R v Stephen Anthony CAVANAGH [2010] NSWSC 670

New South Wales Supreme Court

CITATION : R v Stephen Anthony CAVANAGH [2010] NSWSC 670

HEARING DATE(S) : 22 February 2010, 24 February 2010, 1 March 2010-5 March 2010, 8 March 2010-12 March 2010, 15 March 2010-17 March 2010

JUDGMENT DATE : 25 June 2010

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

DECISION : Sentenced to imprisonment for a non-parole period of 5 years, commencing on 28 August 2008, and expiring on 27 August 2013, the balance of term being 4 years, expiring on 27 August 2017. First eligible for release on 27 August 2013.

CATCHWORDS : CRIMINAL LAW – sentence – manslaughter – substantial impairment of mind – brutal killing – sentence imposed – no issues of principle

CATEGORY : Sentence

PARTIES : Regina (Crown) Stephen Anthony Cavanagh (Offender)

FILE NUMBER(S) : SC 2009/4036

COUNSEL : P Cattini (Crown) P Young SC (Offender)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

ROTHMAN J

25 JUNE 2010

2009/4036 R v Steven Anthony CAVANAGH (No 4)

REMARKS ON SENTENCE 1 HIS HONOUR: On or about 20 August 2008, Steven Cavanagh killed his mother, Estelle Cavanagh. At the time of the offence, Mr Cavanagh was 53 years of age. The Crown charged Mr Cavanagh with murder, to which Mr Cavanagh pleaded not guilty to murder, but guilty of manslaughter by reason of substantial impairment of the mind and/or provocation. After trial, a jury returned a verdict consistent with the plea of Mr Cavanagh. The Court must now sentence him for manslaughter. Facts 2 The conduct of Mr Cavanagh, causing the death of his mother, is very simple. Mr Cavanagh returned home, where both he and his mother lived, after a counselling session relating to issues associated with continued access to his, and his former partner's, children. He had a conversation with his mother, during which he "snapped" and choked her with his hands until she fell to the floor. Subsequently, he strangled her with an electric cord, wrapped her body in a tarpaulin (held in place by the same electric cord), drove her to the mountains and buried her. After digging a hole for the burial, Mr Cavanagh realised that the body would not fit and he placed the body in the hole and used a crowbar to make the body fit the hole. Relationship background 3 The objective facts of this offence are set out starkly in the foregoing paragraph. But there is more to this offence, and it relates to the relationship background of Mr Cavanagh, with his mother, his ex-partner and his children. Relevantly, those relationships are intertwined. 4 Mr Cavanagh had purchased a home in Jindabyne in which he lived with his partner and their children. In around 2003, Mr Cavanagh and his former partner separated. He became severely depressed. There were issues between him and his former partner, as one would expect, relating to the division of assets and joint parenting. 5 The settlement of the property dispute involved Mr Cavanagh purchasing his partner's share of the family home, including the paying out of her half of the mortgage. This, according to Mr Cavanagh, he did in order to keep the house for his sons, because it was there that they had grown up. Apparently, arrangements were made to borrow the necessary funds, $195,000, to achieve this result, but, at the last moment, his mother offered to lend him the money. His mother had provided other amounts of money for other purposes over a period of time, particularly in relation to a business venture. 6 The property in question was transferred into the name of Mr Cavanagh's mother. Shortly thereafter, his mother, who had been working as a volunteer caretaker at the Wayside Chapel in Sydney, lost her position there, including the accommodation that had been provided with that position. His mother requested that she live with Mr Cavanagh. Mr Cavanagh hired a truck and went to collect his mother's belongings. It seems that Mr Cavanagh's mother had hoarded material and insisted on bringing all of that material with her. 7 Nevertheless, thereafter Mr Cavanagh's mother moved in with Mr Cavanagh and Mr Cavanagh and his mother lived together in the house in Jindabyne. According to Mr Cavanagh, his mother became increasingly aggressive, disinhibited and unclean. The tension between Mr Cavanagh and his mother was manifest. 8 Mr Cavanagh blamed his mother for his deteriorating relationship with his children. His children described it otherwise. But whether it was obvious to the children or not, the tension between Mr Cavanagh and his mother plainly led to the deteriorating mental health of Mr Cavanagh. 9 At autopsy, Mr Cavanagh's mother had physical symptoms consistent with the early stages of Alzheimer's disease. During the course of the period of time prior to her death, she underwent a test for dementia, which did not disclose any major cognitive disorder. Nevertheless, it is well known that in its early stages some of the symptoms of Alzheimer's can manifest, even without any significant or noticeable cognitive impairment. Some of those symptoms included disinhibition, aggression, and incontinence. 10 Apparently, the depression under which Mr Cavanagh suffered, and with which I will deal shortly, was the subject of comment by his mother. In particular, she was critical of him to other people and continually criticised him, to them and to Mr Cavanagh, for his behaviour, for example, his apparent lack of energy and motivation and his inability to find work. These behaviour patterns were symptoms of his depression. 11 Mr Cavanagh's depression became apparent and manifested in a number of ways. He continued to suffer depression and lost his temper with those around him, including his children. The children, whether encouraged by their mother or not, preferred not to be with their father. It was a tense household. Mr Cavanagh blamed his mother for the children's attitude and their non-attendance at the home. 12 The children's living arrangements were the subject of mediation under the Family Court facilities. Relationships Australia counselled Mr Cavanagh and his former partner and sought to resolve these issues. According to Mr Cavanagh, but denied by the counsellors, Mr Cavanagh was informed that the tension between his mother and him had to be resolved. 13 This information, according to Mr Cavanagh, whose version in this respect I accept, occurred on 20 August 2008. He drove home from a counselling session and spoke to his mother. He proposed that he sell the premises in which they both lived, pay her $300,000 and each of them would live in separate premises. Her response, according to Mr Cavanagh, was that she reminded him that the house was hers and said words to the effect that he [Mr Cavanagh] and his children could "get stuffed and get out of her house". 14 Mr Cavanagh snapped. He said that he was unaware of what precisely was happening or how long it took. He grabbed his mother by the throat and strangled her and pushed her into the laundry, from where he obtained an extension lead, wrapped it around her throat and, with his foot on her back, pulled the cord. Substantial impairment 15 While the defence was conducted on the basis of both provocation and substantial impairment, I am of the view that the verdict is consistent with substantial impairment, to which most of the evidence related. 16 Some of the history of Mr Cavanagh has been outlined sufficiently to show the depressive illness and its basis. On 12 March 2003, well before the current incident, a report noted that Mr Cavanagh had obtained psychological assistance and displayed psychiatric symptoms, being, difficulty getting out of bed, poor sleep, lack of appetite, depressed moods and bouts of crying. He was grieving the loss of access to his sons, although he presented generally as a confident person with a "stereotypical masculine view of the world". Plainly, at this early stage he was suffering depression. 17 A further note, dated 20 October 2003, evidenced that Mr Cavanagh's symptoms were continuing. There are continuing notes and diagnoses to this effect from mental health professionals in these early periods. 18 With one major qualification, the psychiatric evidence qualified by the Crown and that qualified by Mr Cavanagh were to the same effect. The qualification related to some material that, expressly in the case of Dr Allnutt, who was qualified by the Crown, may have been inconsistent with depression and forming part of the cause of his conduct. That material related to a suggestion that the killing was premeditated. The Court finds, as did the jury, that there was no premeditation and the qualification is of no consequence. 19 Dr Nielssen, who was qualified by Mr Cavanagh, in his Report of 12 August 2009, diagnosed Mr Cavanagh as having: major depression, in partial remission; and cannabis abuse disorder. He opined: "The diagnosis of major depression was made on the basis of Mr Cavanagh's account of the full syndrome of major depression in the period before the offence, his account of previous treatment for depression and the descriptions of his behaviour in the summary of the witness statements and in the Custody Management Record.