New South Wales Supreme Court CITATION : Regina v McGrath [2000] NSWSC 419 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70017/99 HEARING DATE(S) : 17/04/2000-18/04/2000; 15/05/2000 JUDGMENT DATE : 18 May 2000 PARTIES : Regina v Andrew Mark McGrath JUDGMENT OF : Michael Grove J at 1 COUNSEL : M. Macadam QC (Crown) M. Austin (Accused) SOLICITORS : S.E. O'Connor, Public Prosecutions T.A. Murphy, Legal Aid Commission CATCHWORDS : Criminal Law - Sentence - Murder - Guilty Plea - Issue As To Motive DECISION : Sentence Imposed. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION MICHAEL GROVE J Thursday 18 May 2000 70017/99 - REGINA v ANDREW MARK McGRATH SENTENCE 1 HIS HONOUR : On 17 April 2000 the prisoner was arraigned before me upon an indictment charging the murder of John Frederick Lund at Muswellbrook on 13 December 1998 to which he pleaded guilty. The intention so to plead was indicated shortly before that arraignment. I note that when similarly arraigned on 10 September 1999, a plea of not guilty was entered. 2 On Sunday 13 December 1998 the prisoner travelled from Fennells Bay (where he was sharing a house with a man named Peter Tinker) to the victim's home in Muswellbrook. Whilst there he attacked him and suffocated him with a wet tea towel. He left the body in the house and returned to Fennells Bay where he arrived on the Monday morning in company with an acquaintance whom he had apparently encountered on his journey. This person departed shortly thereafter and is not relevant to any matter under present consideration. 3 Later that day the prisoner told Mr Tinker that he had killed John Lund. 4 Some time previously Peter Tinker had been in a relationship with a woman named Kirralee Percival, as a result of which they had two children, a girl and a boy. Miss Percival also had an older daughter born to a previous relationship. This child had had little contact with her biological father and she referred to Mr Tinker as "Dad" and he considered and treated her as his daughter. After the break up of the relationship abovementioned, Miss Percival commenced to keep company with Aage Lund, the victim's brother. Mr Tinker and Miss Percival remained upon good terms particularly having regard to their common interest in the welfare of the three children. 5 All of these people, including the prisoner were acquainted with one another and as well with Peter Stanley and Rosemary Carrall who were sharing the house in which the victim was living when he met his death. Mr Stanley and Ms Carrall had a three year son who resided with them. They, together with the child, had left the premises on 9 December to avoid confrontation with a person said to have assaulted Ms Carrall on that day. 6 In evidence in these proceedings the prisoner said that he had heard that the victim was going to move in with friends of his named Graham and Elizabeth who had a three year old daughter. I note that, before John Lund moved in with Peter Stanley and Rosemary Carrall - said to be about three months prior to his death - he was described as living with people named Graham and Elizabeth. 7 Information passed among members of the group that there were allegations against John Lund of sexual assault by him upon the elder of Ms Percival's daughters who was then aged eight. On 28 May 1998 the appropriate police had been contacted and a statement from the child had been obtained. The prisoner became privy to the existence of the allegation and was told by Ms Percival that there had been a rape to which his response was to say that he would go to Muswellbrook and "sort it out". Ms Percival told him not to go near the place and to leave it to the police. She specifically asked him not to tell Graham and Elizabeth whom she feared would inform John Lund about the investigation. 8 Late in the evening of Tuesday 15 December police attended the victim's premises in response to information from a neighbour about animal behaviour at the house and concern for the welfare of the occupant. An officer entered through a small bathroom window and discovered a male body supine on the lounge floor. The body was decomposing and the constable had to flee from the emanation of odour. In due course the body was identified as that of John Lund. 9 The finding of the body was reported in various media. The reportage came to the attention of Peter Tinker. It included mention of dogs at the premises. The prisoner also heard a radio broadcast and commenced to provide details about the animals in addition to his assertions about carrying out the killing. Mr Tinker's previous scepticism about the prisoner's claims to have committed the murder underwent a change. He contacted Ms Percival and Aage Lund and after some confirmatory enquiries were made, he reported to police and was interviewed by them at length on Thursday 17 December. 10 Consequent upon his information to police a warrant was obtained for the use of a listening device and Mr Tinker was fitted with the necessary equipment on 18 December whereupon he returned to the house which he was sharing with the prisoner at Fennells Bay and engaged him in conversation. The prisoner was thoroughly inculpated in the killing by his own words to Mr Tinker. I have listened to the recording of the product of the device and will make some further reference to its content later. 11 I should not pass from this topic without observing that Mr Tinker undoubtedly exposed himself to possible risk and his assistance to authority in the detection and arrest of the perpetrator of a serious crime should be commended. The implicit suggestion by the prisoner that he may have acted to avoid accusation against himself is rejected. There is not the slightest evidence that Mr Tinker was anywhere near Muswellbrook at the relevant time or that there was ever any reasonable basis for suspicion for the killing being directed towards him. 12 The prisoner was arrested on 18 December and interview with police shortly thereafter was recorded on video and audio tape. A search of the premises at Fennells Bay had located store, Medicare, bank and pensioner concession cards taken from John Lund's wallet. The prisoner admitted taking them. He further admitted the killing and, as I noted at the commencement of these remarks, he has pleaded guilty to murder. 13 The physical aspects of the execution of the crime are little disputed. The victim was bashed into unconsciousness or semi consciousness and, thus inhibited from defending himself, he was suffocated with a wet tea towel. What are in dispute are the motive and circumstances which led to that act of murder. 14 The product of the listening device reveals claims by the prisoner that he killed John Lund as an act of vengeance for the alleged abuse of Ms Percival's elder daughter. The prisoner proclaimed himself to Mr Tinker as a type of vigilante engaged in protecting children. He added descriptions of his hatred of all offenders of this type. 15 Police seized documents authored by the prisoner which he claimed were drafts of prints for T-shirts and the like and doodlings which he made under the influence of cannabis. Included was a slogan "No excuse. Child abuse. It sucks." And a statement "Proven Hate Equals Death In the Eyes Forever In Little Earthlings" which would appear to be a mis-spelled or irregular intended acronym for the word paedophile. 16 When interviewed by police within hours of making statements to Peter Tinker to the above effect, the prisoner claimed that he had killed John Lund at the latter's request. He said that euthanasia was sought because medical opinion had been received that John Lund had but six weeks to live and he wished to end his life. Dr Cook, a general practitioner in Muswellbrook had been consulted by John Lund on several occasions, the last being 6 December. Dr Cook stated that to the best of his knowledge John Lund had no acutely terminal illness and was not told that he had six weeks to live. However he was told that his behaviour was damaging to his health and would shorten his life. The behaviour under reference was gross over indulgence in intoxicating liquor. 17 It appears nevertheless that the story of six weeks life expectancy gained some currency. Peter Stanley and Rosemary Carrall stated that they were told this by John Lund but, far from inspiring a wish for termination of life, he tearfully told them that he was frightened and did not want to die. They comforted him. Peter Stanley used a telephone in the home of a Muswellbrook neighbour Mrs Pearce and she overheard mention of "John being ill and having six weeks to live". I do not know whether the prisoner was the recipient of this call but it is a fair inference that either directly or by relay, he acquired information about the life expectancy story from Mr Stanley or Miss Carrall. 18 In his testimony at the sentencing hearing the prisoner, somewhat reluctantly to my observation, recanted his claim to have performed a mercy killing. I extract some of his evidence: "Q. And they took you to the police station and you participated in the record of interview where you gave a totally different version for your motivation, didn't you? A. Yes, that's correct. Q. There you were suggesting that Mr Lund had in fact asked you to kill him because he was dying? A. Yes. Q. And that is not true, is it? A. Well, actually, on the night that it happened we discussed some of his problems that he has with his liquor abuse, that a doctor had given him six weeks to live. He was in a fair bit of pain while I was up there. Like, he was getting stomach cramps and what-not, and on a number of occasions he suggested to me that he would like to die. I didn't take that much notice of it, though. Q. But you were telling the police that in fact that was your motivation for killing him? A. Yeah. Q. And that wasn't true, was it? A. No. Q. In fact, what you were doing was using that information that you had. At that stage did you believe that by telling the police that, you may have been able to get yourself out of the situation you had found yourself in in relation to the killing, or why were you telling them that? A. I don't know exactly, like the events I told them I killed him and everything else but as for the details why, I didn't want to go that far into it so I just came up with the first thing that came into my head and that was something I remembered from the night. Q. The facts though, in entering this plea, you do not rely at any level on a suggestion that you were somehow committing this murder because the deceased wanted you to kill him. That is not the position you are putting to this Court, is it? A. That's correct." 19 On 4 May 2000 the prisoner was interviewed and tested by a psychologist Ms Anna Robilliard and her report of 9 May has been tendered. She has recorded a history of the commission of the offence given by the prisoner and in sworn evidence he has adhered to that history. It has significant differences from his earlier versions to Peter Tinker and to the police. 20 In this third version, part of the background was an elaboration of fears for the three year old son of Peter Stanley and Rosemary Carrall and an exacerbation of the prisoner's concern for the three year old daughter of Graham and Elizabeth who were said to be about to move in with John Lund. I have already observed that it was in a previous time that John Lund had lived with people of those names. There is no evidence, apart from the prisoner's present assertion, that such a move for them to again share a house was intended. To Ms Robilliard and in Court the prisoner described a fantasy scenario of this couple arriving to move in, leaving the child while they went to a shop for a short time for supplies of bread and milk and the opportunity being taken by the remaining adult to subject the child to abuse. 21 This third version includes the contention by the prisoner that his intention in going to Muswellbrook was to prevail upon John Lund not to move in with Graham and Elizabeth. When the prisoner arrived at the Muswellbrook house he found children from the neighbourhood running about and he claimed that he noticed that John Lund was manifesting a sexual arousal. Nevertheless he engaged him in conversation until, upon being told that the allegations of sexual abuse were none of his business, the prisoner lost control and struck the victim "on a couple of occasions" and thereafter he said he couldn't remember "the exact version of events" and the next thing he knew was he was "kneeling above him with a wet towel in his hand". 22 I am satisfied to the necessary standard that the prisoner's motive in going to Muswellbrook was the execution of a vigilante type of vengeance for the victim's assumed guilt of child abuse. The discussion with Peter Tinker was spontaneous and there is no reason to conclude that the prisoner was inhibited from fully and accurately disclosing his culpability. The version to Ms Robilliard and the Court shows significant contrivance on the part of the prisoner. When speaking to Peter Tinker both before and at the time of being recorded, the prisoner mentioned the children running about the house but it is only in the most recent version that the description has been embroidered with the alleged observation of arousal. 23 I have already noted the contradiction between the prisoner's version of the victim's wish for death and his statements to others of his wish to live. I do not accept his claims that the materials seized by police revealed writings that were essentially inconsequential. They were confirmatory of the prisoner's obsessions. 24 The details of the killing in the recorded conversation with Peter Tinker are consistent with the objective findings of the investigators. It is true that within that conversation are prevarications and boastings on matters such as serial killings which are apocryphal but these do not impinge upon the description of the circumstances of the events of central significance. The impression I have gained is that the prisoner has a very flexible concept of truth. 25 I find that the prisoner went to Muswellbrook with the intention of killing John Lund; that his motive was an obsessive hatred directed towards a man who was the subject of an allegation of child abuse; that the prisoner's hatred was part of a wider, undiscriminating and obsessive hatred of persons the subject of such allegations and that he executed his intention of killing John Lund when the opportunity arose during the visit. It was not, as claimed to Ms Robilliard, a killing determined by a sudden impulse. 26 I am satisfied that the prisoner has no real remorse for his actions as witness his evidence that the death was a kind of justice that was done. It was instructive to observe the prisoner incanting that retribution for anything John Lund may have done had nothing to do with him, yet eventually he could not resist expressing the view that I have just mentioned towards the end of cross examination. 27 I turn to some other subjective considerations. The prisoner turned twenty one years on 15 March last. Subject to a matter in the appellate jurisdiction of the District Court, his prior record is confined to matters dealt with in the Children's Court. His record does not attract particular leniency but, of course, there is nothing in it even remotely bearing the seriousness of the present crime. 28 Personal background information was collated by Ms Robilliard and reveals his membership of a dysfunctional family or, more accurately, a series of dysfunctional family-like relationships. His youthful offending saw him in a boys home and other circumstances saw him in youth refuges. Nevertheless his mother has remained in contact and offers him support. 29 Psychological testing indicated that offer and acceptance of the opportunity for extension of formal education had the potential for significant personal benefit. Whilst in gaol the prisoner has enrolled for the Higher School Certificate Course in the Open Training and Education Network which is supervised by the New South Wales TAFE Commission. 30 I have given consideration to whether this and other matters should be treated as special circumstances justifying a reduction of the three quarter proportion between head sentence and non parole period. I conclude that there should be no such alteration. 31 Giving liberal weight to favourable factors, the most weighty of which I find to be his comparative youth, and balancing these against the objective seriousness of the crime, I would assess an appropriate sentence at twenty years imprisonment. I am minded however to give some benefit for the utilitarian value of his plea of guilty. Late though it was, the community has been spared the expense of trial and the witnesses have been spared the burden of giving testimony and I will impose therefore a sentence of eighteen years. This will date from the original day of custody. 32 Andrew Mark McGrath, for the murder of John Frederick Lund, you are sentenced to imprisonment for eighteen years: the sentence is to commence on 18 December 1998: I set a non parole period of thirteen years and six months to commence on that date: I specify 17 May 2012 as the earliest date for your eligibility for parole. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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