R v Lane

Supreme Court of NSW|2015-02-13|Before: Campbell J, Mr P

Solicitors: Office of the Director for Public Prosecutions (Crown) Legal Aid (NSW) (Offender) File Number(s): 12/289582

Judgment

The offender, Paul Ian Lane is to be sentenced for the manslaughter of Peter Morris. The offender had been arraigned on an indictment for murder on 7th October 2014. On Monday 27th October 2014, the jury returned a verdict of not guilty of murder, but guilty of manslaughter.
Manslaughter had been left to the jury on two alternative bases: first, manslaughter by unlawful and dangerous act; and secondly, manslaughter by way of excessive self-defence.
The principles of law governing the sentencing of an offender who has been found guilty by the verdict of a jury are well known and require no exposition by me (see for example Cheung v The Queen [2001] HCA 67; 209 CLR 1). Because it is my responsibility as trial judge to determine the appropriate sentence, it is for me to make a decision about the degree of culpability involved in the offending, as well as about all other facts relevant to sentencing. The jury's verdict decided that the offender was guilty. Determining culpability for sentencing purposes requires me to identify why the offender is guilty.
Both the learned Crown Prosecutor and Mr P. Young SC for the offender submit that of the two alternatives, I should be satisfied beyond reasonable doubt on the basis of the evidence I heard at the trial that the jury's verdict is consistent with the offence of manslaughter by unlawful and dangerous act. I am persuaded that I should accept this submission for the reasons I will give.

The accused admits guilt for further offences

It is appropriate at this point to record that the Crown have filed what is known as a Form 1 specifying two further offences for which the offender admits his guilt and which he has indicated he wants me to take into account when dealing with him for the manslaughter of Mr Morris. These offences are assaulting Chris Schwager, occasioning actual bodily harm, and assaulting Cody Roberts, also occasioning actual bodily harm. The assault of Mr Schwager formed part and parcel of the circumstances giving rise to the manslaughter of Mr Morris. The assault on Mr Roberts occurred later the same night.
I record that the Form 1 has been signed by the offender, and appropriately on behalf of the Director of Public Prosecutions (s 32(4) Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act)). At the commencement of the proceedings on sentence, the offender, in open court, admitted his guilt to the further offences and indicated that he wanted me to take the further offences into account in dealing with him for the manslaughter of Peter Morris. The circumstances of the further offending are the subject of agreed facts. In all the circumstances, I consider it appropriate to so take the further offences into account.

Factual overview

Very regrettably, the circumstances of this case show that the scourge of alcohol fuelled violence in public places is not restricted to the entertainment hubs of our major cities. Nor are relatively young men its only exponents. The offending at hand occurred in Barker Street, Casino, a relatively small town in north-eastern New South Wales, not far from licensed premises, the Commercial Hotel. The offending occurred on 15th September 2012, when the offender was nearly 53 years of age. His victim, Mr Morris was a grandfather of a similar vintage. Both men, who were previously unknown to each other, had been drinking before and during their attendance at the Commercial Hotel to listen to an AC/DC tribute band.
It will be necessary for me to go into the facts in greater detail, but I am satisfied beyond reasonable doubt that both men, in common with most of the people who gave evidence about what happened, were quite drunk at the time they engaged in an altercation, for which there was no substantial provocation. The offender got the better of both Mr Morris and his companion, Mr Schwager. On the basis of evidence I will recount, I am satisfied beyond reasonable doubt that a punch delivered by the offender knocked Mr Morris to the ground. On impact he struck his head very heavily fracturing his skull and sustaining a traumatic brain injury from the effects of which he died some 12 days later on 24th September 2012.

Facts relevant to the objective seriousness of the offending

The Crown argues that I should be satisfied beyond reasonable doubt that the offender was an aggressor looking for trouble. The circumstances put forward to support this submission extend beyond what was proved to have occurred in Barker Street to what was said to be the offender's pattern of aggressive conduct in the hotel culminating in his ejection.
A number of witnesses gave evidence about the offender's behaviour at the hotel. Moreover, investigating police painstakingly compiled a record of the offender's movements in the hotel from the various CCTV cameras located throughout the hotel. I do not propose to detail the evidence of the witnesses about these matters. A number of witnesses give accounts of the offender barging through the crowded dance floor area dropping his shoulder to get past. There was evidence of him making a gun-like gesture with his hand, pointing it towards a female patron. Two witnesses gave evidence of a specific act of confrontation with another patron. I am not persuaded beyond reasonable doubt that these events occurred. First, many of the patrons had had far too much to drink which adversely affected their perception; and their accounts seemed affected by hindsight with knowledge of what happened later in Barker Street. But more importantly, some of the incidents inside the hotel were said to have happened in places covered by the CCTV footage played at the trial and none of them were recorded on that footage. It seems most unlikely that all of these allegedly spontaneous bouts of aggression co-incidentally would have occurred "off-camera".
Not all witnesses however were intoxicated. For instance, Mr Anthony Watkins who was in charge of security on the night gave evidence of an incident which occurred out of the view of the CCTV cameras where the offender "dropped his shoulder into him". He also said he saw the offender engaged in what I understood to be an aggressive stand-off with another security officer, Mr Lampard. This latter episode happened across the dance floor and should have been "on-camera" but was not. I found Mr Watkins' evidence generally "acceptable", except it too was infected by hindsight. I thought it significant that neither of the matters he gave evidence of led him to insist that the offender leave the hotel, which he could have done by complaint to the licencee. As Mr Young argued, in a crowded dance floor area populated by intoxicated people a degree of barging may occur unintentionally and without aggression.
I am satisfied that the offender was later asked to leave by the licensee, Ms Pemberton, for drunkenness not aggression. This had nothing to do with the matters spoken of in evidence by Mr Watkins. In her statement (she was too ill to give evidence) Ms Pemberton described the offender as "moderately affected" by alcohol. I suppose a person in her line of work is used to dealing with people affected by alcohol. Her appreciation of the range of affectation may be broader than that of the ordinary person. From what can be seen on the CCTV footage, the offender was exhibiting signs of intoxication such as unsteadiness on his feet and a lack of co-ordination.
At the point of his ejection from the premises, the offender is seen to "shirt-front" the bar manager, Alexander Demaine. I would not have so made much of this from what is shown on the CCTV footage but Ms Pemberton who was also present at the time thought there was something in it. What can be seen on the footage is the offender drawing himself up to his full height and puffing his chest out towards Mr Demaine who is standing close to him. However, as the Crown accepts, Ms Pemberton was able to quickly diffuse any incipient incident. She deftly guided the offender through the door and onto the street. He did not resist.
I am not satisfied beyond reasonable doubt that he was ejected from the hotel for aggressive behaviour. Doubtless however his drunkenness affected his self-control.
He was ejected at about 11 pm. He had attended the hotel with his son, Ryan, who remained inside listening to the band. The offender seems to have remained in the vicinity of Barker Street, or thereabouts, waiting until closing time to go home with his son. There is another hotel nearby, but there is no evidence that he went there, or drank more alcohol anywhere-else.

Manslaughter by unlawful and dangerous act

The commission of the offence was captured by a CCTV security camera protecting a bank's ATM further west along Barker Street. A number of eyewitnesses also gave evidence. None of the witnesses saw everything that is depicted on the CCTV footage because they were going about their own business and the events were unexpected by them. But their evidence does assist in deciding critical questions.
Barker Street runs east-west through Casino. The Commercial Hotel is on the corner of Barker and Walker Streets, east of where the offence was committed. The offence was committed outside a dental surgery a few shopfronts to the west of the hotel. The bank security camera is two shopfronts further west from the dental surgery. Needless to say it looks east. Police photographs (Exhibit E) show that the view of eyewitnesses milling closer to the hotel, waiting for cabs and the like, would have been obscured to some extent by cars parked along the kerb and shrubbery planted in a garden area encroaching onto the carriageway of Barker Street. The attention of witnesses was only attracted after the trouble started.
I am satisfied that at about closing time, just before midnight, Mr Morris and Mr Schwager left the hotel. They were then probably, on the evidence, moderately affected by alcohol. Mr Morris was carrying the leftovers from his takeaway dinner in a plastic container inside a plastic bag. Doing the best I can from the CCTV footage they seem to be evincing signs of intoxication in their gait. They may have passed the offender where he was waiting for his son as they left the hotel. Mr Morris and Mr Schwager stopped near a telegraph pole outside the dental surgery. They appear to be looking for a cab.
The offender and his son also headed west along Barker Street, a few seconds behind Mr Morris and Mr Schwager. A Mr Cupitt who was standing on the footpath a couple of shopfronts east of the dental surgery noticed the offender as he passed, walking with his "arms stretched … as though he was putting his jacket on" [277.10T]. He seemed to veer, or perhaps lurch, towards Mr Cupitt as he walked past. When the offender appears on the CCTV footage he is seen to be walking in the same manner, although his coat is on.
The offender walked between Mr Morris and Mr Schwager and his son between Mr Morris and the shopfront. Something must have been said by someone because having walked past, the offender stopped in his tracks, turned back and headed for Mr Morris. The offender's son gave evidence that when they were passing Mr Morris the son made an offensive remark to his father, which Mr Morris mistakenly took as directed at him because he responded in a manner suggesting he had taken offence. Despite some unsatisfactory aspects of the testimony of the offender's son, I am satisfied that he is correct on this score.
As I have said, it seems apparent that Mr Morris said something and that the offender took it as "fighting words" because he retraced his steps and confronted Mr Morris. I interpolate that neither the offender nor Mr Schwager have any recollection of these events, and the offender's son kept walking west, not getting involved. It may seem odd that neither the offender nor Mr Schwager can remember anything. However, it is possible that this is explained by the consideration that both were intoxicated and each received concussive head injuries, Mr Schwager at the hands of the offender and the offender later the same night in another incident about which nothing is known.
Returning to the narrative, the offender confronted Mr Morris. It is not known what was said. There is much chest-puffing and waving of arms discernible on the CCTV footage. The two men began to grapple with one another. Mr Morris seems to have initially gained the upper hand because he was able to turn the offender around, forcing him against the shopfront of the dental surgery, before extricating himself from the offender's grasp and beating a retreat towards the roadway. The offender gave chase. When Mr Morris got to the kerb, moving more or less backwards away from the nearby offender, he is seen to collapse onto the roadway striking his head. The Crown submits I should find some act of the offender caused him to fall. Mr Young submits I should find he lost his footing. As will be apparent Mr Morris fell twice suffering separate head injuries in each fall. Both were causes of his death.
The evidence of Dr Dianne Little, a forensic pathologist, was not seriously challenged. It was to the effect that Mr Morris died of the effects of what were, broadly speaking, two separate brain injuries each associated with separate skull fractures. Dr Little explained that the constellation of head injuries suffered by Mr Morris could not be explained by a single impact of his head on the roadway. There were two quite distinct areas of injury best explained by two separate impacts to his head. The significant areas of skull fracture were at the base of the back of the skull and on the left side of the skull in what she described as "an approximately sagittal plane" [523.35T]. Each gave rise to brain injury by way of subdural haematoma to separate parts of the brain. For reasons I will explain in a moment, I find that the fracture to the left side of the skull in the sagittal plane and its associated brain injury occurred at the time of the first fall.
I am not satisfied beyond reasonable doubt that this first fall was occasioned by a blow delivered by the offender. I consider it possible that in attempting to evade the offender, Mr Morris lost his footing on the kerb and fell.
After Mr Morris fell there was interaction between the offender and Mr Schwager, which is the subject of agreed facts which I will deal with separately.
Evidently the first head injury did not cause the deceased to lose consciousness for he rose to his feet and faced the offender, still holding the plastic bag in his right hand. The offender moved towards Mr Morris and the CCTV footage then appears to show an exchange of blows between them for the head of each man is seen to jerk backwards. Mr Morris fell again, this time striking the back of his head on the roadway fracturing the base of his skull and suffering a contrecoup brain injury involving the frontal lobe.
I am satisfied beyond reasonable doubt that Mr Morris fell the second time as a consequence of the offender punching him on the right side of the jaw with sufficient force to knock him down from his unsteady feet. Dr Little found bruising to the right side of the jaw, which she considered consistent with the application of blunt force to that region. This is supported by the eyewitness accounts.
As I have said, all eyewitnesses admitted to being well affected by alcohol. Moreover, none saw the start of the trouble; probably the attention of each was drawn by the noise of the fracas or, perhaps, the sound of Mr Morris falling the first time. Mr Cupitt heard some yelling and looked up in time to see the offender hit Mr Schwager. By this time, of course, Mr Morris had already fallen for the first time and was picking himself up from the roadway. He then saw the offender move towards a person now standing on the road. This was Mr Morris. He saw the offender punch Mr Morris and "he went backwards onto the road and his head hit the bitumen" [283.15T]. There was a rather loud crack.
Mr David Marsh was with Mr Cupitt. The first thing he saw was also the first interaction with Mr Schwager. He then saw the offender swing a punch at Mr Morris, he did not see it connect, but he did see Mr Morris fall backwards and hit his head on the bitumen. In cross-examination he accepted that he "wasn't standing that close" [342.5T]. He did not see everything that occurred but he was unshakeable in his account that he saw the offender throw a punch and Mr Morris fall backwards.
Ms Alicia Livingstone was standing under the western extremity of the awning, or balcony, of the hotel. She knew both Mr Lane and Mr Morris. She said she saw "Paul Lane hit Pete Morris" [382.45T]. Mr Morris fell and "hit the gutter" (she was wrong in this detail). She said she saw the offender punch Mr Morris on the left side of his face. Again, she may have been wrong about this detail. She explained that she "only caught the end of it" [393.15T] and saw the offender leaving the scene. Although some of her evidence is inconsistent with that of other witnesses, I accept that she saw the offender punch Mr Morris. This was the punch that knocked him down leading to the second head injury.
Mr Jeremy Armstrong was standing outside a shop called "The Magic Noodle", nextdoor to the hotel. This puts him closer than Ms Livingstone, but further away than Mr Cupitt and Mr Marsh. He recognised Mr Morris as he walked past moments earlier. He also saw the offender walk past. Mr Armstrong was unsure of the details and admitted that his view was obstructed. He said he saw Mr Morris receive a punch, but he was uncertain whether he fell. He then saw the offender punch Mr Schwager. Then, he said, "Pete got the third punch, that's when I heard a noise, but my view was obstructed, what he hit" (sic) (465.20T). He was unable to describe the punch because his view was obstructed. He saw Mr Morris commence to fall; he was unable to see the impact of Mr Morris with the roadway but he heard a loud noise.
Mr Armstrong, as I have said, accepted his view was obstructed, that his opportunity to observe was limited because the events happened quickly, and his memory had deteriorated because of the effluxion of time, but he was sure that it was a punch from Mr Lane that initiated Mr Morris' fall. The fall initiated by the punch witnessed by Mr Armstrong was certainly the second fall because Mr Morris did not regain his feet.
Mr Armstrong's friend, Jai Perkins also gave evidence. However, I am satisfied that he was engrossed in conversation with some girls and his attention was not drawn to the events happening west of him along Barker Street until he heard the sound of Mr Morris' head hitting the road, for the second time.
Dr Little said it was impossible from a medical point of view for her to express an opinion as to the sequence in which the head injuries were received. She was shown the CCTV footage but it was too indistinct for her to draw any conclusions from it about what part of Mr Morris' head hit the ground when. However, from the eyewitness accounts of Mr Morris falling backwards, I am satisfied, as I have said, that the fractures to the left side of the skull and associated injuries to the left and right sides of the brain were suffered in the first fall and the injuries to the back of the skull and the back and front of the brain were suffered in the second fall. The doctor considered that both brain injuries contributed to Mr Morris' death. In fact, each was a possible cause of death.
I have no doubt that the offender punched Mr Morris to the right side of his jaw causing him to fall backwards, hitting the back of his head on the bitumen. This punch was delivered as an aggressive act and not in self-defence. The impact of the back of Mr Morris' head with the roadway fractured his skull, causing a traumatic brain injury which substantially contributed to his death. The blow was delivered with sufficient force to knock Mr Morris off his feet, although I think it more likely that it was the blow to the back of the head and consequent subdural haemorrhaging which caused the loss of consciousness from which Mr Morris never revived.
The offender did not suffer any material injury in his exchange with Mr Morris. He did not evince any remorse at the time. He left Mr Morris to his fate and resumed his journey west along Barker Street where he later met up with his son.

Finding as to objective seriousness

It is well recognised in our criminal law that the crime of manslaughter covers a very wide range of criminality and culpability. In its most serious form the circumstances may fall just short of murder. In other cases, the circumstances may be only a little more serious than an unfortunate accident. This being so it is pointless to attempt to categorise cases of manslaughter by reference to superficial factual similarities; there are no pre-conceived categories of manslaughter by unlawful and dangerous act. It is necessary to consider the facts and circumstances of each case individually and in detail.
The features of the present case which lead me to conclude it is an objectively serious one include that the crime was committed in a public place when the offender was very intoxicated. While there was some initial willingness on the part of Mr Morris to engage in an altercation with him, and indeed grapple with him, the offender escalated the aggression even after Mr Morris sought to disengage himself from the fracas. The punch that felled Mr Lane for the second time was deliberate. I am satisfied that it was delivered with intent to inflict some appreciable harm but given the jury's verdict not really serious injury. The force involved was sufficient to knock Mr Morris off his feet. However I find that the brain injury suffered occurred when Mr Morris's head hit the ground; the force of the punch was not sufficient of itself to cause that injury. The offender did not attempt to render any assistance, even if it would have been pointless because of the seriousness of the brain injury. He did not show any remorse for what had occurred, but simply walked away.

Family victim impact statement

During the proceedings on sentence I had the great advantage of receiving a statement from Mr Morris' daughter, Anita, describing the adverse effect his death has had upon his extended family. Under s 28(4) Sentencing Act I am entitled to consider this evidence and take it into account in connection with the determination of the sentence I will pass on the offender because the harmful impact of Mr Morris' death on the members of his immediate family is an aspect of the harm done to the broader community, the recognition of which is an important purpose of sentencing under s 3A of the Act.
Ms Morris very eloquently wrote of her father's involvement with her, her siblings and with his grandchildren. I have taken into account the emotional strain his hospitalisation and subsequent death have had upon them. I accept that the family's sense of loss will continue as the significant milestones in the life of each of them will be marked with a degree of sadness because of the premature absence of Mr Morris due to this offending.
I extend my sincere personal condolences to each member of Mr Morris' immediate family.

Form 1 offences

The further offences which I will take into account have been the subject of agreed facts which I will now recount. Mr Schwager, it will be recalled, was Mr Morris' companion on the night of 15th September 2012. He was with him in Barker Street and came to Mr Morris' aid during the struggle with the offender.
After Mr Morris' first fall, Mr Schwager moved towards the offender, I infer to render assistance to his friend. The offender punched Mr Schwager and he fell back striking his head against the telegraph pole outside the dental surgery. After Mr Morris' second fall caused by the offender's punch, the offender again approached Mr Schwager who was groggy and still sitting near the telegraph pole. The offender bent down and punched him again. Mr Schwager was taken to Casino Hospital, but did not wait to see a doctor. He suffered injuries to his right cheek and forehead as well as swelling to the left side of his head. As I have said, the events surrounding this further offending are depicted on the CCTV footage. Mr Schwager was called to give evidence, but had no memory of what had happened.
The second assault was on Cody Roberts. Later the same night, the offender drove to a friend's home in the residential area of Casino. At about the time of his arrival a taxi pulled up with a number of passengers including his friend, and other persons, some of whom were known to the offender. They had all been at the Commercial Hotel to see the band.
One passenger, Cody Roberts was not known to the offender. As he alighted from the taxi, the offender grabbed him and threw him to the ground. The offender got on top of Mr Roberts, grabbed his ears and bit the top of his forehead. Mr Roberts struggled to free himself and the offender bit him a second time on the neck. Mr Roberts managed to free himself and leave the area in the taxi which had dropped him off. The assault on him was unprovoked and unexplained; indeed it is inexplicable. No motive for the attack has emerged.
Shortly after this second further offence, the offender himself was found unconscious on the side of the road outside the same premises. He had suffered significant facial injuries including a fractured nose. It is unknown how he came by those injuries, but it seems likely he was assaulted by a person or persons unknown. He was taken to Lismore Base Hospital by ambulance.

The offender's personal circumstances

As at the date of the offending, the offender was a divorced person aged 52 years and 9 months. Now he is 55 years and 2 months.
He did not give evidence on the proceedings on sentence, but without objection I received a report of Ms Anna Robilliard, a forensic psychologist dated 22nd January 2015. I have used this report as a source of personal information about the offender. I appreciate that courts are sometimes reluctant to accept the history given by offenders to psychologists for the purpose of proceedings on sentence at face value when the offender does not himself give sworn testimony about those matters, exposing himself in the process to cross-examination by the Crown prosecutor on behalf of the community. At the same time there is an obvious utilitarian value in evidence being presented in this way, especially as, generally speaking, the ordinary rules of evidence do not apply to proceedings on sentence. Moreover, in this case, the Crown did not submit that I should look askance at material introduced in this way. Also, the matters of history upon which I propose to rely are borne out by the testimonials tendered on behalf of the offender, especially that of his younger sister, Deborah Lane.
The offender was born into a stable family of ordinary working folk in Sydney's Penrith area. He is third, and the only male, in a sibship of five. His parents are still alive and they along with most of his siblings, like the offender, now live on the north coast. He was not good scholar and left school, it is said, at age 13. After leaving school he worked for his father's employer until he turned 17 when he went into used car sales. He seems to have had a real talent for this work and he was continuously employed in it until about the age of 40 when his marriage broke down. At that time he was running his own business in Mudgee and Gulgong. These details are all confirmed by his younger sister.
His life seems to have changed dramatically after the breakdown of his marriage. He left Mudgee, taking his two sons, of whom he had custody, to live in Ballina. Not long after this he was involved in a serious accident when his motorbike collided with a four wheel drive vehicle. He seems to have suffered relatively serious orthopaedic injuries, and an ongoing post-traumatic stress disorder. This combination of events seems to have derailed his life. He eventually returned to the motor trade, this time involved with motorbike spare parts, but not with the success he had enjoyed in his earlier years.
After the accident his sister assumed responsibility for rearing his sons and the offender seems to have descended into alcohol and substance abuse in early middle age. He acquired tattoos and became socially withdrawn. At the time of the offence he was drinking heavily, and smoking cannabis, on a daily basis. This substance misuse is said to have been a form of self-medication to relieve his symptoms of PTSD.
It is not said these symptoms should be taken as reducing his culpability for the present offending. Doubtless, his anxiety and depression which are symptoms of his post-traumatic stress disorder may make his time in prison somewhat more onerous.
The offender had no criminal record until the age of 40 when he committed a fairly serious crime of dishonesty. No doubt his prior clean record until that time justified the leniency he then received. It is likely that that offending was emblematic of the unexpected changes his life was then undergoing. There was no further offending until 2012, the year of the offending at hand. In August 2012, he pleaded guilty to the offence of driving with the mid-range prescribed concentration of alcohol in July of that year for which he received a bond under s 10 Sentencing Act.
In August 2012 he was arrested on a charge of enhanced indoor cultivation of cannabis for commercial purposes with his business partner. The sentencing judge, her Honour Judge Wells who dealt with him for that offence accepted that the business partners embarked upon this enterprise when their original plans to restore the building where the cannabis was grown for the purpose of a motorcycle repair workshop struck financial difficulties. The sentencing judge accepted the offender's motivation was to resolve his precarious financial situation rather than pure greed. Their efforts were not necessarily competent as the cannabis leaf recovered by police was of poor quality and in mouldy condition. The judge took into account a deemed supply charge arising out of the same facts in sentencing the offender to an intensive correction order of 20 months duration running from the date on which sentence was passed, namely 24th October 2013. That he is currently in custody on remand for this offence probably puts him in breach of that order. That is not a matter for me but for the parole authorities.
As the Crown accept, this criminal record does not disentitle the offender to some degree of leniency in the present matter. There is no previous crime of violence. It may be said there are two matters of significance of a disparate type but neither was considered by the respective sentencing court to warrant stern punishment.
On the other hand, at the time of the commission of the offence of manslaughter the offender was at conditional liberty serving his s 10 bond and on bail for the drug offences. I will treat this consideration as an aggravating factor of significance as the law requires when determining the appropriate sentence.
It can be seen that the three offences in 2012 all related to misuse of drugs and alcohol and occurred within the space of two months between July and September 2012.
Ms Robilliard considered that there was a relationship between his post-traumatic stress disorder and his substance misuse. Since his arrest he has received treatment for this condition but the treatment has not cured it as the results of the tests administered by Ms Robilliard show. But it has stabilised and he seems much better now than before the offending.
From character references tendered on behalf of the offender and from his previous criminal record, I am satisfied that this crime of violence is entirely out of character for the offender, who had a past history of being a hardworking member of the community before his various misfortunes. The various referees write of the offender being a previously loving, kind and caring person who contributed to the community prior to losing his way after the breakdown of his marriage.
Apparently since his arrest, he has complied with his medical treatment, and has remained abstinent of drugs and alcohol. He has not committed any offences or breaches of prison discipline whilst he has been in custody on remand, a total period of about 1 year and 5 months. Moreover, there is no suggestion that he in any way breached the intensive correction order he was serving in the community between 24th October 2013 and his remand after the jury's verdict on 27th October 2014.
The offender told Ms Robilliard that he frequently thinks of the victim's family and hopes they can find it in their heart to forgive him. He feels "that the remorse is going to kill him". His referees all speak in various ways of him being remorseful for taking Mr Morris' life. For instance, the partner of his youngest sister wrote the following: He was able to acknowledge and articulate the consequences of his actions. He genuinely displayed a sense of sadness for the individuals and families whose lives he had altered, both that of the victims and his own family. I felt I was witnessing positive and sincere change in a man who I now had reason to respect. This referee had not known the offender in his previous productive years.
I find that he is now remorseful for his crime and I regard him as unlikely to reoffend in this way again.
As I have recorded, the offender has no recollection of his offending, but has seen the CCTV footage recorded by the bank security camera. After an enhanced version of that footage was provided to his lawyers in late August 2014, the offender, on 24th September 2014, offered to plead guilty to the manslaughter of Mr Morris. This offer was rejected by the prosecution. The Crown accept that I should allow some discount on the sentence I would otherwise have passed for the utilitarian value of the offer. As the offer was made somewhat in advance of the Trial, I think the proper discount is 15 per cent, rather than 10 per cent contended for by the Crown.

Relevant principles

The nature of the sentencing task is to fix the appropriate sentence for the offence and the offender, having regard to all relevant facts, matters and circumstances. A sentence must fit the offending having regard to its objective seriousness; that is the offender must be adequately punished for his offending. At the same time, a sentence should not exceed what is proportionate to the crime.
I bear in mind that the maximum penalty for manslaughter under s 24 Crimes Act 1900 (NSW) is imprisonment for 25 years. This not a case to which s 25A of that Act applies as the offending precedes its enactment.
It goes without saying, I think, that no penalty other than a period of fulltime imprisonment is appropriate in this case.
The starting point of assessing the objective seriousness of any case of manslaughter is the consideration that the offender by his violent conduct took a human life (Munda v Western Australia [2013] HCA 38; 249 CLR 600 [53] - [55]). The general rule is that it is necessary that violent offending be justly punished to vindicate the human dignity of the victim, to protect the community and to deter the offender and others. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.
The Court must eschew any attempt to put cases of manslaughter into preconceived categories. Such categories do not exist. Each offending must be assessed by reference to all of its circumstances.
In R v Loveridge [2014] NSWCCA 120 (at [216] - [217]) the Court of Criminal Appeal said: … the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence….. General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet: R v Williscroft [1975] VR 292 at 299.
In R v MD [2005] NSWCCA 342; 156 A CrimR 372 at 387 [65], the Court of Criminal Appeal said: In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, Court of Criminal Appeal, NSW, No 606394, 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.
In passing sentence on the offender for this offence, I am taking into account the further offences contained in the Form 1. It is important to bear in mind that I am sentencing the offender only for the principal offence. It is not part of my task to determine appropriate sentences for the further offences or to determine the overall sentence that would have been appropriate for all the offences and then apply a discount. I also bear in mind that in taking the further offences into account, I do so with a view to increasing the penalty that would otherwise be appropriate for the principal offence. This is because the existence of the further offences for which guilt is admitted, but no conviction recorded, increases the relevance of personal deterrence. The community's entitlement to retribution for serious offences is enlarged by the existence of further offences, with which the offender has been charged and which he has admitted. However, retribution is extracted only for the principal offence, for that is the only offence for which the offender will be sentenced: Abbas v The Queen [2013] NSWCCA 115 at [257]. Conversely in taking the further offences into account, I must have regard to the criminality involved in them. The further offences are matters which necessarily bear upon the judgment to be reached about the appropriate sentence for the principal offence. No sensible bearing can be taken from the further offences unless some assessment is made of the criminality involved in the further offences.
The additional criminality involved is relevant to the application of the principal of totality because it involves consideration of whether the sentence imposed represents a proper period of incarceration for the total criminality involved. (Abbas at [258] - [259]).
An important consideration may be that the principal offence is not an isolated instance but part of a course of offending conduct: Dionys v The Queen [2011] NSWCCA 272 at [64] - [66]. At the same time, bearing in mind that the procedure is beneficial, the penalty imposed is likely to be "significantly less" than the total which would have been imposed had each offence been prosecuted separately: R v Harris (2001) 125 A Crim R 27 at [27].
Finally, it is necessary for me to take into account the period of pre-sentence custody served by the offender whilst on remand: s 24(a) and s 47(2) Sentencing Act. The offender was arrested on 17th September 2012 and held on remand until 23rd October 2013 when he was granted bail in respect of the present offence. As I have already said on the 24th October 2013 the District Court imposed an intensive correction order for the drug offences which is served in the community. I remanded him in custody before sentence following the jury's verdict on 27th October 2014. It is clear to me that in imposing an intensive correction order, her Honour Judge Wells did not take into account the pre-sentence custody from 17th September 2012. I infer that she treated that time in custody as having been served on remand for the present offence. Accordingly, the offender has never received his entitlement to have that period of custody taken into account. Given this, I am obliged by law to take the whole of the pre-sentence custody into account. This amounts to a period of about 1 year and 5 months.
Pre-sentence custody can be taken into account either by backdating the commencement of the sentence or by discounting it. There is a firm rule of practice in New South Wales in favour of backdating rather than discounting (Wiggins v R [2010] NSWCCA 30). This should be applied even where as here, the pre-sentence custody has been discontinuous. Accordingly, I will take that approach in this case. This will lead to some artificiality in that the sentence will cover the time the offender was at liberty conditionally serving his intensive correction order.
For these reasons I will backdate the commencement of the sentence I impose to 27th September 2013 to take into account the discontinuous periods of pre-sentence custody served by the offender in accordance with law.
In legal theory, the principle of totality suggests that in fixing this sentence some account should be taken of the intensive correction order for the drug offences. However, I understood both counsel to accept that there was no practical means of addressing this given the detailed provisions made in respect of breach and revocation of intensive correction orders by the Crimes (Administration of Sentences) Act 1999 (NSW). That legislation confers functions on the Commissioner of Corrective Services and the State Parole Authority rather than the Court. As these detailed legislative provisions are within the power of the executive branch of government, I consider it appropriate to leave the ramifications of the sentence I impose for the intensive correction order to those proper authorities.

Comparable sentences

Mr Young provided me with a number of recent decisions concerning sentencing in cases involving manslaughter by unlawful and dangerous act. I have read these cases for the purposes of distilling some of the principles I have set out above. I have not found it helpful to tabulate the individual sentences passed in those cases because of their diverse circumstances and by reference to the consideration that it may be misleading to attempt to categorise cases of manslaughter according to preconceived superficial factual similarities.

Decision

I have set out my views as to the objective seriousness of the present offending at [37] - [38] above. This case is different from some other cases of drunken, public violence. The offender did not single out an unsuspecting innocent bystander for the infliction of gratuitous violence. Without in any way blaming Mr Morris for what happened there does seem to have been an angry exchange of words between two intoxicated, middle-aged men, each of whom should have known better. Moreover, Mr Morris was willing to grapple with the offender and initially seems to have obtained the upper hand. The offender's culpability consists of escalating the violence after Mr Morris attempted to disengage from him.
In fixing the appropriate sentence for this offence and this offender I bear firmly in mind the considerations of denunciation, punishment and general deterrence which call for the emphatic sentencing response discussed in Loveridge. As I have tried to demonstrate, the subjective circumstances of the offender are in some respects compelling. However, it is important that I am not diverted by them from imposing a sentence "which adequately reflects the part which the law must play in upholding the protection of human life and punishing those who take it" (R v MD at [65]).
It is also necessary for me to reflect in the sentence I impose for the principal offence the further offending admitted by the offender. The additional criminality involved in those further offences bears upon the appropriate sentence.
A compelling feature of this case is the spate of diverse relatively significant offending over a short period of time between July and September 2012. Manifestly, this includes the three offences committed on 15th - 16th September 2012. I accept this offending is related to, and partly explained by, his misuse of alcohol and illicit drugs. I accept that that in turn was a misguided form of self-medication in relation to his chronic post-traumatic stress disorder. This consideration however does not mitigate the offending. I accept that he is now abstinent and that his psychiatric illness is being treated appropriately, although its symptoms continue. If the offender can maintain his resolve to remain abstinent during the term of imprisonment I will impose and beyond, his abstinence bodes well for his rehabilitation, an important object or purpose of sentencing law. Moreover, I accept he is now remorseful for what he has done. His previous good record also suggests he is unlikely to offend again.
I also bear in mind that because of his age, related general health issues and particularly the ongoing symptoms of anxiety and depression related to his PTSD, imprisonment is likely to be harder for him than for others.
As I have said I propose to allow a 15 per cent discount on the sentence, which would otherwise have been imposed to reflect the utilitarian value of the offender's offer to plead guilty to manslaughter. But for this I would have imposed a term of imprisonment of 10 years. The discount reduces the sentence to one of 8 years and 6 months.
I am required to fix a non-parole period reflecting the minimum term justice requires the offender to serve before release into the community. It should not be thought that release at the expiration of the minimum is a foregone conclusion. It will depend upon many things, including the offender's continued good conduct whilst in prison. The question of whether the offender will be released is not for this Court; that is a decision that will be made according to law by the appropriate branch of the executive government in due course.
There is a statutory relationship between the head sentence and non-parole period which may only be varied if a finding of special circumstances is made. In deciding whether there are special circumstances, it is important that there be no double counting in respect of the subjective features I have already taken into account in fixing the appropriate sentence. Bearing this consideration in mind, I am not satisfied that a finding of special circumstances is warranted in the present case. The statutory ratio will be maintained subject to the need to avoid the artificial appearance of precision involved in calculations expressed in days rather months. I fix a non-parole period of 6 years and 4 months.
As I have already said, it is appropriate to backdate the commencement of the sentence to take account of the period of about 1 year and 5 months the offender has served in custody on remand. He received no credit for that in the sentence imposed upon him in respect of the drug charges. Taking this factor into account, I propose to commence the sentence on 27th September 2013.
Paul Lane, by its verdict the Jury convicted you of the manslaughter of Peter Morris. I sentence you to a term of imprisonment having a non-parole period of 6 years and 4 months commencing 27th September 2013 and expiring on 26th January 2020 with an additional term of 2 years and 2 months commencing on 27th January 2020 and expiring on 26th March 2022. The earliest date upon which you will be eligible for release on parole is 27th January 2020.

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: 14 December 2018

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