Regina v McDONNELL [1999] NSWSC 792

Reported Decision : 107 A Crim R 151

New South Wales Supreme Court CITATION : Regina v McDONNELL [1999] NSWSC 792 CURRENT JURISDICTION : CRIMINAL FILE NUMBER(S) : 98/007 HEARING DATE(S) : 30 April, 1999 JUDGMENT DATE : 11 May 1999

PARTIES : Regina v Noel McDONNELL JUDGMENT OF : Smart AJ at 1-47

COUNSEL : J Nicholson SC for the Applicant P Berman for the Crown SOLICITORS : T A Murphy for the Applicant S E O'Connor for the Crown CATCHWORDS : Criminal Law Release on licence after murder conviction; breach of condition many years later; re-arrest; re-determination of life sentence. ACTS CITED : s 13A of the Sentencing Act 1989 s 463 of the Crimes Act, 1900 R v Boylan (unreported CCA, 21/2/95 CASES CITED : R v Slater and R v Fuller (1982) 6 A Crim R 424 R v King, CCA, unreported, 24/2/98 R v Irving, Wood CJ at CL, unreported 10/6/98 DECISION : Refer para 47

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

CORAM : SMART AJ

TUESDAY, 11 May 1999

No 98/007 Application of NOEL McDONNELL pursuant to Section 13A of the Sentencing Act 1989

JUDGMENT

1 SMART AJ : Noel McDonnell applies pursuant to section 13A of the Sentencing Act, 1989 for an order determining a minimum term and an additional term for the life sentence imposed upon him on 6 April 1978 by this Court for the murder of Kenneth Joseph Minall at Albury on 10 September 1977. 2 The application has some unusual features in that the applicant was released on licence to be at large pursuant to section 463 of the Crimes Act 1900 on 22 June 1983 and remained at large in the community until his arrest on 20 August 1998, his licence having been revoked by the Parole Board on 30 July 1998. The catalyst for the Board's action was his conviction for assault in the Albury Local Court on 25 June 1998, the order that he perform 150 hours community service and his breach of that order. The ground on which the licence was cancelled was breach of condition 3 that the offender should be of good behaviour during the term of the Licence. 3 The licence issued followed the standard form and contained the deficiencies which were discussed in R v Boylan, unreported CCA, 21 February 1995. It should have made it clear that it was for the unexpired portion of the life sentence in accordance with s.463 of the Crimes Act, 1900. It stated that it was to commence on the date of release (22 June 1983) and terminate on 21 June 1988. What was meant was that the applicant would report fortnightly, or as otherwise required and accept Departmental supervision for five years. He had to keep the Department advised of his residential address and employment and not change them without the consent of his Probation and Parole Officer. The conditions as to good behaviour and not associating with persons of bad character lasted throughout the licence. 4 It was the practice of the Department to supervise licensees for five years and then treat the licensee as being no longer subject to supervision. On 22 June 1998 the Probation and Parole Officer at Albury wrote to the applicant in these terms: "This is to notify you that you are no longer required to report to the Probation and Parole Service in accordance with your licence. The expiry date of your Licence is 21st June 1988. Good luck for the future." 5 The officer records that on 22 June 1988 he spoke to the applicant at the Department's office. He explained that the licence expired on 21 June 1988 after five years of supervision. The officer noted that the applicant planned to travel with his wife and three children to Queensland. The applicant told the officer that he would make every effort to remain offence free. What the officer stated was not the whole position. The applicant believed he had completed his sentence and was no longer subject to the conditions of the licence. The applicant's ability to read and write was very limited. He would not have understood the licence as has been explained by the Court of Criminal Appeal. The licence is expressed in confusing verbiage and on its face it appears to be a licence for five years. 6 During the five year period the applicant received warning letters from the Release on Licence Board dated 29 November 1985, 19 February 1987 and 22 December 1987. There were some relatively minor offences and, on occasions, he drank too much. He was amenable to supervision and co-operative. He accepted the advice of his Probation and Parole Officers and was guided back to acceptable behaviour. He experienced difficulty in obtaining continuing employment and that probably contributed to his drinking. 7 The applicant was released on licence consequent upon this recommendation of the Indeterminate Sentence Committee (ISC): "… in terms of the Crimes (Homicide) Amendment Act 1982 McDonnell's case is analogous to that of R v Slater - Fuller and that a determinate sentence would have been given if he was convicted since May, 1982. As McDonnell has now completed 5 years eight months the Committee considers that he should be released at this time." 8 In R v Slater and R v Fuller (1982) 6 A Crim R 424) the appellants had been convicted of murder. The directions as to intoxication and common purpose were erroneous. Verdicts of manslaughter were substituted. The facts in Slater and Fuller bear some resemblance to those in the present case. A young man was punched, knocked to the ground and kicked, suffering multiple fractures of the skull. The report does not disclose the sentence imposed for manslaughter but it may have been in the order of that which the applicant had served. In Slater and Fuller there was a joint attack and the injuries inflicted were more extensive. The reasoning of the ISC appears to have been based on a factual analogy and does not seem to have taken into account the differences between a conviction for murder and a conviction for manslaughter. The facts were regarded as all important. The ISC thought that the applicant should be dealt with in substantially the same way as Slater and Fuller. 9 In 1983 there was a policy, even for serious crimes, of the early release of young offenders who had made good progress in prison, were substantially rehabilitated, were unlikely to re-offend and had served a considerable period (over 5 years, it seems) in gaol. In 1985 there was a major attack in the media on this policy, with reference being made to the cases of some of those who had been released. This made the applicant anxious. The important point is that the applicant was released. The release over 15 years ago a result of defective reasoning is not of moment after such a lapse of time. 10 I turn now to the facts of the murder. On 10 September 1977 Mr and Mrs Minall had spent the day drinking at home and in hotels. A blood sample from the deceased taken during the post mortem examination some 14 hours after his death revealed a blood alcohol reading of 0.365. On their way home they stopped at a bottle shop near their home and Mrs Minall purchased some bottles of beer. On resuming their journey she was in front carrying the beer and he abused her in obscene terms. At this point the applicant came on the scene (eating some chips) and remonstrated with Mr Minall for swearing at the lady. While his wife continued towards her home Mr Minall swung a punch at the applicant which hit him on the shoulder. In his record of interview (Q & A 81) the applicant stated that this made him "wild". He had intended to walk away from Mr Minall until he hit him. In his record of interview this passage appears: "Q47 Will you explain that fight to me? A. He swung at me, so I hit him.