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Act 1900 on 22 June 1983 and remained at large in the community until his arrest on 20 August 1998, his licence having been revoked by the Parole Board on 30 July 1998.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. Q48 Can you tell me why he swung at you? A. He must have thought I was cheeky. Q49 Is there any reason why he would think you were cheeky? A. I told him to stop swearing. Q50 Why did you tell him to stop swearing? A. Because there was a lady walking in front of him. Q51 After you told him to stop swearing what actually took place? A. I put my chips down, went to pick them up because he was too old and thats when he swung at me and then I hit with one and then the other and he went down. Q52 Can you tell me how he went down? A. He just fell down, I think it might have been face down. Q53 Will you tell me what you hit him with? A. Me fist. Q54 How many time did you hit him? A. Twice. Q55 Where did you hit him? A. In the face. Q56 What happened after he fell? A. He didn't move." 11 The applicant said that after this he ran away. The applicant thought that Mr Minall was about 45 and looked pretty drunk. 12 The applicant has at all times denied kicking Mr Minall. However two eye witnesses from different vantage points observed a young man kicking an object on the ground at the scene; one observed "about five kicks" and used the words "vicious and hard" to describe the kicks. The other observed "about half a dozen kicks". Both eye witnesses independently went to the scene and saw the body of the deceased lying, face upwards and a lot of blood on and around his face. 13 The applicant still does not believe that he kicked the deceased but he accepts that this Court must proceed on the basis that he did so. This does not reflect any lack of contrition. The applicant is unable to believe that he could have so kicked the deceased. His manner in the witness box was that of a man who was very sorry for what had happened, his actions and their consequences. 14 The causes of death were a fracture at the base of the skull, bruising to the posterior of the brain with haemorrhage and brain damage. A strong external force was applied. 15 The applicant made this statement to the jury: "Your Honour and gentlemen of the jury I am not guilty of this charge. What I have told the police in my interview is absolutely the truth. I did not know this man and the only reason I spoke to him was because he was swearing and I only hit him when he hit me. I did not kick him and all I done was in self defence. That day between12:00 and 6:00 pm. I had had about six cans of beer, quarter of a bottle of bourbon and about a quarter of a bottle of ouzo and I was pretty full when this happened. I did not intend to hurt him or to kill him and I want you to please believe me and find me 'Not Guilty'." 16 In his record of interview the applicant said that he went to a hotel and had a couple of drinks and thence to the tattooist where he played snooker and drank beer, bourbon and ouzo. He said that at the time of the incident he was affected by liquor but "it wasn't that bad". Subsequent events have shown that the applicant underestimates the effect of liquor upon him and the extent to which he is affected. 17 The applicant told the police that after he ran away he hid for a period in a stormwater drain and then went and saw some friends at the tattoo shop. The applicant says that in truth he went to the house of some friends immediately after the fight. He did not want them to become involved. It appears that he discussed the matter with some friends and that about 6 hours after the incident occurred he went to Albury Police Station and gave himself up having heard of the death of the deceased. Whether he would have been identified if he had not done this is not clear. 18 Upon the jury returning with a verdict of guilty of murder the applicant was called up for sentence. Immediately thereafter, the trial judge said: "For the crime of which you have been convicted the law imposes but one sentence and that is penal servitude for life. That is the sentence I impose." The judge was not provided with the applicant's antecedents as the sentence was mandatory. There was no occasion for the judge to say anything more. 19 In the Court of Criminal Appeal, Street CJ, with whom Collins and Lusher JJ agreed, described the attack as one characterised by vicious kicking and the Crown case as a strong one. The principal issue at the trial was whether the applicant kicked the deceased and that was resolved in the Crown's favour. 20 I am satisfied that the applicant's response to the obscene abuse was unplanned and spontaneous. There were no weapons and he was not looking for a fight. I am also satisfied that he had no intent to kill and that his intent was limited to inflicting grievous bodily harm. This latter intent was probably formed sometime after the fight started. The viciousness lay in the kicking. He went "wild" after the deceased punched him. The deceased would have been virtually helpless having regard to the liquor he had consumed. The applicant who was just 19, was not fully in control of himself due to the liquor he had consumed and had a gross over reaction. 21 The gravity of the offence is the paramount consideration. This murder was a little below the middle of the range of murders and towards the lower end of the range but not at the bottom of the range. The applicant had just turned 19 at the time of the offence and thus his rehabilitation was an important but a subsidiary factor. 22 The applicant's record prior to the murder was as follows:- 24.1.75 Albury Children's Court Stealing Fined $200 or 40 days detention upon entering recognizance $300 to be of good behaviour for 12 months. 7.4.75 Albury Children's Court Receiving Probation for 12 months; be of good behaviour and reside with parents. 12.2.77 Albury Petty Sessions 1.Unseemly words 1.Fined $100 in default 20 days hard labour. 2. Resist arrest 2.Fined $150 in default 30 days hard labour. 23 These matters are not of moment. The applicant's record after his release on licence is as follows:- 24.10.86 Albury Local Court Possess firearm having previously been convicted Proved and dismissed under section 556A. 23.11.87 Albury Local Court Possess prohibited drug (cannabis) Fined $250 or 5 days hard labour. 1 & 2. On each charge fined $150 10.7.89 Albury Local Court 1. Possess equipment for use in administration of prohibited drug 2. Administer prohibited drug.. 22.6.92 Albury Local Court Assault Fined $200 1.3.94 Albury Local Court Assault (indictable) Fined $300. Pay court costs $46 1. Stealing 1. Fined $500. Pay court costs $46. Pay compensation $9.96. 30.6.94 Albury Local Court 2. Fined $500. Pay court costs $46. 2. Assault 1&2. On each charge Fined $250. Pay Court costs $46. 9.8.95 Holbrook Local Court 1. Custody of offensive implement 2. Possess equipment for administration of prohibited drug. 29.8.95 Holbrook Local Court Public mischief Fined $500. Pay Court costs $50. Pay compensation $495. 18.12.95 Albury Local Court Mid range prescribed concentration of alcohol 1. Fined $450. Pay Court costs $50. Licence disqualified for 6 months. 3.4.96 Holbrook Local Court Common assault Fixed term of 6 weeks. 5.7.96 Albury Local Court 1. Breach of apprehended violence order 1. Recognizance s558 to be of good behaviour for 2 years. 2. Resist police 2. Fined $200. Pay Court costs $50. 3.Resist police 3. Rising of the Court. 8.12.97 Albury Local Court Contravene apprehended domestic violence order Fined $500. Pay Court costs $51. 1.6.98 Albury Local Court Mid range prescribed concentration of alcohol Fined $600. Pay Court costs $51. Licence disqualified for 6 months. 25.6.98 Albury Local Court Assault 150 hours community service order. 7.9.98 Albury Local Court Breach of Community Service Order 6 weeks imprisonment to commence 20.8.98. 24 The matters of 24 October 1986 and 23 November 1987 were the subject of warnings from the Release on Licence Board. Some time after the 5 years expired in June 1988 the applicant, his wife and their family went to South Australia and matters went well. They returned to the Albury district. The applicant obtained employment from time to time but there were difficulties in obtaining constant employment. Periods of unemployment led to a shortage of money in the family and consequent friction. He told Dr Wilcox that his wife had joined a Christian church or cult and that Church members had told her that he was possessed of the devil. He did not like her behaviour or her " doing silly things ". All this put a strain on the marriage and there were many arguments. The applicant drank to excess and committed offences. 25 The convictions of 1 March 1994 and 3 April 1996 involved assaults on the applicant's wife and the convictions for breaches of apprehended violence orders also involved his wife. The conviction for assault on 25 June 1998 involved his wife as the victim. He became angry when he found his eldest daughter was not at school and his wife in bed. The breach of the Community Service Order involved the applicant leaving assigned work at the Culcairn Golf Club without permission. He contended that the machine which he was asked to operate was not safe as it did not have a roll bar. There was, apparently, no other community service work available in Culcairn. 26 The applicant did not receive a warning after the 1992 or 1994 offences or at any later time that his licence could be revoked. Nor was he told this prior to revocation of the licence or in 1988 when the five year period expired. 27 The applicant's family has four children, aged 16 to 10. He does not know whether it will be possible for him to have a relationship with his wife. They separated on 25 June 1998. He wishes to maintain contact with his children and participate in rearing them. There has been no marriage counselling. During his current time in custody he has had weekly telephone contact with his children and 2 visits. They live in the country. His wife was present at the hearing and was obviously concerned about him. 28 The Quarries Manager, Boral Group, in his reference of 28 August 1998 has written: "During the time Noel was employed at the Culcairn Quarry he was always punctual, reliable and hardworking. Noel always related well to all other staff members and carried out all work related requests enthusiastically and diligently. Noel finished at Culcairn Quarry due to shortage of work. Since I have been at Teven Quarry, one month, Noel has made the 7km walk once a week to personally enquire about employment and has also rang the Quarry regularly during this time. I was more than happy to reinstate Noel for further employment as our work load increased in the near future. " 29 In his reference of 14 April 1999 he wrote: "In regards to Noel McDonald as you may not be aware that when Noel was staying in Ballina before he was imprisoned Noel was two days off starting work at Borals Teven Quarry. In the past I have had Noel working for me as a fixed plant operator, and later as a lab technician, in the role as a technician a lot of Noels work was done off site and unsupervised. Noel didn't have any difficulties in performing any task that was set for him. My personal and professional opinion of Noel is that he is hard working reliable and honest. If you need further reference regarding Noel please don't hesitate to contact me. Phone 026687881 at home or work on 026687360." 30 The applicant has been trained for the work mentioned and was anxious to embark upon that work as soon as possible. He believes there is still a position for him. He is prepared to move from quarry to quarry with Boral to retain employment. 31 In her interview of almost 2 hours on 24 April 1999 Dr Rosalie Wilcox, a psychiatrist, obtained some of his history. That has proved helpful. I have incorporated some of it earlier in these reasons. 32 As to his alcohol problem, the applicant does not appear to have had any physical symptoms but it has given rise to significant social problems. The doctor stated that the applicant was quite resistant to accepting that he had a problem with alcohol and tended to blame others rather than take responsibilities for his own actions. He told the doctor that he would not be keen on being told that he had to give up alcohol but that if he was required to do so he would stop drinking. 33 Dr Wilcox concluded: "Mr McDonell is not by nature a violent or anti-social man. However, under the influence of alcohol he becomes argumentative, his ability to control his temper is reduced and he can act in an aggressive manner. In addition he has minimal insight into the relationship between his level of intoxication and his offending behaviour. Although Mr McDonell can be impulsive he has also shown that he can be reliable and take direction. The majority of his parole reports in the first five years following his release were favourable. Most of his charges have been associated with marital conflict. However it is my opinion that while Mr McDonell continues to abuse alcohol he will pose a possible future risk to the community, in particular, his wife. If Mr McDonell is able to become abstinent from alcohol and has the opportunity to have ongoing support and supervision in relation to his alcohol abuse, then the future risk to the community and his wife should be significantly reduced. Although he has made a decision to separate from his wife, I believe it would be still beneficial for them to have marital counselling in order to improve their communication as he is going to continue to have some form of contact with his wife due to his desire to maintain his relationship with his children." 34 I think that the future relationship between the applicant and his wife is unresolved. I would not be prepared to say what is likely to happen. 35 In his evidence the applicant said that he was not going to drink in the future and that although he has known for years that when he drinks alcohol he gets into trouble he had not faced up to this. 36 I think that by the time the applicant reached the witness box he believed that he had to agree to give up consuming alcoholic drinks to have a good chance of being released at a relatively early date. Previously he gave up drinking alcoholic substances for about three years when that was required. Such is the desire of the applicant to leave prison, he will abstain from drinking alcohol if that is a condition of his release and remaining at large. 37 The applicant is not an easy person from whom to obtain information. This is not due to any lack of frankness or untruthfulness but to his defensiveness and his inability to express him adequately. It is necessary to speak to him at a level which he understands. Even now he reads, writes and comprehends with difficulty. During the hearing he had to be helped to sort out the few papers which he had. I would not expect him to be able to tell either his legal advisers or a doctor all relevant factors. He needs to be directed to particular subjects. He does not appreciate what was and is important in a legal context. I found that it was possible, by the appropriate manner and language to establish a rapport with him but he still does not do himself justice when speaking. This was a case in which seeing and hearing the applicant was of considerable assistance. 38 Section 13A(4A) of the Crimes Act 1900 requires the Court to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time. I have also had regard to the matters specified in s 13A(9). If I had been dealing with this matter on the basis that the applicant had remained in full time custody then taking into account the seriousness of the offence, but given his good performance in gaol and his age of 19 at the time of commission of the crime I would probably have imposed a minimum term of 11 years and an additional term of 7 years. 39 Reading , CCA Unreported, 30 June 1998 makes it clear that the sentence imposed runs while the applicant was on licence and living in the community. Sheller JA said at 24: "… the Court must, when setting a minimum term, and an additional term in place of a life sentence, take account of any period during which the applicant was at large under licence and to be taken to have been or be serving the sentence of life imprisonment." At 29-30 Sheller JA continued: "… there is a significant difference, in terms of the principles of sentencing, between a person serving a sentence in custody and a person serving part of the sentence on parole. However, during the period of licence the appellant was subjected to what Yeldham J in Haley v Commissioner of Corrective Services at 120 described as stringent restrictions upon his movements and conduct, greater during the five year period for which the licence was originally granted, but stringent even so, during the balance. For example, if the view expressed by Smart J in Boylan is right, the appellant was prohibited from leaving the State of New South Wales. On any view, a citizen at large only because of and subject to an executive licence is not free. Such a regime infringes to a considerable extent personal liberty. In my opinion, when coming to set a sentence pursuant to s 13A(4) the period of licence must be treated as part of the sentence served with due recognition of the fact that it is not the equivalent of full time custody." 40 Section 463 of the Crimes Act requires the licence to specify the limits within which the applicant is to be at large. Those limits may be extended, as they were in this case. 41 To allow for the fact that being at large under licence is not as onerous as full time custody, the courts have extended the minimum and additional terms to ensure that the applicant spends sufficiently long in full time custody: see R v L.M. King , CCA, Unreported, 24 February 1998 and R v D.B. Irving , Wood CJ at CL, Unreported 10 June 1998. 42 The applicant was in custody from 11 September 1977 to 22 June 1983, a period of 5 years 9 months and 11 days. He has been in custody from 21 August 1998 to 11 May 1999, a period of 8 months 20 days, a total of 6 years 6 months. I have to allow for the period of 5 years when he was under the close supervision of the Probation and Parole Service (i.e. 22 June 1983 to 21 June 1988). From that date until 20 August 1998 the applicant has been on licence subject to the condition of good behaviour, and liable to have his licence revoked although he did not realise this until the revocation occurred, nobody having told him and the licence being on its face for 5 years. If the applicant had realised that he could be returned to prison after the expiration of the five years he would have been more careful and taken more steps to ensure that he did nothing which would lead to his return to prison. While there have been a number of lesser offences there has been no major offence. 43 My approach has been to take the six and one half years that the applicant has spent in prison and to make a significant allowance of five years for the time spent on licence when he was under the close supervision of the Probation and Parole Service and a lesser allowance for the next years spent on licence. I have also taken into account the confusing terms of the licence that on its face it appeared to be for five years and that the applicant was given to understand that after he completed his five year supervision period he was at large without restrictions. 44 I do not think that I should ignore that the Executive assessed that 5 years 9 months 11 days was a sufficient period for the applicant to spend in prison. I have to fix the minimum term which the applicant must serve in prison prior to becoming eligible for release on parole. I do not think that he is required to spend any more time in prison. The time of his release on parole is a matter for the Parole Board. 45 The applicant will need supervision after his release from prison to ensure that he does not drink alcoholic liquors. A term to this effect should be incorporated into his release documents. 46 The sentence must date from the day on which the applicant was first taken into custody. The correct sentence is one comprising a minimum term of 16 years and an additional term of 10 years. These unusual figures allow for the special facts and the exigencies of this case. 47 In lieu of the life sentence I sentence Noel McDonnell to penal servitude comprising a minimum term of 16 years commencing on 11 September 1977, and ending on 10 September1993 and an additional term of 12 years commencing on 11 September 1993. I regard about 4 years 3 months as being a sufficient period of supervision once the applicant is released. It is to be hoped that he will be able to procure a job at the Quarry. ************************ Last Modified: 01/07/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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