Regina v Graham

[2000] NSWSC 1033

CITATION:	Regina v Graham [2000] NSWSC 1033
FILE NUMBER(S):	SC 70078/99
HEARING DATE(S):	21/08/00; 23/08/00; 24/08/00; 25/08/00; 28/08/00; 30/08/00; 31/08/00; 01/09/00; 04/09/00; 05/09/00; 06/09/00; 20/10/00
JUDGMENT DATE:	10 November 2000
PARTIES :	Regina v Kane Graham
JUDGMENT OF:	Whealy J at 1

COUNSEL :	T. Hoyle SC - Crown P. Hamill - Prisoner
SOLICITORS:	S. E. O'Connor - DPP Nyman Gibson & Company - Prisoner
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Isaacs (1997) 41 NSWLR 374 at 378 R v Olbrich (1998) 45 NSWLR 538 at 543 R v Previtera (1997) 94 A Crim R 76 Bollen v R (1998) 99 A Crim R 510 R v Troja (CCA (NSW) unreported, 16 July 1991) GPD (1991) 53 A Crim R 112 The Queen v Pham (1991) 55 A Crim R 123 at 135 R v Gordon (1994) 71 A Crim R 459 at 469 R v Hawkins (1993) 67 A Crim R 64 at 66 The Queen v Mconald (NSWCCA unreported, 12 December 1995) The Queen v Hill (1981) 3 A Crim R 397 at 402 The Queen v Dodd (1991) 57 A Crim R 349 at 354 The Queen v McGuire (NSWCCA unreported, 30 August 1995 The Queen v Alexander (NSWCCA unreported 24 February 1995
DECISION:	Kane Graham, I sentence you to 5 years imprisonment. The sentence is to commence on 20 September 2000. I set a non-parole period of 3 years cmmencing on 20 September 2000 and ending on 19 September 2003. The prisoner will be eligible to be released to parole on that day, 19 September 2003.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

WHEALY J

FRIDAY 10 November 2000

70078/99 - REGINA v Kane GRAHAM

SENTENCE 1    HIS HONOUR: The prisoner, Kane Graham was tried before me for the murder of Brendan McGovern on or about 4 March 1999. On Wednesday, 6 September 2000, the prisoner was found guilty of manslaughter. A sentence hearing was completed on 20 October 2000. The prisoner was on that day remanded in custody until today for the passing of sentence. 2    The maximum penalty for the crime of manslaughter is imprisonment for 25 years. 3    I am required to find the facts relevant to sentencing. It is necessary that the facts I find be consistent with the jury’s verdict. The facts I find relevant to sentencing must be, so far as they relate to findings of fact against the prisoner, be a finding arrived at beyond reasonable doubt (R v Isaacs (1997) 41 NSWLR 374 at 378). The onus of proof going to matters of mitigation is on the prisoner who must establish such matters on the balance of probabilities (R v Olbrich (1998) 45 NSWLR 538 at 543). 4 Brendan McGovern’s body was found on 4 March 1999 early in the morning by some children on their way to school. The body lay in the Gladesville Reserve off Huntley’s Point Road. At the relevant time, the area where the body was found was densely vegetated and unlit at night. It was described as being “quite dark even during the day”. Police were called to the scene on that morning. The body was lying face down and exhibited ( as the photographs show) a considerable degree of lividity. This is a condition which occurs after death and which is exacerbated by a face down posture. Dr Lawrence, a Forensic Pathologist gave evidence that he performed an autopsy on the body of the deceased on 5 March 1999. It is his opinion that the death of the deceased occurred as a result of manual strangulation. The mechanism of death was the occlusion of the carotid arteries leading to a lack of oxygen to the brain. There were fractures to the right side of the hyoid bone and the projection of the thyroid cartilage on that same side. Both these structures are very brittle. It does not require a great deal of force to break them. Dr Lawrence described the degree of force necessary to fracture these structures as “quite mild”. 5 Dr Lawrence also described the general range of injuries to the deceased’s body. There were three scratches or abrasions on the left side of the neck. There was other bruising in the neck region. There was a red bruise and an abrasion at the junction of the deceased’s right arm and right shoulder. This appeared to correspond with the tear in the T shirt the deceased was wearing and possibly was produced by a twisting of the clothing. There was other small bruising on the right upper arm and forearm and on the left upper arm and wrist. There was a graze on the front and outside of the left knee and immediately below the right knee there was a bruise. 6 It was Dr Lawrence’s opinion that the physical evidence was consistent with the grabbing of the neck (ie the scratches) and also the probability of a headlock being applied. He was unable to say which had occurred first. He found it difficult to express a final opinion as to the degree of force which would have been required to cause the kind of bruising he described particularly in the neck and chest region. Generally he said that the more bruising, the greater the force used but there was a complication in this case as the deceased had been in the face down position and had sustained lividity after death. 7 The prisoner Kane Graham lived with his parents at 26 Moss Street, West Ryde. He was a 20 year old man who worked at Nossiter Pumps at Meadowbank 8 On 3 March 1999 he made possibly two calls to the Hot Gossip Chat Line. This was a service that enabled people of both sexes to leave messages and to listen to messages left with a view to social meetings. He had left a message on the Chat Line and had listened to messages left by girls on the line. He was a heterosexual young man himself and he had a steady girl friend named Amy. He received a response to his message from a man who called himself James. “James” made it clear that he was gay. He left a message inviting the prisoner to contact him at a telephone number. The prisoner tried to ring “James” on two occasions but was unsuccessful because the numbers were incomplete. He rang the Hot Gossip Chat line again and obtained the correct phone number. He rang this number twice. The first call was at 6.24pm for 30 seconds or so; and then there was a second phone call shortly after between the two men. This lasted for about five and a half minutes. An arrangement was made that the prisoner would wait for “James” at West Ryde Public School at about 9.30pm that evening. The prisoner said that he knew “James” was gay. He wanted to find out at this meeting whether he was gay himself. He had no experience with other men or sexual encounters with any other men prior to this time. It is clear that he was having doubts or uncertainties about his sexuality and this prompted him to respond to the “James” message in the way he did. 9 “James” was in fact Brendan McGovern, the deceased. He lived in a granny flat at the front of his father’s home at Hunter’s Hill. He was an experienced 29 year old homosexual who had used the Chat Line and other chat line type services on a number of previous occasions to meet men for sexual encounters. Some of these meetings had been at the Huntley’s Point Reserve. There were other “gay beats” frequented by the deceased for the purpose of sexual encounters. It seems clear Brendan McGovern had chosen to use the men/girls Chat Line to listen to heterosexual messages, presumably with a view to persuading a heterosexual man to have sex with him. 10 The prisoner, later in the evening, went to the Shell Service Station near his home, bought some cigarettes and waited in the school grounds for “James” to arrive. He saw a car arrive and park near the school. He saw a person get out of the car and walk towards him into the school grounds. This person walked up and said his name was James. They talked for a while and agreed to go for a drive. Brendan McGovern told the prisoner that he knew of a park at Gladesville and suggested that they go there. The purpose of going for this drive was to try and see, so the prisoner said, whether he was gay. He denied that he agreed to any particular type of sexual activity although he admitted later in cross-examination that some form of sexual activity was plainly and consensually contemplated between the two of them. There was some talk of a sexual nature between them in the car. The prisoner told the deceased this was the first time he had ever been with a man. The deceased drove the two of them down to the parking area near the reserve. The deceased then suggested that they walk down into the park. He led the way. He took the prisoner into a bush track off the pathway and the two men then sat down beside one another. There then occurred a consensual touching of private parts on the part of each of them. Both men had an erection. The prisoner said he was consenting to this happening although he felt very nervous. 11 The prisoner then said that the deceased wanted him to engage in oral sex. The prisoner said he was nervous and scared and he did not want to do this. According to his version he told the accused he did not want to. 12 The sequence of events which next occurred in the prisoner’s version was challenged by the Crown. That version, however, was that the deceased put his hand on the back of the prisoner’s neck and tried to force the prisoner’s head down towards his private parts. The prisoner moved his head out of the way and tried to stand up. The deceased complained that he had driven the prisoner all the way to this park and, as the prisoner tried to stand up, the deceased grabbed his hand and pulled him down hard onto the ground. The prisoner stood up again and swung a kick at the deceased who was still on the ground. This kick hit the deceased in the shoulder. The deceased started to get up and the prisoner said he started to run back up the track. The deceased put his arms around the prisoner’s back and tackled him from behind to the ground. They fell and rolled around on the ground wrestling one another. 13 It was the prisoner’s evidence that he was “Shit scared” at this stage. He said he was scared the deceased was going to hurt him; that he was going to “rape him or something”. While they were wrestling on the ground he grabbed the deceased’s throat with one hand. This was done “to push him away from me”. The deceased used his hands to push the prisoner’s right hand out of the way of his throat. They started wrestling again. The prisoner got on the deceased’s back and put his right arm around his throat. The deceased was swinging his arms out and lying on his stomach at this stage. The prisoner does not know how long he had his arm in a headlock around the deceased’s neck. 14 The prisoner maintained in his evidence that his intention in holding the deceased in this forceful headlock was so that “he couldn’t touch me”. He said that he had not intended to kill the deceased or do any permanent serious physical injury to him. After a time, the deceased stopped struggling and the prisoner then let him go. There was no certainty in the evidence as to the length of time the prisoner held the deceased in this headlock after he stopped struggling. It was the Crown case that he may have held on to him for two or three minutes after he stopped moving. The prisoner himself said he did not remember holding him “for long” after he stopped moving. He was “freaking out” at the time. He took the keys and wallet from the deceased’s front pocket. He said he took the keys because he had to get home. He did not know why he took the wallet. He ran out of the park and took the deceased’s car and drove it around to the back of his house at West Ryde. He also took the mobile phone out of the car although he says he does not know why he did this at the time. At the time he took these items, he says he was “freaking out”. 15 The prisoner went home to bed that night. He did not talk to anyone about what had occurred and he did not want anyone to know. The reason was that he did not want anyone to think that he was gay. He said he did not realise that Brendan McGovern was dead when he left the park. 16 On the next day, the deceased was identified by members of his family. A description of his car was released to the media. On 11 March 1999 the car was noticed and reported by a Mr Ronald Clarke of Rex Street, West Ryde. He rang the police and the car was secured by the police on that morning. By this time the police had been given information from other investigating police that telephone calls had been made from a telephone service connected to the property at 26 Moss Street, West Ryde to the service at the deceased’s home at Hunter’s Hill. These calls had been made on 3 March 1999. In those circumstances the police went to 26 Moss Street and spoke to the prisoner’s mother and ultimately to the prisoner himself. The prisoner was then interviewed by way of electronic recording. He made up a story that he had been knocked unconscious at West Ryde Public School, abducted and when he awoke in the reserve, he was being anally raped. It was in the course of this fabricated version, that he described his subsequent struggle with the deceased and its fatal consequences. He told the police, in effect, he had been acting to protect himself and he had not intended to kill the deceased. 17 I have already recited the essence of the prisoner’s version of events which he gave during the course of his evidence in the trial. He frankly conceded a number of the statements he made in the police interview were untrue. He explained that he did not tell the police the true story about the direct telephone contract between himself and the deceased because he was “shitting himself”. He did not tell the truth about the meeting at the Public School because he did not want the police to know that he was “gay or something”. He also conceded that the story of having been raped in the park was not true but he does not know why he said this. Other aspects of his evidence, he insisted, were the truth. 18 He explained he had never been in a situation where he was being video taped before, where police officers were asking questions. He said he was scared being interviewed by the police officers. He said he had taken the deceased’s wallet and later his telephone but he could not explain why. Either the next day or the day after he had taken the car down to the Rhodes Sea Scout Hall. He tore up papers belonging to the deceased in an angry state. He said he became “ballistic”. He said he was “freaking out” during this period, there were a million things going through his head. He drove the car back to Rex Street where it was later found. 19 This brief summary of the evidence demonstrate that, as the trial unfolded, the case became a relatively simple one. On the one hand, the prisoner’s case, as given by him in evidence at the trial was that once he had withdrawn his consent to any further sexual activity between himself and the deceased, he had been assaulted, chased, and tackled to the ground by the deceased. At all times during this struggle he was acting in defence of his person and he was afraid that he was going to be overcome and anally raped. He seized the deceased by the throat and held him in a headlock essentially to protect himself. 20 The Crown case on the other hand was that this version of events was patently false. The Crown suggested that the prisoner may have become very angry, perhaps repulsed at his own actions in enjoying the preliminary sexual encounters and that he had assaulted the deceased in this state of anger. The Crown also argued that it was open to infer, having regard to the expert medical evidence, that the deceased had an intention to kill or cause serious bodily harm as evidenced by the likelihood that the prisoner held the deceased in a forceful headlock for two or three minutes after he had lost consciousness. 21 As a consequence, the major issue in the trial was self defence which, clearly, the jury decided adversely to the prisoner. Manslaughter was left both on the basis of unlawful and dangerous act, and provocation. It is fair to say, however, that although provocation was left to the jury, it was not argued on behalf of the prisoner. It is also fair to say that, consistently with this approach the prisoner, through his counsel, has maintained, for the purpose of these sentencing proceedings, that he should be sentenced on the basis of manslaughter by unlawful and dangerous act. The proposition which has been advanced by Mr Hamill on behalf of the prisoner is that the level of culpability involved is to be judged by reference to a suggested finding that the prisoner’s response was disproportionate to the threat posed by the deceased rather than by rejection of the proposition that an occasion for self defence arose. 22 The Crown submission was that the Court should find, beyond reasonable doubt, this was a case of manslaughter by provocation. The Crown, of course accepted that I might find on either basis but, consistently with the approach adopted at the trial, urged that I find this was essentially a case where the prisoner, having been provoked by the words and actions of the deceased, lost his self control, became very aggressive and angry; and, in that condition, brought about the death of the deceased. In particular, the Crown argued that I should reject the prisoner’s version of events which suggested that he had been chased through the bushland, tackled from behind and assaulted by the deceased. This version, it was said, defied common sense and simply could not have happened. 23 The essence and central relevance of the Crown submission was that the prisoner’s level of culpability should be assessed, for sentencing purposes, as relatively high, because, if it were accepted that this was a case of manslaughter by provocation, the prisoner intended, at the very least, to do very serious harm to the deceased. 24 I have come to the conclusion that the proper basis upon which to sentence the prisoner is that he killed the deceased by an unlawful and dangerous act. The prisoner stands for sentence for a killing which occurred without planning and premeditation; a killing which occurred spontaneously in the course of a physical struggle between Brendan McGovern and himself; and without the intent on his part to kill or inflict grievous bodily harm. Death was caused by the prisoner placing the deceased in a forceful headlock and applying pressure for a period of time sufficient to render the deceased unconscious and then to lead to his death. The evidence does not enable me to say with absolute precision how long after the deceased stopped struggling the prisoner kept him in a headlock. I am satisfied that unconsciousness and death would not have been simultaneous and that the prisoner forcibly continued the headlock for a period of time, perhaps a relatively brief period of time, until after death had occurred. No weapon was used in the killing but the prisoner was physically bigger and stronger than the deceased and would have, and did, easily overpower him. 25 In broad terms, although with one important qualification, I accept the prisoner’s version of events as to what happened that night. Indeed, much of the version given by the prisoner was not contested by the Crown. The point at which the Crown put in issue the prisoner’s version, as I have said, was the chase through the bushland. The Crown said it was inherently unlikely that the deceased would have been able to get off the ground, partially undressed as he was, perhaps in a continued state of erection and give chase to the prisoner. It was pointed out that the prisoner was a much younger man, was fitter than the deceased and more likely to have escaped through the bushland if his story were true. 26 I am satisfied, however, that there is no inherent unlikelihood in this aspect of the prisoner’s version of events. First, the deceased was an older man well experienced in sexual encounters. Secondly, this very venue was one well known to him for sexual encounters. It had been his suggestion that he and the prisoner go to this relatively deserted, densely vegetated and dark bushland. He led the way. The prisoner on the other hand was nine years younger and relatively inexperienced in sexual matters. This is not to say he was an unwilling participant in the proposed sexual experience. He had not, however, had homosexual experiences at all before. He presented as a very quiet, deeply introspective shy person. In my opinion, it may be well accepted that he became panicky and scared after he refused to engage in oral sex with the deceased and found himself subject to what he perceived to be a physical assault designed to force his head down on to the deceased’s private parts. I do not consider it at all likely that either man would have remained in a state of erection during this preliminary scuffle. The prisoner says he tried to stand up and was pulled hard down to the ground and then stood up again and aimed a kick at the deceased which hit him somewhere on the right shoulder. Sexual passion would have well and truly evaporated by the end of these physical exchanges. Although the deceased’s jeans were undone at the waist and the zipper down, the photos in Exhibit “A” show that (even after the fatal struggle) his jeans were only slightly down from his hips. The position of his clothing would not have stopped him from running after the prisoner and tackling him as the prisoner said happened. 27 It is also of some significance that the prisoner did not know this parkland at all. He had never been into it before. He described it as being dark, unlit and slippery. He said he could not “easily” make his way through the bush when he turned to run away from the deceased. It was at that point he was tackled from behind and the two men rolled on the ground. 28 The deceased was some four inches shorter than the prisoner and it seems clear he was not terribly fit. On the other hand, Dr Lawrence described his body as “muscular” and he was about the same weight as the prisoner. 29 I accept that the prisoner was genuinely panicked and frightened, he feared that he was going to be seriously sexually assaulted and he believed that he had to hold the deceased in a forceful headlock to protect himself. 30 I stated that in accepting the prisoner’s version of events there was one important qualification. The qualification is this. Although I find that the prisoner strangled the deceased believing that what he did was necessary in his own defence, I find that there were no reasonable grounds for that belief. I am not satisfied that the prisoner lost his self control and became violently angry either with himself or the deceased. The prisoner was questioned at length as to his state of mind during his evidence. It was put to him forcefully that he had lost control of himself and became very angry. He denied this state of mind in a manner which convinced me that he had not been acting in the grip of an explosion of anger. It is fair to say that the prisoner is a very young man. He is a person of very good character. All of the witnesses called on his behalf spoke well of him. He is very shy and introspective. He does not express himself easily. When cross-examined on this topic I think he honestly looked back at his own actions and feelings on the night in question and his refusal to agree with the Crown that he had acted in anger were answers which I found quite convincing. I formed the view they were questions which had troubled him long before his trial. While it is true that either the next day or the day following, he “trashed” the contents of the deceased’s car in an outburst of anger, I do not think it was anger which prompted his actions in the bushland on the 4 March 1999. It must also be said that the objective physical evidence supports him in this regard. There is no evidence of a frenzied physical attack on the deceased either before his life was brought to an end or after. The evidence of Dr Lawrence establishes to my satisfaction as I have said, that the deceased died as a consequence of the blockage of his carotid arteries as a result of the headlock administered by the prisoner. The fractures of physical structures in the neck were consistent with the application of a moderate degree of force. Allowing for the effect of the lividity on the range of bruising on the head, neck and chest areas, other injuries sustained by the deceased in the struggle were of a very minor nature. Apart from the kick in the shoulder, the other injuries appears to be consistent with the deceased’s struggling on the ground face down while he was in the headlock. The condition of his clothing and the dirt marks on his clothing are consistent with the prisoner’s version of the struggle. 31 Although the deceased’s words and conduct may well have been provocative in a general sense I do not believe that the prisoner was provoked so as to lose his self control or that he did in fact lose his self control. Rather, I think he was frightened, panic stricken and acting as he believed it necessary to protect himself. The unfortunate tragedy of this case is that, conformably with the jury’s verdict, there were no reasonable grounds for the prisoner’s belief. He was in fact younger, fitter and undoubtedly stronger than the deceased. I believe that Brendan McGovern could have been persuaded from going any further either by rational discussion or, if necessary, by a mild degree of physical restraint which fell far short of the actions taken by the prisoner. I do not believe that Brendan McGovern, in fact, posed any really serious threat to the prisoner or that there was any real chance of the deceased physically overcoming the prisoner. The prisoner’s reaction was out of all proportion to the threat he perceived. Categorised in this way, as I believe to be the correct categorisation, this is a case of manslaughter towards the lower end of the range of culpability. 32 This is not to say that the prisoner’s actions were excusable or that they are to be trivialised in any way. The death of Brendan McGovern was quite needless, a valuable human life was thrown away in the most tragic of circumstances. The prisoner’s actions, no matter the extent of his fears at the time, are to be denounced and condemned, as I have no doubt he himself has denounced and condemned them many times over since that fateful evening. 33 Before turning to the subjective features of the prisoner’s case, I should at this stage say pursuant to s 28(3) of the Crimes (Sentencing Procedure) Act 1999, I have received Victim Impact Statements from the deceased’s father, his sister Maryanne and his brother Justin. Those statements speak movingly and tragically of the continuing effects upon the whole family of the violent and untimely death of their loved son and brother. The Court extends to all of them its sympathy; and hopes that the opportunity to express their feelings through those statements has helped them to come to terms with their sad loss. However, I do not consider it appropriate to have regard to those statements in determining what sentence should be passed: sees 28(4)(b) and R v Previtera (1997) 94 A Crim R 76; Bollen v R (1998) 99 A Crim R 510. 34 I turn now to consider the prisoner’s subjective features. He was born on 31 January 1979 and was 20 years old at the time of the offence. He is now a little under three months away from his twenty second birthday. The prisoner has no prior convictions. 35 The pre-sentence report recites that the prisoner was born and raised in Sydney’s Ryde district; he had a comfortable childhood well provided for by his parents. He is said to have had an normal upbringing in a close and caring family environment. He has a younger sister now aged eighteen years who recently moved out of home. The prisoner completed his School Certificate in 1995 and joined the work force as a storeman with Telecom for about a year. He then obtained an Apprenticeship as a “fitter and turner” for four years. He failed to complete the practical component by about three months and the theory side of his apprenticeship has been on hold since the beginning of 1999. His performance at work was satisfactory. The prisoner has not held any regular job in the past year but has worked casually on odd days mainly with family friends. 36 The report states that at some stage during his heterosexual relationship (a relationship of three years which terminated as a result of the offence which brought him before the court), the prisoner thought that he was homosexual. He denied any identity crises or relationship failure but he stated repeatedly that the thought of being “gay” became too intense to ignore, hence his decision to “experiment” same sex dating. In relation to his attitude to the offence, the report states: -

“Mr Graham is devastated by the gravity of his action. He claims to have acted in self defence, and to have left the scene of the crime unaware that the victim was dead. In retrospect the offender expressed regret and “I wished it never happened” statement.”

37    At the end of the report it is noted that enquires indicate that the prisoner has become more withdrawn, isolated and depressed following the court proceedings with a consequent increase in tension within family members. 38    Finally, the report noted that there were no impediments to the prisoner, as an alternative to a custodial sentence, being considered for Periodic Detention, a Community Service Order or a Supervised Bond. 39    I have earlier referred to evidence of good character given on the prisoner’s behalf during the trial by members of his family and others. Further material of the same kind was provided to me on 20 October. This includes a statement from Mr James Lumb who spoke well of the prisoner in relation to his employment as a casual in the painting and decorating industry. The prisoner’s aunt, Sharon Gray provided a statement dated September 1999 which spoke very highly of him and emphasised the tragedy which has befallen the family as a whole as a consequence of the prisoner’s actions. There is a letter of reference from Pamella Lawrence dated 17 October 2000 which, again, speaks well of the prisoner particularly in relation to his qualities as a loyal honest and reliable worker. Ms Lawrence also speaks well of the prisoner in a personal capacity and notes: -

“I truly believe that this young gentleman is so remorseful for what has transpired over the past twelve months, that if he could change what happened he would. I feel Kane is very withdrawn from life at present to the point where it concerns me deeply.”

40    There was a further reference from a neighbour Belinda Sutton which I have also taken into account. 41    Associate Professor Susan Hayes, who is the Associate Professor and Head of the Department of Behavioural Sciences in Medicine at the University of Sydney provided an assessment report dated 6 October 2000. This assessment was provided following consultation with the prisoner on 16 February, 5 and 6 October 2000. 42    Professor Hayes detailed the prisoner’s family history including his relationship with his parents and his social situation and work history. She gave the results of various tests which were carried out as part of the assessment of the prisoner’s intelligence, personality and mental functioning ability. The results of these tests showed that overall the prisoner is of average intelligence although his vocabulary score is significantly lower indicating that he is of low average ability in terms of his verbal reasoning. The mental functioning test indicate that there did not appear to be any neurological damage, organic brain damage or syndrome, or any other neurological abnormality or impairment. 43    The personality test was administered in February 2000 during the first assessment. The result of this test showed that the clinical test was unremarkable for the prisoner. There were no high scores indicating clinical symptoms with the exception of the anti-social features scale. In this area he had a markedly elevated score indicating that he tends to be unreliable and sometimes lacks responsibility. Professor Hayes noted: -

“An examination of the sub-scale scores indicated that he had an elevation of anti-social behaviours, reflecting a history of anti-social acts. This would be consistent with the events surrounding the death of Mr McGovern. He also had a prominent elevation on the stimulus seeking anti-social scale indicating that he sometimes manifests behaviour that is reckless and potentially dangerous to himself or those around him. He craves excitement and stimulation and is easily bored by routine and convention. This type of response would be consistent with his reported history of “chat line” involvement and willingness to meet people through this medium.”

44    During the October 2000 assessment, the prisoner was subjected to a depression anxiety and stress tests. The results of these indicated that the prisoner was suffering from moderate stress at a level greater than 90% of the general population. Furthermore, he was severely depressed more so than 98% of the population. His anxiety levels were in the normal range. He did not show any psychiatric symptoms except for severe depression and in Professor Hayes’ opinion there was no history of any psychiatric symptoms or illness which would render the prisoner a danger to the community. It was noted that owing to his severe depression and suicidal ideation, he may be a danger to himself. His feeling of self worth had been seriously affected by the incident, his self esteem has plummeted, and he has lost any sense of enjoyment of life. He wishes that the incident had never happened, and is sorry for what happened to the victim. He tends to cope by repressing thoughts about the incident and the victim. 45    It was Professor Hayes’ opinion that the prisoner needs ongoing counselling to assist him to cope with his depression and suicidal thoughts and to gain insight into the events which occurred and his contribution to them, including his impulsivity and risk-taking behaviours. She expressed the opinion that owing to the nature of the crime and his depression, he would be at risk in prison. She suggested that it is unlikely that he would be able to access the supportive counselling that he needs if he were in prison. She suggested that the prisoner may be suitable for a non-custodial sentencing option. 46    The subjective features upon which reliance is placed may be briefly summarised as follows: The prisoner is a young man who has no previous criminal history; the crime was specific to the situation and may properly be regarded as an isolated incident. The impact of the crime has been devastating on him. He has, in effect, lost his job and is in a state of severe depression and moderate stress. He has, it is said, demonstrated remorse by his demeanour in court and the statements he made to his aunt, Pamella Lawrence, Professor Hayes and, to a degree, to Mr Loria, the Probation and Parole Officer. He has had this trial hanging over his head for a long time. 47    Against the background of these subjective features, counsel for the prisoner submits that there are a number of matters which take the objective seriousness of the crime to the very bottom of the scale. These include the absence of any planning or premeditation, the fact that no weapon was used; and that there was no brutality involved in the unlawful act which brought about the death of the deceased. The essential circumstances, it is said, were the panic and frightened reaction of a sexually inexperienced young man. 48    It was the submission of counsel for the prisoner that this is a rare case in which the objective circumstances are mitigated; and in respect of which the subjective circumstances are significant. It is submitted that the court should avail itself of sentencing options other than the imposition of a full time custodial sentence. It was argued that this submission is heightened by a consideration of the principles related to the sentencing of young offenders (see GPD (1991) 53 A Crim R 112). 49 Reliance was also placed upon the statistics published by the Judicial Commission of New South Wales in relation to the penalties imposed in cases of manslaughter between 1990 and 1999. Two tables were supplied to me from which it can be seen that in excess of 10% of cases of manslaughter resulted in sentences other than full time custodial sentences. It was also pointed out that in the sample of first offenders within the age range between 21 and 30 there were some 15% of offenders who received sentences other than full time custodial sentences. 50 The Crown made detailed submissions in response to these matters. First, the Crown says that the statistics from the Judicial Commission must be approached with caution, as each case must be very carefully analysed on its own facts and circumstances (R v Troja unreported CCA (NSW) 16 July 1991). Secondly, the Crown accepts the young offenders principle but points to the fact that the prisoner here is not in the same age bracket as the young people in the authorities to which reference has been made by the prisoner’s counsel. It is also submitted that, even for a young offender, general consideration of deterrence, protection of the community and retribution apply (see The Queen v Pham (1991) 55 A Crim R 123 at 135; R v Gordon (1994) 71 A Crim R 459 at 469; and R v Hawkins (1993) 67 A Crim R 64 at 66). Thirdly, the Crown submits that while there may be some evidence of remorse on the part of the prisoner the degree of that remorse is slight. The Crown argues that that neither the demeanour of the prisoner during his evidence nor the statements made to other persons (such as Professor Hayes and Sharon Gray) show any high level of remorse and contrition. Fourthly, the Crown says that there were a number of aggravating factors which need to be taken into account. These, besides the absence of remorse, were: -

(a) It was the prisoner who initiated the meeting with the victim;
(b) The prisoner’s reaction to the events that occurred in the bush should be considered in the light of the fact that he encouraged the deceased to take him to the bush with full knowledge that sexual intimacy including intercourse might there occur;
(c) After assaulting him, the prisoner left the deceased who he believed was then unconscious lying face down on the ground while he searched his pockets for his wallet and car keys;
(d) The prisoner made no attempts to call for assistance to be rendered to the deceased;
(e) The prisoner stole the deceased’s wallet and money which he later spent. He also stole the deceased’s car which he used for his own purposes. He stole other property belonging to the deceased (phone and CD’s) and damaged some of the personal belongings of the deceased.

51    The overall submission of the Crown was that notwithstanding the subjective features, of the prisoner’s case, the objective gravity of the crime calls for the imposition of a full time period of imprisonment. 52    I shall first briefly deal with the areas in which there are issues to be resolved as a consequence of the submissions I have outlined. The first matter is the question of the correct principles to apply in the case of the present prisoner he being a young man of 21 years of age whose offence was committed when he was 20 years of age. In truth, I do not see any significant difference of principle between the submissions advanced on behalf of the Crown and the prisoner in this area. Rather, it is a question of the view I take in relation to the application of those principles to the circumstances of the present case. 53    It is my view that the comparative youth of the prisoner is an important matter to be considered. He is to be viewed as a young adult, however, it being not unimportant to note that he has been in the workforce for nearly five years. Given the nature of the crime for which he has been convicted, general deterrence and retribution remain significant sentencing considerations. In Gordon (supra) Hunt CJ at CL said at 469:

“… General deterrence remains of primary importance and, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth.”

54    The second major area of contention is the question of aggravating features. I do not accept that the first two matters relied on by the Crown are capable of aggravating the offence, either generally, or in the particular circumstances of this offence. Nor do I consider that these matters (as stated in paras a) and (b)) are an adequate statement of the factual situation that occurred between these two men. Their relationship, brief and tragic as it was, was more complex than the asserted facts reveal. I do not believe any useful purpose will be served by my endeavouring to resolve the complexities of that relationship since I categorically reject those matters as aggravating factors. 55    It is otherwise, however, with the remaining matters. The prisoner did rifle through the deceased’s pockets and took his wallet and keys. He later spent the deceased’s money. He stole and used the deceased’s car. He destroyed property belonging to the deceased. If he believed the deceased was unconscious, as he said, and did not know he was dead, it was callous and indifferent to leave him in the park unprotected and unaided. Those maters do the prisoner no good service and I regard them as aggravating features. I am prepared to accept the prisoner was “freaked out”, to use his expression, and in a state of panic. This may have caused him to act in a manner substantially different from his usual pattern of behaviour but it did not excuse his actions. 56    I do accept however, that the prisoner has shown remorse for his actions. From my observation of him, both during the ERISP and his evidence before the court, the prisoner lacks the ability to express himself easily. Professor Hayes’s tests show why this is so. I am satisfied from his general demeanour that he is remorseful. There is evidence of his statements to other persons which I have earlier detailed to support my view of the attitudes of the prisoner in this regard. True it is those latter instances of remorse are mixed with feelings of self pity and concern for his family and his future position. It would be quite wrong however, to sentence the prisoner as if he were callously indifferent to the gravity of the crime he has committed. I recognize that he does not possess the ability to express his remorse easily or eloquently. 57    I recited earlier that counsel for the prisoner had put a submission that this is one of those comparatively rare cases where a full time custodial sentence is not required. 58    In my opinion, none of the possible alternatives to full time custody are appropriate in this case. The gravity of this offence plainly demands full time custody. 59    As I said at the outset of this sentence, manslaughter carries with it the maximum penalty of imprisonment for twenty five years. As the Court of Criminal Appeal made clear in The Queen v McDonald (NSWCCA unreported, 12 December 1995) the taking of a human life is a most serious crime. At p 8, the Court said: -

“In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of a human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime (see The Queen v Hill (1981) 3 A Crim R 397 at 402). The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.”
In The Queen v Hill (above) Street CJ said: -
“In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

60    It is of course, well established that there may be cases, perhaps comparatively rare, where periodic detention may appropriately be ordered in cases of manslaughter (The Queen v Dodd) (1991) 57 A Crim R 349 at 354). The statistics show that non custodial sentences have been imposed in a comparatively small number of cases. It is necessary to bear in mind that, in the case of manslaughter especially, neither a consideration of statistical information nor an examination of the results in other decided cases illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly because of variations in the circumstances of the individual instances of the offence (The Queen v McGuire NSWCCA unreported, 30 August 1995; The Queen v Troja (supra); The Queen v Alexander NSWCCA unreported 24 February 1995). 61    It is nevertheless the case in the present situation that the prisoner took the life of the deceased, as I have found, quite needlessly. The physical method the prisoner used to subdue the deceased and the relatively prolonged and forceful use of the headlock was out of all proportion to the imagined threat posed by the deceased. The prisoner had every right to refuse to take part in any further sexual activity with the deceased. He had no right to overpower him physically and then to hold him in an unlawful and dangerous manner so as to end his life. Although the prisoner’s culpability was towards the lower end of the scale, it remains a serious crime. That it was towards the lower end of the scale of culpability will be a factor I bear in mind in determining the length of the full time custodial sentence. 62    Counsel for the prisoner submitted that I should find special circumstances in this case. In my opinion, there are such circumstances. The prisoner is to serve a prison sentence for the first time. He is a very young man who has not been before the courts before. I have no doubt that the time in prison will be more onerous due to his age, the circumstances of the crime and publicity surrounding the trial. I also consider, particularly having regard to his depression and the unresolved emotional difficulties he has that he will need assistance on returning to the community at the end of his sentence. 63    The prisoner’s subjective situation is however, only one of the matters I am called upon to consider in determining an appropriate sentence. I must impose a sentence which reflects the gravity of the crime and which makes appropriate allowance for considerations of deterrence. As far as deterrence of the prisoner himself is concerned, I consider it not at all likely that he will re-offend again. 64    I have concluded that I should impose a sentence of five years imprisonment. In setting a non-parole period I take into account the special circumstances which I have found exist in the present case. I must also make an allowance for the time spent in custody. The prisoner has, on my calculations, been in custody for a period of 51 days. I propose to back date the sentence to take into account this time spent in custody. 65    Kane Graham, I sentence you to five years imprisonment. The sentence is to commence on 20 September 2000. I set a non parole period of three years commencing on 20 September 2000 and ending on 19 September 2003. The prisoner will be eligible to be released to parole on that day, 19 September 2003.

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Last Modified: 11/21/2000