R v HAY

Facts

1. The offender appears for sentence for events that occurred at the premises at 39 Tichborne Avenue, Kooringal, a suburb of Wagga Wagga on 25 February 2019. Ms Jennifer Stroud-Watts had been leasing the premises from Argyle Housing for approximately two years. The house consisted of an open plan living and dining area and kitchen at the front and three bedrooms at the rear. The front door entered into the dining area and the other door entered into the laundry which was on the southern side of the house.
2. In or about January 2019 Ms Stroud-Watts had a chance meeting with the offender at the Reject Shop in Wagga Wagga. The offender told Stroud-Watts that she had nowhere to live and Ms Stroud-Watts told the offender that she could move into one of the spare rooms in the house. In about early February 2019 the deceased moved from Newcastle to live at the premises with Ms Stroud-Watts.
3. Kylie Green, the deceased, was a foster sister of Ms Stroud-Watts. Ms Green was 36 years of age at the date of her death. She suffered from asthma, incontinence and extreme obesity. Running and climbing was all but impossible for her.
4. Initially there were no issues after the offender moved into the premises. However for a week or so prior to 24 February 2019 the offender began to verbally abuse the deceased, would yell at the deceased to clean up around the house and made fun of her incontinence.
5. On or about Thursday 21 February 2019 the deceased, the offender and Stroud-Watts were at the premises when the offender began to verbally abuse the deceased about her bladder condition and said words to the effect of, "I'm going to put you under the house like a fuckin' dog like you fuckin' belong." At the time she said that she made a fist and punched it aggressively into her open hand. That evening the offender removed the SIM card from the deceased's mobile phone and without the deceased's permission took the phone when she left the premises.
6. As a result of the offender's conduct towards the deceased Ms Stroud-Watts decided that the offender could no longer stay at the premises. During the evening of Saturday 23 February 2019 Ms Stroud-Watts sent a text message to the offender to the effect that she should attend the premises the following day, collect her belongings and move out. The offender replied, "OK". At about 3pm on Sunday 24 February 2019 the offender in the company of Ms Tameeka Dargin attended the premises and collected her belongings. The offender did not speak to Ms Stroud-Watts on that occasion.
7. After the offender and Ms Dargin left the premises Ms Stroud-Watts and the deceased watched television and cooked dinner. Later that evening the deceased went with a friend to the Woolworths Store at the Kooringal Mall for about half an hour. Sometime between 10pm and 10.30pm the deceased went to sleep in the rear bedroom of the premises. Ms Stroud-Watts stayed in the lounge room and later fell asleep on the lounge.
8. Meanwhile the offender and Ms Dargin were at the Kooringal Hotel which they left at 11.47pm and went to and address at Berala Street, Kooringal to visit Mr Prichard Vale. The offender and Prichard Vale smoked cannabis and the offender told Mr Vale that she was angry about being asked to leave Ms Stroud-Watts' premises. At some point in the early hours of the morning the offender returned to Ms Dargin's unit In Berala Street.
9. At about 6am the offender left that unit and went to the premises of Ms Stroud-Watts and the deceased in Tichborne Crescent. She went to the front patio of the premises and using a cigarette lighter or the like set fire to a two-seater couch that was on the front patio. The couch quickly caught fire and the fire spread to the northern wall of the patio and into the front of the premises. The offender left the scene at about 6.10am.
10. Ms Stroud-Watts awoke to the smell of burning rubber. She sat up and saw smoke in the lounge and dining rooms. She went to the middle of the room. She saw flames on the middle and top section of the curtains over the window that was next to the entrance door. She went to the hallway and as she opened the door the fire alarm sounded and the house began to fill with smoke. She went to the rear bedroom where the deceased was sleeping, banged on the door and yelled, "fire". The deceased opened the door, said, "What?" The bedroom filled with smoke and they both began to cough.
11. A neighbour, Mr Darren Stewart arrived at the premises and noticed that the lounge on the veranda, the front door and ceiling and roof at the front of the premises was completely engulfed in flames. He ran to the rear of the premises and saw Ms Stroud-Watts was standing at the window. He went to that window and stood on a chair that was underneath the window ripped the insect screen from the window, which then shattered. He reached inside and attempted to pull Ms Stroud-Watts out but did not have the strength to do so. Ms Stroud-Watts said, "I'm going to die". Mr Stewart located another chair at the side of the premises and passed it through the window. He kicked the fibro wall several times creating holes in the fibro. He observed timber struts and realised the space was too narrow for Ms Stroud-Watts to crawl through.
12. Mr Stewart went back to his home, obtained a saw and returned. Meanwhile, Ms Stroud-Watts had used the chair to climb out the window. She encouraged the deceased to also climb out of the window but the deceased said, "I can't, I can't". Ms Stroud-Watts told Mr Stewart that her sister was inside and that she was disabled. Mr Stewart looked inside and saw the deceased lying on the floor directly under the window. Several other neighbours had arrived at the scene.
13. Mr Stewart and the other neighbours attempted to cut through the wooden struts and knock down the wall in an attempt to create a sufficient space for the deceased to get through but because of the intensity of the fire they were unable to do so. The glass began to shatter and they were forced back from the building.
14. Police attended the scene at 6.25 and noted that the house was well alight. Police went to the rear of the house where Mr Stewart told them of the deceased being inside. The Fire Brigade attended and went straight to the rear of the house. The fire fighters attempted to knock a gap in the wall. One of the fire fighters noticed the deceased lying on the floor and attempted to pull her out. However he was forced back by the heat of the fire, which partially melted his helmet. That fire fighter sustained a burn to his right shoulder. The fire fighters initially concentrated on that part of the house.
15. Once the fire in that part of the house had been sufficiently extinguished fire fighters observed the body of the deceased and determined that she was in fact deceased. Police were informed and they went about their duties extinguishing the fire. After the fire was extinguished fire fighters took police to the rear of the house where investigators observed the rear bedroom was significantly damaged by fire. The deceased was face down wearing a dressing gown about 30 cm from the back wall.
16. On 28 February 2019 a post mortem examination determined that the cause of death was determined to be the fire and its effects, without which death would not have occurred. Coronary atherosclerosis, dilated cardiomegaly and obesity were identified as likely contributing factors. I observe that the deceased would have suffered a horrible death.
17. A fire investigator determined that the origin of the fire was the front undercover patio and in particular the two seater couch that had been on the patio. The investigator found that the fire was most likely caused by an open flame to the couch and that it was deliberately lit.
18. On 27 February 2019 police went to Ms Dargin's premises and interviewed the offender. On 1 March 2019 police conducted a further interview with the offender. A number of exhibits were seized including items of footwear and clothing. On 8 April 2019 a telephone intercept warrant was obtained in respect of the offender's mobile phone service. On 8 May 2019 the offender was shown CCTV footage of a person of interest walking towards the premises at 6.06 am on 25 February 2019. On 19 June 2019 a further telephone intercept warrant was obtained which revealed conversations between Ms Stroud-Watts and the offender. Other electronic surveillance was conducted.
19. The offender was arrested on 21 May 2020 and declined to participate in any further interview.

Assessment

1. I extract from what I said in R v Lee [2019] NSWDC 59 at [21]-[26] on the issue of making an assessment of the seriousness of an offence of Manslaughter. "It will be necessary for me to make an assessment of the seriousness of the matter. Gleeson CJ (Grove & Ireland JJ agreeing) said in R v Blacklidge unrep NSWCCA 12 December 1994: 'It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.' [22] However, the Chief Justice went on to say: 'At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)' [23] In the decision of R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the court (Spigelman CJ, Simpson J (as her Honour then was) and Howie J) said at [61]: 'The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510.' [24] Spigelman CJ (Hulme & Adams JJ agreeing) said in R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge was also a Crown appeal said at [44]: '…When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.' [25] In the course of submissions the Crown referred to the decision of R v Loveridge [2014] NSWCCA 120 (co-incidentally another Crown appeal) where the court (Bathurst CJ, Johnson & Hulme JJ) said at [229]: 'When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].' [26] Going to another matter of general principle, Mr King in his very helpful and comprehensive written submissions refers to R v MD, BM, NA & JT. The Court said at [65]: 'In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.'"
2. However, the observation of the Court of Criminal Appeal in R v MD, BM, NA & JT at [40] is apposite to this case, namely: "…it must be clearly recognised that the events of the relevant night were a very significant tragedy".
3. The Crown submits that the objective seriousness of the manslaughter offence is above mid-range because the offender attended the premises with the intention of deliberately setting fire to lounge on the patio as revenge for being evicted from the premises, and that the offender's conduct in setting fire to the couch was so inherently dangerous given the proximity of the couch to the building. The Crown also relies upon the hour of the day at which the conduct occurred and included as part of that submission is that the offender having stayed at the premises would have known the sleeping habits of the occupants. To my mind that point does not really advance the matter at all as sleeping plans can vary significantly for any number of reasons. The Crown appropriately concedes that the offending was not part of any planned or organised criminal activity.
4. The offending occurred at the home of the victim and accordingly the factor of statutory aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, 1999 is enlivened.
5. The Crown submits that given the deceased's physical state, in particular her lack of mobility and obesity is a relevant matter to take into account in determining the seriousness of the matter. I agree with that submission. It is relevant also that the offender having stayed at the premises was very well aware of the physical condition of the deceased.
6. An issue arose at the sentence hearing as to whether the deceased was a vulnerable victim for the purposes of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act. In this regard I note the authorities of Greenwood v R [2014] NSWCCA 64 and Betts v R [2015] NSWCCA 39. However, I also note the terms of that section, namely: "the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant)",
7. In the matter presently under consideration the deceased clearly had a disability. In those circumstances I am satisfied to the criminal standard that the victim was vulnerable for the purposes of the sections. I understood Mr Wilson SC on behalf of the offender to concede as much at the sentence hearing. However, the circumstances and physical state of the deceased are all matters that go to inform the objective seriousness of the matter. In those circumstances, while I accept the factor of aggravation provided for by s 21A(2)(l) of the Sentencing Act is made out, it would inappropriate to give it further weight as that would be to engage in double counting.
8. The Crown raises the issue of the offender's motive but in this regard I am grateful to the Crown for drawing the court's attention to Carr v R [2014] NSWCCA 202 where Fullerton J (Hoeben CJ at CL, Adamson J agreeing) said at [34]: "In neither Bonnet nor Quealey, nor in the cases to which Latham J referred, was consideration given to whether motives of revenge or retaliation at some actual or perceived wrong have the capacity to aggravate the objective seriousness of an offence. This is likely because, irrespective of whether an offender is motivated by vengeance or some grievance or simply hatred to commit an offence which involves the deliberate infliction of violence, the threats of harm or perhaps deliberate damage to property, it is the nature of the particular offending and its consequences, and the offender's appreciation of the consequences of the offending, that informs an assessment of objective seriousness (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 at [27] - cf under s 21A(2)(o) where financial motives are a statutory aggravating factor. See also the cases which have considered the impact of competing motives of drug addiction and financial gain for sentencing purposes: Dang v R [2013] NSWCCA 246 per Basten JA at [20]-[30], Adams J at [44] and Latham J at [111]-[112]). Whilst an assessment of an offender's moral culpability is part of an assessment of objective seriousness, care must be taken to ensure that an offender's motives (which might, in a given case, render his or her moral culpability of a high order) do not overwhelm the assessment of objective seriousness referable to the offending conduct itself."
9. I do not read the extract from Carr as set out immediately above to be authority for the proposition that motive is not a relevant consideration so far as determining the seriousness of the matter is concerned. In this matter the offender lit the fire on the couch as revenge for being evicted from the premises.
10. The Crown also submits that the factor of statutory aggravation provided for by s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act namely that the offence involved a grave risk of death to Ms Stroud-Watts is made out. Mr Wilson SC for the offender submits (written submissions MFI 2) that although this may be taken into account it is suggested (by Senior Counsel) that this might be included as part of the consideration of the objective seriousness of both matters.
11. A number of aspects that fall for consideration in this matter highlight the issues that can arise with s 21A(2) of the Sentencing Act. As Howie J observed in his additional comments in Elyard v R [2006] NSWCCA 43 at [39]: "It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands."
12. In the matter presently under consideration I agree that the factor of statutory aggravation as provided for by s 21A(2)(ib) of the Sentencing Act is made out but as this is one of the many factors taken into account in determining the seriousness of the matter to give that factor further weight would be to commit the error of double counting.
13. Mr Wilson SC relies on the decision of the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
14. In the matter presently under consideration there are issues relating to the mental health of the offender. I will deal with those when I deal with the subjective case later in these remarks. However, those issues go the moral culpability of the offender rather than impact on the assessment of the seriousness of the matter. It is not suggested that there is a causal connection between those issues relating to mental health and the offending.
15. While dealing with this issue, I note on the issue of moral culpability Johnson J in Tepania at [119] said: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
16. The issues to which I have briefly referred and will deal with in detail later go to the moral culpability of the offender.
17. Mr Wilson SC submits (p 6 MFI 2) that the manslaughter offence falls within the mid-range but "possibly towards the upper range of the mid-range." However, noting that I do not have a transcript of counsel's submissions, I understood Mr Wilson SC to concede at the sentence hearing that the offending may fall above the mid-range.
18. The matter involves manslaughter by unlawful and dangerous act. The unlawful and dangerous act relied upon is setting fire to the couch on the front patio. The offender deliberately embarked upon a course that was criminal and inherently dangerous. The intention was no doubt to set fire to the lounge not the entire house. However, as was highlighted by the Crown Prosecutor at the sentence hearing the couch was very close to the house and the house was soon involved in the fire after the offender set fire to the couch. The offence occurred relatively early in the morning. The offender was aware of the physical condition of the deceased. The conduct was motivated by revenge, but this is but merely one of many factors that determine the seriousness of the matter. Taking all the facts and circumstances into account I am of the opinion that the matter does fall above the mid-range of seriousness. If further precision is required I find that the matter falls above mid-range by more than just slightly or marginally but not to a significant extent.
19. I turn now to the objective seriousness of the other offence i.e. Destroy Property by Fire. In the decision of the Victorian Court of Appeal in R v Mazur (2000) 113 A Crim R 67 at 74 Winneke P said at [27]: "…I agree with Brooking JA that courts imposing sentences for arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate".
20. Brooking JA in that decision considered the earlier (Victorian) case of Perrone (1989) 43 A Crim R 366. His Honour said in Mazur at [24] that the decision in Perrone was wrong. However, his Honour went on to say (Mazur at [24]) that: "To say this, of course, not to touch the proposition accepted in Perrone that in cases of arson a custodial sentence is not inevitable".
21. My researches have not found a decision of the New South Wales Court of Criminal Appeal that so succinctly states the matter of general principle.
22. In Porter v The Queen [2008] NSWCCA 145 Johnson J (Bell JA (as her Honour then was) and McCallum J (as her Honour then was) agreeing) said at [81]: "The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases."
23. The extent of the damage occasioned by the fire will generally be a relevant consideration - R v Elzakhem [2008] NSWCCA 31 at [45] per RS Hulme J (Beazley JA (as her Honour then was), Latham J agreeing). I observe that the facts in this matter give something of an insight into the level of the investigation that was undertaken in this matter.
24. Again, the motive for the offending was revenge being asked to leave the premises. The premises were part of public housing, which is a scarce resource. Again there was limited planning. The property was entirely destroyed. The conduct of the offender in lighting fire to the couch was deliberate rather than reckless. In all of the circumstances the offence of Destroy Property by Fire is also above mid-range.

Criminal History

1. The offender was born on 6 December 1972 and accordingly was 46 years of age at the time of the offending and is now almost 49 years of age. There is a minor Possess Prohibited Drug conviction recorded on her New South Wales criminal history. However, she has a criminal history in South Australia. The matters recorded against her in South Australia include Use Carriage Service in Harassing or Offensive Way, Disorderly Behaviour, Carry an Offensive Weapon, Assault Police, Damage Building or Motor Vehicle, Hinder Police and Common Assault.
2. The offender's record does not entitle her to any particular leniency. I offered this as a preliminary view at the sentence hearing and I did not understand either counsel to submit otherwise.

Subjective case

1. No oral evidence was called from or on behalf of the offender, however a volume of written material was tendered that became exhibit 1 on sentence. This material includes a comprehensive report from Dr Peter Ashkar, Psychologist and other earlier reports. I will go initially to Dr Ashkar's report.
2. At paragraph 4 Dr Ashkar remarks that it is notable in the context of the subject offence for what largely appear to be emotionally reactive and violent offences. It appears in the report of Dr Ashkar and the earlier reports that the offender was involved as a passenger in a very serious motor vehicle impact in 2009 in which her partner died. The offender suffered a penetrating injury to the left eye and multiple fractures to her head and face. The offender gave a history to Dr Ashkar of being diagnosed with Bipolar Affective Disorder in 2005 but there is no report to support that. That history includes that she was hospitalised in the Glenside Clinic in 2005.
3. Dr Ashkar opines at paragraph 5 of his report that the offender's personality appeared complex and included Cluster B (i.e. dramatic/erratic) traits with borderline addictive features, elements of attention deficit hyperactivity disorder and perhaps an effective disorder personality structure such as cyclothymia which is mild form of Bipolar Disorder.
4. The report then goes into some detail relating to the motor vehicle impact in 2009. It is noted at paragraph 6 that neuropsychological testing three months post injury demonstrated variable attentional skills, poor memory for visual detail and severe impairments in her visual spatial/constructional skills. The fluctuations in attention were possibly explained by her emotional distress.
5. So far as the offences for which the offender appears for sentence are concerned the offender gave a history of smoking cannabis and injecting up to two grams of methamphetamine on most days presumably around the time of the offending. She maintained she only had a "patchy" memory of the offending. She had not been taking her prescribed medication Seroquel. The offender recalled to Dr Ashkar that she was feeling angry with Ms Stroud-Watts for "kicking her out of the house" and "suspected that she set fire to the couch to scare her in retaliation and retribution. She maintained that she had no intention of burning the house down or causing any physical injury or death. She told Dr Ashkar that if she had known that the fire would have caused so much damage she would not have done what she did.
6. The offender expressed regret and remorse to Dr Ashkar. The doctor opines (paragraph 8) that she appeared to be genuine in these expressions. The report sets out what the offender said to Dr Ashkar namely, "I regret what I did, it's harmed a good person…It's put me in here. Every day I think about it…I've got to live with it every day…I hurt two innocent people really when you think about it…it has hit home, it's actually hit the reality that I've done that…Hopefully this experience in gaol is a bit of a wake up call".
7. Mr Wilson SC submits that on the basis of what was said to Dr Ashkar taken with the plea of guilty the court could find on balance that the offender was remorseful. The fact that Dr Ashkar has included in the report quotes from what the offender actually said assists. I am prepared to find on balance that the offender is remorseful. However, as I observed at the sentence hearing the expressions of remorse are untested and while I make the finding in favour of the offender I am not prepared to give that expression of remorse the same weight as if there was evidence from the offender.
8. Dr Ashkar opines that the offender appears to have made a reasonable adjustment to the custodial environment. She is working as a sweeper at the time of the assessment and has completed a number of courses while in custody including an anger management course. At pp 23-27 of exhibit 1 are copies of Certificates indicating the courses that the offender has completed.
9. This goes to the issue of the prospects of rehabilitation. Mr Wilson SC did not submit that the offender had good prospects of rehabilitation. It appears that the offender has developed some insight into her offending and the causes of why she offended on this occasion. However, again as I observed in the sentence hearing it is a little too early to tell. Much will depend on the manner in which the offender engages with the appropriate authorities and agencies upon her eventual release. I am not able to find on balance that there are good prospects of rehabilitation.
10. The report sets that the offender was born in Whyalla in South Australia but grew up in Narrandera. Her father came from Chinese and Aboriginal ancestry and her mother came from German ancestry. Her father worked with the railways and was often away from home during the week. The offender's mother abused alcohol regularly. In fact the offender told Dr Ashkar that her mother was neglectful both physically and emotionally and was abusive. She described her childhood years as very unhappy. She was subjected to excessive physical punishments. She went to school with bruises and she took money from her mother's purse to buy food.
11. Paragraph 26 of the report of Dr Ashkar sets out that findings from an assessment conducted suggest that the offender's offending behaviour past and present is primarily driven by emotional regulation difficulties and substance abuse which predate her traumatic brain injury (motor vehicle impact). There was a history of childhood sexual abuse.
12. Dr Ashkar opines (paragraph 26) that the "stressful and chronic nature of these experiences during her formative years has almost certainly interfered with the normal development of the frontal areas of her brain…and has shaped the development of an unstable personality structure…"
13. These issues clearly enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37. Indeed in this case those principles are enlivened to a very meaningful extent. The moral culpability of the offender is reduced accordingly.
14. Returning to the earlier parts of Dr Ashkar's report he repeats that the offender told him she had "never really worked". She has two sons aged in their late 20's but she has little contact with them. To use the offender's words to Dr Ashkar, "They "grew up in welfare".
15. The offender commenced using alcohol around the age of 14 years but denied alcohol being an issue with her. She commenced using cannabis at about 15 years of age and amphetamine at about 17 years of age leading to her using that substance intravenously around the age of 20. She told Dr Ashkar that she used the substances to hide things such as her negative childhood experiences.
16. The traumatic brain injury suffered in the motor vehicle accident is mentioned again at paragraph 14 of the report. Other reports tendered that were prepared at the time deal with the issue. I will return to those a little later in these reasons. The offender suffers Post-Traumatic Stress Disorder as a result of being involved in that accident. It seems that the offender has never really been appropriately treated for that issue.
17. Dr Ashkar completed a neuropsychological assessment and the results are considered to be a valid indicator of her cognitive abilities. Her general intellectual ability was assessed as low average. Visual abstract reasoning skills were "borderline". However, at paragraph 25, Dr Ashkar opines that the findings from the assessment show that the offender is functioning well within normal limits in most areas of her intellectual and cognitive functioning. Further, there is little or no evidence of cognitive impairment from the traumatic brain injury.
18. The report sets out at paragraph 22 on page 10 of 13 that the offender is in the "high-moderate" risk of recidivism. Given the criminal history but moreover that conclusion by Dr Askhar I could not find on balance that the offender is unlikely to re-offend. I note that it was not submitted on behalf of the offender that the court could make that finding in the offender's favour. Dr Ashkar goes on to say at paragraph 28 that the offender has substantial criminogenic needs that will need to be addressed to minimise her risk of recidivism and management of her substance use will be especially important. Further, she will need to engage in a very structured program to achieve sustainable gains. A transition programme is recommended and Dr Ashkar notes that medication will continue to be an important component of her treatment. On the material before me I could not find on balance that the offender is unlikely to re-offend.
19. These issues indicate that there should be a finding of special circumstances. The offender will require a period of intensive and extensive supervision so far as substance abuse issues are concerned. Given that there must be a lengthy period of imprisonment imposed in this matter the offender will also in my view require quite intensive assistance in reintegration into the community. In this regard I note the recommendation by Dr Ashkar that the offender participate in a transition programme.
20. What I will refer to as a matter of convenience as the mental health issues suffered by the offender all go to reducing the moral culpability of the offender. Despite the comprehensive submissions at p 12 of his written submissions Mr Wilson SC did not submit that there was a causal connection between the mental health issues and the offending. On the material before me it is my view that it would not be possible to find such a causal connection in any event.
21. I now go to the other reports prepared at about the time of the motor vehicle impact in 2009. The "Progress Notes" prepared Dr George Rawson, Psychiatrist are at pp 16-18 of exhibit 1. A history similar to that given to Dr Ashkar is set out at the initial stage of those notes. The offender could not recall the impact. The offender stated that her mood was confused and scrambled. She ruminated about her deceased partner.
22. Dr Rawson opined that the offender's personality appeared complex and included Cluster B traits with borderline addictive features, elements of ADHD and perhaps an affective disorder. Withdrawal from drugs and alcohol may have been contributory. The issues relating to her mother are also mentioned in the report.
23. The notes set out that, "A mental state examination revealed a pleasant woman with slightly puffy face. Her affect was reactive however she was tearful when discussing her partner". The notes go on to record that a neuro-cognitive examination revealed a tendency to concretise proverbs and some auditory retrieval problems but otherwise a credible performance. The diagnosis of Bi-Polar disorder is referred to although it was apparently not Dr Rawson who made that diagnosis. Dr Rawson increased the dosage of Seroquel and indicated that the offender would require ongoing support and counselling.
24. Then there is the report of Dr Elissa O'Connell, Senior Neuropsychologist, which was prepared three months following the motor vehicle impact that occurred on 30 September 2009. The report sets out that the offender sustained multiple injuries including a penetrating eye injury, thoracic and cervical spine fractures, post-traumatic stress. A cerebral CT scan on 30 September 2009 and 1 October 2009 reported no acute intracranial pathology. The Bi-Polar diagnosis and longstanding alcohol and substance abuse are noted.
25. The conclusions reached by Dr O'Connell were that at three months post impact a neuropsychological screen revealed severe cognitive impairments in visuo-spatial relations which included poor visual planning and organisation, poor judgment and line orientation and visual distortions on copy tasks. There was no gross impairment of executive functioning or speed of processing. The report notes that the qualitative nature of the offender's complaints taken with the injury type and current findings do indicate some subtle acquired brain injury effects not entirely accountable by her mood disorder or substance use history.
26. At the risk of repetition I understood Mr Wilson SC to submit on behalf of the offender that this issue goes to a reduction in moral culpability as part of the overall instinctive synthesis in determining the appropriate sentence. I specifically inquired of Senior Counsel as to whether it was put there was a causal connection and he answered essentially in the negative.
27. Dr O'Connell recommended that the offender be reviewed 12 months following the impact. It is not clear whether there was any action by the offender to follow up any of the recommendation of Doctors Rawson and O'Connell.
28. The remaining documents within exhibit 1 relate to what the offender has been doing in custody. Pastor Graeme Beaumont sets out in a letter that he has known the offender since October 2020 and she has become a regular attendee at chapel services. She has been supporting other inmates. She has completed a number of courses, to which I referred earlier. Clearly enough, the offender has developed some insight into the causes of her offending and has indicated by action in attending those courses that she wishes to take positive action. There are some positive signs that the offender wishes to lead a law abiding life on her release. However I do not resile from my earlier finding on the issue of prospects of rehabilitation.

Submissions

1. Mr Wilson SC with his usual thoroughness has provided very comprehensive and helpful written submissions. At Page 3 of the submissions Mr Wilson SC makes submissions on the issue of victim impact statements. There is no such statement before the court in this matter. The facts have been extensively set out. I have made a number of findings on the objective seriousness of the matter and the moral culpability of the offender. I have dealt with the factors of aggravation. The contents of the written submissions at pp 5-6 on s 21A(3) mitigating factors have been dealt with.
2. I have dealt extensively with the deprived background of the offender when dealing with Dr Ashkar's report. I have also dealt with the offender's substance abuse issues.
3. At p 13 of his written submissions Mr Wilson SC makes submissions in relation to what is revealed by the sentencing statistics kept by the Judicial Commission in respect of sentences imposed for manslaughter. I have considered those statistics and the table of cases which is annexed to his submissions. However, I warn myself about the use of statistics in accordance with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 214 at [81] per Garling J.
4. Mr Wilson SC submitted that there were some similarities between the decision of Hampton v R (1998) 44 NSWLR 729 and the matter presently under consideration. The total sentence imposed in Hampton was 11 years with a non-parole period of 8 years 6 months. The matter involved a deliberate setting fire to premises as a result of which three persons lost their lives. The principle issue before the Court of Criminal Appeal appears to relate to special circumstances. For reasons enunciated earlier in these remarks I am firmly of the view that there should be a finding of special circumstances. However it should be observed (as noted by Mr Wilson SC at the sentence hearing) that there has been an upward movement in sentences in the last 20 years.
5. There is the issue of the COVID-19 pandemic, which affects all persons in custody. It is a relevant consideration to all matters where sentences of imprisonment are imposed. I take into account the decisions of Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204.
6. In oral submissions Mr Wilson SC submitted that damage to property was a Table 1 offence. However, I did not understand him to submit that the offender has lost the opportunity to be dealt with the Damage to Property charge in the Local Court. In the circumstances of this case it is entirely appropriate that that matter be dealt with on indictment. Given that the house was destroyed it would have been appropriate for the matter to be dealt with on indictment in any event.
7. The Crown Prosecutor also provided helpful and comprehensive written submissions. I have dealt with the issue of the objective seriousness and made findings as to the submissions made by the Crown as to the factors of aggravation. The Crown appropriately conceded that the principles enunciated in Bugmy v The Queen are enlivened. The Crown argues, appropriately in my view that there should be some partial accumulation between the sentences imposed for the Manslaughter offence and the damage to property offence. Although arising out of the same act, there are different victims and different consequences of the offending.
8. In his oral submissions, the Crown put that the parties were "not far apart". The manner in which the matters I needed to determine was limited is something for which both counsel should be commended. In oral submissions the Crown put, again correctly in my view that the motive explains the commission of the offence.

General Remarks

1. In passing sentence I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty of 25 years and the offending clearly a sentence of imprisonment is the only appropriate sentence. Likewise, given the offending and what will be the length of the sentence the sentence for both offences must involve a substantial sentence of full time custody. I did not understand counsel for the offender to submit otherwise.
3. The parties agree that the sentence imposed should commence on 21 May, 2020; that is the day the offender was arrested and taken into custody.
4. Mr Wilson SC put in his oral submissions that it would be appropriate to impose a fixed term in respect of the Damage to Property charge and then partially accumulate the sentence for the Manslaughter offence. However, I take the view that the more appropriate course is to invoke section 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. I have already dealt with the issue of partial accumulation. The sentences that would have been imposed had separate sentences been imposed are: 1. In respect of the offence of Damage to Property by Fire a total sentence of 2 years 3 months indicating a starting point of 3 years; and 2. In respect of the offence of Manslaughter a total sentence of 9 years indicating a starting point of 12 years.

Orders

1. In respect of the offences to which the offender has pleaded guilty she is convicted.
2. The offender is sentenced to an aggregate sentence of 10 years 3 months with a non-parole period of 6 years 10 months.
3. The non-parole period will commence on 21 May 2020 and will expire on 20 March 2027. The balance of term of 3 years 5 months will commence on 21 March 2027 and will expire on 20 August 2030.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period is two-thirds of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated earlier in these reasons.
6. I direct that a copy of reports of Dr Ashkar, Dr Rawson and Dr O'Connell be forwarded to the Department of Corrective Services with the relevant warrant.

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: 13 December 2021