R v Hodge [2000] NSWSC 897

New South Wales Supreme Court

CITATION : R v Hodge [2000] NSWSC 897 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70062/99 HEARING DATE(S) : 4, 5, 6, 7, 10, 11 July and 25 August 2000 JUDGMENT DATE : 6 September 2000

PARTIES : Regina Barrie Alan Hodge (Prisoner) JUDGMENT OF : Dunford J

COUNSEL : Ms MM Cunneen (Crown) Mr MJ Ierace SC (Prisoner) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Prisoner) CATCHWORDS : CRIMINAL LAW - sentencing - murder - stale offence - circumstances of provocation but defence not available CASES CITED : R v Todd [1982] 2 NSWLR 517 R v Blanco [1999] NSWCCA 121 DECISION : See para 31.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J 6 SEPTEMBER 2000 70062/99 R v Barrie Alan HODGE SENTENCE 1 HIS HONOUR: The prisoner, Barrie Alan Hodge, stands for sentence today having been found guilty by the jury of the murder of Leo Leslie Press at Harbord on 13 February 1988. 2 The prisoner who was then aged 18 years, attended a party at Chatswood on the evening of Friday 12 February. Whilst there he drank some beer and inhaled one line of what he believed to be speed or amphetamines. After getting a lift with a friend to the Manly area where he dropped off his then girlfriend, Karen Rudall, at her home, he was intending to hitch a ride to where he was living at Beacon Hill. It appears that the deceased stopped in his car and offered the prisoner a lift which the latter accepted, and then invited him to go to his house at Harbord for a few more drinks. 3 The deceased was discovered in the hallway near the front door of his home at about 4 am the following morning by his brother when the latter returned home after his work at the bakery which they jointly owned. He died at about 9 o'clock that morning, as a result of multiple head injuries predominantly to the rear right hand side of the skull consistently with having been struck by a stonemason's mallet, found approximately four to five inches from where he was lying. 4 In the mean time, the prisoner returned to his girlfriend's house at Manly. He was shaking and crying, and had blood on his clothes. He told her that he thought that he had killed someone. He then got a taxi back to his home at Beacon Hill, changed his clothes and went to the home of another friend of his, Peter Somers, at whose house the party had been the previous evening. He told him that when hitchhiking home from his girlfriend's place he met a person who asked him back for a few beers, he went to sleep, and later the person came up behind him and grabbed him in a sexual sort of way, as a result of which he had hit him and he thought he had killed him. A few weeks later, at a party in Manly, another friend, David Watts, saw the prisoner distressed and crying and when pressed, the prisoner told him that he had gone to this person's place to have a couple of beers, that he was tired, he crashed out and whilst sleeping he felt someone fondling him and he had hit him. He was not sure whether he had hurt him badly or not, but he had left him. 5 Although the discovery of the deceased dead in his home received publicity in the media, none of these friends of the prisoner informed the police of what he had told them. 6 When police went to the premises they found blood stains upstairs in the deceased's bedroom and a massive amount of blood near the deceased's body in the hallway on the lower floor near the front door. They also saw the stonemason's mallet near the deceased and evidence from the brother of the deceased established that this hammer belonged to the deceased and was normally kept in his toolbox. 7 His death was attributed to multiple head injuries, predominantly to the rear right hand side of the skull consistently with having been struck by the mallet which was found near the body, and the pathology evidence established that there had been between ten and twelve blows to the head with the mallet, resulting in two or three fractures of the skull, indicating a frenzied attack. 8 Police enquires established that although the deceased maintained an air of respectability, he was an active homosexual who was in the habit of going out driving between 11 pm and midnight, picking up young male hitchhikers to whom he made propositions of a sexual nature, returning a few hours later, and also bringing young men to the house at those times. 9 The only evidence tending to identify the deceased's assailant were finger prints on two of four mostly empty beer cans located on a table in the upstairs office of the deceased's premises. The police were unable to match those fingerprints with those of any person on their records, and so the investigation was closed; but following the Police Royal Commission it was reopened in about 1998, by which time the prisoner, who at the time of the killing had no adult convictions, had been convicted for a number of minor offences, including being carried in a stolen conveyance and driving with more than the prescribed content of alcohol, as a result of which his fingerprints were on record and they matched those on the beer cans. Further inquiries were made and ultimately the prisoner was arrested on 9 October 1998, interviewed and charged with murder. 10 At the trial, the prisoner who pleaded not guilty to murder but guilty of manslaughter, relied on the partial defence of provocation and claimed that he was provoked into doing what he did by a homosexual approach to him by the deceased. 11 He gave evidence and said that after dropping Miss Rudall at or near her house he endeavoured to hitch a ride back to his home in Beacon Hill, that a car stopped and the driver gave him a lift and then offered him a few more beers at his home, an offer which he accepted. He said that he cannot remember arriving at the deceased's house or getting out of the car, but remembers sitting in a soft chair. He said that he had some more beer and smoked some cigarettes, he was quite drunk, got tired and "crashed out" on a bed in the deceased's premises. 12 When he woke up he became aware that the deceased was touching him in the genital area in a sexual manner, he lashed out and got up, the next thing he remembers is being downstairs near the front door where the deceased again approached him, he saw the mallet, picked it up and hit the deceased twice. The next thing he remembers is being outside the premises disposing of the keys, hailing a taxi and going to his girlfriend's place where he told her he thought he had killed somebody. He denied any recollection of hitting the deceased ten to twelve times and denied that he hit him in a violent manner upstairs, although blood stains on the stairway indicated otherwise. 13 Having regard to the questions asked by the jury during their deliberations and making my own independent assessment of the evidence consistently with the findings of the jury, I am satisfied that the prisoner did form the intention to at least cause the deceased grievous bodily harm, and that he did so when he lost his self control as a result of provocation by the deceased in the form of an unwanted sexual advance, and at a time when he was affected to a degree by alcohol and possibly by drugs, but that the approach by the deceased was not such as would have caused an ordinary person of the prisoner's sex, age and maturity, unaffected by alcohol or drugs, to have so lost his self control to that degree. 14 The case is a tragic one, not only for the deceased who, whatever his shortcomings did not deserve to die in the manner in which he did, but it is also a tragedy for the prisoner and for his family. Whilst I appreciate the well known trait of the Australian character not to "dob" on another person, I am shocked and amazed that none of the persons to whom the accused confided that he believed he had killed someone reported such matters to the police. Loyalty to one's friends and a dislike of dobbers can be carried too far, as it was in this case which concerned a murder investigation. The result is that many years after the events the prisoner now stands to be sentenced for this tragic incident. 15 He was born on 19 September 1969 and at the time of the offence he was 18 years old. He is now almost 31. He grew up and was educated in Sydney and after leaving school has been in generally regular employment. At the time of his trial he and his wife were running a carpet cleaning business and a golf buggy repair business. He has been in a relationship with his wife for 7 years and they were married a year ago. They have a son aged 2 years, with another child expected in March next year. 16 He was at the time of the deceased's death a person of good character with no adult convictions and, except for the minor offences to which I have referred which are not relevant for the purposes of this case except in so far as they were the cause of him being identified as the killer, he is apart from this matter still a person of good character, and has been a worthwhile member of the community. In this regard I accept the bundle of character testimonials which have been tendered and which I have read. All the referees speak of his gentle non aggressive nature, honesty, trustworthiness and devotion to his wife and child. 17 Although the jury rejected the defence of provocation apparently for the reason I have indicated and with which conclusion I agree, I am satisfied that this offence was completely out of character and would not have been committed if the prisoner had not been affected by alcohol and/or drugs and if the deceased had not made the approach to him which I am satisfied he did make. Indeed the evidence of the drugs taken by the prisoner at the party he attended on the Friday evening is somewhat vague and it may be that he does not really know what such drugs contained. Although there is no evidence of it, there is also the possibility that the beers he consumed at the deceased's house contained some foreign substances. The killing was totally unpremeditated and unplanned. When he set out to hitch hike his way home after dropping off Miss Rudall, the prisoner had no intention of killing or hurting anyone, least of all the deceased, a person he had never met. 18 Whilst murder, which involves the killing of another human being with an intention to kill or inflict grievous bodily harm, is always a most serious offence and involves a high degree of criminality, these circumstances place this offence in the lower range of criminality for this particular crime. 19 Mr Ierace SC for the prisoner quite properly tendered a memorandum which I ordered to be kept confidential (Ex. 4). I have read it but it is totally irrelevant for sentencing purposes. I have also read the Victim Impact Statement of Miss Bernadette Press who shows herself to be a person of remarkable compassion and forgiveness, and I have taken her attitude into account. She also records that the prisoner has apologised to her for her uncle's death. I am satisfied of his contrition and remorse. 20 The prisoner was initially arrested and charged on 9 October 1998 and subsequently discharged at committal proceedings on 16 December 1998. After further investigations by police, he was re-arrested and re-charged on 22 January 1999 and committed for trial on 30 August 1999. Although this cannot be described as, or compared to, double jeopardy, it is a factor entitling the prisoner to some additional consideration. He was on bail at all times before and during the trial and went into custody on the date of the jury's verdict, 11 July 2000. 21 By pleading guilty to manslaughter he admitted liability for the killing and at the trial he did not dispute any of the substance of the Crown case, relying only on the defence of provocation, thereby considerably shortening the trial. 22 I have been referred by Mr Ierace SC to the sentences imposed in an number of other murder cases said to be at the lower end of the range; some of them have been of limited assistance, but each case is different and some of those cases involved much younger persons or persons with much more deprived backgrounds than this prisoner. I have also had regard to the statistics kept by the Judicial Commission, but they also are of only limited value in a case such as the present. 23 Sentencing in this case is complicated by a number of considerations, particularly the circumstances of the offence (which I have already observed place it in the lower range of criminality for cases of murder), the comparative youth of the prisoner at the time, and the staleness of the offence. 24 It is well established that in the case of young offenders general deterrence is of less, and rehabilitation of more, importance, but the cases refer specifically to juveniles (under 18) being dealt with as adults, rather than to persons aged 18 and over; in respect of whom the principle, though still relevant, is of less significance. 25 Delay in sentencing has been considered in a number of cases, the leading one of which is R v Todd [1982] 2 NSWLR 517, where Street CJ referred to the necessity in such cases for flexibility and fairness to the prisoner which may often result in what might otherwise be considered an undue degree of leniency. However, most of the cases dealing with the topic have concerned delays due to the court process or due to the prisoners being extradited from another state after serving sentences in that state for other offences, and not to cases where the delay has been due to police being unable to identify a suspect. See also Mill v The Queen (1988) 166 CLR 59 at 64-6. 26 The extent to which, if at all, the principle is to be applied in a particular case, depends on the circumstances of such case, see for example R v V (1998) 99 A Crim R 297 (sexual assault on a young child), R v King (CCA - 24 February 1998) (delay due to a successful appeal and retrial in a murder case), R v Carter [1999] NSWCCA 376 (delay substantially due to the applicant), R v Thomson (CCA - 18 June 1996) (sexual assault). 27 R v Blanco [1999] NSWCCA 121 was a case of a delay of over 4 years in the arrest in a drug importation case. Wood CJ at CL at [16] said: - "The reason why delay is to be taken into account in sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress towards rehabilitation during the intervening period; and thirdly, that sentencing for a stale crime does call for a measure of understanding and flexibility of approach."