Regina v McIntyre

[2001] NSWSC 500

CITATION:	Regina v McIntyre [2001] NSWSC 500
FILE NUMBER(S):	SC 70041/00
HEARING DATE(S):	26/3/01, 27/3/01, 28/3/01, 29/3/01, 30/3/01, 2/4/01, 3/4/01, 4/4/01, 5/4/01, 6/4/01, 10/4/01, 11/4/01, 17/4/01, 18/4/01, 19/4/01, 20/4/01, 23/4/01, 24/4/01, 7/6/01
JUDGMENT DATE:	19 June 2001
PARTIES :	Regina David John McIntyre - Accused
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr N. Harrison - Crown Mr P. Segal - Accused
SOLICITORS:	SE O'Connor Hugo Schleiger & Associates - Accused
CATCHWORDS:	Sentence - murder - intent to kill youth under the prisoner's care - no premeditation
CASES CITED:	Ryan v The Queen [2001] HCA 221
DECISION:	Twenty-two years imprisonment to date from 14 August 1999; Non parole period of seventeen years; The first date eligible for release on parole is 13 August 2016

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J
19 June 2001
70041/00 - Regina v David John McIntyre

JUDGMENT
HER HONOUR:

1    On 26 March 2001 the prisoner was arraigned before me on an indictment which charged him with the murder of Luke Gregory at Coffs Harbour between 29 July and 11 August 1999. He entered a plea of not guilty and a jury was empanelled. On 24 April 2001 the jury returned a verdict of guilty of murder. The matter was stood over to 7 June 2001 upon the application of the prisoner’s counsel to allow reports to be obtained.

2    The Crown case at trial was a circumstantial one. At the time of the killing the prisoner was a single man aged forty four years living at 20 Anderson Road, Bayldon, a satellite suburb of Coffs Harbour. For a number of years he had been on friendly terms with the mother of the deceased, Janette Gregory. Mrs Gregory and her three sons had lived in Scott Close, Bayldon not far from the prisoner’s home. Mrs Gregory was a single mother. Her eldest boy, Matthew, was aged 15 years as at mid 1999, Luke was 14 and Jamie somewhat younger. Mrs Gregory was a single mother who, at times, found it difficult to cope alone with the demands of the three boys. The prisoner offered Mrs Gregory a level of practical support taking the boys on fishing and camping trips.

3    Around mid-1998 Mrs Gregory moved to Bonville a suburb about fourteen kilometres away from Bayldon. Luke had made a number of friends during his time living in Scott Close and appears to have been unhappy about the move to Bonville. He took to spending the bulk of his time staying at the prisoner’s home and playing with a number of friends of his own age or a little younger all of whom lived in the Bayldon area. As at 1999 Luke was not attending school.

4    The prisoner assumed the role of de facto uncle both to Luke and to his younger brother, Jamie.

5    About two weeks prior to his death Luke returned to the family home in Bonville and reported to his mother that the prisoner had made a sexual advance to him. Specifically, he gave an account that the prisoner had said that he, Luke, would be allowed to keep a puppy at the Anderson Street home if he allowed the prisoner to “suck his doodle”. When his mother advised him against returning to the prisoner’s home Luke said that he could look after himself and that he planned to sleep with a knife under his mattress or pillow. Subsequently, Luke told a family friend, Jim Nelson, that he had slept at the prisoner’s home with a knife under his pillow. This was an occasion about a week prior to his death when he and a young friend, Bradley Valdez stayed overnight at the Anderson Street premises.

6    The prisoner collected Luke, at his request from Jim Nelson’s home on Wednesday 28 July. Luke stayed at the prisoner’s home that night and on the following night. On Friday 30 July, Luke spent the afternoon in company with a number of other youths from the Bayldon area. An older member of the group had access to a car with a flat battery. He offered to take the boys out joy riding provided a battery could be found. Luke suggested taking the battery from the prisoner’s vehicle. The prisoner was accustomed to leaving a window open so that Luke had free access to the house. His car keys were located inside the house. Luke collected the keys and opened the bonnet of the car and stole the battery. He and some of the other lads carried it to their friend’s home.

7    The prisoner spent that Friday helping his former sister-in-law who was moving house. When he returned home that evening he discovered the theft of his battery. He spoke to a neighbour who informed him that Luke and some of the other boys had been seen hanging around the car. The prisoner contacted the police who commenced to make inquiries about the theft.

8    Around 10.30 pm on the evening of Friday 30 July Luke parted company with his young friends saying that he was going to stay at the prisoner’s home for one more night. He was last seen alive walking up Hobbs Crescent towards the prisoner’s home.

9    Luke’s body was found near the Sealy Lookout, Coffs Harbour, on 10 August 1999. It had been left lying in bushland not far from the shoulder of the Sealy Lookout Road. The lower part of the body was wrapped in a black plastic garbage bag.

10    Dr Lawrence conducted the post-mortem examination. He observed a deep stab wound to the right side of the neck and a deep stab wound to the centre of the chest immediately above the heart. There was also a relatively minor stab wound to the right cheek. The wound to the right side of the neck was 115 mm long directed from right to left and downwards. It perforated the right jugular vein, the right carotid artery and padsed behind the oesophagus incising cervical structures and ending in the soft tissue at the base on the left side of the neck. This wound would have been fatal. The wound to the central chest penetrated to a depth of 110 mm. It perforated the sternum at the level of the second rib and past through the pericardial sac, penetrating the right atrium of the heart and the right lung. This wound would also have been fatal.

11    There were significant post-mortem injuries. The penis and scrotum had been cut off and placed separately with the body in the black garbage bag. The anus showed evidence of traumatic injury being a tear on the left side near the anal verge measuring 12 mm. It was 18 mm deep. Dr Lawrence was not able to express an opinion as to the cause of this injury.

12    There was also a long incised wound on the right thigh at the groin. It extended down to the bone. There were six relatively superficial marks consistent with being saw marks at this site. It would seem that an attempt had been made to saw the right leg off, presumably in an endeavour to make the body easier to dispose of.

13    Police executed a Search Warrant on the prisoner’s premises on 14 August 1999. Among other things, a heavily stained foam mattress was located in pieces in the wheelie bin in the rear yard of the premises. A saw was also located in the wheelie bin. Both the staining on the mattress and on the saw returned a positive presumptive test for the presence of blood. A sample taken from the mattress was later analysed. This sample contained human DNA consistent with it being the DNA of the deceased. Police also observed some residual staining on the carpet in the second bedroom of the prisoner’s premises. This, too, upon analysis showed the presence of human DNA consistent with it being that of the deceased. Two marks consistent with being blood spatter were observed on the ceiling of the second bedroom.

14    The evidence disclosed that in the period following Luke’s disappearance the prisoner had engaged a carpet cleaner to clean the carpets at the Anderson Street home. The cleaner observed staining in the second bedroom and in the hallway, both of which required the use of degreaser.

15    After the execution of the search warrant at the prisoner’s home on 14 August the police took possession of the prisoner’s car, a Chrysler Scorpion, which was garaged at his family’s home at Glenreagh. An examination of the boot of that vehicle revealed apparent blood staining on a black mat together with flaky deposits of dried blood. There was evidence of apparent blood staining on the interior trim and the boot sill panel. Forensic analysis of a sample taken from the black mat showed the presence of human DNA consistent with it being the DNA of the deceased.

16    On the morning of Saturday 30 July the prisoner’s sister-in-law, Jillian Earea called to his home at around 10.00 am. She drove him to the family property at Glenreagh where he remained for the weekend. This was a pre-arranged trip. On the Sunday evening the prisoner’s brother, Michael, drove him back to Bayldon taking a spare battery. They planned to collect the prisoner’s Chrysler and take it back to Glenreagh. It needed work before being passed for registration.

17    On the drive back from Bayldon to Glenreagh the two brothers travelled in convoy; the prisoner in his Chrysler and Michael Earea in his Datsun sedan. On the way the prisoner stopped and told Michael that he needed to go to the toilet. The prisoner turned off the main road and drove down the Sealy Lookout Road. He was absent for about five minutes before re-joining his brother on the road to Glenreagh.

18    It was the Crown case that the prisoner had killed Luke sometime between 10.30 pm on the Friday evening and 10.00 am on the following morning when Jillian Earea arrived. He placed the body in the boot of his vehicle prior to Mrs Earea’s arrival and disposed of it on the evening of Sunday 1 August in the five minutes when he purported to have gone to the toilet.

19    The Crown opened its case upon the basis that the jury would be satisfied beyond reasonable doubt that at the time of stabbing the deceased in the neck and the chest it had been the prisoner’s intention thereby to kill him. The case was left to the jury upon that basis.

20    The prisoner gave evidence denying any involvement in the killing of the deceased. In his discussions with Ms Robilliard, who prepared a psychological report, he has maintained that stance.

21    I am satisfied beyond reasonable doubt that Luke was killed in the second bedroom of the prisoner’s house sometime after 10.30 pm on the night of Friday the 30th July and prior to 10.00 am Saturday the 31st July as the result of the infliction of the knife wounds to his neck and/or chest. At the time of the infliction of those wounds I am satisfied beyond reasonable doubt that it was the prisoner’s intention to kill Luke. I am satisfied beyond reasonable doubt that the prisoner placed the deceased’s body in the boot of his vehicle sometime prior to 10.00 am on the morning of Saturday 31 July and that by that time he had cut off the deceased’s penis and scrotum and he had endeavoured to saw the right leg off the body.

22    The circumstances surrounding the killing remain unexplained. I am not able to determine the motive for it. The post-mortem interference with the body is such as to bespeak a level of sexual pre-occupation or interest by the prisoner in the deceased at that time. I am not able to conclude beyond reasonable doubt that the killing was the result of any sexual motive. It is open that the precipitating event may have been a confrontation over the theft of the battery.

23    In written submissions the Crown did not seek to contend that this was a case in which it was appropriate to impose the maximum sentence. I consider that concession to be an appropriate one. There is no evidence that the killing was premeditated nor was the killing itself accompanied by features which would lead me to the view that the prisoner’s level of culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met by the imposition of the maximum sentence. In the Crown’s submission this is a case which calls for condign punishment by way of a sentence which is at the top of the range of determinate sentences for offences of murder committed by an offender possessed of an intention to kill.

24    There is force to the Crown’s submissions. The crime is objectively a most serious one. The prisoner, a man of mature years, twice stabbed the deceased intending thereby to kill him. The prisoner was a powerfully built man and the deceased a slightly built fourteen year old lad who was small for his age. The deceased was in the prisoner’s care and entitled to look to him for protection.

25    The desecration of the body speaks of the prisoner’s pursuit of some form of self gratification and of the absence of remorse for what he had done.

26    I turn now to a consideration of the prisoner’s subjective circumstances.

27    He is a person with a criminal record which was rightly characterised by the Crown Prosecutor as negligible. I put it to one side and treat him effectively as a person with no prior convictions.

28    The prisoner was interviewed by Anna Robilliard, psychologist, at the MRRC on 21 May 2001. Ms Robilliard’s report details his background and employment history. The prisoner appears to have had a somewhat emotionally deprived upbringing. He grew up in a home characterised by violent arguments between his parents. His father, a heavy drinker, is said to have been violent towards his mother. The prisoner was not himself the subject of physical abuse. His mother left the marriage when he was six years old leaving the prisoner and his brothers with their father. After a time the father arranged for them to be cared for by his aunt and mother who lived at Coffs Harbour.

29    The prisoner is assessed as being of average intelligence. He was educated at Catholic schools in the Coffs Harbour area. He left at the end of second form at the age of fifteen years. He obtained employment working in the saw milling industry. He was continuously employed for ten years at a sawmill at Woolgoolga until about 1991. He left that employment on medical advice. In 1992 he obtained work as a cleaner at a local club. For some time prior to the killing he had been largely unemployed, although it would seem he had made efforts to obtain employment. He reported little in the way of emotional attachments as an adult.

30    The prisoner gave no history of psychiatric illness or treatment. In Ms Robilliard’s opinion he did not present with any signs of formal thought disorder, nor did she observe any signs of depression. Ms Robilliard conducted personality testing on the prisoner. He achieved a significant score for symptoms consistent with Schizotypal personality disorder. People meeting this profile typically lead socially isolated lives entertaining very few close social or emotional attachments.

31    Ms Robilliard put it this way:

“This man tested out in the average range of intelligence. …
His performance on the personality test given described a socially isolated and inept individual. Deep seated feelings of worthlessness and vulnerability are also described. His strong score of the Schizotypal dimension is consistent with severe personality pathology that would be expected to have a profound dysfunctional impact on his life.”

32    It is to be noted that the prisoner reported to Ms Robilliard that it had been put about within the prison population that he was a paedophile. He expected to face difficulties in this regard within the prison setting. This is a matter which it is appropriate to have regard to in determining the sentence to be imposed upon him.

33    A number of references were tendered on the prisoner’s behalf. These included testimonials from his brother, David, his cousin Bruce, David’s former wife, Helen and his niece, Nicole. Generally these close family members describe the prisoner as a person who was always willing to lend a hand and as one who actively participated in family activities. His cousin, Bruce, described the prisoner as caring for his aging grandmother at a time when the other brothers had left home. On occasions the prisoner acted as a baby-sitter for both his brother’s and his cousin’s children. Neither had any cause for concern. This positive view of the prisoner is supported by a number of references from friends and acquaintances who have known him over many years.

34    For a man with the personality profile described by Ms Robilliard it is noteworthy that so many people, aware of the offence of which he has been convicted, come forward to speak in such warm terms about him. I accept that the prisoner is a man who, despite his difficulties in life, has demonstrated a capacity for kindness and concern for others over the course of his adult years. He stands for sentence as a person otherwise of good character. This is a matter to be taken into account for the reasons explained in the judgments in Ryan v The Queen [2001] HCA 221 at [25] [31] [108] & [178]. However, in the light of the circumstances of this offence it is a matter to which comparatively little weight may be given. The killing of the boy in the prisoner’s care is unexplained. There is nothing to suggest that the prisoner has insight into what led to his crime. There is no psychiatric or other medical evidence to cast light on the prisoner’s motivation for his crime or the prospects for his rehabilitation.

35    The objective seriousness of this case calls for a sentence which places emphasis on considerations both of retribution and deterrence. The prisoner’s crime is not mitigated by any evidence of remorse.

36    I take into account that the prisoner has already been subject to rumours within the prison population that he is a paedophile and that his experience of custody is likely to be made the more rigorous on this account. I propose discounting the sentence that I would otherwise impose to some degree to take into account this consideration.

37 Mr Segal, who appeared for the prisoner, submitted that I would find that this was a case in which special circumstances justified a departure from the statutory proportion as between the sentence and the non parole period. His submission was based upon the need for the prisoner to have a lengthy period under supervision with the benefit of appropriate psychological counselling. I approach the matter upon the basis that the prisoner is a person who has prospects of rehabilitation in the event that he comes to terms with his crime. I acknowledge that he will require support including, it might be thought, psychological counselling upon his eventual release from custody. However, the sentence which I feel compelled to impose will allow of a relatively lengthy period during which the prisoner will be eligible for release on parole under supervision. For this reason I do not consider that special circumstances exist for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 such as to make it appropriate to specify a non parole period of less than three quarters of the sentence.

ORDER

David John McIntyre I sentence you to a term of twenty-two years imprisonment to date from 14 August 1999. I specify a non parole period of seventeen years. The first date upon which you will be eligible for release on parole is 13 August 2016.

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Last Modified: 06/20/2001