I think it is appropriate to discount the sentence by 10% on that account. The offender has been in custody in respect of the offence since 2 April 2008.

25 I am required to have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Plainly, no penalty other than imprisonment is appropriate.

26 As to the matters to which I am required to have regard under s 21A of the Crimes (Sentencing Procedure) Act, I have already referred to the offender’s criminal history. Counsel for the Crown and the offender were in contest as to whether that is an aggravating matter in the present case. As noted on behalf of the Crown, an offender’s criminal history is a factor which may be taken into account in determining the sentence to be imposed, but not so as to lead to the imposition of a penalty disproportionate to the gravity of the offence: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The principle was expressed by Howie J in R v Shankley [2003] NSWCCA 253 in the following terms:

“The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that ‘retribution, deterrence and protection of society may indicate a more severe sentence is warranted’.”

27 It was submitted on behalf of the Crown that the offender’s prior offences of assault demonstrate a pattern of disregard for the law and the rights of others. However, the Crown acknowledged that the offender’s brain injury may have played a part in those offences, based on the opinions of the neuropsychologist. I am not satisfied that the present offence was prompted by a conscious disregard for the law.

28 Ms Francis, who appeared for the offender, noted that there have been no convictions since 1998. She submitted in effect that it would not be open to the Court to find that the record indicates a tendency towards employing violence. Whether or not that finding is open, I accept that the offender’s record is of little significance in the present case. I do not think that a more severe sentence is warranted on account of the considerations referred to in Shankley.

29 Although the offence was committed in the home of the deceased, the Crown accepted that that is not a feature of aggravation in the circumstances of the present case, since it was also the offender’s home: R v Stewart [2008] NSWSC 1359 per Mathews AJ at [48].

30 The Crown submitted that it is an aggravating feature of the offence that the offender was the carer for the deceased and was “in a position of trust and responsibility”. Although that is not the same relationship as that of a parent or carer for a young child, it was submitted that the principle is the same. I do not accept that that is an aggravating factor in the present case. The role of caring for the deceased was an onerous one. The offender was, perhaps, ill-equipped for the task. He had taken some steps to extricate himself from the role he had taken on. It is regrettable that he did not put in place alternative measures for the care of the deceased, but that in itself may reflect the fact that he did not have the personal resources to solve the problem he faced. The relationship was a curious one, and appears to have carried benefits and burdens for both men. I do not think it can be fairly summarised in the simple proposition that the offender was in a position of trust.

31 Further, the aggravating factor referred to in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act is that the offender “abused” a position of trust or authority. Whatever happened between the offender and the deceased that night, I am not satisfied beyond reasonable doubt that it entailed abuse of the offender’s standing with the deceased.

32 However I accept, as submitted on behalf of the Crown, that the deceased was vulnerable on account of his alcoholism and his need for care. It was acknowledged on behalf of the offender that that is a matter that aggravates the present offence. In my view, it is a significant factor, although I emphasise that in the absence of evidence as to the commission of the offence itself, it is difficult to judge the precise extent of the deceased’s vulnerability at that time.

33 It is necessary to give separate consideration to the evidence of the offender’s brain injury acquired as a result of his failed suicide attempt and his chronic alcoholism. As noted by the Crown, mental illness or injury is a matter which may give rise to competing considerations on sentence. The principles as to the relevance of that consideration are well established: see R v Hemsley [2004] NSWCCA 228 at [33]-[36].

34 Where there is a causal connection between an offender’s mental state and the commission of the offence, the offender’s moral culpability for the offence may be reduced. However, since there was no evidence in the present case as to the precise circumstances in which the offender strangled the deceased, I am unable to make any finding on that issue, and it was not contended on behalf of the offender that I should.

35 Another consideration is that mental illness or injury may moderate the significance of general deterrence: Hemsley at [34]. In my view, that is a significant factor in the present case.

36 A third consideration is that a custodial sentence may weigh more heavily on a mentally ill person, but there is no suggestion of that in the present case. A potential countervailing consideration is the level of danger which the offender may present to the community, which may warrant greater emphasis on special deterrence, but I am not satisfied that that is a factor in the present case.

37 As to mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act, the only matter relied upon on behalf of the offender is that the offence was unplanned. Although the evidence as to the events of that day is scant, I am satisfied on balance that the offence was not part of a planned criminal activity and I take that factor into account. There is otherwise nothing to mitigate the circumstances of the offence, which was undoubtedly serious.

38 As noted by Gleeson CJ in R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported), the starting point for a consideration of the appropriate penalty for the offence of manslaughter is that what is involved in every case is the felonious taking of a human life.

39 Ms Francis referred me to four sentencing decisions involving manslaughter by an unlawful and dangerous act which she submitted were comparable to the present case: R v Zammit [2008] NSWSC 317; R v Kennedy [2008] NSWSC 703; R v Stewart [2008] NSWSC 1359 and R v Harris [2007] NSWSC 1417. Ms Francis also referred in a different context to the decision of R v Mills [2009] NSWSC 521 and submitted that the sentence imposed in that case was at the top of the range. I have had regard to all of those decisions, while bearing in mind that the appropriate sentence must, of course, always be determined by giving appropriate weight to the objective and subjective features of the individual case.

40 Ms Francis submitted that the four decisions relied upon as comparable with the present case indicate that the appropriate penalty is a total sentence of between 6 and 7 years and, assuming the benefit of a finding of special circumstances, a non-parole period of 4 years. It is necessary to bear in mind, however, that each of those sentences (other than the sentence imposed in Kennedy) was discounted by more than 10% to reflect the utilitarian value of a guilty plea. To the extent that it is helpful to refer to other cases, it is the undiscounted sentence that should be considered. In the decisions relied upon on behalf of the offender, they disclose a higher range.

41 I accept, as submitted on behalf of the offender, that he would benefit from an extended period of supervision. A key consideration is his brain injury. Ms Francis noted the evidence of the two expert witnesses as to the offender’s lack of insight into his own condition, together with his history of alcohol abuse. Further, the offender’s personal history suggests a risk of volatility in personal relationships, particularly where alcohol is involved. I accept that he will require assistance to address those issues after an enforced period of abstinence from alcohol whilst he is in custody. In my view, those are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act justifying a departure from the statutory ratio between the balance of term and the non-parole period imposed.

42 The sentence I would have imposed but for the plea of guilty is 8 years and 6 months. Allowing a discount of 10% for the plea, the appropriate sentence is 7 years and 8 months. I propose to fix a non-parole period of 4 years and 9 months.

43 Michael Gloginya I convict you of the manslaughter of William Bryant and sentence you for that offence to a non-parole period of 4 years and 9 months to date from 2 April 2008. The first date on which you will be eligible for release on parole is 1 January 2013. I specify a balance of term of 2 years and 11 months commencing on 2 January 2013 and expiring on 1 December 2015.

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