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Supreme Court 20 October 2023

R v Early (No 8)

[2023] NSWSC 1222

Homicide
CRIME — S ENTENCE — M URDER

Citation: R v Early (No 8) [2023] NSWSC 1222
Court: Supreme Court of New South Wales
Date: 20 October 2023
Judge: Yehia J

Background

The offender, Stanley Bruce Early, was convicted by a jury on 7 June 2023 of the murder of Raymond Frederick Keam, committed on or about 13 January 1987 in Randwick, New South Wales. The two men were strangers. Mr Keam, a black belt in karate, had driven to Alison Park late that night. Alison Park was known at the time as a location where men met for sex with other men.

The offender had a documented pattern of targeting men he believed to be homosexual in Alison Park. On the night in question, he was present in the park with a group of unknown others. After confronting Mr Keam near the toilet block and telling the group "We have another one," the group assaulted Mr Keam, leaving him on the ground. He died from traumatic subarachnoid haemorrhage caused by blows to the head, with additional injuries consistent with punches, kicks, and being stomped while on the ground.

The jury rejected a verdict of manslaughter and returned a verdict of murder. Sentencing proceedings were heard on 29 September 2023. The offender continued to deny involvement but the court sentenced on facts it found open on the evidence, including the jury's verdict.

  • What sentence was appropriate for a murder committed in 1987 where the offender did not intend to kill but intended to cause really serious bodily harm as a party to a joint criminal enterprise?
  • How should sentencing patterns at the time of the offending in 1987 inform the exercise of the sentencing discretion?
  • Whether the offence was aggravated by being motivated by hatred of or prejudice against homosexual men, and how that factor should be weighed.
  • Whether special circumstances existed warranting a variation of the statutory ratio between the non-parole period and the balance of term, given the offender's advanced age, depression, and suicidal tendencies.

Decision

Yehia J sentenced the offender on the basis that he was a party to a joint criminal enterprise to assault Mr Keam with the intention of causing him really serious bodily harm. The offender either directly participated in the assault or encouraged others to carry it out. There was no finding that the offender intended to kill Mr Keam.

The court found the offence was motivated by hatred of and prejudice against homosexual men, treating this as a significant aggravating feature under s 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The prolonged and violent nature of the attack, combined with the offender's role in rallying the group, elevated his moral culpability.

In calibrating the sentence, Yehia J had regard to sentencing patterns at the time of the offending in 1987, as required where historical offences are involved, while also applying current sentencing principles. Comparable cases from the period were reviewed and the court acknowledged those patterns generally produced lower sentences than would be imposed today. A comparable case referenced in the judgment involved an offender sentenced to 16 years and 8 months imprisonment with a non-parole period of 12 years and 6 months for a similarly aggravated murder.

On special circumstances, the court accepted that a modest variation of the statutory ratio was warranted. The offender's advanced age and mental health conditions, including depression and suicidal tendencies, meant he would require an extended period of supervised adjustment to community life, and any prospects of rehabilitation would be better supported by a longer period on parole supervision.

Orders Made

  • The offender was convicted of murder.
  • A total term of 22 years imprisonment was imposed, comprising a non-parole period of 15 years and 6 months (commencing 8 October 2021, expiring 7 April 2037) and a balance of term of 6 years and 6 months.
  • The offender will be eligible for parole on 7 April 2037.
  • The court noted that the Crimes (High Risk Offenders) Act 2006 (NSW) has potential application and directed that the offender's legal representatives advise him accordingly.
  • The court recommended that the offender be detained at Long Bay Hospital so that his mental health needs could be addressed.

Key Takeaways

  • For historical murder offences, the sentencing court must have regard to sentencing patterns at the time of the offending, even while applying current sentencing principles, which may result in a lower sentence than would be imposed for equivalent conduct today.
  • A party to a joint criminal enterprise who intends to cause really serious bodily harm, but not death, remains liable for murder under s 18(1)(a) of the Crimes Act 1900 (NSW) where death results from the agreed assault.
  • Motivation by hatred of or prejudice against homosexual men constitutes a statutory aggravating feature under s 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was treated as a significant element of the offender's moral culpability.
  • Special circumstances justifying a variation of the standard non-parole period ratio are not confined to a fixed list; the court found them established here on the basis of the offender's advanced age, mental health, and the need for extended post-release supervision to support rehabilitation.
  • The Supreme Court noted that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to the offender on release, reflecting the ongoing relevance of that regime to serious violent offenders even where the underlying offence is historical.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(h), 21B(1), 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Life Sentences) Amendment Act 1989 (NSW), s 19A

Cases:
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v Holyoak (1995) 82 A Crim R 502
- R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
- Apps v R [2006] NSWCCA 290
- Charbaji v R [2019] NSWCCA 28
- DH v R [2022] NSWCCA 200
- Kochai v R [2023] NSWCCA 116
- R v Walker [2023] NSWCCA 219
- R v Katsis [2018] NSWCCA 9
- R v White [2022] NSWSC 525; [2023] NSWSC 611
- R v Anthony Robert Williams [2005] NSWCCA 99
- Versluys v R [2008] NSWCCA 76
- R v RLP [2009] VSCA 271; (2009) 213 A Crim R 461
- R v McAuliffe & Ors (Supreme Court (NSW), Wood J, 7 August 1992, unrep)
- R v Calleja (Supreme Court (NSW), Slattery AJ, 19 July 1991, unrep)
- R v Livermore (Supreme Court (NSW), Hunt CJ at CL, 30 November 1992, unrep)
- R v Mihailovic; R v Howard; R v Morgan; R v Young (Supreme Court (NSW), Badgery-Parker J, 15 April 1991, unrep)