Regina v Greenhalgh
[2001] NSWSC 272
•30 March 2001
CITATION: REGINA v GREENHALGH [2001] NSWSC 272 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 70072/00 HEARING DATE(S): 30 March 2001 JUDGMENT DATE:
30 March 2001PARTIES :
Regina v Gary Grant GreenhalghJUDGMENT OF: Adams J at 1
COUNSEL : Mr P S Dare (Crown)
Mr Anthony Parker (Offender)SOLICITORS: S E O'Connor (Crown)
Egan Murphy & Co. (Offender)CATCHWORDS: Sentence - manslaughter - drunken fight - discount for guilty plea CASES CITED: R v Smith; R v Houlton [2000] NSWCCA 309 DECISION: Gary Grant Greenhalgh, you are sentenced to a term of imprisonment of eight years commencing on 13 April 2000 and ending on 12 April 2008 with a non parole period expiring on 12 October 2004.
Revised
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADAMS J
FRIDAY 30 MARCH 2001
1 HIS HONOUR: On 2 February 2001 the offender, to an indictment charging him with the murder of Mitchell David Wilder at Tamworth on 11 April 2000, pleaded not guilty to murder but guilty of manslaughter. The Crown accepted this plea in discharge of the indictment.
2 The circumstances giving rise to the offence may be briefly stated. The offender, who has been an alcoholic for many years, together with some friends, including the deceased, was involved in a drinking bout over a period of something like two days. During the night of the day in question, 11 April 2000, an argument broke out between the offender and the deceased at about 9 o’clock. It appears that the offender walked over to where the deceased was sitting on a bed and punched him hard with a fist, knocking him back onto the bed. One or more blows were again inflicted at that point.
3 The deceased left the room and walked outside with the offender following him calling on him to fight. It seems most unlikely that the deceased attempted to fight the offender who, however, punched him again. The deceased fell to the ground and the offender tried to kick him although, no doubt, having regard to his drunken state, he did not succeed and his foot did not reach the deceased’s body. The offender walked away from the deceased, who was then still alive, and returned to his unit which is part of the complex in which this event occurred.
4 No one appreciated the fact that the deceased had suffered a subdural haemorrhage. I accept the fact that the offender did not for one moment think that he had inflicted lethal blows. Unfortunately, some six hours or so later the deceased who remained lying where he was outside his unit died from a subdural haemorrhage.
5 The deceased suffered from schizophrenia but he also had long standing difficulties with alcohol. He was, as I mentioned, part of the group involved in the drinking bout.
6 As it happens, police attended the premises to which the offender had returned shortly after the assaults in question but they did not see the deceased outside. Although I accept that the offender was affected by alcohol and that he certainly had had a great deal to drink, the police officer who then spoke to him did not note any significant lack of sobriety. In this respect, Ms Julie Hendy, who is a clinical and consulting neuro-psychologist consulted by the offender for the purposes of these proceedings, stated that she considered it -
- “...unlikely that he would at the time of the event have been exhibiting a degree of diminution in intellectual functioning such that it would affect his level of culpability for the event”.
7 The deceased died as a result of blows of significant violence inflicted on him by the offender when they were both affected adversely by alcohol. The autopsy reveals that the deceased suffered a number of injuries to his head and face. Although not all of these were certainly inflicted by the offender, I am satisfied beyond reasonable doubt that the offender was the aggressor, relying mainly on the evidence of the eye witness, the lack of any defensive injuries to the deceased and the lack of any injury to the offender.
8 When the offender was interviewed by the police in connection with the assaults some hours after they had occurred he said, in substance, that he was unable to remember the fight. The Crown does not dispute this account and I am minded to think it was true, although I am sceptical that he had no recollection at all about it. I consider that it was likely that he had some, albeit confused, memory of what had happened but I do not, on this account, suggest that he should fairly be considered as having been less than candid to the police officers investigating the crime.
9 The offender was charged with murder in due course and was duly committed for trial for that crime. As I have mentioned, the Crown Prosecutor accepted a plea of guilty to manslaughter in discharge of the indictment for murder. The was charged with murder at the committal proceedings and it is clear that, practically speaking, no plea of guilty to manslaughter could have been taken at that stage. I am satisfied, in light of the history of the communications between the Crown and defence which has been disclosed from the bar table, that the offender pleaded guilty to manslaughter at the first practicable opportunity.
10 So far as the offender’s personal circumstances are concerned, he gave a history to Ms Hendy when he saw her whilst in custody on remand. He told Ms Hendy that he was born in Sydney and was one of six children. He said his parents had a difficult marriage. He attended school to first form but was then placed in an institution as a state ward because he was considered uncontrollable. It seems somewhat unclear how far his education proceeded but it is doubtful that he went past third form. He told Ms Hendy that he had been charged with various criminal offences whilst at school. After leaving school he went to work mainly in factories and then went onto unemployment benefit.
11 The offender’s record of offences shows that, in addition to a number of relatively petty crimes, he has been convicted of assaults and thefts on a relatively continuing basis. In 1990 he served a sentence for robbery in company and in 1994 for assault with intent to rob with striking. Whether alcohol was a factor in these crimes the evidence does not disclose but I suspect that it was. Aside from his time in prison, the offender has been unemployed. The offender told Ms Hendy that he had been an alcohol abuser since his teenage years and has for many years followed a life style that has involved considerable alcohol abuse and physical fighting.
12 General intellectual testing indicated that the offender is a man of average to low average mental abilities with greater skills in simple constructional tasks and also with those which required an acute observation of his environment, in respect of which he had a good capacity to concentrate. He has a reading age consistent with that of an eleven year old child, which is explicable having regard to the extent of his education. It appears that his alcohol abuse has not caused clinically significant deficits.
13 So far as the offence is itself concerned although the circumstances did not show any premeditation or the infliction of violence in a cold blooded and deliberate way but rather the adoption of force in an angry mood which arose on the sudden. I suspect, having regard to the prisoner’s history, he has a short fuse, possibly but by no means necessarily, made shorter by alcohol.
14 The offender has expressed no contrition for Mr Wilder’s death except in so far as it may be fair to infer a level of contrition from his plea. I am bound to say, however, that in the circumstances, the plea was an acceptance of the inevitable, as there could have been no doubt that he was at least guilty of manslaughter.
15 I have some misgivings about whether special circumstances exist in this case but I think, in the public interest, I should act upon the basis that the offender’s alcohol problem was a significant factor in the offence and that a lengthy time of supervision may assist him to develop personal resources allowing him, if not to overcome, to at least moderate, its effects on his life and the lives of those around him. He presents as a man without social support except for those who join him in his drinking bouts. A time longer than would otherwise be the case of structured supervision might well be not only in his interest but also in the public interest.
16 The commencing point for sentencing this offender in all the circumstances seems to me to have been a sentence of nine years with a non parole period of six years. In light of the decision in R v Smith; R v Houlton [2000] NSWCCA 309 in relation to appropriate discounts for pleas of guilty, I cannot see a proper basis for denying to this offender the discount available to persons who plead at the first opportunity. Accordingly, I allow a twenty-five per cent reduction in the sentence. So far as the non parole period is concerned this would reduce the term to four years and six months. In respect of the full term, however, I think that a period of eight years is appropriate having regard to the special circumstances even though this is slightly more than a twenty-five per cent discount would produce if calculated arithmetically.
17 Gary Grant Greenhalgh, you are sentenced to a term of imprisonment of eight years commencing on 13 April 2000 and ending on 12 April 2008 with a non parole period expiring on 12 October 2004.
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