R v Collins [2004] ACTSC 73

2. Julia Collins died at about 10.20 pm on 30 January 2003 as a result of a single knife wound to the abdomen. You inflicted that wound, using "severe force", so much so that the knife penetrated the lumbar vertebra.

3. I do not propose to set out in detail the events of that evening. They are summarised in the judgment that I delivered when I convicted you of manslaughter. It is sufficient for present purposes simply to note certain salient facts that are not disputed.

4. You appear to have had a normal, loving relationship with your mother. There was no apparent motive for this crime. You had drunk a significant amount of alcohol throughout the afternoon and evening leading up to the incident, and were obviously intoxicated. You were also probably affected by some cannabis that you had smoked the night before. Your crime was not premeditated. You did not intend to cause your mother's death, and you did not foresee her death as a probable consequence of your actions. Nonetheless, you brought about that death by a conscious and voluntary act and, consistent with the finding of manslaughter, you must at least have intended to cause some significant injury. That is so, irrespective of whether, as your counsel has submitted, you were acting out some kind of drunken fantasy.

5. You have no memory of the events immediately leading up to your mother's death. It is impossible to say what, if anything, triggered your attack upon her. A neighbour who saw you shortly before she was stabbed, described you as appearing "calm" and "normal". He described your mother as appearing "amicable" and not "angry or upset" with you. At the same time, he said you were unsteady on your feet, confused and puzzled, meek and obedient, and childlike, as he led you back to your home. Moments before, he had seen you crawling about on his lawn, under the sprinkler, behaving in strange manner.

6. Shortly after you stabbed your mother, you were seen to be naked, apparently oblivious to that condition. You were described as disoriented, agitated, upset and angry. You were calling for help, sobbing, and confused. Yet you had the presence of mind to call an ambulance when help did not arrive as quickly as you expected.

7. Your blood alcohol content at the time was estimated to be somewhere between 0.15 and 0.25. There was evidence that the effect of the alcohol that you had consumed may have been potentiated by your earlier use of cannabis. There was also evidence that you may have been playing out some kind of non-delusional fantasy, possibly influenced by a DVD that you had seen earlier that day. Nonetheless, it is significant that within two hours or so of the incident, you were able to carry on a coherent and rational discussion with a doctor who had been asked to consider whether you were fit for interview. It was at least partly on that basis that I rejected the contention that you had not acted consciously and voluntarily, or intentionally, when you stabbed your mother.

8. There are several features of this case that will probably forever remain a mystery. For example, when you were examined, there were minor abrasions and scratches on your body, possibly consistent with having been inflicted by a knife. No logical explanation for those injuries has been proffered.

9. As previously indicated, the fatal wound was inflicted with severe force. No one can say why you did what you did, and it would be wrong to speculate. What occurred was a senseless and tragic crime, and presents me with a difficult sentencing task.

10. You are a young man, currently aged twenty-four years. You are generally of good character, and have no prior convictions. You have the support of a loving family, all of whom have expressed understanding, compassion, and a willingness to assist in your future life. That is a very significant matter, particularly given that your father and your siblings are, in a very real sense, also the victims of your crime.

11. I was greatly impressed and, I must say moved, by the eloquent letter that your sister, Monique, addressed to the Court. In that letter, she made the following poignant comment:

"I have often asked myself "What would Mum do, and what would she have wanted to be done?" In my heart I know Mum would not have wanted us to abandon Tom. I know after the anger, the pain, the hurt and the disbelief Mum would have wanted Tom to learn from this situation and she would have wanted us to do our very best to try and achieve this for and with him."

12. The evidence given by your other sister, Sarajane, also impressed me. Although you have had difficulty in coming to terms with all that has happened, you now appear to me to accept responsibility for your actions. I am also satisfied that you have gained some insight into the enormity of what you did, and the effect that alcohol can have upon you. The evidence of Bishop Power satisfies me that you are now genuinely and deeply remorseful. I do not think that you will re-offend. I regard considerations of specific deterrence as having little weight in your case.

13. Mr Purnell SC submitted that you will have to live the rest of your life knowing that you were responsible for your mother's death. The burden will be all the greater because of the devastating effect that your actions have had upon those you love. He submitted that the unusual circumstances of this case warrant an unusual disposition. He invited me to impose a wholly suspended sentence, or alternatively, what is generally known as a "Griffiths Bond". In support of that submission, he argued that the period that you have already spent in custody, some 257 days, is sufficient punishment in all the circumstances.

14. Mr Purnell also sought to bolster that submission by pointing to the consequences that imprisonment will have upon you. He submitted that if you are imprisoned, you will be given an "A" classification, which will mean that you will be prevented from participating in any educational programs, or work crews. More contentiously, he submitted that I should not imprison you because it is well known that young men are particularly at risk of sexual assault and other forms of violence within the New South Wales prison system. Over objection, he tendered a bundle of materials that were said to support that contention.

15. I have read the documents in question. Although some of them are dated, and may be of questionable value having regard to the methodology employed, they obviously raise matters of concern. Nonetheless, I cannot accept the contention that a sentence of imprisonment that is otherwise warranted and required should not be imposed because of a supposed inability, or unwillingness, on the part of the prison authorities to discharge their responsibilities appropriately.

16. Mr Purnell was unable to cite any authority in support of his submission. That did not surprise me, as it seems to me to be contrary to principle. Subsequently, the Crown filed a list of cases relating to this issue, making it clear that it is for the gaol authorities, and not for the courts, to ensure the safety of prisoners in custody. See generally R v Burchell (1987) 34 A Crim R 148; R v King (NSWCCA, 60240/91, 20 August 1991, unreported) at 8; and R v Nomchong (NSWCCA, 60411/96, 10 April 1997, unreported) at 6.

17. The courts must act upon the assumption that persons sentenced to imprisonment will be treated lawfully, and that their rights will be protected. The safety of a prisoner is the responsibility of the Department of Corrective Services. The fact that there may be a problem with sexual and other assaults within the prison system cannot justify the failure to carry out the sentencing task according to law.

18. Mr Refshauge SC submitted on behalf of the Crown that even allowing for the mitigating factors present in your case, nothing less than an immediate and substantial term of imprisonment is warranted. He submitted that the starting point was the maximum sentence for manslaughter, namely twenty years. Although he accepted that manslaughter was a crime for which there was no tariff, encompassing a wide range of situations from cases akin to murder to those where a non-custodial penalty would be available, he submitted that only in exceptional circumstances would it be appropriate not to impose a substantial term of imprisonment for a case of this type.

19. Mr Refshauge further submitted that your case should be viewed as serious. He submitted that a key element in assessing the gravity of your conduct was the fact that it involved the intentional infliction of a serious stab wound upon a wholly blameless person, leading to the unlawful taking of a human life. He submitted that the legislature, by fixing a maximum penalty of twenty years' imprisonment, had expressed the view of the community, which placed a premium upon human life. He contended that the Court had to make clear by its sentence the denunciation of the criminal conduct involved in unlawful homicide. He referred to R v Hill (1981) 3 A Crim R 397 at 402 and R v Troja (NSWCCA, 606394/90, 16 July 1991, unreported) at 4. He drew my attention to a number of cases where significant terms of imprisonment had been imposed for manslaughter, some of them supposedly not dissimilar to this case.

20. It seems to me that I must balance the mitigating circumstances, and other subjective features present in your case, with the objective seriousness of the offence. In that regard, I note that s 341 of the Crimes Act provides that the only purposes for which a sentence may be imposed are punishment, deterrence, rehabilitation, denunciation, and the protection of the community.

21. I have already indicated that I do not consider specific deterrence to be relevant in your case. However, general deterrence is a different matter. At the time you committed this crime, you were not suffering from any mental condition or abnormality that would make it inappropriate to use your case as a vehicle for such deterrence. You were simply drunk, and possibly affected by drugs. Those who cause serious injury or death whilst in such a state cannot expect any leniency from the courts.

22. As s 341(a) of the Crimes Act makes clear, it is a legitimate purpose for which a sentence may be imposed to punish the offender to an extent and in a way that is just and appropriate in all the circumstances. At one time, retribution was regarded as an outmoded sentencing principle. Even at common law, that is no longer the case: Ryan v The Queen (2001) 206 CLR 267 at 282-3. Denunciation, which is a related concept, is also accepted as a relevant sentencing factor.

23. It has been said repeatedly that the courts must give weight to community expectations when it comes to imposing sentences for violent crimes. By your conduct, for which you alone are responsible, you took the life of a woman who had done you no wrong, but shown you only love and affection. I have no doubt that, as your sister Monique observed, were your mother able to be heard today, she would urge me not to impose any further punishment upon you. However, I am obliged to take into account not just the views of those who have suffered directly by the loss of your mother's life, but also the wider public interest. I must have regard to the primacy that the law accords to human life. You must be adequately punished for what you did.

24. After giving your case the most careful consideration, and after weighing all of the matters so ably advanced on your behalf, as well as the submissions advanced on behalf of the Crown, I am compelled to the conclusion that the objective seriousness of your crime requires nothing less than a sentence of actual imprisonment. I am required by s 345 of the Crimes Act to explain to you why I am satisfied that no other penalty is appropriate. Quite simply, your conduct in deliberately stabbing your mother, with severe force, in circumstances where you must have realised that you would probably inflict serious injury, makes this too serious an offence for a non-custodial disposition. The fact that you were disinhibited by alcohol may go part of the way to explaining what you did, but it does not significantly reduce the degree of criminality involved.

25. The sentence that I am about to impose is lower than the gravity of your crime, viewed objectively, would warrant. It should not be regarded as a precedent for any other case of manslaughter. There are a number of mitigating circumstances that you can call in aid. These include your youth, your prior good character, and the remorse that you now feel for your actions. You have good prospects of rehabilitation. For these reasons, I propose to fix a non-parole period that is lower than might otherwise be expected.

26. Mr Collins, would you please stand. For the crime of manslaughter, I sentence you to be imprisoned for a term of 3 years and 6 months. I fix a non-parole period of 18 months. Although you are represented by counsel, I am required by s 359 of the Crimes Act to explain to you, or cause to be explained, that the non-parole period is the period that you must actually serve before you are eligible for parole. If you are released on parole, the order will be subject to conditions, and if you fail without reasonable excuse to fulfil those conditions, your parole may be revoked.

27. You have already spent 257 days in custody. Section 360(1) of the Crimes Act requires that period to be taken into account as time served. It is for that reason that I order that your sentence take effect from 17 December 2003. You will be eligible for parole on 16 May 2005.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the accused: Mr F.J. Purnell SC with Mr W Sharwood and Mr S Hausfeld

Counsel for the prosecution: Mr R.C. Refshauge SC DPP with Mr J.G. Lundy

Solicitor for the prosecution: Director of Public Prosecutions