R v DURANT

SOLICITORS : Crown: DPP of NSW Prisoner: Legal Aid Commission of NSW

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT 1 HULME J: This is yet another tragedy born of abuse of a child, parental neglect and illegal drugs. The consequence is one man dead and a 26 year old mother of four children having to spend many years of her life in prison (although she would seem not to have been caring for them in any event). One cannot preside in the criminal courts of this state for long without reaching the conclusion that many children should be removed from their parents very early. Allowing them to remain in an addiction ridden household only maintains the problem "from generation unto generation". 2 In saying that I do not ignore the difficulty there would be in deciding who should go and who should stay. However it is a damming indictment of our society that we do not do far more to protect those too young to protect themselves. 3 On 8 December 2006 a jury convicted the Prisoner of murder. When arraigned, she had pleaded guilty to manslaughter but the Crown would not accept the plea in discharge of the indictment and a trial proceeded. 4 These remarks are directed to the topic of sentence. I should acknowledge at the outset that my findings must be consistent with the verdict of the jury and that before I can use adversely to the Prisoner matters going to her guilt or criminality I must be satisfied of them beyond reasonable doubt, but I need only be satisfied of matters in mitigation on the balance of probability. The category into which some of the matters referred to below under the heading "Psychiatric Evidence" falls may not be clear and when I come to that area I shall so far as possible indicate my degree of confidence with some particularity. 5 The victim of the offence was one David Allen Bryant. Some 2 or 3 months prior to his death, he had allowed the Prisoner and later some other people including the Prisoner's sister Melinda and others whom, because they were under 18 at the time, I shall refer to as L, C and K to live in a one bedroom flat in which he resided, the "guests" bunking down on the lounge or floor of the living/dining room. Why Mr Bryant permitted this use of his premises is not clear for he would seem not to have had any interest in drugs or particular interest in the persons mentioned. 6 At somewhere around 3 am on the morning of 15 January 2005 the Prisoner, Melinda, L, and K returned to the flat. The Prisoner had forgotten her key and woke the deceased in order that he might let the group in. Once inside, the Prisoner told Mr Bryant to go back to bed which he did and went back to sleep. Some time later the Prisoner procured some of the group to make a noise in order to wake the deceased and induce him to move from his recumbent position. This occurred and when his head had risen to at least some extent she struck it once behind the left ear with a medium sized sledge hammer. The result was a closed head injury from which he died. 7 The origin of the offence lies in the fact that the Prisoner seems to have been drugged and sexually assaulted in some way when she was about 6. The evidence as to this earlier incident is scant but sufficient to lead me to the conclusion that it probably occurred. A neighbour of the time gave evidence of a male, who died in late 1989 at about the time of the Newcastle earthquake, who spent a deal of time providing gifts, lollies and books to a group of children including the Prisoner. Another sister of the Prisoner gave evidence of an occasion at about that time when the Prisoner went missing, eventually came home, just stood there, would not eat dinner, and just went to bed and that after the incident the Prisoner complained of a sore vagina and commenced bed-wetting. Statements of the Prisoner to police, and on the night of the death of Mr Bryant, to others who were there indicate that she retained little recollection of the occurrence. She said she had some memory of it at about age 15 and some months later during the course of some sexual activity with her boyfriend. Even in her latest account of the incident, she does not know of the extent of any assault although in her ERISP she said "he didn't put his dick in me". 8 1987 records from the Department of Community Services, tendered during the sentencing proceedings, though not during the trial, show that there was some suspicion then that the male referred to had assaulted the Prisoner. 9 One day at the home of the deceased and about 2 to 3 weeks before his death, the Prisoner observed on a wall of the premises a photograph, taken some 15 years earlier of the deceased his wife and children. It occurred to her that the Prisoner was the person who had kidnapped, drugged and assaulted her when she was 6. She found confirmation of this belief in a number of events that subsequently occurred, such as Mr Bryant's movement of photos and placing them in certain positions and the way he looked at her. That confirmation can only be described as irrational and indeed I am satisfied that if she was sexually assaulted, it was not by the deceased. 10 The 15th January 2005 was a Saturday. On the preceding Tuesday the Prisoner, by then long addicted to drugs including cannabis, amphetamines including ice and heroin was admitted to hospital following excessive consumption of Datura, a drug which she and others staying in the deceased's house had extracted from a local plant. She was released from hospital at about 6pm on Thursday 13th January, proceeding shortly thereafter to acquire some speed. There is little other evidence as to what happened on Thursday but on the Friday according to what the Prisoner told Dr Allnut, she woke up on a lounge in the deceased's premises, went to a pub, had some Jim Beam, at the pub or soon after had a gram of amphetamine, visited a couple of relatives, smoking cannabis at one of these places, returned to the victim's flat early on the Saturday and there ingested speed on 2 further occasions. 11 Although there are some differences in detail, the substance of the Prisoner's account is corroborated by her sister Melinda and K. 12 Between the time of returning to the deceased's residence and her attack on him, the Prisoner gave to Melinda, L and K an account of what had happened to her at age 6. It seems that this was the first time she had discussed those events. In her account to Dr Allnutt, the Prisoner said that what then happened included drug taking, sitting around a table, going to the bathroom and more drug taking, going outside the front door, picking up a knife and picking up the hammer. It was after this that the Prisoner induced the waking of the deceased. 13 In her ERISP, which commenced in the early hours of 20 January 2005, and soon after she was arrested, the Prisoner said that she had done what she did because it had to be done, she didn't want the deceased to live anymore, she knew what she was doing, that she had said she was going to kill him, and that the "rock spider cunt needs to die now". She recounted other statements she had made around the table including:- "I told K, I said, for what he's done to me when I was a kid he's gunna pay for it now. And, and I'm, gunna take some of his stuff so we can get some money and that." 14 She explained the waking of the deceased so that he would know what was going to happen to him and "I wanted him to know that it was me, then just to see blackness, to know nothing." Elsewhere in the ERISP she said that she was fully in control and knew what she was doing. The ERISP continues:- "… I don't know the way to put how I was feeling. Q And this was… A Cause there was too much hurt in my life and… Q This is a good opportunity to tell us what you were feeling and, and how you were feeling and why you did things. If you want to tell us about your hurt… your hurting and, this is a good time. A I just had so much anger in, like, from 9 months old my father has bashed me, and then the first bloke that takes me away he does stuff to me that, to make me not remember what he had done. And then, then after that my fuckin mother hasn't been the same with me, always just, You're an evil cunt, you're a cunt of a kid. You know, fuckin and then when I was 12, 6, 6 years later, and fuckin her (me) boyfriend molested me then when I was 12 and you know in my own bed and I got kicked out of home. Living in the streets. 15 Immediately following the blow, noises were heard emanating from the deceased. The Prisoner, desirous of her younger sister not hearing these or seeing things, told her to get outside but instructed K to stay inside and then gave a number of instructions to him and L directed to the removal of a play-station, a stereo and some toy or model trucks from the unit in order that they could be exchanged for more speed. All four then left driving away in Melinda's car. The Prisoner then remembered that some fingerprints would have been left on a Foxtel set-top box which had been the subject of attempts to remove and also realised that the deceased's wallet had been left at the flat. At what seems to be the instigation of the Prisoner, the vehicle was turned around in order that these matters could be remedied, the deceased's flat was re - entered, and afterwards the four again drove off. 16 She told Dr Allnutt, a psychiatrist who interviewed her in connection with her trial, that she also realised that she had to pick up the weapon as it was evidence and she had to get rid of it. 17 When arraigned before Barr J and at her trial, the Prisoner pleaded not guilty of murder but guilty of manslaughter. It seems to have been understood at all relevant times by all concerned that that was on the grounds of diminished responsibility.

Psychiatric Evidence 18 At the Prisoner's trial evidence was called from Dr Allnutt and another psychiatrist Professor Quadrio on the issue of substantial impairment by abnormality of mind. Reports from Dr Allnutt of 15 June 2006 and 29 February 2007 and one from Professor Quadrio of 22 February 2007 were tendered during the sentencing proceedings. 19 Both psychiatrists gave evidence that at the time of the offence, the Prisoner was suffering from an abnormality of mind arising from an underlying condition and that that abnormality impaired her capacity in one or more respects. The psychiatrists did not, however, agree on all matters.

20 Professor Quadrio said that by the time the Prisoner became a young adult she had a severe personality disorder which was borderline and antisocial although predominantly post-traumatic, and also suffered from a delusional illness, adding that at the time of her report, the Prisoner had a primary paranoid psychotic illness. Professor Quadrio also said that the amount of drugs the Accused had ingested rendered her vulnerable to having psychiatric symptoms develop, even if she had not had a prior vulnerable disorganised personality.

21 In the Professor's view the Prisoner's capacity to understand events, was distorted by the delusional belief that the deceased was her abductor when aged 6 and the Prisoner's capacity to judge whether her actions were right or wrong was substantially impaired because she understood in a delusional way that what she was doing was retaliating against the man who had raped her when she was six years old.

22 Asked for her opinion in relation to whether the Accused's condition substantially impaired her capacity to control herself at the time that she struck the deceased, Professor Quadrio said that the Prisoner's capacity to control herself was impaired in consequence of her fundamental personality disorganisation, people like that being very impulsive and poorly contained to which was added that the Prisoner had been taking substances that also disinhibit, and the fact that the Prisoner was very agitated about the deceased and suffering from paranoid delusional thinking, itself a phenomenon that tends to drive persons to feel compelled to act on a delusion. Although a comparison of question and answer suggests that at the time Professor Quadrio did not embrace the word "substantially", a full reading of what she said leads me to the conclusion that she thought all the impairments of capacity were of that degree.

23 In her report of February 2007, Professor Quadrio observed, inter alia:- "There is no clinical evidence now that Ms Durant has any psychotic disturbance. Being free of illicit drugs has done an enormous amount to alter her mental state. … It would appear now that Ms Durant's behaviour and mental state at the time of the offence was largely dictated by the effects of drugs." 24 Dr Allnutt concluded that the Prisoner manifested an abnormality of mind, viz. a borderline personality disorder and, on the assumption as I have found that the deceased did not sexually interfere with the Prisoner, also a delusional belief, extending to a disorder, that the deceased was her abuser at age 6 and that these disorders reflected an underlying condition. At one time he described the underlying condition as a chronic psychotic disorder and at another said that she met the criteria for a diagnosis of a substance abuse and dependence disorder.

25 He opined that the although the Prisoner's disease process was triggered by drugs, she had a vulnerability independent of the drugs and her delusional belief later became independent of the drugs that contributed to its origin.

26 Dr Allnutt did not believe the abnormality of mind impaired the Prisoner's capacity to understand events. He thought she maintained ability to control her actions, although his preliminary view had been to the contrary, and any loss of control was due to the drugs which disinhibited her. 27 He took the view that the abnormality of mind was of a severity that to a degree the Prisoner's capacity to judge right from wrong was impaired. At one time he described this degree as "significant" although in a report to the Crown he had used the terms "substantial" and I am disposed to proceed on the basis that his view was that the incapacity reached this level.

28 Considerations of sentencing and the nature of the issues fought at the trial means that I should if possible make a decision, consistent with the verdict of the jury, in respect of at least a number of the issues canvassed in the psychiatric evidence. Of course, the fact that the jury convicted the Prisoner of murder limits how far I must go. Given the psychiatrists' unanimity of view on these matters, I accept that the Prisoner had an abnormality of mind arising from an underlying condition. That condition included at least a borderline personality disorder and a substance abuse and dependence disorder. The Prisoner suffered from a delusion that the deceased had been her abuser at age 6. I am persuaded of these matters beyond reasonable doubt. 29 I am also persuaded to that standard that at the time of the offence the Prisoner was suffering from a psychotic disorder or illness. I am not persuaded that that was not principally due to the effect of, indeed intoxication by, drugs. Indeed I think the probabilities are that it was. I take the same view in respect of the delusion. A belief once formed, does not automatically disappear when the factors that led to it cease to operate or are not remembered. 30 I should also address the issues of the extent of any impairment of the Prisoner's capacity to understand events, to judge whether her actions were right or wrong, and to control herself. In this connection, it seems to me important to bear in mind the extent to which the Prisoner engaged in or demonstrated understanding of events, decision making and the giving of commands shortly before and after her striking of the deceased. While I do not suggest her reasoning or powers in that regard were perfect, there was a deal of logic in what she did. She wanted the deceased woken so she arranged for this to occur; she wanted to take some of his possessions with a view to obtaining money for them; she did not want her sister to experience too deeply some of the events so she gave instructions in that regard; soon after leaving the premises, she thought about the deceased's wallet and fingerprints; she made a choice to use the sledge hammer and not a knife; either before or immediately after the deceased was struck, she decided to leave. 31 A number of answers in the Prisoner's ERISP indicate that the Prisoner's striking of the deceased was a considered and purposeful act and that she had the intention of killing him. 32 Of course, the terms of s23A of the Crimes Act contemplate that there is no necessary inconsistency between deliberate actions accompanied by the intent requisite for murder and the incapacities of which that section speaks. Furthermore the psychiatric evidence in the case indicated that many activities which form a normal part of everyday life are not inconsistent with incapacities of the natures referred to. That I can accept. However, questions of degree and connection seem to me to arise. The matters referred to show that there was no incapacity to do what she perceived to be in her immediate interest at the time. The Prisoner's failure - I use that word advisedly - in the hour or so prior to her striking the deceased was in her perception of, or regard for, the likely consequences to her of what she proposed to do, of her long term interests, and of the rights of the deceased. 33 In light of the matters to which I have referred and Dr Allnutt's views, I am persuaded that the abnormality of mind from which the Prisoner suffered did not substantially impair her capacity to understand events or to control her actions. Those matters also seem to me to argue very strongly for the view that an incapacity the Prisoner had to judge right from wrong was also not substantial but at the end of the day, I think I should defer to the common opinion of the psychiatrists that it was (though not so substantial as to warrant liability for murder being reduced to manslaughter). 34 What I regard as by far the dominant cause of the delusion the Prisoner had that it was the deceased who had assaulted her when she was about 6, and of the inspiration of her decision to kill him in retribution were the drugs - at least some of which are notoriously calculated to be mind altering - to which she had become addicted. I was disposed to that view by the evidence in the trial and am confirmed in it by the opinion to which Professor Quadrio now seems to have come. And, although I do not think it necessary to go so far, I would add that I hold this view beyond reasonable doubt. 35 It is appropriate to record also that I am satisfied beyond reasonable doubt that a major contributing cause to the Prisoner's attack on the deceased were the drugs she had taken that day and particularly in the hour or so before the deceased was hit. After all she had the personality problem for years, the delusion for up to 2 weeks and it would seem that it was only shortly before the blow that she decided to attack him.

Subjective Matters 36 I should say more about the Prisoner's past. Documents from the Department of Community Services indicate that her father left the family by the time she was 7 and are indicative of appreciable domestic violence (between her mother and other adults) and neglect between 1985 and 1993. 37 The Prisoner's mother commenced another relationship with someone called Wayne and commenced to live with that person when the Prisoner was about 11. He sexually assaulted the Prisoner a year later and was apparently sentenced to 2 years periodic detention for doing so. 38 In an Application to the Childrens' Court that seems to have been made in April 1993, it is recorded that there had been 13 notifications to the Department concerning the family since 1985, most relating to alcohol and drug abuse by the Prisoner's mother, neglect of the children and domestic violence. 39 In May 1993, the Prisoner's mother gave written undertakings to the Department, including undertakings not to abuse alcohol or drugs when the children were in her care, to ensure the children had an appropriate carer should she go out and to make arrangements for the children should she be sentenced to jail on assault charges. The undertakings were stated to be made as an alternative to Court action and arose out of an incident which led to the mother being described as "apparently too intoxicated and possibly too affected by drugs to have the care of children". The children were removed and placed in care for a time. By July 1993, the Prisoner was telling the Department that she wanted to leave home. An assessment report of August 1993 described the family as "dysfunctional" although also saying that the natural mother and children were "extremely close and very bonded to each other". How the latter statement can be reconciled with the Prisoner's attitude in July is not apparent. 40 By February 1994, the Prisoner and her sister Melinda were living with their father, who would seem to have had very limited association with them since he left their mother. They were considered at risk if they returned to their mother and grandmother who both drank to excess, the latter becoming violent in that situation. According to what the Prisoner told a DOCS worker at the time, Wayne would also stay at the grandmother's premises, leading the Prisoner to take a carving knife into her bedroom, jamming it into the door so no-one could get in. 41 In a DOCS report of 19 September 1994, it is recorded, apparently on the word of the Prisoner, that she "had to hold her mother's arms when she injected up". 42 There is some suggestion of the Prisoner having committed criminal offences while a child but not evidence upon which one could come to a positive conclusion in that regard. An Antecedents Report has as its first entries an instance of common assault and maliciously destroy or damage property, in respect of which the Prisoner was charged in June 2003. Other offences recorded include 2 further instances of assault, 2 of stealing, and 3 of driving a conveyance taken without the consent of the owner. 43 It is also necessary to note that the Prisoner was on conditional liberty at the time of the murder, having been granted bail on two or three occasions in respect of a number of matters for which she had been charged. The first of these was on 9 November 2004 in respect of a charge of taking and driving a conveyance. (On 14 January 2005 she was convicted in her absence of this charge so it may be that bail had ceased to operate.) The second was on 4 January 2005 when she was charged with two offences of stealing from a person, two of taking and driving a conveyance and one of making a false instrument. The third occasion was on 10 or 11 January 2005 when she was charged with two counts of common assault. As has been said, Mr Bryant was killed on 15 January 2005. 44 A Pre-sentence Report records that the Prisoner first came to the attention of the Probation and Parole Service in October 2003. The report records that she then failed to attend on some 7 occasions when under some obligation to do so. According to the report the Prisoner attained only a year 7 level of education due to her "wild" behaviour which also led to her being suspended form school on multiple occasions. She has never worked. 45 She told the author of the report that her drug use commenced at about age 12, and was introduced to heroin in the following year by a friend of her mother's. She claimed that she was using only amphetamines at the commencement of her relationship, used that drug only occasionally during it and not at all while pregnant. The author of the report added, "Previous service records nevertheless conflict with the information provided as to the offender's level of drug use during the course of her intimate relationship". Regrettably, the report gives no details. 46 The report indicates that for some time before she was 15 the Prisoner lived on the streets. At that age she established a relationship with a man that was productive of 4 children aged from 5 to 9 years of age. The relationship broke down in 2003, although contact has continued since the Prisoner's arrest. The children remained with their father. The Prisoner claimed that to cope with the breakdown and the death of a close friend she resorted to poly-substance abuse. 47 The Pre-sentence report also asserts that during the period of the Prisoner's remand she has incurred 12 institutional misconduct charges. These include 4 instances of assault, 2 described as "alter/damage/ remove" a smoking sign (which may have consisted of smoking in a non-smoking area), 1 of disobeying a direction - the charge was proven but dismissed). 48 Other misconduct was the failure of urine tests in September and October 2005 and one occasion of refusal or failure to supply urine in November 2005. There may have been a fourth occasion on 18 October in respect of which the report notes that un-prescribed drugs were detected in the Prisoner's urine. However the report also contains a notation "possibly in error" so I shall disregard this incident. On 12 December 2006 the Prisoner refused to supply urine. 49 In respect of that last incident, it is appropriate to note that the Prisoner's conviction on the murder charge occurred on 8 December 2006 and Corrective Services records note that she was very distressed following the verdict. In these circumstances, particularly having regard to the fact that it was almost 12 months previously that there had last been a problem with the supply of urine, and that the Prisoner's incarceration must be for an extended period, I do not think I should regard the incident of 12 December 2006 as arguing in any significant way against the likelihood of rehabilitation. It may well be her refusal was not because she feared the result of a test but simply a reaction to the jury's verdict. 50 That said, the Prisoner's record for offences in custody between arrest and sentence is among the worst, and possibly the worst, I have seen. 51 It should also be mentioned that the Prisoner has completed the "Getting SMART" program at Mulawa Correctional Centre - the program deals with drug abuse and life skills - and also wrote a letter to the family of Mr Bryant. In that letter she expressed in some detail her apologies, regret and remorse for the pain, suffering and grief she had caused. That expression of remorse is echoed in the 2007 psychiatrists' reports both of which also record that the Prisoner no longer suffers from the delusion as to the involvement of the deceased in the early assault upon her.

Statutory Provisions 52 The statutory provisions principally relevant to the sentencing of the Prisoner are s19A of the Crimes Act and ss 21A, 54A and 54B of the Crimes (Sentencing Procedure) Act. The first of these provides a maximum penalty for an offence of murder of life imprisonment. Sections 54A and 54B, so far as is presently relevant, provide:- 54A(1)For the purposes of this Division, the standard non parole period for an offence is the non parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non parole period represents the non parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B(2)When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in Section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account." 53 The standard non-parole period for murder of the nature of that committed by the Prisoner is 20 years. 54 Subject to some qualifications expressed in the section, and others which have been held to necessarily flow from some of the topics dealt with, Section 21A requires the court to take into account a series of what are referred to as aggravating factors and mitigating factors. So far as aggravating factors are concerned, I have considered all of these although I do not find it necessary to refer to them seriatim. I do not regard any as aggravating the Prisoner's criminality in this case except that her offence was committed whilst on conditional liberty. The significance of that tends to be reduced by reason of the fact that her offence was relatively unpremeditated and of an entirely different character than the offences for which she was on bail but any such reduction is at least offset by the fact of the number of offences for which she was on bail, by the fact that there was more than one occasion when she was granted bail and by the fact that she seems to have made no, or at most one, effort to deal with her drug addiction after being granted bail and, as I find to be an inevitable conclusion, that her drug addiction, untreated, meant the commission of further offences while on bail inevitable. 55 Many of the mitigating factors are also of no significance although attention is required to the factors referred to in sub-paragraphs (e) to (l). These sub-paragraphs refer to the following:- (e) The offender does not have any record (or any significant record) of previous convictions. (f) The offender was a person of good character. (g) The offender is unlikely to re-offend. (h) The offender has good prospects of rehabilitation whether by reason of the offender's age or otherwise. (i) The offender has shown remorse for the offence… (j) The offender was not fully aware of the consequences of his or her actions because of the offender's age of any disability. (k) A plea of guilty by the offender (as provided by Section 22). (l) The degree of pre-trial disclosure of the defence (as provided by Section 22A). 56 The Prisoner does not fall within paragraphs (e) or (f), 57 Given the Prisoner's history to which I have referred, I am unable to conclude that she is unlikely to re-offend in some way or other: So much depends on her ability to stay away from illegal drugs, a view which finds expression in the 2007 psychiatric reports but which I would have come to in any event. If she is not to re-offend she will also have to address and overcome her tendency, which would seem to have existed as long ago as her schooldays to do whatever she wants, regardless of rules, the interests of others, or the law. However, the nature of murder is such that I think her unlikely to re-offend in that serious way. 58 In her latest report Professor Quadrio expressed the view that "the prospects for Ms Durant being able to sustain her current rehabilitation are very good". However, for the reasons adverted to in the immediately preceding paragraph I am unable to be so optimistic or to conclude that the Prisoner has good prospects of rehabilitation. Nevertheless I should also say that the Prisoner's apparent abstinence from drugs in prison since November 2005 and a willingness to address her problems, also referred to in the psychiatrists' reports, leads me to the view that those prospects are at least reasonable. 59 The Prisoner has shown remorse which I accept is genuine. Turning to paragraph (j), I am satisfied that the Prisoner was fully aware of what the consequences of her actions would be on the deceased. I would be equally confident that she did not fully appreciate what the consequences would be to her. 60 I do not regard the Prisoner's plea of guilty to manslaughter as falling within the precise terms of Section 22. More doubtful is whether her plea falls within Section 22A, as a pre-trial disclosure made for the purposes of the trial. So far as is relevant these sections provide:- "22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) The fact that the offender has pleaded guilty. (b) When the offender pleaded guilty or indicated an intention to plead guilty. And may accordingly impose a lesser penalty than it would otherwise have imposed. 22A(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence has made pre-trial disclosures for the purposes of the trial. 61 Nevertheless, both in her ERISP and in her plea to manslaughter, the Prisoner did remove from the area of contention a number of matters to which the Crown might otherwise have had to apply additional resources. What she did in these respects falls within the spirit of the sections mentioned and I do not regard any difference between this and strict compliance with the letter as of significance. Indeed the Crown Prosecutor conceded that the defence could not, consistently with maintaining the defence of substantial impairment, have done more than was done. While I do not think it necessary to quantify the allowance I make in this regard - it is appreciably above the bottom of the 10-25% range. 62 I am required to make an assessment of the objective seriousness of the Prisoner's offence. Although to those uninitiated in the criminal law, that may seem strange, given that, by definition, all murders involve the death of their victim, it is something sentencing requires. The conclusion at which I have arrived is that the Prisoner's offence fell below the middle of the range. Factors which lead me to this conclusion include the fact that although the offence was deliberate, there was no significant premeditation, that the Prisoner's motivation was to redress a serious wrong she perceived the deceased had done to her - see R v Swan [2006] NSWCCA 47 at [61] -and that at the time she was suffering from an abnormality of mind that substantially impaired her ability to judge right from wrong. A significant component of that abnormality was attributable to conditions to which she was subjected as a child and for which she was in no wise responsible. Even in so far as the abnormality was attributable to drug use, those conditions were a significant contributor to that use. 63 I am not unconscious of factors operating in the other direction. One is that the Prisoner clearly intended to kill. Although submissions on behalf of the Prisoner asserted that it was common ground that the Prisoner's intention did not go so far, and at one time I was disposed to agree, further consideration of her ERISP in my view leads to no other conclusion that the one I have stated. A second factor, though this is perhaps more a qualification of the significance of the delusion under which she suffered, is that her perception of what the deceased had done to her was caused in no small measure by her decision to pursue a lifestyle of drug use. 64 A third is, as I have said, that the offence was in part the product of the voluntary ingestion of drugs, probably amphetamines, in the hour or so before it occurred. It is not a necessary or even normal incident for persons with personality disorders with a real or imagined belief that they have been imposed upon 20 years earlier to respond by hitting the offender with a sledgehammer or other lethal weapon. Nevertheless my conclusion as to the objective seriousness of the offence is as I have stated it.

Significance of Other Factors 65 I should say something more about the significance of the Prisoner's drug use. In R v Henry (1999) 46 NSWLR 346 the Court of Criminal Appeal laid down that in a case of armed robbery, as a general proposition drug addiction was not a mitigating factor. Most of the considerations that led the Court to that conclusion apply to other offences including murder. The Court recognised that there may be unusual circumstances where that general rule should not apply giving as possible examples where addiction is not the result of free choice. It was submitted that the general rule should not apply to the Prisoner upon the basis that her addiction commenced when she was too young to make a real choice, particularly when regard is had to the circumstances of her upbringing to that time, circumstances that included a dysfunctional home, a mother addicted to drugs and alcohol, abuse by her mother's boyfriend, a preference by her mother to retain the boyfriend despite what he had done and the Prisoner's fears and the Prisoner's resort to the streets. 66 A difficulty with the submission is that the Prisoner's assertions that she gave up or largely gave up drugs when pregnant (as she was at least 4 times) and returned to drugs to cope with the breakdown of her relationship and the death of a close friend. Before this resumption she must have had a fair idea from watching her mother and from the early period of her own addiction of the damage that drugs could cause and when regard is had to the remarks in R v Henry it seems to me impossible to conclude other than that there must have been an appreciable degree of choice in her addiction from 2003 onwards. It is a reasonable inference that some of her criminal convictions were in response to a need for drugs but be that as it may, she would seem to have taken virtually no steps to deal with her addiction after 2003. 67 I do not forget that the author of the Pre-Sentence Report disagreed with the Prisoner's account of the impact of pregnancy on her habit and that, as I have indicated, the evidence does not permit a conclusion as to what actually occurred. However, the topic of drug addiction or, perhaps more accurately, some of its consequences, is relied on as a matter of mitigation and the onus is thus on the Prisoner. 68 It is appropriate to acknowledge also that the Prisoner's abnormality of mind means that deterrence should be given lesser weight in the determination of a proper sentence than in the case of an offender not so afflicted - see R v Apps [2006] NSWCCA 290 at [53]. This is clearly so so far as the abnormality was not attributable to drugs but even in respect of the delusional aspect of the abnormality where I have concluded drugs had a substantial part to play, it would not be appropriate to deny that the Prisoner's upbringing was to some degree a contributing factor. 69 The conditions of the Prisoner's upbringing also argue in favour of some leniency. She can hardly be blamed for not having reasonable training in dealing with life's stresses. On the other hand to some significant degree those conditions are reflected in the abnormality of mind, including her delusional state, which I have already indicated I regard as lessening her criminality. Care must be exercised so as to ensure that the objective criminality of her offending, for which she has to accept most responsibility, is given proper weight. 70 At one stage it was asserted that the Prisoner was serving her sentence in a low form of protection. However, there is so little information on this topic that I do not make any allowance for it.

Special Circumstances 71 It was submitted that I should find special circumstances in that, when the Prisoner returns to the community, she is likely to need a lengthy period of supervised rehabilitation and counselling to deal with her past substance abuse, her traumatic and dysfunctional childhood and to readjust to living in the community. Reliance was also placed on the fact that this is the first occasion when the Prisoner has had to serve a custodial sentence. 72 Putting to one side the matter last mentioned I do not regard the matters mentioned as constituting special circumstances. Her offence requires that her non-parole period be lengthy and, there being no reason to reduce the balance of her sentence below the usual one third of the non-parole period (subject to some rounding), it follows that that balance of term will also be lengthy. I accept that some period of supervision after release is desirable but if the Prisoner has not progressed a long way towards recovery from her drug addiction and childhood before the end of her non-parole period, lengthening the balance of term beyond one-third is unlikely to assist her. 73 The fact that a sentence involves an offender going into full time custody for the first time is often regarded as a special circumstance. However the non-parole period I propose to fix is the lowest that I think appropriate for the Prisoner's offence. In these circumstances, it would not be right to increase the balance of the sentence at the expense of the non-parole period. Thus I do not propose to make a finding of special circumstances. I would also indicate that even if I did, I would not alter the proportion between non-parole and balance of term. 74 The evidence is not clear as to whether the Prisoner was arrested just before of just after midnight on 19 January 2005. I propose to proceed on the assumption that it was just before.

Conclusions 75 I was referred to the decisions in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 and R v AJP [2004] NSWCCA 434; [2004] 150 A Crim R 575. I do not regard it as necessary, in these already lengthy remarks, to set out what the Court of Criminal Appeal said in those cases. I am however conscious of the matters there stated. 76 I sentence the Prisoner to imprisonment for a non-parole period of 13 years and 6 months commencing on 19 January 2005 and to a further term of 4 years and 5 months. I record as the date upon which it appears that the Prisoner will become eligible for parole, 19 July 2018 .

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.