R v Anderson

Factual Matters

1. The facts upon which the offender is to be sentenced were set out in a Statement of Agreed Facts, Exhibit A ("the Agreed Facts"). It is there stated that the offender and the deceased, Allira Green, commenced a relationship in early 2013. At the date of her death Ms Green was aged 23 years. Her relationship with the offender resulted in the deceased falling pregnant. She was approximately 5-6 months pregnant at the time of her death. As at that date the offender and the deceased had not been living together.
2. There were periods of marked volatility throughout the relationship but that said there is no evidence of any serious prior domestic violence incidents between them. However, on two occasions (16 June 2013 and 27 June 2013) police were contacted by the deceased to report domestic disturbances concerning the offender.
3. In the days leading up to the stabbing incident, the offender and the deceased had exchanged numerous text messages, many of which were heated. The offender and the deceased argued in the text messages in terse and at times in strong language. They also had frequent phone contact with one another in the days prior to 2 August 2013. A record of the calls and text messages between the deceased and the accused was tendered as an attachment to the Agreed Facts. I will refer in greater details to these text messages a little later.

The Events of 2 and 3 August 2013

1. The material facts leading to the stabbing of the deceased were set out in the Agreed Facts at paragraphs 3, 4, 5, 6 and 7. The following facts are based upon that material.
2. On the afternoon of 2 August 2013, the deceased was visiting a friend, Ms Bodeker at her Maroubra premises. The deceased had been dropped there by another friend. Mr Drummond, the partner of Ms Bodeker, was also at the premises at the time the deceased was there. Whilst the deceased was present in her friend's unit she consumed some 'ice' and cannabis.
3. Mr Drummond left the premises late on 2 August 2013, or in the early hours of 3 August 2013.
4. At approximately 12:45am on 3 August 2013, the deceased contacted Ms Holt and asked for a lift back to Ms Holt's home. At this time the deceased had been staying with Ms Holt for a couple of weeks.
5. When Ms Holt arrived to pick up the deceased from the Maroubra unit, she saw that Ms Bodeker and the deceased both appeared distressed.
6. As Ms Holt went to the front door to leave the premises she saw the offender standing on the landing area. There was a struggle between them as he tried to open the screen door.
7. Ms Holt and the deceased told the offender to leave, telling him to "Fuck off".
8. After the offender managed to get into the unit he was in an angry and aggressive state. Upon entering he said that he was there for Ms Bodeker.
9. The offender then said something along the lines of "I'm going to get you". Ms Holt and the deceased tried to push the offender out of the unit.
10. The offender grabbed Ms Holt by the neck and pushed her, and the force applied caused her to fall backwards into the deceased and Ms Bodeker. The three women fell to the floor at the other end of the room a few metres away.
11. The deceased made her way over to a kitchen drawer and took out a black-handled kitchen knife. She held the knife above her head and moved towards the offender. When she was close to the offender with the knife in hand a brief struggle ensued between them, that is, the deceased and the offender. In the course of that struggle the offender grabbed the knife from the deceased. He then stabbed her on the right side of the chest. Subsequent forensic examination established that the stab wound was approximately 150mm deep and penetrated the chest wall and upper portion of the heart.
12. Having stabbed the deceased, the offender left the unit.
13. The offender in all was present in the Maroubra unit premises for no more than five minutes between phone calls which he made at 1:05am and 1:10am. The ambulance was called at 1:11am by Ms Holt, who with Ms Bodeker, rendered assistance to the deceased. They commenced CPR in accordance with instructions given. By the time the NSW Ambulance Service officers arrived it was determined that the deceased was dead by reason of one fatal stab wound to the chest.
14. A short time later, police arrived and declared the unit a crime scene. The blood-stained knife was located under the north-east corner of the dining room table.
15. The offender met up with a friend shortly after he left the unit, a Mr Timbery. According to the Agreed Facts he admitted to Mr Timbery that he had consumed some 'ice' and Xanax prior to the incident. In his statements to Professor Woods he said that he had used illicit substances some hours before the stabbing incident.
16. The offender tried calling the deceased at 1:13am and then at 4:51am and at 4:52am on 3 August 2013.
17. At about 11:55am on 3 August 2013, he attended Maroubra Police Station in the company of his solicitor. He was arrested on that date and placed into custody and declined to be interviewed. He consented to a number of forensic procedures, including providing a buccal swab and swabs from his hands and fingernails, and having photographs taken.

Forensic Examination of the Deceased

1. In accordance with the Agreed Facts, para [12], the forensic examination revealed small injuries to the face, right arm and stomach of the deceased. A post-mortem examination was carried out by Dr Bailey who found that the deceased was stabbed once to the chest and determined that the stab wound to which I have earlier referred was the cause of death. Dr Bailey also noted superficial injuries to the right forearm and abdomen of the deceased.
2. An analysis of the deceased's blood identified high levels of methamphetamine and the presence of amphetamine, metabolites of cannabis, alprazolam, diazepam and norniazepam.
3. DNA testing was carried out on the knife that caused the fatal stab wound to the deceased. The testing matched the offender who was identified on the handle of the knife.
4. The height of the offender was established as approximately 180cm. The height of the deceased was approximately 165cm.

Submissions

1. Written and oral submissions on sentence were received on behalf of the Crown and the offender.
2. The Crown submitted that the Court would find that the offender's response to the victim coming at him with a knife was manifestly excessive in all the circumstances, which was said to include: 1. The deceased was the partner of the offender and she was 5-6 months pregnant with his child. 2. The respective heights of the offender and the deceased as set out above. 3. That the offender had entered the premises in circumstances where it had been made clear that he was not welcome. 4. The recent history of the relationship had been volatile. 5. The record of calls and text messages that formed part of the Agreed Facts includes numerous messages between the accused and the deceased, many of which were heated. 6. The offender failed to leave the Maroubra unit when he was told to. 7. The offender's statement "I'm going to get you". (After he said that he was there for Ms Bodeker.) 8. The fact that the offender was angry and aggressive, grabbing Ms Holt by the neck and pushing her, the force of which caused the three occupants to fall to the ground at the other end of the room. 9. The obtaining of the knife by the deceased was in response to the offender's aggressive actions. 10. That the deceased came at the offender with a knife and he feared being stabbed. 11. The accused and the deceased struggled and in the course of the struggle the offender grabbed the knife from the deceased and then stabbed her in the right side of the chest. 12. Having disarmed the deceased the offender could have thrown the knife away or he could have run away with the knife. 13. His determination to stab the deceased, it was submitted, was not a reasonable response in the circumstances.
3. The Crown, as I have mentioned, submitted that the objective seriousness of the offence was not significantly reduced by the fact that the deceased came at the offender with a knife.
4. The Crown accepted that where provocation is established it is a mitigating factor under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act.
5. However, the Crown submitted that the explanation of an offender's conduct, whether characterised as provocation or not, does not operate as a mitigating factor in every case. It was submitted that the motive must impinge on the offender's moral culpability. The degree to which the motive can be seen as pertinent depends on all the circumstances, the most significant of which is said to be the nature of the offence.
6. It was submitted in this case that the offender killed the deceased in circumstances where she came at him with a knife but that her arming with the knife was in response to his forcible entry into the unit, and conduct thereafter. The submission was that it is reasonable to infer that the deceased armed herself in response to the situation with a view to defending herself and her friends.
7. In the Crown submissions it was stated that at this point the offender could have, and should have, left the premises. Instead he managed to disarm the deceased and having done so, stabbed her. It was submitted that in those circumstances the objective seriousness of the offence is not significantly reduced, particularly in circumstances where he knew that she was pregnant with his child, and he was much taller than her.
8. It was further submitted that the relationship of tension and enmity between the deceased and the offender leading up to the offence, was part of the overall circumstances in which the offence occurred and does not constitute evidence of provocation as to amount to mitigation: Shaw v R [2008] NSWCCA 58 at [26].
9. The Crown accordingly submitted that in the circumstances the offender's response was manifestly excessive and that his offending behaviour is close to the top of the range in objective seriousness for manslaughter.
10. As the Crown observed, it is for the Court to determine whether the offender intended to kill or commit grievous bodily harm or to act with reckless indifference to human life: R v Dawes [2004] NSWCCA 363 at [70].
11. The Crown submission was that it would be difficult to conclude that such deliberate action taken by the offender was not accompanied by an intention to at the very least cause really serious bodily harm as opposed to reckless indifference to human life: Submissions at [23].

Submissions for the Offender

1. The written submissions for the offender referred to the record of text messages between the offender and Ms Green from 27 July 2013 through to 3 August 2013. It was submitted that they largely relate to what it was contended were concerns expressed by the offender as to Ms Green's continuous drug use throughout their relationship, and the health of their unborn child. It was submitted that the offender's messages were designed to pacify Ms Green and reassure her of his presence in her life. A chronology and commentary on the text messages was attached to the submissions as Annexure A.
2. The offender sought to rely upon the text messages in order to prove that Ms Green was "highly aggressive": Submissions at [11]. It was submitted that she was highly aggressive on the morning of the offence. It was further submitted that she continuously threatened the offender and showed no consideration for what were referred to as his "continuous attempts to reconcile with her": Submissions at [11].
3. It was contended that to the extent that the offender sent messages to Ms Green that were "heated", these were a direct by‑product of Ms Green "… continuously antagonising and rebuffing Mr Anderson": Submissions at [11].
4. It was conceded that the relationship was volatile. It was submitted that the text messages illustrate that the victim was "the aggressor, and the offender was merely responding to her unpredictable and caustic behaviour": Written Submissions at [12].

Calls and Text Messages Between Ms Green and the Offender

1. The attachment to Exhibit A consists of 20 pages of calls and text messages between the deceased and the offender commencing 21 July 2013 through to 2 August 2013. A summary document (MFI 2) contained entries commencing on 27 July 2013 to 3 August 2013.
2. In the submissions for the offender these messages, it was contended, showed the offender's concerns for the deceased's drug use and health of their unborn child. It was submitted that the messages were designed to pacify Ms Green and reassure her of his presence in her life.
3. The text messages reveal a very troublesome domestic relationship. They evidence frequent attempts by the offender to reconcile with her, unsuccessfully. The messages sent on 2 August 2013 indicate a continuing attempt by the offender to dialogue with the deceased. Many of the messages sent by both, were a mix of swearing and verbal abuse. On 2 August the deceased threatened to stab him if he came near her (at 18:11:14) following which a continuous flow of messages was sent back and forth. At 21:25:00 the deceased sent a message to the offender: "finished for good".
4. Whilst the submissions for the offender sought to rely upon that text and other messages to cast a sense of fault on the deceased as aggressor, at the end of the day the evidence emphasises that the relationship was a volatile one that had effectively come to a bitter end. It does not, in my assessment, constitute a form of provocative conduct by the deceased that mitigates the seriousness of the stabbing offence in this case. It is a case where, as in Shaw v R, supra, the tension and enmity between them constituted part of the overall circumstances in which the offending occurred, but does not evidence provocation such as to amount to mitigation.
5. In relation to the objective seriousness of the offence it was submitted that the Court could find that the offender's moral culpability is "low". It was said that this was "… because of the extraordinary circumstances in which the death occurred": at pp 4-5.
6. Contrary to the Crown's submission it was contended that the offender's response to the victim coming at him was not "manifestly excessive". In this respect it was stated that it was common ground that the deceased "rushed" at him with the knife raised upwards towards him after he attended the premises unarmed. I note that this submission does not accurately accord with the Statement of Agreed Facts which at [7] stated that the deceased "moved towards the offender", not rushed at him.
7. The knife, it was submitted, was introduced by the deceased and it was produced in circumstances in which it was submitted that the deceased was very much affected by the drugs she had taken.
8. It was further submitted that the circumstances of the offending places the offence towards "… the bottom of the scale in seriousness objectively viewed …": Written Submissions at p 5.
9. It was argued that the Crown's submission as to the level of subjective seriousness "… blurs the consequences of the offender's conduct with the statutory culpability that is guided by the subjective perception of the offender …": Written Submissions at p 5.
10. It was further argued that in the context of the events preceding the offence, including in particular the fact that the deceased approached him with a large kitchen knife, that it could be inferred that the deceased intended to strike him and that these circumstances left the offender with little time to consider his response.
11. It was also submitted that the Crown had conceded that it was open to the Court to conclude that the offender had no intention to kill: Written Submissions at 18. The Crown Prosecutor disputed that the Crown had made such a concession. Reliance was placed, in the offender's submissions, upon the observations of the Court in Grant v R [2014] NSWCCA 67 at [76] which highlighted the distinction between intention to kill and one to cause grievous bodily harm. In this case it was submitted that the offender did not intend to kill Ms Green, but rather the case is one of the infliction of grievous bodily harm in the course of self-defence.
12. It was contended that an important fact was that the offender did not carry his own weapon. The further submission was made that "the offender, in an attempt to wrest a knife from the grip of the deceased, used that knife against her". However, I do not consider that this statement accurately records the Agreed Facts. The offender not only attempted to wrest a knife from the grip of the deceased but he succeeded in doing so. It was after he grabbed the knife from the deceased that he then used it to stab her.
13. It was further submitted that in combination with the text messages and the deceased allegedly "running" towards the offender with a knife over her head, that this constituted a direct threat to his life. I note that this submission is incorrect. The evidence does not refer to "running" at the offender.
14. It was noted that the offence involved a single stab wound. It was submitted that a degree of responsibility of the offender was diminished by the threat to his life.
15. It was contended that the Crown's submission that it was open to the offender to have thrown the knife away, or run away with the knife after disarming the deceased, were "unreasonable conclusions": Written Submissions at [27]. It was contended that such arguments were at best "hypothetical scenarios" and that the mere fact that events could have occurred another way does not, of itself, support the conclusion that the offender's culpability was greater because events did not unfold in that way: Written Submissions at [27].
16. The Crown made Further Written Submissions on Sentence, in response to the further defence submissions, dated 9 March 2016. I have, of course, considered all submissions, written and oral.

Self-Defence - Principles

1. It is necessary at this point to refer to certain statutory provisions set out in Part 11, Division 3 of the Crimes Act 1900. These included those in s 418 'Self-Defence - when available' and in s 421 'Self-defence - excessive force that inflicts death' which is in the following terms: (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
2. On the Agreed Facts, the offender stabbed the deceased believing his conduct was necessary to defend himself, though, as I have indicated, it is accepted that it was not a reasonable response in the circumstances that existed.
3. In considering the response of an offender in the circumstances as her or she perceives them, a sentencing judge is required to make a finding as to what the offender perceived the circumstances to be, and to evaluate the degree to which the conduct departed from what would have been a reasonable response to those circumstances as perceived.
4. Two questions arise: (i) what were the circumstances as the offender perceived them to be? and (ii) what, precisely was the conduct that the offender believed was necessary in order to defend himself?: Smith v R [2015] NSWCCA 193.
5. Whilst the reasonableness of the offender's conduct is to be measured against his perception of the circumstances in which he found himself, an assessment must be made as to the extent to which his conduct departed from what would have been a reasonable response had the circumstances been as he perceived them: at [56]. This involves a determination as to the extent to which the offender's response was disproportionate to the circumstances as he perceived them to be.

The Objective Seriousness of the Offence

1. I proceed to assessing the objective criminality involved in the offender's offence. This is to be assessed without reference to matters personal to the offender, and is to be assessed wholly by reference to the nature and circumstances of the offence: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.
2. The sequence or the order in which the events unfolded on 3 August 2013, and the relationship between those events, assume importance in the analysis and for that reason I return to the facts established in evidence.
3. Before the deceased made her way over to the kitchen drawer and took out the black-handled kitchen knife, she had been a witness to, and had become involved in, a series of events after the offender gained forced entry into the Maroubra home unit.
4. Following a struggle between Ms Holt and the offender as he tried to open the screen door, Ms Holt and the deceased, as I earlier noted, both told him to leave. He did not. Instead he entered the unit. At that time he "… was angry and aggressive …": Agreed Facts at [6]. As I have indicated, the Agreed Facts records that after the two women had tried to push the offender out of the unit the situation escalated into violence. Firstly, the offender's assault upon Ms Holt by grabbing her by the neck. Secondly by the offender pushing her with what was evidently a considerable degree of force as it was sufficient to propel Ms Holt into both the deceased and Ms Bodeker causing or resulting in the three of them falling to the floor at the other end of the room a few metres away.
5. It is clear that it was only after these unlawful acts by the offender involving the three women in the unit, that Ms Green then made her way over to the kitchen drawer and took hold of the black-handled kitchen knife.
6. In the submissions for the offender it was argued that: "The culpability of the offender is in the lower end of excessive force cases, where the fatal circumstances are caused, in large part, by the victim introducing a dangerous weapon into the equation." (Further Written Submissions at [6])
7. I do not, with respect, consider that this submission represents or is based upon a proper analysis of the events. Insofar as it was contended that the fatal circumstances were caused, in large part, by the victim introducing the knife into the situation, the submission failed to bring into account that before the deceased obtained the knife she had just witnessed and been involved in the events to which I have referred involving, in particular, a violent assault upon Ms Holt including pushing her with sufficient force to collide with and knock the three women off their feet. There is no suggestion in the Agreed Facts that the offender's attack on Ms Holt had been provoked or incited by Ms Holt or any of the other women saying or doing some act directed towards the offender after he entered the unit.
8. Following these events it may be readily inferred that by the time the deceased got to her feet she must have been in a heighted state of apprehension as to what the offender was going to do next, either to her and/or one or more of the other women in the unit. It is in these circumstances that the deceased's actions in making her way over to the kitchen drawer and taking out the knife should be understood. The strong inference, in my opinion, is that she did so, whether wisely or not, because of the events that she had just witnessed, in order to arm herself and take action against the offender. By this stage there was every reason for her to believe that his anger and aggression would continue, if not escalate.
9. The submission for the offender - that the fatal circumstances were caused in part by the victim introducing the knife - is a submission without due regard to the violence that the offender had by that time meted out to the three women in the unit. Plainly, on the Agreed Facts it was the offender's violent conduct that preceded, and I conclude, led the deceased to obtain the knife. In other words, her action in doing so was a response to the aggression and violence which the offender had unleashed up to that point.
10. Accordingly there is, in my opinion, no merit in an argument that sought to suggest fault in the deceased for taking hold of the knife. It is clear that she did so in her own self-defence against a violent and aggressive male (the offender). It is also evident that at the time she picked up the knife she was in a precarious position. She was a then in her fifth or sixth month of pregnancy. The offender was a man who had a very considerable physical advantage over her in terms of height and strength. Additionally, he had demonstrated that he was prepared to use it. He did use it, aggressively, from the time he forced entry into the home unit.
11. I return to the circumstances perceived by the offender immediately prior to him stabbing the deceased.
12. On the facts set out in the Agreed Facts, the circumstances and the nature of the risk of serious injury or death which the offender is taken to have perceived and believed he faced in the period up to the time that he stabbed the deceased, were as follows: 1. At the point when the deceased walked towards the offender with the knife held above her head, the offender's belief, on the Agreed Facts, upon seeing the deceased with the knife, was that he needed to act in his own self-defence against a perceived threat of being stabbed. That is the basis of the self-defence in this case. 2. When, however, the offender, following a struggle with the deceased, succeeded in grabbing the knife from her, the circumstances at and from that point had radically changed. She no longer having the knife and he having control of it, the immediate threat that he believed had existed when the deceased had held the knife, had changed. She was no longer in a position to stab him, he having disarmed her. 3. On the Agreed Facts, once the offender disarmed the deceased, he is nonetheless to be taken as still believing (whether rightly or not) that in the circumstances perceived by him he still needed to act in his own self-defence. However, by then the level of response required to defend himself had significantly altered. With the knife now in his hands, the circumstances no longer justified him responding as he did, namely using it to stab the deceased.
13. On analysis and assessment of the facts including in particular the relevant sequence of events, it is plain that the offender's act of deliberately stabbing the deceased in the chest, represented an extreme and grossly excessive response to the situation that existed at that point in time.
14. On the Agreed Facts, he is taken to have had a belief when he stabbed the deceased that he needed to do so to defend himself. Such a belief may have been influenced by the dramatic events leading up to the point of time when he grabbed the knife. Whether or not that be the case, once he had disarmed the deceased his perception of the circumstances must then have included the reality that events had changed in that respect. Once he had control of the knife the tragic fact is that there was no reason at all to use it. The fact that he did is consistent with the continuation or escalation of the anger and aggression that he brought into the situation, operating in addition to a belief that he was required to defend himself, as referred to in the Agreed Facts.
15. Once the offender had taken the knife in hand, the alternative action available to him was to leave the premises with or without the knife.
16. In the assessment of the objective seriousness of the offence I have taken into account the fact that the offender did not come armed with a weapon and that this is not a case where there is evidence that the offence committed was premeditated or planned.
17. I also take into account the fact that there was only one stab wound inflicted on the deceased. However, that said, it is also to be taken into account all other relevant circumstances including the fact that, having grabbed the knife from the deceased, the offender stabbed her in a vulnerable area, the chest.
18. In my assessment, the objective criminality of this offence is of a high order. The offence of manslaughter in this case is, in my opinion, properly to be regarded as a major criminal offence and I consider that this case is a most serious example of it.
19. Upon consideration of the whole of the evidence relating to the objective circumstances of the offence, the offence of manslaughter by excessive self-defence in this case I consider to be an extremely serious one.
20. In the circumstances in which the offence occurred, I have concluded that the intention of the offender in stabbing the deceased was an intention to inflict grievous bodily harm upon her rather than an intention to kill. Whilst an intention to kill, generally may reflect greater culpability than an intention to cause grievous bodily harm, that is not necessarily so: R v Hillsley [2006] NSWCCA 312 at [16].

Sentencing

1. In determining the appropriate sentence for the offence, relevant aggravating factors in terms of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 are to be taken into account. Before doing so I make some preliminary observations.
2. As has frequently been observed, manslaughter is unique in its protean character as an offence: R v Blacklidge (Court of Criminal Appeal, 12 December 1985, unreported, esp 2-3). It has also been observed that in its objective gravity it may vary, as has been pointed out, from a joke gone wrong, to facts just short of murder: R v Weinman (1987) 49 SASR 248, 252; Regina v Forbes [2005] NSWCCA 377, Spigelman CJ at [133] - see also Pitts v R [2014] NSWCCA 244 at [12]. The degree of variation between cases even within a particular category of manslaughter generally also covers a wide range. Matters of fact and degree arise in all categories of manslaughter: Forbes, supra, at [134].
3. It has also been recognised that the myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or a tariff, for a particular form of manslaughter: R v Loveridge [2014] NSWCCA 120 at [227] per Bathurst CJ, Johnson and RA Hulme JJ; Pitts v R (self-defence manslaughter).

Maximum Penalty

1. A fundamental touchstone for sentencing in cases such as the present is that there has been an unlawful taking of a human life for which the offender is criminally liable: R v Blacklidge, supra. Additionally, the maximum penalty for manslaughter, as I have stated, is imprisonment for 25 years, that itself being an indication of the relative seriousness of the offence: Markarian v The Queen (2005) HCA 25; 228 CLR 357 at [31].

Discount on Plea of Guilty

1. The offender is entitled to a discount on sentence for his guilty plea entered on 17 November 2015, the second day of the trial. The Crown has submitted that the discount should be no more than 10% given the timing of his plea.
2. It was submitted on behalf of the offender that he should be entitled to a full discount on sentence of 25%.
3. Exhibit 2 contains details as to the dates of earlier plea offers that had been made. Attached to it is correspondence between the offender's legal representatives and officers of the Director of Public Prosecutions.
4. On 16 October 2014, the offender's legal representatives wrote to the Director of Public Prosecutions on behalf of the offender requesting that consideration be given by the Director to accepting a plea of guilty to manslaughter in full satisfaction of the charge of murder. In the letter of 16 October 2014, the legal basis for a conviction for manslaughter was stated to be that the offender acted in a way which caused the death of the deceased which was both unlawful and dangerous. The plea offer was not put on the basis of self-defence. The letter urged the Director to accept a plea of guilty to manslaughter "at the next opportunity".
5. On 17 November 2014, the offender's legal representatives again wrote to the Office of the Director of Public Prosecutions which referred to the earlier letter of 16 October 2014, and noting that no response had been received to the proposal set out in that letter. Reference was made to evidence given at the committal hearing on 3 November 2014. The letter requested a response to the request to accept a plea to manslaughter. The plea offer was not accepted.
6. I have considered the discounts on sentence that were allowed in comparative cases where plea offers were made, not accepted, and the accused were subsequently convicted of the offence to which the plea referred: R v Pennisi [2001] NSWCCA 326 at [27]; Regina v Oinonen [1999] NSWCCA 310 at [38]; Smith, supra. Each of these cases, of course, has its own distinct facts and they cannot be taken as a definitive guide.
7. As I have noted, the offer to plead guilty to manslaughter made on behalf of the offender was put on the basis of unlawful and dangerous act manslaughter, not excessive self-defence manslaughter. It appears that an offer by the offender to enter a guilty plea on the basis of excessive self-defence was made and agreed as the trial, listed to commence on 16 November 2015 approached. The guilty plea was formally entered on 17 November 2015: T 17:11-15 at p 58. I have, however, taken into account in determining the appropriate exercise of the discretion in relation to the discount to be allowed, the matters to which I have referred including the plea of guilty offered before the first trial. Having done so, I consider that a discount on sentence of 20% should be allowed.

Offender's Antecedents

1. The offender's criminal history is set out in Exhibit A. The Crown has submitted that his criminal history is significant and it disentitles the offender to any leniency. It was submitted that the history is relevant in that it includes offences of violence, including in particular, one offence of violence towards a previous partner. The offender was convicted of the following six offences: 1. Offence Date: 31 December 2012 - assault occasioning actual bodily harm (father of the offender's previous partner) involving injuries by way of a broken arm. He was sentenced to a term of imprisonment of 12 months with a non-parole period of 9 months. 2. Offence Date: 31 December 2012 - common assault of the same victim involving a punch to the right side of the face around the eye area. A term of imprisonment of 6 months was imposed. 3. Offence Date: 31 July 2011 - assault occasioning actual bodily harm (former partner of the offender). Injuries involved large swollen injury to the left eye. The sentence imposed was 9 months suspended sentence with conditions, including drug and alcohol rehabilitation and anger management. 4. Offence Date: 8 March 2007 - maliciously inflict grievous bodily harm. Injuries involved fractured skull and injury to jaw - sentence imposed of 12 months imprisonment with a 7 months non-parole period. 5. Offence Date: 8 December 2006 - assault occasioning actual bodily harm - injuries involved laceration to lip requiring five stitches, injury to rear of skull requiring four stitches, concussion - sentence imposed 9 months full term imprisonment with a 4 month non-parole period. 6. Offence Date: 24 September 2001 - assault occasioning actual bodily harm (security officer assisting police) - laceration to ear - sentence imposed 100 hours of community service order.
2. I note that although each of these six offences was a serious offence, they did not, of course, involve the high level of violence associated with the most serious category of offences.
3. I accept the Crown submission that the offender's criminal record deprives him of the leniency that might be afforded to a first-time offender. It justifies a greater emphasis being given to deterrence, including personal deterrence. The relevant principles as to the use to be made of an offender's criminal record are well established: Van Der Bann v R [2012] NSWCCA 5 at [30].

Victims Impact Statement

1. The Victim Impact Statement of the deceased's mother Ms Nadia Green was read by her at the sentencing hearing.
2. The statement expresses in very clear terms the grievous effect and the immense loss arising from the death of her daughter, Allira Green, and the impact it has had upon the members of her family. The loss of a loved one, in the circumstances with which this case is concerned, is exceptionally painful and tragic. On behalf of the Court I extend my condolences to the family of the deceased for the immense loss that they have endured and that they will continue to endure. Nothing of course can address that immense loss.

Aggravating Factors

1. Before an aggravating factor within s 21A(2) may be taken into account it must be proved beyond reasonable doubt: R v Wickham [2004] NSWCCA 193; R v Tuala [2015] NSWCCA 8, Simpson J (as her Honour then was) at p 13.
2. The Crown submitted that the following aggravating factors are relevant in sentencing the offender: 1. That the offence was committed in the home of the victim, or any other person: s 21A(2)(eb). In this respect it breached, in a most serious way, the expectation associated with the safety and security of a home. 2. That the injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g); Aslett v R [2006] NSWCCA 360 at [37]. 3. It has been accepted in some of the relevant authorities that weight on the question as to the use of a Victim Impact Statement may be given according to the manner in which the sentencing process was conducted. As has been observed, when no objection was taken to the Victim Impact Statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It has been acknowledged that the lack of objection to the admission should be taken in the context whereby such statements are admissible by statute.) 4. Where the statement tends to be confirmatory of other evidence or where it attests to the harm of the kind that might be expected of the offence in question there is little difficulty with acceptance of its contents. 5. In the circumstances of the present case I consider that the Victim Impact Statement of the victim's mother, Nadia Green, is available as evidence to establish that the emotional loss and damage caused in particular to the deceased's mother and her family, by her daughter's death involving as it did the loss of her daughter's unborn child, was substantial. The degree of emotional harm or loss suffered by the family members in such circumstances is beyond the emotional harm or loss that might otherwise have been expected. 6. I propose to accordingly take into account that the emotional harm in this case as an aggravating factor in sentencing. 7. Subject to one matter, the Victim Impact Statement should be considered in accordance with the principle stated in R v Previtera (1997) 94 A Crim R 76. 8. Application was made by the Crown Prosecutor that the Victim Impact Statement of Ms Green's mother be considered and taken into account in the determination of punishment for the offence on the basis of the harmful impact of the primary victim's death on members of her immediate family as an aspect of harm done to the community. 9. Such an application may be accepted by the Court if it "considers it appropriate to do so": s 28(4) Crimes (Sentencing Procedure) Act. 10. In the circumstances of the present matter I do not consider that it is appropriate to consider the Victim Impact Statement pursuant to the application made under s 28(4). Having accepted the emotional harm to members of the deceased's family as an aggravating factor pursuant to s 21(2)(g), to grant the Crown Prosecutor's application under s 28(4) of the Crimes (Sentencing Procedure) Act to take that also into account in the determination of punishment would, in my opinion, be to carry an unacceptable risk of double-counting. Whilst in some circumstances a court may act under s 28(4), I do not consider it would be either just or appropriate to do so in this case. 11. That the offender was on conditional liberty in relation to an offence or alleged offence: s 21A(2)(j). At the time of the subject offence the offender was on bail in respect of an alleged assault against the father of the offender's ex‑partner on 31 December 2012. The fact that his offending occurred in breach of his bail conditions is a further aggravating factor to be taken into account. 12. That the victim was vulnerable: s 21A(2)(l). In this respect the Crown submission was that the victim was vulnerable in that she was 5-6 months pregnant, however, the Crown also noted that this should not be taken into account as an additional aggravating factor as it is part of the factual matrix which informs the objective gravity of the offence. I accept the Crown's submissions and I will proceed accordingly.

Subjective Circumstances of the Offender

1. The offender did not give evidence at the sentence hearing (as was his right), and the matters relating to his personal background are derived from material tendered in evidence, including the reports of Professor Woods.
2. He was 39 years of age at the date of the offence. He is presently 41 years of age. Professor Woods in his report of 25 February 2016 records that his parents separated when he was still a child and he lost all contact with his father. He had a close relationship with his older brother who died of cancer.
3. His upbringing with his mother was said to have been in a household where there were stringent financial circumstances.
4. He left school of approximately 16 years. His estimated level of intelligence, as I have noted, was assessed by Professor Woods as being in the average range. There is no history of child abuse or any other traumatic events apart from the death of his older brother.

Remorse

1. The two reports of (adjunct) Associate Professor Stephen J Woods tendered in evidence are dated 25 February 2016 and 7 March 2016 (marked respectively Exhibits 4 and 5).
2. The Crown objected to the paragraph in Exhibit 4 (page 2) under the heading "Executive Summary". In that paragraph Professor Woods sought to express an opinion as to the probability of the offender suffering from trauma and grief-related depression prior to, and at the time of, committing the offence. I have determined that the paragraph contained an expression of opinion on an issue within Professor Woods' expertise and should be admitted.
3. The Crown also objected to the first paragraph in section 5 of the report entitled "Concluding Comments". In that paragraph Professor Woods, inter alia, commented upon the offender's ability to fully appreciate the nature of his actions at the time of stabbing the deceased.
4. Whilst I have decided to admit that paragraph, I consider it is not one to which a great deal of weight may be given as Professor Woods did not refer to, or identify, the factual matters or identify his reasoning process which was used to support his opinion expressed in that paragraph.
5. Professor Woods initially saw the offender at the Long Bay Correctional Centre on 16 February 2016 and subsequently at the Long Bay Correctional Complex on 5 March 2016.
6. The documentary materials supplied to him were identified in his first report. They included a copy of the Statement of Agreed Facts and a criminal history of the offender printed on 3 August 2013.
7. The first report contains a history of the offender's relationship with his brother Stephen who died on 22 May 2013 following a protracted and traumatic illness. Reference was made in the report to the offender's unresolved grief and trauma associated with the circumstances of his brother's death.
8. The offender told Professor Woods that he had held continuous employment (with only very brief periods between different jobs) in the area of property maintenance subsequent to leaving school at the age of 16 years.
9. The first report, Exhibit 4, refers to certain facts concerning the offender's relationship with the deceased, Ms Green. He told Professor Woods that Ms Green ceased using illicit substances upon falling pregnant and that he was distressed and deeply concerned for her health and that of the unborn child upon learning that she had resumed using illicit substances prior to the incident that culminated in her death. There is no reference as to precisely when she resumed using those substances.
10. Professor Woods in his capacity as a forensic psychologist stated that based on the history that was provided to him it appeared that the offender had developed grief and trauma induced major depressive disorder associated with his brother's diagnosis of cancer and death. He set out the details of his diagnosis.
11. His report refers to a history which indicated some remorse in the offender which he claimed led to his decision to enter a guilty plea to the charge of manslaughter.
12. In his report of 25 February 2016, Professor Woods considered that the offender was oriented in terms of time, place and purpose of the assessment. His estimated level of intelligence, as I have earlier stated, was determined to be in the average range. The offender denied having ever experienced, and did not exhibit any clinical indications of major mental illness.
13. In his second report dated 7 March 2016, Professor Woods addressed, inter alia, the offender's remorse, psychological state at the time of the offence and prospects of rehabilitation and risk of re-offending.
14. In relation to the subject of remorse the offender told Professor Woods that he was devastated by the events concerning the offence and would never get over it, and that in relation to the stabbing he thought about it all the time. He said that the text messages sent by him to the deceased prior to the offence arose from his level of concern for the deceased's welfare.
15. In relation to the psychological state at the time of the offence, the offender conveyed to Professor Woods that he had a concern for the deceased and her unborn child. When asked by Professor Woods why he attended upon the deceased on 2 August 2013 he said he did not know what to do and could not make sense out of what were in essence conflicting messages from the deceased.
16. If the offender had taken illicit substances before he stabbed the deceased as he told Professor Woods, and if it had affected him in any way, that is not a matter that operates as an excuse, the voluntary taking of drugs not being a fact that mitigates the offence: s 21A(5AA) Crimes (Sentencing Procedure) Act.
17. There is no direct evidence of remorse by the offender. I have earlier noted the references to the issue of remorse that Professor Woods noted in his reports.
18. In the absence of direct evidence of remorse a guarded approach to expressions of remorse in these circumstances is warranted: s 21A(3)(i) Crimes (Sentencing Procedure) Act: Loveridge, supra, at [125].
19. It has frequently been recognised that genuine expressions of remorse are relevant to the assessment of an offender's risk of re-offending and prospects of rehabilitation. The New South Wales Court of Criminal Appeal has emphasised that a sentencing judge ought only give very limited weight to statements made by an offender to a psychiatrist or psychologist reproduced in reports: R v Loveridge, supra, at [124] in which reference was made to the court's decisions in R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377, [58]-[59], 380, [79]; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-189, [39]-[41].
20. Although the evidence of remorse in this case, as I have indicated, is quite limited I am prepared, having regard to Professor Woods' reports to give some, though limited, weight to the statements of remorse attributed to the offender by Professor Woods.
21. I have earlier referred to Professor Woods' opinions and I need not repeat them. I have had regard to those opinions.
22. I have additionally taken into account the opinion evidence of Professor Woods. As to his opinion that the offender's depressive and "trauma symptoms" would have impaired his actions, that is an opinion by way of assertion without discussion as to the basis for any alleged impairment and how such symptoms are said to be relevant to the offender's conduct on 3 August 2013. It is to be noted that Professor Woods, when asked whether he had obtained any detailed history from the offender as to whether he had had any difficulty or deficits with cognitive or mental processes up to the date of the incident, Professor Woods said that he did not: T 42:40-45. He was also asked: HIS HONOUR: Q. Yes, in terms of any history given to you, was there any history that he gave to you which, so far as his ability to function is concerned, whereby he indicated that he had any difficulty in appreciating either the nature of his actions or his handling of situations? A. No. (T 44:1-7)

Rehabilitation Prospects

1. As to the prospects of rehabilitation and the risk of re-offending, Professor Woods relied upon the offender's reports of having spoken to a person at the Long Bay Correctional Institution referred to as the "welfare officer" with a view to undertaking TAFE studies to become a "community worker". There is no departmental or other records addressing the enquiries said to have been made by the offender in that respect and there is no other information as to whether he has endeavoured to undertake vocational studies.
2. Professor Woods noted the history given to him to the effect that there had been no noteworthy periods of unemployment after the offender left school.
3. On the limited history set out on page 4 of the second report, Professor Woods expressed a view that the offender has "excellent prospects of rehabilitation" and that his risk of re-offending he believed was "low".
4. I have concluded that the opinion expressed by Professor Woods as to the offender's rehabilitation prospects should be treated with considerable caution.
5. Firstly, there is no detailed analysis of any materials by him which would enable Professor Woods to express a conclusive opinion on the offender's rehabilitation prospects or on his prospects of reoffending. In particular, although he had certain details concerning the antecedent criminal history of the offender he did not have a complete history. He referred to the last offence committed by the offender as occurring in July 2011. However, he had no history as to the offending that occurred on 31 December 2012 when the offender was charged with assault of his ex-girlfriend's father which was a serious offence, being the sixth offence involving violent assaults. The offender's ex-girlfriend's father on that occasion is said to have sustained a broken wrist in a struggle with the offender.
6. Secondly, Professor Woods did not analyse or explain how the materials he referred to supported his opinion or establish a basis upon which he was able to arrive at the opinions he expressed in relation to the offender's prospects of rehabilitation or risk of reoffending. Professor Woods did not discuss in his reports the significance or otherwise of the criminal history of the offender, in particular, charges of assault involving an ongoing theme of violence, the relevance of such a criminal history, whether his past offending history arose from anger management problems (as the evidence suggests), the role drug-taking may have had to his offending history, the need for treatment directed towards his rehabilitation, including preventative treatment necessary to avoid a repetition of his resorting to violence. On the evidence, I do not consider that an optimistic prediction or prognosis can be made of either the offender's rehabilitation prospects or as to the risk of his future offending. On the evidence, I consider that, as matters presently stand, any such prospects must be regarded as limited. It is, of course, to be hoped that he will receive the support he may require to rehabilitate himself.

General and Specific Deterrence

1. In sentencing a domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and to the community as a result of crimes of domestic violence is important: R v Hamid [2006] NSWCCA 302 at [86] - see also Hiron v R [2007] NSWCCA 336 at [32].
2. The Court of Criminal Appeal has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].
3. The New South Wales Court of Appeal has emphasised the importance of general deterrence in domestic violence cases given, in particular, the prevalence of violence by men against women in domestic relationships: R v Hamid, supra, at [68].
4. It is a well‑known fact that domestic violence has become a matter of increasing concern in Australian society. This is particularly so in relation to the significant number of domestic violence cases involving women who have lost their lives by reason of the criminal actions of male spouses or partners.
5. In R v Edigarov [2001] 125 A Crim R 551, Wood CJ at CL observed: 41. … violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."
6. In accordance with these principles and having regard in particular to the facts of this case and the findings to which I have earlier referred, I proceed upon the basis that there is a need in sentencing the offender for substantial weight to be given to general deterrence and personal deterrence in passing sentence in a case such as the present.
7. There is limited evidence as to the evident problem that the offender has had in relation to anger management which is a recurrent theme or aspect of his criminal history which indicates the need for specific deterrence as well as general deterrence to be given effect in the sentence to be imposed. I proceed on that basis.

Protected Custody

1. The written submission for the offender state that the offender has been placed in protection, and the submission was that he will remain so. This is said to have followed an assault upon him by inmates: Exhibit 3.
2. In the absence of specific evidence as to the conditions of the protected custody and his likely future classification it does not mean that protected custody necessarily requires a reduction in sentence: R v Moysten [2004] NSWCCA 97. In the absence of further evidence, I do not consider the evidence as to the offender's custody now, or in the future, warrants a reduction in sentence.

Setting the Non-Parole Period

1. I do not consider that there are any special circumstances that exist in this case for varying the statutory ratio of the non-parole period provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. In those circumstances the non-parole period to be imposed will be 75% of the total sentence to be imposed.
2. In determining the sentence to be imposed I have taken a starting point of a term of imprisonment of 16 years which, after allowing a discount for the offender's guilty plea of 20%, reduces to a term of imprisonment of 12 years 9 months. Application of the statutory ratio, as I have stated, will require 75% of that period to be served as the non-parole period of the overall sentence. I also note that the sentence will be backdated to commence on the date that the offender was taken into custody, namely, 3 August 2013.
3. I am obliged to state to the offender, as I do, the fact of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to 'serious violence offences' including the offence for which you are to be sentenced.
4. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a 'high risk offender' as defined in the legislation who poses an unacceptable risk of committing a serious violence offence.
5. I make this statement because it is in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Sentence

1. Christopher John Anderson, in respect of the offence of manslaughter of which you are convicted, you are sentenced as follows: 1. A term of imprisonment of 12 years 9 months comprising a non-parole period of 9 years 6 months commencing on 3 August 2013 and concluding on 2 February 2023; 2. With a balance of term of 3 years 3 months expiring on 2 May 2026.
2. You will become eligible for release on parole when the non-parole period expires on 2 February 2023.

CROWN EXHIBITS Exhibit A - Statement of Agreed Facts (annexing text messages) Exhibit B - Criminal History of offender Exhibit C - Crown Sentence Summary comprising the documents behind Tabs 1 and 2 of Tender Bundle Exhibit D - Facts Sheet in relation to Mr Anderson and Stacey Hancock dated 31 July 2011

OFFENDER'S EXHIBITS Exhibit 1 - Facts Sheet document comprising 6 pages in relation to offences concerning the offender committed on 31 December 2012 Exhibit 2 - Chronology and correspondence in relation to plea offers Exhibit 3 - Documents produced under subpoena by Justice Health Exhibit 4 - Report of Professor Stephen Woods dated 25 February 2016 Exhibit 5 - Report of Professor Stephen Woods dated 7 March 2016 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: 08 April 2016