R v Hadchiti

The facts on sentence

1. The facts upon which the offender is to be sentenced are set out in a two-page document headed "Agreed Facts" signed by the Deputy Senior Crown Prosecutor who appeared on behalf of the Crown on sentence. As will become apparent, the facts were not entirely agreed upon as between the Crown and the offender. I shall return to the question of how the discrete factual dispute is to be resolved after setting out the "agreed" facts.
2. The document headed "Agreed Facts" is in these terms: "The deceased, Mr Billy Mack, was the new boyfriend of the offender's sister, Marian Roumanos. Ms Roumanos was separated from the father of her two children and it is clear that her parents, George and Sonia Hadchiti, were displeased about this situation. On 30 October 2011, Ms Roumanos' two young children were at the Hadchiti family home on a semi-rural block in Londonderry on the outskirts of south-western Sydney. The deceased drove there, with Ms Roumanos and his 14 year old niece, [TB], to pick up the children, arriving at about 9:10pm. He and Ms Roumanos had been consuming ice (his blood at post-mortem was found to contain alprazolam (Xanax), delta-9-THC acid, diazepam, nordiazapam, methadone and methylamphetamine. Dr William Allender's report said the level of methylamphetamine was above the "therapeutic" range and "may have contributed to increased aggressive and/or risk-taking behaviour", so Ms Roumanos did not wish her family to see her. Ms Roumanos and [TB] remained outside the Hadchiti premises. The deceased, then aged 26, drove into the yard and walked through the gate and toward the front of the Hadchiti house. The offender was at the front of the yard peeling an apple with a knife when the deceased walked past him. The offender's mother, Sonia Hadchiti, then aged 47, was on the steps of the house as the deceased approached her and started yelling about "the kids". The deceased then grabbed Mrs Hadchiti by the front of her shirt (which was torn and later found to have the deceased's DNA on it), and she fell to the ground. Mrs Hadchiti later complained of having been kicked. The offender, then aged 20, approached the deceased, who turned and swung at him, stabbing the offender in the arm. The wound later required suturing. The offender, who was still holding a knife, then tackled the deceased. The deceased's head, shoulder and back came into contact with the rusted frame of a metal chair which was in the yard on a number of occasions. How that occurred remains a matter of dispute between the parties. The Crown's case is that the offender struck the deceased with the chair frame. This is based not only on the force likely to be required to inflict the injuries to the head, but also on the fact that DNA consistent with that of the offender was found on the bottoms of both of the legs on the front of the chair frame. The offender however maintains that the deceased struck the chair frame when he was tackled to the ground and that, "We did get up at least twice and I did tackle him back down…there was chairs around" (trial transcript at p 478). During the struggle the offender's knife struck the deceased in the chest, causing a stab wound which penetrated the right lung. The offender continued to struggle with the deceased and, while he was in a position on top of the deceased, gained control of the knife that he (the deceased) had been holding. The offender cut the deceased's throat with the knife, inflicting a long and deep, gaping wound which caused extensive lethal injury. At 9:17pm, the offender's mother made a 000 call asking for the police and saying: "He had a knife in his hand please hurry he attacked me". Upon arrival of police and ambulance the deceased was clearly dead. Two knives were found at the scene, both bearing the DNA of the offender and the deceased. At post-mortem, the deceased was found to have suffered the following injuries: a 70mm x 80mm complex area of laceration in the right temporoparietal region of the scalp, the majority extending down to the bone and localised surrounding abrasion; associated with the forgoing injury, there was an area of 'micro-fracturing' measuring 10mm x 20mm with slight black discolouration of the surface of the skull. In one area there was minimal depression of the outer table of the skull; a 43mm laceration in the occipital region of the scalp, no fracturing, only minimal bleeding; 13 other injuries to the head in the nature of lacerations, abrasions and scratch marks over the head and face; the lethal wound was a 160mm x 70mm transversally aligned gaping incised wound across the anterior aspect of the neck, with a "fish-tail like" appearance to the right end (explained at the trial by the forensic pathologist, Dr Johan Duflou, as being most commonly caused by a "to-ing and fro-ing motion of the knife....a sawing motion, if you like") while on the left the end was clean and sharp. There was severe injury to underlying neck structures with partial severing of both sternocleidomastoid muscles, severing of the right common carotid artery and the adjacent right internal jugular vein. There was also incision of the anterior wall of the oesophagus, incision of the body of the thyroid cartilage with entry of the weapon into the larynx and injury to the right and left lobes of the thyroid and injury to the strap muscles of the neck; 6 other injuries of a minor nature to the neck, 3 associated with the lethal wound and 3 others which were not, being abrasions to the back of the net; a 12mm diagonally aligned "slit like" stab wound to the right lateral chest with minimal surrounding bruising, the wound tract passing between ribs 7 and 8 and about 5mm into the lower lobe of the right lung with the total wound tract at least 40mm. Minimal bleeding along this wound tract indicated it was likely to have been inflicted after the wound to the neck." [emphasis added]
3. During the proceedings on sentence it was suggested by the Crown Prosecutor that the above agreed facts could be supplemented by the further background facts set out in the decision of the Court of Criminal Appeal in Hadchiti v R at [3]-[17]. Senior counsel for the offender agreed with that course. I gave the parties leave to consider further precisely which paragraphs of that decision were appropriate to be before me on sentence. Subsequent correspondence from the parties confirmed that both the offender and the Crown agreed that the facts before me on sentence were to be supplemented by [3] - [8], [10] - [12] and [19] of the decision in Hadchiti v R. Although it is unusual for facts upon which an offender is to be sentenced to be before the court in this way, it was a course upon which experienced senior counsel agreed. Accordingly, I propose to sentence the offender on the above agreed facts supplemented by this further material. I have had regard to the relevant paragraphs in the decision of the Court of Criminal Appeal and it seems to me that the material contained therein, which is additional to what is already in the agreed facts, can be summarised as follows.
4. At the time of the commission of the offence the offender lived at the Hadchiti family home with his parents George and Sonia and brothers Mehriz and Rabih. Another son, John, lived with his wife and children in a granny flat at the back of the block
5. At 8:50pm, the deceased purchased two bottles of soft drink and a bottle of water from a shop in North Richmond and made a call lasting 94 seconds to Sonia Hadchiti at 9:07pm, shortly before he arrived at the Hadchiti family home. (There was evidence that it would take around eight minutes to drive from the shop to the Hadchiti residence.)
6. There was no street lighting outside the Hadchiti residence. The deceased walked into the front yard to collect the children alone while Ms Roumanos and the deceased's niece TB remained outside the property.
7. Sonia Hadchiti made two triple-0 calls that night. The first one was to the police at 9:17pm. The second call was made at 9.22pm to the ambulance service, in which she said, "Please hurry someone tried to stab me…someone is injured and the guy who stabbed me had a knife please hurry."
8. When the police arrived at 9:29pm the deceased was lying face down on the grassed area at the front of the house. The offender was sitting near the deceased with a brown-handled knife between his feet. There was a large amount of blood and his shoes and hands were stained with blood. Two knives were recovered from the property. One was a brown-handled pocket knife and the other was a "Columbia" brand knife. Both contained the deceased's blood.
9. A brown coloured steel chair frame was found by the police in the front yard of the Hadchiti premises. It was photographed by police, resting on its side. Underneath it were the black sunglasses the deceased had been wearing, and his car keys and a swipe pass. Numerous blood stains were also found on the steel chair frame. There was an injury to the middle of the deceased's back at the level of the T3 vertebra, in the shape of a 23mm x 23mm square, which corresponded to the edge of the chair frame.
10. The deceased had a background involving violence, including violence against women involving a knife. He had been charged with assaulting a woman outside her home in 2001, but was not convicted. He was charged in 2002 with two counts of common assault, including upon a previous girlfriend with whom he had a child, but was not convicted. He was apprehended by police in 2003 after throwing a knife onto the footpath. He confronted a woman in 2007 with a large bread knife and said, "I'm going to cut your throat." Both of these matters resulted in convictions. In June 2008, he entered the Blacktown Methadone Clinic with a large knife. That incident did not result in a conviction.

Other factual material

1. No further evidence was tendered at the commencement of the proceedings on sentence beyond the agreed facts. During submissions, the Crown Prosecutor tendered part of the report of the forensic pathologist who conducted the post-mortem. There was no objection to that course. Accordingly, I also had before me on sentence that part of the report of Professor Johan Duflou dated 7 February 2012 that describes the knife wound to the chest of the deceased as follows: "There was a 12mm diagonally aligned wound on the right lateral chest wall, located in the posterior axillary line, hundred and 60mm below the apex of the axilla. Minimal surrounding bruising of the tissues was evident on external examination, and no abrasion surrounded this slit-like wound. The tract of the wound past medially without significant superior/inferior or anterior/posterior deflection, passing through ribs 78 laterally into the lower lobe of the right lung. The length of the tract within the right lung, which appeared well inflated, was approximately 5mm and the total length of the tract within the body with at least 4cm. There was minimal bleeding along this wound tract."
2. The relevance of this part of the report of Professor Duflou was that it was the Crown's submission that the knife wound to the deceased's chest was most likely inflicted after the fatal neck wound. This is because there was only minimal bleeding in the wound tract, consistent with Mr Mack being already deceased at the time that injury was inflicted.

Factual dispute on sentence

1. The factual dispute that I must determine is that portion of the agreed facts highlighted in [7] above. It concerns how the deceased received his head injuries. The Crown Prosecutor submitted that the evidence is such that the Court could be satisfied beyond reasonable doubt that the offender used a chair to strike the deceased over the head prior to inflicting the wound that killed him. A DNA profile consistent with that of the offender was located on two of the legs of the chair frame found in front of the house. A DNA profile consistent with that of the deceased was also found on the chair. Marks on the deceased's back were noted at autopsy consistent with his being hit with a chair.
2. The Crown Prosecutor conceded in her submissions that the fact that the chair was an item of furniture at the offender's home presents a difficulty for the version advanced by the Crown. She also noted that the deceased's head injuries appear not to have been inflicted with "maximum force" and that the forensic pathologist Professor Duflou declined to exclude the possibility that the deceased sustained those injuries from falling upon the chair. She accepted that it cannot be said that the injuries were inflicted with such force that they must have been caused by the offender's striking the deceased's head with the chair.
3. The offender's case was that the deceased fell into the chair as he and the offender were grappling with each other in the course of the fracas. Mr Dunn QC submitted that the Court could not be satisfied beyond reasonable doubt that the offender threw the chair at the deceased or used the chair to strike the deceased. The chair is one that was ordinarily present at the offender's home. The DNA on its legs cannot be dated; it may have been transferred from the offender to the chair at any point prior to the offence. The DNA of the deceased (and that of the offender) could have been deposited on the chair as the two men struggled in its vicinity.
4. The manner in which the deceased incurred his head injuries is relevant to the question of the extent to which the offender's conduct departed from what would have been a reasonable response to the circumstances as he perceived them. A finding that the offender intentionally inflicted those injuries by hitting the deceased in the head with the chair would increase the seriousness of the offence. Thus, in order for me to sentence the offender on the basis that he struck the deceased with the chair, the Crown must prove this fact beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
5. No other evidence was put before the Court to assist me in resolving this factual dispute. I have had regard to the description of the injuries to the deceased. The injuries, in addition to the fatal wound, were significant. The location of the offender's DNA on the legs of the chairs is consistent with the chair being wielded, rather than simply touched in some way prior to the incident. Similarly, it is difficult to see how simply coming into contact with the chair as the deceased struggled with the offender could have caused the number of injuries to the deceased's head.
6. An aspect of the events of the night in question upon which the facts were silent was who was present at the time of the offence. The agreed facts only refer to the offender and his mother being present. In Mr Dunn's submissions he described there being other people at the house, including a visitor, at the time the deceased arrived. No further detail was provided. It is somewhat unsatisfactory that the agreed facts were silent on this issue. Nonetheless, I am bound to sentence the offender on the basis of the material before me.
7. In the absence of any further evidence on this issue, including the evidence of any eyewitnesses, and having regard to the concessions made by the Crown Prosecutor, I am unable to find, beyond reasonable doubt, that the offender used the chair to strike the deceased.
8. Although the prosecution has failed to prove beyond reasonable doubt that the offender struck the deceased with the chair, this does not mean that I am bound to sentence the offender on his version of events. In order for me to find that the injuries were incurred incidentally during the mêlée I would need to be satisfied of this on the balance of probabilities. I am not so satisfied for the reasons I have already given. Accordingly, I propose to proceed on the basis that neither of the competing possibilities is proved to the requisite standard: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at 69 [64]; The Queen v Olbrich at [24].
9. The offender is to be sentenced on the basis that the deceased received a number of other injuries prior to his death. It is not known whether they were inflicted by someone else present or who else in fact was present at the time, besides the offender's mother. Nor is it known whether the injuries occurred during the struggle between the men on the ground. All that is established is the fact that, at the time of his death, the deceased had these injuries.

Seriousness of the offence

1. It is my duty to impose a sentence that is proportionate to the gravity of the offence. Accordingly, I am required to have regard to the whole of the facts and circumstances of this case in order to assess the gravity of this particular offending.
2. As Gleeson CJ observed in R v Blacklidge (unreported, NSWCCA, 12 December 1995): "…the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability…What is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case."
3. By his plea of guilty, the offender accepts that at the time of the infliction of the fatal wound he had the mental element for murder. It was submitted on his behalf that I would sentence him on the basis that his intention was to inflict grievous bodily harm rather than to kill the deceased. In her written submissions, the Crown Prosecutor contended that the offender's conduct evinced a clear intention to kill. It is thus necessary for me to make a finding in this regard.
4. I have had regard to the nature of the fatal injury inflicted on the deceased. The offender agrees that after he gained control of the deceased's knife he used it to cut his throat. That caused a gaping lethal wound measuring 160mm x 70mm across the front of his neck. It was described as having a "fishtail like" appearance to the right end. The agreed facts refer to this being explained at the trial by Professor Duflou as most commonly caused by a "to-ing and fro-ing motion of the knife...a sawing motion, if you like."
5. The injury to the underlying neck structures was also severe. Both muscles on the sides of the neck were partially severed. The right common carotid artery and the adjacent right internal jugular vein were also both partially severed. The anterior wall of the oesophagus was incised as was the body of the thyroid cartilage. The knife entered into the larynx and injured the right and left lobes of the thyroid and the muscles on the front of the neck.
6. Having regard to the position of the wound across the front of the deceased's neck, the size and depth of the wound, the description by Professor Duflou of the wound being caused by a sawing motion and the use of a knife, I am satisfied beyond reasonable doubt that the offender intended to kill the deceased at the time he slit his throat.
7. Turning to the other injuries suffered by the deceased, I have already stated that I am unable to find beyond reasonable doubt that the offender intentionally inflicted the deceased's head injuries. It was not an agreed fact that the offender intentionally stabbed the deceased in the chest. There is insufficient material before me to find beyond reasonable doubt that the chest wound was inflicted deliberately, rather than inadvertently during the struggle when both men were armed. In any event, the Crown Prosecutor accepted that the chest wound more likely occurred after the fatal injury. Although on one view it seems unlikely that the deceased would have still been struggling after receiving the wound to his neck, that was the position of the Crown on sentence and I will sentence the offender on that basis.
8. I am bound to proceed to sentence the offender on the basis that when he slit the deceased's throat with a knife he honestly believed it was necessary to do so to defend himself and his mother from the deceased. I am next required to undertake an assessment of the circumstances as the offender perceived them that led him to form that belief and then evaluate the degree to which his conduct departed from what would have been a reasonable response to the circumstances as he perceived them: R v Smith [2015] NSWCCA 193 by Simpson JA (with whom Leeming JA and Hamill J agreed) at [44]-[45] and [56] - [59]. I note that, unlike the sentencing judge in R v Smith who had presided over a trial prior to sentence, my assessment is necessarily based on more limited material given that it is confined to the material in the agreed facts.
9. The circumstances that faced the offender are as follows. He was sitting on a milk crate in the front garden of his family home shortly after 9pm peeling an apple with a knife when the deceased arrived and got out of his car. The offender had not met the deceased before, but the evidence before me is that the deceased had telephoned the premises prior to his arrival to indicate that he was on his way. The children to be collected were still at the offender's home. When the deceased arrived he yelled something about the "the kids" at the offender's mother. The offender then saw the deceased grab his mother by the front of her shirt. His mother was 47 years old at the time. She fell to the ground. The agreed facts note that she "later complained of having been kicked." The offender then approached the deceased, who swung at him with a knife and stabbed him in the arm. A violent confrontation ensued in which both men were armed with knives.
10. I have had regard to the fact that the deceased came to the offender's home at night armed with a knife and that the offender already had a knife in his hand at that time because he was peeling an apple. The evidence is that he then saw the deceased push his mother to the ground. Although his mother later complained that she had been kicked, there is no evidence before me as to the details of any kick: where it was, how strong it was, or in fact if it injured the offender's mother in any way.
11. The agreed facts disclose that the deceased had a level of methylamphetamine in his system above the therapeutic level at the time of his death. Also included in the agreed facts is the expert evidence that such a level may make a person more aggressive. I have taken that material into account as part of the facts.
12. I have also had regard to the injuries that the deceased had suffered by the time of his death. The head injuries that he suffered were significant, although it is not suggested that they were of themselves fatal. Even putting to one side the fatal wound, the injuries suffered by the deceased were significantly greater than those inflicted on the offender. Moreover, it is an agreed fact that the deceased was killed with his own knife. This means that the offender was able to take the deceased's knife from him.
13. Consistent with the plea, I must sentence the offender on the basis that his actions departed from what would have been a reasonable response to the circumstances as perceived by him. The greater the departure his conduct was from what would have been a reasonable response in those circumstances, the more serious the offence. I am satisfied that his conduct seriously contravened the standard of reasonableness when comparing his conduct with the circumstance as her perceived them. He became involved in a violent altercation with Mr Mack following a threat to his mother that was not particularly serious. The deceased did not produce a knife when he confronted the offender's mother. Rather, it was only after the offender confronted the deceased that a knife was produced. The deceased was injured during the mêlée but the offender was not, apart from the wound to his arm inflicted before that mêlée.
14. Overall, I am satisfied that the offender's conduct in slitting the offender's throat, in the context of his other injuries, was done with an intention to kill and was a significant departure from what would have been a reasonable response to the circumstances as he perceived them. Accordingly, I am satisfied that this was a serious example of manslaughter based upon excessive self-defence.

Victim impact statement

1. An unsigned victim impact statement from Allan Mack, the father of the deceased, was tendered. Senior counsel for the offender took no objection to the tender of that unsigned document on the proceedings on sentence.
2. The deceased's father described how his son's death has affected him, the deceased's sister, the deceased's niece (who was present on the night in question), and the deceased's daughter. He acknowledged the pain of having a child die before you and stated that the pain will never end. He said that he has not been the same since his son's death.
3. On behalf the Court, I extend my condolences to the family of the deceased for their loss.
4. I have had regard to Part 3, Division 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act"), and in particular s 28. No application was made by the prosecutor that I take the victim impact statement into account in determining the punishment for the offence on the basis that the harmful impact of the death on the deceased's family is an aspect of harm done to the community. Accordingly I have not done so.

Plea of guilty

1. The offender was charged with murder on 31 October 2011. His first offer to plead guilty to manslaughter was in June 2016, nearly five years later. The Crown did not accept that plea until November 2016. It is the timing of the offer of the plea, rather than its acceptance, which is the relevant date for assessing the discount to be applied.
2. The Crown Prosecutor submitted that the lateness of this plea entitled the offender to a discount marginally above 10%, whereas Mr Dunn for the offender submitted that a significant discount was warranted in the circumstances.
3. It was open to the offender to have approached the Crown to make an offer to plead guilty to manslaughter at any time since late 2011. The delay in indicating an offer to plead guilty reduced its utilitarian effect. I have assessed the utilitarian value of the plea largely based upon its timing, making some allowance for the complexity and length of the trial: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. I am satisfied that a discount in the order of 13% is warranted.

Offender's personal history

1. A psychological report under the hand of Mr Chaic Awat was tendered on sentence, as were a number of letters from character witnesses. Reverend Mark Muss, the full time Anglican Chaplain at Lithgow Correctional Centre, gave evidence on behalf of the offender at the proceedings on sentence, as did the offender's cousin Jessica Younan. An affidavit from the offender's solicitor annexed further relevant material, including the offender's case note reports from his NSW Department of Corrective Services file, his trade qualifications, and certificates from courses, including Bible studies, undertaken in custody. The following history is taken from this material.
2. The offender's parents migrated to Australia from Lebanon. The offender is the youngest of seven children, all of whom were born in Australia. He grew up on a semi-rural property where his parents grew vegetables commercially. His family is close-knit and supportive. He attended a local Catholic primary school and Richmond Secondary College. He played football at school and worked both on the family farm and part-time at a local fruit shop. In 2007, he commenced a Formwork apprenticeship, which involved carpentry. The offender completed a Certificate III in Construction Carpentry in 2013, while on bail pending his trial for this offence. The transcript of his academic record at TAFE was before me. He also has a certificate from TAFE in Warehousing Operations.
3. The offender's family is Maronite Catholic and the family attended church every Sunday. The offender is described by character referees as being devoted to his faith and family. Other character references from friends and family portray the offender as hardworking, well mannered, well liked and generous with his time, with strong family values.
4. The offender's former employer described him as hardworking, reliable and honest. He was described as completing his apprenticeship with "outstanding results." A family friend who owns a farming property described how the offender had offered him a helping hand to do farm duties on many occasions.
5. Whilst in custody, the offender organised a petition to have a priest attend the jail and say Mass for the inmates. I was provided with a copy of the letter written to the Bishop of Bathurst with respect to this request. Also tended was a certificate from Ken Marslew from the "Enough is Enough" anti-violence movement, confirming the offender's participation in that course whilst in custody.
6. The offender relied upon the case notes provided from his NSW Department of Corrective Services file to demonstrate that he has suffered from anxiety whilst in custody. Those notes show that when the offender was first taken into custody he reported high levels of anxiety, but was assessed as at low risk of self-harm. He indicated that he wished to attend chapel and see a psychologist, which he subsequently did. The notes report him suffering from anxiety, depression and panic attacks at various times thereafter. After sentence he was described as presenting as "stressed", but as "experiencing a normal response to his situation (first time in custody, recent long sentence)." In a more recent case note of November 2016 the offender was described as not being interested in engaging with psychology services and as coping well with his change of placement. Not all case notes are favourable to the offender. One note described him as follows: "Can be arrogant, and argumentative. Normally he demands everything asap if things don't go his way he had been seen throwing a tantrum [sic]."
7. Reverend Muss described the offender as being a consistent attendee at chapel services and midweek Bible studies in custody. He stated that since becoming the Minister at Lithgow Correctional Centre he had never given evidence on behalf of a prisoner before. He described the offender as making helpful and positive contributions at meetings and always showing the highest respect for him and his office. He described the offender as "a sincere young man with remarkable depth of character." Revered Muss also gave evidence about difficulties that the offender has experienced in custody. I have been asked to make a non-publication order in relation to that evidence and will address that issue further below.
8. A letter from the Crossroad Bible Institute of Australia states that the offender has graduated with honours from that Institute's "Great Truths of the Bible" course. His work was described as being done with a "high level of commitment, accuracy and timeliness."
9. The report of the psychologist, Mr Awat, states that the offender has experienced a number of symptoms consistent with suffering from post-traumatic stress disorder. The offender told Mr Awat that he sometimes feels like he is having "a long nightmare" and is just not waking up. The offender said that he was not coping well in prison and is in a "one out cell placement" requested by his psychiatrist. The offender told Mr Awat that he has nightmares and flashbacks. He suffers from sleeping disturbances and has become quite hypervigilant. He startles easily and is constantly watching everyone around him. He is being treated with medication for these symptoms. Mr Awat stated that, in his professional opinion, the offender would benefit from ongoing psychological treatment to alleviate his symptoms of post-traumatic stress.

Aggravating and mitigating factors

1. On behalf of the offender it was conceded that the offence was aggravated by the actual use of a weapon. The Crown Prosecutor did not identify any other aggravating features and I am satisfied that no other aggravating features exist: s 21A(2) of the CSP Act.
2. There were a number of mitigating factors relevant to the sentencing process: s 21A(3) of the CSP Act.
3. The offence was mitigated by the fact that the offender did not have any criminal record as at the time of the commission of this offence. I am further satisfied that the offender was a young man of good character at the time of the offence. Based on the material before me, I also accept that the offender is unlikely to reoffend and has good prospects of rehabilitation.
4. It was submitted that I would take the absence of any planning into account as a mitigating factor on sentence. This feature would be present in almost all cases of manslaughter by excessive self-defence. The offender has already had what would otherwise have been liability for murder reduced to manslaughter on the basis that he acted in self-defence. Although I accept that this offence was not planned I am not satisfied that it would be appropriate to mitigate the sentence any further on that basis.
5. There was evidence before the Court that the offender is remorseful. The offender did not give evidence at his proceedings on sentence. He wrote a letter that was tendered and became an exhibit on sentence. In that letter, the offender stated that he wished that it had never happened and that if he could go back in time and change things he would do anything to do that. He expressed sorrow for the pain caused to the victim's family and stated that, "Since it happened I think about it all the time." Reverend Muss described the offender as being "intensely remorseful" in his evidence.
6. The offender told his psychologist that he has "…a lot of remorse for his actions, and that he is adamant that he never had any intent for the situation to get out of hand as it did." He told the psychologist on two occasions throughout the session that if he had an opportunity to change the past he would because he continues to carry the knowledge that he has "taken life." The psychologist stated: "Mr Hadchiti expressed his remorse and shame in relation to the offence before the court on numerous occasions throughout the initial consultation. He advised that he continually relives the event and that it is something that he feels he will live through for the rest of his life".
7. He stated that, "[The offender] does not believe that there will be a day that he does not remember or regret his part in the offence before the court."
8. In order for me to find that the mitigating factor of the offender's remorse exists in this matter, I must be satisfied that the offender has provided evidence that he has accepted responsibility for his actions and acknowledged the loss caused by his actions: s 21A(3)(k) of the CSP Act. Although much of the offender's regret seems to be that he now finds himself incarcerated, I am nonetheless satisfied on the material before me that he is remorseful and that this is a further mitigating factor to be taken into account.
9. There were two other mitigating factors upon which the offender relied.
10. The first of these was the offender's mental health. It was submitted that the evidence of the offender's psychologist outlining the nature of the offender's post-traumatic stress disorder is a relevant mitigating factor on sentence, in that the offender's custodial sentence may be more onerous on him than the average prisoner: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. It was not suggested that the offender had any mental health issue at the time of the commission of the offence, such that general deterrence was of less significance in this sentencing exercise.
11. I have had regard to the report of Dr Awat as well as the case notes. The diagnosis of post-traumatic stress disorder was not challenged by the Crown. The offender is taking medication for anxiety, but the case notes suggest that his anxiety is caused by the legal process. On the material before me, the extent to which the offender's sentence is more onerous on him than an average prisoner is not clear. Overall, I am prepared to accept that the offender suffers from PTSD and I have taken this factor into account to some extent in the overall sentence to be imposed.
12. It was further submitted that the offender's custodial conditions are such that his sentence should be further reduced. Revered Muss gave evidence about the offender's experience in custody and counsel on behalf of the offender sought a non-publication order in relation to it. For the purposes of these sentencing reasons, it is sufficient merely to note that no challenge was made to any of that evidence and it is of such a nature that it is appropriate for me to take it into account as a further mitigating feature to some extent.

Delay and pre-sentence custody

1. By the time of sentence in this matter, a period of five and a half years had passed since the offence. The offender was bail refused upon his arrest on 31 October 2011 and released on bail on strict conditions on 28 November 2011. He was convicted of murder on 13 November 2013 and bail refused. He has been in custody since that date.
2. It is agreed by senior counsel for the offender and the Crown Prosecutor that the offender's sentence should be backdated to 16 September 2012 in order to take into account the period that he has already spent in custody.
3. It was submitted on behalf of the offender that the delay in this matter was not caused by any fault of the offender and it is appropriate to give weight to the fact that the offender has been left in a state of uncertain suspense for a considerable period of time. The relevant principles were recently considered by Bellew J in R v Sabra [2015] NSWCCA 38 at [27] to [38]. I am satisfied that the uncertainty, suspense and anxiety experienced by the offender over the last five and a half years are matters to which it is appropriate to give some weight in the exercise of my sentencing discretion.
4. I note that while the offender was on bail he was subject to strict conditions that included a curfew. The offender told Dr Awat that he feels as if his prison sentence commenced from his initial time on bail. It was not suggested to me that those conditions of bail would amount to any form of quasi-custody, nor do I propose to take that material into account in that manner. Rather, I propose to take this material into account on the question of delay generally.

Special circumstances

1. Senior Counsel for the offender submitted that I would find special circumstances in this matter, being a combination of the offender's mental health, his youth, and the fact that this is first time in custody. The Crown Prosecutor did not oppose a finding of special circumstances based upon those matters and added that the offender's "healthy" prospects of rehabilitation would be a further relevant matter in this regard.
2. It is well established that factors such as an offender's mental health, youth, prospects of rehabilitation, and the fact that it is an offender's first time in custody are all matters capable of amounting to special circumstances such that the statutory ratio in s 44 of the CSP may be varied. Just because matters are capable of amounting to special circumstances does not necessarily mean that a variation in the usual ratio between the balance of term and the non-parole period is warranted: the circumstances must be "sufficiently special to justify a variation": R v Fidow [2004] NSWCCA 172 at [22] per Spigelman CJ
3. I have given consideration to whether the circumstances are sufficiently special in this case to warrant a departure from the statutory ratio. The Crown Prosecutor accepted that it was appropriate to do so. On balance, I am satisfied that it is appropriate to vary the statutory ratio on the basis of the offender's youth and the fact that this is his first time in custody.

Other decisions

1. The Crown relied upon three cases of manslaughter by excessive self-defence as being of assistance in this matter: Salah v R [2009] NSWCCA 2, Stewart v R [2009] NSWCCA 152 and R v Huang [2015] NSWSC 375.
2. The applicant in Salah v R was involved in an altercation with the deceased, during which the deceased punched him in the side of the head, pulled his hair and threatened to kill him. Later that day, the applicant and the deceased were involved in another fight in which the deceased was armed with a knife. In the course of that fight, the applicant took control of the deceased's knife and stabbed him six times with it. He pleaded guilty to manslaughter on the sixth day of a trial and was sentenced by Johnson J to a non-parole period of five years and nine months, with a balance of term of three years. The Court of Criminal Appeal (Rothman J, Bell JA and Price J agreeing) dismissed the applicant's sentence appeal.
3. The applicant in Stewart v R was convicted of manslaughter by a jury following a trial for murder. Applying a discount of 12.5%, Johnson J sentenced him to a non-parole period of seven years and three months, with a balance of term of three years and three months. The applicant and the deceased faced off at the applicant's home over a dispute about loud music, the deceased arming himself with a sword and the applicant with a knife. The applicant left the house in the early hours of the morning and returned later that day with a push dagger. At that time, the applicant and the deceased fought and the applicant stabbed the deceased several times with the dagger, which he had concealed. The applicant sought leave to appeal his sentence on the sole ground of manifest excess. The Court of Criminal Appeal (Hodgson JA, Buddin and Price JJ agreeing) dismissed the appeal.
4. Justice Beech-Jones sentenced the offender in R v Huang to imprisonment comprising a non-parole period of five years and eleven months and a balance of term of one year and eleven months. The offender was convicted of manslaughter following a trial on an indictment for murder. The offender stabbed a co-worker (with whom he also resided) several times on the construction site where both men worked. The offender's version was that the deceased had threatened to report him to the Department of Immigration and to kill him. He had armed himself with a knife before confronting the deceased on the day of the offence. His Honour indicated at [54] that the appropriate starting point for that case of manslaughter on the basis of excessive self-defence, involving a finding that the offender had an intention to kill the deceased, was 12 years' imprisonment. He afforded a discount of 25% in recognition of the utilitarian value of the offender's plea and a further discount of 10% for assistance.
5. The offender submitted that the present case differs in important respects from these decisions and that the offender's moral culpability is far lower than that of the offenders dealt with in those cases.
6. The offender relied upon two cases said to deal with the question of spontaneity in offences of manslaughter by excessive self-defence. The first was Cioban v The Queen (2003) 139 A Crim R 265; [2003] NSWCCA 304. The appellant in that case was convicted of manslaughter. He and some of his friends became embroiled in a fight with the deceased, and a group of his friends, in the early hours of the morning in Kings Cross. The deceased threatened to assault the appellant in the course of the brawl and the appellant was punched and kicked by the deceased's friends. The appellant produced a gun and shot at the deceased, but missed. The deceased then chased the appellant up the street and the two men struggled. The appellant fired the shot that killed the deceased in that struggle. Studdert J sentenced the appellant to imprisonment for eight years, with a non-parole period of five years. The appellant successfully appealed his sentence on a ground of manifest excess. The Court of Criminal Appeal (Mason P, Hidden J and Smart AJ agreeing) considered that a sentence of imprisonment for six years and six months, with a non-parole period of four years, was appropriate having regard to the facts and to the appellant's positive subjective features. No other principle can be derived from that case.
7. The second case upon which the offender relied in this regard was R v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43. The respondent in that case used a shotgun to shoot the deceased in the back of the head. She pleaded guilty to manslaughter and was sentenced to imprisonment for seven years and six months, with a non-parole period of four years and six months. The respondent and the deceased lived together. On the night of his death, there was a physical fight between them. As he was strangling her, the deceased said that he was going to kill the appellant and "smash her face in." The respondent retrieved a shotgun and shot the deceased in the head as he was facing away from her. The Court of Criminal Appeal, by majority (James and Barr JJ, Santow JA in dissent) dismissed both the Crown appeal and the respondent's sentence appeal. James J noted (at 529 [92]) that it was not helpful to compare the sentence imposed upon the respondent with other, lesser sentences imposed upon other offenders for excessive self-defence manslaughter. Barr J stated (at 532 [107]) that the decided cases were at that time so few that they could not be said to constitute a tariff.
8. Overall, I have not found any of these cases to be particularly helpful, although the principles derived from them confirm the broad range of offending that is encompassed by the offence of manslaughter, even when that offence is confined to the particular species of manslaughter by excessive self-defence.

Conclusion and sentence

1. In sentencing the offender I must have regard to the purposes of sentencing in s 3A of the CSP Act. I note the comments of the High Court (French CJ, Gummow, Hayne, Hayden, Crennan Kiefel and Bell JJ) in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20], that the purposes of sentencing set out in s 3A of the CSP Act are "overlapping and, at times, conflicting" and "there is no attempt to rank them in order of priority." In this matter I must impose a sentence that ensures that the offender is adequately punished for what I have found to be a serious example of manslaughter by excessive self-defence. I must impose a sentence which will deter others from committing similar offences and also make the offender accountable for his actions. I must also promote the rehabilitation of the offender who comes before this Court for sentencing as a person of previous good character with a favourable subjective case.
2. In the exercise of my sentencing discretion, I have arrived at the sentence that I propose to apply by a process of instinctive synthesis, having regard to all of the objective and subjective features of this case.
3. But for the plea of guilty I would have imposed a sentence of imprisonment of 11 and a half years. I have allowed a discount of just over 13%, which reduces the head sentence to ten years. I have found special circumstances, being the offender's youth and the fact that it is his first time in custody. Accordingly I have varied the statutory ratio between the non-parole period and the head sentence.

SENTENCE

1. Michael Hadchiti, for the manslaughter of Billy Mack you are convicted. You are sentenced to a term of imprisonment. I set a non-parole period of seven years commencing on 14 October 2013 and expiring on 13 October 2020 and an additional term of three years commencing on 14 October 2020 and expiring on 13 October 2023.
2. The sentence is taken to have commenced on 14 October 2013. The offender will be eligible for release on parole on 13 October 2020.
3. Mr Hadchiti, the offence of manslaughter is a "serious violence offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and of its application to the offence you have committed.

Amendments 31 March 2017 - Amended to correct name of junior counsel for the offender. 31 March 2017 - Change "appellant" to "offender" in [13] and "applicant" to "offender" in [67]. 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: 31 March 2017