R v Misiepo

Evidence

1. The evidence in the proceedings on sentence on 5 February 2016 comprised documentary and oral evidence and the documentary evidence included the following documents: NSW Police Force District Court Report - Criminal Record of the offender NSW Department of Corrective Services, Conviction, Sentences and Appeals document Agreed Facts document Two Victims Impact Statements were read at the hearing. The first was the statement of Megan Hill, the partner of the deceased, and the second that of the deceased's brother, Victor Martyn.
2. On behalf of the offender the following exhibits were tendered: 1. Report of Dr Kerri Eagle, Forensic Psychiatrist dated 28 January 2016. 2. Statement by Ms Dullaghan-Davis, Services and Program Officer dated 25 January 2016. 3. Order revoking a Parole Order dated 17 December 2013.
3. Sandra McInnes, the offender's mother, was called to give evidence. Ms McInnes stated that she was, and had remained, supportive of her son and upon his eventual release from prison he would be likely to reside at her premises to begin with. In cross-examination, she conceded that, whilst the offender had her continuing support, that had been the situation at the time of him having committed criminal offences, to which proposition she agreed: T 5 February 2014, at p 4.

Factual Summary

1. By way of summary, on 31 December 2013 and 1 January 2014, the offender was in Port Macquarie with his girlfriend at the time, one Rebecca Park. They were staying at Unit 3/4 Norfolk Avenue, Port Macquarie. The unit had been occupied up to that time by Rebecca Park's sister, Pania Park.
2. Reece Barnes, who was in a relationship with Pania Park at the time, was also present at the unit on the evening of 31 December 2013.
3. In the early hours of 1 January 2014, the offender and Rebecca Park were walking in Norfolk Avenue when they were approached by Megan Hill, Mr Martyn's partner, who sought assistance from them to obtain a taxi to get home. Ms Hill at the time was significantly affected by alcohol.
4. On Ms Hill's account the offender and Rebecca Park made it clear that they would not assist her or ring for a taxi to take her home. Ms Hill claimed in evidence that she was abused and physically assaulted when the offender pushed her to the ground. This incident is the subject of the common assault charge.
5. In due course Ms Hill managed to obtain a taxi and left Norfolk Avenue. When leaving she made comments which it may be assumed were audible to the offender indicating that she had some form of association with the outlaw motorcycle group known as the Bandidos Motorcycle Club, and that she would return with the assistance of the Bandidos. The implication was that she would seek some form of redress or retribution.
6. Ms Hill returned to her residence and told Mr Martyn what had happened in Norfolk Avenue. Mr Martyn then drove her back to Norfolk Avenue and they arrived there at approximately 6:07am.
7. At the time of the offence the deceased was 44 years of age, he was 184 centimetres tall and approximately 95 kilograms in weight. He was of solid build. He was not armed when he arrived at Norfolk Avenue with Ms Hill. At the time of the offence the offender was 33 years of age and was said to be fit and heavily muscled.
8. The evidence at trial was that when they arrived there the offender was on the footpath outside the unit block at 4 Norfolk Avenue. On the evidence, the offender was armed with a replica hand gun and a knife.
9. There was evidence at trial that both Mr Martyn and Ms Hill saw what appeared to them to be a handgun. At about that time, Rebecca and Pania Park emerged onto the footpath and, on Ms Hill's account, they commenced to assault her on the lawn in front of the unit block. In the course of the altercation with the other two women Ms Hill at some point went to the ground in front of the unit block. There was evidence that the Park sisters were over her and assaulting her.
10. Whilst the fight between the women was occurring, the offender and the deceased were on the street or footpath area. Initially the three men, Mr Martyn, Reece Barnes and the offender, engaged in some form of altercation in which it appears that one or more punches were thrown by Mr Martyn and Mr Barnes, although it is to be noted that the evidence failed to establish precisely what occurred at this point. Shortly thereafter, the offender commenced to move towards Mr Martyn in a threatening manner with the deceased walking backwards down the road. The offender produced a knife and ultimately stabbed Mr Martyn three times. The evidence indicated that as the deceased was walking backwards down Norfolk Avenue, he was retreating from the offender's advance, with his hands down and he was not then being aggressive.
11. Three stab wounds were inflicted to the deceased's chest. The fatal wound was that to the left anterior chest, which penetrated the aorta. That wound penetrated approximately 55 millimetres and it is accepted that a moderate amount of force would have been required to penetrate through a rib.
12. A further wound was inflicted on the left lateral chest wall which penetrated 20 millimetres and involved the spleen.
13. The third stab wound was to the right anterior chest and involved the liver. The evidence was that there were most likely also two glancing blows with the knife.
14. A post-mortem examination revealed that the deceased had also suffered laceration injuries to his face, most likely caused when the offender hit him with the replica handgun.
15. The offender was not injured except for a laceration to his hand which the evidence indicated was most likely caused by the use of the knife in stabbing Mr Martyn.
16. The evidence of Ms McKenzie and Mr Paine, to which I will shortly refer, indicated that Mr Barnes was not in the immediate vicinity when the altercation on the roadway between the offender and Mr Martyn (to which I have referred) occurred, or at the time the fatal wounds were inflicted.

Sentencing - Manslaughter Offences

1. Sentencing principles that apply in a case such as the present are well-established. They require the sentencing judge to determine the facts relevant to sentencing and the primary constraint upon the power and duty of decision-making in sentencing is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.
2. Additionally, a further restraint is that the findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. I refer to the observations of his Honour then Chief Judge at Common Law Hunt J in R v MacDonell (NSWCCA, 8 December 1995, unreported, per Hunt CJ at CL at 1-2).
3. It has long been recognised that of all serious offences, manslaughter attracts the widest range of possible sentences: R v Lavender (2005) 222 CLR 67 at [22] per Gleeson CJ, McHugh, Gummow and Hayne JJ. As their Honours there stated, the culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder, or it may be such that a nominal penalty would suffice. I refer to the observations of Spigelman CJ in R v Forbes [2005] NSWCCA 377 at [134].
4. As has frequently been recognised the fundamental touchstone for sentencing in cases of manslaughter is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he must be sentenced to imprisonment. I refer in that respect to the judgment of the Court of Criminal Appeal in R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995, unreported). In determining sentence, the principles of punishment, retribution and deterrence all play their part as well as denunciation of the offence. Particular regard must be given to the features relevant to the objective seriousness of the offence as well as to any mitigating circumstances.

Events Leading to, and Occurring During, the Assault

1. Although the Crown called a number of persons who were residents of Norfolk Avenue in respect of their observations that each made of events, either before and/or after the stabbing of Mr Martyn, the evidence given by Mr Paine and Ms McKenzie, in my assessment, was the most probative. They were both impressive witnesses.
2. Ms Hill gave evidence of the initial encounter she had with the offender in which she said that he pushed her in the front of her shoulders and she fell to the ground. At some later point in time she managed to return to her home where she told Mr Martyn that she had been assaulted in Norfolk Avenue, "… whilst asking for assistance for a cab, by a Kiwi guy": T 71.
3. Soon after, she and Mr Martyn drove to Norfolk Avenue. As they entered the street she said she saw a male at the front of the unit block, being the same male who was involved in the earlier incident in which she says she was assaulted. She said that she and Mr Martyn both got out of the car and walked to the footpath area, the driveway. As they were approaching the unit Ms Hill said she heard Mr Martyn say "Meg, he's holding a gun. He's got a gun". She said she turned and looked at the person who was then standing in the shadows of the palm tree in front of the unit block: T 73. She said that she saw the male holding something that was shiny or silver, and he was holding it in a pistol-grip fashion: T 74. As she turned and looked towards Mr Martyn, she said she turned back and saw the young woman who had been involved in the earlier alleged assault upon her running with another female towards her. She said she was then attacked, and she tried to defend herself. She said that she was being punched, hit and kicked all over her body. She said the attack on her continued until she heard Mr Martyn call out that he had been stabbed in the heart: T 77.
4. She said she was on the ground at the time she heard him call out. She said the females then stopped beating her and left. She said she then saw Mr Martyn clenching his chest, leaning on her car. She did not see the male person who she said had assaulted her earlier that morning again. She said that Mr Martyn then ended upon on the ground on the roadway.
5. At the time of the offence Mr Paine lived in Unit 1 at 4 Norfolk Avenue which is at the bottom left at the building. His bedroom was at the front looking out onto the roadway. He had not been drinking that night but had been playing computer games. After going to bed he was woken by what he described as "fighting noises": T 146. He said this was at about 6:00am on 1 January 2014.
6. His attention was first drawn to the women who were fighting at the front of the unit. He said he also saw two men down on the street: T 148. He said he saw them between the trees. He said that he saw one male pushing the other. The male who was pushing did not have a shirt on and the male that was being pushed had a singlet on. He said "… it was just a real aggressive kind of nature and kind of demeanour to the whole thing, umm, that's what I first saw": T 149.
7. He said that the man with the singlet on, Mr Martyn "… was kind of backing away while being pushed, kind of had his arms up, was trying to disengage I think probably would be the best way to describe it": T 150. He said that the male confronting Mr Martyn "… was just going after him and kept pushing him and hitting him": T 150. He said he then went immediately and rang the triple-0 number.
8. Mr Paine also said that he had initially seen three men but that at the time of the altercation between Mr Martyn and the other man the third male "… was like further up the road, like if you're looking at the thing he was umm, exhibit A15 the male was pretty much in front of the bottom right driveway on that exhibit so he was not engaged in the conflict that was on the road": T 150-1.
9. After speaking to the triple-0 operator, Mr Paine said he obtained a towel and went out and saw a man who was injured who he recognised as the one he had first seen out the window. He said, "He was the one being attacked, with the goatee and the singlet, who was trying to disengage": T 151.
10. Mr Paine also said that he observed the male who had been attacking, pushing and punching the deceased: T 150. He said he had a big tattoo on his right-hand shoulder and arm: T 152. He said that after the attack his attention was drawn to the women who had been assaulting Ms Hill and that the man who had been confronting Mr Martyn had run up the stairs on the right-hand side of the building to the top unit: T 153.
11. Mr Paine gave a description of the tattoo. He said in that respect, inter alia, "… I remember because the top of - like had pointy bits at the top and I've got one kind of similar and that's how I kind of remembered it".
12. When asked what the man with the tattoo was doing as the other man was backing away, he said "He was assaulting him, hitting him in the chest and just kind of pushing him and being aggressive in nature": T 159.
13. Mr Paine said that the man with the tattoo was not there when he subsequently went outside: T 160.
14. Mr Paine attended a local police station on 7 January 2014 and he was there shown an array of faces and an array of tattoos. He identified one particular tattoo in a line-up which he said was the tattoo that he saw on the man who was attacking the other man on the street: T 162. This matched up with the offender's tattoo.
15. Mr Paine was closely cross-examined: T 163-204. As I have earlier observed, Mr Paine was an impressive witness. He was straightforward and I consider that the evidence he gave was reliable. The reliability of his evidence was reinforced by the evidence of other witnesses and his account of critical events as recorded in his out-of-court statement to police.
16. Ms Felicity McKenzie was, at the time of the offence, a resident at Unit 2 at 4 Norfolk Avenue, Port Macquarie. Her unit was located at the bottom right-hand side of the unit building. She said that she knew Pania and Rebecca Park. She said she had gone to high school with Rebecca Park in Kempsey. Before the offence she had seen Pania about the units in the period leading up to New Year. She knew that she, that is Pania, was associated with a male, Reece Barnes: T 259.
17. Ms McKenzie had been out on New Year's Eve and returned home between 2:30 and 3:30am. Before going to bed, she said she heard a woman's voice, Ms Hill, stating that she needed a taxi: T 260-1.
18. She was awoken by an incident which she said she heard and it sounded like fists smashing together outside her window, which was open at the time. She saw the women fighting on the ground. The effect of her evidence was that Rebecca and Pania Park had the better of Ms Hill in the altercation. She said that Reece Barnes came down the stairs and she saw another male person who was referred to in her evidence as Person 1. She said that she had been looking at the girls and then noticed "the boys were sort of having some words together and they were sort of near the road …": T 262. She said she looked at the male, Person 1, who appeared to her to be "pushing Mr Martyn who sort of backed away really quickly". She said that she saw Mr Martyn and "he just touched his heart". He said "I've been stabbed": T 263.
19. In relation to the male person referred to as Person 1, she noticed the broadness of his shoulders. After Mr Martyn said he had been stabbed, she saw him stagger to the other side of the road and then he made his way back to the middle of the road where he laid himself down: T 263. When asked where Reece Barnes was located she said that he was near her driveway, maybe just on the grass, that he was not as close but was away from the other two. She could not remember seeing any physical contact between Reece Barnes and Mr Martyn: T 264.
20. Ms McKenzie gave her evidence in a measured manner. She gave the impression of being an intelligent and perceptive person. Her evidence is consistent in several respects with that of Mr Paine and certain of the other witnesses. She said in evidence that she thought that Person 1 retreated after the stabbing and she said he went up the stairs, as did Rebecca and Pania Park. She said that Reece Barnes had gone and that she assumed that he had also run up the stairs to their unit: T 266.
21. The Crown case also relied upon circumstantial evidence that implicated the offender as the person who had in fact attacked Mr Martyn. This included the police locating a blue singlet in the unit occupied by the Park sisters, attributed to the offender as his shirt, with blood matching the offender on it. There was blood on the staircase leading to the unit where the offender had stayed. There was evidence of an immediate flight from Norfolk Avenue by the offender. There was evidence of his subsequent contact with a female acquaintance for her to arrange accommodation for him at a motel under a false name.
22. The Crown also tendered and relied upon a note written by the offender which the Crown contended contained an admission by the offender in relation to his involvement in the offence.
23. When subsequently identified in a public street by police, the offender endeavoured, unsuccessfully, to escape the apprehension by police, but he was apprehended.

Findings

1. It is necessary that I make findings on the evidence consistent with the jury's verdict. For the purposes of sentencing the offender, it is necessary that findings of fact be made.
2. In R v Olbrich (1999) 199 CLR 270, the High Court at [27] confirmed that the standard to be applied by a sentencing judge was that he or she must not take into account facts in a way that is "adverse" to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, in respect of circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
3. I accordingly proceed, amongst other things, in determining facts concerning the conduct of the offender leading up to the stabbing of Mr Martyn and the question as to his state of mind at that time in accordance with the requisite standard.
4. The action of the offender in arming himself with a knife was a deliberate and considered one. He anticipated the possibility that Ms Hill would return to Norfolk Avenue, with assistance of someone possibly associated with the motorcycle gang known as the Bandidos.
5. When Ms Hill and her partner arrived at Norfolk Avenue and Mr Martyn walked towards the offender I accept that he believed that Mr Martyn was intent on engaging in some form of physical altercation with him. That finding is consistent with the jury's verdict in respect of self-defence.
6. Whilst the jury's verdict implicitly involves a finding that the offender was acting in self-defence, his acts of stabbing Mr Martyn, for reasons I will proceed to give, were not a reasonable response to the circumstances as he perceived them to be. That, of course, is implicit in the jury's verdict.
7. I consider that the offender's actions in stabbing the deceased were grossly excessive.

Self-Defence

1. The need for findings to be made on sentence in cases involving excessive self-defence manslaughter has been demonstrated in recent authorities. I will refer to two in particular.
2. In Pitts v R [2014] NSWCCA 244, the applicant had been tried before a jury on a charge of murder. The jury returned a verdict of guilty to manslaughter.
3. The verdict of manslaughter was accepted as based on excessive self-defence in circumstances in which prior to the fatal attack there had been no real threat of violence, although there had been an earlier incident whereby the deceased and another broke into the applicant's home.
4. The Court considered issues relating to the degree to which the response of the applicant was unreasonable or had being quite extreme in the circumstances of the case.
5. The factual events preceding the stabbing in effect had two stages; the initial stage involved the break-in of the premises causing fear or apprehension to persons inside the home unit, including the applicant. The second stage occurred when the deceased and his companion had left the unit and they were walking towards the lift. In the course of the second stage, the applicant undertook the deliberate act of obtaining a knife and then following the two men who had broken into the unit and then using the knife to stab the deceased in an angry confrontation with the two men.
6. The Crown relied upon the decision in this case as illustrative of the proposition that excessive self-defence may arise out of a deliberate act taken with lethal consequences even though the events constituting the first stage had passed, followed by the applicant's deliberate course of action. That was said to have some similarity to the facts of the present case.
7. In support of the ground of appeal in Pitts, that the sentence was unreasonable or plainly unjust or manifestly excessive, it was sought to contend that the offence was of relatively low objective seriousness.
8. In the course of his analysis, RA Hulme J in his judgment in the Court of Criminal Appeal observed at [36]: "… many of the cases involve offences committed in the face of a real threat of violence by the deceased. In the present case, the door of the applicant's apartment had been kicked in but then the deceased and his companion were in the process of leaving. It was the applicant who engaged them in a confrontation by calling out to them, then retreating into his unit to get a knife, and then confronting them again. He need not have confronted them at all. This is a significant feature that distinguishes the present case from many of the schedules."
9. His Honour further observed that the trial judge had found that the applicant had an intention to inflict grievous bodily harm. To reconcile that finding, which was not challenged, with the jury's verdict, it followed that there must have been a perception by the applicant that it was necessary to do what he did but his conduct was not a necessary response. RA Hulme J further observed at [38]: "… In my view, and consistent with the view taken at first instance, the degree to which the applicant's response was unreasonable was quite extreme. Her Honour described the applicant's actions as 'heinous' and 'misguided'. That assessment was open to be made."
10. In the case of Smith v R [2015] NSWCCA 193, it was implicit in the jury's verdict that the applicant believed that it was necessary to defend himself. In relation to the reasonableness of his conduct, that is, his response, the Court noted that the response was to be measured against the applicant's perception of the circumstances in which he found himself. A relevant and important sentencing question concerned the extent to which his conduct departed from what would have been a reasonable response had the circumstances been as he perceived them: per Simpson JA at [56], Leeming JA and Hamill J agreeing.
11. In the present case the issue of self-defence was left to the jury. Both written and oral directions were provided to the jury as to the legal principles to be applied based upon the relevant provisions of the Crimes Act 1900, namely, s 418 (self-defence), s 419 (onus of proof) and s 421 (self-defence - excessive force that inflicts death): Summing Up, 30 October 2015 at pp 90-96.
12. It follows from the jury's verdict that the jury accepted that the offender believed that his conduct in stabbing Mr Martyn was necessary in order to defend himself, or put more directly, that the Crown had failed to prove that he did not have that belief. The basis for the jury's verdict of not guilty of murder, but guilty of manslaughter, must have been that the jury accepted that the Crown had proved that the offender's conduct was not reasonable in the circumstances as he perceived them. These lastmentioned words are critical. In summary, whilst the jury accepted that the offender believed it was necessary to defend himself, the jury determined that his conduct in stabbing Mr Martyn was not a reasonable response in the circumstances as he perceived them. The reasonableness of the offender's conduct was to be measured against his perception of the circumstances in which he found himself.
13. In sentencing the offender, a relevant and important question concerns the extent to which his conduct departed from what would have been a reasonable response had the circumstances been as he perceived them. This requires an evaluation of the degree to which the response exceeded that which would be a reasonable response if those circumstances existed.
14. This in turn focuses attention, as I have earlier noted, upon what were the circumstances as the offender perceived them to be, in particular, what was the content of the offender's belief. It may be accepted on the evidence, and I so find, that prior to him stabbing Mr Martyn, the following matters were circumstances as the offender perceived them: 1. That Ms Hill, following the earlier incident, may well make good her threat to him to return with a person or persons associated with the Bandidos Motorcycle Club for the purpose of engaging him in a physical or violent altercation as a form of reprisal for the offender having, on her account, assaulted her. 2. That in that respect the offender decided, whilst having armed himself with a knife and a replica gun, to wait and be prepared if such an event should occur. 3. Ms Hill's statement which indicated that she was allegedly in a position to call on Bandidos members, raised a real possibility that Ms Hill was in fact in some way associated with that group, being one with a well‑known reputation for lawlessness and violence. 4. That upon Ms Hill's return to Norfolk Avenue, the offender saw that she was accompanied by a male, Mr Martyn, a person of considerable height and physique. 5. That Mr Martyn, in walking towards the offender, was perceived by the offender as possibly being a Bandidos member who was intent on inflicting physical harm upon him. 6. The deceased continued to walk in the offender's direction notwithstanding that the offender was holding what in reality was a replica gun which the deceased detected, as indicated by his warning to Ms Hill, that is, that the offender had a gun. 7. That a physical altercation commenced with punches being thrown at some point by Mr Martyn and Reece Barnes. 8. That once that altercation commenced it was likely to lead to an escalating situation in which there was a heightened risk of serious violence erupting between the deceased and the offender. The offender's torn blue shirt was relied upon as some evidence of the fact that there had been a physical confrontation between the offender and Mr Martyn. 9. That these events gave rise to an emotionally charged situation, with the offender determined to get the better of the situation by aggressively going on the offensive, pushing Mr Martyn and thrusting his knife at Mr Martyn and eventually stabbing him.
15. The fact that the offender stabbed the deceased three times is, of course, consistent with an extremely high level of aggression by the offender in circumstances in which the deceased was not apparently or actually armed with a weapon. There was no evidence that Mr Martyn was at any stage carrying a weapon that was concealed from view. No weapon was seen in Mr Martyn's possession and none found on him or near him after the stabbing. There was no evidence from which the offender could have believed, mistakenly or otherwise, that Mr Martyn was armed.
16. In summary, there was evidence to support the jury's verdict which implicitly indicated that it accepted that the offender believed it was necessary to defend himself. There was also evidence which well-supported the jury's implicit finding that his response in stabbing Mr Martyn was not a reasonable response in the circumstances as he perceived them. The fact that Mr Martyn was not armed was plainly an important fact in the jury making the latter finding particularly in circumstances in which the offender aggressively confronted Mr Martyn, forcing him backwards, at knifepoint. That fact is also significant as a further matter relevant to sentencing, namely, the extent to which the offender's conduct departed from what would have been a reasonable response had the circumstances been as he perceived them. If the offender perceived, as was the fact, that Mr Martyn was unarmed then his conduct was quite extreme, indeed heinous. The fact that he stabbed him three times in the chest reinforces that assessment.

Objective Seriousness of the Offence

1. In assessing the objective seriousness of the offence the jury's verdict of manslaughter involved excessive use of force in self-defence and it is necessary to determine both the reasonableness of the offender's acts as well as his intention at the time of inflicting the three stab wounds upon the deceased. In making that determination there is a need for close examination, firstly, of the circumstances that immediately preceded the stabbing of Mr Martyn and, secondly, the number and nature of the stab wounds inflicted.
2. In the early stage of the confrontation, Barnes admitted to Detective Sergeant Rider in the course of an interview, that he punched the deceased. His statements to that effect in the course of that interview were, of course, admissions against his own interests.
3. The evidence, I find, establishes that at the time the stab wounds were inflicted upon Mr Martyn, although Barnes was in the vicinity of the subsequent attack by the offender, he was not then engaged in assaulting the deceased.
4. Whilst I accept that the offender armed himself with a knife by reason of an apprehension that there could be a violent confrontation should Ms Hill return with the assistance of a Bandidos member, as events developed, and as I have discussed, it became apparent to the offender that Mr Martyn, whatever his capacity to fight, was not armed. Moreover in the immediate prelude to the stabbing, Mr Martyn was not walking towards the offender but was backing away with his hands either in the down or the up position as the offender approached him with the knife. These facts reinforce the conclusion that the offender's acts well exceeded what was required in acting in self-defence. The objective gravity of the offence was of a high order. By resorting to a high level of violence, and using the knife as a dangerous weapon, the offender significantly overreacted with the disastrous and fatal consequences that unfolded.
5. In determining whether or not the evidence supports a finding that the offender stabbed Mr Martyn with the intention of killing him, or with the intention of causing him grievous bodily harm, I have closely examined the evidence concerning the events leading up to the fatal stabbing incident.
6. This case, unlike many, is one in which there was no prior association at all between Mr Martyn and the offender. It was not a case in which there could be said to have been some specific earlier planning. It was, as I have described, a matter that rapidly escalated from what began as a comparatively trivial incident.
7. An important aspect of the evidence, of course, is that Mr Martyn was stabbed not once but three times causing extremely serious injuries on each occasion to the deceased. In some circumstances the infliction of multiple wounds may be evidence consistent with an intention to kill where a fatal wound is inflicted. In the present case, however, it is clear that although three wounds were inflicted, they were made to different parts of the deceased's chest. The stab wounds and were not, as it were, deliberately or specifically targeted to one vulnerable part of his body likely to cause death. I have earlier described the stab wounds inflicted, only one of which, on the medical evidence, was the fatal wound responsible for Mr Martyn's death.
8. Dr Eagle's assessment of the offender noted that he had a history of problems with violence which, he observed, gives rise to a higher risk of violent behaviour in the longer term. Whilst problems with anger management do not necessarily exclude the possibility of a person who is prone to violence forming an intention to kill on a particular occasion, as Dr Eagle observed, a person who has suffered childhood trauma can become subject to increasing emotional instability and impulsivity and as Dr Eagle observed, "… distort a person's perspective of his surrounding environment": Dr Eagle's Report at 57.1.
9. Dr Eagle further observed that as a result of his traumatic experiences of the past, the offender viewed the world as "hostile and threatening". This, he stated, can give rise to a "heightened hyper vigilance and excessive response to perceived threat".
10. Dr Eagle's assessment accordingly forms an important part of the evidence and provides a contextual framework within which to evaluate whether or not, on the evidence, the offender's state of mind at the time of inflicting the stab wounds on Mr Martyn involved an intention to kill him.
11. I do not consider that the evidence permits a finding to be made to the requisite standard that the offender's state of mind was an intention to kill, but rather it points, in the particular circumstances of the present case, to the fact that he stabbed Mr Martyn with an intention to inflict grievous bodily harm in the course of him impulsively and severely overreacting to the danger he perceived. The intention to inflict grievous bodily harm in the circumstances of this case indicated a high level of moral culpability. This is a case with some similarity to others in which the weight to be given to the particular mitigating circumstances of the case, acting in self-defence, is not of particularly high order. I refer to the observations of Spigelman CJ in R v Forbes, supra, at [137].

Aggravating Factors

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") identifies a number of matters, being both aggravating and mitigating factors to which regard must be had in determining the appropriate sentence to be imposed.
2. Section 21A(2)(c) provides that an offence involving the actual or threatened use of a weapon may constitute an aggravating factor. I accept, as the Crown observed, that the offence in the present case involved a weapon being used against an unarmed man and that although this is a common feature in many cases of manslaughter, it is not a necessary feature and therefore should be considered as an aggravating factor. I accept the Crown's submission and take it into account as such.
3. Additionally, s 21A(2)(d) provides that an offender having a record of previous convictions, particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences, is an aggravating factor. As discussed in these remarks, the offender has a record of previous convictions, including convictions for offences involving serious personal violence. The fact of those convictions accordingly constitutes an aggravating factor which is to be taken into account. I accept, as the Crown submitted, that the offender's continuing offending, including with the use of weapons while on parole, demonstrates an escalating resort to violence and that there is accordingly an increased need in this case for specific deterrence and for protection of the community: Crown's Written Submissions at [18].
4. Section 21A(2)(j) provides that an offence committed while the offender was on conditional liberty in relation to an offence is an aggravating factor to be taken into account. In the present case the offender was on parole at the time of the commission of the offence in relation to an offence of wounding and accordingly that fact is an aggravating factor to be taken into account.

Mitigating Factors

1. In terms of s 21A(3) of the Sentencing Act, whilst the offender took steps to arm himself with a knife, I do not consider that that of itself is sufficient to constitute it as part of a planned or organised criminal activity within the meaning of s 21A(3)(b) of the Sentencing Act.
2. Notwithstanding Dr Eagle's observations referred to in para [39] of Mr Carroll's written submissions, I do not consider that the evidence indicates or establishes that the offender has good prospects of rehabilitation, a factor to which s 21A(3)(g) and (h) refers and I will return to this aspect.

Offer to Plead

1. In relation to the offender's offer to plead guilty of manslaughter on the grounds of excessive use of force, there are a number of factors to be considered.
2. On 27 October 2014, the offender's solicitor emailed the Office of the Director of Public Prosecutions and enquired whether a plea to manslaughter on the basis of excessive self-defence would be considered in full satisfaction of the indictment: Exhibit A, Tab 12.
3. On 29 October 2014, the factual basis for the plea offer was requested by the Office of the Director of Public Prosecutions. Information was supplied by the offender's solicitor on 30 October 2014: Exhibit A, Tab 12. The offer to plead was not accepted by the Crown in November 2014.
4. The defence case at trial proceeded upon the basis, as I have earlier said, that the offender was not the person responsible for the stabbing of Mr Martyn.
5. Mr Carroll submitted that the offender should be given the full available discount for an early plea, namely a discount on sentence of 25%. The Crown's oral submissions disputed a discount at that level as an appropriate one.
6. I have considered discounts on sentence allowed in a number of comparative cases: R v Pennisi [2001] NSWCCA 326 at [27]; Regina v Oinonen [1999] NSWCCA 310 at [16]; Smith v R [2015] NSWCCA 193. Each case of course has its own distinct facts and cannot be taken as a definitive guide.
7. I note the following matters: 1. The determination of where, within the accepted range of 10-25%, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. The matters relevant to the exercise of this discretion in determining the level of discount in a particular case were discussed by the Chief Justice in R v Thomson; R v Houlton [2000] NSWCCA 309; 115 A Crim R 104. The present case, as I have indicated, involves the offence of manslaughter, the objective seriousness of which was at a very high level. It is a case in which the offender has not expressed genuine contrition and whose criminal record includes offences involving violence and where prospects of rehabilitation cannot be assessed as good. 2. The offence of manslaughter in the present case is such as to offend the public interest in the sense discussed by Spigelman CJ in R v Thomson; R v Houlton at [158]. There is a need for the sentence to be imposed which appropriately reflects that fact. In order for that to occur in this case, there should, in the exercise of the discretionary assessment in relation to the offer to enter a guilty plea, be allowed a discount of less than 25%. I have determined that the appropriate level of discount in this case having regard to the offender's offer to plead and the timing of it, should be 20%. 3. Before leaving this aspect, I have considered the issue that was raised in the course of submissions as to whether or not, in determining the discount for the offer to plead, there should be taken into account the fact that the offender, having earlier made an offer to plead guilty, subsequently conducted his defence at trial upon the basis that he was not responsible for the infliction of the fatal wound. Whilst it could be said this operated to prolong the trial, I have determined that in the circumstances of this case I will not rely upon this as a basis for further diminishing the discount on sentence.

Subjective Factors

1. The subjective factors include the personal matters concerning the offender. These include the fact that was 33 years of age at the time of the offences and is now currently 35 years of age.

Offender's Criminal History

1. The offender's criminal history is extensive and it includes the following: 1. 27 March 1999 - he was convicted of common assault and resist officer in execution of duty; 2. 4 June 2000 - he was convicted of assault occasioning actual bodily harm; 3. 29 October 2002 - he was convicted of the offence of possess knife in a public place and common assault; 4. 3 February 2003 - he was convicted of robbery armed with offensive weapon causing wounding, grievous bodily harm. In respect of that offence the offender was sentenced to a term of imprisonment of 4 years and 9 months. 5. 19 September 2008 - he was convicted of the offence of maliciously inflict grievous bodily harm. The offender was sentenced to a term of imprisonment of 3 years and a non-parole of 2 years. 6. 3 May 2010 - he was convicted of the offence of resist officer in execution of duty and police pursuit, not stop, drive dangerously. 7. 11 May 2011 - he was convicted of an offence of supply a prohibited drug. He was sentenced to a term of imprisonment of 12 months. 8. 10 March 2012 - he was convicted of recklessly wound another person. The offender was sentenced to a term of imprisonment of 2 years. He was sentenced on appeal to a term of imprisonment of 2 years with a non-parole period of 11 months and 3 days. He was on parole in relation to this offence at the time of the subject offence. The offender was released to parole on 6 August 2013. The offender failed to report in breach of his parole conditions.
2. In the Crown Submissions it was noted that in relation to the armed robbery offence in 2003, the offender, with another, robbed a drug dealer at gun point. The weapon was discharged and the bullet passed through the victim's arm and lodged in his chest. It was noted that there was a dispute as to whether it was the offender, or another person, who was in possession of the firearm at the time. The court was unable to determine that issue beyond reasonable doubt: R v Misiepo [2005] NSWCCA 405.
3. In relation to the offence of maliciously inflicting grievous bodily harm in 2008, the Crown observed that the offender, whilst on parole for the armed robbery offence, stabbed a person three times causing a collapsed lung.
4. The Crown further observed that in relation to the reckless wounding offence in 2012, the offender stabbed a girl in the throat at a nightclub with a screwdriver.
5. The offender gave a history of having a supportive relationship with his mother.
6. The personal background of the offender was not the subject of oral evidence but a history was taken by Dr Eagle and set out at pp 5-6 of her report.
7. The offender told Dr Eagle that his mother was a Caucasian and his father a Pacific Islander. He was the youngest of three children. According to the history given to Dr Eagle, his parents separated when he was 15 years of age. He said he had already left home by that time.
8. He maintained that there had been troubles at home and claimed that this involved some physical domestic violence. He gave a history that his father was the perpetrator of the violence and that both he and his brother were victims. He was reluctant to discuss details of the violence.
9. According to the history given, a diagnosis of hyperactivity disorder, ADHD, was made of him by Dr Smith at Hurstville. He was treated for a time but this was ineffective.
10. The offender said that he believed he had contact with mental health services when he was six or seven years old for behavioural problems. In that period it was said that he was diagnosed with ADHD. According to the information provided he was treated with medication for one to two years. He then went to what was described as a "behavioural school", Boystown, for one year. When he was 14 years of age he left the program at Boystown.
11. According to the family history given to Dr Eagle, the offender's father had been diagnosed with a mental illness which he believed was associated with a mood disorder.
12. On the basis of the offender's history to Dr Eagle he first used cannabis at the age of 14 years. This was is a social context with friends on weekends. When he was 17 years of age he said he regularly had up to 10‑20 cones daily. This continued until he was 21 years of age at which time he commenced using other prohibited drugs than cannabis. At the age of 17 or 18 he first tried heroin. He said he initially smoked heroin but ultimately administered it intravenously. He said this continued until 2011. He then stopped using it after commencing an opioid substitution program. He said he had remained abstinent from heroin for a few years after that.
13. The history also included the use of methamphetamines every now and again from the age of 24. On the history to Dr Eagle his drug-taking increased in periods when he was having relationship difficulties.
14. According to the history to Dr Eagle, the offender said he had attempted to find a residential rehabilitation program to attend at the end of 2013 but had found it difficult to find a facility that would accept him given his history of offending.
15. According to the offender, he had an extended period of abstinence from about 2010. He had been in and out of custody in that period. When abstinent and out of custody he did building work.
16. Following his period at Boystown, he told Dr Eagle that he worked from 1997 until 2001 for a freight company for four years. Following that, he did not have consistent employment.

Personal Circumstances of the Offender

1. On the basis of his examination, Dr Eagle concluded that the offender was logical in thought form, that he did not exhibit any psychotic phenomena and there was no evidence of depressive themes.
2. The offender is said to have expressed to Dr Eagle a motivation to change, saying that he wanted to change and that he knew what was right and what was wrong. In relation to the subject offence, he stated in the course of the examination: "I feel heaps bad about it", and "I wish it never happened". He said that he would do "anything to change myself".
3. Dr Eagle concluded that the offender does not have a major mood disorder or psychotic illness but he observed that he has a severe methamphetamine use disorder in remission and additionally an opioid use disorder on maintenance therapy. Dr Eagle concluded at [54]: "Mr Misiepo's history and presentation suggest that he has an anti-social personality disorder. He has a history of behaviour consistent with conduct disorder prior to the age of 15 years. He has engaged in persistent behaviours indicating a failure to conform to social norms in relation to lawful behaviour; impulsivity; irritability; aggressiveness; and consistent irresponsibility (such as a failure to maintain stable employment)."
4. Dr Eagle considered that his reported exposure to severe childhood trauma was likely to have impacted on his ability to manage his anger and impulsive behaviours. He considered that he has demonstrated limited healthy coping strategies to manage stress and poor distress tolerance. As a result, he has had difficulty regulating his mood: at [55].
5. Dr Eagle further reported that according to a structured professional judgment risk assessment tool referred to as HCR 20, the offender "…has a number of historical risk factors for future violence, including a history of problems with violence, substance use, employment, traumatic experiences, personality disorder, violent attitudes and treatment or supervision response". Dr Eagle stated at [56.5]: "… this correlates with a higher risk of violent behaviour in the longer term."
6. Dr Eagle, on the basis of assessment made, stated that the offender has demonstrated some insight into his substance use disorder and violent re‑offending: at [56.5].
7. Dr Eagle identified factors said to be associated with a risk of reduced re‑offending, when compared to other offenders, such as an expressed motivation to engage in treatment for his substance use disorder and having a role/commitment in relation to his children: at [56.5].
8. Dr Eagle concluded that the offender's active participation in an appropriate psychological therapeutic program would improve his prospects for recovery and therefore rehabilitation: at [58.1].
9. The history recorded by Dr Eagle was based upon the offender's account to the doctor and information provided by his mother, Mrs McInnes, to the examining doctor. Ms McInnes was called to give evidence at the sentence hearing and she confirmed that the information that she gave to Dr Eagle was truthful.
10. I have closely considered Dr Eagle's account of the offender's personal background, including his childhood trauma and behaviour, along with his opinion upon the matters he was specifically requested to consider at [56] and his diagnosis of antisocial personality disorder and the likely impact of his reported exposure to severe childhood trauma, including physical and sexual abuse.
11. Dr Eagle expressed the opinion that the offender does not have a major mood disorder or psychotic illness: at [52]. The doctor's opinions require that the offender's history of childhood abuse and associated emotional impact to be taken into account as a mitigating factor. That said, I note that the precise extent and impact of the abuse reported was not expressly addressed in the report of the doctor, no doubt by reason of the fact that, as Dr Eagle noted, the offender was either unable or unwilling to articulate the nature of the abuse during the course of the interview with Dr Eagle.
12. A background of emotional and physical deprivation is relevant to an offender's moral culpability: Bugmy v The Queen [2013] HCA 37; 249 CLR 571, in particular at [37]-[45]. In this case the offender's background to which I have referred is a mitigating factor requiring individual assessment on the evidence as best one is able to. I regard it as a material mitigating factor and have taken it into account in determining the sentence to be imposed.

Maximum Penalty

1. The maximum penalty that is prescribed for a criminal offence is an indication of the relative seriousness of the offence: Markarian v R (2005) HCA 25; 228 CLR 357 at 31. It is a matter to be taken into account under s 21A(1)(c) of the Sentencing Act. The prescribed maximum term of imprisonment for the offence of manslaughter is 25 years imprisonment: Crimes Act 1900, s 24. There is no standard non-parole period prescribed.

Rehabilitation Prospects

1. I have had regard to the evidence of Dr Eagle in respect of the issue of rehabilitation and the prospects that the offender has. I have had regard to the services and program officers' statements to which I have earlier referred. However, as I indicated I have formed the view that it is not possible to conclude that the offender has good prospects of rehabilitation. Dr Eagle's assessment was that the offender's active participation in appropriate psychological therapeutic regime, which would involve an assessment by a clinical psychologist and ongoing long-term psychotherapy, in addition to group therapies, would improve his prospects for recovery and therefore rehabilitation: at 58.1.
2. On the evidence, the offender's prospects would be contingent upon his appropriate and proper participation in a therapeutic regime. Accordingly, any assessment of the offender's rehabilitation prospect, on the evidence, must necessarily be a guarded one.
3. I have referred to the offender's record of previous convictions, they do not auger well for him and as I have said it would be wholly dependent upon participation in the sort of therapeutic regime to which I have earlier referred.
4. I have taken into account the evidence of the offender's mother that she remains supportive of her son, but it is to be observed that the offender had her continuing support in the past which, unfortunately, did not seem to deter him from engaging in anti-social and criminal conduct.
5. There is no specific evidence as to the offender's ingestion of drugs or alcohol prior to the subject offence but even if it be the case that he had done so voluntarily - that is, voluntarily induced intoxication through the consumption of alcohol or drugs - that should not be taken into account as a personal characteristic of an offender. There is much authority to support the proposition that to do so would entitle those whose perceptions are mistaken (for example, as to the gravity of a threat faced or as to the reasonableness of response to potential or actual danger), to be excused on that basis to kill. That would be an invitation to exempt persons by reason of intoxication in circumstances where they have voluntarily placed themselves in the position of being affected by alcohol or drugs.

Victim Impact Statements

1. At the sentencing hearing there were two Victim Impact Statements read. The first statement was by Ms Megan Hill, which she read to the Court. The second was the statement of Victor Martyn, the brother of the deceased, who read his impact statement.
2. The statements express in clear and very dignified terms the grievous effect and the immense loss arising from the death of Peter Martyn, and the impact it has had upon each of them. The loss of a loved one, in the circumstances with which this case is concerned, is exceptionally painful and tragic. On behalf of the Court I extend my condolences to the family of the deceased for the immense loss that they have endured and that they will continue to endure. Nothing of course can address that immense loss.
3. I have noted the provisions of Division 2 (Victim Impact Statements) Part 3 of the Sentencing Act, in particular, s 28. I have, of course, closely considered the Victim Impact Statements in this case as significant material before the Court. I have, however, determined the sentence to be imposed on the basis of the evidence and findings to which I have referred.
4. As there were no submissions made in relation to s 28, I have determined that any sentence should not be increased by virtue of the statements to which Division 2 applies in this case.

Date for Commencement of Sentence

1. The offender has been in custody since his arrest on 6 January 2014. At the time of committing the subject offence he was, as I have earlier stated, on parole in relation to the offence of reckless wounding. On 7 January 2014, he commenced serving the balance of his parole period under the previous sentence which expired on 28 September 2014. Accordingly, in respect of the parole he breached there was still to run a period of 8 months and 22 days representing the balance of the parole period.
2. The Crown submission was that the sentence to be imposed in respect of the subject offence of manslaughter should commence on the day after the expiration of his previous parole period, namely on 29 September 2014.
3. In R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145, the Court of Criminal Appeal considered an issue as to whether it could be said there to be an aspect of double punishment in circumstances where there was a finding that the offence for which an offender was to be sentenced was aggravated by the fact that it was committed whilst the offender was on parole, the breach of parole and subsequent incarceration of the offender, together with the subsequent accumulation of the sentences upon the expiration of the parole period: at [10].
4. The Court of Criminal Appeal in that case determined that the matter is a discretionary one for the sentencing judge and there is no absolute rule where pre-sentence custody is referrable, partly to the crime for which an offender is being sentenced, and partly to some other circumstance such as that arising where there has been a revocation of parole. That pre-sentence custody may never be taken into account.
5. It is clear that a discretion exists for a sentencing judge in these circumstances to, as it were, backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced.
6. At the sentencing hearing, the Order Revoking a Parole Order by the State Parole Authority, dated 17 December 2013, that is the month before the subject offence, stated that the Parole Order should be treated as having been revoked on 12 December 2013. However, the offender was still in the community it seems up to and including the date of his arrest on 6 January 2014.
7. The Order Revoking a Parole Order set out the reasons for the revocation. Those reasons include a number of issues concerning breach of parole, being matters not related, of course, to the subject offence which occurred subsequently.
8. In the present case the offender's custody on and after 6 January 2014 may be seen as, in part, referable and consequent upon his arrest for the subject offence and, concurrently, by virtue of the fact that his parole was revoked on 17 December 2013. The prior revocation by the order made on 17 December 2013, for identified reasons, is a significant matter which would have seen the offender serve further time in custody for the previous offence before being readmitted to parole. There is no precise basis upon which that latter eventuality, that is being again released to parole, can be determined.
9. I consider that in order to allow for the matter to which I have referred, namely, the reason for the offender's arrest on 6 January 2014 and subsequent custody, that it is appropriate that there should be a limited backdating or concurrency of the sentence to be imposed and the parole period under the earlier sentence, being a period of 2 months. As I have earlier indicated, the balance of the parole period at the time of arrest was 8 months and some 21 days. In doing so, I have regard to the fact that, but for the subject offence, and having regard to the reasons for the revocation of the parole orders set out in the order revoking parole (Exhibit 3) the offender may have become eligible once again for parole at some point in the abovementioned period of 8 months and 21 or 22 days.
10. In determining the sentence to be imposed I have determined a starting point of a term of imprisonment of 15 years. Allowing for a discount on sentence of 20% reduces that term of 15 years to a term of imprisonment of 12 years. I apply the statutory ratio of the non-parole and parole periods in accordance with the provisions of s 44 of the Sentencing Act. I do so by reason of the fact that I do not consider that this is a case in which special circumstances could be or have been shown under s 44 which would warrant any variation of the statutory ratio.
11. Accordingly, by application of the statutory ratio to the term of 12 years produces a non-parole period of 9 years with a parole period of 3 years.
12. Would the offender please stand. Chad Frederick Misiepo I sentence you to a term of imprisonment of 12 years comprising: 1. A non-parole period of 9 years commencing on 28 July 2014 and expiring on 27 July 2023. 2. A balance of term of three years expiring on 27 July 2026.
13. Accordingly, the first day upon which you will be eligible for release to parole will be 28 July 2023.

Section 166

1. The offender maintains a plea of not guilty in relation to the assault charge involving the alleged assault on Ms Hill. It is not appropriate for a determination, in my view, of that charge in the course of this sentencing hearing. There are a number of potential witnesses who may be in a position to give evidence relevant to that charge.
2. The trial of the offender did not focus in evidence, or in opening or final addresses, upon the incident the subject of the assault charge.
3. I have concluded that, should the Crown wish to proceed with that matter, subject to one matter to which I will refer, then pursuant to s 169 of the Criminal Procedure Act 1986, the assault charge should be remitted to the Local Court. That course is premised upon the basis that it can be said that the charge is a "related offence" under s 165 of that Act.
4. By reason of that question which would need to be determined, I grant leave to the parties to make further application to this Court concerning the hearing and disposition of the assault charge.

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