R v Damien Charles Bugmy

Judgment 1HER HONOUR : Anita Rose Williams died on 14 June 2008 after she was stabbed in the back by Damien Bugmy, her defacto partner of some four months. He stands to be sentenced for the offence of manslaughter in respect of her death. 2Mr Bugmy was initially charged with murder. On 4 February 2011 he pleaded not guilty to that offence but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment on the basis that Ms Williams' death was the result of a dangerous and unlawful act committed by Mr Bugmy. The Court is asked to sentence him on that basis. 3The maximum penalty prescribed for the offence of manslaughter is imprisonment for twenty-five years. No standard non-parole period is prescribed for that offence under the Crimes (Sentencing Procedure) Act 1999. 4The timing of the plea must be considered in the context of Mr Bugmy's mental state upon and following his arrest. He was arrested on the day on which the offence was committed, 14 June 2008. Although he is Aboriginal, and was initially represented in court by the Aboriginal Legal Service, that service was unable to provide ongoing legal services to Mr Bugmy owing to a perceived conflict of interest arising from the fact that the deceased was also Aboriginal. There was, accordingly, a period described by the Crown as "marching on the spot". 5Shortly after Mr Bugmy's present solicitor commenced to act, she developed concerns, which transpired to be well-founded, as to Mr Bugmy's fitness to be tried. That issue was determined by Hidden J pursuant to s 11 of the Mental Health (Forensic Provisions) Act 1990. On 13 November 2008 his Honour found that Mr Bugmy was unfit to be tried for the offence of murder with which he was then charged. 6Almost a year later, in anticipation of Mr Bugmy's being found fit to be tried, his legal representatives asked the Crown to accept a plea of guilty to manslaughter on the basis of substantial impairment. The Crown did not accept that plea. 7On 17 December 2010, Kirby J found Mr Bugmy to be fit to be tried. Upon the pronouncement of that finding it was indicated on behalf of Mr Bugmy that he would plead guilty to manslaughter on the basis of a dangerous and unlawful act. The matter was then adjourned without any arraignment of the offender so as to enable the Director of Public Prosecutions to consider the proposed plea in accordance with prosecution guidelines. 8On 1 February 2011, the Crown indicated that a plea of guilty to manslaughter would be accepted on the basis identified. On 4 February 2011 that plea was entered and accepted in full satisfaction of the indictment. It was common ground at the proceedings on sentence that, until that point, the only real issue as to Mr Bugmy's criminal responsibility for the death of Ms Williams was his mental state, which raised issues both as to the extent of his criminal responsibility and as to his fitness to enter a plea. In those circumstances the Crown submitted that the Court would be entitled to regard the plea offered upon the pronouncement of the finding that Mr Bugmy was fit to be tried as having been entered at the first reasonable opportunity. I am satisfied that it is appropriate to proceed on that basis. I propose to reduce Mr Bugmy's sentence by twenty-five per cent to reflect the utilitarian value of the plea in accordance with the authorities that guide me on that issue. 9The circumstances of the offence are set out in a summary of evidence prepared by the Crown. It was indicated on behalf of Mr Bugmy that he agrees with the contents of that document. On the basis of that indication and other material tendered at the sentence proceedings, I am satisfied beyond reasonable doubt as to the following facts. 10On 18 February 2008, Mr Bugmy was released to parole in respect of a charge of malicious wounding involving a previous de facto partner. The conditions of his parole included a condition that he totally abstain from alcohol. There were further conditions that if so directed by his supervising Probation and Parole officer he must seek assistance in controlling his abuse of drugs and alcohol and that he undertake and maintain a program directed towards controlling his abuse of drugs and alcohol arranged by the supervising Probation and Parole officer. 11Shortly after his release, Mr Bugmy met the deceased, Anita Rose Williams. Mr Bugmy was later to report to a forensic psychiatrist, Professor Greenberg, that he met Ms Williams in Albury while drinking with friends. They moved in together, initially living in Albury. In late May 2008, they moved to the small township of Ivanhoe. Mr Bugmy told Professor Greenberg that the reason for their move was "to get away from drinking friends". 12From at least the time he moved to Ivanhoe, Mr Bugmy failed to adhere to the condition of his parole that he abstain from alcohol. Initially he and Ms Williams moved in with his aunt, Lorraine Bugmy. Over the following three weeks leading up to the commission of the present offence Mr Bugmy was drinking heavily, developing a pattern of leaving the house, returning inebriated, eating a meal and going to bed. Friends and family nonetheless observed him and Ms Williams to be happy together during that time. 13In the early hours of 4 June 2008, ten days before Ms Williams' death, Mr Bugmy came home well affected by alcohol and went to bed. Shortly afterwards, Ms Williams joined Lorraine Bugmy in her bed seeking protection from him. Lorraine Bugmy called the police. Ms Williams told Constable Bear that Mr Bugmy had grabbed her by the hair and dragged her across the floor before striking her head a number of times. She said that when she had fled to Lorraine Bugmy for assistance, Mr Bugmy had threatened to stab her. 14For reasons which will never be known, Ms Williams declined to make a formal statement to police as to those events. Constable Bear resorted to making an application in his own name seeking an interim apprehended violence order against Mr Bugmy for the protection of Ms Williams. The order was served on Mr Bugmy at about 11am the same day. I pause to observe, as revealed by those facts, that in the space of less than seven hours police attended a violent domestic scene, endeavoured but failed to persuade the victim to make a formal statement about the incident, obtained and served an interim apprehended violence order and explained its effect in person to Mr Bugmy. It is difficult to think of anything more they could have done in the circumstances. 15Following that incident, Mr Bugmy and Ms Williams left the home of Lorraine Bugmy and moved in with a different aunt of Mr Bugmy's, Ms Noelene Clarke. On 14 June 2008, they went to a friend's house where it appears they began drinking alcohol at some point before midday. They were joined by others and continued drinking beer with friends and listening to music throughout the day. 16At some point following a disagreement about the music Mr Bugmy stood up, collected a painting he had done and told Ms Williams they were leaving. As they were leaving one of the people present, Mr Mathers, said to Mr Bugmy, "Don't go home and hit your cook. She's done nothing wrong". Mr Bugmy said that he would not. Mr Mathers described Mr Bugmy as being very drunk at that point. 17At around 4pm Mr Bugmy and Ms Williams arrived at the house next door to Noelene Clarke's home. Ms Clarke was there visiting her mother and her sister. Mr Bugmy and Ms Williams sat down and had a chat. They stayed for about ten or fifteen minutes when Mr Bugmy said they were leaving and going home to have a sleep. 18About ten or fifteen minutes later Mr Bugmy came to the backdoor of that house and said to his aunt, "Come and check Nita Rose, there is something wrong with her". Ms Williams was found on the floor in the lounge room of Ms Clarke's house with a pool of blood under her back. Ms Clarke contacted ambulance and police officers. While she was on the phone she saw Mr Bugmy grab a steak knife and run outside where he began stabbing himself. She saw him cut himself on the arm, the throat and the stomach. Ms Clarke and her sister then locked themselves in the house. 19Ms Williams had sustained a single penetrating stab wound to the back, which caused a small but highly significant injury to the aorta leading to rapid blood loss into the left chest cavity. The injury was such as to cause immediate incapacity and death soon after. 20Mr Bugmy was arrested by Constable Bear that day. He was sedated and taken to hospital for the treatment of his own self-inflicted injuries. Upon his arrest he said to Constable Bear, "She is dead. I can't believe I killed her". The following day in hospital he openly acknowledged to a different police officer that he had killed Ms Williams and said, "Just take me to the police station and charge me". 21An aggravating factor in assessing the seriousness of the offence is the fact that Mr Bugmy has a record of previous convictions. That is particularly relevant where, as here, the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for such offences: see s 21A(2)(d) of the Crimes (Sentencing Procedure) Act . Mr Bugmy has an appalling record of offences of violence, particularly against women. Between the ages of fourteen and sixteen he was convicted of two offences of malicious wounding and separate offences of robbery, assaulting a police officer, assault occasioning actual bodily harm and common assault. From the age of seventeen, a pattern began to emerge of his drinking heavily and inflicting shocking injuries on his de facto partners. He has a series of convictions arising from assaults on an earlier partner, most recently including the offence of malicious wounding for which he was on parole at the time he committed the present offence. 22In those circumstances, as submitted on behalf of the Crown, it is appropriate to have regard to the principles stated by the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. As there stated, an offender's antecedent criminal history cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offence for which the offender is being sentenced. The record may nonetheless legitimately be taken into account "when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind" [14]. 23Separately, counsel for Mr Bugmy reminded me of the statements of the majority in Veen where a distinction is drawn between extending a sentence beyond what is appropriate to the crime under consideration merely to protect society, which is impermissible, and having proper regard to the protection of society as a factor relevant to the determination of the appropriate sentence for the offence under consideration, which is permissible. I will return to those considerations in the context of my discussion of Mr Bugmy's mental state. 24Separate aggravating factors conceded on behalf of Mr Bugmy to be relevant in the present case are the fact that he was on conditional liberty when the offence was committed and the fact that he had been served with the apprehended violence order on 4 June 2008. Persistent defiance of such orders is another troubling feature of Mr Bugmy's record of prior convictions. Those are significant factors in the present case. 25The Crown relied on several additional aggravating features of the case relevant to the sentencing task. The first was the fact that Mr Bugmy was aware of the apparent causal connection between his consumption of alcohol and his violence. The Crown submitted that Mr Bugmy's voluntary intoxication at the time of the offence aggravates his criminality, citing R v Coleman (1990) 47 A Crim R 307 at 327.6 per Hunt J. In my view it is necessary to assess that contention in the context of Mr Bugmy's mental state, to which I will return. 26Separately, the Crown noted that moments before the offence was committed Mr Bugmy had been warned by Mr Mathers not to be violent towards Ms Williams and that Mr Bugmy had evidently accepted the correctness of that admonition. It is difficult to know how that evidence should be taken into account. Rather than aggravating the seriousness of the offence as being one committed in defiance of a sensible warning, it might be equally be understood as revealing the measure of Mr Bugmy's impaired cognitive functioning. I am not persuaded that I should rely on that evidence as an aggravating feature of the offence. 27The two final matters relied upon by the Crown as aggravating features are the fact that the offence involved the use of a weapon and the fact that the offence was committed in the home of the victim. As to the latter, the Crown acknowledged that in accordance with s 21A(5) of the Crimes (Sentencing Procedure) Act the presence of that factor does not require the Court to increase the sentence in the present case; see also R v Thawer [2009] NSWCCA 158, where it was acknowledged that in the case of two people residing in the same premises, the fact that violence between them occurred in the place where they usually interact with one another is not a matter of particular aggravation. 28As to the fact that Mr Bugmy used a knife, it was submitted on his behalf that this is a matter of little aggravation because manslaughter offences are often committed with the use of a weapon of some sort. Plainly, there may be cases in which the use of a weapon would significantly aggravate an offence of manslaughter but I accept that in the particular circumstances of this case, evidently involving a single stab wound from behind which quickly resulted in death, the use of a weapon is not a substantially aggravating feature of the case. However, in my view, it does take the case into a more serious category of cases of involuntary manslaughter than, for example, cases where death is caused by a single punch. 29As to mitigating factors, in addition to the plea, Mr Bugmy's counsel invited the court to take into account the degree of pre-trial disclosure by the defence, in accordance with s 21A(3)(l) of the Act. As already noted, Mr Bugmy's remarks to police at the time of the offence and the conduct of his defence made clear that the only real issue as to his criminal responsibility for the death of Ms Williams was his mental state. Whilst those considerations may not strictly amount to pre-trial disclosure within the meaning of s 21A(3)(l), they do indicate some willingness on his part to facilitate the administration of justice and that is a relevant factor. 30The Crown acknowledged that the offence was not part of a planned or organised criminal activity, which plainly it was not. The offence appears to have been committed quite spontaneously, even to the extent that Mr Bugmy himself appears on the evidence before me to have been surprised and horrified by what he had done within minutes after committing the offence. 31The only other mitigating factor urged upon me is the remorse shown by Mr Bugmy. Although Mr Bugmy did not give evidence at the proceedings on sentence, I was urged by both the Crown and counsel for the offender to accept that the offender's remarks to police at the scene of the offence and at the hospital the following day reveal that he has accepted responsibility for the offences, albeit with limited insight. I accept that ordinary expectations as to the way in which a person might express remorse must be tempered in the present case having regard to Mr Bugmy's limited cognitive function, to which I now turn. 32As a result of the concerns in respect of Mr Bugmy's fitness to plead, there have been a number of expert assessments of his mental state. I am grateful to the Crown and Ms Manuell, who appeared for Mr Bugmy, for their cooperation in presenting an agreed collection of such of those reports as are relevant to the present task. In early February 2009 Mr Bugmy was assessed by a clinical neuropsychologist, Dr Wayne Reid. Dr Reid conducted intelligence testing which showed Mr Bugmy to be in the bottom one per cent of the population in terms of his cognitive functioning. He reported his assessment of Mr Bugmy in the following terms: Mr Bugmy is a twenty-seven year old man with a long history of psychosocial deprivation, alcohol and cannabis dependence and a four year history of petrol sniffing. He also has a history of depression, self-harm and hearing voices that based on Dr Furst's diagnosis are most likely due to alcohol hallucinosis. The neuropsychological assessment revealed that Mr Bugmy is of extremely low intellectual ability with very limited new learning ability, difficulties with high level problem solving, planning and organisation skills and reasoning abilities. Overall, it seems most likely that his limited intellectual abilities are longstanding and possibly due to the history of psychosocial deprivation, poor nutrition, longstanding abuse of alcohol and one cannot rule out multiple minor head injuries during states of intoxication. 33The results of a brain MRI scan carried out on Mr Bugmy some two months later, which revealed no abnormality, confirmed Dr Reid's opinion that the most likely cause of Mr Bugmy's limited intellectual abilities were early psychosocial deprivation, poor nutrition and the effects of long term alcohol abuse. 34In May 2009 Mr Bugmy was assessed by a clinical psychologist, Professor Susan Hayes. She recorded a family history which Mr Bugmy described as "good", but which entailed a lot of use of drugs and alcohol as well as violence in the family. Mr Bugmy started drinking and using marijuana at about the age of thirteen. He also sniffed petrol between the ages of thirteen and seventeen. He fell into crime during that period in order to get money to buy those substances and committed further crimes under their influence. 35Professor Hayes administered intelligence tests on Mr Bugmy which obtained results even lower than those obtained by Dr Reid. Her results placed Mr Bugmy in the category of moderate intellectual disability at a level lower than 99.9 per cent of the population. Her neuropsychological testing also placed him in the lower extreme of the population. 36Professor Hayes also recorded a history of psychiatric symptoms. She said that Mr Bugmy thought the symptoms of psychosis started in about 1999 to 2000 and became worse as time went by, prompting his greater use of drugs and alcohol. Mr Bugmy told her that he was happiest just prior to the death of his partner when they "used to laugh a lot together and mess around a lot". Professor Hayes' report was primarily directed, however, to the issue of Mr Bugmy's fitness to be tried. She did not express any conclusion in respect of the psychotic symptoms. 37On 17 July 2009 Mr Bugmy was assessed by a forensic psychiatrist, Professor David Greenberg. Professor Greenberg reported a similar history of psychotic symptoms as had been reported to Professor Hayes. Mr Bugmy told him that he began to hear voices in 1999. He said he heard two voices, one which told him to "do this and that" and to "try something", and another voice which told him not to worry or listen to the first voice. Mr Bugmy told Professor Greenberg that antipsychotic medication prescribed to him by a psychiatrist in prison had provided only minimal assistance but had eased his mind and helped him sleep. 38Based on the previous testing of Mr Bugmy by Professor Hayes and Dr Reid, Professor Greenberg concluded that Mr Bugmy has a mild mental retardation. Separately he expressed the opinion that Mr Bugmy has behavioural problems and a history of encounters with the criminal justice system which would sustain a diagnosis of an antisocial personality disorder. The characteristics of that condition include a pervasive pattern of disregard for violation of the rights of others, a history of impulsivity, irritability and aggressiveness. 39On the basis of Mr Bugmy's history of alcohol use, Professor Greenberg included a diagnosis of alcohol dependence disorder. He recorded that Mr Bugmy could drink forty-eight beers in a day or a flagon of wine. Professor Greenberg also noted a history of substance abuse including sniffing solvents, smoking cannabis and more recently the use of amphetamines. On that basis Professor Greenberg concluded that Mr Bugmy would also qualify for the diagnosis of a poly-substance abuse disorder. As to the symptoms of psychosis, however, Professor Greenberg was sceptical. 40Professor Greenberg expressed the opinion that the most likely explanation for Mr Bugmy's conduct at the time of and during the period surrounding the offence is that he was angry, intoxicated and had a previous disposition to violent behaviour which was aggravated by his state of intoxication. He noted that whether or not there was any psychopathology such as "voices", there is no evidence of any causal connection between the voices and Mr Bugmy's act of stabbing Ms Williams. He noted nonetheless that Mr Bugmy's chaotic background and intellectual limitations might properly be regarded as significant mitigating factors in the offence. 41The principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problem are helpfully summarised in the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194 as follows (citations omitted): Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term of the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public. 42The application of those principles should also be considered in the context of the circumstances that produced the man Mr Bugmy has become. The evidence establishes that Mr Bugmy has had a life of great deprivation of the kind often seen in rural indigenous communities. His background is conveniently summarised in Ms Manuell's written submissions in the following terms: The offender is an indigenous man whose family home was firstly in Wilcannia and then Broken Hill. He is the second of his mother's five surviving children, two of his half siblings having died either at birth or in childhood. He is the only child of his mother's relationship with his biological father. He has little knowledge of his father and no contact with him. He was brought up by his mother and stepfather. His stepfather died shortly before the offender committed this offence and his mother is in very poor health. The offender was exposed to the heavy consumption of alcohol and intergenerational domestic violence in his home with the consequent involvement of various government agencies. He was charged with his first offence at the age of twelve years. Since the age of thirteen he has spent much of his life in custody more so as an adult. He commenced his use of substances at about the age of thirteen using alcohol firstly and then also inhaling petrol, glue and fly spray over a period of about three years. He was in a special class at school, but left at the end of year eight having a long record of non-attendance. He is functionally illiterate and innumerate, having only the most basic of these skills. He has never been employed except on community work orders and then only briefly. He is the father of four children, two from one relationship and two from another. He has very little contact with those children. The children from his first relationship are in the care of the Department of Community Services. He has not received any family visits since being in custody on this occasion. At the time of his arrest all four of his siblings were in custody and his mother's health is such that she cannot travel from Broken Hill". 43Ms Manuell submitted that in those circumstances the principles stated in R v Fernando [2002] NSWCCA 28 are relevant to the sentencing of Mr Bugmy. When close regard is had to the content of the eight propositions articulated by Wood CJ at CL in that case, that is an unexceptionable proposition. 44The Crown invited the Court to bear in mind that it is not every case of deprivation or disadvantage suffered by an offender of Aboriginal race or ancestry that calls for the so-called special approach adopted in Fernando , citing the decision of R v Newman [2004] NSW CCA 102 per Howie J. He also relied upon the decision of Hislop J in R v Ah-See [2004] NSWCCA 202 , where his Honour expressed the view that the mitigating effect of being an Aboriginal person loses much of its force where the offender has committed similar offences in the past. 45For my part, I do not read the judgment of Wood CJ at CL in Fernando as asserting the existence of a principle that being an Aboriginal person should in itself be taken into account as having a mitigating effect. As his Honour explained in a series of later cases, the propositions stated in Fernando were not intended to mitigate the punishment of persons of Aboriginal descent but rather to highlight the circumstances that may explain or throw light upon the particular offence, particularly in the context of offences arising from the abuse of alcohol. 46Consideration of such of an offender's circumstances as throw light upon the offence is an essential feature of every sentencing decision. The decision in Fernando serves to emphasise that those considerations must not be ignored in the complex context of entrenched violence within deprived Aboriginal communities. 47The principles summarised in De La Rosa and a consideration of the propositions articulated in Fernando give rise to competing considerations in the present case. I do not have any doubt that Mr Bugmy's mental health contributed to the offence in a material way. As submitted on his behalf, he is an alcoholic who was rarely, if ever, sober in the days leading up to the offence. I share Professor Greenberg's scepticism as to whether Mr Bugmy was suffering from substance-induced psychotic episodes at the time of the offence. However, I accept, having regard to his alcoholism and his significant intellectual disability, that his moral culpability for the offence should be regarded as being reduced on that account. 48As already noted, the Crown submitted that Mr Bugmy's voluntary intoxication at the time of the offence aggravates his criminality. A consideration of Mr Bugmy's background militates against that proposition. The evidence discloses that he is genetically and constitutionally disposed to alcoholism. His dependence on alcohol may readily be seen, in my view, as the unhappy product of his exposure to alcohol and violence from a young age and his interrupted education, which have left him with few resources and a limited ability to resist his addiction. I am not satisfied that his persistent abuse of alcohol, or indeed much that Mr Bugmy does, entails a high degree of deliberation. 49Turning to the other principles summarised in De La Rosa , it was conceded that there is no evidence that a term of imprisonment will weigh more heavily upon Mr Bugmy by reason of his mental health. 50It was submitted on Mr Bugmy's behalf that for reasons relating to his mental health he is not a suitable vehicle for general deterrence and there is some force in that submission. I accept that his intellectual disability might also minimise the extent to which an extended term of imprisonment will operate upon him as specific deterrence. 51Conversely, there are aspects of the offence that require clear denunciation. As noted by the Crown, despite Mr Bugmy's impaired cognitive function and the presence of the disorders diagnosed by Professor Greenberg, there is ample evidence that Mr Bugmy was aware that when he drinks, he gets violent and assaults people. Further, the evidence reveals in Mr Bugmy an alarming pattern of aggression and hostility towards women. His disregard for women is amply demonstrated in a string of prior convictions for assaults upon his previous de facto partner and his earlier assault upon the deceased. 52The evidence before me reveals that in the hours leading up to the offence Mr Bugmy called the deceased a "slut" and that he told her to "move her fucking arse" and to get her "stinking cunt up and get home". These are not words of respect. 53Perhaps the most revealing evidence of the vulnerability of women in such communities is the exchange between Mr Bugmy and Mr Mathers to which I have already referred in which Mr Mathers said, "Don't go home and hit your cook. She's done nothing wrong". Women are not to be regarded in any community as sluts or cooks whose safety is predicated upon their having "done nothing wrong". The killing of Ms Williams was a tragic mark of a wholesale systemic failure to protect Aboriginal women against the violence entrenched in some of their communities. Taken in the context of Mr Bugmy's record of prior convictions, that is a circumstance which highlights the need to give careful consideration to the protection of the community in this case. 54Ms Manuell acknowledged the importance of that consideration but invited the Court to consider the principles in Fernando when determining how to address it. In particular, she submitted that those principles invite attention to the structure of the sentence to be imposed. In that context it was submitted that the combination of Mr Bugmy's intellectual disability, his mental health issues and his history of substance abuse, together with his history of prior offending, indicate that he will require intensive, closely monitored supervision, counselling and support upon his release and that these social supports will need to be carefully constructed and made available to the offender over a period of years. Those circumstances, she submitted, should be found to warrant a variation of the prescribed statutory ratio between the non-parole period and the balance of term contained in s 44 of the Crimes (Sentencing Procedure) Act . 55The Crown submitted that the statutory ratio would provide adequate supervision to enable Mr Bugmy to adjust to life in community upon his release. He further submitted that having regard to the events that led to the commission of the present offence the Court could have no confidence that any extended period of post-release supervision and guidance would be accepted. That submission must be assessed in the context of the level of supervision that was offered to Mr Bugmy upon his release to parole in 2008. 56As already noted, there were conditions directed to addressing his addiction to alcohol. However, it does not appear that Mr Bugmy was in fact directed to undertake any drug rehabilitation programs or to seek other assistance of the kind evidently contemplated upon his release. I acknowledge that there was no direct evidence on this issue, but I note that there is no suggestion in the breach of parole report that he was in breach of any such condition. The report simply states, "Prior to this event Mr Bugmy had responded well to supervision initially at Albury and more recently at Ivanhoe". 57At the proceedings on sentence, I was informed that the town of Ivanhoe does not have its own Probation and Parole officer and that Mr Bugmy's supervision was intended to be effected by a fortnightly or monthly visit by an officer from Griffith district office. It appears that the present offence intervened before any such visit took place. In those circumstances I am not satisfied that there is demonstrated an inability on Mr Bugmy's part to respond to and accept the kind of intensive supervision identified by his counsel as being appropriate in the present case. Rather, the position appears to be that the resources available in the rural communities in which he lived did not extend to the provision of services of the kind evidently contemplated in the conditions of his parole. 58I am satisfied that the matters relied upon by Ms Manuell amount to special circumstances such as to warrant some adjustment to the statutory ratio. However, the measure of the adjustment must have regard to the complex consideration of protection of the community that arises in this case. Ordinarily, I would doubt the benefit of a period of supervision longer than that arrived at by the application of the statutory formula to a sentence of the length I propose. However, Ms Manuell's submissions have persuaded me against that view in the present case. 59The objects of sentencing include protection of the community and rehabilitation of the offender. I am sure I am not the first to observe that this is not a binary classification. At some point Mr Bugmy will have to be released back into the community. The protection of the people in that community, and particularly the women, will not be met by a bare prohibition on his consumption of alcohol. I am satisfied that the objects of sentencing will best be served if Mr Bugmy's release is supported and monitored with intense and extended professional assistance. Accordingly, it is appropriate to fix a sentence that includes an extended period of supervision. 60Ms Manuell submitted that I should make recommendations as to the level of supervision to be imposed. I would not ordinarily presume to intrude upon the performance of duties by others. However, in the particular circumstances of the present case, I would respectfully endorse the submissions put on behalf of Mr Bugmy that he will require intensive, closely monitored supervision, counselling and support upon his release and that these social supports will need to be carefully constructed and made available to him over a lengthy period. 61In all the circumstances I have summarised, I accept the submission put on behalf of the Crown that the offence must be regarded as being in the upper range of seriousness for offences of its kind. I have concluded that the appropriate total sentence before taking into account the plea of guilty is a term of imprisonment for eleven years, to which there will be applied the discount of twenty-five per cent to reflect the utilitarian value of the plea. 62For the reasons I have explained, I find that there are special circumstances such as to warrant adjusting the statutory ratio of the balance of term to the non-parole period. The sentence I propose to pass is a total term of imprisonment of eight years and three months with a non-parole period of five years and six months. 63Mr Bugmy has been in custody since the date of his arrest on 14 June 2008. In those circumstances it is necessary to have regard to the mandatory requirements of s 47 of the Crimes (Sentencing Procedure) Act . I take into account the fact that, between 15 June 2008 and 18 August 2009, Mr Bugmy was serving the balance of his parole in respect of his earlier offence. The Crown referred to the decision in Callaghan v R [2006] NSWCCA 58 and submitted that the balance of parole that Mr Bugmy has served is punishment for the original offence occasioned by Mr Bugmy's failure to complete that sentence in the community by his own choice. That submission must be considered in the context of the issues to which I have referred. 64In my view, the description of Mr Bugmy's conduct whilst on parole as the product of choice fails adequately to capture the complexity of the range of disabilities that informed his cognitive function during that period. Separately, as noted on Mr Bugmy's behalf, considerations of totality must be brought to bear. I have had regard, in that context, not only to the period served by way of balance of parole but the total amount of time that has been spent in prison by Mr Bugmy since the imposition of the earlier sentence for the offence of malicious wounding. 65I have decided in the circumstances to direct that the sentence be taken to have commenced on the date of arrest. I appreciate that not everyone would take that approach. I have endeavoured to fix a sentence that clearly denunciates Mr Bugmy's conduct and ensures that he is adequately punished whilst also endeavouring to meet the objects of protection and rehabilitation by giving him the anticipation of a potential release date that is not so far in the future as to crush his spirit altogether, which is not the object of sentencing and which would be inimical to the interests of the whole of the community. 66Damien Bugmy, please stand. I convict you of the manslaughter of Anita Rose Williams. I sentence you to a term of imprisonment with a non-parole period of five years and six months commencing on 14 June 2008 and expiring on 13 December 2013 and a balance of term of two years and nine months expiring on 13 September 2016. The first date on which you will be eligible for release to parole will be 13 December 2013.