(ii) a sexual assault occurring on the night of the killing.
43 Matters to be taken into account in sentencing in cases of provocation manslaughter were identified in the much cited judgment of Hunt CJ at CL in R v Alexander (1995) 78 A Crim R 141. His Honour there identified three particular matters to be taken into account in such cases (at 144):
"(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence, eg Morabito (1992) 62 ACrimR 82 at 86;
(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence, eg, ibib (at 86); and
(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence, eg Kinmond at 414, 417; Collingburn at 304."
44 As to the first of the above matters, the provocation constituted by the cumulative effect of the sexual assaults referred to in para 42 above, I assess as of real significance, although it is not to be overlooked that there had been the earlier consensual sexual activity in 2001. On the other hand, whilst I consider the prisoner resented that earlier consensual activity and was probably thereby made more vulnerable to the second provocative assault to be regarded as having occurred later, I do not lose sight of the evidence that the prisoner gave that as he was walking to the club he was thinking "If he tried anything, then I would do something" (T 236, 238). That evidence conveys that, according to the prisoner, he was contemplating the possibility when he was on the way to the deceased's home that he might be the subject of a sexual advance. Consistently with the reasoning of Bell J in R v Johnson [2003] NSWCCA 129 at para 48, this is a circumstance tending to lower the degree of provocation. Nonetheless, I do assess the degree of provocation as being of real significance.
45 As to the second consideration identified by Hunt CJ at CL in Alexander, the time between the second of the acts of provocation to be taken into account and the loss of self control was very short, thus tending to reduce the objective gravity of the offence.
46 As to the third of the matters addressed in Alexander, the degree of violence was extreme, as reflection on the post mortem findings set out in para 3 above emphasises.
47 This was an extremely violent killing and the victim was defenceless when the prisoner attacked him. Making due allowance for the first and second matters identified in Alexander, I regard the objective gravity of this crime as high.
48 Three victim impact statements were received into evidence pursuant to s 28(3) of the Crimes (Sentencing Procedure) Act 1999. Those statements were from Mrs Cobi Powell, the wife of the deceased, and from Mrs Julie Burton and Mrs Patricia Powell, sisters of the deceased. I have considered each of those statements and recognise the grief and loss experienced by close members of the deceased's family such as has been described in those statements. Consistent with authority, however, it is not appropriate that I take those statements into account for the purpose of determining what sentence I should impose upon the prisoner: see R v Previtera (1997) 94 A Crim R 76; and R v Bollen (1998) 99 A Crim R 510; and s 28(4) of the Crimes (Sentencing Procedure) Act.
49 The prisoner was born on 13 October 1974, so that when he committed this crime he was twenty-seven and he is presently twenty-nine years of age. He has one brother and two sisters and his parents separated in his childhood. He did not receive his Higher School Certificate but after leaving school he undertook a course in hospitality practices in Queensland and then a course through the Commonwealth Employment Service at Newcastle. He then joined the Navy in 1995. Whilst in the Navy he had a serious car accident, suffering from a number of fractures and his spleen was removed. In his Naval service he experienced some problems with discipline and came under adverse notice by reason of an altercation with a taxi driver and some episode when he smuggled a girl into his room. He was perceived to have a drinking problem and was required by the Navy to undertake a rehabilitation course concerning that problem. He did not complete the course and was discharged from the Navy.
50 Following that discharge he returned to Newcastle to live with his father and the only work he did in Newcastle was unpaid voluntary work. He then moved to Sydney with his father in February 1999 before going to Scotland in August 1999. After his return to Australia in June 2000 he worked for Parcel Post and he had a second casual position with Mr Steffen in a panel beating business that Mr Steffen conducted at the rear of a car dealer's premises which were managed by the deceased.
51 In short, the prisoner's employment history is unsettled and unimpressive, and the prisoner when seen by Dr Nielssen, forensic psychiatrist, acknowledged to that doctor that he had developed an alcohol abuse disorder during his early adult life. Dr Nielssen assessed the prisoner on 16 September 2003, and his report dated 30 September 2003 is before me. In that report Dr Nielssen opined:
"Mr Marlow reported normal early development but was affected by conflict between his parents during his adolescence and did not complete high school because of disruption to his final year arising from his parent's separation. He developed an alcohol abuse disorder during early adult life probably contributed to by the culture of heavy drinking in the Navy.
Mr Marlow suffered what would be considered to be a head injury of moderate severity at the age of twenty one, from which he appears to have largely recovered as there was little evidence of cognitive impairment at interview. However, any subtle residual brain damage is likely to have resulted in impaired tolerance to the effects of alcohol, and Mr Marlow reported frequent blackouts.
There is a family history of depression, as his brother and grandfather have both been treated for what he understands to be depression. Mr Marlow reported becoming despondent whilst recovering from his accident and also reported significant symptoms of depression in the period after the breakdown of his engagement, although the symptoms were difficult to separate from the predictable effects of more heavy drinking in this period. He was considered sufficiently depressed to be prescribed antidepressant medication in the period after his arrest.
Mr Marlow did not have a history of antisocial conduct, either as a juvenile or as an adult, which is the main predictor of future violence. He has a significant alcohol abuse disorder, which in combination with the likelihood of subtle brain damage is a risk factor for further offending and he should have further counselling with the goal of complete abstinence from alcohol. He may also benefit from treatment with one of the newly available anti-craving drugs after his release.
Mr Marlow was not assessed to be depressed at the time of the interview, but he carries a risk of becoming depressed in future. Depressed mood was probably a factor contributing to Mr Marlow's state of mind at the time of the offence and he should consider maintaining contact with a psychiatrist in the period after his release."
52 The prisoner has no prior convictions.
53 Since he was taken into custody on the date of his arrest, 1 January 2002, the prisoner has done a stress management course and has applied to do his Higher School Certificate, which he hopes to be permitted to do in custody. Whilst in custody on remand he has worked at a business called Wirelink and he said he had a position in charge of cutting cables.
54 The prisoner gave evidence in the proceedings on sentence, expressing his regret to the deceased's family:
"I do feel terrible about what's happened. I feel bad for his family, I feel terrible for what's happened. I know, I do have an idea of what they are going through with my previous work. I have worked with people in that position before and I truly am sorry about having to put them through that and I am sorry that they have been - they have heard things about their father or their son or their brother that had to come out at the trial. I am sorry they had to go through it.
I know how I would feel if I was in their position and I really do regret having to put them in that position and I am sorry the whole thing has ever happened.
Q. You have heard read a victim impact statement in which fears are expressed about you from the family of Mr Powell. Is there anything you want to say about that?
A. Yes, it's the last thing on earth I would want to do. I have no grudges or animosity towards his family. No, there is no need for any fear from me. It's the last thing I ever want to do."
55 I accept that the prisoner does regret the grief and distress he has caused the family of the deceased. I am, however, by no means convinced that he is genuinely contrite for having taken the life of the deceased. Nevertheless, I consider that the prisoner's prospects of rehabilitation are reasonable.
56 The prisoner offered a plea of guilty to manslaughter when first arraigned in this Court on 6 September 2002, some seven months before his first trial began. The prisoner pleaded not guilty to murder but guilty to manslaughter at his first trial, at the conclusion of which it was necessary to discharge the jury before verdict. He pleaded not guilty to murder but guilty to manslaughter again at this trial. Although the plea was not accepted, in the circumstances the prisoner is entitled to benefit from the utilitarian value of an early plea: see R v Oinonen [1999] NSWCCA 310. Mr Stratton submitted that the prisoner should be treated as having offered his plea at the first available opportunity since he pleaded when he was first represented by the Public Defender. However, no such plea was offered in the Local Court and what I am addressing is the utilitarian value of the plea. Certainly the prisoner is entitled to a discount, but not, in my opinion, to the maximum discount according to R v Thomson (2000) 49 NSWLR 383 at para 160. I propose to allow a discount approaching twenty percent.
57 I have had regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act in determining the appropriate sentence.
58 Reference has been made by counsel to sentences imposed in other cases where the issue of provocation has arisen. In Alexander the learned sentencing judge scheduled sentences in cases where a successful provocation "defence" had been taken into account. There were eleven such cases and the total sentences ranged from one year four months to eight years six months. In another case mentioned in Alexander, but there described as wholly exceptional, a deferred sentence was imposed.
59 Mr Stratton acknowledged that the range of sentences in this area seems to have increased since Alexander and a schedule was produced by him that demonstrated this. Sentences in that schedule of some forty-seven cases ranged from cases where bonds were granted to a case where a head sentence of fourteen years was imposed with a minimum term of ten years. No useful purpose would be served by my embarking upon a review of all those cases since, obviously, so much depends upon the particular facts and circumstances of each case.
60 The Crown, however, invited special attention to R v Johnson (supra) because of what it was submitted were similar features. In that case the offender was twenty-two when he killed his victim. The victim had sexually abused the offender a number of times nine years earlier and that abuse was of a gross kind, including anal penetration. On the day of the crime, the offender visited the deceased's home seeking cannabis, a drug to which the deceased had introduced him nine years earlier. When the offender entered the victim's home, the victim approached him from behind and rubbed himself against the offender in a sexually explicit way. Then the offender pushed the victim away, whereupon the victim picked up a knife. There was a struggle in which the offender took hold of the knife and used it to stab the deceased. A number of stab wounds were inflicted.
61 The jury's verdict of manslaughter was determined to be by reason of provocation. The offender had a conviction for assault with intent to rob with wounding and after a period on parole, his parole was revoked for some relatively minor offences. He was again released on parole and was still on parole when he killed his victim. A subjective feature of the case was that the offender had behavioural problems that had been exacerbated by the victim's abuse of him as a thirteen year old child.
62 The sentencing judge imposed a sentence of ten years with a minimum term of seven years six months. However, the Court of Criminal Appeal determined that the judge was in error in setting this sentence because he had not made allowance for the offender's willingness to plead guilty to manslaughter. An offer to plead guilty to manslaughter had been made in the week before the trial. Hence the Court of Criminal Appeal resentenced the offender, imposing a head sentence of nine years imprisonment with a non parole period of six years nine months.
63 The Crown submitted in the event that I did not exclude as a reasonable possibility a sexual assault on the night of the killing, the appropriate sentence would be "somewhere like" the sentence imposed in Johnson.
64 There are similarities between the present case and Johnson but there are also differences, and I must recognise this. I instance some of these differences. The extent of the violence was greater in the present case than in Johnson, and the deceased was at all times defenceless, offering no resistance. On the other hand, this prisoner has no prior record. There were differences in the extent of the provocation to be measured as well. The prisoner offered his plea of guilty to manslaughter much earlier than in Johnson. Here it was offered when the prisoner was first arraigned.
65 Examination of any number of cases with their varying circumstances and sentences merely adds emphasis to the much cited dicta of Gleeson CJ in R v Blacklidge (unreported, NSWCCA, 12 December 1995), where his Honour said (at p 4):
"It has long been recognised that the circumstances that may give rise to a conviction for manslaughter are so various and the range of culpability is so wide that it is not possible to point to any established sentencing tariff that can be applied to such cases. Of all crimes, manslaughter throws up the greatest range of circumstances affecting culpability."
66 Since this offence was committed prior to 1 February 2003, s 44 in its earlier form here applies. Hence, I am required, firstly, to set the term of the sentence and, secondly, to set a non parole period for that sentence which must be not less than three-quarters of the term of the sentence unless I find special circumstances for it to be less.
67 Mr Stratton submitted that this is an appropriate case in which to find special circumstances having regard to the fact that this is the prisoner's first term of imprisonment. There will be a need for an extended period of supervision following his release in the interests of his rehabilitation.
68 It was pointed out in R v Phelan (1993) 66 A Crim R 446 by Hunt CJ at CL that for a finding of special circumstances
"the starting point is the need or the desirability of a longer than usual parole period, not the need or the desirability of a shorter than usual non parole period."
69 I am not satisfied that it is necessary or desirable that the sentence be structured in such a way that the non parole period is less than three-quarters of the term of the sentence. I am not satisfied that there are special circumstances requiring or rendering it desirable that the prisoner be given a longer opportunity for parole than that which I am about to set. It seems to me that the parole period I have in mind is sufficient to address the needs of the prisoner concerning rehabilitation, including the need for counselling identified by Dr Nielssen, and I do not consider that the circumstances of this case warrant that I should determine a lesser non parole period than I am about to fix.
70 I propose to backdate the sentence to 1 January 2002, since which time the prisoner has been in custody.
71 But for the need to allow the discount which the prisoner's early offer of a plea of guilty to manslaughter demands, I would have imposed a total sentence of eleven years imprisonment but, allowing for that early offer, and constrained as I am by the verdict of the jury, I pass sentence as follows: I sentence the prisoner to a term of imprisonment of nine years, commencing on 1 January 2002 and expiring on 31 December 2010. I fix a non parole period of six years nine months, commencing on 1 January 2002 and expiring on 30 September 2008. I specify as the first date upon which the prisoner is to be eligible for release on parole 30 September 2008.
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