Supreme Court New South Wales Medium Neutral Citation: R v McCann [2012] NSWSC 1462 Hearing dates: 5 November 2012 - 19 November 2012; 27 November 2012 Decision date: 29 November 2012 Jurisdiction: Common Law Before: Barr AJ Decision: For the manslaughter of Craig Alan Morgan, John Charles McCann is sentenced to imprisonment. A non-parole period of 3 years and 6 months is set which will be taken to have commenced on 13 March 2011 and which will expire on 12 September 2014. The balance of the term of the sentence will be 3 years and 6 months expiring on 12 March 2018. The first day on which the offender will become eligible for release to parole will be 12 September 2014. Catchwords: CRIMINAL LAW - Sentencing - Manslaughter - Excessive self-defence Category: Sentence Parties: Regina - Crown John Charles McCann - Offender Representation: P. Barrett S. Hanley SC Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2011/81162 REMARKS ON SENTENCE 1The offender, John Charles McCann, has been found guilty by the jury of the manslaughter of Craig Alan Morgan and is to be sentenced. 2On 12 March 2011 the offender was living in a house in Springwood. Originally it was his family house but unfortunately the family had ceased living together in circumstances of which I will say something later in these remarks. The offender had no regular substantial source of income and his financial affairs were being managed by another as authorised by the Guardianship Tribunal. He used to take in lodgers to help him make ends meet. One of the lodgers was the deceased, Craig Alan Morgan. He had resided at the house previously, most recently early in 2011. Also lodging there were Michael Vickers and Tara Hain. They both knew the deceased and were friends with him. 3The deceased had family and connections in the Northern Territory and had lived and worked there. Early in 2011 he left the house and returned to the Northern Territory to work. Shortly before 8 March 2011 he telephoned Mr Vickers and said that he was returning to Springwood, where he would call in before continuing to the Central Coast of New South Wales to take up a job caring for a person there. Mr Vickers told the offender. 4On or about 8 March 2011 the deceased arrived at the offender's house and the offender agreed that he could stay the night. The deceased did so. He continued to stay and was still resident there on 12 March 2011. On that day he and Mr Vickers were seated on the verandah at the front of the offender's house. They were drinking. The deceased was an alcoholic. The offender resented the deceased's presence and wanted him out of the house. A number of things about the deceased were irritating him, not least that he had been smoking in his room, which was a fire hazard, and that he had overstayed his welcome. 5I shall say more about the mental condition of the offender later in these remarks, but for the moment I should say that he was beset by an illness or condition that led him to be afraid in circumstances where a well person would not be afraid. He was apt to misinterpret the intentions and motives of others. 6During his time in the Northern Territory the deceased had been in trouble for drink drinking. On one occasion his car had struck and killed a pedestrian. It turned out that the pedestrian had deliberately run into the deceased's car in order to commit suicide, but the story got around that he had killed a man. As well, he was wanted in the Northern Territory for a minor offence, and it got around that he was wanted by the police. Things were misinterpreted. Ms Hain believed that the deceased was wanted in the Northern Territory for killing a man, something far from the truth. The deceased had taken boxing lessons and had apparently mentioned the matter to the offender. These things seemed to have combined in the mind of the offender to make him afraid of the deceased. 7While Mr Vickers and the deceased were on the verandah words were exchanged between the offender and the deceased. According to Mr Vickers, the offender became "pushy", officiously going about the repair of a piece of furniture on the verandah, making the deceased move out of the way. The offender told the court that on an earlier occasion the deceased had threatened him with violence. He also said that during their exchange on 12 March the deceased told him that he was prepared to do time, which he took to mean that the deceased was threatening to do to him something which would warrant his being convicted and sent to gaol. 8The offender left the house and crossed the road to speak to a neighbour. He talked about the matter, mulled things over and decided to seek the services of the police to have the deceased evicted. He went to the police station and asked for help. He told officers that the deceased was in the house and would not leave, that he was dangerous when drunk and was wanted on a warrant issued in the Northern Territory. The police responded, visited the house, arrested the deceased, who was hiding in the kitchen, and took him to the police station. The deceased denied having been asked to leave. The police made enquiries about the reported warrant and ascertained that it concerned a minor matter over which the Northern Territory police would not seek extradition. Accordingly, the police had no reason to hold the deceased and told him that he was free to leave. They offered to find him accommodation but he declined the offer. They gave him some advice about where he might go. 9Some time later the deceased arrived back at the offender's residence. The offender was absent from the premises or perhaps in his room. At any rate, he did not see the deceased. Mr Vickers did and reminded the deceased that he was unwelcome. He suggested that he stay in his, Vickers', room, only for that night and stay out of sight. The deceased entered Mr Vickers' room. 10In the middle of the night, Mr Vickers, who had fallen asleep, heard the deceased leaving his room. The offender was in the rear portion of the house using his computer which was set up there on a desk. The two men came together and fought. As they grappled with one another the offender put a nylon cord around the deceased's neck and pulled it tight. He strangled him to death. 11When the deceased was dead the offender took a blanket and covered him. He went to Mr Vickers' room and woke him. He said that he had just killed the deceased. Mr Vickers went to the back of the house and saw the deceased. He picked up the sheet and saw that the deceased's face was blue and purple and that there was a cord around the deceased's neck. He replaced the sheet. He did not touch the cord. He called the emergency number and spoke to the operator. He said that there was a dead man and that the man who had killed him was present. He handed the telephone to the offender who told the operator that police had evicted the tenant and that he had returned about 10 minutes before to kill him, so he had had to kill him in self-defence. He said that he had strangled him. 12The police were informed and Constable Pavy attended. He was one of the officers who had attended on the eviction of the deceased. He saw the deceased lying face down on the floor. There was a white rope around the deceased's neck. It was a single loop, tied at the back. There was no pulse. The face was bluish. The rope was quite tight, pulling the skin in. There was a bundle of rope at the back of the neck resting on the neck and Constable Pavy pulled it away. Then he saw that there was a single knot, right in the centre of the back of the neck. He pulled at the knot and loosened it. He lifted the rope over the deceased's head. 13The offender was arrested and taken to the police station. He was invited to take part in an interview and did so. For the most part he declined to answer questions and asked for the services of a lawyer. He made extensive complaints about an injury or injuries he had suffered and was taken to hospital for attention. One thing he did say was that the deceased punched him very severely when he broke through the curtain and attacked him. There were marks on his face consistent with such an attack. 14The offender was born on 30 May 1945 and is now 67 years old. He is highly intelligent. He did well at school. He entered a seminary after leaving school but left in 1965 or 1966, having decided that he did not wish to be ordained. He suffered his first episode of depression in 1966. He was admitted to hospital and treated with an anti-depressant drug. He took up a Commonwealth scholarship and completed 2 years of a science degree at Sydney University. His interest was forestry and in 1968 he took up a cadetship with the Forestry Commission. He transferred to the Australian National University and took his degree there in 1970. His job in Forestry took him to various parts of New South Wales and his wife and family accompanied him. Eventually he persuaded his reluctant wife to agree to sell up and move to the Northern Territory to follow a religious teacher. I assume that that required him to leave his job at the Forestry Commission. Eventually, having lost everything, he came to his senses and brought his family back to New South Wales. He obtained casual work. He entered the building trade and did work as a groundsman. 15In 1993 he was treated in hospital for 3 months for depression. He became property manager of a school. In 1996 he consulted a psychiatrist, Dr Thiering, and remained under his treatment for 11 years. Various medicines were prescribed, and it is not clear what degree of success was achieved. The offender thought there was none. He was admitted to hospital a number of times for short periods. He was prescribed lithium. They parted company because the offender did not accept the advice he was offered. He spoke contemptuously of the circumstances. 16I have not dealt with all the many events that took place over the years the offender was suffering from these conditions. It is worth noting that he was generally unprepared to accept diagnoses or follow medical advice. In 2002 he was apparently advised to take fish oil and aspirin, and seems to have done so over several subsequent years despite advice to the contrary. His bipolar condition came to be referred to as untreated or resistant to treatment. 17In 2007 he was referred by Dr Thiering to the Springwood Mental Health Team. Ms Sian Harris, clinical psychologist, was his case manager from August 2007 until November 2010, not long before he killed the deceased. Ms Harris noted that there had previously been diagnoses of major depression and bipolar depressive disorder. She said that cognitive impairment consistent with frontal lobe involvement was evident - disorganisation, poor planning and evaluation of behavioural responses, poor insight into his impairments and their effect on others, impairment of social judgments and mental inflexibility. He reported sadness and episodic anxiety attacks in the context of conflict with family members and neighbours, over his marriage breakdown, property disputes and other matters, for example animals. 18During 2009 the offender and his wife separated. They have remained married. 19In February 2010 his daughter applied to the Guardianship Tribunal for a Financial Management order. The Tribunal appointed the Public Trustee and Guardian Financial Manager. 20Ms Harris considers that the offender experienced significant stress at the breakdown of his marriage and his estrangement from his children and extended family and what he perceived as threats to his occupation of the house he had lived in for many years. His responses included high anxiety, anger, hurt and sadness. There were somatic symptoms as well. 21Ms Corinne Roberts, clinical and consulting neuropsychologist, wrote a report for the Court. She reviewed many documents and reports, particularly a number of brain scan reports which had been made between 2007 and 2011. As a result of these it appeared to Ms Roberts that there was moderate generalised atrophy of the brain and atrophy of the frontal lobes. Ms Roberts expressed this opinion - Mr John McCann, is a 66 year old man with a well documented history of treatment resistant depression and bipolar disorder. As far as I am aware he has no criminal record prior to the incident of 13.3.11 which has resulted in him being charged with murder. However, the available evidence suggests that over the past few years his behaviour has become increasingly erratic and disorganized to the extent that there were concerns that he might have impaired brain functioning, specifically impaired frontal lobe functioning. The frontal lobes of the brain are considered to be integral to executive functioning, and although these terms are sometimes used interchangeably, this is inaccurate. The frontal lobes are an anatomical region of the brain with multiple connections to other brain regions, whereas executive functioning refers to a complex array of cognitive and behavioural skills which may be disrupted by damage to the frontal lobes. These skills include conceptual/abstract thinking, judgement and problem- solving, planning and organizing, the ability to generate ideas and solutions when confronted with novel situations or problems, the ability to shift flexibly from one idea to another, the ability to hold ideas or information in the mind in order to consider it. The term executive functioning also encompasses behavioural skills such as the ability to regulate behaviour, adapt to changing circumstances, consider the impact of one's behaviour on others, as well as self-awareness and insight. Whilst impaired executive functioning can occur as a result of focal damage to the frontal regions of the brain, psychiatric disorders such as depression, anxiety, bipolar disorder, and schizophrenia, can also adversely affect executive functioning. Whilst individuals with impaired executive functioning can sometimes function quite well with adequate external support or in very routine and predictable situations, they are likely to struggle if left to deal with more complex day to day activities alone or when confronted with unfamiliar or unexpected problems. The behaviours reportedly exhibited by Mr McCann over the past few years, especially since his wife left the family home, are consistent with impaired executive functioning. Brain MRI in 2007 was reported to show some small focal abnormalities in the frontal lobes, but there has been disagreement as to the significance of these. However, neuroimaging (CT scans and MRI) since 2007 has consistently been reported to show significant cerebral atrophy. Previous assessment of Mr McCann's cognitive functioning indicated him to be a man of superior intellectual ability whose results on tests of memory and executive functioning suggested some problems with attention, and mildly reduced efficiency of problem-solving, mental flexibility and working memory. Current neuropsychological assessment indicated mild problems with auditory attention, fluctuating working memory (complex mental tracking), difficulties with learning and retention of more complex new information, and impaired ability to generate novel ideas in a man of superior intellectual ability. In general the results were consistent with those obtained by Ms Harris in 2009, although improvement was evident on some memory and problem-solving tests which Mr McCann had completed on at least two previous occasions of testing and which were likely to have been prone to practice effects. Although the problems revealed on neuropsychological assessment were relatively mild, they were consistent with impairment of executive functioning in a man whose general intellectual ability is well preserved. They were also consistent with the available evidence regarding Mr McCann's day to day functional problems and the reported behavioural changes in daily life. 22Three psychiatrists gave evidence at the trial, Dr Martin, called by the Crown, Dr Nielssen and Dr Furst, called by the Defence. All had seen Ms Roberts' report, or at least were aware of her opinion, as well as the scan reports on which Ms Roberts based her opinion. All Psychiatrists were of much the same opinion, namely that at the time of the act causing death the offender had atrophy of the frontal lobes and general brain shrinkage. These led to cognitive deficits, being an impairment of the executive function of the brain, bringing with it an increased risk of misconception of events, of poor decision-making and of impulsive behaviour. 23As well, there was a well-established diagnosis of major depression and, later, bipolar disorder. The bipolar disorder had as a feature a tendency in the manic phase to produce grandiose ideas and actions based on them. 24The risk that the conditions from which the offender was suffering might lead him to misinterpret events and make poor decisions, acting impulsively, is exemplified by an event that happened about a month before this offence was committed. The unfortunate disintegration of the offender's family had led to all members but himself leaving the house. There had been a time when two daughters with their husbands, and then one daughter with her husband were staying there for the benefit of the offender and the house, but he had called the police and had had them evicted. The time arrived at which the family had to come and collect their belongings. On the appointed day things did not go smoothly. The offender had arranged for some belongings to be placed on the front verandah for collection but resisted the entry of his wife and members of the family. He barricaded himself in the house, then called the police and asked them to remove the unwelcome visitors. He described this reasonable visit as a home invasion. 25The offender was charged with murder. As the issues were left to the jury there was only one question for them to answer on murder, for in the way the trial was conducted there was no question that the offender had done the act which caused the death of the deceased with the intention of killing him. The remaining issue was whether the Crown had proved beyond reasonable doubt that when he did the act causing death the offender did not believe it necessary to do the act in order to defend himself. If the jury were satisfied of that beyond reasonable doubt they were instructed to consider whether the accused had proved on the balance of probabilities the ingredients of the partial defence of substantial impairment by abnormality of mind. I will not go into what that entailed, for I have come to a firm view that the evidence is not capable of proving beyond reasonable doubt that the offender did not believe it necessary to act as he did in order to defend himself. 26When the offender encountered the deceased he was, as I have said, in the computer room at the back of the house. The room itself was on the far side from the point of view of the house generally, of a curtained arch. The curtains were not drawn, I think, but hanging loose. The offender's account had the deceased suddenly approaching from the other side of the curtain. There seems to be no reason not to accept that something like that happened, for the deceased must have come from that direction, the direction in which Mr Vickers' room was situated almost at the front of the house. There was a rope there, a thin nylon cord of a kind used in bodily exercises. It hung on a hook on the wall of the arch or it may have been on the floor nearby. 27The offender said that the deceased said "You didn't expect me to come back did you, John? I am here to kill you. Prepare to die. This is your last day on earth". The deceased then punched him twice in the face and the two men fell to the floor and grappled. There was this evidence - Q. And can you say what position you were in relation to each other when you were on the floor? A. Well we were wrestling each other, and then I ended up with my head sort of under the arch almost, and his head under the arch beside me, and he had the rope around his neck, and he was obviously having trouble breathing. Q. How did the rope get round his neck Mr McCann? A. I'm not sure, it just happened somehow within the course of the struggle ... Q. You say you saw him with the rope around his neck? A. Yeah. Q. Whilst you were both lying on the floor? A. Yes. He was lying face down. I was lying face down beside him. Q. You don't know how the rope got there? A. I presume it happened during the struggle. Q. Did you put it there? A. No. It just got twisted up. We both got twisted in the rope. Q. You got twisted in the rope? A. My arm and hand and wrists were twisted in the rope. Q. What were you doing with your hand and the rope? A. Well, I did apply pressure to keep him from killing me. Q. What sort of pressure were you applying? A. Just my hands, sort of keeping the pressure on the rope because I knew if he got up he would finish me off. Q. Do you recall pulling on the rope? A. I probably did apply some pressure, yeah. Q. What was he doing? A. He was just struggling to get away from the rope and to continue his attack on me. Q. Did you say anything to him to ask him to calm down or stop? A. No. I said, "You came here to kill me, but it looks like you're going to die." ... Q. When you were on the ground pulling the rope, did you tie a knot in any way? A. No, no, no. 28I find that immediately before the offender took the rope and killed the deceased the following happened: 1. The offender had had the deceased removed from the house and did not expect to see him again. 2. The offender was alone at the back of the house. 3. The deceased approached him without warning, coming through the curtain, and said to him threatening words which may have been those given in evidence by the offender. 4. The deceased punched the offender twice in the face. 5. The offender believed that the deceased intended to kill him. 6. The two grappled and fell to the floor. 7. The rope was within the offender's reach. 8. The offender seized the rope. 29I bear in mind the risk that the condition from which the offender was suffering might have led him to misinterpret events. But in my view one does not need to go so far. It seems to me that a person with ordinary powers and not suffering the conditions from which the offender was suffering would be likely in the circumstances the offender described to believe that he was about to be killed. The Psychiatrists said so and I think that they were right. I think the question whether the Crown has proved beyond reasonable doubt that the accused did not think it necessary to do what he did in order to defend himself can be answered on the simple facts alone of what happened without consideration of the offender's mental condition. I am not satisfied on the evidence that there is no reasonable possibility that the offender acted in self-defence. It follows that the only factual basis upon which the offender ought to be sentenced is that the act he performed in self-defence was unreasonable. Consistently with the jury's verdict, I am satisfied about that beyond reasonable doubt. I shall explain why. 30I do not accept everything the offender has said about the way things happened. There is a remarkable contrast between the detail that he recounts of circumstances he might understand as favourable to his case and his failure to recount the detail of matters he might not. I have referred to his precise and detailed recollection of the things the deceased said and I have accepted them. When the offender was speaking to the emergency operator on the telephone he was clear that the evicted tenant had come back to kill him, so he had to kill him in self-defence. 31On the other hand, I do not think that the offender was making a genuine attempt to tell the Court what happened when he took the rope and put it around the deceased's neck, for that is what I think he did. I can accept that he may have come across the rope opportunistically. This is not a matter in which he had any warning or would have had an occasion to have any weapon ready. The rope must have been somewhere at hand. Even so, it is difficult in view of the particularity of the offender's account in some respects to accept his evidence that he had the rope in his hands merely because his arm and hand and wrists became twisted in it and that the rope somehow came to be around the deceased's neck. 32Only three people saw the rope around the deceased's neck: the offender, Mr Vickers and Constable Pavy. Mr Vickers lifted the blanket and saw the rope but did not touch it. All he said about the rope was this - "I picked up the sheet and his face was all blue and purple and there was a cord around his neck". 33Mr Vickers said that he did not touch the neck. He did not otherwise describe the rope. 34Constable Pavy answered the emergency call in the company of Constable Campbell. Constable Pavy attended to the body and attempted cardio-pulmonary resuscitation. Constable Campbell was at the house but was attending to other duties. It was only Constable Pavy who was able to describe the condition of the rope. He removed it but before he did so he saw that there was a single strand of rope around the neck tied in a knot at the back of the neck and drawn tight so as to pull the skin in. On top of the knot was a bundle or coil of rope. He removed the loose rope, saw the knot and undid it to loosen the rope. This evidence shows that the rope was held tight by a knot, so as to strangle the deceased. The rope could not be removed until the knot was loosened. The offender must have tied the knot. 35The deceased was a bigger man than the offender but he was well under the influence of alcohol. He was well used to alcohol but even so his motor functions must have been substantially impaired. He was unarmed. In my view, taking full account of any effect the offender's condition had on him, it was unreasonable for him to go so far, having wrapped the rope around the deceased's neck, as to tie it tight and kill him. The act causing death was not only an unreasonable response to the threat he faced. It was a particularly cruel thing to do. 36The well-attested mental illness of the offender makes it inappropriate in sentencing him to place much emphasis on retribution or general deterrence. However, the fact of his condition, particularly the irreversible condition of the frontal lobes and the brain generally, raises the question of his dangerousness in the future. Dr Martin, Psychiatrist, gave evidence on sentence. He said that when a person has a dementing process, as the offender does, he can easily become paranoid and can interpret non-threatening behaviour in a hostile way. Dr Martin has observed an association between brain atrophy and bipolar disorder. He says that a person with many years of bipolar disorder, especially when it is untreated or unresponsive to treatment, is at high risk of developing cognitive deficits. That does not mean that the offender's bipolar disorder cannot be treated, of course, but his condition has been described as resistant to treatment. 37The offender lacks insight into his condition and cannot be expected to follow medical advice about taking drugs, particularly advice he does not agree with. Dr Martin thinks that the offender will need close, intensive observation in custody. If he does not comply with advice about medicine he will need to be managed in an in-patient unit under the Mental Health Act 2007. Dr Martin thinks that it might be necessary to invoke the Mental Health Act 2007 in any event, given the offender's lack of insight. He considers that a person with untreated bipolar disorder presents a modest increased risk of violence, even allowing that the killing of the deceased is the first recorded instance of any violent act of the offender and that the offender is not suffering from any personality disorder. 38Dr Furst's report was tendered on sentence. He points out that the killing of the deceased was the offender's only violent act. He thinks that mania does not appear to confer much greater absolute risk of violence at an individual level. He thinks that the circumstances in which the offender was violent are unlikely to occur again and that the offender poses a low risk to others of re-offending. He thinks that there are good prospects of successful rehabilitation despite the offender's age and lack of insight. 39Dr Nielssen sees no risk of violence from mania. He points out that the offender has not used alcohol or other drugs and has no other psychiatric condition. He has no history of violence. Dr Nielssen does not consider the offender dangerous. 40I take into account that this is the first recorded occasion of violence by the offender, but it has happened and in particularly brutal circumstances. I take into account the features Dr Furst and Dr Nielssen think important. I agree that it seems unlikely that the offender will come under attack again but the difficulty is to know how he may misinterpret unthreatening circumstances or overreact to any innocent confrontation. In view of Dr Martin's opinion I think that the offender presents a risk of violence. The risk is modest but will increase if he ceases to be properly treated with drugs. 41The offender intended to kill. He is not prepared fully to acknowledge his deliberate use of the rope. 42There are mitigating circumstances. The offender is a person of prior good character. The offence was not planned. There is no expression of regret, however. 43The offender is held in high regard by family and friends and will have support when he needs it on his release. 44In view of the uncertainties about the offender's further treatment I cannot conclude that he will not re-offend. The question of rehabilitation has to be deferred for the same reason and because he has not fully come to terms with what he did. There are prospects, but there is the countervailing risk of further violence. 45The offender is now 67 years old. I take account of his age and the conditions in which he will have to be kept in custody to promote his proper treatment and the reduction of risk. The offender will in consequence serve his sentence hard, and this justifies lowering the non-parole period of his sentence with a corresponding increase in the period for which he will be eligible for release to parole. 46I have considered whether the need to supervise and treat the offender after his release to parole itself justifies a longer parole period and a correspondingly shorter non-parole period, but I do not think that it can. This is not a case in which supervision on parole can be expected to achieve a final, settled and satisfactory state of affairs which might be attained after a period of parole appropriately extended. The offender will have to be supervised and medicated for the rest of his life. That is a matter that parole cannot be expected to deal with. 47The mother of the deceased, Rewa Joan Wallace, prepared a victim impact statement and read it to the Court. Mrs Wallace's statement shows how much the deceased was loved and how great his loss has been to her and her family. The Court cannot take these matters into account in fixing sentence, but it is right to acknowledge, and the court does acknowledge the hurt and suffering that this offence has occasioned to Mrs Wallace and her family and to those who knew and loved the deceased. The sympathy of the Court goes out to Mrs Wallace and to all who have been touched by these tragic events. It is to be hoped that now that these proceedings have finished they will have comfort and healing. 48John Charles McCann, for the manslaughter of Craig Alan Morgan I sentence you to imprisonment. I set a non-parole period of 3 years and 6 months which will be taken to have commenced on 13 March 2011 and which will expire on 12 September 2014. The balance of the term of your sentence will be 3 years and 6 months expiring on 12 March 2018. The first day on which you will become eligible for release to parole will be 12 September 2014. ********** 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. Decision last updated: 29 November 2012