Regina v McNamara

[2003] NSWSC 429

CITATION:	Regina v McNamara [2003] NSWSC 429
HEARING DATE(S):	28.10.02; 29.10.02; 30.10.02; 31.10.02; 4.11.02; 5.11.02; 6.11.02; 7.11.02; 8.11.02; 11.11.02; 12.11.02; 13.11.02; 14.11.02; 17.12.02; 07.02.03
JUDGMENT DATE:	23 May 2003
JUDGMENT OF:	Hidden J at 1
DECISION:	9 years npp 6½ years
CATCHWORDS:	CRIMINAL LAW: Sentence - manslaughter - unlawful and dangerous act - killing of offender's mother.
PARTIES :	Crown Noel David McNamara
FILE NUMBER(S):	SC 70045/02
COUNSEL:	B Newport QC - Crown A Haesler - Offender
SOLICITORS:	SE O'Connor - Crown Mark Rumore - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday, 23 May, 2003

070045/02 – REGINA v Noel David McNAMARA

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Noel David McNamara, was tried before me upon an indictment charging that he murdered his mother, Joan Doris McNamara, at her home at Tregear on or about 21 February 2000. The jury found him not guilty of murder but guilty of manslaughter.

2 The offender had denied that it was he who brought about his mother’s death, and that was the central issue at the trial. The only basis upon which manslaughter was left to the jury was that they were satisfied that the offender was the killer but were not satisfied that he had any of the states of mind requisite for murder. Accordingly, he stands for sentence on the basis that he killed his mother by an attack which was both unlawful and dangerous, but without an intention to kill or inflict grievous bodily harm or a reckless indifference to human life.

Facts

3 Some time in the morning of 21 February 2000 the offender attacked his mother, beating her severely. Exactly how her injuries were inflicted is unclear. However, on post mortem examination extensive bruising was observed to the deceased’s head, neck, torso and limbs. More importantly, there were fractures to her sternum and most of her ribs, causing a flail segment which inhibited her breathing. How long she might have remained conscious after the attack is also unclear, but for however long it was she would have been in great pain.

4 The offender had been living with his mother for some months prior to the incident. He had previously been in a relationship with Ms Rayelene Gordon and they had two children. The relationship had come to an end and he and Ms Gordon were at loggerheads about the children, to whom he was unable to have access. His distress about this was exacerbated by his perception that his mother took Ms Gordon’s side in this dispute and did not give him the support to which he felt he was entitled. This led to arguments between them, in which he was abusive towards her. There was some evidence that he was also physically violent towards her prior to the fatal incident, but that evidence was unsatisfactory and I do not have regard to it for the purpose of sentence.

5 As the offender continues to maintain his innocence, it is not possible to know precisely what led to the homicidal attack on the occasion in question. No doubt, however, it is in this background that the explanation is to be found. The attack has all the hallmarks of being perpetrated spontaneously, in a rage. This is so notwithstanding that the offender appears to have made some attempt to clean up the area of the house where the killing took place and behaved from the outset in such a way as to suggest that he was not the person responsible.

Subjective case:

6 The offender was twenty-nine years old at the time of the offence and is now thirty-two. He has a criminal record, the only entries of significance being convictions for assault occasioning actual bodily harm in 1996, for which he was placed on a bond, and maliciously inflicting grievous bodily harm in 1997, for which he was sentenced to twelve months imprisonment. The victim of both offences was Ms Gordon. On the first occasion he struck her on the face with his open hand during an argument. The second occasion was a serious assault, causing injuries which required her admission to hospital. The offender admitted that offence, although he disputed Ms Gordon’s account of how the assault was perpetrated and what led to it. Ms Gordon said that he attacked her because he believed that she was having an affair, whereas he claimed that he was enraged by discreditable behaviour on her part, the nature of which I need not describe.

7 The offender was charged with three other offences alleged to have been committed against Ms Gordon in March and April 1999. He was found guilty of two of those offences at a trial in May 2000, but those convictions were later set aside by the Court of Criminal Appeal: Reg v McNamara [2002] NSWCCA 248. The only relevance of this for present purposes is that he was on bail, awaiting his trial in respect of those offences, at the time of the killing. He was not arrested for this matter until 19 December 2000. He has been in custody since and it is common ground that the sentence I pass should date from that day.

8 The offender has two older brothers and three older sisters. Before he killed his mother his relationship with his siblings was strained, as he felt that they also tended to side with Ms Gordon in disputes arising from their relationship. Since his arrest for this offence he has maintained contact with one of his sisters, who appears to be supportive of him. I imagine that his relationship with his other siblings has been irreparably damaged.

9 His parents separated when he was only two years old and he was brought up by his mother. He had limited contact with his father, who was killed in a car accident in 1993. He was educated to year 10 standard and, putting aside periods in custody, was employed somewhat irregularly in unskilled positions.

10 Although not himself a member of any bikers’ gang, he appears to have had some association with bikers over the years. He gave an account of this to Dr Stephen Allnutt, psychiatrist, who prepared a report for the purpose of sentence, and there was some evidence about it in the trial. He told Dr Allnutt that a friend of his was murdered by bikers in the early 1990’s, and that he assisted the authorities in the prosecution of that case. Thereafter, he said, he was assaulted and threatened by bikers. Because of this, he tended in more recent years to live what Dr Allnutt described as “a relatively itinerant lifestyle”, so as to conceal his whereabouts. Dr Allnutt considered whether this account was delusional but concluded that it was not, particularly as it found some support in the evidence of witnesses in the trial. I accept that he was under some kind of threat from bikers, whatever the reason might have been, and that this was a stressor in his life at the time he killed his mother. However, of itself, this is a matter of limited significance for the purpose of sentence.

11 After a careful consideration of the material provided to him and the history furnished by the offender, Dr Allnutt did not diagnose a mental illness or an anti-social personality disorder. Nevertheless, he recognised what he termed the “risk factors associated with violent recidivism”: in particular, the offender’s history of violence towards Ms Gordon, his tendency to impulsive behaviour, his anti-social associates and his itinerant lifestyle. To address that risk the doctor recommended anger management counselling. He also recommended drug and alcohol counselling, although the offender’s history does not disclose a significant problem of substance abuse.

Sentencing

12 The offender killed his mother during a stressful period of his life in an outburst of anger over an issue about which, no doubt, he had strong feelings. Nevertheless, the attack was brutal and the offence is a serious one within this category of manslaughter. In addition, he has previous convictions for violence and was on bail at the relevant time.

13 The possibility of further acts of violence by the offender, particularly in the context of a relationship with someone to whom he is emotionally attached, is a matter of concern and cannot be ignored. Dr Allnutt did not attempt to assess the likelihood of his re-offending in that way although, in the offender’s favour, he noted that he had enjoyed a supportive family environment as a child and has the capacity to pursue gainful employment. As I have said, it seems that he can still look to one of his siblings for continuing support. On balance, with appropriate counselling while in custody and supervision upon his release, I think that there is a reasonable prospect that he will not re-offend. I strongly recommend to the Corrective Services authorities that he be afforded every opportunity to undergo the counselling which Dr Allnutt has advised.

14 I am indebted to counsel for their reference to a number of cases, both at first instance and on appeal, dealing with sentence for manslaughter. I have a schedule of cases of killings in a domestic setting, some of them being manslaughter by an unlawful and dangerous act and some on other bases of that crime. I have also been supplied with several decisions of the Court of Criminal Appeal on unlawful and dangerous act manslaughter, two of which are also in the domestic setting. It is unnecessary to refer to these cases in these remarks. I have found them helpful although, of course, each case must be judged upon its own facts and the breadth of discretion in sentencing for manslaughter is particularly wide.

15 In the light of the offender’s background, particularly in his adult years, and the matters raised in Dr Allnutt’s report, I think that there are special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. It is in the community’s interest that his rehabilitation be fostered by the opportunity for an extended period at liberty under supervision and subject to the sanction of parole. However, given the sentence which I propose, the need to set a non-parole period which reflects his criminality allows only a limited adjustment of that statutory proportion.

16 Noel David McNamara, you are sentenced to imprisonment for nine years, to date from 19 December 2000, with a non-parole period of six and a half years. You will be eligible for release on parole on 18 June 2007.

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Last Modified: 05/28/2003