".… the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."
36 The principle referred to in R v Twala (Unreported, NSWCCA, 4 November 1994) per Badgery-Parker J, with whom the other members of the Court agreed, at page 7 held:
"However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)".
37 The level of culpability in the offence requires, therefore, consideration of any factors in mitigating the objective seriousness of the crime, such as provocation, but does not include subjective features mitigating the penalty to be imposed: see R v Ibbs (1987) 163 CLR 447 at 451-452 and R v Dodd (1991) 57 A Crim R 349 at 354.
38 I do not consider that this is a "worst-case" category crime but, nonetheless, I want to emphasise that I consider this to be a most serious crime, one that had some degree of forethought and acted out with a considerable degree of violence, sufficient to deny another human being the right to live. I consider that there was some degree of loss of self-control induced through drug and alcohol use, which does reduce in part the objective seriousness of the crime.
39 The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve; the protection of society; personal and public deterrence; retribution and reform: see Veen (No 2) (1987-88) 164 CLR 465. The joint majority in Veen (No 2) of Mason CJ, Brennan, Dawson and Toohey JJ at page 476 held in relation to sentencing:
"The purposes overlap and none of them can be seen in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to appropriate sentences but sometimes they point in different directions".
40 Public deterrence is a significant principle objective of sentencing and subjective considerations (with the exceptions of youth and mental incapacity) made on behalf of each offender, no matter how persuasive, will always be subordinate to the primary duty of the Courts, which is to impose a sentence which must principally serve to deter the further commission of similar crimes: R v Rushby [1997] 1 NSWLR 594 at 597-598 and R v Purdey (1993) 65 A Crim R 441 at 445.
41 Retribution for the injury perpetrated by the offender is also an important aspect for consideration in sentencing: see R v Crump (Unreported, NSWCCA, 30 May 1994) particularly at page 22 per then Hunt CJ at CL. In this respect, Hunt CJ at CL held that it is important that not only the community feel satisfied that the offender received his just desserts, but also that the victims, and in this case the family left behind, are satisfied that justice has been done.
42 These principles of sentencing emphasise the fact that rehabilitation is only one of the purposes of the punishment, and as Hunt CJ at CL enunciated in Purdey at page 445, it will always be subsidiary to the need for a sentence to act as a deterrent to the public and particularly as a means of retribution for the crime that has been committed.
43 In terms of general deterrence aiming to discourage by fear of punishment, all persons who may be tempted to commit crimes in general, there is also the factor of specific deterrence directed towards deterring the offender personally from repeating his crime. General principles of deterrence must be adjusted to the individual case if justice is to be achieved in the individual case.
44 Mr Parker, on behalf of the prisoner, made submissions concerning the prisoner's remorse. Contrition and remorse after the offence are mitigating factors and in some instances can lead to a considerable reduction in normal sentencing. Remorse is thus a relevant matter to be taken into account in mitigation, and may exist independently of a plea of guilty which may have been entered into in recognition of the inevitable, and I cite R v Stafrace (1997) 96 A Crim R 452 per Hunt CJ at CL.
45 The prisoner obviously did not plead guilty to the commission of this offence. The prisoner relied on the defence of amnesia, that is, he had no recollection of the event, it being extrapolated that this was due to the Oxazepam overdose. It was submitted on behalf of the prisoner, however, that certain behaviour by the prisoner followed by the commission of the offence was born out of remorse.
46 It was submitted that the actual offence came to notice by the prisoner calling the police virtually immediately following its commission, and that the information proffered to Const. Hinds at Armidale Police Station, although not making any explicit admissions, indicated the prisoner's personal knowledge of the situation that effectively led to the prisoner's arrest and the consequent guilty verdict.
47 It is further submitted that the large dose of Oxazepam, if taken following the commission of the offence, is indicative of a real sense of remorse, particularly if taken to injure himself. It should be noted that the prisoner told an ambulance officer on the way to the hospital:
"I don't want treatment for this overdose".
48 There was further evidence during submissions on sentence given by Mr Noel Allen, with whom the prisoner lived whilst on bail, which indicated that while the prisoner was a very private man and not open to discussing personal issues, there were many things he did and said during this period which led Mr Allen to believe that the prisoner was remorseful for what he had done.
49 I am satisfied and accept the submission of Mr Parker about the prisoner's action in contacting the police and giving them the information and assisting the police in finding the deceased's body. I also consider that the overdose must be construed as strong evidence of remorse. Whilst I acknowledge that there was no plea of guilty and the prisoner does not receive the utilitarian benefit of such a plea, I am satisfied that overall the prisoner's actions in his attempt at killing himself and the effects of the massive drug overdose and his subsequent behaviour indicates a real sense of remorse, and I will take this into account in mitigation of the sentence to be imposed.
50 The age of the prisoner will be taken into account in the sentence I will impose. There is not a lot of useful authority as to how a prisoner's age will be taken into account, The number of cases involving people of the prisoner's age is very sparse for all offences. In R v Holyoak (1995) 82 A Crim R 502 at 507, Allen J, with whom Handley JA and Hulme J agreed, held:
"It is simply not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody".
51 Whilst saying this, Allen J recognised that consideration of age such as a short life expectancy must have some relevance in sentencing, and he continues in Holyoak at 507-508 to identify the principles related to age:
"Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant.
What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear more heavily because of his very age and the real risk that he will never walk free".
52 I take this factor into account in the sentence that I propose to impose.
53 Dealing with the aspect of the prisoner's health, it has been a practice in this Court to take into consideration circumstances which may make imprisonment more burdensome for offenders, particularly health status. These principles were set out in R v Vachalec [1981] 1 NSWLR 351 at 353-354 and include the following factors: the need for medical attention; hardship in prison; and the likelihood of the prisoner's reasonable needs being met whilst imprisoned.
54 The prisoner had surgery in 1983 to remove an acoustic neuroma which gave rise to residual deafness in the right ear and a persistent right seventh nerve facial palsy coupled with epiphora, which is crying from the right eye whilst eating. It is also noted in this report that the neurologist, Dr Hughes, commented on the need for a surveillance brain scan as acoustic neuromas have a tendency to occur bilaterally. The prisoner has significant loss of mid to high tone hearing in the left ear. He has a marked tremor of the upper limbs and head and occasionally involving his legs. The prisoner requires the aid of a walking stick to assist in mobilisation.
55 Whatever sentence the prisoner serves, he will, because of his hearing problem and because of the sense of isolation that that will bring, do his time harder than the normal prisoner.
56 I have also taken into account the case of R v L (Unreported, NSWCCA, 17 June 1996) in a Court judgment where it was held:
"The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed or that a sentence should be less than the circumstances of the case would otherwise require. It is the possibility of the executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351 per Street CJ at 353-4".
57 I have also applied the judgment of King CJ of South Australia in R v Smith (1987) 44 SASR 587 at 589 that the health of the prisoner will sound in mitigation if its effect is to make prison measure burdensome on the offender:
"The state of the health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot not be allowed to become a licence to commit crimes, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that the imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health".
58 That decision was applied by this Court in R v Sopher (1993) 70 A Crim R 570 at 573, where it was held:
"An appropriate balance has to be maintained between the criminality of the conduct in question, any damage to health or shortening of life ... if gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account".
59 The prisoner's deafness and the evidence of early signs of dementia is also relevant. Deafness is relevant, it being held in R v Russell (1995) 84 A Crim R 386 that hearing loss, which is common amongst Aboriginal people, was deemed to contribute to harshness of a custodial sentence. In Ms Hendy's report, the prisoner said that when in a group he cannot follow conversations as it all becomes blurred due to his hearing.
60 I take into account in the sentence I impose the very severe physical problems from which the prisoner suffers.
61 If I may turn to the fact of the prisoner's Aboriginality. In R v Elemes [2000] NSWCCA 235, Adams J held that it was appropriate to take into account that Aboriginal people often find themselves in a position of being foreigners in a gaol environment, and that one needs to take that into account when assessing the hardship of gaol life faced by an Aboriginal person. This is particularly so with the age of the prisoner, where it is unlikely that he will find people of a similar age group to himself.
62 The circumstances for considering Aboriginality as a relevant factor were considered extensively by Wood J, as he then was, in R v Fernando (1992) 76 A Crim R 58 at 62-63, and this authority has been extensively applied since this judgment. At pages 62 and 63 his Honour said:
"(A) The same sentencing principles are to be applied in every case, irrespective of the identity of the particular offender or his membership of an ethnic or other group, but that does not mean the sentencing court should ignore those facts which exist only by reason of the offender's membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment, but rather to explain or to throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the Court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand with Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of punishment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in their pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where abuse of alcohol by the person for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects".