R v STRAHAN [2000] NSWSC 537

New South Wales Supreme Court

CITATION : R v STRAHAN [2000] NSWSC 537 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70215/98 HEARING DATE(S) : 16/03/00, 31/03/00 JUDGMENT DATE : 31 March 2000

PARTIES : REGINA v Martin Francis STRAHAN JUDGMENT OF : Barr J at 1

COUNSEL : Crown: P Conlon Offender: WC Terracini SC SOLICITORS : Crown: SE O'Connor Offender: Keith Thomas & David St John CATCHWORDS : Criminal Law - sentencing - accessory after the fact of manslaughter DECISION : See paragraph 19.

THE SUPREME COURT REVISED OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 31 March 2000

70215/98 - REGINA v Martin Francis STRAHAN

JUDGMENT 1 HIS HONOUR: Martin Francis Strahan has pleaded guilty to being an accessory after the fact of the manslaughter by Brian John Robson of Ronald Charles Brotherton. The maximum penalty is imprisonment for five years. 2 The deceased, Ronald Charles Brotherton, was living in the Moruya area. He was out of a job and addicted to alcohol and illegal drugs. Mr and Mrs Brian Robson, who lived in the town of Moruya, took pity on him and invited him to stay with them and their seven children. 3 During the few months that he lived with the Robsons the deceased used heroin. That fact became known to the principal of the school attended by the Robson children and to other local authorities. The Department of Community Services threatened to remove the children from the household, asserting that they were not being properly looked after. That caused Mr and Mrs Robson to require the deceased to leave their house, and he did. 4 The deceased then presumed upon the offender and his de facto partner, Ms Leanne Elizabeth Holmes, to allow him to live with them. 5 The Robsons were not well off. In September 1997 they were preparing to move to Nowra and purchased a motor vehicle for that purpose for $300. They had spent several months working on it at a cost of at least $1,200 and the car was ready for registration by the end of September. 6 The deceased came to their house while the Robsons were away, stole the car, drove it off the road and badly damaged it. It was a write-off. He told them that he would pay for the repairs but nobody expected him to keep that promise. He had never repaid the kindnesses the Robsons and others had allowed him. 7 The offender and Ms Holmes were friends of the Robsons and were upset about what had happened. They in turn asked the deceased to leave, and he moved into the house of a man called Shipley about ten kilometres away. 8 One day, Mr Robson and the offender were at the Robsons' house talking about the deceased. Mr Robson asked the offender to give him a lift to Mr Shipley's house to see the deceased. Mr Robson was intending to give the deceased a beating. The offender knew what Mr Robson was intending to do. The two men drove to the Shipley house, leaving Mrs Robson and Ms Holmes at the Robsons' house. 9 Mr Robson encountered the deceased at the Shipley house and an argument and then a fight arose. Mr Robson dealt the deceased a number of savage blows with his fists and kicked him in the head. The deceased died. Although the offender was present, he took no part in the assault. 10 When the offender realised that Mr Robson had killed the deceased, he telephoned Ms Holmes and asked her to bring a tarpaulin to the house and that may have been, to some degree at least, born out of panic. Ms Holmes did so. The offender and Mr Robson wrapped the body of the deceased in the tarpaulin, put it into Ms Holmes' car, took it into the bush and dumped it. They then returned to where they had left Ms Holmes, collected her and went home. 11 Later on, the offender and Mr Robson returned to the Shipley house and burned a lounge chair and Mr Robson's clothes and shoes, which bore the blood of the deceased. 12 The killing remained undetected for six months. On 20 March 1998 the offender was interviewed by the police and gave the account which I have summarised. 13 Like Mr Robson, he was charged with murder and with being an accessory after the fact of murder. Later on, Mr Robson pleaded guilty to the manslaughter of the deceased and the Crown accepted that plea in discharge of the indictment. That led to a reduction in the charges against the offender and when he was arraigned on 16 March 2000 on charges of manslaughter and alternatively accessory after the fact of manslaughter, his plea of guilty to the alternative charge was accepted by the Crown in discharge of the indictment against him. He is therefore to be regarded as having offered his plea of guilty as soon as the Crown Prosecutor indicated that he was prepared to so accept it. 14 The offender is now twenty-five years old. He has lived in the Moruya area for a substantial part of his life, if not all of it. The Court has been told nothing about his childhood but he appears to have stayed out of trouble until 1995 when he was sentenced to four concurrent terms of three months' imprisonment on stealing charges. Then in November 1997 he was sentenced to a number of terms of imprisonment, the effective length of which was a term of one year comprising a minimum term of nine months and a fixed term of three months. The offences were committed before the offence for which the offender now has to be dealt and comprise being armed with intent to commit an indictable offence, possessing a shortened firearm being designed in some criminal manner, cultivating, possessing and using drugs. 15 The offender and his partner have a young child two and a half years of age. The offender's father, whom I accept as a reliable witness, gave evidence at this hearing and he says that the offender has settled down since the birth of the child, and I think that there are signs that he is now facing up to his responsibilities. He has been in no trouble now for more than two years and there is nothing against him since the matter for which I am obliged to sentence him. Notwithstanding the position in 1995 and 1997, when the offender appears by his record to have been involved with illegal drugs, he does not now seem to be involved with such drugs. He has been working satisfactorily for his father and the prospects seem reasonable that he will shoulder his responsibilities and continue to effect his own rehabilitation, which is what I believe is happening. 16 The offender pleaded guilty in the circumstances that I have described and that is some evidence of his remorse. So is the full and forthright account he gave to the police when he was asked about that. I accept the evidence of the offender's father that the offender is sorry for what he did. 17 The offence committed by the offender is a very serious one. It involved hiding a body and destroying other evidence. One effect was that the offence went unrealised and undetected for a long time. 18 It was submitted by Mr Terracini that I could properly impose a sentence of periodic detention and the Crown has put nothing against that submission. The offender has been assessed as suitable to serve a sentence of periodic detention. Notwithstanding the seriousness of the offence I think, in view of the substantial rehabilitation the offender has already achieved and is likely to continue to achieve, that it would be appropriate to impose a sentence of less than full-time custody and I propose to sentence the offender to periodic detention for three years. 19 Martin Francis Strahan, I sentence you to imprisonment for a fixed term of three years to be served by way of periodic detention. That sentence will commence on 14 April 2000 and expire on 13 April 2002. I direct you to report to the Unanderra Periodic Detention Centre no later than 4pm on Friday, 14 April 2000. **********