R v Charters

Background to the offence

1. Ms Cumberland's evidence during the trial, which I accept, was to the effect that the last six months or so of her relationship with the deceased had been marred by repeated acts of domestic violence perpetrated against her. The deceased was a regular user of methamphetamine and other drugs throughout their relationship and, in the last few months, the level of violence had increased, in line with his increasing use of methamphetamine and other substances. Ms Cumberland gave the following evidence: "Q. You said that he started to get more violent towards you, is that in about the last three months of your relationship? A. Yeah. Q. And was that around about the time when he started using a different drug as well as Ice? A. Yeah, I do believe he was using steroids as well. Q. And did you notice what sort of reaction the steroids seem to have on him? A. That's where the three day cycle came into play, every three days he'd be - he'd be right for three days and then go off the rails. Q. And that period of violence that started in that three month period and that three day cycle, did it start with firstly, fists. Did he use his hands or fists? A. He'd usually become very verbal first but it would always end in physical violence."
2. A day or so after Ms Cumberland moved out of their residence, the deceased sent her messages through a mutual friend, Michael Bishop, persuading her to visit him. She did so, accompanied by Mr Bishop. Ms Cumberland said: "When I got there, everything was fine as per normal and as soon as I wanted to leave, he punched me in the face and used the cattle prodder on me." The "cattle prodder" was a battery-operated device that gave electric shocks. Ms Cumberland then left.
3. The next significant assault was a few days before the incident. Ms Cumberland had come home to Weelong Place early one morning in the company of Mr Bishop and Mr Barnes. Entry to the house was usually through the back door; the front door was often barred with a piece of wood placed in metal brackets on either side of the door ("the door brace"). On arrival, she noticed the back door was already open. When she entered the house, the deceased emerged from her bedroom. Ms Cumberland said: "A. I tried to run around, find the boys. That didn't work and I got punched in the face a couple of times so I run back around the coffee table, tried to get out the front door when he picked a bit of wood up and hit me with it. … Q. Where were you hit with the piece of wood? A. Across the back of my head, across the back of my - across my back and across the back of my legs. … Q. What happened next? A. Um I copped a couple of hits across the back of my head, my back and my legs and I eventually made it out the door and jumped the next door neighbour's fence."
4. Late on the evening of Saturday 18 November 2017, Ms Cumberland was present in the house, along with eight others: Mr Dick, Mr Bray, the offender, Mr Merritt, Rebecca Ruge, Kylie Barlow, Mr Bishop and Mr Barnes. The offender was aged 37. Mr Merritt, who owned the house, was aged 45. Some of those present were aware of, or had witnessed, assaults by the deceased of Ms Cumberland. Ms Cumberland described the offender as a "close friend", but was "not sure" if she had told him about the domestic violence she had endured from the deceased. On that night, she sported visible injuries from the deceased's recent assaults, including black eyes and bruises across the back of her legs.
5. At about 11:30pm, a close friend of the deceased, who had known him for ten years, saw him walking along the street on which they both lived and had a conversation with him. She said that he appeared to be "very high strung, like something was wrong". In her statement to police, she had described him as appearing "upset or angry with someone as I had never seen him like that before". He declined to talk about what was wrong, other than to say that he was going to Weelong Place "to sort a few people out and like to sort some stuff out". The deceased told her: "I am going down to have a talk to this fuck head Willy Merritt".
6. The deceased was next seen at about 12:15am, by another woman who knew him, walking into a hotel. She said: "I could see that he was doing something on his phone, texting, and he appeared agitated".
7. The deceased was exchanging text messages with various people. He had sent 19 texts to Ms Cumberland that day, being 18 November, between around 5:00am that morning until shortly before he arrived at Weelong Place. Ms Cumberland had replied only once, early Saturday afternoon, asking him for an explanation for his "evil heartless actions & words" and for "the damage [you have] created".
8. The deceased was also texting Mr Bishop, who was at Weelong Place. The messages he sent to Mr Bishop at around 1:35am suggest that at that time he was either in sight of the house, or he was being given updates by someone who was. At that time, he texted Mr Bishop asking who owned a utility vehicle that was parked outside the house. Mr Bishop replied that it belonged to "Jake", meaning Mr Barnes. At the time, Mr Barnes' utility vehicle was parked at the front of the house. The deceased replied: "Bro be back shortly on a mission all is good bruvva just hunna do a home visit to make sure every cunt knows my property no harm no [violence] … Over being played bro no fucks given if they wanna play I'm down and I won't be alone … … boys will drop me on [the corner] shortly …"
9. The front door to Weelong Place faced the street from a narrow apron-like concrete patio that ran alongside the front of the house. It had a screen door and the door adjoined the lounge room, in which Mr Merritt, the offender, Mr Bray and Ms Barlow were listening to music. Ms Cumberland, Ms Ruge, Mr Barnes and Mr Bishop were in a back bedroom. Mr Dick was in his bedroom, asleep.
10. Shortly after the last text message was sent by the deceased, those inside Weelong Place heard "loud banging" noises, consistent with objects being thrown at the side of the house. Mr Bray opened the front door, went outside and saw the deceased walking through the front gate. The deceased said to him, "What's going on, brother?" Mr Bray ran back inside, not locking the door, and told the others about the deceased's presence at Weelong Place.
11. Ms Barlow said the deceased came running through the front door into the lounge room, holding a knife and calling out for Ms Cumberland. The knife was later recovered, and found to be a kitchen carving-type knife, with a blade that was approximately 16cm long.
12. The deceased noticed the offender, who was seated on a lounge that backed onto the front wall, alongside the front door. According to Ms Barlow, the deceased started "yelling a lot of abuse towards him", accusing the offender of being the reason that Ms Cumberland was not contacting him and telling him to "come outside". Mr Barnes said that seeing the offender "fired him up … he just became angry, jealous I suppose, started name calling", and called on the offender to come out and fight. Ms Cumberland, from the bedroom, could hear the deceased yelling, telling the offender to "get outside", and the offender repeatedly responding to the deceased that he did not want to fight him, and telling him to "wake up to himself".
13. Ms Barlow said that Mr Merritt "grabbed" the deceased and tried to push him back out, but the deceased "was in a rage and he wasn't listening … It was like he was in an ice rage. He just wasn't calming down". Mr Bray described the deceased as appearing to be in "a psychotic rage". The deceased repeatedly said he would not leave without seeing Ms Cumberland. Mr Merritt succeeded in pushing the deceased back outside and he locked the screen door.
14. Ms Cumberland came out of the bedroom and called out to the deceased to leave, saying she did not want anything to do with him. Mr Barnes said the deceased "didn't see her but he definitely heard her … That fired him up more". Mr Barnes said that the deceased said, "You know what I'll fucking come in, which room is she in, I'll get in myself", and that he was going to "kill everyone". He then went along the front of the house smashing almost every window.
15. Mr Barnes said the deceased: "… was screaming out to [Ms Cumberland], not only [Ms Cumberland] but in between that trying to fire up [the offender] and get [the offender] outside."
16. At one stage, the deceased said, referring to the offender, "I just come around to tell [Ms Cumberland] a few special things and then I seen that one". The deceased made a threat against the offender, which Mr Barnes described as follows: "There was some threats along bikie at the end of the street counting bullets …"
17. The last window that the deceased smashed was a large window immediately behind the lounge on which the offender was seated, which caused him to jump up, in order to get out of the way.
18. Mr Barnes was asked: "Q. In terms of whether you thought there could be more violence did you think there could be more violence towards yourself?" A. 100%, I thought if [the deceased] got in the house I'd be hurt or murdered, or killed yeah, if [the deceased] got in. I thought there was danger for everyone in the house if he got inside." Mr Barnes further said: "I was shitting myself. Terrified. … the troubling part about the whole thing … was that [the deceased] had no fear of anything."
19. He was further asked: "Q. What about [the offender], was he saying anything? A. [The offender] wasn't saying very much at all he was sitting quietly on the lounge."
20. In cross-examination, Mr Barnes said: "[The offender's] demeanour was, I would say restrained. Like he, he was doing the right thing. He was keeping calm. He was withholding, because [Ms Cumberland] had told us not to go out there, so he was doing as he was asked and he was sitting, holding back."
21. Mr Barnes was asked: "Q. Did you form a view about what would happen if [the deceased broke] that big bay window in the lounge room? A. I honestly thought there'd be deaths, I was scared for my life and the lives of everyone in that house. Q. If he'd break the bay window in the lounge room what was there to stop him coming in? A. Nothing."
22. Mr Barnes' recollection of what next occurred was that Ms Cumberland said, "He's not going to stop". There was a consensus that they needed to go outside to stop the deceased "coming into the house", although Mr Barnes was unclear as to who was part of that agreement. Mr Barnes had armed himself with a tomahawk that was in the lounge room, but gave it to Ms Cumberland for her self-defence and advised her to stay in her bedroom.
23. The account given by some of the witnesses, including Mr Barnes, was fragmented and disjointed, which is unsurprising, given the terror that they all likely experienced. Having regard to all the evidence, I find that the sequence in which events occurred from that moment is as follows.
24. The deceased came to the front door in a fresh attempt to enter the house. Mr Merritt opened the flyscreen and faced the deceased. Mr Barnes joined him, standing alongside him. Mr Barnes said: "I remember [Mr Merritt] saying something along the lines of 'Stop smashing up my house, it belongs to my kids'", to which the deceased responded, "I'll fuck your kids and then cut their throats". Mr Merritt opened the flyscreen door, and walked out onto the patio and around to the left. Mr Barnes said to the deceased, "This [isn't] the right way to go about it". The deceased responded by trying to stab him in the face. Mr Barnes said: "I ducked, pulled back and went back inside … I went backwards. [Mr Merritt] went forwards". Mr Merritt shut the screen door behind him and continued to try to calm the deceased down from behind the screen door.
25. The deceased again tried to come through the screen door, but the offender was now at the doorway, and held it closed from the inside. The flyscreen mesh had been cut, and Ms Barlow saw the deceased on multiple occasions then try to stab the offender through the screen door. Mr Barnes said: "… I remember [the offender] trying to open the screen door and I remember seeing [the deceased] stabbing at [the offender] trying to open the door … … every time he went to touch it he'd pull his hand back …"
26. Mr Barnes said that the offender then started "to say a bit back" to the deceased. The screen door came off and the offender walked through the doorway onto the patio, carrying the door brace with him and turned to his left, out of the view of Mr Barnes. Ms Barlow heard "the sound of feet shuffling … Like if someone was struggling". Mr Barnes heard a noise that he described as a thud, and heard Mr Merritt say: "You've got to knock him out properly". Mr Barnes then went to the front door. He described the lighting as "enough light for me to see". To his left, he saw Mr Merritt holding the deceased in a "bear hug" from behind, and the offender facing the deceased, holding the door brace. The deceased had "a little bit of blood on his face". Mr Barnes continued, referring to the deceased, as he faced the offender: "… he was just thrashing his head around and saying, 'You fuckers', called him, I think he might've called him a black cunt or something along those lines …"
27. Mr Barnes later told police, "I completely agreed [the deceased] needed to be knocked out because he was out of control". In cross-examination, he was asked: "Q. And did you assume that he still had the knife? A. That was an assumption but I, I didn't look. Once he was - once I saw him being held and being struck the whole focus went, honestly went away from the knife and went towards knocking him out."
28. Mr Barnes thought that Mr Merritt might have again told the offender "to knock him out, hit him again". The offender then hit the deceased to the head with the door brace. Mr Barnes said: "He was told to knock him out properly and he wasn't doing a good job. So [the offender has] stepped back and hit him again."
29. Mr Merritt then let go of the deceased, who fell to the ground, unconscious. They went back inside the house and the offender said in a worried tone, "We've gotta get out of here. I think I've killed him". Mr Barnes then drove the offender to Parkes. The offender took the door brace with him and hid it. At that point, Mr Dick awoke, and briefly spoke to some of the others in the house. Everyone left the house except for Mr Dick, who phoned for an ambulance. The deceased was transferred to Forbes Hospital and was pronounced dead at approximately 6:00am.
30. The offender was expecting that Mr Barnes would drive him back to Forbes, but he did not turn up. The offender approached a friend, who agreed to drive him back. On the way, the offender said "Don't worry about me, I'll be right, self-defence, he came at me with a knife, he called me a motherfucker and I protected myself".
31. At the time, the offender was residing with his ex-partner, Leisel Ware, and their four children. He had walked from her house to Weelong Place at some time after 11:00pm on the night of the incident. After the offender had returned from Parkes, Ms Ware and the offender drove to Condobolin together. On their return that afternoon, the offender was arrested. He declined to be interviewed, and did not give evidence in the trial. The door brace was recovered and was identified by Ms Cumberland as the piece of wood that had been used by the deceased to attack her some days before. There was no dispute that it was the implement used by the offender to hit the deceased.
32. Mr Merritt attended Forbes Police Station around midday on the day of the incident, and made three recorded interviews that afternoon. He said that the deceased had threatened to kill the offender and had claimed that there was someone nearby with a loaded gun ready to kill "both of them". Essentially, his account, from the time that he went out the front door, was that he stood behind the deceased and hit him to the side of his head with a wooden hoe handle. It caused the deceased to fall forward, but Mr Merritt said that he "didn't hit him hard enough". As the deceased got back up, Mr Merritt jumped on top of him, twisted the knife out of his hand, and threw it aside. He said: "I tried to get him but he's too strong, too strong". The offender then hit the deceased to the forehead with the door brace.

Forensic medical evidence

1. Evidence was given at the trial from the emergency treating doctor at Forbes Hospital, Dr Alexander Douglas. Dr Douglas observed "a sharp-edged injury", which was "on the right brow, left forehead through to skull and possibly brain" of the deceased. He said that the infliction of the injury would have required "very significant force". He described a second sharp-edged injury, being an incision to the left parietum that extended "from the brow right through along the line of the skull crossing the top of the skull from right to left". He considered that a piece of hardwood with a "clean edge" could have caused those injuries. I note that the cross-section of the hoe handle was round. The door brace was made of hardwood and was approximately 85cm long. In cross-section, it was approximately 7.5cm by 4.54cm.
2. Dr Brian Beer, a forensic pathologist, conducted an autopsy of the deceased and concluded that the cause of death was "blunt force head injuries, extensive skull fractures and associated traumatic brain injury". He observed facial, scalp and head injuries that were consistent with the deceased having been hit to the left side of the head and to the upper face or forehead region. He had viewed photographs of the hoe handle and door brace and concluded that the injuries to the left side of the head were consistent with them having been caused by the door brace and the facial and forehead injuries were consistent with them having been caused by the hoe handle. However, he could not exclude the door brace as being the implement used to cause the facial and forehead injuries. Dr Beer said: "… I think there is a greater degree of force applying to the left side than to the front of the face and both cases I think were both significant to cause the fractures and injuries that occurred but the degree of damage that occurred to the left side of the head was very significant."
3. Dr Beer thought there had been approximately three, possibly four blows to the side of the head, and two or three to the front of the forehead and face.
4. A pharmacologist employed by the NSW Police, Dr Shuang Fu, gave evidence as to the results of toxicology tests that were performed on a blood sample taken from the deceased. She estimated that at the time of the incident, the deceased's likely range of blood alcohol concentration was 0.055 to 0.074g of alcohol per 100ml, the most likely level being 0.062g. The deceased had 0.15mg per litre of methylamphetamine in his blood which, she concluded, might have been 0.2mg or 0.3mg per litre at the time of the incident. In her report, Dr Fu stated: "I am of the opinion that at the time of the incident [the deceased] probably would have been moderately affected by the drug, to the extent that his aggression and anger would have been amplified."
5. The deceased's blood also contained amphetamine, at a level of 0.03mg per litre, which Dr Fu thought was most likely as a consequence of the metabolising of methylamphetamine.
6. As to the combined effects of the three substances on the deceased's behaviour, Dr Fu considered that his anger would have been amplified. Dr Fu said: "… definitely because the drug effect, mainly the … Ice and the alcohol, will make him angry. Like aggression, increased."
7. Dr Fu stated that testing had not been done for the presence of steroids.

Victim impact statement

1. A victim impact statement, prepared by the deceased's mother, Tania LeBrocque, was tendered by the Crown, in which Ms LeBrocque referred to the family's sadness and anguish at their loss. I extend the Court's sympathy to her, and to the deceased's family generally, who I note attended court throughout the trial, which would have been a harrowing experience for them.

The offender's criminal history

1. The offender's criminal history dates back to relatively minor offences which were dealt with in the Children's Court. His adult offences have been, predominantly, driving and property-related offences.
2. Of particular relevance to the sentencing of the offender in respect of this offence, pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is a prior offence of serious personal violence, as defined at s 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Offences included in that definition include stalking or intimidation with intent to cause fear of physical or mental harm ("stalk or intimidate"), and contravention of a domestic violence order ("contravene DVO"), pursuant to ss 13 and 14 of that Act respectively. The offender has three stalk or intimidate convictions, one in 2013 and two in 2017, and four contravene DVO convictions, from 2005, 2009, 2011 and 2013, and received sentences of imprisonment for each of these offences. The definition also includes the offence of assault occasioning actual bodily harm. The offender was convicted for this offence in 2002, for which he received a Community Service Order.
3. In 2017, when aged 37, the offender was convicted of a number of offences, including being armed with intent to commit an indictable offence, two of the counts of stalk or intimidate, and escaping lawful custody. He received an aggregate sentence of 20 months imprisonment, backdated to commence on 10 November 2016, with a non-parole period of 11 months and 14 days. He was released to parole on 23 October 2017, and was returned to custody on his arrest on 19 November 2017. His balance of parole expired on 9 July 2018. His time in custody since that date has been exclusively on remand for this matter.

The offender's evidence as to the offence

1. The offender gave evidence on his sentence and was cross-examined about the circumstances of the offence. He said that after he left the home of his former partner on the night of the offence, he walked to Weelong Place. He had not consumed alcohol or taken any drugs that evening. The deceased arrived and swore at him and was yelling at him, saying he wanted to get at him: "I knew that he had a knife and wanted to get at me and I was scared". The deceased tried to stab him with the knife through the screen door and the offender said: "[the knife] nearly got me. I pulled my hand away". As the deceased tried to stab him, the offender stated that "[the deceased] was calling [me] all different names … but I can't remember what exactly that was". The offender said he did not know why the deceased wanted to harm him; he said that he was not going out with anyone in that house at that time, although he had been "involved" with Ms Cumberland many years before.
2. The offender said that after Mr Merritt forced the deceased outside, others in the house wanted him to go out and help Mr Merritt. He did so, intending to calm down the deceased, but took the door brace with him, "for my protection, for me safety", because the deceased was armed. He saw that Mr Merritt had the deceased in a "bear hug", but that did not make him feel safer, "because he said he had someone up the road just wanting to shoot me". He agreed with the Crown that it was "some sort of bikie or something", which he assumed was true, because he knew that the deceased spent time with bikies.
3. The offender was asked in cross-examination why he had not called the police, and responded: "I don't know. Just things gone too fast". The offender was not asked if he knew at that stage that the deceased was no longer armed, and there is no other evidence as to his state of awareness on that issue. The offender said that he hit the deceased with the door brace because "[Mr Merritt] had asked me to knock him out". He did not recall where his first blow hit the deceased. Mr Merritt said words to the effect of: "He's not knocked out. Got to do it properly". The offender said in cross-examination: "That's why I kept hitting him, but … I didn't mean it, to go that far". He said that his second blow hit the deceased "on top of the head" and that he thought that he hit the deceased two or three times altogether. He was asked, "Did you lose it?" and responded: "No, I didn't lose it. Just scared sort of. Things happened real quick". He denied that he intended to kill the deceased, saying that his objective was to "just knock him out or just stop him from getting at me". He said that the reason he took the door brace with him when he left Weelong Place with Mr Barnes was: "I thought [the bikies] were at the end of the street waiting for me, because [the deceased] was there, coming to get me".

The offender's mental state at the time of the offence

1. Evidence was tendered at the sentence hearing concerning the offender's mental state, suggesting that since at least 2010, he had a neurological disorder from traumatic brain injuries, an intellectual disability and a mental illness. The existence of any of these three conditions is potentially relevant to an assessment of the degree of the offender's moral culpability and to considerations of general deterrence and retribution: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53], [54].
2. The non-forensic evidence relied upon for a diagnosis of a traumatic brain injury was a history provided to a forensic psychiatrist by the offender, which was corroborated and expanded by two letters to the Court by the offender and his brother, Shaun Charters, tendered without objection, and the offender's sworn evidence on the sentence hearing. His brother's letter, dated 7 April 2020, stated that, as a young man, the offender had boxing classes and sparring sessions conducted by the elder men of their community. He said: "On a number of occasions these sparring sessions would result in a concussion. [The offender] has suffered concussions on other occasions including after a motor bike accident during his childhood and as a result of a motor vehicle accident where he lost consciousness for an extended period of time."
3. The offender's letter, dated 30 March 2020, stated: "I remember when I rolled my ute a few years ago. I don't remember much about what happened but since that accident my memory and head got affected and I started hearing voices and seeing people, especially lost ones. After this accident I started to take medication for schizophrenia. I also take medication for depression every day and night. I think all the medication I take affects me because I just feel like a zombie and I have a very bad memory and I often get times and dates mixed up. When I don't take my medication I have very weird tendencies, for example I am very particular, I get anxious and stressed out about seeing dirt and germs that I have to wipe down everything before I touch it."
4. Counsel for the offender elicited from him in evidence at the sentence hearing that when he was aged 18 or 19, he started boxing. In all, he participated in at least 20 fights. Over his career as a boxer, he was knocked out many times, particularly when he was starting off. As I understood his evidence, his opponents were often more skilled and, because he boxed in the heavyweight class, they were quite powerful, so that he was often knocked out.
5. In his evidence, the offender also said that in 2010 he had a serious car accident, in which he was knocked unconscious. From about the age of 19 or 20, he had significant problems with his memory, apparently due to his boxing history and the car accident.
6. A report by forensic psychiatrist Dr Olav Nielssen, dated 4 March 2020, was tendered on behalf of the offender. Dr Nielssen interviewed him on 6 February 2020. The offender told him that he was receiving medication in prison, which he understood to be for schizophrenia and depression. Dr Nielssen had a copy of the offender's Justice Health file and noted that there was no record of the basis for the diagnosis of schizophrenia. The records indicated that during his current period of incarceration, the offender had seen a mental health nurse, but not a psychiatrist, although the offender claimed he had seen one. Dr Nielssen asked the offender about the diagnosis of schizophrenia, and was told that it started when he received a head injury in a car crash in about 2010, which affected his memory. Thereafter, he experienced hallucinations of voices and visions of people who had passed away.
7. Dr Nielssen noted that one of the medications the offender was receiving was a treatment for seizures. The offender said that he had several seizures that he understood were attributed to alcohol withdrawal or the head injury. He said that not taking his medication would cause him after four or five days to "chuck a fit".
8. Dr Nielssen diagnosed the offender as having "a probable traumatic brain injury", "possible schizophrenia, in partial remission" and "substance use disorder, in remission". Dr Nielssen stated: "The diagnosis of a probable traumatic brain injury is based on [the offender's] account of having been transferred to hospital unconscious after a car accident in about 2010, when aged thirty. He reported the onset of seizures and also symptoms of psychosis in the aftermath of that injury. He also reported as many as thirty fights as a heavyweight boxer, including being knocked out on several occasions."
9. I note that it appears that Dr Nielssen is the first medical expert to have made such a diagnosis of the offender.
10. In relation to his diagnosis of possible schizophrenia, Dr Nielssen noted that the hallucinations were not accompanied by other typical features of schizophrenia. He said: "However, psychotic illness, and also hallucinosis without delusional beliefs, are more common after traumatic brain injury, and his psychotic symptoms may be related to that injury. He also reported seizures which are another complication of brain trauma."
11. As to the offender's likely mental state at the time of the offence, Dr Nielssen considered that he was quite affected by the terminal illness of his father, the inevitable difficulties adjusting to life back in the community following his recent release from prison, and re-establishing a relationship with his partner and their four children. Dr Nielssen also stated: "Increased impulsivity and impairment in social judgement associated with an underlying traumatic brain injury would have further reduced [the offender's] ability to control his actions or consider their potential consequences."
12. In the course of his report, Dr Nielssen referred to a psychologist's report by Liam Higham, dated 26 September 2017, noting that Mr Higham had concluded that the offender had a mild intellectual disability. In my view, that was an overstatement. Mr Higham's report was tendered. He was a provisional psychologist who had assessed the offender for the purposes of the sentence hearing in October 2017. In his report, Mr Higham stated: "Without the evidence of an intelligence assessment, the presence of an Intellectual Disability is unable to be formally diagnosed. Should it be likely that [the offender] met the symptom criteria for Intellectual Disability … It is likely that a Mild Intellectual Disability would be present, as [the offender] experiences difficulties with adaptive behaviours across all domains."
13. Mr Higham did not explain why he had not carried out an intelligence assessment on the offender. Counsel for the offender was granted an adjournment in order to obtain further forensic reports as to whether the offender in fact had an intellectual disability and/or a neurological disorder that was attributable to a traumatic brain injury.
14. On the resumption of the hearing, approximately two months later, a report by psychologist Jason Borkowski was tendered on behalf of the offender, dated 18 June 2020. Mr Borkowski administered the Wechsler Abbreviated Scale of Intelligence - Second Edition ("WASI-II") and concluded that the offender's overall score placed him in the borderline to low average range of intellectual functioning, meaning that he does not have an intellectual disability. Mr Borkowski also considered that the offender's overall full-scale IQ score should be interpreted with caution, in view of his achievements in training and obtaining a trade certificate; it might be that his low scores reflected his disrupted educational history. His abilities within the perceptual reasoning domain were in the average range.
15. I accept the opinion of Dr Borkowski that the offender does not have an intellectual disability.
16. Mr Borkowski was unable to exclude a traumatic brain injury. He referred to certain symptoms related by the offender, including that he is easily irritated, that he goes "from 0-100 easily" and that he becomes anxious if things around him are not clean. Mr Borkowski also noted the onset of seizures and psychotic episodes since his car accident in 2010 and the diagnosis of bipolar disorder, and concluded: "When considering these emotional, personality, physical and neurological features, and [the offender's] reported history, consistent with Dr Nielssen's opinion, I am of the opinion [the offender] likely has a Neurocognitive Disorder due to Traumatic Brain Injury. I also concur with Dr Nielssen's recommendation in his report … that neurological scans, MRI results, and medical records from the time of the injury are required to enable a formulation of the aetiology and extent of any presenting neurological damage."
17. In relation to the offence, Mr Borkowski dismissed any deficit in intellectual functioning and continued: "It is more likely however, that [the offender's] actions were a manifestation of the mood instability, and the emotional and behavioural dysregulation that is known to occur in individuals with a history of traumatic brain injury. Formulation of a concise diagnosis in relation to the extent of [the offender's] neurological injury, and a prognostic opinion and treatment plan requires collation of additional medical information including details of his medical condition when he was treated following the accident, and a neurological examination (such as MRI scans) is recommended if it has not already occurred."
18. Mr Borkowski continued with a strong recommendation as to the future care of the offender in the prison system, and when he returns to the community.
19. In view of Mr Borkowski's recommendation of a "concise diagnosis" in order to confirm that the offender has a neurological disorder due to traumatic brain injury, and its extent, I asked counsel for the offender if a further adjournment was sought, and was advised that it was not, the reason being that his legal representatives have been unable to obtain his medical records. In addition, an affidavit affirmed by the offender's solicitor was tendered to the effect that the doctor nominated by the offender as having diagnosed him as having schizophrenia had responded, through his practice, that he had no record of having seen the offender. The Court was further informed that it would take an extended period, perhaps until 2021, to obtain "a CT scan" of the offender under the Justice Health system.
20. I note that this decision did not appear to have been made for tactical reasons, since the offender's legal representatives had led the non-forensic material to corroborate the basis of the diagnosis. Further, the explanation seems to confuse the time taken for such procedures when they are required for forensic, rather than treatment, purposes, and it perhaps overlooks the expertise of a neuropsychologist. I also note that an absence of Legal Aid funding, or the constraints of the COVID-19 pandemic, were not identified as impediments in obtaining an MRI or CT scan, or a neuropsychologist's report.

The conflicting aspects of the offender's accounts

1. The consequences of the absence of such a report are compounded by the offender's poor performance as an historian, which may or may not be due to his possible neurological disorder. The offender's evidence in the sentence hearing and the accounts he provided to the psychologists and Dr Nielssen were often contradictory. The following are examples, and are not exhaustive: 1. The offender told Dr Nielssen that, following the 2010 car accident, he was taken to the local hospital, unconscious, and had no memory of the treatment he received there, whereas in his evidence at the sentence hearing, the offender expressly denied he was taken to hospital, and said instead he was taken directly to a police station. 2. In evidence, the offender said his memory problems commenced when he was "about 19, 20" and that he had received treatment for it in the community. However, he told Dr Nielssen that the car accident led to his memory problems, and that he had never been admitted to a psychiatric hospital or seen psychologists or counsellors. 3. The offender told Dr Nielssen that he left school after repeating year 6, and therefore did not go on to high school. In his sworn evidence, when asked if he attended high school, he responded: "probably about two years, three years or something like that". 4. The offender told Dr Nielssen that he had been prescribed his medication for schizophrenia and his other disorders by a psychiatrist during his current remand, but Dr Nielssen, referring to the offender's Justice Health records, noted: "The entries made during his current period of incarceration show that [the offender] saw a mental health nurse, but had not seen a psychiatrist. There was no record of the basis for the diagnosis of schizophrenia …"
2. There are other concerns arising from the absence of such a report. Mr Higham formed a view that the offender's response to a personality assessment test that he administered to him suggested that he was malingering in order to exaggerate his problems. Mr Higham concluded: "… it was suspected that [the offender] was attempting to portray himself as experiencing symptoms that were worse than they actually were."
3. However, Mr Higham was not provided with a history suggesting that the offender may have suffered traumatic brain injuries. If he had, perhaps he would have interpreted the results differently.
4. As well, I note that Mr Borkowski stated that as a result of "the brevity and vagueness" of the offender's responses to questions, Mr Borkowski was "unable to elicit any additional detail[s] regarding his background history to that which has already been provided in the previous reports". This may also be explicable by a neurological disorder.
5. In the absence of a report by a suitable medical expert, I am unable to find that the offender has a neurological disorder. The standard of proof that applies to findings of fact that favour an offender on sentence is the balance of probabilities, and I must be satisfied of the accuracy of that submission: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. I appreciate that Dr Nielssen diagnosed a "probable" brain injury, and that Mr Borkowski thought it "likely" that the offender had a neurological disorder attributable to a traumatic brain injury, but in my opinion, in view of the absence of any psychological testing, such as that which is administered by a neuropsychologist, or scanning evidence such as an MRI that identifies such a condition, I am unable to make that finding. Dr Nielssen stated that his diagnosis was partly based on the offender's account that, immediately following the car accident, he was taken to hospital unconscious, which the offender later denied. In view of this and other critical contradictions in the offender's history, in the absence of objective evidence such as appropriate psychometric testing and/or brain scans, the onus is not discharged. Given its clear relevance to the sentencing exercise, the absence of such a report is regrettable.

The offender's lack of medication

1. A further concern raised by the offender was that he was unmedicated at the time of the offence. In evidence, the offender said that at that time of the offence, he had not had access to his medication, following his recent release from prison and difficulties he had encountered in making an appointment to see his doctor, apparently to renew scripts.
2. In written submissions, counsel for the offender referred to a part of Dr Nielssen's report where he related the history provided by the offender and submitted that the Court would have "no difficulty … in finding that the offender was suffering symptoms of mental illness and feelings of paranoia at the time of the offence".
3. I accept that the offender has previously been diagnosed as suffering schizophrenia and a bipolar disorder, on the basis that Mr Higham noted in his report that he had access to at least some of the offender's medical file through the Aboriginal Legal Service, which indicated that from December 2012, he had been prescribed medication for both mental illnesses. There is insufficient reliable evidence to determine whether the offender continued to suffer from schizophrenia or a bipolar disorder at the time of the offence.

The seriousness of the offence

1. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. It does not have a standard non-parole period, which is consistent with the wide range of circumstances and degrees of seriousness that the offence encompasses.
2. I find that the offender's intent at the time that he hit the deceased on the head with the door brace was to cause him serious bodily harm. I accept the evidence of Mr Barnes that the offender hit the deceased when asked by Mr Merritt to knock him out, and that he intended to hit him with at least sufficient force to knock him unconscious. The words and tone attributed to the offender when he re-entered the house after hitting the deceased are consistent with, and in my opinion, evidence of, a lack of intent to kill the deceased. It suggests a realisation by the offender that he had gone too far in the force he used when hitting the deceased.
3. The elements of the partial defence of excessive self-defence to a charge of murder are set out in s 421(1) of the Crimes Act 1900 (NSW), as follows: "421 Self-defence - excessive force that inflicts death (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."
4. The jury's verdict aligns with these elements. In order to gauge the seriousness of the offence for sentencing purposes, it is necessary to determine the extent to which the offender's conduct fell short of a complete defence; in other words, the extent to which his conduct went beyond a reasonable response, in the circumstances as he perceived them to be: s 421(1)(b). The "conduct", in this case, is the hitting of the deceased's head with the door brace.
5. The first step is to determine the circumstances at the relevant time as the offender perceived them to be: see Smith v R [2015] NSWCCA 193 at [36] and [45] per Simpson JA (Leeming JA and Hamill J agreeing). Having regard to the evidence of those who witnessed the incident and the explanation provided by the offender in his evidence on sentence, I find that, at the time that the offender hit the deceased with the door brace, he feared for his safety and the safety of the others, in spite of the fact that the deceased was being held back by Mr Merritt and was unarmed. It was apparent that Mr Merritt was having difficulty in continuing to physically restrain the deceased, although the deceased was significantly shorter and lighter in weight than Mr Merritt.
6. All those present in the house that night, who gave evidence in the trial, said that they felt extreme fear during the ordeal. Ms Barlow said "it was scary". After the deceased had tried to stab the offender through the screen door, smashed the windows and for a second time was trying to re-enter through the screen door, and the offender again approached it to try to stop him, Ms Barlow decided to phone the police, but was so overcome by fear that she "froze" and could not move.
7. Mr Bray, who was then aged 18, described himself as "a mess … I was hysteric[al]." He said he was "scared for everyone's safety", including his own. After the deceased entered the lounge carrying the knife, Mr Bray ran out of the back door, jumped a fence and continued on to his mother's house. Mr Bishop locked Ms Ruge and Ms Cumberland in the back room. Ms Ruge said: "I was scared that [the deceased] was going to hurt everyone there … I didn't know until after [that the deceased had a knife] but I've seen him do enough damage without a weapon."
8. The offender described feeling fear. His evidence that the deceased had singled him out as a target is corroborated by, firstly, the evidence of Mr Barnes, Ms Barlow and others that they heard the deceased verbally abuse the offender, including in racist terms, blame him for Ms Cumberland not returning his texts, threaten him and urge him to come outside to fight, and this occurred while the deceased was armed with a large carving knife and was acting aggressively and irrationally. Secondly, his evidence that the deceased had already tried to stab the offender as he faced the offender from inside the screen door was corroborated by Ms Barlow. Thirdly, the evidence of Mr Barnes corroborates the evidence of the offender to the effect that the deceased threatened the offender, by saying that there were multiple others nearby who were preparing to attack him. Fourthly, there was the evidence of Mr Barnes to the effect that, even though Mr Merritt had the deceased in a "bear hug", the deceased continued to struggle and speak aggressively, to an extent that Mr Merritt urged the offender to knock him out.
9. These then were the circumstances as the offender perceived them, and it must be determined what reasonable options were open to him in light of those circumstances. The offender explained that, at that stage, events were moving too quickly to call the police, which I accept. It is regrettable that no-one had contacted the police when the deceased first arrived at the house, wielding the knife.
10. In my opinion, in spite of the assessment by Mr Merritt and Mr Barnes that the deceased should be "knocked out", an objectively reasonable form of conduct that was open to the offender was to assist Mr Merritt to hold and subdue the deceased. If needed, Mr Barnes was nearby and could have been called to assist, although I formed the impression from his evidence that after the deceased tried to stab him in the face, Mr Barnes was reluctant to take an active role in subduing the deceased.
11. Hitting the deceased to his head with the door brace, in an attempt to knock him out, was fraught with danger. Having decided to attempt to do so, clearly a more reasonable form of conduct would have been to apply significantly less force than the offender did. I accept the evidence of the offender, which is partly corroborated by Mr Barnes, that words were spoken by Mr Merritt in between the blows. I accept that Mr Merritt told the offender to apply more force with the subsequent blow or blows, depending on whether there were two or three blows overall.
12. There is no evidence as to what the offender thought had become of the knife when he saw the deceased being held by Mr Merritt. I accept that a realistic understanding of the situation must factor in the events that had unfolded from when the deceased had first burst into the lounge room holding the knife. From that perspective, the overriding concern was to quickly neutralise the deceased, and knocking him out seemed to both Mr Merritt and the offender at that time to be the only reasonable means of achieving that end.
13. I find that the offence falls well below the mid-range of objective seriousness for offences of this type.

The offender's background

1. The offender gave evidence to the effect that he is an Indigenous man, his mother having been a Wiradjuri woman. His early childhood was on the Condobolin Mission, which at that time, comprised three or four old houses. He had two older siblings: a sister, who is deceased, and his brother Shaun. His mother died from cancer when he was aged about five. The family remained on the mission, and he was then brought up by his father, who he described in evidence as "the hardest man I have ever seen … He used to flog me for crying for mum". The offender described life on the mission after the death of his mother as: "… hard, like all me mates, they would come over because their parents were drunk or … not worrying about them and dad didn't worry about us very much because he had to work."
2. The offender's father would get together with his friends in the house to drink alcohol and smoke marijuana. The offender would witness violence on the mission on a daily basis. In his words, "there was always someone punching up". His friendship group was older than he was, and by the age of 15 he had started drinking alcohol. He said that he repeated a year in primary school four times, partly because his father would take him out of school to assist him working.
3. The offender's grim portrayal of his relationship with his father is at odds with how it is described by his brother Shaun, in the letter tendered in evidence. He does not mention any negative aspect of their father's behaviour, and stated: "[The offender] and I were both very close to our father, Garry senior". Shaun further stated: "During our adolescent years, [the offender] lived with our father whilst I was overseas and away in Sydney playing rugby. I then moved home to Condobolin to help care for our father." While it may be that Shaun did not witness their father's violence described by the offender, it is odd that the offender had not mentioned it to his brother.
4. I note that the offender told Mr Higham, when he was interviewed on 26 September 2017, that a family friend had sexually assaulted him at a young age, but he had declined to elaborate on the frequency of the assaults.
5. The offender told Dr Nielssen that, before the car accident, he had completed a number of TAFE courses, including a trade course as a boilermaker, and had worked as a welder in mines at Parkes and Orange. Tendered at the sentence hearing was a certificate dated May 2018, produced by Corrective Services NSW, to the effect that the offender had completed the 20-session EQUIPS Aggression Program.
6. In his letter to the Court, the offender said that he has five biological children, and six children altogether. In evidence, he said that his older sister died in a car accident, which also claimed the life of another of his daughters, aged four at the time. Coincidentally, the deceased's father died about seven hours after this offence. Although he had been terminally ill from cancer, his death at that time was unexpected. News of his death was the reason Ms Ware and the offender had travelled to and from Condobolin immediately before the offender's arrest.

Remorse

1. In his letter, the offender expressed remorse and regret, stating that he is haunted by his actions and that he constantly sees the deceased's face and thinks about the deceased's family and their loss. In evidence on his sentence, he was asked in cross-examination if there was anything he wished to say to the family of the deceased. The offender said that he was: "… deeply sorry for what I did, and I didn't mean for things to happen how they did. I know [the deceased] had little babies and that, kids that he can't go up to. And just one day could they try and forgive me if they can."

Bugmy submission

1. It was submitted on behalf of the offender that, for the reasons set out by the majority in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44], the offender's moral culpability is ameliorated by his exposure to drugs, alcohol and violence in his childhood household and community on the Condobolin Mission.

Consideration

1. As to the cause of the deceased's death, I accept the evidence of Dr Beer that it was caused by the aggregation of the injuries to both the side and front of the deceased's skull. I note there is a conflict in the forensic evidence of Dr Douglas and Dr Beer as to the implements likely used to cause those injuries. Having regard to the evidence of Mr Barnes and the offender that the offender stood in front of the deceased, and Mr Merritt's account that he hit the deceased to the side of his head, I conclude that, contrary to the opinion of Dr Beer, the injuries to the deceased's forehead were caused by the door brace being deployed by the offender, and the injuries to the side of the deceased's head were caused by the hoe handle deployed by Mr Merritt.
2. I make the following findings of fact as to the offender's role in the offence. There was no evidence as to whether the offender was aware of the violence that the deceased had perpetrated against Ms Cumberland, and I therefore do not make a finding that he was aware of it. Although injuries were apparent on Ms Cumberland on the night, there is no evidence as to whether the offender was aware how she came by them. Ms Cumberland was unsure if she had told him.
3. The offence was committed while the offender was on conditional liberty, namely, on parole: s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. He had been released from custody only four weeks earlier.
4. The offender has the benefit of a finding pursuant to s 21A(3)(b) of the Crimes (Sentencing Procedure) Act, namely, that the offence was not part of a planned or organised criminal activity; rather, it was a spontaneous overreaction to a perceived and actual serious threat to his safety and that of the others present.
5. The offender tried to persuade the deceased to calm down and cease his attack. The deceased insulted and taunted the offender, in an effort to provoke him into a fight, which the offender declined to do. Immediately prior to the offence, the offender placed his life in danger in order to protect the others in the household, by attempting to block the front entrance in spite of the deceased attempting to stab him as he did so. The deceased used a racist term in his insults directed to the offender between the first and second blow delivered by the offender. I find that these insults and taunts, although provocative in nature, did not in fact provoke the offender to commit the offence, and therefore are not a relevant mitigatory factor pursuant to s 21A(3)(c) of the Crimes (Sentencing Procedure) Act. However, they constitute a significant mitigatory factor in a different way; the defendant's steadfast refusal to rise to the deceased's insults and taunts are to his credit in demonstrating his self-control in difficult circumstances.
6. I find that the offender's objective in hitting the deceased to the head was to render him unconscious, so as to stop the threat he posed to the safety of himself and the others present. His decision to do so followed Mr Merritt urging him to knock out the deceased. Having regard to the medical evidence, the offender hit the deceased at least twice, and possibly three times. In between blows, Mr Merritt urged the offender to hit the deceased again. The degree of force that the offender applied when hitting the deceased with at least two blows, being sufficient to fracture the deceased's skull, was significantly excessive in order to achieve that objective.
7. The offender admitted to Dr Nielssen that he had been a regular user of methamphetamine, but denied having consumed any kind of drug for about a year prior to this offence. In the absence of any evidence to the contrary, and noting evidence from Mr Barnes that the offender did not appear to be under the influence of "anything" that night, I accept that he was not under the influence of drugs or alcohol at the time of the offence.

Remorse and prospects of rehabilitation: ss 21A(3)(h) and (i) of the Crimes (Sentencing Procedure) Act

1. I consider that the offender's prospects of rehabilitation, in terms of the type of property-related and driving offences that predominate on his record, are poor. However, as to future offences of serious violence, I regard his prospects as reasonable. To the extent that past behaviour can be an indicator of potential future behaviour, although his past offences of personal violence warranted sentences of imprisonment, they were not the most serious examples of such offences. I accept his sworn evidence, and his comments to the forensic experts to similar effect, that his responsibility for the death of another has had a profound and continuing impact on him, and that his remorse is genuine. I note that he has not been convicted of any offence other than the instant one since completing the EQUIPS program in 2018.
2. I am satisfied that a sentence of imprisonment is the only appropriate sentence. Counsel for the offender submitted that there were special circumstances warranting an adjustment of the statutory ratio of the non-parole period to the total sentence: s 44 of the Crimes (Sentencing Procedure) Act. These were the need for treatment for the offender's "mental health treatment diagnosis" and "undiagnosed but treated psychiatric condition".
3. For reasons already expressed, I am not satisfied to the requisite evidentiary standard that the offender continues to suffer from schizophrenia or a bipolar disorder, or that he has a neurological disorder, although there is material that suggests he may well do so.
4. I accept the offender's evidence to the effect that his upbringing was in a household and community in which violence, alcohol and drug abuse were endemic, and that it laid the foundations for an early introduction to alcohol and his subsequent failure to establish a law-abiding lifestyle. The terms of the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Bugmy, at [43], are apposite: "… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending." I am mindful that such considerations are not necessarily mitigatory for all of the purposes of punishment: see Bugmy at [44].
5. The offender was returned to custody on the date of the offence and thereafter served the balance of his parole, which expired on 9 July 2018. His detention since that date has been exclusively in relation to this matter. A degree of concurrency with the time he spent serving the balance of his parole is appropriate.

Sentence

1. Garry Brent Charters, you are convicted of the manslaughter of Matthew LeBrocque. I make the following order: 1. The offender is sentenced to a term of imprisonment comprising a non-parole period of 2 years 9 months, and a balance of term of 2 years. The total sentence is 4 years 9 months, commencing from 19 January 2018 and expiring on 18 October 2022. The offender will become eligible for possible release on parole when the non-parole period expires on 18 October 2020.

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: 03 July 2020