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Supreme Court 12 May 2017

R v Gordon (No 8)

[2017] NSWSC 574

Homicide
CRIMINAL LAW SENTENCE OFFENDER CHARGED WITH MURDER FINDING OF SPECIAL CIRCUMSTANCES

Citation: R v Gordon (No 8) [2017] NSWSC 574
Court: Supreme Court of New South Wales
Date: 12 May 2017
Judge: Campbell J

Background

The offender was charged with the murder of Danial Cotter, who died from blunt force trauma to the head in the early hours of 7 November 2013 at a remote station property approximately 80 kilometres northwest of Grafton. Both the offender and the deceased were grossly intoxicated at the time. The offender had entered a plea of not guilty to murder but guilty of manslaughter at the outset of proceedings.

After a trial at Grafton commencing on 9 February 2017, the jury returned verdicts of not guilty of murder and guilty of manslaughter on 3 March 2017. The Crown had argued two alternative bases for murder: that the offender had both reversed a Mitsubishi Magna motor vehicle over the deceased and struck him three times with a large boulder (weighing approximately 21 kilograms), with the intention of killing or causing really serious injury.

The sentencing hearing required Campbell J to make independent findings of fact about the circumstances of the killing, for the purpose of assessing the offender's culpability and the objective seriousness of the offence.

  • What facts could the sentencing judge find, consistently with the jury's manslaughter verdict, regarding how the fatal injury was inflicted?
  • Whether the offender used the boulder as a weapon to bludgeon the deceased, in addition to or instead of using the motor vehicle.
  • Whether the manslaughter was properly characterised as manslaughter by unlawful and dangerous act.
  • What sentence was appropriate, including whether special circumstances existed to vary the statutory ratio between the non-parole period and the additional term.

Decision

Fact-finding at sentence

Campbell J confirmed that a sentencing judge is not bound by any particular view of why the jury returned its verdict. However, two constraints apply: the judge's findings must be consistent with the jury's verdict, and any facts bearing on culpability must be established to the judge's actual satisfaction beyond reasonable doubt. The judge is not required to sentence on the most favourable version of events available, provided the facts found are proven to the requisite standard.

Central factual finding: the vehicle, not the boulder

Campbell J found that the offender fatally injured the deceased by intentionally reversing the Mitsubishi Magna over him. Because of his gross intoxication, the offender acted impulsively and did not form any actual specific intention to kill or cause serious injury, and did not turn his mind to the consequences of his actions. The judge was not satisfied beyond reasonable doubt that the boulder was used as a weapon.

Two key reasons supported this conclusion. First, Campbell J reasoned that even a grossly intoxicated person would not strike another three times with a 21-kilogram boulder unless forming the specific intent to do at least really serious harm, making such a finding inconsistent with the manslaughter verdict. Second, the bloodstain pattern evidence did not support forceful contact between the boulder and the deceased's head. Expert witnesses, including a forensic officer and a defence expert, agreed there was an absence of impact spatter on the boulder, and that contact stains did not exhibit characteristics consistent with forcible striking. One expert noted that had the rock been used as a weapon, the staining pattern would have been markedly different.

Categorisation of manslaughter and objective seriousness

The offence was characterised as manslaughter by unlawful and dangerous act. Campbell J acknowledged the very wide range of conduct encompassed by the crime of manslaughter, noting the difficulty in drawing direct comparisons with other cases. The sentencing court had regard to the principles in Munda v Western Australia concerning the objective seriousness of manslaughter involving family or domestic violence and intoxication in a broader context.

Sentence

Taking into account punishment, denunciation, vindication of the victim's life, proportionality, general and personal deterrence, and rehabilitation, the judge assessed a notional starting point of approximately 12 years. The offender's plea of guilty to manslaughter warranted a reduction, yielding a total term of 10 years. A finding of special circumstances was made, having regard to the offender's rehabilitative needs, general health, and the fact that this was his first period of custody. The judge noted that release on parole at the expiration of the non-parole period is not automatic and depends on the independent decision of the State Parole Authority.

Orders Made

  • Total term of imprisonment: 10 years
  • Non-parole period: 6 years and 6 months, commencing 7 November 2013 and expiring 6 May 2020
  • Additional term: 3 years and 6 months, commencing 7 May 2020 and expiring 6 November 2023
  • First eligible for parole: 6 May 2020
  • The offender was advised that the offence may constitute a serious violence offence under the Crimes (High Risk Offenders) Act 2006 (NSW), with potential liability for extended detention or supervision after sentence expiry

Key Takeaways

  • At sentencing, a judge is not required to divine the basis of the jury's verdict but must make independent findings of fact consistent with that verdict, proven beyond reasonable doubt, not merely adopt the most favourable version available to the offender.

  • Consistency with the manslaughter verdict was itself a constraint on factual findings: Campbell J reasoned that use of a 21-kilogram boulder struck three times would be inconsistent with the absence of specific intent required for a manslaughter-only verdict.

  • Expert bloodstain pattern analysis, while accepted as specialised knowledge under the Evidence Act 1995 (NSW), does not rest on "hard and fast clearly established scientific rules" and must be evaluated in the context of all circumstances proved by the evidence, not in isolation.

  • Under the approach confirmed in R v Baden-Clay and The Queen v Hillier, circumstantial evidence must be assessed holistically. The presence of the offender's DNA on the boulder and the bloodstaining pattern were evaluated as part of the whole evidentiary picture, not as stand-alone items.

  • A finding of special circumstances, permitting departure from the standard statutory ratio between non-parole period and additional term, may be supported by an offender's rehabilitative needs, health considerations, and the fact of a first period of custody.

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- R v Baden-Clay (2016) 334 ALR 234
- R v Bouggas [2015] NSWSC 914
- Cheung v The Queen (2001) 209 CLR 1
- The Queen v Hillier (2007) 338 CLR 618
- R v Isaacs (1997) 41 NSWLR 374
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v Western Australia (2013) 249 CLR 600