New South Wales Supreme Court CITATION : R v Hurley [2001] NSWSC 1007 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70045 of 2001 HEARING DATE(S) : 22 October - 2 November 2001 JUDGMENT DATE : 2 November 2001 PARTIES : REGINA v ROBERT HENRY HURLEY JUDGMENT OF : Levine J N Harrison (Crown) COUNSEL : T Healey (Offender) Office of the Director of Public Prosecutions (Crown) SOLICITORS : Weaver, Gentle & Harrison (Offender) CATCHWORDS : Murder - sentence - failed defence of substantial impairment by abnormality of mind LEGISLATION CITED : Crimes Act 1900 s 23A CASES CITED : Regina v Mathison [2001] NSWSC 332 DECISION : See paragraph 25 DLJ: 1 [2001] NSWSC 1007 IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DVISION 70045 of 2001 JUSTICE DAVID LEVINE FRIDAY 2 NOVEMBER 2001 REGINA v ROBERT HENRY HURLEY SENTENCE (Murder – sentence – failed defence of substantial impairment by abnormality of mind) 1 HIS HONOUR: On 24 October this year the offender was indicted for that, on or about 18 November 2000, at Tingha, he did murder Deidre Ann McCann. He pleaded not guilty to murder but guilty to manslaughter. It is clear that the plea of guilty to manslaughter was based upon the partial defence contained in s 23A of the Crimes Act 1900, was, namely, substantial impairment by abnormality of mind. The Crown did not accept the plea and thus the offender stood his trial for murder. It is also clear that the real issue at trial was the partial defence of substantial impairment, as I shall call it. 2 The offender was found guilty of murder by the jury yesterday, 1 November 2001. 3 The deceased and the offender had been estranged for just over two weeks at the time of the offence, after a relationship of about four years. The termination of that relationship was at the behest of the deceased, after which the offender was advised by friends and family "to leave her alone", "to give her space". He did not. 4 Given the issue at trial and the good sense which attended its litigation by both sides, the evidence called in the Crown case was really uncontested throughout. The offender did not himself give evidence, though he called Dr Nielssen, forensic psychiatrist, to support his defence. 5 The relationship, I am satisfied, was one in which the offender formed an affectionate bond, both with Miss McCann and her sons William and Patrick. It broke down however. The offender's attentions were unwanted in the short period referred to and, contrary to the advice he had received, as I have remarked, he was unaccepting of the end of the relationship and was, I accept, at least depressed by what had befallen him, as he saw it. 6 On the night of 17 and 18 November last year, he went to the deceased's house. The children were up, occupied in watching television and drawing. He had with him his knife from his fishing kit. 7 Beyond reasonable doubt I am satisfied that the offender beat the deceased with the timber tool handle; I am satisfied beyond reasonable doubt that he hit her on the head with the hammer; and I am satisfied beyond reasonable doubt that twice he stabbed her in the chest. As to the last mentioned, the evidence of Dr Cala persuades me that, in point of time, the stabbing was the last assault. The blow to the head and the stab wounds both could have caused death. 8 That sexual intercourse had taken place I am satisfied beyond reasonable doubt, but can come to no conclusion as to where, when and in what circumstances. Nor, in the light of my findings, do I consider it necessary to do so. 9 Save for my being satisfied that the stab wounds were inflicted in the bedroom whilst the victim was helpless and the beatings with the timber and the hammer had occurred elsewhere, commencing outside in the area of the toilet and carport, I can, on the evidence, come to no finding otherwise as to the order of events. I cannot, and do not, have to come to a finding of fact about the panties, nor do I, nor can I, in relation to the blood on the hood of the car. 10 I have no reason not to accept the evidence of Mr Blair as to what he heard. I have no reason not to accept the boys' evidence as to what they heard, saw and did at the offender's request, to go inside and, later, to go to bed, the last two events being evidence of some degree of awareness of circumstances and of control on the offender's part. 11 Insofar as the offender's account to Dr Delaforce is some evidence of what occurred according to the offender, I am not at all persuaded by it. There is, in my view, no rational basis for being satisfied that the relationship was a violent one. There is, in my view, no rational basis, on the evidence, or any support for the offender's reported complaint of his being sick of the bashings. I am satisfied beyond reasonable doubt, and there can be no question about it, that, on one occasion, in circumstances that will never be known in detail, the deceased threw a cup and the fan cover at the offender. 12 The deliberate nature of the offender's action with respect to the cordless phone, the timber in the sulo bin, the knife in the back pack after the events, amount to serious elements, in my view [see note]. 13 Ultimately I am satisfied beyond reasonable doubt that the offender struck and stabbed the deceased, the latter being consistent only with an intention to kill [see note]. 14 The fact that the murder occurred in the context of a break-down of a domestic relationship does not suggest in any way that it should thereby be considered less serious a murder. It was, objectively, a brutal and serious crime. 15 The jury's verdict represents the failure of the defence. That could have been on the basis that the jury was not satisfied, on the balance of probabilities, that there was impairment; that there was substantial impairment; that there was an underlying condition; that his capacity was impaired in the three relevant areas. Or it could be that the jury was satisfied of those matters but was not satisfied that they warranted the reduction of murder to manslaughter. The latter is the more favourable to the offender and I sentence on that basis. 16 The diagnosis of Dr Delaforce embraced that of Dr Nielssen. Dr Delaforce listed six conditions, or diagnoses, as follows: alcohol dependence; cannabis dependence; post traumatic stress disorder; panic disorder with agoraphobia; adjustment disorder with depressed mood; and avoidant personality disorder. 17 It is useful to remark that in the report tendered in the sentence proceedings but not in the trial, were some statements made by Dr Delaforce that were in fact in evidence in the trial; namely: "His mental disorders and therefore the abnormality of mind may not at the time of the offence have been relevant but made a great difference to his state of mind. Instead just human passion in the form of heightened anger and retribution may have been more relevant. However, it would be particularly difficult to exclude any significant connection between his mental disorders and his anger at the time of the offence." 18 The offender's personal history is well-documented in the psychiatric reports and other material provided to me on sentence, as it was in evidence in the course of the trial. I am persuaded that that history must lend itself to some degree of mitigation of penalty. However, in the light of the jury's verdict, not of culpability. 19 General deterrence cannot be ignored. There must be seen to be some coincidence between the punishment to be imposed and the rejection by the community, via the jury, of the conduct leading to the punishment. 20 The offender, I accept, is profoundly affected by both the death of Deidre and his having caused it. He is thirty-two years of age, has no relevant criminal antecedents, and has been in custody since 18 November 2000. 21 I have been referred to the sentence, and reasons therefor, imposed by Howie J in the case of Regina v Mathison [2001] NSWSC 332 on 11 May this year. No two cases are the same. Though the similarities between the matters dealt with by his Honour and by myself are stark, not least in the identity of the two psychiatrists who gave evidence before his Honour and me, there were matters, in my view however, (see particularly paragraphs 46 to 49 of his Honour's reasons), which clearly played a part in his Honour's conclusions but which are not here relevant. 22 It has been submitted that special circumstances attend the offender by reference to some form of strict custody. I am not persuaded, on the information available to me, that any increase in the non-parole period is thereby warranted. Nor am I persuaded that the subjective psychiatric considerations should bring about that result. 23 I do recommend, however, that during the period of custody the offender receive such psychiatric and other treatment and counselling as is considered appropriate. 24 In coming to the sentence I will impose, I have balanced the horrific gravity of the killing's circumstances with the subjective considerations of the offender, and have taken into account his remorse. 25 Robert Henry Hurley, you are convicted of murder. You are sentenced to eighteen years imprisonment with a non-parole period of thirteen years and six months. The sentence is to commence on 18 November 2000. You will be eligible to be released to parole on 17 May 2014. I make the recommendations referred to. 26 NOTE: The contents of paragraphs 12 and 13 were included in my notes for the ex tempore delivery of my remarks on sentence. By oversight, they were not said. ********** Last Modified: 11/08/2001 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.