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Gerard Fleming – NSW


Gerard Fleming

 

The recent decision by NSW Supreme Court Justice David Kirby to hand down a reduced charge of manslaughter to the teenager who perpetrated the hate-murder against Gerard Fleming, is cause for great concern for the GLBTI community.

The murder was clearly a homophobic act, and the judgment by Justice David Kirby is a rehash of the largely discredited ‘Homosexual Advance Defence’ (HAD), in which non-violent sexual advance is customarily assumed as aggression, thereby provoking a murderous response.

The transfer of HAD theory from ‘provocation’ to ‘excessive self-defence’ is not the solution – the murder of Gerard Fleming was a result of panic due to a ‘homosexual advance’ – it was a sexuality related hate-crime.

The NSW Attorney General John Hatzistergos has effectively declined to appeal the sentence, and has instead defended this homophobic law.

The Attorney Generals’ comments that it was not homosexual panic or a ‘sexuality related hate-crime’ is misleading, and sends a clear message that it is acceptable and reasonable to perpetrate violence and hate-crimes – even murder, against members of the GLBTI community.

The Beat Project is seeking legislative change to remove the inclusion of ‘non-violent Homosexual Advance’ as a reasonable basis for these laws, and abolish homophobic laws – and will work towards bringing an end to bigotry in the justice system.

This must not be allowed to happen again!

We encourage the GLBTI community to be informed and aware of incident that are of great concern for the safety of our community.

Our deepest sympathies and best wishes go out to Gerard’s family and friends.

 

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Beat stabbing ‘wasn’t gay panic’

SSO • January 28, 2009

The manslaughter conviction of a schoolboy for the fatal stabbing of Gerard Fleming wasn’t downgraded because of a homosexual provocation defence, NSW Attorney General John Hatzistergos has said.

Acknowledging community concerns about the three-and-a-half-year non-parole sentence, Hatzistergos said “it is important to note that the Court, including the jury, saw this case as a ‘tragedy arising from a failure to communicate and a misunderstanding’, rather than one involving homophobic motives.” Read more

Read the Supreme Court Decision


Ed. We are deeply disappointed by these comments. The murder of Gerard Fleming was clearly a homophobic hate-crime.

The NSW Attorney General John Hatzistergos has effectively declined to appeal the sentence, and has instead defended this homophobic law.

The Attorney Generals’ comments that it was not homosexual panic or a ‘sexuality related hate-crime’ is misleading, and sends a clear message that it is acceptable and reasonable to perpetrate violence and hate-crimes – even murder, against members of the GLBTI community.

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Fred Nile questions beat killer sentence

SX • January 21, 2009

The Rev. Hon. Fred Nile, leader of the Christian Democratic Party and strident anti-Mardi Gras campaigner, has written to NSW Attorney-General John Hatzistergos questioning the length of the prison sentence given to the teenage killer of Gerard Fleming, a 35-year-old autistic man, at a gay ‘beat’ at Narrabeen in June 2007.

The teenager, who cannot be named for legal reasons, had murder charges against him dropped when Justice David Kirby accepted that the boy was acting in self-defence, fearing sexual assault, when he stabbed Fleming to death.

In a letter to Hatzistergos, seen by SX, Nile wrote: “I have received complaints over the low sentence given to the teenager who stabbed Gerard Fleming to death … He only received a three-and-a-half year sentence. Do you plan to appeal this low sentence?” Read more

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Homosexual Advance Defence

Clover Moore eNews 430 • January 16, 2009

The NSW Attorney General has responded to concerns I raised about killing linked to sexuality, following the manslaughter conviction for the death of a gay man with a disability in Narrabeen.

The Attorney General says that the judge in this case stated that it was not motivated by hate or homophobia, but was seen as “excessive self-defence”. He also points out that the person who was convicted of the killing was 16 years old at the time.

I raised concerns about “Homosexual Advance Defence”, a legal principle that allowed someone to argue that they were provoked by non-violent sexual advances, reducing their responsibility. The Attorney General says that the Government has implemented all recommendations of the 1998 Working Party on Homosexual Advance Defence, except for the specific changes to the Crimes Act, which were covered by 2001 changes that allow the defence of “excessive self-defence”. Read more

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Teen jailed for autistic man’s toilet death

ABC News • November 28, 2008

A teenager who stabbed an autistic man to death in a Sydney toilet block has been sentenced to seven years in jail.

A Year 11 student, who was 16 at the time, was found guilty of manslaughter.

The court heard the teenager had been drinking with Gerard Fleming, but told a friend the 35-year-old tried to rape him in the toilet block, which was a well-known gay beat.

In handing down the sentence, Justice Kirby said the crime was compulsive and the offender was remorseful.

But he said human life is sacred and it was still a senseless death that had arisen from a misunderstanding. Read more

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Schoolboy jailed for fatal stabbing

Brisbane Times • November 28, 2008

A Sydney schoolboy who fatally stabbed a man with Asperger’s Syndrome in a public toilet has been sentenced to a maximum of seven years in jail.

The 18-year-old said the stabbing occurred after Mr Fleming – with whom he had been sharing a beer while sheltering in the toilets during a storm – approached him with his trousers pulled down and tried to grab him in a bear hug.

The youth claimed he was provoked and acted to protect himself, a defence accepted by the jury in its manslaughter verdict. Read more

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Schoolboy beat killer “not homophobic”

SX • November 28, 2008

A schoolboy who stabbed an autistic gay man to death at a Sydney beat was “not homophobic” according to a judge who sentenced him to jail last week.

The 18 year old may serve as little as three-and-a-half years in prison for the manslaughter of Gerard Fleming at Narrabeen last June.

The court had heard Fleming, 35, and the youth, who cannot be named for legal reasons, were sharing a beer at a Narrabeen toilet block while sheltering from a storm.

Fleming, a “gentle, childlike man” with Asperger’s Syndrome later approached the youth with his trousers down and attempted to hug him.

NSW Supreme Court justice David Kirby said the killing was the result of a failure of communication.

“He feared that he may be raped or sexually assaulted,” Kirby told the court as he handed down the sentence.

“He says, and I accept, he is not homophobic.

“(Mr Fleming) was by all accounts a gentle and child-like man who was utterly benign. This was in every sense a tragedy arising out of a failure to communicate.

“(It was) the product of immaturity as well as his decision to carry a knife,” Kirby said. Read more

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Schoolboy jailed for fatal stabbing

The Age • November 28, 2008

A Sydney schoolboy who fatally stabbed a man with Asperger’s Syndrome in a public toilet has been sentenced to a maximum of seven years in jail.

The 18-year-old, who cannot be named for legal reasons, in August was found guilty of the manslaughter of Gerard Fleming.

The youth claimed he was provoked and acted to protect himself, a defence accepted by the jury in its manslaughter verdict.

He faced up to 25 years in prison, but on Friday in the NSW Supreme Court received a seven-year sentence, with a non-parole period of three-and-a-half years. Read more

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Seven years for killer

Cumberland Courier • November 28, 2008

AN emotional court case, which has devastated two families, has ended with the teenager convicted of stabbing autistic Narrabeen man Gerard Fleming jailed for manslaughter.

Justice David Kirby yesterday ordered the Collaroy youth to serve at least three-and-a- half years of his seven-year sentence at a juvenile detention facility.

With the sentence backdated to his arrest in 2006, the 18-year-old will be eligible for release on parole in January 24, 2011. Read more

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A homophobic defence

onlineopinion.com • September 8, 2008

Recently, a Sydney schoolboy who fatally stabbed a 35-year-old autistic man was cleared of murder charges. The 18-year-old, who cannot be named for legal reasons, met the victim, Gerard Fleming, at a public toilet block at Narrabeen on Sydney’s northern beaches.

Not realising that the toilet block was a well known gay beat, the youth responded with extreme violence when Fleming made an unwanted sexual pass at him. The youth, who declared himself a heterosexual to homicide detectives and again to the Crown during trial, claimed he was provoked by Fleming and acted to protect himself, a defence which was accepted by the jury in its manslaughter verdict.

The particular legal defence employed in this case is called the Homosexual Advance Defence (or the HAD). Surfacing in Australian criminal jurisdictions in the early 1990s, the basic premise of the HAD is that if a homosexual man makes an unwanted sexual advance towards a straight man, he is “provoking” that man. So, should a straight man respond by killing that homosexual man, the HAD can be engaged to have the charges reduced from murder to manslaughter. Read more

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Autistic stabbing victim Gerard Fleming ‘like a child’

The Daily Telegraph • August 13, 2008

HE was a grown man, but Gerard Fleming’s autistic disorder meant he behaved “like a child in many ways”, a court heard yesterday.

On the last night of his life, he visited a lolly shop and planned to watch Stuart Little – but instead met a violent end.

Mr Fleming, 35, was allegedly murdered by a 16-year-old schoolboy he met near his Narrabeen, New South Wales home.

Stabbed twice, he was found bleeding and calling for help at a bus stop on June 16 last year.

The schoolboy allegedly told a friend that night: “Some guy tried to grab me so I stabbed him.”

When the friend sent him a text message the next day, saying: “You killed him,” the teen allegedly said: “It’s probably good that the guy’s dead so he can’t identify me.” Read more

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Advances by intellectually disabled man cost his life

SMH • August 13, 2008

GERARD FLEMING had met other men at gay beats on the northern beaches, but the intellectually disabled man’s advances towards a teenage boy in the Narrabeen public toilets known as “the tram shed” cost him his life, a court has been told.

A teenager pleaded not guilty in the Supreme Court yesterday to murdering Mr Fleming. Read more

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Gay beat murder: ‘Victim tried to rape me’

ABC News • August 12, 2008

A teenager on trial for the murder of an autistic man in a gay beat told a friend the victim tried to rape him, a court has heard.

The 16-year old has pleaded not guilty to the murder of 35-year-old Gerard Fleming in a Narrabeen toilet block, on Sydney’s northern beaches, in 2007.

Prosecutor Margaret Cunneen SC said the accused had been to several parties that night and was drinking beer with the victim in the toilet block.

She said the accused told a friend the victim tried to grab him and rape him. Read more

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Teen bailed over Fleming murder

SMH • July 27, 2007

A teenage boy charged in connection to the murder of Narrabeen man Gerard Fleming last month will be back at school on Monday after he was freed on bail this morning.

The 16-year-old youth was charged with being an accessory after the murder of 35-year-old Mr Fleming on June 16 and for concealing knowledge of the killing from police. Read more

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Fourth Teenager Charged over Gerard Fleming Murder
Tthe Wanted Blog • July 31, 2007

A fourth teenager has been charged by Homicide Squad detectives investigating the stabbing death of a man on Sydney’s northern beaches last month.

Detectives arrested the 18-year-old at Warriewood shortly before 11am today and conveyed him to Dee Why Police Station for questioning

This afternoon he was charged with conceal a serious indictable offence of another person and hinder the investigation of a serious indictable offence. Read more

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Third teenager charged over killing of autistic man in Sydney

Autism Connect News • July 30, 2007

SYDNEY, Australia: A third teenage boy has been charged over the stabbing death of a 35-year-old autistic man on Sydney’s northern beaches.

A 17-year-old Narrabeen boy was charged on July 30 with concealing the serious offence. He was granted conditional police bail to appear in Bidura Children’s Court on August 29.

Last week, a 16-year-old Collaroy boy faced court and pleaded not guilty to murdering Mr Fleming. He was refused bail. A second 16-year-old boy, from Warriewood, was granted bail after a separate court appearance last week on one charge of being an accessory to murder and one count of concealing a serious offence.

Homicide Squad detectives at Dee Why police station charged the third youth on the afternoon of July 30.

Mr Fleming was able to identify a youth who had allegedly stabbed him at a public toilet on Sydney’s northern beaches, a court has been told.

The 16-year-old Collaroy youth accused of murdering Mr Fleming was refused bail after claiming he was the victim of a sexual advance. The youth appeared in Sydney’s Bidura Children’s Court following his arrest. He pleaded not guilty to the murder charge.

Mr Fleming, a Narrabeen resident, died at Royal North Shore Hospital after treatment from multiple stab wounds suffered before midnight on June 16.

Applying for conditional bail, the youth’s lawyer, Ian Byrne, told the court there were exceptional circumstances surrounding the case. Extreme provocation and self-defence were issues, he said.

Mr Byrne said that shortly after the boy and Mr Fleming struck up a conversation on a nearby street, Mr Fleming had entered the public toilets, grabbed the boy around the waist from behind and pinned his arms.

“He was the victim of a sexual advance,” Mr Byrne said. ”He had his arms pinned.” Read more

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Dying man ‘identified murder accused’

The Age • July 26, 2007

A dying autistic man was able to identify a youth who had allegedly stabbed him at a public toilet on Sydney’s northern beaches, a court has been told.

A 16-year-old Collaroy youth accused of murdering Gerard Fleming, 35, in a toilet block near Narrabeen shops was refused bail Thursday after claiming he was the victim of a sexual advanceRead more

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Oz search for killer of autistic Irish ‘gent’

Evening Herald (Dublin, Republic of Ireland) • July 3, 2007

AUSTRALIAN police have released CCTV footage of a man they want to question about the killing of an autistic Irishman.

Gerard Fleming (35) was was repeatedly stabbed in the upper body in a Sydney suburb on June 16.

Mr Fleming, who had a type of autism called Asperger’s syndrome, was dubbed “Gentle Gerard” by local media.

His heartbroken mother, Margaret Fleming, originally from Co Kilkenny, said at the time: “I’ve lost my beautiful boy. I want the culprit found so he doesn’t destroy anyone else.