HER HONOUR: On 19 July 2021 Jamie Cust, the offender, was arraigned before a jury panel upon a charge that he did, on 17 or 18 December 2018, at Scone in this State, murder Jesus Bebita. He entered a plea of not guilty and, on 26 July 2021, was found not guilty of that charge by the jury that had been empanelled to hear his trial. As the offender had invited it to, the jury returned a verdict of guilty to the alternative charge of manslaughter, having concluded that the Crown had failed to disprove the partial defence of extreme provocation available to the offender pursuant to s 23(1) of the Crimes Act 1900 (NSW).
The offender now stands to be sentenced for the manslaughter of Mr Bebita. Manslaughter, a less serious crime than murder, is an offence which carries a maximum sentence upon conviction of 25 years imprisonment. No standard non-parole period applies.
In sentencing Mr Cust the Court must determine the facts of the offence consistent with the jury's verdict.
[2]
The Facts of the offender's crime
The evidence to establish precisely what occurred on or about 18 December 2018 is relatively limited.
The offender, who had been living in Sydney for a short time in the latter half of 2018, returned to his father's house in Muswellbrook on Sunday 16 December 2018, to see his family and collect some property prior to starting a new job in Sydney. The job the offender was to commence was as an apprentice chef and among the property he collected at home was a set of knives that he had from earlier employment and intended to use in his new occupation.
Having spent the night and much of the following day, Monday 17 December, at his father's home, the offender made an arrangement with Mr Bebita, who was a good friend from work and who lived in nearby Scone, to meet up for a drink. The arrangement between the offender and Mr Bebita was that they would share some drinks, the offender would stay at Mr Bebita's home that night, and then catch the train to Sydney the following morning. The two men had met when both worked for the same employer, and they had become friends, with the deceased training the offender in his duties, and helping him at work.
The deceased collected the offender from his father's home that afternoon and the two men drove to Scone. There is surveillance footage from a local bottle shop which shows them at the bottle shop soon after 8 o'clock that night, Mr Bebita purchasing some alcohol. A series of "selfies" later recovered from the offender's mobile phone (Ex. C) which were taken at about 9pm show the two men in Mr Bebita's kitchen on the evening of 17 December, smiling broadly and appearing happy. It is obvious from the photographs that Mr Bebita was both considerably older, and smaller, than the offender.
The evidence of what happened thereafter must be pieced together from the offender's statements, telephone records, and crime scene and forensic evidence.
There was some evidence before the jury that the offender had "accessed" the internet through his mobile telephone in the early hours of 18 December 2018, but I have set that evidence entirely aside. It was clear during the trial that it was entirely possible if not likely that electronic activity recorded in Ex. B as the offender "accessing" the internet referred to nothing more than data being received by the phone, without the offender having done anything at all to facilitate that process.
The first credible evidence of activity on the offender's phone establishes its use at about 4.15am the following day, 18 December, when the offender telephoned his father, Vivian Price. Mr Price did not immediately waken to pick up the call. Minutes later the offender again telephoned his father who took the call. The offender asked his father to pick him up in Scone. Mr Price went to his car and began the short drive to Scone.
As he drove, he received another call from the offender, who was crying and "really hysterical" (T102:19). Mr Price asked his son repeatedly what was wrong, but the offender would only say that he would tell Mr Price when he arrived in Scone.
Mr Price drove to Scone train station to collect the offender, who had been waiting nearby. The offender was wearing blue trousers and a white t-shirt, with canvas shoes. He was bleeding from an injury or injuries to the hand. In evidence Mr Price described his son as so hysterical that his speech was hard to understand. Mr Price was able to make out that the offender said, "He tried to rape me. I stabbed him". The offender was referring to Mr Bebita. The offender told his father that "he woke up, his pants were down, and he [Mr Bebita] was rubbing his dick on him" (T103:42). He said this a number of times, saying that he thought Mr Bebita was dead. The offender also told his father that he had tried to set a doona alight in Mr Bebita's home. Whilst Mr Price could smell alcohol on his son, he did not think he was drunk.
The offender told his father he was frightened of going to gaol and wanted to go home. Mr Price counselled him to go to the police, but he drove his son home. At home, the offender showered and put his clothes into a garbage bag, saying he wanted to get rid of them and leave the country. Mr Price maintained his advice to the offender to go to the police, and after a time, the offender agreed. Mr Price drove his son to Muswellbrook Police Station. The offender took with him the bag containing his clothes and the backpack of personal effects he had brought with him from the deceased's unit.
On arriving at the Police Station, at about 6.30am on 18 December 2018, the offender went inside with his father and spoke to Constable Cavallaro-Laverty. The constable observed that the offender was in "a very upset state, slurring his words and wiping away tears" (T136:14). The offender told the officer that he had stabbed someone and thought he had killed him. He was still "really hysterical" (T117:30), and the officer initially had some trouble understanding the offender, with Mr Price having to repeat what his son said. Constable Cavallaro-Laverty recalled the offender saying, "I killed someone who tried to rape me" (T136:20).
Detective Senior Constables ("DSC") Robins and Mawhinney next spoke with the offender. DSC Robins observed that the offender was red in the face and crying intermittently. The offender told the detectives that:
"I was picked up by a bloke at home and we went to a bottle shop at Aberdeen then went to his house at Scone where we had a few drinks" (T150:25).
When asked who the bloke was the offender said:
"Jesus, I know him as Jesus, he taught me all I know and we work[ed] together at the abattoir in Scone. […] I went to bed and I woke up, my pants were down and he was rubbing his penis on me. I woke up and we were in bed together and he was touching my penis and I freaked out" (T150:35ff).
The offender was cautioned. He asked the officers if there had been any reports of a house burning down. He then said:
"My mother dropped me at the train station when I was five years old" (T151:29).
One of the detectives asked where these events had occurred, the offender responding:
"Scone, I don't know the street. I stabbed Jesus several times and to cover it up I lit the doona alight to burn the house down. I should have got on a boat and left the country" (T151:37).
The offender told the detectives that he had stabbed Mr Bebita in the stomach and face. Using a map application on his phone the offender showed the officers the location of Mr Bebita's house. The offender was arrested.
On being entered into custody the offender was recorded in the Custody management Record maintained at the Police Station as being "emotional and upset". He was observed to have injuries to the fingers of both hands, which had been bandaged.
The offender spoke with a solicitor and was given legal advice. In part because of the injuries the offender had he was taken to John Hunter Hospital soon after arrest and examined.
Later, after confirming the death of Mr Bebita, DSC Robins and Mawhinney sought to more formally interview the offender. He had been advised by his solicitor not to participate in an interview and thereafter exercised his right to silence in accordance with that advice.
Although the Custody Officer gave some evidence at trial about a conversation he had with the offender later, during a cigarette break, there were some inaccuracies in the evidence given by the officer, and I do not accept the evidence concerning what was said by the offender on that occasion to the criminal standard. The evidence as to what was said by the Custody Officer is irrelevant and I have set it aside.
The police officers who attended Mr Bebita's home that morning found his body in the bathroom of the unit. He was clearly dead. Blood was observed both in the bathroom and in other rooms, as well as outside the premises. Later analysis showed that both the offender and Mr Bebita had deposited blood at the scene. The greatest deposition of blood was in the bedroom.
Mr Bebita was found lying on the bathroom floor. He was wearing a white top and white shorts which had been put on back to front. The crime scene photographs in evidence as part of Ex. C show, at least to some extent, the grievous nature of the injuries inflicted upon Mr Bebita.
There was evidence of a fire having started in bedding in the bedroom of the unit, self-extinguishing there.
Mr Bebita's heavily bloodstained body was later examined by the late Professor Tim Lyons, forensic pathologist, who observed at least 47 separate injuries, all consistent with having been inflicted by a knife. Some were clearly defensive injuries. The most serious of the injuries included a wound to the neck and chest area that was both deep and long, and uneven; a long and gaping wound to the back of the head, almost from ear to ear in length and, in depth, to the spine; a penetrating wound that entered the cranial cavity and into the deceased's brain; and a very significant wound that penetrated the deceased's left lung. Any one of those injuries could have led very quickly to Mr Bebita's death. He died as a direct result of the injuries. Moderate to severe force would have been required to inflict them.
Evidence given before the jury by Dr Isabella Brouwer, Chief Forensic Pathologist for NSW, was to the effect that the wounds inflicted suggested both a frenzied attack upon Mr Bebita, and a struggle between he and his attacker.
Semen was detected on a smear taken from the head of Mr Bebita's penis.
The items that the offender had brought with him to the police station were all later subjected to forensic analysis. Three knives were amongst the items examined, being the knives, the offender had collected from his father's home to take to Sydney with him on his return. Crimes scene photographs (part of Ex. C) showed blood on all of the knives. Much of it appears to have originated from the offender, no doubt from the injuries to his hands, but DNA extracted from the surfaces of the knives was also matched to Mr Bebita. I am satisfied that the offender used one of the knives to kill Mr Bebita.
Whilst the offender gave a more detailed account of the events of this night to Dr Richard Furst, a forensic psychiatrist, I am conscious of the caution with which such hearsay accounts are to be treated by sentencing courts, and I have not had regard to it in determining the facts of the crime. The accounts given by the offender to others within a period of hours after Mr Bebita died are, in any event, sufficient to determine what occurred.
Considering the evidence before the jury I am satisfied that, at some stage late on the night of 17 December 2018 or in the very early hours of 18 December, the offender, who was in the main bedroom of the unit at Scone, was woken from sleep to find that his pants, inferentially his underpants, had been pulled down, and Mr Bebita was beside him rubbing his penis against the offender's body. Although the offender did not say so to his father or police, given that he interpreted Mr Bebita's actions as an attempt to rape him, I am satisfied on balance that the area of the offender's body against which the deceased was moving his penis was the buttocks. The offender had neither been aware of these actions as they commenced during sleep or, upon becoming aware, given his consent to them.
Mr Bebita's conduct amounted, at the very least, to an offence of sexual touching, although I am satisfied that, in touching the offender as he did that night, Mr Bebita attempted to have sexual intercourse with the offender. The evidence is all supportive of that conclusion, and there is no evidence that casts doubt upon it.
Very soon after the incident, the offender told his father that Mr Bebita had tried to rape him. He repeated that assertion to Constable Cavallaro-Laverty. That evidence is capable of amounting to evidence of the truth of what was asserted, and I accept it on that basis.
Further, there are two things about Mr Bebita's body that are also instructive as to the conclusion I have drawn.
The smear taken from the head of his penis revealed semen that, on the evidence of Dr Brouwer, was likely to be pre-ejaculate emitted during a state of sexual excitement. This is consistent with Mr Bebita having been engaged in some sexual act, and having a sexual intention, shortly before his death.
Mr Bebita was clothed when his body was found, but the shorts he wore had been put on backwards. This strongly suggests that the deceased had removed his shorts, and subsequently dressed in great haste, perhaps upon the offender waking.
Mr Bebita's conduct amounts to extreme provocation as it is defined in s 23 of the Crimes Act, and extreme provocation of a high order.
Under that extreme provocation the offender immediately lost his self-control and attacked Mr Bebita in what was a frenzied assault, using a knife, and inflicting the severe injuries recorded by Professor Lyons. It is reasonable to conclude that the knife used had been in the bedroom close to where the offender had been sleeping, and thus that it was to hand when the offender awoke. Ordinary experience suggests that an individual staying overnight at a location away from home would keep his or her bag and other possessions close by. I am satisfied on balance that such was the case here.
In attacking Mr Bebita with a knife in the way that he did, the offender intended at the very least to inflict very serious injury upon him. Although the grievous character of the injuries suggest an intention to kill, having regard to the offender's loss of control, I cannot make that finding to the criminal standard.
The crime scene evidence establishes that the attack upon Mr Bebita commenced in the bedroom, consistent with the offender's assertions about awaking in that room to Mr Bebita sexually assaulting him. It is likely that Mr Bebita struggled against the offender, sustaining the defensive wounds observed on later post-mortem examination, before fleeing from the bedroom, down the hall, and into the bathroom, where he died. It is most likely that the offender actively pursued him and inflicted further injuries there.
Whether all of the most grievous injuries were inflicted in the bedroom, or whether some were inflicted there and more in the course of Mr Bebita's flight, this was a sustained and extremely brutal attack against a smaller, older, unarmed man, and it led, tragically, to Mr Bebita's death.
Having killed Mr Bebita the offender made an inexpert attempt to burn the premises down. Despite that, and his expressed wish - to others and in writing - to leave the country, he very quickly, and with his father's support, made the decision to surrender himself to the police and tell police about what he had done. He also delivered to the police those items in his possession relevant to the events, including the weapon likely used, and directed them to the scene of the crime.
[3]
The Gravity of the Offence
The offence of manslaughter, reflecting the unlawful taking of a human life, carries a maximum penalty of 25 years imprisonment. The penalty is a substantial one, albeit much less than that which attaches to murder, because of the gravity inherent in the crime of which the offender has been found guilty. The life of Jesus Bebita was taken from him, and his violent death has caused great distress to his family and diminished the community more broadly, as every violent killing does. The offender used a knife and wielded it with at least moderate force, inflicting truly terrible injuries. The offender intended, at the very least, to cause very serious injury to Mr Bebita. Mr Bebita's ordeal must have been both terrifying and painful, and the brutality of the attack upon him and the grievous nature of the wounds inflicted are features that elevate the gravity of the crime.
However, against those features, and tending to ameliorate its gravity, is the high level of the provocation offered to the offender by the deceased, the offender's consequential and profound loss of any power of self-control, and the immediacy of his response to the provocation.
Not only was the provocation an attempt to commit a most serious offence of sexual violence, it was committed by a man the offender regarded as his friend and mentor, and who he seemed to looked up to, in circumstances where the offender had accepted an invitation to stay the night at his friend's home, a place where he was entitled to believe that he was safe, and to be safe. There is an obvious breach of trust involved. Whilst the Crown urged the Court to conclude that the place where the offence was committed - in Mr Bebita's home - was an aggravating feature, in the circumstances of this case it cannot operate in that way.
Further, the offender was woken from sleep by the commencement of the assault upon him and, at least initially, must have been in that hazy and vulnerable state between sleep and full consciousness in which immediate clarity of thought is unusual. For a young man of 20 years, this must have been an extraordinarily confusing and highly distressing event to face. As the jury's verdict made clear, an ordinary person could well have lost control in such circumstances.
Even allowing for the very grave and sexually violent nature of the provocation, this remains a most serious offence. I do not propose to express that conclusion by reference to a position on a notional range. There is no clear range for offences of manslaughter, and it is unhelpful in my opinion to use such language: Paterson v R [2021] NSWCCA 273.
None of what I have said about the provocation offered to the offender should be taken as implying that Mr Bebita deserved to be attacked, or that the offender was justified in what he did. If Mr Bebita was accused of committing a crime, he should have had the benefit of a determination of the question of his guilt by a court, as the offender did. However, rational thought and a profound loss of self-control do not occur simultaneously, with the latter precluding the former. Implicit in the jury's verdict was the conclusion that the offender was not capable of considering the options open to him to deal with the situation with which he was confronted.
[4]
The Consequences of the Crime
The consequences of the crime have been very great indeed. The Court received victim impact statements from Mr Bebita's sister Florida Bebita de Gracia, and his nephew, Rexter Bebita-Flores. Both statements have given the Court an insight into the man that Mr Bebita ordinarily was and the grief that his death has caused his family.
Mr Bebita grew up in impoverished circumstances in the Philippines, but worked hard to gain an education, gaining employment as a school teacher and rising to the position of School Principal. He gave up his profession to come to Australia, hoping to earn a better income with which to support his family in the Philippines. Having found employment here he used part of his income to do just that and, with his death, his family lost the main breadwinner. Their loss of course, is much greater than merely a financial one; Mr Bebita's death has left his family grief stricken and distressed. No doubt the proceedings of the criminal courts and the evidence concerning the events of that terrible night, and Mr Bebita's inability to answer it have added considerably to the family's pain. The Court is grateful to Ms Bebita de Gracia and Mr Bebita-Flores for their statements. I know the family must find this process a fresh insult to add to their pain. I express my sympathy to Mr Bebita's family for their loss.
[5]
The Subjective Case
The offender did not give evidence on sentence.
Almost exactly a year before his trial, and before the offender was committed to this Court to face that trial, he told the Crown that he would enter a plea of guilty to manslaughter on the basis of extreme provocation. That offer was not accepted by the Crown. The way in which the offered plea is to be treated is governed by s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW). In the circumstances that apply here the Court is required to afford the offender a discount of 25% on the sentence that would otherwise have been imposed to recognise his willingness to plead guilty to the offence of which he was found guilty.
His acknowledgment of having unlawfully killed Mr Bebita was maintained when the matter was called on for trial, with his case conducted by Mr Rosser of Queens Counsel for the offender in a most efficient manner. No issue was taken that the offender killed Mr Bebita, and the offender invited the jury to find him guilty of manslaughter. Because of the co-operative way in which the offender approached his trial, the need for what would otherwise have been a large number of witnesses to testify was obviated. The issues were confined. A trial with an original estimate of three to four weeks was conducted with just three or four days of evidence.
The offender's willingness to acknowledge his crime came, however, before any charge was laid against him. After some initial thoughts of flight, not to be wondered at in a young man with limited life experience and no experience and doubtless great fear of prison, the offender accepted the wise counsel of his father and handed himself in to police, confessing to a crime of which the police were then unaware.
He is entitled to have those features of his conduct and his co-operative interaction with the criminal justice system recognised in the sentence imposed upon him, which will be diminished thereby.
Although a plea of guilty offered or entered does not always say anything about remorse, I am satisfied that it says a great deal in the offender's case. From the moment he saw his father in the early hours of 18 December 2018 he has both acknowledged his crime and seemed highly distressed by having committed it. Whilst his distress is likely to have been, at least in part, due to his concern over his own desperate situation, I am satisfied that it also reflected his horror at what he had done to a man he called a friend. The plea of guilty he sought to enter to the offence of manslaughter can be regarded as a further expression of his remorse for his crime.
The offender expressed that remorse to Dr Furst when he was assessed by the doctor on 21 October 2021. I have referred already to the caution with which such hearsay expressions must be approached, but in this instance, there is no reason not to accept the offender's expressions of remorse to Dr Furst as anything other than genuine. They are consistent with his conduct over the last three or so years.
The offender comes before the Court as a young man with no history of criminal convictions and that, and his good character more broadly entitles him to a degree of leniency on sentence.
It is clear that the offender has, until the present offence, lived a worthy life. Despite the very difficult circumstances of his youngest years, including having been abandoned at the age of four by his mother at a railway station, the offender was described in evidence by Mr Price as a "good boy, a normal kid". He has not been a regular drug user, and nor does he drink to excess. His father has never known him to be violent. He has been a loving brother to his sister.
The offender continued in education until Year 11 and, on leaving school, worked, or actively sought work at all times. His ambition was to join the Army, a future that is now lost to him, and to that end and following the advice of Army recruitment officers the offender studied for and obtained a formal Year 10 qualification acceptable to the Army, and maintained employment, seeking always to better himself. He was to start in an apprenticeship in the week in which Mr Bebita died.
His family remain supportive of him and, on my observations of Mr Price as a witness before the Court, the offender could not have a better nor a more loving father. His sister too looks forward to him coming home and will be a further support to him.
I have already referred briefly to the offender's assessment by Dr Furst last month.
Dr Furst prepared a report dated 19 November 2021 regarding that consultation, which is Ex. S1.
The offender was 23 years of age at the time of the interview, conducted by video link, and presented as "cooperative, logical and lucid". Dr Furst further noted:
"…from a psychiatric and psychological perspective, Mr Cust presents as an intelligent, adaptable and resilient young man… having no previous history of identified violence or criminal charges".
Dr Furst obtained a personal and vocational history from the offender which is broadly consistent with the evidence given by Mr Price on those subjects. Where there is a difference - principally concerning the times at which some events happened in the offender's very early childhood, I have preferred the evidence of Mr Price.
The offender's mother and natural father parted when he was a baby and the only father he has ever known is Mr Price. His natural father committed suicide, something the offender came to know when he was aged 12 years. He has half-siblings to his natural parents, but no relationship with them.
Mr Price took on the offender's permanent care when his mother, who was a drug addict, abandoned him and his sister at Muswellbrook Railway station. The two children grew up together with Mr Price, a loving father who offered the offender a stable home. Indeed, Dr Furst attributes the secure parenting provided by Mr Price as the likely reason for the offender's attitude to his abandonment by his mother, which is a relatively untroubled one.
Dr Furst reported the offender performed "well above average" throughout primary school, although by Years Eight and Nine he was suspended on occasion from school. He finished Year 11 and applied to join the Army when he was 17 but was unsuccessful due to his limited work and life experience.
After finishing school, the offender worked in various jobs in Muswellbrook, Singleton and Scone. It was when employed at an abattoir in Scone that he met the deceased.
The offender reported drinking alcohol but not so that it was problematic. He used cannabis and other drugs occasionally. He has no significant medical problems and nothing that requires medication.
Regarding the offender's sexual orientation, the offender identifies as heterosexual. Dr Furst noted that sexual orientation has no real correlation with the offender's "ferocious" response to Mr Bebita's conduct. The doctor thought that the "excessive reaction" was likely driven by the shock of discovering himself being sexually assaulted, a conclusion with which the Court agrees. The doctor further opined that the sexual assault, coupled with the confrontation that ensued, were associated with the:
"immediate release of adrenaline in his brainstem to prepare his body and brain to fight off the man twice his age who was trying to rape him."
The doctor noted that the reactions of both men and women resulting from sexual assault "vary considerably". Dr Furst found that the offender was "probably in shock when he woke up finding his pants down with the victim's penis pressed against him."
Despite the extreme provocation, Dr Furst reported that the offender still feels badly about the fatal injuries inflicted upon the deceased. The doctor noted that the offender feels guilty about what happened that night, "regrets grabbing the knife and wishes he had done things differently".
Dr Furst found that the offender "does not meet criteria for the diagnosis of a specific mental illness or mental disorder" as there were "no specific indications of significant mood disturbance, anxiety or psychosis". Despite the offender's mother and natural father leaving him at a young age, Dr Furst noted that the offender "has done much better than most individuals who have suffered significant loss and abandonment in their early childhood". The doctor found:
"… the only identifiable psychiatric or psychological symptom or syndrome in Mr Cust has been low self-esteem, which he largely overcame in any case, having had four girlfriends, working consistently in his late teens and being accepted to commence a traineeship as a chef in Sydney just prior to the fateful events that lead to the [offending]".
Dr Furst described the offender's attitudes in custody as "positive" - having worked at a number of correctional facilities. That is consistent with the custody record which contains nothing to particularly trouble the Court. The doctor recommended that rehabilitation and treatment measures should focus on improving the offender's education and work skills to improve future career prospects, stating that stable employment would be the "best safeguard for Mr Cust against future misadventure."
Regarding the offender's rehabilitation prospects, Dr Furst noted that with his positive attitude and the support of his family, the offender "is likely to do well in life and has strong prospects of being successfully rehabilitated".
Dr Furst concluded:
"in all of the circumstances, including the absence of violent tendencies; the unique provocation involved in his offending; the absence of any prior history of criminal charges/ offending; his family support; his employment history; the absence of a substance use disorder; and having regard to his psychiatric and psychological profile, including the absence of a major mental illness or personality disorder, I would regard the likelihood of Mr Cust reoffending as being much lower than the average male homicide offender in NSW."
On all the evidence I am satisfied that there is every reason to be confident that the offender's future prospects are bright. Specific deterrence has a very limited role to play in the determination of sentence.
[6]
Special Circumstances
The offender asked the Court to consider making a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, to reflect his anticipated need for assistance and supervision in reintegrating into the community and re-joining the workforce, a process that could be de-railed unless the offender has considerable support. The Crown submits that no such finding should be made.
Although I accept that there is a basis upon which the Court could make a finding of special circumstances, I am confident that, with the support of his family, and of the Parole Service for such time as the statutory ratio allows, the offender will find his way back to a life of benefit to himself, his family, and the community. He is particularly fortunate to have his father to look to for both a role model and comprehensive support.
I am also conscious that the NPP must be an adequate reflection of the overall criminality.
[7]
Other Sentencing decisions
The partial defence of extreme provocation is relatively new, having been introduced upon the abolition of the former defence of provocation on 13 June 2014. The Court's researches have turned up only one case in which the defence has been advanced and (possibly) accepted since its introduction, that of R v Fuller [2020] NSWSC 1580. In that case the extreme provocation was the deceased's repeated threats to the offender and his family, following which the deceased was stabbed to death by the offender using large knives. Excessive self-defence was also relied upon, and the basis of the verdict was not clear. The offender in Fuller had had a dysfunctional upbringing, and had turned to alcohol and drug abuse. He had a limited criminal history and supportive family, with good prospects of rehabilitation. In Fuller a sentence of 9 years imprisonment, after a 20% discount for a plea, was imposed, with a non-parole period ("NPP) of 6 years and 3 months.
The provocation in that case was much less significant than here, and the subjective case was not as strong as the offender's.
I have also considered some other provocation cases, all of which pre-date the changes to the law. They include:
1. R v Butler [2012] NSWSC 1227 where a sentence of 7 years imprisonment with a NPP of 4 years and 6 months, discounted by 20%, was imposed upon a traumatised prostitute who bashed and stabbed a client to death after he spoke about having had sex with her and her sister as children;
2. Gounder v R [2012] NSWCCA 87;
3. R v Mitchell [2008] NSWSC 320, where a sentence of 8 years and 3 months imprisonment with a NPP of 4 years and 6 months, discounted by 17.5%, was imposed upon an offender who bashed a man with a hammer after having woken to find the deceased fellating him, thereafter setting the house alight and leaving the victim to die;
4. R v Green [1999] NSWCCA 97, where a sentence of 10 years and 6 months imprisonment with a NPP of 8 years was imposed upon an offender with a traumatic past who stabbed a man repeatedly after the deceased got into bed with him and tried to touch his genitals; and
5. R v Alexander (1994) 78 A Crim R 141.
Ultimately, the sentence to be imposed upon the offender must be determined by reference to the facts and circumstances that apply to it. There is no clearly identifiable range, and no "tariff", as it has been described in the authorities on more than one occasion: R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep); Williams v R [2013] NTCCA 12.
[8]
Determination
As has been observed in a number of the decisions to which I have referred, in a case where the offender is himself a victim who commits a crime against his victimiser, the sentencing task is complex and difficult. There are features of the crime which weigh in different directions. In Hill v R (1981) 3 A Crim R 397 Street CJ referred to the demands attending the assessment of sentence in such circumstances. His comments are apposite. The then Chief Justice said, at 402:
"The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life."
This was a savage killing, provoked by conduct that was itself an act of violence, and one which struck at the offender's personal and physical integrity. It is a great tragedy for the Bebita family, who have lost a much loved family member whom others relied upon. It is also a tragedy for the offender and his family, with a young man's life diverted from its promising path by a sexual assault and his own very violent response to it. Insofar as it can, the sentence to be imposed must comprehend the tragedy to all involved.
[9]
Sentence
The Court makes the following orders.
1. Jamie Cust is convicted of the manslaughter of Jesus Bebita on 18 December 2018 at Scone in this State.
2. He is sentenced to 6 years imprisonment for that offence, with a non-parole period of 4 years and 6 months. The sentence will date from 18 December 2018. The non-parole period will expire on 17 June 2023. The total term will expire on 17 December 2024.
[10]
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Decision last updated: 26 November 2021