9 After drinking at the Maroubra Hotel, the offender went to the Glasshouse Motel at Maroubra, leaving there to return home at about 6pm. At 10pm the offender called 000.
10 When ambulance officers and police arrived, the deceased was dead and his peripheries were cold to the touch. The offender was described as being agitated and angry at that stage, saying "I have been his carer for three years, why did he have to go do this tonight. Fucking old poofter faggot. We'd go for a drink and he wants to hold my hand while we're out, the fucking poof… just charge me, get it over with. I'll do fifteen years or twenty or life, whatever".
11 It is an agreed fact that manual strangulation was the cause of the death of the deceased. A post mortem revealed a broken hyoid bone in the neck, fractured ribs, bruising to various parts of the body and other injuries. The breaking of the hyoid bone is consistent with manual strangulation. Some of the other injuries noted were old injuries. Others, including bruising to the face and neck, were recent.
12 The offender participated in two recorded interviews with police. In each of those, he denied any involvement in the death of the deceased. He has not subsequently given any account to police of the relevant events and he did not give evidence at the sentence hearing. Accordingly, there are no facts before me as to the circumstances in which the offender came to strangle the deceased, beyond the history of the relationship already described. There is evidence that the offender was drinking alcohol during the day, but there is no reliable evidence from which I can be satisfied as to the extent to which he was affected by alcohol when he strangled the deceased.
13 The offender is 46 years of age. He was 41 at the time of the offence. His personal background is described in detail in reports tendered at the sentence hearing from a psychologist, Ms Anita McGregor and a neuropsychologist, Dr Susan Pulman. Their reports record that the offender's father was an alcoholic who was violent towards both the offender and his mother during his childhood. In early high school, the offender experienced learning difficulties and developed a deep fear as to his father's likely reaction if he received a bad report card. As the third quarter report card approached in year 7, the offender became increasingly anxious and attempted to commit suicide with a rifle owned by his father. He took the rifle to school and shot himself through his upper palate. The bullet exited through his left frontal lobe.
14 At the age of 16 the offender was sent to Yugoslavia by his parents, apparently in an attempt to break a cycle of anti-social behaviour. In Yugoslavia the offender began drinking to excess. As already noted, he considers himself an alcoholic. Following his failed suicide attempt, he was diagnosed with epilepsy, the symptoms of which seem to be brought on by the consumption of alcohol. He believes that he has had ten or fifteen seizures due to excessive drinking in conjunction with the use of his anti-epilepsy medication.
15 The psychologists' reports note that the offender has been married three times and also had a de facto relationship with a woman named Leanne with whom he had three sons. The offender told Ms McGregor that his relationship with Leanne was violent and had resulted in "a couple of charges" but no convictions, according to him.
16 The offender does have a criminal history, dating back to 1983. Apart from two minor dishonesty offences, he has a conviction for malicious injury in 1983, a conviction for assaulting a female in 1986 and three convictions for assault occasioning actual bodily harm in 1987, 1992 and 1998. The most recent of those resulted in a sentence of three months periodic detention. He has had no convictions since 1998.
17 Ms McGregor and Dr Pulman administered a number of intelligence and personality tests to the offender. Dr Pulman reported that the results of neuropsychological testing indicate that, although the offender's overall level of intellectual functioning falls within the average range, there is a marked difference between his verbal IQ and performance IQ. The difference is clinically abnormal, indicating that aspects of his overall intellectual functioning are disturbed.
18 Dr Pulman also reported that, although the offender's attention and concentration and his verbal and visual memory skills are all within normal limits, his "executive abilities" (those skills governed by the frontal areas of the brain) indicate "difficulties with verbal abstract reasoning, judgment, problem solving and self-monitoring behaviours".
19 Dr Pulman concluded:
"It is likely that his history of brain injury is a contributing factor to these deficits as his skills in these areas fall well below the level predicted on the basis of his intellectual functioning."
20 There is a suggestion in one of Ms McGregor's reports that the offender at some point claimed to have no memory of the circumstances of the offence. Her second report states:
"I understand that the reason for this re-assessment was to determine whether 'his memory deficit as to his acts in causing the death of the deceased is likely to have been caused by an 'alcoholic blackout' or epileptic seizure in the context of long standing alcohol abuse'."
21 However, none of the three reports tendered at the sentence hearing recites a history to that effect given by the offender himself to the relevant expert. I am unable to make any finding one way or the other on that issue.
22 Apart from the three expert reports, the only additional material tendered on behalf of the offender at the hearing was a character reference from Chris and Sally Towne of Augustus Downs Station in Queensland. Mr and Mrs Towne employed the offender as a labourer on their remote cattle station for two separate periods between the date of the offence and the date on which the offender was arrested. Although the periods of employment were short, Mr and Mrs Towne clearly formed a very favourable impression of the offender during that time. Their letter to the Court describes him as a hard working employee with high work ethics and standards.
23 Interestingly, in circumstances where Mr and Mrs Towne would have had an opportunity to observe the offender's drinking habits, they state that he did not at that stage have a drinking problem. Mr and Mrs Towne describe the present offence as "nothing like the Michael that [they] know". The offender's conduct during that time as described by Mr and Mrs Towne reflects an improvement upon the period leading up to the commission of the offence, which I am satisfied indicates some capacity for rehabilitation. I have to weigh that evidence, however, against the offender's criminal record.