R v Lawrence [2024] NSWDC 485 | Case summary

R v Lawrence [2024] NSWDC 485 | Case summary | Zoe

[5]

Report of Dr Molly Schaefer, clinical neuropsychologist

Dr Shaefer reviewed various historical documents which noted an early possible diagnosis of Foetal Alcohol Spectrum Disorder (FASD). Early assessments revealed the offender to have a borderline full-scale IQ, an extremely low range verbal IQ and average to low range performance IQ. The offender had also been assessed in his primary school years with significantly impaired expressive language, literacy, and numeracy skills. By his early high school years, the offender had been assessed as suffering significant learning difficulties with his overall performance below class averages. By his late high school years, the offender had been placed in a learning support class.
During the interview the offender expressed considerable regret and remorse as to his offending, recognising the impact for the deceased's children who would be raised without a father.
The offender candidly acknowledged that from infancy he had been raised by his loving foster mother and father, with a distinct absence of abuse or other drug issues. However, he did report being bullied on occasions by neighbourhood children.
The offender only met his biological mother and sisters in 2018 at the age of 23 (incorrectly referenced as aged 26). His mother, currently aged 60, lived in the Wollongong area and had a dependency on methamphetamines for most of her life. His mother was dependent on alcohol when she was pregnant with the offender.
The offender has a five-year-old daughter to a previous relationship which ended some years earlier, although he continued to be in contact with his ex-partner and daughter who visited him regularly in custody.
The offender left school at the age of 17 having completed his year 10 certificate and was employed full-time as a groundskeeper at the local golf course for a period of six years until the age of 23. He was thereafter employed by a construction company for approximately 18 months. He moved to the Wollongong area at the age of 26, having separated from his daughter's mother and worked with friends in a landscaping business for several months. However, he had not been engaged in employment since.
The offender's medical history is otherwise largely unremarkable although he had been diagnosed with ADHD and was medicated until the age of 17.
The offender acknowledged that he commenced consuming alcohol at the age of 18 as well as small amounts of cannabis daily. From the age of 23 he was using half a gram of methamphetamines and used heroin. His drug use had affected his ability to maintain employment.
Dr Shaefer interviewed the offender's foster mother who provided further insight into the offender's personal circumstances. She reported that the offender experienced difficulties making friends in primary school, partly due to being one of the only children of aboriginal descent. Further, the school had a practice of announcing his need for medication over a loudspeaker. He was accordingly teased and bullied and as a result lost confidence.
Whilst he initially experienced difficulties entering high school, due to a change of location, the offender was placed in a learning class at a new high school where he flourished.
However, there were two family events which had a significant psychological impact. First, the offender's foster father was severely assaulted and shot whilst working as an armoured vehicle driver. He was placed in an induced coma and nearly did not survive. The offender was close to him. The second involved one of his foster sisters who was quite young. She had been returned to her biological family and was assaulted by a family member resulting in a severe brain injury and becoming severely disabled.
Rather than talk about these incidences, it was apparent that the offender started using illicit drugs as a coping mechanism around the same time as he ceased his ADHD medication. This resulted in a significant change in behaviour and ultimately the offender was told to leave home, following which he moved to Wollongong and was in touch with his biological mother.
Dr Shaefer completed various neuropsychological tests and made the following findings: - "The current assessment revealed widespread borderline to impaired functioning across attention, working memory (concentration), processing speed, language functioning, visual memory, planning/organising, cognitive flexibility, abstract reasoning, self-monitoring and disinhibition (impulsivity) against the background of intellectual functioning in the borderline to extremely low range. Word and general knowledge and verbal memory were in the low range to borderline range while verbal fluency was in the average to low range. Overall academic functioning was at the level of primary aged students. His word reading and sentence comprehension were in the low average to borderline range and at the Year 5 level while spelling and numeracy were in the borderline to extremely low range and at the Year 3 level".
Dr Shaefer concluded that the assessment findings were generally consistent with the offender's childhood diagnosis of FASD, intellectual functioning in the borderline range, language disorder and ADHD. Dr Shaefer concluded: - "Mr Lawrence's slowed speed of processing as well as his impairments across executive functioning tasks, including abstract reasoning, planning and thinking flexibly (cognitive flexibility) will most likely have an adverse impact on his completion of daily tasks and decision-making capacity… When making decisions, Mr Lawrence will likely have significant difficulty conceptualising options and weighing up possible consequences due to his impaired ability to think flexibly, plan and reason abstractly. Additionally, his impairments in language expression and comprehension result in a diminished ability to communicate with others effectively".
Dr Shaefer referred to difficulties that the offender will therefore experience in the prison environment including vulnerability to manipulation by other inmates.

[7]

Crown submissions

The Crown contended that the evidence established the offender had stabbed the deceased in three separate events. The fatal wound revealed that the offender had stabbed the deceased in the same place three times. It was contended that the attack on the deceased was "sustained and vicious".
The Crown noted that the offender was on bail at the time he committed the offence and was using drugs at that time. The offence involved the use of a weapon. In response to the offender's submissions as to provocation, the Crown referred to various authorities that no one can take the law into their own hands and that any such behaviour should be denounced in the strongest terms. Such behaviour cannot be condoned by the Courts. Emphasis was required for both general and personal deterrence.
The Crown observed that manslaughter encompassed a range of behaviour but in the circumstance the present case involved an unlawful and dangerous act without an intention to cause grievous bodily harm or death. However, a reasonable person in the position of the offender would have realised this exposed the victim to an appreciable risk of serious injury. The Crown referred to several previous sentences for manslaughter whilst acknowledging that comparative cases need to be approached with caution.
It was acknowledged that offender was entitled to a discount of 25% given the plea at the earliest opportunity, and whilst it appeared that the offender was initially proud of his actions, ultimately he had expressed considerable regret and remorse. The Court would take into account the subjective circumstances however it was contended that the offender's impaired intellectual functioning and difficulty controlling impulsive behaviour increased the risk of future offending, particularly in the context of drug use.
It was conceded there was a basis for making a finding a special circumstances. The minimum period of incarceration must reflect an appropriate sentence. In written and oral submissions, the Crown contended the offence should commence on the expiration of the non-parole period for offences arising from unrelated offending in circumstances where the previous sentence involved a generous backdating.
In oral submissions the Crown did not accept the offender's submission that provocation was a mitigating factor. There were sound policy reasons for the position that the offender was not entitled to react as he did.

[8]

The offender's submissions

The offender acknowledged by his plea that he had caused the injuries in circumstances where his actions were unlawful and dangerous although at the time he committed them he did not intend to cause death or grievous bodily harm. It was noted that the incident lasted for approximately three minutes. It was conceded that the physical violence perpetrated by the offender involved the initial swinging of the knife causing a graze to the deceased, the offender thereafter stabbing the deceased three or four times with a final confrontation where the offender tackled the deceased before striking him several times and kicking him whilst on the ground. It was accepted that the offending was not fleeting in that it involved persistence on the offender's part. It was accepted that his persistence was an aggravating feature of the offending.
Further, it was acknowledged that the use of the weapon to inflict the injuries further aggravated the offence. The knife was a weapon of some significance capable of causing serious injury. However, whilst his actions were dangerous and ultimately lead to the infliction of a fatal injury, the wounds which caused the death were to the arms of the deceased which is to be contrasted with a possible infliction of the wound to a vital organ. This was consistent with the offender's lack of intention to inflict grievous bodily harm.
Counsel for the offender contended whilst his actions amounted to a gross overreaction and reflected an attempt to take the law into his own hands, the deceased's conduct amounted to provocation as a mitigating factor pursuant to s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (CSPA). The actions of the deceased involved a serious criminal offence and accordingly provocation was significant in that the offence would not have occurred but for the actions of the deceased and Williams.
In terms of objective gravity, whilst it was acknowledged it was a serious example of manslaughter, it would not fall within the most serious category.
Apart from the use of the weapon, it was acknowledged that a further aggravating factor was that the offender was on conditional liberty at the time the commission of the offence. However mitigating factors included a lack of planning and was not part of organised criminal conduct, provocation, expressions of remorse and the plea of guilty.
Whilst the offender's criminal history included some matters of violence, they were relatively minor compared to the present offence and he had never previously been sentenced to a term of imprisonment. Whilst it was accepted the criminal record disentitled the offender to leniency that would otherwise be extended to a first-time offender, it could not be suggested that his criminal record demonstrated any continuing attitudes of disobedience of the law.
The submissions referred in detail to the subjective material traversed in the report of Dr Schaefer and submissions were made consistent with the principles in Director of Public Prosecutions v De LaRosa [2010] 205 A Crim R 1 and Muldrock v The Queen (2011) 244 CLR 120.
Ultimately it contended that the offending involved a spontaneous and reactive response to a robbery committed by the deceased and Williams. It was open to the Court to conclude that the offenders impaired intellectual function contributed to his offending in a material way. Further, in the circumstances, the offender was not a suitable vehicle for general deterrence and specific deterrence could also be moderated. Further, the Court would take into account that given the offender's impairments his time in custody was likely to be more onerous.
It was noted that the offender had been in custody since the date of his arrest. However, on 28 June 2023 the offender was sentenced to a term of imprisonment with respect to the offences for which he was on bail at the time of the offending. The offender was ultimately resentenced in the District Court to serve 12 months imprisonment with a non-parole period of 8 months which was backdated to December 2022. The non-parole period expired on 22 August 2023. It was contended that the Court would consider backdating the sentence to the date of his arrest for this offence, reflecting the midway point between his sentence backdate and the expiration of his non-parole period.
It was contended that a finding of special circumstances would be made.
In oral submissions the offender disputed the Crown's contention that the deceased was stabbed in three separate events, and that the Court would not be satisfied beyond reasonable doubt that the final event involved any stabbing.
Counsel for the offender reinforced his submission that provocation was significant and sought to distinguish the cases upon which the Crown relied. Whilst it was accepted that the Court would have difficulties finding prospects of rehabilitation were good, there were some positive indicators. The subjective material was consistent with the offender expressing considerable remorse and his preparedness to engage in treatment to address his underlying issues.

[9]

Consideration

The offender is to be sentenced with respect to one offence of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900.
Assessing the objective seriousness of the offending must take into account that the offence involves a wide range of conduct and accordingly some care must be taken to avoid placing the offender on some hypothetical range: Paterson v R [2021] NSWCCA 273 at [33].
In any event, as has been recognised in a number of recent decisions of the Court of Criminal Appeal, including, for example DH v R [2022] NSWCCA 200; R v Eaton [2023] NSWCCA 125; KM v R [2023] NSWCCA 10; R v Sharrouf [2023] NSWCCA 13; and Pender v R [2023] NSWCCA 291, whilst there is, of course, always a need for a sentencing judge to make an assessment of objective seriousness, there is no requirement that a sentencing judge do so by placing the objective seriousness of the offence on some putative scale or spectrum by reference to its relationship with a notional midpoint. Rather, what is important is that a judge discuss and identify those factors that are relevant to an assessment of objective seriousness. This is what I have endeavoured to do in this matter.
It was noted in the matter of KM that for the benefit of the offender and other interested parties that an assessment of objective seriousness could instead be founded on easily understood English adjectives such as "inconsequential", "trivial", "significant", "serious", "grave", "in the worst class of case" and so forth.
The plea of guilty is premised on an admission that the offender's actions, whilst unlawful and dangerous, were not intended to cause death or grievous bodily harm.
The offending occurred in the context of the deceased and his companion committing a robbery whilst armed with weapons at a residential unit where the offender and others were located. That said, the offender chose to pursue the deceased, perpetrating three acts of violence, two of which involved the use of a dangerous weapon. I am not satisfied beyond reasonable doubt that the final act of violence perpetrated on the deceased involved any stabbing or use of the weapon. The agreed facts do not reflect this, and the CCTV does not further advance this issue.
It was during the second act of violence, involving the deceased being stabbed three or four times, that the fatal wound was inflicted. Despite this, the offender returned to inflict further violence on the deceased, including striking and kicking the deceased whilst he was on the ground. I accept the Crown's submission that the offending involved a sustained, violent, and vicious attack on the deceased.
As to the accused's submission that provocation would be considered a mitigating factor, Johnson J in R v A1 (No. 6) [2019] NSWSC 1581 helpfully identified several authorities dealing with this issue. Reference was made to the judgment of Spigelman CJ (Sheller JA and Newman J agreeing) in R v White (Court of Criminal Appeal, 23 June 1998, unreported) to the following effect: - "It is not the case that every explanation of conduct constitutes a matter of mitigation. The circumstances in which motive, whether characterised as provocation or not, may be mitigating factor must be confined to cases in which motive impinges upon the moral culpability of the prisoner. These can include mental, emotional or medical problems or impulsive conduct. However, the degree to which motive can be seen to be pertinent must depend on the whole of the circumstances".
In Tyne v Tasmania (2005) 15 Tas R 221; [2005] TASSC 119, Blow J (as the CJ then was) said at [28]: - "The circumstances that a sentencing judge should take into account in relation to provocation in a murder case include the nature of the provocation, its severity, its duration, its timing in relation to the killing, any relevant personal characteristics of the offender (e.g., in cases of racial abuse), and the extent of the impact of the provocative conduct on the offender".
Johnson J referred to similar remarks of the New Zealand Court of Appeal in Hamidzadeh v R (2013) 1 NZLR 369; [2012] NZCA 550 that the approach to provocation in sentencing will be "very much fact dependent" however factors may well include "the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender's response and whether the provocative conduct was such as to reduce the offender's moral culpability in all the circumstances." The Court however emphasised that this should not be treated as a non-exhaustive list and that a flexible approach was required.
Whilst several of the cases to which his Honour referred in A1 related to the offence of murder, the relevant factors requiring consideration in the context of alleged provocation remain relevant.
As previously observed, the deceased and his companion made demands of the occupants of the unit, which necessarily included the offender, whilst armed and with the threat of stabbing. By all accounts however the incident was over relatively quickly. The offender's response, arming himself with a knife and pursuing the deceased, was immediate and entirely spontaneous. However, the offender's response was overwhelmingly disproportionate in the extreme, involving three distinct but close in time acts of violence involving the infliction of multiple stab wounds and further assaulting the deceased whilst on the ground defenceless and having suffered serious injury.
However, I also take into account that at the time of the offending the offender was suffering under a disability which had the impact of significantly affecting his ability to weigh up options and the possible consequences of his actions. Whilst I accept this would result in reducing the objective seriousness of the offending, any reduction must be considered in the conext of the overall circumstances of the offending as I have found them to be.
I accept the offending reflects a very serious example of the offence of manslaughter although not the most serious.
It remains that the Court cannot condone the offender's conduct. In this respect, the Crown's reference to the observations of McClellan CJ at CL in Barlow v R [2008] NSWCCA 96 to the following effect are apposite: - "Whatever be the crime committed by the victim, a civilised society cannot condone such conduct. The rule of law requires that offenders be tried by the appropriate authorities and, if convicted, punished in accordance with accepted principle. In our society crime is dealt with by the Courts".
The fact remains that an offender cannot be permitted to take the law into his own hands.
I must also recognise the harm done to the deceased's family. The deceased was the father of four children who are now tragically deprived of having a father present in their lives forevermore. His death, predictably, has had a profound impact on his parents, sister, and extended family. The sentence must also reflect the harm done to the community generally. The crime was committed in broad daylight in a residential area in the presence of others. No one should have to witness such repeated violence involving the use of a weapon resulting in the infliction of fatal injuries.
As quite properly conceded by counsel for the offender, aggravating factors include the offence involved the use of a weapon and at the time the offender was on conditional liberty. The offender's criminal history is relatively limited, and whilst it does involve some offences of violence, the offender has not previously served a term of imprisonment. The offending commenced in his adult years at a time which I accept was somewhat tumultuous for him. However, the offender's criminal record disentitles him to leniency.
I accept mitigating factors include the lack of any planning and that the offence was not part of organised criminal conduct. Indeed, I am satisfied that the offence was spontaneous and in direct response to the deceased's criminal behaviour.
I accept that the offender has expressed genuine remorse in the history provided to Dr Schaffer and from his conversations with his foster parents. It is clear that the offender has acknowledged the seriousness of his offending and the significant impact arising from the death of the deceased.
In addition to the statutory reduction in the sentence that would otherwise be imposed, the plea of guilty is a further mitigating factor. As Yehia J (with whom Chen and Wright JJ agreed) observed in Giles-Adam v R; Preca v R [2023] NSWCCA 122, "the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice are conceptually different." As her Honour observed the former is an objective factor requiring quantification whilst the latter is a subjective factor which has the potential to mitigate the sentence "as part of the process of instinctive synthesis".
Bell P (as his Honour then was) in Baden v R [2020] NSWCCA 23 observed: - "In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused's "willingness to facilitate the course of justice" which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount."
I find that the guilty plea reflects a genuine willingness of the offender to facilitate the course of justice and has avoided the need of what was likely to be a lengthy trial requiring evidence from eyewitnesses to a violent crime. Such a finding is also consistent with the offender's willingness to cooperate with Police upon his arrest.
I accept the opinion of Dr Schaffer that the offender suffers from foetal alcohol spectrum disorder and attention deficit hyperactivity disorder. I accept that the offender has intellectual functioning in the borderline range as well as receptive and expressive language disorder and learning difficulties. I further accept that the offender's impairments have had, and will continue to have, an adverse impact on his decision-making capacity.
Of particular relevance is the opinion of Dr Schaffer, which I accept, that the offender has significant difficulty conceptualising options and weighing up possible consequences due to his impaired ability to think flexibly, plan and reason abstractly. The offender's actions, leading to the death of the deceased, are to an extent demonstrative of those difficulties.
As to the effect of a mental condition reducing an offender's moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed: "[74] A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending. [75] The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence. [76] While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing)." (Emphasis added). Whilst the offender's impairment cannot excuse his conduct, I accept that it does have the effect of reducing his moral culpability: DPP (Cth) v De La Rosa [2010] 205 A Crim R; Muldrock v The Queen (2011) 244 CLR 120. In the circumstances, as previously observed, I accept the general and specific deterrence, and denunciation have a lesser role to play in determining the appropriate sentence.
I accept that, given the findings of Dr Schafer, the offender's moral culpability is reduced such that the offender is not a suitable vehicle for general deterrence and the need for specific deterrence and denunciation, whilst still relevant, is less of a factor: De La Rosa at [177] - [178]; Muldrock at [54].
The offender's prospects of rehabilitation would be considered guarded although his demonstrated ability to overcome the significant hurdles presented in his most formative years provides some positive indicators. As the report of Dr Schaffer and letter from his adoptive parents demonstrate, the offender has experienced considerable difficulties arising from his intellectual impairment and ADHD diagnosis. This included significant bullying during his schooling years, in addition to his foster father's life-threatening injuries and the assault inflicted upon his foster sister leading to a severe brain injury. Despite these difficulties the offender, to his credit, secured stable employment for some years after leaving school. Tragically, his exposure to drugs and the connection with his biological mother, a lifelong drug user, substantially contributed to the offender's downward spiral. It is readily apparent that the offender has now gained considerable insight into the circumstances leading to his offending and is determined to turn his life around, including being a father to his young daughter. The ongoing support of his adoptive parents and the mother of his child are further positive indicators when considering the prospects of rehabilitation.
I have also taken into account that the offender's impairments will make his time in custody more onerous.
I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period. I find that this is indeed a suitable case for leniency in considering the non-parole period: TM v R [2023] NSWCCA 185 at [103] (Yehia J with whom Payne and Stern JJA agreed) for the following reasons: 1. The sentence will form part of the offender's first sentence of imprisonment. 2. To ensure supervision in the longer term on his release 3. To assist and support his rehabilitation which will be more readily available in the community through appropriate treatment and with the support of his family.
I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate.
The offender was arrested on 25 April 2023 and has been in custody since that date. The offender was sentenced in the Local Court to a term of imprisonment for the offence for which he was on bail. On 11 August 2023 that sentence was varied on appeal to the District Court such that he was ordered to serve 12 months imprisonment with a non-parole period of 8 months. Based upon prior periods of remand the sentence was backdated to commence on 23 December 2022 with a non-parole period expiring on 22 August 2023.
The Crown contends that the commencement date for the sentence imposed by this Court should commence on 23 August 2023. This would reflect, it was submitted, that the sentence imposed by the District Court involved generous backdating.
The offender submits that an appropriate start date for the sentence would be the date of his arrest, reflecting approximately a midpoint between the date the previous sentence was due to commence and the expiration of the non-parole period.
I accept the offender's submission that the Court cannot assume that the sentence imposed by the District Court reflected generous backdating. This would involve enquiring into the sentencing considerations of the previous sentencing judge.
The offences for which the offender was previously sentenced were entirely unrelated to the offence for which the offender is now to be sentenced. However, some consideration should be given to the total period of time spent in custody and principles of totality are relevant. In the circumstances, I am satisfied that an appropriate start date for the sentence I intend to impose should be 30 June 2023.
In determining the non-parole period, I have taken into account the period of continuous incarceration which in this case, allowing for the backdating of the unrelated sentence, is from 23 December 2022: Brown v R [2024] NSWCCA 136. In this context I have considered the overall non parole period and the overall head sentence.
I have had regard to the sentences imposed in the cases identified by the Crown in the written submissions with the usual caution of references to comparative cases.
In all the circumstances, I consider an appropriate sentence is 10 years from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of 7 years 6 months with a non-parole period of 4 years 10 months.

R v Lawrence

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (18)