R v French

Supreme Court of NSW|2021-11-05|Before: Dhanji J

Remarks on sentence

The offender, Dennis Andrew French, stands to be sentenced for the manslaughter of his then partner, Cheryl Ardler ("the deceased") on 12 December 2012. He pleaded guilty to that offence and one count of wilfully disposing of the dead body of the deceased, her having died a violent death, before the coroner had had the opportunity of holding an inquest upon the dead body. The offence of manslaughter carries a maximum penalty of 25 years. [1] The latter offence is a common law offence for which the penalty is at large. The basis of the offender's liability for manslaughter is that the death was the result the offender's unlawful and dangerous act.

Facts

The following is drawn from an agreed statement of facts tendered by the Crown.
The offender and the deceased were in a relationship from about June 2012. Shortly after their relationship commenced, the deceased moved into the offender's premises in Cranebrook, NSW.
The relationship was characterised by a considerable amount of verbal and physical abuse perpetrated by the offender. This was frequently observed by visitors and neighbours at the Cranebrook premises. One neighbour reported hearing a male and female voice arguing almost every day and described both parties as intoxicated and verbally abusive. The offender was also jealous and controlling towards the deceased.
On 7 August 2012 the offender and the deceased were at home with some family members consuming alcohol and cannabis. An argument started between the offender and the deceased. He punched the deceased in the face and kicked her when she was on the ground. He then pushed her into a window, causing it to break. Police attended the incident, but the deceased stated that she did not want any action taken and no visible injuries were observed.
On another occasion while the offender and the deceased were living together the deceased told her sister that the offender had "king hit" her. The deceased was observed to have significant bruising to one of her eyes.
On 22 September 2012 the deceased attended a neighbour's house at 3:45am stating that the offender had punched her in the head. The neighbour called an ambulance and the deceased was taken to the hospital. The deceased refused to speak to police about the incident and left the hospital before receiving treatment for swelling and a laceration to her right eye.
I pause to note that no submission was made that I should not accept the deceased's report in relation to the two matters immediately above. In these circumstances, and in the context of their inclusion in an agreed statement of facts together with the presence of visible injuries, I am satisfied beyond reasonable doubt the offender assaulted the deceased on these occasions as reported by the deceased.
On 22 November 2012 the offender and the deceased were seen in a nature reserve near the Cranebrook premises. The offender was observed to punch the deceased to the face and hit her over the head with a stick. The deceased was lying in the foetal position and calling for help. Police attended later in the evening and observed that both parties were intoxicated. The deceased said that they had been drinking and arguing about their living arrangements.
On 12 December 2012, the date of the offences, the offender and the deceased were again seen arguing on a nature reserve near the Cranebrook premises. The offender followed the deceased away from the premises, pushed her to the ground and kicked her to the head and chest area. The deceased then attempted to flee into a nearby laneway. The offender pursued her, punched her in the upper body several times and then stabbed her in the face with a fork. A neighbour observed that the deceased was bleeding from her mouth and spitting out blood. An ambulance attended but the deceased did not want to go to hospital or speak to police. An anonymous call to police made at 8pm that evening described seeing a couple arguing near the offender's residence and stated that the man was not wearing a shirt and the woman was wearing a blue shirt.
At around 9:30pm that evening the offender was seen burning items of clothing in a bin in the nature reserve. He was heard yelling, "come get your shit you slut. I am burning it you gutter facebook slut". Sometime after 10pm on 12 December 2012 the offender physically assaulted the deceased by striking her one or more times, including a blow to her head which fractured her jaw in two places. As a result of this assault, the deceased died. The offender disposed of her body in a nearby creek bed.
On around 15 December 2012 the offender told a house guest that the deceased "took off". He subsequently updated his Facebook status to state that he was "single [and] ready 2 mingle" and "free as a fuckin bird". In January 2013 the offender accessed the deceased's Facebook account and sent messages falsely to give the impression that the deceased was still alive.
On 28 June 2013 the deceased's sister reported her as missing. In July 2013 the offender made a statement to police in which he said that "things didn't sort of work out" with the deceased and there was "no physical violence" in the relationship. He stated that he had last seen the deceased in November 2012 around the time of the window smashing incident, after which the deceased took her belongings and left. He stated that he had received a Facebook message from her at some point after that.
In an ERISP on 28 May 2014 the offender stated that the relationship was "good" and when they argued it was only "verbal" with "hardly any sort of physical confrontation". He said that he last saw the deceased in October 2012 when he told her to leave his residence and she did so. He recalled receiving Facebook messages from the deceased in December 2012 or January 2013 but said that he had deleted the messages. He denied ever accessing the deceased's Facebook account. He named two people whom he said had told him the deceased was still alive. When interviewed by police, both of those people denied any such conversation.
On 14 March 2016 a coronial inquest into the deceased's disappearance commenced. The offender was sworn on 26 July 2016 but claimed privilege against self-incrimination. On 19 August 2016 the Coroner found that the deceased was killed by a person or persons unknown.
In April 2017 the offender told his brother than he had "whacked" the deceased and "done her over". He stated that he had "buried her on the side of a riverbank".
On 6 May 2018 a 14-year old boy discovered the deceased's skull in a dry creek bed approximately 743 metres from the Cranebrook premises. The area was excavated and human skeletal remains were found in a shallow grave. The remains were attributed to the deceased by DNA comparison, but the cause of death could not be determined as the remains were skeletonised. A blue singlet containing several of the deceased's bones was also found.
A forensic odontologist, Professor Christopher Griffiths, examined the deceased's jawbone and noted two factures to the mandible, one on each side. He opined that the fractures occurred at or around the time of death and that they were likely caused by a single blow from the right side of the jawbone. No other fractures from around the time of death were definitively identified, although significant post-mortem damage was present. The precise cause of death could not be ascertained.
In 2018 the offender was living with a new partner in Alexandria. After being notified by police that the deceased's remains had been found, the offender's new partner asked if he had murdered the deceased. The offender laughed and later said, "they're going to pin this on me". Some time after this, he started crying while writing notes and saying, "I'm going to do this, you're not going to stop me." The notes, which were later recovered and provided to police, indicated an intention to take his own life and expressed some remorse for the pain and suffering the offender had caused others throughout his life.
On 12 April 2019 the offender was charged with the murder of the deceased.

The offender's subjective case

The following account is derived from the history given by the offender to Dr Peter Ashkar, neuropsychologist, in an interview on 22 September 2021.
The offender was born in Walgett, NSW, the youngest of seven children. He was aged 32 at the time of the offences and 41 at the date of sentence. He grew up in a volatile home environment with parents who abused alcohol and were violent towards each other. His mother, with whom he had little contact, was described as neglectful and violent towards him. The offender believed his mother may have used alcohol during her pregnancy with him, although he was never referred for testing or diagnosed with a developmental disorder. The offender's father died in 2001 and his mother in 2011, at which time they were aged in their early fifties and late forties respectively.
The offender said he "didn't go to school much" as his father moved around frequently "looking for family". He started using alcohol and cannabis regularly between the ages of 10 and 11 and left school in Year 9 with some reading and writing skills. He reported using alcohol on most days since that time and estimated that he was consuming four or five bottles of wine and smoking half an ounce of cannabis per day during his relationship with the deceased. He began using heroin in his late twenties and stopped using it several years ago. He also used methamphetamine in his thirties and stopped when he was incarcerated. He attended an alcohol detoxification program in 2014.
The offender worked consistently throughout his adult life, including seasonal work on cotton farms, fencing, welding and labouring. He reported sustaining blows to his head with a bottle and a piece of wood prior to his incarceration but could not provide any details of those injuries. He was diagnosed with diabetes in 2012 and had an operation on his hand for gouty arthritis due to inadequate management of that condition. He denied any psychiatric history, although his patient history indicated that he had experienced intermittent auditory hallucinations associated with his cannabis use.
In relation to the offences, the offender told Dr Ashkar that he did not remember hitting or punching the deceased and had no memory of why they were arguing. He reported having consumed alcohol, cannabis and methamphetamine on the day of the offences. He expressed some remorse, stating that he was "[r]eal sorry … Feel bad she passed away … I didn't mean to do it". Dr Ashkar noted that the offender was "somewhat dismissive of his behaviour" and his expressions of remorse "impressed as superficial".
The offender's general intellectual ability fell within the "low average" range (at the 10th percentile), although he had demonstrated reductions in information processing, with his attention and working memory in the "extremely low" range (at the 1st percentile).
Dr Ashkar was of the opinion the offender had an underlying organic impairment to the orbitofrontal areas of his brain which significantly limited his ability to regulate and control his emotional impulses. The origin of this impairment was described as "multifactorial", possibly arising from exposure to alcohol in utero, the impact of abuse and neglect on his neurological development, the offender's heavy substance use and his poorly controlled diabetes. This impairment also limited the offender's ability to regulate his substance abuse, which in turn exacerbated his behavioural difficulties. Dr Ashkar stated that these factors were "central to understanding his offending behaviour".
In Dr Ashkar's opinion, "most if not all" of Mr French's offending behaviour could be explained by his organic brain impairment and substance use. Dr Ashkar noted that this condition was largely irreversible and that any treatment should focus on managing the offender's substance abuse and the underlying feelings that gave rise to negative emotions. Dr Ashkar recommended that the offender engage in counselling to explore his childhood problems and the causes of his criminal involvement; that he participate in substance use treatment and relapse prevention programs; and that he engage in programs to help him deal with peer pressure.
Counsel for the offender submitted that his childhood exposure to domestic violence and substance abuse should be taken into account as a mitigating factor in accordance with what have come to be known as Bugmy principles. [3] It was submitted that his deprived background was linked directly or indirectly to his organic brain impairment in the ways described by Dr Ashkar. Counsel for the offender relied on Director of Public Prosecutions (Cth) v De La Rosa [4] and submitted that the Court would find by virtue of the offender's mental health condition that his moral culpability was reduced; that the offender is an inappropriate vehicle for general deterrence; and that the need for specific deterrence was reduced.
The role that these considerations play, and in particular the weight to be given to general deterrence, specific deterrence and the protection of the community, are to be considered in the context of the history of violence in the relationship with the deceased and the offender's criminal history more generally.

Criminal history

The Crown submitted that the offender had a record of previous convictions, including for serious personal violence offences, that would disentitle him to leniency.
In 2001 the offender was sentenced to 150 hours of community service for two charges of destroying property by fire. This occurred after an argument with his then partner, who refused to give him the keys to her car as he was intoxicated. The offender then set his partner's house and vehicle on fire.
In 2006 the offender was released on a bond for an offence of assault occasioning actual bodily harm. The offender assaulted his partner at the time by punching her in the face after accusing her of looking at other men in public.
It was submitted that these matters occurred in a similar context to the present offences and that as a result more emphasis should be placed on denunciation, retribution and personal deterrence.
The Crown also relied on convictions for offences that occurred after the deceased was killed. This included a common assault on the offender's niece in February 2013; assault occasioning actual bodily harm on his then partner in April 2017; and an offence of intimidation in relation to a former partner in September 2017.
In addition, I was informed shortly before the matter commenced today that the offender has admitted to an offence of aggravated sexual intercourse without consent, the circumstance of aggravation being that he threatened to inflict actual bodily harm with a hammer. This offence was committed on 8 July 2016. He has also admitted to an offence of detaining the same complainant without her consent for a period from 8 July 2016 to 8 August 2016, with the intention of committing the serious indictable offence of intimidation.
While I know nothing of the details of these offences, they are clearly serious offences.
The Crown submitted that the post-offence convictions are relevant and also indicated greater weight should be given to denunciation, retribution and personal deterrence. Counsel for the offender conceded that the later offences might disentitle the offender to leniency but contended that the pre-offence convictions were so remote in time that they would not. Counsel for the offender accepted that matters on the offender's record, both pre-dating and post-dating these offences might be relevant to community protection.
I do not treat the offender's criminal record as aggravating the objective gravity of the offences for which he is to be sentenced. His record disentitles him to leniency. His criminal history also informs the weight to be given to specific deterrence, retribution and community protection, as discussed further, below.

Victim impact statement

A victim impact statement ("VIS") from the deceased's sister, Ms Josephine Doris Ardler, was tendered. Ms Ardler described the shock and pain of hearing that her sister's remains had been found, and the ongoing distress caused to her whole family due to her sister's death.
The Crown sought that the VIS be taken into account in determining the punishment for the offence as an aspect of the harm done to the community. [5] I accept that this is appropriate and I take the VIS into account in this way. In doing so I do not mean to suggest that one life is more or less valuable than another life or that this offence is more or less serious as a result of the particular life lost. Rather, the life of the victim in this matter was precious and the VIS is illustrative of this. I thank Ms Ardler for preparing the VIS and sharing with the Court something of who Cheryl Ardler was and the grief she and her family have felt as a result of her loss. The Court extends its sympathies to those that knew and loved her.

The manslaughter offence

The crime of manslaughter, involving as it does, the loss of human life, is inherently serious. This is reflected in the maximum penalty of imprisonment for 25 years. In addition to acknowledging this basal fact, it is necessary to make an assessment of the objective gravity of the offending in this case. Only by doing so is it possible to fix a sentence that is proportionate to the crime and to properly have regard to, and balance, the various purposes of sentencing.
It has been observed that, although every case of manslaughter involves the felonious taking of a human life, the offence of manslaughter involves the greatest variety of circumstances affecting culpability. [6] While there are different categories of manslaughter, there is no hierarchy of seriousness. [7]
It is inherent in the offence that there was no intention to kill or to inflict really serious injury. Beyond that the precise circumstances of the assault leading to the victim's death are not known. There is sufficient information surrounding the event to mark this as a serious example of the offence of manslaughter. The fatal assault was the culmination of assaults over a number of hours. The offender is not, of course, to be sentenced for that other conduct. That conduct does, however, inform the circumstances of the present offence as one that was not isolated. It gives some context to the offence, as an offence committed by the offender who was prepared to again assault the deceased having violently assaulted her, including stabbing her with a fork leading to her bleeding from the mouth.
It can be accepted, as submitted by the offender and accepted by the Crown, that the offence was not planned or premeditated. Certainly, the offence is less serious than had it involved a premediated assault. However, beyond this, the offence was not in the category of a spontaneous and out of character event. In circumstances where there had been a history of alcohol fuelled violence, the prospect of further violence which a reasonable person in the offender's position would have appreciated involved a risk of serious injury was, sadly, predictable. In making this observation I have regard and remain aware of the limitations with respect to the offender's levels of insight as detailed in the report of Dr Ashkar.
While the precise cause of death could not be ascertained, expert opinion established the two fractures to the jaw were occasioned around the time of death. These two fractures to the jaw, which according to the expert evidence were likely caused by a single blow, clearly involved the application of some force. The degree of force involved is however difficult to determine, though it can be accepted it would have been less than would ordinarily be expected. This is due to the deceased having suffered advanced periodontal disease which had destroyed much of the supporting bone.
In relation to moral culpability, counsel for the offender relied on Bugmy principles but submitted that the Court would not find an increased need for community protection.
There was no challenge to the evidence of the offender's background as detailed in the psychological report, nor with respect to the conclusions in that report. As noted above, the neuropsychologist opined that the offender's "underlying organic impairment to [the frontal lobes of his brain] significantly limits his ability to regulate and control the emotional impulses that drive his behaviour, particularly during times of heated emotion." This factor impacts on the offender's moral culpability. I am additionally satisfied on the balance of probabilities that his impairment was causally related to the commission of the fatal assault and therefore impacts to reduce the objective gravity of the offending.
Having regard to the above factors, while noting the present matter is not a standard non-parole period offence, I would assess the objective gravity of the offending at just below the mid-range.
The offender's moral culpability more generally must be seen in the context of the offender having grown up in a "volatile home environment with parents who abused alcohol and were violent towards each other." The combination of an environment in which the offender failed to learn appropriate responses to emotionally charged situations combined with his neurological impairment must inevitably impact on the offender's moral culpability for his actions resulting in the victim's death.

Disposal of the body

As noted above this is a common law offence and the penalty is consequently at large.
As a result of the offender's actions, the deceased was killed. But more than that the offender took the additional step of disposing of the body. While that act was complete on 12 December 2012, its impact was enduring. It prevented the police and the coroner from determining the cause of death and thwarted the efforts of police and the deceased's family to locate her body for some five and a half years. The opportunity for those that knew and loved the deceased to know with certainty what had happened to her or to engage in a process of grieving and, to the extent possible, healing through a funeral service or a grave that could be visited, was denied to them, at least until the deceased's remains were located in May 2018.
Further, the disposal of the body exposed members of the public to the risk of happening upon the remains. While the finding of the deceased's remains may have brought some relief to her family, it cannot have been an easy experience for the 14-year-old boy who chanced upon them.
That said, the disposal of the body in this case was not particularly sophisticated. The offender acted on his own, and buried the deceased, it would appear shortly after the killing, some 743 metres from the Cranebrook premises. Given the unplanned nature of the killing, it follows that the disposal of the body lacked any planning other than that inherent in transporting and burying the remains. It is perhaps surprising that the body remained undiscovered for as long as it did. Nonetheless, that was the case and the period of approximately five and a half years during which the body remained undiscovered makes this a serious example of an offence of this nature.
While it is possible to reflect on the objective gravity of this particular example of the offence charged, it is more difficult, in the absence of any maximum penalty, to assimilate that objective gravity, together with other relevant factors, into a result. Clearly, the offence is less serious than the manslaughter offence. The offence has some parallels with public justice offences, although as Wilson J in R v Aljubouri [8] pointed out, the closest parallel is perhaps an offence such as tampering with evidence contrary to s 317 of the Crimes Act, with a maximum penalty of 10 years imprisonment, but even that offence does not "import the full criminality of concealing the body of a human being".

Remorse

Mr Steel on behalf of the offender submitted I would find that the offender was remorseful. On behalf of the Crown it was contended that while it was open to me to find evidence of some remorse, any such remorse was limited and as such would be given little weight.
The evidence of remorse comes primarily from a note written by the offender at a time when he was apparently contemplating suicide. It is not entirely clear when the note was written. The context appears to have been a police visit to the offender's home which he shared with his partner at the time. The police informed his partner of the discovery of the deceased's remains. This prompted her to ask the offender if he had murdered the deceased. While the agreed facts indicate the offender laughed at this suggestion, at a later point he said, "they're going to pin this on me". She then saw him write out some notes. He was crying while he did so. She subsequently provided that note to police. It reads: "I am so sorry for all the pain and [suffering] I [caused] everyone in my life all this [craziness has] really got to me this is solely my actions [it's] got nothing to do with anyone I just would like to say I love you [referring to his adult daughters from a previous relationship] and my little grandson … I will alway[s] love you all and I am truly sorry things had to end up like this I just wish I had more time in your lives I will watch over you all and I am [truly] sorry but I think it is in the interest of everyone I hurt in my life I will always think of you all and I love you all until we meet again your love dad and I will miss all my family".
The offender also indicated to Dr Ashkar, when interviewed, that he was "real sorry … Feel bad she passed away and that… I didn't mean to do it". As previously observed, Dr Ashkar commented later in his report that the offender "expressed regret and remorse for his offending behaviour but he was somewhat dismissive of his behaviour in view of his substance intoxication".
Section 21A(3)(i) of the Sentencing Act provides that the Court must take into account: (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
The offender is responsible for taking the life of another human being. Other than in the extreme case, it would be surprising if an offender did not feel some remorse for his actions and their consequences. That of itself, in the light of s 21A(3)(i), is not sufficient. The offender's note is, as was pointed out by the Crown, in very general terms and does not refer specifically to the killing of the deceased. It was however, written at a time when candour might be assumed. It was also written at a time that appears to be related to the finding of the remains of the deceased. Given the enormity of the acts for which the offender stands for sentence, it is not possible to read the apology for "all the pain and [suffering] I [caused] everyone in my life" as not encapsulating remorse for the present offences.
With respect to Dr Ashkar's assessment that the offender's remorse "impressed as superficial", I am careful not to place too much weight on this assessment, given I know nothing of what rapport was established with the offender (a 41-year-old Aboriginal man) in the context of an interview that occurred while in custody and over AVL. I mean no disrespect to the professionalism of Dr Ashkar. Equally, it is difficult to place weight on the offender's positive statement of remorse which appears in the report.
Further, while a plea of guilty may in some cases provide evidence of remorse, in the absence of any understanding of the strength of the brief of evidence, and knowing little more than that it was offered some three weeks before the offender's trial was due to commence, and accepted in satisfaction of an indictment charging murder, it is not possible to place any weight on the offender's plea as evidence of remorse.
That leaves, on the basis of the above, the note written by the offender in August 2018.
The weight to be given to that evidence is affected by a number of significant matters. First, and most significantly, having disposed of the body, the offender made no attempt to alert anyone as to its whereabouts. In the result the deceased's body remained undetected until it was found in May 2018, in what was no doubt a disturbing event for a 14-year-old boy. That does not necessarily mean the offender was not remorseful. It does however mean that he was willing to prioritise a desire to avoid prosecution over disclosing the location of the body with the corresponding risk it would provide evidence against him. The offender additionally told lies to the police in interviews in July 2013 and May 2014. He was called to give evidence at a coronial enquiry in July 2016. He successfully objected to giving evidence on the grounds of self-incrimination. While he was quite entitled to make that objection, to the extent that he was remorseful, the evidence would suggest it was not to a level that he was willing to jeopardise his prospects of evading prosecution.
The offender also made an admission to his older brother Aubrey in April 2017. This admission came in response to a direct question, "what happened to Cheryl?". While the offender responded truthfully, including as to the fact that he buried her on the side of the riverbank, there was nothing to indicate any particular remorse in this exchange.
The Crown also pointed to the offender's Facebook posts of 19 and 23 December 2012. In those posts, to which I have earlier referred, the offender indicated that he was "single" and hoping to engage in a new relationship with a "lover who [wouldn't] drive [him] crazy". This is inconsistent with any significant level of remorse felt at a time very soon after the commission of the offence.
For the purposes of sentencing, I am assessing the offender's remorse as it stands at the present time. Of course, a finding that an offender is remorseful from the time of the commission of the offence will lend weight to the degree of remorse assessed at the time of sentence. A positive finding may have a flow on effect, potentially significant, with respect to the purposes of sentencing, such as the need for specific deterrence and the potential for rehabilitation.
Returning to the present matter I am of the view that the note written by the offender in 2018 is indicative of remorse felt, and perhaps deeply felt, at that time, albeit in combination with other potential regrets. Whatever be the case, against all the other evidence, it is plain that his feelings have not been consistent in this regard. In the result I am of the view that while the offender has produced some evidence of remorse in which he has, at one point in time, accepted responsibility for his actions and acknowledged the loss caused, it can be given only limited weight.

Other matters

I have had regard to the fact that the offender has been in custody from 12 April 2019 (and indeed from 14 February 2019 as a result of other charges). Prisons in this State have been affected by the COVID-19 pandemic for a significant proportion of this time. No specific evidence was put before me as to the impact of the pandemic on the offender's custody. In this regard I note the offender is not in the category of offenders likely to keep a detailed log of the impacts on him. That the pandemic has impacted on the management of inmates in this State's gaols is widely known. While the impact has necessarily varied across gaols and across individuals, I accept the offender's experience of custody has been impacted, to some extent, as a result of restrictions arising from the pandemic.
I note the offences for sentence are of some age. No submission was made that the delay between the date of the offence in 2012 and the charging of the offender in April 2019 had any mitigatory impact. This is not surprising in the context of the delay having resulted primarily from the offender's dealing with the body. Further, insofar as delay is often relied upon as demonstrative of rehabilitation, the offender's convictions subsequent to the present offences exclude this consideration.

The pleas of guilty

It was common ground between the parties that Div 1A of Pt 3 of the Sentencing Act applies to this matter. Consequently, the discount to be applied is that provided for within the Division. [9]
The offender was charged with and committed for trial with respect to an offence of murder. After his committal for trial on 24 August 2021, the current indictment was presented, which, for the first time, included count 2. On 26 August 2021, that being a date more than 14 days prior to the trial set down for 20 September 2021, the offender pleaded guilty to both offences.
Based on the above procedural history, it was common ground that the applicable discount for the offender's plea of guilty to manslaughter was 10%. [10] It was also common ground that count 2 is a "new count offence" within the meaning of s 25B. As such the discount to be provided is that specified in s 25D(3). That subsection provides: (3) Discount variations - new count offences The discount for a guilty plea by an offender in respect of a new count offence is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (a1) a reduction of 25% in any sentence that would otherwise have been imposed, if - (i) the offender was discharged under section 68(2)(a) of the Criminal Procedure Act 1986, and (ii) an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count, (b) a reduction of 10% in any sentence that would otherwise have been imposed, if paragraph (a) or (a1) does not apply and the offender - (i) pleaded guilty at least 14 days before the first day of the trial of the offender, or (ii) complied with the pre-trial notice requirements and pleaded guilty to the offence at the first available opportunity able to be obtained by the offender, (c) a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a), (a1) or (b) does not apply.
But for the operation of s 25D(4), there is no issue the offender's plea of guilty to count 2 would fall within s 25D(3)(a) and the offender would be entitled to a discount of 25%. Section 25D(4), however, provides: (4) However, the discount in subsection (3) (a) does not apply if - (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or (b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document.
It was agreed that the applicability of s 25D(4)(a) is determinative of the issue. On behalf of the Crown it was submitted that count 2 fell within that paragraph and the discount is consequently 10% while Mr Steel submitted that it did not, with the result that the discount is 25%.
The applicability of s 25D(4)(a) turns on whether the "facts and evidence that establish the elements" of count 2 are "substantially the same as those contained in the brief of evidence or other material served on the offender" at the relevant time. Mr Steel submitted that, as the elements of count 2 are entirely new, "the facts or evidence" which go to establishing that offence are not "substantially the same" as those in the brief of evidence. The difficulty with the argument is, in my view, that the provision is concerned with the contents of the brief and what it is capable of establishing, not any similarities (or dissimilarities) in the elements. There is, at least a superficial logic to this. Where an offender's exposure to an offence, with respect to which he or she ultimately admits guilt, is revealed in the brief of evidence, the offender is sufficiently appraised of that circumstance and consequently in a position to offer a plea to the offence prior to committal. Of course, this is dependent on a capacity to recognise potential offences. Here, (as I apprehend it) while the offender had the advantage of representation, count 2 is a common law offence, rarely employed during the span of the careers of those likely to have been involved in his representation.
Mr Steel relied on the explanatory note in relation to the provision which reads: [11] "The discount of 25% will not apply in a case of an ex officio or amended indictment if the elements of the new offence are substantially the same as the elements of the offence contained in the original indictment and the penalty is the same as or less than the penalty for the offence the subject of the original indictment, or if the accused person had previously rejected an offer to plead guilty to the offence the subject of the later indictment."
Whatever the author of that note thought, that is not the effect of the provision passed by the Parliament. I respectfully agree with the observations of R A Hulme J in R v Doudar [12] where his Honour said: "Recourse to the Explanatory Note is unhelpful. … The issue is concerned with the substantial similarity (or not) of the 'facts or evidence that establish the elements', not the elements themselves."
The issue requires a finding of fact with respect to the relationship between the contents of the brief of evidence or other relevant material and the elements of the new offence. The brief of evidence was not before me. This was raised in the course of submissions. Mr Steel accepted that these being sentence proceedings, the Evidence Act does not apply. [13] The result of this is the common law applies. While this means the common law of evidence has application it also accepts that the common law approach was that sentence proceedings be conducted with an appropriate degree of informality. The present case is a good example of this. It was not necessary for me to receive the brief of evidence to determine the issue. Mr Steel very properly conceded that the inference to be drawn from the evidence in the brief was that whoever killed the deceased also disposed of the body. Given that the brief was directed to proving the offender killed the deceased, it follows that the "facts or evidence that establish" count 2 are substantially the same as those contained in the brief of evidence. Section 25D(4)(a) therefore applies with the result that the discount prescribed is 10%. [14]
I acknowledge there may be a degree of unfairness perceived given the relative obscurity of the offence charged. The provisions of Div 1A of the Sentencing Act are, however, prescriptive.

Special circumstances

The offender submitted that the Court would find special circumstances due to his need for assistance in re-integrating into the community in the ways set out by Dr Ashkar. In particular, it was submitted that both the offender and the community would benefit from him receiving assistance to abstain from drugs and alcohol in the community. It was further submitted that the Court would find special circumstances due to any accumulation between the two sentences.
Dr Ashkar noted that the offender is "not inherently antisocial" and that "most if not all his offending behaviours can be explained by his organic brain impairment and substance use". Sadly, the underlying impairment not only affects the offender's ability to control his behaviours at times of heated emotion but also his ability to regulate and control his substance use. The offender's "heavy substance use in turn further exacerbates" the difficulty he has in controlling his actions. Dr Ashkar explained that there "is little that can be done to reverse his organic brain impairment and treatment will need to focus primarily on the management and control of his substance use, and the underlying feelings and emotions that give rise to his negative mood states, to minimise his risk of re-offending." There is clearly a need for additional support in re-integrating the offender into the community justifying a finding of special circumstances.

Purposes of sentencing

As noted above, the purposes of sentencing are set out in s 3A of the Sentencing Act. Punishment, retribution, deterrence, denunciation and the need to make the offender accountable for his actions and their consequences, all have a role to play as does the rehabilitation of the offender. I am acutely aware of the harm to the victim in the untimely loss of her life, as well as to the community more generally as discussed above.

Manslaughter

The offence of manslaughter may be committed in an infinite variety of circumstances and, of all serious offences, attracts the widest range of possible sentences. [15] Ultimately, at the heart of the offence, is the fact that there has been an unlawful taking of a human life. The maximum penalty provides a legislative guidepost, to be assimilated by me together with my assessment of the objective gravity of the particular offending as well other matters relevant to sentence operating adversely or in favour of the offender.
General deterrence must play a role in the sentence I impose. Violence, in the context of a domestic relationship is all too common. The harm caused is significant, and as the facts here demonstrate, potentially catastrophic. The courts must play a role in protecting the community by imposing sentences that deter others from offending in a similar way. Denunciation and retribution are also significant in this context.
In the present case, while remaining a factor, the weight given to general deterrence should be ameliorated on the basis of the offender's mental impairment and the consequent deficits in his ability to control his actions. Given these factors, the extent to which this offender may provide an example to others, and the consequent weight to be given to general deterrence, is reduced.
I do however regard community protection and the overlapping consideration of specific deterrence as having an important role to play. The offender's history both before and after the offences demonstrates a need to protect the community from further offences he may otherwise commit in the future. Having regard to that history and the offender's repeated violence towards women, particularly those with whom he is in a relationship, it is impossible to be other than pessimistic with respect to his prospects of re-offending. I accept that, having regard to his particular difficulties, any sentence I impose will have little or no impact on the thought processes that might lead him to commit such offences in the future. The sentence however will protect the community during his incarceration and this is relevant to the determination of the head sentence and the non-parole period. To the extent that it is possible to protect the community on his release, this will be assisted by an extended period on parole as discussed in the context of special circumstances.

Disposal of the body

In relation to the disposal of the body, respect for the victim, those that would mourn her, and the importance of investigative processes that ordinarily follow death, inform the weight to be given to the various purposes of sentencing discussed above. General deterrence will ordinarily be entitled to significant weight, however in the present matter, for the reasons discussed above, that weight should be ameliorated in this case. With respect to specific deterrence, it can only be hoped that the offender does not have the occasion to offend in a similar way again, and while remaining a consideration, I do not regard specific deterrence or community protection as requiring particular weight with respect to the sentence to be imposed for this offence. Denunciation and retribution do however have a role to play as part of the punishment of the offender.

Commencement date

The offender was charged with unrelated offences and refused bail on 14 February 2019. He was then formally charged with the present offences, bail refused, on 12 April 2019. From that date he was being held in custody "in relation to" the offences for which he stands to be sentenced.
The parties initially agreed that I would date any sentence from 14 February 2019. This was on the basis that, in the event the offender was acquitted with respect to the unrelated matters, unless the sentence for this matter was to commence from the time he entered custody, he would receive no credit for the period from 14 February to 12 April 2019. Leave was, however, given to the parties to provide further written submissions on this issue. While the offender maintained that 14 February was the appropriate date, the Crown contended that I would not commence the sentence any earlier than 12 April.
Subsequent events have overtaken those submissions. As earlier indicated, the offender has pleaded guilty to those unrelated matters. It is now inevitable that he will receive a custodial sentence in relation to them. In these circumstances, it is the agreed position of the parties that I could appropriately date the sentence with respect to these matters from 14 February 2019. In doing so, I note that the result of this would be that the entire period from 14 February 2019 to the date on which the applicant is sentenced to respect to the unrelated matters will not contain any period of custody solely referable to those unrelated matters. The date on which the sentence for those unrelated matters commences will of course be a matter for the sentencing judge dealing with those matters, having regard to all the relevant circumstances.

Sentence

In relation to the disposal of the body I would, but for the utilitarian value of the plea of guilty, have imposed a sentence of 3 years. Applying a discount of 10% results in a sentence of 2 years 8 months and some days. I would round this down to 2 years and 8 months. In relation to that offence, a non-parole period of 2 years is appropriate.
The sentence I would have imposed for the offence of manslaughter prior to any separate discount for the plea of guilty is one of 10 years. To this I apply a discount of 10% for the utilitarian value of the plea. This produces a sentence of 9 years. That sentence will be cumulative on the above sentence by 1 year. As noted above, I find there are special circumstances warranting a departure from the usual proportion between the head sentence and the non-parole period. I have also had regard to the effect of cumulation. With respect to that sentence, I propose a non-parole period of 6 years commencing on 14 February 2020.
The total sentence as a result of the imposition of the above sentences will be one of 10 years with a non-parole period of 7 years.
Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) I direct that the offence be recorded on the offender's criminal history as a domestic violence offence.
As the offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [16] I ask the offender's representatives to undertake that task on the Court's behalf.

Orders

Would the offender please stand. Dennis Andrew French, you are convicted of the manslaughter of Cheryl Ardler and the unlawful disposal of her body.
For the offence of disposal of the deceased's body, I sentence you to a term of imprisonment of 2 years and 8 months with a non-parole period of 2 years commencing from 14 February 2019.
For the offence of manslaughter, I sentence you to a term of imprisonment of 9 years with a non-parole period of 6 years commencing from 14 February 2020.
The overall effective sentence I impose is 10 years imprisonment with a non-parole period of 7 years commencing from 14 February 2019 and expiring on 13 February 2029. You will be first eligible to be released on parole on 13 February 2026.

Endnotes

Crimes Act 1900 (NSW), s 24.
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4).
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep).
R v Isaacs (1997) 41 NSWLR 374 at 381.
R v Aljubouri; R v YA; R v Shaker [2019] NSWSC 180 at [50]
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25A(2).
Both parties relied on Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(2)(b)(i).
Explanatory Note, Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 (NSW).
[2020] NSWSC 1262 at [61].
S 4, Evidence Act 1995 (NSW).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(3)(b)(i).
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [22].
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A(2A)(b) and 25C.

Amendments 09 August 2022 - [97] - italicised legislation 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. Decision last updated: 09 August 2022

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