R v Davies

Catchwords

[2006] NSWCCA 21 BM v R [2019] NSWCCA 223 Bugmy v the Queen (2013) 249 CLR 571[2013] HCA 37 Casey v R [2015] NSWCCA 142 Cheung v The Queen (2001) 209 CLR 1[1987] HCA 46 Katsis v R [2018] NSWCCA 9 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 McDowall v R [2019] NSWCCA 29 Muldrock v The Queen (2011) 244 CLR 120[2004] NSWCCA 184 R v Imbornone [2017] NSWCCA 144 R v Irwin [2019] NSWCCA 133 R v Isaacs (1997) 41 NSWLR 374(1997) 90 A Crim R 587 R v Loveridge (2014) 243 A Crim R 31[2014] NSWCCA 120 R v McNeil (No 4) [2015] NSWSC 1198 R v MD, BM, NA, JT (2005) 156 A Crim R 372[2005] NSWCCA 342 R v Olbrich (1999) 199 CLR 270[1999] HCA 54 R v Qutami [2001] NSWCCA 353[2009] NSWCCA 115 Veen v The Queen (No 2) (1988) 164 CLR 465

REMARKS ON SENTENCE

HIS HONOUR: By an indictment dated 21 November 2022, Anthony John Davies ("the offender") was charged that, on the 6th day of May 2020 at Parkes in the State of New South Wales he: 1. did murder Kenneth Campbell ("Mr Campbell"), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW); and, in the alternative, 2. did unlawfully kill Mr Campbell contrary to s 18(1)(b) of the Crimes Act; and, in the alternative, 3. being a person of or above the age of 18 years, while intoxicated, assaulted another person, namely Mr Campbell, by intentionally hitting Mr Campbell with his hands thereby causing the death of Mr Campbell, contrary to s 25A(2) of the Crimes Act.
On 14 January 2022, the offender offered a plea of guilty to counts 2 or 3 during Case Conference. This plea offer was rejected by the Director and the matter was committed for trial on the 3 counts (counts 2 and 3 being alternative counts) on 8 April 2022.
On 3 June 2022, the offender was arraigned before Justice R Hulme, confirmed pleas of not guilty to the 3 counts, and a trial was listed in this Court at Orange on 11 April 2023.
On 11 April 2023, the offender was arraigned before the Court as presently constituted. He confirmed pleas of not guilty to the 3 counts, and a jury of 12 was empanelled.
On 12 April 2023, an issue with the offender's fitness was raised in good faith, and on 13 April 2023 the trial was vacated. On 5 May 2023, a fitness hearing was listed for 11 August 2023. Both parties retained expert psychiatrists who agreed that the offender was fit to stand trial. On 11 August 2023, the Court confirmed that, in accordance with the expert opinions, the offender was fit to stand trial and a trial was listed in this Court at Bathurst to commence on 2 April 2024.
On 2 April 2024, the offender was again arraigned before the Court. He confirmed pleas of not guilty to the 3 counts and a jury of 12 was empanelled on 3 April 2024. On 22 April 2024, the jury returned a verdict of not guilty to count 1 of murder and guilty to count 2 of manslaughter ("the offence"). As a result of the guilty verdict to the offence, no verdict was taken on count 3.
The offender also faced sentence for two offences contained on a s 166 Certificate: 1. Intimidation with intent to cause fear of physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the intimidation offence"); and 2. Intentionally destroy/damage property, contrary to s 195(1)(a) of the Crimes Act ("the destroy property offence").
Upon confirmation of a guilty verdict for the offence, the offender confirmed pleas of guilty to these two related offences. The maximum penalty for the intimidation offence is 5 years and/or a fine of $5500. The maximum penalty for the destroy property offence is 5 years imprisonment.
The offender was 31 years of age at the time of the offences. He was arrested on the evening of 6 May 2020 and conveyed to Parkes Police Station. He was offered an opportunity to participate in an electronically recorded interview ("ERISP"), which he accepted.
In the ERISP, the offender stated he could not remember anything that had happened on the morning of 6 May 2020 and stated that his last memory was walking up the street looking for SM (a pseudonym for the child of his partner) and then waking up the next morning at Gunningbland. The offender stated that he had blacked out because he had been drinking home-brew rum and had about a litre (other evidence in the trial suggested the consumption of alcohol may have been greater). The offender denied ever going to Mr Campbell's house.
In arriving at the offender's sentence, the purpose of sentencing, specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), must be borne in mind. What next follows in this judgment is directed primarily to the manslaughter offence. I will return to the related offences later in this judgment.
The maximum penalty for the offence of manslaughter is imprisonment for 25 years: s 24 of the Crimes Act. There is no prescribed standard non-parole period for this offence.
The maximum penalty for an offence is reserved for the gravest type of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451- 452; see also: R v Dodd (1991) 57 A Crim R 349 at 354, adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 556.
That does not mean that a lesser penalty must be imposed if it be possible to envisage a more serious case; ingenuity can always conjure up a case of greater iniquity. A case which imposes the maximum penalty offends this principle only if the case is recognisably outside the gravest category: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen") at 478; see also Hawkins v R (1993) 67 A Crim R 64 at 67.
The Crown properly did not contend that this matter constitutes a case in which the maximum penalty for manslaughter is appropriate and I will proceed upon that basis. I note, however, that the Crown did submit that the offence of manslaughter in this case falls within the high range of objective seriousness.
I turn specifically then to principles applicable to the offence of manslaughter.
It is important to recall that there is no hierarchy of manslaughter verdicts and the seriousness of the offending is determined by reference to the facts of the killing and not the class of manslaughter: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [49] (Howie J (with whom McClellan CJ at CL and Simpson J agreed)); R v Isaacs (1997) 41 NSWLR 374 (1997); 90 A Crim R 587 ("Isaacs") at (381) (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). Objective gravity is not determined by the variety of legal bases of manslaughter but by the factual circumstances of the offending: Goundar v R [2012] NSWCCA 87 ("Goundar"); and R v MD, BM, NA, JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 ("R v MD") at [62].
In R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ (with whom Grove and Ireland JJ agreed), 12 December 1994, unrep) said: It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
However, Gleeson CJ also stated: At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)
In the decision of R v MD, the Court of Criminal Appeal said (at [61] and [65]): 61 … The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510. There must be a reasonable proportionality between a sentence and the circumstances of the crime. The gravity of the offence must be viewed objectively. The maximum sentence fixed defines the limits of sentence for the most serious class of case: Dodd at 354, adopting the approach of Jordan CJ in Geddes at 556. … 65. In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.
Fundamentally, a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock") at [60] citing Veen at 472; Baumer v The Queen (1988) 166 CLR 51 at 57-58.
In R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, a Crown appeal, Spigelman CJ (with whom Hulme & Adams JJ agreed) said: [44] … When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.
In R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 (Bathurst CJ, Johnson and Hulme J), it was stated (at [229]): [229] When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
In R v Winefield [2011] NSWSC 337, the importance of context in manslaughter was underlined by Fullerton J. Her Honour said at [30]: [30] … As I have been at pains to make clear, I reject the offender's evidence that he acted in self-defence which, as Adams J said in R v Hamilton; R v Sandilands [2007] NSWSC 452 at [32], can operate in an appropriate case to place manslaughter by an unlawful and dangerous act in the lower range of objective seriousness.
Attention may then be diverted to more general principles of sentencing.
The offender's moral culpability for his offence must also be taken into account.
In sentencing, the Court must also consider the aggravating and mitigating factors, specified in s 21A of the Sentencing Act, revealed by the evidence. Under subs 21A(1)(c), any other objective or subjective factors revealed by the evidence that affects the relative seriousness of the offender's offence, must also be taken into account.
Questions of general and specific deterrence may also be considered in an appropriate case.
Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court referred to in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires that all of the factors relevant in the offender's case to be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offending made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crimes he committed: R v Scott [2005] NSWCCA 152 at [15].
The sentencing judge is required to find the facts material to the sentence which emerged during the trial or in the course of the sentencing proceedings: see Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 ("Cheung") at [12]-[17]. In sentencing, it is for the Court to find the facts which are material to the exercise of the judicial discretion in sentencing (Isaacs at (378)) having regard to the provisions of s 21A of the Sentencing Act. The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending (Muldrock at [27]).
By way of general observation extending from those principles, it should be stated that all manslaughters are examples of a very serious offence. Nonetheless, whilst it may be difficult for Mr Campbell's surviving family members to accept that this manslaughter should be categorised in seriousness relative to other manslaughters on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.
The fact-finding role following a jury verdict is that described in Isaacs (see as mentioned earlier Cheung at [12]-[17]). The sentencing judge is required to find the facts relevant to sentencing. Some will emerge from the evidence at the trial, while others may emerge only in the course of the sentence hearing.
I will commence my discussion of objective factors consistently with the constraint on the exercise of the aforementioned decision-making role discussed in Isaacs at (378): 3. The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. In the present case, for example, a trial judge might have considered that the facts supported a verdict of murder, not manslaughter; nevertheless, the judge would be obliged to sentence on the basis that the case was one of manslaughter. The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.
In my view the following findings of fact must be made as a consequence of the jury verdict: 1. The jury was satisfied the act or acts of the offender was or were a deliberate act or acts on the part of the offender. 2. The jury was satisfied the act or acts of the offender caused the injuries to Mr Campbell as a result of which Mr Campbell died. 3. The jury was satisfied the act or acts of the offender was or were unlawful in that they involved force being applied to Mr Campbell. 4. The jury was satisfied the act or acts of the offender was or were dangerous in that a reasonable person in the position of the offender would have realised that striking Mr Campbell was exposing Mr Campbell to a significant risk of serious injury. 5. The jury was satisfied that the offender was either too intoxicated to form, or did not have, the requisite intent for murder, to kill or cause grievous bodily harm.
In addition, the Court makes the following findings of objective facts based upon the evidence at the trial.
I first turn to the events immediately preceding the offending.
Mr Campbell resided at 18 Best Street, Parkes NSW 2870 ("Mr Campbell's premises").
The offender resided with his father at 3025 Bogan Gate Road, Gunningbland.
The offender was in a relationship with Melissa Corbett ("Melissa"). No disrespect is intended by referring to the first name of various persons. This section is made for convenience of identification.
Melissa lived at 19 Best Street, Parkes NSW 2870 with her mother, Nerida, and daughters, SM and MM.
The offender often stayed at 19 Best Street, which is due west of, and on the opposite side of, the street from Mr Campbell's premises.
Mr Campbell was known within the Parkes local community as Chester, which was a shortened version of "Chester the Molester", as it was believed by many in the Parkes local community that Mr Campbell was a paedophile.
However, there was no legitimate basis whatsoever for that rumour. Mr Campbell was 74 years of age when he died. Rather than constituting any threat to the community, he was a person who lived alone and was socially isolated. His behavioural traits were a product of him having suffered a significant brain injury from a number of accidents which severely affected his daily interactions.
The offender believed the rumours about Mr Campbell being a paedophile, reportedly referring to Mr Campbell as "Chester the molester" and considered him to be a "creepy old cunt".
On the evening of 5 May 2020, the offender was drinking 'home brew rum' by a fire set up in the backyard of 19 Best Street.
At some point during the evening, the offender sent DA a video message that DA perceived as suggestive of the offender drinking and that he "wasn't doing very well".
When DA arrived a short time later, the offender was sitting on his own in the backyard by a fire and drinking rum.
The offender and DA engaged in general conversation, during which time DA noticed the offender's voice 'was slurry'. The offender and DA discussed the offender's recent purchase of a Ute and the offender seemed happy. However, the offender later became agitated about SM and an argument that occurred with respect to SM's biological father.
Sometime after DA arrived, approximately 20-30 minutes, SM approached the area where the fire was located and became involved in an argument with the offender, ultimately saying, "I'd let you hit Chester, but I wouldn't let you hit my dad".
After arguing with the offender, SM threw her phone on the ground and left 19 Best Street. Shortly after SM left 19 Best Street, Melissa started looking around the yard for SM's phone and the local area for SM herself.
Melissa sent WS (a pseudonym for a child) a text message and indicated she would walk around to his house to speak with him. Melissa walked to Rex Aubrey Place, spoke with WS in the street and was told by WS that he had not seen her daughter.
Melissa returned to 19 Best Street. The offender and DA started walking towards 7 Rex Aubrey Place. As the offender was walking with DA past 17 Best Street, the security light at 17 Best Street illuminated and the offender yelled words to the effect of "I'll fucking kill you all, you bastards with your fucking security cameras. Turn those fucking things off".
As the offender walked east along Best Street with DA, the offender started to walk towards Mr Campbell's premises, but DA pushed him away from the direction of Mr Campbell's premises and told the offender to go home.
Lee Davis ("Lee"), a neighbour that lived nearby, saw and heard the offender as he walked past her house with DA and walked up to 19 Best Street to check on Melissa.
Shortly thereafter, DA walked back to his home on Blaxland Street.
The offender continued walking easterly along Best street and turned left into Rex Aubrey Place, spoke with a friend of SM, namely WS, in the middle of Rex Aubrey Place and at approximately 02:05am on 6 May 2020, banged on the door of 8 Rex Aubrey Place. One of the residents that lived at 8 Rex Aubrey Place, "Benjamin", answered the door, and the offender asked him, in an aggressive manner, if SM was inside or out the back. Benjamin's daughter "PC" told the offender SM was not there, but went out the back to look anyway, and came back and told the offender SM was not there. The offender indicated that he trusted PC and departed 8 Rex Aubrey Place.
As the offender walked back down Rex Aubrey Place towards Best Street, the offender continued yelling and turned right onto best street. The offender was heard yelling various phrases, including, "where are you [SM]?", "a 14-year-old girl should have been home with her dad, not with you," and "I'm going to kill everyone in the street".
The offender walked towards Mr Campbell's home and was heard mumbling to himself.
An unknown individual was seen following behind the offender. As the offender walked towards Mr Campbell's home, the offender was heard to say, "Is she in there?". Another neighbour Ray James ("Ray") had the following verbal exchange with the offender: Ray: What's going on? Offender: [SM]'s missing. Ray: How old is she? Offender: 13. Ray: My son is six and he knows not to go into that house. A 13-year-old is not going to go into that house. Offender: I don't give a fuck, I'm going to find out.
Ray yelled to the unknown individual walking behind the offender, "he's going to get himself locked up", to which that unknown individual replied, "yeah, I know".
The offender walked into Mr Campbell's front yard through the gate.
As the offender walked into the front yard, Ray heard what sounded like the offender falling up the stairs, or that the offender smashed or kicked something.
Ray also heard loud banging, which sounded like the screen door getting banged or being punched.
I turn to the circumstances of the offending as such.
Between approximately 02:07am and 02:17am, the offender's banging on Mr Campbell's front door broke the striker plate, which secured the dead bolt, from the door, and entered Mr Campbell's premises.
The offender submitted that, whilst the evidence discloses banging on the front door of Mr Campbell's house and that the door lock mechanism appeared to be broken, the Court may conclude the offender broke the lock on the door with a relatively small amount of force given the condition of the door and the lock. I do not agree.
Whilst the door appeared to be in relatively poor condition, the evidence from Ray discloses that there was consistent banging which was sufficient for him to hear from some distance. Matthew Wayne Chrisp, who lived at 2 Rex Aubrey Place, gave evidence that he could hear the banging and noises for what felt like 10 to 15 minutes, however, he stated it could have been shorter. Furthermore, whilst the front door of Mr Campbell's premises was in a state of disrepair, there was a dead bolt which remained in situ shown in the photographs of the door taken by police after the door had been forcibly opened. Those photographs revealed the striker plate had been forced away from the door frame with sufficient force that it was cast some distance away from the door. It was located on the floor of Mr Campbell's house.
The offender entered Mr Campbell's bedroom and assaulted Mr Campbell.
I accept the submission advanced by Mr Corish of counsel who appeared for the offender that, on the evidence, the Court could not be satisfied beyond reasonable doubt that there was more than one blow by way of a direct punch to the facial area of Mr Campbell by the offender.
Senior Sergeant Debbie Veness gave evidence as to blood stain patterns photographed on a bedroom door above the head of Mr Campbell, whose body laid (as depicted in the photographs) in a supine position and apparently fully stretched out. The senior sergeant had training in blood pattern analysis and her duties included the investigation and management of crime scenes.
The photographs showed congealed blood on Mr Campbell's face, particularly around his nose, mouth and right eye. Senior Sergeant Veness accepted that that injury could have occurred elsewhere in the house.
Senior Sergeant Veness considered that there were difficulties in drawing conclusions from the photographs given limitation in the quality of the photographs. The photographs were not of high resolution. Noting that limitation, and agreeing in various respects with the expert report of Dr Mark Reynolds, obtained by the offender, Senior Sergeant Veness gave the following evidence: 1. Two questions had been posed to Senior Sergeant Veness for her consideration in preparing a report based on the photographs. The first question was: could the blood stain pattern that can be seen in the bedroom have occurred from Mr Campbell receiving only one blow? The second question was: could the blood stain patterns that can be seen on the bedroom wall have been deposited by way of coughing or breathing of [Mr Campbell]? 2. The blood stains must have derived from a bleeding event. 3. The blood pattern on the bedroom door was caused by "multiple different mechanisms". 4. The pattern was caused by force applied to liquid blood which had the effect of distributing the blood. Those droplets landed on nearby surfaces forming an impact pattern. 5. One mechanism for the distribution was through breathing or expiration that itself is a force. 6. Some of the blood stains seen on the surface of the door near Mr Campbell's head can be attributed, with confidence, to an expiration deposition mechanism, but only a few of the stains fell into that category. There were a few "bubble rings" in the photograph of the blood stain which may have been indicative of expirated blood from an oxygenated source. 7. In answer to the questions raised for Senior Sergeant Veness's consideration, the answer to the second question was, in substance, that some of the blood stains seen on the surface near Mr Campbell's head were the result of an expiration deposition mechanism, that is, the distribution was caused by the force resulting from breathing or expiration. 8. In answer to the first question, the Senior Sergeant opined that the blood stain patterns occurred as a result of Mr Campbell receiving at least one blunt force contact. 9. If Mr Campbell was struck multiple times to the head, but his head remained in the same position, then a specific number of blows would not be able to be calculated other than to say that there was at least one.
That evidence when taken with the jury verdict, photographs and medical evidence as to injuries, to which I will return, and ultimately a concession by counsel for the offender permits a finding beyond reasonable doubt that the offender punched Mr Campbell in the face once in his premises on the morning of 6 May 2020.
Counsel for the offender properly conceded that there were other acts of physical violence of an uncertain type during the course of or proximate to that assault of Mr Campbell. In other words, it was not disputed that various injuries, which I will describe shortly, were as a result of blunt force trauma or impact, the exact mechanism for which is uncertain, save that there was, as I have found, a punch, by the offender to the face of Mr Campbell which most likely shattered his cheek bone.
I accept the submission of the offender in that respect, that a distinction may be drawn between an inherently dangerous act, that is the direct punch to the head of Mr Campbell, and physical violence that also contributed to a vulnerable person such as Mr Campbell to suffer a subdural bleed or other injuries that I will turn to momentarily.
I will return to those considerations after briefly reviewing the post offence movements of the offender which concerned some aspects of aggravation and the related offences.
The offender staggered from Mr Campbell's premises and proceeded in a westerly direction along Best Street and appeared to be holding a mobile phone with the torchlight function activated. The unknown individual earlier observed by Ray was no longer on the road and could not be seen anywhere.
Melissa, with Lee in the front passenger seat, turned back into Best Street, drove easterly along Best Street, and encountered the offender, who was still staggering in the middle of Best Street. The offender approached the front, driver's side of the vehicle and Melissa wound her window down.
The offender staggered back to 19 Best Street, while Melissa and Lee continued to drive easterly along Best Street, turned left into Rex Aubrey Place and stopped briefly outside 8 Rex Aubrey Place. Melissa drove back to 19 Best Street. After alighting from the vehicle, Lee saw the offender standing near the front veranda at 19 Best Street.
Lee heard the offender say to Melissa, "Have you found [SM]? Where is she?". The offender went limp, fell to the ground and yelled, "I just killed that paedo cunt for your fucking daughter".
Aggravated by the cameras attached to the residence of another neighbour, Colin Watson ("Colin"), the offender staggered across Blaxland Street and stepped over the picket fence of 17 Best Street. That address had CCTV cameras mounted on it with signs on the front fence warning that there were security cameras.
On 11 May 2020, an autopsy was carried out by Dr Lorraine Du Toit-Prinsloo ("Dr Prinsloo") upon Mr Campbell. The findings were that the direct cause of death of Mr Campbell was blunt force head injuries.
Mr Campbell was determined to have suffered the following external injuries as a consequence (whether directly or indirectly) of the assault upon him: 1. Recent external injuries included lacerations at the top of the scalp, left eyebrow and nostril. 2. There were abrasions or grazes on the scalp (including on the back of the scalp), left side of the face and lower lip including bruising. 3. There was also some bruising in the occipital region of the scalp and on the right wrist - the latter injuries were defensive type injuries.
As to internal injuries, the following was observed: 1. A large sub-scalp haemorrhage in the left fronttoparietal region (the front one third of the brain). A bruise with the soft tissue of the scalp. 2. Extensive bleeding in the left cheek muscles. 3. A fracture of the maxilla: the facial bone above the teeth and below the eye socket. 4. Inferior orbital blowout fracture on the left of Mr Campbell (the bone in which the eyeball sits). 5. Bleeding in the sternocleidomastoid muscle (the thick muscle on the back of the neck). 6. Bleeding on the back of the right hand and right forearm. 7. A left-sided subconjunctival haemorrhage (essentially bleeding within the white of the eye).
As to the haemorrhages to the brain of Mr Campbell, the following were found: 1. A large left parietal subdural haemorrhage (110 x 60 x 10 millimetres) with an encircling rim of chronic subdural haemorrhage filled with red debris and dark blood. That was at the top and side of the left-hand side of the skull (Image 18, Exhibit 21). 2. Focal subdural haemorrhage over right parietal convexity. It was smaller (Image 18, Exhibit 21). 3. Acute subarachnoid haemorrhage over the frontal and temporal lobes at the poles (the front poles). In the case of the front lobe, just above the eyes: or in the case of the temporal lobes, 5 to 7 centimetres between the frontal poles. In this case the blood is tightly applied to the surface of the brain. These injuries are in a different location in the brain.
During the trial, the Court received a considerable amount of expert medical evidence essentially concerning the issue of medical causation. Dr Prinsloo and Dr Johan Duflou ("Dr Duflou") concluded that the overarching cause of Mr Campbell's death was blunt-force head injuries. Dr Michael Buckland ("Dr Buckland") deferred his opinion as to the cause of death to Dr Prinsloo as the forensic pathologist who undertook the autopsy of Mr Campbell and "saw the whole picture".
Additionally, Dr Prinsloo, Dr Duflou and Dr Mohamed Nasreddine all agreed that Mr Campbell sustained injuries to the head, face, neck, and right forearm which are typical of being involved in a physical altercation with the application of blunt force.
Dr Prinsloo stated that one of two possible causes of death, as a result of the blunt force head injury, was the subdural haemorrhage on the left side of Mr Campbell's head that pushed the brain 1 to 2 millimetres towards the right, causing midline shift that applied pressure to the "vital structures of the brain" that controls a person's respiration and heartbeat and can cause death. Dr Buckland also noted the 1 to 2 millimetres shift in Mr Campbell's midline from left to right.
The experts identified subdural haemorrhages that contributed to this intercranial pressure as follows: 1. Dr Prinsloo identified an acute subdural haemorrhage on the left side of Mr Campbell which had a "fresh blood clot" that measured a volume of 200 millilitres of blood. In Dr Prinsloo's opinion this haemorrhage "happened acutely" and was sustained in an "event", however, when commenting on whether it was possible to "state how much of the more recent blood within the acute, within the recent subdural haematoma was the result of the altercation in the hours prior to death and how much of that blood predated the proposed altercation" she responded "I think it would be really difficult, at least for me, to try and sort of determine what percentage of that volume could have been the previous day versus during the altercation". 2. Dr Prinsloo, Dr Buckland and Dr Duflou also agreed that Mr Campbell had a chronic subdural haematoma or haemorrhage on the left side of Mr Campbell which was "months to years old" which had a propensity to rebleed as a spontaneous occurrence or as a result of minor force applied to the head. 3. Dr Duflou observed the subdural haemorrhage had become "partially encased" in a fibrous membrane that was the result of a prior subdural haematoma and was in the process of healing. After reviewing the photographs held by Dr Buckland as to the shape of the neomembrane he agreed that "the bleed was contained within the bubble." 4. Dr Prinsloo stated that the acute and chronic injuries were in "roughly the same region". 5. Additionally, Dr Buckland identified an acute on chronic subdural haemorrhage on the left of Mr Campbell which he explained to be a "significant component of old haemorrhage" and "fresh blood which - so it looked like it had, it had - there had been some bleeding in the same area very recently". Dr Buckland agreed to the proposition that "the old bleed had a new bleed within it". Dr Duflou associated the acute on chronic subdural haematoma with a volume of 200 millilitres of blood.
The Crown submitted that, in relation to the injuries to the brain, there was much evidence adduced and cross-examined in relation to the 'acute on chronic left subdural haemorrhage', or the 'new on old bleed'. It was submitted that Dr Buckland opined in his evidence in chief that he was not sure he could draw any firm conclusions, but that the new bleed looked 'fresh', meaning "generally within a day to maybe two days".
In re-examination the Crown submitted, Dr Buckland said it was equally possible that the degeneration in those cells had occurred as Mr Campbell lay dying.
The Crown submitted that, in contrast, Dr Duflou stated, the recent haemorrhage within the old haemorrhage was recent in that it was "a number of days old, not something that had occurred in the last six, eight 12, 24 hours". He referred to a neuropathology textbook to support this and a further recent text. Dr Buckland, on the other hand stated that, "when it comes to injuries to the brain, I am quite confident that that's my area of expertise…".
The Crown submitted that the Court should accept the evidence of Dr Buckland as he was a neuropathologist rather a than forensic pathologist, the speciality of Dr Duflou. The Court was invited to conclude, in that event, that it was equally possible that the new blood existed before the assault or occurred as the deceased lay dying.
While there is some force in the Crown's submission, I accept the Crown's submission that it is unnecessary to resolve this issue.
Apart from that fact the issue of bleeding from the subdural haemorrhage was essentially an issue as to medical causation, the Crown properly submitted that, on the evidence, a rebleed could have arisen "from anything from a cough to a violent assault" and that the amount of force applied by the offender could be assessed by reference to the injuries sustained by Mr Campbell.
My overall conclusions, in this respect, are as follows: 1. The verdict of the jury demonstrates that they accepted that the assault was unlawful and dangerous and exposed Mr Campbell to significant risk of really serious injury and caused his death. 2. I am satisfied that the offender caused the death of Mr Campbell by causing a fresh subdural bleed which augmented the recent but pre-assault bleeding, by the use of blunt force, by a strike to Mr Campbell and/or physical violence, given the tendency of the chronic subdural haematoma to spontaneously rebleed. 3. I am also satisfied that, given the physical vulnerabilities of Mr Campbell (the 'eggshell skull' rule), Mr Campbell was susceptible and vulnerable to a lesser degree of force resulting in the fresh subdural bleeding. 4. Nevertheless, I accept the submission of the Crown that a significant amount of force was applied to the body and head of Mr Campbell. 5. That conclusion is consistent with the medical evidence that I have summarised above and the photographs of Mr Campbell's injuries. 6. The Crown correctly submitted that the Court should find that the offender was responsible, either directly or indirectly, for six sites of injuries. The Crown nominated the following in that respect: 1. there was an initial bleeding event. 2. The two sites of defensive injuries on the forearms, akin to two impacts. 3. Injury to the neck muscles. 4. Fracture to the maxilla, inferior orbital blowout, bleeding within the eye. 5. Large sub-scalp bruising in the left front parietal region of the scalp. 6. Bruising and laceration of the occipital region of the scalp.
Based on the evidence of Senior Sergeant Debbie Veness, I accept the submission of the Crown that, for some unqualifiable time, Mr Campbell was lying in the place he was found by police, injured and breathing. At least a part of the blood stain patterns, as I have found above, is attributable to the expiration disposition mechanism. I note here that the offender offered no assistance to Mr Campbell.
I have earlier discussed legal principles associated with the offence of manslaughter. However, it is important to observe at the outset of considering the objective seriousness of the offence that objective gravity is not, as earlier mentioned, determined by the variety of legal bases of manslaughter but by the facts: Goundar; and R v MD at [62].
In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of an offence (at [60]): 60. As discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], the objective seriousness of an offence has to be assessed without reference to matters personal to the offender or a particular class of offenders and "wholly by reference to the nature of the offending". Objective seriousness must also be determined "without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case": at [31].
In BM v R [2019] NSWCCA 223, the Court (Payne JA, Fullerton and Bellew JJ) stated (at [15]): 15. In Tepania v R [2018] NSWCCA 247 at [112], Johnson J (with whom Payne JA and Simpson AJA agreed) explained that, in determining the objective seriousness of an offence, regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offences, including (if it be the case) a mental disorder or mental impairment.
Objectively, this matter must be assessed as a very serious example of the offence of manslaughter for the following reasons: 1. I accept that the offender must be sentenced upon the basis of a single punch to Mr Campbell rather than multiple blows to his head and face, although, as I have found, there were other acts of violence at or about the time of that assault. 2. Overall, the violence and aggression involved in the incident was significant and involved considerable force. The violence substantially contributed to the death of Mr Campbell. 3. There was enough force for Mr Campbell to have a broken eye socket, and to have received subcutaneous defensive injuries on his right arm, and further subcutaneous injuries in his neck muscles. 4. The breaking of the cheekbone was on the same side of Mr Campbell's face as his only functional eye. His functional eye was thereby damaged in the assault and the experience for Mr Campbell must have been terrifying. 5. As I have found, Mr Campbell must have lay dying in the dark, I infer, in pain and alone for some unquantifiable time after the assault. 6. The offender entered the home of Mr Campbell in the middle of the night by breaking the door down and assaulting Mr Campbell. The breaking down of the door with some force, as I have earlier found, and the preceding banging to the door, must have also been a matter that contributed to the fear experienced by Mr Campbell. 7. The context in which that violence occurred was an argument between the offender and SM, an entirely unrelated young person, that same young person leaving and the offender being unable to find her. 8. The offender gave into his mounting frustration, exasperation and anger and lost his temper. He did so even after realising, after entering Mr Campbell's premises that the young person was not in the premises. Mr Campbell died completely senselessly.
Beyond what I have mentioned as to the nature of the assault, there is little that can mitigate the objective seriousness of an unexpected, violent attack, in the middle of the night, on a vulnerable older person, with compromised eyesight and a brain injury who is in his own home. As I will discuss below, subjective considerations including those going to moral culpability do not, in my view, in this matter, diminish the objective seriousness of the offence, even though those factors will be taken into account in the sentencing of the offender.
The Crown made a submission that the offence fell into the high range of objective seriousness. However, I note that it is unnecessary to place the objective seriousness of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (Adamson J, (with whom Hoeben CJ at CL and Schmidt J agreed)), and I do not propose to do so in the circumstances of this offence. My finding as to objective seriousness is as I have stated above.
I turn then to the question of moral culpability and subjective circumstances.
Self-induced intoxication, even to a significant degree (although the evidence in this matter does not permit a precise assessment of its impact on the conduct of the offender), cannot normally be described as a mitigating factor and, in any event, is excluded by s 21(5AA) of the Sentencing Act. No suggestion was made to the contrary by counsel for the offender.
However, in reliance upon the principles in Bugmy v the Queen (2013) 249 CLR 571 ("Bugmy") at [37] - [40], and the report of Ms Anne Lucas, forensic psychologist, of 30 May 2024 ("the Lucas Report"), Mr Corish submitted that the offender's "alcohol abuse" was "an extension of a history of deprivation, social-economic disadvantage [and] it can and should be taken into account as a mitigating factor in assessing the offender's moral culpability".
This submission was advanced under the heading "subjective matters" but the offender advanced two further submissions as follows: 1. While it is always a question of degree, general and specific deterrence may play a lesser role in sentencing than those with a mental health condition, DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. It is not necessary to establish a link between the mental illness and the crime: Benitez v R (2006) 160 A Crim R 166. 2. The relevant connection relied upon by the offender was described thus: "the offender is submitting no more than there is a connection between the offender's lifelong alcohol abuse and his struggles to deal with mental health or personality disorder issues. While not an excuse, it explains - in part - why the offender engaged in this criminal conduct which led to Mr Campbell's death, Perkins v R [2018] NSWCCA 62".
The Crown relied upon a report of Dr Kerri Eagle who had, after the trial was vacated in April 2023, made an assessment of the offender's fitness to be tried. In a report dated 4 August 2023, Dr Eagle formed the view that the offender was fit to be tried. She also concluded that the offender did not have a mental health impairment at the time of the offending. Rather, his predominate difficulty at that time was a severe alcohol abuse disorder. Further, even if he was experiencing ongoing auditory hallucinations due to a psychotic illness such as schizophrenia (which Dr Eagle doubted), these symptoms did not appear to have influenced his mental state at the time of the offending so as to prevent him from understanding the nature and quality of his actions or from reasoning with a moderate degree of composure as to the wrongfulness of his actions. His state of mind at the time of his offending was a product of alcohol, intoxication and not a mental health condition. Thus, whilst the offender was likely to be severely impaired by his intoxicated state, that impairment did not extend to a point where he was unaware of his actions or incapable of reasoning as to the moral wrongfulness of his conduct.
Further, Dr Eagle did not find the criteria for substantial impairment at the time of the offending satisfied.
The Crown submitted, correctly in my view, Dr Eagle's report outlined some difficult childhood issues, the mental health history of the offender as well as alcohol use that Dr Eagle had described as the offender's long standing alcohol abuse disorder and psychological vulnerabilities. Dr Eagle also described a traumatic childhood involving exposure to domestic violence and childhood sexual abuse. The offender had, thereafter, difficulties managing his anger and was hypervigilant.
Dr Eagle considered that the offender did not appear to have "ongoing intrusion symptoms", but he had likely used alcohol since adolescence to cope with emotional dysregulation arising from his traumatic experiences. He did not however, meet the criteria for post-traumatic stress disorder ("PTSD"). Dr Eagle also opined that the offender's severe alcohol use disorder was in remission whilst in custody. He had demonstrated features of an anti-social personality disorder and displayed some borderline personality traits.
I agree with the further submission of the Crown that Dr Eagle did not find a causal link between the offending and any mental health issues.
The Crown also made submissions regarding the Lucas Report fairly accepting, in that respect, that, notwithstanding the report was derived from the untested assertions of the offender (see R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 and R v Imbornone [2017] NSWCCA 144), Ms Lucas's assessments based upon that source may nonetheless be accepted because of the candour of the offender as expressed in that report including to his attitudes to further alcohol consumption and the associated risks of returning to alcohol abuse (See Lucas Report at [39] - [40]). I will proceed on that same basis having regard to the offender's frankness to Ms Lucas.
The Crown conceded that "Bugmy kind of circumstances existed" in this case. However, the Crown mentioned that the Court may wish to consider the prospect that the offender had an inability to control "violent responses to frustration" and accordingly there may be a proper basis to place importance upon the protection of the community from the offender.
In her report, Ms Lucas made the following observations and gave the following opinions which bear upon the question of moral culpability and the offender's prospects of rehabilitation: 1. The offender has a severe and chronic alcohol use disorder of long duration (from age 12 or 13) which is presently in remission whilst he is in custody. 2. The offender's parents suffered from severe alcohol abuse problems which was accompanied by serious physical violence in the family including towards the offender. 3. The offender reported a child protection intervention when he was 14 years of age which resulted in an out of home placement with his grandmother who was a caring and supportive individual. Nonetheless, she exercised little control over the offender. 4. After being returned to his parents, they resumed drinking and engaged in violence. The offender became engaged with juvenile alcohol abuse and established anti-social associations. 5. The offender had a significant mental health history which involved treatment for mood disorders, alcohol and substance abuse, psychosis like symptoms and personality disorder issues. Ms Lucas mentioned a historical assessment of PTSD. There were admissions to Bloomfield Hospital. 6. The offender had reported that he had historically acted impulsively, reacted badly to fear of abandonment, had a history of substance abuse and a pattern of emotionally intense relationships containing conflict. He had chronic feelings of emptiness and loss and a history of acting out in anger and paranoia. 7. The offender indicated that he had not been motivated to engage in treatment for his alcohol abuse "as he did not think it had been a problem for him". He also noted that he had temporarily engaged in AA meetings in custody but still felt that "when he thinks about his alcohol use, he remembers the 'good times', whilst the coursework he has attended 'tends to go on about the bad stuff'". 8. At the time of the assessment, the offender, according to Ms Lucas, was still "at a stage where he had discounted the negative effects of alcohol use and as such continues to be at risk of resuming alcohol use when he regains access to alcohol". Notwithstanding the fact that he had felt better from not taking alcohol in custody, he would be motivated to drink again if he could. Ms Lucas felt that he was vacillating between the precontemplation and contemplation phases of change. The contemplation phase is when people start to recognise that the identified behaviour may be problematic and give consideration to change. In other words, the offender had not yet seriously considered other steps or strategies to address the issue notwithstanding that he had nominated negative consequences attached to the use of alcohol. 9. In addition to a severe alcohol use disorder, previous psychiatric reports had identified consequential mood dysregulation or depression. There had been identified features of anti-social personality disorder and borderline personality disorder. An earlier report had described "probable schizophrenia". 10. Ms Lucas undertook a Personal Assessment Inventory ("PAI"). The overall configuration of the offender's PAI clinical scales suggested that he was a person with a history of alcohol abuse problems who was confused and socially isolated. 11. The offender endorsed items in the PAI, indicating he was impulsive and prone to behaviours which were self-harmful or self-destructive. His behavioural traits were consistent with a diagnosis of borderline personality disorder. 12. On the paranoid scales of the PAI it was indicated that the offender was hypervigilant to harm and would question the motives of those around him. Other scales within the PAI suggested that the offender's aggressive behaviours played a role in his clinical picture and that such behaviour may represent a potential treatment complication towards his engagement in treatment. 13. The offender's responses suggested that he was an individual who was easily angered, had difficulty controlling the expression of his anger and was perceived by others as having a hostile, angry temperament. When he lost control of his anger, he was likely to response with more extreme displays of anger. 14. Ms Lucas stated that: The degree of elevations across multiple clinical areas evident in Mr Davies PAI clinical profile made diagnosis difficult. However, when comparing the history reported by objective informants, a picture emerges of Mr Davies suffering from a severe and chronic alcohol use disorder. The issues of personality problems or characteristics of personality functioning observed and remarked upon by mental health practitioners longitudinally suggest the presence of comorbidly occurring Borderline Personality Disorder and Antisocial Personality Disorder. Mood states or other disorders that often accompany such Cluster B Personality Disorders include anxiety disorders, depressive disorders, substance abuse disorders, eating disorders and post-traumatic stress disorder. 1. Ms Lucas expressed opinions and recommendations as follows: 91. Mr Davies provided account of having experienced numerous adverse events during his childhood which included exposure to parental alcohol abuse and family violence. He further nominated he had been sexually assaulted as a young teen by a person in authority at the PCYC school he had attended. 92. The history he provided of impulsivity and acting out aggressively as a young person strongly suggested that he has had lifelong difficulties in moderating strong emotions leading to him engaging in behaviours which have harmed himself and others. His misuse of alcohol impressed as being an avoidance strategy he has engaged in to dampen down the strength of his emotional responses. 1. Ms Lucas also stated: He appears to have focussed this anger on the victim whom he had identified as an individual who harmed children. The focus on the victim impressed as a cognitive justification made by Mr Davies to deflect some of the responsibility for his actions away from himself. 1. The lack of a full constellation of symptoms that accompanies or comprises presentations of schizophrenia make a diagnosis of schizophrenia difficult. While a previous diagnosis of probable schizophrenia had been given, other assessors had suggested that the offender experienced pseudo-hallucinations related to trauma and personality vulnerabilities. 2. Finally, Ms Lucas opined (at [99]): If further assessment of Mr Davies in custody, through Justice Health, determines he is suffering from Psychosis/Schizophrenia, symptoms of that disorder would need to be addressed before he would be eligible to join offender rehabilitation programs. In the absence of active symptoms of psychosis, Mr Davies would be encouraged to participate in programming for substance abuse and aggression which specifically address antisocial attitudes, impulsivity and risk taking, poor cognitive problem solving, negative affect and mood and hostility. Substance abuse issues of managing risk of relapse which relate to appreciation of harm and altering cognitions which promote the use of substances to lower distress would be recommended.
In Bugmy, French CJ, Hayne, Gummow, Kiefel, Bell and Keane JJ observed the following at [44]: An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
Hoeben CJ at CL stated in Perkins v R [2018] NSWCCA 62 ("Perkins") at [42]: On my reading of Bugmy v R it is not sufficient to simply establish some elements of a deprived upbringing and/or the presence of domestic violence unless there is evidence or it can be properly inferred that such exposure "may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced." (Bugmy at [44]).
Further in Perkins, White JA stated at [77] and [80]-[83]: [77] In Bugmy the High Court neither endorsed Mr Bugmy's submission (at 581) that no causal connection between the offender's aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that "The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment." … [80] Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender's moral culpability. In some cases that causal link may be inferred (R v Millwood [2012] NSWCCA 2 at [69]). [81] On the other hand if a causal link between the offending and the background of deprivation is established, as the High Court pointed out in Bugmy and as Gleeson CJ said in Engert, that may give additional weight to a conflicting purpose of punishment such as the need for protection of the community. [82] I agree with Hoeben CJ at CL that the applicant's exposure to the domestic violence committed on his mother and possibly on him [1] has been shown not to have been causally connected to his offending… [83] It does not follow that the applicant's exposure to the domestic violence suffered at least by his mother is irrelevant. But it does not lessen his moral culpability.
Lastly, as Simpson AJA stated in R v Irwin [2019] NSWCCA 133 at [2] and [3]: 2. The "Bugmy principles" are derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and are concerned with the impact on sentencing of a history of disadvantage and deprivation. The plurality in the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) accepted that such a history is relevant to the assessment of the moral culpability of an offender. The specific question in Bugmy was whether the effects of early social disadvantage and deprivation diminish over time such as to reduce the extent to which it may be taken into account on sentence. 3. Application of the Bugmy principles is not discretionary. Their Honours said: [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.
It may be doubted that the evidence from Dr Eagle and Ms Lucas established a causal link between the background of deprivation of the offender and the offending as such. However, the consideration of a background of deprivation as a mitigating factor is not confined to the establishment of such a causal link. In particular, that causal connection is not a necessary precondition for a finding in the reduction of moral culpability.
If it be established, as it has in this case, that the evidence of deprivation explains, as the offender put it, "in part", the offender's recourse to violence when frustrated, then his moral culpability is reduced to that extent and may be taken into account in sentence. Here, it may be inferred that the offender's social deprivation, exposure to violence at an early age and trauma (including a sexual assault) explained, to an extent, his lifelong alcohol abuse, his struggles to deal with mental health and personality disorder issues and his impulsivity and tendency to violence. The offender's moral culpability is reduced, and some weight should be given to it in sentencing to the extent of the offender's conduct may be explained by that factor.
The offence was aggravated by subs 21A(2)(eb) of the Sentencing Act as the offence was committed in the home of Mr Campbell
The provision of subs 21A(2)(l) is also applicable in this matter with respect to aggravation. I propose to break the analysis of that provision into those circumstances which properly aggravate and those which do not.
In the first part, Mr Campbell was vulnerable. He was 74 years old when he died. He was a person living alone, socially isolated and affected in his daily interactions with other members of the community: Katsis v R [2018] NSWCCA 9 at [62]. Part of the reason why Mr Campbell experienced difficulties in interacting with the community is because he had a brain injury which affected the nature of his interactions. He also had physical disabilities.
In the second part, there are other vulnerabilities which, whilst pronounced in their effect on Mr Campbell, I do not consider may be taken into account in aggravation in this respect. Mr Campbell had a significant vulnerability in that he had a chronic subdural haematoma which, as I have earlier mentioned, was likely to bleed at any time even as a result of minor events. The existence of that condition would not have been known nor obvious to the offender. Whilst the 'eggshell skull' rule is applicable to other aspects of sentencing, as I have earlier discussed, the existence of this aspect of Mr Campbell's vulnerability is not, in my view, a factor that can be taken into account in aggravation.
The Crown submitted that the offence was further aggravated having regard to subs 21A(2)(h), because the offence was motivated by hatred for or prejudice against a group of people, namely paedophiles, with respect to which the offender (mistakenly) believed Mr Campbell belonged. The Crown submitted the offender killed Mr Campbell because he believed that Mr Campbell was a paedophile.
The Crown further submitted that the evidence in the proceedings would enable the Court to reach such a conclusion because of statements made by the offender, his attendance upon other households on the evening of 5 May and the morning of 6 May in an agitated and angry state whilst looking for his stepdaughter without engaging in behaviour akin to that which occurred at Mr Campbell's premises, and that having entered Mr Campbell's premises he preceded with the assault, notwithstanding that SM was not present (that being a motivation for entering the premises).
The offender submitted that care is required in attributing the offender's particular but erroneous stated belief that the deceased was a paedophile to being a 'hatred for or a prejudice against a group of people', given the examples noted in the subsection. It was also submitted that the Court would not be satisfied this is an aggravating factor. Counsel for the offender submitted that in order to find aggravation it was necessary to conclude that the sole motivation for the offending was hatred for or prejudice against paedophiles, the offender having a view that Mr Campbell was a member of that group. The offender's motivation was, at least in part the search for SM and that the entry to Mr Campbell's premises, had occurred in that light.
Subsection 21A(2)(h) of the Sentencing Act is in the following terms: (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows - … (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
The provision of subs 21A(2)(h) extend, in my view, to hatred or prejudice towards people who fall into the group of sexual offenders known as paedophiles. Whether or not that group may be caught by the expression "sexual orientation" in the brackets appearing in subs 21A(2)(h) may be debatable, but the provision is not confined in its operation to the examples appearing in the brackets. Thus, the list of examples is not exhaustive of the "groups of people" to which the provision applies. Paedophiles are members of a particular and well-known group of people and there is no reason to read down the provision (based on the submissions presently before the Court) so as to exclude them: Dunn v Regina [2007] NSWCCA 312 ("Dunn") at [32] (Hoeben J (with whom Handley AJA and Smart AJ agreed)).
The offender also relied upon Dunn to advance the proposition that, as I have mentioned above, aggravation may only be found pursuant to s 21A(2)(h) where the "sole" motivation for the offence was hatred or prejudice against a group of people that the offender believed the victim belonged to that group. The offender relied upon [32] of that judgment to establish that proposition as well as the judgment of Lonergan J in R v Doolan [2023] NSWSC 821 ("Doolan").
In order to properly evaluate the offender's submission in this respect it is necessary to have regard to some additional passages from Dunn. In considering the remarks on sentence under appeal Hoeben J referred to the following at [17] and [18]: 17 Taking that evidence into account his Honour reached the following conclusion: "I am satisfied beyond reasonable doubt on all the evidence before me that a significant factor in the offender's motivation to commit these offences was his feelings of antipathy towards his neighbour Mr Arja who he believed without any justification at all, was a paedophile. That is, in my view, a significant aggravating factor in relation to the commission of these offences: see s21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999. … A s is apparent from my comments, far from being any kind of justification or mitigatory matter in relation to the commission of this offence, the view that the offender held about Mr Arja and the actions that he took in relation to that view constitute, in my view, an aggravating factor." (ROS 8) 18 His Honour concluded that the offences were committed completely without regard to public safety. His Honour accepted that the applicant did not intend to harm Mr Arja personally. Nevertheless both fires had the real potential to cause major property damage and to threaten human life. In lighting the fires the applicant was not to know whether the fires could have spread to other units in the block thereby threatening the lives of residents. His Honour characterised the conduct in lighting the fires as constituting "recklessness of a very high order".
In dealing with ground 2 of that appeal, a manifest excess ground, Hoeben J reached the following conclusions with respect to the operation of subs 21A(2)(h) of the Sentencing Act at [29] - [33]: 29. It was submitted, on behalf of the applicant, that his Honour's application of s21A(2)(h) of the Act was wrong. The evidence before his Honour made it clear that the applicant's actions in lighting the fires were directed at Mr Arja personally and were not directed at any particular group. It was submitted that the subsection was directed at offences against persons which were motivated by hatred or prejudice against a group to which it was believed those persons belonged and had no application where there was particular dislike or animosity between two individuals. 30. In my opinion the challenge to his Honour's application of subsection 21A(2)(h) fails. The subsection relevantly provides: "21A(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (h) The offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)." 31. The facts found by his Honour were that the applicant believed Mr Arja to be a paedophile. A significant factor in the applicant's motivation was his feelings of antipathy towards Mr Arja because he believed him to be a paedophile. In relation to the evidence generally the motivation was described by the applicant to Dr Furst as a "scare tactic" and there was no evidence of any other basis for ill-will between Mr Arja and the applicant. On the contrary Mr Arja believed that they got on well together. 32. Applying s21A(2)(h) to those facts, it is clear that the offences come fairly and squarely within it. The offence was motivated by a hatred or prejudice against Mr Arja solely because the applicant believed him to be a member of a particular group, ie paedophiles. The examples given in parentheses are merely that, ie examples, they do not comprise an exhaustive list of the groups envisaged by the subsection. 33. In my opinion his Honour was correct in applying the subsection in the way in which he did.
In my view, Dunn does not stand for the proposition advanced by counsel for the offender in this respect. I have reached this conclusion for a number of reasons: 1. The sentencing judge in Dunn reached a conclusion there was aggravation because a "significant factor" in the applicant's motivation was the applicant's feelings of antipathy towards his neighbour, Mr Arja, who he believed was a paedophile. The Court of Criminal Appeal found no error in that approach, which included a less strenuous test that a "significant" motivation for the offence was hatred or prejudice to that particular group to which the applicant believed the victim belonged. 2. The issue presented for consideration by the Court in Dunn was whether there was error because the sentencing judge had not appreciated the applicant's actions in lighting the fires were directed to the victim, Mr Arja, personally and were not directed to any particular group. The Court of Criminal Appeal rejected that contention at [31] finding that the applicant had believed Mr Arja was a paedophile and that there was no evidence of ill will between Mr Arja and the applicant. When the Court referred to the offence being motivated by hatred for or prejudice against Mr Arja "solely" because the applicant believed him to be a member of a particular group, namely, paedophiles, the Court was not erecting a test that in order for aggravation to be found under subs 21A(2)(h) the motivation by hatred for or prejudice against a particular group must be the sole motivation for the offending. Rather the expression 'solely' was intended to convey that the Court had excluded entirely that the offending was driven by personal animosity. Paragraphs [31] and [32] of the judgment in Dunn need to be read together to understand the true effect of the decision. 3. That conclusion is even stronger because in [31] of Dunn, the Court refers to "a significant factor" in the applicant's motivation being his feelings of antipathy towards Mr Arja because he believed him to be a paedophile. 4. As a matter of construction, the expression "was motivated" in subs 21A(2)(h) literally does not import a limitation or confinement of exclusivity such that the sole motivation must be hatred for or prejudice against a particular group. Nor should the provision be construed with such a limitation when read in context. The chapeau to subs 21A(2) contemplates that more than one factor may be taken into account in aggravation. Subsection 21A(2)(o) contemplates another motivation (although not expressed in terms of motivation per se), namely, financial gain. I readily accept the provision would exclude the de minimis. Nonetheless, I will apply the authority in Dunn that the motivation must be a significant factor in the offender's motivation.
The judgment in Doolan does not stand to the contrary. In that matter Lonergan J was considering a submission by the Crown during the course of sentencing that the offender had engaged in vigilante offending because he hated the deceased who he believed had committed sexual offences against a child. Attention was directed in that respect to questions of general and specific deterrence.
Her Honour's ultimate conclusion was that there was insufficient evidence to find that the offending was vigilante in nature or that the offender hated the victim. Indeed, her Honour found at [51] that there seemed to have been a spur of the moment decision to go "to the house" of the victim. In the course of her Honour's reasoning at par [52], Lonergan J referred to a finding of vigilantism, if established, representing an aggravating feature of the offending and in that context stated, "I would need to be satisfied beyond reasonable doubt that this was in fact the motivation for the offending". Apart from the fact that her Honour found there was no basis in fact for a finding of vigilantism, this short passage from the judgment cannot be erected as reasoning by her Honour to the effect that, if aggravation was to be considered vigilantism, there needed to be established that factor was the sole motivation for hatred or prejudice giving rise to the offending. The words "this was in fact the motivation for the offending" (Doolan, at [52]) cannot, when read in context, be taken as having that meaning.
I find beyond reasonable doubt that the offence was significantly motivated by, at least, prejudice against a group of people, namely, paedophiles to which the offender believed Mr Campbell belonged even though another motivation was to find SM. It is irrelevant for the purposes of s 21A(2)(h) that the belief was entirely erroneous. It is unnecessary to so find but, in my view, the evidence also demonstrates hatred for the group.
The evidence which underpins that conclusion is threefold. First, the evidence of accounts of the offender's statements on the morning of 6 May 2020 are as follows: 1. Around 1.30am, Lee observed the offender on the street carrying a phone in one hand and a can in the other and yelled "I am going to kill this paedo cunt". 2. Colin stated he heard the offender, say while he was standing on the road "you fucking paedophile. I'll fucking kill you". 3. At around 2.17am, Lee was driving on Best Street with Melissa and saw the offender in the middle of the road yelling words she could not understand precisely but were similar to "I will kill you, you fucking paedo cunt". 4. When Lee arrived back at Melissa's house, she stated the offender was on the front veranda lying down. Lee heard the offender say "I just killed that fucking paedo cunt". 5. At around 2:21am, when the offender was at Melissa's house Melissa heard the offender say "I killed the paedo for your daughter". 6. Sean Noble ("Sean") heard a commotion outside of his residence at 2 Best Street, Parkes and phoned triple zero. Sean stated on the call that he heard the offender say "I hurt the paedo bad. I'm pretty sure he's dead".
Secondly, there is the evidence in the ERISP and the Lucas Report: 1. When the offender was asked, in the ERISP, "Can you tell me anything about Chester", he replied "He's a creepy old cunt, but that's about it". 2. Ms Lucas, in her report, recalled the offender saying "[SM] went missing and the longer it took to find her the angrier I got. I would do anything for those kids. I was trying to protect her. I didn't want her hurt…. I went looking for her that's why I went to the Paedo's house".
Thirdly, there are other aspects of the evidence which sustain my conclusion. First, the offender made enquiries at other premises as to the whereabouts of SM and, notwithstanding his apparent anger, did not engage in any conduct which even remotely resembled that which he undertook at Mr Campbell's house. An illustration is his engagement with Benjamin Clarke and PC in Rex Aubrey Place. Secondly, throughout the evening the offender's aggressive statements bore a consistent focus upon paedophiles and, in particular, Mr Campbell as a paedophile.
Thirdly, upon entry to Mr Campbell's house the offender must have ascertained that SM was not present. She was not there, and the house was a relatively small single story-dwelling. Nonetheless, the offender preceded to assault Mr Campbell. In an after-offence statement the offender clearly associated his offending not with Mr Campbell as a person but Mr Campbell as a paedophile.
It must follow that an aggravating factor of the offending was that the offence was motivated by hatred for or prejudice against a group of people, namely, paedophiles, to which the offender believed the victim, Mr Campbell, belonged. However, the offender was also motivated by the search for SM.
The offender has a criminal record, with time spent in custody for dishonesty, property damage, contravene AVO, stalk and intimidate, and driving offences over the years. The last charge date was 22 August 2017 for an affray charge, for which he received a 2-year supervised bond. He has only one entry on his Corrective Services Record for an assault in 2020.
I do not consider the offender's prior criminal history to be significant and it does not aggravate the offence for the purposes of subs 21A(2)(d) of the Sentencing Act.
I also do not consider the circumstances of this matter including the offender's record gives rise to considerations such as those found in Veen.
However, the offender's prior record disentitles him to leniency.
The offence may be mitigated pursuant to subs 21A(3)(b) of the Sentencing Act because the offence was not planned. Whilst conceding this factor in mitigation, the Crown submitted that it was diminished because efforts were made to dissuade the offender from entering the house. I do not consider that this consideration diminishes this mitigating factor.
The offender drew attention to the provision of subs 21A(3)(h) but acknowledged that the offender's prospects of rehabilitation "must be viewed as guarded" given the Lucas Report. It was accepted that the Court would not make a finding that there were even reasonable prospects for rehabilitation. The offender accepted that the Court may take into account, in that respect, his unresolved alcohol abuse issues. It was also acknowledged that the offender's self-induced intoxication cannot be considered as a mitigating factor.
However, the offender also submitted that the evidence did not permit the Court to make "any concrete finding" about the offender's prospects of rehabilitation because it would be necessary to grapple, in any assessment, with "a lifelong addiction to alcohol and alcohol abuse". The Court needed to balance, in this respect, it was submitted that the offender has a clear history of deprivation involving both alcohol abuse and violence within his family circumstances.
The Crown made the following submissions on the question of rehabilitation: 1. The Court should have less faith in the offender's prospects of rehabilitation then contended for by the offender having regard to the Lucas Report. 2. Emphasis was placed upon those aspects of the report indicating the offender's lack of engagement with alcohol and also his continued desire to engage with alcohol, remembering 'good times' in that respect, and being critical of attention to bad times. 3. Furthermore, the offender showed a lack of insight into the consequences of alcohol consumption desired to continue drinking. 4. There was simply no willingness to change or understand the effect that alcohol use had on him and other people. 5. Personality testing by Ms Lucas showed that the offender was easily angered and had difficulty controlling the expression of that anger. 6. The Lucas Report indicated that, when the offender lost control of his anger, he was likely to respond with more extreme displays of anger including harm to property and persons.
As Ms Lucas opined, the offender suffered from a severe and chronic alcohol abuse disorder which had persisted since his early years. Both Dr Eagle and Ms Lucas had the view that the disorder was now in remission because of the absence of alcohol consumption whilst in custody.
Nonetheless, the offender's candid accounts to Ms Lucas made plain a present absence of willingness to recognise his dependence upon alcohol and its adverse consequences upon him and the community. He had not reached the contemplation phase referred to by Ms Lucas which required an understanding that the behaviour exhibited, as a result of alcohol, was problematic and consideration needed to be given to change.
Ms Lucas observed, however, the offender's belief that his misuse of alcohol was an avoidance strategy to dampen the strength of emotional responses derived from early childhood trauma. Plainly, that strategy had the opposite effect and needed to be understood also in the context of the offender's mood or personality disorders and his history of acting out in anger and paranoia.
The offender no longer requires medication to maintain his condition, and, in the result, he is no longer taking mood stabilisers or psychotic medication. Their remains an inconclusive diagnosis of schizophrenia.
Ms Lucas opined that, in the absence of active symptoms of psychosis, the offender would be encouraged to participate in programs for substance abuse and aggression which would specifically addressed his anti-social attitudes, impulsivity, poor problem solving and hostility. Those would also be addressed substance abuse issues.
It is conceivable that such programs and an absence from alcohol might, at the offenders present age, offer some, albeit remote, prospects for rehabilitation, particularly if they address the childhood trauma suffered by the offender. However, this depends upon a willingness of the offender to engage in such programs which presently he candidly eschews, notwithstanding, four years in custody where such opportunities would likely have presented themselves.
It is plain that for the purposes of subs 21A(3)(g) the offender does not have good prospects for rehabilitation. I find that he has very guarded prospects in that respect. Nor may it be found that it is unlikely he will reoffend in that context.
The offender offered a plea of guilty to the offence or count 3 on the indictment during a Case Conference held on 14 January 2022. This plea offer was rejected by the Director and the matter was committed for trial. In this Court, post-committal, the offender confirmed pleas of not guilty to all counts.
The mandatory nature of any sentencing discount is prescribed by subs 25D(1) of the Sentencing Act, which states: In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.
The EAGP scheme for guilty pleas, as laid out in subs 25D(2)(a), makes it clear that the offender in this matter is due a 25% discount for the plea of guilty offered during the EAGP process in the Local Court. This is despite the fact that the offender ran a case during trial which involved causation and identity.
No plea was ever offered during the EAGP process to the matters on the s 166 Certificate, and thus, no discount is available on those matters.
The offender called an expert witness, Dr Duflou, in the defence case at trial in an effort to raise a reasonable doubt about the physical element of causation (which was a necessary ingredient of all three counts on the indictment, including manslaughter). In addition, cross-examination and submissions were also made regarding the 'unknown man' and the possibility that he was the one that assaulted Mr Campbell and caused his death.
The offender is not eligible for any discount for pre-trial disclosure pursuant to s 22A of the Sentencing Act as per R v Smith [2024] NSWSC 437.
I turn then to particular subjective circumstances. The offender is a 36-year-old man who at the time of the offending lived with his partner Melissa and from time to time with his father at Gunningbland. He is the eldest child of his parents' union and has three brothers and one sister. He spent his formative years in Parkes, NSW.
In the Lucas Report, it is stated that the offender identifies himself as an aboriginal man of the Wiradjuri people. As I have mentioned, the offender experienced numerous adverse events during his childhood. He was exposed to parental alcohol abuse and family violence and identified that he had been sexually assaulted as a young person. He developed a severe and chronic alcohol use disorder, again as I have mentioned, and has had lifelong difficulties in moderating strong emotions leading to him engaging in behaviours which have been harmful to himself and others.
In this respect, the subjective features overlap with factors relevant to the assessment of moral culpability.
I have earlier dealt with the offender's prospects of rehabilitation. No submissions were advanced as to the remorse of the offender and, in any event, there is little evidence which is suggestive of the existence of remorse, except for the plea itself.
In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as the Court of Criminal Appeal pointed out in R v Troja (Court of Criminal Appeal (NSW), Kirby P, Grove and Newman J, 16 July 1991, unrep) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it: R v MD at [65].
There are powerful factors operating in this matter which would elevate the significance of general and specific deterrence. I agree with the submission of the Crown that the use of lethal force against a vulnerable, unsuspecting and innocent victim in the course of alcohol-fuelled aggression, calls for the express and demonstrable application of the element of general deterrence as a powerful factor on sentence in this case.
However, the weight given to general deterrence should be moderately reduced in the light of my finding with respect to moral culpability.
The Crown submitted that, even where it is accepted that that there is a need to promote the rehabilitation of the offender, any such need is outweighed by the need to protect the community from the offender, punish and make the offender accountable for his actions. In this case the prospects of rehabilitation are very guarded, and the offender retains the prospect of impulsivity and violent outbursts when frustrated. In that light there is some force in the Crown's submission, but this case does not invoke the principles in Veen.
In written submissions the Crown referred to five authorities as comparable matters as follows: Paterson v R [2021] NSWCCA 273; R v McNeil (No 4) [2015] NSWSC 1198; Regina v Partington [2006] NSWSC 442; Regina v Tony Sandnes [2001] NSWCCA 385; Regina v Williams [2000] NSWCCA 136. The offender relied upon those cases as well as Doolan. The Crown additionally relied on principles in Dunn at [32] (Hoeben J (with whom Handley AJA and Smart AJ agreed)) to argue that the offence was aggravated because the offender was motivated by hatred or prejudice who targets an individual on the false belief that that individual was part of a particular group, being paedophiles, I note in this respect that case, which I have earlier mentioned, concerned property damage offences caused by fire.
I have carefully considered all of the authorities referred to by the offender and the Crown and taken them into account in the consideration of the sentence to be imposed in this matter. I have been mindful of the guidance provided by those judgments and the sentences given in them, albeit in the context of the large variety of circumstances resulting in a conviction for manslaughter. Each sentence must be determined upon its own facts and circumstances as no two cases are the same.
Colin saw the offender approaching and yelled out to the offender from his house "get off my property", to which the offender replied, "I'll fucking kill you", and Colin quickly closed his door and locked the screen door (the intimidation offence). Lee, as she returned to her residence, heard the offender say, "Come out here, you old cunt. You've got something to do with [SM] disappearing". The offender started to bang on the doors and windows of Colin's house, yelled for Colin to come out, smashed the CCTV cameras with his hands (the destroy property offence), and approached the front door and tried to rip the screen door off its hinges.
Early in the morning of the 6 May 2020, Sean awoke to noises outside his house at 2 Best Street. He heard vomiting and voices speaking. As a result of what he heard, he called 000, and told them, among other things, that he had heard someone say, "I hurt that paedo pretty bad, I think I killed him". There was no challenge at trial that this was said by the offender.
The intimidation offence is concerned with the offender approaching Colin's premises and threatening to kill him. The destroy property offence is concerned with the offender damaging CCTV cameras attached to Colin's premises.
The offences on the s 166 Certificate were committed as part of a connected sequence of events and course of conduct.
It was submitted by the Crown that it was appropriate to separately mark the seriousness of each offence with a sentence of imprisonment but that the sentences should be served entirely concurrently with the sentence for manslaughter.
As I will discuss below, in my view, the s 166 Certificate offences were committed as part of a course of conduct and that, notwithstanding the seriousness of each offence warranting a term of imprisonment, the sentences should be served concurrently with, in my view, the penalty for manslaughter.
In sentencing of the offender, I have had regard to the statutory guidelines of the maximum sentence (Muldrock at [27]) together with the facts bearing upon the objective seriousness of the offence and subjective features. In all the circumstances, the only appropriate penalty for manslaughter is fulltime incarceration.
In circumstances where the offender is to be sentenced for three discrete offences, consideration should be given to principles of totality and proportionality. Whilst there may ordinarily be a case for a marginal degree of accumulation in those circumstances to ensure that the total sentence reflects the total criminality of the discrete and individual instances of offending behaviour (Regina v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]), for reasons I have given earlier, I consider the s 166 offences should be wholly subsumed by the penalty for the substantive offence.
In all the circumstances, I shall impose an aggregate sentence pursuant to s 53A of the Sentencing Act after applying the discount for the plea of guilty and taking into account the terms of imprisonment fixed for the s 166 offences.
The offender was arrested on 6 May 2020 and has been bail refused since that date. The time in custody is solely referable to this matter. The Crown submitted the sentence to be imposed should commence on 6 May 2020. I agree.
As was stated in Nguyen v R [2021] NSWCCA 118 at [58] and [59]: 58. Section 44(1) of the Sentencing Act, relevantly, provides that when sentencing an offender to imprisonment for an offence, the Court must first set the non-parole period, being that portion of the sentence which the offender is required to serve in custody. Section 44(2) then provides: (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). 59. In Casey v R [2015] NSWCCA 142, Hoeben CJ at CL (with whom Hidden and Adams JJ agreed) stated the principles governing special circumstances as follows (at [36]-[37]): [36] Whether the ratio of the non-parole period to head sentence should be adjusted to less than the 75% prescribed by s 44(2) Crimes (Sentencing Procedure) Act 1999 involves a "discretionary finding of fact" in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]. The decision to find special circumstances is first one of fact to identify the circumstances and secondly, one of judgment to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73]. [37] The presence of circumstances which are capable of constituting special circumstances does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [38]. It follows that no error has been identified in her Honour's finding or approach to special circumstances.
In my view, special circumstances exist in this matter having regard to the complex of subjective circumstances including, as submitted by the offender: 1. the history of mental health and personality disorder issues, and their association with emotional dysregulation, impulsivity and low stress tolerance, and the need to manage these issues for an extended period of time prior to the end of the overall sentence. 2. the need (in both the interests of the community and the offender) to confront and manage the offender's alcohol abuse issues in order to, at the very least, reduce the risk of reoffending.
Those special circumstances warrant a lowering of the non-parole period: see Casey v R [2015] NSWCCA 142 at [34]-[35] (Hoeben CJ at CL (with whom Hidden and Adams JJ agreed)). However, in making this adjustment I have had regard to the principle that the ultimate constraint upon the non-parole period is the criminality involved and, where relevant, an offender's subjective circumstances, must not be reduced to a level beyond that which is "necessary to punish the offender….": Goodbun v R [2020] NSWCCA 77 at [124] (Fullerton J (with whom Bathurst CJ and Bellew J agreed)).
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you, Mr Davies, of the existence of that Act and of its application to the offence with which you have been convicted.
Mr Anthony John Davies could you please stand.
For the reasons I have given, I now make the following orders: 1. Anthony John Davies you have been convicted of the offence of manslaughter and you are convicted of the offence of intimidation with intent to cause fear of physical harm and intentionally destroy/damage property. 2. You are sentenced to an aggregate sentence of 9 years imprisonment, to date from 6 May 2020 and expiring on 5 May 2029 with a non-parole period of 6 years, expiring on 5 May 2026. 3. The indicative sentences are as follows: 1. For manslaughter, imprisonment for 9 years; 2. For intimidation with intent to cause fear of physical harm, imprisonment for 6 months; 3. For intentionally destroy/damage property, imprisonment for 6 months.
The earliest date upon which you will be eligible for release on parole is therefore 5 May 2026.

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