R v McDonald

1. [1]

   HIS HONOUR: Andrew McDonald was charged with the murder of his brother Edward McDonald at Taree on 21 January 2017. Mr McDonald pleaded not guilty to that charge. However, when arraigned before the jury panel on the first day of the trial, he offered to plead guilty to manslaughter. That plea was not accepted by the Crown and the matter thereafter proceeded immediately to trial. Mr McDonald had earlier offered to plead guilty to manslaughter by unlawful and dangerous act in correspondence dated 10 October 2017 when the matter was still before the Local Court at Taree but this offer was also rejected by the Crown.

2. [2]

   At 2.00pm on the sixth day of the trial, the jury returned a verdict of not guilty of murder. For obvious reasons, having regard to his plea, the jury were not required to deal with an alternative verdict. In those events, Mr McDonald now stands to be sentenced for the offence of manslaughter in accordance with his plea.

3. [3]

   Section 24 of the Crimes Act 1900 provides as follows:

Background facts

1. [4]

   Although it is not strictly necessary to do so, having regard to the verdict of not guilty to murder, I note that the following matters are those that I consider are consistent with, or appear helpfully to inform, the jury’s verdict in this case.

2. [5]

   For some time prior to 21 January 2017, Ruth Knight lived in a single bedroom apartment in Hooke Street, Taree provided by the Department of Housing. When the deceased was killed, Ms Knight had been in a relationship with him for a number of years and he either visited her regularly at her apartment or, on her version of events, resided there with her on a full-time domestic basis.

3. [6]

   Apparently in the course of the year preceding the events of 21 January 2017, Mr McDonald moved into the apartment next door to Ms Knight following the breakdown of a 38-year relationship with his partner Debbie Clarke. It would seem that Mr McDonald and the deceased were even then not on good terms following an apparently unresolved dispute between them that had its origin in something that had occurred at a birthday function about a year beforehand. The evidence at the trial established that Mr McDonald and the deceased argued frequently and that these arguments regularly degenerated into slanging matches in which each of them would hurl abuse at the other. Ms Knight was a vocal contributor to these exchanges.

4. [7]

   On the evening in question, Ms Knight and the deceased themselves became involved in a noisy domestic dispute. The walls between the two apartments were thin and sounds from one unit could be heard easily in the other. Complaints about this disturbance by Mr McDonald only served to generate more noisy responses from Ms Knight. In circumstances to which I will later refer, Mr McDonald decided to take matters into his own hands. He took a knife from his kitchen drawer and went next door.

5. [8]

   The deceased was at that time seated on a lounge in the front room of Ms Knight’s apartment. Ed Wilkinson was seated next to the deceased. Mr McDonald walked up to the deceased and stabbed him once in the left side of his chest. The deceased exclaimed, “Gunner, you got me”. Mr McDonald replied, “Fuck ya”. Mr McDonald then turned and walked out of the apartment to his neighbours’ house across the street and told them that he had stabbed his brother. He asked them to call the police. The deceased died almost immediately, despite attempts to revive him, from severe blood loss occasioned by damage to his significant venous and arterial vessels.

6. [9]

   Police arrived at the scene within minutes and arrested Mr McDonald. He was taken to Taree police station and charged with murder. It was not until that time that Mr McDonald became aware that the deceased had died from the injury inflicted upon him. Although initially aggressive and uncooperative with the police, and well affected by alcohol, Mr McDonald became immediately calm and subdued when he learned what he had done.

7. [10]

   Mr McDonald participated in an electronically recorded interview with the police in the early hours of the following morning. He told the police that when he arrived home that evening, Ms Knight and the deceased were talking about him and things escalated. Asked to explain what he meant, Mr McDonald said that as soon as he heard his name mentioned and “bad words behind it”, he just went next door with a knife. He said, “I took my knife with me and just confronted him first off”. He said that he asked them not to talk about him anymore and they told him “to fuck off”. Thereafter he said he “just took the situation in [his] own hands”. When asked specifically by the police what his intentions were, he said “my intentions were just to take it next door and frighten him”.

8. [11]

   A little later in the same interview, Mr McDonald related what happened in the following way:

9. [12]

   Mr McDonald has remained in custody since the day of his arrest.

Psychiatric evidence

1. [13]

   I was provided with a report dated 1 February 2018 from Dr Jonathon Adams, a forensic psychiatrist. That report would appear to have been commissioned for the purpose of assessing whether or not Mr McDonald was fit to plead. In the course of dealing with that issue, Dr Adams took a history from Mr McDonald that included the following material:

2. [14]

   Dr Adams did not suggest that Mr McDonald was suffering from any psychiatric or psychological illness or condition that was relevant to his commission of the subject offence.

Subjective circumstances

1. [15]

   Mr McDonald did not give evidence before me. He was born in July 1960 and had his 59th birthday during his trial. He was 56 years of age at the time of the events that are at the heart of these proceedings. He is an indigenous Australian.

2. [16]

   His sister Joan McDonald provided an affidavit sworn on 8 July 2019. At the risk of unnecessarily expanding the length of these remarks, I propose to set out a significant amount of what Ms McDonald has recalled:

3. [17]

   Ms McDonald was not required for cross-examination.

Remorse and contrition

1. [18]

   Mr McDonald explained to the police in his record of interview given within several hours of the death of the deceased that he was sorry for what he had done. He said, when asked at the end of his interview if there was anything he wished to add, that he regretted his actions. He said as much to his neighbour Mr Burke when he asked him to call the police. Neither his actions nor his words since then, including his plea of not guilty to murder, has in any way derogated from his early and consistent expressions of remorse.

Deterrence

1. [19]

   In my opinion, there is little if any call for specific deterrence in this case. Mr McDonald does not represent a threat of future dangerousness and the need to reinforce the tragic significance of his admitted criminal conduct has now obviously merged in his painful understanding and appreciation of his actions and the consequences of those actions for him and his family.

2. [20]

   Nor in my opinion does general deterrence loom large in the events with which I am required to deal. Even though a powerful argument can be mounted, that crimes of passion or spontaneous loss of self-control, such as here occurred, do not sit comfortably with the idea that a person might be convinced to think twice before acting if they quietly and rationally contemplated or appreciated the possible consequences of their actions, the law nevertheless insists that general deterrence continues to have a role to play. Without diverting from authoritative judicial exhortations to that effect, I am only prepared to conclude that I should sentence Mr McDonald in a way that takes account of the need for general deterrence to a limited extent. It seems to me to be an extremely remote prospect that anything will be achieved, in terms of informing or educating the wider community upon the perils of crime, by a close examination or dissection of a sentence that I impose upon this offender in the particular but spontaneous circumstances of this case.

Unlawful and dangerous act

1. [21]

   Having regard to the following matters, I consider that the jury could not have been satisfied that Mr McDonald had formed an intention either to kill the deceased or to cause him really serious injury. This is for a number of reasons.

2. [22]

   First, the jury deliberated for only 35 minutes before handing a note to the sheriff indicating that they had arrived at a verdict. Having regard to the fact that the partial defence of extreme provocation had been left to them (see R v McDonald [2019] NSWSC 839), it seems to me to be abundantly clear that the jury could not have considered that issue in the time taken, but instead proceeded to find that the mental element of the offence of murder had not been proved by the Crown to their satisfaction beyond reasonable doubt.

3. [23]

   Secondly, Mr McDonald’s interview with the police included his version of what occurred and his reasons for doing what he did. That interview was evidence from which the jury could well have concluded that Mr McDonald had the intention that he described, being an intention to do no more than frighten the deceased.

4. [24]

   Thirdly, Ed Wilkinson gave evidence of what occurred from his significant, albeit distressing, vantage point sitting next to the deceased when he was stabbed. The burden of his evidence is that he did not realise or appreciate that Mr McDonald had stabbed the deceased until after it had happened. He said in evidence that he thought Mr McDonald had merely “pointed him in the chest”, suggesting that he initially and contemporaneously interpreted what occurred as a non-lethal remonstration by Mr McDonald with the deceased.

5. [25]

   Fourthly, Dr Beer, a forensic pathologist, gave evidence that the amount of force that would have been required to cause the deceased’s fatal injuries would not have been substantial. That appears clearly to coincide with Mr Wilkinson’s observations at the time as well as with Mr McDonald’s expressed intentions as related to the police after the event. Moreover, as Dr Beer indicated, death was occasioned only because the knife used by Mr McDonald perchance happened to perforate significant blood vessels causing immediate and substantial blood loss. The same wound would not have caused death if it had only resulted in an intramuscular lesion.

6. [26]

   Fifthly, Mr McDonald’s demeanour changed significantly when he learned from the police that he had killed his brother. Initially, he insisted that he only stabbed him in the shoulder, but was clearly alarmed to be told that in fact he had stabbed him in the chest. That alteration in mood, from indignant disbelief to distressed resignation, would appear to be entirely consistent with Mr McDonald’s asserted intention that he had intended to stab him in the shoulder.

7. [27]

   Finally, the evidence clearly revealed that Mr McDonald had consumed alcohol on the day leading up to the killing. Several police officers gave evidence that Mr McDonald exhibited signs of being moderately to well-affected by alcohol consumption. The jury were addressed upon the importance of this in considering the issue of whether or not Mr McDonald formed an intention to kill or seriously injure the deceased and were expressly addressed by Mr Watts of counsel for Mr McDonald to suggest that they could conclude that Mr McDonald was so affected that he was unable to form not only the requisite intention but possibly any intention at all.

8. [28]

   For these reasons it seems apparent that Mr McDonald should now be sentenced upon the basis that the death of the deceased was caused by his unlawful and dangerous act, where a reasonable person in his position would have realised that he was exposing his brother to an appreciable risk of serious injury by stabbing him as he did: Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 at 333.

Objective seriousness

1. [29]

   At the risk of some repetition, the following things should be noted in this context.

2. [30]

   Mr McDonald stabbed the deceased only once by pushing the knife forward in a horizontal “pointing” motion. The amount of force used was not significant as the blade did not penetrate beyond approximately one third of its length despite only passing through soft tissue. The injury was only fatal because the blade caused incised wounds to the front of the aorta and brachiocephalic vein causing major blood loss. It would not have been a significant injury if the blade had missed those major blood vessels. Mr McDonald immediately went to his neighbour’s residence and asked them to call the police as he had stabbed his brother. He participated in an ERISP the following morning and made full admissions.

3. [31]

   The offence involved the use of a weapon and took place in the home where the deceased lived. It was not, however, part of a planned or organised criminal activity and was unarguably impulsive and unplanned. Moreover, I am satisfied that in committing this offence, Mr McDonald was clearly provoked by the deceased. In this last respect I have taken account of the Crown’s submission that the evidence about this is scant. However, if one stands back from the incident in an attempt to explain why it occurred, it is difficult not to conclude that the deceased’s behaviour played a not insignificant role in causing Mr McDonald to do what he did.

4. [32]

   I consider in those circumstances that Mr McDonald’s offence is by no means the most serious example of offences of its kind. There is no escaping the reality that the offence committed by Mr McDonald caused the death of another person. However, in that context it is my view that the offence lies well towards the bottom of the range of objective seriousness for offences of this type.

Discount for guilty plea

1. [33]

   As already observed, Mr McDonald offered to plead guilty to manslaughter as early as October 2017. In R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, Howie J set out some principles of general application at [32] including the following:

2. [34]

   In my view, Mr McDonald is entitled to a 20 percent discount for the value of his plea. It was offered at a very early stage in the proceedings. It was vindicated by the verdict of the jury in his trial. There are in this case good reasons not to reduce the amount of the discount further below the maximum that is available in the circumstances.

Consideration

1. [35]

   The maximum penalty for manslaughter is 25 years imprisonment. Since the offence of manslaughter covers such a wide variety of circumstances with differing penal consequences, determining an appropriate sentence for manslaughter is “notoriously difficult”: R v Green [1999] NSWCCA 97 at [24]. In R v Blacklidge (unrep, 12 December 1995, NSWCCA), Gleeson CJ said this:

2. [36]

   I consider that Mr McDonald is unlikely to re-offend. Although he has a modest criminal history, Mr McDonald has conspicuously committed no offence of any kind since 2004 when he was sentenced to 100 hours of community service for an assault occasioning actual bodily harm. Possibly even more significantly, his last offences before that were in 1991. Having regard to the matters to which I will shortly refer, these are factors of considerable predictive importance.

3. [37]

   If it were necessary to do so, I would also find that Mr McDonald has excellent prospects of rehabilitation. I express myself in those terms having regard to the fact that Mr McDonald’s offence was, as he described it, a moment of madness, in what had been for nearly 30 years a relatively trouble free life. I am not unmindful of the somewhat patronising tone that accompanies a finding that a particular offender has prospects of rehabilitation when, as here, a momentary lapse of control lies at the heart of the problem. I have already indicated that there can be no issue that Mr McDonald has adequately and genuinely expressed remorse for his actions. My observations of his demeanour in court during his trial at various points of significance reinforced that view.

4. [38]

   As will be apparent, Mr McDonald comes from an indigenous background marked by significant deprivation and disadvantage. The affidavit evidence from his sister extracted above is a sad but eloquent demonstration of that fact. The High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 made reference to this as follows:

5. [39]

   There is a well-known but unacceptable and disproportionate representation by indigenous Australians in the gaols of this country. There are many and varied reasons for this. In the case of Mr McDonald, his whole life has been punctuated with the depredations of family violence and alcohol and drug abuse. It is hard to imagine how anyone, even equipped with the most ferocious resolve, could ever avoid or escape being damaged by such things.

6. [40]

   A poignant flavour of this was offered up by Mr McDonald’s sister, Dulcie McLaughlin, when she spoke during Mr McDonald’s interview with the police. She told the police that “drugs and alcohol have been the problem in my family for a long time”.

7. [41]

   In coming to a view about what should be a proper sentence to impose in this case, I have taken these matters into account.

8. [42]

   I find that there are special circumstances as contemplated by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 based on the need for Mr McDonald to undertake rehabilitation and assistance in relation to substance abuse once released into the community and the desirability of supervision to monitor that process. I have taken account of the report of Dr Adams and his recommendations in this respect. There can be no guarantee that Mr McDonald’s return to the very community from which these proceedings have sprung will not create difficulties for him as he works to readjust his life there. The guidance and assistance of the NSW Probation Service will be very important in this process.

Victim impact statement

1. [43]

   I was provided with a written statement prepared by Ruth Knight, the long-term partner of the deceased. Ms Knight spoke of her understandable reactions to the death of Edward McDonald, as well as that of their two children. All of these people would appear to be labouring with the burden of grief in various and personal ways. Edward McDonald’s death is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of Edward McDonald in the eyes of his family and friends who remember him. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and Bollen v R (1998) 99 A Crim R 510, and I must conform to them.

Crimes (High Risk Offenders) Act 2000

1. [44]

   By reason of the offence for which Mr McDonald is to be sentenced, he is a person who has committed a “serious violence offence” for the purposes of the Crimes (High Risk Offenders) Act 2000. That Act establishes a regime by which such an offender may become the subject of extended supervision orders or continuing detention orders before the expiration of his or her sentence. I am required by s 25C(1) of the Act to warn Mr McDonald of the existence of the Act and its application to him.

2. [45]

   For reasons that I trust will be obvious, however, I would anticipate and hope that Mr McDonald’s circumstances would not and will not attract the practical operation or implementation of any of the provisions of that Act. Mr McDonald is in need of continued community and family support rather than extended detention or cumbersome institutional supervision. His family attended in large numbers throughout the course of his trial and appears to me to offer the prospect of a very real source of productive reassurance and support. Moreover, the sentence that I intend to impose has been structured to ensure that Mr McDonald remains under the supervision of the NSW State Parole Authority for some years.

Sentence

1. [46]

   Andrew John McDonald, for the wrongful killing of Edward McDonald I sentence you to a non-parole period of 3 years imprisonment commencing on 21 January 2017 and expiring on 20 January 2020 with a balance of term of 3 years expiring on 20 January 2023. The first date upon which you will become eligible for release on parole is 21 January 2020.