R v Impson

Victim Impact Statements

1. Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statements of John Insley, father of the deceased; Audrey Insley, mother of the deceased; Linda Marie Reynolds and Sarina Collins, sisters of the deceased; and Terrance Insley, brother of the deceased.
2. The victim impact statements were tendered to the Court without objection. No question was raised as to the weight to be attributed to the statements or any attempt made to limit or traverse the use that may be made of them: see R v Tula [2015] NSWCCA 8 at [51]-[81] (per Simpson J, with whom Ward JA and Wilson J agreed).
3. The deceased was 39 years of age at the time of his death. His father described him as a "real character" and said the deceased made him laugh. His mother described him as a "soft-hearted person". The statements advised the Court that the deceased had seven siblings and three sons. His death occurred the night before his younger brother Terrance turned 30. The eldest son of his sister Linda was due to be married on the following weekend.
4. The Court acknowledges the understandable statements of grief that have been expressed by his mother and father, his sisters and brother, who made statements and other family members and of the continuing impact that the murder has had upon them. Pursuant to s 28 of the Crimes (Sentencing Procedure) Act those matters are taken into account in determining what penalty should be imposed upon the offender.
5. After dealing with the objective features of the offence, I will turn to the degree of objective seriousness of the offence and the measure of the offender's moral culpability.
6. All murders are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members, who have attended the trial and are present to hear sentence passed today, to accept that this murder should be categorised as less serious than other murders on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. The fact that the offender's term in prison might be shorter than terms imposed in other murder cases does not reflect any devaluation of Mr Insley's life. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.

Objective Features

1. The fact-finding role following a jury verdict is that described in Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 (see also Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17]. The sentencing judge is required to find the facts material to the sentence. To the extent that findings are based on evidence led at trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. A judge's finding of facts upon which the sentence is based is "both on what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].
2. The offender met the deceased about 6-8 weeks prior to the offence. At that stage she was living as a tenant with a Ms Goodwin and the deceased was living with his parents.
3. The offender struck up a friendship with the deceased and began bringing him over to Ms Goodwin's home. Ms Goodwin said that was breaking her house rules and eventually she asked the offender to leave.
4. When the offender was removed from Ms Goodwin's home, the deceased asked his parents, if she could stay with them. They agreed and the offender lived with them for about 2 weeks. She stayed in the deceased's bedroom. The deceased's parents and his brother Terrance said they were not in a "relationship".
5. The offender then bought a tent on the internet and decided she would live on Picnic Island.
6. By October 2014, the offender was living in the tent on the western side of the island ("the campsite"). The island was covered in trees, shrubs and stones, with the tent being surrounded by the same. The location of the tent was isolated, in an unlit area, some distance away from homes and shops. A path ran across the island to a footbridge, which was connected on the east side of the island to a public reserve ("the reserve"). According to the submission of the Crown, the path was around 200 metres long.
7. Just further to the east of the reserve was Windang Road, which became Windang Bridge. To the north of the island, across the lake, was Oaklands Caravan Park and to the south was Reddall Parade. The island was popular with prawners and fishermen but was itself unpopulated.
8. The offender's living arrangements at the campsite were basic and she had little of the amenities typically afforded by householders. Inside the tent there was an inflatable mattress with bedding on one side and in the middle of the tent, near the entrance/exit, the offender stored items for meals and food preparation, such as mugs, bowls and cooking utensils. There were minimal storage options and the items were easily accessible. There was no electricity and the primary source of light was a candle next to the offender's bed. Outside the tent was an area designated for laundry and cleaning supplies. By ordinary standards the offender's living arrangements effectively rendered her homeless.
9. The deceased continued to maintain residence at his parents' home, which also continued to house a good deal of the offender's property. He lived on the island with the offender from time-to-time. It is clear, on the evidence, that at the time of the offence, the deceased was no longer residing in the tent.
10. I now turn to my findings with respect to the immediate events leading up to the offence.
11. About one month before the deceased was stabbed, the offender met two of the deceased's close friends, Michael Tomschu and Andrew Webber. Mr Webber's first impression was that the offender was "quite bossy", that "she wanted to always be in charge" and the deceased "couldn't speak his own mind".
12. Mr Tomschu said he had never seen the deceased threaten or be violent towards the offender, and Mr Webber said he never saw the deceased act aggressively or violently towards the offender.
13. About two weeks before the offence, the offender went with the deceased to Mr Tomschu's house (Mr Weber was there). Mr Webber thought she had mental issues. After that meeting, Mr Webber told the deceased not to bring the offender around to his house because she was not welcome.

Friday, 24 October 2014

1. A 14 year old boy, Shaun Geoghegan, gave evidence that the day before the offence, he spoke to the offender and the deceased while they were sitting and drinking alcohol on a picnic blanket. However it is likely, as was accepted by the Crown in submissions, this occurred two days before the offence, on 24 October 2014. Mr Geoghegan was fishing on Picnic Island with his brother. He spoke with the pair for about 30 or 40 minutes and said they were getting on fine. The offender and the deceased then left to go to Warilla Grove Shopping Centre.
2. The offender gave an account of what happened on the afternoon of Friday 24 October 2014 in an ERISP recorded on Monday, 27 October 2014 at 4.25 am at Lake Illawarra Local Area Command. The offender and the deceased had an argument in the shopping centre over money and the offender stormed out. She walked to a bus stop to catch a bus to Centrelink. The deceased followed her there and asked to go with her. The offender told the deceased she did not want him to come with her. He persisted then tried to grab her sunglasses, grabbed a hold of her clothes and tried to grab her ponytail.
3. I should interpose at this juncture to indicate that the offender gave evidence in the sentencing hearing in addition to her account in the ERISP. I consider that the offender's evidence was affected by inconsistencies, implausibility and aggressive outbursts, which affected the reliability of her account. Her evidence and the corresponding statements in the police interview, when seen in the light of her reporting history, need to be treated with some caution, particularly when not subject of corroboration
4. At around 3pm, the offender then ran into Warilla Grove Shopping Centre and asked a cleaner, Arlene Villarey, who gave some evidence at the trial, to call the police because she had been assaulted. Ms Villarey called security. The offender then ran into the female bathrooms where she met Kristi Le Fevre. Ms Le Fevre was charging her phone in the bathroom.
5. Ms Le Fevre gave evidence and was cross-examined. The Crown challenged her credibility as a witness because she had to be sent home the day before, when she was originally called to give evidence, because she was intoxicated and when she came back to give evidence presented in a manner, which the Crown says, "would cause [the Court] some concern in accepting anything Ms Le Fevre said unless it was corroborated by some other source".
6. My impression of Ms Le Fevre was that she was an honest witness whose recollections during the course of giving her evidence were obviously affected from time to time by her history of opiate abuse as well as prescribed doses of methadone and diazepam (to treat Ms Le Fevre's anxiety and panic attacks). Her recollection thereby was sometimes faulty and her account in that respect unreliable when so affected. However, there were significant parts of her evidence where her account was clear and cogent and may not be discounted in weight in the manner proposed by the Crown.
7. Out in the shopping centre, Ms Villarey saw a man, whom it must be concluded to be the deceased, she said he was swearing loudly and angrily as he walked in and out of the centre. I make that finding on the balance of probabilities in that respect.
8. A security guard at the shopping centre, Mr McGilchrist, went with Ms Villarey to check on the offender whilst she was in the bathroom. The offender was crying and sitting on the floor with Ms Le Fevre next to her.
9. A few minutes later, the offender and Ms Le Fevre exited the bathroom with Mr McGilchrist who asked the offender if she would like the police called. She initially said the police were useless and if the deceased found out that the police were called he would kill her cat. Mr McGilchrist then convinced the offender to allow him to call the police.
10. The police arrived at the shopping centre and spoke to the offender. Senior Constable Brenton Ward asked her what happened. The offender explained that she was living in a tent and that she was at a bus stop where there was an argument over money. When asked if there was an assault, she said "Well not really, he yelled at me. He's just crazy". The offender requested a record be made in case something happened again. She did not want the police to see the deceased because he would probably "rip up [her] tent" and "make matters worse".
11. The offender returned to the campsite together with Ms Le Fevre. A short while later, the deceased also appeared. The offender was not happy that he had returned, and Ms Le Fevre told him that it would be best if he were to go. However, the deceased stayed at the campsite.
12. At about 9pm that night, Ms Le Fevre gave evidence that the offender was concerned that her cat had not returned. Ms Le Fevre recalled that the deceased said "[the cat will] come back through the [tent] door… in five minutes. He always comes back at around 9.30[pm]".
13. That night, the offender, Ms Le Fevre and the deceased all stayed in the tent.

Saturday, 25 October 2014

1. Two incidents occurred relatively close in time on Saturday, 25 October 2014.
2. In the first incident, the deceased and the offender were arguing. The offender said bong water had been tipped over her although that may be doubted upon the basis of the evidence of Ms Amy Cohen (described below) as to the offender's presentation at that time. The offender and Ms Le Fevre referred to the offender as being forcibly moved into the tent by the deceased (although neither party advanced submissions on that matter).
3. Ms Le Fevre went to the edge of the lake and called out to Tony Youseff who was prawning on the lake. Mr Youseff recalled Ms Le Fevre said a man was going to kill them and the offender said a man was "assaulting us". He initially declined to call the police and the offender said she would sue him if he did not make the call. He then called police at around 10:55am.
4. That same day the deceased collected some items from the campsite. He stuffed them into a trolley and then walked away - together with a double blow-up mattress he had taken from within the tent. The offender and Ms Le Fevre followed him and tried grabbing the blow-up mattress off the deceased at which point the deceased armed himself with scissors.
5. The Crown did not contend that the deceased did not pick up the scissors but suggested that he did so in order to defend himself. It was submitted that the Court should not accept the account by the offender, in this respect, as truthful. Whilst the account of the offender in the ERISP as to this incident appeared to have elements of exaggeration and, in that respect, was not corroborated, the account of the offender in relation to the scissors incident is corroborated by the evidence of Ms Le Fevre; both of whom maintained that the deceased had produced a pair of scissors and threatened them. It is unknown what the jury thought of Ms Le Fevre's evidence on this point. However, in my view, her account in this respect, was clear and cogent and may be accepted as truthful and reliable.
6. After the incident with the scissors, the offender and Ms Le Fevre went to ask other people to call the police. Ms Cohen was standing at the water's edge when the offender asked to use her phone. Ms Cohen called the police for the offender at around 11:30am. Ms Cohen said the offender did not appear injured, wet or smell like cannabis.
7. Senior Constables Worralls and Broers were on duty that morning and admitted that they did not initially respond to the first call from Tony Youseff because they were doing paperwork. Later, while they were in their vehicle responding to another incident, they received a message about a second call (being the call from Ms Cohen).
8. Senior Constables Worralls and Broers responded to Ms Cohen's call at 12:30pm, about an hour and 40 minutes after the first call was received. The police officers attended what they thought was Picnic Island and waited for about half an hour. They were mistaken about the location of Picnic Island and, when nobody approached them, they left.
9. Ms Le Fevre said that she and the offender waited for the police for a period of time before they left. I accept that evidence.
10. At some time on the Saturday, Nicole Harrison discovered a deceased animal on the side of Windang Road. She and her mother took the animal to the RSPCA. Judith Wright called the contact number to inform Ms Imspon that they had her deceased dog (which was, in fact, her cat).
11. The offender was very upset by the death of her cat. At around 5pm, she sent the deceased text messages which said "I know you killed Angel. Watch your back cunt" and "You are a sick monster". Ms Le Fevre stayed with the offender in the tent that Saturday night. The offender told Ms Le Fevre that the deceased had been "traumatising" her and that he would not leave her alone.
12. That same day, the deceased went to Mr Tomschu's house with big bags to take back to his parents' house. The deceased said he was not happy about the situation because the offender had brought a female to the campsite which caused arguments.
13. The deceased also told Mr Webber that he had moved off the island. Mr Webber recalled, "[he was] scared that she was going to stab him because… she already had a knife" and "showed him what she was going to do" (Mr Webber then indicated a stabbing motion in front of him at chest level, a gesture he said the deceased used at the time). Mr Webber said he was aware the deceased and the offender had an argument about the offender's cat and "[his] interpretation was, [that the offender] told [the deceased] that she was going to stab him" because she thought he had killed her cat.
14. Both Mr Webber and Mr Tomschu told the deceased not to go back to the campsite. Ms Le Fevre gave no evidence of the offender making such a threat in the period from which she attended upon the campsite from Friday to Sunday; she was not cross-examined on that fact. The Crown cross-examined the offender with respect to that fact during sentencing proceedings. It was put to the offender that she had an argument with the deceased prior to Sunday and the offender "threatened him with a knife" (the Crown did not suggest that Ms Le Fevre was present at that time). The offender denied doing that and said that Ms Le Fevre was present during the argument that had occurred.
15. As previously mentioned, Ms Le Fevre's evidence was that the deceased made threatening gestures with scissors. Further, the deceased's actions in attending the campsite on Sunday evening showed no signs of concern which may reflect such a threat having been made by the offender. He mentioned nothing of that kind in the conversation with Ms Belinda May-Pahek (discussed below), save for describing the offender as "crazy". I accept the submission made on behalf of the offender that it is unlikely the offender had threatened the deceased with a knife and, in any event, if such a threat was made the deceased was not concerned and treated it as inconsequential.

Sunday, 26 October 2014

1. On Sunday 26 October 2014 at around 1pm, the offender went to a bottle shop. Upon seeing the deceased outside her demeanour changed. She asked Shannon Crilly, an employee at the bottle shop, to call the police. The offender started yelling at the deceased to "get the fuck away". The deceased appeared calm and then walked away. The deceased followed the offender along Windang Bridge while she yelled, "fuck off, leave me alone".
2. At around 1.30 to 2pm, the deceased approach Jeremy Lum and they spoke about fishing. A few minutes into the conversation, Mr Lum saw the offender approaching, carrying a briefcase, yelling "the police have been called, this man killed my cat and assaulted me". The offender continued walking and the deceased followed her over the bridge. As they got off the bridge, Mr Lum saw the offender swing the suitcase at the deceased without hitting him. The offender returned to the campsite.
3. Both the offender and Ms Le Fevre left the campsite that afternoon; Ms Le Fevre needed to go home to take her methadone and the offender needed to collect the remains of her cat. As they were walking, Ms Le Fevre recalled the pair seeing where the cat had been run over and the offender ran onto the road in front of traffic to pick up the partial remains of the cat still on the road. The offender collected the remains of her cat from the RSPCA shelter at Unanderra at around 4pm.
4. After attending the RSPCA shelter, the offender returned to the campsite with the remains of her cat via public transport and placed the remains in a shallow grave.
5. The offender sent the deceased another text message: "You're a liar, a thief and a psychopath. Deny it all you like, I know what you are capable of. Monster". The offender was angry and had a suspicion or belief that the deceased had killed her cat. That anger persisted up to the time he attended later that night.
6. Text messages sent by the deceased on that date included: "Ya nothing but no good cunt of a thing scum bag loser cunt", "And ya horse feed it went missing what a shame" and "All ya stuff is under the house cant enter without permission over and out".
7. That same afternoon, the deceased had drinks with his friends and assured them he was not going back to the island. He left at around 7pm and then had dinner with his parents. After dinner, he left the house for Picnic Island, with an umbrella and a torch. He did not tell his parents where he was going.
8. On his way walking to the Island, walking along Windang Bridge, the deceased called an old friend, earlier mentioned, Ms May-Pahek, at about 8pm. They spoke on the phone for about 20 minutes. Ms May-Pahek recollected that the deceased was laughing about the offender being "crazy". She also said he was going to the tent to "collect his stuff". As to the latter statement, Ms May-Pahek said she only remembered this when she "had a dream" six months before the trial. She had not told the police in any official statement (of which there were two) because she felt too "stupid" to tell anyone. The evidence was given for the first time in the course of her evidence at trial.
9. I accept the submission for the offender that this evidence should not be accepted; particularly in light of the fact the deceased had already moved off the island on Saturday 25 October 2014, had removed a significant portion of his belongings and told his friends he would not go back.
10. At around 8:32pm, the deceased then sent a text message to the offender: "Have you settled down yet?". He did not get a response. The offender's phone was not charged.
11. At around 9pm the deceased arrived at the tent. It was a dark night with the moon setting at around 9.33pm. There was no public lighting and the paths were not lit. The only light on the island was a small candle burning in the interior of the tent and a single torchlight. It was very dark and a good night for prawning.
12. The deceased approached the tent it may be inferred with his torch light on. He did not enter the tent. The offender's account of what followed was given in the ERISP and in her evidence on sentencing was that she emerged from the tent with a carving knife.
13. I accept, on the balance of probabilities, the deceased was uninvited and his attendance was unexpected when he reached the tent that evening. There is no evidence of the offender inviting the deceased to attend. None of the text exchanges between the offender and the deceased on Sunday afternoon indicated or even hinted that the deceased may attend the tent that Sunday evening. In one text message, the deceased confirmed he was near the island and offered to meet up but nothing eventuated: "Im over at the toilet block near the island and dont worry theirs people around ill give ya 15 mins im out of here". There was no reply from the offender and a barrage of abusive messages from the deceased, referred to earlier, followed.
14. Hence, the deceased did not let the offender know that he was attending Sunday evening. The immediately preceding text message would suggest the contrary. There was no demonstrated pattern of regular attendance on Sunday evenings.
15. The Crown's submissions, to the contrary, relied upon the fact that the deceased was previously invited and that the deceased made the offender feel safe by staying with her overnight. Those propositions show no recognition for the changed circumstances operating by the time of the deceased attending at the campsite on Sunday evening after his departure the previous day.
16. The fact that the deceased continued to have "some items belonging to him" and his father at the campsite, as submitted by the Crown, which included a lantern and gas oven, does nothing logically to diminish those conclusions. That fact cannot be depositive of the question as to whether that the offender had or should have had an expectation of the deceased's attendance on the evening of Sunday 26 October 2014. There was no basis for the offender to reasonably expect the deceased would collect his remaining belongings, in the midst of acrimonious relations, late on a Sunday evening. In the absence of Ms May-Pahek's evidence there was no evidence the deceased attended for that purpose. It is difficult to envisage how an "entitlement to his belongings", as the Crown put it, extended to the deceased a right to attend unannounced that evening. After all, the tent was the offender's only home.
17. The greater likelihood is that the deceased's attendance fits the description given of him by his friends as a person who could be "in your face" and insensitive to the personal space of other people.
18. I consider, on the balance of probabilities, that the offender was in a state of fear when she realised that the deceased had come to her tent and she emerged from the tent with a knife.
19. It is true that, as the offender ultimately accepted in cross-examination, she remained angry up to the point of the deceased's attendance upon her tent on the evening of 26 October 2014 because she had a suspicion or a belief that the deceased had killed her cat. She had sent a threatening text to the deceased, although without a specific threat of physical harm. (I have not accepted that Mr Tomschu's recollection of the deceased, referring to the offender threatening the deceased with a knife, may be accepted as evidence that the offender did threaten the deceased with a knife at an earlier time or that the deceased perceived any such gesture as an actual threat).
20. However, it does not follow that the offender did not experience fear (rationally or irrationally) upon the attendance of the deceased at her tent. In the evidence or statements of the offender, she described herself as being afraid and terrified. In the ERISP the offender stated: "Mick turned up, scared the shit out of me". She also stated that she grabbed the "biggest and sharpest" knife - because "that's the one that makes me feel safest" and "Mick was outside the door, I didn't know if he had someone with him, or not. I didn't know what was going on" - she had done so with a view to defending herself. I will refer to some further parts of her evidence, in that respect, at the conclusion of my judgment.
21. As mentioned, the evening in question was dark. There was no light except for a candle. The island was unpopulated. I accept that, whilst Mr Geoghegan was nearby fishing, the offender did not know of the same. She thought she was physically alone on the island.
22. At the time, the offender was in a heightened emotional state not only because of the death of her cat but because of her mental disorders or illness. Dr Furst in his most recent report of 13 August 2018 opined: "In my opinion, [the offender] was probably significantly more fearful than the average person on the night in question when she armed herself with a knife just prior to stabbing and killing [the deceased]".
23. Bearing in mind that opinion, there were a number of immediate background circumstances which were consistent with the holding of such a fear with respect to the attendance of the deceased upon the offender when she was physically alone including: 1. the incident at the Warilla Grove Shopping Centre two days previously; 2. the incident one day prior to the offence in which the deceased threatened the offender and Ms Le Fevre with scissors; 3. the failure of police to effectively respond to emergency calls in those circumstances; and 4. the text messages sent by the deceased on 26 October 2014, where he said "Ya nothing but no good cunt of a thing scum bag loser cunt".
24. The Crown submitted "If you are afraid of someone, you run away from them. You don't pursue them and stab them in the back". However, as I will find, I do not consider that scenario was proved, beyond reasonable doubt, by the Crown.
25. I accept the offender's submission that this finding on sentence is not inconsistent with the jury's verdict because the stab wound was inflicted some distance from the tent, closer to a more populated part of the Picnic Island / Windang Bridge areas (after the footbridge) and it was not apparently in response to an immediate physical threat from the deceased.
26. Thus, the absence of an immediate physical threat at the time of the stabbing does not detract, in my view, from a finding that the offender was fearful when the deceased attended upon the tent.
27. The question then arises, as to whether the Crown's case as to what transpired between the offender emerging from the tent and the stabbing of the deceased may be accepted to the requisite standard.
28. The Crown submitted that the Court should accept the offender pursued the deceased across the island to stab him because she was angry and not because she was in fear. The offender stabbed, it was submitted, the deceased in a controlled and forceful manner. The deceased was running away from the offender to get off the island. I will describe this as the Crown's pursuit scenario.
29. The counterpart version of events given by the offender may be mentioned before turning to consider that question or scenario. In the ERISP the offender said "[the deceased] tried to attack me with an umbrella, chased me down the path. We ended up… stumbling all over each other".
30. In cross-examination in the sentencing proceedings, she indicated, in response to a question which suggested that the deceased's injury did not occur in the course of an accidental stumble, the following: 1. that the deceased and herself had come in contact near the footbridge when he was between her and the footbridge; 2. that the deceased was pushing against her to stop her from crossing the footbridge; and 3. when she stabbed the deceased he was facing her and attempting to prevent her from crossing the bridge.
31. Before further addressing the Crown's pursuit scenario, and the aforementioned evidence, it is necessary to examine the forensic evidence and then some further factual material.
32. Dr Alex Olumbe was a forensic pathologist employed in the Forensic Medicine Unit of the Wollongong Forensic and Analytical Service in October 2014. As he mentioned, he performed an autopsy on the deceased on 28 October 2014.
33. Dr Olumbe opined that the primary cause of death was a single stab wound through the upper left back just on the inner aspect of the shoulder blade penetrating into the left chest cavity resulting in internal and external loss of blood (derived from attempts at resuscitation). The wound extended downwards and forwards. The angle of the cutting implement into the skin's surface when it penetrated the body was approximately 30 degrees; "a very acute angle".
34. The wound measured 40 millimetres and the wound track was 14.5 centimetres. The implement was cutting or facing upwards when it entered the body.
35. The implement tracked through the body hitting the medial margin (or inner aspect) of the left scapula (or shoulder blade) through the trapezius muscle into the chest cavity between the 7th and 8th ribs (making an incision on the upper margin of the 8th rib) and then into the lower lobe of the left lung where the pulmonary arteries are located. The left lower lobe of the lung was the terminal point (that is where the penetration into the body stopped). It there cut the left pulmonary artery.
36. Dr Olumbe further opined that given the implement had "chipped" the shoulder blade and made an incision on the bone of the eighth rib, the amount of force required would be moderate to severe on a scale that ranged across "trivial to mild", "moderate", "severe" and "extreme".
37. Dr Derek Glenn was a specialist radiologist employed as Director of Radiology at St George Hospital, Sutherland Hospital and a Clinical Director of Radiology for Illawarra Shoalhaven Local Health District. His professional duties included reporting CT scans and some of those were for CT autopsy purposes.
38. On 27 October 2014, a CT scan was conducted of the deceased. Dr Glenn produced a report of that scan on 30 October 2014.
39. Dr Glenn noted that the scapula of a young man is a "tough object" and "mechanically strong". He opined that the scapula of the deceased had been breached, and that that injury was "hard to do" and required "strong force". In his opinion, for this injury to occur, force had to be strongly and correctly directed. Dr Glenn opined that it is "not an injury which can occur in sort of a random way, if any - you don't just fall on to something and get an injury like this". He said the force had "been applied in a controlled, steered way".
40. Dr Johann Duflou is a forensic pathologist. He did not perform an autopsy on the deceased but prepared a report to comment on the injury received by the deceased based on Dr Olumbe's report, the transcript of an interview with the offender, reports prepared by Drs Martin and Furst (whose evidence as psychiatrists I will return to) and photographs of the deceased and of the knife.
41. His conclusion was as follows: The deceased has sustained a single stab wound to the back of the chest, causing fatal injury to a major blood vessel in the left lung. The features are those of an inflicted wound by a person using a stabbing motion, with the knife likely held in an overhand fashion, assuming both persons are standing in a roughly upright position. The features of the injury are not those which would be expected in circumstances of self-defence or where there has been a stumble or fall of the two persons involved. … Although there may be circumstances where such a single stab wound could be inflicted in self-defence, this would be extremely unusual, given the location of the wound on the body and direction of the track of the knife. I have not personally seen a wound with such characteristics which is shown to be the result of self-defence.
42. As to his conclusion about self-defence, Dr Duflou accepted that he was not using the legal definition of "self-defence" and did not intend to say the offender did not stab the deceased in "self-defence". Rather, he opined that the deceased had not received a "defensive" type injury. In context, "defensive injuries" are injuries that could be sustained by a person who was the subject of an attack with a knife, namely, the deceased. There were no defensive injuries on the deceased's body.
43. He considered that the force used to stab the deceased was at least moderate, on a conservative estimate, and represented "a good amount of force" but not extreme force.
44. Dr Duflou also gave evidence that a defence type wound might involve turning around so that an injury is sustained to the back but that scenario is "unusual", particularly where the injury to the back is the only injury. He stated in re-examination that no defensive type wounds were found on the deceased and that he was facing away from the knife when it came into contact with him.
45. It follows from the forensic evidence, which I accept, the death was occasioned by one stab wound to the back of the deceased inflicted by the offender and the degree of force used by the offender was moderate to severe. As mentioned above, the stabbing occurred between the footbridge and the reserve. The forensic evidence is inconsistent with the offender's account that the stabbing occurred as part of an accidental stumble or whilst the deceased was facing the offender. That account is also inconsistent with the verdict of the jury vis-à-vis self-defence.
46. Additional factual considerations, bearing upon the above conclusion and which are also important to an assessment of the Crown's pursuit scenario, are as follows: 1. There was no sign of a struggle or any physical altercation at the campsite. 2. Nonetheless, Mr Geoghegan, who was fishing on the island, said he heard a male and female voice talking and it became really loud. He heard things like "you fucking piece of shit", "cunt" and "you dirty slut". He said most of the yelling he heard was from the male. He heard the yelling, then it faded further in the distance. 3. Police did not locate any blood between the campsite and where they located the torch and umbrella belonging to the deceased. Those items were located on the reserve side of the footbridge. 4. An examination of the umbrella identified the presence of blood. 5. Mr Steve Zammit was at his home on Reddall Parade on the southern side of the island, and he recalled at about 10:15 pm hearing a woman screaming hysterically. A group of friends were fishing under Windang Bridge, across from the north side of Picnic Island. Messrs Bradley Wayne Harris, Joshua Williams, Thomas Hilton and Blake Holz recalled hearing multiple screams from a woman in the direction the island. Mr Harris heard a woman scream for "help" and said it sounded like someone was "screaming for their life" and that "it sounded like the person was in trouble". Mr Hilton described the scream as "distressed and in need of help". Mr Williams said at the start he didn't think the scream was "scared" but afterwards it sounded more "distressed". The offender's own evidence of her screams is not inconsistent with those accounts. 6. As to the notion of a pursuit per se, the only evidence directly bearing upon the issues other than the account of the offender, was the group of friends who saw one or two "shadows" or "silhouettes" moving quickly across the footbridge. Their evidence was as follows: 1. Messrs Harris, Williams, Hilton and Holtz were fishing under the Windang Bridge (opposite Picnic Island) at night around 8pm; 2. Mr Williams only saw one "shadow" running towards the footbridge and recalled one light source - "like a phone light or something like that, maybe a little torch". 3. Mr Hilton saw "a faint shadow of something running across the bridge". He described it as "someone running with a phone torch or some sort of torch" for about 20 metres towards the road. 4. Mr Harris confirmed he saw "two people running" from the bridge south towards the road and that "the second one looked like they had some sort of light". 5. Mr Holz said he saw "two black figures [or "silhouettes"] [run across the footbridge that divides the island and the mainland] and one or both of them had a light". He said they were around 5 metres apart. He also recalled: "The first one definitely had it [a light]" (that he thought was from a "torch") and he saw it head towards the road. Mr Holz also thought the second person might have had a torch. 6. No further indicia assisted with the positive identification of either figure. None of the fisherman could identify the gender of either figure. 1. During the sentencing hearing, the Crown submitted that, in the light of the evidence of eyewitnesses that saw two people running, "it is clear the only inference can be that it was [the deceased] who was the first. So of the two people running, [the deceased] is the first and the second is behind him some number of metres and they run in that formation for some time". 2. The evidence of the fishermen only confirms that both the accused and the deceased moved from the island across footbridge in the direction of the road. It is not proof of a pursuit across the island. It is clear that the figures were running, and that one was ahead of the other, but it does not follow that the only inference is that the offender pursued the deceased as there was no identification of the persons or even gender by the fisherman. Whilst the "formation" of the two people running may suggest a pursuit, without positive identification, it does not follow that the offender pursued the deceased or that the two were consistently in that formation across the whole island, bridge and reserve, particularly in light of the inconsistent accounts as to which figure had the light source. In any event, it cannot be determined whether the light was emitted by the offender's or the deceased's torch. The deceased's torch was found within the vicinity of the footbridge on the reserve side and the offender's torch was found on her person at the time of her arrest.
47. The Crown has not established beyond reasonable doubt, in my view, that the defendant pursued the deceased across the island from the campsite in a state of anger and stabbed him as he was attempting to get off the island or onto the reserve. The deceased was demonstrating no signs of fear or retreat after the offender emerged from the tent with a knife. The words spoken by him and the manner of his delivery of them exhibited aggression and, as senior counsel for the defence submitted, management or control. Further, I do not accept the Crown submission that the evidence demonstrated that screams heard by the deceased and the offender moving across the island were consistent with "[the offender] screaming at the deceased because she [was] angry at him" but rather of a woman under severe distress and calling for help. As earlier mentioned, that evidence does not sustain a pursuit across the island to the footbridge into the reserve. Further, in that light, and having regard to my findings in relation to the silhouettes, the order or formation of the two persons at all times after the footbridge is inconclusive.
48. After the deceased was stabbed, Kayla Stratton and Mitchell Carruthers saw the offender step on the Shellharbour Road near Windang screaming hysterically. They then saw the deceased signalling cars. Jacqueline Davidson stopped the car on the bridge and assisted the deceased.
49. The offender, whilst still standing in the middle of the road waving down cars on the southern end of Windang Bridge, noticed a prawner with a torch, Mr Stephen Windram. The offender stepped through a fence and went towards him. She had a "white-knuckle grip" on a knife, and told Mr Windram she stabbed someone. Mr Windram said the offender "didn't look right" and "terrified" so he asked her: "what drugs are you on?". He told her to drop the knife, that he knew where police were, and that he could take her to them to help. The offender seemed hesitant at first, thinking Mr Windram would take her to "the toilet block" (which was situated nearby). Once she realised he was heading in the direction of the police she followed him "like a puppy dog".
50. Senior Constables McMahon and Sommers were on Reddall Parade for an unrelated incident. Mr Windram walked with the offender to Senior Constable McMahon and said that "This woman had a knife" and "She said she stabbed someone". The offender said "He killed my cat and attacked me. Why didn't you come yesterday to help me?". Senior Constable Sommers put the offender under arrest, to which she said "So I'm the victim and I'm in trouble" and when asked if she had a knife, she said "I just defended myself. I had a knife and he had an umbrella".
51. My finding that the deceased attended the campsite uninvited and without notice, when considered in the context of the knife being ready at hand (the cooking utensils being in the middle of the tent where she was situated), the offender's heightened emotional response to the death of her cat, her mental conditions and state of fear when the deceased attended the campsite, must result in a conclusion, on the balance of probabilities, that the offence was unplanned and spontaneous.
52. The offender also submitted that there was a degree of provocation in the deceased's behaviour in going to the tent on the night of the offence, even though that factor did not amount to a defence as such. Many of the same factors were also relied upon by senior counsel for the offender to demonstrate the absence of pre-planning, spontaneity and fear.
53. In my view, the deceased attended upon the offender on the evening of 26 October 2014 in circumstances where he may well have expected an emotional response from the offender. He knew she was alone at night in the tent with no lighting other than a torch and a candle. He would have known the island was isolated and unpopulated. He would have also known that persons occasionally attended for the purposes of fishing or prawning.
54. The deceased also knew that the offender was angry with him as he sent a text to her saying "have you settled down yet?". He had received no reply to that text. It may be doubted he had a substantial knowledge of the offender's mental illness or disorders but nonetheless he had described the offender shortly before the offence as being "crazy" to Ms May-Pahek. As I have observed, the deceased was a person who sometimes did not understand the need for personal space although he was not himself an aggressive person. It is also clear that he attended to engage in a quiet forthright manner with the offender having regard to the verbal encounter that had occurred upon the offender emerging from the tent.
55. It follows, in my view, that there was a modest degree of provocation by the deceased at the time of his attendance upon the campsite.

Mental Condition

1. A substantial issue in submissions on sentence was whether or not the offender's mental conditions, namely, borderline personality disorder and bipolar affective disorder, contributed to the commission of the offence such that there was a causal connection between the condition(s) and the commission of the offence.
2. I will commence the discussion of this topic with some historical considerations bearing upon that question.
3. The offender had a demonstrated history of mental illness. She reportedly had personal difficulties with people when she shared a home as a result of mood instability. This resulted in her itinerant lifestyle. She went from medical centre to medical centre seeking help for her mental disorders. She did not follow up psychological care and was not under the care of a Community Mental Health Team.
4. She was first prescribed antidepressants following a miscarriage at the age of 23. From that point she was treated intermittently throughout her twenties and thirties with antidepressants.
5. The offender was diagnosed with depression at Albion Park Rail Medical Centre on 28 November 2013. In the months prior to the offence, the offender had been prescribed Citalopram 20 mg orally daily for depression. However, from about the time of her homelessness, she was not taking any medication consistently.
6. After incarceration, a diagnosis of depression was made by Dr Andrew Watt. On 22 September 2015, he assessed the offender and noted she was suffering from a major depressive episode and borderline personality disorder. On 29 September 2015, Dr Watt maintained his diagnosis and prescribed Fluvoxamine up to 100 mg daily.
7. On 13 November 2017, Dr Sue Morgans, the offender's Justice Health treating psychiatrist, diagnosed the offender with bipolar affective disorder. That led to an adjustment in treatment which was ongoing with Fluvoxamine and then Epilim (Sodium Valproate). The offender's dosage of Epilim was subsequently adjusted, following clinical improvements arising from treatment, with several aspects of the offender's condition appearing to be brought under control.
8. During the sentencing proceedings the offender confirmed her antidepressant medication and dosage was "completely different" post-incarceration. She confirmed that she was prescribed the antidepressant Fluvoxamine 200 mg daily and the mood stabiliser Epilim 900 mg daily (400 mg in the morning, 500 mg in the evening) (which was confirmed by Dr Furst in his report dated 13 August 2018). She described a difference in feeling: "I have a rational mind for the first time" and "I'm in control of my emotions to a much better degree".
9. There was no dispute at trial that the offender suffered from the two aforementioned mental conditions. That concurrence conformed to the opinions of the two psychiatric experts called in the proceedings: Drs Martin and Furst, each of whom had the opportunity to interview the offender whilst she was in custody in preparation of their respective reports. Both experts accepted that the classification of the offender's mental conditions as "chronic" underlying conditions that could be described as "lifelong conditions".
10. The genesis of the dual diagnosis of bipolar affective disorder and borderline personality disorder was the diagnoses and treatment provided by Dr Sue Morgans in November 2017, after more than two years of close observation of the offender's mental state. Both Drs Martin and Furst agreed with Dr Morgans' diagnosis. The divergence between the two doctors in their evidence at trial was the degree, if at all, to which the dual conditions affected the offender's actions on the night of the offence. For reasons I shall provide below, I consider those dual conditions were, in fact, operating on that evening and contributed to the commission of the offence.
11. Although an offender's mental state may not amount to a defence, it is nonetheless a relevant consideration on sentence in the ways identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28; 205 A Crim R 1 ("De La Rosa") at [177]-[178] as described below.
12. Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a consequential reduction in the sentence.
13. A finding as to the contribution of mental illness may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
14. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
15. However, as was observed by Simpson J in Aslan v R [2014] NSWCCA 114 ("Aslan") (at [34]-[35]), it remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence for which the offender is to be sentenced.
16. Senior Counsel for the offender submitted there are two pathways towards formulating a resolution to the question as to whether there was a causal connection: the psychiatric evidence before the Court; and the exhibited history of the offender's behaviour in a family setting and in the context of various tenancy arrangements and that both demonstrated a causal connection between the commission of the offence and the mental conditions afflicting the offender. I accept that submission. As there was little by way of contradictory submissions advanced by the Crown as to the latter pathway, I shall focus on the former.
17. In that respect, I accept the submission advanced for the offender that the evidence of the offender's mental state given at trial, including the opinion of Dr Furst (and including the psychiatric report tendered in the sentencing hearing) whom I prefer, to the extent of any inconsistency, to that of Dr Martin, provides the factual basis for a finding that the offender's mental conditions contributed to the commission of the offence in a material way, even though the partial defence was rejected by the jury.
18. In R v Bell (1985) 2 NSWLR 466 (at 485), Lee CJ at CL said: The rejection of [provocation and self-defence] … (or any other defences) does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent, of the factual basis upon which they rested. If the sentencing judge is satisfied from the credible evidence in the case that there was a degree of provocation, he may take it into account as a mitigating factor; likewise [for example], if the judge is satisfied from credible evidence that there was an element of self-defence involved in the killing.

Dr Furst

1. Some further observations regarding the psychiatric evidence are appropriate. I will commence with the opinions of Dr Furst.
2. Dr Furst provided two reports for the purposes of the trial (dated 17 November 2015 and 19 February 2018) and then gave evidence at trial. He has now seen the offender on five occasions: 7 October 2015, 11 September 2017, 13 April 2018 (during the trial), 5 June 2018 and 31 July 2018. He has reviewed the offender's Justice Health (psychiatry) and the Department of Corrective Services (psychology) notes, and extensively reviewed other evidence. I agree, with the submission of senior counsel for the offender, that overall there is a consistency in his opinions as to the offender's presentation.
3. Dr Furst produced another report in preparation for the sentencing hearing dated 13 August 2018. I will return to his conclusions in that respect below.
4. In his first report, Dr Furst opined that the offender "does not appear to have bipolar disorder" but stated that such a possible diagnosis could not be "discounted entirely". He initially diagnosed the following mental disorders: major depressive disorder, substance use disorder and personality disorder, not otherwise specified.
5. In his second report, Dr Furst accepted "it [was] likely that the two primary mental disorders of [the offender] [were] bipolar affective disorder and borderline personality disorder, "with episodes of more severe depression on occasions, episodes of mania or hypomania, and generally poor coping skills or interpersonal difficulties, as a product of her mental disorders".
6. He also confirmed, on the issue of substantial impairment, he was satisfied that as at 26 October 2014 the accused had both bipolar affective disorder and borderline personality disorder. He accepted they were pre-existing conditions, with neither being transitory at the time of the offence, and properly classified as "abnormalities of mind".
7. In cross-examination as to his two reports, Dr Furst accepted the following with respect to "bipolar disorder": 1. it is not the case that everyone that has bipolar suffers from an abnormality of mind that substantially impairs them; 2. there are people with bipolar who function quite well in the community; 3. bipolar is episodic; 4. there are periods when a person might be displaying the depressed side and times when a person might display the manic side; 5. there are times when they might display neither; and. 6. there was no evidence of the offender being delusional.
8. However, Dr Furst opined that the medical evidence "overwhelmingly" suggested that the offender had bipolar affective disorder. Further, whilst he accepted the disorder may properly be "episodic" he maintained that the condition "doesn't go away though, it is still there".
9. Dr Furst was not cross-examined with respect to the offender's diagnosis of borderline personality disorder and whether it was operational at the time of the offence.
10. In his further report of 13 August 2018, Dr Furst opined, "[a]s expressed in [his] earlier reports and in oral evidence, [the offender] was likely suffering from bipolar affective disorder, depression and borderline personality disorder at the time of the events in question before the court on [26 October 2014] at Lake Illawarra that led to the death of [the deceased]". He continued, "[the offender] is also prone to mental instability, high levels of anxiety and interpersonal difficulties as a consequence of her bipolar affective disorder, depression and borderline personality disorder".
11. In that report, he also identified the basis for a causal link between the offender's mental health and the commission of the offence. He said: [I]t would appear from the available evidence and history provided by [the offender] that she was highly fearful of [the deceased] on the night in question. It would also appear likely that the fear she was experiencing in relation to her personal safety was partly driven by the actions of the deceased towards her and [the offender's] isolation and vulnerability as a woman camping on Picnic Island on the night in question. In my opinion, it would also appear likely that her fears for her safety were accentuated by her symptoms of depression, anxiety, stress and her underlying bipolar affective disorder and borderline personality disorder, even if her mental disorder at the time falls short of the partial defence of manslaughter. [The offender's] underlying mental disorder in the form of depression, borderline personality disorder, lack of trust in others, social isolation, interpersonal sensitivity, emotional frailty and poor coping skills under stress are probably a function of her history of childhood traumas, rejection by her family and other life traumas and rejections. Those factors mean that she lacks mental fortitude compared to the average person, making her more vulnerable to real or perceived threats from others. In this respect, real and/or imagined threats from the deceased at the time of [the offence] are also relevant mitigating factors, as the average person would likely have held fears for their safety based on the facts scenario outlined in the Crown Case Statement and evidence presented in her recent trial. In my opinion, [the offender] was probably significantly more fearful than the average person on the night in question when she armed herself with a knife just prior to stabbing and killing [the deceased].
12. The evidence of Dr Furst in his final report was not challenged by the Crown.

Dr Martin

1. I turn then to the evidence of Dr Martin. Dr Martin provided three reports for the purposes of the trial dated 23 September 2016, 18 October 2016 and 19 March 2018. He met with the offender on one occasion: 2 September 2016. He reviewed the same material as Dr Furst. However, Dr Martin conceded that he only watched 40 minutes of the ERISP.
2. Nothing of particular moment turns upon Dr Martin's second report, which primarily concerned whether the offender's offending occurred in direct association with her grandmother's offending; who was found not guilty by reason of mental illness for the murder of her husband in 1996.
3. In his first report, his primary diagnosis was that of borderline personality disorder (in association with substance use disorder). He did not express an opinion with respect to whether or not the offender met the criteria for bipolar disorder. He described borderline personality disorder as being characterised by instability and moods changing quickly and noted that persons with borderline personality disorders can have volatile relationships.
4. He also opined, in his first report, "there is evidence that [the offender] has had significant psychological problems leading up to the alleged offence" and concluded: From a psychiatric perspective, her account of being highly distressed and perceiving threat, on a background of mood instability, substance misuse and a history of dysfunctional relationships, appears to me to be a plausible set of circumstances. If her account is accepted, it suggests that her capacity to control herself could have been significantly impaired.
5. A foundation for Dr Martin's conclusion that the offender's "account of being highly distressed and perceiving threat" represented a plausible set of circumstances is to be located not only in that extracted summarised opinion (at [147]) but earlier in the same report where he identified the aspects of the surrounding circumstances upon which that conclusion was also predicated: In my opinion, there is evidence that she has had significant psychological problems leading up to the alleged offence. She gives an account, which I think is corroborated by some of the other witness statements, of having been highly emotionally aroused in the time leading up to the alleged event. There are witness statements reporting screaming around the time. There is evidence of altercations in the days before. Copies of text messages show an ongoing dialogue of an angry nature around the death of her cat. She gives an account in the days prior of drinking and using cannabis although was apparently not obviously intoxicated at the time of the alleged offence. She has given a historical account of having been involved in dysfunctional and violent relationships. It is plausible that, as per her version of events, that in the context of distress and emotional arousal, that her capacity to act rationally was compromised and that she believed she had to defend herself.
6. As to examples of corroboration and consistency, when considered against the account of the offender, Dr Martin noted the following: 1. medical records which support her having had mood problems, with depression and anxiety; 2. the witness statement of Ms Le Fevre and other witness statements "giving an account of some type of altercation with the deceased and the offender two days prior to the alleged offence"; and 3. the typed transcript of the ERISP, "[the offender's] responses in the typed transcript of the police interview which occurred on 27 October 2014, where essentially she gives an account of having acted in self-defence and gives similar reasons to that which she gave to me during my interview".
7. By his third report, Dr Martin, in partial reliance on the proviso in the aforementioned extract from his first report (at [147] above), opined: [W]hile it may be the case that she has an underlying mental disorder such as bipolar affective disorder, there is not much evidence of her having a grossly abnormal mental state around the relevant time and there is not much evidence to suggest that her capacity to control her actions was detrimentally affected by being acutely mentally ill. In my opinion, there is not an obvious nexus between her having symptoms of acute mental illness and the alleged offending. I do not wholly agree with Dr Furst's expressed opinion that "her capacity to judge right from wrong according to the standards of ordinary people was impaired by the symptoms of depression, anxiety, stress and fear that she was experiencing, stemming from her significant underlying mental disorder in the form of bipolar affective disorder, major depression and borderline personality disorder" Although as noted in my original report, there are some witness statements to the effect that she may have been emotionally aroused and angry around the time, this is not strong evidence of sustained mood disturbance or mental illness affecting her capacity to judge her actions or control her behaviour.
8. The context in which Dr Martin came to give that further opinion included questions formulated by the Crown for the preparation of the third report as follows: 1. "If the history given was unreliable would that affect the opinion expressed?" 2. "If [the offender] has a history of making false allegations would that affect your opinion?" 3. "If it was the case the deceased had not engaged in violent behaviour toward the accused would that affect the opinion you expressed about [the offender's] state of mind at the time of the stabbing?"
9. During cross-examination, Dr Martin explained, the source of his revised position as follows: "given an assumption that if there was evidence that [the offender] had a history of being untruthful, that perhaps her account wasn't … entirely truthful". That was a reference to the account the offender provided at her first interview with Dr Martin in September 2016 and the questions posed to him by the Crown.
10. Further, Dr Martin posited in his third report, in that respect, that if the account of the offender was demonstrated to be inaccurate or unreliable then it would raise scepticism about "the ultimate issue about her reported state of mind at the material time and the circumstances of the alleged offending". If there was a demonstrated history of false reporting, he opined "it probably would affect assessment of her mental state at the time of the alleged offending and would detract from the proposition that she was substantially impaired at the time of the events".
11. Specifically, as to the assumption Dr Martin was asked to make with respect to deceased's behaviour, in the same report, he opined: [if that] were the case, it would detract from the proposition that [the offender] was genuinely fearful and motivated by the perceived need for self-defence. A psychotic person might believe that they were threatened and act out of self-defence for delusional reasons but the evidence does not point to her having a delusional illness. Another hypothesis might be that she has reconstructed an untruthful narrative after the fact where she has given an account of her being threatened to justify her alleged actions.
12. The following observations may be made at this juncture: 1. Prior to the production of the third report of Dr Martin, he was not provided with any specific instances to consider as to when offender was "not entirely truthful" (in other words, the three questions referred to above contained the broad assumptions from which he produced his third report). 2. During cross-examination, Dr Martin stated, in light of making those assumptions, he "was slightly more sceptical" and he accepted that assumptions were attributable to "the difference in the opinions between [his first and third] reports". 3. In closing remarks, senior counsel for the offender also highlighted that Dr Martin did not re-interview the offender, with respect to that assumption - "he [did not] give her the opportunity to explain". 4. Dr Martin was responding to the second report of Dr Furst in which an opinion as to the existence of bipolar affective disorder was posited. His reference to "acutely mentally ill" seems to fix upon that further diagnosis. I will return to that disorder after further exploring the difference between the opinions set out in his first and third reports.
13. Dr Martin was cross-examined, specifically, with respect to his changed position between his first and third reports which was productive of the following evidence: 1. As to whether Dr Martin agreed with the opinion in his first report he gave the following evidence: "I'm less convinced. I think the important phrase there is 'if her account is accepted'. So when I saw [the offender] in September 2016 she gave me an account; I had a certain amount of information; said it sounds plausible that she was, indeed, being threatened and being stalked. When I wrote the more recent report I had some further information" (he confirmed the DVD disc of the ERISP formed part of that "further information"). 2. When pressed further and asked to consider "if it were the case that in fact [the offender] had not lied to the police and that she had a very long history, an identifiable history of having misperceived events in terms of her relationships with others" would he stand by the opinion in his first report, Dr Martin's reply was vague and expressed in the following terms: I think, I think there are potential - you know, there are different hypotheses of what could have been happening, whether she has been completely truthful or whether it has been a general misperceptions, so. 1. During cross-examination, Dr Martin was also asked to accept that there was evidence that the deceased had held a pair of scissors in his hand and made a threat to the offender and that such evidence, if accepted, would be evidence of threatening behaviour by the deceased to the offender. The following questions and answers ensued: Q. That could be, in light of [the offender's] diagnosis of borderline personality disorder, an event that [the offender] misperceived, is that right? A. Yes. Q. It could also be an event that she was quite properly fearful about? A. Yes. Q. And it could well have contributed to a very high degree of stress in [the offender]? A. Yes. Q. And against the background of her borderline personality disorder, that very high degree of stress could have caused quite considerable mood swings? A. Yes. Q. And could have caused - the stress in itself could have then caused further misperceptions? A. Yes. 1. As to the common symptom of "mood swings" he observed: in borderline personality disorder a person's mood disturbance "is a change from being fairly placid to being angry very quickly or being very distressed very quickly and then changing back. The mood disturbance in bipolar is very different, in that it is not just feeling happy or feeling sad, [it is] all the other symptoms which go with it". He gave the example of "a manic person" - that person would not be sleeping at all, would be speaking constantly and would be spending recklessly. Dr Martin said "you don't get that with borderline personality disorder".
14. I turn then specifically to the diagnosis of bipolar affective disorder.
15. Notwithstanding his acceptance of the diagnosis by Dr Morgans, in light of the ERISP, Dr Martin opined "there [was] no suggestion that [the offender] was psychotic. She present[ed] in an organised manner and gives an ordered account of the events leading up to her arrest, and [did] not demonstrate affective or cognitive features of psychosis. … she [did] not appear to be seriously mentally ill at the relevant time".
16. As to "bipolar disorder", Dr Martin expressed the following opinion in his third report: 1. He stated that persons with "a bipolar disorder" (not limiting his evidence to bipolar affective disorder, in that respect), are not, by that fact alone substantially impaired in relation to their ability to know right from wrong, control themselves or judge events around them. He opined: [there was] not much evidence to suggest that her capacity to control her actions was detrimentally affected by being acutely mentally ill. In my opinion there is not an obvious nexus between her having symptoms of acute mental illness and the alleged offending. 1. He explained that "bipolar disorder" is characterised by "sustained mood disturbance" lasting weeks. Upon review of a recording of the offender's ERISP, he observed, "[the offender's] presentation… [was] not consistent with sustained mood disturbance at the material time as might be seen in a manic or depressive episode." He supported this conclusion by noting there was very little evidence of "very sustained or serious mood disturbance" in how the offender presented at the time of the stabbing (by which he meant the ERISP). He also relied upon the absence of evidence that the offender had ever been delusional or psychotic.
17. In his third report Dr Martin defined a delusion as "a fixed, false belief held despite incontrovertible evidence to the contrary, and out of keeping with a person's cultural background". He said a delusion is evidence that a person is "out of touch with reality". During cross-examination, senior counsel put the evidence with respect to the offender's suspicions surrounding the death of her cat, to Dr Martin. Dr Martin accepted the following: 1. the offender was informed that her cat had died from having been run over by a person who worked at the RSPCA and that the offender accepts the fact that she was told this; 2. shortly after being told how her cat died, the offender told a number of people that the deceased had killed her cat; and 3. the propositions, with respect to the death of the offender's cat, are "quite inconsistent".
18. During cross-examination, Dr Martin was also asked to consider the persistence of the offender to maintain such a belief, despite objective evidence to the contrary, suggested the belief was "delusional". He opined: It could have been, or it could have been an alternative narrative to support her way of thinking about and so it could have been it may have not been a truly fixed and held truly held belief.
19. Dr Martin then accepted, during the same line of questioning, that he was not in a position to say whether or not that was a delusional belief on her part as he had not "put it to [the offender]" or otherwise explored the issue with her. Nonetheless, in re-examination, Dr Martin confirmed that the offender did not display evidence of being delusional in what he observed of her.
20. When cross-examined with respect to the "bipolar affective disorder", he accepted the following: 1. that the offender had "chronic" conditions; 2. that the offender had been diagnosed with bipolar affective disorder; and 3. that bipolar affective disorder and borderline personality disorder had been present in the offender for a number of years before the offence and that the offender continued to suffer symptoms, consistent with the diagnoses of bipolar affective disorder and borderline personality disorder, after October 2014.
21. However, in relation to the same, Dr Martin stated that accepting the offender had "chronic" conditions was indicative of a "vulnerability to major mood disturbance. It [does not, in and of itself,] point to exactly how [the offender] was at that material time." Further, when cross-examined with respect to the ERISP, whilst accepting he did not watch the entirety of the ERISP, he opined that it would not be expected that someone who was suffering from a major mood disturbance would have settled in the hours between the stabbing and the conduct of the interview.
22. In the same report, with respect to borderline personality disorder, Dr Martin opined: 1. "Whether borderline personality disorder is accepted as a serious mental condition leading to substantial impairment is a legal issue. The court may choose to distinguish personality disorder as a long-term description of character traits as opposed to a discreet [sic] mental illness." 2. "People with borderline personality disorder can experience fleeting transient psychotic phenomena under stress and are certainly prone to cognitive distortions and primitive psychological defences, and are likely to misinterpret others' actions. However, this is a very different style of thinking to delusional thinking, where a person has a very clearly impaired reality testing, held illogically, and where thoughts are not changeable when confronted with evidence to the contrary." 3. Whilst lying is a characteristic of borderline personality disorder, "[t]he fact that she has been charged with a serious offence raises the possibility that she is deliberately lying as a means of evading responsibility in order to confer legal advantage." 4. Dr Martin also said "[a]t the time of [his] original report, [he] made the assumption that [the offender's] reporting of her mental state was accurate and [he] was unaware of any particular inconsistencies which made [him] think that her account was untruthful".
23. During cross-examination, Dr Martin accepted the following propositions: 1. the offender was diagnosed with bipolar affective disorder; 2. the summary of the medical history that revealed borderline personality disorder and bipolar affective disorder have been present in the offender for a number of years before the killing of the deceased; 3. the offender continued to suffer the same symptoms shown before October 2014, after October 2014; 4. neither borderline personality disorder or bipolar affective disorder disappeared on the night of 26 October 2014 or in the days leading up to the offence; 5. the ability to make rational decisions based on all of the information that is objectively available (i.e. "executive judgment") can be affected by borderline personality disorder or bipolar affective disorder. It can also be impaired by both conditions; 6. whilst emphasising that both conditions are different, he accepted that bipolar affective disorder and borderline personality disorder, if they are not medicated or otherwise treated, will result in an impairment; and 7. in terms of the offender's mental state closer to the time of the murder, the observations of witnesses around that time are relevant to an assessment of "what [the offender's] mental state might have been like.. at the time [of the offence]".
24. In my view, the opinions of Dr Furst as to the offender's mental conditions operating at the time of the commission of the offence, the relationship between those conditions and her perceptions and responses, including perceptions of fear from the attendance of the deceased at the campsite (or reactions to the same) on the evening of Sunday, 26 October 2014 and, thereby, the contribution of her mental illnesses or disorders to the commission of the offence, should, as I have observed, be accepted.
25. Even though the opinion of Dr Furst had undoubtedly evolved between his first, second and final report, his opinion, overall, was consistent, measured and objective. Further, the psychiatric evaluations as to the offender's mental health by Dr Furst were predicated upon a substantial number of interviews with the offender and, ultimately, the existence of surrounding circumstances (including the state of fear held by the offender when the deceased attended upon the campsite on the evening of 26 October 2014) that are consistent with the factual findings in this judgment. Overall, as I have previously observed, I prefer his evidence to that of Dr Martin; although, there are parts of Dr Martin's evidence, when understood in the light of my findings, which are consistent with Dr Furst's analysis.
26. Dr Martin's third report revealed a material change in opinion from his first report in September 2016, albeit that it was arrived at under the proviso built into the principal conclusion in his first report. The report was responsive to the assumptions posed by the Crown for that report. In summary, as Dr Martin explained during cross-examination, he was asked to make an assumption that the initial account provided by the offender at her first meeting with him was, broadly, untruthful. Whilst that assumption made him more "sceptical" of his initial opinion, he did not entirely withdraw from it but, rather, adjusted it in the light of the issues raised with him by the Crown and further information he received (such as the ERISP and additional Justice Health notes).
27. When seen in that light, the opinions expressed in Dr Martin's third report must be given less weight insofar as they are predicated upon factual premises inconsistent with the findings by this Court in sentencing the offender, particularly as they concern the contribution of the offender's state of mind (and mental illness or disorders) to the commission of the offence. Of particular significance is Dr Martin's scepticism as to whether the offender was emotionally aroused, fearful and distressed (whether rationally or not) from the deceased's unexpected attendance upon the campsite on the evening of 26 October 2014 and the consequential impact of those considerations upon the conclusions as to the existence or operation of her mental conditions at that time. Thus, as Dr Martin accepted, if the scissors incident did occur in a way that was threatening to the offender, that would have contributed to her fear and high degree of stress immediately prior to or at the commission of the offence. This must cast some doubt on the veracity of the opinions expressed in his third report and in Dr Martin's evidence at the trial, particularly having regard to the contrary views expressed between his first and third reports.
28. This gives rise to a question as to how much of the opinion in the first report of Dr Martin may still retain vitality in the light of the findings made in this judgment, notwithstanding the refinements in the third report.
29. On the analysis in Dr Martin's first report, if, as found in this judgment, the offender was "highly distressed and perceived threat" (or it may be interpolated experienced fear on a rational or irrational basis) then the capacity of the offender to control herself would, to whatever degree, have been impaired (it may be noted that Dr Martin found the account of being distressed and fearful as plausible given the offender's "background of mood instability, substance misuse and a history of dysfunctional relationships"). It may also be noted that by Dr Martin's first report he effectively agreed with the opinion of Dr Furst.
30. As to borderline personality disorder, Dr Martin appeared to reduce the significance of this condition, notwithstanding symptoms exhibited by the offender in the circumstances consistent with that disorder contributing to the commission of the offence, because he applied a wrong test with respect to substantial impairment in his third report. The test was not one, as correctly submitted by senior counsel for the offender, of "gross abnormality of mind" but an "abnormality of mind arising from an underlying condition". The only time he applied the correct test was in relation to his first report in September 2016.

Objective Seriousness

1. I turn now to evaluate the objective seriousness of the offence.
2. Deriving from those objective features, I conclude that the offence was objectively less serious than many other murders that come before this Court for the following reasons.
3. The offender intended to cause grievous bodily harm rather than intending to kill.
4. The attack was of limited duration with a single blow, albeit one administered to the deceased's back with a moderate to severe force.
5. The offence was committed near the offender's then abode - a tent on a dark, unpopulated island. The deceased attended on the offender's tent on a Sunday evening without notice or invitation. It is true that the offender remained angry with the deceased upon his attendance because of her belief that he had killed her cat but she also experienced at or about the same time fear, whether rational or irrationally felt.
6. The offence was spontaneous and not pre-planned and there was a degree of provocation by the deceased. These are mitigating factors to be taken into account in determining an appropriate sentence: s 21A(3)(b) and (c) (see also, R v Fahda [2013] NSWCCA 86 at [18]-[27]).
7. I find that the state of the offender's mental health contributed to the commission of the offence in a material way and operated to reduce her moral culpability.
8. Having regard to these considerations, I consider that the offence is in the low range of objective seriousness.

Subjective Features

1. Many of the factual considerations below are derived from the further report of Dr Furst.
2. The offender was born on 8 July 1976 and accordingly is 42 years of age. She was 38 years old at the time of the offence. She is a single woman with no dependants who was effectively homeless at the time of the offence. She owned, at that time, a thoroughbred horse and a cat. She was unemployed.
3. The offender is the eldest of four children. Each of her siblings gave evidence at the trial.
4. The offender was born in Liverpool and attended a number of primary schools and high schools, mostly in the Blue Mountains and the far west region of New South Wales. She finished in year 10 and left school in year 11. She apparently suffered a nervous breakdown at the end of year 10 leaving home and school and living with her friend's parents. She reported that her father was a "big drinker" and there was often conflict at home. Her father used excessive physical discipline.
5. The offender had a conflicted relationship with her family which resulted in long periods of estrangement.
6. The offender reported experiencing a breakdown around 2003 associated with a miscarriage. She was 27 years of age at the time. She had an earlier miscarriage at 23 years of age.
7. The offender felt like a failure after the miscarriages and had relationship difficulties that resulted in increased social isolation. She was, in fact, isolated, estranged from her family and friendless at the time of the offence, save for her brief recent encounter with Ms Le Fevre. She had been in and out of medical centres and received some treatment in the form of anti-depressants which the offender was not taking, as prescribed, after she became homeless.
8. The offender has no significant medical problems apart from partial deafness.
9. Dr Furst further met with the offender on the 5 June 2018 (which interview was terminated because the offender broke down in tears and was wailing uncontrollably) and 31 July 2018 (during which she was emotionally labile, depressed in mood and highly anxious). Dr Furst maintained his diagnosis that the offender's primary mental illness was bipolar affective disorder and her primary mental disorder was borderline personality disorder with episodes of more severe depression on occasions, episodes of mania or hyper-mania and generally poor coping skills / interpersonal difficulties as a product of her mental illness/disorder. She also had high levels of anxiety and met criteria for a diagnosis for a substance use disorder. Dr Furst considered that the mental illness and disorder were a function of her childhood traumas, rejection by her family and other life traumas and rejections.

Criminal History

1. The offender has a minimal criminal history involving offences of shoplifting (dismissed under s 556A of the Crimes Act 1900 (NSW)); contravention of an apprehended violence order (for which a fine was imposed); and assault occasioning actual bodily harm (a s 10 good behaviour bond was imposed with supervision for 2 years).
2. It must be said, with respect to the last mentioned offence, that the conviction arose following a complaint of Ms Sharon Firman. She gave evidence at the trial of the difficulties she experienced with the offender after the offender had been employed to care for Ms Firman's mother. I agree with the submissions of the offender that the evidence was consistent with other evidence given at the trial about the offender's interpersonal difficulties which were fundamentally connected with her mental condition.
3. The offender has no prior convictions for serious personal violence and has never before served a sentence of imprisonment.
4. Overall, I consider the offender's prior criminal history to have a marginal relevance to the sentencing of the offender. By and large, the criminal history is minor and unremarkable, particularly in the present context.

Prospect of Rehabilitation and Likelihood of Re-offending

1. In his most recent report, Dr Furst indicated that the offender had engaged in both psychiatric and psychological services in custody over a 45 month period.
2. The offender has pursued religious studies and had practiced religion whilst in custody. She has also completed both "Seasons for Growth" and "the Positive Lifestyle Program". Ms Karen Banfield, a retired adult educator who works one day per week on a voluntary basis assisting the chaplain at Silverwater Woman's Correctional Centre indicated that the offender had used her time in prison to work hard to understand herself better and to develop strategies to stabilise and manage her mental health as well as being respectful and empathetic to her fellow inmates. Chaplain Margaret Wiseman stated that the offender is remorseful for the events that have happened in the past and has found strength in recognising this.
3. The offender has re-established a strong and supportive connection to her family, particularly her brother David and her parents. She has worked consistently in ground maintenance whilst in custody and the evidence revealed that she has a demonstrated capacity to care for animals. She has exhibited no misbehaviour in custody.
4. Upon an estimate of the age she is likely to be released, Dr Furst noted the offender will fall within a demographic of females that generally have a lower rate of violent offending.
5. It must be said that, notwithstanding those positive indicators, parts of the offender's evidence during the sentencing hearing represented a cause for concern regarding, at least, rehabilitation. Against this, Dr Furst opined "her risk of re-offending is in the low-moderate range … [the offender's] progress in custody and engagement with services thus far suggest she has good prospects of being successfully rehabilitated".
6. On balance, given the presence of improvement over a reasonably lengthy period, the Court will sentence upon the basis the offender is unlikely to re-offend and that there are reasonably good prospects of rehabilitation.

Attitude of the Offender to what has been done

1. Neither party addressed the question of remorse.
2. In a letter to the Court the offender indicated that she had reflected upon her "previous state of mind" and "the crime I have committed as a result". She stated that she is very sorry that she hurt "Michael". She also expressed the view that she was "really sorry for what [she] [has] done. [She was] incredibly regretful". She recognised that "Michael was known and loved by many" and she was "sorry that he is no longer here with them".
3. In her evidence on sentencing the offender stated that she had killed the deceased and that the only person to be ultimately blamed was herself. She stated that she "couldn't be more sorry" particularly for "Michael's family and what they must be feeling every day". She indicated that she was ashamed for her family.
4. In the sentencing proceedings, the offender was cross-examined as to the circumstances that occurred on the evening in question, which have been the subject of earlier discussion. The final line of questions and answers of the offender in cross-examination were as follows: Q. What I want to suggest to you is you were angry and you acted out of anger but you knew what you were doing? A. That's not true, I was frightened. Q. After you stabbed him you felt dreadful about what you had done and you created an account which exculpated you? A. I was in terrible shock. Q. I want to suggest to you that you did not stab Michael Insley that night because you were afraid that he was going to physically or sexually harm you? A. I would like to tell you that you have this scenario completely wrong. Q. I want to suggest to you that whilst clearly you regret what happened, at the time you did it, you knew what you were doing and why you were doing it? A. That's not true. That's not true.
5. No submissions were made as to the implications of those answers for any finding under s 21A(3)(i)(i) of the Crimes (Sentencing and Procedure) Act. The final answer raised doubts as to whether the first limb of the requirements of that sub-section had been satisfied, although the answer needs to be seen in the context of the immediately preceding answers, the offender's earlier answers and her letter. On balance, I do not consider that remorse should be taken into account as a mitigating factor having regard to the requirements of s 21A(3).

Section 21A Crimes (Sentencing Procedure) Act

1. I have considered the numerous aggravating and mitigating circumstances listed in s 21A of the Crimes (Sentencing Procedure) Act which a sentencing court is required to take into account. There are none applicable to this case other than those which I have already mentioned in the course of considering the objective seriousness of the offending and the offender's subjective circumstances.

Specific Deterrence

1. Whilst I accept that specific deterrence may be reduced because the offender is receiving and is amendable to receiving treatment and has the support of her family, and it is unlikely that the offender will again be so disconnected from family, medical, community and social structures as she was in 2014, this needs to be counterbalanced by the residue of volatility associated with her mental conditions. Specific deterrence is, therefore, relevant to the sentencing of the offender.

General Deterrence

1. Having regard to the circumstances of the offence, the offender's mental disorders reduce, significantly, in my view, the degree to which she is an appropriate vehicle for general deterrence: Muldrock v The Queen (2011) 244 CLR 120 ("Muldrock") at [53]-[54]; R v Letteri [1992] NSWCCA (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, 18 March 1992); R v Israil [2002] NSWCCA 255 at [21]-[23] (per Spigelman CJ).

Conditions of Custody

1. It was common ground that a custodial sentence may weigh more heavily on the offender due to her mental conditions. This position may be readily accepted having regard to Dr Furst's most recent report which would indicate the offender's conditions in custody are likely to be more onerous than usual. Further, the offender would have less access to mental health services and pro-social activities in custody than in the community.

Special Circumstances

1. I am conscious of the need to avoid double counting with other factors in sentencing when finding special circumstances and varying the statutory ratio.
2. It was common ground that the offender will benefit from a longer period of time under supervision once she is released into the community. This again may be readily accepted having regard to the offender's previously itinerant and social disconnected lifestyle, difficulties in navigating relationships as a result of her disorders and her need for ongoing medication and counselling.
3. In the light of those considerations, I consider special circumstances have been demonstrated in this case.

Other aspects

1. The offender has been in continuous custody since the date of her arrest, namely, 26 October 2014. My sentence will commence from that date.
2. The offender provided me with sentencing decisions for what were said to be relevantly similar matters. Emphasis was placed upon R v Morris [2017] NSWSC 637 ("Morris") (per Fagan J). That judgment was of assistance but because sentencing is an exercise in intuitive synthesis on a number of matters and each such exercise must turn on its own facts, I will not pause to analyse the points of comparability or difference as between those cases and the present including the differences raised by counsel for the Crown between the present case and Morris. I regard the cases to which I have referred to be of some general guidance as to the sentence that should be imposed in this case in order to achieve objective consistency in sentencing.
3. In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period (Muldrock at [27]) together with factors bearing upon the objective seriousness of the offence and subjective features.
4. Finally, before passing sentence, I extend my condolences to all those who have suffered as a result of the murder of Mr Michael Insley. Hopefully the conclusion of the proceedings today may provide some measure of relief, although I accept that some of the pain will be unrelenting.

Imposition of Sentence

1. Ms Impson could you please stand.
2. Rachel Impson, you are convicted of the murder of Michael Insley.
3. I sentence you to imprisonment for a non-parole period of 12 years commencing on 26 October 2014 and expiring on 25 October 2026 and the balance of the term of 6 years commencing on 26 October 2026 and expiring 25 October 2032.
4. Thus, you will be eligible for release on parole at the expiry of the non-parole period on 25 October 2026. 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: 04 October 2018